Fannie Mae-No Politics (FNMA)

[obiterdictum]

My inquiry was similar to the one plaintiff raises. "Could the Executive Branch be concerned with/about FHFA -claiming deliberative process privilege- IF, as defendant has already claimed, it is not the US government?

rosen62, it is hard to follow and comment if the parameters of the question keep changing. Now there is added a qualifying phrase that was not there before. Even so, nothing has changed from the previous post.

The Plaintiff makes an argument against the Defendant's use of dual claims to suit its particular need. The Defendants argue it is not the US when being sued. The Defendants argue it is the US when pressed to turn over documents in discovery. That is a contradiction and an absurdity. That is all that is done for that argument, which is one of six Plaintiff made regarding the Defendant's "unfounded and premature blanket assertion of the deliberative process privilege."

The Supreme Court has ruled previously that the federal government can be or cannot be, depending on circumstances, the US or a private contractor. Those decision were final rulings in cases. Those rulings do not justify and cannot be applied to the Defendants' playing peekaboo during pre-trial proceedings.

~~~~~~~~~~~~~~~~~~~~~~~~~~

From your answer, if I understood correctly, FHFA can be both the US and not the US government depending on circumstances. Therefore, it is potentially possible for defendants to raise the deliberative process privilege issue.

So, are you saying Judge Sweeney will first have to determine if FHFA is or is not the US government in this particular instance before she can comment on this specific prong of the whole argument?

No. Nothing of the kind is being suggested. Judge Sweeney has already made a determination on this. It was also clearly mentioned in the previous post that the FHFA status is in dispute and discovery is the means to settle it.

The dispute over FHFA status as US or not the US in this case is not to be settled and does not have to be settled before ruling on the Defendants' motion for a protective order. FHFA status can only be settled after discovery has taken place. So, the Defendants' arguments are an attempt to obstruct the finding of fact that is necessary to settle its status for the case. The Plaintiffs say no to that effort that contravenes Judge Sweeney's discovery order. For example:

This Court made clear in its February 26 order that the question whether FHFA should be considered the United States for purposes of the Tucker Act poses a “fact-intense inquiry.” Disc. Order 3. Contrary to the Government’s assertions, all of Plaintiffs’ requests on this topic are designed to elicit information that is highly relevant to this fact-bound inquiry. Thus, Plaintiffs’ Requests 11 through 18 are all tightly connected to the “highly context-specific inquiry” into whether FHFA’s actions are attributable to the United States. Disc. Order 3...

The Court has already credited Plaintiffs’ argument that the question whether FHFA’s actions may be attributed to the United States for purposes of the Tucker Act depends on a “highly context- specific inquiry that considers in part the purposes of FHFA’s actions.” Disc. Order 3. Thus, for example, the Government cannot withhold documents under the deliberative process privilege that bear on why FHFA agreed to the Net Worth Sweep. It did so either to protect the Companies from a “death spiral,” MTD 9, or to benefit the Treasury. FHFA’s subjective motivation for adopting the Net Worth Sweep is thus directly relevant to resolution of the Government’s argument that it is not liable for FHFA’s actions under the Tucker Act. Having put its own subjective motivations for adopting the Net Worth Sweep at issue, the Government cannot rely on the deliberative process privilege to prevent discovery on those topics...

The final part of the Government’s motion seeks entry of an order “that discharges the
government of any obligation to respond to the remaining document requests to the extent that
these requests exceed the scope of the February 26 Order.” U.S. Mot. 22. According to the
Government, well more than half of Plaintiffs’ document requests exceed the scope of the Court’s
discovery order. U.S. Mot. 19-21. Plaintiffs’ requests fall well within the scope of the Court’s
February 26 discovery order, and the Court should reject the Government’s effort to neuter
its discovery obligations through a clear misreading of the scope of that order...

Thus, a fair reading of both the Court’s prior discovery order and Plaintiffs’ document
requests compels the conclusion that the Government’s naked and largely unsupported assertions
that Plaintiffs’ document requests “on their face” exceed the scope of authorized discovery
demonstrate, on their face, only that the Government intends to use a cramped understanding of
relevance to artificially restrict which documents it produces. - https://timhoward717.files.wordpress.com/2014/06/61014plaintiffs_-response-to-defendant_s-motion-for-protective-order-2.pdf

2. However, FHFA's status as the US Government (Plaintiff's view) or not the US Government (Defendant's view) is a disputed status and that status has been argued by the parties to the Judge but has not yet been determined. Discovery is the means to provide documentary evidence, the content of which, will allow (or not allow) the Judge to settle this dispute.

3. It is important not to take the Government's self-contradicting arguments as fact. That is, FHFA is the US Government (USA) for discovery proceedings and for claiming deliberative process privilege for its inter- and intra-agency correspondence with US Treasury, and it is not the US Government [FHFA is FnF] in the overall suit, and therefore cannot be sued under the Tucker Act. - http://investorshub.advfn.com/boards/read_msg.aspx?message_id=103148745