Study Guide

In July 2022, the DOJ released a Comprehensive Cyber Review report (the “Review”) summarizing its assessment of its own cyber-related activities and including recommendations focused on its cyber-centric “offensive” (i.e., cyber threat investigations and enforcement) and “defensive” (i.e., approaches to risk mitigation) activities. A key finding declared that “many of the cybersecurity provisions and standards set forth for federal contractors were found to be insufficiently rigorous.” The Review went on to note that where contractual cybersecurity standards were not met, the Department’s Civil Cyber-Fraud Initiative (CCFI), first announced in October 2021, would continue to utilize the False Claims Act (FCA) to pursue cybersecurity-related cases against government contractors and grant recipients. The Review comes on the heels of a recent FCA settlement with Aerojet Rocketdyne Inc. Many colleges, universities and independent research institutions are now in the midst of planning for enhanced research security obligations arising out of the January 2022 National Security Presidential Memorandum 33 Implementation Guidance (the “NSPM-33 Guidance”).

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Over the past three plus years, the issue of foreign influence over U.S. government-sponsored research has been front and center for the research community. There have been numerous high-profile prosecutions of professors, and civil enforcement actions against research institutions. Presidential Memorandum 33 (NSPM-33) set forth the goal of “strengthen[ing] protections of United States Government-supported R&D against foreign government interference and exploitation" while "maintaining an open environment to foster research discoveries and innovation that benefit our nation and the world.” In August 2021, the Office of Science and Technology Policy (OSTP) tasked the National Science and Technology Council with promulgating “clear and effective” NSPM implementation guidance. NSTC issued its guidance document on January 3, 2022, which includes a five-part platform to enhance research security.  

As we near the end of the first year of the Biden administration, we wanted to highlight a Department of Justice (DOJ or “the Department”) action that may become increasingly relevant in the federal research space in 2022. Through the so-called “Garland Memo,” DOJ rescinded two Trump-era Memoranda—the Sessions Memo and the Brand Memo—that had restricted DOJ attorneys from using noncompliance with agency sub-regulatory guidance as a basis for False Claims Act (FCA) cases and other enforcement actions. The Garland Memo indicated that the previous memoranda had “hampered Department attorneys when litigating cases where there is relevant agency guidance,” and instructed Department attorneys in all pending and future actions to rely on guidance documents in “appropriate circumstances,” including when they may be entitled to deferential or persuasive weight. Finally, it incorporated these changes into the Justice Manual and the Code of Federal Regulations.