Full opinion text
CLASS ACTION MEMORANDUM OPINION ROYCE C. LAMBERTH, United States District Judge Before the Court are motions to dismiss or, in the alternative, for summary judgment, filed by the defendants United States Department of the Treasury (“Treasury”) and Federal Housing Finance Agency (“FHFA”), as well as a cross-motion for summary judgment on Administrative Procedure Act (“APA”) claims filed by the Perry, Fairholme, and Arrowood plaintiffs (collectively, “individual plaintiffs”). Upon consideration of the defendants’ respective motions to dismiss, the individual plaintiffs’ cross-motion for summary judgment, the various opposition and reply briefs thereto filed by the defendants, the individual plaintiffs, and the class action plaintiffs (“class plaintiffs”), the applicable law, and the entire record herein, the Court will GRANT the defendants’ motions to dismiss and DENY the individual plaintiffs’ cross-motion for summary judgment. I. BACKGROUND This matter is brought before the Court by both a class action lawsuit and a set of three individual lawsuits. These four lawsuits contain numerous overlapping, though not identical, claims. The purported class plaintiffs consist of private individual and institutional investors who own either preferred or common stock in the Federal National Mortgage Association (“Fannie Mae”) or the Federal Home Loan Mortgage Corporation (“Freddie Mac”). Am. Compl. at ¶¶ 30-44, In re Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement Class Action Litigs., No. 13-1288 (D.D.C. Dec. 3, 2013), ECF No. 4 (“In re Fannie Mae/Freddie Mac Am. Compl.”); Derivative Compl. at ¶¶ 19-21, In re Fannie Mae/Freddie Mac, No. 13-1288 (D.D.C. July 30, 2014), ECF No. 39 (“In re Fannie Mae/Freddie Mac Derivative Compl.”). The individual plaintiffs comprise a collection of private investment funds and insurance companies. Compl. at ¶¶ 25-27, Perry Capital LLC v. Lew, No. 13-1025 (D.D.C. July 7, 2013), ECF No. 1 (“Perry Compl.”); Compl. at ¶¶ 18-28, Fairholme Funds, Inc., v. FHFA No. 13-1053 (D.D.C. July 10, 2013), ECF No. 1 (“Fairholme Compl.”); Compl. at ¶¶ 15-19, Arrowood Indem. Co. v. Fannie Mae, No. 13-1439 (D.D.C. Sept. 20, 2013), ECF No. 1 (“Arrowood Compl.”). Fannie Mae and Freddie Mae are government-sponsored enterprises (“GSEs”), born from statutory charters issued by Congress. See Federal National Mortgage Association Charter Act, 12 U.S.C. §§ 1716-1723; Federal Home Loan Mortgage Corporation Act, 12 U.S.C. §§ 1451-1459. Congress created the GSEs in order to, among other goals, “promote access to mortgage credit throughout the Nation ... by increasing the liquidity of mortgage investments and improving the distribution of investment capital available for residential mortgage financing.” 12 U.S.C. § 1716(3). In other words, the GSEs’ shared purpose was to make it easier (i.e., less risky) for local banks and other lenders to offer mortgages to prospective home buyers. The GSEs sought to accomplish this objective by purchasing mortgage .loans from lenders, thus relieving lenders of default risk and “freeing up lenders’ capital to make additional loans.” See Treasury Defs.’s Mot. to Dismiss, or, in the Alternative, for Summ. J. at 6 (D.D.C. Jan. 17, 2014) (“Treasury Mot.”).- In order to finance this operation, the GSEs would, primarily, pool the many mortgage loans they purchased into various mortgage-backed securities and sell these securities to investors. See, e.g., Individual Pls.’s Opp’n and Cross-Mot. for Summ. J. at 4 (D.D.C. Mar. 21, 2014) (“Individual Pls.’s Opp’n”). Fannie Mae and Freddie Mac are considered government-sponsored, rather than government-cncweci, because both congressionally chartered entities were eventually converted, by statute, into publicly traded corporations. Housing and Urban Development Act, Pub.L. No. 90-448, § 802, 82 Stat. 536-538 (1968);-Financial Institutions Reform, Recovery and Enforcement Act, Pub.L. No. 101-73, §.731, 103 Stat. 432-433 (1989). Yet despite this historically market-driven ownership structure, “the GSEs have benefit-ted from a public perception that the federal government had implicitly guaranteed the securities they issued; this perception allowed the GSEs to purchase more mortgages and [mortgage-backed securities], at cheaper rates, than would otherwise prevail in the private market.” Treasury Mot. at 6-7. By 2008, the United States economy faced dire straits, in large part due to a massive decline within the national housing .market. See Individual Pls.’s Opp’n at 7. “As a result of the housing crisis, the value of the [GSEs’] assets ... deteriorated and the [GSEs] suffered ... credit losses in their portfolios.” FHFA Mot. to Dismiss, or, in the Alternative, for Summ. J. at 7 (D.D.C. Jan. 17, 2014) (“FHFA Mot.”). Given the systemic danger that a Fannie Mae or Freddie Mac collapse posed to the already fragile national economy, among other housing market-related perils, Congress enacted the Housing and Economic Recovery Act (“HERA”) on July 30, 2008. See Individual Pls.’s Opp’n at 6; Pub.L. No. 110-289, 122 Stat. 2654. HERA established FHFA as an independent agency to supervise and regulate the GSEs. 12 U.S.C. § 4511. HERA further granted FHFA’s director the authority to appoint the agency as conservator or receiver for the GSEs. 12 U.S.C. § 4617(a). Of most relevance to the present litigation, HERA empowered FHFA, as conservator or receiver, to “immediately succeed to — (i) all rights, titles, powers, and privileges of the [GSE], and of any stockholder, officer, or director of such [GSE] with respect to the [GSE] and the assets of the [GSE].” 12 U.S.C. § 4617(b)(2)(A)(i). The statute also set forth a ,“[l]imitation on court action,” noting that, “[e]xcept 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 [FHFA] as a conservator or a receiver.” 12 U.S.C. § 4617(f). Moreover, apparently recognizing that Treasury {i.e., taxpayer) funds may soon be necessary to capitalize the struggling GSEs, Congress, under HERA, amended the GSEs’ charters to temporarily authorize Treasury to “purchase any obligations and other securities issued by the [GSEs].” 12 U.S.C. § 1455©(1)(A) (Freddie Mac); 12 U.S.C. § 1719(g)(1)(A) (Fannie Mae). This provision also provided that the “Secretary of the Treasury may, at any time, exercise any rights received in connection with such purchases.” 12 U.S.C. § 1719(g)(2)(A). Treasury’s authority to invest in the GSEs expired on December 31, 2009. 