Replies to post #710885 on Fannie Mae-No Politics (FNMA)

[Robert from yahoo bd]

So Clarence, care to speculate on whether or not the djt letter is enough, standing on its own for at least 9 of the EnBanc Judges to issue an injunction on the Net Worth Sweep and remand for trial and shift the burden of proof onto Defendants?

The 5th Circuit may be the best judicial forum to get such an outcome...

[ano]

The difference between the 5th circuit and the SCOTUS is everything that the SCOTUS says must be considered law

Now to make sense of it

Free Enterprise Fund v. PCAOB (2009)
Double-layer, the PCAOB is an independent agency within the SEC
Seila Law v. CFPB (2020)
Double-layer, the CFPB is an independent agency within the Federal Reserve System

Then it is also important what question is in front of the judge(s) and what the lawsuit relief is in front of the 5th circuit,
Collins has 4 counts

In Count I, they allege the Administrative Procedure Act (APA),
5 U.S.C. § 706(2)(C), (D), affords relief because FHFA exceeded
its statutory conservator authority under 12 U.S.C.
§ 4617(b)(2)(D).
• In Count II, they allege the APA, 5 U.S.C. § 706(2)(C), (D),
affords relief because Treasury exceeded its securities-purchase
authority under 12 U.S.C. §§ 1455(l), 1719(g). Specifically, they
allege that Treasury purchased securities after the sunset
period, failed to make the required “[e]mergency
determination[s],” and disregarded statutory
“[c]onsiderations.”
• In Count III, they allege the APA, 5 U.S.C. § 706(2)(A), affords
relief because Treasury’s adoption of the net worth sweep was
arbitrary and capricious.
• In Count IV, they allege FHFA violates Article II, §§ 1 and 3 of
the Constitution because, among other things, it is headed by a
single Director removable only for cause.

The District Court (Judge Nancy Atlas) ruled:
1) Based on the foregoing, particularly the District of Columbia Circuit’s well-reasoned the decision in Perry Capital, the Court grants Defendants’ Motions to Dismiss the APA claims as precluded by § 4617(f). Additionally,
2) the Court concludes that the removal for cause provision applicable to the FHFA Director is not unconstitutional.

The 5th circuit ruling was :
1) We REVERSE the judgment dismissing Count I and REMAND that
claim for further proceedings
2) The court REVERSES the judgment as to Count IV and REMANDS
that claim for entry of judgment that the “for cause” removal limitation in 12 U.S.C. § 4512(b)(2) is unconstitutional

Then the SCOTUS said:
1) Held:1. The shareholders’ statutory claim must be dismissed. The “anti injunction clause” of the Recovery Act provides that unless review is specifically authorized by one of its provisions or is requested by the Director, “no court may take any action to restrain or affect the exercise of powers or functions of the Agency as a conservator or a receiver.” §4617(f). Where, as here, the FHFA’s challenged actions did not exceed its “powers or functions” “as a conservator,” relief is prohibited
2) 2. The Recovery Act’s restriction on the President’s power to remove the FHFA Director, 12 U. S. C. §4512(b)(2), is unconstitutional.

Then 12 U.S.C. § 4512(b)(2) Term “for cause” in the new law is unconstitutional and can no longer be questioned
On the other hand, it now becomes super complicated as now in similar other lawsuits things changed permanently too (Bhatti/Rop/Wazee) in these lawsuits additional questions are brought to daylight:

Declaring that FHFA's structure violates the separation of powers, that
FHFA may no longer operate as an independent agency, and striking down
the provisions of HERA that purport to make FHFA independent from the
President and unaccountable to any of the three Branches of the federal
government, including 12 U.S.C. §§ 4511(a), 4512(b)(2), 4617(a)(7), and
4617(f);
12 U.S.C. § 4511(a) Establishment “independent”
12 U.S.C. § 4512(b)(2) Term “for cause”
12 U.S.C. § 4617(a)(7) Agency not subject to any other Federal agency
12 U.S.C. § 4617(f) Limitation on court action (anti-injunction clause)

Then the above question is brought in Bhatti, but because of the SCOTUS ruling Bhatti changed their complaint to “put plaintiffs in a condition they would be in absent the violating provision 4512(b)(2)”, in Rop the question is 4511(a), 4512(b)(2) and 4617(a)(7) and Wazee has the same as Rop but Added 4617(f)

Now the 5th circuit must decide what to do with the “for cause” provision in Collins. say they instruct Judge atlas to sever the provision, the Rop and Wazee case instantly won their case as now the FHFA is headed by the president while being “independent” but the added pressure from Bhatti deleting 4617(f) on the guidelines of the SCOTUS opinion in Count I makes that whatever the 5th circuit comes with will be unconstitutional in the other lawsuits (Bhatti/Rop/Wazee)

Then apart from the fact that the SCOTUS ruled the structure is unconstitutional, another problem occurs, if the president controls the director of the FHFA absent 4512(b)(2), it cannot forbid Judicial review on his actions in 4617(f) but if it cannot forbid judicial review the APA could not have failed in SCOTUS, as the SCOTUS said relief is prohibited by HERA 4617(f)

This can be compressed to following problems in Collins/Bhatti/Rop/Wazee
12 U.S.C. § 4512(b)(2) violates 44 U.S.C. § 3502(b)(2) “board”
12 U.S.C. § 4512(b)(2) violates 12 U.S.C. § 4511(a) “independent”
12 U.S.C. § 4512(b)(2) violates 12 U.S. Code § 4516(f)(2) “Not Government funds”
12 U.S.C. § 4512(b)(2) violates 12 U.S.C. § 4617(a)(7) “FHFA not subject to any agency”
12 U.S.C. § 4512(b)(2) violates 12 U.S.C. § 4617(f) “no judicial review possible”

The problems plaintiffs in these cases identified are of course limited, but there are multiple other problems the FHFA faces with other provisions and authority, cutting corners however is not possible