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Judicial Watch • Mckinley v Fhfa Cm4sj 12172010

Mckinley v Fhfa Cm4sj 12172010

Mckinley v Fhfa Cm4sj 12172010

Page 1: Mckinley v Fhfa Cm4sj 12172010

Category:General

Number of Pages:18

Date Created:December 17, 2010

Date Uploaded to the Library:February 20, 2014

Tags:conservatorship, Undisputed, freddie, Fannie, numbers, Material, Judgment, Department of the Treasury, summary, motion, AGENCY, defendant, watch, plaintiff, document, records, DOJ, federal, judicial, department, states, district, EPA, ICE, CIA


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THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
VERN McKINLEY,  
Plaintiff,  Civil Action No. 10-cv-01165 (HHK)  
FEDERAL HOUSING FINANCE  
AGENCY,  
Defendant.  

______________________________) 
PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT 
Plaintiff Vern McKinley, counsel and pursuant Rule 56(c) the Federal Rules Civil Procedure, hereby cross-moves for summary judgment against Defendant Federal Housing Finance Agency. grounds therefor, Plaintiff respectfully refers the Court the accompanying Plaintiffs Memorandum Law Opposition Defendant Federal Housing Finance Agencys Motion For Summary Judgment and Support Plaintiffs Cross-Motion for Summary Judgment and Plaintiffs Response Defendants Statement Material Facts Not Dispute and Plaintiffs Statement Material Facts Not Genuine Dispute Support Plaintiffs Cross-Motion for Summary Judgment.    Dated: December 16, 2010 Respectfully submitted, 
/s/ Michael Bekesha Michael Bekesha (D.C. Bar No. 995749) JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, 20024 
(202) 646-5172 
Attorney for Plaintiff THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
VERN McKINLEY,  
Plaintiff,  Civil Action No. 10-cv-01165 (HHK)  
FEDERAL HOUSING FINANCE  
AGENCY,  
Defendant.  