12 U.S.C. § 1719(g)(4). Following the GSEs’ unsuccessful effort to “raise capital in the private markets,” FHFA Mot. at 7-8, FHFA placed the GSEs into conservatorship on September 6, 2008. See, e.g., Class Pls.’s Opp’n at 7 (D.D.C. Mar. 21, 2014) (“Class Pls.’s Opp’n”). One day later, Treasury, pursuant to 12 U.S.C. § 1719(g), entered into Senior Preferred Stock Purchase Agreements (“PSPAs”) with each of the GSEs. Individual Pls.’s Opp’n at 8. Under the initial PSPAs, Treasury committed to provide up to $100 billion in funding to each GSE “to ensure that their assets were equal to their liabilities” — ie., to “cure [the GSEs’] negative net worth” — at the end of any fiscal quarter. Id.; FHFA Mot. at 11. On May 6, 2009, Treasury and the GSEs, through FHFA, entered into the First Amendment to the PSPAs, whereby Treasury doubled its funding cap to $200 billion for each GSE. Individual Pls.’s Opp’n at 11. On December 24, 2009, the parties executed the Second Amendment, which permitted the GSEs to continue to “draw unlimited sums from Treasury [as required to cure any quarterly negative net worth] until the end of 2012,” and then, as of December 31, 2012, permanently fixed the funding cap for each GSE (at an amount that, in the end, totaled greater than $200 billion per GSE), in accordance with an agreed-upon formula. Id. at 11-12; FHFA Mot. at 12; see also Treasury AR at 190-91,196-97. In exchange for its funding commitment, Treasury received senior preferred stock in each GSE, which entitled Treasury to four principal contractual rights under the PSPAs. ' See, e.g., Treasury AR at 14. First, Treasury received a senior liquidation preference of $1 billion for each GSE plus a dollar-for-dollar increase each time the GSEs drew upon Treasury’s funding commitment. Individual Pls.’s Opp’n at 8-9 (citing Treasury AR at 100, 133). Second, the PSPAs entitled Treasury to dividends equivalent to 10% of Treasury’s existing liquidation preference, paid quarterly. Id. at 9 (citing AR at 32-33, 67-68); Treasury Mot. at 13. Third, Treasury received warrants to acquire up to 79.9% of the GSEs’ common stock at a nominal price. Individual Pls.’s Opp’n at 9; e.g., Treasury AR at 15, 43. Fourth, beginning, on March 31, 2010, Treasury would be entitled to a periodic commitment fee “to fully compensate [Treasury] for the support provided by the ongoing [funding] [c]ommitment.” Treasury AR at 22, 56. The amount of the periodic commitment fee was to be determined by mutual agreement, and Treasury reserved the right to waive the fee for one year at a time “based on adverse conditions in the United States mortgage market.” Id. Treasury waived the commitment fee in 2010 and 2011, and later, under the Third Amendment, the fee was suspended. Treasury Mot. at 14,18. As of August 8, 2012, Treasury had provided $187.5 billion in funding to the GSEs, and, thus, held a total $189.5 billion senior liquidation preference between both GSEs, including the initial $1 billion liquidation preferences from each GSE. Therefore, “the GSEs’ dividend obligations to Treasury were nearly $19 billion per year.” Treasury Mot. at 16. On August 17, 2012, Treasury and the GSEs, through FHFA, agreed to the Third Amendment to the PSPA, which is the focus of this litigation. The Third Amendment “replaced the previous dividend formula with a-requirement that the GSEs pay, as a dividend, the amount by which their net worth for the quarter exceeds a capital buffer of $3 billion. The capital buffer gradually declines over time by $600 million per year, and is entirely eliminated in 2018.” Treasury Mot. at 18. In simpler terms, the amendment “requires Fannie Mae and Freddie Mac to pay a quarterly dividend to Treasury equal to the entire net worth of each Enterprise, minus a small reserve that shrinks to zero over time.” Class Pls.’s Opp’n at 3. These dividend payments do not reduce Treasury’s outstanding liquidation preferences. See Individual Pls.’s Opp’n at 16. The plaintiffs cite multiple justifications offered publicly by the defendants for this “net worth sweep.” See Individual Pls.’s Opp’n at 16-17. First, Treasury asserted that the amendment will end “the circular practice of the Treasury advancing funds to the [GSEs] simply to pay dividends back to Treasury.” Id. at 16 (citing Press Release, Treasury Dep’t Announces Further Steps to Expedite Wind Down of Fannie Mae and Freddie Mac (Aug. 17, 2012), available at http://www.treasury.gov/press-center/press-releases/Pages/tgl684.aspx); see also Treasury Mot. at 2, 5, 50; FHFA Mot. at 3, 15-16. However, the plaintiffs counter that in 2012, the GSEs were once again profitable and, pertinently, able to pay the 10% dividend without drawing additional funds from Treasury. Id at 14-15; but see Fairholme Compl. at ¶ 26 (stating that “approximately $26 billion” of Treasury’s current liquidation preference “were required simply to pay the 10% dividend payments owed to Treasury”). Second, quoting from the same Treasury press release, the plaintiffs note Treasury’s statement that the net worth sweep is consistent with the Obama Administration’s “commitment ... that the GSEs will be wound down and will not be allowed to retain profits, rebuild capital, and return to the market in their prior form.” Id. at 16-17. Third, according to the press release, the net worth sweep would “make sure that every dollar of earnings that Fannie Mae and Freddie Mac generate will be used to benefit taxpayers for their investment in those firms.” Id. at 17. Under the Third Amendment net worth sweep, the GSEs paid Treasury nearly $130 billion in 2013. Treasury AR at 4352. As mentioned above, under the former dividend arrangement requiring payment equivhlent to 10% of Treasury’s existing liquidation preference, the GSEs would have owed nearly $19 billion. Through 2013, the cumulative draws of Treasury funding taken by the GSEs remained $187.5 billion, id. at 4351, and the cumulative dividends paid to Treasury by the GSEs totaled $185.2 billion, id. at 4352. Notwithstanding the plaintiffs’ attempt to downplay the need for a GSE bailout in the first place, see, e.g., Individual Pls.’s Opp’n at 6, 10-11, the plaintiffs do not contest the initial PSPA or subsequent two amendments to the PSPA, see, e.g., Class Pls.’s. Opp’n at 11, but rather only challenge the Third Amendment to the PSPA. The class plaintiffs have brought claims of breach of contract, regarding allegedly promised dividends and liquidation preferences, breach of the implied covenant of good faith and fair dealing, and an unconstitutional taking, as well as derivative claims of breach of fiduciary duty. The Perry plaintiff has brought claims under the Administrative Procedure Act (“APA”). The Arrowood plaintiffs have also brought APA claims, as well as claims of breach of contract, regarding allegedly promised dividends and liquidation preferences, and breach of the implied covenant of good faith and fair dealing. The Fair-holme plaintiffs have brought the same claims as the Perry and Arrowood plaintiffs with an additional claim of breach of fiduciary duty against FHFA. The parties dispute whether the Fairholme plaintiffs’ fiduciary duty claim is direct or derivative. See infra n.24. On January 17, 2014, the defendants moved to dismiss the complaints against the Third Amendment for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6). In the alternative, the defendants moved for summary judgment pursuant to Rule 56. In their opposition, filed March 21, 2014, the individual plaintiffs presented a cross-motion for summary judgment. II. LEGAL STANDARD “Federal courts are of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Under Rule 12(b)(1), the plaintiffs bear the burden of demonstrating that subject matter jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C.Cir.2008). The Court must “assume the truth of all material factual allegations in the complaint and construe the complaint liberally, granting [the] plaintiff[s] the benefit of all inferences that can be derived from the facts alleged.” Am. Nat. Ins. Co. v. F.D.I.C., 642 F.3d 1137, 1139 (D.C.Cir.2011) (internal quotation marks and citation omitted). But “[b]ecause subject-matter jurisdiction focuses on the [C]ourt’s power to hear the claim ..., the [C]ourt must give the plaintiff[s’] factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim.” Youming Jin v. Ministry of State Sec., 475 F.Supp.2d 54, 60 (D.D.C.2007). Furthermore, when evaluating a Rule 12(b)(1) motion to dismiss, “it has been long accepted that the [Court] may make appropriate inquiry beyond the pleadings to satisfy itself on authority to entertain the case.” Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987) (internal quotation marks and citation omitted). A motion to dismiss is also appropriate when the complaint fails “to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). The Court does not “require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Once again, “the complaint is construed liberally in the plaintiffs’ favor, and [the Court] grant[s] plaintiffs the benefit of all inferences that can be derived from the facts alleged. However, the [C]ourt need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the [C]ourt accept legal conclusions cast in the form of factual allegations. Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994) (internal quotation marks and citation omitted). “If, on a motion under Rule 12(b)(6) ..., matters outside the pleadings are presented to and hot excluded by the [C]ourt, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12. III. ANALYSIS A. HERA Bars the Plaintiffs’ Prayers for Declaratory, Injunctive, and Other Equitable Relief against FHFA and Treasury By this Court’s calculation, twenty-four of the thirty-one substantive prayers for relief requested by the plaintiffs across their five complaints seek declaratory, in-junctive, or other equitable relief against FHFA or Treasury. See also FHFA Mot. at 22 n.13. Such relief runs up against HERA’s anti-injunction provision, which declares that “no court may take any action to restrain or affect the exercise of powers or functions of [FHFA] as a conservator or a receiver.” 12 U.S.C. § 4617(f). While case law adjudicating HERA-related disputes is generally sparse, “[e]ourts interpreting the scope of [§ ] 4617(f) have relied on decisions addressing the nearly identical jurisdictional bar applicable to the Federal Deposit Insurance Corporation (‘FDIC’) conservatorships contained in 12 U.S.C. § 1821(j).” Natural Res. Def. Council, Inc. v. FHFA, 815 F.Supp.2d 630, 641 (S.D.N.Y.2011), aff'd sub nom. Town of Babylon v. FHFA 699 F.3d 221 (2d Cir.2012). Congress passed the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub.L. No. 101-73, 103 Stat. 183, during the savings and loan crisis to enable the FDIC (and, formerly, the Resolution Trust Corporation (“RTC”)) to serve as a conservator or receiver for troubled financial institutions. It was with this backdrop that the Court of Appeals for the District of Columbia Circuit, in Freeman v. FDIC, explained that the language of § 1821© “does indeed effect a sweeping ouster of courts’ power to grant equitable remedies.” 56 F.3d 1394, 1399 (D.C.Cir.1995). The Circuit held that the FIRREA provision precludes courts from granting “non-monetary remedies, including injunctive relief [] [and] declaratory relief’ that would “effectively ‘restrain’ the [agency] from” exercising its statutorily authorized responsibilities. Id. (quoting' 12 U.S.C. § 1821©). As the parties both agree, an equivalent bar on jurisdiction derives from HERA’s substantially identical anti-injunction provision. E.g., Individual Pls.’s Opp’n at 31-32. Like a number of its sister circuits, however, this Circuit has established that, if the agency “has acted or proposes to act beyond, or contrary to, its statutorily prescribed, constitutionally permitted, powers or functions,” then 12 U.S.C. § 4617(f) shall not apply. Nat'l Trust for Historic Pres. v. FDIC, 21 F.3d 469, 472 (D.C.Cir. 1994) (Wald, J., concurring) (internal quotation marks and citation omitted) (referring to 12 U.S.C. § 1821(j); see also Leon Cnty., Fla. v. FHFA 700 F.3d 1273, 1278 (11th Cir.2012) (“ ‘[I]f the FHFA were to act beyond statutory or constitutional bounds in a manner that adversely impacted the rights of others, § 4617(f) would not bar judicial oversight or review of its actions.’ ”) (quoting In re Freddie Mac Derivative Litig., 643 F.Supp.2d 790, 799 (E.D.Va.2009)); Cnty. of Sonoma v. FHFA 710 F.3d 987, 992 (9th Cir.2013) (“[T]he anti judicial review provision is inapplicable when FHFA acts beyond the scope of its conservator power.”). Thus, the question for this Court is whether the plaintiffs sufficiently plead that FHFA acted beyond the scope of its statutory “powers or functions ... as a conservator” when the agency executed the 'Third Amendment to the PSPAs with Treasury. 12 U.S.C. § 4617(f). If not, the Court must dismiss all of the defendants’ claims for declaratory, injunctive, or other equitable relief. 1. Section 4617(f) Bars Claims of Arbitrary and Capricious Conduct, under APA § 706(2) (A), Which Seek Declaratory, Injunctive, or Other Equitable Relief While there is a “strong presumption that Congress intends judicial review of administrative action,” Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986), that presumption is “defeated if the substantive statute precludes review.” Heckler v. Chaney, 470 U.S. 821, 843, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (citing 5 U.S.C. § 701(a)(1)). The plaintiffs do not discuss the applicability of 5 U.S.C. § 701(a)(1) of the APA to the present case in any of their oppositions, except to cite Reno v. Catholic Soc. Servs., 509 U.S. 43, 63-64, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993), in the individual plaintiffs’ opposition and reply briefs for the proposition that the Court can preclude APA review “only if presented with clear and convincing evidence” of congressional intent to preclude such review. E.g., Individual Pls.’s Reply to Defs.’s Mot. for Summ. J. at 15-16 (D.D.C. June 2, 2014) (“Individual Pls.’s Reply”). The individual plaintiffs are correct in that the “presumption of judicial review [under the APA] is, after all, a presumption, and like all presumptions used in interpreting statutes, may be overcome by, inter alia, specific language ... that is a reliable indicator of congressional intent ... to preclude judicial review.” Bowen, 476 U.S. at 673, 106 S.Ct. 2133 (internal quotation marks arid citation omitted). HERA’s express anti-injunction provision, which, as explained below, necessarily covers litigation arising out of contracts executed by FHFA in accordance with its duties as a conservator, qualifies as a reliable indicator of .congressional intent to preclude review of non-monetary APA claims brought against both FHFA and Treasury. Importantly, when applying FIRREA’s anti-injunction provision, 12 U.S.C § 1821(j), this Circuit has only considered whether the FDIC acted beyond “its statutorily prescribed, constitutionally permitted, powers or functions” under FIRREA, specifically, and not whether it acted beyond any of its more general APA obligations under 5 U.S.C. § 702(2). See Nat’l Trust, 21 F.3d at 472 (Wald, J., concurring and further noting that, “given the breadth of the statutory language [of § 1821(j) ], untempered by any persuasive legislative history pointing in a different