Meridian Investments, Inc. v. Federal Home Loan Mortgage , 855 F.3d 573 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1384
MERIDIAN INVESTMENTS, INC.,
Plaintiff − Appellant,
v.
FEDERAL HOME LOAN MORTGAGE CORPORATION; FEDERAL
HOUSING FINANCE AGENCY, Conservator for Federal Home Loan Mortgage
Corporation,
Defendants − Appellees.
--------------------------------------
TIMOTHY HOWARD,
Amicus Supporting Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. James C. Cacheris, Senior District Judge. (1:15−cv−01463−JCC−TCB)
Argued: March 22, 2017 Decided: April 28, 2017
Before NIEMEYER, DUNCAN, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge
Niemeyer and Judge Harris joined.
ARGUED: Jay Ian Igiel, NEALON & ASSOCIATES, P.C., Alexandria, Virginia, for
Appellant. Howard N. Cayne, ARNOLD & PORTER LLP, Washington, D.C., for
Appellees. ON BRIEF: Robert B. Nealon, NEALON & ASSOCIATES, P.C.,
Alexandria, Virginia, for Appellant. Asim Varma, David B. Bergman, Ian S. Hoffman,
ARNOLD & PORTER LLP, Washington, D.C., for Appellee Federal Housing Finance
Agency. Graciela M. Rodriguez, Merritt E. McAlister, Taylor T. Lankford, KING &
SPALDING LLP, Washington, D.C., for Appellee Federal Home Loan Mortgage
Corporation. Geoffrey T. Hervey, BREGMAN, BERBERT, SCHWARTZ & GILDAY,
LLC, Bethesda, Maryland, for Amicus Curiae.
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DUNCAN, Circuit Judge:
The genesis of this appeal is an unconsummated business deal between Meridian
Investments, Inc. (“Meridian”) and Federal Home Loan Mortgage Corporation (“Freddie
Mac”). The district court dismissed Meridian’s breach-of-contract suit against Freddie
Mac and the Federal Housing Finance Agency (“FHFA”) (collectively, “Defendants”).
For the reasons that follow, we affirm.
I.
A.
Congress created Freddie Mac in 1970 to facilitate access to mortgage credit and
foster competition in the secondary market for residential mortgages. Freddie Mac has
always existed as a private, federally chartered corporation. Freddie Mac, and its sister-
corporation, Federal National Housing Association (“Fannie Mae”), purchase and
securitize residential mortgages, freeing up capital for private lenders to make more
loans. Since 1989, Freddie Mac has operated as a publicly traded company.
By 2008, Freddie Mac and Fannie Mae together held or guaranteed over $5 trillion
of home mortgage debt, but the American housing market crash and resulting financial
crisis threatened to bankrupt both entities. To save Freddie Mac from collapse, Congress
passed the Housing and Recovery Act of 2008 (“the Act”), Pub. L. No. 110-289, 122
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Stat. 2654 (codified as amended in scattered sections of 12 U.S.C.). 1 The Act established
FHFA, an independent government agency charged with supervising Freddie Mac. 12
U.S.C. § 4511. The Act also gave FHFA and its Director broad powers to address
Freddie Mac’s financial situation, including the ability to appoint FHFA as conservator or
receiver “for the purpose of reorganizing, rehabilitating, or winding up” Freddie Mac’s
affairs. Id. § 4617(a)(1)–(2).
On September 6, 2008, FHFA’s Director exercised that authority and placed
Freddie Mac into conservatorship. Thereafter, as conservator, FHFA “immediately
succeed[ed] to all rights, titles, powers, and privileges” of Freddie Mac.
Id. § 4617(b)(2)(A). As conservator, FHFA also could “take over the assets of and
operate” as well as “conduct all business of” Freddie Mac. Id. § 4617(b)(2)(B). Pursuant
to this authority, on September 7, 2008, FHFA entered into a Senior Preferred Stock
Purchase Agreement (“PSPA”) with the United States Treasury. Under the PSPA,
Treasury provided Freddie Mac with a multi-billion dollar line of credit, which Freddie
Mac needed to remain solvent. In return, Freddie Mac gave Treasury $1 billion of senior
preferred stock and agreed to certain restrictive covenants. As relevant to this appeal, the
PSPA prohibited Freddie Mac from selling, conveying, or transferring any assets without
Treasury’s prior consent.