______________________________) 

PLAINTIFFS MEMORANDUM LAW OPPOSITION DEFENDANT FEDERAL HOUSING FINANCE AGENCYS MOTION FOR SUMMARY JUDGMENT AND SUPPORT PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT 
Plaintiff Vern McKinley, counsel and pursuant Rule 56(c) the Federal Rules Civil Procedure, respectfully submits this memorandum law opposition the motion for summary judgment Defendant Federal Housing Finance Agency (FHFA) and support Plaintiffs cross-motion for summary judgment. grounds thereof, Plaintiff states follows: Introduction. July 2008, report prepared Lehman Brothers estimated that the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) might need much $75 billion additional capital avoid financial collapse.1  The stock both Fannie Mae and Freddie Mac fell nearly percent one day.2 address the advanced stage Fannie Maes and Freddie Macs capital problems David Hilzenrath, Shares Fannie Mae, Freddie Mac Plummet: Report Raises Alarm About Firms' Capital, Washington Post, July 2008 (available http://www.washingtonpost.com/wp-dyn/content/article/2008/07/07/AR2008070701487.html). Id.; see also, Henry Paulson, the Brink: Inside the Race Stop the Collapse the Global Financial System, 142 (2010). 
September 2008, the two primary options available the federal government were for FHFA place Fannie Mae and Freddie Mac into either conservatorship receivership.  Conservatorship process designed restore weak financial institution sound financial health while preserving and conserving assets.  Receivership entails liquidation the institution through the sale assets and payment claimants. 
Henry Paulson, Secretary the Department the Treasury, initially concluded that the best option for Fannie Mae and Freddie Mac would have FHFA place them into receivership. This would have allowed for downsizing Fannie Mae and Freddie Mac and for addressing their long-term position the market.  According Secretary Paulson, FHFA ultimately placed Fannie Mae and Freddie Mac into conservatorship because allowed for rapidly implemented time out not unlike Chapter bankruptcy, that Fannie Mae and Freddie Mac could avoid defaulting their debts.3 
Once the decision was made place Fannie Mae and Freddie Mac into conservatorship, Ben Bernanke, Chairman the Board Governors the Federal Reserve System, described the catastrophe that would occur did not take these actions meeting with the boards Fannie Mae and Freddie Mac.4  Yet, this catastrophe scenario has not been detailed publicly.  Defendant asserts that the review conducted prior the decision place Fannie Mae and Freddie Mac into conservatorship and the rationale for that decision were explained FHFA Director James Lockhart.  Defendant Federal Housing Finance Agencys Memorandum Support its Motion for Summary Judgment (Defs Mem.) (referencing Director Lockharts statement September 2008 for that proposition).  Although the statement does 
reference the placement Fannie Mae and Freddie Mac into conservatorship, does not even mention receivership, let alone detail why the option conservatorship was chosen over receivership.  Presumably, the justification for placing Fannie Mae and Freddie Mac conservatorship over receivership had something with the perceived systemic impact the receivership option.5 with many the decisions made during the recent financial crisis, the details this analysis have not been released publicly.  Defendant has refused release any information this regard. 
Because the public remains uninformed why Defendant chose place Fannie Mae and Freddie Mac into conservatorship, Plaintiff, May 23, 2010, sent FOIA request Defendant seeking access to: 
Any and all communications and records concerning relating the assessment impact systemic risk addressing Fannie Mae and Freddie Mac, and particular how the FHFA and the Department the Treasury determined that conservatorship was the preferred option avoid any systemic risk placing Fannie Mae and Freddie Mac into receivership. 
FOIA Request, attached Exhibit the Declaration David Lee.  Defendant failed respond Plaintiffs FOIA request within the statutorily allotted time period, and Plaintiff filed suit July 12, 2010. Defs Mem.  Subsequently, Defendant notified Plaintiff that had located three records responsive Plaintiffs request and that each record was being withheld its entirety pursuant Exemption  Id. Upon reviewing the declarations and Vaughn Index submitted Defendant support its Motion for Summary Judgment, Plaintiff has elected See, Federal Housing Finance Agency, Questions and Answers Conservatorship, Undated (available http://www.fhfa.gov/webfiles/35/FHFACONSERVQA.pdf) (The goals the conservatorship are help restore confidence the Company, enhance its capacity fulfill its mission, and mitigate the systemic risk that has contributed directly the instability the current market.). 
not challenge Defendants withholding Document Number  However, Plaintiff does challenge Defendants withholding Document Numbers and 
II. Argument. Summary Judgment Standard. 
FOIA generally requires complete disclosure requested agency information unless the information falls into one FOIAs nine clearly delineated exemptions. U.S.C.  552(b); see also Department the Air Force Rose, 425 U.S. 352, 360-61 (1976) (discussing the history and purpose FOIA and the structure FOIA exemptions). light FOIAs goal promoting general philosophy full agency disclosure, the exemptions are construed narrowly. United States Department Justice Tax Analysts, 492 U.S. 136, 151 (1989). [T]he strong presumption favor disclosure places the burden the agency justify the withholding any requested documents.  United States Department State Ray, 502 U.S. 164, 173 (1991). FOIA litigation, all litigation, summary judgment appropriate only when the pleadings and declarations demonstrate that there genuine issue material fact and that the moving party entitled judgment matter law.  Anderson Liberty Lobby, Inc., 477 
U.S.
 242, 248 (1986); Fed. Civ. 56(c). FOIA cases, agency decisions withhold disclose information under FOIA are reviewed novo. Judicial Watch, Inc. U.S. Postal Service, 297 Supp. 252, 256 (D.D.C. 2004). reviewing motion for summary judgment under FOIA, the court must view the facts the light most favorable the requester.  Weisberg
 United States Department Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). 

