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FYI: Approaching 3 months in Bhatti eighth circuit
https://www.ca8.uscourts.gov/court-session
Select October 2019 in the pull down
Click 18-2506 for the opinion once released...
17.) 18-2506 Atif Bhatti vs. Federal Housing Finance Agency 10/15/2019 [MP3]
-Havoc5
I agree.
Sweeney docket item 447
I speculate that Judge Sweeney allowed the derivative claims and has included the most incriminating sealed document quotes and references in this opinion. I'd like to believe this would catalyze a swift settlement discussion.
Could this support Washington Federal's claims of harm, and unwind the conservatorship?
10 days to request redactions, so we may get to see her opinion with redactions by Christmas.
Other opinions welcome.
-Havoc5
Judge Sweeney transcript on the docket now, but......
TRANSCRIPT of proceedings held on November 19, 2019 before Chief Judge Margaret M. Sweeney. Total No. of Pages: 1-392. Procedures Re: Electronic Transcripts and Redactions. To order a copy of the transcript, click HERE. Notice of Intent to Redact due 12/2/2019. Redacted Transcript Deadline set for 12/23/2019. Release of Transcript Restriction set for 2/20/2020 .
Not available yet, and the proceedings were too long to post audio, so a CD is available for purchase.
Not clear why redactions are called, as this was a public hearing.
-Havoc5
No audio posted yet.
-Havoc5
Significance of 1996 USA v. Winstar referenced today by Judge M. Sweeney.
Thanks to nealsnewmans at Google Groups for reporting.
nealsnewmans Post on Google
CaseBreifs
The Federalist Society
Oyez
Winstar case argued by none other than Charles J. Cooper.
-Havoc5
11,000 docs article
Rolling Stone 11,000 docs
-Havoc5
YanksGhost,
Enjoy your perspective!
Looking forward to your return.
-Havoc5
From the Gov. PETITION FOR A WRIT OF CERTIORARI
More of that 'roil the markets' language....
pg 27 section 2:
In addition, allowing the decision below to stand would result in prolonged uncertainty about the lawfulness of the Third Amendment. As explained above, that uncertainty is itself harmful to the enterprises, to third parties who have relied on the Third Amendment, and to the national housing market.
-Havoc5
Hi Golfbum22,
It's really a procedure of the court for sending the appeals court decision back to the Texas court.
Now, how quickly will Judge Nancy F Atlas move?
-Havoc5
Text of the First page of the document below.....
October 29, 2019
Mr. David J. Bradley
Southern District of Texas, Houston
United States District Court
515 Rusk Street
Room 5300
Houston, TX 77002
No. 17-20364 Patrick Collins, et al v. Steven Mnuchin,
Secretary, et al
USDC No. 4:16-CV-3113
Dear Mr. Bradley,
Enclosed is a copy of the judgment issued as the mandate and a
copy of the court's opinion.
Collins Mandate issued
10/29/2019 Open Document MANDATE ISSUED. Mandate issue date satisfied. [17-20364] (CAG) [Entered: 10/29/2019 12:15 PM]
-Havoc5
Donotunderstand,
Posted this for some insights from related case.
Within this CFPB brief, Olson discusses remedies for All American's claim of CFPB unconstitutionality and contrasts these with Collins' FHFA 'for cause' En Banc.
MC comment more fuel for the SC and fifth circuit?
-Havoc5
BHATTI audio link here: (October 15th arguments released)
BHATTI audio link
No Opinion released yet.
-Havoc5
Thanks 5bagger.
Hi RickNagra, (USCA, 8th Circuit & links BHATTI)
Yes the schedule allowed 20 minute arguments for each side.
TUESDAY, OCTOBER 15, 2019, BEGINNING AT 9:00 A.M. BEFORE JUDGES SMITH, GRUENDER, BENTONMMH1.
18-2506 MNAtif Bhatti, et al. v. Federal Housing Finance Agency, et al. 20
United States 8th Circuit Court of Appeals
I'm curious about these judges.
The court may provide audio later at this location.
