The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
This suit arises from the termination of a consulting contract between Caroline Herron and Fannie Mae. Ms. Herron worked for Fannie Mae as an employee and then as a contractor until she was terminated in January 2010. She alleges that she was terminated due to her complaints that Fannie Mae (1) acted improperly in its role assisting the U.S. Department of the Treasury ("Treasury") with home loan modifications, (2) wasted public funds, and (3) violated its contract with Treasury. Compl. [Dkt. 1] ¶ 1. Ms. Herron pleads in the alternative. If Fannie Mae is considered a private employer, Ms. Herron brings claims of wrongful discharge, tortious interference, and civil conspiracy under D.C. law. If Fannie Mae is a government actor, Ms. Herron asserts a First Amendment claim under Bivens.*fn1 Defendants and Intervenor, the Federal Housing Finance Agency ("FHFA"), move to dismiss the Bivens claim on the ground that Defendants are not federal actors and thus Bivens is inapplicable. Because Fannie Mae is a private entity and the appointment of FHFA as conservator of Fannie Mae did not transform Fannie Mae into a public agency, the motions to dismiss the Bivens claim will be granted.
A. Ms. Herron's History with Fannie Mae
Ms. Herron was employed at Fannie Mae from 2000--2007. At the end of her time there, she was a vice president. She held a leadership role on many projects and earned high performance ratings. In 2007, Fannie Mae downsized, and Ms. Herron accepted a buyout. She left the company on good terms. After FHFA placed Fannie Mae into conservatorship in 2008, an outside vendor hired Ms. Herron to provide consulting services to Fannie Mae. Ms. Herron's rapport with Fannie Mae deteriorated, and the consulting relationship was ended. Ms. Herron contends that Fannie Mae wrongfully terminated her as a consultant and that thereafter she was "blackballed" from Fannie Mae and the industry.
As a result, she filed this suit against Fannie Mae and the following Fannie Mae employees: Eric Schuppenhauer, Senior Vice President of Credit Initiatives; Nancy Jardini, Vice President of Compliance; Alanna Scott Brown, Ms. Herron's supervisor; and John Does One through Four, unnamed Fannie Mae officials. Her Complaint asserts three counts under local law as well as a Bivens claim under federal law as follows:
Count I -- wrongful discharge against Fannie Mae;
Count II -- civil conspiracy to terminate employment and impede future employment against all Defendants;
Count III -- tortious interference with prospective contractual relations against all Defendants; and Count IV -- First Amendment action under Bivens against individual defendants Schuppenhauer, Jardini, Brown, and John Does.
See Compl. [Dkt. 1]. Because Fannie Mae is a party to this suit, this Court has jurisdiction. See 12 U.S.C. § 1723a(a) (Fannie Mae has the power to sue and be sued in any court of competent jurisdiction, state or federal).
B. Background of Fannie Mae
Fannie Mae purchases residential mortgages thereby providing lenders
with capital to fund additional mortgage loans. Also known as the
Federal National Mortgage Association or "FNMA," Fannie Mae was
created in 1968 when Congress partitioned the Federal National
Mortgage Association into two entities: (1) the Government National
Mortgage Association ("Ginnie Mae"), which remained in the government,
and (2) Fannie Mae, a private corporation. Stipulation*fn2
[Dkt. 49] ("Stip.") ¶ 2 (citing the Housing and Urban
Development Act of 1968, Pub.
L. No. 90-448, 82 Stat. 476 (1948), codified in part at 12 U.S.C. §
1716b. The statute that created Fannie Mae provided:
The purpose of this title includes the partition of the Federal National Mortgage Association as heretofore existing into two separate and distinct corporations . . . . One of such corporations, to be know as the Federal National Mortgage Association, will be a Government-sponsored private corporation, will retain the assets and liabilities of the previously existing corporation accounted for under section 1719 of this title, and will continue to operate the secondary market operations authorized by such section 1719. 12 U.S.C. § 1716b. Fannie Mae was empowered to purchase, sell, and service mortgages. 12 U.S.C. § 1717(b). Fannie Mae was privately controlled by a Board of Directors, the majority of whom were elected annually by the shareholders. See 12 U.S.C. § 1718(a) (establishing common stock with the right to vote for directors, and preferred stock on terms and conditions as prescribed by such directors); id. § 1723(b) (stating that Fannie Mae shall have a board of directors persons who are elected annually by common stockholders); see also Northrip v. Fed. Nat'l Mortg. Ass'n, 527 F.2d 23, 30 (6th Cir. 1975) (Fannie Mae had 15 board members; 5 were appointed by the President and 10 were elected annually by common shareholders).
Fannie Mae competed with other financial institutions in the mortgage industry. Historically, Fannie Mae's competitors included Freddie Mac, Ginnie Mae, financial institutions, securities dealers, insurance companies, and many others. Stip. ¶ 95 ...