Fannie Mae (FNMA)

[clarencebeaks21]

The assertion that “4617f bars courts from questioning the actions of a conservator” is a false statement.

As background, 4617f is the so-called anti-injunction clause.

I suggest reading Collins v Yellen, particularly published pages 12-15 in Justice Alito’s opinion. Alito expressly states that “where the FHFA does not exercise but instead exceeds those powers or functions, the anti-injunction clause imposes no restrictions. With that understanding in mind, ***we must decide whether the FHFA was exercising its powers or functions as a conservator***” (emphasis added).

After analyzing statutory construction and reviewing the Agency’s actions, Alito concludes in the last sentence of page 14 that “the FHFA could have reasonably concluded that (the Third Amendment) was in the best interests of the … public. The Recovery Act therefore authorized the Agency to choose this option.” So, not only is your assertion false, its converse is true:

Courts first are duty-bound to decide whether the FHFA exceeded its authorized powers or functions as conservator. Only if this review (i.e., in your words—questioning the conservator) shows that FHFA did not exceed its powers or functions, is 4617f then triggered.

Whether or not some lower courts had the correct understanding before Collins, the approach in Collins is the law. We would all be wise to understand it.

Link: https://www.supremecourt.gov/opinions/20pdf/19-422_k537.pdf