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In other words SCOTUS declared that HERA supersedes the US Constitution?
No federal ruling can directly supersede the provisions of the U.S. Constitution. The Constitution establishes the framework for the federal government, outlines fundamental rights, and sets limits on governmental power. Federal rulings do not directly supersede the U.S. Constitution. The Constitution remains the highest law in the United States, and federal court decisions are expected to align with its provisions or interpret them in a coherent manner.
However, "judicial review" allows the federal courts, including the U.S. Supreme Court, to have the authority to interpret the Constitution and determine whether laws, regulations, or government actions are in accordance with its provisions. If a federal court ruling interprets the Constitution in a certain way, that interpretation becomes a precedent and guides future legal decisions. As distasteful as it has been, and like it or not, that is what has been happening with the Fannie and Freddie cases.
Down the line, new interpretations and precedents may arise.
The supreme court made hera a political appointee so when the president changes, the new president will fire sandra thompson and replace her. That is why calabria got fired the day the scotus collins v yellen came out.
Yes. That is possible. The 7-2 Supreme Court vote ruled that the Federal Housing Finance Agency’s structure is unconstitutional and made the FHFA director accountable to the President. The President, whoever that will be in 2024, may decide to fire and replace Thompson with a newly nominated director. Even so, there is no certainty about this happening. We will have to wait and see what actually will happen.
I think she will be fired or asked to resign if there is a change of power. So I don't think she will be there till 2027
Yes. That is possible. The 7-2 Supreme Court vote ruled that the Federal Housing Finance Agency’s structure is unconstitutional and made the FHFA director accountable to the President. The President, whoever that will be in 2024, may decide to fire and replace Thompson with a newly nominated director. Even so, there is no certainty about this happening. We will have to wait and see what actually will happen.
What would that precedent be, pablocruize?
Perhaps, it could be that the FHFA has no right to violate the contractual rights of shareholders by any means they deem appropriate under the Housing and Economic Recovery Act (HERA) of 2008?
We will have to wait to see what comes next following this case (an FHFA appeal, change in shareholder legal arguments, etc.). And much of what will come next with conservatorships will hinge on who will be President and who will be Secretary of the Treasury in 2025. The current FHFA director will most likely remain in place till 2027, when her term expires.
Obi---could you please comment on this tweet by Ano
________________________________________________
In short. Conservatorship is OVER, the @Potus CANNOT renegotiate the unfair contract terms with himself as he is the beneficiary on both sides now (apart being the contract one sided, and a 1.000 questions imposing CShip itself and its fair conduct)
— Ano (@Ano3020100) August 18, 2023
________________________________________________
It is not understood what is meant here. Is this tweet related to the $612 million dollar case? Is this a prediction being made or a fact being declared?
In the excerpts, simply put, the court argues that the shareholders cannot challenge the FHFA's actions in this case. The law (Recovery Act: §4617(f) and §4617(b)(2)(J)(ii)) and the reasons given for the FHFA's decisions support its authority to do what it did. The FHFA is legally protected and is "right" and the shareholders are misunderstanding what occurred and do not have the facts to support their argument.
```````````````````````````````````````````````````````````````````````````````````````
"Held:
1. The shareholders’ statutory claim must be dismissed. The “anti-
injunction clause” of the Recovery Act provides that unless review is
specifically authorized by one of its provisions or is requested by the
Director, “no court may take any action to restrain or affect the exer-
cise of powers or functions of the Agency as a conservator or a re-
ceiver.” §4617(f). Where, as here, the FHFA’s challenged actions did
not exceed its “powers or functions” “as a conservator,” relief is prohib-
ited. Pp. 12–17.
(a) The Recovery Act grants the FHFA expansive authority in its
role as a conservator and permits the Agency to act in what it deter-
mines is “in the best interests of the regulated entity or the Agency.”
§4617(b)(2)(J)(ii) (emphasis added). So when the FHFA acts as a con-
servator, it may aim to rehabilitate the regulated entity in a way that,
while not in the best interests of the regulated entity, is beneficial to
the Agency and, by extension, the public it serves. This feature of an
FHFA conservatorship is fatal to the shareholders’ statutory claim.
The third amendment was adopted at a time when the companies had
repeatedly been unable to make their fixed quarterly dividend pay-
ments without drawing on Treasury’s capital commitment. If things
had proceeded as they had in the past, there was a possibility that the
companies would have consumed some or all of the remaining capital
commitment in order to pay their dividend obligations. The third
amendment’s variable dividend formula eliminated that risk, and in
turn ensured that all of Treasury’s capital was available to backstop
the companies’ operations during difficult quarters. Although the
third amendment required the companies to relinquish nearly all of
their net worth, the FHFA could have reasonably concluded that this
course of action was in the best interests of members of the public who
rely on a stable secondary mortgage market. Pp. 13–15.
