Everybody is waiting on Collins, if an agency is unconstitutional its actions are void, so it must be determined if the provision is severable from the remainder of HERA, logically this influences all lawsuits as when the current FHFA structure is void no other question can be answered by the judges as the initial authority given was unconstitutional

The 5th circuit already gave its opinion and that is basically the same as the SCOTUS opinion, the 5th held that the 3rd exceeded FHFA’s statutory powers, while SCOTUS said relief is prohibited, but the SCOTUS also said the "for cause" provision is unconstitutional, this last provision however will also have a consequence for the 3rd amendment the Remand to the district court Judge Atlas must follow the SCOTUS instruction and do something with the provisions, whatever she does, it means trouble for the government as now HERA is violating the constitution because of the SCOTUS opinion

The SCOTUS also held that the 4th amendment ended the 3rd amendment and because of the 4th amendment plaintiff are not entitled to prospective relief, but the 3rd did not end so plaintiffs are entitled to prospective relief

So when Atlas gives retrospective relief the 3rd amendment must be ended as otherwise it violates the SCOTUS opinion and plaintiffs would have been entitled to prospective relief

Something you might have missed is preferred:
in Fannie have a STATED value (NO PAR value)
in Freddie have a PAR value of $1.00

https://www.investopedia.com/terms/s/statedvalue.asp#:~:text=A%20stated%20value%20is%20an,no%20relation%20to%20market%20price.

besides the litigation preferred have no other legal interest other than the par value, because the dividend rights are suspended in conservatorship the only way to receive more than Par or no value is when the companies get re-listed and Fannie and Freddie Redeem the preferred stock and simultaneously issue new preferred

Barrett’s Derivative Claims

A) The derivative non-constitutional claims
B) Barrett’s constitutional derivative claims
1) Barrett’s takings claims
2) Barrett’s illegal exaction claim
3) Barrett’s separation-of-powers claim

The derivative non-constitutional claims
Among others, the estoppel doctrine prevents a person from re-litigating an issue and the court reasoned the Perry case was decided

Barrett’s takings claims
Congress enacted the self-dealing so the action is allowed per this provision

Barrett’s illegal exaction claim
It is not an illegal exaction as it was enacted by congress, and therefore it cannot be illegal

Barrett’s separation-of-powers claim
1) this is where the COFC copy-pasted the incorrectly SCOTUS opinion “the SCOTUS fourth amendment in 2019 which eliminated the variable dividend formula the shareholders claim caused their injury. That amendment eliminated any claim for prospective relief which shareholders could assert with respect to the net worth sweep”
so prospective relief is back, as the 4th amendment only temporarily paused the 3rd amendment
2) is about an acting director, but as courts explained earlier an acting director can be fired “at-will” by the president so the implementation of the net worth sweep could not be attacked.
3) is about adequate presidential oversight, this is the same as 2) as in both the president had a say

Then it comes to the conclusion Barret cannot be given relief as the SCOTUS already gave it, so:
“Barrett no longer can assert such a claim on which relief can be granted and that his separation-of-powers claim must also be dismissed under Rule 12(b)(6)

Then the COFC ruling (Fairholme and others) is important for the government as to when Judge Atlas(Collins) made the ruling first, the COFC could not have dismissed the Fairholme case (as Collins will impact the FHFA independency), so it was particularly important for the government that before Atlas ruled the COFC case was dismissed

it is what I expected, the SCOTUS and 5th circuit gave the district court a huge problem, let me try to explain

the 5th circuit held:
1) Third Amendment exceeded FHFA’s statutory powers
2) the "for cause" provision is unconstitutional

the SCOTUS held:
1) 4617(f) prohibits relief
2) the "for cause" provision is unconstitutional

Now the problem for the government starts:
The 5th circuit opinion could be appealed and gave no mandate to alter anything, then the SCOTUS came in and said the "for cause" provision is unconstitutional. this is final and is a new law, the provision is thus violating the constitution, so the provisions need to go and be stricken from HERA.

In court, the SCOTUS remanded the case to the 5th circuit and the 5th circuit remanded it to the district court, the district court thus now must decide how to make this legally possible (spoiler alert it is not possible) if the provision is severed from HERA the FHFA is executive and can no longer be an independent agency, if it is modified to "at-will" the POTUS is the head of FHFA and the agency again cannot be an independent agency

so why does this independent matter?
Independent agencies help the POTUS, but in order to be independent with executive power it can only be headed by a board of governors, currently the FHFA, in law is headed by a board 44 U.S.C. § 3502 (5), and also is headed by a single director 4512(a), this last provision is declared unconstitutional and the sole provision remaining is now 3502.
the FHFA is controlled by HERA, it says that the director of the FHFA can make assessments to run the FHFA, but officially the FHFA is now headed by the president,(as he can fire the director of the FHFA) but the president does not have the power to makes assessments that power belongs solely to congress in the appropriation act

so now we landed in the district court, Judge Atlas retired and it is unknown who will replace her at this moment, but for now lets still call it Judge Atlas, he does not have the power to rule unconstitutional things, when judges are sworn in they made an oath to uphold the law (28 U.S. Code § 453) and that is what we are about to see, if anything is done to the provision or deleted or altered the FHFA can no longer be independent as a consequence as the POTUS is in control of the agency, remember the Otting flip flop when they figured out it would mean the end of the FHFA

active cases as of Feb 25, 2022

Judge: Atlas, Maloney, Schiltz, Alejandro
16-3113 Collins v. FHFA/Treasury
17-497 Rop v. FHFA/Treasury
18-2506 Bhatti v. FHFA/Treasury
18-3478 Wazee v. FHFA/Treasury
Claim:
Declaring that FHFA's structure violates the separation of powers, that FHFA may no longer operate as an independent agency, and striking down the provisions of HERA that purport to make FHFA independent from the President and unaccountable to any of the three Branches of the federal
government, including:
12 U.S.C. § 4511(a) Establishment "Independent" Rop,Bhatti,Wazee
12 U.S.C. § 4512(b)(2) Term "for cause" (Unconstitutional per SCOTUS) Rop,Bhatti,Wazee, Collins
12 U.S.C. § 4617(a)(7)Agency not subject to any other Federal agency Rop,Bhatti,Wazee
12 U.S.C. § 4617(f)Limitation on court action (anti-injunction clause) Bhatti,Wazee
Striking down All violating provisions Rop,Bhatti,Wazee

Judge: Lamberth
13-1025 Perry v. FHFA/Treasury
13-1053 Fairholme v. FHFA/Treasury
13-1288 In re: Fannie/Freddie SPSPA
Claim:
Breach of the implied covenant of good faith and fair dealing regarding liquidation preferences against Fannie Mae, Freddie Mac, FHFA