direction, the statute would appear to bar a court from acting in virtually all circumstances”); Freeman, 56 F.3d at 1398-99; MBIA Ins. Corp. v. FDIC, 816 F.Supp.2d 81, 103 (D.D.C.2011), aff'd, 708 F.3d 234 (D.C.Cir.2013); see also Leon Cnty., 700 F.3d at 1278-79. In other words, this Circuit, like the APA itself, implicitly draws a distinction between acting beyond the scope of the constitution or a statute, see § 702(2)(B) and (C), and acting within the scope of a statute, but doing so arbitrarily and capriciously, see § 702(2)(A). This distinction arises directly from the text of § 4617(f), which prohibits the Court from restraining “the exercise of powers or functions of [FHFA]” — i.e., restraining how FHFA employs its powers or functions — but does not prohibit review based upon the statutory or constitutional origin of the powers or functions themselves, (emphasis added). Consequently, it does appear that § 4617(f) bars all declaratory, injunctive, or other equitable relief stemming from claims of arbitrary and capricious decisionmaking, under APA § 706(2)(A). Thus, the two counts in each of the Perry, Fairholme, and Arrowood Complaints, and related prayers for relief, that claim APA violations for arbitrary and capricious conduct by both Treasury and FHFA are hereby dismissed pursuant to Rule 12(b)(1). 2. Section 4617(f) Applies to Treasury’s Authority under HERA As a threshold matter, the plaintiffs contend that § 4617(f) does not bar claims against Treasury because the provision only governs claims against FHFA. However, the defendants’ argument that granting relief against the counterparty to a contract with FHFA would directly restrain FHFA’s ability as a conservator visa-vis that contract is based on sound reasoning. See, e.g., Treasury Reply at 12-13 (collecting cases outside of this Circuit). Conduct by a counterparty that is required under a contract with FHFA does not merely constitute “a peripheral connection to FHFA’s activities as the [GSEs’] conservator.” See Individual Pls.’s Opp’n at 29. To the contrary, such interdependent, contractual conduct is directly connected to FHFA’s activities as a conservator. A plaintiff is not entitled to use the technical wording of her complaint — ie., bringing a claim against a counterparty when the contract in question is intertwined with FHFA’s responsibilities as a conservator— as an end-run around HERA. Therefore, § 4617(f) applies generally to litigation concerning a contract signed by FHFA pursuant to its powers as a conservator. Additionally, when the counter-party to FHFA’s contract — Treasury—is also a government entity operating based on authority derived from HERA, e.g. 12 U.S.C. § 1719(g) (temporarily authorizing Treasury to purchase GSE securities), HERA’s anti-injunction provision may be logically extended to that government counterparty. Likewise, if FHFA, as a conservator or receiver, signs a contract with another governmept entity that is acting beyond the scope of its HERA powers, then FHFA is functionally complicit in its counterparty’s misconduct, and such unlawful actions may be imputed to FHFA. Here, as noted above, there can be little doubt that enjoining Treasury from partaking in the Third Amendment would restrain FHFA’s uncontested authority to determine how to conserve the viability of the GSEs. Accordingly, the Court must decide whether Treasury acted in contradiction of its temporary power, under HERA, to invest in the GSEs. The individual plaintiffs argue that Treasury acted beyond the scope of HERA because the Third Amendment constitutes the purchase of new GSE securities after HERA’s December 31, 2009 sunset provision and because Treasury violated the APA by acting arbitrarily and capriciously when entering into the net worth sweep. Here, given § 4617(f)’s bar on nonmone-tary claims of arbitrary and capricious de-cisionmaking under the APA, the Court must only consider whether Treasury purchased new securities through the Third Amendment. 3. Treasury’s Execution of the Third Amendment Does Not Constitute the Purchase of New Securities in Contravention of HERA The individual plaintiffs argue that Treasury violated the sunset provision associated with its authority to purchase GSE securities under 12 U.S.C. § 1719(g) because the Third Amendment was not an “exercise of rights” under the statute and because the Third Amendment was effectively a purchase of new securities after December 31, 2009. Individual Pis/s Opp’n at 37. Both claims are unpersuasive. Asserting that the Third Amendment was not the exercise of a right, as allegedly required for any “market participation]” after 2009, the individual plaintiffs state that, “[a]s of 2010, Treasury’s authority as a market participant was limited to ‘holding], exercis[ing] any rights received in connection with, or sell[ing] any obligations or securities purchased’ ” from the GSEs. Individual Pls.’s Opp’n at 36-37 (quoting 12 U.S.C. § 1719(g)(2)(D)). But this contention overreads the provision governing the application of the statutory expiration date to purchased securities. While § 1719(g)(2)(D) notes that holding securities, exercising any rights under the securities contract, or selling securities are specifically exempt from the sunset provision, the existence of that provision does not therefore preclude other non-security-purchasing activities otherwise permitted under an already agreed-upon, pre-2010 investment contract with the GSEs. To then say that the purchase authority sunset provision also categorically prohibits any provision within Treasury’s contracts with the GSEs that requires “mutual assent” is to reach too far. Cf Individual Pls.’s Opp’n at 38. Thus, whether or not amending the PSPA is a “right,” as understood under § 1719(g), is irrelevant, as long as the Third Amendment did not constitute a purchase of new securities. Here, Treasury purchased one million senior preferred shares in each GSE in exchange for a number of contractual entitlements. E.g., Treasury AR at 21-22 (Fannie Mae PSPA). This “purchase” of GSE securities required Treasury to provide the GSEs with a funding commitment. While in all three amendments that followed this purchase Treasury never received additional GSE shares, under the first two amendments, Treasury provided the GSEs with an expanded funding commitment. The individual plaintiffs cite the “Action Memorandum for [Treasury] Secretary Geithner,” which invokes Treasury’s statutory purchasing authority under § 1719(g) as a justification for the funding expansion, as evidence that the Third Amendment was also a purchase of securities. Individual Pls.’s Reply at 21 (Treasury AR at 181-88). The Court, however, does not accept that a reference to Treasury’s general purchasing authority in a memorandum to Secretary Geithner regarding the Second Amendment means that the Second Amendment (and First Amendment, for that matter) was, in fact, a purchase of new obligations or securities according to § 1719(g)(1)(a). While Treasury’s funding commitment is the currency by which Treasury purchased shares, which came with additional rights for Treasury, in the original PSPAs, no new shares or obligations were purchased during the first two amendments. Treasury’s receipt of “valuable consideration” — i.e., the potential for increased liquidation