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DOJ Revises Justice Manual to Streamline False Claims Act Enforcement and Clarify Limits on Use of Agency Guidance

By Michael J. Podberesky, Edwin O. Childs, Brett Barnett, David Pivnick, John Adams, Michael F. Easley, Jr., Ryan Buchanan, Eric Olshan, Daniel Bubar, Michael Scoville, John S. Moran, Jack White & Elissa Baur on October 5, 2026
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Table of Contents

  • I. Revisions to JM 1-19.000: Limits on Agency Guidance
  • II. Revision to JM 4-4.111: DOJ Dismissal of Qui Tam Actions
  • III. Practical Implications for Government Contractors, Healthcare Entities, and Federal Funding Recipients

On September 18, 2026, the Department of Justice (DOJ or the Department) announced two significant revisions to the Justice Manual that aim to reshape False Claims Act (FCA) enforcement. The first revision reinstates and expands the Department’s 2017 policy limiting the use of sub-regulatory guidance documents in enforcement actions by restricting the government’s ability to treat agency guidance as binding legal authority. The second revision strengthens the Department’s approach to dismissing qui tam actions filed by private relators, directing attorneys to assess whether dismissal is warranted in every declined case. Together, these changes signal a more disciplined enforcement posture, suggesting that the Department intends to pursue fraud cases grounded in clear legal obligations while more actively culling meritless whistleblower suits.

Associate Attorney General Stanley E. Woodward, Jr. framed the revisions in terms of regulatory restraint: “The Department of Justice should enforce the law, not make law through enforcement. These updates reflect the Department’s commitment to fair notice, transparent enforcement, and the rule of law.”

Link to I. Revisions to JM 1-19.000: Limits on Agency Guidance I. Revisions to JM 1-19.000: Limits on Agency Guidance

First, the revisions provide that DOJ will not bring an enforcement action solely predicated on alleged violations of agency guidance that purports to create new legal obligations. The revised section incorporates the Administration’s previously communicated prohibition on the department’s use of “guidance documents” as the basis for creating substantive rights and obligations (Reinstating the Prohibition on Improper Guidance Documents.pdf) and builds upon similar restrictions on the use of sub-regulatory guidance issued during the first Trump Administration (memo_re_agency_guidance_documents.pdf) that were rescinded by Attorney General Merrick Garland in 2021 (attorney_general_memorandum_-_issuance_and_use_of_guidance_documents_by_the_doj712021.pdf). The revision explains that DOJ guidance may not be a substitute for regulation or impose new requirements on entities outside the Executive Branch unless authorized by law or contract. The revision also provides that the Department shall not issue guidance that purports to create binding rights or obligations outside the Executive Branch or otherwise establish the standard by which DOJ will determine compliance with existing law. To reinforce that distinction, the new requirements call for clear labeling, including disclaimers that the document has no force of law or binding effect outside the Executive Branch and an express statement that voluntary standards will not, by themselves, trigger enforcement. DOJ guidance also must avoid coercive or mandatory language, including “shall,” “must,” and “required,” unless it is accurately restating a clear statutory, regulatory, or judicial mandate.

More significantly for government contractors, healthcare providers, and federal grant recipients, the revised section also replaces the ability for attorneys to cite or rely on guidance as the basis for enforcement action with a more defined framework for bringing such actions. Stated differently, civil and criminal enforcement actions must be based on violations of applicable legal requirements, not mere noncompliance with agency guidance, under the new regime, and the Department may not proceed solely on an allegation that a party failed to follow a guidance document.

That said, the revisions also indicate guidance may nonetheless still be relevant when it bears on scienter, notice, knowledge, or other mens rea standards; provides evidence of professional or industry standards, duties, customs, or practices; reflects generally accepted scientific or technical processes; bears on a party’s compliance when that compliance is itself part of the claim, such as a false certification or a contractual commitment; or supplies legal or factual context in a filing. Those uses do not give the guidance force of law, establish the applicable mental-state standard, or make the agency’s interpretation conclusive. The revised section illustrates these categories with examples from healthcare, government fraud, and technical fields, while leaving the underlying statutory, regulatory, or contractual requirement as the basis for liability.  As a general matter, these carve outs from the broader policy may provide DOJ attorneys with ample grounds on which to rely on guidance documents, notwithstanding the broader policy statement.