1
The relevant Act provisions relate to both Freddie Mac and Fannie Mae.
Because this appeal only concerns Freddie Mac, we limit our discussion to that entity.
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B.
In October 2008, Meridian approached FHFA about a possible financial
transaction involving Freddie Mac’s Low Income Housing Tax Credits (“LIHTC”).
LIHTCs provide investors in affordable housing tax credits to apply against profits on
their federal tax returns. As Freddie Mac was unlikely to be profitable in the near future,
however, it would not be able to use its LIHTCs. Therefore, Meridian proposed a deal
whereby it would purchase Freddie Mac’s $3 billion LIHTC portfolio for $3.4 billion.
As is customary with large, complex financial transactions, the parties first negotiated a
Memorandum of Understanding (“MOU”). The MOU broadly outlined the basics of the
transaction, titled Project America. Three MOU provisions are relevant to this appeal.
Paragraph 3(a) states that “[u]pon execution of this MOU, Freddie Mac shall
promptly consult with, and to the extent required, exercise commercially reasonable
efforts to obtain applicable consent from, FHFA to proceed with the transactions
contemplated by this MOU. . . . The Parties agree to take all commercially reasonable
efforts to execute definitive documents . . . as soon as possible hereafter.” J.A. 38. In
Paragraph 7, “[t]he Parties acknowledge and understand that future actions are required
in order to implement and comply with the terms of this MOU.” J.A. 40. Finally,
Paragraph 12, titled “NON-BINDING” states:
Notwithstanding the terms of this MOU, or any other past, present or future
written or oral indications of assent or indications of results of negotiation
or agreement to some or all matters then under negotiation, it is agreed that
no Party hereto (and no person or entity related to any such Party) will be
under any legal obligation with respect to the proposed transaction or any
similar transaction, unless and until formal written definitive agreements
have been executed and delivered by all Parties intending to be
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bound; provided, however, that the obligations set forth in paragraph 1(j)
and paragraphs 4, 6, 7, 8, 9, 10, 11 and 12 (the “Binding Provisions”)
hereof will be binding on the Parties upon execution and delivery of this
MOU in accordance with the terms hereof.
J.A. 41.
Meridian and Freddie Mac signed the MOU on June 1, 2009. Over the next five
months, both parties worked diligently toward executing a final formal agreement. As
required under securities laws, Meridian prepared a Private Placement Memorandum for
prospective investors, which detailed Project America’s terms, tax considerations, and
risk factors. As part of the general risks, the Private Placement Memorandum
acknowledged Freddie Mac’s PSPA with Treasury and noted that “[u]ntil Freddie Mac
pays or redeems the senior preferred stock in full, certain actions require the prior written
consent of the Treasury, including, but not limited to the ability to sell, transfer or
otherwise dispose of any assets, including its interest” in the LIHTC portfolio. J.A. 211.
Meridian also warned prospective investors that “[t]o the extent the Treasury does not
approve the sale of the [LIHTC Portfolio] or delays such approval, the Closing will not
occur and the Tax Credits expected to be realized may be adversely affected.” J.A. 211–
12.
Ultimately, Treasury did not approve Project America. On November 23, 2009,
FHFA’s Acting Director informed Freddie Mac that, after discussing Project America
with Treasury, Treasury would not consent to the project. As such, the deal could not
move forward. On February 18, 2010, FHFA informed Freddie Mac that it could not sell
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or transfer its LIHTC portfolio by any means. Accordingly, Freddie Mac wrote down the
carrying value of its LIHTC portfolio to zero as of December 31, 2009.
C.
Nearly six years later, Meridian filed a complaint against Freddie Mac and FHFA,
alleging that Defendants (1) breached the MOU by not completing Project America; (2)
failed to satisfy certain MOU obligations; and (3) breached the implied covenants of
good faith and fair dealing. Defendants moved to dismiss, which the district court
granted on three different bases. First, the district court found that Virginia’s five-year
statute of limitations for contract actions, Virginia Code Section 8.01-246(2), barred
Meridian’s claim. Second, the district court concluded that, even if the action were not
time-barred, Meridian’s complaint failed to state a cause of action because the MOU is,
under Virginia law, only an unenforceable “agreement to agree.” J.A. 251. Third, the
district court alternatively determined that, even if the MOU were enforceable, it
contained two conditions precedent: (1) an executed formal written agreement and (2)
FHFA approval. Because neither of these conditions occurred, Defendants were not
bound to complete the transaction. Meridian timely appealed only Count II of its
complaint, alleging that Defendants breached various provisions of the MOU.
