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Sunday, March 26, 2017 3:30:06 AM
The ramification of Treasury's advisory filing to the US District Court for Southern Texas is straightforward. Treasury alerts the court that its former position of support of FHFA's arguments against the Plaintiffs' constitutional claim as found in a footnote in their 2/27/2017 reply memorandum in support of the motion to dismiss has changed. The court is advised that Treasury's position matches the DOJ's (US) position as stated in its US Amicus Brief to the CADC en banc rehearing of the CADC panel ruling. This advisory silences Treasury and leaves FHFA to argue alone against the Plaintiffs Count IV, since the DOJ sees the CFPB structure as unconstitutional. This new position matches, in part, the Plaintiffs' position and partially undermines the Defendants' position. See: 02/27/2017 - Reply Memorandum of the Department of the Treasury and Steven Mnuchin in Support of Their Motion to Dismiss. Note: Treasury did not file a separate and named reply and did not argue directly against the Plaintiffs' constitutional claim as did FHFA. Since the CADC panel ruling is vacated and the advisory is simply a filing and not acted upon by the court, we are to wait to see what impact this has on the Collin's and other cases.
Here is the order of events.
1. There was a legal ruling made on October 11, 2017 by a CADC panel in the PHH Corporation v. CFPB case. The judgment given was that the CFPB structure composed as a single headed, independent agency with a for-cause removal provision applicable to the CFPB director is unconstitutional and that the remedy for this legal flaw is to remove the for-cause removal provision. See CADC panel decision here: http://bit.ly/2dZ8qnu - page 9-10.
This ruling is not applied to to other similarly structured single-Director, independent agencies - FHFA, SSA and OSC .
2. The above CADC panel judgement (not opinion) is currently vacated in accordance with Circuit Rule 35(d) since there is an ongoing CADC rehearing en banc of that ruling.
3. On February 9, 2017 and March 20, 2017, in the Collins, et al. v FHFA, et al. case in the US District Court in Southern Texas, the Plaintiffs file and argue and reply and argue for the court to render a summary judgment to vacate the Net Worth Sweep because FHFA’s structure violates the separation of powers and is unconstitutional. The PHH Corporation v. CFPB is brought into play, even though the CADC panel judgment is vacated.
See: 02/09/2017 - Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motions to Dismiss and in Support of Plaintiffs’ Motion for Summary Judgment on Constitutional Claim
03/20/2017 - Plaintiffs’ Combined Reply in Support of Their Motion for Summary Judgment…
4. FHFA replies and argues against the Plaintiffs arguments on the constitutional claim on 2/27/2017. See: 02/27/2017 - Memorandum of Defendants Federal Housing Finance Agency as Conservator for Fannie Mae and Freddie Mac and FHFA Director Melvin L. Watt in Opposition to Plaintiffs’ Motion for Summary Judgment and in Support of Defendants’ Cross-motion for Summary Judgment on Constitutional Claim
5. Also on 2/27/2017, Treasury files for a motion to dismiss but Treasury does not make an independent filing that argues against the Plaintiffs' constitutional claim. Instead of Treasury making its own arguments against the Plaintiffs' constitutional claim, Treasury gives a footnote indicating its support of FHFA's arguments against the Plaintiffs' constitutional claim. See: 02/27/2017 - Reply Memorandum of the Department of the Treasury and Steven Mnuchin in Support of Their Motion to Dismiss.
Then on March 24, 2017, Treasury reconsiders its position supporting FHFA's arguments by filing an advisory notifying the court that Treasury takes back its admission of support in favor of FHFA's arguments against the Plaintiffs' constitutional claim as found in the note and requests the court to recognize its new stance that is in line with the DOJ's Amicus Brief filed with the CADC en banc rehearing, and to not bring to bear the former position, if and when the consitutional issue is up for consideration. See: 03/24/2017 - Treasury Advisory
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