United States Ex Rel. Adams v. Aurora Loan Services, Inc.United States Ex Rel. Adams v. Aurora Loan Services, Inc.
Mark P. Guerrera, Sean C. Griffin, Sidley Austin LLP, Washington, D.C.; Mark E. Haddad, Douglas A. Axel, Sidley Austin LLP, Los Angeles, CA, for Defendants-Appellees.
Stuart F. Delery, Assistant Attorney General, Daniel G. Bogden, United States Attorney, Michael S. Raab and Melissa N. Patterson, Attorneys, Appellate Staff, United States Department of Justice, Washington D.C., for Amicus Curiae United States of America.
Before: BARRY G. SILVERMAN and RICHARD C. TALLMAN, Circuit Judges and ROBERT S. LASNIK,** Senior District Judge.
SILVERMAN, Circuit Judge:
The question presented by this appeal is whether the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) are officers, employees, or agents of the federal government for purposes of the False Claims Act,
The relators brought a False Claims Act suit against various lenders and loan servicers. In a nutshell, the relators alleged that defendants certified that loans purchased by Fannie Mae and Freddie Mac were free and clear of certain home owner association liens and charges when they were not. The relators alleged that these false certifications were made to Fannie Mae and Freddie Mac as instrumentalities of the United States.
As amended in 2009, the False Claims Act includes two definitions of the sort of “claim” that may give rise to liability under the statute. The first definition, in
The district court properly held that a claim presented to Fannie Mae or Freddie Mac is not presented to an “officer, employee or agent” of the United States. And that‘s because Fannie Mae and Freddie Mac are private companies, albeit companies sponsored or chartered by the federal government.
Our prior decision in Rust v. Johnson, 597 F.2d 174 (1979), where we held that Fannie Mae was a federal instrumentality for state/city tax purposes, does not change the result, because Rust does not address Fannie Mae or Freddie Mac‘s status under the False Claims Act. As we have previously held, just because an entity is considered a federal instrumentality for one purpose does not mean that the same entity is a federal instrumentality for another purpose. Kuntz v. Lamar Corp., 385 F.3d 1177, 1185 (9th Cir.2004). Fannie Mae‘s federal instrumentality status for state tax purposes doesn‘t answer whether Fannie Mae and Freddie Mac are also government entities for False Claims Act purposes. See Lewis v. United States, 680 F.2d 1239, 1242-43 (9th Cir.1982).
Nor does the Federal Housing Finance Agency‘s conservatorship transform Fannie Mae and Freddie Mac into federal instrumentalities. We agree that the FHFA has “all the rights, titles, powers and privileges of” Fannie Mae and Freddie Mac. Cty. of Sonoma v. Fed. Hous. Fin. Agency, 710 F.3d 987, 993 (9th Cir.2013) (quoting
Relators’ further reliance on Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, in support of their conservatorship argument does not change our view. In Lebron, the Supreme Court held that Amtrak was a part of the federal government for purposes of the First Amendment because, among other things, the government retained for itself permanent authority to appoint a majority of the corporation‘s directors. Lebron, 513 U.S. at 400, 115 S.Ct. 961. Even assuming that Lebron outlines the correct analytical framework for False Claims Act purposes, relators’ argument still fails, because relators do not allege that the conservatorship represents the federal government‘s retention of permanent authority to control Fannie Mae and Freddie Mac.
We express no opinion about whether the relators could state a claim under
Likewise, relators do not contend that they should have been granted leave to file
The judgment of the district court is AFFIRMED.