Fannie Mae (FNMA)

[Robert from yahoo bd]

The Supreme Court’s opinion tees up a
serious question about whether this combination of the power of the purse with the power of the
sword violates the Appropriations Clause, and Plaintiffs were entirely within their rights to amend
the complaint to bring this issue to the fore. Consideration of Plaintiffs’ Appropriations Clause claim thus falls comfortably within the scope of the Supreme Court’s mandate, and in any event
the Supreme Court’s decision constitutes “an intervening change of law by a controlling authority”
that gives this Court greater flexibility to consider new theories on remand. See United States v.
McCrimmon, 443 F.3d 454, 460 (5th Cir. 2006).

FHFA is on no firmer footing when it argues that the Appropriations Clause claims are
time-barred. The original complaint was filed within the applicable six-year statute of limitations,
see 28 U.S.C. § 2401(a), and a new claim asserted in an amended complaint relates back if it “arose
out of the conduct, transaction or occurrence set out . . . in the original pleading.” Fed. R. Civ. P.
15(c)(1)(B). Plaintiffs’ Appropriations Clause claims arise out of FHFA’s adoption and
implementation of the Third Amendment—the same agency action that the original complaint
challenged. It makes no difference to the relation back analysis that Plaintiffs have refined their
legal theories to account for the Supreme Court’s decision. See FDIC v. Bennett, 898 F.2d 477,
480 (5th Cir. 1990) (“The fact that an amendment changes the legal theory on which the action
initially was brought is of no consequence if the factual situation upon which the action depends
remains the same and has been brought to defendant’s attention by the original pleading.”).

Nice find, FOF!