TITLE I - Troubled Assets Relief Program
Sec. 119. JUDICIAL REVIEW AND RELATED MATTERS. (2 Comments)
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JUDICIAL REVIEW.
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STANDARD.Actions by the Secretary pursuant to the authority of this Act shall be subject to chapter 7 of title 5, United States Code, including that such final actions shall be held unlawful and set aside if found to be arbitrary, capricious, an abuse of discretion, or not in accordance with law.
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LIMITATIONS ON EQUITABLE RELIEF.
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INJUNCTION.No injunction or other form of equitable relief shall be issued against the Secretary for actions pursuant to section 101, 102, 106, and 109, other than to remedy a violation of the Constitution.
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TEMPORARY RESTRAINING ORDER. Any request for a temporary restraining order against the Secretary for actions pursuant to this Act shall be considered and granted or denied by the court within 3 days of the date of the request.
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PRELIMINARY INJUNCTION.Any request for a preliminary injunction against the Secretary for actions pursuant to this Act shall be considered and granted or denied by the court on an expedited basis consistent with the provisions of rule 65(b)(3) of the Federal Rules of Civil Procedure, or any successor thereto.
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PERMANENT INJUNCTION.Any request for a permanent injunction against the Secretary for actions pursuant to this Act shall be considered and granted or denied by the court on an expedited basis. Whenever possible, the court shall consolidate trial on the merits with any hearing on a request for a preliminary injunction, consistent with the provisions of rule 65(a)(2) of the Federal Rules of Civil Procedure, or any successor thereto.
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LIMITATION ON ACTIONS BY PARTICIPATING COMPANIES.No action or claims may be brought against the Secretary by any person that divests its assets with respect to its participation in a program under this Act, except as provided in paragraph (1), other than as expressly provided in a written contract with the Secretary.
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STAYS.Any injunction or other form of equitable relief issued against the Secretary for actions pursuant to section 101, 102, 106, and 109, shall be automatically stayed. The stay shall be lifted unless the Secretary seeks a stay from a higher court within 3 calendar days after the date on which the relief is issued.
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RELATED MATTERS.
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TREATMENT OF HOMEOWNERS RIGHTS. The terms of any residential mortgage loan that is part of any purchase by the Secretary under this Act shall remain subject to all claims and defenses that would otherwise apply, notwithstanding the exercise of authority by the Secretary under this Act.
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SAVINGS CLAUSE.Any exercise of the authority of the Secretary pursuant to this Act shall not impair the claims or defenses that would otherwise apply with respect to persons other than the Secretary. Except as established in any contract, a servicer of pooled residential mortgages owes any duty to determine whether the net present value of the payments on the loan, as modified, is likely to be greater than the anticipated net recovery that would result from foreclosure to all investors and holders of beneficial interests in such investment, but not to any individual or groups of investors or beneficial interest holders, and shall be deemed to act in the best interests of all such investors or holders of beneficial interests if the servicer agrees to or implements a modification or workout plan when the servicer takes reasonable loss mitigation actions, including partial payments.
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2 comments on Sec. 119. JUDICIAL REVIEW AND RELATED MATTERS.
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Why is no one talking about Section 119 of the Senate bill, and parallel provisions of the House version? Have we all given up on the idea that executive action should be subject to judicial review?
posted by Jon McPhee, taxpayer at October 3, 2008
This is not as facially and patently outrageous as the Bush proposal, which would have barred all court or admininistrative review and most legislative oversight. But if the Secretary is given effectively total discretion to adopt rules and "privatize" the program by hiring outsiders and deciding which "troubled assets" to purchase, etc., what good is reference to the Administrative Procedures Act standards that stack the deck already in favor of the "decider?"
His decisions will be measured if at all against whether they are "arbitrary or capricious... or otherwise not in accordance with law." Am I missing something or is there an essentially perfect circular defense against review, by the Secretary saying "I decided under grant of Congressional authority, and that's what the law is, so what I decided can't be either arbitrary or not in accordance with law. And by the way, I control what's to be considered part of the administrative record on review."
Anyone who has watched an APA action through the courts, especially as it will be hamstrung by the other provisions on timing and scope, knows how hard it is already to overturn a decision as "arbitrary and capricious, not in accordance with law."
And of course there's essentially no equitable relief, that is, an injunction, allowed for anything done under sections "101, 102, 106, and 109, other than to remedy a violation of the Constitution." These are the arbitrary powers to be given to the Secretary to decide what "troubled assets" to buy, how much to pay, how to liquidate, hire outside firms to do the government's work, etc. -- the guts of the whole program.
This is not "judicial review" in any meaningful sense, it's a more cloaked version of the executive coup in the original Bush proposal. There are no rights without remedies. -
Yes, this is possibly the scariest provision, although I haven't finished reading yet. I am surprised I hadn't heard about it until now. Our Constitution was written to guarantee 3 co-equal branches of government, but the scales have been tipped to the Executive branch for quite a while and keep on tipping. Sigh.
posted by Lynne at October 4, 2008