On September 18, 2026, the Department of Justice (DOJ) announced changes to the Justice Manual, formalizing two key shifts in False Claims Act (FCA) enforcement. These updates limit the use of agency guidance in establishing liability and expand the DOJ’s dismissal authority, aligning with the agency’s ongoing efforts to streamline FCA enforcement and ensure fair notice and transparency.
The first change reinforces that alleged noncompliance with nonbinding agency guidance documents cannot establish civil FCA liability. This revises a previous policy from the Trump administration, known as the Brand Memo, issued in 2018, which prohibited the use of enforcement authority to convert agency guidance into binding rules. The Brand Memo was later rescinded under Attorney General Garland, but the current revisions mark a return to its core principles, with enhancements to clarify the role of guidance in enforcement and litigation.
Revised Policy on Agency Guidance
The updated Justice Manual § 1-19.000 clarifies that guidance documents lack legal force, cannot create binding obligations, and must include disclaimers, reiterating the need to avoid coercive language. However, DOJ attorneys may still use guidance to establish elements like scienter, notice, industry standards, and compliance-related representations. This balanced approach ensures that guidance remains a relevant tool in enforcement while preventing its misuse as a basis for liability.
For instance, while noncompliance with a Special Fraud Alert cannot support an FCA claim, such a document may still be relevant to the scienter analysis if the defendant was aware of it. This distinction shows the DOJ’s commitment to using guidance appropriately, without overstepping its legal boundaries.
Expanded Dismissal Authority
The second change, under Justice Manual § 4-4.111, mandates that DOJ attorneys consider dismissal when deciding whether to decline intervention in a qui tam action. This replaces previous, more permissive language and allows the DOJ to re-evaluate dismissal during ongoing litigation, reflecting the agency’s increased focus on efficient case management. The revisions also formalize the DOJ’s approach to exercising its (c)(2)(A) dismissal authority, characterizing it as “sparingly, but not reluctantly,” and emphasize the agency’s commitment to fair notice, transparent enforcement, and the rule of law.
These revisions align with statements made by Deputy Assistant Attorney General Brenna Jenny at the 2026 Qui Tam Conference, where she noted the DOJ sought dismissal in 25 cases in 2025 and would consider dismissal in every case moving forward. This shift is part of a broader trend toward more proactive dismissal considerations, as evidenced by the DOJ’s recent initiatives, including the FOCUS Initiative and a 120-day review requirement for certain qui tam complaints.
Implications for FCA Defendants
FCA defendants may have stronger grounds to challenge enforcement theories that rely solely on agency guidance rather than an underlying statutory, regulatory, or contractual requirement. However, the DOJ may still use guidance as evidence of notice, scienter, and other relevant facts, ensuring that guidance remains a valuable tool in establishing liability where appropriate.
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