FEDERAL

AGENCY;

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PLAINTIFFS’ RESPONSE TO

DEFENDANTS’ THIRD NOTICE OF SUPPLEMENTAL AUTHORITY

Plaintiffs, Leon County, Florida (“the County”) and the Leon County Energy

Improvement District (“LEID”), hereby respond to the third Notice of Supplemental

Authority filed by Defendants, the Federal Housing Finance Administration (“FHFA”),

and the Federal Home Loan Mortgage Corporation (“Freddie Mac”) and Federal National

IMPROVEMENT DISTRICT,

Plaintiffs,

V.

Case No.: 4:10CV436-RH/WCS

HOUSING FINANCE

EDWARD DeMARCO, in his

Acting Director of FEDERAL

FINANCE AGENCY;

HOME LOAN MORTGAGE

CORPORATION; CHARLES E.

HALDEMAN, JR., in his capacity as Chief

Executive Officer of FEDERAL HOMELOAN MORTGAGE CORPORATION;FEDERAL NATIONAL MORTGAGEASSOCIATION; and MICHAEL J.

WILLIAMS, in his capacity as Chief

Executive Officer of FEDERAL

NATIONAL MORTGAGE

ASSOCIATION,

Defendants.

Mortgage Association (“Fannie Mae”) (collectively the “Enterprises”).
Natural Resources Defense Council, Inc. v. Federal Housing Finance Agency, et al.,

1:10cv7647 (S.D.N.Y.) (Scheindlin, J.) granting FHFA’s motion to dismiss in a case

similar to the instant case. As they did in their previous Notice of Supplemental

Authority filed on June 14, 2011, Defendants go beyond merely pointing out the

relevance of the decision to the instant case. Defendants again argue that their Motion to

Dismiss in the instant case should be granted based on the holding in the Natural

Resources Defense Council case. However, like the court in Town ofBabylon (the basis

of Defendants’ second notice of supplemental authority), the court in Natural Resources

Defense Council did not engage in any substantive legal or factual inquiry into whetherFHFA was acting as the Enterprises’ regulator or conservator when it took the actionschallenged here.

In fact, neither court undertook any analysis concerning whether FHFA was

operating under its Housing and Economic Recovery Act (“HERA”) general regulatoryauthority to establish standards by regulation or guideline. Specifically, 12 U.S.C.

§451 3b(a)(7) provides that FHFA, under its general regulatory authority, shall establish

standards, by regulation or guideline, for each regulated entity relating to “investments

and acquisitions of assets by a regulated entity,” which is precisely what FHFA did in its

July 6, 2010 and February 28, 2011 statements. Neither in Natural Resources Defense

Council, Inc. nor the Town ofBabylon did the court analyze whether FHFA acted under

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Motion to Dismiss, pending before this Court.

Accepting the factual allegations in the complaint as true, as neither the court in

Town ofBabylon nor the court in Natural Resources Defense Council, Inc. appeared to

do, dismissal is appropriate only where it is clear that the plaintiff cannot prove a set of

facts in support of the claims in the complaint. Marshall County Board of Education v.

Marshall County Gas District, 992 F.2d 1171, 1174 (11th Cir. 1993). Plaintiffs have

alleged and can prove that FHFA was acting in its regulatory capacity when it took thechallenged actions. Also, Plaintiffs reiterate that it is settled law that a “district court is

not bound by another district court’s decision, or even an opinion by another judge ofthe

same district court,” Fox v. Acadia State Bank, 937 F.2d 1566, 1570 (11th Cir 1991), but

respectfully request the opportunity to further brief the issues argued by Defendants’ in

their multiple notices ifthey are to be considered by the Court.

Respectfully submitted this 23” day ofJune, 2011.

Is! Edwin A. Steinmeyer

Herbert W. A. Thiele

Florida Bar No.: 0261327LEON COUNTY ATTORNEY’S OFFICE

301 S. Monroe Street, Suite 202

Tallahassee, Florida 32301

Telephone: (850) 606-2500Facsimile: (850) 606-2501

thieleh@leoncountysl.gov

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Facsimile: (850) 224-9242esteinmeyer@llw-law.com

Erin L. DeadyFlorida Bar No.: 0367310LEWIS, LONGMAN & WALKER, P.A.

515 North Flagler Drive, Suite 1500

West Palm Beach, Florida 33401

Telephone: (561) 640-0820Facsimile: (561) 640-8202edeady@llw-law.com

Attorneysfor Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on the 23d day of June, 2011, I electronically filed the

foregoing pleading with the Clerk of the Court by using the CM/ECF system, which willsend a Notice of Electronic Filing to all counsel of record.

By: /s/ Edwin A Steinmeyer

Edwin A. Steinmeyer

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