PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________
No. 17

- 3794

_______________ DAVID JACOBS; GARY HINDES
, Appellant s

v.
FEDERAL HOUSING FINANCE AGENCY, IN ITS CAPACITY AS CONSERVATOR OF THE FEDERAL NATIONAL MORTGAGE ASSOCIATION

AND THE FEDERAL HOME LOAN MORTGAGE CORPORATION; UNITED STATES DEPARTMENT OF THE TREASURY;

FEDERAL NATIONAL MORTGAGE ASSOCIATION; FEDERAL HOME LOAN MORTGAGE CORPORATION

_______________ On Appeal from t he United States District Court for the District of Delaware ( D.C . No. 1:015

- cv

- 00708 ) District Judge: Honorable Gregory M. Sleet

_______________2 Argued September 7 , 2018

Before: HARDIMAN
, KRAUSE , and BIBAS
, Circuit Judges

(Filed: November 14, 2018 )

_______________ Christopher N. Kelly, Esq. Michael A. Pittenger, Esq. [ARGUED] Alan R. Silverstein, Esq. Potter Anderson & Corroon 1313 North Market Street 6th Floor Wilmington, DE 19801
Myron T. Steele, Esq. Potter, Anderson & Corroon 800 North State Street Suite 401 Dover, DE 19901 Counsel for Appellants
David B. Bergman, Esq. Howard N. Cayne, Esq. [ARGUED] Ian S. Hoffman, Esq. Dirk Phillips, Esq. Asim Varma, Esq. Arnold & Porter Kaye S choler 601 Massachusetts Avenue, N.W. Washington, D.C. 200013 Robert C. Maddox, Esq. Robert J. Stearn, Jr., Esq. Richards Layton & Finger 920 North King Street One Rodney Square Wilmington, DE 19801 Counsel for Appellee Federal Housing Finance Agency

Gerard J. Sinzdak, Esq. [ARGUED] Abby C. Wright, Esq. United States Department of Justice Civil Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Counsel for Appellee United States Department of Treasury
Robert C. Maddox, Esq. Robert J. Stear n, Jr., Esq. Richards Layton & Finger 920 North King Street One Rodney Square Wilmington, DE 19801
Meaghan M. Vergow, Esq. O’Melveny & Myers 1625 I Street, N.W. Washington, DC 20006 Counsel for Appellee Federal National Mortgage Association4 Michael J. Ciatti, Esq. King & Spalding 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006
Robert C. Maddox, Esq. Robert J. Stearn, Jr., Esq. Richards Layton & Finger 920 North King Street One Rodney Square Wilmington, DE 19801 Counsel for Appellee Fede ral Home Loan Mortgage Corporation

_______________
OPINION OF THE COURT

_______________
BIBAS
, Circuit Judge

. In 2008, the U.S. government strove to rescue the collaps

ing economy. Its extreme measures helped many, but others suffered as a result. One of the rescue measures, t he Housing and Economic Recovery Act
, authorized t he government to act as conservator for Fannie Mae and Freddie Mac, two govern

ment

- sponsored enterprises with critical roles in the home

mortgage market. Under th at conservatorship , Fannie and Freddie made a deal with the Department of Treasury. The deal guaranteed Fannie and Freddie access to hundreds of billions of dollars. But in return, they had to give the ir net profits to the5 Treasury

— in perpetuity . Fannie’s and Freddie’s juni or share

holders had expected to share in those future profits , but the deal wiped out that expectation . So so me of th o se junior share

holders now challenge that deal. We reject the shareholders’ challenge on all fronts

. First,
t he Recovery Act gave the government broad, discretionary power to enter into the deal. Second, t he deal complies with the requirements of the Recovery Act, as well as Delaware and Virginia corporate law. And third, the relief sought would “re

strain or affect the exercise of [the government’ s] powers” as
conservator , which the Recovery Act forbids . 12 U.S.C. § 4617(f). T h at relief, even the monetary relief, would unwind the whole deal. So we will affirm the District Court’s dismis

sal.

