Faiella v. Fed. Natl Mortgage Assoc. , 928 F.3d 141 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1063
RALPH FAIELLA,
Plaintiff, Appellant,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Selya, Circuit Judges.
William Christopher Sheridan, with whom Sheridan Law Offices,
was on brief, for appellant.
James W. McGarry, with whom Goodwin Procter LLP was on brief,
for appellee.
June 26, 2019
SELYA, Circuit Judge. The Merrill doctrine requires a
showing of actual authority as a basis for holding a federal
instrumentality vicariously liable for the acts of its agents.
See Fed. Crop Ins. Co. v. Merrill, 332 U.S. 380, 384 (1947). It
follows that such an instrumentality cannot be held vicariously
liable for acts of its agents that were not actually authorized
even if a private principal could be held liable in the same or
similar circumstances under a theory of apparent authority. See
id. The case at hand arises against this backdrop and presents a
question of first impression at the federal appellate level: does
the protective carapace of the Merrill doctrine extend to the
Federal National Mortgage Association (Fannie Mae)? Because we
answer this question in the affirmative and likewise conclude that
the other arguments advanced by plaintiff-appellant Ralph Faiella
lack force, we affirm the district court's entry of summary
judgment in Fannie Mae's favor.
I. BACKGROUND
We briefly rehearse the relevant facts and travel of the
case, viewing those facts in the light most flattering to the
appellant (the party opposing summary judgment). See Avery v.
Hughes, 661 F.3d 690, 691 (1st Cir. 2011). In 2007, the appellant
took out a loan secured by a first mortgage on his principal
residence in Plaistow, New Hampshire. The lender assigned the
mortgage loan to Fannie Mae, which arranged for it to be serviced
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by Green Tree Servicing LLC, now called Ditech Financial LLC
(Ditech).
Over the next eight years, the appellant occasionally
failed to make his monthly mortgage payments. On each occasion,
he worked with an assigned Ditech representative to cure the
default and effect late payment of the arrearage. In the summer
of 2015, the appellant missed yet another payment. He thereafter
received a mortgage statement indicating an arrearage of
$5,428.61, which included an exhortation that he contact his
assigned representative to bring his account current. After
speaking with the representative, the appellant mailed Ditech a
check covering both the described arrearage and his anticipated
October 2015 mortgage payment. This check, in the gross amount of
$6,167.21, was mailed to Ditech on September 17, 2015.
Two days later, the appellant received a notice of
foreclosure on his home. He immediately wrote to his Ditech
representative to confirm that he had sent a check sufficient to
cure the default. In the same letter, he requested that the
foreclosure be halted. The appellant heard nothing for over a
week. Ditech then returned his check and notified him that the
amount tendered was not correct.
The appellant promptly contacted his Ditech
representative. She told him that the problem was that he had
submitted a personal check, not a cashier's check. Relying on
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this insight, the appellant sent Ditech a cashier's check in the
same amount. His efforts proved unavailing: the foreclosure sale
proceeded, and Fannie Mae acquired the mortgaged property at that
sale on October 16, 2015. For its part, Ditech simply returned
the cashier's check to the appellant and instructed him to contact
his representative concerning the amount owed. When the appellant
complied, his representative informed him that she did not know
the amount needed to wipe out the foreclosure and reinstate his
loan.
Notwithstanding the foreclosure, the appellant
apparently retained physical possession of the premises. He went
on the offensive and, in February of 2016, sued Fannie Mae and
Ditech in a New Hampshire state court. The appellant's complaint
prayed for a declaratory judgment regarding the invalidity of the
foreclosure, asserted a wrongful foreclosure claim, and sought
money damages for economic loss and emotional distress. The action
was removed to the United States District Court for the District
of New Hampshire. See 28 U.S.C. §§ 1332, 1441. There, the
appellant filed an amended complaint seeking only a declaratory
judgment with respect to the alleged invalidity of the foreclosure.
On its own motion, Ditech was dropped from the case on the ground
that it had not participated in the foreclosure proceeding.
In July of 2016, Fannie Mae moved to rescind its
foreclosure deed and reinstate the appellant's mortgage. The
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appellant opposed the motion, arguing that this unrequested
equitable relief would prevent him from seeking damages. The
district court denied Fannie Mae's motion and granted the
appellant's oral motion to amend his complaint to reassert his
damages claims.
