Administrative Reboot

In Chamber of Commerce v. U.S. Sec. & Exch. Comm’n, the Fifth Circuit found that the SEC acted too quickly in enacting a challenged rule, but then allowed it a “do-over” within a specified time:

The SEC acted arbitrarily and capriciously, in violation of the APA, when it failed to respond to petitioners’ comments and failed to conduct a proper cost-benefit analysis. We recognize that “there is at least a serious possibility that the agency will be able to substantiate its decision given an opportunity to do so.” Short of vacating the rule, we therefore afford the agency limited time to remedy the deficiencies in the rule. Because, for the reasons explained, the SEC’s adoption of the Share Repurchase Disclosure Modernization Rule is arbitrary and capricious, the petition for review is GRANTED, and this matter is REMANDED with direction to the SEC to correct the defects in the rule within 30 days of this opinion. This is a limited remand. This panel retains jurisdiction to consider the decision that is made on remand.

No. 23-60255 (Oct. 31, 2023); but cf. Alliance for Hippocratic Medicine v. U.S. Food & Drug Admin., No. 23-10362 (Aug. 16, 2023).