I. B ACKGROUND
A. Statutory f ramework

1. Fannie Mae and Freddie Mac. In the wake of the Great Depression, Congress created Fannie
, and later Freddie
, to sup

port the home

- mortgage market

. Pub. L. No. 91

- 351, 84 Stat. 450, § 301(b), as amended by Pub. L. No. 101

- 73, 103 Stat. 183, § 731(a) (codified at 12 U.S.C. § 1451 note) (Freddie Mac); 12 U.S.C. §§ 1716

- 17 (Fannie Mae)

. Fannie and Freddie do so by borrow ing money, buy ing home mortgages, packag

ing them into guaranteed mortgage

- backed securities , and sell

ing th ose securities to investors . 12 U.S.C. § § 1454

- 55 , 1719. By buying mortgages and then guaranteeing the resulting securities, Fannie and Freddie make the mortgage market both more liquid and more stable. Perry Capital LLC v. Mnuchin
,6 864 F.3d 591, 599 (D.C. Cir. 2017) ( Perry Capital )
, cert. de

nied , 138 S. Ct. 978 (2018)

. They relieve mortgage lenders of the risk of default and free up their capital to make more loans. As a result, lenders can keep lending to home buyers who meet Fannie’s and Freddie’s underwriting standards , secure in the knowl edge that Fannie and Freddie will buy those mortgages

. By 2008
, Fannie and Freddie own ed or guaranteed five trillion dollars’ worth of mortgages and mortgage

- backed securities

— nearly half of the market

. Id. In short, t hey are the backbone of the U.S. resid ential

- mortgage market.

Fannie and Freddie are government

- sponsored enterprises ; the y were created by congressional charter but are owned by private s hare holders. 2 U.S.C. § 622(8). Although Fannie and Freddie are privately owned and publicly traded companies, the public has long viewed their securities as implicitly backed by the federal government’s credit. That perceived government guarantee has helped the m to borrow money and to buy mort

gages more cheaply than they otherwise could have

. Perry Ca pital LLC v. Lew , 70 F. Supp. 3d 208, 215 (D.D.C. 2014)
, aff’d in part , 864 F.3d 591

. All that borrowing, lending, and buying propelled the housing market to record highs by the mid

- 2000’s.

2. The Housing and Economic Recovery Act of 2008. Then the housing bubbl e burst . House prices plunged, slashing the value of Fannie ’s and Freddie’s mortgage portfolios. Fannie’s and Freddie’s guarantees put them on the hook not only for the mortgages they owned, but also for many mortgage

- backed se

curities based on loans gone bad. Congress feared that they might default, threatening not only the housing market but the7 precarious national economy as a whole. Perry Capita l , 864 F.3d at 599.

To ward off that threat , Congress passed the Recovery Act

. The Recovery Act cre ated the Federal Housing Financing Agency and empowered it to supervise and regulate Fannie and Freddie. 12 U.S.C. § 4511. The Recovery Act gives the Agency many enumerated, mostly discretionary powers. For instance, it authorizes the Agency’s Director to “appoint the Agency as conservator

. . . for the purpose of reorganizing [or] rehabilitat

ing

. . . the affairs of” Fannie or Freddie. Id. § 4617(a) (1)

- (2). As conservator, the Agency inherits all the “rights, titles, pow

ers, and privileges” of Fannie, Freddie, and their officers, di

rectors, and shareholders. Id. § 4617(b)(2)(A)(i). T he Recovery Act also authorizes the Agency as conservator to exercise any “incidental powers as shall be necessary to carry out [its enu

mer ated] powers

. ” Id. § 4617(b)(2)(J)(i).

3. Section 4617(f) of the Recovery Act

. Having given the Agency sweeping authority and discretion, t he Recovery Act strictly limit s judicial review: “[N]o court may take any action to restrain or affect the exercise of powers or functions of the Agency as a conservator or receiver.” Id. § 4617(f). This case
turns in part on how to interpret and apply that subsection

. B. Factual b ackground In 2008, the collapse of the housing market cost Fannie and Freddie billions of dollars, threatening the U.S. mortgage mar

ket. The Treasury quickly took steps to prop up Fannie and8 Freddie. But the mortgage and financial markets remained per

ilous , and the financial crisis grew worse

. So the Agency put both Fannie and Freddie into conservatorship

. Under the Agency’s direction, they entered into funding agreements with the Treasury. The Treasury gave each enterprise a funding commitment

. When Fannie’s or Freddie’s liabilities exceed their assets, they c a n draw on that funding commitment to keep their net worth in the black

