DOJ Limits Use of Agency Guidance Documents

On January 25, 2018, the Office of the Associate Attorney General for the U.S. Department of Justice issued a memorandum making clear that Department litigators may no longer use an agency’s guidance documents in affirmative civil enforcement and must not use noncompliance with an agency guidance document to either presumptively or conclusively establish a violation of the applicable statute or regulation.

The directive applies to both future actions as well as pending litigation. This is a shift in the policy of the Department of Justice and could substantially impact how the Department litigates civil enforcement actions going forward.