Introduction

This appeal squarely presents a recurring question in federal banking enforcement: may a federal district court enjoin the Federal Deposit Insurance Corporation (FDIC) from issuing a final enforcement order while the matter is still pending before the agency’s Board, when the challenger alleges constitutional defects in the process? The Fifth Circuit’s answer is categorical: no.

In Burgess v. Whang, the FDIC brought enforcement proceedings against Cornelius Campbell Burgess, former CEO of Herring Bank, seeking a prohibition order and civil penalties. After an Administrative Law Judge (ALJ) recommended sanctions and before the FDIC Board issued its final order, Burgess sued in federal district court for an injunction, asserting three constitutional claims: (1) unconstitutional removal protections for the FDIC Board; (2) unconstitutional removal protections for FDIC ALJs; and (3) deprivation of a Seventh Amendment jury right.

The district court denied an injunction on the removal claims (for lack of a showing of harm under Collins v. Yellen), but granted a sweeping injunction halting the FDIC proceeding on the Seventh Amendment claim. The FDIC appealed; Burgess cross-appealed. The Fifth Circuit reversed, holding that 12 U.S.C. § 1818(i)(1) expressly strips district courts of subject-matter jurisdiction to “affect by injunction or otherwise” the “issuance or enforcement” of FDIC notices or orders. The court remanded with instructions to dismiss, without reaching any of the constitutional merits.

Summary of the Judgment

• Holding: Section 1818(i)(1) explicitly precludes district court jurisdiction to enjoin the issuance or enforcement of FDIC orders and notices. Because Burgess sought to enjoin the Board from issuing a final order, the district court lacked subject-matter jurisdiction. The preliminary injunction is reversed; the case is remanded with instructions to dismiss.
• No Merits Ruling: The Fifth Circuit expressly declined to reach Burgess’s constitutional claims (removal protections and Seventh Amendment), rendering his cross-appeal moot.
• Key Statutory Pathway Preserved: Constitutional claims must be channeled through the administrative process and then raised via petition for review in the appropriate court of appeals under § 1818(h)(2).

Statutory Framework and Precedents Cited

The § 1818 Enforcement Scheme

Section 1818 creates a comprehensive mechanism for federal banking enforcement (used by the “appropriate Federal banking agency” as defined in 12 U.S.C. § 1813(q)). It authorizes, among other actions:

• Termination of insurance (§ 1818(a)),
• Cease-and-desist orders (§ 1818(b)-(c)),
• Removal and prohibition orders against institution-affiliated parties (§ 1818(e)), and
• Civil money penalties (§ 1818(i)(2)).

Proceedings are conducted under the Administrative Procedure Act (APA). After the ALJ’s recommended decision, the Board issues a “final order.” That final order is reviewable—within thirty days—directly in the court of appeals for the D.C. Circuit or the circuit where the bank’s home office is located (§ 1818(h)(2)).

The Anti-Injunction Clause—§ 1818(i)(1)

Critical to this case is the anti-injunction clause in § 1818(i)(1), which, after granting agencies discretion to seek enforcement of outstanding orders in district court, provides:

“[E]xcept as otherwise provided in this section or under section 1831o or 1831p-1 of this title no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any notice or order under any such section, or to review, modify, suspend, terminate, or set aside any such notice or order.”

Section 1818 also delineates specific, narrow circumstances when district courts may act (e.g., challenges to temporary orders within ten days; stays of interim suspensions; subpoena enforcement). Burgess’s lawsuit did not fit any of those exceptions.

Precedents and How They Shaped the Decision

• Board of Governors v. MCorp Financial Inc., 502 U.S. 32 (1991):

  The Supreme Court emphasized the “clarity” of § 1818(i)(1)’s congressional preclusion of review, holding that district courts lack jurisdiction to enjoin ongoing banking enforcement proceedings. MCorp directly supports reading § 1818(i)(1) as an explicit jurisdictional bar.

• Bank of Louisiana v. FDIC, 919 F.3d 916 (5th Cir. 2019):

  The Fifth Circuit previously held that § 1818’s text, structure, and purpose show a comprehensive review scheme that precludes district court jurisdiction. There, the court found explicit preclusion, and, “prudent[ly],” also applied the Thunder Basin implicit-preclusion factors, which “reinforced” the conclusion. Burgess leans on Bank of Louisiana as controlling, especially as clarified by Cochran.

• Cochran v. SEC, 20 F.4th 194 (5th Cir. 2021) (en banc), aff’d sub nom. Axon Enterprise, Inc. v. FTC, 598 U.S. 175 (2023):

  Cochran distinguished statutes that lack express anti-injunction language (like the Exchange Act) from § 1818. The en banc court clarified that Bank of Louisiana rested on § 1818’s explicit bar. The Supreme Court affirmed in Axon, and Justice Gorsuch highlighted § 1818(i)(1) as a paradigm of explicit jurisdiction-stripping. This distinction is decisive here: where Congress uses clear “no jurisdiction” language, implicit multi-factor analysis is unnecessary.

• Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010); Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994):

  These cases supply the implicit-preclusion framework (text/structure/purpose and the “Thunder Basin factors”). In § 1818 cases, however, the Fifth Circuit treats § 1818(i)(1) as explicit preclusion, obviating the need to apply Thunder Basin.

• Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1 (2000); Elgin v. Department of the Treasury, 567 U.S. 1 (2012):

  These decisions recognize that Congress may channel constitutional claims to particular review forums (such as courts of appeals) without raising the constitutional concerns that attend total foreclosure. Elgin, in particular, limits the “clear statement” notion from Webster v. Doe to statutes that would otherwise deny any judicial forum. Section 1818 doesn’t do that; it channels review to the courts of appeals.

• Webster v. Doe, 486 U.S. 592 (1988):

  Burgess relied on Webster to argue that constitutional claims can’t be precluded absent an ultra-clear statement. The Fifth Circuit rejected that position, citing Elgin: Webster applies only where a statute would deny all judicial review of constitutional claims. Section 1818 preserves appellate review, so no special Webster carveout is required.

• Zummer v. Sallet, 37 F.4th 996 (5th Cir. 2022), cert. denied, 143 S. Ct. 1019 (2023):

  Even where meaningful review was practically unattainable in the CSRA context, the Fifth Circuit declined to import Webster’s clear-statement rule. In Burgess, meaningful review indisputably exists via § 1818(h)(2), making the case for explicit preclusion even stronger.

• FDIC v. Bank of Coushatta, 930 F.2d 1122 (5th Cir. 1991), and Collins v. Department of the Treasury, 83 F.4th 970 (5th Cir. 2023):

  Coushatta contained language, in an APA § 701(a)(2) “committed to agency discretion” context, suggesting constitutional claims remained reviewable. The panel explains that Coushatta concerned FDIC enforcement of an outstanding directive in district court (expressly permitted by § 1818), not pre-enforcement anti-injunction bar issues. Collins later read Coushatta as dicta on § 1818(i). The Burgess court emphasizes that Bank of Louisiana (2019) controls, and Cochran (en banc) clarifies it.

• Other supportive decisions:

  Recent district court cases—Bonan v. FDIC (E.D. Mo. 2023) and two Ponte v. FDIC decisions (D.R.I. 2023; D.D.C. 2024)—converge on the same conclusion: § 1818(i)(1) expressly bars district courts from enjoining FDIC enforcement, even for constitutional claims; those claims must be raised in the administrative process and then in the court of appeals.

Legal Reasoning

1. Text Controls: An Explicit Anti-Injunction Bar

   The court begins and ends with the text: “no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any notice or order” under § 1818. That language expressly divests district courts of jurisdiction over Burgess’s requested relief—a preemptive injunction stopping the FDIC Board from issuing its final order. The statute also enumerates narrow district-court exceptions (temporary orders, stays of suspensions, subpoena enforcement), underscoring Congress’s calibrated approach. Burgess’s situation falls outside those exceptions.

2. No Need for Implicit-Preclusion Analysis

   Because Congress spoke explicitly, the Fifth Circuit did not need to balance the Thunder Basin factors. Earlier in Bank of Louisiana, the court prudently analyzed those factors anyway, finding they reinforced the conclusion. Here, as clarified in Cochran, the explicit preclusion suffices.

3. Webster v. Doe Doesn’t Save the Day

   Burgess argued that constitutional claims can’t be precluded absent a heightened “clear statement” under Webster. The court rejected this argument for two reasons:

   • Elgin limits Webster to situations where Congress purports to deny any judicial forum for constitutional claims. § 1818 channels review to the courts of appeals (§ 1818(h)(2)).
   • Zummer confirms that the Fifth Circuit does not extend Webster’s clear-statement principle where Congress has established a comprehensive remedial scheme—even if meaningful review is contestable. Here, meaningful review via petition for review is available and explicit.

4. Harmonizing Coushatta and Collins

   Coushatta was about enforcing an already-issued directive, which § 1818(i)(1)’s first clause expressly allows the agency to pursue in district court. Any constitutional-review language in Coushatta arose in an APA § 701(a)(2) discretionary-action milieu, not the anti-injunction bar at issue here. Collins (2023) treated Coushatta as nonbinding dicta on § 1818(i). Under the Fifth Circuit’s rule of orderliness and Cochran’s en banc clarification, Bank of Louisiana controls: § 1818(i)(1) explicitly precludes jurisdiction.

5. Disposition

   Because the district court lacked subject-matter jurisdiction to enjoin the FDIC Board from issuing a final order, the Fifth Circuit reversed the preliminary injunction and remanded with instructions to dismiss. All pending motions were denied as moot. The court did not reach the constitutional merits—including the district court’s Seventh Amendment analysis or the removal-protections claims.