. In return, the Treasury received one million shares of senior preferred stock in each of Fannie and Freddie. These shares gave the Treasury a liquidation preference in each enterprise equal to $1 billion plus all the money drawn from the Treasury ’s funding commitment. The shares also gave the Treasury an annual dividend equal to 10% of the liquidation preference
, if paid in cash

. The Treasury initially capped its funding commitment at $100 billion per enterprise. That was not enough , at least for Fannie

. Two amendments to the funding agreement more than doubled th at cap , and Fannie and Freddie wound up drawing $116.1 billion and $71.3 billion from the T reasury

. But as Fannie and Freddie drew more and more money from the Treasury, they owed it larger and larger divi dends. In a vicious cycle, they sometimes had to draw money from the Treasury just to pay the Treasury ’s dividends

. In 2012, the Treasury and the Agency renegotiated the funding agreements and agreed to the Third Amendment. The Third Amendment replace d the 10% annual dividend with a quarterly variable dividend . It set that variable dividend equal9 to Fannie’s and Freddie ’s positive net worth abo ve a cap ital buffer , which was set to decrease with each dividend pay ment

. The capital buffer is now down to zero. So each quarter, the dividend consumes each enter prise’s entire positive net worth. The challengers call this ar rangement the Net Worth S weep. In other words, u nder the Third Amendment , if Fannie or Freddie has a positive net worth, it pay s all that worth out as a dividend to the Treasury . If its net worth is zero or negative, it pay s nothing. Fannie and Freddie pay only what they can. That way, they need never again draw from the Treasury to pay the Treasury’s dividend s . But they also have no money left over to pay dividends to junior shareholders or to redeem the Treas

ury’s shares, exit conservatorship
, and return to private control.

C. P rocedural h istory David Jacobs and Gary Hindes filed this class

- action suit against the Agency, Treasury , Fannie, and Freddie to challenge the Third Amendment . Their original complaint asserted claims for breach of contract, breach of fiduciary duty, brea ch of the implied covenant of good faith and fair dealing, and vi

olations of Delaware and Virginia c orporate law.

The challengers later amended their complaint
, voluntarily dismiss ing their claims for breach of contract, breach of fidu

ciary duty, and bre ach of the implied covenant of good faith and fair dealing. The amended complaint contains four counts: two asserting that the Third Amendment violates Delaware and Virginia corporate law, and two new claims against the Treasury for unjust enrichment. It seeks declaratory, injunctive, and10 monetary relief, including damages, restitution, and disgorgement.

The Agency, Treasury , Fannie, and Freddie moved to dis

miss. The District Court granted that motion, holding that 12 U.S.C. § 4617(f) barred all the ch al lengers’ claims. Jacobs v. FHFA , No. 15

- 708

- GMS, 2017 WL 5664769, at *1 (D. Del. Nov. 27, 2017). It reasoned that the Agency acted within its statutory powers, that the Recovery Act did not incorporate state law, and that § 4617(f) ’s “sweeping limitatio ns .

. . on judicial review” deprived it of jurisdiction

. Id. at * 3

- 5

. The court also refused to take judicial notice of certain documents that allegedly undermined the Agency’s and Treasury’s assertions, because it did not rely on those assertions in reac hing its decision. Id. at *7. This appeal followed. Like the District Court, we do not rely on those assertions, so we will affirm the refusal to take judicial notice of the challengers’ documents. We review the District Court’s dismissal de novo. Hindes v. FDIC , 137 F.3d 148, 153 (3d Cir. 1998).

I I

. T HE R ECOVERY A CT E MPOWERED THE A GENCY TO E NTER INTO THE T HIRD A MENDMENT Section 4617(f) bars claims when 1) the government acts as a conservator, 2) it does not exceed its statutory authority, and 3) the remedy sought would affect the exercise of that author

ity. So t o figure out whether § 4617(f) bars the challengers’ claims, we first identify “the powers or functions of the A gency

as a conservator .” In this part of the opinion , we hold that the Act empow er s the Agency to enter into the Third Amendment.11 In P art III , we go on to hold that the Third Amendment does not contravene any other limitations in the Recovery Act . And in Part IV, we hold that the relief requested by the challengers would “restrain or affect” the Agency’s exercise of its powers. So the District Court properly dismissed this suit.

The Recovery Act defines the Agency’s “powers .

