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Marc Wiersumv.U.S. Bank, N.A.

CourtUnited States Court of Appeals for the Eleventh Circuit
Docket No.14-12289
DecidedMay 5, 2015
Reporter785 F.3d 483
JudgesUnited States Court of Appeals for the Eleventh Circuit; Circuit Judges Beverly B. Martin and Peter Thorp Fay, and Judge Richard W. Goldberg of the United States Court of International Trade, sitting by designation; Judge Fay authored the majority opinion
Tags
CivilEmployment LawStatutory InterpretationPreemptionContract LawFirst ImpressionDissent
Case Summary

Marc Wiersum, a vice president and wealth-management consultant for U.S. Bank, alleged that the bank retaliated against him after he objected to what he believed were unlawful arrangements conditioning credit on asset management. He sued under the Florida Whistleblower Act, and U.S. Bank moved to dismiss, arguing that the National Bank Act’s authorization for national banks to dismiss officers “at pleasure” preempted the state claim. The district court dismissed the complaint with prejudice, concluding that the state statute directly conflicted with the federal provision; the Eleventh Circuit treated the issue as one of first impression in the circuit. The Eleventh Circuit affirmed. Applying conflict-preemption principles and the text of 12 U.S.C. § 24 (Fifth), the majority held that Congress gave national banks authority to dismiss officers at pleasure and that the Florida statute’s prohibition on retaliatory discharge directly conflicted with that authority. The majority relied on the statute’s plain language, the Supreme Court’s preemption decisions, and the consistent conclusions of other federal circuits that the provision preempts state employment claims restricting a national bank’s discretion to discharge officers. The majority also held that several arguments raised for the first time on appeal were waived, and noted that Wiersum had not satisfied the reporting prerequisites for a federal banking-whistleblower claim under 12 U.S.C. § 1831j. Judge Martin dissented, reasoning that “at pleasure” historically addressed only fixed-term employment contracts and that the majority’s broader interpretation improperly displaced state anti-retaliation and other employment protections without a clear congressional command. The dismissal of Wiersum’s Florida Whistleblower Act claim was affirmed.

Opinion

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Marc Wiersum v. U.S. Bank, N.A. — The Atlanta Gleaner