No this is currently(and was) not possible for the FHFA to put the GSEs in legal receivership as the FHFA prevented with the 3rd amendment the building of capital (because the capital rule was in suspension it could self-deal) also the Applicable Capital Reserve Amount was less each year, so since 2012 it was not possible to put them into receivership

-

The SCOTUS might have forced a resolution as if only 1 provision is wrong, the cardhouse will collapse as it is depending on all the other provisions combined to be constitutional, the courts are not up to that task changing statutes, so up to now the government got away with it, but it is unlikely the appeal will be granted on whatever the outcome is, as it already was in front of the SCOTUS, so the governments time is running out in the Collins case let alone another judge on another case will give an opinion, the problem now is A is unconstitutional but the court cannot do anything with A as that will have a serious constitutional consequence on BCD and E, so we whatever happens in A directly means we have arrived at point E

The difference between the 5th circuit and the SCOTUS is everything that the SCOTUS says must be considered law

Now to make sense of it

Free Enterprise Fund v. PCAOB (2009)
Double-layer, the PCAOB is an independent agency within the SEC
Seila Law v. CFPB (2020)
Double-layer, the CFPB is an independent agency within the Federal Reserve System

Then it is also important what question is in front of the judge(s) and what the lawsuit relief is in front of the 5th circuit,
Collins has 4 counts

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.

The District Court (Judge Nancy Atlas) ruled:
1) Based on the foregoing, particularly the District of Columbia Circuit’s well-reasoned the decision in Perry Capital, the Court grants Defendants’ Motions to Dismiss the APA claims as precluded by § 4617(f). Additionally,
2) the Court concludes that the removal for cause provision applicable to the FHFA Director is not unconstitutional.

The 5th circuit ruling was :
1) We REVERSE the judgment dismissing Count I and REMAND that
claim for further proceedings
2) The court REVERSES 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

Then the SCOTUS said:
1) 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 exercise of powers or functions of the Agency as a conservator or a receiver.” §4617(f). Where, as here, the FHFA’s challenged actions did not exceed its “powers or functions” “as a conservator,” relief is prohibited
2) 2. The Recovery Act’s restriction on the President’s power to remove the FHFA Director, 12 U. S. C. §4512(b)(2), is unconstitutional.

Then 12 U.S.C. § 4512(b)(2) Term “for cause” in the new law is unconstitutional and can no longer be questioned
On the other hand, it now becomes super complicated as now in similar other lawsuits things changed permanently too (Bhatti/Rop/Wazee) in these lawsuits additional questions are brought to daylight:

Then the above question is brought in Bhatti, but because of the SCOTUS ruling Bhatti changed their complaint to “put plaintiffs in a condition they would be in absent the violating provision 4512(b)(2)”, in Rop the question is 4511(a), 4512(b)(2) and 4617(a)(7) and Wazee has the same as Rop but Added 4617(f)

Now the 5th circuit must decide what to do with the “for cause” provision in Collins. say they instruct Judge atlas to sever the provision, the Rop and Wazee case instantly won their case as now the FHFA is headed by the president while being “independent” but the added pressure from Bhatti deleting 4617(f) on the guidelines of the SCOTUS opinion in Count I makes that whatever the 5th circuit comes with will be unconstitutional in the other lawsuits (Bhatti/Rop/Wazee)

Then apart from the fact that the SCOTUS ruled the structure is unconstitutional, another problem occurs, if the president controls the director of the FHFA absent 4512(b)(2), it cannot forbid Judicial review on his actions in 4617(f) but if it cannot forbid judicial review the APA could not have failed in SCOTUS, as the SCOTUS said relief is prohibited by HERA 4617(f)

This can be compressed to following problems in Collins/Bhatti/Rop/Wazee
12 U.S.C. § 4512(b)(2) violates 44 U.S.C. § 3502(b)(2) “board”
12 U.S.C. § 4512(b)(2) violates 12 U.S.C. § 4511(a) “independent”
12 U.S.C. § 4512(b)(2) violates 12 U.S. Code § 4516(f)(2) “Not Government funds”
12 U.S.C. § 4512(b)(2) violates 12 U.S.C. § 4617(a)(7) “FHFA not subject to any agency”
12 U.S.C. § 4512(b)(2) violates 12 U.S.C. § 4617(f) “no judicial review possible”

The problems plaintiffs in these cases identified are of course limited, but there are multiple other problems the FHFA faces with other provisions and authority, cutting corners however is not possible

The legal matrix is very complex I agree, but FHFA cannot be compared to the CFPB, yes they are similar in some way, but FHFAs HERA is the controlling statute and that does differ quite a lot, so when you say the “12 U.S.C. § 4512(b)(2) in legal-ese, never existed” it needs to be severed from HERA but without this provision the president blocks in another part of HERA judicial review per § 4617(f) and in again another part of HERA it says 12 U.S.C. § 4617(b)(2)(J)(ii) it can act in the best interest of the FHFA, this is unconstitutional per the separation of powers as the president thus now can act in its own best interest all allowed by congress who gave the president the power to self-deal, this again is a violation of the separation of powers and courts cannot make unconstitutional ruling as they must review HERA in Toto,(not as you say provision by provision and the violating provision must be stricken) so the FHFA looks to be void-ab-initio if congress doesn’t change the structure and give parties interested compensation for their wrongdoings

So to conclude the CFPB is an agency within the Federal Reserve System which has a Board of Governors, absent say the “for cause” provision the Federal Reserve System still had the authority, this differs from the FHFA as absent the “for cause” provision the president blocks Judicial review and as the FHFA survives by assessments the president thus makes assessments for his own best interest, so the structure is not legal nor can it become legal without congress

Hope this enlightens somewhat

The Judges now have a problem, the SCOTUS did not say if the violating provision is severable or not, which effectively means "you figure it out, guys".

