On January 25, 2018, the United States Associate Attorney General issued a memorandum for heads of civil litigating components and United States Attorneys limiting the use “guidance documents.” Guidance documents are defined as “any agency statement of general applicability and future effect … that is designed to advise parties outside the federal Executive Branch about legal rights and obligations.” Importantly, the January 25, 2018 memorandum limits DOJ attorneys in using such guidance documents in affirmative civil enforcement (ACE) cases, such as False Claims Act actions. As the memorandum explains, “that a party fails to comply with agency guidance expanding upon statutory or regulatory requirements does not mean that the party violated those underlying legal requirements.”

This January 25, 2018 memorandum was intended to further address the November 16, 2017 memorandum issued by the Attorney General regarding its Guidance Policy, which prohibits government agencies from issuing guidance documents that effectively bind the public without undergoing the notice-and-comment rulemaking process. Under the Guidance Policy, the DOJ may not use guidance documents to determine compliance with existing statutory or regulatory requirements. Commensurate with the Guidance Policy, in the January 25, 2018 memorandum, the DOJ stated that: (1) guidance documents from other agencies cannot create binding requirements that do not already exist by statute or regulation; (2) effective immediately, the DOJ may not use its enforcement authority to effectively convert agency guidance documents into binding rules; and (3) DOJ litigators may not use noncompliance with guidance documents as a basis for proving violations of applicable law in ACE cases. The memorandum further directs that 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.

By its terms, the memorandum applies only to current and future ACE actions brought by the DOJ.