Garland Brings Centrist Flair to D.C. Circuit With Laissez-Faire Approach to Agency Action

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By Tom P. Taylor

In a political climate where universal acclaim is rare and often fleeting, Judge Merrick B. Garland has been receiving public accolades from observers on both sides of the aisle since his confirmation to the U.S. Court of Appeals for the D.C. Circuit in 1997.

“All but the most cynical say this man is highly qualified, a decent person, a brilliant lawyer, a public servant who will make an outstanding judge,” Sen. Patrick Leahy (D-Vt.) said of Garland during the confirmation process.

And perhaps delivering the highest praise imaginable from a Republican stalwart to a Democratic judicial nominee, Sen. Orrin Hatch (R-Utah) told his colleagues in the Senate that not only was Garland a fine nominee, but he was “as good as Republicans can expect from this [Clinton] administration. In fact, I would place him at the top of the list,” Hatch said.

Sources who spoke with BNA about their experiences with Garland echoed this sentiment, noting that his time as a partner with a prominent Washington D.C. law firm representing business interests is part of his “professional DNA,” and his opinions reveal nothing in the way of an ideological tilt one way or another.

Those practitioners' insights and tips regarding practicing before Garland are collected in the Mock Trial section below.

‘Exceptionally Careful and Quite Centrist.'

Garland's time on the bench has done little to damage his reputation with either party.

Thirteen years after being confirmed, Garland found himself a member of President Obama's short list of potential replacements for retiring U.S. Supreme Court Justice John Paul Stevens. Once again, evenhanded praise for Garland was the order of the day.

Respected appellate practitioner and Supreme Court watcher Tom Goldstein wrote at the time that “Garland's record demonstrates that he is essentially the model, neutral judge. He is acknowledged by all to be brilliant. His opinions avoid unnecessary, sweeping pronouncements.”

In the National Review, Ed Whelan, a former clerk to Justice Antonin Scalia, offered a revamped version of Hatch's assessment from 1997, noting that Garland “may well be the best that conservatives could reasonably hope for from a Democratic president.”

Much of Garland's mystique centers around his thoughtfulness and his ability to consider both sides of an issue. As Goldstein put it, “he has few ideologically controversial rulings” and is “exceptionally careful and quite centrist” when crafting opinions.

Stuart Taylor Jr., writing in the National Journal, said of Garland's record, there are “no apparent land mines in his paper trail.”

All of this leads to a perception of collegiality between Garland and his fellow judges on the D.C. Circuit—a perception that is backed up by the numbers.

During his time on the court, Garland's colleagues have only dissented a handful of times in cases where he authored the primary opinion. Further, Garland himself has only penned 15 dissents since he joined the court. By comparison, conservative favorite Brett M. Kavanaugh, who has been on the court only since 2006, has dissented 17 times.

Hints Early at Views on Agency Discretion 

While the frequency of his dissents says a lot about Garland as a judge, so does the subject matter.

Back in 1985, Garland—then a partner in the Washington D.C. office of Arnold & Porter—wrote an article for the Harvard Law Review titled “Deregulation and Judicial Review,” 98 Harv. L. Rev. 507.

The focus of the article was the evolution of administrative law in response to increasing deregulation by government agencies.

Garland praised what he saw as the “emerging model” of administrative law for striking a balance between pure agency discretion—where almost all decisions are seen as reasonable as long as all competing interests are considered—and strict agency fidelity to congressional intent—which Garland said inevitably invites courts to substitute their own judgement for that of the agency.

And although the article acknowledged that too much discretion subjects agencies to the whims of an ever changing political power structure, Garland also wrote:

Under most of the statutory schemes considered in this Article, Congress plainly committed to agency discretion the choice of the best means of effectuating the statutory purpose. Adoption of a “best” policy requirement would all but guarantee substitution of the court's judgment for that of the agency, and the consequent removal from the agency of the discretion Congress intended to confer.


Perhaps appropriately—or fortuitously, depending on who one asks—Garland wound up on the D.C. Circuit, the court responsible for adjudicating the bulk of cases challenging administrative action.

Notably, in cases where Garland has felt the need to dissent, a third have involved challenges to agency decisionmaking, and in each one, Garland went against his colleagues and defended the agency's rule or holding.