The Judges cannot rule or make unconstitutional decisions, which begs the question what does an unconstitutional § 4512(b)(2) mean?

the FHFA is now independent and headed by the president (as he can fire the FHFA director) this structure is unconstitutional as the SCOTUS said in CFPB

just to clarify the CFPB is an agency within the Federal Reserve System which has a Board of Governors, the CFPB had shielded its director from the president while the Federal Reserve System is already shielded from the president by a board, this double protection is not allowed by SCOTUS and now the provision is severed as in theory the Federal Reserve System controls the CFPB and the president can appoint/choose the director(still unconstitutional but better than before)
the FHFA however is an agency with no parent agency, it is a standalone agency that is independent, headed by a single director, and this director is shielded from the president, this is uncontrolled power as only Board can be independent (and probably why Sandra said it is up to Congress to make a decision as everything she does is unconstitutional per se, as she was nominated by the president and might be confirmed by congress after the SCOTUS ruled the structure(Sandra/instead of a board) is unconstitutional so if she is confirmed, congress does not respect the SCOTUS opinion and the government dives into trouble ahead)

so if § 4512(b)(2) will be changed to "at-will" the structure still violates the separation of powers as the SCOTUS concluded, and the provision cannot be severed as that is not what the SCOTUS said, so it leaves the Judges with an impossible task, because if they say 4512(b)(2) is now "at-will" they created the 4th branch while the courts do not have that power, and thus this ruling is unconstitutional upfront, if they say it can be severed it is a revival of the APA claim as then the president forbids the courts ruling on his actions(4617)(f)(uncontrolled power) what again is unconstitutional per the separation of powers (and all precedents for independent agencies, and SCOTUS recent order)

then the district court: The first is Collins followed by Bhatti/Rop and when released Wazee, Collins/Bhatti now want relief for the fact that former president Trump could have fired the director earlier, the declaratory relief however still comes back to the question of what to do with the provision which cannot be ruled upon, so the judge can give relief for the years Trump could not fire the director, but if this relief is given it means it was thus "an unconstitutional taking" of shareholder rights for 14 years

in the Fannie and Freddie litigation, the most important hurdle is the constitutional claim, this is now solved by SCOTUS as it said the FHFA structure violates the constitution, all claims that rank lower must be put on hold because if relief is given(on lower-ranking claims) the outcome could mean an inaccurate relief or double recovery for the lower-ranking claims, and the lawsuits must be revisited

the federal court: as stated above "the takings" claims automatically won their case if the district court severs the violating provision as it lacked authority to put the companies into conservatorship(although this was not the opinion of SCOTUS, so very unlikely) but it would mean the president and the 2 federal agencies under the control of the president agreed to "self-dealing" allowed by congress in HERA(But that is another issue for another day lol)
then if the district court would change the "for cause" to "at-will" the plaintiffs in the federal court would also win as both the district and federal court do not have the power to change this provision into "at-will" as the SCOTUS explicitly forbids the independent/single director structure as this provision is the most important provision for being independent(and it would again violate the separation of powers (4617)(f)

So we all wait on Collins but judge Atlas also is aware of the Bhatti/Rop/Wazee lawsuits and therefore cannot give relief that is improper to the other cases, the Wazee case is the most troublesome for the government, it is a jury demand, may no longer operate as independent, and must strike down 4617(f) case, this is killing for the government of course as it has no control over a jury, and probably the reason they are still in "Civil Suspense until further Order of this Court"

this all is only the tip of the iceberg but all those and other issues disappear when the FHFA becomes constitutionally structured

yes, and the lawsuits? now the "for instance 7B" shares can legally be executed? this possibility is foreclosed by SCOTUS, as the authority was missing, the FHFA is unconstitutionally structured with a single director and "independent"

1) 16-3113 Patrick J Collins v. FHFA-C, FHFA, and Treasury Declaratory And Injunctive Relief
12 U.S.C. § 4512(b)(2) Term “For Cause” violates the constitution the FHFA IS “unconstitutionally structured”
2) 13-1025 Perry v. Jacob Lew …… Common & Preferred, Derivative Declaratory And Injunctive Relief
3) 13-1053 Fairholme Fund, Inc. v. FHFA and Treasury Declaratory And Injunctive Relief
4) 13-1288 In re: Fannie Freddie Declaratory And Injunctive Relief
5) 17-497 Rop v. FHFA and Treasury Declaratory And Injunctive Relief
6) 18-2506 Atif F. Bhatti vs. FHFA and Treasury Declaratory And Injunctive Relief
7) 18-3478 Wazee Street Opp. v. FHFA and Treasury Declaratory And Injunctive Relief
Federal Court
8) 13-465C Fairholme Funds, Inc. v. United States………..Common & Preferred, Direct & Derivative
9) 13-496C American European Insurance.…. Preferred, Class Action, Direct
10) 13-542C Francis J. Dennis ………………….…. Preferred
11) 13-385C Washington Federal v. United States……Common & Preferred, Class Action, Direct
12) 13-608C Bryndon Fisher (FNMA) .........….. Common Derivative
13) 14-152C Bruce Reid (FMCC) …………………… Common & Preferred Derivative
14) 13-672C Erick Shipmon……..…………………… Common Derivative
15) 13-698C Arrowood Indemnity Company … Preferred Direct
16) 14-740C Louise Rafter .........…………………. Common Direct & Derivative
17) 13-466C Joseph Cacciapalle.………..………… Preferred, Class Action, Direct
18) 18-281C Owl Creek Asia I L.P. ..........………. Preferred, Direct
19) 18-369C Akanthos Opportunity Master Fund… Preferred, Direct
20) 18-370C Appaloosa Investment .........……. Preferred, Direct
21) 18-371C CSS LLC ……………………………………. Preferred, Direct
22) 18-529C Mason Capital L.P...........………….. Preferred, Direct
23) 18-1124C Wazee Street……………….………… Common, Class Action, Direct & Derivative
24) 18-711C 683 Capital Partners………..……….. Common, Preferred, Direct
25) 18-712C Joseph S. Patt………………………..… Preferred, Direct
26) 18-1226C Perry Capital LLC……………………. Common & Preferred, Direct & Derivative
27) 18-1155C CRS Master Fund LP…..…………… Preferred, Direct
28) 18-1240C Quinn Opportunities Master LP … Preferred, Direct
29) 20-737C Joshua J. Angel v United States Treasury ….. Preferred, Direct, Class action
(Consolidated lawsuits in Class actions are not mentioned in this list)

13-465-413 amended complaint Fairholme Funds, Inc. et al v. USA

PRAYER FOR RELIEF WHEREFORE, Plaintiffs seek a judgment as follows:
A. Awarding Plaintiffs just compensation under the Fifth Amendment for the Government's taking of their property;
B. Awarding Fannie and Freddie just compensation under the Fifth Amendment for the Government's taking of their property;
C. Awarding Plaintiffs damages for the Government's illegal exaction of their stock; D. Awarding Fannie and Freddie damages for the Government's illegal exaction of their net worth;
E. Awarding Plaintiffs damages for the Government's breach of fiduciary duty;
F. Awarding Fannie and Freddie damages for the Government's breach of fiduciary duty;
G. Awarding Plaintiffs damages for the Government's breach of implied-in-fact contract;
H. Awarding Fannie and Freddie damages for the Government's breach of implied-in-fact contract; (constitutional claim SCOTUS)
I. Awarding Plaintiffs pre-judgment and post-judgment interest;


