On Sept. 18, the U.S. Department of Justice (DOJ) issued a press release describing two modifications to the DOJ Policy Manual. I have seen many people express the opinion that the revisions are good news, but it is worth noting that the headline selected by the DOJ is that the rationale for the revisions was to “strengthen False Claims Act enforcement.”
The source of the optimism is that the press release explains that “the Department of Justice should enforce the law, not make law through enforcement,” citing Associate Attorney General Stanley E. Woodward, Jr.
One of the revisions reinstates an on-again, off-again policy that started back in 2017 and says sub-regulatory guidance cannot impose a legal obligation that wasn’t created by a statute or regulation. You may recall our talking about the Brand memo many years ago, authored by then-Deputy Associate Attorney General Rachel Brand. That memo instructed affirmative civil enforcement (ACE) lawyers, known within DOJ as ACE attorneys, not to bring a case based on language found in manuals.
Former Attorney General Merrick Garland later reversed the policy, and Pam Bondi reimplemented it. I have found those flips somewhat puzzling, given the fact that the U.S. Supreme Court has essentially forbidden the use of manuals as the sole basis of a False Claims Act (FCA) case in the Allina decision issued in June 2019.
It is the second revision that is inspiring the most optimism. The press release describes it as making it “clear that the Department should consider exercising its dismissal authority when it declines to intervene in a qui tam action and, where it does not seek dismissal, revisit that assessment as appropriate during litigation.”
When a relator brings an FCA case, the government investigates (while the statute allows 60 days for this review, it often takes years). Historically, the government has either intervened, taking over the case, or declined, allowing the relator to continue. As of late, the DOJ has often taken a third option that does not seem authorized by the law, making a decision “not to intervene at this time.” That always felt like a declination to me. But there has always been another option: the government can intervene to affirmatively dismiss the case. I was lucky enough to have that happen once, way back in the 1990s. Shortly thereafter, the DOJ decided it would never intervene to dismiss a case. But in 2017, Michael Granston announced that the DOJ would resume the practice of dismissing cases when they were baseless or could result in bad precedent. Since that policy changed nearly a decade ago, interventions to dismiss have been incredibly rare. While there are around 1,300 FCA cases each year, I do not believe that the interventions to dismiss reach double digits. Will the new policy change that? I certainly hope so, but I have learned a lesson by getting pretty excited about that 2017 memo, only to have my hopes crushed.
To illustrate that lesson, I am going to refer to Michael Sembello’s hit from the Flashdance soundtrack, Maniac. Normally, my song references focus on the lyrics. But in this case, I am focused on the title, and in particular, its odd pronunciation. Why is “maniac” pronounced MAY-nee-ack? If you get your nails worked up, it isn’t a (MAY-nee-cure), and if you use numbers nefariously, you are not (MAY-nip-ulating) the data. Shouldn’t it be (MAN-i-ack)? There is a lesson here. Just because something is written down doesn’t mean it will happen exactly the way you expect. I really hope that the revised DOJ policy will result in more interventions for dismissal, but I have had high hopes before. So, while “she’s dancing like she’s never danced before,” I won’t be just yet! Which is probably better for everyone!
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