Following leadership changes at the Department of Justice’s (DOJ) Civil Division, Brett Shumate, recently confirmed as the assistant attorney general, issued a memorandum directing DOJ attorneys to “use [their] enforcement authorities to advance the administration’s policy objectives” (the “Civil Enforcement Memo”). The June 11 Civil Enforcement Memo — which follows an earlier Criminal Division enforcement memo — states that DOJ will target the following areas for civil investigations and litigation:
- Diversity, Equity and Inclusion (DEI) Programs. DOJ will use the federal False Claims Act, which prohibits submitting or causing the submission of false claims for federal funds, to “combat ... private-sector DEI preferences, mandates, policies, programs and activities.” Expect DOJ to argue that by engaging in what the department perceives as DEI activity, businesses and educational institutions that apply for and receive federal grant and contract funds are falsely — and even impliedly — certifying compliance with the administration’s views of federal civil rights laws.[1]
- Antisemitism. The Civil Enforcement Memo suggests that DOJ will take a similar stance on perceived antisemitic activities by arguing that businesses and educational institutions that “participat[e] in or allow[] antisemitism” are violating the False Claims Act by falsely — and impliedly — certifying compliance with the administration’s view of federal civil rights laws.
- Gender-Related Health Care. DOJ will “use all available resources to prioritize investigations of doctors, hospitals, pharmaceutical companies and other appropriate entities” involved in gender-related health care. Expect DOJ to argue that claims submitted to Medicare, Medicaid and other federal health care programs for any health care services related to gender-related health care are not medically necessary, not covered by those programs and are otherwise “false” in violation of the False Claims Act.
DOJ also stated that it will use the federal Food, Drug and Cosmetic Act (FDCA), which regulates drugs and medical devices, to investigate any prescription, marketing or promotion of a drug or device (on- or off-label) as an effective puberty blocker or sex hormone or as useful in gender-related health care.
- Immigration. DOJ will use civil denaturalization proceedings to revoke the citizenship of convicted felons, individuals facing federal criminal charges and anyone who “unlawfully procure[s] citizenship, ... through fraud or concealment of material information[.]” DOJ will also use civil remedies in efforts to invalidate state and local laws deemed to conflict or interfere with the administration’s immigration priorities.
The Civil Enforcement Memo follows a series of executive orders outlining the administration’s priorities. Businesses, educational institutions and health care providers that receive or submit claims for federal funds face significant exposure in these areas because, while the administration’s directives are clear, DOJ continues to develop its views on specific objectionable conduct. Warner’s expertise includes decades of experience investigating and litigating False Claims Act and FDCA cases on the defense and government sides.
[1] Notably, in Executive Order 14,173, President Trump ordered that as of January 21, 2025, “[t]he head[s] of each agency” must include “in every contract or grant award” (1) “[a] term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of [the False Claims Act]”; and (2) “[a] term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