II.
A.
Before reaching the merits, we must first address the threshold issue of whether, as
the district court determined, the action is time-barred under the five-year Virginia statute
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of limitations. Meridian urges us to instead apply the six-year statute of limitations in
28 U.S.C. § 2401(a) for contract suits brought “against the United States.” Meridian also
contends that the statute of limitations is an affirmative defense that cannot be raised in
the context of a motion to dismiss. We disagree as to both, but address the latter
argument first.
A defendant’s claim that an action is time-barred is an affirmative defense that it
can raise in a motion to dismiss when the “face of the complaint includes all necessary
facts for the defense to prevail.” Leichling v. Honeywell Int’l, Inc., 842 F.3d 848, 850–51
(4th Cir. 2016) (citation omitted). Meridian’s argument against applying Virginia law--
that Defendants are the “United States”--is a legal, not a factual question. All facts
necessary to decide whether Defendants’ statute-of-limitations defense applies, including
when the cause of action first accrued, appear on the face of the complaint. We may
therefore reach the affirmative defense in reviewing the district court’s dismissal of the
action.
B.
Whether the five-year state statute or the six-year federal statute applies turns on
whether this is a suit between private parties or a private party and the United States. As
discussed below, we conclude that it is an action between two private corporations.
Section 2401(a) requires parties to bring civil actions other than tort claims
“against the United States . . . within six years after the right of action first accrues.”
28 U.S.C. § 2401(a). Section 2401 is part of the Tucker Act, ch. 359, 24 Stat. 505
(codified as amended in scattered sections of 28 U.S.C.), which Congress enacted to
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allow private claims against the government, including contract claims. See
28 U.S.C. § 1491(a)(1). 2 The Tucker Act consists of the “Big” Tucker Act,
28 U.S.C. § 1491, which vests exclusive jurisdiction in the Court of Federal Claims for
actions against the United States in excess of $10,000, and the “Little” Tucker Act,
28 U.S.C. § 1346(a)(2), which grants concurrent jurisdiction to federal district courts for
claims less than $10,000 brought against the United States. Section 2401(a) serves as the
internal time limitation for the Little Tucker Act only. See Herr v. U.S. Forest Serv., 803
F.3d 809, 816 (6th Cir. 2015). Thus, a claim is only subject to § 2401(a)’s statute of
limitations if it is “against the United States” as that term is construed in the Little Tucker
Act. “United States” under the Little Tucker Act includes federal agencies and
instrumentalities acting pursuant to statutory authority to accomplish a governmental
objective. Corr v. Metro. Wash. Airports Auth., 702 F.3d 1334, 1336–37 (Fed. Cir.
2012). Congress created Freddie Mac as a private corporation. The only question here,
therefore, is whether Defendants’ actions have transformed Freddie Mac into a
government instrumentality. We hold that they have not.
2
Prior to the Tucker Act, private parties had to present their grievances against the
United States to Congress for relief on a case-by-case basis. See United States v.
Mitchell, 463 U.S. 206, 212 (1983). The inadequacy and inefficiency of this process led
Congress to establish the Court of Claims in 1855, and, in 1863, to provide authority for
the Court of Claims to render final judgments. Id. at 213. In 1887, Congress passed the
Tucker Act, which, inter alia, enlarged the jurisdiction of the Court of Claims and
provided a six-year statute of limitations. H.R. Rep. No. 49-1077, at 4 (1886). Congress
renamed the court the Court of Federal Claims in 1992. See Federal Courts
Administration Act of 1992, Pub. L. No. 102-572, § 902(a) (2), 106 Stat. 4506.
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C.
