In Am. Maritime Off. Union v. Merriken, 981 So. 2d 544 (Fla. 4th DCA 2008), the Fourth DCA held that plaintiff's state law whistleblower claim was preempted by ERISA. The plaintiff was the former executive director of the American Maritime Officers Plans (pension, benefit, etc.). According to the allegations in the complaint, the plaintiff agreed to wear a wire for the United States Department of Labor in exchange for immunity from prosecution. The plaintiff alleged that the defendants discovered he was cooperating with the government and had him terminated. Entering a writ of prohibition, the court stated:
Arguing federal preemption under ERISA, the Union and the Plans moved to dismiss the complaint. One argument was that ERISA grants a specific remedy for the same retaliatory discharge and/or interference with a protected right that Merriken asserts. See 29 U.S.C. § 1140. The trial court denied the motion concluding that the stated causes of action were not preempted by federal law, as the state actions did not encroach on the relationships regulated by ERISA. The trial court reasoned that the relationship between the Union and the Plans and the plaintiff is one of employer-employee, and there are no allegations that could be interpreted that the termination was in order to avoid benefit payments. The trial court concluded that there will be no need for it to rule on any issues of federal law, based on the allegations in the complaint. This petition follows.
Federal preemption is an affirmative defense, which may be raised in a motion to dismiss. Boca Burger, Inc. v. Forum, 912 So. 2d 561, 568 (Fla. 2005). In Boca Burger, the supreme court noted that Florida courts, “including this Court, have held that the issue of federal preemption is a question of subject matter jurisdiction.” Id. (emphasis supplied). Because prohibition lies to prevent a court from proceeding in a suit in which it has no subject-matter jurisdiction, we have jurisdiction. See Mandico v. Taos Constr., Inc., 605 So. 2d 850, 854 n.5 (Fla. 1992).
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In this case, the conduct under the Florida Whistle-blower statute on which Merriken has sued is protected under 29 U.S.C. § 1140 (ERISA section 510), which expressly states: “It shall be unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this chapter . . . .”
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In opposition to this clear and substantial authority, Merriken argues that section 1140 does not apply, because he sued the Plans themselves and not a person, and section 1140 can be violated only by a “person.” A trust is a “person” under ERISA, and he has alleged that the Plans are trusts. A labor union is an “employee organization” and thus the Union is also a person within the meaning of the statute. Therefore, section 1140 applies. The cases Merriken cites in support of his position that the Plans cannot be sued are simply inapposite and do not involve an employee of the plan itself suing the employer-plan for wrongful discharge.
Because the whistleblower activities alleged in Merriken’s complaint are protected by section 1140, the matter is preempted by federal law. Ingersoll-Rand [Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990)]. The circuit court has no subject-matter jurisdiction to consider these actions.
*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.
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