Featured Expert Contributor, White Collar Crime & Corporate Compliance

Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with William E. Moschella, a Shareholder in the firm’s Washington, DC office.

Back in November 2017, then Attorney General Jeff Sessions issued a memorandum entitled “Prohibition on Improper Guidance Documents.”  This Sessions Memo included guidance concerning DOJ’s issuance of guidance that has not gone through the formal rulemaking process.  The Sessions Memo essentially provided that DOJ components may not use guidance documents to create legally binding requirements.  The point was to prohibit agencies from, in effect, creating de facto regulations outside of the formal rulemaking process.

Subsequently, in January 2018, then Associate Attorney General Rachel Brand issued a memorandum acknowledging the Sessions Memo as a “Guidance Policy,” and more specifically directing that Department litigators follow this Guidance Policy in determining the legal relevance of both DOJ and other agencies’ guidance documents in affirmative civil enforcement matters.

Fast-forward about one year from the date of the Brand Memo, and we see that DOJ has now updated its Justice Manual (formerly known as the U.S. Attorneys’ Manual) to formalize the policy pronouncements contained in both the Sessions and Brand memos. The updated Justice Manual now has a new section, 1-20.000, entitled “Limitation on Use of Guidance Documents in Litigation.”

This new section basically reiterates the guidance provided by the Brand Memo, but also clearly makes it applicable to both civil and criminal enforcement actions by DOJ components:

Criminal and civil enforcement actions brought by the Department must be based on violations of applicable legal requirements, not mere noncompliance with guidance documents issued by federal agencies, because guidance documents cannot by themselves create binding requirements that do not already exist by statute or regulation.

Justice Manual, § 1-20.100.

The new Justice Manual sections go on to offer several “specific, but not exhaustive, illustrations” of how DOJ litigators can properly use agency guidance documents.  First, the Justice Manual allows litigators to use awareness of a guidance document as evidence that a party had the requisite scienter, notice, or knowledge of the law, or to establish the required mens rea.  Second, DOJ may use a guidance document as evidence that a party satisfied, or failed to satisfy, professional or industry standards or practices.  Third, DOJ may use agency guidance to establish the existence of a duty and/or a breach of that duty.  Fourth, DOJ may cite and use an agency guidance document that reflects a scientific or technical process at issue.  Finally, DOJ may cite to a guidance document where a party’s compliance, or failure to comply, with the agency guidance is itself relevant to the claims at issue.  See Justice Manual at § 1-20.200 et seq.

While the devil will remain in the details as this new Justice Manual section is applied in real-life enforcement actions, DOJ’s recent confirmation that agency guidance is not “law” is a welcome step in the right direction toward strict adherence to well-established administrative-law and separation-of-powers principles.