Bryndon Fisher, Bruce Reid, Erick Shipmon, Derivatively on Behalf of Federal… v. United States

United States Court of Appeals
for the Federal Circuit
______________________
BRYNDON FISHER, BRUCE REID, ERICK
SHIPMON, DERIVATIVELY ON BEHALF OF
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1167
______________________
Appeal from the United States Court of Federal Claims
in No. 1:13-cv-00608-MMS, Senior Judge Margaret M.
Sweeney.
-------------------------------------------------
BRUCE REID, BRYNDON FISHER, DERIVATIVELY
ON BEHALF OF FEDERAL HOME LOAN
MORTGAGE CORPORATION,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1168
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FISHER v. US 2
______________________
Appeal from the United States Court of Federal Claims
in No. 1:14-cv-00152-MMS, Senior Judge Margaret M.
Sweeney.
______________________
Decided: August 12, 2025
______________________
P ATRICK VALLELY , Shapiro Haber & Urmy LLP, Bos-
ton, MA, argued for plaintiffs-appellants. Also represented
by AMBER L OVE SCHUBERT , R OBERT SCHUBERT , Schubert
Jonckheer & Kolbe LLP, San Francisco, CA.
G ERARD SINZDAK , Appellate Staff, Civil Division,
United States Department of Justice, Washington, DC, ar-
gued for defendant-appellee. Also represented by S IMON
G REGORY J EROME, CHARLES W. SCARBOROUGH .
______________________
Before P ROST , REYNA, and STARK, Circuit Judges.
STARK, Circuit Judge.
Owners of shares of the Federal National Mortgage As-
sociation (“Fannie Mae”) and the Federal Home Loan Mort-
gage Corporation (“Freddie Mac”) appeal a judgment of the
United States Court of Federal Claims (“Claims Court”)
granting the government’s motion to dismiss their deriva-
tive suit, which alleged a takings claim in violation of the
Fifth Amendment. We affirm.
I
Fannie Mae and Freddie Mac (together, “the Enter-
prises”) purchase and guarantee mortgages originated by
private banks. J.A. 44. The Enterprises were originally
part of the federal government but are now for-profit com-
panies owned by private shareholders. J.A. 144-45.
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FISHER v. US 3
In the housing market crash of 2008, the Enterprises
suffered substantial financial losses. J.A. 9. Congress then
enacted the Housing and Economic Recovery Act of 2008
(“HERA”), which created the Federal Housing Finance
Agency (“FHFA”). The FHFA is an independent agency
tasked with overseeing the Enterprises. See 12 U.S.C.
§ 4511(b).
Among other things, HERA allows the FHFA to act as
conservator of the Enterprises in certain circumstances.
See id. § 4617. When the FHFA acts as conservator,
HERA’s Succession Clause is triggered, which provides
that the FHFA “shall, as conservator or receiver . . . imme-
diately succeed to – (i) all rights, titles, powers, and privi-
leges of the [Enterprises], and of any stockholder . . . with
respect to the [Enterprises] and the assets of the [Enter-
prises].” Id. § 4617(b)(2)(A)(i). This gives the FHFA au-
thority to “transfer or sell any asset” of the Enterprises
upon a determination that doing so is “in the best interests
of the [Enterprises] or [FHFA].” 12 U.S.C. § 4617(b)(2)(G),
(b)(2)(J)(ii). As the Supreme Court has explained, an
“FHFA conservatorship . . . differs from a typical conserva-
torship in a key respect. . . . [W]hen the FHFA acts as a
conservator, it may aim to rehabilitate the regulated entity
in a way that, while not in the best interests of the regu-
lated entity, is beneficial to the Agency and, by extension,
the public it serves.” Collins v. Yellen, 594 U.S. 220, 238
(2021).
