Marc Wiersum v. U.S. Bank, N.A.

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12289
________________________
D.C. Docket No. 1:13-cv-23438-KMW
MARC WIERSUM,
Plaintiff - Appellant,
versus
U.S. BANK, N.A.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 5, 2015)
Before MARTIN and FAY, Circuit Judges, and GOLDBERG,* Judge.
________________________
*Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.
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FAY, Circuit Judge:
Marc Wiersum appeals the dismissal with prejudice of his alleged wrongful-
termination action, filed under the Florida Whistleblower Act (“FWA”), 1 which the
district judge determined was preempted by the National Bank Act (“NBA”). 2 We
affirm.
I. BACKGROUND
On March 15, 2013, U.S. Bank, N.A., a federally chartered bank
headquartered in Minnesota, hired Wiersum, a resident of Miami-Dade County,
Florida, as a Vice President and Wealth Management Consultant for its Naples
office. During his brief employment, Wiersum alleged he witnessed U.S. Bank
condition credit upon asset management, in violation of 12 U.S.C. § 1972. He
objected to certain activities he believed were “unlawful tying arrangement(s)” and
refused to participate in them. Complaint at 2 ¶ 19. Following his objections,
Wiersum alleged U.S. Bank treated him adversely by terminating his employment
on May 31, 2013, in retaliation.
Wiersum filed a single-count complaint against U.S. Bank in the Southern
District of Florida on diversity jurisdiction and alleged a violation of the FWA, Fla.
Stat. § 448.102(3). U.S. Bank moved to dismiss Wiersum’s complaint under
Federal Rule of Civil Procedure 12(b)(6) for federal preemption. It argued
1
Fla. Stat. § 448.102(3).
2
12 U.S.C. § 24 (Fifth).
2
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Wiersum’s FWA complaint was barred by the NBA, which permits federally
chartered banks to dismiss officers “at pleasure.” 12 U.S.C. § 24 (Fifth). Wiersum
responded; U.S. Bank replied. The district judge concluded the FWA, prohibiting
retaliatory personnel action by an employer, and the NBA are in direct conflict
regarding the at-pleasure termination provision of the NBA. Wiersum did not
move for reconsideration and appealed the dismissal with prejudice of his FWA
case. Deciding whether the NBA preempts the FWA, concerning a state-
employment contract, is a first-impression issue for our circuit.
II. DISCUSSION
We review de novo a district judge’s granting a motion to dismiss for failure
to state a claim under Rule 12(b)(6), accept the complaint allegations as true, and
construe them most favorably to the plaintiff. Butler v. Sheriff of Palm Beach
Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012). A complaint must contain “enough
facts to state a claim to relief that is plausible on its face” to survive dismissal.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007).
“[C]onslusory allegations, unwarranted deductions of facts or legal conclusions
masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v.
Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). We review de novo a district
judge’s interpretation of a statute. Reese v. Ellis, Painter, Ratterree & Adams,
LLP, 678 F.3d 1211, 1215 (11th Cir. 2012).
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A. Federal Preemption
“In pre-emption cases, the question is whether state law is pre-empted by a
federal statute, or in some instances, a federal agency action.” POM Wonderful
LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2236 (2014) (citing Wyeth v. Levine, 555
U.S. 555, 563, 129 S. Ct. 1187, 1193 (2009)). The Supremacy Clause of the
United States Constitution provides “the Laws of the United States . . . shall be the
supreme Law of the Land.” U.S. Const. Art. VI, cl. 2. “[W]e have long
recognized that state laws that conflict with federal law are without effect.” Altria
Grp., Inc. v. Good, 555 U.S. 70, 76, 129 S. Ct. 538, 543 (2008) (citation and
internal quotation marks omitted); see Barnett Bank of Marion Cnty., N.A. v.
Nelson, 517 U.S. 25, 30, 116 S. Ct. 1103, 1107 (1996) (“[T]he Supremacy Clause
requires courts to follow federal, not state, law.”).
The Supreme Court has identified three circumstantial categories, where
federal law preempts state law. First is express preemption, where Congress
defines “explicitly the extent to which its enactments pre-empt state law.” English
v. Gen. Electric Co., 496 U.S. 72, 78, 110 S. Ct. 2270, 2275 (1990). “[W]hen
Congress has made its intent known through explicit statutory language, the courts’
task is an easy one.” Id. at 79, 110 S. Ct. at 2275; see Chamber of Commerce of
U.S. v. Whiting, 563 U.S. __, __, 131 S. Ct. 1968, 1977 (2011) (noting the plain
wording of a federal statute “necessarily contains the best evidence of Congress’
preemptive intent”); Fla. State Conference of NAACP v. Browning, 522 F.3d 1153,
4
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1167 (11th Cir. 2008) (“Express preemption occurs when Congress manifests its
intent to displace a state law using the text of a federal statute.”).
Second is field preemption. English, 496 U.S. at 79, 110 S. Ct. at 2275.
“[I]n the absence of explicit statutory language, state law is preempted where it
regulates conduct in a field that Congress intended the Federal Government to
occupy exclusively.” Id., 110 S. Ct. at 2275.
Such an intent may be inferred from a “scheme of federal regulation .
. . so pervasive as to make reasonable the inference that Congress left
no room for the States to supplement it,” or where an Act of Congress
“touches a field in which the federal interest is so dominant that the
federal system will be assumed to preclude enforcement of state laws
on the same subject.”
Id., 110 S. Ct. at 2275 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218,
230, 67 S. Ct. 1146, 1152 (1947)) (alteration omitted). “Field preemption reflects
a congressional decision to foreclose any state regulation in the area, even if it is
parallel to federal standards.” Arizona v. United States, __ U.S. __, __,132 S. Ct.
