DOJ Justice Manual Revisions Limit Guidance-Based FCA Liability, Push Qui Tam Dismissals
DOJ's September 2026 Justice Manual revisions bar FCA actions based solely on sub-regulatory guidance and direct prosecutors to assess dismissal in every declined qui tam case.
On September 18, 2026, DOJ revised two Justice Manual sections governing False Claims Act enforcement. Section 1-19.000 reinstates the policy that sub-regulatory guidance cannot create legal obligations beyond statute or regulation, and bars DOJ from bringing actions based solely on guidance-document noncompliance — while permitting DOJ to use a guidance document as evidence of scienter, notice, or knowledge of the law, including in some criminal contexts. The revision conforms the Manual to the February 2025 Bondi memorandum rescinding the July 2021 Garland memorandum.
Section 4-4.111 upgrades the prior "should consider" language to a directive that DOJ attorneys "will in each case assess" whether dismissal serves the government's interests in every declined qui tam action, and permits re-evaluation as litigation progresses. Dismissal factors remain non-exhaustive, though "meritless qui tams" replaces the narrower facial-merit standard, and delegated U.S. Attorney's Offices must give the Civil Fraud Section ten days' notice before filing dismissal motions.
Why it matters: qui tam filings are at record levels, and DOJ reportedly dismissed roughly 25 actions under 31 U.S.C. § 3730(c)(2)(A) in 2025 versus about six annually before. Defense counsel should test whether alleged violations rest on guidance documents or on contractual incorporation of guidance, and press the § 4-4.111 factors earlier in CID and seal-complaint engagements.