On September 6, 2008, the FHFA’s Director placed the
Enterprises into conservatorship. J.A. 605. The Enter-
prises’ respective Boards of Directors consented to the con-
servatorship. J.A. 606. The next day, September 7, 2008,
the United States Department of Treasury (“Treasury”) ex-
ecuted a Preferred Stock Purchase Agreement (“PSPA”)
with the Enterprises, pursuant to which Treasury received
one million shares of newly issued preferred stock in each
of Fannie Mae and Freddie Mac (“Government Preferred
Stock”), that was senior in priority to all other Enterprise
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FISHER v. US 4
stock. J.A. 475, 508, 609. The Government Preferred Stock
initially entitled the government to fixed dividends and a
liquidation preference of $1 billion per Enterprise, mean-
ing that upon liquidation of either Enterprise the govern-
ment would be entitled to a preferential pay-out of
$1 billion in addition to the sum of all draws made by that
Enterprise against Treasury’s funding commitment.
J.A. 594, 610, 630. The PSPA also provided Treasury the
option to purchase up to 79.9% of the common stock of each
Enterprise at a nominal price. J.A. 45.
In exchange, the PSPA entitled each Enterprise to
draw up to $100 billion from Treasury, as needed.
“As needed” was defined in the PSPA such that during
quarters in which an Enterprise’s liabilities exceed its as-
sets, the Enterprise could draw on Treasury’s commitment
in an amount equal to the difference between those liabili-
ties and assets, in order to ensure it maintained a positive
net worth. J.A. 594, 609-11. Over time, the FHFA and
Treasury agreed to double Treasury’s funding commit-
ment, allowing each Enterprise to draw up to $200 billion.
See Collins, 594 U.S. at 232. By June 2012, the Enterprises
had drawn a total of $187.5 billion from Treasury’s funding
commitment, giving Treasury a liquidation preference of
$189.5 billion, and requiring the payment of dividends to
Treasury of $19 billion annually. See id. at 233; see also
J.A. 58, 137.
Between 2008 and 2012, the FHFA and Treasury
amended the PSPA multiple times. J.A. 611. Relevant to
this appeal, on August 17, 2012, the FHFA and Treasury
executed a Third Amendment to the PSPA (“Third Amend-
ment”). J.A. 627. Under the terms of the Third Amend-
ment, the Enterprises were required to pay Treasury a
quarterly dividend equal to the amount which each Enter-
prise’s total assets (excluding Treasury’s funding commit-
ment) exceeded the sum of its total liabilities and a capital
buffer. See Collins, 594 U.S. at 233-34; J.A. 627. This re-
quirement is known as the “net worth sweep” and it
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FISHER v. US 5
replaced the PSPA’s original fixed-rate dividend formula.
J.A. 46-47, 509. The net worth sweep resulted in a transfer
of “essentially all profits and losses from the [Enterprises]
to the Treasury.” J.A. 628. The Third Amendment, hence,
had the effect of diverting all expected dividends from com-
mon and preferred shareholders of the Enterprises to
Treasury. See J.A. 509-10 (Claims Court citing Treasury
memorandum anticipating that “every dollar of earnings
that [the Enterprises] generate will be used to benefit tax-
payers”) (alteration in original).
Appellants, who were the plaintiffs in the trial court,
are owners of Enterprise preferred stock. J.A. 79. On be-
half of the Enterprises, they filed a shareholder derivative
suit challenging the Third Amendment as an unconstitu-
tional government taking without just compensation.
J.A. 3. Appellants contend that, via the net worth sweep,
“Treasury reaped a windfall of perhaps $81 billion” from
Fannie Mae and $52.35 billion from Freddie Mac, for a to-
tal of more than $133 billion, “in comparison to what it
would have received absent any changes to the PSPA.”
J.A. 510, 543. By their derivative claim, Appellants sought
to recover these funds for the Enterprises (which could in-
directly benefit them as shareholders).
The government moved to dismiss Appellants’ deriva-
tive takings claim based on our holding in Fairholme
Funds, Inc. v. United States, 26 F.4th 1274 (Fed. Cir.
