On January 25, 2018, DOJ issued a Memorandum stating that “effective immediately for [affirmative civil enforcement (ACE)] cases, the Department may not use its enforcement authority to effectively convert agency guidance documents into binding rules.” Further, DOJ litigators are prevented from using “noncompliance with guidance documents as a basis for proving violations of applicable law in ACE cases.” This new policy may have particular significance for False Claims Act cases.
The Memorandum comes on the heels of the Guidance Policy issued by Attorney General Sessions on November 16, 2017. The Guidance Policy prohibits DOJ components from issuing guidance documents that bind the public and have not undergone the notice-and-comment rulemaking process. Accordingly, DOJ cannot use its guidance documents to force parties to engage in or refrain from taking any action beyond what is required by statute or regulation. The Memorandum extends the principles articulated in the Guidance Policy to “guide Department litigators in determining the legal relevance of other agencies’ guidance documents in [ACE cases].”
According to the Memorandum, DOJ may continue to look to agency guidance documents “for proper purposes,” such as explanations related to certain legal mandates. DOJ may also take into consideration whether the regulated party had read agency guidance “to help prove that the party had the requisite knowledge of the mandate.” However, DOJ should not treat a regulated party’s failure to comply with agency guidance as a violation of its underlying legal requirements. In other words, “agency guidance documents cannot create any additional legal obligations.”
