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

Citation785 F.3d 483
Decision Date05 May 2015
Docket NumberNo. 14–12289.,14–12289.
PartiesMarc WIERSUM, Plaintiff–Appellant, v. U.S. BANK, N.A., Defendant–Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Jesse Leland Skipper, Jesse L. Skipper, PA, St. Petersburg, FL, for PlaintiffAppellant.

Marc Wiersum, Coral Gables, FL, pro se.

Kristen Marie Fiore, Akerman, LLP, Tallahassee, FL, Arlene Karin Kline, Shayla Nicole Waldon, Akerman LLP, West Palm Beach, FL, Ned Roger Nashban, Akerman, LLP, Boca Raton, FL, for DefendantAppellee.

Before MARTIN and FAY, Circuit Judges, and GOLDBERG,* Judge.

Opinion

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 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, 167 L.Ed.2d 929 (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).

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., ––– U.S. ––––, 134 S.Ct. 2228, 2236, 189 L.Ed.2d 141 (2014) (citing Wyeth v. Levine, 555 U.S. 555, 563, 129 S.Ct. 1187, 1193, 173 L.Ed.2d 51 (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, 172 L.Ed.2d 398 (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, 134 L.Ed.2d 237 (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, 110 L.Ed.2d 65 (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, 179 L.Ed.2d 1031 (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, 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, 91 L.Ed. 1447 (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, 85 L.Ed. 581 (1941) ) (citations omitted). [S]ince our decision in M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427, 4 L.Ed. 579 (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, 120 L.Ed.2d 407 (1992) (quoting Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128, 68 L.Ed.2d 576 (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

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, 71 L.Ed.2d 748 (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 United States v. Gonzales, 520 U.S. 1, 6, 117 S.Ct. 1032, 1035, 137 L.Ed.2d 132 (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, 169 L.Ed.2d 680 (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, 117 L.Ed.2d 391 (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, 147 L.Ed.2d 1 (2000) (citations and internal quotation marks omitted). The text of § 24 (Fifth), resulting in the...

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