In the Matter of the Enforcement of New Jersey False Claims Act Subpoenas
In the Matter of the Enforcement of New Jersey False Claims Act Subpoenas
Opinion of the Court
delivered the opinion of the Court.
We affirm the decision of the Appellate Division panel, substantially for the reasons stated in Judge Fisher’s comprehensive opinion, reported at 444 N.J.Super. 566, 572-75, 134 A.3d 1012 (App. Div. 2016). We concur with the panel’s conclusion that the language of the New Jersey False Claims Act (NJFCA), N.J.S.A. 2A:32C-1 to -15, -17 to -18, does not authorize the Attorney General to invoke his or her administrative subpoena power in a given matter after the right to intervene in the qui tam
We briefly comment on the State’s contention that a comparison of the NJFCA and its federal counterpart, the False Claims Act (FCA), 31 U.S.C.A. §§ 3729 to 3733, demonstrates the Legislature’s intent to authorize the Attorney General to issue administrative subpoenas, whether or not the Attorney General intervenes in the action. That argument is premised on the FCA’s provision authorizing the United States Attorney General to issue investigative demands for documentary evidence, responses to interrogatories, oral testimony, or “any combination of such material, answers, or testimony.” 31 U.S.C.A. § 3733(a)(1). The FCA provides that any such demands must be served before the Attorney General “commenc[es] a civil proceeding under section 3730(a) or other false claims law, or mak[es] an election under section 3730(b)” of the federal statute. Ibid. The “election” to which the FCA refers is the Attorney General’s decision whether or not to intervene in a qui tam action. 31 U.S.C.A. § 3730(b)(4). Thus, the FCA expressly bars the United States Attorney General from issuing investigative demands following an election not to intervene in a particular action.
Here, the Attorney General argues that, because the NJFCA does not include the federal law’s specific language imposing that time limitation, our Legislature must have intended to confer on the Attorney General the power to issue administrative subpoenas even after he or she elects not to intervene. We disagree.
This is not a setting in which our Legislature has used a federal statute as a model for a counterpart provision and replicated its language but deleted a portion of the text, which would evince legislative intent to diverge from the federal approach in that
We find, however, compelling evidence of legislative intent in the structure and language of the NJFCA itself. The NJFCA addresses administrative subpoenas in N.J.S.A. 2A:32C-14(a), which is invoked when “the Attorney General has reason to believe that a person has engaged in, or is engaging in, an act or practice which violates this act, or any other relevant statute or regulation.” N.J.S.A. 2A:32C-14(a). The Legislature unambiguously provided a sixty-day time period for the Attorney General to conduct its review and elect to intervene, or not to intervene, in the action. N.J.S.A. 2A:32C-5(d), (g). During that period, the
The Attorney General’s decision not to intervene in a qui tam case starkly alters the landscape. That decision is final, and the relator is afforded the right to conduct the action. N.J.S.A. 2A:32C-6(f). The NJFCA provision addressing proceedings after the Attorney General decides not to intervene permits the Attorney General access to pleadings, motions, and deposition transcripts to monitor the progress of the case, but grants the Attorney General no power to subpoena witnesses or documents after he or she declines to intervene. N.J.S.A. 2A:32C-6. If, as a result of monitoring a qui tam action conducted by the relator, the Attorney General learns of information that warrants his or her involvement, he or she can seek leave to intervene; the NJFCA authorizes the court, on a showing of good cause, to “permit the Attorney General to intervene and take over the action on behalf of the State at a later date.” N.J.S.A. 2A:32C-6(f).
The NJFCA thus envisions a limited time period during which the Attorney General may investigate an alleged violation of the statute; the administrative subpoena is at his or her disposal at this pivotal stage. N.J.S.A. 2A:32C-5, -14(a). When that time period expires without intervention, the Attorney General’s authority to serve administrative subpoenas pursuant to N.J.S.A. 2A:32C-14(a) expires with it.
