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Thank Obit.
You are welcome Barron4664.
My post to Yanks that you responded to was too concise.
What was stated was understood. How was the post too concise?
I’ve posted many times that I believe that HERA is “Toast” if the for cause single director is found unconstitutional not because of the fact that there is no severability clause, but rather that I believe it is inseverable. Why? Because the Statute mandates that FHFA be independent to fulfill the goals of HERA itself. If FHFA is made to be part of the executive branch answerable to the President then HERA loses its self consistency. This I believe, renders the act incurable should SCOTUS rule the for cause removal of the director unconstitutional. I posted to ktomp that I believe this to be a 50/50 chance. The other 50% being that SCOTUS simply affirms the single directorship as constitutional.
Previous posts on this topic were reviewed and carefully considered.
Whether stated explicitly or implied in the writing, it is clear that there is a stated belief and opinion that HERA's for-cause removal provision, if declared unconstitutional by SCOTUS, is inseverable. In this case, the primary and only means for SCOTUS to rule that the entire statute be invalidated (toast) is on the account that a single, unconstitutional statutory provision is inseverable. This is a foregone logical conclusion regardless of the mention of the lack of a severability clause.
This clearly stated belief and opinion excludes other possible SCOTUS rulings on the relation between an unconstitutional provision and the statute in which it is embedded. These possibilities include possible SCOTUS rulings that an unconstitutional provision, in addition being ruled inseverable (the belief/opinion held here), could also be ruled partially severable or severable.
The latter two possibilities were not considered previously and not considered now despite a presentation of these possibilities via a seminal legal article and several Supreme Court decisions that represent the past and current legal frameworks and precedent guiding severability and judicial restraint.
Without considering the full range of ruling possibilities, the only other SCOTUS ruling possibility given outside of inseverability and total statute invalidation (toast) is a 50% chance that SCOTUS affirms the single directorship as constitutional.
This belief and opinion denies SCOTUS's historical and current rulings and frameworks for ruling as well as legal precedents set for determining the severability and inseverability of statutory provisions declared unconstitutional and the validation and invalidation of statutes in which these statutes are embedded.
It would be a curious result if a SCOTUS majority ruled HERA invalidated by opining that HERA mandates that FHFA be independent to fulfill the goals of HERA and since FHFA is part of the executive branch answerable to the President, HERA loses its self consistency if the for-cause removal provision (12 U.S.C. § 4512(b)(2)) is declared unconstitutional and severable.
While there is no law that I am aware of that mandates that a statute absent a severability clause is toast if one or more provisions of that statute are found unconstitutional. There is legal precedent that supports what a remedy should be. Willet cited a few examples of such in his dissent.
The message to Barron4664 was not directly related to the prospective and desired retrospective remedies given for Count IV of Collins et. al. complaint. That is, the dialogue was not about 5th Circuit US Court of Appeals en banc's majority opinion and ruling for a prospective remedy or the minority dissenting opinion concerning remedies following the en banc declarations that the single-director structure of the FHFA is unconstitutional.
The dialogue was about how SCOTUS would/could rule on the severability/inseverability of an unconstitutional provision(s) of a statute (HERA 2008).
The dialogue was concerned with the possible invalidation of the entire statute (HERA 2008) on the account that the the single-director structure of the FHFA that is primarily based on the limiting and unconstitutional removal “for cause” provision (See 12 U.S.C. § 4512(b)(2) - https://www.law.cornell.edu/uscode/text/12/4512) may be ruled unconstitutional by SCOTUS.
See p. 60 - https://bit.ly/2qoSFB5
The issues are: If SCOTUS rules that 12 U.S.C. § 4512(b)(2) is unconstitutional, does it follow that the entire statute - (HERA) - which does not have a severability clause, will be invalidated ("toast")? Can 12 U.S.C. § 4512(b)(2) be severed from the statute without affecting the remaining parts of the statute?
I disagree with one of your points.
For the CFPB the Supreme court can simply strike the offending language as you say.
Yes. The provision deemed unconstitutional can be invalidated with or without qualification.
Unfortunately what everybody seems to overlook on all of the boards, is that Congress in their rush to pass HERA and create FHFA copied most of The FDIC statute but forgot to insert a severability clause in HERA or chose not to.
This is not an unusual occurrence in law-making and also not necessarily a legislative defect. However, when a severability clause is not included, successful constitutional challenges to a statutory provision usually require courts to apply the severability doctrine and judicial restraint.
