United States of America v. Facebook, Inc.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 2024 Decided May 16, 2025
No. 23-5280
UNITED STATES OF AMERICA,
APPELLEE
v.
FACEBOOK, INC.,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-02184)
James P. Rouhandeh argued the cause for appellant. With
him on the briefs were Michael Scheinkman, David B. Toscano,
Marc J. Tobak, John A. Atchley III, and Paul J. Nathanson.
Zachary L. Cowan, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were Brian
M. Boynton, Principal Deputy Assistant Attorney General, Arun
G. Rao, Deputy Assistant Attorney General, Amanda N.
Liskamm, Director, Consumer Protection Branch, Lisa K. Hsiao,
Senior Deputy Director, Civil Litigation, Zachary A. Dietert,
Assistant Director, Zachary L. Cowan, Attorney, and Scott P.
Kennedy, Attorney.

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Before: RAO and WALKER, Circuit Judges, and RANDOLPH,
Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: This appeal is the latest
chapter in a long-running consumer-privacy dispute between
Facebook and the Federal Trade Commission. In 2020, the1
parties reached a two-part settlement: a consent order in the
district court and an agency order on the FTC’s administrative
docket. The FTC later reopened the administrative docket to
address alleged noncompliance with the settlement. Facebook
then moved to enjoin those proceedings, arguing that the consent
order governed the entire settlement and prevented unilateral
modification. The district court, viewing the administrative and
judicial processes as distinct, held that it lacked jurisdiction over
the agency docket. We reverse and remand.
I.
In 2012, the FTC filed an administrative complaint against
Facebook, alleging that it had disregarded users’ privacy settings
when sharing data with third parties. Facebook settled that
complaint by consenting to an administrative order entered on
the FTC’s docket. The 2012 administrative order directed
Facebook to implement a privacy program including certain
consumer disclosures and the employment of an independent
auditor.
In 2019, the FTC concluded that Facebook had violated the
During the course of the administrative and judicial proceedings in 1
this case, Facebook, Inc., changed its name to Meta Platforms, Inc. We
use “Facebook” as a shorthand for the company.

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2012 order and referred a complaint to the Justice Department.
In the agency’s view, Facebook had continued to ignore users’
privacy settings when sharing data. Facebook, the FTC, and
DOJ ultimately reached a new settlement agreement to resolve
the complaint. That settlement entailed a $5 billion fine and a
series of remedial measures, including data-privacy reforms,
reporting obligations, and monitoring. Facebook was also
required to hire a third-party “assessor” to review its privacy
practices.
To effectuate this agreement, the United States
simultaneously filed—in district court—a new civil complaint,
a consent motion for entry of judgment, and a proposed
Stipulated Order. The Stipulated Order formalized the $5 billion
monetary judgment and provided payment logistics. But it took
a different tack with the injunctive relief. Instead of listing all
the settlement provisions, the Stipulated Order merely required
that Facebook “shall consent” to reopening the FTC docket to
replace the 2012 order with a new order. App. 99. This new FTC
order provided the specifics of the settlement and was appended
to the Stipulated Order as “Attachment A.” In addition, the
Stipulated Order reserved district court jurisdiction for disputes
relating to “construction, modification, and enforcement” of the
Stipulated Order. App. 100. Facebook agreed both to entry of
the consent motion and the Stipulated Order.
In April 2020, the district court approved the settlement and
entered the Stipulated Order with Attachment A. Several days
later, and over dissents by two commissioners, the FTC
reopened the Facebook docket and entered a new “Order
Modifying Prior Decision and Order.” App. 380. That order
described Attachment A as a “new Decision and Order.” Id.
Three years later, the FTC issued a “show cause” order
proposing to modify the 2020 administrative order. Citing a

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recent assessor’s report finding deficiencies in Facebook’s
adherence to the settlement and the agency’s authority to
“modify” any order, see 15 U.S.C. § 45(b), the FTC proposed a
temporary pause on any new features and limits on Facebook’s
ability to use data gathered from minors. Facebook filed no
response with the agency; instead, it moved in district court to
“enforce” the original settlement by enjoining any further
administrative proceedings. App. 233.
The district court denied Facebook’s motion. The court
determined that the terms set forth in Attachment A “were not
made part of the Stipulated Order itself,” App. 699, and thus
“were not ordered by the Court,” App. 703. Instead, the district
court believed that those terms only became binding “later,
when the FTC issued its 2020 administrative order.” Id. And
since the Stipulated Order only retained district court
jurisdiction for disputes arising from the Order itself, the court
held that it lacked jurisdiction over the FTC’s parallel
administrative proceeding. The court accordingly declined to
reach any of Facebook’s merits arguments. Facebook took this
appeal.
II.
A.
“Federal courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). Although subject matter jurisdiction typically arises
from statutory grants, federal courts also possess “ancillary
jurisdiction” in certain circumstances. Id. at 378.
“Generally speaking,” one purpose of ancillary jurisdiction
is “to enable a court to function successfully, that is, to manage
its proceedings, vindicate its authority, and effectuate its

