Register for free to join our community of investors and share your ideas. You will also get access to streaming quotes, interactive charts, trades, portfolio, live options flow and more tools.
Register for free to join our community of investors and share your ideas. You will also get access to streaming quotes, interactive charts, trades, portfolio, live options flow and more tools.
Because the USSCT is not a trier of facts, it is an Appealate Court. Procedurally, the USSCT would grant the Petition for a Writ of Certerrori, then oral arguments, then a decision to either overrule the lower appeals court decision OR allow it to stand.
IF the USSCT overules the lower court, they will then remand the Takings Case back to the COFC at which point a trial would begin.
I'm pretty sure that's how it works and that's why it just takes some time.
Read ALL of the opinion for WV v EPA, THEN ask your question and I will try to answer your question the best that I can.
https://www.supremecourt.gov/opinions/slipopinion/21
FHFA wears 2 SEPERATE hats under HERA I believe and that's as REGULATOR of the GSES (and the fhlbb system) AS WELL AS the CONservator/Receiver during CONservatorship or Receivership.
If the SCOTUS decides to take up the Takings Clause case by granting the Petition for a Writ of Certerrori, THEN they will likely touch on that issue in their final opinion (this may take another year or two, I guess).
Do you see how the 1984 Chevron decision sets up how ALL the courts are to answer judicial review of an agency’s interpretation of a statute it administers. It's generally been interpreted over the last 38 years as giving these bonehead federal agencies Directors wide latitude in their self selective interpretation of the enabling Congressional statute that gives these unelected buraucrats in DC power to f*k with American Individuals and Businesses, LIKE DEMARCO DID WITH US BY STEAMROLLING OVER OUR ECONOMIC RIGHTS AS SHAREHOLDERS.
NOW, post WV v EPA (decided 06/30/22), the SCOTUS is saying, if the federal agency decision (e.g., the FHFA's/UST'S decision to nationalize the GSES via the NWS) INVOLVES A MAJOR QUESTION RELATED TO NATIONAL ECONOMIC INTERESTS, THAT TYPE OF DECISION NEEDS TO BE MADE BY OUR ELECTED REPRESENTATIVES IN CONGRESS, NOT SOME BONEHEAD AGENCY DIRECTOR LIKE DEMARCO.
Does that help?
Well, I believe that the Justices meet once a week (usually Thursdays or Fridays) in a conference to discuss which orders, cases they are going to accept, who the f*k betrayed their trust by releasing Dobbs early (HeeeHeeee!), and other important court decisions and then issue their decisions on these meetings on Mondays usually. It will be posted here 1st:. https://www.supremecourt.gov/
I think Amy Howe (check her Tweets) keeps up with this over at scotusblog, just scroll down to the bottom of the page for the calendar.
https://www.scotusblog.com/
Not sure if Katie B over at Law 360 keeps up with this but it would be nice to support her somehow as she WAS THE ONLY NEWS OUTLET THAT COVERED THE LAMBERTH TRIAL DAY IN AND OUT.
It depends what some of the court rulings (if any) will be and they will likely take several years to work through the legal system.
Yes clearly that is the case, but will the Judicial Branch allow it to stand or look the other way?
That's exactly right Lu, why would ANY federal agency want to terminate 100% control over the two corporations that fund their $500 million annual budget? If the only constraint HERA puts on the Powers of the FHFA is to act "in the best interests of the FHFA or the public it serves" the NWS and the CONservatorship could continue into perpetuity.
I've always thought this was a Takings Case with the complete taking by the federal government of all our Economic Rights as Shareholders into perpetuity with the NWS.
But that is not what the 3 Judge Appealate Panel ruled and you can see other triers of fact wrestling with this unprecedented bizarre fact pattern, like the Lamberth Jury trial just showed (apparently a 50/50 split).
Let's see if the Supremes can see through what the federal government has done here or if the NWS stands and becomes a future blueprint for the federal government to Nationalize Private Corporations in the United States of America.
The US Supreme Court appears to be moving away from the Chevron Doctrine (which was more permissive of federal agency interpretations of its powers granted from Congress) to the more federal agency constrained Major Questions Doctrine which indicates federal agencies powers do not include Major Questions of National and Economic Policy (which belongs to our ELECTED officials in Congress).