. . as a conservator

. ” 12 U.S.C. § 4617(f) . Those powers are many and mostly discretionary, including :

• the power to take over Fannie’s and Freddie’s assets. Id. § 4617(b) (2)(B)(i).

• the power to operate Fannie and Freddie, using all of the officers’, directors’, and shareholders’ pow

ers. Id.

• the power to “preserve and conserve” Fannie’s and Freddie’s assets. I d. § 4617(b)(2)(B)(iv).

• the power to “take such action as may be .

. . neces

sary to put [Fannie and Freddie] in a sound and sol

vent condition,” and appropriate to carry on their business. Id. § 4617(b)(2)(D). These powers authorized the Agency to enter i nto the Third Amendment. To begin , the Third Amendment is an exercise of the Agency’s power to take over Fannie and Freddie’s assets and operate their businesses. Id. § 4617(b)(2)(B)(i). To operate their businesses, Fannie and Freddie must secur e ongoing ac

cess to capital
, manag e debt loads, control cash flow, and de

cid e whether and how to pay dividends. Perry Capital , 86412 F.3d at 607. The Third Amendment is in essence a renegotia

tion of an existing lending agreement ( albeit with equity rather than debt). Saxton v. FHFA , 901 F.3d 954, 960

- 61 (8th Cir. 2018) (Stras, J., concurring). That is a traditional power of cor

porate officers or directors. Id. And t he Agency, as conserva

tor, inherits those powers. 12 U.S.C. § 4617(b)(2)(B)(i).

Next , the T hird Amendment falls within the Agency’s power to “preserve and conserve [Fann ie’s and Freddie’s] as

sets” and to do what is “necessary to put [Fannie and Freddie] in a sound and solvent condition.” 12 U.S.C. § 4617(b)(2)(B)(iv), (D)(i). The Agency “may” e xercise those powers “as appropriate,” so we ask only whether the Agency picked a suitable action, not the best alternative. Saxton , 901 F.3d at 961

– 62 (Stras, J., concurring). Before the Third Amendment, the challengers admit, Fan

nie and Freddie sometimes had to draw funds from the Treas

ury just to pay the Treasury’s dividend. App. 51

- 52. Th at dug Fannie and Freddie deeper and deeper into the hole, increasing their future dividend obligations while also reducing the ir available funds . “The Third Amendment permanently elimi

nated” th at Catch

- 22 , as well as the associated “risk that cash

dividend payments would consume [Fannie’s and Freddie’s] lifeline.” Roberts v. FHFA , 889 F.3d 397, 404

- 05 (7th Cir. 2018) . So the Agency could reasonably conclude t hat the Third Amendment would “preserve and conserve [Fannie’s and Freddie’s] assets” in the long run, putting them on a “sound and solvent” footing. 12 U.S.C. § 4617(b)(2)(B)(iv) , (D)(i).13 Any of these powers alone would have authorized the Agency to enter into the Third Amendment. Indeed, every fed

eral court of appeals to address this issue has held that adopting the Third Amendment “falls within [the Agency’s] statutory conservatorship powers.” Perry Capital , 864 F.3d at 606 ; ac

cord Saxton , 901 F.3d at 95 9 ; Collins v. Mnuchin , 896 F.3d 640, 653 (5th Cir. 2018) ; Roberts , 889 F.3d at 403 ; Robinson v. FHFA , 876 F.3d 220, 232 (6th Cir. 2017) . We agree. The Recovery Act empowered the Agency to enter into the Third Amendment.

III

. T HE T HIRD A MENDMENT I S C ONSISTENT WITH T HE R ECOVERY A CT ’ S L IMITATIONS

T he Third Amendment does not violate any other provision of the Recovery Act. The challengers a ssert that it violates Del

aware and Virginia corporate law, as supposedly incorporated by two provisions of the Recovery Act (known as the succes

sion clause and the repudiation

- of

- contracts clause ) . They also assert that it violates the Act’s liquidation

- of

- assets procedures and its alleged requirement to serve Fannie ’s and Freddie ’s in

terests , rather than the government ’s . But th at is not so

. A

. The Recovery Act’s provisions supposedly incorpo

rating Delaware and Virginia law Federal regulation required each enterprise to pick a state’s laws for its corporate governance. 12 C.F.R. § 123 9.3(b)(1). Fannie chose Delaware law ; Freddie chose Virginia law

. T he chosen state’s laws govern each enterprise to the extent that they are consistent with the enterprise’s authorizing statute and other federal law. Id.14 The challengers contend that the Recovery Act’s succes

sion clause and repudiation

- of

- contracts clause incorporate and require the Agency to follow Delaware and Virginia corporate law. So , they reason, if the Agency violates those laws, it also violates the Recovery Act itself. Because th e Agency supposedly violated Delaware and Virginia l aw, it violated th e Act itself and acted ultra vires

. The Agency responds that the Recovery Act does not incorporate those state

- law requirements and that, even if it did, they would be preempted.