please point me to where SCOTUS Says it is now "at-will " and not stricken

it is not necessary to include FNMA in the class, the lawsuits are all intertwined, the government first must survive the statutory and constitutional claim, the SCOTUS said statutory claim is barred by 4617(f) but that doesn't mean the money grab by the conservator is now legal, only HERA allowed this money grab so the conservator did not exceed its “powers or functions", on the other hand, the constitutional claim is unconstitutional, so now the question is, if the FHFA is unconstitutionally structured how could a statutory claim be barred while the agency itself is unconstitutionally structured? this is a ratifying problem as absent authority the statutory claim could not have failed let alone be barred

then as a follow-up the Bhatti/Rop/Wazee lawsuit
these lawsuits hold that if the FHFA is unconstitutionally structured the agency cannot be independent as when its structure violates the separation of powers it thus must strike down the violating provisions:
12 U.S.C. § 4511(a) Establishment independent
12 U.S.C. § 4512(b)(2) Term "for cause"
12 U.S.C. § 4617(a)(7) Agency not subject to any other Federal agency
12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)

then to make matters worse for the government we have Fairholme federal court case:
this case holds that the Conservatorship is "a taking" of private property for public use, but Because the SCOTUS in its opinion was barred by 4617(f) it thus is "a taking" as it was allowed by HERA

so now the SCOTUS found 4512(b)(2) is unconstitutional

but what to do with the provision? should it be stricken or modified and is the new structure now legal or do the courts now make the new structure unconstitutional by modifying the old structure? or do the court not have the power to alter the intentions of Congress and is HERA thus void-ab-initio?

Then we have a host of other problems, but we can conclude that whatever is found counts for both Fannie and Freddie

Way too many FNMA holders, too costly

FNMA
2006 19000
2007 21000
2008 20000
2009 19000
2010 18000
2011 15000
2012 14000
2013 14000
2014 13000
2015 12000
2016 12000
2017 9000
2018 9000
2019 8000
2020 8000

FMCC
2006 2343
2020 1610

I have seen it but not analyzed, before SCOTUS is was consolidated with:

20-02025 Cynthia Boss v. FNMA, FHFA
20-02026 Sisti v. Freddie Mac
20-01673 Montilla v. Fannie Mae

The FHFA is managing Fannie and Freddie and it is not in charge of the day-to-day operation of the agencies but is responsible because it is managing, I haven't seen enough to make sense of it though

I understand that thought but the FHFA does not have quasi-judicial and legislative powers, it has the whole deal, it has judicial power and legislative powers as the agency is not within another agency (like CFPB), it is a standalone agency with uncontrolled powers, this agency powers can only be controlled by 1 branch if it is headed by a single director (it can have these powers if it is headed by a board of governors)but this one branch, "the president" cannot have other branches power, this is how the founding fathers envisioned the constitution, the fiduciary duty the president thus has, is to every other as the president himself(as he is chosen by the people), the president can only administer the law and that is about it, as the SCOTUS said "even a modest restriction of the separation of powers is unconstitutional" so as the president is now the head of the FHFA, it could not have entered into a never-ending deal, it is not beneficial to the company or its shareholders, so it was self-dealing as he is the head of both the treasury and the FHFA now

The SCOTUS only answers the questions in front of them, the section you quote is talking about an acting director not a confirmed director in combination with the independent and legislative and judicial powers

“the shareholders first contend that the Recovery Act should be read to restrict the removal of an Acting Director because the Act refers to the FHFA as an “independent agency of the Federal Government.”

“In support of that interpretation, the shareholders first
contend that the Recovery Act should be read to restrict the
removal of an Acting Director because the Act refers to the
FHFA as an “independent agency of the Federal Government.”
12 U. S. C. §4511(a) (emphasis added). The reference
to the FHFA’s independence, they claim, means that
any person heading the Agency was intended to enjoy a degree
of independence from Presidential control.
That interpretation reads far too much into the term “independent.”
The term does not necessarily mean that the
Agency is “independent” of the President……………..
…That combination of provisions shows that the term
“independent” does not necessarily connote independence
from Presidential control, and we refuse to read that connotation
into the Recovery Act.

So what the SCOTUS says about independence is that the “acting director” is removable at-will, and it refuses to interpret it another way, it doesn’t say anything about the confirmed director in combination with the independence of the agency. (severance of the provision was not added as an additional question because it would void the FHFA) Now after the “for-cause” provision is held unconstitutional the FHFA has uncontrolled powers(in the separation of power), the president can nominate, and he can fire a confirmed director, this effectively means the president is “in control” of the agency as at any given moment in time he can change the direction of the agency, this is the “independent” problem, as the FHFA should be headed by a multimember board like current law demands(44 U.S.C. 3502 (5), or could not be independent as the FHFA has legislative and judicial powers, but the agency is already headed by a single director so the FHFA will have to become executive

The fiduciary duty comes from the BOD and the FHFA-C, numerous articles talk about the problem you describe see https://www.uclalawreview.org/wp-content/uploads/2019/09/10_54UCLALRev117October2006.pdf
but it is not the problem I describe, the fiduciary duty as BOD and as conservator are established principals, it describes what the BOD and the conservator must do and the mandatory duties it has, the BOD and the FHFA do not have a choice in fiduciary duties, the role they play obligates them to have fiduciary duty towards the company and shareholders, the FHFA statute indicates it can have self-interest, but courts are prohibited from reviewing this statutory provision, so it is unknown if the FHFA can discard itself by law from fiduciary duty, while common conservatorship law clearly forbids self-interest

All shareholders can expect the BOD to have fiduciary duty towards the shareholders as it is their mandate, likewise for the FHFA-C conservator, all conservators have fiduciary duties towards their conservatee
So the problem now is, the BOD had fiduciary duty towards shareholders, but “voluntary” gave it away to FHFA-C, and the FHFA mandate is also to put in sound and solvent condition, so shareholders can expect at least the conservator to have fiduciary duty towards the companies, but instead the FHFA-C entered into a self-destruction contract that is cannot escape, and then by SCOTUS altering the “for cause” provision to “at-will” the president has full control over the agency(FHFA), so the “deal” between the FHFA/FHFA-C and the Treasury is thus self-dealing as the shareholder rights are not protected(nor the agencies rights but this arrangement is still sealed) this in combination with a deal between two government agencies makes it impossible to escape fiduciary duty
The problem is just larger than you envision right now, so yes the FHFA does not have fiduciary duty if this is not specifically agreed between the BOD and the FHFA, But yes it does have fiduciary duty as the BOD must protect the company and only could have agreed (voluntary) if it was in the best interest of the company(as the instruction of FHFA was it was in the best interest of the company), but clearly the actions are not in the best interest as a self-destruction contract is put in place by the conservator, but since this conservator is a government actor and the contract is from an executive agency of the government, the FHFA cannot forbid Judicial review for the actions it took(4617(f)

