"Accordingly, continuing to implement
the third amendment was a decision that each confirmed
Director has made since 2012, and because confirmed Di-
rectors chose to continue implementing the third amend-
ment while insulated from plenary Presidential control, the
survival of the shareholders’ constitutional claim does not
depend on the answer to the question whether the Recovery
Act restricted the removal of an Acting Director."
"For all these reasons, we hold that the Recovery Act’s re-
moval restriction does not extend to an Acting Director, and
we now proceed to the merits of the shareholders’ constitu-
tional argument."
"Having found that the removal restriction violates the
Constitution, we turn to the shareholders’ request for relief.
And because the shareholders no longer have a live claim
for prospective relief, see supra, at 19, the only remaining
remedial question concerns retrospective relief."
"We
therefore see no reason to hold that the third amendment
must be completely undone.
That does not necessarily mean, however, that the share-
holders have no entitlement to retrospective relief. Alt-
hough an unconstitutional provision is never really part of
the body of governing law (because the Constitution auto-
matically displaces any conflicting statutory provision from
the moment of the provision’s enactment), it is still possible
for an unconstitutional provision to inflict compensable
harm. And the possibility that the unconstitutional re-
striction on the President’s power to remove a Director of
the FHFA could have such an effect cannot be ruled out.
Suppose, for example, that the President had attempted to
remove a Director but was prevented from doing so by a
lower court decision holding that he did not have “cause” for
removal. Or suppose that the President had made a public
statement expressing displeasure with actions taken by a
Director and had asserted that he would remove the Direc-
tor if the statute did not stand in the way. In those situa-
tions, the statutory provision would clearly cause harm.
In the present case, the situation is less clear-cut, but the
shareholders nevertheless claim that the unconstitutional
removal provision inflicted harm. Were it not for that pro-
vision, they suggest, the President might have replaced one
of the confirmed Directors who supervised the implementa-
tion of the third amendment, or a confirmed Director might have altered his behavior in a way that would have bene-
fited the shareholders.
The federal parties dispute the possibility that the uncon-
stitutional removal restriction caused any such harm. They
argue that, irrespective of the President’s power to remove
the FHFA Director, he “retained the power to supervise the
[Third] Amendment’s adoption . . . because FHFA’s coun-
terparty to the Amendment was Treasury—an executive
department led by a Secretary subject to removal at will by
the President.” Reply Brief for Federal Parties 43. The par-
ties’ arguments should be resolved in the first instance by
the lower courts.26"
"26The lower courts may also consider all issues related to the federal
parties’ argument that the doctrine of laches precludes any relief. The
federal parties argue that Treasury was prejudiced by the shareholders’
delay in filing suit because, for some time after the third amendment was
adopted, there was a chance that it would benefit the shareholders. Ac-
cording to the federal parties, the shareholders waited to file suit until it
became apparent that the third amendment would not have that effect.
The shareholders respond that laches is inapplicable because they filed
their complaint within the time allowed by the statute of limitations, and
they argue that their delay did not cause prejudice because it was “math-
ematically impossible” for Treasury to make less money under the Third
Amendment than under the prior regime. Reply Brief for Collins et al.
4–5 (emphasis deleted). We decline to decide this fact-bound question in
the first instance."
