Updated en banc
$FNMA $FMCC FAIRHOLME UPDATE:
Fairholme filed its Oct. 1 response opposing FHFA’s petition for rehearing en banc. The D.C. Circuit has not granted en banc review, and the case remains with the original three-judge panel’s decision in place.
The original D.C. Circuit panel unanimously affirmed the approximately $812 million shareholder judgment. That 3–0 ruling remains effective unless the court later changes it through rehearing or the Supreme Court intervenes.
Fairholme argues that FHFA is now attempting to change its position on Collins after previously maintaining that there was essentially “no daylight” between the applicable legal standards. Fairholme also argues that FHFA waited years before raising its §4617(f) damages argument, even though the issue could have been presented earlier in the litigation.
Unless the court requests additional briefing or another filing, the en banc briefing process is effectively complete. The active judges of the D.C. Circuit will now decide whether to grant or deny FHFA’s request for rehearing en banc. There is no fixed deadline for that decision, so the court could issue its ruling at any time.
NEXT: The D.C. Circuit will decide whether the full court should reconsider the panel’s decision.
⚠️** Important**: Even if the D.C. Circuit denies rehearing en banc, that would not necessarily end the case. FHFA could still petition the U.S. Supreme Court for a writ of certiorari. SCOTUS would then decide whether to accept the case for review. If the Supreme Court declines to hear it, the D.C. Circuit’s judgment would remain the controlling decision.
Therefore, an en banc denial would be another significant shareholder victory and would leave the unanimous panel ruling intact—but it would not necessarily be the final possible appeal.
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