In any event, should SCOTUS rule that a single director removal for cause statute is unconstitutional then HERA should be toast.
There is no law or legal precedent that mandates that a statute absent a severability clause is toast if one or more provisions of that statute are found unconstitutional.
Congress would need to amend and repass the legislation to fix the offending statute.
The above only occurs if SCOTUS rules that the provision is both unconstitutional and inseverable. SCOTUS can rule that the unconstitutional provision is inseverable, partially severable or severable, each of these leading to different legal outcomes.
At least thats how I understand it. Seems so obvious yet no one discusses this. Perhaps Im wrong but I dont think so. Some one correct me please. I want to learn.
A more comprehensive understanding of the history and current status of the Severability Doctrine and Judicial Restraint can be found in the seminal primer article below and the cases providing legal precedents. Further discussion can be had when these are reviewed.
Separability and Separability Clauses in the Supreme Court, Robert L. Stern, Harvard Law Review, Vol. 51, No. 1 (Nov. 1937), pp. 76-128.
See these Supreme Court and other court cases that provide frameworks for decisions related to severability and judicial restraint of unconstitutional statutory provisions.
GEORGE W. WARREN & others vs. MAYOR AND ALDERMEN OF CHARLESTOWN. 2 Gray 84, 68 Mass. 84 October, 1854.
http://masscases.com/cases/sjc/68/68mass84.html
Champlin Ref. Co. v. Corp. Comm’n of Okla., 286 U.S. 210, 235 (1932)
https://supreme.justia.com/cases/federal/us/286/210/
Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987)
https://supreme.justia.com/cases/federal/us/480/678/
Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329-30 (2006)
https://supreme.justia.com/cases/federal/us/546/320/
Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010)
https://www.oyez.org/cases/2009/08-861
https://supreme.justia.com/cases/federal/us/561/477/#tab-opinion-1963375
Okay, You were very thorough in correcting my Norm Crosby-like attempts to word my basically correct understanding that 2 opposing parties were requesting cert for differing reasons, and I am appropriately chastened if that was at all part of your intent,
No chastening intended. Was unable to answer the question as asked and sought clarification.
but you stopped short of answering my question.
Yes. It was not understood at that time.
Is there any precedent for, is it typical for SCOTUS to grant cert for one part of a case, but not the other?
Yes, SCOTUS can limit cert to one of two questions and SCOTUS can also add a question or restate a question presented.
A recent example of an added question is Seila Law LLC, Petitioner v. Consumer Financial Protection Bureau
Obi can you may find some SCOTUS Meeting List with Date where the Cases 19-422 Collins and later 19-563 Gov is on it ?
For SCOTUS next steps, please monitor the dockets for each petition.
19-422 - Patrick J. Collins, et al., Petitioners v. Steven T. Mnuchin, Secretary of the Treasury, et al.
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-422.html
19-563 - Steven T. Mnuchin, Secretary of the Treasury, et al., Petitioners v. Patrick J. Collins, et al.
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-563.html
I understand that the ideal outcome would be for SCOTUS to deny cert on the question of the constitutionality of the NWS and to grant cert on the question of the remedy for the improper "director arrangement", but my own personal logic was to ask why would the court grant cert on one question and deny cert on the other. I guess I'd expect a "While we're here ..." approach. I would love for you to tell me that my logic is incorrect.
The constitutionality of the NWS is not a question presented by either party.
The questions presented concern the two different decisions made by the United States Court of Appeals for the Fifth Circuit en banc concerning Collins et. al.'s appeal.
Collins seeks, as a prevailing party, to revisit the 5th Circuit en banc decision on Count IV and gain a retrospective remedy of setting aside the NWS.
Mnuchin et al. are making an interlocutory appeal in seeking to reverse the Fifth Circuit en banc's reverse and remand of Count I still pending in Judge Atlas' court. That is, Mnuchin et. al. seek to cut off the future possibility that Judge Atlas may/will rule for the Plaintiffs as instructed by the Fifth Circuit.
See: For Counts see p. 13 http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV2.pdf
Perhaps, a reconsideration of the elements in logic (cert questions) would be useful.
Below are the questions given in the petitions for writs of certiorari.
Patrick J. Collins, et al., Petitioners v. Steven T. Mnuchin, Secretary of the Treasury, et al.