2492, 2502 (2012).
Third is conflict preemption, which occurs when “state law is pre-empted to
the extent that it actually conflicts with federal law.” English, 496 U.S. at 79, 110
S. Ct. at 2275. Conflict preemption exists “where it is impossible for a private
party to comply with both state and federal requirements or where state law ‘stands
as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.’” Id., 110 S. Ct. at 2275 (quoting Hines v. Davidowitz, 312
U.S. 52, 67, 61 S. Ct. 399, 404 (1941)) (citations omitted). “[S]ince our decision in
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M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819), it has been settled
that state law that conflicts with federal law is ‘without effect.’” Cipollone v.
Liggett Grp., Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 2617 (1992) (quoting
Maryland v. Louisiana, 451 U.S. 725, 746, 101 S. Ct. 2114, 2128 (1981)); see
Baptista v. JPMorgan Chase Bank, N.A., 640 F.3d 1194, 1197 (11th Cir. 2011)
(recognizing “the proper preemption test asks whether there is a significant conflict
between the state and federal statutes—that is, the test for conflict preemption”).
The parties agree this case concerns conflict preemption, although they disagree on
the resolution. 3
3
The dissent strays from conflict-preemption analysis by viewing this case from the
perspective of the FWA and thereby attempting to recast it as concerning state-police powers and
state-employment contracts, even injecting at-will employment. Puzzling to us, the dissent
supports her position with secondary authority, including law-review articles, a treatise, and
nonbinding, distinguishable state and federal-district-court cases, when there are consistent
Supreme Court, statutory-interpretive principles and federal-circuit precedent specifically
supporting our decision that the at-pleasure provision of the NBA preempts the FWA. This is a
straightforward case of conflict preemption, a specific and different analysis from the state-law
analysis the dissent pursues by piecing together excerpts from Supreme Court cases that do not
concern conflict preemption.
Despite her state-law approach, the dissent understates the Florida Supreme Court
decision, addressing the interaction of § 24 (Fifth) and state-employment contracts providing
severance benefits. Citizens Nat’l Bank & Trust Co. v. Stockwell, 675 So. 2d 584 (Fla. 1996).
The subject bank officers were terminated under the at-pleasure provision of the NBA, when
their employing national bank merged with another bank, which did not want to purchase
existing employment contracts. The Florida Supreme Court quotes § 24 (Fifth) and notes it has
remained the same as it was when the bank officers executed their employment contracts
providing severance benefits. Id. at 586 & n.1. While accepting the bank’s ability to terminate
the bank officers under § 24 (Fifth), the Florida Supreme Court distinguished and enforced the
bank’s separate agreement under state law to pay the officers’ severance benefits should they be
terminated under the NBA, as they were. “Because there is no limitation on the power of a bank
to remove its officers, this result is completely consistent with the provisions of the National
Bank Act.” Id. at 586 (emphasis added). Therefore, the Florida Supreme Court, which
definitively decides Florida law, including the FWA, should this issue be presented, already has
recognized that § 24 (Fifth) cannot be interpreted to require a bank to be liable for wrongful
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B. Preemption Analysis
“Pre-emption fundamentally is a question of congressional intent,” which
requires statutory interpretation. English, 496 U.S. at 78-79, 110 S. Ct. at 2275.
“As in all cases involving statutory construction, our starting point must be the
language employed by Congress, and we assume that the legislative purpose is
expressed by the ordinary meaning of the words used.” Am. Tobacco Co. v.
Patterson, 456 U.S. 63, 68, 102 S. Ct. 1534, 1537 (1982) (citations and internal
quotation marks omitted). “The first rule in statutory construction is to determine
whether the language at issue has a plain and unambiguous meaning with regard to
the particular dispute.” Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1167
(11th Cir. 2003) (citation and internal quotation marks omitted). “The ‘plain’ in
‘plain meaning’ requires that we look to the actual language used in a statute, not
to the circumstances that gave rise to that language.” CBS Inc. v. PrimeTime 24
Joint Venture, 245 F.3d 1217, 1224 (11th Cir. 2001) (emphasis added); see
Stansell v. Revolutionary Armed Forces of Colombia, 704 F.3d 910, 915 (11th Cir.
2013) (“[A] statute’s plain language controls unless it is inescapably ambiguous.”
(citation and internal quotation marks omitted)). “Where the language of a statute
is unambiguous, as it is here, we need not, and ought not, consider legislative
history.” Harry v. Marchant, 291 F.3d 767, 772 (11th Cir. 2002) (en banc); see
discharge of a bank officer terminated under the at-pleasure provision of the NBA, irrespective
of state-employment contracts.
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United States v. Gonzales, 520 U.S. 1, 6, 117 S. Ct. 1032, 1035 (1997) (“Given the
straightforward statutory command, there is no reason to resort to legislative
history.”).
“We are not at liberty to rewrite the statute to reflect a meaning we deem
more desirable”; “we must give effect to the text Congress enacted.” Ali v. Fed.
Bureau of Prisons, 552 U.S. 214, 228, 128 S. Ct. 831, 841 (2008) (emphasis
added). As the Supreme Court has instructed “time and again,” courts presume
Congress “says in a statute what it means and means in a statute what it says
there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S. Ct. 1146, 1149
(1992) (citing Supreme Court cases). “[W]hen the statute’s language is plain, the
sole function of the courts—at least where the disposition required by the text is
not absurd—is to enforce it according to its terms.” 4 Hartford Underwriters Ins.
Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S. Ct. 1942, 1947 (2000)
(citations and internal quotation marks omitted). The text of § 24 (Fifth), resulting
in the disposition of this case, is not absurd.
