On January 25, the U.S. Department of Justice (DOJ), through
Associate Attorney General Rachel Brand, issued a memorandum limiting the use of agency guidance
documents in affirmative civil enforcement cases (the "Brand
Memo").
The Brand Memo builds off the November 16, 2017 memorandum issued
by Attorney General Jeff Sessions prohibiting the DOJ from issuing
guidance documents that bind the public outside of the legislative
process. The Brand Memo broadens this mandate to DOJ litigators
"in determining the legal relevance of other agencies'
guidance documents" in affirmative civil litigation.
Fundamentally, the DOJ may not "use noncompliance with guidance documents as a basis for proving violations of applicable law" in affirmative civil enforcement actions. The DOJ may, however, continue to use guidance documents that summarize laws in effect, and use evidence that a party reviewed those summaries as proof of knowledge of the requisite law.
The Brand Memo is forward-reaching to new affirmative civil litigation and applicable to pending litigation "wherever practicable."
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