Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:17-cv-00497—Paul Lewis Maloney, District Judge.
Argued: June 9, 2022
Decided and Filed: October 4, 2022
Before: GIBBONS, COOK, and THAPAR, Circuit Judges.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Shareholders in Fannie Mae and Freddie Mac
sued the Federal Housing Finance Agency (“FHFA”), which is the companies’ conservator, and
the Treasury Department. This lawsuit, and many others like it, seeks to nullify an agreement
between FHFA and Treasury that “secured unlimited funding for Fannie and Freddie from
Treasury in exchange for almost all of Fannie’s and Freddie’s future profits.” Rop v. Fed. Hous.
Fin. Agency, 485 F. Supp. 3d 900, 910 (W.D. Mich. 2020). Shareholders allege that this
agreement, known as the third amendment, was authorized by a government official—the Acting
Director of FHFA—who was serving in violation of the Appointments Clause. Shareholders
also claim that they are entitled to retrospective relief because the Supreme Court held in Collins
v. Yellen, 141 S. Ct. 1761 (2021), that FHFA’s enabling statute contained an unconstitutional
removal restriction. The district court dismissed shareholders’ complaint, finding that the
Appointments Clause claim presented a nonjusticiable political question and that the removal
restriction claim was not connected to shareholders’ alleged injuries. We reverse and consider
the Appointments Clause claim on the merits, holding that the Acting Director was not serving in
violation of the Constitution when he signed the third amendment. We remand to the district
court to determine whether, considering Collins, the unconstitutional removal restriction inflicted
harm on shareholders. |