The two statutes, for example, use different terminology to describe the discovery demands that the Attorney General may serve: the FCA uses the term “civil investigative demand," 31 U.S.C.A. § 3733(a)(1), and the NJFCA refers to the demands as “subpoenas," N.J.S.A. 2A:32C-14(a). The federal and state statutes, further, do not confer identical authority to demand discovery: although both the FCA and NJFCA authorize demands for oral testimony and documents, the FCA additionally authorizes the United States Attorney General to demand written answers to interrogatories. Compare N.J.S.A. 2A:32C-14(a), with 31 U.S.C.A. § 3733(a)(1)(A) to (C).
After the unsealing of the complaint in this case, the Attorney General did not seek leave to intervene on a showing of good cause, pursuant to N.J.S.A. 2A:32C-6(f). Accordingly, we do not consider the scope of the Attorney General’s investigative authority in the event that he or she is permitted to intervene in accordance with that provision.
The dissent characterizes our interpretation of N.J.S.A. 2A:32C-5(d), N.J.S.A. 2A:32C—5(g), N.J.S.A. 2A:32C-6(f), and N.J.S.A. 2A:32C-14(a) as an application of the canon of statutory construction by which a specific provision in a statute predominates over a general provision in the event that the two conflict. Post at 296, 162 A.3d at 268-69. That principle is not the basis for our construction of the NJFCA, or the Appellate Division's holding. See In re Enforcement of N.J. False Claims Act Subpoenas, 444 N.J.Super. 566, 572-74, 134 A.3d 1012 (App.
Dissenting Opinion
dissenting.
As the majority correctly recognizes, whether the New Jersey False Claims Act (NJFCA), N.J.S.A. 2A:32C-1 to -18, places certain temporal limits on the Attorney General’s subpoena power is a matter of statutory interpretation. I dissent because the majority fails to properly credit the plain language of N.J.S.A. 2A:32C-14, which does not limit the Attorney General’s power to issue subpoenas following the unsealing of a qui tarn complaint or an intervention decision. Even if we were to venture beyond the plain language of N.J.S.A. 2A:32C-14, there still would be no basis to conclude that the Attorney General’s subpoena power is constrained in this manner.
I.
When interpreting a statute, a court’s “overriding goal” is to discern legislative intent. Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386, 143 A.3d 254 (2016) (quoting Jersey Cent. Power &
The provision of the NJFCA that governs the Attorney General’s subpoena power, N.J.S.A. 2A:32C-14, provides in pertinent part that,
a. If the Attorney General has reason to believe that a person has engaged in, or is engaging in, an act or practice which violates this act, or any other relevant statute or regulation, the Attorney General or the Attorney General’s designee may administer oaths and affirmations, and request or compel the attendance of witnesses or the production of documents. The Attorney General may issue, or designate another to issue, subpoenas to compel the attendance of witnesses and the production of books, records, accounts, papers and documents.
A plain reading of this statutory text makes it crystal clear that the Attorney General has broad power to issue subpoenas. Other than the prerequisite that the State have a “reason to believe” a person has violated the NJFCA or “any other relevant statute or regulation,” the text places no temporal restriction on the Attorney General’s subpoena power. Because the plain language of N.J.S.A. 2A:32C-14 does not impose upon the Attorney General a requirement that subpoenas be issued before the unsealing of a qui tarn complaint or an intervention decision, the Court should not place its own limits on the statute. Application of the plain language rule should be the end of the analysis.
II.
Notwithstanding the clear statutory text, the majority posits that N.J.S.A. 2A:32C-14 is ambiguous and holds that the NJFCA establishes a temporal limitation on when the Attorney General
A.
