please the court i'd like to reserve five minutes of my time for a photo if i may my name is j l spray i'm with the mats and rickets law firm in lincoln nebraska i represent the plaintiff in appellant in this matter mr brennan hol by way of background mr holbein was asked to relocate from arizona to omaha nebraska to go to work for the defendant happily baxter as the general manager of the defendant's new car dealership in bellevue nebraska this matter arose upon mr holbein's unilateral demotion and change in working conditions including a reduction in his compensation in the approximately sixty five percent mr hol alleges and can prove that this demotion or constructive discharge was the defendant's response to holbein discovering and reporting criminal violations of the graham leach vialli act i refer to  by the defendant's finance director in that moment thomas in that regard what what is planned with respect to causation other than temporal proximity well in paragraphs twelve through sixteen of the complaint we make allegations related to the admissions baxter that these events occurred that the crimes occurred and that mr holbein in term went to his supervisor as would seem appropriate and  disclosed his knowledge of the criminal activity which it really is three parts there were night what i see in the pleading is attempted to advise well attempted to the extent they didn't respond he went to them there's no question about that maybe a misinterpretation of the wording to attempt he went to him and reported to them that these things had occurred and was i think making a good faith effort to investigate what what happened but attached to the complaint is a memorandum from the wrongdoer that on its face admits that she took confidential nonpublic information of customers whole matter car in her car was broken into and the information was stolen but isn't that still just temporal proximity well maybe i don't understand your question your honor it it is a report of an event an attempt to discover what happened an effort in good faith to get to the bottom of it and to advise the employer that in his opinion the act of been violated in a crime that occurred so i guess what i'm asking is is there enough pled under twamley to plausibly conclude that the reporting is what caused the demotion well we certainly allege that i i think upon information and belief alleging that the motivation for the termination was a retaliation for his actions with regard to this event i think that i learned from i agree with you on notice i just wonder if there's enough facts to survive  discover how do we get facts i mean nd he was demoted he was locked out of the system he was denied any access to information it has to be on information and belief as to what the employer was motivated to do i mean by its nature motive is a circumstantial event right i mean there's no other way to to plead motive than to allege that that's what the motivating factor was and then do discovery to see what behind the scenes was going on so we'd like to get to  month or so after the act the bad act occurred he made lots of contact with his employer and the next thing you knew he was demoted to running a used car lot and i think it's pretty clear the nexus is there and it's sufficiently pled to survive a motion to dismiss as far as that goes what is your position on the issue of federal jurisdiction well we didn't take a position in the in the briefing per se we allowed the matter to be removed and didn't resist i think there probably is a question about federal jurisdiction are you objecting to it you haven't formally objected i have not and nor has mr hol but i think there probably is a question of federal jurisdiction once we have would ever get to that but we did not resist the removal and in your view is if there is jurisdiction federal question jurisdiction that's how it was removed as it arising out of arising from well let's take it head on the issue before the court before that in the matter involves really a state court question of  what is the safe harbor or exception to the at will employment and it's whether the whether the federal statute provides that public policy reason exactly and that's the only application of the federal statute is whether that criminal statute creates the exception to the at will employment under state law so is that enough of a federal question to maintain jurisdiction of federal courts i don't think so if you want my honest opinion but again we didn't resist removal we'd like to our case hurt so that's our but you're not resisting but your position you don't think that i know that you don't think the complaint alleges sufficient either claims or arising out of that are all questions to warrant the question is a federal question in my opinion and there certainly is a diversity of citizenship so i i don't know the federal courts have jurisdiction right well so let me get this right now i understand your position to be here today that the federal statutory scheme is only incidental to the determination of the state because it creates a safe harbor or the exception to at will employment by virtue of the the fact that as a matter of public policy the federal government has created this statutory scheme where it's a crime to mishandle people's confidential information do you believe there's a private cause of action that exists under graeme leach bliley not that i'm aware of but again i don't think that's all sorry well yeah but if there's no private cause of action and it's only incidental to the application of state law at that point where's the jurisdiction lie and we have a duty to look at that independent of whether you all raise it right and i think that's a way to dispose of this case certainly and i cannot stand here and tell you that this innuendo and then on the merits of what's been briefed again under the jail b a the obligation of the employer and i think we need to focus on the employers duties here is to take the non public information that it raises is a financial institution in a moment here because this dealership also provides financing is defined as a financial institution and all of the obligations of leech attached to it because it's providing lender services and so it has a duty to protect confidential nonpublic information it collects from customers it has a duty to disclose to the customer a breach of that confidentiality and it has a duty to speak honestly with the customers and in the pleadings we allege and i think