2022).1 In Fairholme, 26 F.4th at 1301-02, we addressed a
shareholder derivative takings claim brought by a different
shareholder, Andrew T. Barrett, who alleged that the net
worth sweep was unconstitutional. Citing Collins
1 Cert denied, 143 S. Ct. 563, and cert. denied sub
nom. Barrett v. United States, 143 S. Ct. 562, and cert. de-
nied sub nom. Owl Creek Asia I, L.P. v. United States,
143 S. Ct. 563, and cert. denied sub nom. Cacciapalle
v. United States, 143 S. Ct. 563 (2023).
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FISHER v. US 6
v. Yellen, 594 U.S. 220 (2021), which held that certain ac-
tions taken by the FHFA as conservator were within its
discretion under HERA, we dismissed the derivative claim
for failure to state a claim. Fairholme, 26 F.4th at 1303.
We reasoned that when it passed HERA in 2008, Congress
“gave the FHFA the unrestricted authority to place the En-
terprises into conservatorship or receivership. . . . As of at
least 2008, then, the Enterprises lost their right to exclude
the government from their property, including their net
worth.” Id. at 1303. We concluded that “[w]ithout this
right to exclude, the Enterprises lack any cognizable prop-
erty interest on which [the shareholders] may base a deriv-
ative Fifth Amendment takings claim.” Id.
Here, the Court of Federal Claims concluded that “all
three counts of [P]laintiffs’ second amended complaint pre-
sent claims of a type that were unequivocally rejected by
the Federal Circuit in Fairholme.” J.A. 6. Accordingly, be-
cause “binding precedent compels the dismissal of plain-
tiffs’ claims,” it granted the government’s motion to
dismiss. J.A. 3, 7. Appellants timely appealed. We have
jurisdiction under 28 U.S.C. § 1295(a)(3).
II
Our review of the Claims Court’s grant of a motion to
dismiss, pursuant to Rule of the Court of Federal Claims
12(b)(6), is de novo. See Lindsay v. United States, 295 F.3d
1252, 1257 (Fed. Cir. 2002). We accept as true all well-pled
factual allegations in the operative complaint and draw all
reasonable inferences in favor of the plaintiffs. See id.
Whether a claim is barred by the doctrine of claim preclu-
sion is a question of law, which we review de novo. E.g.,
Faust v. United States, 101 F.3d 675, 677 (Fed. Cir. 1996)
(further observing that the doctrine of claim preclusion is
sometimes specified by the term “res judicata,” but using
“claim preclusion” instead of “the more ambiguous term
‘res judicata,’” as the latter can sometimes contemplate ei-
ther claim preclusion or issue preclusion).
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FISHER v. US 7
III
The Claims Court granted the government’s motion to
dismiss because it viewed our decision in Fairholme as
compelling it to do so. J.A. 3. The court saw Appellants’
claims as indistinguishable from the derivative claims we
evaluated and ordered dismissed in Fairholme, making
Fairholme governing, dispositive precedent.
On appeal, Appellants do not dispute that if Fairholme
remains binding precedent, the basic requirements for
claim preclusion are satisfied. They predicate their appeal,
instead, on two purported exceptions to application of claim
preclusion. Specifically, Appellants contend that the Fair-
holme plaintiffs did not adequately litigate the derivative
takings claim, so it would offend due process to bind Appel-
lants to our disposition of that deficiently litigated claim.
Second, Appellants argue that a Supreme Court decision
issued subsequent to Fairholme, Tyler v. Hennepin County,
598 U.S. 631 (2023), transformed takings law to such an
extent that our Fairholme analysis can no longer stand.
We address, and reject, both of these contentions below.
A
Appellants first argue that claim preclusion cannot
preclude their derivative takings claim because the Enter-
prise shareholders who litigated the claim in the earlier lit-
igation were not adequately represented. Specifically, they
assert that “the Fairholme plaintiffs failed to argue on ap-
peal the merits of the derivative takings claim” and, conse-
quently, “this Court decided the merits of that claim
without the benefit of adequate briefing and argument.”
Open. Br. at 14. We disagree.
“Generally, claim preclusion applies where: (1) the par-
ties are identical or in privity; (2) the first suit proceeded
to a final judgment on the merits; and (3) the second claim
is based on the same set of transactional facts as the first.”
