I find this part interesting….(pages 47-49)
THE COURT: Thank you. And it looks like there’s
one more note coming from Mr. Drisser (phonetic).
I will say this, given everything that’s been said
today -- of course I haven’t heard any evidence as yet, but
just based upon counsel’s arguments, what I’ve heard so far
tends to suggest that FHFA is -- I don’t want to say joined
at the hip with Treasury -- but it doesn’t sound like they’re
necessarily an independent entity that’s just not -- has no
connection to the Government. But having said that, I’m
keenly sensitive to the deliberative part, because that
would, then, clearly bring into play legitimately the
deliberative process. And I am very sensitive to the terrible
ramifications that will flow from the disclosure of sensitive
documents. So, I’m very sensitive to that, and that’s
because I, again, just from the arguments that have been
made, it certainly tends to suggest that -- haven’t taken
evidence yet -- but that FHFA is, in fact -- could be
construed as a Executive agency for purposes of making the
United States liable -- if, in fact, a taking has occurred.
But, you know, I haven’t made a decision on that.
I’m just saying based upon counsel’s -- Government counsel’s
arguments that have been tremendous advocacy on the part of
the Government, but, again, if you’re saying that FHFA is
dealing directly and is taking guidance from or working hand
and glove with Treasury, that -- and they’re helping --
assisting with setting policy, that tends to show that they
are, in fact, an entity of the United States. And I see Mr.
Drisser getting out his pen, so there may be two, which is
perfectly fine. I’ll let you finish writing your note to
your co-counsel, and then you can ask me whatever you like.
MS. HOSFORD: Your Honor, in response to the
statement you just made, we would just make the point that
FHFA does not act in just one capacity. There’s FHFA acting
as regulator, and then there is FHFA acting as a conservator.
We have argued that FHFA acting as the conservator is not the
United States, and there is ample case law to support that
position, but we do not -- we’re not imply -- we don’t mean
to imply or state that FHFA never acts as the United States.
THE COURT: I really -- thank you for that
clarification, because that certainly wasn’t coming through.
And I understand the distinction. I don’t know if it will
necessarily carry the day. I haven’t decided it yet. But
thank you, because that point was not coming through at all.
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