DOJ Updates Justice Manual Concerning Guidance Documents in Litigation

Effective December, 2018, the DOJ issued a new section to their Justice Manual bringing it into compliance with the Department’s recent change in practice concerning the treatment of guidance documents as outlined in former Attorney General Jeff Session’s memo and then-Associate Attorney General Rachel Brand’s memorandum.

The new section, Title 1-20.000, “Limitation on Use of Guidance Documents in Litigation,” outlines both the appropriate and disallowed uses of guidance documents during DOJ criminal and civil enforcement actions.  The section explicitly states that (1) a party’s noncompliance with a guidance document is not a violation of any related statute or regulation and (2) that enforcement actions may only be brought on allegations of a statutory or regulatory violation.  The section also provides a non-exhaustive list of examples for how guidance documents may be appropriately utilized.

This updated section to the Justice Manual is the latest in a recent line of DOJ updates and comments concerning litigation involving the Department.