Judge Garland Would Be Good for HHS, CMS, Attorneys Say

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By Matthew Loughran and James Swann

March 17 — The nomination of Judge Merrick Garland to the U.S. Supreme Court could mean good things for the agencies tasked with administering federal health-care programs, according to health lawyers who spoke to Bloomberg BNA.

The judge, who has spent nearly 20 years on the U.S. Court of Appeals for the District of Columbia Circuit, is known for his deference to agency action and for the narrowness of his opinions, deciding only the question before the court. “Judge Garland is not a philosopher, he does not create broad precedents, he is much more of a minimalist,” Stuart Gerson of Epstein Becker Green in Washington told Bloomberg BNA.

Gerson, who said he considered the judge's “minimalism” as an asset to the court preventing judicial overreach, compared Garland's approach to that of Chief Justice John Roberts, saying that “their methods are very much the same and they both probably learned those methods at the feet of Judge Friendly.” Both Roberts and Garland clerked for Judge Henry Friendly on the U.S. Court of Appeals for the Second Circuit in the late 1970s.

Impact on Health Regulation

The comparison to Roberts is important for health lawyers as it was the chief justice's opinion in King v. Burwell (King v. Burwell, 135 S. Ct. 2480, 2015 BL 202885 (U.S.2015) that upheld the constitutionality of tax credits that serve as the backbone of the Affordable Care Act . However, Gerson said, it's unlikely that a Justice Garland would have to handle a case involving a direct challenge to the ACA.

“We are getting on the periphery now with the ACA challenges,” Gerson said. However, he did say that he believes that there could be “a ton of regulatory and interpretative challenges” to actions by the Department of Health and Human Services and the Centers for Medicare & Medicaid Services in applying the ACA and that Judge Garland's record of deference to agency action could be significant.

A review of the Judge Garland's opinions in cases challenging agency actions interpreting the Medicare Act or the ACA reveals his willingness to defer to the decision of the HHS and CMS under the Supreme Court's test for deference under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (U.S. 1984).

As an example, Garland's opinion in Gentiva Healthcare Corp. v. Sebelius, 723 F.3d 292, 2013 BL 194339 (D.C. Cir. 2013) upheld a delegation of authority by the HHS to a Medicare contractor to determine whether a provider had a sustained or high level of payment error.

In that opinion, Garland expressed a personal agreement with the provider's reading of the statute, saying that “although we believe Gentiva may have the better reading of § 1395ddd(f)(3), we must defer to the Secretary.” This was so because, according to Garland, “even a desirable statutory interpretation cannot trump an agency's reasonable interpretation under Chevron.”

False Claims Act Implications

Joseph E. B. “Jeb” White, an attorney with Nolan Auerbach & White PA in Philadelphia, told Bloomberg BNA that Garland would be a strong supporter of the False Claims Act if he were confirmed on the Supreme Court.

“He's very pro-government, very pro-whistle-blower,” White said.

As an example, White cited a dissent Garland wrote in United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488 (D.C. Cir. 2004), a case that addressed whether a false claim had to be submitted directly to the government in order to support imposing liability under the FCA.

The majority, led by Roberts, who was serving with Garland on the appeals court at the time, held that FCA liability can't attach to claims submitted to a federal grantee unless the claims are actually presented for payment to an officer or employee of the federal government.

Garland strongly disagreed with the majority and said it would reduce the government's ability to pursue false claims cases against federal grantees.

“His dissent became a touchstone on educating Congress about FCA loopholes,” White said.

Five years after the Totten decision, Congress passed the Fraud Enforcement and Recovery Act of 2009 (FERA), which included a provision eliminating the requirement that a false claim be presented to a federal official, or that it directly involve federal funds.

“But for Garland's dissenting opinion, those amendments wouldn't have happened,” White said.

The FCA amendments were particularly important to health care, as the government often gives money to grantees who then dole out the money on their own.

White said the FCA amendments have brought in millions of dollars for the government.

If Garland is confirmed, it's likely his views on the FCA will be opposed by Roberts, White said.

Anti-Retaliation Policy

White also mentioned an opinion written by Garland in Daniel Yesudian ex rel. United States v. Howard Univ., 270 F.3d 969 (D.C. Cir. 2001), a case concerning the FCA's anti-retaliation policy.

Garland found that Daniel Yesudian, who claimed he had been fired from Howard University's Purchasing Department for whistle-blowing, could pursue a lawsuit against Howard under the FCA's anti-retaliation policy.

Garland took a very broad view of the FCA in his decision, White said. He said he would expect Garland to continue to protect and uphold the FCA.

Likelihood of Confirmation

According to Gerson, it is very unlikely that Garland will be confirmed before the presidential election in November. However, he surmised that a Senate confirmation hearing in the “lame duck” Senate session following the election could be likely if the Democratic nominee is elected or the Republicans lose their majority, given previous comments from Republican senators that show respect for Garland's qualifications.

Gerson's comments reflected the widespread belief that Garland won't even be considered for the vacant position. Senate Majority Leader Mitch McConnell (R-Ky.) repeatedly has said that no nominee put forth by President Barack Obama will be considered this year.

Reactions to Nomination

In a statement issued on March 16 immediately after the president nominated Garland, NARAL Pro-Choice America urged the Senate to hold hearings to test his views on questions of reproductive rights.

“Judge Garland does not have a public record on reproductive rights and Senate Republicans’ obstruction denies all of us our right to know where this nominee stands on core constitutional questions of women's privacy, dignity, and equality,” the statement read.

The organization noted that the Supreme Court is reviewing state abortion restrictions for the first time in decades, thus making Garland's views on the subject pertinent to its members.

Other organizations that have interest in cases before the Supreme Court had similar things to say about the nomination. “Judge Garland is a distinguished jurist whose impeccable credentials are widely acknowledged in the legal community,” Marcia D. Greenberger, co-president of the National Women's Law Center, said in an e-mailed statement.

“It’s imperative that the United States Senate give him a fair and expeditious confirmation hearing and vote,” she added.

Elizabeth G. Taylor, the executive director of the National Health Law Program, released a statement saying, “we welcome the President's decision to nominate Merrick Garland to the Supreme Court and are confident that he brings the necessary intelligence and experience to fill the vacant seat.”

She added, “The court needs a full bench to provide guidance on a variety of cases—some with great implications for our health care system and the people who depend on it.”

However, not all groups share the enthusiasm for Senate confirmation hearings. Erin Hawley, a legal fellow at the Independent Women's Forum and associate professor of law at the University of Missouri, said in a statement, “As President Obama himself recognized while a senator, the people should have a say in their nominee when a vacancy arises in the midst of a presidential election.”

Hawley, who served as a clerk to Justice Roberts, added, “The Senate should ensure that the next President can appoint the next Supreme Court nominee, by refusing to take up consideration of this nominee.”

To contact the reporters on this story: Matthew Loughran in Washington at mloughran@bna.com and James Swann in Washington at jswann1@bna.com.

To contact the editor responsible for this story: Brent Bierman at bbierman@bna.com