September Term 2009 SEC-74FR3138 Filed On: July 12, 2010 American Equity Investment… v. Securities and Exchange Commission

United States Court of Appeals
FO R THE DISTR IC T OF COLU M B IA CIR C U IT
____________
No. 09-1021 September Term 2009
SEC-74FR3138
Filed On: July 12, 2010
American Equity Investment Life Insurance
Company, et al.,
Petitioners
v.
Securities and Exchange Commission,
Respondent
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Consolidated with 09-1056
BEFORE: Sentelle, Chief Judge, and Ginsburg and Rogers, Circuit Judges
O R D E R
Upon consideration of the petition of Old Mutual Financial Life Insurance
Company for rehearing and the response thereto, and the supplemental briefs of the
parties, it is
ORDERED that the petition for rehearing be granted to the extent that Rule 151A
be vacated, and the opinion in American Equity v. SEC, 572 F.3d 923 (D.C. Cir. 2009),
be amended to delete the last sentence in the first paragraph, 572 F.3d at 925, and
insert in lieu thereof “Accordingly, we vacate the rule.” and to delete the third full
paragraph, 572 F.3d at 936, and insert in lieu thereof:
Having determined that the SEC’s § 2(b) analysis is
lacking, we grant the petitions insofar as they assert the SEC
failed properly to consider the effect of the rule upon
efficiency, competition, and capital formation. Turning to the
appropriate remedy, under Allied-Signal, Inc. v. United
States Nuclear Regulatory Commission, we note “[t]he
decision whether to vacate depends on the seriousness of
the order’s deficiencies (and thus the extent of doubt
whether the agency chose correctly) and the disruptive
consequences of an interim change that may itself be
changed.” 988 F.2d 146, 151 (D.C. Cir. 1993). The SEC
argues it is likely to reissue Rule 151A but it also
acknowledges it is in the midst of analyzing the effect of the
rule upon the law of each state. As the petitioners point out,
the Commission cannot know whether that analysis will
support reissuing Rule 151A until it has been completed.

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Neither will vacatur be disruptive of the agency’s regulatory
program. By its own terms, Rule 151A has not yet gone into
effect, cf. Allied-Signal, 988 F.2d at 151 (vacatur would
require agency to return fees already collected under
regulatory regime); Sugar Cane Growers Co-op of Florida v.
Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002) (vacatur would
be “an invitation to chaos” because “[t]he egg has been
scrambled and there is no apparent way to restore the status
quo ante”), and until such time as it does, the regulations
supplied by state law will remain in place, cf. Davis County
Solid Waste Mgmt. v. EPA, 108 F.3d 1454, 1458–59 (D.C.
Cir.1997) (vacatur would leave certain pollutants partially
unregulated for eighteen months). We therefore order that
Rule 151A be vacated.
The Clerk is directed to amend the judgment filed July 21, 2009, accordingly.
The Clerk is further directed to issue the mandate 7 days after the issuance of this
order.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk

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