attached to the pleading the memorandum admitting this that not only did the employer allow the the information to be stolen but they failed to disclose it to the customer and more importantly they lied to the customer about what happened by soliciting the information again under false pretense so they foursquare committed at least three different criminal acts giving rise to mr holbein's concerns and his reporting of those events to his employer  based upon his training experience as general manager is obligations as general manager of this facility to to make those disclosures and as a consequence he was terminated from his employment or or let's take that had on mr holbein in good faith went to his supervisor and as general manager of the facility and reported what the finance director had done he advised his employer that these were criminal acts that they violated graham leach he had been trained on that he was aware of it he had knowledge of it and was in the process of reporting to them whether that's a threat reporting to a  party police power agency or whether it's a veiled threat or a parent threat or whether it's an act i don't think matters of this case the fact is that he invoked his knowledge of what went wrong he advised his employer of it he was investigating in good faith and before anything else could happen he was he was basically demoted or constructively discharged from his job and that that caused him the damages that he being the center point of the decision where really it's the employer's actions that the nebraska supreme court said we need to focus on both and interpret ing the exception and applying it to the at will employment by that i mean once once there's a reporting of criminal act or a clear what's the violation occurs of something it's a clear act of public policy that's stops the analysis of what the employee is doing at that point that the question is the motive of the employer and what they're doing in the district court just completely missed that point in the thing in the ludlow decisions that were the basis of her decision and she went straight to basically ignoring the motivation of the employer and why they terminated or demoted the employee and i think the proper focus should be on what the employer did and what a step back in time that i'm a little bit behind where at is it your position then any criminal provision falls within the unique law providing a public policy exception hundred nebraska common law the just any kind of crime any place is always one of these unique laws that that they talk about that's the supreme court precedent in a basket they make no distinction about the type of crime so for instance if i see a fellow employee take money from a customer by deception or some kind of fraud that would be a criminal act and i report it i would i would venture to say that i would be benefit from the safe harbor of the exception of at will employment because that's a clear public policy that theft by deception is  not appropriate and it's a crime and in the supreme court the baskets basically said if it's a crime that's a gold standard for public policy that the legislature a legislative body has determined that this is such an important policy to adhere to or support that we're going to make it a criminal act to do it well that's that's what the jurisprudence is in nebraska with the common law is to spray your times about to expire if you want to reserve any right that before you can move forward to the merits of this decision you have to decide whether there is jurisdiction to hear this appeal i am a bit surprised by mr sprays position here today because in filing this appeal and asking this court to look at th that this court had diversity jurisdiction over this case when we looked at this complaint when we st received when it was filed in state court we looked at the st cause of action that purported to be brought under the financial services modernization act that the appellant's claim is really brought pursuant to state law that claim still depends on a significant source of federal law the graham leach by lee act to determine whether there is a valid public policy exception to the out will employment doctrine merely incidental because the appellant cannot succeed on his claim without showing what gramm leach bliley act requires and how that relates to the facts of the allegations in this case it is that very complicated th a criminal provision cracked in the federal act and those are fairly well set out and federal law what more would the court have to do but determine whether or not there was an allegation that that was that that particular crime had been committed that's an excellent question your honor the u s supreme court looked at a similar issue in grable and sons metal products and determined that if there is a substantial source of federal law that must be examined in determining whether a valid claim exists that can support a basis for federal question jurisdiction and the grand act is neither straightforward nor a clear a manageable standard as the appellant would want to try to rely on to support the  false or fraudulent pretenses to obtain or disclose financial information from a customer and it relates in terms of rule nine b s requirement to plead fraud with particularity and looking at what does the require and how can the appellant rely on that federal statute to circumvent the at will employment doctrine in nebraska but even if this court is not comfortable with the basis for federal question jurisdiction there is another separate basis for jurisdiction which the appellant relied on in filing his appeal before this court and that would be diversity jurisdiction now we admit that we could not have removed this case to federal court on the basis of diversity jurisdiction initially because of the challenges that removal or seeks to remove it back to state court and the district court enters a judgment on the merits of the issue and on a subsequent perceived on appeal is whether the district court would have had original jurisdiction over the matter had the case today as an objection to the jurisdiction i don't believe so your honor and why not me it strikes a chord as too little too late at no time even in filing this appeal before the circuit has the appellant ever asked  court to determine the jurisdiction of lacking in this case is it different when we're looking at jurisdiction the too little too late sort of approach to resist that is a different one we're talking