preferences as the GSEs drew more funding— for these amendments does not, on its own, constitute the purchase of new GSE securities under § 1719(g)(1)(a). Cf. Individual Pls.’s Reply at 21. Yet regardless of whether the first two amendments to the PSPAs should be considered a purchase of new securities, the Court finds that Treasury did not purchase new securities under the Third Amendment. Under the Third Amendment — unlike the first two amendments— Treasury neither granted the GSEs additional funding commitments nor received an increased liquidation preference. Instead, Treasury agreed to a net worth sweep in exchange for eliminating the cash dividend equivalent to 10% of the GSEs’ liquidation preference. This net worth sweep represented a new formula of dividend compensation for a $200 billion-plus investment Treasury had already made. As FHFA further claims, the agency executed the Third Amendment to ameliorate the existential challenge of paying the dividends it already owed pursuant to the GSE securities Treasury purchased through the PSPA; it did not do so in order to sell more GSE securities. FHFA Mot. at 3 (“The [GSEs] were unable to meet their 10% dividend obligations without drawing more from Treasury, causing a downward spiral of repaying preexisting obligations to Treasury through additional draws from Treasury.”) (emphasis added). Notwithstanding plaintiffs’ contentions regarding the “fundamental change doctrine,” Treasury’s own tax regulations, or otherwise, the present fact pattern strikes the Court as straightforward, at least in the context of the applicability of § 1719(g)’s sunset provision.. Without providing an additional funding commitment or receiving new securities from the GSEs as consideration for its Third Amendment to the already existing PSPAs, Treasury cannot be said to have purchased new securities under § 1719(g)(1)(a). Treasury may have amended the compensation structure of its investment in a way that plaintiffs find troubling, but doing so did not violate the purchase authority sunset provision. § 1719(g)(4). 4. FHFA Acted within Its Statutory Authority The individual plaintiffs put forth a number of claims that FHFA violated HERA by entering into the Third Amendment. These arguments concern both FHFA’s conduct and the purported reasons for FHFA’s conduct — the what and the why, so to speak. At bottom, the Third Amendment sweeps nearly all GSE profit dollars to Treasury. The result for non-Treasury shareholders is virtually no likelihood of dividend payments (given the lack of profits along with Treasury’s discretion to pay dividends, see, e.g. Treasury AR at 58 (Freddie Mac PSPA § 5.1)) and a decrease in the potential liquidation preference they would receive if the company liquidated, during a period of profitability. Both parties essentially admit this same depiction in their briefs, biased adjectives aside. Looking past the financial engineering involved in the PSPAs and subsequent amendments, the question for this Court, simply, is whether the net worth sweep amendment represents conduct that exceeds FHFA’s authority under HERA — a statute of exceptional scope that gave immense discretion to FHFA as a conservator. It is surely true that “FHFA cannot evade judicial scrutiny by merely labeling its actions with a conservator stamp.” Leon Cnty. v. FHFA, 700 F.Sd 1273, 1278 (11th Cir.2012). Yet construing the allegations in a light most favorable to the plaintiffs, the Court finds that the plaintiffs fail to demonstrate by a-preponderance of the evidence — if at all — that FHFA’s execution of the Third Amendment violated HERA. See, e.g., Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F.Supp.2d 15, 19 (D.D.C.1998) (“The plaintiff bears the burden of persuasion to establish subject matter jurisdiction by a preponderance of the evidence.”). As such, the plaintiffs cannot overcome § 4617(f)’s jurisdictional bar on equitable relief. a. FHFA’s Justifications for Executing the Third Amendment and, Consequently, the Accompanying Administrative Record, Are Irrelevant for § 1617(f) Analysis The extraordinary breadth of HERA’s statutory grant to FHFA as a conservator or receiver for the GSEs, likely due to the bill’s enactment during an unprecedented crisis in the housing market, Cf. Freeman, 56 F.3d at 1398, coupled with the anti-injunction provision, narrows the Court’s jurisdictional analysis to what the Third Amendment entails, rather than why FHFA executed the Third Amendment. See also id. (the anti-injunction provision applies “unless [the conservator] has acted ... beyond, or contrary to, its statutorily prescribed, constitutionally permitted, powers or functions.”). Nevertheless, the individual plaintiffs focus a sizable portion of their opposition and reply briefs on disputing FHFA’s justifications for the Third Amendment. See Individual Pls.’s Opp’n at 58-73; Individual Pls.’s Reply at 31-39. Similarly, the individual plaintiffs argue that FHFA violated HERA by not producing the full administrative record. Individual Pls.’s Opp’n at 46-51; Individual Pls.’s Reply at 26-29. Both sets of claims ask the Court, directly or indirectly, to evaluate FHFA’s rationale for entering into the Third Amendment — a request that contravenes § 4617(f). Claims that FHFA’s varying explanations for entering into the Third Amendment reveal that the agency’s conduct went beyond its statutory authority under HERA — which are merely extensions of the individual plaintiffs’ arbitrary and capricious arguments under a differ-ént subheading — share the same fate as the plaintiffs APA arbitrary and capricious claims. Once again, to determine whether it has jurisdiction to adjudicate claims for equitable relief against FHFA as a conservator, the Court must look at what has happened, not why it happened. For instance, the Court will examine whether the Third Amendment actually resulted in a de facto receivership, infra; not what FHFA has publicly stated regarding any power it may or may not have, as conservator, to prepare the GSEs for liquidation, see Individual Pls.’s Opp’n at 58-66. FHFA’s underlying motives or opinions — i.e., whether the net worth sweep would arrest a downward spiral of dividend payments (see also supra n.7), increase payments to Treasury, or keep the GSEs in a holding pattern, Individual Pls.’s Opp’n at 66-73 — do not matter for the purposes of § 4617(f). Cf. Leon Cnty., Fla. v. FHFA, 816 F.Supp.2d 1205, 1208 (N.D.Fla.2011) aff'd, 700 F.3d 1273 (11th Cir.2012) (“Congress surely knew, when it enacted § 4617(f), that challenges to agency action sometimes assert an improper motive. But Congress barred judicial review of the conservator’s actions without making an exception for actions said to be taken from an improper motive.”). Moreover, contrary to the individual plaintiffs’ assertion, id. at 46-51, 113 S.Ct. 2485, and consistent with the Court’s ruling regarding the bar on arbitrary and capricious review under § 4617(f), supra, the Court need not view the full administrative record to determine whether the Third Amendment, in practice, exceeds the bounds of HERA. Generally, “[i]t is not [the Court’s] place to substitute [its] judgment for FHFA’s,” Cnty. of Sonoma, 710 F.3d at 993, let alone in the face of HERA’s “sweeping ouster of courts’ power to grant equitable remedies,” Freeman, 56 F.3d at 1398. See also MBIA Ins. Corp., 816 F.Supp.2d at 103 (“In seeking injunctive or declaratory relief, it is not enough for [the plaintiffs] to allege that [conservator] came to the wrong conclusion.... ”). Requiring the Court to evaluate the merits of FHFA’s decisionmaking each time it considers HERA’s jurisdictional bar would render the anti-injunction provision hollow, disregarding Congress’ express intention to divest the Court of jurisdiction to restrain FHFA’s “exercise of [its] powers or functions” under HERA' — i.e., how FHFA employs its powers or functions. See 12 U.S.C. § 4617(f). Therefore, the Court will only consider FHFA’s actual conduct. b. FHFA Has Not Violated 12 U.S.C. § 1617(a)(7) The individual plaintiffs briefly argue that FHFA violated HERA’s prescription “not [to] be subject to the direction or supervision of any other agency of the United States ... in the exercise of the rights, powers, and privileges of the Agency.” 