Hi Clarence,
It is quite a confusing situation to wrap one’s head around. There are 3 laws, and 3 potential roles for a Director of FHFA to play. First the Charter act privatized the former gov agencies and created FNMA. The safety and soundness act of 1992 established the framework for regulating the GSEs. Finally HERA came along and modified both the charter act and the safety and soundness act. HERA replaced the original regulator with the new “independent agency” FHFA. The Director of FHFA priority role is to regulate the GSEs based on the requirements enumerated in the statutes. This role of the Director establishes regulations required of him such as the Capitol rule, and new products rule. The Director in this role also issues reports and is supposed to provide in writing, permission for the GSEs to make a capitol distribution from the retained earnings account if the retained earnings account is below the statutory minimum. Thus all of these requirements of the director must follow the Administrative Procedures Act. In other words, the Directors role as regulator is Administrative and subject to potential APA claims. HERA also allows the Director in the regulator role to appoint himself as either a receiver or a conservator of the GSEs. The role of receiver is subject to the enumerated actions in the statutes to achieve the end result of liquefying the GSE. Therefore there is no guesswork to achieve the result. The law states exactly what a receiver is allowed to do. Finally, HERA allows the Director as Conservator to take any action necessary to put the GSE in a sound and solvent position and benefit the FHFA itself. Unlike a receivership, the final result of Conservatorship can’t be guaranteed by statute. It is necessary therefore to provide the Conservator the assumption of correctness in the actions that he takes to achieve the goals of rehabilitation of the GSEs and benefit the FHFA. Congress includes the anti-injunction clause only for the actions taken by the Director acting as Conservator. All of the courts have ruled that only when the Director acting as Conservator acts ultra-vires will a court step in. They have ruled that the Conservator has not acted ultra-vires. To date there have been no legal claims against the Director as regulator for violations of other laws.
AI
