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Declaratory relief is equivalent to *no relief* where the plaintiffs seek backward (‘retrospective’) relief, because…
(1) A declaration is only ‘prospective’ (it operates on a go-forward basis, not a retrospective/backward basis), and
(2) a ‘declaration’ is just what it sounds like: the court repeats a binding opinion’s legal meaning in a summary style (and hopefully without typos)
So the 5 judges in dissenting to Collins remand are effectively saying the only relief should be a Declaration (prospective-operating) that the meaning of the Removal Clause is what SCOTUS said. (I know…right?! It’s about as hollow a victory as a plaintiff can ever get.)
LOL. Q) How many judges does it take to change a light bulb? A) 17.
1 to climb the ladder,
8 to turn the ladder left to unscrew the old
8 to turn the ladder right to screw the new
March 23 is the deadline for parties to file their final best shot at at winning without need of trial: a motion to dismiss for summary judgment (MSJ), pre-trial. I assume we will see concurrent filings by both P and D.
And after that, there are still 2 more distinct volleys to reply & then respond.
After all that volleying, the judge issues an order usually within a few days (presently expected by May 11) granting or denying the respective MSJs, resulting in either a guaranteed trial, or, if D wins on its MSJ, P can appeal once more to the Fifth Circuit.
So to reiterate the district judge **can still dismiss the claim** and thereby preclude trial. Tick tock.
Interesting. I do not know.
I searched the DGCL and got 12 hits on “wind…up” but no hits on “…down”.
Don’t know therefore if “wind down” would be the same or not. Maybe some state codes use it.
One thought. Obama might have meant it to be more consistent with reorganization, versus liquidation, and to tie in to the NWS press release that said the Enterprises would “not be allowed to return to the market **in their current form**”. Whatever that means.
Just curious, why are you interested?
Jury issues are a fact of life. But as between a judge decision or a jury decision, when my claim give me the latter every day of the week and twice on Sunday.
1 TSP of Don’t know, 1 Cup of don’t care
Ps must first survive this round of pre-trial motions. But, otherwise, yeah: *If* they survive, that boost clearly favors Ps.
I don’t disagree. I just don’t see any clear path to new remedy. But it is not over yet.
“Winding down” around here is happy hour (4-6) two for one’s. That’s all I know.
If equity > $0, yeah, sure, USG will pay JPS at par, after USG resolves its SPS.
To play devil’s advocate. Notice that FHFA reiterates ALL disjunctive outcomes:
“…OR winding up the affairs of [the Enterprise].”
To play further. The next statements flex to easily include all options:
“That definite and limited statutory purpose does not authorize an indefinite conservatorship. FHFA is in the process of preparing each Enterprise to responsibly exit conservatorship consistent with its statutory mandate and the FHFA
Director’s other duties. Finalization of the Enterprises’ regulatory capital framework is a key step in that effort. Finalization of the Enterprise’s regulatory capital framework is also required by law.”
FHFA nowhere asserts that the steps above preclude winding up of affairs. To the contrary, FHFA specifically qualifies its descriptive comments as process-dependent, preliminary, and open-ended (“is in the process of preparing…” and “to exit”).
Read the Enterprise Capital Rule against the recent requirement to submit a five year ECR-compliance plans. The application of one to the other furnishes the Director with a sound basis by which to justify his final decision whatever it eventually is: reorganize, rehabilitate or wind up affairs. And considering that five years will neatly precede the Warrant execution deadline, the “indefiniteness” comment can just as easily justify an outcome other than rehab. Both reorg and windup, are exits.
What part(s) do you think are flawed?
I am skeptical. The Common law of Delaware or Virginia, respectively, covers F/F shareholder claims based in a contract cause of action. If contrary authority exists, it is very odd that neither the USG nor courts have cited to it a single time. Including … no mention of such authority in this week’s COFC 8-claim decision —where the panel used Delaware common law to defeat direct standing.
First, I would question Ano or anyone else like her who spouts legal opinions without any citation to legal authority.
Second, search & read the board dialogue in the past months between Ano and kthomp19. I am a lawyer and I find it sad that anyone might rely on her nonsense. But, so what? Don’t take my word! *No one here should take anyone here at face value*. DYO Due Diligence. Good luck.
FWIW, I have no position in any GSE. Never have. I just find it fascinating from a legal view.
“…im gonna ask admin to check your IP”
Just showed your post with all its spelling errors to my 10 year old who laughed out loud& said you behave like Bart Simpson. So you must post 100 times on this board:
I WILL NOT ACT LIKE A SUCK PUPPET
And…. go!
Always liked Kipling. ‘Law of the Jungle’:
“As the creeper that girdles the tree-trunk the Law runneth forward and back —
For the strength of the Pack is the Wolf, and the strength of the Wolf is the Pack”.
(These are also read over loudspeaker before all U. Nevada-Reno home games).
Yes, as SCOTUS didn’t in Collins v Yellen
I think so. Page 32-3 indicates NWS breach of contract claims cannot be pressed against the FHFA because to execute the NWS, FHFA had to interpret the Incidental Powers clause, and in so doing, used & retained its government character: an Executive agency. So presumably if the defendant was the GSE the rationale would not defeat the claim.