For agency prevail claim exemption, may rely affidavits declarations they describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted either contrary evidence the record nor evidence agency bad faith. Military Audit Project Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). The court may require camera inspection the withheld records insure that agencies not misuse the FOIA exemptions conceal non-exempt information.  Carter U.S. Department Commerce, 830 F.2d 388, 393 (D.C. Cir. 1987) (quoting Allen Central Intelligence Agency, 636 F.2d 1287, 1298 (D.C. Cir. 1980)). 
Finally, agency must demonstrate that, even where particular exemptions properly apply, all non-exempt material has been segregated and disclosed.  Sussman U.S. Marshals Service, 494 F.3d 1106, 1116 (D.C. Cir. 2007); Shurberg Broadcasting Hartford Federal Communications Commission, 617 Supp. 825, 828 (D.D.C. 1985). segregability determination absolutely essential any FOIA decision.  See Summers Department Justice, 140 F.3d 1077, 1081 (D.C. Cir. 1998). Defendant Improperly Applies the Attorney Work Product Doctrine. 
Defendant withholds Document Numbers and their entirety claiming that they are exempt from disclosure pursuant the attorney work product doctrine. order properly withhold material pursuant the attorney work product doctrine, Defendant must demonstrate that the material was prepared attorney contemplation litigation and set[s] forth the attorneys theory the case and his litigation strategy.  National Labor Relations Board Sears, Roebuck Co., 421 U.S. 132, 154 (1975) Importantly, it firmly established that there privilege all unless the document was initially prepared contemplation litigation, the course preparing for trial.  Coastal States Gas Corporation Department Energy, 617 F.2d 854, 865 (D.C. Cir. 1980). While there requirement that actual litigation pending, absolutely necessary that at the very least some articulable claim, likely lead litigation, must have arisen. Id. 
Defendant asserts, and Plaintiff does not contest, that Document Numbers and were prepared time when the possibility legal challenges the Board Directors and management Fannie Mae and Freddie Mac existed.  Declaration Alfred Pollard (Pollard Decl.)  14; Defs Mem. 12.  Plaintiff also does not contest that the discussion what Defendant could expect terms judicial review legal challenge Document Number exempt from disclosure pursuant the attorney work product doctrine.  Id. Rather, Plaintiff argues that Defendant should allowed withhold only the limited portion Document Number that was actually prepared the contemplation of, and related to, any litigation. stated above, Plaintiff sent FOIA request seeking access records concerning relating the assessment impact systemic risk addressing Fannie Mae and Freddie Mac. sending his request, Plaintiff specifically sought information about the adverse impact systemic risk placing Fannie Mae and Freddie Mac into receivership instead conservatorship. Any information responsive Plaintiffs FOIA request would primarily include the impact of, externalities caused by, that action.  For example, responsive material might detail the expected contagion the weakening failure institutions with exposure Fannie Mae Freddie Mac. The responsive material, therefore, would not include details discussion any potential future litigation. 
Defendant improperly claims that Document Numbers and may withheld their entirety pursuant the attorney work product doctrine.  Not everything prepared attorney may withheld pursuant the attorney work product doctrine.  Coastal States, 617 F.2d 864 (quoting Jordan U.S. Department Justice, 591 F.2d 753, 775 (D.C. Cir. 1978)) (The work-product rule does not extend every written document generated attorney; does not shield from disclosure everything that lawyer does.  Its purpose more narrow, its reach more modest.). Although the two responsive records were produced attorneys Defendants Office General Counsel (Pollard Decl.  12-13), these records are not similar the records issue other cases which application the agency attorney work product doctrine has been upheld. Defs Mem. 14. Delaney, Migdail Young, the records issue were memoranda that outlined the types legal challenges likely mounted against proposed program and the potential defenses available the agency.  Id. 14. Defendant currently withholding two responsive records that are not alleged outline types legal challenges and potential responses such challenges.  Instead, Defendant withholding their entirety two records that 
were created for meetings with senior executives FHFA discuss various policy options that the agency could take with regard the Enterprises and were provided these senior policymakers order assist their decision-making. 
Id. (emphasis added). Defendant itself admits that these records primarily focus the policy conservatorship over receivership, not the litigation implications one over the other. 
More specifically, its Vaughn Index, Defendant asserts that Document Number analyze[s] the features, strengths, and weaknesses two alternate approaches for FHFA dealing with the Enterprises.  FHFA  Final Vaughn Index (Vaughn Index), attached Exhibit the Declaration Frank Wright,  Moreover, the Vaughn Index lists the issues assessed the three-page record as: 
 The purpose behind both alternatives; 
 Analyses the ability each address substantive issues and operational matters; 
 Analysis the public perception each alternative; 
 Analyses the potential demands upon FHFA;
  Analysis the potential for judicial review; 
 Analysis potential responses from the Enterprises; and  
 Analysis the potential challenges for FHFA under either approach. 

