Relist Watch: The final countdown

SCOTUSblog reviews the relists at October Term 2019’s final conference.

Before the justices leave town for the summer (or in this age of lockdown, stay home but change out of their “work” sweatpants into their “casual” sweatpants), they have one last impromptu conference to consider — and usually dispose of — all of the cases remaining after their last scheduled conference. Yesterday, the little yellow square on the Supreme Court’s calendar over July 8 signifying an “opinion day” turned into a green-slash-yellow square indicating that yesterday was both a conference and an opinion day.

First, the new relists. Doppelgangers Mnuchin v. Collins, 19-563, and Collins v. Mnuchin, 19-422, involve the Federal Housing Finance Agency. The FHFA acts as conservator to Fannie Mae and Freddie Mac, which provide funds to the mortgage lending industry by buying home loans from private lenders and then bundling the mortgages into securities and guaranteeing them. The FHFA is headed by a single director who can only be removed for cause. The U.S. Court of Appeals for the 5th Circuit held en banc that such a removal restriction unconstitutionally infringes the president’s authority to take care that the laws are faithfully executed, but held that the restriction was severable and thus did not invalidate the legislation creating the FHFA. Petitioners Patrick Collins, Marcus Liotta and William Hitchcock are shareholders of Fannie and Freddie; they argue that although the 5th Circuit was correct that the FHFA’s structure violates separation of powers principles, it got the remedy wrong, and that courts must set aside action that the agency took when it was unconstitutionally structured. The Supreme Court’s recent decision in Seila Law LLC v. Consumer Financial Protection Bureau invalidated a removal restriction on another agency’s lone director, and held that removal restriction to be severable. The Supreme Court clearly has been holding both cases for Seila, and now must decide how to dispose of them.

The course it will take is affected by the fact that the FHFA separately petitioned seeking review of another aspect of the same 5th Circuit en banc holding, which invalidated the agency’s financing arrangement with the Department of the Treasury. Under that arrangement, the Treasury agreed to extend to the FHFA billions of dollars of loans in exchange for a variable quarterly dividend equal to the net worth of Fannie and Freddie, minus a specified capital reserve — a mechanism sometimes called the “net worth sweep.” The FHFA argues that its governing statute’s anti-injunction clause, which precludes courts from taking any action that would “restrain or affect the exercise of powers or functions of the Agency as a conservator,” precludes a federal court from setting aside that financing mechanism. The FHFA also argues that the same statute’s succession clause — under which the FHFA, as conservator, inherits the right of Fannie’s and Freddies’ shareholders to bring derivative actions on behalf of the enterprises — precludes the shareholders from challenging the financing mechanism. The agency urged the court to deny the Collins petition because of differences in the structure of the CFPB and the FHFA and differences in the actions taken by the agencies. The FHFA also maintained that “regardless of whether the Court grants, holds, or denies the [Collins] petition, the statutory issues presented in this petition warrant immediate review.” We should know before the end of the week whether the Supreme Court agrees.

The returning relists are already familiar to Relist Watch’s regular readers — both of them.

There are also four cases involving the Federal Trade Commission’s authority to demand monetary relief. At the solicitor general’s urging, the court appears to have held those for the recently decided Liu v. Securities and Exchange Commission, which involved a related question, but now the court needs to decide what further action is warranted. The private petitioners have filed supplemental briefs arguing that the decision in Liu “only increases the urgency” for the court to take the case and resolve the circuit split regarding the FTC’s authority. They argue that Liu did “not address, much less resolve the question presented” in these cases, “which raise[] a different question under a different statutory scheme.” The private respondent that prevailed below against the FTC has filed a supplemental brief arguing that Liu shows that the outcome below was correct. Again, we’ll see soon who the court agrees with.

And that’s it for October Term 2019. Have a good summer and stay safe! 

New Relists

Mnuchin v. Collins, 19-563
Issues: (1) Whether the statute’s anti-injunction clause, which precludes courts from taking any action that would “restrain or affect the exercise of powers or functions of the Agency as a conservator,” 12 U.S.C. 4617(f), precludes a federal court from setting aside the Third Amendment. 2. Whether the statute’s succession clause—under which FHFA, as conservator, inherits the shareholders’ rights to bring derivative actions on behalf of the enterprises—precludes the shareholders from challenging the Third Amendment.
(relisted after the July 1 conference)

Collins v. Mnuchin, 19-422
Issues: (1) Whether the Federal Housing Finance Agency’s structure violates the separation of powers; and (2) whether the courts must set aside a final agency action that FHFA took when it was unconstitutionally structured and strike down the statutory provisions that make FHFA independent.
(relisted after the July 1 conference)

Returning Relists

Publishers Business Services, Inc. v. Federal Trade Commission, 19-507
Issues: (1) Whether a district court can award monetary relief under Section 13(b) of the Federal Trade Commission Act, consistent with separation of powers principles; and (2) whether a monetary disgorgement award under Section 13(b) of the FTC Act is a penalty and therefore outside a district court’s inherent equity powers.
(relisted after the June 25 and July 1 conferences)

AMG Capital Management, LLC v. Federal Trade Commission, 19-508
Issue: Whether Section 13(b) of the Federal Trade Commission Act, by authorizing “injunction[s],” also authorizes the Federal Trade Commission to demand monetary relief such as restitution—and if so, the scope of the limits or requirements for such relief.
(relisted after the June 25 and July 1 conferences)

Federal Trade Commission v. Credit Bureau Center, LLC, 19-825
Issue: Whether Section 13(b) of the Federal Trade Commission Act authorizes district courts to enter an injunction that orders the return of unlawfully obtained funds.
(relisted after the June 25 and July 1 conferences)

Credit Bureau Center, LLC v. Federal Trade Commission, 19-914
Issue: Whether the second proviso of Section 13(b) of the Federal Trade Commission Act, providing that the Federal Trade Commission “may seek” a permanent injunction, is an independent grant of authority to “file suit” seeking implied consumer redress remedies circumventing the elaborate enforcement scheme set by Congress.
(relisted after the June 25 and July 1 conferences)