Fannie Mae-No Politics (FNMA)

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DC Circuit (appeals)

USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 1 of 6
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
??PERRY CAPITAL LLC, Appellant,
Nos. 14-5243 (L),
14-5254 (con.), v. 14-5260 (con.),
14-5262 (con.)
JACOB J. LEW, et al., Appellees.
APPELLANT PERRY CAPITAL LLC’S RESPONSE TO MOTION FILED UNDER SEAL FOR JUDICIAL NOTICE

On July 29, 2015, Fairholme Fund and Fairholme Funds, Inc. (collectively “Fairholme”) filed a motion under seal requesting that this Court take judicial notice of documents that were produced by the government in a separate litigation involving the Net Worth Sweep in the Court of Federal Claims. Under Seal Motion (July 29, 2015) (D.E. 1565601). Pursuant to Federal Rule of Appellate Procedure 27(a)(3), Perry Capital, LLC (“Perry Capital”) submits this response in support of Fairholme’s motion.
The opening merits brief filed by Perry Capital, Fairholme, and Arrowood Indemnity Co. in this consolidated appeal argues, among other things, that the district court erred when it relied on flawed and incomplete administrative records. Initial Opening Brief for Institutional Plaintiffs, at 67-73 (June 29, 2015) (D.E.
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USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 2 of 6
1560037). An administrative record must represent the whole of the record before the agency at the time of the challenged agency action. Id. at 68. The records below, however, were clearly incomplete because the government failed to include key, relevant documents—documents that evidently were before the agencies at the time the Net Worth Sweep was executed. Id. at 68-71.
Although Perry Capital does not currently have access to the documents appended to Fairholme’s motion for judicial notice, it is highly likely that those documents serve as further proof that the administrative records were incomplete and that the district court, at a minimum, should have ordered supplementation. The documents may also serve to undermine or refute entirely the government’s purported rationales for the Net Worth Sweep, and thus support Perry Capital’s arguments on the merits of this appeal. Perry Capital therefore generally supports Fairholme’s request for this Court to take judicial notice of those documents produced by the government related to the Net Worth Sweep.
Perry Capital currently lacks access to the documents attached to Fairholme’s motion because the documents are subject to a protective order issued by the Court of Federal Claims. See Fairholme Funds, Inc. v. United States, No. 13-465C (Fed. Cl.) (D.E. 217). Although Circuit Rule 47.1(d)(2) requires that “[e]ach party” to a case be served with copies of material filed under seal, that requirement applies only “if the party is entitled to receive the material under seal.”
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USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 3 of 6
Circuit Rule 47.1(d)(2). Because Perry Capital is not yet “entitled” to access the materials under the protective order issued by the Court of Federal Claims, Fairholme has not provided Perry Capital with those materials. Thus, only the parties to this appeal that are also parties to the Court of Federal Claims action— including the government—currently have access to Fairholme’s motion and the attached materials.
It is extremely rare and unusual for a single party to a litigation to be barred from viewing documents filed in its case. Cf. Abourezk v. Reagan, 785 F.2d 1043, 1060-61 (D.C. Cir. 1986) (explaining the limited circumstances under which courts may “dispose of the merits of a case on the basis of ex parte, in camera submissions”), aff’d, 484 U.S. 1 (1987); U.S. ex rel. Boisjoly v. Morton Thiokol, Inc., CIV. A. No. 87-0209, 1987 WL 10232, at *4 (D.D.C. Apr. 15, 1987) (lifting seal on documents to allow a litigating party access to documents). Not only is Perry Capital barred from reviewing the motion filed under seal and the attached documents, but Perry Capital also will likely be unable to review the government’s response to that motion or any further briefing containing sealed materials. In addition, it is significant that this Court has suspended the merits briefing schedule pending resolution of the motion for judicial notice, demonstrating that the document issue is affecting Perry Capital’s rights in this appeal.

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USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 4 of 6
For this Court’s information, Perry Capital has filed a motion before the Court of Federal Claims requesting that Perry Capital’s counsel be granted access to the documents filed in this Court, and counsel has agreed to be bound by the protective order. That motion is currently pending.

Dated: August 13, 2015
Respectfully submitted,
/s/ Theodore B. Olson
Theodore B. Olson
Douglas R. Cox
Matthew D. McGill
GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036
Telephone: [phone] Facsimile: 202.467.0539
Janet M. Weiss
GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue
New York, N.Y. 10166
Telephone: [phone]
Facsimile: 212.351.5234
Counsel for Perry Capital LLC
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USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 5 of 6
CERTIFICATE OF SERVICE
I certify that on this 13th day of August, 2015, I caused the foregoing to be filed with the Clerk of the United States Court of Appeals for the D.C. Circuit using the appellate CM/ECF system. Service was accomplished on the following persons by the appellate CM/ECF system:
Mark B. Stern
Alisa B. Klein
Abby Christine Wright
U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Telephone: [phone] [e-mail] [e-mail] [e-mail]
Counsel for the U.S. Department of the Treasury and Secretary Jacob J. Lew
Charles J. Cooper
Brian W. Barnes
Howard Curtis Nielson, Jr
Peter A. Patterson
David H. Thompson
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, N.W. Washington, D.C. 20036 Telephone: [phone] Facsimile: 202.220.9601
Counsel for Fairholme Funds, et al.
Howard N. Cayne
Asim Varma
David B. Bergman
ARNOLD & PORTER LLP 555 12th Street, N.W. Washington, D.C. 20004 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail]
Counsel for Defendants Federal Housing Finance Agency and Director Melvin L. Watt
USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 6 of 6
Hamish P.M. Hume
BOISE, SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue, N.W.,
Suite 800
Washington, D.C. 20015
Telephone: [phone]
Facsimile: 202-237-6131 [e-mail]
David L. Wales
BERNSTEIN LITOWITZ BERGER & GROSSMAN LLP
1285 Avenue of the Americas
New York, N.Y. 10019
Telephone: [phone]
Facsimile: 212-554-1444
Blair A. Nicholas
David R. Kaplan
BERNSTEIN LITOWITZ BERGER & GROSSMAN LLP
12481 High Bluff Drive, Suite 300
San Diego, CA 92130
Telephone: [phone]
Facsimile: 858-793-0323 [e-mail] [e-mail]
Jay W. Eisenhofer
GRANT & EISENHOFER, PA 485 Lexington Avenue
New York, N.Y. 10017 Telephone: [phone] Facsimile: 646-722-8501 [e-mail]
Geoffrey C. Jarvis
Michael J. Barr
GRANT & EISENHOFER, PA 123 Justison Street Willmington, DE 19801 Telephone: [phone] Facsimile: 302-622-7100 [e-mail] [e-mail]
Lee D. Rudy
Eric L. Zagar
Matthew A. Goldstein
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: [phone]
Facsimile: 610-667-7056
Interim Co-Lead Class Counsel for Class Plaintiffs