On February 19, 2026, Brenna Jenny, Deputy Assistant Attorney General (DAAG) for the Commercial Litigation Branch of the Civil Division at the U.S. Department of Justice (DOJ), spoke at the Federal Bar Association's (FBA) annual qui tam conference in Washington, DC. Her comments provide useful insights into the DOJ's enforcement priorities and strategies under the Trump administration, including details about the DOJ's approach for using the False Claims Act (FCA) to target allegedly unlawful diversity, equity, and inclusion (DEI) programs. 

Use of DEI as an FCA Trigger

In a panel regarding the use of the FCA to police "illegal DEI," DAAG Jenny described DOJ's views of what constitutes unlawful discrimination, expanding on the positions previously set out in the DOJ's 2025 guidelines regarding unlawful discrimination. Jenny emphasized that merely having a DEI program is not sufficient for the DOJ to commence an FCA investigation. Instead, she said that the DOJ's "core" FCA investigations in the discrimination context are focused on programs and practices that pressure managers or recruiters to make hiring and promotion decisions based on race or sex. The DOJ is focusing especially on three kinds of activity: 

• Setting or tracking demographic goals for desired proportions of race or gender representation for hiring. Jenny noted that the DOJ has seen corporations make use of color-coded charts showing green (desirable) and red (undesirable) levels of representation in hiring. She also identified "diverse slate" policies as an example of the type of policy that could prompt investigation.
• Compensation requirements tied to meeting demographic goals, especially for senior executives or recruiters. 
• Requirements for employees to set their own DEI goals, which are then considered in the context of promotion and compensation decisions. 

Jenny also stated that cases based on alleged discriminatory behavior are receiving expedited treatment within her office and are a priority of the current administration.

Clues Regarding DOJ Enforcement Priorities

In her keynote address, DAAG Jenny reviewed the current status of FCA enforcement, noting the record volume of qui tam lawsuits initiated in fiscal year (FY) 2025 (see our alert on this here). She stated that this trend shows no signs of abating, with 480 qui tam complaints filed in this FY already.

Jenny identified factors that the DOJ will consider in determining whether to exercise its enforcement discretion for this influx of claims, including at least one point of departure from the prior administration: The DOJ has been explicitly directed not to bring actions based on violations of sub-regulatory guidance, since that guidance has not undergone notice-and-comment rulemaking and therefore lacks the authority of law. This position, first stated in a short memo from Attorney General (AG) Pam Bondi on February 5, 2025, is consistent with policies adopted in the first Trump administration by then-AG Jeff Sessions and then-Associate AG Rachel Brand. Jenny criticized former AG Merrick Garland for reversing those changes, stating that the restrictions on use of sub-regulatory guidance in the February 2025 memo "are binding legal guardrails, not optional policy positions." 

Even cases brought based on regulatory violations may be candidates for dismissal in some instances, Jenny said. She noted that the current administration views many regulations as unlawful and will not use the FCA to enforce violations of such regulations.

Jenny also discussed trends in qui tam cases, including the increasing number of cases that are brought based on data mining of publicly available information rather than insider whistleblower information. Though she expressed qualified appreciation for the information identified by some data mining entities, Jenny stated that data miners are not likely to replace whistleblowers, who continue to account for the majority of funds recovered. She noted that data miners relying on public information often add little or nothing to the DOJ's own significant data analytics capabilities, especially since the DOJ often has access to relevant non-public information. 

Finally, Jenny signaled strongly that the DOJ will make more aggressive use of its discretionary authority under 31 U.S.C. § 3730(c)(2)(A) to dismiss meritless qui tam claims over relators' objections. She stated that although this authority had been used sparingly in the past, the DOJ is now implementing policies intended to increase the use of voluntary dismissals. The DOJ is required to assess whether (c)(2)(A) dismissal is appropriate whenever it declines to intervene and to re-assess dismissal on an ongoing basis as cases proceed through litigation. Factors supporting dismissal include costs to the U.S. government from proceeding with the case, as well as "costs to American businesses" from being subject to cases that lack merit. 

Conclusion

DAAG Jenny repeatedly referred to the FCA as a "flexible tool" to be used for anti-fraud enforcement and promised continued use of the FCA for cases in traditional areas of focus such as healthcare fraud, as well as expanded enforcement in novel areas such as trade and customs law and anti-discrimination enforcement. With regard to the administration's focus on alleged discrimination through DEI programs, Jenny's comments suggest that the administration will focus primarily on demographic goals and quotas, as well as the use of targets tied to compensation or advancement. However, despite this expansion of FCA enforcement, entities targeted under the FCA may have new opportunities to engage with the DOJ to seek dismissal of claims that lack merit or that conflict with the DOJ's enforcement priorities. 

For more information, please contact:

Joshua Drew, jdrew@milchev.com, 202-626-5811

Ian A. Herbert, iherbert@milchev.com, 202-626-1496

Katherine E. Pappas, kpappas@milchev.com, 202-626-5816

Bradley E. Markano, bmarkano@milchev.com, 202-626-6061

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