donotunderstand,
no, it was not set aside. I got happy too quickly and misled others.
If 44cents is correct, and I think he is, these filings by plaintiff oppose dismissal by the government, request an oral argument to their motion, and request the Court "to enter summary judgment in favor of plaintiff to “hold unlawful and set aside the sweep amendment".
As part of this, plaintiff offers an exit/resolution in the "proposed" text. In the cross motion for summary judgment Ted Olson explains his reasons. In the memorandum (opposing the dismissal), he reaches the same conclusion but offers another set of arguments.
All this is sitting on the judge's desk. We haven't heard anything from him. He is one step behind Sweeney.
I have found this to be important.
One argument the government uses to stop the lawsuits is that “no court may take any action to restrain or affect the exercise of powers or functions of [FHFA] as a conservator or a receiver.” 12 U.S.C. § 4617(f).
Ted Olson offers a counter-argument:
Rather than accept binding circuit precedent, Treasury and FHFA grab hold of Gross’s “clearly outside” language to argue, in effect, that courts are powerless to prevent FHFA from engaging in unlawful conduct, so long as FHFA’s conduct is not too obviously unlawful. See Treasury Discovery Opp. 13-14; see also FHFA Discovery Opp. 19-20. That is not the law. Indeed, the Supreme Court recently rejected any distinction between unlawful agency conduct and conduct beyond the scope of the agency’s powers: The “power to act and how [agencies] are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires.”
This demolishes one important argument the government had to send us to the graveyard.
Unlike Fairholme's lawsuit which requires discovery to dig out the government/fhfa assessment of the companies future profitability/earnings projections and potential ending of conservatorship, here Perry/Ted Olson argues simply that the 3rd amendment has been illegal and needs to be vacated.
Can the judge rule partially, in 2 steps? Denying first the motion to dismiss by Treasury and FHFA. Later on, on the legality of the sweep.
