“Brand Memo” Prohibits US DOJ From Converting Agency Guidance Into Binding Legal Obligations In Civil Enforcement Actions
On January 25, 2018, Associate Attorney General Rachel Brand issued a memorandum limiting the use of agency guidance documents in affirmative civil enforcement cases. When DOJ issues a guidance document with voluntary standards, it must also contain a statement that noncompliance is not subject to future DOJ enforcement actions. Essentially the policy will prohibit agencies from making an end run around notice and comment rulemaking by simply issuing guidance memoranda to create “de facto regulations.”
Ultimately, the Brand Memo puts government contractors in a better position when negotiating and defending False Claims Act cases where they are accused of violating a Government policy as part of a so-called “conspiracy” to defraud the U.S. Government.
