DOJ Revises Select Policies Concerning False Claims Act Enforcement: Updates on Use of Guidance and Exercise of Dismissal Authority

On September 18, 2026, the Department of Justice (DOJ) issued a press release announcing two revisions to the Justice Manual—which publicly sets forth internal DOJ policies and procedures—concerning False Claims Act (FCA) enforcement. The revisions address sections of the Manual related to (1) the limits on the use of sub-regulatory guidance in cases brought by the Department, and (2) when the Department will seek dismissal of qui tam actions that do not serve the interests of the United States under 31 U.S.C. § 3730(c)(2)(A). The first change marks a reversion to a prior DOJ position, and the second entails modest revisions to existing policy.

Reliance on Sub-Regulatory Guidance in Department Litigation

Relevant Background

A DOJ policy limiting the use of sub-regulatory guidance in affirmative civil enforcement was first issued by Rachel Brand, then Associate Attorney General, in January 2018 (the “Brand Memo”). The Brand Memo established that DOJ may not use its enforcement authority to effectively convert agency guidance documents into binding requirements. It prohibited DOJ from pursuing civil enforcement cases based solely on noncompliance with guidance documents. The Brand Memo did, however, permit the use of guidance documents for certain evidentiary purposes, for instance, to help prove that a party had the requisite knowledge of a legal mandate.

In July 2021, Attorney General Merrick Garland rescinded the Brand Memo, finding that the policies it articulated were “overly restrictive” and had “discouraged the development of valuable guidance” and “hampered Department attorneys when litigating cases where there is relevant agency guidance.”

In February 2025, DOJ rescinded the Garland memo. But, until now, had not replaced that memo with guidance of its own.

Current DOJ Position on the Use of Sub-Regulatory Guidance in Litigation

The recent revisions to the Justice Manual largely reinstate the 2018 Brand Memo’s prohibition on relying on nonbinding guidance to establish civil liability. These revisions further extend the application of this policy to criminal enforcement actions.

The Justice Manual now identifies several permissible uses of agency guidance documents in litigation, including using guidance to establish:

• Scienter or mens rea evidence;
• Professional or industry standards;
• Scientific or technical processes;
• A party’s compliance with guidance; and
• Legal or factual context in briefs or other filings.¹

For example, in an FCA case, DOJ could introduce evidence that a party read an agency guidance document to help establish that the party had the requisite knowledge of a legal requirement, without relying on noncompliance with the guidance as proof of a violation. This approach is consistent with the Brand Memo’s original framework, which drew a distinction between using guidance as a basis for establishing liability (which was not permitted) and using guidance to prove knowledge (which was permitted).

Given the FCA’s scienter requirement and the permissible use of guidance documents to establish scienter, nonbinding agency guidance is likely to continue to play a significant role in FCA litigation notwithstanding these revisions to the Justice Manual.

Section 3730(c)(2)(A) Dismissals of Qui Tam Actions

Background

In January 2018, DOJ’s Commercial Litigation Branch Fraud Section, issued a memorandum identifying seven factors for evaluating dismissal of qui tam actions pursuant to 31 U.S.C. § 3730(c)(2)(A):

• curbing meritless qui tams;
• preventing parasitic or opportunistic qui tam actions;
• preventing interference with agency policies and programs;
• controlling litigation brought on behalf of the United States;
• safeguarding classified information and national security interests;
• preserving government resources; and
• addressing egregious procedural errors.

This framework was subsequently codified in the Justice Manual, and the provision has been modestly updated since its initial codification.

In June 2023, the Supreme Court decided United States, ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023), resolving a Circuit split concerning how courts should review government motions to dismiss a qui tam action under Section 3730(c)(2)(A). In Polansky, the Court held the government could file such a motion whenever it has intervened, whether during the seal period or later on. It further concluded that, when assessing a motion to dismiss under subsection (c)(2)(A), a district court should apply Federal Rule of Civil Procedure 41(a), the rule generally governing voluntary dismissal of suits in ordinary civil litigation.

Recent Developments

In remarks earlier this year, Deputy Assistant Attorney General Brenna Jenny stated that DOJ “is not reluctant to exercise its authority to dismiss” FCA cases under Section 3730(c)(2)(A) and is “committed to doing so where cases are proven to be meritless or inconsistent with current law and where the allegedly defrauded agency does not support the case.”

On April 2, 2026, Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, sent a letter to Assistant Attorney General Brett Shumate raising concerns about the Department’s use of its dismissal authority and requesting detailed information about qui tam dismissals. In the letter, Grassley noted that DOJ dismissed approximately 25 qui tam cases pursuant to § 3730(c)(2)(A) in 2025 alone, a significant increase from an average of approximately six per year under the prior administration. Grassley expressed concern that the Department could be “emboldened by Polansky,” “potentially dismissing FCA cases for reasons unrelated to the merits.”

Current Revisions to the Justice Manual

The recent changes to the Justice Manual concerning DOJ’s exercise of its dismissal authority are modest—the seven factors for evaluating dismissal from DOJ’s 2018 articulation of the policy, in large part, remain substantively the same.

The revised Justice Manual, however, now provides more specificity about when DOJ will evaluate dismissal. The prior version of this section of the Manual stated that when evaluating a recommendation to decline intervention, attorneys “should also consider” whether the government’s interests are served by seeking dismissal under § 3730(c)(2)(A). The newly revised version states that attorneys “will in each case assess” whether dismissal is warranted at the point of declination. Additionally, the Justice Manual now also includes language providing that even where the Department concludes at the time of declination that dismissal is not warranted, “the Department may re-evaluate whether dismissal becomes appropriate as the litigation progresses.”

Conclusion

The reinstatement of the Brand Memo reinforces DOJ’s commitment to limitations on sub-regulatory guidance. Revisions to the qui tam dismissal provision signal a modest change on the use of the government’s dismissal authority under § 3730(c)(2)(A) with the shift from permissive to mandatory evaluation language and the reiteration that dismissal may be re-evaluated over time. But only time will tell how willing DOJ will be to continue robustly exercising this authority.

We will continue to monitor developments in DOJ’s policy regarding FCA actions. For more information about these updates to the Justice Manual and the implications for your FCA matters, please contact your usual contact on the Ropes & Gray litigation and enforcement team or any member of our Chambers Band 1-ranked FCA practice.