DOJ Memo Limits the Use of Agency Guidance in FCA Enforcement
Client Alert | 1 min read | 02.22.18
A recent memorandum issued by Associate Attorney General Rachel Brand (Brand Memo) prevents Department of Justice (DOJ) civil litigators from relying on agency guidance documents to demonstrate violations of the False Claims Act (FCA). Specifically, the Brand Memo prohibits using noncompliance with agency guidance documents to presumptively or conclusively establish violation of the underlying law or regulation. The Brand Memo references an earlier memorandum issued by Attorney General Jeff Sessions (Sessions Memo) that prohibits DOJ agencies from creating binding standards in guidance documents without engaging in notice-and-comment rulemaking. The Brand Memo reiterates the core premise of the Sessions Memo – that guidance documents cannot create legal obligations. It also expands on the Sessions Memo by directing DOJ litigators to apply that premise when interpreting other agencies’ guidance documents in civil enforcement actions. While DOJ litigators may continue using agency guidance for “proper purposes,” such as to establish that a party had the requisite knowledge of a legal mandate because the party was familiar with a guidance document that explained it, this new policy represents a distinct limitation on the use of agency guidance in FCA enforcement.
Contacts
Insights
Client Alert | 4 min read | 09.12.25
SBA’s OHA Further Defines Extraordinary Action in SDVOSB Appeal
On September 4, 2025, the Small Business Administration’s (SBA) Office of Hearings and Appeals (OHA) granted an appeal challenging SBA’s determination that a service-disabled veteran did not control an entity applying for Service-Disabled Veteran-Owned Small Business (SDVOSB) status based on a minority owner’s ability to block certain actions in the matter of VSBC Appeal of: Blue Skye Foods, LLC, SBA No. VSBC-442-A.
Client Alert | 6 min read | 09.11.25
U.S. Department of Commerce Partially Relaxes Export Controls on Syria
Client Alert | 9 min read | 09.11.25
Client Alert | 1 min read | 09.10.25