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.
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Client Alert | 5 min read | 12.12.25
Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality
On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument.
Client Alert | 8 min read | 12.11.25
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Client Alert | 8 min read | 12.10.25
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Federal Court Strikes Down Interior Order Suspending Wind Energy Development
