               Case: 14-12289       Date Filed: 05/05/2015      Page: 1 of 29


                                                                                [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).




                                            3
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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

                                            5
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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
                                               6
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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.


                                                7
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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).
                                                   8
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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.
                                                 9
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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 “§ 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.
                                                  25
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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