(b) The shareholders argue that the third amendment did not ac-
tually serve the best interests of the FHFA or the public because
it did not further the asserted objective of protecting Treasury’s capital com-
mitment. First, they claim that the FHFA agreed to the amendment
at a time when the companies were on the precipice of a financial up-
tick which would have allowed them to pay their cash dividends and
build up capital buffers to absorb future losses. Thus, the shareholders
assert, sweeping all the companies’ earnings to Treasury increased ra-
ther than decreased the risk that the companies would make further
draws and eventually deplete Treasury’s commitment. But the suc-
cess of the strategy that the shareholders tout was dependent on spec-
ulative projections about future earnings, and recent experience had
given the FHFA reasons for caution. The nature of the conserva-
torship authorized by the Recovery Act permitted the Agency to reject
the shareholders’ suggested strategy in favor of one that the Agency
reasonably viewed as more certain to ensure market stability. Second,
the shareholders claim that the FHFA could have protected Treasury’s
capital commitment by ordering the companies to pay the dividends in
kind rather than in cash. This argument rests on a misunderstanding
of the agreement between the companies and Treasury. Paying Treas-
ury in kind would not have satisfied the cash dividend obligation; it
would only have delayed that obligation, as well as the risk that the
companies’ cash dividend obligations would consume Treasury’s capi-
tal commitment. Choosing to forgo this option in favor of one that
eliminated the risk entirely was not in excess of the FHFA’s authority
as a conservator. Finally, the shareholders argue that because the
third amendment left the companies unable to build capital reserves
and exit conservatorship, it is best viewed as a step toward liquidation,
which the FHFA lacked the authority to take without first placing the
companies in receivership. This characterization is inaccurate. Noth-
ing about the third amendment precluded the companies from operat-
ing at full steam in the marketplace, and all available evidence sug-
gests that they did. The companies were not in the process of winding
down their affairs. Pp. 15–17."
"Surely I say unto you dudes I do not wish to fight, so as soon as you apologize and make a full reckoning of your transgressions I shall absolve you and continue along the path of righteousness." Bruce Almighty
You are welcome, kthomp19.
This case was decided by a jury in the U.S. District Court for the District of Columbia and not by a federal judge. There are significant differences between civil cases decided by a judge versus a jury. These cases seem like a no-brainer for us as it was for this jury who rendered a verdict eight to 10 hours after the trial was completed (14 days). However, making a fair and just decision based on substantial evidence, the law, and legal precedent seems to be out of reach, so far, for federal judges.
Hi KenKong,
No. No thoughts or observations.
nagoya1,
I do not know.
Thank you Obiterdictum! Really interesting link
You are welcome FOFreddie.
- wonder if the case is still on her docket?
Wondered too. Pacer would have the answer.
Otherwise 9.05% for any Houston Division judge - assuming it was initially filed in the Houston Division that is.
Yes, Collins et. al. filed on October 20, 2016 in the US District Court for the Southern District of Texas, Houston Division.
"Not certain what arguments the Plaintiff's attorneys will offer in the US District Court for the Southern District of Texas."
Expect very little and you shouldn't experience chest pains.
Yes. High expectations can be a killer.
Good Morning Obi - your perspective would be appreciated.
Good Evening FOFreddie...
It looks like Judge Atlas retired in 2021 so wont the case on REMAND be reassigned?
https://www.txs.uscourts.gov/page/history-district-judges
Effective March 21, 2021, Senior Judge Nancy Atlas took inactive senior status. This does not mean that she no longer takes on judicial responsibilities. According to one document, whatever was on her docket, she would retain. Was the Collins case on her docket? I do not know. The reassignment of judges is commonplace, and so, we can wait and see what will occur in the near future, if the reassignement has already taken place.
See: https://www.txs.uscourts.gov/file/5796/download?token=JjJI9K_l - a PDF file will download if you click this link.
If the 5th Circuit grants Declaratory Relief in the All American Check Cashing case on behalf of All American - wont that be precedent for the Southern District of Texas on REMAND. The All American Check Cashing case has alleged Article I funding and Article III separation of powers Constitutional defects. The basis for Declaratory Judgement in the Article III separation of powers violation is that the CPFB continued with the litigation and assessed penalties against All American during the tenure of a CPFB Director that was not removable by the Executive Branch even though the administrative action was later ratified by a properly appointed Director of the CPFB.