United States 8th Circuit Court of Appeals Oral Arguments
-Havoc5
CFPB reply brief from yesterday (Oct. 10th) on Collins impact to CFPB case: * * * * * * * * * *
As expected, CFPB holds that remedy is to strike "for cause" in the statute. Citing Free Enterprise Fund v. Pub. Co. case.
This from CFPB's docket submission:
Re: Consumer Financial Protection Bureau v. All American Check Cashing, Inc., et al., No. 18-60302 (5th Cir.)
Collins shows that, if this Court concludes that the CFPA’s for-cause removal provision is unconstitutional, Defendants’ injury “is remedied by a declaration that the ‘for cause’ restriction is declared unlawful.” Id. And, as in Collins, this Court need “go no further.” Id.Thus, Collins provides no support for dismissing the complaint in this case, and certainly none for overturning the entire CFPA.
This conflicts with All American's reply brief on Collins impact to the case.
This from All American's docket submission:
Re: Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc.,et al., No. 18-60302
This Court should declare the CFPB to be unconstitutionally structured, declare that the CFPA cannot be severed, and in all events grant All American judgment on the pleadings.
The Supreme Court may take up the conflict.
"Is altering statute an allowable remedy?"
Please share all insights.
-Havoc5
Theodore Olson's court reply in related CFPB case.
Something to digest this Thursday morning.
His summary:
This Court should declare the CFPB to be unconstitutionally structured, declare that the CFPA cannot be severed, and in all events grant All American judgment on the pleadings.
Interesting contrasts to Collins En Banc within the supplemental brief below.
https://investorshub.advfn.com/uimage/uploads/2019/10/10/qvgaxAPPELLANT'S_SUPPLEMENTAL_BRIEF_FILED_by_All_American_Check_Cashing_pg1.jpg
https://investorshub.advfn.com/uimage/uploads/2019/10/10/jqdmlAPPELLANT'S_SUPPLEMENTAL_BRIEF_FILED_by_All_American_Check_Cashing_pg2.jpg
https://investorshub.advfn.com/uimage/uploads/2019/10/10/rfnriAPPELLANT'S_SUPPLEMENTAL_BRIEF_FILED_by_All_American_Check_Cashing_pg3.jpg
https://investorshub.advfn.com/uimage/uploads/2019/10/10/aqtocAPPELLANT'S_SUPPLEMENTAL_BRIEF_FILED_by_All_American_Check_Cashing_pg4.jpg
https://investorshub.advfn.com/uimage/uploads/2019/10/10/eejpjAPPELLANT'S_SUPPLEMENTAL_BRIEF_FILED_by_All_American_Check_Cashing_pg5.jpg
https://investorshub.advfn.com/uimage/uploads/2019/10/10/lebvtAPPELLANT'S_SUPPLEMENTAL_BRIEF_FILED_by_All_American_Check_Cashing_pg6.jpg
https://investorshub.advfn.com/uimage/uploads/2019/10/10/cbwckAPPELLANT'S_SUPPLEMENTAL_BRIEF_FILED_by_All_American_Check_Cashing_pg7.jpg
https://investorshub.advfn.com/uimage/uploads/2019/10/10/twyzhAPPELLANT'S_SUPPLEMENTAL_BRIEF_FILED_by_All_American_Check_Cashing_pg8.jpg
https://investorshub.advfn.com/uimage/uploads/2019/10/10/un[luAPPELLANT'S_SUPPLEMENTAL_BRIEF_FILED_by_All_American_Check_Cashing_pg9.jpg
https://investorshub.advfn.com/uimage/uploads/2019/10/10/jpbzqAPPELLANT'S_SUPPLEMENTAL_BRIEF_FILED_by_All_American_Check_Cashing_pg10.jpg
https://investorshub.advfn.com/uimage/uploads/2019/10/10/zxywqAPPELLANT'S_SUPPLEMENTAL_BRIEF_FILED_by_All_American_Check_Cashing_pg11.jpg
-Havoc5
Buffer change is item #22
We're all waiting on item #21 and #20.