Th e cha llengers’ argument fails because the Third Amend

ment is consistent with both states’ laws

. So w e need not de

cide whether and to what extent the Act itself requires the Agency to follow Delaware and Virginia law. We also need not decide whether federal la w preempts these states’ laws.

1. The Third Amendment complies with Delaware law. The challengers claim that the Third Amendment does not specify

a rate at which to pay the Treasury’s dividend. They also claim that it does not pay the Treasury in preferenc e to or in relation
to other classes of shareholders. Both arguments miss the mark

.

a. The dividend rate. Delaware’s corporate law entitles “holders of preferred or special stock .

. . to receive dividends at such rates .

. . as shall be stated in the certificate of incorpo

ration or in the [board] resolution or resolutions providing for the issue of such stock.” Del

. Code Ann. tit. 8, § 151(c) (2017). The Treasury receives all of Fannie’s and Freddie’s positive net worth in perpetuity, the challengers argue, not just a speci

fied dividend rate.15 But the Third Amendment does specify a rate: 100%. The challengers cite no Delaware author ity holding this rate unlaw

ful. So the rate argument fails.

b. T he dividend preference

. That same provision of Dela

ware law authorizes dividends “payable in preference to, or in such relation to, the dividends payable on any other class .

. . of stock

. ” Id. The challengers claim that the Third Amendment does not create a preference, but rather permanently eliminates all other shareholders’ dividends. And it cannot be payable in relation to another dividend that does not exist

. This argument fails too. The Treasury’s dividend is payable in preference to all other classes of stock. It is always pa id first and with all available funds. The challengers cite no Delaware authority suggesting that this preference is unlawful or that it
must reserve funds to pay junior stockholders. Indeed, § 151 contemplates that preferred share holder s’ dividends may ab

sorb all funds and leave none for junior shareholders: once pre

ferred dividends have been paid out “to the extent of the pref

erence,

. . . a dividend on the rema i ning class or classes or series of stock may then be paid out of the remaining assets of th e corporation available for dividends.” Id. (emphases added). So

common s hare holders are not guaranteed dividends

. They may receive the dividends only if the board approves, only if pre

ferred shareholders are paid
, and only if assets remain available for dividends. Here, after paying the Treasury’s dividend, no assets remain. So even if Delaware law applies, the Third Amendment complies with it.

2. The Third Amendment complies with Virginia law. The challengers reiterate their dividend

- preference argument for16 Freddie, this time u nder Virginia law. Virginia statut ory and case law , they argue, forbids the Third Amendment’s pre

ferred

- dividend arrangement. Virginia law authorizes corporations to issu e classes of stock that have preference over other classes. V a. Code Ann. § 13.1

- 638(C)(4) ( West 2018 ). The challengers again claimthat the Treasury does not merely have a preference, but excludes other classes of stock entirely . But that is a preference
, just an extreme one . Nothing in the statute forbids that pre ference. The challengers also rely on two century

- old Virginia cases. One of them described the “common understanding” that preferred shareholders get first dibs on earnings through “limited dividends,” while common shareholders get the “hope of unlimited gain” through the company’s “surplus profits.” Johnson v. Johnson & Briggs, Inc. , 122 S.E. 100, 103 (Va. 1924). But a “common understanding” is not a rigid rule. And

n othing about this case is “common.” Fannie and Freddie are public

- private entities in conservatorship under an intricate statutory scheme tailored to respond to an economic catastr o

phe. The ordinary case does not control. The challengers’ other case is likewise inapt. That case held that a corporation may not agree to pay preferred dividends when it lack s earnings with which to pay them. Drewry
, Hughes Co. v. Throckmorton , 92 S.E. 818, 819 (Va. 1917). But the Third Amendment abides by this rule. Fannie and Freddie pay Treasury a dividend only when they have funds to pay.17 In short, the Third Amendment comports with both Dela

ware ’s and Virginia’s laws. No authority even puts the matt er in doubt, so we see no need to certify the issue s to the Delaware or Virginia Supreme Court. T he challengers’ claims under the Recovery Act’s succession and repudiation

- of

- contracts clauses fail. See Fairholme Funds, Inc. v. FHFA , Nos. 13

- 1053, 13

- 1439, 13

- 1288, 2018 WL 4680197, at *17 (D.D.C. Sept. 28, 2018).