4
The effect of implementing the dissent’s statutory interpretation would be to have this
court rewrite 12 U.S.C. § 24 (Fifth), enacted in 1864 as part of the NBA, to permit terminated
Florida bank officers to bring whistleblower actions under the FWA, Fla. Stat. § 448.102(3),
enacted in 1991. The Supreme Court has recognized a congressional statute may have stringent
results, but, unless the results are absurd, that is not sufficient reason for courts to rewrite a
congressional statute. “Although we recognize the potential for harsh results in some cases, we
are not free to rewrite the statute that Congress has enacted. . . . The disposition required by the
text here, though strict, is not absurd. It is for Congress, not this Court, to amend the statute . . .
.” Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 2483 (2005) (emphasis added).
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Under these principles of statutory construction, we must assess the alleged
competing terms of the NBA and the FWA to resolve the conflict-preemption
question presented. In relevant part, the NBA provides
a national banking association . . . shall have power . . . [t]o elect or
appoint directors, and by its board of directors to appoint a president,
vice president, cashier, and other officers, define their duties, require
bonds of them and fix the penalty thereof, dismiss such officers or any
of them at pleasure, and appoint others to fill their places.
12 U.S.C. § 24 (Fifth) (emphasis added); see Mackey v. Pioneer Nat’l Bank, 867
F.2d 520, 526 (9th Cir. 1989) (recognizing the purpose of § 24 (Fifth) is to give
national banks “the greatest latitude possible to hire and fire their chief operating
officers, in order to maintain the public trust” without state regulatory
interference).5 In contrast, the FWA provides “[a]n employer may not take any
5
In the 1864 NBA, Congress made a policy decision that granting banks broad discretion
to dismiss specified bank officials was necessary to maintain public trust:
[I]t is essential to the safety and prosperity of banking institutions that the
active officers, to whose integrity and discretion the moneys and property
of the bank and its customers are intrusted, should be subject to immediate
removal whenever the suspicion of faithlessness or negligence attaches to
them. High credit is indispensable to the success and prosperity of a bank.
Without it, customers cannot be induced to deposit their moneys. When it
has once been secured, and then declines, those who have deposited
demand their cash, the income of the bank dwindles, and often bankruptcy
follows. It sometimes happens that, without any justification, a suspicion
of dishonesty or carelessness attaches to a cashier or a president of a bank,
spreads through the community in which he lives, scares the depositers,
and threatens immediate financial ruin to the institution. In such a case it
is necessary to the prosperity and success—to the very existence—of a
banking institution that the board of directors should have power to
remove such an officer, and to put in his place another, in whom the
community has confidence. In our opinion, the provision of the act of
congress to which we have referred was inserted, ex industria, to provide
for this very contingency.
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retaliatory personnel action against an employee because the employee has . . .
[o]bjected to, or refused to participate in, any activity, policy, or practice of the
employer which is in violation of a law, rule, or regulation.” Fla. Stat. §
448.102(3).
Concluding federal statutes regulating national banks preempted conflicting
state legislation preventing selling insurance in small towns, the Supreme Court
noted:
Congress would not want States to forbid, or to impair significantly,
the exercise of a power that Congress explicitly granted. To say this is
not to deprive States of the power to regulate national banks, where
(unlike here) doing so does not prevent or significantly interfere with
the national bank’s exercise of its powers.
Westervelt v. Mohrenstecher, 76 F. 118, 122 (8th Cir. 1896); see Stockwell, 675 So. 2d at 586
(“‘Public trust’ is assuaged by filling major decisionmaking positions with individuals the bank
deems more capable than those it terminates; the [employment] contracts at issue do not prevent
the bank from so doing.”).
The dissent maintains § 24 (Fifth) is no longer applicable law, because it was enacted 150
years ago. Under that rationale, statutes and cases, such as Gibbons v. Ogden, 22 U.S. (9
Wheat.) 1 (1824), M’Culloch v. Maryland, 17 (4 Wheat.) 316 (1819), and Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803), enacted or decided in the nineteenth century would be obsolete
and not reliable precedent today. Instead, longevity shows a statute or case has withstood the test
of time without change.
The NBA is a series of congressional acts of which the subject 1864 Act is a part. See 1
Stat. 191, ch. 10 (1791); 3 Stat. 266, ch. 44 (1816); 13 Stat. 99, ch. 106 (1864); 18 Stat. 123, ch.
343 (1874); 63 Stat. 298, ch. 276, § 1 (1949); Pub. L. 86-114, § 3(b), 73 Stat. 263 (1959); Pub. L.
86-230, § 1(a), 73 Stat. 457 (1959). While § 24 has been amended numerous times, § 24 (Fifth)
never has been amended, just as 12 U.S.C. § 38, enacted in 1874, never has been amended.
Congress is presumed to “know the law” and has convened many times since a particular statute
was enacted or case decided. Cannon v. Univ. of Chicago, 441 U.S. 677, 696-97, 99 S. Ct. 1946,
1957-58 (1979). Because Congress has not seen fit to amend § 24 (Fifth) in 150 years, it remains
unchanged, reliable law.
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Barnett Bank, 517 U.S. at 33, 116 S. Ct. at 1109 (emphasis added). Applying
“ordinary legal principles of pre-emption,” the Court decided “the federal law
would pre-empt that of the State.” Id. at 37, 116 S. Ct. at 1111. The Florida
Supreme Court has reached the same conclusion concerning the at-pleasure
provision of § 24 (Fifth). Citizens Nat’l Bank & Trust Co. v. Stockwell, 675 So. 2d
584, 586 (Fla. 1996) (recognizing the at-pleasure provision of § 24 (Fifth)
precludes any “limitation on the power of a bank to remove its officers” under the
NBA).
