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ARTICLE · 30 JANUARY 2018

DOJ Limits Use Of Guidance Documents In Affirmative Civil Enforcement Actions

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On January 25, 2018, the Associate Attorney General directed the Department of Justice (DOJ) not to rely on agency guidance documents to establish a violation in affirmative civil enforcement ("ACE") cases

United StatesLitigation, Mediation & Arbitration
Caroline Wolverton
Caroline Wolverton
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On January 25, 2018, the Associate Attorney General directed the Department of Justice (DOJ) not to rely on agency guidance documents to establish a violation in affirmative civil enforcement ("ACE") cases. She issued the directive through a memorandum to the heads of the DOJ civil litigating components and the United States Attorneys titled, " Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases." Agency guidance documents include letters to industry, policy manuals, handbooks and Frequently Asked Questions (FAQs).

Under the directive, DOJ "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 in ACE cases." However, agency guidance documents may be permissibly used to simply explain or paraphrase existing statutes or regulations, and DOJ may permissibly use evidence that a

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