Looking Ahead: DOJ’s Enforcement Arm Grows Stronger under the Biden Administration

Nov 2, 2021

Reading Time : 2 min

The Sessions Memo (published on November 16, 2017) had restricted the creation of, and reliance on, DOJ guidance documents, and stated that previously published DOJ guidance had effectively bound private parties without undergoing the necessary rulemaking process. It directed the Department attorneys to no longer use guidance documents to impose new requirements, create binding standards or to determine compliance with existing standards. New guidance documents were required to clearly state their voluntary nature, prohibited from using mandatory language and had to identify themselves as non-binding without any force or effect.

The Brand Memo (published on January 25, 2018) had expanded the scope of the Sessions Memo by applying it not just to DOJ guidance documents, but to all agencies’ guidance documents. The Memo stated, “Guidance documents cannot create binding requirements that do not already exist by statute or regulation. . . . [T]he Department may not use its enforcement authority to effectively convert agency guidance documents into binding rules.” Under the Brand policy, the purpose of guidance documents was solely to explain or paraphrase existing regulations, or to use a party’s knowledge of a guidance document as indicia that the party had the requisite knowledge of a regulation.

The Garland Memo’s expansion signals a potentially more aggressive approach by DOJ in bringing enforcement actions against federal grantees and contractors, and enables the Department to rely more heavily on agency guidance in proving non-compliance. Specifically, DOJ attorneys “may rely on relevant guidance documents in any appropriate and lawful circumstances, including when a guidance document may be entitled to deference or otherwise carry persuasive weight with respect to the meaning of the applicable legal requirement” and can cite or rely on such documents when they are “relevant to claims or defenses in litigation.”

This is notable, particularly in the federal research space, where government sponsors such as the National Institutes of Health (NIH) and National Science Foundation (NSF) frequently promulgate guidance in the form of notices, blog posts, frequently asked questions (FAQs), etc. to communicate interpretations of, and elaborate on, regulations or award terms and conditions that govern a federal funding recipient’s obligations and compliance requirements.

As we enter 2022, one area where this shift may be particularly relevant relates to current and pending support disclosures generally and those bearing on questions of possible foreign influence specifically. Deciding what must be included in such disclosures can be a challenge given the fluidity of the regulatory regime. Indeed, over the past couple of years, sponsors such as NSF and NIH have issued numerous guidance documents addressing the subject of foreign influence. Under the Garland memo, federal grantees may find DOJ attorneys more open to enforcement actions relying at least in part on FAQs, blog posts and the like. As a result, an already challenging compliance environment may become more so.

Share This Insight

Previous Entries

Study Guide

May 21, 2024

The U.S. Department of Education recently issued final regulations governing Title IX, the federal civil rights law prohibiting sex-based discrimination in education programs or activities—such as public or private schools, universities, local or state educational agencies, and museums—that receive federal financial assistance. These new regulations, issued on April 19, 2024, and slated to go into effect on August 1, 2024, make significant changes to the prior Title IX regulations issued in 2020. Whereas the 2020 regulations included a narrower definition of sexual harassment and focused on due process concerns, the 2024 regulations—more akin to the regulations under the Obama administration—broaden the focus of Title IX to sex-based harassment more generally.

...

Read More

Study Guide

September 27, 2023

The National Institutes of Health (NIH) recently moved forward with a controversial new policy requiring foreign subrecipients to provide, at least once per year, copies of lab notebooks, data and documentation that support research outcomes described in a progress report to the prime award recipient. The new policy is in direct response to recent audits conducted by the Department of Health and Human Services, Office of Inspector General (DHHS OIG) and the Government Accountability Office (GAO), each of which raised concerns about NIH’s oversight of funds provided to, among other institutions, the Wuhan Institute of Virology. More generally, the new NIH policy is among the latest salvos in the government’s ongoing efforts to impose stricter security requirements on U.S. taxpayer-funded research.

Read More

...

Read More

Study Guide

August 16, 2023

On July 28, 2023, the Biden administration issued “Executive Order on Federal Research and Development in Support of Domestic Manufacturing and United States Jobs” (the “Executive Order”). How federal agencies implement certain of the Executive Order’s provisions may have a meaningful impact on the existing university, academic medical center, and independent research institution technology transfer processes. Moreover, when viewed in conjunction with other recent actions, the Executive Order is further indicia of the administration’s ongoing assessment and evaluation of the Bayh-Dole Act's technology transfer model. Universities and other research institutions should therefore continue to closely monitor technology transfer-related developments and weigh in when offered an opportunity to participate in rule-making or other legislative or regulatory processes.

Read More

...

Read More

Study Guide

August 2, 2023

Congressional Republicans are increasingly focused on ensuring that U.S. colleges and universities are properly disclosing gifts and contracts from foreign sources under Section 117 of the Higher Education Act of 1965, 20 U.S.C. §1011f (“Section 117”). The Higher Education and Workforce Development Subcommittee of the House Committee on Education and the Workforce (the “Committee”) held a hearing on July 18, 2023 titled Exposing the Dangers of the Influence of Foreign Adversaries on College Campuses, which discussed the enforcement, and even potential expansion, of Section 117.

...

Read More

Study Guide

July 5, 2023

Following the Supreme Court’s June 30, 2023 ruling determining that the Biden-Harris administration did not have authority to carry out its student debt forgiveness plan, the administration released a fact sheet detailing new actions to provide debt relief and support for student loan borrowers.

...

Read More

Study Guide

June 30, 2023

On June 29, 2023, the U.S. Supreme Court released its highly anticipated decision that overturned 45 years of protection for colleges and universities considering the race of applicants in their admissions process. The Court found that the use of race-conscious admissions by the University of North Carolina and Harvard University is not constitutional.

...

Read More

Study Guide

June 30, 2023

On June 30, in Biden v. Nebraska, the Supreme Court ruled against the Biden administration’s student loan relief plan in a 6-3 decision. The plan, which was estimated to impact more than $430 billion of student loan principal, would have canceled student loan debt for more than 40 million borrowers.

...

Read More

Study Guide

March 27, 2023

H.R. 5, the Parental Bill of Rights Act, passed in the House of Representatives on Friday, March 24, 2023 by a vote of 213 – 208. Only Republicans supported the bill and five Republicans – Reps. Andy Biggs, Ken Buck, Matt Gaetz, Mike Lawler, and Matt Rosendale – joined all House Democrats in voting against the bill.

...

Read More

© 2024 Akin Gump Strauss Hauer & Feld LLP. All rights reserved. Attorney advertising. This document is distributed for informational use only; it does not constitute legal advice and should not be used as such. Prior results do not guarantee a similar outcome. Akin is the practicing name of Akin Gump LLP, a New York limited liability partnership authorized and regulated by the Solicitors Regulation Authority under number 267321. A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, please see our Legal Notices page.