Earlier this summer, Attorney General Merrick Garland rescinded the Brand Memorandum, which directed Department of Justice attorneys not to rely on sub-regulatory agency guidance to bring False Claims Act cases and other enforcement actions. Framing this move as a return to pre-Trump Administration norms, this new “Garland Memo” criticizes the Brand Memo as “overly restrictive” and a “substantial” departure from DOJ’s “traditional approach” to guidance documents. The Garland Memo also announces planned revisions to the Justice Manual to align with the Department’s new policy. Although the Garland Memo notes that sub-regulatory guidance is not itself law, it imposes few meaningful limitations on how and when DOJ attorneys litigating FCA actions may rely on such guidance. If past is prologue, non-binding agency guidance will once again take center stage in FCA enforcement actions across a range of regulated industries.
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