12 U.S.C. § 4617(a)(7); see Individual Pls.’s Opp’n at 51; Fairholme and Arrowood Plaintiffs’ Supplemental Opp’n at 7-10 (D.D.C. Mar. 21, 2014) (“Sup.Opp’n”); Individual Pls.’s Reply at 13, 40. However, “records” showing that Treasury “invented the net-worth sweep concept with no input from FHFA” do not come close to a reasonable inference that “FHFA considered itself bound to do whatever Treasury ordered.” See Individual Pls.’s Opp’n at 51. The plaintiffs cannot transform subjective, conclusory allegations into objective facts. See Sup. Opp’n at 9-10 (claiming that “[o]nly a conservator that has given up the will to exercise its independent judgment could agree to forfeit so much”). Notwithstanding the plaintiffs’ perspective that the Third Amendment was a “one-sided deal” favoring Treasury, the amendment was executed by two sophisticated parties, and there is nothing in the pleadings or the administrative record provided by Treasury that hints at coercion actionable under § 4617(a)(7). See Individual Pls.’s Opp’n at 51 (citing Treasury AR at 3775-802, 3833-62, 3883-94, 3895-903). Undoubtedly, many negotiations arise from one party conjuring up an idea, and then bringing their proposal to the other party. This claim does not pass muster under either Rule 12(b)(1) or Rule 12(b)(6). c: FHFA Has Not Placed the GSEs in De Facto Liquidation The individual plaintiffs further contend that the Third Amendment amounts to a de facto liquidation, which exceeds FHFA’s statutory authority as a conservator. By entering into an agreement that sweeps away nearly all GSE profits, they argue, FHFA has forsaken its statutory responsibility to “rehabilitate” the GSEs and, instead, has effectively placed the GSEs in receivership. Individual Pls.’s Opp’n at 55-58; see 12 U.S.C. § 4617(a)(2). But FHFA counters that full-scale rehabilitation is not the only possible statutory duty of a conservator — that the statute also permits a conservator to “reorganize” or “wind up” the affairs of a GSE. FHFA Mot. at 30 (citing 12 U.S.C. § 4617(a)(2)). The Court has no occasion to decide whether the conservator is empowered to wind down the GSEs. It is unnecessary to engage in a lengthy debate over statutory interpretation because the facts, as stated in the plaintiffs’ pleadings, belie the individual plaintiffs’ claims of de facto liquidation under receivership authority. Here, the Court need not look further than the current state of the GSEs to find that FHFA has acted within its broad statutory authority as a conservator. Four years ago, on the brink of collapse, the GSEs went into conservatorship under the authority of FHFA. E.g., Fairholme Compl. at ¶ 3. Today, both GSEs continue to operate, and have now regained profitability. E.g., Fairholme Compl at ¶¶ 8, 60, 63 (“Fannie and Freddie are now immensely profitable.”); cf. id. at ¶ 14 (noting that prior to the Third Amendment, “[t]he conservatorship of Fannie and Freddie achieved the purpose of restoring the Companies to financial health”). Unquestionably, the plaintiffs take great issue with FHFA’s conduct between and since these two bookend facts. However, when the Court is asked to determine whether FHFA acted beyond, or contrary to, its responsibilities as conservator under a statute that grants the agency expansive discretion to act as it sees fit, it is the current state of affairs that must weigh heaviest on this -analysis. If the Third Amendment were really part of a scheme to liquidate the GSEs, then the GSEs would, presumably, be in liquidation rather than still be “immensely profitable.” See Fairholme Compl. at ¶ 60. There is no dispute that the Third Amendment substantially changed the flow of profits, directing billions of dollars into Treasury’s coffers. But that alteration, alone, is in no way sufficient to reclassify a conserva-torship into a receivership. The individual plaintiffs cite no precedent stating that a net worth sweep, or some equivalent, is functionally akin to liquidation. The case law cited in their opposition actually supports the position that FHFA is acting as a conservator. Individual Pls.’s Opp’n at 52-54 (collecting cases). In sum, these cases stand for the proposition that a conservator should “carry on the business of the institution,” MBIA Ins. Corp. v. FDIC, 708 F.3d 234, 236 (D.C.Cir.2013), and “take actions necessary to restore a financially troubled institution to solvency,” McAllister v. RTC, 201 F.3d 570, 579 (5th Cir.2000). Here, the GSEs maintain an operational mortgage finance business and are, once again, profitable — two facts indicative of a successful conservatorship. Thus, the plaintiffs plead no facts demonstrating that FHFA has exceeded its statutory authority as a conservator. Given that § 4617(f) bars subject matter jurisdiction over all declaratory, injunc-five, and other equitable relief requested against the defendants that would restrain the conservator’s ability to “exercise [its statutory] powers or functions,” all claims related to these prayers for relief must be dismissed pursuant to Rule 12(b)(1). Included are the individual plaintiffs’ APA claims against both FHFA and Treasury, the Fairholme plaintiffs’ claim of breach of fiduciary duty against FHFA, and any part of the plaintiffs’ claims of breach of the implied covenant of good faith and fair dealing which request declaratory relief. B. HERA Bars the Plaintiffs’ Derivative Claims against FHFA and Treasury The class plaintiffs bring derivative claims against both FHFA and Treasury on behalf of Fannie Mae and Freddie Mac. In re Fannie Mae/Freddie Mac Am. Compl. at ¶¶ 72-79 (Fannie Mae); In re Fannie Mae/Freddie Mac Derivative Compl. at ¶¶ 175-82 (Freddie Mac). Under HERA, FHFA “shall, as conservator or receiver, and by operation of law, immediately succeed to (i) all rights, titles, powers, and privileges of the [GSE], and of any stockholder.... ” 12 U.S.C. § 4617(b)(2)(A)(i). The Circuit has held that “[t]his language plainly transfers shareholders’ ability to bring derivative suits — a ‘right[ ], title[ ], power[ ], [or] privilege®’ — to FHFA.” Kellmer v. Raines, 674 F.3d 848, 850 (D.C.Cir.2012). 