On September 18, 2026, the Department of Justice (DOJ) issued a press release announcing two revisions to the Justice Manual—which publicly sets forth internal DOJ policies and procedures—concerning False Claims Act (FCA) enforcement. The revisions address sections of the Manual related to (1) the limits on the use of sub-regulatory guidance in cases brought by the Department, and (2) when the Department will seek dismissal of qui tam actions that do not serve the interests of the United States under 31 U.S.C. § 3730(c)(2)(A). The first change marks a reversion to a prior DOJ position, and the second entails modest revisions to existing policy.
Relevant Background
A DOJ policy limiting the use of sub-regulatory guidance in affirmative civil enforcement was first issued by Rachel Brand, then Associate Attorney General, in January 2018 (the “Brand Memo”). The Brand Memo established that DOJ may not use its enforcement authority to effectively convert agency guidance documents into binding requirements. It prohibited DOJ from pursuing civil enforcement cases based solely on noncompliance with guidance documents. The Brand Memo did, however, permit the use of guidance documents for certain evidentiary purposes, for instance, to help prove that a party had the requisite knowledge of a legal mandate.
In July 2021, Attorney General Merrick Garland rescinded the Brand Memo, finding that the policies it articulated were “...
Earlier this month, in United States ex rel. Zafirov v. Florida Medical Associates, Inc., the Eleventh Circuit joined four other circuits in holding that the qui tam provisions of the False Claims ...