The Challenge
On September 18, 2026, the Department of Justice (DOJ) announced a policy shift impacting False Claims Act enforcement. The revised Justice Manual now limits how the DOJ can use agency guidance in civil enforcement actions. For your compliance team, this isn't just a procedural update. It raises a crucial question: Which parts of your compliance program are built on binding legal requirements, and which rest on non-binding guidance that the DOJ can no longer treat as law?
The policy specifies that enforcement actions must be based on actual legal violations, not noncompliance with guidance documents. However, guidance isn't entirely out of the picture. The DOJ can still use it as evidence in three ways: to show a party knew about the underlying law, to establish industry standards, or to prove falsity when someone certifies compliance with guidance they didn't follow.
This nuance presents a challenge. Compliance programs often don't distinguish between "this is the law" and "this is what the agency thinks the law means." Training modules cite regulatory guidance alongside statutes. Policies reference agency interpretations without flagging them as non-binding. When enforcement approaches shift, those programs don't automatically recalibrate.
The Environment and Constraints
This policy revision is the third in a decade. In 2018, the Brand Memo prohibited the DOJ from treating guidance as binding or using noncompliance with guidance to prove legal violations. In 2021, Attorney General Garland rescinded that policy, allowing the DOJ to use guidance "in any appropriate and lawful circumstances." Now, the Justice Manual reinstates and builds on the Brand approach.
For your compliance team, this oscillation means you can't assume today's policy will hold. A compliance framework that works under one administration's enforcement philosophy may leave gaps under the next. You're building programs in an environment where the relationship between guidance and enforcement keeps changing, but the underlying legal obligations don't.
Another practical constraint is that guidance documents often provide the clearest explanation of what regulators expect. A statute might set a broad standard; the guidance tells you how the agency interprets that standard in practice. Ignoring guidance because it's non-binding would leave your team operating in a vacuum. Following it without distinguishing it from law creates vulnerability when enforcement theories shift.
The Approach Taken
The revised Justice Manual doesn't eliminate the compliance value of guidance. It reframes how you should treat it. Here's what that looks like in practice:
Separate legal obligations from interpretive guidance in your training. When teaching employees about regulatory requirements, mark the distinction. "The statute requires X. The agency's guidance interprets that to mean Y." This clarity helps your team understand what's enforceable and what's advisory.
Document your rationale when you follow guidance. If your organization adopts practices based on agency guidance, record why. Are you following it because you believe it reflects the correct interpretation of the law? Because it represents industry standard practice? Because it's the most practical way to meet your legal obligation? This documentation becomes evidence of good faith if the DOJ later questions your approach.
Review your certification and attestation language. The Justice Manual notes that falsely certifying compliance with guidance can establish FCA liability. If your organization certifies compliance with guidance documents, ensure those certifications are accurate and that you have systems to verify compliance before someone signs.
Track which guidance carries interpretive weight. Not all guidance is created equal. Some documents represent an agency's formal interpretation of its own regulations and may be entitled to deference. Others are informal FAQs or advisory letters. Your compliance program should reflect those distinctions, especially in high-risk areas where FCA exposure is significant.
Results and Metrics
The practical impact of this policy shift isn't measured in compliance program redesigns. It shows up in enforcement conversations. Parties facing FCA investigations now have new leverage when the DOJ's theory relies heavily on guidance rather than binding legal text. In declined qui tam cases or investigations involving novel theories, the revised policy creates opportunities to challenge enforcement approaches that treat guidance as law.
For organizations not currently under investigation, the value is preventive. A compliance program that clearly distinguishes legal mandates from agency interpretations is more defensible if enforcement theories change. When your training materials, policies, and certification processes reflect that distinction, you're building a record that demonstrates your organization focused on actual legal obligations, not just regulatory preferences.
What You Would Do Differently
The policy revisions highlight a gap in how many compliance programs are structured. Too often, compliance teams treat all regulatory materials as equally binding. A Federal Register notice, an agency guidance document, and a statute all get cited the same way in training slides. That approach worked when the DOJ's enforcement posture treated guidance as persuasive across the board. It's riskier now.
If you're revisiting your approach, focus on three areas:
Risk assessment frameworks that account for guidance volatility. When evaluating FCA exposure, consider whether your compliance approach rests on stable legal requirements or on guidance that could be reinterpreted or withdrawn. This doesn't mean ignoring guidance, but understanding which parts of your program are built on shifting ground.
Training that teaches employees how to read regulatory materials. Your team needs to understand the difference between a regulatory requirement and an agency's interpretation of that requirement. This isn't a legal nuance; it's a practical skill that helps them make better decisions when guidance is unclear or contradictory.
Engagement strategies for novel enforcement theories. The revised Justice Manual creates new opportunities to escalate concerns when line attorneys or relators rely on guidance in ways that seem inconsistent with DOJ policy. Know when and how to engage DOJ leadership on those issues.
Takeaways for Your Team
The Justice Manual revisions don't diminish the importance of agency guidance. They clarify its role. Guidance remains critical for understanding regulatory expectations, establishing industry standards, and demonstrating good faith. But it's not law, and your compliance program should reflect that distinction.
Start by auditing how your organization currently uses guidance. Where do your policies cite guidance as if it were binding? Where do your training materials conflate guidance with legal requirements? Where do your certifications reference compliance with guidance documents? These are the pressure points where this policy shift matters most.
Then build systems that maintain the distinction going forward. When new guidance comes out, document whether you're adopting it and why. When you train employees on regulatory requirements, explain which parts are law and which parts are interpretation. When you certify compliance, make sure you can back up every statement with evidence.
The goal isn't to ignore guidance. It's to use it strategically, with clear eyes about what it is and isn't. In an enforcement environment where the rules keep changing, that clarity is your best defense.