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decrees . . ..” Id. at 379–80. With respect to the enforcement of
settlement agreements, the federal courts’ ancillary jurisdiction
is limited to the enforcement of court orders containing “a
provision ‘retaining jurisdiction’ over the settlement agreement”
or “incorporating the terms of the settlement agreement in the
order.” Id. at 381. In those cases, “a breach of the agreement
would be a violation of the order, and ancillary jurisdiction to
enforce the agreement would therefore exist.” Id.
In this case, both parties agree that the district court retained
jurisdiction over the Stipulated Order itself. See App. 100
(“[T]his Court shall retain jurisdiction . . . for purposes of
construction, modification, and enforcement of this Stipulated
Order.”). The central question is therefore whether Attachment
A was part of the Stipulated Order.
B.
The Stipulated Order is a consent decree, “essentially a
contract,” and we therefore construe it “according to general
principles of contract law.” United States v. Volvo Powertrain
Corp., 758 F.3d 330, 339 (D.C. Cir. 2014) (first excerpt quoting
Segar v. Mukasey, 508 F.3d 16, 21 (D.C. Cir. 2007)). Applying
those principles, we first assess the document itself to determine
“what a reasonable person in the position of the parties would
have thought the language meant.” Richardson v. Edwards, 127
F.3d 97, 101 (D.C. Cir. 1997). But if “the document itself is
ambiguous,” we can “look to extrinsic evidence of the parties’
subjective intent.” Volvo, 758 F.3d at 340 (quoting Segar, 508
F.3d at 22). This inquiry includes “aids to construction” such as
“the circumstances surrounding the formation of the consent
order.” United States v. ITT Cont’l Baking Co., 420 U.S. 223,
238 (1975). We construe the Stipulated Order de novo. See
Volvo, 758 F.3d at 337.

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While the two documents here are themselves not entirely
clear, the surrounding context—most significantly, the
accompanying district court opinion—shows that Attachment A
was part of the Stipulated Order.2
Facebook also suggests that Attachment A, if a separate document, 2
might violate Federal Rule of Civil Procedure 65(d)(1)(C). Under that
rule, an injunction must describe its terms “in reasonable detail” and
without “refer[ence] to the complaint or other document.” Fed. R. Civ.
P. 65(d)(1)(C). Other circuits have split on whether an injunction
“refer[s]” to a document that is physically attached. Compare Dean v.
Coughlin, 804 F.2d 207, 215 (2d Cir. 1986) (“The court’s
incorporation of these specific terms by reference in an order, to which
they are attached, would fully satisfy the requirements of Rule
65(d).”), State of Cal. ex rel. Cal. Dep’t of Toxic Substances Control
v. Campbell, 138 F.3d 772, 783 (9th Cir. 1998) (injunction with
documents “physically attached” was “consistent[] with” Rule 65),
and Combs v. Ryan’s Coal Co., 785 F.2d 970, 979 (11th Cir. 1986)
(approving Rule 65 compliance based on a review of “the decree and
its attachments”), with Dupuy v. Samuels, 465 F.3d 757, 758 (7th Cir.
2006) (rejecting incorporation by reference for “physically attached”
materials as “complicat[ing] the administration of the rule” through
“thoughtless attachment of separately composed documents”), and
Hatten-Gonzales v. Hyde, 579 F.3d 1159, 1168–69 (10th Cir. 2009)
(suggesting that an injunction with “physically attached” materials
“may have fallen short of the specificity requirement of Rule 65(d)”).
But since we hold that Attachment A was itself part of the Stipulated
Order, not merely referenced, we have no occasion to decide this
question. See Wright & Miller, 11A Fed. Prac. & Proc. Civ. § 2955
(3d ed. 2025) (“It is noteworthy that most courts that have mentioned
the third requirement of Rule 65(d)(1) have done so in cases in which
reference has been made in the injunction to outside documents.”
(emphasis added)); cf. Seattle-First Nat’l Bank v. Manges, 900 F.2d
795, 800 (5th Cir. 1990) (holding that Rule 65(d) “require[s] that the
parties be able ‘to interpret the injunction from the four corners of the
order’” (quoting FTC v. Sw. Sunsites, Inc., 665 F.2d 711, 724 (5th Cir.
1982)).