Based on these changes, we would generally expect agencies attempting to change legal requirements or create new rights and obligations through an FAQ response, informal guidance documents, agency memoranda, directive, etc., may face reluctance (or at least questions) from the Department when attempting to bring enforcement actions predicated on violations of obligations ostensibly imposed by such guidance documents. That said, given the areas in which informal guidance may nonetheless be used, we would expect that the revisions do not necessarily mean that such guidance will be of no importance or play no role in the government’s evaluation of liability under the False Claims Act moving forward. Stated differently, notwithstanding these revisions, contractors, healthcare entities, and federal funding recipients remain well served to continue reviewing and considering agency guidance in connection with their broader compliance and operational activities to ensure that such guidance can continue to inform their actions in mitigating if not avoiding compliance risk.

Link to II. Revision to JM 4-4.111: DOJ Dismissal of Qui Tam Actions II. Revision to JM 4-4.111: DOJ Dismissal of Qui Tam Actions

In addition, the revisions require prosecutors to evaluate every declined qui tam case for dismissal using a broadened list of factors.  Specifically, the prior version of this Justice Manual section directed prosecutors considering a declination to consider whether a motion to dismiss the qui tam complaint would serve the government’s interests. The revised language bolsters that consideration, mandating that the Department assess dismissal in every declined case. If dismissal is not warranted when the Department declines intervention, then the Department may reassess the issue as the litigation develops. The revised policy therefore requires a recurring evaluation without creating an automatic presumption that declined cases should be dismissed.

The Department also revised the list of factors for consideration when assessing whether to move to dismiss a qui tam complaint. The updated factors place greater emphasis on preventing parasitic or opportunistic actions that duplicate a pre-existing government investigation without adding useful information. That consideration now appears first, while the former (and previously more detailed) description of facially meritless claims has been condensed into a second factor addressing meritless qui tams, followed by factors concerning interference with agency policy or program administration, control of litigation brought on behalf of the United States, protection of classified information and national security, preservation of government resources, and egregious procedural errors that could frustrate a proper investigation.

These are positive developments for qui tam defendants, and we expect this Administration to continue to be more favorably disposed towards proactively moving to dismiss meritless whistleblower suits.

Link to III. Practical Implications for Government Contractors, Healthcare Entities, and Federal Funding Recipients III. Practical Implications for Government Contractors, Healthcare Entities, and Federal Funding Recipients

Federal contractors, healthcare entities, and federal funding recipients now have a clearer basis to challenge FCA theories that treat sub-regulatory guidance as an independent legal obligation. Agency guidance may still support scienter or proof of professional standards, and it remains relevant where a party falsely certifies compliance or a contract or provider agreement makes compliance part of the bargain. For example, compliance programs would be well served to distinguish between voluntary guidance and binding requirements, and contractors should ensure that certifications or other statements to government officials do not overstate adherence to guidance that the organization does not follow.

For defendants in declined qui tam cases, the Department’s mandatory assessment may produce more motions to dismiss, particularly where a relator’s allegations duplicate an existing audit or investigation and add little information. This presents defendants with a possible opportunity to influence prosecutors’ decisions at such time, particularly where the defendant has played an active role in responding to government inquires and transparently cooperated with the government investigation. The Department may also revisit dismissal later, so parties should not assume that its initial decision to decline intervention will remain its final position, particularly as litigation lasts for a protracted period of time or results in multiple amended complaints following dismissals or the facts (or substantive lack thereof) warrant further reconsideration.

For questions or counsel about these topics, contact the authors of this article listed below, or another member of the McGuireWoods Government Investigations & White Collar Litigation, Government Contracts, or False Claims Act Investigations & Litigation Practice Groups.

Photo of Michael J. Podberesky Michael J. Podberesky

Michael Podberesky, a former federal prosecutor in the U.S. Department of Justice’s Civil Fraud Section, is a partner in the firm’s nationally recognized Government Investigations and White Collar Litigation Department and co-leader of the firm’s Healthcare Litigation and Enforcement Practice Group. Employing his…

Michael Podberesky, a former federal prosecutor in the U.S. Department of Justice’s Civil Fraud Section, is a partner in the firm’s nationally recognized Government Investigations and White Collar Litigation Department and co-leader of the firm’s Healthcare Litigation and Enforcement Practice Group. Employing his extensive experience with False Claims Act cases in the healthcare and defense sectors, Michael represents clients confronting high-stakes government investigations and litigation arising from allegations of healthcare and procurement fraud and also counsels clients regarding compliance issues.