Id. Based this description, only one the above issues directly related any potential 
litigation: analysis the potential for judicial review. 
Similarly, its Vaughn Index, Defendant asserts that Document Number assess[es] 
and analyze[s] the issues and options for FHFAs efforts address the problems troubled 
regulated entity.  Id. More specifically, Defendant describes the issues covered Document 
Number as: 
 The ramifications choosing either conservatorship receivership and the factors 
that would support either choice;  The factors that would trigger either conservatorship receivership;  The powers and authorities FHFA under either conservatorship receivership;  Issues for the agency implementing conservatorship receivership;  The operational requirements that might required implementing 
conservatorship receivership;  The steps that could required before implementing conservatorship receivership;  The steps that could required during the implementation conservatorship receivership;  The impact officers and directors implementing conservatorship receivership; and   Alternatives conservatorship and receivership that might available FHFA, including the possibility informal order cease and desist order.   
Id. Based this description, none the issues addressed this ten-page record related 
any potential litigation. 
Because Defendant describes Document Numbers and memoranda prepared 
assist senior policymakers with analyzing various policy options (Defs Mem. 17), 
Defendants withholding these two records their entirety improper. the U.S. Court Appeals for the District Columbia Circuit (D.C. Circuit) has stated, the purpose the attorney work product doctrine is not protect any interest the attorney, who more entitled privacy protection than any other person, but protect the adversary trial process itself.  Coastal States, 617 F.2d 864. Moreover, the privilege must construed narrowly avoid abuse. Id. 865 (The mere fact that [documents] deal with specific factual situations not sufficient; agency were entitled withhold any document prepared any person the Government with law degree simply because litigation might someday occur, the policies the FOIA would largely defeated.). Defendant cannot shield responsive records from production simply because they were prepared attorneys.  Because Defendant has broadly claimed attorney work product over records prepared for policymakers (Defs Mem. 17), Defendant should produce Document Numbers and and solely withhold the limited portions the responsive records that do, fact, fall under the scope the attorney work product doctrine. 	Defendant Improperly Withholds Material under the Deliberative Process Privilege. 
Defendant also asserts that Document Numbers and their entirety, are protected from disclosure pursuant the deliberative process privilege.  Defs Mem. 15. Defendants burden show that both responsive records should withheld whole part pursuant the deliberative process privilege.  Wilderness Society United States Department the Interior, 344 Supp. (D.D.C. 2004). order withhold material pursuant the deliberative process privilege, Defendant must demonstrate that the material would reveal advisory opinions, recommendations and deliberations comprising part process which governmental decisions and policies are formulated. Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). Further, the material must predecisional and must deliberative and not shield documents that simply state explain decision the government has already made protect material that purely factual.  Id. (citations omitted). the D.C. Circuit has explained, The privilege meant protect predecisional communications from disclosure prevent injury the quality agency decisions.  Horowitz Peace Corps., 428 F.3d 271, 276 (D.C. Cir. 2005). reviewing the claim deliberative process privilege, courts therefore focus less the nature the materials sought and more the effect the materials release.  Dudman Communications Corp. Department Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). Since its decision Dudman, the D.C. Circuit considers the key question be: 
[W]hether the disclosure materials would expose agencys decision making process such way discourage candid discussion within the agency and thereby undermine the agencys ability perform its functions. 
Horowitz, 428 F.3d 276 (quoting Dudman Comm. Corp., 815 F.2d 1568); see also, Formaldehyde Institute Department Health and Human Services, 889 F.2d 1118, 1123-24 
(D.C. Cir. 1989) (The pertinent issue what harm, any, the [documents] release would [an agencys] deliberative process.).  Therefore, order succeed deliberative process privilege claim under Exemption Defendant must demonstrate that the withheld material issue would actually inhibit candor the decision making process available the public.  Army Times Pub. Co. Department the Air Force, 998 F.2d 1067, 1072 (D.C. Cir. 1993). Similarly, Defendant cannot meet its statutory burden justification conclusory allegations possible harm.  Mead Data, 556 F.2d 258. Defendant must show specific and detailed proof that disclosure would defeat, rather than further, the purposes the FOIA.  Id. Such can done through declarations testimony. Horowitz, the D.C. Circuit concluded that the withheld records were properly withheld pursuant the deliberative process privilege only after reviewing testimony that showed making [the withheld] documents publicly available would deter [individuals] from creating them and deprive such officials the benefit review and comment from other departments.  Horowitz, 428 F.3d 276-277. Similarly, Formaldehyde Institute, the D.C. Circuit held that the withheld records were properly exempt from disclosure pursuant the deliberative process privilege only after reviewed indisputable evidence that disclosure reviewers comments would seriously harm the deliberative process.  889 F.2d 1124. that case, the government agency produced declarations asserting that 
release reviewers' editorial comments would very likely have chilling effect either the candor potential reviewers government-submitted articles the ability the government have its work considered for review all.  Furthermore, government author likely less willing submit her work refereed journal all critical reviews could come light somewhere down the line. 
Id. 
 Completely absent from Defendants brief, its Vaughn Index, and the declarations any demonstration that disclosure the two withheld records would expose agencys decision making process such way discourage candid discussion within the agency and thereby undermine the agencys ability perform its functions.  Horowitz, 428 F.3d 276. Since harm cannot merely presumed, Defendant has failed satisfy its burden show that both responsive records should withheld pursuant the deliberative process privilege.  Judicial Watch, Inc., 297 Supp. 259. Defendant must therefore produce Document Numbers and Plaintiff pursuant FOIA. Id. 162  166. Id. 16. Camera Review the Withheld Records Appropriate. 
Defendant has failed satisfy its statutory burden justify its withholding the two responsive records. However, the Court has the option conduct camera review. Juarez DOJ, 518 F.3d 54, 59-60 (D.C. Cir. 2008); Allen, 636 F.2d 1298 (Where the agency fails meet that burden, not uncommon event, the court may employ host procedures that will provide with sufficient information make its novo determination, including camera inspection.) 
The D.C. Circuit has held, [I]n camera review may particularly appropriate when ... the agency affidavits are insufficiently detailed permit meaningful review exemption claims.  Quinon Strafer Federal Bureau Investigation, F.3d 1222, 1228 (D.C. Cir. 1996). Moreover, the Court has explained that when the dispute turns the contents the withheld documents, and not the parties interpretations those documents, camera review may more appropriate.  Id.  Finally, instances which sufficiently detailed justifications are impossible because they would reveal the very information sought protected, in camera inspection permits the courts fulfill their statutory obligation conduct meaningful novo review.  Id. 
Defendant has insufficiently provided enough detail permit proper analysis its claims withholding.  Therefore, camera review appropriate this case. the Court does not have sufficient information determine whether Document Numbers and should produced, Plaintiff requests that the Court conduct camera review the thirteen pages issue. 