Stands Up for SEC Rule 

One of these cases, Financial Planning Ass'n v. SEC, 482 F.3d 481, 75 U.S.L.W. 1601 (D.C. Cir. 2007), illustrates Garland's views on agency discretion when congressional intent is only identified “at a high level of generality.”

The case involved a challenge to a Securities and Exchange Commission rule exempting certain broker-dealers from requirements under the Investment Advisers Act.

While the majority found that the provision relied on by the agency as the basis for the rule unambiguously barred an exemption for any broker-dealers, Garland saw the situation as less than clear.

The majority concluded that “[t]he IAA's essential purpose was to ‘protect the public from the frauds and misrepresentations of unscrupulous tipsters and touts,' ” Garland said.

Given such a sweeping mandate, the SEC's reasoning behind the rule—including the fact that the exempted broker-dealers would still be regulated under the 1934 Securities Exchange Act—and its conclusion that the public would still be protected were reasonable, Garland said.

It wasn't that the majority's interpretation of the IAA wasn't plausible—it was. Rather, “when there are two reasonable interpretations of a statutory provision, a court must bow to the ‘interpretation made by the … agency,' ” he said.

EPA's ‘Haze Rule' Too 

A similar situation arose in American Corn Growers Ass'n v. EPA, 291 F.3d 1 (D.C. Cir. 2002), in which the D.C. Circuit invalidated an Environmental Protection Agency rule imposing air pollution controls on individual polluters based on the collective impact of emissions from a particular region.

The so-called Haze Rule was implemented in response to the Clean Air Act's goal of “restoring natural visibility in the country's largest national parks and wilderness areas,” Garland said.

Further, according to Garland, EPA determined that “it is not possible to trace emissions from an individual source directly to [] a downwind area without great time and expense—and even then the results would be of uncertain reliability.” Specifically, the National Academy of Sciences concluded that any program designed around such individual measurements would be “doomed to failure.”

But the majority said that EPA's approach was not supported by the language of the CAA.

Garland disagreed, backing the agency's play based in large part on its determination that the majority's interpretation of the statute would “prevent the achievement of Congress' goal.”

“We should not lightly assume that Congress enacted a statute that makes it impracticable to achieve the same statute's stated goal,” Garland said. The agency's method was a reasonable choice made to further Congress's goal of improving visibility in protected areas and therefore was entitled to deference, he concluded.

Refuses to Be Rubber Stamp 

Outside the realm of administrative law, the D.C. Circuit has, of course, been very active in cases related to the war on terrorism.

In particular, the court has been involved in a number of cases involving Guantanamo Bay detainees.

In Parhat v Gates, 532 F.3d 834, 77 U.S.L.W. 1029 (D.C. Cir. 2008), Garland authored the court's opinion, which invalidated the classification of Parhat, an ethnic Uighur from China being held at Guantanamo, as an enemy combatant because the government's evidence was deemed unreliable.

The court was reviewing a 2004 decision by Parhat's Combatant Status Review Tribunal, which determined that he had been “affiliated” with a Uighur independence group that in turn was “associated” with al Qaida and the Taliban.

The case marked the court's first use of its power to review CSRT decisions under the 2005 Detainee Treatment Act.

But, as Garland pointed out, the evidence presented by the government establishing these alleged relationships consisted almost entirely of hearsay produced by uncredited intelligence sources—including, as Parhat theorized, the Chinese government.

Joined by Chief Judge David B. Sentelle and Judge Thomas B. Griffith, Garland was quick to dismiss the government's argument that the statements were reliable “because the State and Defense Departments would not have put them in intelligence documents were that not the case.”

“This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned this court,” Garland said.

He also concluded that, “while the DTA does not expressly grant the court release authority, there is a strong argument … that it is implicit in our authority to determine whether the government has sustained its burden of proving that a detainee is an enemy combatant.”

However, Garland refused to take that added step unnecessarily, and instead he gave the government a choice of either releasing, transferring, or convening a new CSRT for Parhat, with the condition that the government present “the best record of Parhat's status as an enemy combatant that it is prepared to make.”

New Preemption Rule Overdoes It 

Garland again championed a minimalist approach in a case involving alleged abuses at Abu Ghraib military prison in Iraq. This time, however, Garland played the role of dissenter.