Hence this tends to lead us straight into the DC court & Judge Lamberth upcoming steps and where the claim IS contractual on Delaware common law AND is against the GSEs themselves.
((FWIW, IMO FHFA was not only a gov actor, it was in reality *legislating* because it was constructing rather than simply construing…sigh…judges are asleep at wheel)
Guido2 corrected you on the GDP analogy. But there is no doubt of the economic significance of GSE debt in global credit markets.
The significance of solvency IMO is tied to the United States being the world’s reserve currency. This designation accounts for an estimated annual 10% of USA GDP.
In legalese, a ‘government actor’ is a person with no express government authority, but who — under limited circumstances — may be construed by the law to act with equivalent authority of a sovereign actor (police officer, crossing guard, legislator, judge, etc.).
With regard to the court filing posted on Glen’s blog, just be aware that statistics show SCOTUS hears only 2% of all Writ requests, annually. Further, in the case Glen posted, on the legal question asked there is NO ‘split’ among federal circuit courts (different opinions ); so the odds of SCOTUS hearing this particular case are somewhere between slim and none, and Slim just left town.
“Now to make sense of it”. Or nonsense. Blocked.
True enough, this case is in the best Circuit. The shifting of burden of proof argument has merit. It would be a game changer. GLTA.
Take this for WIW, I have been wrong often. But ... I think it will all be punted back to District Court. No injunction. Little if any guidance.
The USG is simply not prone to settling on the defensive. It’s rare. Not complicated.
“Build Back Bolshevik” …. LOL too funny
Quote: “…must review HERA in toto”
Why? Ipso fatso, Archie Bunker? Next time cite authority. It’s law, not witchcraft.
Because “[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its re- maining provisions,” Champlin Refining Co. v. Corporation Comm’n of Okla., 286 U. S. 210, 234, the “normal rule” is “that partial . . . invalidation is the required course,” Brocket v. Spokane Arcades, Inc., 472 U. S. 491, 504.
Quote: “…the court Cannot review provision by provision…”
False. See Collins. See Seila. See, oh, the last 30 years of separation of powers law:
“The tenure provisions are severable
from the remainder of the statute. The
consequence is that the Board may
continue to function as before, but its
members may be
removed at will by the Commission.”
Free Enterprise Fund v PCAOB
610 US ___ Pp. 27–29.
So while I echo your tag line (I too “hope this helps”) I also cannot help but add a caveat from ol’ Yogi Berra: ‘You can hear a lot by listening’.
but all those and other issues disappear when the FHFA becomes constitutionally structured
Kthomp19 is correct. I can't say it any plainer. The offending provision in HERA was found by SCOTUS as unconstitutional, and in legal-ese, it never existed. Congress lacks the power to enact an unconstitutional provision.
To see this concept for yourself 'in action', just compare the remedy related to challenged action's power.
For example, in Seila Law v CFPB, could Chief Rogers' opinion including the judgment (the latter which was joined by a majority) have remanded for inquiry into whether there was ratification by a subsequent full Director after the original Doc Request, if -in fact as you assert - the subsequent Directors were all powerless by way of an unconstitutional structure? Of course not. The power of the Director survives, but under POTUS 'at will' control instead of 'for cause', per the majority in Collins and the principle set forth in Seila. The Directors did not lost power, and neither Agency got ghosted. But the "issues" you refer to did.
P s lawyer also was asked, well if Trump truly wanted to get the GSEs released after his own nominee was appointed, why not just cancel the SPS and declare them paid? Thompson answer was correct: “the Constitution does not require him to.”
You have to hand it to Thompson for sticking to the theme here, which is the duty established in Article II: the President “shall ensure that the laws are faithfully executed”. Thompson pointed out the conversion or cancellation would be the *last* in a series of sequential events, each necessary for the next, and insufficient until all were met. He is a world-class lawyer.
“Not clear to me at all.”
Well if you want my reader’s digest summary just ask. My meter is turned off.
Okay if I ASSUME direct JPS claims. You’re right the CFC has no injunctive authority. In that sense it’s a court of limited remedy. But it has other powers. It can order damages. It can order ‘inter-agency accounting adjustments’ in certain cases to support of public use ‘efficiency’.
Considering shady accounting played a leading role as villain in the GFC (and IMO leading up to Conservatorship), perhaps it can change its cape and be now instead the Ps hero & the USG’s ‘Fall Guy’.
As far as the Lamberth claim in the DC District/Circuit- I do think the Implied Duty claims have a slightly better chance than the Takings in CFC. But one thing is clear: a final binding order in either case will almost *certainly* impact the other in some significant fashion. Fun days ahead.
“or someone else with very deep pockets…”. PLF.
https://www.influencewatch.org/non-profit/pacific-legal-foundation/
To clarify, a court’s legal conclusion of a lawful Taking does not mean the action is free from Fifth Am due compensation.
It simply rules out the alternative: the court framing the Constitutional claim as an Illegal Exaction.