Since Atlas'court is within the 5th Circuit Court of Appeals jurisdiction, decisions and rulings made by the 5th Circuit Court of Appeals have precedence in the lower district courts in the circuit. Even so, for a precedent to be binding and not merely persuasive, attorneys in the lower district court must present a case argument that matches closely, or is identical to the facts, events, and issues of the superior court's prior decision.
https://www.ca5.uscourts.gov/OralArgRecordings/18/18-60302_1-19-2022.mp3
This hearing was the 2nd En Banc proceedings that were completed immediately after the Collins oral arguments on January 19, 2022.
If you listen I think you may think Judge Edith Jones is a rock star.
Thank you for the MP3.
Oberdictum - yes remanded per SCOTUS but retrospective relief seemed to be a topic that the appeals court was uncomfortable with.
Yes, a minority of the court of appeals judges dissented. Five Judges (Haynes, Stewart, Dennis, Graves and Costa) of 17 dissented.
You state it-is-what-it-is, a very short remand as directed by SCOTUS.
Yes, the undecided portion of the case concerning compensable harm was remanded to the US District Court for the Southern District of Texas.
So, the real "opinion" is if the District court will agree with Trump's claim that he wanted to but had no time to un-do c-ship / NWS.
The dissenters in Collins all said that Trump could have directed Treasury to do the work but did not.
Not certain what arguments the Plaintiff's attorneys will offer in the US District Court for the Southern District of Texas.
Patswill, it appears that the March 23, 2022 date may be court ordered deadline for the plaintiffs and defendants to file stipulated motions in the Collins case. This reference may be a paraphrase of a docket entry made in the US District Court for the Southern District of Texas. I do not have current access to Pacer or another court service that provides current docket entries for the case. I cannot confirm this and so it is speculation. Please ask the message authors. They will know.
Is there a question ewtrader?
Review again pages 2-3 of March 4 pdf -
Is there a question ewtrader?
Patswil, please provide a link to the case or document.
Now do you give a time frame when the district court will schedule this remand case Collins?
No.
Now that SCOTUS has found the FHFA unconstitutionally structured could a new lawsuit be filed to challenge the FHFA ? There behavior? I new round of damages based on the NWS ?
For each question, the answer is: unlikely.
glad to see you're still around.
Still invested.
welcome back
Thank you. Never left. Just biding time.
...is there any hope for us in the remaining court cases?
Perhaps.
...makes me wornder if there is any hope in getting a good verdict in the district court remand?
Perhaps.
The correct link to the first quote in post# 713762
http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV2.pdf
thank you, we are having trouble enterpreting if the dissent would have helped or hurt the shareholders?
If the dissenters were in the majority, the Shareholders would receive declaratory relief through a declaratory judgment that would state that the Shareholders injury is remedied by the removal of the “for cause” restriction. That is all. No help at all. These judges simply repeated what they previously opined in their previous dissent. See below and compare.
In summary, the Shareholders’ ongoing injury, if indeed there is one,7 is remedied by a declaration that the “for cause” restriction is declared removed. We go no further. We will not let the Shareholders pick and choose parts of the PSPAs to invalidate when the President had adequate oversight over their adoption and particularly when two different presidents have selected agency heads who have supported the Net Worth Sweep. The appropriate remedy is the one that fixes the Shareholders’ purported injury. That is exactly what our declaratory judgment does. Consequently, we decline to invalidate the Net Worth Sweep or PSPAs.8 Instead, we conclude, given that the majority of the court has found the FHFA unconstitutionally structured, that the appropriate remedy for that finding is to declare the “for cause” provision severed. https://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV3.pdf - See page 60. - 09/06/2019
In other words, I think we should modify the district court’s judgment by granting declaratory relief in the Plaintiff’s favor, stating that the “for cause” removal provision as to the Director of the FHFA is unconstitutional. https://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV3.pdf - See page 4. - 03/04/2022
WHat is your opinion on this:
https://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV3.pdf
No opinion nagoya1. The panel majority remands the undecided portion of the case to the district court for further proceedings, whatever those will be, in accordance with the Supreme Court's remand order. What more can be said that has effective, pertinent, useful meaning? And the dissent is merely dissent with no lawful effect.
After this court heard oral argument on questions surrounding retrospective relief, it became clear that the prudent course is to remand to the district court to fulfill the Supreme Court’s remand order. And that is what we do.
REMANDED for further proceedings consistent with the Supreme Court’s decision.
what brief or announcement?
