Marc Wiersum, former U.S. Bank N.A. Vice President, petitioned the United
States Supreme Court on October 5, 2015, to hear his claim that the National
Bank Act (“NBA”) does not preempt the wrongful-termination
claim he brought under Florida’s Whistleblower Act. Mr. Wiersum
urged the Supreme Court to allow his case to move forward after the Eleventh
Circuit Court of Appeals upheld the dismissal entered by the trial court.
Marc Wiersum held the position of Vice President and Wealth Management
Consultant for U.S. Bank (“Bank”). He made the allegation
that he was fired for refusing to take part in “unlawful tying arrangements,”
which is a process requiring consumers seeking bank credit to first enter
into an asset management agreement with the Bank as a condition of funding.
The trial court determined that Florida’s Whistleblower Act is preempted
by the NBA. Wiersum asserts that the lower court’s adoption of a
“total preemption” doctrine produces a result that is contradictory
to the intent of the law. He went further, claiming that the ruling threatens
state employment-protection laws and anti-discrimination legislation.
On appeal, the Eleventh Circuit Court of Appeals agreed that the provision
in Section 24 conflicts with the Florida Whistleblower Act’s provision
that states, “[a]n employer may not take any 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 law, rule or regulation.”
The Bank relied on a provision of Section 24 of the NBA that states, “a
national banking association… shall have the power… to 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.”
The Eleventh Circuit ultimately agreed with the Bank and determined that
the language in the NBA is unambiguous and noted that the Fourth, Sixth,
and Ninth Circuits all reached the same conclusion, along with the Florida
Supreme Court. Based on this argument, the Eleventh Circuit affirmed the
dismissal in a 2-1 decision and denied Wiersum’s subsequent request
for a new hearing.
In his petition to the Supreme Court, Wiersum alleged, “the result
in the instant case is acutely ironic, in that the circuit court has invoked
Section 24 [of the NBA] — whose acknowledged intent is to promote
sound banking operation — to effectively immunize U.S. Bank from
liability for the retaliatory discharge of an employee who objected to
violation of a substantive federal banking statute.”
Mr. Wiersum argued that the facts of his case are analogous to the 2005 case of
Kroske v. U.S. Bank Corp, wherein the Ninth Circuit held that a state age-discrimination law did
not warrant preemption by Section 24, to the point that it was consistent
with Age Discrimination in Employment Act requirements. Mr. Wiersum argued
that “[i]If banks' powers under the NBA are limited by another
federal law, then it makes no sense to say that a state-law claim conflicts
with Section 24 when the same claim is cognizable under federal law, notwithstanding
Wiersum pointed out that the ruling contradicts language issued previously
by the Supreme Court regarding preemption, specifically the dissenting
opinion in the 2013 case of
Goonan v. Federal Reserve Bank of New York, which concluded that Section 24 of the NBA has no preemptive effect outside
of contract issues. Plaintiff also tried to focus the Supreme Court on
the language of Judge Beverly M. Martin, issued in the dissent to the
Eleventh Circuit Court’s ruling in Wiersum’s appeal, urging
a “careful analysis of historical context” of federal law.
Justice Martin focused on the fact that federal law was originally intended
to provide banks with limited protections from common-law contract claims
by making bank officers “at will” employees rather than receiving
customary term limits.
Wiersum made a final argument that the court ruled in error in finding
that all of his arguments were moot because they "were not presented"
before the trial court. He disputes that decision, claiming they were
properly preserved and fall under the same complaint. He also contends
that the Tiede/Fenno partial preemption precedent, which holds that a
court should consider whether a claim under the state retaliatory law
is in line with the purpose of the federal whistleblower statute when
determining if an actual conflict exists, applies to his case.
If you would like more information on this matter or would like to set
up a free consultation, please contact Amy Martinez, Esq.
The case is being heard in the Supreme Court of the United States under
case number 15-463.
Mr. Wiersum is represented by
Jesse Leland Skipper PA.
U.S. Bank NA is represented by
To read the Eleventh Circuit’s ruling (Case No. 14-12289, you can
find it here: https://scholar.google.com/scholar_case?case=17930634946256381838&hl=en&as_sdt=2006&as_vis=1&scfhb=1
If you would like more information on this topic, or would like to set
up a free consultation, please call the main office line at (949) 298-8050 or
email Amy Martinez.