The Fourth Circuit has addressed precisely the issue in this case: whether the
at-pleasure provision of the NBA preempts a state-law claim for wrongful
discharge. Schweikert v. Bank of Am., N.A., 521 F.3d 285 (4th Cir. 2008).
Schweikert, a bank officer as Senior Vice President at the Chevy Chase, Maryland,
office of Bank of America (“BOA”), was terminated by the Board of Directors for
failing to cooperate with internal and external investigations of the bank. Id. at
287. Although Schweikert brought his action for wrongful or abusive discharge in
Maryland state court, BOA removed his case to federal court for the District of
Maryland on diversity jurisdiction. Id. BOA moved to dismiss Schweikert’s
complaint and argued it was preempted by the NBA at-pleasure provision. The
district judge determined the NBA at-pleasure provision “precluded state common
law wrongful discharge claims.” Id. at 287-88.
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In affirming, the Fourth Circuit noted its precedent interpreting the
analogous at-pleasure provision of the Federal Home Loan Bank Act (“FHLBA”) 6
in a wrongful discharge action, based on state law. Id. at 288 (citing Andrews v.
Fed. Home Loan Bank of Atlanta, 998 F.2d 214 (4th Cir. 1993)). In Andrews, the
Fourth Circuit concluded: “Congress intended for federal law to define the
discretion which the Bank may exercise in the discharge of employees. Any state
claim for wrongful termination would plainly conflict with the discretion accorded
the Bank by Congress.” 998 F.2d at 220. Consistent with Andrews in the FHLBA
context, the Fourth Circuit in Schweikert specifically held “the at-pleasure
provision of the NBA preempts state law claims for wrongful discharge.”
Schweikert, 521 F.3d at 288-89.
Other circuits that have considered this issue have reached the same
conclusion. The Ninth Circuit noted § 24 (Fifth)
has been consistently interpreted to mean that the board of directors
of a national bank may dismiss an officer without liability for breach
of the agreement to employ. An agreement which attempts to
circumvent the complete discretion of a national bank’s board of
directors to terminate an officer at will is void as against public
policy.
Mackey, 867 F.2d at 524 (citing cases) (emphasis added). The Sixth Circuit also
has recognized Ҥ 24 (Fifth) has consistently been construed by both federal and
6
The FHLBA, 12 U.S.C. § 1432(a), and the Federal Reserve Act (“FRA”), 12 U.S.C. §
341 (Fifth), have analogous at-pleasure provisions, which give the board of directors of a federal
bank authority to dismiss its officers “at pleasure.” The FHLBA and the FRA, however, are
separate acts from the NBA, about which this case is concerned.
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state courts as preempting state law governing employment relations between a
national bank and its officers and depriving a national bank of the power to employ
its officers other than at pleasure.” Wiskotoni v. Mich. Nat’l Bank-West, 716 F.2d
378, 387 (6th Cir. 1983) (citing cases); accord Arrow v. Fed. Reserve Bank of St.
Louis, 358 F.3d 392, 394 (6th Cir. 2004).
In a conflict-preemption case, the Supreme Court has recognized “federal
law may be in irreconcilable conflict with state law,” such that “[c]ompliance with
both statutes” results in a “physical impossibility,” causing the state law to “stand
as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.” Barnett Bank, 517 U.S. at 31, 116 S. Ct. at 1108
(citations, internal quotation marks, and alteration omitted). Consistent with the
Fourth Circuit in Schweikert and other federal circuit courts that have decided this
issue, 7 we hold the at-pleasure provision of the NBA preempts Wiersum’s claim
7
The dissent imagines far-fetched scenarios that could result from interpreting § 24
(Fifth) as it was written by Congress, if the board of directors of a national bank were to dismiss
officers for personal predilections rather than business reasons. That has not been the experience
for 150 years, manifested by decisions of other federal circuit courts that have addressed this
issue during that time. See, e.g., Mele v. Fed. Reserve Bank of N.Y., 359 F.3d 251, 255 (3d Cir.
2004) (“We now explicitly join the approach uniformly adopted by other courts considering this
issue. We hold that the Federal Reserve Act precludes enforcement against a Federal Reserve
Bank of an employment contract that would compromise its statutory power to dismiss at
pleasure, and prevents the development of a reasonable expectation of continued employment.”).
The gist of the dissent’s position is a state-employment contract can trump an act of
Congress, even in a conflict-preemption situation. There is no contest. The NBA is the
congressional act that governs all national banks in the United States. The ability of the board of
directors of a national bank to dismiss its officers “at pleasure” is clear and unequivocal, as the
federal-circuit courts that have addressed this issue have concluded. 12 U.S.C. § 24 (Fifth).
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under the FWA for wrongful discharge under Florida law, because the FWA is in
direct conflict with the NBA, as the district judge decided. 8
AFFIRMED.
8
For the first time on appeal, Wiersum makes arguments he did not raise before the
district judge: the NBA at-pleasure preemption should be limited to contractual claims; reversal
is required under the partial-preemption doctrine, because his FWA claim is consistent with the
provisions of 12 U.S.C. § 5567 within § 1057 of the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010; his termination was contrary to 12 U.S.C. § 1831j, according
a national-bank employee whistleblower protection only if a complaint procedurally first was
made to the appropriate federal agency or the Attorney General, 12 U.S.C. § 1831j(a)(1), which
Wiersum did not do; and a state-law retaliation claim based on underlying banking law is not
preempted, despite an analogous federal whistleblower statute. See Appellant’s Br. at 22-37.
We strongly disagree the excerpt quoted in the dissent from Wiersum’s opposition to U.S.
