ABA Banking Journal
No Result
View All Result
  • Topics
    • Ag Banking
    • Commercial Lending
    • Community Banking
    • Compliance and Risk
    • Cybersecurity
    • Economy
    • Human Resources
    • Insurance
    • Legal
    • Mortgage
    • Mutual Funds
    • Payments
    • Policy
    • Retail and Marketing
    • Tax and Accounting
    • Technology
    • Wealth Management
  • Newsbytes
  • Podcasts
  • Magazine
    • Subscribe
    • Advertise
    • Magazine Archive
    • Newsletter Archive
    • Podcast Archive
    • Sponsored Content Archive
SUBSCRIBE
ABA Banking Journal
  • Topics
    • Ag Banking
    • Commercial Lending
    • Community Banking
    • Compliance and Risk
    • Cybersecurity
    • Economy
    • Human Resources
    • Insurance
    • Legal
    • Mortgage
    • Mutual Funds
    • Payments
    • Policy
    • Retail and Marketing
    • Tax and Accounting
    • Technology
    • Wealth Management
  • Newsbytes
  • Podcasts
  • Magazine
    • Subscribe
    • Advertise
    • Magazine Archive
    • Newsletter Archive
    • Podcast Archive
    • Sponsored Content Archive
No Result
View All Result
No Result
View All Result
Home Uncategorized

Fifth Circuit denies petition for rehearing en banc in FDIC enforcement lawsuit

April 1, 2026
Reading Time: 3 mins read
ABA files amicus brief urging Eighth Circuit to reverse district court’s dismissal of NSF fee lawsuit

FDIC in-house proceedings
Burgess v. Federal Deposit Insurance Corporation
Date: March 20, 2026

Issue: Whether en banc review is warranted to rehear a three-judge Fifth Circuit panel decision holding that district courts lack authority to block Federal Deposit Insurance Corporation (FDIC)  enforcement proceedings.

‌Case Summary: The full Fifth Circuit denied former Hering Bank CEO Cornelius Campbell Burgess’ petition for rehearing en banc, leaving in place a panel decision that district courts lack authority to block FDIC enforcement proceedings.

In SEC v. Jarkesy, the U.S. Supreme Court upheld a Fifth Circuit decision that concluded the SEC’s use of its in-house judicial forum unconstitutional under the Seventh Amendment when imposing civil money penalties (CMPs).

FDIC alleged that Cornelius Campbell Burgess abused his position while serving as president and CEO of Herring Bank. According to FDIC, Burgess used the bank’s corporate cards to pay his personal expenses. FDIC launched an enforcement proceeding against Burgess before an FDIC administrative law judge (ALJ). The ALJ determined Burgess should be permanently banned from the banking industry and ordered him to pay a $200,000 CMP. Burgess appealed the ALJ’s decision to FDIC, but his appeal was denied.

Afterward, Burgess sued FDIC, arguing its proceedings were unconstitutional on various grounds. Burgess claimed the proceeding deprived him of his Seventh Amendment right to a jury trial. He also claimed  a tenure-protected ALJ presided over the proceeding and that the agency has an unconstitutionally structured board. The district court granted Burgess a preliminary injunction, but only on his claim that the procedure violated Burgess’ constitutional right to a jury trial. FDIC and Burgess both appealed to the Fifth Circuit, which stayed the appeals while the U.S. Supreme Court considered Jarkesy. ABA filed a coalition amicus brief supporting Burgess, emphasizing the banking agencies’ civil penalty enforcement actions are not broadly exempt under the “public rights” exception and that in-house banking enforcement actions raise serious constitutional concerns.

However, a three-judge panel unanimously ruled the Federal Deposit Insurance Act (FDIA) expressly strips district courts of subject-matter jurisdiction to enjoin ongoing FDIC enforcement proceedings, including those raising constitutional claims. The panel highlighted the statute’s clear language, stating that “no court shall have jurisdiction to affect by injunction or otherwise” the issuance or enforcement of FDIC orders, and concluded that Congress explicitly prohibited such lawsuits. The panel also explained that Congress created a detailed review scheme that channels challenges through the administrative process and into the courts of appeals after a final agency order is entered. Because of restrictions on when district courts may act, the panel concluded that the district court lacked jurisdiction and erred in granting injunctive relief.

The panel also rejected Burgess’s argument that constitutional claims require an exception to this jurisdictional bar. It explained that Supreme Court precedent does not require a heightened clear statement when Congress directs claims to a different forum instead of eliminating judicial review altogether. The panel emphasized the FDIA allows parties to raise constitutional claims during the administrative process and then seek review in a federal court of appeals after a final order is entered. The panel declined to address Burgess’s constitutional claims, reversed the district court’s injunction, and remanded the case with instructions to dismiss for lack of jurisdiction.

