On January 25, 2018, Associate Attorney General Rachel Brand issued a memo on behalf of the U.S. Department of Justice (DOJ) prohibiting certain DOJ uses of federal agency guidance documents in affirmative civil enforcement (ACE) cases (the “Brand Memo”). ACE cases include lawsuits brought by the DOJ on behalf of the United States to recover money lost to fraud or other misconduct, or to impose penalties for violations of Federal health, safety, civil rights or environmental laws, for example, False Claims Act enforcement by the DOJ.
The “Brand Memo” cited to guidance policy in a November 16, 2017 memo issued by the U.S. Attorney General, which prohibited the DOJ from issuing its own guidance documents that would effectively bind the public without undergoing notice-and-comment rulemaking. The Brand Memo explained that the principles from that earlier-issued policy were relevant to more than just the DOJ’s own guidance documents — in particular, with regard to ACE cases:
Continue Reading “Brand Memo” from the U.S. Department of Justice: Reading Between the Lines