Robert, you said
“I'm pretty sure that the SCOTUS said that the anti-injunction and succession clauses DO NOT APPLY TO CONSTITUTIONAL VIOLATIONS SUFFERED BY THE SHAREHOLDERS. That seems to naturally include the 5th Amendment Takings Clause.”
I disagree. In the Separation of Powers briefs of Collins, the Amicus’ for the US Gov had argued that HERA transferred *all rights* to Conservator. This was IMO a ‘fat pitch’ for Alito (easy to refute). Alito counters that the Amicus’ assertion cannot be facially true, because HERA clearly transfers only shareholder rights and interests “with respect to the company”.
But Alito does not say HERA does not bar any Constitutional suit. Rather he refutes (*narrowly*) by showing *one* right that lies outside “with respect to a company” because it is shared by shareholders and non-shareholders alike (i.e., a generalized grievance to vindicate a public interest: separation of powers).
But he goes no further. Why?
(1) To avoid a Constitutional conflict he must read HERA narrowly, and, apply HERA strictly to the case facts/dispute.
(2) For judicial economy. He already knew the APA claim would be barred at the back door (Anti-Injunction).
(3) *IMO* also because the APA Claim hung by the Direct/Deriv outcome—a hornets’ nest requiring muddy state law.
(4) Alito also knows that other GSE Constitutional claims exist out there. And he knows that while the Fifth Amendment guarantees a right to $ for private property taken for a public use, the Constitution does *not* (emphasis) guarantee access to a court to sue on such grounds. The APA Claim invariably would affect these claims.
(3) By avoiding further HERA analysis, in my mind, Alito has left a door open for a Due Process claim. Due process requires notice & hearing. If Congress entirely bars the door to Courts where an Agency can act with indefinite, near-impunity power with respect to private property, it raises Due Process issues. HERA bars Derivative claims (IMO), and nearly all such claims in fact have been so barred. But this is also why, analyzing the NWS, the Rop court ‘pulled from its own hat— a Conflict of Interest exception —to specifically avoid a Due Process problem. And that was BEFORE Collins found FHFA to have super powers.
Final Thought:
In the 8/4 Oral, a judge lobs this same issue (another ‘fat pitch’) to a Ps atty — I think it was Arrowood’s guy—asking the Atty how the Rop court resolved the Deriv question. The appellate judge really teed it up … and yet the Ps atty still sliced it, pretty badly. The atty recovered somewhat but mostly missed the ‘new fairway’ he was being steered toward. Again…IMO.
-C. Beaks III, esq
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