Although “there is no simple test for ascertaining whether an institution is so
closely related to governmental activity as to become a[n] . . . instrumentality,” the
Supreme Court has provided guidance. Dep’t of Emp’t v. United States, 385 U.S. 355,
358–59 (1966). In Lebron v. National Rail Road Passengers Corp., 513 U.S. 374 (1995),
the Supreme Court considered whether Amtrak, a federally chartered corporation, was
nonetheless subject to the governmental constraints of the First Amendment. In holding
that it was, the Court analyzed the extent to which (1) Amtrak served a government
purpose and (2) the government controlled Amtrak. Id. at 397. Because Amtrak was
“created by a special statute, explicitly for the furtherance of federal governmental
goals,” it was clear that Amtrak served a government purpose. Id. As to control, the
Court noted that government appointees controlled Amtrak’s board of directors and that
Amtrak was “not merely in the temporary control of the Government (as a private
corporation whose stock comes into federal ownership might be).” Id. at 398. As such,
the Court distinguished Amtrak, which the government “specifically created . . . for the
furtherance of governmental objectives, and not merely holds some shares but controls
the operation of the corporation through its appointees,” from a situation where the
government only acts as a shareholder. Id. at 399. In the former, the government exerts
control “not as a creditor but as a policymaker.” Id.; see also Dep’t of Transp. v. Ass’n of
Am. R.R., 135 S. Ct. 1225, 1231–33 (2015) (holding that Amtrak is a governmental entity
for separation of powers purposes because of pervasive government control). Albeit
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dicta, we find the Court’s language instructive here. Applying the reasoning of Lebron to
both Defendants, we conclude that neither is a federal instrumentality.
First, though Freddie Mac undeniably has a public purpose, the government does
not exert control over Freddie Mac such that it loses its private-party status. Unlike
Amtrak in Lebron, the voting common shareholders elect Freddie Mac’s 13 board
members annually. 12 U.S.C. § 1452(a). Moreover, although the government does exert
some control over Freddie Mac through the PSPA with Treasury, that control is
temporary, “as a private corporation whose stock comes into federal ownership might
be.” Lebron, 513 U.S. at 398. The Supreme Court has long held that, when the
government acquires an ownership interest in a corporation, it acts--and is treated--as any
other shareholder. See, e.g., Bank of U.S. v. Planters’ Bank of Ga., 22 U.S. 904, 907
(1824). Under Lebron, a private corporation morphs into a federal instrumentality when
it is “Government-created and controlled.” Lebron, 513 U.S. at 394 (emphasis added).
The fact that Freddie Mac is not government controlled informs our decision that it is not
a federal instrumentality. See also Am. Bankers Mortg. Corp. v. Fed. Home Loan Mortg.
Corp., 75 F.3d 1401, 1406–1409 (9th Cir. 1996) (holding that Freddie Mac is not a
government agency subject to the Due Process Clause).
Second, though FHFA is a federal agency, as conservator it steps into Freddie
Mac’s shoes, shedding its government character and also becoming a private party. See
Montgomery Cty. v. Fed. Nat’l Mortg. Ass’n, 740 F.3d 914, 919 n.* (4th Cir. 2014); cf.
Atherton v. FDIC, 519 U.S. 213, 225 (1997) (declining to find a federal interest in a case
involving the FDIC “acting only as receiver of a failed institution” rather than “pursuing
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the interest of the Federal Government as a bank insurer”). Here, Meridian principally
argues that Treasury was acting as a policymaker rather than a creditor. Treasury,
however, is not a named defendant in this action. The only actions relevant to this appeal
are those of Freddie Mac and FHFA. It is evident from the face of the complaint that
Defendants are not the United States for the purposes of 28 U.S.C. § 2401(a). Therefore,
we hold that Virginia’s five-year statute of limitations, not § 2401(a), applies. Because
the parties acknowledge that more than five years passed between when the alleged
injury accrued and Meridian’s complaint, we agree with the district court that the instant
claim is time-barred. 3
III.
A.
Alternatively, even if the instant claim were not time-barred, it would still fail.
We review a district court’s dismissal for failure to state a claim de novo. Leichling, 842
F.3d at 850. Such review assumes all factual allegations in the complaint are true, and
we draw all reasonable inferences in Meridian’s favor as the nonmovant.
3
We also note that a contrary result would not assist Meridian. If § 2401(a) did
apply, the Court of Federal Claims and the Federal Circuit would have exclusive
jurisdiction. See Portsmouth Redevelop. & Hous. Auth. v. Pierce, 706 F.2d 471, 473 (4th
Cir. 1983). We reject Meridian’s contention that we can use the Little Tucker Act for
statute-of-limitation purposes without using it for subject-matter jurisdiction; the Federal
Circuit has exclusive jurisdiction over any appeal where lower-court jurisdiction “was
based, in whole or in part” on the Tucker Act. 28 U.S.C. § 1295(a)(2).