Bank’s motion to dismiss in district court specifically addresses any of these issues raised on
appeal. Instead, she characterizes the objection he has made to application of the at-pleasure
provision of § 24 (Fifth) from the outset of his case, which the district judge addressed, and we
have decided for this circuit. We have “repeatedly held that an issue not raised in the district
court and raised for the first time in an appeal will not be considered by this court.” Access Now,
Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (citations and internal quotation
marks omitted). Therefore, Wiersum has waived all his arguments on appeal that he did not raise
first before the district judge, and we will not address them.
The Amicus Brief of the National Employment Lawyers Association (“NELA”), Florida
Chapter predicts speculative and conclusory effects on state employment laws, if we decide the
NBA preempts the FWA, as if he had no federal remedy. But NELA fails to recognize that
Wiersum could have brought his action under the applicable federal-banking-whistleblower
statute, 12 U.S.C. § 1831j. Section 1831j, however, requires a whistleblower employee or
former employee of a national bank to report the alleged wrongdoing to the agency that regulates
the bank or to the Attorney General. 12 U.S.C. § 1831j(a)(1). Wiersum did not comply with
either of these prerequisites for a § 1831j action, which is the reason he unsuccessfully attempts
to proceed instead under the FWA.
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MARTIN, Circuit Judge, dissenting:
Today’s majority holds that when Congress passed the National Banking
Act (NBA) in 1864, it intended—150 years later—for the three words “dismiss at
pleasure” to preempt Marc Wiersum’s retaliation claim under the Florida
Whistleblower’s Act, Fla. Stat. § 448.101–.105. If the majority is right, those three
words will also serve to preempt every state employment-law protection not
mirrored in federal law for thousands of bank officers in this Circuit. Based on my
analysis of the history and meaning of the NBA, the majority’s interpretation
vastly overestimates Congress’s limited intent when it included those three words.
And in doing so, the majority’s holding works to disrupt the careful balance
between state and federal interests that our preemption doctrine is meant to protect.
For these reasons, I respectfully dissent.
I.
Mr. Wiersum’s case presents the question of whether the dismiss-at-pleasure
language in the NBA preempts a bank officer’s claim under the Florida
Whistleblower’s Act. Mr. Wiersum sued under this Florida statute, claiming that
he was fired from his job as a bank officer in retaliation for reporting what he
believed were his employer’s violations of federal banking law. In evaluating
whether a federal law preempts state law, the “question is basically one of
congressional intent. Did Congress, in enacting the Federal Statute, intend to
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exercise its constitutionally delegated authority to set aside the laws of a State? If
so, the Supremacy Clause requires courts to follow federal, not state, law.” Barnett
Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 30, 116 S. Ct. 1103, 1107
(1996); see also Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516, 112 S. Ct.
2608, 2617 (1992) (“The purpose of Congress is the ultimate touchstone of pre-
emption analysis.” (quotation marks omitted)). Important for this case, we have
been warned not to read laws “as if they were written today, for to do so would
inevitably distort their intended meaning.” Goldstein v. California, 412 U.S. 546,
564, 93 S. Ct. at 2303, 2313 (1973). Thus the question presented here is whether,
“against the background” of 1864, id., Congress intended for the NBA to set aside
state employment-law protections like the Florida Whistleblower’s Act for bank
officers. The majority says yes. I cannot agree.
Although Congress left us “no record of any discussion of [the dismiss-at-
pleasure provision], or of any specific purpose or motive it might have had in
enacting it,” a careful analysis of the historical context of the NBA’s enactment
suggests that its purpose was “quite narrow.” Goonan v. Fed. Reserve Bank of
N.Y., 916 F. Supp. 2d 470, 492–93 (S.D.N.Y. 2013) (quotation omitted)
(interpreting identical language from the Federal Reserve Act). As one
commentator has explained, this dismiss-at-pleasure provision “was a limited
effort to deal with a specific problem: the risk that national banks would, either
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explicitly or by common law implication, contractually restrict their ability to
discharge bank officers.” Miriam Jacks Achtenberg, Note, Rereading the National
Bank Act’s ‘At Pleasure’ Provision: Preserving the Civil Rights of Thousands of
Bank Employees, 43 Harv. C.R.-C.L. L. Rev. 165, 172 (2008).1 In creating our
national banking system, Congress recognized that just one person serving as a
bank officer could develop a reputation as untrustworthy or dishonest, and thereby
put at risk the reputation of the bank where he worked, or even the banking system
as a whole. See Westervelt v. Mohrenstecher, 76 F. 118, 122 (8th Cir. 1896). To
avoid that risk, Congress insisted that banks have the freedom to dismiss officers
“at pleasure” rather than being locked into a long-term employment relationship
with an officer bringing disrepute upon the bank. This meant only that bank
officers are “at will” employees, as opposed to “term” employees. 2
It is understandable that in 1864, Congress would have seen this as
necessary. In the eighteenth and early nineteenth century, “[e]mployment for an
unspecified term was presumed to be annual, and dismissal within that term had to
1
The majority finds it “[p]uzzling” that I “support[] [my] position with secondary
authority, including law-review articles.” Panel Op. at 6 n.3. However, where legal scholars
have researched and written about areas of the law in a way that helps me more fully understand
and appreciate the questions presented in an appeal I am considering, I feel no shame about
consulting them.
2
Such an interpretation is confirmed by the synonymous use of the terms “at pleasure”
and “at will” during the late-nineteenth century. See Achtenberg, supra, at 172 (“In the
nineteenth century, the terms were used interchangeably, and both referred to a single concept:
employment under a contract containing no express or implied contractual limit on the
employer’s right to discharge them.”).
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be for cause.” M.B.W. Sinclair, Employment at Pleasure: An Idea Whose Time
Has Passed, 23 U. Tol. L. Rev. 531, 541 (1992). As Professor Sinclair notes:
We are accustomed to thinking of employment law in the United
States as basically a regime of employment at will. . . . But this was
not the back-drop against which the “at pleasure” language was
drafted and enacted . . . . [T]he relevant legal background of the “at
pleasure” language is not a regime of employment at will but of
annual employment, unless subject to contrary agreement.
