ROLG on real TH website writes that since DC circuit ruling conflicts with 11th circuit and 9th circuit ruling. So SCOTUS has to take up the case and clarify on matter of law to resolve Circuit Split.
Here, there is 2:1 circuit split as well 1:2 DC circuit panel split in favor of plaintiff. This is most favorable to plaintiffs. Besides Justices will also be aware of Constitutional challenges in lower courts and administration's new GSE policies along with GOP/RNC policies.
Perry_Capital_Certiorari_Petition focusses on this as one of the argument. "The D.C. Circuit’s Decision Conflicts with Eleventh And Ninth Circuit Law And Gives Federal Regulators License To Loot Private Companies Under The Guise Of “Conservatorship.”
9th/11th circuit ruled that 4617(f) does not bar judicial review of unlawful decisions by the FHFA as a regulator or conservator. But in case of DC circuit, it ruled that 4617(f) bars judicial review of any FHFA decisions as long it comes with the stamp of conservator.
Page 8: "The FHFA cannot evade judicial scrutiny by merely labeling its actions with a conservator stamp. Congress did not intend that the nature of the FHFA’s actions would be determined based upon the FHFA’s self-declarations because the distinction between regulator and conservator would be one without a meaning or effect. Moreover, “if the FHFA were to act beyond statutory or constitutional bounds in a manner that adversely impacted the rights of others, §4617(f) would not bar judicial oversight or review of its actions.”
9th circuit Ruling: unanimous ruling http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/19/12-16986%20web_revised.pdf Page 12: "If the PACE directive falls within FHFA’s conservator powers, it is insulated from review and this case must be dismissed. Conversely, the anti-judicial review provision is inapplicable when FHFA acts beyond the scope of its conservator power."
Page:16 "In concluding that the PACE directive is a lawful exercise of FHFA’s power as conservator of the Enterprises, we recognize that FHFA’s power has limits. As FHFA acknowledges, HERA distinguishes between FHFA’s authority as regulator and as conservator, and FHFA cannot evade judicial review and the APA’s requirements for rule making simply by invoking its authority as conservator. Analysis of any challenged action is necessary to determine whether the action falls within the broad, but not infinite, conservator authority."
D.C. Circuit Majority Ruling: FHFA Conservator can take any actions they wish, apart from formal liquidation, without judicial oversight.
D.C. Circuit Majority Ruling: Judge Brown : The majority’s contrary decision, Judge Brown observed, is “dangerously far-reaching” as it permits FHFA and Treasury to “take any action they wish, apart from formal liquidation, without judicial oversight.”
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