B. The Recovery Act’s p riorities for l iquidati ng a ssets
Next, t he challengers argue that the Third Amendment vio

lates the Recovery Act’s specified priorities for distributing as

sets on liquidatio n, codified at 12 U.S.C. § 4617(b)(3)

- (9), (c). As common shareholder s, the challengers would have had cer

tain claims upon Fannie’s and Freddie’s assets if the enter

prises had been put into liquidation. But as the District Court explained, these provisions do not apply because neither Fan

nie nor Freddie is in liquidation. Jacobs , 2017 WL 5664769, at *6. Perry Capital is not to the contrary. Though it allowed a liquidation

- preferences claim to go forward , it did so because the stock certificates themselves guaranteed a liquidation pref

erence. The wording of the certificates gave the plaintiffs there a claim for anticipatory breach of contract. Perry Capital , 864 F.3d at 632

- 33.

But here, there is no cla im that the stock certificates create aliquidation priority; the challengers’ liquidation claim rests entirely on the Recovery Act. And the challengers voluntarily dismissed their breach

- of

- contract claim. So Perry Capital is inapt.18 C. The Agency’s multip le constituencies and additional powers The challengers next assert that the Agency as conservator should have focused solely on maximizing Fannie’s and Fred

die’s financial returns. They charge the Agency with “acting in Treasury’s interest, and not [Fannie’s and Freddie’s] interest, and acting in a manner [in which Fannie and Freddie] them

selves had no power to act, when implementing the” Third Amendment. Jacobs Br. 49. But the Recovery Act authorizes the Agency to do just that

. 1. The Agency’s m ult iple c onstituencies

. W hen the Agency acts as conservator, it need not act solely in Fa nnie’s and Fred

die’s interests, as a traditional conservator would. It may also act to protect its own interests and those of the public.
At common law, a conservator co uld not “act [ ] for the ben

efit of [ himself ] or a third party.” Perry Capital , 864 F.3d at 641 (Brown, J., dissenting). But the A gency is no “common

law conservator.” Id. at 613 (majority opinion). The Recovery Act authorizes the Agency to use its powers as conservator in whatever way it “determines is in the best interests of [Fannie or Freddie] or the Agency .” 12 U.S.C. § 4617(b)(2)(J)(ii) (em

phasis added). As the D.C. Circuit explained, this provision re

flects Congress’s “deliberate choice” to let th e Agency “act in its own best governmental interests, which may include the taxpaying public’s interest.” Perry Capital , 864 F.3d at 608. That authorization implements the Recovery Act’s mandate that the Agency “ensure that” Fannie and Freddie “operate [] [ in a manner] consistent with the public interest.” 12 U.S.C.19 § 4513 (a) (1)(B), (B)(v). In the same vein, the Act instructs the Treasury not to buy Fannie’s and Freddie’s securities unless doing so would “provide stability to the financial markets” and “prot ect the taxpayer.” Id. §§ 1455( l )(1)(B)(i), (iii), 1719(g)(1)(B)(i), (iii). While the Agency must consider the public interest, it need not consider the interests of Fannie’s and Freddie’s sharehold

ers. That becomes clear when we compare the Recovery Act with its predecessor. Much of the Recovery Act is closely pat

terned on an earlier financial

- institution

- rescue law, the Finan

cial Institutions Reform, Recover y , and Enforcement Act ( FIRREA ) . For instance, the Recovery Act’s limitation on ju

dicial review is copied almost verbatim from the one in FIRREA. Compare id. § 4617(f)
, with id. § 1821(j). Because “Congress use[d] the same language in two statutes having similar purposes,” we “presume that Congress intended that text to have the same me aning in both statutes.” Smith v. City of Jackson , 544 U.S. 228, 233 (2005). So our sister courts of appeals all interpret § 4617(f) by looking to their precedents on § 1821(j). See, e.g.
, Perry Capital , 864 F.3d at 605

