Rising Importance of Sub-Regulatory Guidance in False Claims Act Cases
On July 1, Attorney General Merrick Garland rescinded the Brand Memorandum and the Sessions Memorandum, which directed DOJ attorneys to refrain from using agency guidance to bring enforcement cases such as False Claims Act cases. In the Garland Memorandum, he acknowledged that under current law, DOJ cannot seek to enforce violations of non-promulgated agency guidance.
Garland recited that in the enforcement context, “an agency guidance document by itself ‘never forms ‘the basis for an enforcement action’’ because such documents cannot ‘impose any ‘legal binding requirements’ on private parties,’” quoting Kisor v. Wilkie. The new Garland Memorandum recognizes that by “definition, guidance documents ‘do not have the force and effect of law,’” quoting Perez v. Mortgage Bankers Ass’n (quoting Shalala v. Guernsey Mem’l Hosp.). Despite this acknowledgement of Supreme Court precedent, Attorney General Garland signaled the future of this change of direction and indicated that DOJ attorneys “are free to cite or rely” on guidance documents “[t]o the extent guidance documents are relevant to claims or defenses in litigation” (Garland Memorandum, p. 3).
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