The appellant filed a further amended complaint,
replacing his previous prayer for declaratory relief with a
compendium of damages claims alleging violations of several
federal and state debt collection and consumer protection laws and
regulations. This further amended complaint also included common-
law tort claims for deceit and negligent misrepresentation.1
Fannie Mae successfully moved to dismiss the statutory claims on
various grounds. The dismissal of these claims (which is not an
issue here) left only the appellant's common-law claims alleging
that Fannie Mae was vicariously liable for deceit and negligent
misrepresentation committed by Ditech employees.
In due season, Fannie Mae answered what remained of the
further amended complaint. Its answer contained, inter alia, an
affirmative defense asserting that, to the extent that the
1At the same time, the appellant sought to reintroduce Ditech
as a defendant. Ditech responded by moving to strike the
allegations against it as beyond the scope of the amendment that
had been allowed. The court granted this motion, thus preserving
Ditech's non-party status. The appellant's claims against Ditech
are apparently being litigated in a state-court action and need
not concern us.
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appellant sought to hold Fannie Mae vicariously liable for Ditech's
actions, any such liability was pretermitted by the Merrill
doctrine. Alternatively, Fannie Mae asserted that the appellant's
claims against it were barred by the economic-loss doctrine, a
common-law principle recognized in New Hampshire. See, e.g., Wyle
v. Lees, 33 A.3d 1187, 1190 (N.H. 2011); Plourde Sand & Gravel v.
JGI E., Inc., 917 A.2d 1250, 1253 (N.H. 2007).
During the course of two status conferences, the parties
agreed that Fannie Mae's affirmative defenses were essentially
legal in nature and were potentially dispositive.2 In line with
this agreement, the court entered a bifurcated scheduling order,
under which it would address the merits of Fannie Mae's Merrill
doctrine and economic-loss arguments before dealing with the
appellant's damages claims.
Fannie Mae moved for summary judgment on the Merrill
doctrine and economic-loss issues. The appellant opposed the
motion. The district court granted summary judgment on the basis
of the Merrill doctrine, holding that Fannie Mae was a federal
instrumentality protected from vicarious liability for the
unauthorized acts of its agents. See Faiella v. Fed. Nat'l Mortg.
2 This agreement was facilitated by Fannie Mae's stipulation
that, for purposes of its summary judgment motion, it could be
assumed that Ditech acted as its agent at all relevant times. So,
too, the agreement was facilitated by the appellant's
acknowledgment that no discovery was needed in order to permit him
to address these issues.
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Ass'n, No. 16-CV-088, 2017 WL 6375600, at *6-*8 (D.N.H. Dec. 13,
2017). This timely appeal ensued.
II. ANALYSIS
We review the entry of summary judgment de novo. See
Irobe v. U.S. Dep't of Agric., 890 F.3d 371, 377 (1st Cir. 2018).
"A district court may only grant summary judgment when the record,
construed in the light most congenial to the nonmovant, presents
no genuine issue as to any material fact and reflects the movant's
entitlement to judgment as a matter of law." McKenney v. Mangino,
873 F.3d 75, 80 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311
(2018); see Fed. R. Civ. P. 56(a). When the motion is premised
upon the absence of any genuine issue of material fact, the burden
shifts to the nonmovant to identify, by means of materials of
evidentiary quality, an issue of fact that is "more than 'merely
colorable.'" Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st
Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986)).
A.
The appellant mounts a threshold argument. He says that
the grant of summary judgment was improvident because the record
was not sufficiently developed to permit resolution of the motion.
This argument, though, cannot be reconciled with the appellant's
words and actions in the court below.
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At a status conference on May 23, 2017, the appellant
agreed that he would review Fannie Mae's motion for summary
judgment (predicated on the Merrill doctrine and economic-loss
issues) and notify the court if he thought that discovery was
needed to allow him to respond to the motion. During a follow-up
conference on September 14, the appellant concurred in the district
court's statement that "the parties are now in agreement that
there's no discovery that needs to be conducted . . . to respond
to the pending motion for summary judgment." By words and actions,
the appellant represented to the district court that the facts
were sufficiently developed to permit resolution of the summary
judgment motion. A party ordinarily is bound by his
representations to a court, see United States v. Orsini, 907 F.3d
115, 119-20 (1st Cir. 2018), and — having staked out his position
in response to the district court's inquiry — the appellant cannot
now repudiate that position.