- 06; Robin

son , 876 F.3d at 227; Robe rts , 889 F.3d at 402. We will too. FIRREA permit s the Federal Deposit Insurance Corpora

tion to act as conservator “in the best interests of the [bank], its depositors , or the [FDIC] .” 12 U.S.C. § 1821(d)(2)(J)(ii) (em

phasis added). So the FDI C could take into account the inter

ests of depositors . But the Recovery Act omits the analogue of depositors

— shareholders

— from its list, referring only to the best interests of Fannie, Freddie, and the Agency. Id.20 § 4617(b)(2)(J)(ii); see Perry Capital , 864 F.3d at 608. Partic

ularly because Congress modeled the Recovery Act on FIRREA, the Recovery Act’s omission of shareholders’ inter

ests is telling. In short, t he Agency is supposed to act in its own interests (which reflect the interests of the government and the public)
, not in the interests of Fannie’s and Freddie’s share

holders.

The Third Amendment thus threw Fannie and Freddie a $200

- billion

- plus lifeline to safeguard not just their own inter

ests , but also the government’s and the public’s interests. The se ot her constituencies benefit from a risk

- averse approach. Even if the economy collapses again, the Agency, the government, and the public will be assured that Fannie and Freddie can con

tinue to stabilize the housing market.

T he Third Amendment also serves Fannie’s and Freddie’s own interests

. They did not give away their future net worth for nothing. In consideration, the Treasury gave up its right to

an unconditional 10% dividend, which sometimes cost Fannie and Freddie more than their positive net worth and forced them to borrow even more

. The Third Amendment thus insured Fan

nie and Freddie against downturns and “death spirals
, ” pre

venting unpayable dividends from ratchet ing up their debt loads to unsustainable levels. Saxton , 901 F.3d at 962 (Stras, J ., concurring).

2

. The Agency’s p owers e xtend b eyond Fannie’s and Fred

die’s p owers. Finally , it does not matter if the Agency acted in a way that Fannie and Freddie could not have. The Recovery21 Act gave the Agency not only powers inherited from those en

t erprises, b ut also a host of other powers. A nd the Agency acted within those statutory powers.

I V. S ECTION 4617( f) B ARS THE R EQUESTED R ELIEF The Recovery Act empowered the Agency to enter into the Third Amendment. And the Third Amendment does not violate any of the Recovery Act’s limitations. So entering into the Third Amendment was a legitimate exercise of the Agency’s powers as conservator

. The only remaining issue is whether the challengers’ re

quested relief would “ restrain or affect the exercise of [ t he Agency’s ] powers

. . . as a conservator. ” 12 U.S.C. § 4617(f). The challengers concede that it would. And § 4617(f) applies to all forms of relief that would do so, not just injunctions or equitable relief. So that sub section bars all the relief request ed here.

A. The challengers concede that they seek to undo the Third Amendment At oral argument, the challengers admitted that the relief they seek would undo the entire Third Amendment. They would have us void it and force the Treasury to disgorge all the dividends that it received under the Third Amendment. Undoing the Third Ame ndment would restrain the Agency’s powers

. So the challengers’ concession dooms their case.22 B. Section 4617(f) applies to monetary relief that would restrain or affect the exercise of the Agency’s powers as conservator The challengers argue, however, that their concession does not bar their claims for monetary relief. They claim that § 4617(f) applies only to “equitable and injunctive relief,” not damages claims. Appellants’ Br. 41

- 43. They even call that subsection an “anti

- injunction clause.” Id. at 19. But t hat label is inaccurate. Their argument has some support. Some courts of appea ls likewise call § 4617(f) an “anti

- injunction” clause. E.g.
, Sax

ton , 901 F.3d at 957; Robinson , 876 F.3d at 227. And some interpret § 4617(f) as barring only equitable relief, not damages claims. E.g.
, Saxton , 901 F.3d at 957; Perry Capital , 864 F.3d
at 606, 61 3

- 14.

