The Court agrees with FHFA that the non-delegation doctrine is not implicated in this case, because FHFA was not exercising governmental power when it agreed to the Third Amendment. See Herron v. Fannie Mae , 861 F.3d 160, 169 (D.C. Cir. 2017) (stating that, as conservator, FHFA "step[ped] into Fannie Mae's private shoes," "shed[ ] its government character," and "[became] a private party" (citation and quotations omitted; some alterations in original) ); U.S. ex rel. Adams v. Aurora Loan Servs., Inc. , 813 F.3d 1259, 1261 (9th Cir. 2016) (holding that FHFA's conservatorship over Fannie and Freddie did not transform them into governmental entities because the conservatorship "places FHFA in the shoes of Fannie Mae and Freddie Mac, and gives the FHFA their rights and duties, not the other way around"); see also U.S. ex rel. Petras v. Simparel, Inc. , 857 F.3d 497, 502-03 (3d Cir. 2017) ("We conclude that the [Small Business Administration], when acting as a receiver under the circumstances here, was not acting as the Government."); United States v. Beszborn , 21 F.3d 62, 68 (5th Cir. 1994) (rejecting double-jeopardy claim because earlier lawsuit was pursued by the Resolution Trust Corporation "in its private, non-governmental capacity as receiver").
The Third Amendment is simply a contractual arrangement that FHFA entered into on behalf of two private entities-Fannie and Freddie-in its capacity as their conservator. As other courts have noted, "[r]enegotiating dividend agreements, managing heavy debt and other financial obligations, and ensuring ongoing access to vital yet hard-to-come-by capital are quintessential conservatorship tasks ...." Perry Capital LLC v. Mnuchin , 864 F.3d 591, 607 (D.C. Cir. 2017), pets. for cert. denied , ––– U.S. ––––, 138 S.Ct. 978, 200 L.Ed.2d 247 (2018) (Nos. 17-578, 17-580, 17-591). In other words, these are the types of activities that any conservator would typically undertake, not exercises of governmental power.