If more were needed — and we do not think that it is —
Federal Rule of Civil Procedure 56(d) provides a failsafe for this
sort of situation. Under Rule 56(d), "if a party opposing summary
judgment shows that 'for specified reasons, [he] cannot present
facts essential to justify [his] opposition,' the district court
may grant appropriate relief." Nieves-Romero v. United States,
715 F.3d 375, 381 (1st Cir. 2013) (alteration in original) (quoting
Fed. R. Civ. P. 56(d)). Rule 56(d), though, is designed to help
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the vigilant, not those who slumber upon perceptible rights. The
rule "is not self-executing, but, rather, must be appropriately
invoked." Rivera-Almodóvar v. Instituto Socioeconómico
Comunitario, Inc., 730 F.3d 23, 28 (1st Cir. 2013). When a party
confronted with a summary judgment motion does not invoke Rule
56(d) through an affidavit or some similarly authoritative
proffer, he relinquishes any right to challenge the subsequent
entry of summary judgment on the basis of insufficient factual
development. See id. at 28-29; Jones v. Secord, 684 F.3d 1, 6
(1st Cir. 2012). So it is here.
For these reasons, we reject the appellant's threshold
argument and proceed to review the district court's summary
judgment ruling on the existing record.
B.
The pivotal question with respect to the district
court's summary judgment ruling is whether Fannie Mae is a federal
instrumentality for purposes of the Merrill doctrine. We turn
next to that question.
In Merrill, the respondents were farmers who had applied
for insurance from the Federal Crop Insurance Corporation (FCIC),
a government-owned enterprise established by Congress. See 332
U.S. at 381-82. The respondents' application for crop insurance
was processed by a non-federal actor, the county Agricultural
Conservation Committee (the Committee), acting as an agent for the
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FCIC. See id. at 382. The FCIC eventually received and approved
the application. See id. But when the respondents tried to
collect on the insurance during a time of drought, it came to light
that the Committee, despite being informed by the respondents about
certain disqualifying facts, had not included those facts in the
application package that it forwarded to the FCIC. See id. Once
made aware of the disqualifying information, the FCIC refused to
honor the respondents' claims. See id.
The respondents sued the FCIC to make good on the policy
and recover the insurance proceeds. The case wended its way to
the Supreme Court, which upheld the FCIC's refusal to pay. See
id. at 386. Although recovery likely could have been had against
a private insurer on similar facts, the Court held that the federal
government could not be bound in the same way. See id. at 383-
84. The Court reasoned that "anyone entering into an arrangement
with the Government takes the risk of having accurately ascertained
that he who purports to act for the Government stays within the
bounds of his authority." Id. at 384. From this seed, a principle
sprouted: the federal government cannot be bound by the
unauthorized acts of its agents. See United States v. Ellis, 527
F.3d 203, 207 (1st Cir. 2008); United States v. Vanhorn, 20 F.3d
104, 112 n.19 (4th Cir. 1994); Penny v. Giuffrida, 897 F.2d 1543,
1546 (10th Cir. 1990); Watkins v. U.S. Army, 875 F.2d 699, 707
(9th Cir. 1989); United States v. Don B. Hart Equity Pure Tr., 818
- 10 -
F.2d 1246, 1256 (5th Cir. 1987); United States v. Jones & Laughlin
Steel Corp., 804 F.2d 348, 352 (6th Cir. 1986); Cinciarelli v.
Reagan, 729 F.2d 801, 807 (D.C. Cir. 1984); Matter of Chi., M.,
St. P. & P. R. Co., 673 F.2d 169, 174 (7th Cir. 1982); Doe v.
Civiletti, 635 F.2d 88, 96 (2d Cir. 1980); Werner v. U.S. Dep't of
Interior, 581 F.2d 168, 172 (8th Cir. 1978).3
The rationale that undergirds the Merrill doctrine is
both salutary and straightforward. The doctrine "expresses the
duty of all courts to observe the conditions defined by Congress
for charging the public treasury." Merrill, 332 U.S. at 385.
"Because the federal government's 'fiscal operations are so
various, and its agencies so numerous and scattered,' there is
always a risk that misinformed . . . representatives may err in
interpreting statutes and regulations, and even 'the utmost
vigilance would not save the public from the most serious losses.'"
Wagner v. Dir., Fed. Emerg. Mgmt. Agency, 847 F.2d 515, 519 (9th
Cir. 1988) (quoting United States v. Kirkpatrick, 22 U.S. (9
3 In this circuit, the Merrill doctrine has been applied
primarily when a party asserts that the federal government should
be equitably estopped from raising the defense that the acts of
its agents were unauthorized. See, e.g., Dantran, Inc. v. U.S.