Possibly. Those are fair points. One way to avoid the hedge fund optics is to deny remedy to sophisticated investors (Hedge Funds, Banks holding JPS), but not mom & pop investors.
IMO three lines of thought support this.
First, there is a securities law remedy principle in synthetic investing that holds more sophisticated investors to a higher standard of risk expectations. This further developed out of the PLS derivative mess.
Second, federal regulations already draw a similar distinction by making certain investments off-limits, from the get-go, except for highly accredited investors.
Finally neither Ps nor Ds have raised this. That very silence fact can be a dead give-away that -in fact - it is already the elephant in the room. Law clerks will mention it only when it’s necessary- that is - when a final remedy order goes in its draft stage.
“The majority of SCOTUS says application of HERA by the government has been fine and dandy … with respect to the letter of HERA (…and … constitution).”
Yes & No. Ya SCOTUS evaluated the NWS under APA 702 and found it lawful per its interpretation of HERA. But if you are assuming this same result also spells doom on other claims...
No. SCOTUS said the inception of the NWS was a lawful act, but…Takings are - by definition - always lawful. If instead the acts were unlawful, the actions are illegal exactions. So, for example, an absence of illegality hardly precludes a Takings claim; in fact, in reality such a precedent allows courts to leap over the lawfulness question, and move on to other necessary claim elements, and to factual & legal debate.
But forget me. Instead, Listen to Chief Rogers’ majority opinion from Knick v. Township of Scott, No. 17-647 (June 21, 2019), and especially page 23 (slip opinion):
“Our holding that uncompensated takings violate the Fifth Amendment will not expose governments to new liability; it will simply allow into federal court takings claims that otherwise would have been brought as inverse condemnation suits in state court.
Governments need not fear that our holding will lead federal courts to invalidate their regulations as unconstitutional. As long as just compensation remedies are available -- as they have been for nearly 150 years -- injunctive relief will be foreclosed. For the same reason, the Federal Government need not worry that courts will set aside agency actions as unconstitutional under the Administrative Procedures Act. [EMPHASIS]. Federal courts will not invalidate an otherwise lawful uncompensated taking when the property owner can receive complete relief through a Fifth Amendment claim brought under the Tucker Act. [EMPHASIS]
Slip op. at 23
I never knew who it was for HERA but I never explored it…so…thanx for the info.
I do know (to a certainty) that 2 years later the very same condition (for CFPB) was added to Dodd-Frank ***after*** committee deleted the condition (!) before rendering its approval. It had been contested during the initial floor debate, so Committee **removed it**. Yet it somehow made it BACK into the final bill before Congress’ vote! Because of this odd timing I could never find any online legislative record at all of its proponent. To this day, I still wonder ‘who’ and whether there was any quid pro quo.
Agree POTUS letter strengthens. Thompson pointed out quite astutely that the only BO administration high-level holdover that Trump did NOT fire was Mel Watt (“democratic hack Mel Watt”). Trumps inaction tends to corroborate his (implied) assertion that he believed *in good faith* that Congress in HERA created an Independent Agency, thus at-will firing of an Acting Director would be a clear Article II power violation. POTUS is hardly alone in this thinking.
How can anyone even assert that in a case of statutory uncertainty POTUS’ good faith belief — leading him to NOT act against the stated will of Congress—must be presumed faulty or unreliable? IMO a self-defeating assertion. We will soon see if 9 or more judges agree.
Virtually all Agency statutes signed into law today contain some manner of rights, power, or duty that is intentionally ambiguous and thus, policy choice. This is all *by design*. Congress shifts the blame that way. Pork flows. Agency 2 blames Agency 1. Judges defer on APA suits because of Chevron. Unless a taking or contract is pursued & found, Nobody wins except the influencers. The framers must all be”SMDH”.
Sr Judge Royce Lamberth is at the D.C. District Court. FRE 201 does not apply to District Courts, only to Appellate Courts.
This will be remanded.
Defense is arguing best that as a matter of law, even considering the POTUS letter, there is no set of facts pled that can establish the counter-factual in this instance because politics and shifting priority itself is an equal factor in determining causality and thus ‘Harm’ is impossible to adjudicate with any reasonable accuracy. This effectively builds a non-justiciable point into the harm analysis; it’s analogous to why SCOTUS continues to reject any adjudication of gerrymandering on ‘science’.
Yet this point too has some logical merit so I expect Remand, for District Court to try to develop facts further and test its own legal analysis as courts must in such areas—with case by case adjudication.
The other reason Defense argues is POTUS could have directed UST to stop paying the NWS because UST Secretary reports directly at-will to POTUS. There is some merit to this point because- —effectively—POTUS can *anytime* order one at-will federal department or agency Director to reneg or breach an agreement with another agency. In my experience federal agencies can & do sue each other, …more often than you might think…and it is usually motivated by a legitimate policy (political) dispute. Ultimately IMO though
This is an unwinnable circular argument because FHFA was understood by the Admin to be independent under HERA; so to ‘work around’ the will of Congress would have been no different than removing the for-cause FHFA Director. Such act could have been considered itself a violation of separation of powers of the worst kind…an attempt to reduce the Director of the FHFA to an under-Secretary of the UST.