DOJ Issues Memorandum Precluding Reliance On Agency Guidance In Enforcement Cases

Dianne R Phllips is a Partner in Holland & Knight's Boston office.

On Jan. 25, 2018, the Associate Attorney General issued a memorandum limiting use of agency guidance documents in affirmative civil enforcement cases brought by the U.S. Department of Justice (DOJ). In a move which could have wide-ranging impact, the "Department may not use its enforcement authority to effectively convert agency guidance documents into binding rules" and "may not use noncompliance with guidance documents as a basis for proving violations of applicable law." The Memorandum does permit the use of guidance for proper purposes to explain or paraphrase regulations or statutory legal requirements, but it may not be used to establish that a party violated the applicable statute or regulation.