By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen
Seyfarth Synopsis: In another business-friendly move, the U.S. Department of Justice (DOJ) recently updated its Justice Manual to clarify that it “should not treat a party’s noncompliance with a guidance document as itself a violation of applicable statutes or regulations [or to] establish a violation by reference to statutes and regulations.”
We had blogged in early 2018 regarding Associate Attorney General Rachel Brand’s memorandum “Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases.” (Brand Memo), which indicated that the Department would no longer prosecute cases based solely on violations of various agencies’ “guidance documents”. Now DOJ has taken it a step further by adding a section to its Justice Manual (Manual) titled: “Limitation on Use of Guidance Documents in Litigation..” The new section was effective in December 2018.
Under the updated Manual, DOJ (which effectively acts as “outside counsel” to departments and agencies including the DOL, EPA, OSHA, ATF and DEA, among others, in cases exceeding certain penalty thresholds and other criteria) may no longer prosecute cases against alleged violators unless the violations are of properly promulgated (through “notice and comment” rulemaking) regulatory requirements, not agency guidance documents or policies.
The Brand Memo itself was a follow-up to an earlier memo issued by Attorney General Jeff Sessions on November 16, 2017 (Sessions Memo), which instituted a new policy that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. The Sessions Memo “prevent[ed] the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents.”
Under the DOJ’s new policy, DOJ civil litigators are “prohibited from using guidance documents—or noncompliance with guidance documents—to establish violations of law in affirmative civil enforcement actions.” The Brand Memo also indicates that “the [Sessions Memo]. . . prohibits the Department from using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.” Finally, the Brand Memo confirms that the DOJ “…should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”
While the Brand Memo applied only to affirmative civil enforcement actions brought by the DOJ, we see the updated Manual, Sessions Memo and the Brand Memo as welcome relief from arbitrary use of guidance by departments and agencies such as the DOL, OSHA, or EPA in enforcement proceedings of regulated industry.
For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth OSHA Compliance, Enforcement & Litigation Team or the Environmental Compliance, Enforcement & Permitting Team.