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Here, the text of the Stipulated Order and Attachment A do
not settle the question whether Attachment A was part of the
Order. Neither document delineates the precise scope of the
district court’s order, and the Stipulated Order does not explain
the status of Attachment A. To be sure, the district court did
order Facebook to consent to the entry of Attachment A on the
FTC docket. But that does not disprove that Attachment A was
incorporated into the court order.
To the extent the documents provide any hints, those hints
are conflicting and hard to reconcile. Some details point toward
the Stipulated Order incorporating Attachment A. For example,
the Stipulated Order’s full title is a “Stipulated Order for Civil
Penalty, Monetary Judgment, and Injunctive Relief,” App. 96,
and the only injunctive relief was “in the form of” Attachment
A, App. 186. Moreover, the first page of Attachment A states
that, “[t]his Court has jurisdiction over this matter,” App. 104,
and the only potential court was the district court. In addition,
the Stipulated Order and Attachment A were entered onto the
district court docket as a package, suggesting that they
collectively comprised the consent decree. On the other hand,
Attachment A does not look like a district court order. It is
styled as a “Decision and Order” of the FTC, complete with the
“Federal Trade Commission” header, the FTC docket number,
and the signature of the FTC’s Acting Secretary. Its introduction
states that, “the Commission . . . issues the following Order,”
App. 104, and it became effective “upon the date of its
publication on the Commission’s website (ftc.gov) as a final
order,” App. 123.
Other indications—specifically, those contained in the
district court’s contemporaneous opinion approving the
settlement—clearly show that Attachment A was part of the
Stipulated Order. A court order is not “an isolated,
self-contained writing but [an] order with the gloss of” an

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accompanying opinion. Hotel & Rest. Emps’ Int’l All., Loc. No.
122 v. Wis. Emp. Rels. Bd., 315 U.S. 437, 441 (1942).
Accordingly, injunctions should be read with all the
connotations “that are infused into their terms by the opinions”
of the issuing court. Int’l Bhd. of Teamsters, Chauffeurs,
Warehousemen & Helpers Union, Loc. 309 v. Hanke, 339 U.S.
470, 480 (1950).3
First, the opinion repeatedly stated that the Order directly
imposed the injunctive relief contained in Attachment A. The
opinion’s first page explained that “the order would . . . impose
injunctive relief in the form of an amended administrative order”
on the FTC docket. App. 186 (emphasis added). Elsewhere, the
opinion recounted that “[t]he United States has moved, with
Facebook’s consent, for the Court to enter a stipulated order that
. . . imposes injunctive relief in the form of an amended
administrative order.” App. 191 (emphasis added).
Second, the opinion described the entire settlement as
contained within the “Stipulated Order,” including provisions
only listed in Attachment A. For example, after listing the
settlement terms, it noted that “[t]he Stipulated Order spells out
Facebook’s obligations precisely, it defines key terms in detail,
and it incorporates specific deadlines.” App. 197. But the
We note that the district court’s more recent opinion, at issue here, 3
held that the Stipulated Order did not include Attachment A. While we
assign deference to that interpretation, we conduct our own inquiry
and the district court’s view is not “necessarily conclusive.” FCC v.
Pottsville Broad. Co., 309 U.S. 134, 141 (1940); see also United
States v. Bd. of Educ. of City of Chi., 717 F.2d 378, 382 (7th Cir.
1983) (“[T]he interpretation of consent decree provisions, like the
interpretation of contract provisions, is a matter of law and subject to
plenary review on appeal. The district court’s views on interpretation,
however, are entitled to deference.” (citations omitted)).

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obligations, terms, and deadlines were all located in Attachment
A, not the five-page Stipulated Order. Similarly, when rebutting
charges by amici curiae that the settlement was too lenient, the
opinion held that “the overall terms of the Stipulated Order”
passed muster because they went “far enough.” App. 197–98
(emphasis added). But this language would make little sense if
it referred only to the bare five-page Order, since the Order
contained few of the “overall terms” of the settlement and itself
ordered very little, if anything, that could be characterized as
injunctive relief.
Third, the opinion discussed possessing continued
jurisdiction to adjudicate violations of both the Stipulated Order
and Attachment A. The court stated that, “under the Stipulated
Order[,] it retain[ed] jurisdiction over this matter, including to
enforce its terms.” App. 201. And it cautioned that if Facebook
“continued to violate the law or the terms of the amended
administrative order” in Attachment A, it would impose a
harsher penalty. Id. If Attachment A had no judicial force, the
district court could not have retained jurisdiction to require
adherence to its terms.
The FTC’s only countervailing evidence is that it engaged
in a separate process to adopt Attachment A on its docket and
that two commissioners dissented. But those proceedings were
unsurprising, as the Stipulated Order expressly contemplated
implementation steps by the FTC. And while the dissenting
votes might suggest a belief that the court had not ordered the
settlement terms, their opposition was on policy grounds and
was silent on the status of Attachment A. See App. 364–78. The
district court’s extensive comments on the very legal question
now at issue here are a far better indicator of the parties’
contemporaneous intent.
* * *

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Because the 2020 Stipulated Order included Attachment A,
the district court retained jurisdiction over both documents.
Since the district court’s dismissal on jurisdictional grounds
meant that it never reached the merits, we reverse and remand
so that it may consider Facebook’s claims in the first instance.
So ordered.

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