Last week, perhaps in anticipation of Independence Day, the D.C. Circuit exercised its “independent judgment” in two administrative law cases that dodged interesting questions about Loper Bright.

When Has Congress Delegated Interpretive Discretion to an Agency?

Loper Bright Enterprises v. Raimondo answered one question – Chevron, nevermore? – and raised another – when has Congress “authorized [an agency] to exercise a degree of discretion.” Sometimes, for example, Congress expressly delegates “authority to give meaning to a particular statutory term.”

Was that sometime now for the SEC in Institutional Shareholder Services, Inc. v. SEC? The case involved Section 14(a) of the Securities Exchange Act, which prohibits “any person, . . . in contravention of such rules and regulations as the [SEC] may prescribe as necessary or appropriate in the public interest or for the protection of investors, to solicit . . . any proxy” regarding registered securities. The SEC regulated proxy advisory firms under this section, on the theory that their recommendations are solicitations of institutional investors’ proxy votes. Judge Henderson, writing for the panel that included Judge Rao and Judge Garcia, held that the SEC did not have that regulatory authority.

The case might have been one of congressionally delegated interpretive authority. After all, the Act doesn’t define “solicit.” And it does authorize the Commission to “define technical, trade, accounting, and other terms used in this chapter, consistently with the provisions and purposes of this chapter.” In Loper Bright terms, might that have been an express delegation of “authority to give meaning” to the word “solicit” in the Act?

We don’t know because the D.C. Circuit reasoned it could avoid the question. The SEC’s definition of “solicit” was obviously unlawful, the panel concluded, basing its holding primarily upon contemporaneous dictionaries and secondarily upon the structure and context of the Act as well as policy considerations. Although proxy advisors (the two big firms are ISS and Glass Lewis) influence their clients, they do not solicit their clients’ votes. And that difference made all the difference under Section 14(a).

What Does Loper Bright Mean (If Anything) for Contract Interpretation?

Loper Bright takes it as given “that . . . statutes, no matter how impenetrable, do – in fact, must – have a single, best meaning.” What about contracts? If there is a “single, best” interpretation of every statute, then is there a “single, best” interpretation of every contract too?

The D.C. Circuit might have answered that question in Michigan Electric Transmission Co. v. FERC. The case was about who owned facilities connecting a solar generation park to a transmission line. The petitioner pinned its claim to several contracts. FERC did not think that the contracts answered the ownership question. Judge Ginsburg wrote for the panel, which included Judge Walker and Judge Edwards and which denied the petition for review.

The panel did not answer the Loper Bright question about contract interpretation. The D.C. Circuit has a “Chevron-like” standard of review for FERC’s interpretations of ambiguous contracts. Now that Chevron is dead, maybe that “Chevron-like” standard must be killed too. The panel avoided the question because it agreed with FERC’s interpretation of the contracts.

The relevant agreements were governed by Delaware law and Michigan law, respectively. And that, too, raised interesting questions for a federal court reviewing FERC’s contract interpretation. As it happened, state law was not always clear about how to interpret the contracts. (For instance, Michigan law apparently was “unclear” about when, if ever, “the history” of a contract “should inform” its interpretation.) In any event, the D.C. Circuit concluded, the petitioners’ ownership claim was “at odds with the pro-competitive purpose of the agreements.”

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The D.C. Circuit addressed two other questions in the other published cases from last week.

First, when can a public law plaintiff proceed under a pseudonym? Not often! In Doe v. Hill, Judge Millett, joined by Judges Rao and Rogers, held that a litigant could not proceed under a pseudonym in his suit challenging the FDIC’s policy against hiring people with felony convictions. The panel reasoned that “those who seek to alter public law by using the federal courts must, in all but truly exceptional cases, reveal their identity so that the public can understand the issues before the court, the consequences of the court’s ruling, and the manner in which the court reached its decision.”

Second, was there substantial evidence to support the NLRB’s findings in an unfair labor practices case? Yes, the D.C. Circuit held in McLamb v. NLRB. Judge Henderson wrote the opinion, which Judge Pan joined in fully. Judge Walker concurred in part and dissented in part, arguing that the Board did not have substantial evidence for one of its findings.