I'd prefer "time schedule" to "timeline".
Commit to some dates....
(c) For each reform included in the Treasury Housing Reform Plan, the Secretary of the Treasury must specify whether the proposed reform is a “legislative” reform that would require congressional action or an “administrative” reform that could be implemented without congressional action. For each “administrative” reform, the Treasury Housing Reform Plan shall include a timeline for implementation.
Any guesses?
-Havoc5
CFPB related constitutionality case.
Docket activity from Sept. 10th.
The court will resolve the constitutionality questions uniformly.
Is MC in jeopardy?
United States Court of Appeals for the Fifth Circuit
Notice of Docket Activity
The following transaction was entered on 09/10/2019 at 2:55:04 PM CDT and filed on 09/10/2019
Case Name: Consum Fincl Protc Bur v. All Amer Check Cashing, Inc., et al
Case Number: 18-60302
Document(s): Document(s)
Docket Text:
COURT DIRECTIVE ISSUED directing the parties to file simultaneous letter briefs, not to exceed ten pages, by 10/10/19, addressing what action this court should take in light of NO. 17-20364, Collins v. Mnuchin, 2019 U.S. App. LEXIS 27001 (5th Cir. Sept. 6, 2019) (en banc) The parties may file simultaneous reply letter briefs, not to exceed three pages, by 10/24/19. [9141419-2] A/Pet Supplemental Brief due on 10/10/2019 for Appellants All American Check Cashing, Incorporated, Michael E Gray and Mid-State Finance, Incorporated.. E/Res Supplemental Brief due on 10/10/2019 for Appellee Consumer Financial Protection Bureau. [18-60302] (MCS)
Notice will be electronically mailed to:
Mr. Jeffrey Michael Bayne: jeffrey.bayne@spiegelmcd.com, vanessa.vaquerano@spiegelmcd.com, eservice@spiegelmcd.com
Mr. Jeremy Max Christiansen: jchristiansen@gibsondunn.com
Mr. Bentley Edd Conner: bentleyeconner@gmail.com
Mr. Michael Verdier Cory, Jr.: mc@dmclaw.net, lk@dmclaw.net
Mr. Dale Danks, Jr.: ddanks@dmclaw.net, ddclerk@dmclaw.net
Mr. Lawrence W. DeMille-Wagman: lawrence.wagman@cfpb.gov, cfpb_litigation@cfpb.gov
Mr. Christopher J. Deal: Christopher.Deal@cfpb.gov, cfpb_litigation@cfpb.gov
Mr. Oliver J. Dunford: odunford@pacificlegal.org, incominglit@pacificlegal.org, bas@pacificlegal.org
Mr. Marc Gottridge: marc.gottridge@hoganlovells.com, nymanagingclerk@hoganlovells.com, marc-gottridge-6094@ecf.pacerpro.com
Mr. Kyle Douglas Hawkins: kyle.hawkins@oag.texas.gov, sylvia.rosales@oag.texas.gov, sabrina.wycoff@oag.texas.gov
Mr. Joshua Seth Lipshutz: JLipshutz@gibsondunn.com
Ms. Katharine M. Mapes: katharine.mapes@spiegelmcd.com, Vanessa.vaquerano@spiegelmcd.com, eService@spiegelmcd.com
Mr. Scott Lawrence Nelson: snelson@citizen.org, LitFileNotify@citizen.org
Mr. Theodore Olson: tolson@gibsondunn.com
Mr. Andrew John Pincus: apincus@mayerbrown.com, wdc.docket@mayerbrown.com
Mr. Ilya Shapiro: ishapiro@cato.org
Mr. Lochlan Francis Shelfer: lshelfer@gibsondunn.com
Ms. Helgard Clarice Walker: hwalker@gibsondunn.com, sroeder@gibsondunn.com
Mr. Colin Michael Watterson: cwatterson@susmangodfrey.com, michelle-miley-6878@ecf.pacerpro.com
Ms. Allison Michele Wuertz: allison.wuertz@hoganlovells.com, allison-wuertz-6035@ecf.pacerpro.com
Mr. Ilan Wurman: ilan.wurman@asu.edu, ilan-wurman-1666@ecf.pacerpro.com
Ms. Elizabeth Bonnie Wydra, Chief Counsel: elizabeth@theusconstitution.org, brianne@theusconstitution.org, elizabeth@theusconstitution.org, brian@theusconstitution.org