First Mortg. Corp. v. United States, 961 F.3d 1331, 1338
(Fed. Cir. 2020) (cleaned up). The parties agree that all of
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FISHER v. US 8
these elements are met. In particular, Fairholme already
resolved that the Enterprises lack a cognizable property in-
terest upon which a takings claim could be based. See Fair-
holme, 26 F.4th at 1274.
This holding, if applied to Appellants, is fatal to their
takings claim; as Appellants recognize, “a threshold issue
for any takings claim is whether the plaintiff has identified
‘a property interest protected by the Fifth Amendment.’”
Open. Br. at 19 (quoting Ruckelshaus v. Monsanto Co.,
467 U.S. 986, 1000 (1984)). And because “the plaintiff in a
derivative suit represents the corporation, which is the real
party in interest,” In re Sonus Networks, Inc. S’holder De-
rivative Litig., 499 F.3d 47, 63 (1st Cir. 2007), the Enter-
prises were the real parties in interest when we evaluated
Mr. Barrett’s derivative claim in Fairholme, and they re-
main the real parties in interest here. See Cottrell v. Duke,
737 F.3d 1238, 1243 (8th Cir. 2013) (noting that judgment
rendered on derivative claim generally “preclude[s] subse-
quent litigation [of that claim] by the corporation and its
shareholders”); In re Career Educ. Corp. Derivative Litig.,
C.A. No. 1398-VCP, 2007 WL 2875203, at *10 (Del. Ch.
Sept. 28, 2007) (“Because the corporation is the true party
in interest in a derivative suit, courts have precluded dif-
ferent derivative plaintiffs in subsequent suits.”).
Appellants argue, nonetheless, that claim preclusion
cannot bar their claim because their interests were not ad-
equately represented in Fairholme. They contend that the
Fairholme plaintiffs “failed to argue the merits of a deriva-
tive takings claim and failed to present to this Court any
analysis of the relevant background principles as to the En-
terprises’ property interests.” Open. Br. at 21 n.5. They
insist that the Fairholme plaintiffs, who also pled direct
claims to entitlement to recovery of monies from the gov-
ernment, suffered from a conflict-of-interest that caused
them to “abandon” Mr. Barrett’s derivative takings claim
on appeal. Id. at 12 n.3. Appellants are wrong.
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FISHER v. US 9
While we have recognized that in the context of a class
action “absent class members may later object to a res ju-
dicata or collateral estoppel bar on grounds of due process,
for example, on the grounds that the absent class members
were inadequately represented in the prior action,” Beer
v. United States, 671 F.3d 1299, 1305 (Fed. Cir. 2012), over-
ruled-in-part and vacated-in-part on other grounds by
696 F.3d 1174 (Fed. Cir. 2012) (en banc), this is, at most, a
narrow exception to claim preclusion, and it is one we have
not applied outside the context of a class action. In any
event, assuming the exception can be applicable here, see
Papilsky v. Berndt, 466 F.2d 251, 260 (2d Cir. 1972) (stat-
ing that “fundamental considerations of fairness and jus-
tice demand that the representation be adequate” in earlier
case in order for later shareholder derivative suit to be
barred by claim preclusion), it is a narrow one, and the cir-
cumstances presented here do not come within that narrow
exception.
We agree with the First Circuit that a representation
exception to claim preclusion may apply only where the
representation in the prior case was “‘so grossly deficient
as to be apparent to the opposing party.’” In re Sonus Net-
works, Inc., 499 F.3d at 66 (quoting RESTATEMENT
(SECOND ) OF J UDGMENTS § 42(1)(e) cmt. f). Mr. Barrett’s
representation in Fairholme was not “so grossly deficient.”
