The U.S. Department of Justice (DOJ) has changed its policy to limit the use of agency guidance documents in affirmative civil enforcement (ACE) cases, which are DOJ lawsuits “to recover government money lost to fraud or other misconduct or to impose penalties for violations of Federal health, safety, civil rights or environmental laws.” The change was announced in a January 25, 2018 memorandum issued by DOJ’s Associate Attorney General (AAG), Rachel Brand. As a result of the new policy, government lawyers will no longer be able to rely on guidance documents, or noncompliance with guidance documents, to establish legal violations. In announcing the new policy, AAG Rachel Brand, noted that “this policy helps restore the appropriate role of guidance documents and avoids rulemaking by enforcement.” 

The DOJ memorandum references a November 16, 2017 memorandum (Guidance Policy) issued by Attorney General Jeff Sessions concerning guidance documents issued by DOJ. The Guidance Policy lays out several principles for issuing DOJ guidance documents, one of which is: “Guidance documents should not be used for the purpose of coercing persons or entities outside of the federal government into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or regulation.” Referencing the Administrative Procedures Act, the Guidance Policy explains that agency guidance should not be used as a substitute for notice-and-comment rulemaking. Thus, the new principles aim to prevent the creation of de facto regulations that circumvent the rulemaking process. 

Noting that the Guidance Policy principles are relevant to more than just DOJ, the January 2018 memorandum explains that a party’s noncompliance with an agency guidance document should not establish that the party violated the applicable statute or regulations. “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; agency guidance documents cannot create any additional legal obligations.”