Ms. Allison M. Zieve: azieve@citizen.org
The following document(s) are associated with this transaction:
Document Description: Court Directive
Original Filename: /opt/ACECF/live/forms/MaryStewart_1860302_9141419_CourtDirective-CTDIR_423.pdf
Electronic Document Stamp:
[STAMP acecfStamp_ID=1105048708 [Date=09/10/2019] [FileNumber=9141419-0] [15b5c1212664ff88dca9b205d146e7a5b9ae7f30d1e814c7876fb3edf013acc3c7bd3c1e727df714e155dd21a32b3680884918ad88ac34b2b09acb9e879dfdd8]]
Recipients:
Mr. Jeffrey Michael Bayne
Mr. Jeremy Max Christiansen
Mr. Bentley Edd Conner
Mr. Michael Verdier Cory, Jr.
Mr. Dale Danks, Jr.
Mr. Lawrence W. DeMille-Wagman
Mr. Christopher J. Deal
Mr. Oliver J. Dunford
Mr. Marc Gottridge
Mr. Kyle Douglas Hawkins
Mr. Joshua Seth Lipshutz
Ms. Katharine M. Mapes
Mr. Scott Lawrence Nelson
Mr. Theodore Olson
Mr. Andrew John Pincus
Mr. Ilya Shapiro
Mr. Lochlan Francis Shelfer
Ms. Helgard Clarice Walker
Mr. Colin Michael Watterson
Ms. Allison Michele Wuertz
Mr. Ilan Wurman
Ms. Elizabeth Bonnie Wydra, Chief Counsel
Ms. Allison M. Zieve
-Havoc
MC slips past
MC completely avoided the second part of the two part question regarding the court decision declaring the sweep outside the statute.
Mark Calabria on CNBC
Link
-Havoc
Could be.
I believe Glen tweeted the notice to the court of the En Banc decision.
-Havoc
Original Memorandum and Order from Judge Atlas
En Banc decision fully resolves Judge's original hindrance.
Next step is the timing of the remand, which we hope to hear during the Investors Unite call detailed here by Navycmdr. (Thank you Navycmdr)
Conf call with En Banc Win Lawyer tomorrow
-Havoc
Thanks amc.
I figured as much, seemed like the drop began or continued since.
Just saw Charlie G. talking GSEs on Fox business.
I wasn't able to listen in.
Did anyone catch what was discussed?
Havoc
Yep,
Thanks for keeping all informed.
I don't think people are getting much sleep tonight.
In Count IV, they allege FHFA violates Article II, §§ 1 and 3 of the Constitution because, among other things, it is headed by a single Director removable only for cause.
.
.
.
.
Only a “heightened showing” in the statute may be interpreted to “deny any judicial forum for a colorable constitutional claim.”231 Here, the succession provision does not cross-reference the Administrative Procedure Act’s general rule that agency action is reviewable.232 It does not directly address judicial review at all. This is not the kind of “heightened showing”233 or “ ‘clear and convincing’ evidence”234 required for Congress to deny review of constitutional claims.
VIII
The Shareholders are entitled to judgment on Count IV.
Also won count 4....
Havoc.
We won count 4 also.....
Let's see what Monday brings now.
Havoc
Only a “heightened showing” in the statute may be interpreted to “deny any judicial forum for a colorable constitutional claim.”231 Here, the succession provision does not cross-reference the Administrative Procedure Act’s general rule that agency action is reviewable.232 It does not directly address judicial review at all. This is not the kind of “heightened showing”233 or “ ‘clear and convincing’ evidence”234 required for Congress to deny review of constitutional claims.
VIII
The Shareholders are entitled to judgment on Count IV.