Indeed, in the Claims Court, Mr. Barrett prevailed on the
government’s motion to dismiss. See Fairholme Funds,
26 F.4th at 1301-02. While he then lost on appeal, it was
only after defending the trial court’s ruling before us. See
Fairholme Funds, Inc. v. United States, Appeal No. 20-
1912 (“Fairholme Appeal”), ECF No. 38 (Supplemental
Open. Br. of Fairholme Funds Plaintiffs) at 21-31 (Fed. Cir.
Oct. 23, 2020); Fairholme Appeal, ECF No. 58 (Joint Rep.
Br. of Plaintiff-Appellant Private Shareholders), 2021 WL
824966, at *90-105 (Fed. Cir. Feb. 26, 2021). Then, after
we reversed the Claims Court, Mr. Barrett filed a petition
for a writ of certiorari in the Supreme Court, making es-
sentially the same arguments that Appellants now press
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FISHER v. US 10
before us. See Barrett v. United States, No. 22-99, 2022 WL
3044828 (July 22, 2022).
Contrary to Appellants’ assertion, see Open. Br. at 12,
at no point did Mr. Barrett or the other Fairholme plaintiffs
“abandon” the derivative claim. That Appellants disagree
with the strategic decisions made by the Fairholme plain-
tiffs, and even accuse them of suffering from a conflict of
interest (alleging they preferred to prevail on their direct
claims, which could have yielded a direct payment to share-
holders, rather than on derivative claims, which at best
would result in payment to the Enterprises),2 does not
demonstrate grossly deficient representation, especially in
light of the realities of how the Fairholme case was actually
litigated, as we have described above. See Hatch v. Trail
King Indus., Inc., 699 F.3d 38, 45 (1st Cir. 2012) (“It is ax-
iomatic that claim preclusion doctrine requires a party to
live with its strategic choices.”) (cleaned up); Duane Reade,
Inc. v. St. Paul Fire & Marine Ins. Co., 600 F.3d 190, 199
(2d Cir. 2010) (“Where a litigant selected a litigation strat-
egy he now regrets, . . . his choice of that strategy will not
prevent the application of preclusion against him.”) (inter-
nal quotation marks omitted).
This conclusion is bolstered by two further points.
First, we agree with the Second Circuit that in a share-
holder derivative suit, “[a] contest upon the merits is pre-
sumed to indicate that the plaintiff-stockholder vigorously
prosecuted the claim on behalf of the corporation.”
Papilsky, 466 F.2d at 258. In Fairholme, 26 F.4th at 1301,
2 Oral Arg. at 0:27-0:44 (Appellants’ counsel arguing
“plaintiffs in Fairholme were not adequate representatives
of the company because they made a strategic decision on
appeal to abandon their derivative[] taking claim and in-
stead advocate principally for their direct claims, which
were more valuable to them”).
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FISHER v. US 11
the Claims Court considered the merits of the derivative
claim – the identical claim Appellants press here – and we
did the same on appeal. Appellants have not rebutted the
resulting presumption that Mr. Barrett vigorously prose-
cuted the claim on behalf of the Enterprises. Second, Ap-
pellants themselves were heard from directly in Fairholme,
as we granted their request to file an amicus brief, in which
they made essentially the same arguments they offer us
now. See Fairholme Appeal, ECF No. 49 (Fed. Cir. Nov. 24,
2020).
For all these reasons, we are not persuaded that the
advocacy on behalf of the identical derivative claim in Fair-
holme was so grossly deficient as to render it unjust to ap-
ply claim-preclusive effect to our judgment in that case.
B
Appellants’ next effort to evade the claim-preclusive
impact of Fairholme is to argue that the Supreme Court’s
“landmark Takings Clause decision in Tyler,” Open. Br.
at 15, which was issued after Fairholme, transformed tak-
ings law, thereby eviscerating any preclusive effect Fair-
holme might otherwise have. In light of Tyler, they
contend, “it is clear that this Court failed to apply the
proper legal standard or adequately consider the property
interests at stake.” Id. at 18. According to Appellants,
“[t]he Fairholme panel failed to consider the historical
property rights afforded to companies in their own net
worth, focusing only on recently enacted provisions of
HERA that purported to define away the Enterprises’ tra-
ditionally held property interests.” Id. at 21. Again, we
disagree.