1. Whether FHFA’s structure violates the separation of powers; and
2. Whether the courts must set aside a final agency action that FHFA took when it was unconstitutionally structured and strike down the statutory provisions that make FHFA independent. https://www.supremecourt.gov/DocketPDF/19/19-563/120380/20191025201313249_Mnuchin%20FINAL.pdf
Steven T. Mnuchin, Secretary of the Treasury, et al., Petitioners v. Patrick J. Collins, et al.
1. Whether the statute’s anti-injunction clause, which precludes courts from taking any action that would “restrain or affect the exercise of powers or functions of the Agency as a conservator,” 12 U.S.C. 4617(f), precludes a federal court from setting aside the Third Amendment.
2. Whether the statute’s succession clause—under which FHFA, as conservator, inherits the shareholders’ rights to bring derivative actions on behalf of the enterprises—precludes the shareholders from challenging the Third Amendment. https://www.supremecourt.gov/DocketPDF/19/19-563/120380/20191025201313249_Mnuchin%20FINAL.pdf
We appear to have been punted to the next SCOTUS conference.
Nothing in the docket yet.
See:
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-422.html
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-563.html
19-422 (Collins v. Mnuchin), ? cert.
19-563 (Mnuchin v. Collins,) ? cert.
See: https://www.supremecourt.gov/orders/courtorders/011320zor_4fc5.pdf
Happy weekend.
Happy weekend.
Appreciate your dedication, sir.
Standard, readily available SCOTUS information that was previously located and bookmarked. Takes four or five minutes to compile, copy and paste into a post.
Wow
So Tim dillen lied or was duped?
Do not know. The report was a mistake.
Both cases were not denied today?
There is no record of a denial. The outcome is still unknown.
Unreal if that’s the case
A common occurrence.
Sounds like blarney carney folk job
Who knows for certain?
I don’t get it
I understand the link from ACG saying Monday 9:30 but Tim dillen Twitter links said denied both gov’t requests too
Is denied different than a cert?
What’s the deal?
Is the info from today bogus about gov’t denied 2x?
Yes. It is wholly mistaken information.
See: https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153241318
Thank You Obi !
You are welcome Doc007.
I don't know how the SCOTUS usually works and if they provide some reasonings or not and if it's may possible that they could not handle All Cases as notified and therefore may a week later complete, such things passing my mind.
Rule 16 is the SCOTUS rule for the disposition of a Petition for a Writ of Certiorari.
Obi Please Show More SCOTUS Details ?
If Gov's Requests Denied, It's Already Win For Us I Think.
As of this time, there are no details to show.
See: https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153235091
You are welcome Havoc5.
Peace
Navycmdr,
I believe we need to find the case distribution lists, not the hearings nor oral arguments lists.
From the link in this post:
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=153229429
There are nine case lists for conference on Jan 10th 2020, each based on a distribution date.
I don't see the distribution lists on the Supreme Court site for conformation of today's writs, but I believe they are included today.
To discover the writ of certiorari petition results of the SCOTUS conferences for Patrick J. Collins, et al., Petitioners v. Steven T. Mnuchin, Secretary of the Treasury, et al. (19-422) or Steven T. Mnuchin, Secretary of the Treasury, et al., Petitioners v. Patrick J. Collins, et al. (19-563) please monitor among Case Documents Orders of the Court and Granted/Noted Cases List for the October 2019-2020 term found here: https://www.supremecourt.gov/case_documents.aspx
October 2019-2020 Term
Orders of the Court
https://www.supremecourt.gov/orders/ordersofthecourt/19
Granted/Noted Cases List - October Term 2019
https://www.supremecourt.gov/grantednotedlist/19grantednotedlist - HTML
https://www.supremecourt.gov/orders/19grantednotedlist.pdf - PDF
Guido2 and RumplePigSkin, you are both welcome.
F&F BOD's "PERSUADED" UNDER FALSE PRETENSES
The offer by Treasury and FHFA to consent to the conservatorship was made under FALSE pretenses.
It can be reasonably concluded that the offer of conservatorship by Treasury and FHFA would NEVER have been accepted by the BOD's had they known conservatorship did not include "preserve and conserve assets and property" to a "sound and solvent condition" and was going to continue "in perpetuity".
"Around the same time, the FHFA made an offer to each board: consent to a conservatorship IN EXCHANGE FOR the FHFA-C aiming to preserve and conserve the Enterprises’ assets, attempting to restore the Enterprises to sound and solvent condition, and terminating the conservatorships when those goals were achieved." Id. ¶ 260.