The Shareholders sued FHFA, its Director, Treasury, and its Secretary (the Agencies). They assert four causes of action, three statutory and one constitutional:•
In Count I, they allege the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(C), (D), affords relief because FHFA exceeded its statutory conservator authority under 12 U.S.C. § 4617(b)(2)(D). •
In Count II, they allege the APA, 5 U.S.C. § 706(2)(C), (D), affords relief because Treasury exceeded its securities-purchase authority under 12 U.S.C. §§ 1455(l), 1719(g). Specifically, they allege that Treasury purchased securities after the sunset period, failed to make the required “[e]mergency determination[s],”and disregarded statutory “[c]onsiderations.”•
In Count III, they allege the APA, 5 U.S.C. § 706(2)(A), affords relief because Treasury’s adoption of the net worth sweep was arbitrary and capricious.•
In Count IV, they allege FHFA violates Article II, §§ 1 and 3 of the Constitution because, among other things, it is headed by a single Director removable only for cause.
Count I, to the extent it has merit, is a direct claim. The Shareholders suffered injury in fact—they were excluded from the GSEs’ profits. And they are within the zone of interests HERA protects. Count I alleges that FHFAviolated 12 U.S.C. § 4617(b)(2)(D)—the grant of conservator powers. TheShareholders’ economic value is “arguably within the zone of interests” for this provision.103 It is axiomatic that shareholders are the residual claimants of a firm’s value.104 They are among the first beneficiaries of the “sound and solvent condition” that a conservator is empowered to pursue.105 And they ordinarily have a claim on the “assets and property” that a conservator is empowered to “preserve and conserve.”106 For example, in James Madison, the D.C. Circuit
held a bank shareholder could challenge the FDIC’s appointment as the bank’s receiver under FIRREA.107Plus, HERA elsewhere states that the succession provision does not extinguish the Shareholders’ right to pursue their claims in receivership.108This matters because Count I essentially alleges that an improper conservatorship preempted rights that could have been redeemed in receivership.109 Because the Shareholders are within the zone of interests protected by HERA’s enumeration of conservator powers, they have a direct claim.And the prudential shareholder-standing rule does not change this analysis. The rule is “a strand of the standing doctrine that prohibits litigants from suing to enforce the rights of third parties.”110 But for APA claims, “Congress itself has pared back traditional prudential limitations.”111 The APA does not abolish the shareholder-standing doctrine. But it limits it in some cases. James Madison is one example, because the court held it had jurisdiction to review the shareholder’s APA action against appointment of a receiver.112The Supreme Court decisions City of Miami and Lexmark also support this point: For very broad statutory rights like the APA, an injury in fact and
inclusion in the zone of interests can add up to a right of action, even if prudential standing limits would have blocked it.113 That is the case here.In so holding, we do not say that there is no direct–derivative distinction for APA claims. Nor is it true that any shareholder may obtain review of agency action affecting his holdings. In Thompson v. North American Stainless, LP, the Supreme Court rejected the “absurd” proposition that shareholders could sue under Title VII employment protections.114 Shareholders are not within Title VII’s zone of interests because “the purpose of Title VII is to protect employees from their employers’ unlawful actions.”115 But a corporate reorganization statute is a different animal. Shareholders may be within itszone of interests, and here they are.116Counts II and III, however, are not within the asserted statutes’ zone of interests. In Count II the Shareholders allege that Treasury violated 12 U.S.C. §§ 1455(l), 1719(g), which granted it authority to purchase securities in the GSEs. They say the net worth sweep effectively purchased securities after these provisions’ 2009 sunset and otherwise exceeded the purchase authority.117 In Count III they allege that Treasury acted arbitrarily and capriciously under those same sections because it never made the requisite “[e]mergency determination.”118Congress granted this purchase authority to protect markets, consumers, and taxpayers, not GSE stakeholders. The emergency determination asks whether a purchase will stabilize markets, prevent disruptions in mortgage finance, and protect taxpayers.119 And the statutes’ mandatory “[c]onsiderations” are likewise public-oriented: Treasury must consider the GSEs’ condition, and any transaction’s structure, “[t]o protect the taxpayers.”120 So we agree with the district court, though for a different reason, that Counts II and III must be dismissed.