Impact and Practical Consequences

1) Channeling of Constitutional Claims

Bottom line for regulated parties: Constitutional challenges to FDIC enforcement (e.g., Appointments Clause, removal protections, Seventh Amendment) cannot be used to halt ongoing administrative proceedings in district court. Parties must:

1. Litigate within the FDIC process (including raising constitutional objections there), and
2. Seek judicial review through a petition to the court of appeals under § 1818(h)(2) after a final order issues.

This is a critical distinction from Axon/Cochran in the SEC/FTC context, where the absence of an explicit anti-injunction provision permitted some pre-enforcement district court suits. By contrast, § 1818(i)(1) is an explicit jurisdictional bar.

2) Limited, Enumerated District Court Windows Remain

District court jurisdiction survives only where § 1818 specifically grants it:

• Challenges to temporary orders (e.g., temporary C&D orders) within short statutory windows (often ten days),
• Stays of temporary suspensions/prohibitions,
• Subpoena enforcement, and
• Agency enforcement of outstanding orders and collection of final civil penalties.

3) Strategic Litigation Implications

• Timing: Parties should prepare their record and constitutional arguments within the administrative process to preserve them for appellate review. A post-final-order petition under § 1818(h)(2) is the exclusive route.
• Stays/Supersedeas: Relief pending review (stays) must be sought under appellate rules and standards; district courts cannot enjoin issuance of a final order under § 1818(i)(1).
• Seventh Amendment questions: In light of recent jurisprudence addressing administrative adjudication and civil penalties, Seventh Amendment challenges in banking cases will likely need to be resolved by the courts of appeals on petitions for review, not by district courts through preemptive injunctions.

4) Institutional and Doctrinal Effects

• Consistency with Supreme Court guidance: The decision aligns with MCorp and Elgin, reinforcing that explicit anti-injunction clauses are honored as written and that constitutional claims may be channeled to designated courts without raising Webster-type concerns.
• Clarity for district courts: District courts in the Fifth Circuit should treat § 1818(i)(1) as a subject-matter jurisdictional bar to injunctions that would affect the issuance or enforcement of FDIC orders.
• Signal to other banking agencies: Because § 1818 governs enforcement by the “appropriate Federal banking agency” (e.g., FDIC, OCC, FRB), the ruling’s logic extends across federal banking enforcement conducted under this provision.

Complex Concepts Simplified

• Explicit vs. Implicit Jurisdictional Preclusion:
  • Explicit preclusion is when Congress clearly says courts lack jurisdiction (e.g., “no court shall have jurisdiction”). § 1818(i)(1) is explicit.
  • Implicit preclusion arises when a statute’s structure/purpose indicates Congress meant to channel claims into specific review paths even without express words; courts use the Thunder Basin factors to analyze that.
• Channeling vs. Foreclosure:
  • Channeling directs claims to a specific forum (here, courts of appeals via § 1818(h)(2)).
  • Total foreclosure would deprive a litigant of any judicial forum; Webster’s “clear statement” concern arises only in foreclosure, not channeling, situations.
• ALJ and FDIC Board:

  The Administrative Law Judge hears evidence and issues a recommended decision. The FDIC Board then issues a final order, which is the appealable agency action under § 1818(h)(2).

• Prohibition Order:

  An order that removes an individual from bank-related positions and bars future participation in the banking industry (12 U.S.C. § 1818(e)).

• “Bet the farm” concept:

  A phrase used in administrative-law cases to describe when a litigant must incur a sanction to obtain review; not at issue here because § 1818 provides direct review of final orders without self-inflicted penalties.

• Removal-protection “harm” requirement:

  Under Collins v. Yellen (2021), even if an officer’s removal protection is unconstitutional, a challenger must show that the unconstitutional removal provision caused harm to obtain relief. The district court found Burgess hadn’t made that showing; the Fifth Circuit did not reach the issue.

Conclusion

Burgess v. Whang cements a bright-line rule in the Fifth Circuit: 12 U.S.C. § 1818(i)(1) is an explicit, jurisdiction-stripping provision that bars district courts from enjoining (or otherwise affecting) the issuance or enforcement of FDIC notices and orders. Constitutional claims—including structural challenges and Seventh Amendment claims—must be raised in the administrative process and then reviewed, if at all, in the courts of appeals under § 1818(h)(2).

By grounding its holding in the statute’s plain text and harmonizing prior circuit and Supreme Court authority—especially MCorp, Bank of Louisiana, Cochran/Axon, and Elgin—the Fifth Circuit provides clear, administrable guidance to litigants, agencies, and district courts. The decision narrows the forum for pre-enforcement constitutional challenges in the banking context and underscores Congress’s ability to channel such claims without eliminating judicial review. For practitioners, the message is practical and urgent: build your constitutional record before the agency and prepare to seek review in the court of appeals—district court injunctions are off the table.