DOJ Rewrites the Justice Manual on Agency Guidance and Qui Tam Dismissals

On September 18, 2026, the Justice Department announced two revisions to the Justice Manual that change how DOJ attorneys build and screen False Claims Act cases. The first limits the government’s ability to use agency guidance as the foundation for an enforcement action. The second directs DOJ attorneys to assess, in every declined qui tam, whether the United States should move to dismiss the case outright.

DOJ framed both changes as strengthening enforcement. Associate Attorney General Stanley E. Woodward, Jr. said the Department “should enforce the law, not make law through enforcement.” Associate Deputy Attorney General Paul Perkins tied the revisions to holding contractors accountable for “violations of binding legal or contractual obligations” while dismissing meritless qui tams that “impose unjustified burdens on businesses.” Read together, these revisions are a narrowing of what DOJ will pursue, not a retreat from FCA enforcement. Contractors should treat them as a real but bounded defense tool.

Revision One: Guidance Cannot Carry the Case by Itself

Justice Manual 1-19.000, now titled “Limitations on Issuance and Use of Guidance Documents,” reinstates and builds on the November 2017 Sessions Memo and the January 2018 Brand Memo. The Garland DOJ withdrew that policy in July 2021, and Attorney General Bondi reinstated it by memorandum in February 2025. It is now back in the Manual itself.

New section 1-19.210 states the operative rule. Enforcement actions, civil and criminal, must rest on violations of applicable legal requirements rather than on noncompliance with guidance, and the Department “may not bring actions based solely on allegations of noncompliance with guidance documents.” The revision reaches all Department litigation, not only FCA matters.

The notable word here being “solely.” Sections 1-19.220 through 1-19.260 preserve four uses of guidance that matter a great deal in practice:

• Scienter. Guidance remains admissible to show what a contractor knew, or had notice of, regarding the meaning of a binding requirement. After Schutte v. SuperValu Inc. made subjective knowledge the touchstone, this is the most consequential carve-out.
• Industry standards. Guidance may be offered as evidence of professional or industry practice.
• False certification. If a contractor expressly certifies compliance with a guidance document and that certification is material to payment, the case proceeds as an ordinary falsity and materiality question.
• Contractual incorporation. Section 1-19.250 is explicit that where a contract requires compliance with agency guidance, “it is the contract—not the agency guidance itself—that makes the agency guidance pertinent.”

That last point is notable. Agency manuals, handbooks, program guides, and technical bulletins that your contract incorporates by reference are contract terms. The new policy does nothing for you there, and DOJ said so explicitly.

Revision Two: Every Declination Now Gets a Dismissal Look

Justice Manual 4-4.111 keeps the seven Granston dismissal factors but changes the posture. The prior version said attorneys “should also consider” dismissal when evaluating a recommendation to decline. The revised section says attorneys “will in each case assess” whether the government’s interests are served by seeking dismissal under 31 U.S.C. § 3730(c)(2)(A). The retained factors are:

• Curbing qui tams that facially lack merit, whether because the legal theory is inherently defective or the factual allegations are frivolous
• Preventing parasitic or opportunistic actions that duplicate a pre-existing government investigation and add nothing to it
• Preventing interference with an agency’s policies or the administration of its programs
• Controlling litigation brought on the government’s behalf, to protect the Department’s litigation prerogatives
• Safeguarding classified information and national security interests
• Preserving government resources where the cost of the case is likely to exceed any expected gain
• Addressing egregious procedural errors that frustrate a proper investigation

An important qualification limits how much comfort to take from the new mandatory assessment. The Manual says dismissal “will not be warranted in every declined case,” because DOJ frequently investigates only far enough to conclude that declination is appropriate, and that conclusion “may not equate to the conclusion that a qui tam is meritless.” Where DOJ does not seek dismissal at declination, it still “may re-evaluate whether dismissal becomes appropriate as the litigation progresses.” A declined case that draws no dismissal motion has not been blessed, and one that survives the first look is not permanently safe. However, the mere possibility of the Department seeking post-declination dismissal of a qui tam does not spare contractors from the costs and burdens of litigation.

DOJ attorneys must consult the affected agency and obtain its recommendation before filing any dismissal request. They are also directed to consider advising relators of perceived deficiencies first, so the relator has an opportunity to dismiss voluntarily. In jointly handled and monitored cases, the Assistant Attorney General must approve the motion.

Note what the revision does not change. Under Polansky v. Executive Health Resources, DOJ must intervene before it can dismiss, and the Rule 41(a) standard the Court adopted is forgiving. The obstacle to dismissal has never been the legal standard, but rather DOJ’s willingness to spend the resources. This revision is aimed at that.

What Contractors Should Do

1. Inventory the guidance your contracts actually incorporate. Pull your prime contracts, task orders, and major subcontracts and identify every agency manual, handbook, technical publication, or program guide brought in by reference. Those are obligations. Everything else in the agency’s guidance library now carries materially less enforcement weight, and knowing the difference is the whole exercise.
2. Scrub your certifications. Section 1-19.250 leaves false certification of compliance with guidance fully actionable. Review what your representations, invoicing certifications, and annual reps and certs actually say, and stop certifying to things you have not verified.
3. Do not treat this as a scienter defense. Guidance you received, read, or were briefed on can still be used to prove you knew what the government expected. Contemporaneous documentation of your interpretation of an ambiguous requirement, and the basis for it, remains the single best protection against an FCA knowledge theory.
4. Raise the issue early and in writing. When a civil investigative demand or a relator’s theory rests on an agency FAQ, bulletin, Dear Colleague letter, or manual, say so in your written submission and ask DOJ to identify the statute, regulation, or contract clause imposing the obligation. Section 1-19.210 is now a Manual provision you can cite by number in a presentation to the line attorney or the Fraud Section.
5. Make the dismissal case affirmatively, and make it to the agency too. Because DOJ must obtain the contracting agency’s recommendation before moving to dismiss, the contracting agency now has a meaningful voice in whether a declined case continues. If the agency views the relator’s theory as inconsistent with how it administers the program, that view should be in front of DOJ before the declination decision, not after.
6. Remember the Manual binds DOJ, not relators or courts. A relator who proceeds after declination is free to press a guidance-based theory, and no court is obligated to apply these provisions. The Justice Manual creates no enforceable rights. Its value is persuasive and, more importantly, it shapes what DOJ chooses to pursue in the first place.
7. Do not read this as a softer enforcement climate. DOJ continues to press FCA theories tied to anti-discrimination certifications under Executive Order 14173, cybersecurity representations, and customs and tariff fraud. Those rest on statutes, regulations, and express contract clauses. Nothing in these revisions touches them.

Key Takeaway

The guidance revision gives contractors a written DOJ position worth invoking early in any investigation built on subregulatory material, subject to real exceptions for scienter, certifications, and contractually incorporated guidance. The qui tam revision guarantees that every declined case gets a dismissal assessment, but it stops short of promising dismissal and expressly leaves the door open for DOJ to revisit the question later. Both changes reward contractors who know precisely which obligations bind them and can document how they reached their compliance positions.