W e decline to adopt this interpretation for two reasons. First, the text of § 4617(f) is no t limited to declaratory, injunc

tive, or other equitable relief. Second, our FIRREA precedent suggests that § 4617(f) also bars some monetary claims

. 1. The text of § 4617(f) extends to monetary relief

. Section 4617(f) reads, in full: “Except as provided in this section or at the request of the Director, no court may take any action to restrain or affect the exercise of powers or functions of the Agency as a conservator or a receiver.” Nothing in that text refers to the type or form of remedy a plaintiff seeks. It says nothing about law versus equity or dam

ages versus injunctions. Rather , the text forbids courts to take23 “any action” that seeks to “restr ain or affect” the Agency’s ex

ercise of its powers as conservator. The focus is not on the form of requested relief, but its effect

. If monetary relief would have that effect, then it is barred . If not, then it is permitted

. 2. Our FIRREA precedent suppor ts applying § 4617(f) to some monetary relief

. That interpretation accords with o ur cases interpret ing FIRREA’s parallel provision. In Rosa v. Res

olution Trust Corp. , we held that § 1821(j) barred monetary re

lief granted as part of an injunction. 938 F. 2 d 383, 399 (3d Cir. 1991). We did not rely on the equitable nature of the relief. What mattered was that the relief would have impeded the Res

olution Trust Corporation’s powers as “conservator promptly to perform its important functions in dealing with th e savings and loan crisis.” Id. The plaintiffs were limited to seeking a “remedy that would not ‘restrain or affect’ the exercise of the receiver’s or conservator’s powers or functions.” Id. Our later precedent continued to apply Rosa ’s approach. Hindes , f or example, recognized that § 1821(j) leaves open “a judicial remedy for an appropriate damages claim.” 137 F.3d
at 161 (emphasis added) . But not all damages claims are ap

propriate. Courts have suggested that appropriate damages claims might include const itutional claims, breach

- of

- contract claims, claims authorized by FIRREA or the Recovery Act through the administrative process, claims based on ultra vires A gency action, and other damages claims that do not restrain or affect the Agency’s exercise of its authorized powers. See id. (constitutional claims); Perry Capital , 864 F.3d at 614 (same , as well as breach of contract); Saxton , 901 F.3d at 960 n.8 (Stras, J., concurring) (constitutional challenges to the24 Agency’s structure); Collins , 896 F.3d at 659 (same); Gross v. Bell Sav. Bank Pa SA , 974 F.2d 403, 407

- 08 (3d Cir. 1992) ( administrative claims authorized by FIRREA and claims of ultra vires agency action); Rosa , 938 F. 2 d at 399 (other claims that would not restrain or affect the exercise of authoriz ed pow

ers). Here, the challengers’ claims fall into none of th e se catego

ries. They are not constitutional. They have not gone through the Recovery Act’s administrative process. They do not flow from ultra vires agency action. And they are not claims for breach of contract

. Their claims would also restrain or affect the Agency’s ex

ercise of its statutory powers. The Recovery Act empowered the Agency to enter into the Third Amendment. And all parties agree that § 4617(f) bars declaratory and injunctive rel ief. But granting the challengers’ claims for damages, restitution, or disgorgement would require us to find the Third Amendment unlawful. T he challengers cannot evade the bar on declaratory relief by asking for such a declaration as the basis for awarding damages. No matter how we label the relief, striking down the Third Amendment would interfere with the Agency’s exercise of its powers as conservator

. Even apart from the declaratory aspect, awarding monetary relief would restrain or affect the Agency’s c onservatorship. The request for damages, disgorgement, and restitution, against both the Agency and the Treasury, would (as the chal

lengers concede) unravel the Third Amendment, reverse the monetary payments made under it, and prevent or at least deter the Agency from implementing it further. Those are the same25 consequences that would flow from granting an injunction or a declaratory judgment. So the monetary relief sought here would restrain or affect the exercise of the Agency’s powers as
conservator. All of it is barred by § 4617(f).

* * * * *

The challengers are in an unfortunate spot. They invested in Fannie and Freddie, expecting regular dividend payments in return. The Third Amendment destroyed those expectations. But the Recovery Act is clear . It empowered the Agency to enter into the Third Amendment. That deal complies with Del

aware law, Virginia law, and the Recovery Act itself. And the challengers’ requested relief would effectively unwind the Third Amendment. Doing so would restrain or affect the Agency’s exercise of its powers as conservator.

This we cannot do. So w e will affirm.