Relative to the federal False Claims Act, 31 U.S.C.A. 3729 to 3733, the NJFCA was enacted quite recently. Compare 12 Stat. 696 (March 2, 1863), and United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins. Co., 944 F.2d 1149, 1153 (3d. Cir. 1991) (noting the federal “False Claims Act was adopted in 1863”), with L. 2007, c. 265 (approved Jan. 13, 2008), and State ex rel. Hayling v. Corr. Med. Servs., Inc., 422 N.J.Super. 363, 367, 28 A.3d 1246 (App. Div. 2011) (recognizing the NJFCA “was enacted on January 13, 2008”). A cardinal rule of statutory interpretation is that courts should “presume a legislature had existing federal statutes on the same subject in mind when enacting a state statute.” Norman J. Singer & J.D. Shambie Singer, 2B Sutherland Statutory Construction § 51:6 (7th ed. 2008). Indeed, the statute’s legislative history makes clear that the Legislature had the federal False Claims Act in mind when it adopted the NJFCA. See e.g., Hayling, supra, 422 N.J.Super. at 372, 28 A.3d 1246 (quoting NJFCA co-sponsor, Assemblyman Herb Conaway, Jr., describing the Act to the General Assembly’s Judiciary Committee “as New Jersey’s whistle blower statute which tracks the federal law”). Although the Appellate Division in Hayling, declined to give interpretive weight to the Assemblyman’s statement in considering whether the NJFCA should be given retroactive effect, the statement nonetheless demonstrates that the NJFCA is modeled on the similarly worded federal False Claims Act.
Notably, the Legislature has twice declined to follow the federal False Claims Act’s CID provision and place time restrictions on the New Jersey Attorney General’s subpoena power. When the NJFCA was first promulgated in 2008, the federal False Claims Act limited the U.S. Attorney General’s power to issue CIDs to the period “before commencing a civil proceeding,” 31 U.S.C.A. § 3733(a)(1) (2007), but our State’s Legislature declined to incorporate any such restriction into the NJFCA.
In 2009, Congress “clarified” the language of the federal False Claims Act, including 31 U.S.C.A. § 3733(a)(1), by amending it to
In 2010, after that federal clarification, the New Jersey Legislature amended the NJFCA to align it more closely with the federal False Claims Act. See Sponsor’s Statement to S. 2534 4 (L. 2009, c. 265 (approved Jan. 17, 2010)). Although it amended several provisions of the NJFCA in response to Congress’s amendments to the federal False Claims Act, the Legislature chose not to modify the NJFCA in one key respect: it did not revise N.J.S.A. 2A:32C-14(a), the provision governing the New Jersey Attorney General’s subpoena power. Thus, even though Congress amended 31 U.S.C.A. § 3733(a)(1), our State Legislature again declined to adopt the time limitations Congress placed on the federal subpoena power.
B.
In addition, it is clear that the Legislature knew how to include time limitations on the Attorney General’s investigatory powers because the Legislature has done so elsewhere. For example, our State’s racketeering statute limits the Attorney General’s issuance of investigative interrogatories to “prior to the institution of a civil or criminal proceeding.” N.J.S.A. 2C:41-5(a). Likewise, New Jersey’s antitrust statute limits the Attorney General’s issuance of subpoenas to “prior to the institution of a criminal or civil action.” N.J.S.A. 56:9—9(a)(1).
When the Legislature imposes certain limits on the Attorney General’s investigative powers in some statutes but excludes those limits in others, such restrictions should not be inferred where excluded. See Richerson v. Jones, 551 F.2d 918, 928 (3d Cir. 1977) (“[W]here a statute with respect to one subject contains a given provision, the omission of such provision from a similar statute is significant to show a different intention existed.” (quoting Gen. Elec. Co. v. S. Const. Co., 383 F.2d 135, 139 (5th Cir. 1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1049, 19 L. Ed.2d 1148 (1968))). The NJFCA’s silence on temporal restrictions in the face of the Legislature’s decision to impose time limits on the Attorney General’s investigative powers in the State’s racketeering and antitrust laws reinforces the legislative intent not to limit the Attorney General’s subpoena power in this manner when investigating false claims.
C.
Finally, we have “consistently stated that[,] ‘[i]n reading and interpreting a statute, primary regard must be given to the fundamental purpose for which the legislation was enacted.’ ” State v. Tischio, 107 N.J. 504, 511, 527 A.2d 388 (1987) (quoting N.J. Builders, Owners & Managers Ass’n v. Blair, 60 N.J. 330,
A basic rule of statutory interpretation is that remedial statutes should be construed broadly to effectuate their intended purpose. Smith v. Millville Rescue Squad, 225 N.J. 373, 390, 139 A.3d 1 (2016) (noting that remedial legislation should be “liberally construed”); Young v. Sobering Corp., 141 N.J. 16, 25, 660 A.2d 1163 (1995) (“Where the Legislature’s intent is remedial, a court should construe a statute liberally.”). By reading a temporal limitation into the NJFCA’s subpoena provision, the majority narrowly construes a significant tool that the Attorney General routinely utilizes to combat fraud and abuse in State programs and procurement. The majority’s reasoning, therefore, runs contrary to yet another fundamental rule of statutory construction.