"Each Enterprise’s board accepted that offer and consented to a conservatorship on September 6, 2008, with an understanding that the FHFA-C would operate in the aforementioned limited ways." Id. ¶¶ 64, 67; see also id. ¶¶ 259-63 (discussing the purported offer and acceptance).
The NWS was purposely set up by design to continue "in perpetuity". Termination of conservatorships could NEVER be realized under these conditions. Treasury and FHFA flat out LIED to the BOD's. The fact that NWS was ever implemented in the first instance clearly demonstrates Treasury and FHFA intent from the get-go, that is, "taking of private property without just compensation", aka, THEFT.
"Coercion as a Plaintiffs' issue is raised only as an allegation that Treasury coerced certain FHFA actions."
There should have been NO discussions between Treasury and FHFA if FHFA is truly an INDEPENDENT AGENCY. Allegations of COERCION takes this to the level of CONSPIRACY. Treasury Secretary at the time was Hank Paulson, FORMER CEO GOLDMAN SACHS. It is well known the GSE businesses have been the target of TBTF banks for decades.
Pursuaded/coerced, it's all a play on words. Fact is BOD's were LIED TO. Do the lies not matter to Judge Sweeney? Just whose side is she on anyway?
Persuaded is the word used by the Plaintiffs in the Fairholme et. al case in the US Court of Federal Claims concerning entry into the conservatorships. The entire argument referred to is the argument presented by the Plaintiffs in their briefs. The same arguments was accepted by Judge Sweeney as fact and presented as such in her opinion and order. Coercion is not an allegation in the Fairholme et al. case in the US Court of Federal Claims because Fairholme et. al. chose to present that way. These numbers - Id. ¶¶ 64, 67; see also id. ¶¶ 259-63 - refer to the statement and arguments in the Second Amended Complaint - See http://www.glenbradford.com/wp-content/uploads/2018/10/13-465-0422.pdf
A case more in agreement with the above word preferences and legal angle - coercion and duress - is the Washington Federal case in the US Court of Federal Claims.
See: Washington Federal here - http://www.glenbradford.com/wp-content/uploads/2018/11/13-385-0070.pdf
All plaintiffs are not the same in the presentation of their complaints.
The Plaintiffs may will amend or further complete its Claims as they can do as long the Case is not closed or further Evidences or Witnessings occur !
There is an indication from Sweeney's motion to dismiss that she is absolutely willing to entertain damages to FnF considering her commentary on the NWS being contrary to FHFA-Conservator DeMarco's responsibilities at the time serving as acting conservator.
It is at minimum documented in the 5th Circuit and USCFC that the NWS netted in excess of $100 billion in profits to the Treasury. Thus far the NWS per the 5th Circuit and the USCFC are leaning to the NWS not being legal.
From Sweeney's court (USCFC), monetary damages can be awarded to FnF the companies (derivative only) as the takings and illegal-exaction claims survived the government's motion to dismiss. While not being a final victory, it appears the court, based on oral arguments and the text of Judge Sweeney's motion to dismiss, does not look favorably on the NWS.
Now Collins is being appealled to SCOTUS by the government/Treasury as the gov disagree's with the 5th Circuit's 9 to 7 opinion about essentially the NWS. The FHFA-Conservator agreed to the NWS contrary to "preserving and conserving" assets for FnF. Obviously, due to FHFA's would-be role as conservator, this question before SCOTUS has a direct impact on Fairholme Funds, et al., in Sweeney's court.
If SCOTUS does not take the case, Sweeney is in play. If SCOTUS takes the case and rules in favor of the Plaintiffs (FnF), Sweeney is in play. If SCOTUS rules against the Plaintiffs, then I believe there will still be an equitable settlement to get recaptilization underway, but FnF won't have much influence in the outcome.
The main point being there is possibly over $100 billion at stake in Sweeney's court which is an extremely large bargaining chip in any settlement talks. There is also the possibility of Summary Judgement being handed down, long before a trial.
Settlement Equation: $124 Billion + Legal Settlements = PSPA & NWS Cancelled + Warrants Cancelled (Repurchased)
Understood.
The Plaintiffs may will amend or further complete its Claims as they can do as long the Case is not closed or further Evidences or Witnessings occur !
If allowed to do so...
seems as the govt is stuck between a rock and a hard place--
so when can we expect a ruling in our favor?
Assuming the reference is to Judge Sweeney, I do not know. When Judge Sweeney posts her scheduling order, time to ruling can be estimated. Whether or not the ruling will be in our favor is unclear. All sorts of things can happen between now and then.
nice post, obiter. Can we now focus on the NWS? I'm trying my virtual hardest ... sort of
Thanks.