Dep't of Labor, 171 F.3d 58, 66 (1st Cir. 1999); Phelps v. Fed.
Emerg. Mgmt. Agency, 785 F.2d 13, 17 (1st Cir. 1986). It is
abundantly clear, however, that the principle that the federal
government cannot be held liable for its agents' unauthorized acts
is not limited to cases arising in such a posture.
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Wheat.) 720, 735 (1824)). Thus, the Merrill doctrine is designed,
in part, to ensure appropriate protection of the public fisc.
We say "in part" because the doctrine also rests solidly
"upon considerations of sovereign immunity and constitutional
grounds — the potential for interference with the separation of
governmental powers between the legislative and executive."
Phelps v. Fed. Emerg. Mgmt. Agency, 785 F.2d 13, 17 (1st Cir.
1986). These foundational considerations are reinforced by public
policy considerations. See Mendrala v. Crown Mortg. Co., 955 F.2d
1132, 1140 (7th Cir. 1992). All of these concerns come into
especially bold relief where, as here, unauthorized acts by a
private contractor could potentially bind the federal government.
See id. at 1141.
Of course, the Merrill doctrine — by its very nature —
operates only to safeguard federal instrumentalities.
Consequently, it remains for us to determine whether Fannie Mae is
a federal instrumentality for purposes of the Merrill doctrine —
a task that no other federal appellate court has yet undertaken.
Cf. Molton, Allen & Williams, Inc. v. Harris, 613 F.2d 1176, 1179
(D.C. Cir. 1980) (assuming but not holding that Merrill doctrine
applies to Fannie Mae).
We preface this inquiry by noting that the appellant has
not fully developed an argument that Fannie Mae is not a federal
instrumentality under the Merrill doctrine. Nevertheless, his
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muddled briefing does suggest that because Fannie Mae is not a
federal instrumentality for the purposes of sovereign immunity or
the Federal Tort Claims Act, that status is precluded in the
Merrill context. So, too, he argues that as a shareholder-owned
corporation, Fannie Mae should not receive the protections of the
Merrill doctrine. These suggestions need not detain us.
First, the fact that an entity is deemed not to be a
federal instrumentality for a particular purpose does not signify
that the entity should not be deemed to be a federal
instrumentality for some other purpose. See U.S. ex rel. Adams v.
Aurora Loan Servs., Inc., 813 F.3d 1259, 1261 (9th Cir. 2016); cf.
Mendrala, 955 F.2d at 1139 (noting that even if the Federal Home
Loan Mortgage Corporation is not a federal instrumentality within
the purview of the Federal Tort Claims Act, that "does not preclude
a determination that it is a federal instrumentality for other
purposes"). Second, the question of instrumentality status is not
determined either by Fannie Mae's corporate form or by whether
Fannie Mae serves a "proprietary" (as opposed to a "sovereign")
function. See Merrill, 332 U.S. at 384 (explaining that "[t]he
Government may carry on its operations through conventional
executive agencies or through corporate forms especially created
for defined ends"); see also REW Enters., Inc. v. Premier Bank,
N.A., 49 F.3d 163, 167 (5th Cir. 1995) (warning against undue
reliance on labels). We agree with the Eleventh Circuit that a
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"federal instrumentality does not divest itself of the privileges
of instrumentality status when it acts more like a privately owned
institution than a federal agency." Smith v. Russellville Prod.
Credit Ass'n, 777 F.2d 1544, 1550 (11th Cir. 1985).
With these muddled arguments laid to rest, our inquiry
hinges on whether Congress created Fannie Mae to serve an important
governmental objective. See REW Enters., 49 F.3d at 167-68. In
making this determination, we look primarily to congressional
intent as embodied in Fannie Mae's governing statute. See McCauley
v. Thygerson, 732 F.2d 978, 982 (D.C. Cir. 1984). We also take
into account whether preventing Fannie Mae from being bound by the
unauthorized acts of its agents would run at cross-purposes with
this intent. See Mendrala, 955 F.2d at 1140-41; McCauley, 732
F.2d at 982.
Although the question before us is a question of first
impression at the federal appellate level, the road is well-marked.