The current Petition for a Writ of Certerrori at the USSCT, may answer a preliminary question, and that is, was the NWS a Nationalization of the GSES (2 lynchpins of the Secondary Mortgage Market) or was it simply a return on the UST'S 'investment'?
Well, do you think it would be better to limit the FHFA's (i.e., a federal agency run by unelected buraucrats here in DC) current ability to DECIDE ITSELF TO "ACT IN THE BEST INTEREST OF THE PUBLIC IT SERVES" or should the decision to nationalize the GSES (a major Economic and Political Question) be decided by our ELECTED representatives in the United States Congress, that we the People chose last Tuesday?
This is what the USSCT said in WV v EPA on 06/30/22: "As for the major questions doctrine “label[],” post, at 13, it took hold because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted. Scholars and jurists have recognized the common threads between those decisions. So have we. See Utility Air, 573 U. S., at 324 (citing Brown & Williamson and MCI); King v. Burwell, 576 U. S. 473, 486 (2015) (citing Utility Air, Brown & Wil-
liamson, and Gonzales). "
Todays WSJ and the importance to individuals and businesses from the new direction that the SCOTUS appears to be taking with reigning in federal governmental agency overreach: "Judges have often deferred to administrative agencies' interpretation of their statutory authorities under the Court's Chevron precedent. "In recent years, however, the Supreme Court has chipped away at Chevron -- giving back 'the benefit of doubt about the meaning of an ambiguous law to the individual' instead of the government," Judge Pittman writes.
He adds: "The most recent example of Chevron's fall is the crystallization of the long-developing major-questions doctrine in West Virginia. v. EPA (2022)." This doctrine requires a federal agency to point to "clear congressional authorization" when resolving a question of major political and economic import, which the loan write-off clearly is.
Because the Administration could not, Judge Pittman held it violates the separation of powers and vacated it. The Justice Department will no doubt appeal. Meanwhile, the Eighth Circuit Court of Appeals is considering a challenge by GOP states to the write-off. Let's hope one or both reach the Supreme Court."
"The Constitution vests “all legislative powers” in Congress. This power, however, can be delegated to the executive branch. But if the executive branch seeks to use that delegated power to create a law of vast economic and political significance, it must have clear congressional authorization. If not, the executive branch unconstitutionally exercises "legislative powers” vested in Congress." Brown v Dept. of Education 11/10/22
1st Sentence in the 5th Circuit ORDER signed by Judge Mark T. Pittman that declared the recent Executive Branch decision to forgive approximately $400B in federal student loans Unconstitutional.
This is exactly what was articulated by the USSCT in WV v EPA in late June 2022 AND COULD BE APPLICABLE TO THE FHFA DECISION (IN COORDINATION WITH THE UST) TO NATIONALIZE THE SECONDARY MORTGAGE MARKET BY IMPLEMENTING THE NWS ON AUGUST 17, 2012.
We'll see what happens.
I think that there is likely a Federal Rule of Civil Procedure on time frames for when the next trial should occur. But I would check back to see what is being filed on the case docket in PACER for the latest happenings in the Lamberth case.
I don't know the answer for sure but I suspect that the only real difference between the last trial and the next one will be a new Jury.
Well, if by 'disputes' you meant to say 'damages' it could be a problem psychology asking ANY trier of fact to rule in favor of one party over the other to the tune of a BILLION DOLLARS PLUS.
It would be interesting to ask the 4 Jurors deciding for P if they thought the $1.6B was enough, too little, or too much. Also it would be nice to ask the other 3 Jurors deciding for D if the $1.6B ask was an impediment to ruling for P in anyway and/or what they thought about whether or not P was asking for too much or too little.
But I read a ROLG comment over at TH's blog and he seemed to suggest that Lamberth isn't going to go back and do a redo of all the pretrial motions.
A win by P's in Lamberth's next trial, regardless of amount, would send a clear message to the decision makers at FHFA and likely UST that what they did on August 17, 2012 was wrong, that the Plaintiff Shareholders can win more than a Phyric Victory and that maybe it's time to seriously consider ending the CONservatorships sooner rather than later via a seriously viable plan that doesn't steamroll over the existing shareholders.