We have observed that, generally, “there is no ‘change
of law’ or fairness exception to prevent application of claim
preclusion.” Roche Palo Alto LLC v. Apotex, Inc., 531 F.3d
1372, 1380 (Fed. Cir. 2008). We have also recognized, how-
ever, that “there may be a rare exception in cases involving
momentous changes in important, fundamental
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FISHER v. US 12
constitutional rights.” Id. (internal quotation marks omit-
ted). Assuming such an exception exists,3 it is not applica-
ble here.
Our sister circuits have concluded that such an excep-
tion to claim preclusion can apply only when the interven-
ing decision was so extraordinary as to be historic, such as
“the overruling of the ‘separate but equal’ doctrine” in
Brown v. Board of Education, 347 U.S. 483 (1954). Wilson
v. Lynaugh, 878 F.2d 846, 850-51 (5th Cir. 1989); see also
Precision Air Parts v. Avco Corp., 736 F.2d 1499, 1504
(11th Cir. 1984) (“[W]e did not apply res judicata to a state
court judgment because three months after the prior judg-
ment was issued the Supreme Court, . . . [Brown v. Board]
overruled the separate but equal doctrine.”); Hernandez
v. City of Lafayette, 699 F.2d 734, 737 (5th Cir. 1983) (“The
changed circumstances must be ‘significant’ and must cre-
ate ‘new legal conditions.’”); Smith & Wesson Brands, Inc.
v. Att’y Gen. of New Jersey, 105 F.4th 67, 82 n.12 (3d Cir.
3 Appellants’ reliance on Dow Chemical Co. v. Nova
Chemicals Corp. (Canada), 803 F.3d 620 (Fed. Cir. 2015),
which they suggest sets out a three-part test for when an
intervening change in law justifies departure from claim
preclusion principles, see Reply Br. at 9-10, is unavailing.
That case describes exceptions to the “law of the case” doc-
trine, which applies prior to final judgment, not claim pre-
clusion, which applies after final judgment. See id. at 628;
see also Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394,
398 (1981) (“[T]he res judicata consequences of a final, un-
appealed judgment on the merits [are not] altered by the
fact that the judgment may have been wrong or rested on
a legal principle subsequently overruled in another case.”).
Likewise unavailing is Appellants’ reliance on Bobby
v. Bies, 556 U.S. 825, 836 (2009), and the RESTATEMENT
(SECOND ) OF J UDGMENTS § 28(2), see Reply Br. at 8, both of
which concern issue preclusion, not claim preclusion.
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FISHER v. US 13
2024) (stating that departure from claim-preclusion princi-
ples requires “extraordinary circumstances”).
Tyler did not alter takings law in such an exceptional
way. See generally Leading Case: Tyler v. Hennepin
County, 137 HARV. L. REV . 310 (2023) (describing Tyler as
merely “continu[ing] the trend of a robust Takings
Clause”). That this is so is illustrated by the fact that our
method of analysis in Fairholme, as well as our holding
there, is entirely consistent with Tyler.
In Tyler, 598 U.S. at 636-37, the Supreme Court held
that a state statute permitting the government to obtain a
judgment against real property for unpaid real estate
taxes, and to then sell the property and retain all proceeds
– even those in excess of the unpaid tax debt and costs of
the sale – constituted a taking. The Supreme Court re-
jected the state’s contentions that the statute made home
ownership subject to the state’s authority to proceed under
the statute and that the homeowner never had a property
interest to be free of the risk that the state might do so. See
id. at 638-39. To have accepted this argument, the Su-
preme Court explained, would have allowed the govern-
ment to “sidestep the Takings Clause by disavowing
traditional property interests in assets it wishes to appro-
priate,” simply by passing a statute. Id. at 638. In reach-
ing its conclusion, the Supreme Court considered history
and precedent, as well as “existing rules” and “understand-
ings” about the particular property right asserted by the
homeowner plaintiff. Id.