This would be:

“WE made a deal with ourselves,”
“WE decide you give us all your money”
“WE decide you cannot Sue us in court”
“WE decided in regulation you cannot Sue us for taking all your money”



The SCOTUS holds the 3rd amendment was within the power that was given to the FHFA, on the other hand the SCOTUS did not mention it was thus legal for the FHFA to implement the 3rd amendment is only said they had the legislative power. To understand this we look at the question asked:

Question:
“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”

And the answer:
“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 exercise
of powers or functions of the Agency as a conservator or a receiver.”
§4617(f). Where, as here, the FHFA’s challenged actions did
not exceed its “powers or functions” “as a conservator,” relief is prohibited.
Pp. 12–17”

So The SCOTUS concluded an answer on the merits of the question is prohibited, as several judges did in the past, however, this comes also back to the separation of powers problem, if the president can fire/hire the director and the Treasury is executive it was a self-deal, then the court must be able to look at the case and rule on the merits of the question, but HERA foreclosed judicial review, so effectively nobody said the 3rd amendment is legal as no court is allowed to rule on it

the separation of powers

let me explain: the executive branch cannot have legislative or judicial branch powers, that is the separation of powers

1) legislative powers
2) executive powers
3) judicial powers

there are a few exceptions and those exceptions make it harder to understand, but still the same

1) an independent agency can have legislative/judicial powers if it is headed by a multimember board
2) it can have a single director but this director can only have inferior power

now to come back to your question, ALL branches(1,2,3) have a fiduciary duty, the FHFA is independent has a single director and this director is (was)removable "for cause" only, this insulated the president from removing the head "at-will" as it is an independent agency, the SCOTUS, however, ruled "for cause" is unconstitutional, this means the agency can no longer be independent (see the Bhatti/Rop/Wazee lawsuits about this topic) if it is not independent, it is executive, and executive agencies do have a fiduciary duty, and because it is executive it cannot have Judicial power as it would violate the separation of powers

The nail on the head, if the president can fire the director at will the agency is not independent of the president, if it is not independent it is executive, if it is executive it does have a fiduciary duty and cannot block Judicial review (4617(f), so HERA is void as it is not in accordance with 5 U.S. Code 706(2)(a) https://www.law.cornell.edu/uscode/text/5/706
and if it is not "or otherwise not in accordance with law" it must "set aside the agency action" according to the law

it is always more complicated, I think CFPB settled, if Seila law would have won their case, the other dozen pending lawsuits would have won their case too, so CFPB would have less power.
Why would Seila abandon the winning team, they invested soo much into it, way up to SCOTUS, it doesn't make sense at all


"On remand in the ninth circuit, Seila Law argued that a ratification submitted by the CFPB, which the then-Director Kathy Kraninger had signed only after the Supreme Court’s decision in the case, was not valid because an action taken by an agency without authority cannot be ratified if the principal lacked the authority to take the action when the action was taken. The Ninth Circuit disagreed, holding that the investigative demand was still enforceable because the CFPB’s ratification had cured any constitutional defect in the demand by validly reauthorizing it under the agency’s new structure.

The panel denied rehearing, despite the dissenting judges’ opinion that ratification is not “a proper remedy for separation-of-powers violations” that affect an agency’s structure, and “no ratification is permissible” because the Supreme Court’s “determination that severance was necessary confirms that the CFPB lacked Executive authority pre-severance,” and “[t]he doctrine of ratification does not permit the CFPB to retroactively gift itself power that it lacked.”
https://www.jdsupra.com/legalnews/ninth-circuit-stays-mandate-in-seila-4349646/


"On October 8, counsel for the appellant in CFPB v. Seila Law LLC sent a letter to the U.S. Court of Appeals for the Ninth Circuit stating that, after further consideration, it will not petition Supreme Court a second time"
https://buckleyfirm.com/blog/2021-10-13/seila-law-will-not-petition-supreme-court-second-time

The Owl creek lawsuit can be compared to the Fairholme Federal court case (both claims are based on the 5th amendment taking) and are direct claims, the government argues that the claims belong to the companies and not the shareholders, if this was the case shareholder would not have standing to bring their case.
If the claim is derivative the government claims the powers it has in § 4617(b)(2)(A)(i)(succession clause) voids the derivative claims

The direct versus derivative claims discussions are nonstarters, it doesn't really matter if the claim is direct or derivative, former Sweeney concluded the claim was derivative, but it really is both, plaintiffs covered basically every inch in their lawsuits and it is impossible for the government to legally escape

1) Direct claims establish it is a "5th amendment taking" and the government now is the sole owner of Housing, it must buy out all shareholders and it can no longer be a publicly-traded company as the government took the property

2) Derivative claims establish that the 3rd amendment money is returned to the companies, to establish damages the financials/meeting minutes must be disclosed as those are redacted, the derivative claim is much more complicated as the FHFA took the power of the BOD, the FHFA tries to solve these issues as ERCF, CSP/CSS, CRT, but it still needs to be seen if this illegally modifying the companies was allowed

3) ranking above the direct and derivative claims are the constitutional claims, these establish that the FHFA can no longer be independent as the separation of powers does not allow an executive single director that can be fired at will by the president to be the head of an independent agency, the agency is thus executive and cannot block the Judicial power on which they lost the APA claims

1) Direct
Common and preferred shareholders missed dividends, if the redacted financials surrounding conservatorship are not released, the suspension of this dividend is thus a Direct claim as it belongs to the shareholders only, and it is not proven the suspension is legitimate

2) Derivative
Common and preferred shareholders challenge the 3rd amendment, it is illegal for a conservator to give away money that belongs to the conservatee, this money belongs to Fannie and Freddie and thus if illegal it must be returned to the legal owner of the money, Fannie Mae and Freddie Mac, this is the Derivative claim

the text in the picture is on the homepage https://www.equilar.com/
in the middle, there are 3 windows, point in the window, and it opens up and displays the text you are looking for

https://gselinks.com/Court_Filings/Owl_Creek/18-00281-0001.pdf

________________________________________

The president (executive branch) by “at-will” removal blocks judicial review (4617(f), it is all about what the president's current powers are and if those powers are in line with the separation of powers, so currently the “at-will” removal power breaches the separation of powers, not sure what your argument is

________________________________________



Yes the boards acquiesced but the powers are given to the single director removable “for cause” are unconstitutional, as SCOTUS ruled the “for cause” removal protection is illegal, so it should have been a board of governors who decided the faith of the companies, so the board agreed to something that is no longer constitutional and absents the power from congress the past actions are void as SCOTUS said “we don’t do harmless error in constitutional law”

________________________________________


OFHEO DID NOT HAVE THE POWER TO PUT THE ENTITIES INTO CONSERVATORSHIP other than “(A) that the amount of core capital of the enterprise is less than the minimum capital level established for the enterprise under section 1362” page 308 and only after a written “ (A) that alternative remedies available to the Director under this title are not satisfactory” this all did not happen as HERA changed this to: “4617(a)(3)(G) The regulated entity has incurred or is likely to incur losses that will deplete all or substantially all of its capital, and there is no reasonable prospect for the regulated entity to become adequately capitalized (as defined in section 4614(a)(1) of this title).”