HH and his team would be wise not to share what exactly they gleaned (if anything) from speaking with them, we don't even know if they have or will, right?
Thank you for your service sir! I think that Nats comment was prescient, that it's hard to get a win in a company town against the company.
TH was advocating the other day about trying to explain to the next Jury how the FHFA as regulator required the GSES to overbook credit loss reserves to inflate the losses prior to the implementation of the NWS.
HH and one of the esteemed Plaintiff expert witnesses spent about a day and a half explaining how the $100B + DTA worked to transfer $100B plus from the GSES balance sheets to the UST.
But I don't recall much explanation to the Jury on explaining the exaggerated booking (and subsequent reversal) of the billions of dollars in Credit Loss Reserves.
This is how the 4th Branch of Government gets entrenched, vested, and hard to control. Allegedly the current makeup of the SCOTUS is trying to rein in this abomination of consolidated power by Unelected Bureaucrats in our Democracy.
That's right Klopster, having attending the trial myself I could see that a number of the Jurors weren't buying what the government was selling!
GLTA!
Thanks Navy for your service and let's hope the Supremes put our US Constitution back as the bedrock and foundation of our Democracy! GLTA!
Wasn't it a "national emergency" (i. e., the Great Financial Crisis) that granted the FHFA (and UST?) broad sweeping unprecedented powers under HERA?
Last time I checked the Housing economy has FULLY RECOVERED from the 2008 housing crisis so why allow the FHFA to maintain so much power into Perpetuity?
The Supremes could deny the Plaintiff Shareholders Petition for a Writ of Certerrori and let the 3 Judge Appealate Panel Decision stand, which I believe basically said, "HaaHaa, Plaintiff Shareholders have no property rights in the 14+ year CONservatorship and therefore no taking."
If a majority of the Justices believe that the NWS was not a Nationalization but somehow a 'return on UST capital' then I believe that you may be right. If that is the final outcome here in the Plaintiff Shareholders cases, then Uncle Suggy has a new tool in their belt for Nationalizing US Corporations going forward.
If that's the case, then won't you join me as I weep out loudly for our current and future generations as the USA becomes no better than a 3rd world banana republic?
"In this country, we are not ruled by an all-powerful executive with a pen and a phone," Pittman wrote in his order. "Instead, we are ruled by a Constitution that provides for three distinct and independent branches of government."
He added: "But it is fundamental to the survival of our Republic that the separation of powers as outlined in our Constitution be preserved."
A couple of days ago on TH's blog, ROLG mentioned a Federal Rule that allows willing Jurors to explain why they decided on either side of the case. Another blogger indicated that 7 of the 8 Jurors didn't mind talking about the outcome with representatives from either side of the case.
It looks like the SCOTUS has conferences on Fridays and comes out with orders on Mondays. Two days ago the federal government filed their response to the Plaintiff Shareholders Petition for a Writ of Certerrori.
Just check out the https://www.scotusblog.com/ during the current SCOTUS term.
Here's another example of the 5th Circuit reigning in Federal Executive Branch overreach (isn't that what the NWS is?): “The Program is thus an unconstitutional exercise of Congress’s legislative power and must be vacated,” Pittman wrote.
https://www.cnbc.com/2022/11/10/federal-judge-in-texas-declares-bidens-student-debt-relief-plan-unlawful-.html
I believe that you may be missing the boat here, simply because the Question Presented in Collins dealt with a Separation of Powers issue and not a Constitutional Issue involving the 5th Amendment Takings Clause.
HERA, according to the Collins decision, was a statute that gave the FHFA broad sweeping powers to implement the NWS and Nationalize the GSES. But can HERA (or ANY STATUTE!) empower the federal government to take the personal property of Americans?
In Collins the Supremes could have put an end to the NWS, but chose instead to use a strict literal interpretation of HERA that was contra to the lower courts interpretation of HERA's predecessor from the S&L Crisis of the 1980's.
We will find out in the end whether or not Skepi gets to spike the football in the end zone YET AGAIN!
Looks like the SCOTUS holds conferences on Fridays and issues orders on Mondays according to the SCOTUS BLOG calendar at the bottom of this page: https://www.scotusblog.com/
If the Supremes reject the Writ, the federal government will have a new blueprint for future Nationalizations in the United States of America.
