The Preemptive Scope of the National Bank Act's Employment 'At Pleasure' Provision from Westervelt to Wiskotoni to Wiersum: Deconstructing the Conflict between Plain Meaning and Plain English

Abstract

This paper analyzes the preemptive power and scope of the National Bank Act of 1864 (NBA) with regard to federal and state labor law by deconstructing the key cases that have considered the issue, yet have come to differing conclusions. Although findings range from complete preemption to non-preemption of state law, all courts generally agree that the NBA’s “at pleasure” language preempts any contractual claims under employment “at will.” In fact, this analysis asserts that the “at pleasure” language of the NBA means exactly that—“at will”—and nothing more. This analysis also suggests that the “complete preemption” doctrine arose from the anachronistic case of Westerveld (8th Cir. 1896) and its “complete contractual preemption” progeny, in which preemption was properly applied to contractual claims. However, it is argued that the complete contractual preemption doctrine was then erroneously extended to cases involving non-contractual claims via the dictum found in cases such as Wiskotoni (6th Cir. 1983), as most recently argued in Wiersum (11th Cir. 2015). Westerveld and Wiskotoni thus gave rise to a complete preemption fallacy by failing to distinguish between “wrongful” discharge claims based in contract, and “discriminatory” and/or “retaliatory” discharge claims based in tort. With the rise of civil rights laws, to include Title VII and the Dodd-Frank whistleblower statute, the distinction between contractual employment rights under employment at will and the non-contractual employment rights which exist independently of the employment contract—such as the right to be free from discrimination or retaliation—has taken on greater legal significance. Because this distinction has remained unaddressed by the U.S. Supreme Court, the Westerveld-Wiskotoni-Wiersum complete preemption fallacy lives on, sustained by the Lochnerism of the complete preemption courts. This analysis shows that, in order to find complete preemption, one must engage in “two questionable interpretive moves,” as noted in Goonan (S.D.N.Y. 2013): one must first read the NBA at a very high degree of generality in order to find an unlimited “power” of preemption. Then, one must find that the Congress of 1864 had intended that this broad power serve to preempt state employment laws that were then unimagined. As the Goonan court concluded, the argument supporting complete preemption thus requires that a “mountain” of Congressional intent assumptions rest upon a “slender reed” of high generality. Additionally, the complete preemption courts themselves have strayed from their own doctrine by exempting severance payments (“golden parachutes”) from even complete contractual preemption. This exemption of contractual terms arguably reflects the practice of preemption alchemy, inasmuch as this contractual exemption is not extended to non-contractual claims such as retaliatory discharge and discrimination, which the NBA should not preempt, absent express preemption language. In summary, this analysis argues for the non-preemption doctrine, the partial preemption doctrine, and the “retail” preemption doctrine—any of which represent the more sound application of English to the analysis of the NBA’s preemptive power and scope. These three limited preemption doctrines allow claims based on state law to proceed (1) without preemptive effect where state laws advance the purposes of similar federal laws, and (2) with limited preemptive effect where state laws (A) substantially mirror federal laws, (B) are not so dissimilar to federal laws as to warrant preemption, and (C) where state public policy supports the purpose of federal law.