You mix-up voluntary agreeing and statutory provisions that grant conservatorship, yes they voluntary agreed, but nothing was told to shareholders, so it was an ad hoc decision and not because the capital was insufficient, so HERA 4617(a)(3)(G) applies (spoiler alert the documents surrounding the financials to put into conservatorship under 4617(a)(3)(G) are still redacted)




No OFHEO only had power if the capital was below the minimum, and they had a written warning and the director thought the actions taken by the companies are insufficient, OFHEO could not put into conservatorship upon wishes of the executive director, only upon the legislative boundaries the OFHEO had the power to put into conservatorship, so only after the capital was depleted




No, it had not, only it only could have blocked judicial power after the capital was below the minimum and if above the minimum “(2) MANDATORY.—The Director shall terminate a conservatorship initiated pursuant to section 1366 or 1367 upon a determination by the Director that the enterprise has maintained an amount of core capital that is equal to or exceeds the minimum capital level for the enterprise established under section 1362, and may by written order prescribe such terms, conditions, and limitations on the enterprise as the Director
Considers appropriate.

That means your entire argument goes down in flames

The devil is in the detail as always, 4617f bought a little bit more time for the government, the questions asked in collins was 1) for cause, and 2) the 3rd amendment, the SCOTUS however answered (and this is very very important), 1) the 3rd and 2) for cause, if it would have been the other way around like plaintiffs asked, the APA claim could not have failed as the authority was missing so

Collins:
1) for cause
2) the 3rd

SCOTUS answer:
1) the 3rd
2) for cause

the 3rd is now only legal because the SCOTUS answered the 3rd amendment question first, if "for cause" was the first question they answered, the FHFA would have been unconstitutionally structured and 4617f could then not have been legal, as the president cannot block judicial power, the trouble the FHFA has is severe, so yes the SCOTUS did everything in their power to prevent the FHFA from becoming void-ab-initio but it is a matter of time, the clock is running and if you look at the soft plaintiff's questions/arguments one might think they are up to something

you are speed reading again, that is not what it says:

"As conservator, FHFA reconstituted our Board of Directors and provided the Board with specified authorities. Our directors serve on behalf of the conservator and exercise their authority as directed by and with the approval, where required, of the conservator. Our directors have no fiduciary duties to any person or entity except to the conservator. Accordingly, our directors are not obligated to consider the interests of the company, the holders of our equity or debt securities, or the holders of Fannie Mae MBS unless specifically directed to do so by the conservator."

so the fiduciary duties are with the FHFA, you just have to face it the government lost everything, I know this is not what you want to hear but nothing is legal and the problems just keep building

Transfer of fiduciary duties: 10K-2020

"As conservator, FHFA reconstituted our Board of Directors and provided the Board with specified authorities. Our directors serve on behalf of the
conservator and exercise their authority as directed by and with the approval, where required, of the conservator. Our directors have no fiduciary duties to any person or entity except to the conservator. Accordingly, our directors are not obligated to consider the interests of the company, the holders of our equity or debt securities, or the holders of Fannie Mae MBS unless specifically directed to do so by the conservator."

so the BOD fiduciary Duties transferred to the FHFA, so the FHFA now has the fiduciary duties towards shareholders, DUTIES do not disappear into thin air

Whatever result may come, we know this:

The FHFA is unconstitutionally structured as "for-cause" must now be replaced by "at-will" per SCOTUS order

The next question that arises is then, can "for-cause" be removed from HERA when it is now "at-will" removal.

The president now has the power to nominate a new director any time, so the director must obey the president or he/she will get fired, but it is even more bizarre the president now has 2 options to circumvent the constitution

1) INSTALL an acting director that is shielded from judicial review
2) Nominate a director (and ones confirmed by the senate) who is shielded from Judicial review

so whatever the president wants to do with the companies, the director is able to do it per HERA, this is not possible per the constitution as the president's power is only to administer, and all actions the president does should have a possibility to be questioned in court, well in HERA the president now has the power to do whatever pleases him and it cannot be questioned court, something that is not legal per the separation of powers

Then if you look at the powers 4617(f)(judicial power), it was the sole basis on which the APA claim failed, hmmm

exactly

It is a difficult matter, the FHFA was constitutional when created (questionable but still) FHFA had acting and confirmed directors throughout the years, now after SCOTUS it is clear the president had the at-will removal power from the beginning, but it is now also clear the president obstructed Judicial review in 4617(f) from the beginning, the president however, does not have the right to block any of the other powers in the separation of powers.

Apart from that unconstitutional “for cause” is void-ab-initio thus illegal from the beginning, so in short the Director of the FHFA did NOT have the power granted by congress to put the companies into conservatorship

The same counts for the 3rd, the SCOTUS ruled the FHFA was allowed to implement the 3rd amendment, but if they did NOT have the power from Congress to put the entities into conservatorship, then it might be legal by HERA/SCOTUS but not per the constitution as the power was missing

So now FHFA did not have the power to put the entities into conservatorship, as absent the legislative power they could not have administering power to do so, OFHEO did not have this power for a reason, and to overcome this problem the agency needed to be independent and had to have “for cause” removal in order to be independent, so striking down will remove “for cause” and “independent” and if it strikes those there is nothing left in HERA, so I’m not sure how the FHFA will survive without giving up ALL powers added after OFHEO, The SCOTUS took the sole thing on which FHFA was allowed to operate

Yes there is, the signs are on the wall, Collins SCOTUS crippled the FHFA, with “at-will”.
FHFA is no longer constitutional and the power they thought they had is thus modified, this modification however is the problem, the court said “for cause” is illegal nothing more than that, so subsequently you think as everybody else, it must thus be “at-will” but that was all SCOTUS said on it, it did not reach the question “is “for-cause” severable from HERA”, now in real life when somebody changes the for-cause to at-will, they will run into a problem as now all undelaying provisions breach this new at-will power, the president does not have legislative power, and it does not have judicial power, the government will lose basically ALL the lawsuits if they alter the provision, the problem is now thus acute as the FHFA does not properly function under the separation of powers (or ever will be), and all the actions are thus void-ab-initio, I wonder dozens of lawyers are working around the clock to come up with a solution on this breach, but it cannot be fixed as they cannot alter the separation of power, it just took too long and they waiting too long, so we should see something from the government how they will fix the unconstitutionality of the FHFA in the coming months.