1. An Exception to HERA’s Bar on Shareholder Derivative Claims Would Contravene the Plain Language of the Statute The plaintiffs argue that, despite the general bar against derivative suits, they have standing to sue derivatively because FHFA, due to a conflict of interest, would be unwilling to sue itself or Treasury. Class Pls.’s Opp’n at 32-35; Sup. Opp’n at 14-16. In passing, Kellmer notes the existence, among other circuits, of an exception to the equivalent bar on shareholder derivative actions brought against the FDIC under the substantially similar FIRREA provision, 12 U.S.C. § 1821(d)(2)(A), for instances of “manifest conflict of interest.” Kellmer, 674 F.3d at 850. The defendants are right, however, that this Circuit has not adopted such an exception. E.g., Treasury Mot. at 31. While Kellmer concerned a suit against officers and directors rather than, one against FHFA and Treasury, see Class Pls.’s Opp’n at 31, the Circuit’s holding puts no limitations on HERA’s rule against shareholder derivative suits. Based on the Circuit’s discussion of the text of 12 U.S.C. § 4617(b)(2)(A)®, it stands to reason that if the Kellmer Court had occasion to consider the purported conflict of interest exception, it would not have found that such an exception exists. The idea of an exception to HERA’s rule against derivative suits comes from two cases, both considering FIRREA § 1821(d)(2)(A). First, the Federal Circuit held that, notwithstanding the “general proposition” that the FDIC assumed “the right to control the prosecution of legal claims on behalf of the insured depository institution now in its receivership,” a plaintiff has standing to bring a derivative suit when the FDIC has a “manifest conflict of interest” — i.e., when the plaintiffs ask the receiver to bring a suit based on a breach allegedly caused by the receiver. First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279, 1295-96 (Fed.Cir.1999). Then, the Ninth Circuit “adopt[ed] the First Hartford exception” in Delta Savings Bank v. United States, 265 F.3d 1017 (9th Cir.2001), for instances of conflict of interest between sufficiently “interdependent entities.” Id. at 1021-23. It strikes this Court as odd that a statute like HERA, through which Congress grants immense discretionary power to the conservator, § 4617(b)(2)(A), and prohibits courts from interfering with the exercise of such power, § 4617(f), would still house an implicit end-run around FHFA’s conser-vatorship authority by means of the shareholder derivative suits that the statute explicitly bars. “To resolve this [oddity, however,] we need only heed Professor Frankfurter’s timeless advice: ‘(1) Read the statute; (2) read the statute; (3) read the statute!’ ” Kellmer, 674 F.3d at 850 (second internal quotation marks omitted) (citing Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 202 (1967)). The Circuit tells the Court that HERA, by its unambiguous text, removes the power to bring derivative suits from shareholders and gives it to FHFA. Id. (citing § 4617(b)(2)(A)). As the basis for its exception to the rule against shareholder derivative suits, the Federal Circuit explained that “the very object of the derivative suit mechanism is to permit shareholders to file suit on behalf of a corporation when the managers or directors of the corporation, perhaps due to a conflict of interest, are unable or unwilling to do so, despite it being in the best interests of the corporation.” First Hartford, 194 F.3d at 1295; see also Class Pls.’s Opp’n at 32 (quoting the same). Yet the existence of a rule against shareholder derivative suits, § 4617(b)(2)(A)(i), indicates that courts cannot use the rationale for why derivative suits are available to shareholders as a legal tool — including the conflict of interest rationale — to carve out an exception to that prohibition. Derivative suits largely exist so that shareholders can protect a corporation from those who run it — and HERA takes the right to such suits away from shareholders. How, then, can a court base the exception to a rule barring shareholder derivative suits on the purpose of the “derivative suit mechanism” that rule seeks to bar? See First Hartford, 194 F.3d at 1295. Such an exception would swallow the rule. By looking outside HERA’s statutory language to find an exception to the rule against derivative suits that is based on the reason the judicial system permits derivative suits in the first place, a court would effectively be asserting its disagreement with the breadth of HERA’s text. HERA provides no qualification for its bar on shareholder derivative suits, and neither will this Court. § 4617(b)(2)(A) (the conservator “shall ... immediately succeed to ... all rights, titles, powers, and privileges ... of any stockholder) (emphasis added). It is a slippery slope for the Court to poke holes in, or limit, the plain language of a statute, especially when, as here, the plaintiffs have not asked the Court to weigh in on the statute’s constitutionality. Therefore, the Court finds that HERA’s plain language bars shareholder derivative suits, without exception. 2. Even If the Exception Applies, There Is No Conflict of Interest between FHFA and Treasury Even assuming arguendo that the First Hartford and Delta Savings exceptions to HERA’s prohibition on shareholder derivative suits applied- to HERA § 4617(b)(2)(A)®, there is no conflict of interest between FHFA and Treasury, and the class plaintiffs’ fiduciary duty claims against Treasury would be dismissed. The First Hartford decision would not apply to the Treasury fiduciary duty claims because the plaintiffs, are not demanding that FHFA sue itself or sue another government entity on account of FHFA’s own breach, 194 F.3d at 1295 — the plaintiffs’ claims against Treasury are due to Treasury’s alleged breach. E.g., In re Fannie Mae/Freddie Mac Am. Compl. at ¶¶ 177-79. In Delta Savings, the Ninth Circuit’s finding of a “manifest conflict of interest” was not just based on the presence of two government entities, but rather two sufficiently interrelated government agencies. 265 F.3d at 1023 (“We do not suggest that the FDIC-as-receiver is faced with a disqualifying conflict every time a bank-in-receivership is asked to sue another federal agency; it is the nature of the [Office of Thrift Supervision (‘OTS’) ] — FDIC fela-tionship that raises the conflict here.”). As the Delta Savings Court explained, the FDIC and the OTS were “interrelated agencies with overlapping personnel, structures, and responsibilities.” Id. at 1021-22. The relationship between FHFA and Treasury fails the Ninth Circuit’s interrelatedness test. The class plaintiffs point to no “operational or managerial overlap,” and the agencies do not “share a common genesis.” Id. at 1022-23. Unlike OTS, which supervised thrift institutions and retained the ability to “choose the FDIC to be the conservator,” id. at 1023, Treasury plays no role in choosing FHFA to act' as a conservator for the GSEs. While Treasury and FHFA, inter alia, have jointly proposed regulations, e.g., Credit Risk Retention, 78 Fed.Reg. 183 (proposed Sept. 20, 2013), the fact that both entities exist within the financial regulation space cannot, on its own, satisfy Delta Savings’ narrowly applied interrelatedness test. See 265 F.3d at 1022-1023. Furthermore, the Court understands that Treasury represented the only feasible entity — public or private — capable of injecting sufficient liquidity into and serving as a backstop