Key Takeaways

• The revised Justice Manual directs DOJ attorneys to assess dismissal in every qui tam action.
• DOJ may revisit dismissal throughout the litigation, creating new opportunities for defendants to engage with the government after declination.
• DOJ also reinstated its policy limiting reliance on agency guidance documents, reinforcing that FCA claims must be based on alleged violations of binding legal requirements.

On September 18, 2026, the Department of Justice (DOJ) announced revisions to the Justice Manual, its internal policy governing investigations and litigation by Department attorneys. The changes address DOJ's use of agency guidance in civil enforcement matters and dismissal of qui tam actions under the False Claims Act (FCA). For companies facing FCA investigations or litigation, the revised guidance on dismissal of declined qui tam actions is likely to have the greatest practical significance.

DOJ Revises Guidance on Qui Tam Dismissals

The revised Justice Manual strengthens DOJ's existing guidance regarding dismissals under 31 U.S.C. § 3730(c)(2)(A), which permits the government to dismiss a qui tam action notwithstanding a relator's objection, so long as the relator is afforded notice and an opportunity for a hearing. Under the prior version of the Justice Manual, attorneys evaluating whether to decline intervention were instructed to consider whether dismissal would serve the interests of the United States. The revised provision directs attorneys to assess in every qui tam case whether dismissal is warranted.[1]

The revision also makes clear that dismissal remains under consideration after declination: Where DOJ determines that dismissal is not appropriate at the conclusion of its investigation, attorneys may revisit that determination as litigation progresses.

The Justice Manual continues to identify seven nonexclusive factors that may support dismissal:

• Curbing meritless qui tams;
• Preventing parasitic or opportunistic qui tam actions that duplicate a pre-existing government investigation and add no useful information to the investigation;
• Preventing interference with an agency's policies or the administration of its programs
• Controlling litigation brought on behalf of the United States, in order.to protect the Department's litigation prerogatives;
• Safeguarding classified information and national security interests;
• Preserving government resources, particularly where the government's costs (including the opportunity costs of expending resources on other matters) are likely to exceed any expected gain; and
• Addressing egregious procedural errors that could frustrate the government's efforts to conduct a proper investigation.

Notably, the revisions to Section 4-4.111 broaden the first dismissal factor. The prior version referred to qui tam actions that "facially lack merit," while the revised provision now refers more broadly to "meritless" qui tam actions. This change comes against the backdrop of the Supreme Court's decision in United States ex rel. Polansky v. Executive Health Resources, Inc., which confirmed DOJ's authority to intervene and seek dismissal at any stage of a qui tam action.[2]

DOJ Revises Policy Governing Agency Guidance

DOJ also revised Section 1-19.000 of the Justice Manual, which addresses the Department's use of agency guidance documents in affirmative civil enforcement matters. The revision restores DOJ's prior policy regarding the use of agency guidance documents, which was rescinded in 2021 and reinstated in 2025. As a result, FCA enforcement actions must be based on alleged violations of binding legal requirements, not solely on noncompliance with agency guidance. DOJ may, however, continue to rely on guidance documents as evidence relevant to notice, knowledge, professional standards and other issues bearing on whether a legal violation occurred.

What Companies Should Consider

The revised Justice Manual guidance is particularly relevant where DOJ declines to intervene and a relator proceeds with litigation. In those cases, DOJ's decision not to intervene no longer marks the end of the Department's consideration of whether dismissal is appropriate. The revised Manual instructs DOJ attorneys to assess whether dismissal serves the government's interests at the time of declination and permits DOJ attorneys to revisit dismissal as the litigation develops.

For defendants, that creates additional opportunities to engage with DOJ regarding whether a qui tam action serves the interests of the United States. As the record develops, defendants should evaluate whether developments in the case support dismissal under Section 4-4.111, including where a relator's claims are meritless, duplicative of government efforts, inconsistent with agency priorities, or otherwise implicate one or more of the Justice Manual's dismissal factors.

BakerHostetler's White Collar, Investigations and Securities Enforcement and Litigation team comprises seasoned attorneys and former Department of Justice officials, including former unit chiefs and former U.S. Attorneys, with extensive experience representing clients in False Claims Act investigations, qui tam litigation, government enforcement actions, and compliance matters.

[1] U.S. Dep't of Justice, Justice Manual § 4-4.111, DOJ Dismissal of a Civil Qui Tam Action (2026).

[2] United States ex rel. Polansky v. Executive Health Res., Inc., 599 U.S. 419 (2023).