What sort of focus?
You misunderstood the implied-in-fact contract issue
You misunderstood the implied-in-fact contract issue
Please specify the misunderstanding.
For 2 companies entering into a implied-in-fact contract there has to be a consent of the BOD and that is something the government cannot prove in implied-in-fact
1. Judge Sweeney's opinion upheld the Plaintiffs' allegation that there were implied-in-fact contracts between the FHFA and the GSEs because the FHFA bargained for the boards’ consent and that evidence of negotiations supports the existence of the FHFA and GSEs Boards intending to contract.
2. Judge Sweeney found that Defendants contention that the FHFA and the GSE Boards of Directors lacked the requisite mutual intent to contract and that the FHFA did not need to obtain consent unpersuasive.
3. Since the Defendants were unable to support the contention that there was no mutuality of intent to contract between the FHFA and GSEs Boards, Judge Sweeney declined to dismiss the Plaintiffs' derivative breach-of-implied-contract claims.
4. An implied-in-fact contract is a contract that is implied from facts and circumstances showing a mutual intent to contract (https://www.law.cornell.edu/wex/contract_implied_in_fact).
As stated by Judge Sweeney in the Opinion and Order,
You are welcome 955.
You are welcome.
Obit, I would really like to hear your point of view on this. I think I'm not alone in this request. In all due respect to ano, it appears to me he makes a fine argument. Can you comment? TIA.
Anyone has access to this article
https://www.americanbanker.com/news/fhfas-focus-in-reforming-gses-capital-capital-capital
navycmdr
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=152997342
Obi please help !
And Merry Christmas
Happy Holidays!
Wasn't it in the original 3rd Amendment sweep a clause that stated if any or all of this is deemed inappropriate or illegal the whole thing is to be undone for correction? If so hasn't their been 2 -3 things that have already been found unconstitutionally structured? ....please someone correct me if im wrong
In the Miscellaneous Section of original, unamended 2008 SPSPA there are two relevant items regarding the enforceability and legality of stated SPSPA terms.
Wow
I get to correct him ?
The wizened lawyer friend?
Showing the facts is sufficient.
Judgement Fund
Ok - he must have been thinking pre 56 or whatever
Real issue - Real solution -
?
Do you or anyone know if the Judgement Fund is full of money - or is an idea ?
e.g. Maybe such fund has 1B in it - which in essence means any large settlement needs money to be appropriated
e.g. What if the fund has 1B and we "win" 100B
I understand the solution -- a pre appropriated fund so new specific case by case appropriations are not needed
Smart
But is it working in SIZE?
$100,000,000 ($99,999,999.99) for a single claim or paying that amount in single payments was not a problem in 2018. For payments greater than that amount please:
Review Reports
Annual Report to Congress - https://fiscal.treasury.gov/judgment-fund/annual-report-congress.html
Bi-weekly Payment Report - https://fiscal.treasury.gov/judgment-fund/bi-weekly-payment-report.html
These are Excel files that must be downloaded and viewed.
Search an Agency or Principal Citation Code and Description:
https://jfund.fiscal.treasury.gov/jfradSearchWeb/JFPymtSearchAction.do
how does one win in US Court of Federal Claims ?
I ask that because speaking with a wise (older) attorney yesterday he noted that often to get money from a CFC win - congress needs to appropriate it
Payment of monetary judgments made by US Court of Federal Claims against the United States are made according to law. Specifically:
1. 31 U.S.C § 1304. Judgments, awards, and compromise settlements - https://www.law.cornell.edu/uscode/text/31/1304 - this section eliminated the need for separate congressional appropriations for judgments and facilitated payments, and reduced the post-judgment interest that accrued against the government because of Congress's slow appropriations process that resulted in payment delays.
2. 28 U.S. Code § 2517. Payment of judgments - https://www.law.cornell.edu/uscode/text/28/2517 - and 41 U.S.C. § 7108(a) - https://www.law.cornell.edu/uscode/text/41/7108 govern payments to made for claims against the US by the US Court of Federal Claims.
Congress is not involved in making singular appropriations to pay for claims against the US or for funding the Judgment Fund. Congress has no role in the payment process of successful claims made against the US. The Judgment Fund has no fiscal year limitations, it is a permanent appropriation allowing the prompt payment of judgments and compromise settlements without any limit on the available fund amounts.
See also: https://fiscal.treasury.gov/judgment-fund/about.html