Here is the CA5 request:
https://investorshub.advfn.com/uimage/uploads/2021/6/25/lopchm_merged.png
An unsurprising outcome basesloaded.
Litigation will continue in the lower courts for an unspecified amount of time to resolve the parties' arguments on retrospective relief.
Future Outcome of the Remand? - Indeterminable.
Oberdictum thanks seems you are saying not really remedying Fannie shareholders but perhaps directing lower courts on path
Yes. Please review the arguments and questions found in the petitions.
https://www.supremecourt.gov/# - Scroll down to Wednesday, December 9.
Only in some legal carve-out, such as if FHFA is unconstitutional could or would they give backward looking remedy, but they all balked at the end per reporting that this would not be a good thing for SCOTUS to do here as it opens other SSA etc issues.
Yes, there was hesitancy. There was uncertainty. No decision has been made and the leanings made toward one side or another by the Justices are not ascertainable.
However SCOTUS decides the questions before it, there will be future legal consequences and economic impact not only for shareholders, the FHFA, and HERA, but also on other federal agencies and the housing economy. Contemplation of such consequences and impact is the base reason for Justices asking the questions they did, some of which were couched in hypothetical contexts and future outcomes. Lower courts will have to deal with the decisions made on the questions presented.
I guess we wait for Sweeney FCC
We wait.
Thanks
You are welcome.
Use of the word "nationalization" by conservator
It would seem that getting down to brass-tacks and excluding the legal questions of APA, Dismissed for cause, Acting director vs. appointed, and all that seem moot.
What they did was wrong.
I suppose the next "legalese" interpretation is that this is not the Federal Claims court (i.e. takings).
So, can the Supreme Court make any remedies for the non-FCC issues, given that they recognize it was ... just plain wrong?
No. Retrospective monetary remedies are not before SCOTUS.
See: https://investorshub.advfn.com/boards/read_msg.aspx?message_id=159914350
Obiterdictum: Thanks for your response.
You are welcome
Can you comment on Justice Gorsuch comments, below: (especially the bold portion)
Can you post your take on the Supreme Court hearing?
For one hour and 41 minutes, Supreme Court Justices asked questions and received answers from the three representatives before them: Mooppan (federal government), Nielson (amicus), and Thompson (shareholders). The questions that were asked and answered and the sometimes selectively biased Justice responses that followed worked to verify the intentions and arguments of the involved parties. There is no way to tell from the oral arguments which Justices favored one side over another. If there is interest in the specific questions and answers and ensuing discussions, please ask.
Hi Travel5,
Thanks. All are fine as can be despite the pandemic and the political, social, and economic turmoil.
Please be careful and stay safe.
Obit:
Thanks for your responses.
You are welcome.
It should be obvious Im not an attorney, and woefully ignorant on the legal system.
You posted:
Obiterdictum:
Epstein seemed to emphasize "remedy", suggesting that we know it was unconstitutional, but that the lower courts ruled that the president could remove "for cause", but no payments would be made to shareholders.
?
Epstein further indicated the "breach of fidicuary duty" which, in his opinion is where shareholders could see compensation for the damages. (loss of dividends, share price/share value decline, based mostly on the net worth sweep confiscation of assets).
Its unclear if the "breach of fiduciary responsibilty" by the FHFA
(by ordering the NWS, and thus confiscating shareholder profits) is before Scotus. Does this mean the US Supreme Court "can not" order a compensation to shareholders, because that issue is not before the court? (case and controversy)
Correct.
Further, there are multiple lawsuits going on, in addition to Scotus, some of which have not been decided.
Are these other pending lawsuits brought to SCOTUS attention, or are they dealing EXCLUSIVELY with the appeals currently before scotus?
SCOTUS deals with the case it is hearing.
In other words, is Scotus attempting to resolve issues MORE than JUST those before the court?
No.
In my limited experience, my guess is that the US Supreme Court "wont do numbers", that is, order the UST to pay x dollars as restitution to the shareholders, but instead, remand that so that the dollar amount of losses can be determined by a lower court.
Monetary restitution is not before SCOTUS. What is before SCOTUS is:
1. Affirmation or Reversal of the Fifth Circuit’s ruling on the merits of Plaintiffs’ constitutional claim.
2. Reversal or Affirmation of the Fifth Circuit’s ruling of denying a meaningful remedy for FHFA’s violation of the separation of powers.
Hi obiterdictum,
Good morning, Fully Diluted.
thanks for your answer.
You are welcome.
Richard A. Epstein also commented on Calabria's probable term in office. He took part in a round table discussion at the Competitive Enterprise Institute. There he said starting 33:01 in the video attached below:
"Now it's interesting to add by the way that in some of these cases the settlements are not going to make the case disappear. ...because it is an important question of principal... we[scotus] have to solve this."
