Replies to post #233275 on Fannie Mae-No Politics (FNMA)

[Patswil]

“FHFA cannot evade judicial review simply by invoking its authority as conservator.”
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With respect to defendant’s claim that the court lacks the authority to affect the exercise
of the FHFA’s powers or functions, the court agrees with the case law of the United States Court
of Appeals for the Ninth Circuit, which states that the “FHFA cannot evade judicial review
. . . simply by invoking its authority as conservator.” County of Sonoma v. Fed. Hous. Fin.
Agency, 710 F.3d 987, 994 (9th Cir. 2013); Leon County v. Fed. Hous. Fin. Agency, 700 F.3d
1273, 1278 (11th Cir. 2012) (“The FHFA cannot evade judicial scrutiny by merely labeling its
actions with a conservator stamp.”). Thus, rather than turning a blind eye to a case and
immediately dismissing it from its docket merely because the case concerns the FHFA, the
proper approach is for a court to examine the factual underpinnings and legal contentions
presented by the complaint, in order to determine whether the exercise of its jurisdiction is
proper. County of Sonoma, 710 F.3d at 994 (“Analysis of any challenged action is necessary to
determine whether the action falls within the broad, but not infinite, conservator authority.”).
Indeed, “Congress did not intend that the nature of the FHFA’s actions would be determined
based upon the FHFA’s self-declarations . . . .” Leon County, 700 F.3d at 1278. For purposes of
the instant motion, there is no request by plaintiffs that would potentially restrain or affect the
exercise of powers or functions of the FHFA as conservator. Consequently, blanket assertions
concerning the court’s ability to conduct these proceedings, especially as they pertain to a
discovery matter related to the question of jurisdiction, hold no merit.

The court next turns to defendant’s arguments regarding the deliberative process
privilege, a subset of the executive privilege, which protects “documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S.