Looking Ahead: DOJ's Enforcement Arm Grows Stronger Under The Biden Administration

As we near the end of the first year of the Biden administration, we wanted to highlight a Department of Justice (DOJ or "the Department") action that may become increasingly relevant in the federal research space in 2022. Through the so-called "Garland Memo," DOJ rescinded two Trump-era Memoranda—the Sessions Memo and the Brand Memo—that had restricted DOJ attorneys from using noncompliance with agency sub-regulatory guidance as a basis for False Claims Act (FCA) cases and other enforcement actions. The Garland Memo indicated that the previous memoranda had "hampered Department attorneys when litigating cases where there is relevant agency guidance," and instructed Department attorneys in all pending and future actions to rely on guidance documents in "appropriate circumstances," including when they may be entitled to deferential or persuasive weight. Finally, it incorporated these changes into the Justice Manual and the Code of Federal Regulations.