inline">Case: 17-20364 Document: 00516225209 Page: 1 Date Filed: 03/04/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 4, 2022 No. 17-20364 Lyle W. Cayce Clerk Patrick J. Collins; Marcus J. Liotta; William M. Hitchcock, Plaintiffs—Appellants, versus Janet Yellen, Secretary, U.S. Department of Treasury; Department of the Treasury; Federal Housing Finance Agency; Sandra L. Thompson, Acting Director of the Federal Housing Finance Agency, Defendants—Appellees. Appeal from the United States District Court for the Southern District of Texas USDC No. 4:16-CV-3113 Before Owen, Chief Judge, and Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson, Circuit Judges. Per Curiam, joined by Owen, Chief Judge, and Jones, Smith, Elrod, Southwick, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson, Circuit Judges: Case: 17-20364 Document: 00516225209 Page: 2 Date Filed: 03/04/2022 No. 17-20364 This court’s en banc decision, found at 938 F.3d 553

 (5th Cir. 2019),
   returns to us on remand from the Supreme Court. See Collins v. Yellen,

141 S. Ct. 1761

(2020). We REMAND for further proceedings consistent
with the Supreme Court’s decision.
In Collins, the Court affirmed our holding that the statutory “for
cause” removal provision applicable to the Director of the Federal Housing
Finance Agency (“FHFA,”) 1, which limited the President’s authority over
this Executive Branch principal officer, unconstitutionally violates the
separation of powers. 141 S. Ct. at 1783-87. In pertinent part, however, the
Court vacated and remanded other portions of our prior decision.
It is unnecessary to recount the Court’s reasoning aside from relevant
conclusions that differed from this court’s disposition. First, the Court
determined that the “Third Amendment” to agreements between the FHFA
and Treasury Department, which affects the Plaintiff-shareholders’ rights,
bore no constitutional infirmity in its inception. Second, the Senateconfirmed FHFA Directors who implemented the Third Amendment during
the pendency of the parties’ longstanding dispute “were properly
appointed[]” even though the President’s power to remove them remained
constrained. Id. (emphasis in original). Thus, the constitutional removal
defect, the Court held, did not render “any of the actions taken by the FHFA
in relation to the third amendment [] void.” Id.
Importantly, however, the latter conclusion “does not necessarily
mean . . . that the shareholders have no entitlement to retrospective relief.”
Id. at 1788. “[T]he possibility that the unconstitutional restriction on a
President’s power to remove a Director of the FHFA could have [inflicted
compensable harm] cannot be ruled out.” Id. at 1789. The Court went on,

12 U.S.C. §§ 4512

(a), (b)(2).




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                                   No. 17-20364


   very briefly, to sketch possible causes and consequences of such harm, along
   with the Federal Defendants’ denials of any such harm.

Id.

 The Court
   accordingly remanded the action for further proceedings consistent with its
   opinion.
          After this court heard oral argument on questions surrounding
   retrospective relief, it became clear that the prudent course is to remand to
   the district court to fulfill the Supreme Court’s remand order. And that is
   what we do.
          REMANDED for further proceedings consistent with the Supreme
   Court’s decision.




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                                        No. 17-20364


   Haynes, Circuit Judge, joined by Stewart, Dennis, Graves and
   Costa, Circuit Judges, dissenting:
          I respectfully dissent from the majority opinion’s decision to remand
   this case back to the district court to decide all the remaining issues in the
   first instance.     On the issue of harm, the Supreme Court expressly
   acknowledged the federal parties’ argument that the President “retained the
   power to supervise the Third Amendment’s adoption . . . because FHFA’s
   counterparty to the Amendment was Treasury—an executive department
   led by a Secretary subject to removal at will by the President.” Collins v.
   Yellen,

141 S. Ct. 1761

, 1789 (2021) (quotation and brackets omitted). It then
   instructed that “[t]he parties’ arguments should be resolved in the first
   instance by the lower courts.”

Id.

 (emphasis added).
          Nothing in this language precludes this court from deciding the harm
   issue. Indeed, we could easily do so in light of our previous conclusion that
   “the President, acting through the Secretary of the Treasury, could have
   stopped [the Net Worth Sweep] but did not.” Collins v. Mnuchin,

938 F.3d 553, 594

 (5th Cir. 2019) (en banc). As we also noted, President Trump later
   selected an acting Director as well as a new Director and never filed anything
   in this court opposing the Net Worth Sweep or its effects.

Id.

 He certainly
   could have picked different Directors who would carry out a different vision,
   if he sought that. 1
          Because the Shareholders have not pointed to sufficient facts to cast
   doubt on our previous conclusion, we should resolve this case on the above
   grounds. In other words, I think we should modify the district court’s
   judgment by granting declaratory relief in the Plaintiff’s favor, stating that


          1
             It is important to remember that claims for relief must have plausibility. See
   Ashcroft v. Iqbal,

556 U.S. 662, 678

 (2009).




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                                     No. 17-20364


   the “for cause” removal provision as to the Director of the FHFA is
   unconstitutional. In all other respects, we should affirm. Because the
   majority opinion fails to do so, I respectfully dissent.




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