The Right to a Jury Is Fundamental

Thomas A. Berry and Isaiah McKinney

Cornelius Burgess served as the CEO of Herring Bank for over a decade. After the bank suffered some losses, the Federal Deposit Insurance Corporation (FDIC) investigated Burgess for allegedly using bank funds for personal expenses. Eventually, the FDIC initiated an Enforcement Proceeding against Burgess before an FDIC Administrative Law Judge (ALJ), an agency employee. The ALJ ordered Burgess be removed from his job and fined him $200,000. Burgess appealed the ALJ’s decision to the FDIC, but his appeal was denied. After further appeals and procedural wrangling, Burgess then sued the FDIC in federal court, arguing that his Seventh Amendment right to a jury trial was violated, among other claims.

The Northern District of Texas temporarily enjoined the ALJ’s decision fining Burgess and ordering his removal, finding that the procedure violated Burgess’s constitutional right to a jury trial. The FDIC has now appealed this issue to the Fifth Circuit, and the Cato Institute has filed an amicus brief in support of Burgess.

In the brief, we explain why both history and precedent make clear that Burgess was entitled to a jury trial. The U.S. Constitution’s Seventh Amendment guarantees a right to a jury trial in all civil cases at law for disputes worth more than $20. This guarantee applies when the government is attempting to take someone’s “private rights,” like the rights to life, liberty, or property. If a “public right” is at stake however—a right created and specifically granted by the government—then the government can bring a claim before an executive tribunal, like an ALJ. But this narrow exception to the Seventh Amendment does not extend to government suits imposing civil penalties, which would take someone’s private property rights.

When a private right is at stake, the Fifth Circuit’s test for whether a defendant is entitled to a jury trial hinges on whether the suit is the type of action that was heard at common law at the time of the Founding. As the Supreme Court has held and as Cato shows in its brief, civil actions for penalties, like the FDIC’s action against Mr. Burgess, were actions at common law and were guaranteed a jury trial at the time of the Founding and before. At English and early American common law, not only were defendants in civil penalty suits entitled to a jury, but sometimes defendants in suits claiming damages for a breach of fiduciary duty, like the FDIC claims here, were given a jury trial.

Since this enforcement action for a civil penalty was an action at common law at the time of the Founding, Mr. Burgess is constitutionally entitled to a jury trial. The Fifth Circuit should affirm the District Court’s order on this issue and ensure that Burgess’s case is heard by a jury of his peers.

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