On January 25, 2018, Associate Attorney General Rachel Brand issued a memo on behalf of the U.S. Department of Justice (DOJ) prohibiting certain DOJ uses of federal agency guidance documents in affirmative civil enforcement (ACE) cases (the “Brand Memo”). ACE cases include lawsuits brought by the DOJ on behalf of the United States to recover money lost to fraud or other misconduct, or to impose penalties for violations of Federal health, safety, civil rights or environmental laws, for example, False Claims Act enforcement by the DOJ.

The “Brand Memo” cited to guidance policy in a November 16, 2017 memo issued by the U.S. Attorney General, which prohibited the DOJ from issuing its own guidance documents that would effectively bind the public without undergoing notice-and-comment rulemaking.  The Brand Memo explained that the principles from that earlier-issued policy were relevant to more than just the DOJ’s own guidance documents — in particular, with regard to ACE cases:

• the DOJ is now prohibited from using its enforcement authority to effectively convert agency guidance documents into binding rules; and
• DOJ litigators may not use noncompliance with agency guidance documents as a basis for proving violations of applicable law in these cases.

What should not be ignored is that the Brand Memo emphasized that the DOJ can continue to use agency guidance documents in ACE cases for “proper purposes.”  The Brand Memo clarified that while the DOJ “should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation,” it can still use agency guidance for certain other purposes (emphasis added).

According to the Brand Memo, where a guidance document explains legal mandates from existing statutes or regulations (or paraphrases them), and there is evidence a party read the document, the DOJ can use that as evidence to help prove requisite knowledge of the mandate.  What the agency documents cannot do is create “additional legal obligations.”  The Brand Memo did not elaborate on how to distinguish whether a guidance document merely explains or paraphrases legal mandates on the one hand, as opposed to creating additional legal obligations on the other.

The Brand Memo applies only to future ACE actions brought by the DOJ, as well as, wherever “practicable,” those matters pending as of the date the memorandum was issued.  There was no guidance provided regarding what would be considered “practicable” in terms of applying the Brand Memo to pending cases. The Brand Memo closed with a disclaimer that the memorandum was internal DOJ policy and that, as such, cannot be used to create rights (substantive or procedural) enforceable at law by any party in a criminal or civil matter.

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