Id. at 540–41; see also Jay M. Feinman, The Development of the Employment at
Will Rule, 20 Am. J. Legal Hist. 118, 125 (1976) (highlighting the “rise of
employment at will” in the mid-nineteenth century and noting that it was not until
“the 1870’s [that] the presumption of yearly hiring was recognized as
anachronistic”). For instance, although a treatise in the late nineteenth century
declared that “a general or indefinite hiring is prima facie a hiring at will,” H.
Wood, A Treatise on the Law of Master and Servant § 134, at 272 (1877), an
earlier version of that same treatise stated that “[w]here no time is limited either
expressly or by implication, for the duration of a contract of hiring and service, the
hiring is considered . . . in point of law a hiring for a year,” see C. Smith, Treatise
on the Law of Master and Servant 53 (1852).
This backdrop of laws governing employment in 1864 strongly suggests that
Congress simply intended to free banks from the constraints of the year-term
presumption that existed in employment law at the time. My understanding is
consistent with that of other courts that have examined the history of the NBA.
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See, e.g., Goonan, 916 F. Supp. 2d at 494 (“Congress’s apparent purpose in
enacting the [NBA’s] dismiss at pleasure [provision] was protection of public
confidence in [banks] by eliminating a potential threat to that trust—specifically,
contractual obligations under state law that could force [banks] to retain corrupt or
incompetent employees.”); Katsiavelos v. Fed. Reserve Bank of Chi., No. 93 C
7724, 1995 WL 103308, at *4 (N.D. Ill. Mar. 3, 1995) (holding that the Illinois
Human Rights Act is not preempted “because the ‘at pleasure’ language . . . only
serves to pre-empt state law created contractual employment rights”); Mueller v.
First Nat’l Bank of Quad Cities, 797 F. Supp. 656, 663 (C.D. Ill. 1992) (“Th[e]
latitude [given to banks in the ‘at pleasure’ provision] was intended in a contractual
sense.”). Under this interpretation, the NBA is clearly intended to preempt state
common-law contract claims that would restrict a bank’s ability to fire an officer
“at will.” But there is simply no evidence that Congress intended for the NBA to
preempt a state anti-retaliation statute like the Florida Whistleblower’s Act, which
prevents employers from taking “retaliatory personnel action against an employee
because the employee has . . . [o]bjected to, or refused to participate in, any
activity, policy, or practice of the employer which is in violation of a law, rule, or
regulation.” Fla. Stat. § 448.102. Indeed, the Florida Whistleblower’s Act is
consistent with Congress’s 1864 goal to ensure public confidence in our banking
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system. I would hold that the NBA does not preempt Mr. Wiersum’s claim. 3
II.
The majority quite rightly references our obligation to look to the plain
meaning of the language of the statute. I believe “at pleasure” plainly means “at
will.” The majority, however, gives the words of the NBA, “dismiss at pleasure,”
quite an expansive purpose. It says that “any state claim for wrongful termination
would plainly conflict with the discretion accorded the Bank by Congress.” Panel
Op. at 11 (quoting Andrews v. Fed. Home Loan Bank of Atlanta, 998 F.2d 214,
220 (4th Cir. 1993)). In doing so, the majority ignores our long-standing
presumption against preemption. See, e.g., Cipollone, 505 U.S. at 518, 112 S. Ct.
at 2618 (“[W]e must construe [federal] provisions in light of the presumption
against the pre-emption of state police power regulations.”); Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152 (1947) (“[W]e start with
the assumption that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and manifest purpose of
Congress.”). In the face of this presumption, I see no reasoned basis to hold that
3
The majority insists that I would “rewrite 12 U.S.C. § 24 (Fifth),” Panel Op. at 8 n.4, or
that I believe “§ 24 (Fifth) is no longer applicable law,” Panel Op. at 9 n.5. Neither is true. I
simply seek to apply principles of statutory interpretation to understand what “at pleasure” meant
at the time of the NBA’s passage. Based on my analysis, I am confident that the term in the
statute as written requires only that banks employ officers at will, nothing more.
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the NBA trumps the protections provided by the Florida Whistleblower’s Act. 4
But setting aside this presumption against preemption, the majority’s
conclusion necessarily relies on two “questionable interpretive moves.” Goonan,
916 F. Supp. 2d at 496. First, the Florida statute was passed almost a century and a
half after Congress enacted the NBA. 5 The passage of so much time makes it
“implausible to conclude that the drafters of the [NBA] could have possessed any
sort of ‘intent’ whatsoever with respect to preemption of state (or federal)
[whistleblower] laws.” Id. Judge Oetken observes “that authors, including
Congress, simply cannot possess ‘intentions’ or express ‘meaning’ with respect to
concepts or institutions unavailable in their lived historical moment.” Id. at 497. I
agree with Judge Oetken that it takes quite an “adventurous approach” to read
Congress’ 1864 intent as preempting the Florida Whistleblower’s Statute. Id.
Second, the majority justifies its interpretation by declaring that “Congress
made a policy choice that granting banks broad discretion to dismiss specified
bank officials was necessary to maintain public trust.” Panel Op. at 7 n.3. But the
majority’s enforcement of this broad policy choice by preempting current state
laws causes an incongruous result. The NBA speaks only to a bank’s power to
4
The majority suggests that Mr. Wiersum could have brought an action under “the
applicable federal-banking-whistleblower statute, 12 U.S.C. § 1831j.” Panel Op. at 14 n.8.
However, Section 1831j “does not by its own effect foreclose additional obligations imposed
under state law.” Cipollone, 505 U.S. at 518, 112 S. Ct. at 2618.
