DOJ Restricts the Use of Guidance Documents in Affirmative Civil Enforcement Cases

Introduction

On November 16, 2017, Attorney General Jeff Sessions issued a memorandum on prohibiting the use of improper guidance documents (“Guidance Policy”) [see article]. The memorandum assigned Associate Attorney General Rachel Brand, the third highest ranking appointee in the Department of Justice (DOJ), to identify previously issued guidance documents that should be replaced. On December 21, 2017, Attorney General Sessions rescinded 25 guidance documents that had been issued over the past several decades [see blog].

On January 25, 2018, Associate Attorney General Brand issued a memorandum titled “Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases” (“Brand Memo”) [PDF version]. In this article, we will examine the contents of the Brand Memo and what it may mean going forward.

Overview of the Brand Memo

The Brand Memo begins by summarizing the Guidance Policy put into place by Attorney General Sessions. Associate Attorney General Brand notes that the Guidance Policy prevents the DOJ from “issu[ing] guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local, and tribal governments), or to create binding standards by which the [DOJ] will determine compliance with existing statutory or regulatory requirements.”

The Brand Memo explains that “[t]he principles from the Guidance Policy are relevant to more than just the [DOJ's] own publication of guidance documents.” Here, the Brand Memo makes clear that the principles in the Guidance Policy “should guide [DOJ] litigators in determining the legal relevance of other agencies' guidance documents in affirmative civil enforcement…” In a footnote, the Brand Memo defines “affirmative civil enforcement” as follows: “'Affirmative civil enforcement' refers to the [DOJ's] filing of civil lawsuits on behalf of the United States to recover government money lost to fraud or other misconduct or to impose penalties for violations of Federal health, safety, civil rights or environmental laws.” We have uploaded a page from The United States Attorney's Office for the District of Maryland which provides a more detailed explanation of affirmative civil enforcement: [PDF version].

The Brand Memo sets forth principles for the use of guidance documents in affirmative civil enforcement. First, it states that “guidance documents cannot create binding requirements that do not already exist by statute or regulation.” On this point, the Congress passes statutes, and Federal agencies may promulgate binding regulations through processes outlined in the Administrative Procedures Act to implement these statutes. Guidance documents, however, are drafted without undergoing either of these processes. Accordingly, the Brand Memo seeks to limit the scope of what may be included in a guidance document in affirmative civil enforcement cases.

The Brand Memo adds that the DOJ “may not use its enforcement authority to effectively convert agency guidance documents into binding rules.” Furthermore, the Brand Memo prohibits the DOJ from “us[ing] noncompliance with guidance documents as a basis for proving violations of applicable law in [affirmative civil enforcement] cases.” Both of these rules follow from the first. Essentially, “binding rules” are provided for through statutes or by regulations. Anything that purports to be “binding” on parties in guidance documents issued in alternative civil enforcement cases must be based on and reflect existing statutes and/or regulations. The Brand Memo explicitly prohibits DOJ litigators from using noncompliance with a guidance document as the basis for proving violations in affirmative civil enforcement cases.

The Brand Memo then explains how guidance documents may be properly used in affirmative civil enforcement cases. To this effect, the Brand Memo approves of “guidance documents [that] simply explain or paraphrase legal mandates from existing statutes or regulations…” An explanatory guidance document could be used to “help prove that the party had the requisite knowledge of the mandate.” However, the Brand Memo reiterates that noncompliance with an agency guidance document that “expand[s] upon statutory or regulatory requirements” does not mean, in and of itself, that the party in question violated those requirements. This is because, as the Brand Memo states, “guidance documents cannot create any additional legal obligations” that do not exist in the statutes or regulations. Accordingly, DOJ litigators who rely upon guidance documents will have to still prove that the party in question actually violated a legal requirement set out in the statutes or regulations.

In the conclusion, Associate Attorney General Brand states that the Brand Memo applies only to future affirmative civil enforcement cases or, where practicable, pending affirmative civil enforcement cases.

Conclusion

Although affirmative civil enforcement has little effect on immigration enforcement, the Brand Memo is noteworthy for its potential broader effects on how the government issues and interprets guidance documents and employs them in the prosecution of civil enforcement cases. The Brand Memo follows from the Guidance Policy issued by Attorney General Sessions in November 2017. While the principles are the same, the Brand Memo is interesting in that it applies to cases where the DOJ brings civil enforcement claims in Federal court recover money based on violations of non-criminal statutes and regulations that are administered by other departments. In our analysis of the Sessions Guidance Policy, we noted that it would be interesting to see whether other Federal agencies — namely the Department of Homeland Security (DHS) for our purposes — follow the DOJ's example on limiting the use and scope of guidance documents.

We will continue to follow the development of the DOJ's guidance following Attorney General Sessions' Guidance Policy going forward, especially with regard to any specific effect it has on the DOJ's Executive Office for Immigration Review (EOIR).