On Oct. 9, 2025, Burgess petitioned the Fifth Circuit for en banc review, arguing that the panel’s decision conflicts with Supreme Court precedent. Burgess pointed to Collins v. Department of the Treasury, which requires a clear statement from Congress to preclude judicial review of constitutional claims, a standard he argued the FDIA does not meet. Burgess also argued the case is exceptionally important because the panel’s ruling shields FDIC proceedings from meaningful judicial review and forces parties to endure potentially unconstitutional processes before obtaining relief. Finally, Burgess argued the panel’s decision was wrong because it failed to apply the clear statement rule and concluded that after-the-fact appellate review provides meaningful relief. However, the Fifth Circuit denied Burgess’ petition without providing further commentary.

Bottom Line: The Fifth Circuit left intact a three-judge panel decision that ruled the FDIA bars district courts from halting FDIC enforcement actions.

Document: Petition; Fifth Circuit Opinion

Tags: Banking Docket
ShareTweetPin

Related Posts

ABA files amicus brief urging enforcement of notice-and-continued-use amendments

ABA files amicus brief urging enforcement of notice-and-continued-use amendments

Uncategorized
September 30, 2026

ABA and the Mississippi Bankers Association filed a coalition amicus brief urging the Supreme Court of Mississippi to affirm a Mississippi trial court’s order compelling arbitration and hold that banks may amend deposit agreements, including arbitration clauses, through...

Humboldt Merchant Services agrees to pay $12 million to resolve FTC Act allegations

Humboldt Merchant Services agrees to pay $12 million to resolve FTC Act allegations

Uncategorized
September 30, 2026

Humboldt Merchant Services agreed to pay $12 million to resolve allegations that it violated the FTC Act by opening and maintaining payment processing accounts for merchants that were shell companies or engaged in fraud.

Central District of California denies CashCall’s motion to vacate restitution judgment

Central District of California denies CashCall’s motion to vacate restitution judgment

Uncategorized
September 30, 2026

A California federal court denied CashCall’s motion for relief from a post-remand judgment requiring the company to pay more than $134 million in restitution.

U.S. Supreme Court rules CFPB’s funding structure is constitutional

Oregon federal court rules CFPB funding refusal violated APA

Uncategorized
September 30, 2026

An Oregon federal court ruled that CFPB Director Russell Vought violated the Administrative Procedure Act by refusing to request funding for the bureau from the Federal Reserve.

Eleventh Circuit upholds $800,000 award in Banco de Venezuela lawsuit

Eleventh Circuit upholds $800,000 award in Banco de Venezuela lawsuit

Uncategorized
September 30, 2026

In a unanimous decision, an Eleventh Circuit panel affirmed an $800,000 jury verdict ruling that two former Eastern National Bank directors breached their fiduciary duties by advancing the Venezuelan government’s interests and contributing to the bank’s financial losses.

Fifth Circuit vacates distribution order in CETA Ponzi scheme

Fifth Circuit vacates distribution order in CETA Ponzi scheme

Uncategorized
September 30, 2026

In a unanimous decision, a Fifth Circuit panel vacated a Texas federal court decision that overruled UniBank’s objections to a receivership distribution plan without holding an evidentiary hearing.

NEWSBYTES

ABA: Reciprocal deposits rule simplifies bank compliance

October 1, 2026

FinCEN proposes restrictions on Russian A7 Network to increase pressure on Iran

October 1, 2026

Senate passes ABA-backed ATM crime bill

October 1, 2026

SPONSORED CONTENT

The Shift from Demographic Marketing

The Shift from Demographic Marketing

October 1, 2026
Meeting Ag Lending Goals Without Going It Alone

Meeting Ag Lending Goals Without Going It Alone

October 1, 2026
Beyond the Portfolio: The Wealth Manager’s New Role in a Multigenerational World

Beyond the Portfolio: The Wealth Manager’s New Role in a Multigenerational World

September 17, 2026
Banking Technology at a Strategic Crossroads

Banking Technology at a Strategic Crossroads

September 8, 2026

PODCASTS

Podcast: Creating seamless customer experiences

September 30, 2026

Podcast: Telling a different kind of story about community banks

September 28, 2026

Podcast: Making the jump from a high performer to a high-performing leader

September 16, 2026

American Bankers Association
1333 New Hampshire Ave NW
Washington, DC 20036
1-800-BANKERS (800-226-5377)
www.aba.com
About ABA
Privacy Policy
Contact ABA

ABA Banking Journal
About ABA Banking Journal
Media Kit
Advertising
Subscribe

© 2026 American Bankers Association. All rights reserved.

No Result
View All Result
  • Topics
    • Ag Banking
    • Commercial Lending
    • Community Banking
    • Compliance and Risk
    • Cybersecurity
    • Economy
    • Human Resources
    • Insurance
    • Legal
    • Mortgage
    • Mutual Funds
    • Payments
    • Policy
    • Retail and Marketing
    • Tax and Accounting
    • Technology
    • Wealth Management
  • Newsbytes
  • Podcasts
  • Magazine
    • Subscribe
    • Advertise
    • Magazine Archive
    • Newsletter Archive
    • Podcast Archive
    • Sponsored Content Archive

© 2026 American Bankers Association. All rights reserved.