As I recall, that last court ruling on the Takings Case was a 3 Judge panel appellate court decision (2-1?) that basically said, "Hahahaha ! The Plaintiff Shareholders have no property rights because they are in a 15+ year CONservatorship and therefore no property rights to be protected here!"
Yes and into perpetuity! HERA has empowered the FHFA to act in two separate capacities, as a conservator AND regulator. By coordinating these two functions the federal government has Nationalized our firms and likely will continue to do so long as the Executive, Judicial, and Legislative Branches do nothing about it.
There are no sunset provisions in HERA for ending the CONservatorships.
Notice how our federal government likes to argue that it is simply wearing the hat of regulator or conservator in defending itself in the courts, this is from their filing yesterday in the SCOTUS: "This case,
however, concerns the Agency’s acts as conservator, not
its acts as regulator. Collins does not resolve the ques-
tion whether the FHFA’s acts as conservator are at attributable to the United States for purposes of the
Tucker Act."
The federal government continues defending the NWS in their filed response to the Petition for a Writ of Certerrori today: "But
as explained above, Treasury did not simply take pos-
session of the enterprises’ funds. Rather, it negotiated
a change to the terms of its financing arrangement with
the enterprises, in which it exchanged the fixed divi-
dends and entitlement to commitment fees for a varia-
ble dividend based on the enterprises’ net worth. Peti-
tioner cites no case in which this Court or any other has
treated a similar financial transaction as a taking at all,
let alone a per se taking."
Funny because according to the latest trial I watched DeMarco didn't even know what his options were, much less understand and analyze them prior to the implementation of the NWS.
From the US Government response in the Plaintiff Shareholders Petition for a Writ of Certerrori: "Rather, the enter-
prises’ ownership rights were transferred to the
Agency, whose subsequent use of its statutory authority
to rehabilitate the enterprises in a manner that “was de-
signed to serve public interests,” Collins, 141 S. Ct. at
1776, thus did not take any constitutionally protected
property interest."
Oh, I DON'T THINK SO, UNCLE SUGGY! WHEN YOU TAKE ALL THE ECONOMIC RIGHTS OF THE SHAREHOLDERS FOR YOURSELF INTO PERPETUITY YOU HAVE TAKEN OUR MOST IMPORTANT BUNDLE OF RIGHTS AS SHAREHOLDERS!
Collins said that the FHFA, under HERA had the Incidental Power to implement the NWS. Another completely separate issue is whether or not the NWS was a Constitutional Violation under the 5th Amendment Takings Clause.
I believe that is the gravamen of the Plaintiff Shareholders Petition for a Writ of Certerrori.
Hey, lawyers gotta eat and feed their families too !
That's just the government's response to the Plaintiff Shareholders Petition for a Writ of Certerrori. Of course, despite a 15 year CONservatorship and the transfer of $385+B in wealth from the GSES balance sheets, the federal government's response is simply, "Nothing to see here, Justices, just move along!"
HeeeHeee! Despite having 3 giants in the Accounting and Finance Industry explain the FHFA'S overreach with the Net Worth Sweep, 50% apparently did not understand and/or thought that the federal government can no wrong.
It is troubling that our 'dear leaders' continue to defend the NWS despite all the overwhelming evidence that it is an improper use of governmental power.
GLTA!
The SCOTUS heard two cases on Monday that may make it easier to challenge federal agency overreach. Todays WP: "Conservative Supreme Court justices indicated Monday that they are ready to ease the process of challenging the regulatory power of federal agencies, hearing arguments in two cases that could diminish the authority of the Securities and Exchange Commission and the Federal Trade Commission, respectively.
The issue in both cases seems mundane: whether someone singled out for enforcement action by either agency can go directly to federal court to make challenges about the constitutionality of the process. In both cases, the plaintiffs are challenging whether in-house administrative law judges used by the agencies are not appointed in ways that square with the Constitution. They don't want to wait for final agency action to begin their challenges.
But the bigger issue is a battle by business interests to weaken the federal administrative state, and the plaintiffs hope to build on a string of Supreme Court decisions that have advanced that cause. "