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Photo of Edwin O. Childs Edwin O. Childs

As a leader of the firm’s Defense, National Security and Government Contracting industry team, Ned Childs is a government contract and investigations and enforcement attorney who represents companies across a wide range of sectors, including the defense, services, technology, and aerospace industries. His…

As a leader of the firm’s Defense, National Security and Government Contracting industry team, Ned Childs is a government contract and investigations and enforcement attorney who represents companies across a wide range of sectors, including the defense, services, technology, and aerospace industries. His practice, spanning more than a decade in Washington, encompasses a broad array of legal services, including government contract investigations, disclosures, and regulatory enforcement actions; bid protests and government contract disputes; government contract counseling; export licensing and enforcement; prime contractor-subcontractor disputes; corporate ownership and acquisition issues; and election law investigations and enforcement matters.

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Photo of Brett Barnett Brett Barnett

Brett is the co-leader of McGuireWoods’ False Claims Act Investigations & Litigation Practice Group. He focuses his practice on representing clients in high-stakes False Claims Act matters, healthcare fraud and abuse investigations, and complex commercial litigation across the country. Brett routinely leads internal…

Brett is the co-leader of McGuireWoods’ False Claims Act Investigations & Litigation Practice Group. He focuses his practice on representing clients in high-stakes False Claims Act matters, healthcare fraud and abuse investigations, and complex commercial litigation across the country. Brett routinely leads internal and government-facing investigations involving the U.S. Department of Justice and other federal and state agencies, and defends clients in civil FCA litigation, often involving parallel proceedings and regulatory scrutiny.

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Photo of David Pivnick David Pivnick

David currently serves as co-leader of the firm’s Healthcare Litigation and Enforcement Practice Group. Private equity firms, their platforms, healthcare providers, and health insurance companies regularly look to David for guidance in positioning disputes favorably and litigation avoidance, responding to and addressing Government…

David currently serves as co-leader of the firm’s Healthcare Litigation and Enforcement Practice Group. Private equity firms, their platforms, healthcare providers, and health insurance companies regularly look to David for guidance in positioning disputes favorably and litigation avoidance, responding to and addressing Government investigations, and handling active litigation in a manner that carefully considers the clients’ business objectives.

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Photo of John Adams John Adams

Drawing on his deep experience in private practice and senior government service, John represents corporations, boards and executives facing significant legal and reputational risk in criminal, regulatory, civil and congressional proceedings.

He has resolved complex, high-stakes matters through innovative settlements and successfully tried…

Drawing on his deep experience in private practice and senior government service, John represents corporations, boards and executives facing significant legal and reputational risk in criminal, regulatory, civil and congressional proceedings.

He has resolved complex, high-stakes matters through innovative settlements and successfully tried cases both as a federal prosecutor and against the Department of Justice. In addition to his investigations practice, John is often called upon to brief and argue appeals in courts across the country and has argued appeals in the U.S. Courts of Appeals for the 2nd, 4th, 6th, 7th and 11th Circuits.

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Photo of Michael F. Easley, Jr. Michael F. Easley, Jr.

Former U.S. Attorney Michael Easley represents companies, boards, and executives in complex government enforcement actions, internal investigations, and litigation. He has advised clients facing inquiries by the DOJ, SEC, and state attorneys general, helping them navigate enforcement scrutiny, mitigate risk, and resolve complex…

Former U.S. Attorney Michael Easley represents companies, boards, and executives in complex government enforcement actions, internal investigations, and litigation. He has advised clients facing inquiries by the DOJ, SEC, and state attorneys general, helping them navigate enforcement scrutiny, mitigate risk, and resolve complex disputes.

