DOJ Revises the Justice Manual — But Will FCA Enforcement Change?

On September 18, 2026, the U.S. Department of Justice (DOJ) announced revisions to the Justice Manual to “strengthen” False Claims Act (FCA) enforcement. The revisions cover two provisions of the Justice Manual: (1) Section 1-19.000, Principles for Issuance and Use of Guidance Documents and (2) Section 4-4.111, DOJ Dismissal of a Civil Qui Tam Action. Building on prior Department memoranda and 2017 revisions to the Justice Manual, these new changes provide substantially more detail regarding DOJ’s use of guidance documents in civil and criminal enforcement matters, as well as DOJ’s own use of guidance documents. The revisions also signal that DOJ may take a closer look at whether dismissal of qui tam actions under 31 U.S.C. § 3730(c)(2)(A) serves the government’s interests. We summarize the key changes further below.

Section 1-19.000 — Limitations on Issuance and Use of Guidance Documents

DOJ’s revisions reinstate the agency’s 2017 policy that sub-regulatory guidance does not have legally binding effect on persons or entities outside of the Executive Branch, explaining that its intent is to focus on “fair notice and the rule of law.”

Use of Guidance Documents in Enforcement Actions

The revised Justice Manual reiterates that DOJ may not bring a criminal or civil enforcement action for noncompliance with a guidance document alone. While the prior version simply stated that guidance documents “still serve many valuable functions” and provided a few general examples, DOJ’s changes put a lot more meat on the bone, discussing in detail various proper uses of guidance documents, including:

• For evidence of scienter, notice, or knowledge of the law when the guidance document describes a relevant statute or regulation
• For evidence that a party has satisfied or failed to satisfy professional or industry standards
• For evidence of generally accepted scientific or technical processes
• For evidence of falsity where a party falsely certifies compliance with the guidance document where the “deceit of the false certification” matters, irrespective of whether compliance was legally required
• To provide legal or factual context

Issuance of Guidance Documents

The revised Justice Manual also provides direction to DOJ components about the issuance of guidance documents and the need to ensure the public understands their limited authority. For example, the revisions add language requiring the DOJ to avoid using guidance documents to coerce persons or entities to take or refrain from specific action, avoid using mandatory language, and clearly state that the documents have no binding effect and may be modified at the DOJ’s discretion.

Section 4-4.111 — Dismissal of Civil Qui Tam Actions

In its press release announcing the Justice Manual revisions, DOJ stated that it will continue to exercise its authority under 31 U.S.C. § 3730(c)(2)(A) to dismiss a qui tam action “judiciously,” though it remains to be seen whether we will see any meaningful change in (c)(2)(A) dismissals. Color us at Qui Notes skeptical. That said, there were a handful of meaningful revisions to the Justice Manual provision on (c)(2)(A). First, while the prior version encouraged DOJ attorneys to consider whether (c)(2)(A) dismissal is appropriate, the new version mandates it, stating that DOJ “will in each case” assess whether dismissal serves the government’s interests. It also states that even if DOJ declines to dismiss at the time of declination, it “may re-evaluate whether dismissal becomes appropriate as the litigation progresses.” Finally, DOJ revised the first (c)(2)(A) factor that can serve as a basis for dismissal from “curbing meritless qui tams that facially lack merit” to a broader goal of “curbing meritless qui tams.”

Takeaways

DOJ’s return to its 2017 policy on guidance documents reflects a commitment to ensuring that such documents do not become binding authority that is used for enforcement without notice to the public. However, the numerous purportedly “proper” uses of guidance documents risk letting the exception swallow the rule and seem unlikely to meaningfully change how DOJ uses such documents in FCA actions. The (c)(2)(A) revisions suggest DOJ may be more intentional in evaluating qui tam actions for dismissal based on the agency’s stated view that “meritless qui tam actions” “waste taxpayer resources and impose unjustified burdens on businesses.” But here again, given how sparing DOJ has been in dismissing qui tam actions, we will believe there has been a material change in approach when we see it.

© Arnold & Porter Kaye Scholer LLP 2026 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.