Last week, the Fifth Circuit became the third circuit court to consider whether administrative law judges (ALJs) are “inferior Officers” subject to the Appointments Clause of the Constitution. In Burgess v. FDIC, the court stayed an FDIC order that assessed a civil penalty against Cornelius Burgess and required his withdrawal from the banking industry. Mr. Burgess is asking the Fifth Circuit to review the FDIC’s order, which he argues is invalid because the ALJ who issued the agency’s initial decision was not appointed under the Appointments Clause. The court held that Burgess established a likelihood of success on his Appointments Clause challenge.