The court only answers the question asked and interpretation is upon the reader of the text, in Collins SCOTUS decided “for cause” removal must be replaced with “at-will” but remember the FHFA is independent outside the executive branch and operating independently with a “board of governors”, the single and independent structure is thus tested in SCOTUS and now no longer legal, in Collins this was about it, but Bhatti, Rop and Wazee extended the question by “striking down independent and HERA’s provisions” that make the agency independent, as a consequence of Collins the FHFA director can now be fired by the president, so the president has executive power, the FHFA itself however has

1) Legislative
2) Executive and
3) Judicial power,

so now the president has in FHFA all 3 powers, this is of course not possible per the separation of power, which holds no branch can perform the duties of the other branches, this is the issue in Bhatti, Rop, and Wazee questions “striking down independent” and if it is no longer independent it must thus strike down 4617(f)(as legislative power cannot preclude judicial power) then the government lost all court cases up front as they did not have the power granted in HERA so all actions become void (not voidable)

so yes indirectly as a consequence of Bhatti, Rop and Wazee attacks, the conservatorship itself then lost statutory grounds to put the companies into conservatorship, as the power to do so is executive power that in this setting could only be performed by a board of governors, and the executive branch cannot preclude the judicial branch by powers it received from the legislative branch, And therefore cannot function independently as the president now after SCOTUS has the control over 3 branches

The FHFA received authority from the legislative branch in HERA, the FHFA is by HERA also the FHFA-C, the conservatorship is performed by the FHFA and the only agency responsible for the action the FHFA takes is the FHFA, the mandate from a conservatorship point of view is to preserve and conserve, so although HERA says it can take any action, common law describes in for instance the “Handbook for Conservators”, what it means to be a conservator, in my opinion, HERA reads as a conservator should conserve and preserve, while the receiver can take any action, the judges and the government somehow do not understand this and interpreted common law as it can be vacated, as the legislative branch permitted them to do whatever they want, however this got the government deeper and deeper into trouble with the common law and common sense

But to come back to 4617(a)(6): 4617 is the authority given to the FHFA pursuing either conservatorship or receivership, in A6 the BOD is no longer liable to shareholders, so all the DUTIES from the BOD are taken and transferred to the FHFA (while simultaneously performing their FHFA-C duties while they are legally owned by the FHFA) among others the BOD also has fiduciary duties towards shareholders, so this duty by A6 is also transferred to the FHFA, the FHFA statute however says it can take any action, so depending on what action is taken it might or might not breach it,

with the NWS this provision initially did not breach anything, but given that the FHFA gave away all profits in perpetuity and the NWS overpaid more than 10%, the FHFA breached their fiduciary duty they received from the BOD in A6, so in the NWS it breaches A6 by itself

In entering into the PSPA the BOD agreed to be put into sound and solvent condition by FHFA, the PSPA however micromanaged the companies and the agreement has nothing to do with putting an entity into solvent condition, only to wind it down, so in this the FHFA breached A6 too

Then if you combine A6 and F it is clear the BOD gave the duties to the FHFA, among other the fiduciary duty, but if 4617(f) prevents plaintiffs from pursuing misconduct in the duties the FHFA received from the BOD it breaches 4617(f) as A6 breaches fiduciary duty, and 4617(f) breaches pursuing misconduct as “now we know” they are profitable without a possibility on the conservatorship ending

Then from a constitutional point of view, it is weird the FHFA obtained powers in A6, that when breached no action can be taken due to 4617(f), this common law breaches the separation of powers, non-delegation doctrine, public non-delegation doctrine, conservator statute, and common sense

So in A6 they received Duties, but misconduct on these Duties cannot be tested in court because this was limited by the legislative branch in HERA who limited the judicial branch power in the executive branch agency in 4617(f), so the legislative branch can do whatever it wants and confiscate private property without being liable for the damages because they gave themselves this power, that only benefits their own account and takes private property without compensation and while doing it ties the hands of the Judicial branch

Considering these are only 2 provisions, one can imagine FHFA is in Deep Deep Deep Trouble

The Fifth Amendment taking is legal sure, the complication starts when it is a taking, attracting large sums of new capital will prove impossible as no one can allow their property rights to be taken for granted

With the denial of the APA by SCOTUS the FHFA basically imploded, the government worked on HERA for years, what they wanted to achieve is more power, their legal teams however figured only one possibility that MIGHT eventually be possible to obtain more power than OFHEO, this was the independent/single Director version of OFHEO, this was not tested in court and gave the single director sufficient power to accomplish every demand that was on the governments wish list, although it does not much differ from the old version, FHFA was taken out of the Executive agency HUD to become an independent agency by itself without any supervision, this structure is allowed per the common law as it was not tested in court and the same structure was legal per the SCOTUS with a board of governors, but this was a crucial part of what went wrong, yes OFHEO Was independent with a single director BUT WITHIN HUD, so the power was controlled by HUD and for this reason OFHEO could not place the companies in conservatorship

With added power to put into conservatorship, the structure changes as now an independent agency with a single director can put companies into conservatorship, but this article III power however was only given to a board and the legislative branch

so now in Collins the SCOTUS changed "for cause" to "at-will" and in Bhatti, they ask the FHFA can no longer function as "independent" it becomes clear the FHFA ran out of possibilities to ever become a legal agency operating under the constitution without giving up their power

This all puts tremendous pressure on FHFA as the sole reason they obtained the power from the legislative branch in HERA, was depending on the structure to be independent and have a single director that now is declared "illegal" power by SCOTUS

Correct in what? Can you point to ANY article that talks about the case-specific points?

not a problem, everybody is entitled to their own view and Perception, nobody knows what Fannie and Freddie are, or what they do, let alone that they are about to win a lawsuit, it takes some real investigation into the matter to understand for a stranger what has been going on. The chance of companies putting the time and effort into this matter are close to zero, for a stranger it is just not that obvious

It is harder to get relief from provisions that breach each other than single provisions that fail per the constitution itself,(4617(a)(6) does not breach the constitution itself, only in combination with) the plaintiff just went for the easiest ones I guess

The point you bring 12 U.S. Code § 4617(a)(6) conflicts with 12 U.S.C. § 4617(f) however is correct and should fail as a matter of law too, as the government cannot take fiduciary duty from the board to become untouchable themselves without paying just compensation

All shareholder rights are covered in the 3 dozen lawsuits, the shareholders have both direct, derivative lawsuits, so no matter how the coin flips each aspect is covered by another lawsuit, for the government, this spells trouble, as sure every loophole they thought was covered in HERA, but they forgot the common law part, so eventual relief must be given on common law, as changing common law is not possible, the conservatorship just started on the wrong basis, all documents are sealed and conservatorship behavior is tested in court, this is not something that will stand the test of time

The claims in front of the court are structured as
1) Direct
2) Derivative
3) Common law
4) Mix of all the above

This issue is not something the government should want to play either as eventually the outcome in both direct and derivative will cause them harm

The fine-tuning by the government got totally out of control and shows they do not have/had a basic understanding of how Solvable the matter is under their principles and what the damages are for them if they win, this problem is caused by the multiple layers of defense as too many people do not really understand the scope of the matter, and are hired to address specific points, losing the overall picture.

