          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


                               - 2 -
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


                                   - 3 -
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


                                   - 4 -
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.


                                        - 5 -
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.


                                     - 6 -
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.




                               - 7 -
           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


                               - 8 -
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


                                    - 9 -
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.


                                  - 11 -
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


                                   - 12 -
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


                                   - 13 -
"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,


                                   - 14 -
§ 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


                                  - 15 -
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).


                                        - 16 -
          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


                                       - 17 -
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.




                                          - 18 -
                                        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.


                                      - 19 -
             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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