Epstein thinks that the chances for Calabria to keep the job are 10%
Below is a transcription of Epstein's 10% comment
33:40 - "Just as an odds make I would say that the chances of this structure being held constitutional after Seila and all the stuff going on is uh in the neighborhood of 10 percent. I think it's pretty clear that they're going to win."
When speaking about "structure" Epstein was referring to the "removal for cause" stipulation in HERA. Epstein's comment is referring to the survival chances of HERA's removal for cause stipulation being held as constitutional is 10%.
The comment was not a reference to Calabria's chance to remain in office, which is ultimately determined by the President in association with the relevant cabinet members (Treasury Secretary, Secretary of Housing and Urban Development, etc.) and Calabria.
The chances of Calabria's removal are not calculable at the moment since the Presidency remains in waiting and a new cabinet, if established, is not installed.
GLTY
Ditto.
Reference:
Hi obiterdictum,
Hi Fully Diluted.
nice that you are actively participating in the forum again.
Never left. Just nothing to say in this periodic downturn that appears to be reversing.
I have a question for you regarding Calabria's remaining time in office:
The 5. circuit reversed "...the judgment as to Count IV and REMANDS that claim for entry of judgment that the “for cause” removal limitation in 12 U.S.C. § 4512(b)(2) is unconstitutional."(1)
Yes.
And here is my question: Is Judge Atlas, who has to execute the "entry of judgment", also obligated to do so if Collins would withdraw the case?
No.
Here is a brief overview of how I reached to this question, which unfortunately I cannot answer, but I hope you can:
1. Judge Atlas from the district court ruled in the Collins case that Calabria can only be removed for cause and HERA is not unconstitutional on this point.
2. The 5th circuit expressed the opinion that this judgment must be revised and Atlas must carry out the "entry of judgment".
3. As long as there is no entry of judgment, no appeal against a judgment can be made.
Consider an interlocutory appeal.
Therefore, both Collins and the Treasury Department have used an alternative procedure to be heard by the Supreme Court: writ of certiorari
There was an appeal of the 5th Circuit opinion via a petition for a writ of certiorari. The writ was granted. This is an ordinary legal procedure that can stay the 5th Circuit decision on Count IV and stop further legal proceedings in the lower courts until the SCOTUS decides the case.
4. Therefore Atlas has not yet carried out the "entry of judgment" and Calabria can therefore not yet take action against the judgment and therefore cannot be fired - (even if he wants to kiss tattoos on ankles)
The status quo regarding Calabria's position remains unchanged.
Corrections are always welcome. But I think that we are standing right there now: Should the Supreme Court bring the case to an end, Calabria will remain irremovable until then.
Yes, unless he provides "cause."
But what happens if Collins withdraws the case for any reason, such as an accommodating revision of the SPSPAs?
A voluntary dismissal of the Collins case depends on a variety of court situated factors and procedural rules. A voluntary dismissal with or without prejudice is governed by federal procedural rules and cannot be simply dropped. It seems that a SCOTUS ruling comes first given that the writ of certiorari has been granted. What case is being dismissed in this hypothetical?
Would Calabria remain in office until a new case regarding the constitutionality of the FHFA structure was heard and finally ruled on?
If a voluntary dismissal without prejudice occurs, yes.
Calabria remains protected from removal unless there is cause or a new court judgment makes it possible for the 45th or 46th President to fire Calabria at will.
Or could or even must Judge Atlas then still carry out the "entry of judgment", which would shake Calabria's seat, even if the case were closed?
The 5th Circuit decision to revise and remand Count IV is most likely stayed due to the granted writ of certiorari appealing the 5th Circuit's decisions. Judge Atlas most likely will have to sit and wait for the next steps handed down by the higher courts.
If so, is there a specific time frame?
Not that can be readily determined from here.
Or would a President Biden have the chance of success to let the Supreme Court answer this question nevertheless?
What any President will do with an open SCOTUS case will remain an open question until some action is taken or not.
I am at the end of my Latin and I hope you know that. I'm pretty sure you have already examined this matter thoroughly and I hope you have found an answer.
No real answers. The ball is rolling and is guided by procedural rules and Judge's and Justices' discretion. All one can do is watch the ball roll along until comes to a stop.
GLTY
Ditto. .
Reference:
(1)
http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV2.pdf
page 4 of 123 in the reader
Ok, let’s wait and see.
Will do.
Thanks always for your time Obit!
You are welcome basesloaded.