for the GSEs within the short timeframe necessary to preserve their existence in September 2008. There was no other investment partner at FHFA’s disposal. See FHFA Mot. at 7-8. In fact, Congress expressly foresaw the need for a Treasury-FHFA relationship, specifically authorizing Treasury to invest in the GSEs. 12 U.S.C. § 1719(g); see also 12 U.S.C. § 4617(b)(5)(D)(iii)(I) (Congress highlighted Treasury’s potential role as creditor to the GSEs by explicitly creating an exception to FHFA’s authority, as receiver, to disallow creditor claims made by Treasury). A relationship-based conflict of interest analysis, see Delta Sav. Bank, 265 F.3d at 1023, does not require the Court to ignore the harsh economic realities facing the GSEs — and the national financial system if the GSEs collapsed— when FHFA and Treasury executed the PSPAs in 2008. Courts, generally, should be wary of labeling a transaction with an investor of last resort as a conflict of interest. Thus, the class plaintiffs’ derivative claims, on behalf of the GSEs, for breach of fiduciary duty by FHFA and Treasury, are dismissed pursuant to Rule 12(b)(1) for lack of standing. C. The Plaintiffs’ Breach of Contract and Breach of the Implied Covenant of Good Faith and Fair Dealing Claims for Monetary Damages Must Also Be Dismissed The plaintiffs further request monetary damages for claims of breach of contract and breach of the implied covenant of good faith and fair dealing, specifically regarding the dividends and liquidation preference provisions within their respective GSE stock certificates. See In re Fannie Mae/Freddie Mac Am. Compl. at 64 (¶ 7); Arrowood Compl. at 52 (¶ E); Fdirholme Compl. at ¶ 146(h). As the class plaintiffs correctly assert, HERA’s anti-injunction provision, § 4617(f), does not bar requests for monetary relief. See Class Pls.’s Opp’n at 21-22 (citing, among other cases, Hindes v. FDIC., 137 F.3d 148, 161 (3d Cir.1998); Willow Grove, Ltd. v. Fed. Nat’l Mortg. Ass’n, No. 13-0723, 2013 WL 6865127, at *2 (D.Colo. Dec. 31, 2013)); see also Freeman, 56 F.3d at 1399 (concluding that FIRREA § 1821(j) precluded nonmonetary remedies, but noting that “aggrieved parties will [still] have opportunities to seek money damages”). Nevertheless, the plaintiffs’ contract-based claims seeking monetary damages must also be dismissed under the threshold analyses required by Rule 12(b)(1) and Rule-12(b)(6). 1. The Plaintiffs’ Liquidation Preference Claims Are Not Ripe FHFA’s entrance into the Third Amendment, allegedly in contravention of the GSEs’ existing contract — i.e., stock certificates — with the plaintiffs, constitutes a decision by an administrative agency. See 12 U.S.G. § 4511(a) (“There is established the Federal Housing Finance Agency, which shall be an independent agency of the Federal Government.”). While the class and Arrowood plaintiffs also include the GSEs as targets of their claims of breach of contract and breach of the implied covenant, the action in question was undeniably one taken by FHFA. As such, the ripeness doctrine, which is most often applied to pre-enforcement review of agency determinations, may also govern the Court’s assessment of subject matter jurisdiction here. “Ripeness entails a functional, not a formal, inquiry.” Pfizer Inc. v. Shalala, 182 F.3d 975, 980 (D.C.Cir.1999). “Determining whether administrative action is ripe for judicial review requires us to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 , L.Ed.2d 406 (1998) (quoting-Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)). An analysis of the plaintiffs’ contentions regarding the liquidation preference written into their preferred stock certificates is uncomplicated. The certificates grant the plaintiffs “a priority right to receive distributions from the Companies’ assets in the event they are dissolved.” Individual Pls.’s Opp’n at 5. Therefore, by definition, the GSEs owe a liquidation preference payment to a preferred shareholder only during liquidation. It follows that there can be no loss of a liquidation preference prior to the timé that such a preference can, contractually, be paid. Here, the GSEs remain in conservatorship, not receivership, and there is no evidence of defacto liquidation. See supra Section 111(A)(4)(c). The question for the Court cannot be whether the Third Amendment diminishes an opportunity for liquidation preferences at some point in the future, but rather whether the plaintiffs have suffered an injury to their right to a liquidation preference in fact and at present. Yet the individual plaintiffs assert that the Third Amendment “has clearly injured Plaintiffs in a direct and personal way” because “[t]heir right to an opportunity to benefit from the liquidation preferences in their preferred stock — once valuable — is now worthless.... ” Individual Pls.’s Opp’n at 36. But, just as there was a Third Amendment, the Court cannot definitively say there will be no Fourth or Fifth Amendment that will transform the current “opportunity to benefit from the liquidation preferences in [the plaintiffs’] preferred stock.” A ripeness requirement prevents the Court from deciding a case “contingent [on] future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. at 300, 118 S.Ct. 1257. Indeed, the purpose of the ripeness doctrine is to ensure the Court hears only an “actual case or controversy.” Cf. Pfizer, 182 F.3d at 980. Thus, the plaintiffs’ liquidation preference claims are not fit for a judicial decision until liquidation occurs. Given that the plaintiffs maintain no current right to a liquidation prefererice while the GSEs are in conservatorship, the plaintiffs are no worse off today than they were before the Third Amendment. Therefore, there is no hardship imposed on the plaintiffs by withholding court consideration until this contingent right matures at the moment of liquidation. Once again, any present injury is, at most, a decrease in share value, which can only be claimed as part of a derivative action that would be barred by HERA. See supra n.39. “Moreover, no irremediable adverse consequences flow from requiring a later challenge to” the Third Amendment with regard to liquidation preferences since, as the defendants acknowledge, FHFA Mot. at 34-35, the right to a liquidation preference can be adjudicated during the statutorily prescribed receivership claims process. Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967); see also 12 U.S.C. § 4617(b)(2)(K)(i), (b)(3)-(10). Until then, the plaintiffs have no direct claims to liquidation. preference-related damages that are ripe for judicial review, and their existing claims must be dismissed under Rule 12(b)(1). In addition, for largely the same reasons that lead the Court to conclude that the plaintiffs’ liquidation preference claims lack ripeness, the plaintiffs’ breach of contract and breach of implied covenant claims regarding liquidation preferences fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The right to this elevated preference for asset distribution, given to preferred shareholders under GSE stock certificates, is only triggered during liquidation. Consequently, the plaintiffs’ direct breach of contract claims for injuries related to their liquidation preference rights can provide them no “plausible” relief against FHFA — or again