We followed a very similar mode of analysis in Fair-
holme. There, in assessing whether the Enterprises had a
Fifth Amendment protected property interest that they
were deprived of by the net worth sweep, we considered not
only Congress’ enactment of HERA, but also history and
precedent, as well as existing rules and understandings.
We began by citing the Supreme Court’s decision in
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
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FISHER v. US 14
419, 435-36 (1982), for the principle that “[t]he power to
exclude has traditionally been considered one of the most
treasured strands in an owner’s bundle of property rights.”
Fairholme, 26 F.4th at 1303. We then recounted our own
precedents, which have long established that “regulated fi-
nancial entities lack the fundamental right to exclude the
government from their property when the government
could place the entities into conservatorship or receiver-
ship.” Id. (first citing Golden Pac. Bancorp v. United
States, 15 F.3d 1066, 1074 (Fed. Cir. 1994) (finding that
bank in receivership lacked property interest sufficient to
support takings claim during “those times when the Comp-
troller [of Currency] could legally inspect the Bank or place
it in receivership,” as during those times “the Bank did not
have the right to exclude the Comptroller”), and then citing
Cal. Hous. Sec., Inc. v. United States, 959 F.2d 955, 958
(Fed. Cir. 1992) (rejecting takings claim brought by share-
holder of savings and loan association because “a conse-
quence of the regulated environment in which [the savings
and loan association] voluntarily operated” is that it
“lacked the fundamental right to exclude the government
from its property at those times when the government
could legally impose a conservatorship or receivership”)).
Only after setting out this history and precedent,
thereby exploring existing rules and understandings prior
to HERA, did we turn to the impact of HERA’s enactment
in 2008. In doing so, we again relied on Supreme Court
precedent, Collins, which describes how “HERA gave the
FHFA very broad authority, as conservator, to act in ways
that are not in the best interests of the Enterprises.” Fair-
holme, 26 F.4th at 1303 (citing Collins, 594 U.S. at 237-38).
We reasoned from these premises that because the Enter-
prises had no right to exclude the government from their
property, and also lacked “the right to complain if and
when the FHFA chose to elevate its interests, and the in-
terests of the public, above the interests of the Enter-
prises,” “they had no investment-backed expectation that
the FHFA would protect their interests and not dilute their
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FISHER v. US 15
equity.” Id. We additionally pointed to the common-sense
notion that the Enterprises had “consented to the conser-
vatorship, and consented to one where the conservator had
extremely broad statutory powers.” Id. Again, our analy-
sis is entirely consistent with the Supreme Court’s mode of
analysis in Tyler, and our holding differed from Tyler’s,
properly, as the result of quite different facts.
Thus, Appellants have failed to show that Tyler in-
volved such a momentous change to the understanding of
a fundamental constitutional right as to allow Appellants
to avoid the claim-preclusive impact of our decision in Fair-
holme. Fairholme’s reasoning was not, in any respect, in-
consistent with Tyler.
C
Finally, even if Appellants were able to escape the
claim-preclusive effect of Fairholme, this panel would still
be obligated to follow it as binding precedent. A panel of
this Court is bound to follow precedential opinions issued
by earlier panels. See Sacco v. Dep’t of Just., 317 F.3d 1384,
1386 (Fed. Cir. 2003). It is true that when a subsequent
Supreme Court opinion overrules, expressly or implicitly,
an earlier panel opinion, that development can be recog-
nized by a subsequent panel, which is then no longer bound
to follow the overruled panel precedent. See Deckers Corp.
v. United States, 752 F.3d 949, 965 (Fed. Cir. 2014). But,
for the reasons described above, we have rejected Appel-
lants’ contention that Tyler overruled Fairholme. There-
fore, again, we affirm the Claims Court’s dismissal of
Appellants’ complaint.
IV
We have considered Appellants’ remaining arguments
and do not find them persuasive. Accordingly, for the rea-
sons stated above, we affirm the judgment of the Court of
Federal Claims.
AFFIRMED
Case: 24-1167 Document: 54 Page: 15 Filed: 08/12/2025

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