Opinion released on Collins.
Downloading opinion now....
United States Court of Appeals for the Fifth Circuit
Notice of Docket Activity
The following transaction was entered on 09/06/2019 at 4:30:57 PM CDT and filed on 09/06/2019
Case Name: Patrick Collins, et al v. Steven Mnuchin, Secretary, et al
Case Number: 17-20364
Document(s): Document(s)
Docket Text:
PUBLISHED OPINION FILED. [17-20364 Affirmed in Part, Reversed in Part and Remanded ] Judge: DRW , Judge: CH , Judge: SKD , Judge: ASO , Judge: SAH , Judge: GJC Mandate issue date is 10/29/2019 [17-20364] (DTG)
-Havoc
Hi Navy,
Remember back in June of 2018 the same person, Jaret Seiberg of Cowen Washington Research Group was skeptical of the initial Trump Administration announcement of a plan.
Article full of Cowen speculation
But the plan developed by OMB Director Mick Mulvaney — who is also the acting director of the Consumer Financial Protection Bureau — immediately produced skepticism.
Jaret Seiberg, an analyst at Cowen Washington Research Group, said it was not even clear if the plan had support elsewhere in the administration, such as from the Treasury Department or the Department of Housing and Urban Development. He also speculated that the GSE portion of the reorganization may have been written by Kathy Kraninger, an OMB deputy who is also the nominee to become permanent CFPB director.
"We do not believe that the OMB proposal enjoys much support within government. It is interesting that it came out without direct expressions of support of Treasury or HUD, both of which are major players within this White House on housing policy," Seiberg said in a research note.
BTW, Kathy is now the director at CFPB, and knows MC well.
Kathy Kraninger - CPFB
Cowen didn't have much real insight then either. Unless Cowen plans to file a lawsuit to gum up the works, the initial request for comments have received sufficient time, input and are applicable. Standing of any such suit is doubtful.
I still hold that the CFPB case and our EN BANC cases are related and could be released any day. We all hope this case outcome enables the Whitehouse to print the plan and execute it ASAP.
In your words "I SAY BRING IT ! - BRING IT NOW ! "
I agree.
GLTA
-Havoc
Hi ZZ Fannie,
No, the case in the docket is a related case tied to ours.
I view the acceptance of the AC (amici curiae) in that case as a positive.
My post was regarding the speculation for the price jump today.
GLTA
-Havoc
Sorry,
AC = Amici Curiae
The advisement document to the court on behalf of 12 states and the governor of Maine.
At approximately 12:15pm.
In our related CPFB case, the court issued a brief accepting the AC as sufficient. Recall this AC regards the constitutionality of single director entities.
Notice of Docket Activity
The following transaction was entered on 08/06/2019 at 12:15:02 PM CDT and filed on 08/06/2019
Case Name: Consum Fincl Protc Bur v. All Amer Check Cashing, Inc., et al
Case Number: 18-60302
Docket Text:
Paper copies of Brief [9114047-2] received as sufficient. Sufficient Paper Copies of Brief due deadline satisfied. [18-60302] (RLL)
Perhaps this was a factor.
-Havoc
Hi Navycmdr,
I agree, En Banc is primarily considering the NWS question.
However, the court has officially listed the CFPB case as Related.
See below:
Case Query
17-20364 Patrick Collins, et al v. Steven Mnuchin, Secretary, et al
Associated Case Short Title Type Start End Status
18-90015 Consumer Financial Protection v. All American Check Cashing, et al Related 04/16/2018 closed
18-60302 Consum Fincl Protc Bur v. All Amer Check Cashing, Inc., et al Related 04/30/2018 open
Originating Case Lead Case Filed Execution Date Judgment NOA Originating Judge Court Reporter
4:16-CV-3113 10/20/2016 05/25/2017 Atlas, Nancy F.