On September 18, 2026, the Department of Justice (“DOJ”) announced revisions to the Justice Manual impacting False Claims Act (“FCA”) enforcement. The revisions reinstate the first Trump Administration’s policy limiting the use of sub-regulatory guidance to impose legal obligations beyond those established by law or regulation. The revisions also address the government’s authority to dismiss qui tam cases, and consistent with prior statements by DOJ officials, direct DOJ attorneys to consider dismissal throughout the duration of a case, beginning at the time of declination. These changes reinforce important limits on the use of the FCA by DOJ and relators, and clients should keep these changes in mind when facing potential FCA liability.
The revisions to the Justice Manual set forth limitations on DOJ’s issuance and use of agency guidance documents in litigation. The limitations closely mirror those set forth during the first Trump Administration in a series of memos issued by then-Attorney General Jeff Sessions and Associate Attorney General Rachel Brand, and subsequent updates to the Justice Manual. The current revisions effectively collect these prior policies in one place.
With respect to the use of agency guidance in litigation, the Justice Manual now provides that “[t]he Department must establish a violation by reference to statutes and regulations” and that “[t]he Department may not bring actions based solely on allegations of noncompliance with guidance documents.” This understanding comports not only with the prior Trump administration’s view that guidance documents do not by themselves create binding legal obligations, but also with the Biden-era articulation of the role of guidance documents in enforcement actions. However, a key difference between the current revisions and the Biden-era language they replaced is that DOJ attorneys are no longer expressly permitted to argue that guidance documents are entitled to deference in assessing a defendant’s legal obligations.
Like the prior Trump administration policy, the current revisions to the Justice Manual explicitly permit the use of guidance documents for purposes other than creating binding legal requirements. The revisions identify a non-exhaustive list of potential uses for such documents, including to establish notice or knowledge, failure to satisfy industry practice, or liability where an entity falsely certifies compliance with agency guidance. The current revisions make clear, however, that these uses do not impart to the guidance documents the force of law. Thus, for example, while the new provisions expressly permit the government to rely on CMS’s Medicare Benefits Policy Manual to establish the lack of medical necessity, they caution that the applicable standard of care can be contested or rebutted through other forms of evidence.
While DOJ announced the new changes limiting the use of guidance documents as a measure to enhance the “fair and effective” enforcement of the FCA, these changes are not limited to the FCA and broadly apply to DOJ’s criminal and civil enforcement actions. Significantly for federal contractors, these express limitations on the use of sub-regulatory guidance come at the same time as Revolutionary FAR Overhaul efforts to remove certain language from the codified FAR into non-regulatory resources. To the extent DOJ seeks to rely on any such non-regulatory resources as the basis for any enforcement activity, contractors may have an argument that such activity conflicts with the new limitations on sub-regulatory guidance.
DOJ also announced revisions to the Justice Manual provision discussing DOJ’s authority to dismiss qui tam actions. These revisions include a requirement that DOJ attorneys consider whether to exercise the government’s dismissal authority at the same time a decision is made to decline a qui tam action, directing attorneys to consider “whether the government’s interests are served by seeking dismissal.” If a qui tam action is not dismissed at the declination stage, DOJ attorneys are expressly authorized to re-evaluate dismissal as the litigation progresses. These requirements closely track and confirm the dismissal policy announced by Deputy Assistant Attorney General Brenna Jenny earlier this year about when DOJ attorneys should evaluate whether to exercise the government’s right to dismiss.
The new changes to the Justice Manual also expand when a qui tam action may be considered to lack merit and thus warrant dismissal. Previously, the Justice Manual provided that a qui tam action could be dismissed as meritless if it “facially lack[ed] merit (either because the relator’s legal theory is inherently defective, or the relator’s factual allegations are frivolous).” This limiting language has now been removed, thereby allowing DOJ attorneys greater flexibility to consider whether a case lacks legal or factual merit. Combined with the right of DOJ attorneys to consider dismissal of a qui tam action throughout the course of litigation, the expanded definition of when an action lacks merit provides enhanced opportunities for defendants to persuade the government to revisit an initial decision not to dismiss. In particular, defendants should evaluate opportunities to use information obtained in discovery as a means for supporting a renewed request to dismiss.
While the foregoing changes to the Justice Manual’s dismissal provision are positive signs that DOJ may be more active when it comes to dismissing qui tam actions, DOJ also offered several cautionary notes. In the press release announcing the changes to the dismissal provision, DOJ stated that it “will continue to exercise [its dismissal] authority judiciously.” The press release also stated that DOJ will emphasize the dismissal of qui tam actions that “lack legal or factual merit,” suggesting that the DOJ may be less willing than in the past to consider arguments about burden on the government. Finally, in the Justice Manual itself, DOJ added the caveat that “[d]ismissal will not be warranted in every declined case, because to maximize its resources the government often will investigate a qui tam action only to the point where it concludes a declination is warranted, which may not equate to the conclusion that a qui tam is meritless.” On balance, however, we view the recent changes as signaling a greater willingness than in the past for DOJ to consider dismissal to allow Department resources to focus on matters that advance the interests of the United States.
While the Justice Manual provisions themselves do not confer rights on third parties, these changes may offer FCA defendants additional policy-based arguments to challenge government theories of liability based on noncompliance with agency guidance or to seek dismissal of qui tam actions. If you have any questions concerning the matters discussed in this client alert, please contact members of the firm’s False Claims Act Litigation and Investigations practice.
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