In Saleh v. Titan Corp., 580 F.3d 1, 78 U.S.L.W. 1157 (D.C. Cir. 2009), a group of Iraqi nationals brought suit against a pair of military contractors that had provided interrogation and translation services at the infamous prison, alleging that they suffered abuse at the hands of the companies' employees.

The majority held that the plaintiffs' state-law tort claims were preempted by federal law. Specifically, the court formulated the rule that:

During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor's engagement in such activities shall be preempted.


In his dissent, Garland reasoned that, where the government itself denied that the contractors in question fell within the military's chain of command, the majority's willingness to expand an area of “judge-made preemption” actually served to hamstring the executive branch by creating a roadblock to all civil litigation against government contractors involved in combat operations.

“[T]he court has removed an important tool from the Executive's foreign policy toolbox,” Garland said. “Even if the Executive believes that U.S. interests would be advanced by subjecting private contractors to tort liability under these circumstances, today's decision makes it impossible to accomplish that end absent congressional action.”

According to Garland, the more appropriate course would have been to rely on Congress to pass legislation that clearly protected private contractors in these types of situations.

Instead, the majority “created a vague and amorphous test and, in so doing, have invited precisely the kind of litigation they fear,” Garland concluded.




Mock Trial : Penetrating, Balanced Questions Seen as Hallmark of Garland's Style

Sources who spoke with BNA summed up the advice they would give attorneys preparing to argue a case in front of Judge Garland in two words: “Be prepared.”

He has read the cases you are relying on, attorneys who have had experience before Garland told BNA. If there is a potential hole in your argument he is going to find it, and you better be ready to explain the weakest part of your case.

Also, do not expect to catch a break just because your opponent missed something or ignored an argument in his briefs.

When you are preparing for oral argument you have to go beyond what your opponents have argued, sources said. You have to identify weaknesses in your case that the other side has missed, because they will not get by Garland.

But while his intellect may be a dominating force, his demeanor on the bench is reminiscent of retired Justice John Paul Stevens, often noted for his congeniality towards advocates.

Expect Garland to be both friendly and polite, sources told BNA. And while he may be a slightly more active questioner than Stevens—sources said another good comparison would be with Justice Elena Kagan, who in her first term on the court has already developed a reputation for asking insightful questions without being confrontational—he uses his questions to get to the root of the issue rather than trying to advocate for one side or sway his fellow judges.

Garland has an almost perfect judicial temperament, sources said, and both sides should be ready for penetrating questions when he is on the panel.

That impartiality became clear as sources related specific stories about cases they argued before Garland.

In situations where you might expect an appointee of a Democratic president to be reflexively hostile to particular arguments or legal theories, Garland carried zero ideological baggage with him to court, attorneys said.

As fair-minded as any federal judge on the bench today, Garland analyzes cases straight up and gives you a straight answer, sources said. He's a lawyer's lawyer.

And swaying Garland to your side may give you a leg up with other judges as well. Despite the D.C. Circuit's reputation for being decidedly nonpolitical—it is said the judges rarely discuss cases one-on-one, but rather exchange e-mails with all the panel members simultaneously—sources told BNA that Garland seems universally well-liked and most likely carries sway with his colleagues.

Additionally, that influence probably comes easily given the D.C. Circuit's heavy administrative caseload and Garland's prowess in that area.

Administrative law is the one topic where you can never catch him off base, sources said. He knows the area inside and out and is quite good at it, they added.


Garland's Broad Experience:

• Born: November 13, 1952

• Nominated by: William J. Clinton, 1997

• Law School: Harvard Law School, magna cum laude, 1977

• Clerkship: Judge Henry J. Friendly, Second Circuit, 1977–1978; Justice William J. Brennan Jr., U.S. Supreme Court, 1978–1979

• Legal Career: Special assistant to the U.S. attorney general, 1979–1981; Arnold & Porter LLP, 1981–1989, 1992–1993; Assistant U.S. attorney for the District of Columbia, 1989–1992; Deputy assistant U.S. attorney general, 1993–1994; Principal associate deputy U.S. attorney general, 1994–1997, where he supervised both the Oklahoma City bombing and Unabomber prosecutions

• Garland has taught antitrust law at his alma matter, as well as co-chaired the administrative law section of the D.C. Bar





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