5
The Florida Whistleblower’s Act was passed in 1991. See 1991 Fla. Sess. Law Serv.
Ch. 91-285, § 5.
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dismiss an officer. In contrast, the Florida Whistleblower’s Statute prohibits “any
retaliatory personnel action” against employees who object to their employers’
violations of the law, including “the discharge, suspension, or demotion by an
employer of an employee or any other adverse employment action taken by an
employer against an employee in the terms and conditions of employment.” Fla.
Stat. §§ 448.102, 448.101(5). Under the majority’s reasoning, then, Congress
assured that banks can dismiss officers freely to maintain public trust, but at the
same time left states free to protect employees from demotion, temporary
suspensions, and other punishments short of firing. This renders the NBA a
strangely under-inclusive attempt to achieve the goals that the majority believes
Congress had in mind.
III.
The majority does not respond to these shortcomings in its analysis. First, it
fails to address Mr. Wiersum’s argument that the NBA was only intended to
preempt state-contract-law claims because it says he raised this argument for the
first time on appeal. Panel Op. at 14 n.8. But the argument is right there in his
District Court papers, in black and white. Mr. Wiersum’s Response in Opposition
to U.S. Bank’s Motion to Dismiss in the District Court includes the following
passage:
[U.S. Bank’s] defense assumes that “at pleasure” and “at will” are
different. This is not the case. The NBA . . . only voids employment
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law contracts for a specified term for banking officers, and its “at
pleasure” provision adds nothing more than what the law is in “at
will” states. These terms of art mean that an employer may terminate
an employee for a good reason, no reason or even a bad reason. The
terms do not allow for illegal terminations.
Resp. in Opp’n 1–2, Dec. 6, 2013, ECF No. 9.6 Beyond this excerpt, Mr. Wiersum
cited directly to the Achtenberg article I quote above, see id. at 3, which lucidly
describes “the National Banking Act’s limited intent: to prevent banks from
entering into non-cancelable fixed-term employment contracts with their officers
and to trump any common law presumption that such a contract existed.”
Achtenberg, supra, at 166. Mr. Wiersum quite obviously made the argument he
pursues here on appeal: that the NBA only preempts state-law claims that seek to
enforce term-employment contracts for bank officers.
But even if we ignored Mr. Wiersum’s filings in the District Court and
found that he had not made the precise argument below that he makes on appeal,
the Supreme Court has told us that “[o]nce a federal claim is properly presented, a
party can make any argument in support of that claim; parties are not limited to the
precise arguments they made below.” Yee v. City of Escondido, Cal., 503 U.S.
519, 534, 112 S. Ct. 1522, 1532 (1992). Giving life to this idea in Yee, the Court
6
The majority can “strongly disagree,” Panel Op. at 14 n.8, with this excerpt from Mr.
Wiersum’s District Court filing, but it says what it says. He clearly raised before the District
Court his argument that “the NBA at-pleasure preemption should be limited to contractual
claims.” Id. The majority is right that Mr. Wiersum did not clearly raise before the District
Court his argument under the partial-preemption doctrine. But I would not adopt Mr. Wiersum’s
foreclosed partial-preemption theory. It is his argument that the NBA’s preemptive effect should
be limited to contractual claims that I would have this Court adopt.
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held that “[p]etitioners’ arguments that the ordinance constitutes a taking in two
different ways, by physical occupation and by regulation, are not separate claims.
They are, rather, separate arguments in support of a single claim—that the
ordinance effects an unconstitutional taking.” Id. at 534–35, 112 S. Ct. at 1532.
Likewise here, Mr. Wiersum’s argument that the NBA was only intended to
preempt state contract law claims is simply one argument in support of his broader
claim that the NBA does not preempt the Florida Whistleblower’s Act. The
preemption claim was clearly presented to and ruled upon by the District Court.
Next, the majority looks to cases from the Fourth and Sixth Circuits.
However, these cases have very little supporting their broadly preemptive
interpretation of the NBA. In Andrews, the Fourth Circuit concluded without
explanation that “Congress intended for federal law to define the discretion which
the Bank may exercise in the discharge of employees,” and that “[a]ny state claim
for wrongful termination would plainly conflict with the discretion accorded the
Bank by Congress.” 998 F.2d at 220. The Andrews court cited to the Sixth
Circuit’s decision in Ana Leon T. v. Federal Reserve Bank of Chi., 823 F.2d 928
(6th Cir. 1987) (per curiam), which also held without any elaboration that the
dismiss-at-pleasure provision “preempts any state-created employment right to the
contrary.” Id. at 931. Similarly, in Schweikert v. Bank of Am., N.A., 521 F.3d
285 (4th Cir. 2008), the Fourth Circuit declared that “the at-pleasure provision of
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the NBA preempts state law claims for wrongful discharge.” Id. at 288–89. The
Schweikert court cited Andrews without any further analysis.
Of course appellate judges often look to sister Circuits for guidance.
However in light of the criticism the Fourth and Sixth Circuits have received for
their cursory treatment of this important issue, I hoped that our Court would look
more deeply. See, e.g., Kroske v. U.S. Bank Corp., 432 F.3d 976, 985 (9th Cir.
2005) (disagreeing with “the Sixth Circuit’s summary conclusion” because it
contained “little analysis of the issue”); Moodie v. Fed. Reserve Bank of N.Y., 831
F. Supp. 333, 336 (S.D.N.Y. 1993) (“[T]he Sixth Circuit’s pronouncement gives
no basis for its opinion and sets forth no policy reasons for its holding.”). Neither
the Sixth- nor the Fourth-Circuit opinions even mention the idea that the NBA was
only meant to ensure that bank officers were treated as “at will” employees and not
to preempt all state employment protections for bank officers. I would prefer that
our panel not simply rely on these cases and their conclusory assertions of
preemption as controlling in Mr. Wiersum’s case. 7
7
The majority says that the Florida Supreme Court addressed this issue in Citizens
National Bank & Trust Co. v. Stockwell, 675 So. 2d 584 (Fla. 1996). See Panel Op. at 6 n.3.