They work for the government and being a fiduciary as FHFA-C that is as government owned, and a fiduciary as government itself, spells out problems for the ethics, and if in the future a conservatorships remains a possibility, or if that will be foreclosed forever due to their actions

So the future shareholders will not agree to HERA being able to self-deal, as the old shareholders did not agree to it either, since it was not told upfront that it could play outside a “conservatorship statute”

That begs the question kicking the can down the road might be in the best interest of the shareholders, the problem just keeps getting bigger for the government, but the common law will stay the same forever, that for sure, and not a thing they can do about it

The appointment to conservatorship problems is two-fold, the implied-in-fact contract holds the details surrounding the conservatorship and are sealed, so resolution/remedy will depend on what the meeting minutes/implied-in-fact state, the 2 options are:

1) The FHFA came in and coerced the BOD into conservatorship upon which they received the power in HERA and the BOD breach (by coercion) their fiduciary duty (this was Sweeney’s point acting like the MOB)
2) The FHFA came in said HERA gave them power under 12 U.S. Code § 4617(a)(2) / (3)(G) to start conservatorship and the BOD had to agree and did not breach their duty as they did not have any other option left, but the financials surrounding this event must be disclosed

Now the problem becomes a cluster of breaches

1) The BOD might have breached their fiduciary duty
2) The FHFA coerced the conservatorship
3) The financials that show “likely to incur loses” are sealed, and proven wrong, as only due DTA write down they incurred losses not because of solvency issues that would grant conservatorship
4) The FHFA in the implied-in-fact contract must state it will act in the best interest of the “people” and thus violates conservator statute “preserve and conserve”
5) The FHFA by entering into the implied-in-fact contract effectively took property, but if it pays damages they cannot re-sell the shares
6) The FHFA power granted by Congress is unconstitutional as the actions cannot be questioned by 12 U.S. Code § 4617(f) Limitation on court action
7) The provisions of HERA breach each other as the actions of the “at-will” director who has executive power, cannot be questioned 12 U.S. Code § 4617(f) legislative power
8) The Independence of FHFA is in question as the president has removal power and a single director operating this structure (independent/single) violates the constitution
9) The FHFA is independent and does not act in the best interest of the conservatee by common law, this precedent will have consequences for FHFA, new precedents, new agencies, and the constitution
10) The FHFA continues with the 3rd amendment while the companies are immensely profitable
11) The Conservatorship did not end because the FHFA allowed to siphon the profits of the companies, and the companies are not adequately capitalized because of the FHFA conservatorship
12) The FHFA sealed all the surroundings of the conservatorship and hoped to get away with it, but sooner or later they will become public and that (because of the misbehavior) will reveal the intent of the government
13) The FHFA entered into an implied-in-fact contract and a day later into the PSPA, the conditions however are a substitute for regulation, so it looks like the FHFA and Treasury set up a plan to enter, not because the companies needed money
14) The FHFA has Judicial power to appoint itself as conservator, it abused this power to accomplish their intent to restructure, absent meaningful need by the companies that they needed cash
15) The FHFA instructed Fannie and Freddie to create CSS and the CSP and the UMBS at an initial cost of $2B and an annual cost of $100M to later give away the company and give full rights to Fannie and Freddie instead, but more importantly, it instructed the companies to spent money on something that never is going to be used by PLMBS absent legislation
16) The FHFA breached the non-delegation doctrine that prevents derivative claims
17) The FHFA breached the private non-delegation doctrine for private interests
18) so did they eventually have the power to enter into conservatorship

These are only some of the problems the FHFA faces, the courts so far upheld this unconstitutional behavior, but the cracks become visible as the mess the FHFA made is ultimately a product of their own illegal behavior and not sustainable

Cannot find anything on page 26 that says HERA’s independent and single director are allowed per the constitution




What was the remedy in HERA? , please quote




free enterprise https://www.law.cornell.edu/supct/html/08-861.ZS.html sets the precedent is it wishful, not that per se is a fact that the remainder survives, as all details differ, the Sarbanes-Oxley Act of 2002 cannot be compared to HERA



This is incorrect as the SCOTUS did not ask the parties in this case if it is severable, so is isn’t, otherwise they would have asked the same question


Agree it sure looks that way, but eventually, they did not say anything on the severability of “for cause” in HERA



Agree but it did not rule on 4617(f) it only said the 3rd amendment was within their power as the legislative branch gave them that power, so it was legal, it did not rule on the fact is 4617(f) legal or not with added at-will power




Control as a Controlling Mechanism



Perception but if it says “Independent MEANS a board” independent probably MEANS the Board and not a single director, if it does not mean this, it should not explicitly tell it means a board, it should state instead “a board/ or a single director”
“the term “independent regulatory agency” means the Board of Governors of the FHFA”



The SCOTUS did not ask the parties if “for cause” is severable from HERA, that has yet to be figured out, and is exactly what I say in above, the SCOTUS did not mention anything on the severability in HERA the power now however is only legal if it is independent and headed by a multimember board



Correct this provision is legal in HERA by SCOTUS(ridicules if you ask me but still), however, it is NOWHERE legal in conservatorship statute, this provision breaches the common law conservatorship statute, a conservator cannot take actions that are not beneficial to conservatee, and when tested will fail in court (If the question raised is “can a conservator act in the best interest of somebody else as the conservatee”)



no it did not if you remove for-cause you will also have to remove 4617(f) those two provisions conflict with each other in common law/ constitution (separation of powers) and why they did not ask is it severable




I do not recall a specific post, but we talked about this dozens of times, you think the FHFA and Treasury do not own fiduciary duty towards the shareholders only to the companies, because the judge said so, and I replied dozens of times the (shareholder/)rights do not disappear into thin air, they have to go somewhere and cannot be taken, but you still insisted if the judge says so, the rights disappear into thin air, you really said this dozen of times