The Seventh Circuit's decision in Mendrala is particularly
instructive. There, the court concluded that the Federal Home
Loan Mortgage Corporation (Freddie Mac) is a federal
instrumentality for purposes of the Merrill doctrine. See 955
F.2d at 1140. Looking to its governing statute, the court found
that Freddie Mac "has a public statutory mission: to maintain the
secondary mortgage market and assist in meeting low- and moderate-
income housing goals." Id. at 1140-41 (citing Pub. L. No. 91-351,
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§ 301, as amended, Pub. L. No. 101-73, Title VII, § 731(a), 103
Stat. 429 (Aug. 9, 1989)). This mission, the court stated, would
be thwarted if Freddie Mac could be held "responsible for the
unauthorized actions" of its agents. Id. at 1141. That the agents
in question were employees of a private entity with whom Freddie
Mac contracted, the court explained, presented an even stronger
case for applying the Merrill doctrine. See id.
Freddie Mac and Fannie Mae are siblings under the skin.
Cf. Jacobs v. Fed. Hous. Fin. Agency, 908 F.3d 884, 887 (3d Cir.
2018) ("In the wake of the Great Depression, Congress created
Fannie, and later Freddie, to support the home-mortgage market.").
Like Freddie Mac, Fannie Mae is a shareholder-owned company, which
operates under a congressional charter. See id.; 2 U.S.C.
§ 622(8). And like Freddie Mac, Fannie Mae serves an important
governmental objective: "to maintain the secondary mortgage
market and assist in meeting low- and moderate-income housing
goals." Mendrala, 955 F.2d at 1140. Enabling Fannie Mae to be
held liable for the unauthorized acts of its agents, particularly
those who are employees of a private entity, would frustrate
Congress's intent as expressed in the prescribed nature of Fannie
Mae's authority. Cf. id. at 1141 (reaching similar conclusion
with respect to Freddie Mac).
That ends this aspect of the matter. We hold that Fannie
Mae is a federal instrumentality for purposes of the Merrill
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doctrine and, thus, cannot be held liable for the unauthorized
acts of its agents.4 Since the appellant's claims are predicated
on the theory that Fannie Mae should be held to account for the
acts of Ditech employees — acts that the record does not show were
actually authorized by Fannie Mae — the district court's entry of
summary judgment seems unimpugnable.
C.
The appellant tries to make an end run around this
holding. He contends that language in Fannie Mae's governing
statute allowing it "to sue and be sued," 17 U.S.C. § 1723a(a),
precludes application of the Merrill doctrine.
This contention is wrong on its face. The dispositive
question is not whether a federal instrumentality can sue and be
sued as a general matter but, rather, whether the federal
instrumentality can be sued for the unauthorized acts of its
agents. Cf. Edwards v. Tenn. Valley Auth., 255 F.3d 318, 322-25
(6th Cir. 2001) (concluding that agency action fell within
exception to tort liability under its "sue and be sued" provision).
As we already have explained, Fannie Mae cannot.
4
This holding echoes a chorus of decisions by district
courts. See, e.g., Gray v. Seterus, Inc., 233 F. Supp. 3d 865,
869 (D. Or. 2017); Cannon v. Wells Fargo Bank N.A., 917 F. Supp.
2d 1025, 1035 (N.D. Cal. 2013); Hinton v. Fed. Nat. Mortg. Ass'n,
945 F. Supp. 1052, 1060 (S.D. Tex. 1996), aff'd, 137 F.3d 1350
(5th Cir. 1998).
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To cinch the matter, the statute governing the FCIC (the
federal instrumentality involved in Merrill) contains precisely
the same "sue and be sued" language upon which the appellant
mistakenly relies. See 7 U.S.C. § 1506(d). What is sauce for the
Merrill goose is perforce sauce for the appellant's gander.
To say more on this point would be supererogatory. There
is simply no hint of tension between the operation of Fannie Mae's
"sue and be sued" provision and our holding that Fannie Mae is a
federal instrumentality for purposes of the Merrill doctrine.
D.
Caught in the toils of the Merrill doctrine, the
appellant spies what he perceives as an escape route. Even if the
Merrill doctrine applies generally to Fannie Mae, his thesis runs,
the doctrine is limited to contract claims and, therefore, does
not defenestrate his tort-based claims. This route is a dead end.
The appellant does not offer a shred of authority
supporting his self-serving attempt to truncate the reach of the
Merrill doctrine. The case law, though sparse, makes pellucid
that the Merrill doctrine has regularly been applied to foreclose
claims sounding in tort. See, e.g., Gray v. Seterus, Inc., 233 F.
Supp. 3d 865, 869 (D. Or. 2017) (collecting cases "which have found
that the Merrill doctrine applies in both contract and statutory
tort based claims"); Cannon v. Wells Fargo Bank N.A., 917 F. Supp.
