D.C. Circuit Says that Fannie Mae, Even Under Conservatorship, is No Government Actor

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled yesterday that Fannie Mae, a government-sponsored but privately-owned corporation, but now under conservatorship of an independent government agency, cannot be sued for a First Amendment violation. The court said that the corporation, even under conservatorship, isn't a government actor.

The case involves a Fannie Mae contractor, Caroline Herron, who alleged that Fannie Mae officials retaliated against her for raising concerns about mismanagement at the corporation. Herron brought a Bivens claim against Fannie Mae officials for a free-speech violation, among other claims. But the Bivens claim hinges, of course, on Fannie Mae officials being government actors. Herron argued that they were, because Fannie Mae is under conservatorship of an independent federal agency, the Federal Housing Finance Agency. In other words, the conservatorship converted Fannie Mae (an otherwise private actor) into a government actor.

The D.C. Circuit rejected that argument. The court looked to the three-part test in Lebron v. National R.R. Passenger Corp. for determining whether a "[g]overnment-created and -controlled corporation[]" is a government actor for constitutional purposes. The court held that (1) the government created Fannie Mae (2) "for the furtherance of governmental objectives." But the court held that (3) under the terms of the conservatorship the government didn't permanently control it. "Although there is no specific termination date, the purpose of the conservatorship is to restore Fannie Mae to a stable condition. 'This is an inherently temporary purpose.'" For the court, it's the purpose of the indefinite conservatorship, not its internal self-destruct clause (which didn't exist), that matters.

The ruling ends Herron's case. (The course dismissed her other claims, too.)