III. Conclusion. 

Because the public remains uninformed why the federal government chose place Fannie Mae and Freddie Mac into conservatorship instead receivership, Plaintiff sent FOIA request Defendant. There are two records that would educate the public about Defendants placement Fannie Mae and Freddie Mac into conservatorship.  Because the two responsive records were created assist policymakers with their decision-making, Defendant improperly claims that the material may withheld pursuant the attorney work product doctrine.  Moreover, because Defendant has failed show that the disclosure the material would expose Defendants decision-making process such way discourage candid discussion and thereby undermine Defendants ability perform its functions, Defendant improperly claims that the two responsive records may withheld their entirety pursuant the deliberative process privilege. For the foregoing reasons, Defendants motion for summary judgment should denied and summary judgment should entered Plaintiffs favor.   Dated: December 17, 2010 Respectfully submitted, 
       Paul Orfanedes (D.C. Bar No. 429716) 
/s/ Michael Bekesha 
Michael Bekesha (D.C. Bar No. 995749) 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington, 20024 

(202) 646-5172 
Attorney for Plaintiff THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
VERN McKINLEY, Plaintiff, Civil Action No. 10-cv-01165 (HHK) FEDERAL HOUSING FINANCE AGENCY, Defendant. ______________________________) 
PLAINTIFFS RESPONSE DEFENDANTS STATEMENT  
MATERIAL FACTS NOT DISPUTE AND PLAINTIFFS STATEMENT MATERIAL FACTS NOT GENUINE DISPUTE SUPPORT  
PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT
 
Plaintiff Vern McKinley, counsel and pursuant Local Civil Rule 7.1(h), respectfully submits this response Defendants Statement Material Facts Not Dispute and Plaintiffs Statement Material Facts Not Genuine Dispute Support Plaintiffs Cross-Motion for Summary Judgment: Plaintiffs Response Defendants Statement Material Facts Not Dispute. 
Undisputed. 
Undisputed. 
Undisputed. 
Undisputed. 
Undisputed. 
Undisputed. 
Undisputed. 
Undisputed. 
Undisputed. 

10. 
Undisputed. 

11. 
Undisputed. 

12. 
Undisputed. 

13. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

14. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

15. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

16. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

17. 
Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the

asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 
18. Plaintiff lacks knowledge confirm deny whether such event occurred.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

II. 	Plaintiffs Statement Material Facts Not Genuine Dispute Support Plaintiffs Cross-Motion for Summary Judgment. 
For its own LCv.R. 7.1(h) statement material facts not genuine dispute, Plaintiff respectfully refers the Court Defendants statement and Plaintiffs response thereto, set forth above. Dated: December 16, 2010 Respectfully submitted, 
/s/ Michael Bekesha Michael Bekesha (D.C. Bar No. 995749) JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, 20024 
(202) 646-5172 
Attorney for Plaintiff THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
VERN McKINLEY,  
Plaintiff,  Civil Action No. 10-cv-01165 (HHK)  
FEDERAL HOUSING FINANCE  
AGENCY,  
Defendant.  

______________________________) 

[PROPOSED] ORDER 
Upon consideration Plaintiff=s Cross-Motion for Summary Judgment against Defendant Federal Housing Finance Agency, any opposition thereto, and the entire record herein, hereby ORDERED that: Plaintiff=s Cross-Motion for Summary Judgment granted. ORDERED. 
DATE:________________ 	_____________________ Henry Kennedy Jr. United States District Judge