about whether or not we have jurisdiction over this particular a judgment on the merits that provides a basis for this court to examine this case and jurisdiction to preside over this appeal and so we're garlits of which path you take to get there i believe that we all agree that there is jurisdiction over this case mr spray ray several comments in his opening remarks which i will try to address and phone but i would no doubt said that this court has before it's a relatively straightforward issue and that being whether the complaint has played on its face sufficient facts state a plausible claim for relief as this court is well aware in applying the us supreme court standards under twenty million a fall that this court is not required to accept any legal conclusions that are couched as factual allegations rather your is to take a look at the complaint and determine whether it is played enough facts to state a plausible claim for relief and an inference that the defendant has committed the misconduct that the plaintiff is trying to allege in this case the amended complaint fails to state a plausible claim for wrongful discharge the appellant's st cause of action is the only claim being appealed to you today and it indicates as i said before that is brought under the gram leach bliley act as i noted before that act is not contain a prior right of action it also does not contain any whistleblower protection and to the extent that the appellant attempts to rely on that act to support a wrongful discharge claim he cannot do so the appellant was employed on a now will bas does not challenge that conclusion on appeal and the general rule in a basket as it is in most jurisdictions in the circuit that unless an employer is constitutionally statutorily or contractually prohibited from doing so that in a generally terminate the at will employment of an employee for any reason or no reason at all without notice or without cause the exception to this rule and it's not a safe harbor it's an exception is that a now will employ me pursue a wrongful discharge claim when the motivation for firing contravenes public policy but the nebraska supreme court has cautioned that the exception to that rule has to be limited to cases where there is a very clear mandate of public policy and  more what's more clear than the federal government the congress saying that it's a crime to engage in the kind of conduct that the defendant is it alleged to have engaged in what's more clear it seem to me that  several of the nebraska cases say pretty much that if the legislator spoken that it's a crime that's that's pretty clearly delineated well your honor i would agree that the shriner case from the rascasse supreme court does look at a criminal statute in talking and how many miles wrong that vehicle that is a very clear mandate of public policy it's easy to understand it's easy to apply in contrast the graham least bliley act is far more complex it talks about not being able to use or disclose financial information under false or fraudulent pretenses and when we take that standard and we look at what the amended complaint has played in this case we see that the appellant argues that the employer is a financial that certain customer information was stolen from an employee though it doesn't allege what exactly was stolen and it alleges that this employee came up with a quote clever method of re obtaining that information from the customer but it doesn't alleged in nature or the address those issues after the palate was terminated on appeal the appellant tries to rely on graham leach bliley to say that it is a violation to obtain or disclose customer information of a financial institution by making a false or fraudulent representation to a customer but there is no allegation in the amended complaint that someone actually made a false or fraudulent representation there's no allegation that the employee at issue in all of this actually lied or that she ever tried to call customers up to try to get their information under false pretenses well you know there's a case law the talks about a failure to disclose one hundred duty to do so may be fraudulent and so it's a fraudulent  failure to to inform right and i think that's what they're arguing where they were wrong on that i don't believe that there are any nebraska supreme courts your honor that go that far certainly there is the window and case the talks about a duty to report abuse toward patients and in that case the court recognized that where there is a specific duty to report under a statute and the employee at issue actually makes that report as mandated by law and is subsequently terminated that that can form a legitimate exception to the at will employment doctrine under nebraska law here we don't have that we don't have an actual report there is no private right of action under graeme leach bliley act and there's no whistleblower protection should you choose to take the act and rely on it to form an exception to the at will employment doctrine and brassica you are creating a new law there is no currently existing nebraska case that goes so far as the appellant is trying to urge you to do so today duty to speak you have a duty to speak truthfully and honestly and completely i think the case is called streaks s t r k s but of course once you have an obligation to be honest with a customer a client you have a duty to be a criminal code there's no other real requirements we can dust it up in and and make a lot of it but at the end of the day there were three obligations it created a crime all three of them are violated by this defendant and what about what about diversity well i just looked at my brief again and i think we recited that we had diversity but really there there isn't diversity of citizenship mr holbein was a resident of brassica this corporation isn't a brass a corporation but you allege you are a resident of shambler arizona but that all material pine's you were a resident of sarpy county right right so when all the events occurred mr holbein was a resident of nebraska  he currently lives in channelers that arizona but he resided here and had all the indicia of residency of we were required to prove that i think at the end of the day this court like the district court struggles with a developing common law of the nebraska supreme court and frankly the matter would be best heard in the district court that's why we filed it there the sarpy county district court in the brassica because of for that reason and