Not so. In Stockwell, bank officers sought to enforce their employment contracts and won, even
in the face of the bank’s reliance on the NBA. The Florida Supreme Court held that the NBA
“does not preclude enforcement of severance benefits contained in officers’ employment
contracts.” Id. at 585 (emphasis added). In so holding, the Court emphasized that although
severance benefits will be enforced, a bank “can still fire its officers at will without giving rise to
suits for damages based on the termination.” Id. at 586 (emphasis added). In any event, even if
the Florida Supreme Court had addressed the very subject at issue here, its analysis of the
preemptive effect of the NBA—a federal statute—would not bind us. See, e.g., RAR, Inc. v.
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In this same way, I also believe the majority too readily discounts Mr.
Wiersum’s reliance on “nonbinding, distinguishable state and federal-district-court
cases, when there are consistent Supreme Court, statutory-interpretive principles
and federal-circuit precedent specifically supporting [its] decision that the at-
pleasure provision of the NBA preempts the [Florida Whistleblower’s Act].”
Panel Op. at 6 n.3. This is a case of first impression for our Court. Neither has the
Supreme Court addressed this issue, so no prior precedent binds us here. For that
reason, overlooking the reasoning of non-circuit-court opinions seems
shortsighted, where some district-court decisions offer us a far more detailed and
persuasive analysis of the preemptive force of the NBA compared to the terse
conclusions of the Fourth- and Sixth-Circuit opinions.
IV.
The consequences of the majority’s ruling are worrying. The majority
denies bank officers—of which there are thousands nationwide, see Achtenberg,
supra, at 165—the protection of state employment laws. Most obviously, bank
officers are no longer protected by anti-retaliation statutes like the Florida law at
issue here. But neither will bank officers any longer enjoy the protection of state
and local anti-discrimination laws that offer protections the federal anti-
Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997) (“Although state court precedent is
binding upon us regarding issues of state law, it is only persuasive authority on matters of federal
law.”).
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discrimination regime does not.
For instance, in New York, employers are prohibited from firing an
employee because of “an individual’s political activities,” “an individual’s legal
use of consumable products,” or “an individual’s legal recreational activities.”
N.Y. Lab. Law § 201-d(2)(a)–(c). Yet under the majority’s rule, banks would be
empowered to fire their officers with impunity when one donates to the political
party of his choice, or smokes cigarettes, or hunts. And while some states and
localities prohibit firing an employee because of her sexual orientation, the
majority ruling will allow banks in those jurisdictions to fire an officer for being
gay. Absent clear Congressional intent, I would not so easily strip away these
legal protections which state legislatures saw fit to put in place. 8
I am also troubled by the implications of the majority’s reasoning on the
ability of states to freely exercise their police powers without federal intrusion.
Before today’s decision, “we start[ed] with the assumption that the historic police
powers of the States were not to be superseded by [a] Federal Act unless that was
the clear and manifest purpose of Congress.” Rice, 331 U.S. at 230, 67 S. Ct. at
8
The majority says such consequences are “far-fetched” because they have “not been the
experience for 150 years, manifested by decisions of other federal circuit courts that have
addressed this issue during that time.” Panel Op. at 13 n.7. Yet decisions of other federal circuit
courts prove just the opposite. For example, in Ana Leon T., the Sixth Circuit held that the
Federal Reserve Act’s dismiss-at-pleasure provision preempted the plaintiff’s claim for
discriminatory discharge on the basis of national origin, in violation of the Michigan Elliott-
Larsen Act, Mich. Comp. Laws § 37.2101. 823 F.2d at 929. Even if this were not true, the
majority has offered no reasoned basis why the Florida Whistleblower’s Act is preempted but all
other state employment-law protections are not.
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1152; see also Bond v. United States, ___ U.S. ___, ___, 134 S. Ct. 2077, 2088–89
(2014) (“It has long been settled . . . that we presume federal statutes do not . . .
preempt state law.” (citations omitted)). This rule makes good sense. “When pre-
emption of state law is at issue, we must respect the ‘principles that are
fundamental to a system of federalism.’” Johnson v. Frankell, 520 U.S. 911, 922,
117 S. Ct. 1800, 1807 (1997) (alteration adopted) (citation omitted). In other
words, we did not casually usurp the power of state legislatures to enact laws
without a clear and countervailing command from Congress. Yet after today’s
decision, Acts of Congress enacted in centuries past can apparently reemerge—like
mummies from their tomb—to preempt state laws that no lawmaker could have
imagined at the time the Acts were passed. This application of the preemption
doctrine alters the balance between the federal government and the sovereign states
in a way generally avoided by this Court. See Johnson v. Governor of Fla., 405
F.3d 1214, 1251 n.35 (11th Cir. 2005) (en banc) (“If Congress wishes to alter the
balance of power [between the federal government and the states], its intention
must be unmistakably clear.”); see also Gregory v. Ashcroft, 501 U.S. 452, 460,
111 S. Ct. 2395, 2401 (1991) (noting that “it is incumbent upon the federal courts
to be certain of Congress’ intent before finding that federal law overrides” the
“usual constitutional balance of federal and state powers” (quotation marks
omitted)).
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V.
Based on my analysis of Congress’ intent at the time of passage, I would
find that the National Banking Act does not preempt state employment law
protections like the Florida Whistleblower’s Act for bank officers. I therefore
respectfully dissent.
29