III.
In holding that the NJFCA limits the Attorney General’s power to issue subpoenas following the unsealing of a qui tarn complaint or an intervention decision, the majority points to N.J.S.A. 2A:32C-5 and N.J.S.A. 2A:32C-6. Specifically, the majority highlights sections 5(g) and 6(f) of the NJFCA. The majority suggests that those specific provisions should prevail over the more general provision governing subpoenas. In concluding that sections 5(g) and 6(f) impose temporal parameters around the Attorney General’s subpoena power, the majority misapprehends the interplay between those statutory provisions and N.J.S.A. 2A:32C-14.
The “specific-over-general” maxim upon which the majority relies applies only “when there is a conflict between general and specific provisions of a statute.” Wilson v. Unsatisfied Claim & Judgment Fund Bd., 109 N.J. 271, 278, 536 A.2d 752 (1988); see
Here, there is no conflict between N.J.S.A. 2A:32C-5(g) and N.J.S.A. 2A:32C-6(f), and N.J.S.A. 2A:32C-14. Section 5(g) sets limits on the seal period and the Attorney General’s time to decide to intervene as of right, not on his time to investigate. The majority reasons that if the Attorney General were allowed to issue subpoenas after a qui tam lawsuit is unsealed, or after the time for making the initial intervention decision as of right, the 60-day period in section 5(g) would be rendered nugatory. This argument erroneously presupposes that subpoenas can be issued only to determine whether to intervene as of right in a qui tam suit. The NJFCA makes clear that the Attorney General can investigate a relator’s claims for purposes other than intervention in a qui tam suit. See N.J.S.A. 2A:32C-14(a) (providing that Attorney General may issue subpoenas if he or she “has reason to believe that a person has engaged in ... an act or practice which violates this act, or any other relevant statute or regulation” (emphasis added)); N.J.S.A. 2A:32C-6(h) (stipulating that “application of one civil remedy ... shall not preclude the application of any other remedy, civil, administrative or criminal”). Hence, reading the NJFCA to impose no time limit on the Attorney General’s subpoena power does not render section 5(g) meaningless.
For those reasons, I respectfully dissent from the judgment of the Court.
"A CID is analogous to an investigative subpoena." FTC v. Mfrs. Hanover Consumer Servs., Inc., 543 F.Supp. 1071, 1073 (E.D. Pa. 1982).
In contrast to New Jersey, other states have adopted the time limitations that Congress placed on the U.S. Attorney General's CID power by including such restrictions in their own state statutes. See, e.g., Ga. Code Ann. § 23-3-125(b)(1) (2017) (limiting Georgia Attorney General’s power to issue CID to time period before commencing civil action or making election to intervene); 740 Ill. Comp. Stat. 17576(a)(1) (2017) (same); Mass. Gen. Laws ch. 12, § 5N(1) (2017) (same).
Accord TracFone Wireless, Inc. v. Comm'n on State Emergency Commc’ns, 397 S.W.3d 173, 181 (Tex. 2013) (“But the specific-over-general canon applies only when two statutory provisions are irreconcilable."); Wik v. Wik, 681 P.2d 336, 340 (Alaska 1984) (“The rule ... is that a statute dealing with specific subject matter in a detailed way prevails over a more general statute only if the two statutes cannot be harmonized.").
Furthermore, the federal corollary to 5(g), 31 U.S.C.A. § 3730(b)(4), is almost identical, yet Congress placed the temporal limit on the U.S. Attorney General’s
Reference
- Full Case Name
- In the Matter of the Enforcement of New Jersey False Claims Act Subpoenas (077506) (Essex and Statewide)
- Cited By
- 2 cases
- Status
- Published