On February 5, 2025, Attorney General Pamela Bondi released a brief but powerful memorandum, entitled “Reinstating the Prohibition on Improper Guidance Documents” that could reshape how the Department of Justice (DOJ) approaches False Claims Act (FCA) enforcement. The “Bondi Memo” rescinds Attorney General Merrick Garland’s 2021 guidance on agency reliance upon sub-regulatory documents, revives the principles of the 2017 Sessions Memo and 2018 Brand Memo, and directs DOJ leadership to deliver strategies for curbing “the illegal or improper use of guidance documents.” This is more than a policy tweak—it is part of a broader shift returning DOJ to first principles: laws are made by Congress, not by bureaucratic fiat.
The timing could not be more significant. Just months earlier, the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo ended four decades of Chevron deference, removing the default presumption that courts must defer to agency interpretations of ambiguous statutes. Together, Loper Bright and the Bondi Memo appear to realign the enforcement landscape, ensuring that regulated parties cannot be held liable merely for failing to follow an agency “FAQ” or provider manual. The days of what some have called “regulation by blog post” may be coming to an end.
A Return to Rule of Law
The Sessions Memo in 2017 made waves by declaring that DOJ would no longer enforce guidance documents as if they were binding law. Rachel Brand’s follow-up in 2018 went further, prohibiting DOJ attorneys from using noncompliance with guidance as presumptive evidence of a violation. These directives were not a deregulatory free-for-all—they merely reinforced that agencies must use notice-and-comment rulemaking, as required by the Administrative Procedure Act (APA), before imposing new legal duties on the public.
The Biden DOJ reversed course in 2021, with Garland encouraging prosecutors to rely on sub-regulatory guidance to interpret ambiguous legal requirements. That approach made many in the regulated community uneasy, effectively outsourcing statutory interpretation to agency staffers armed with memos, not laws.
Bondi’s move is thus a course correction. Her memo reminds DOJ that guidance “violates the law” when it functions as a substitute for proper rulemaking. By echoing the Sessions/Brand framework, the Memo directs prosecutors to tether FCA theories to statutes, regulations, or contracts—not to informal bulletins or LCDs that never saw public comment.
Impact on FCA Elements
For FCA defendants, this shift is more than symbolic. Falsity must now be grounded in a binding obligation. A failure to comply with a Medicare manual or CMS FAQ will not, standing alone, make a claim “legally false.” Prosecutors can still point to guidance as evidence of knowledge, especially after SuperValu, but only where the underlying requirement exists independently in law.
Materiality arguments may also gain traction. Under Escobar, a misrepresentation is material only if it would influence the government’s decision to pay. If the government keeps paying despite known violations of a manual provision, defendants may now argue more persuasively that such guidance was never “material.”
Practical Takeaways for Compliance Officers
The compliance takeaway is clear: companies should map every legal duty to its source—statute, regulation, or contract clause—and flag which obligations derive solely from guidance. Documenting deliberations when interpreting ambiguous rules is critical, as is aligning payer contracts to avoid unintended incorporation of non-binding manuals.
A Conservative Shift With Lasting Effects
In the Bondi era, DOJ seems poised to stop treating every bureaucratic pronouncement as gospel. Combined with Loper Bright, this is a rebalancing of power away from unelected administrators and toward Congress, the courts, and the text of the law. For businesses and compliance officers, this represents both a shield and a challenge: a shield against runaway enforcement theories, and a challenge to keep programs anchored in actual legal obligations.
Pam Bondi’s one-page memo may go down as a watershed moment—a quiet but decisive push to remind Washington that guidance should guide, not govern.
During today’s RACMonitor’s Monitor Monday broadcast today, the panelists and I were chatting in the live discussion about which questions we should tackle if time allowed. My co-panelist, David Glaser, offered a brilliant one: “Do you think that this pendulum will, eventually, just go back to the other side?” It’s a question that captures exactly what so many providers are wondering — whether this much-needed correction will last, or if we are doomed to return to a world where government agencies can punish providers based on informal guidance and FAQs. Based on time constraints, we were unable to discuss his question on air. But here is me answer:
My answer is an emphatic “No.” This is not simply another political swing of the pendulum. The Bondi Order does more than shift tone — it re-centers the system on the rule of law. It ensures that penalties cannot be premised on informal guidance or CMS FAQs, which were never subject to public notice-and-comment rulemaking. For too long, providers were subjected to the whims of unelected agency officials issuing guidance that carried the force of law without ever being voted on or vetted. This was regulatory overreach, plain and simple.
David’s question allowed us to highlight that what we are witnessing now is not just a change in administration but a structural return to legality and fairness. The pendulum has stopped swinging wildly and has landed in a position that respects providers’ rights and demands that government agencies play by the same rules as everyone else. This is not politics — this is the law finally catching up with common sense.