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B.
In alleging a breach of contract, Meridian faces an uphill battle where the
operative document here is a memorandum of understanding. Letters of intent and
memoranda of understanding are generally unenforceable “agreement[s] to agree” under
Virginia law. W.J. Schaefer Assocs., Inc. v. Cordant, Inc., 493 S.E.2d 512, 515 (Va.
1997). This is particularly true when, as here, both parties agree in the document to
negotiate in good faith toward a final contract. Beazer Homes Corp. v. VMIF/Anden
Southbridge Venture, 235 F. Supp. 2d 485, 493 (E.D. Va. 2002). However, parties can
include binding provisions in a MOU so long as there is “mutual assent of the contracting
parties to terms reasonably certain under the circumstances to have an enforceable
contract.” Allen v. Aetna Cas. & Sur. Co., 281 S.E.2d 818, 820 (Va. 1981). An
agreement to negotiate in good faith is not sufficiently concrete to give rise to an
obligation, but a provision that has more definite obligations, such as a confidentiality or
nonsolicitation provision, can be binding even in a MOU. See Marketplace Holdings,
Inc. v. Camellia Food Stores, Inc., 64 Va. Cir. 144, 147 (Va. Cir. Ct. 2004).
In Paragraph 12 of the MOU, the parties anticipated that the memorandum would
be nonbinding, except for the specifically enumerated “obligations set forth in paragraph
1(j) and paragraphs 4, 6, 7, 8, 9, 10, 11, and 12 (the Binding Provisions).” J.A. 41.
Meridian argues that Defendants breached the MOU by either not formally seeking
Treasury’s approval or by not trying with sufficient diligence to persuade Treasury to
13
approve Project America. 4 The former is not supported by the record and Defendants
were not bound to the latter.
First, FHFA’s denial letter to Freddie Mac saying that it had “discussed the Project
America transaction with Treasury” but that Treasury refused to consent undercuts
Meridian’s argument that Defendants did not seek Treasury’s approval. J.A. 58.
Because Meridian attached the denial letter and relied on it in the complaint, the district
court properly considered it in granting Defendants’ Rule 12(b)(6) motion. See Anand v.
Ocwen Loan Serv., LLC, 754 F.3d 195, 198 (4th Cir. 2014). Meridian’s conclusory
allegations to the contrary, without more, cannot defeat the motion to dismiss. Coleman
v. Md. Ct. of App., 626 F.3d 187, 191 (4th Cir. 2010).
Second, Defendants had no obligation to persuade Treasury to consent to Project
America. Meridian bases this claim on Paragraphs 3 and 7 of the MOU, arguing that,
because FHFA’s consent depended on Treasury’s consent, FHFA was required to
convince Treasury to sign off on Project America. Though Paragraph 3 required Freddie
Mac to “exercise commercially reasonable efforts to obtain applicable consent from[]
FHFA to proceed with Project America,” J.A. 38, the parties did not include that
paragraph as part of the Binding Provisions. Meridian argues that Paragraph 3 is binding
on the parties through Paragraph 7, which required the parties to “cooperate and take
4
Meridian also alleges that Project America did not depend on Treasury’s
approval. However, we find this argument implausible given Meridian’s Private
Placement Memorandum to prospective investors, which acknowledged that Freddie Mac
required “the prior written consent of the Treasury” in order “to sell, transfer or otherwise
dispose of any assets, including its interest” in the LIHTC portfolio. J.A. 211.
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such reasonable actions . . . as may be necessary or appropriate to structure and
complete” Project America. J.A. 40. However, because the Binding Provisions
specifically did not include Paragraph 3, Meridian’s circuitous attempt to make it
obligatory fails. We read unambiguous provisions in a contract according to their plain
meaning, and here the parties’ identification of certain provisions as binding necessarily
implies the parties’ intent not to be bound by the remaining provisions. See Bentley
Funding Grp., LLC v. SK & R Grp., LLC, 609 S.E.2d 49, 56 (Va. 2005). Some of the
MOU’s provisions may have been binding on the parties, but Meridian has not
demonstrated that Defendants breached any of them.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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