2d 1025, 1034 (N.D. Cal. 2013) (explaining that "the Merrill
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doctrine has been applied to both contract and tort-based claims").
Nor is there any discernable justification for adopting a
categorical rule that would sideline the Merrill doctrine in
actions sounding in tort. After all, the public fisc is at risk
regardless of the form of action; and the same separation of
powers, sovereign immunity, and public policy concerns that drive
the Merrill doctrine in the contract context are equally implicated
in the tort context.
The claims that the appellant presses in the case at
hand illustrate the fallacy of attempting to draw a blanket
distinction between contract and tort claims with respect to the
Merrill doctrine. Even though his claims sound in tort, they are
inextricably tied to duties derived from the appellant's
contractual relationship with Fannie Mae. Specifically, the
appellant's claims are based on representations allegedly made by
Ditech personnel during the term of the mortgage and in relation
to the mortgage. Seen in this light, construing the Merrill
doctrine to preclude contract claims while allowing parallel
contract-based tort claims would be both incongruous and
mischievous — an open invitation to gamesmanship. We hold,
therefore, that even though the appellant's claims sound in tort,
the Merrill doctrine bars his suit.
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E.
The appellant has one last shot in his sling. Even
assuming that the Merrill doctrine shields Fannie Mae from
vicarious liability for the unauthorized acts of its agents, see
text supra, the appellant notes that the doctrine has inherent
limitations. One prominent limitation is that the doctrine does
not bar suits against a federal instrumentality when an agent of
that instrumentality acts with "[a]ctual authority . . . conferred
either expressly or by necessary implication." United States v.
Flemmi, 225 F.3d 78, 85 (1st Cir. 2000).
With this toehold, the appellant labors to rewrite the
Merrill doctrine. He maintains that "regardless of authority,"
the government must be held responsible for the torts of its
agents. This is simply too much of a stretch: while an agent
ordinarily may bind a principal when he acts on the basis of his
apparent authority, see Restatement (Second) of Agency § 8 (1958),
apparent authority is "not available to bind the federal
sovereign," Flemmi, 225 F.3d at 85. It follows that the federal
government can be held vicariously liable only when it has granted
actual authority to its allegedly culpable agents. See id. Here,
the record is devoid of anything that might suggest that Ditech
personnel were granted actual authority by Fannie Mae to make the
allegedly inaccurate representations that the appellant attributes
to them.
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There is, of course, another potentially pertinent
limitation: the federal government cannot claim the prophylaxis
of the Merrill doctrine in the face of its own affirmative
misconduct. See REW Enters., 49 F.3d at 169. "There is no single
test for detecting the presence of affirmative misconduct; each
case must be decided on its own particular facts and
circumstances." Watkins, 875 F.2d at 707. The caselaw suggests,
however, that a finding of affirmative misconduct requires either
an affirmative misrepresentation of a material fact by the
government or some affirmative concealment of such a fact by the
government. See id. And in any event, affirmative misconduct
"requires something more than simple negligence" on the part of
the federal instrumentality. Dantran Inc. v. U.S. Dep't of Labor,
171 F.3d 58, 67 (1st Cir. 1999).
In this case, Fannie Mae has asserted the absence of any
genuine issue of material fact with respect to affirmative
misconduct. Thus, the appellant, as the party opposing summary
judgment, had the burden of establishing, through materials of
evidentiary quality, facts sufficient to support a showing of
affirmative misconduct. See Flovac, 817 F.3d at 853. But the
district court found "no evidence in the record that Fannie Mae
authorized or affirmatively encouraged Ditech to improperly
service" the appellant's loan. Faiella, 2017 WL 6375600, at *7.
Relatedly, the court found nothing in the record "that would
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support an inference that Ditech's alleged misrepresentations were
the result of affirmative misconduct as opposed to carelessness"
on Fannie Mae's part. Id.
Before us, the appellant does not challenge these
findings.5 The absence of such a challenge means that the appellant
has waived any right to assert that Fannie Mae committed
affirmative misconduct. See DeCaro v. Hasbro, Inc., 580 F.3d 55,
64 (1st Cir. 2009) ("It is common ground that contentions not
advanced in an appellant's opening brief are deemed waived.");
Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990)
(similar).
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
5To be sure, the appellant reiterates his argument that
further discovery should be allowed as to the existence vel non of
affirmative misconduct. We already have explained why he is not
entitled to further discovery, see supra Part II(A), and beating
this dead horse would serve no useful purpose.
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