Opinion and order in Fairholme lawsuit, Once again Judge Sweeney reminds the government attorneys that the rule of law still is alive in the USA contrary to what they may believe. I believe this is the news you were waiting for? I will be adding to this post throughout the night. PDF’s attached. Keep the Faith!

In the United States Court of Federal Claims
No. 13-465 C
(Filed: July 16, 2014)

“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. ”


“Here, defendant has not provided a privilege log explaining why documents identified as
responsive to plaintiffs’ discovery requests would be protected. Indeed, defendant admits that
even it has not reviewed some of them, and yet claims that the documents are privileged. See id.
at 135 (“the party seeking protection must state with particularity what information is subject to
the privilege [and] the information or documents sought to be shielded must be identified and
described” (internal citations and quotation marks omitted)). Overall, defendant advances
general claims concerning the sensitive nature of the documents, and the adverse consequences
that would result from divulging them. Without more detail regarding the content of the
documents, or the opportunity to review them, the court cannot make a finding that they fall
under the privilege. Id. (“[A] blanket approach to asserting the privilege is unacceptable and is
itself grounds for denying invocation of the privilege.”) (citation omitted). In essence, defendant
asserts that the court should merely take its word that the documents—some of which defendant,
itself, has not reviewed—are privileged. This suggestion is contrary to law. However, even as it
is difficult to evaluate the likelihood of the fallout from disclosure that defendant describes, out
of an abundance of caution, the court will exercise care in attempting to avoid the dire
consequences that defendant claims will occur. Accordingly, as outlined in the June 19, 2014
hearing, the court has fashioned a solution to balance the parties’ competing needs, and to
comply with the dictates of the deliberative process privilege”

7:16:14 Protective order Fairholme lawsuit

7:16:14 OPINION & ORDER 1Fairholme case 2