NCLA filed an amicus curiae brief in Burgess v. FDIC, et al. urging the U.S. Court of Appeals for the Fifth Circuit to redress the Federal Deposit Insurance Corporation’s (FDIC) unlawful enforcement action against Cornelius Campbell Burgess, which the agency pursued through its in-house administrative court. NCLA argued that FDIC’s allegations must be tried in front of a jury rather than an Administrative Law Judge (ALJ). FDIC’s current ALJ enforcement regime deprives Burgess of his Seventh Amendment right to a jury trial.

In 2014, FDIC began enforcement proceedings against former Herring Bank executive Cornelius Burgess, which concluded with a finding of liability, imposition of penalties including a lifetime prohibition on working in the banking industry, and a $200,000 civil penalty. Burgess petitioned the district court to prevent FDIC from formally approving the ALJ’s recommendations and entering a final order against him. Burgess challenged FDIC’s process as: (a) a violation of the “Vesting Clause” of Article II because FDIC’s Board of Directors—which exercises “executive power”—is not removable by the President at will; (b) a violation of Article II’s “take Care Clause” because FDIC ALJs are unconstitutionally shielded from removal; and (c) a violation of the Seventh Amendment’s guarantee of a trial by jury. NCLA’s amicus brief addressed the Seventh Amendment argument.