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Photo of Ryan Buchanan Ryan Buchanan

Ryan is the managing partner of the McGuireWoods’ Atlanta office and a partner in the firm’s Government Investigations and White Collar Litigation Department. A former United States Attorney with extensive leadership experience in the public and private sector, Ryan is uniquely poised to…

Ryan is the managing partner of the McGuireWoods’ Atlanta office and a partner in the firm’s Government Investigations and White Collar Litigation Department. A former United States Attorney with extensive leadership experience in the public and private sector, Ryan is uniquely poised to navigate complex government and corporate investigations, regulatory matters, and high-stakes white collar and commercial litigation across various industries. Known for keen insight and practical knowhow, Ryan provides clients with effective strategic guidance on compliance, risk mitigation, and litigation through a crisis, regulatory scrutiny, or government enforcement action.

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Photo of Eric Olshan Eric Olshan

Eric Olshan, a former United States Attorney and veteran federal prosecutor, helps clients navigate complex government investigations, enforcement actions, and high-stakes litigation. With nearly two decades of white collar experience, Eric brings a deep understanding of how complex cases are built—and how they…

Eric Olshan, a former United States Attorney and veteran federal prosecutor, helps clients navigate complex government investigations, enforcement actions, and high-stakes litigation. With nearly two decades of white collar experience, Eric brings a deep understanding of how complex cases are built—and how they can be resolved successfully. He is uniquely situated to advise clients in times of crisis and in a broad range of matters involving corporate and financial fraud, cyber and data security, national security, health care enforcement, and environmental regulation.

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Photo of Daniel Bubar Daniel Bubar

Dan draws on years of service as Acting United States Attorney and First Assistant in the Eastern District of North Carolina and the Western District of Virginia to guide clients through high-stakes matters with a relentless focus on achieving favorable outcomes.

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Photo of Michael Scoville Michael Scoville

Michael is a seasoned trial attorney with substantial experience in aerospace sector litigation, product liability claims and risk counseling, domestic and international arbitrations, and investigations involving the False Claims Act (FCA) and Foreign Corrupt Practices Act (FCPA). He is known for representing top…

Michael is a seasoned trial attorney with substantial experience in aerospace sector litigation, product liability claims and risk counseling, domestic and international arbitrations, and investigations involving the False Claims Act (FCA) and Foreign Corrupt Practices Act (FCPA). He is known for representing top companies in complex cases, including high stakes arbitration disputes.

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Photo of John S. Moran John S. Moran

John Moran is a member of the firm’s nationally recognized Government Investigations and White Collar Litigation department. A former senior official at the U.S. Department of Justice (DOJ) and the White House and an experienced litigator and counselor, John draws on his broad…

John Moran is a member of the firm’s nationally recognized Government Investigations and White Collar Litigation department. A former senior official at the U.S. Department of Justice (DOJ) and the White House and an experienced litigator and counselor, John draws on his broad experience from private practice and government service to advise and represent clients in government enforcement, congressional investigations, high-stakes civil disputes, and regulatory litigation. He also serves as co-chair of the firm’s Congressional Investigations practice, representing both companies and individuals in congressional investigations and hearings and is a member of the firm’s Appeals & Issues group.

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Photo of Jack White Jack White

Jack is an accomplished trial lawyer and legal strategist who guides clients through complex challenges, including high-profile and sensitive litigation and government investigations. He focuses his practice on civil litigation, regulatory enforcement, and congressional investigations for clients in the defense, technology, federal contracting…

Jack is an accomplished trial lawyer and legal strategist who guides clients through complex challenges, including high-profile and sensitive litigation and government investigations. He focuses his practice on civil litigation, regulatory enforcement, and congressional investigations for clients in the defense, technology, federal contracting, higher and K-12 education, and other business sectors.

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Photo of Elissa Baur Elissa Baur

Elissa focuses her practice on white collar and antitrust criminal defense matters, including internal investigations, litigation, and regulatory enforcement actions. She has defended clients in numerous government investigations before the Department of Justice, United States Office of Special Counsel, Securities & Exchange Commission…

Elissa focuses her practice on white collar and antitrust criminal defense matters, including internal investigations, litigation, and regulatory enforcement actions. She has defended clients in numerous government investigations before the Department of Justice, United States Office of Special Counsel, Securities & Exchange Commission, Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”), Office of the Comptroller of Currency, and Federal Reserve Board, among others.

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