In the Matter of the Enforcement of New Jersey False Claims Act Subpoenas

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
In the Matter of the Enforcement of New Jersey False Claims Act Subpoenas (A-5-16) (077506)
Argued March 13, 2017 -- Decided June 7, 2017
(NOTE: The Court did not write a plenary opinion in this case. Instead, the Court affirms the judgment of
the Appellate Division substantially for the reasons expressed in Judge Fisher’s written opinion, which is
published as In re Enforcement of N.J. False Claims Act Subpoenas, 444 N.J. Super. 566 (App. Div. 2016).)
Patterson, J. writing for the Court.
The purely legal question posed in this appeal concerns the extent to which the New Jersey False Claims
Act (NJFCA), N.J.S.A. 2A:32C-1 to -15, -17 to -18, permits the Attorney General to continue to utilize the NJFCA’s
administrative subpoena power once his right to intervene in a qui tam action has expired. Specifically, the Court
considers the propriety of an order that directed appellants John Henderson and Arthur Nardin and intervenors
Medco Health Solutions, Inc., and Express Scripts Holding Co. to comply with administrative subpoenas issued by
the Acting Attorney General (the Attorney General) pursuant to the NJFCA.
In August 2011, Paul Denis, a former Medco employee (hereafter “the relator”), commenced a qui tam
action—under seal—in the United States District Court for the District of Delaware. Two years later, the relator
amended his complaint to assert claims on behalf of the State of New Jersey; he alleged that Medco, the pharmacy
benefits manager for the State’s employee health benefits programs, perpetrated a massive fraud on the State and
other governmental entities by retaining rebates it was required to pass through to its clients, in violation of the
federal False Claims Act, 31 U.S.C.A. §§ 3729 to 3733, and the NJFCA.
Pursuant to N.J.S.A. 2A:32C-5(d), the Attorney General was required to determine, within sixty days of
service of the amended complaint, whether to intervene and take control of the State’s claims. This sixty-day period
may be extended by motion, N.J.S.A. 2A:32C-5(f), and the record reveals the Attorney General’s office repeatedly
took advantage of this opportunity; extensions granted by the district judge in the qui tam action totaled
approximately 600 days. When yet another extension was sought on March 6, 2015, the district judge granted it but
also declared that the “final intervention deadline” would be June 2, 2015.
Medco was timely served with a subpoena and, to the extent it could be argued it did not comply—a matter
in dispute—the Attorney General did not seek enforcement within the extended time period permitted by the district
judge. Moreover, there is no dispute Henderson and Nardin were not served with subpoenas until July 22, 2015—
seven weeks after the deadline’s expiration and the unsealing of the qui tam complaint.
When the district judge’s extended deadline expired, appellants refused to comply with the Attorney
General’s tardy subpoenas. In September 2015, Medco filed—and Henderson and Nardin joined in—a motion in
federal court for a protective order. While opposing Medco’s motion, the Attorney General sought—by way of the
civil action at hand—enforcement of his subpoenas. The chancery judge entered an enforcement order.
The Appellate Division reversed the trial court’s judgment in a published decision. 444 N.J. Super. 566
(App. Div. 2016). The panel concluded that with the passing of the intervention deadline and the unsealing of the
qui tam complaint, the NJFCA precluded the issuance and enforcement of subpoenas for the purpose of
investigating the false claim or claims alleged in the qui tam action.
The panel cited N.J.S.A. 2A:32C-5(g)’s requirement that, “before the expiration” of that 60-day period or
any permitted extension, the Attorney General “shall” either proceed with the action or decline to proceed with the
action. The NJFCA provides the Attorney General with no further options, the panel stated. The panel reasoned
that N.J.S.A. 2A:32C-14(a) sets forth the administrative investigatory powers granted the Attorney General but does
1
not provide an additional or separate font of power once the Attorney General declines the right to intervene in a qui
tam action within the prescribed timeframe. The panel further noted that N.J.S.A. 2A:32C-6(f) limits the Attorney
General’s rights once he has decided “not to proceed” with the qui tam action and found that, once the relator is
placed in control of the litigation, the NJFCA clearly presupposes that the Attorney General must stand down.
Mindful that the control of qui tam discovery proceedings rests with the federal court, the panel also
determined that matters of comity counsel against authorizing a separate collateral investigation by the Attorney
General. The panel recognized that the Attorney General retains the opportunity to seek intervention upon good
cause shown in the qui tam action but found that the NJFCA does not give the Attorney General the right to
investigate the allegations of the qui tam action by way of administrative subpoena or through the conducting of ex
parte interviews of witnesses as otherwise would have been permitted before he declined to intervene as of right.
The Court granted leave to appeal. 227 N.J. 375 (2016).
HELD: The Court concurs with the Appellate Division panel’s conclusion that the language of the NJFCA 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 action has expired. After the Attorney General declines to intervene in a qui tam action
pursuant to N.J.S.A. 2A:32C-5(g) and leaves that action in the relator’s control, the Attorney General loses the authority
conferred by N.J.S.A. 2A:32C-14(a) to issue administrative subpoenas.
1. The Court comments 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.
The FCA expressly bars the United States Attorney General from issuing investigative demands following an
election not to intervene in a particular action. 31 U.S.C.A. §§ 3730(b)(4), 3733(a)(1). The Court disagrees with the
Attorney General’s argument that, because the NJFCA does not include the federal law’s specific language
imposing that time limitation, the New Jersey 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. (pp. 2-3)
2. The NJFCA’s provision authorizing administrative subpoenas, N.J.S.A. 2A:32C-14(a), tracks neither the
structure nor the text of the FCA discovery provision, 31 U.S.C.A. § 3733(a)(1). The fact that N.J.S.A. 2A:32C-
14(a) does not mirror the precise wording of the FCA’s temporal limitation on the United States Attorney General’s
authority to issue subpoenas is therefore not evidence of the Legislature’s intent to grant the New Jersey Attorney
General such authority in perpetuity. (pp. 3-4)
3. There is compelling evidence of legislative intent in the structure and language of the NJFCA itself. The
Attorney General’s decision not to intervene in a qui tam case is final, and the relator is afforded the right to conduct
the action. 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. (pp. 4-6)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE FERNANDEZ-VINA, DISSENTING, expresses the view that the plain language of N.J.S.A.
2A:32C-14 does not limit the Attorney General’s power to issue subpoenas following the unsealing of a qui tam
complaint or an intervention decision. The temporal limitations in the FCA do not appear in the NJFCA, and, in
Justice-Fernandez-Vina’s view, the Legislature’s election to depart from the federal False Claims Act in this respect
evidences legislative intent not to impose a requirement that the Attorney General issue subpoenas before the
unsealing of a qui tam complaint or an intervention decision. Further, 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, according to Justice Fernandez-Vina.
CHIEF JUSTICE RABNER and JUSTICE SOLOMON join in JUSTICE PATTERSON’s opinion.
JUSTICE FERNANDEZ-VINA filed a separate, dissenting opinion, in which JUSTICE LaVECCHIA joins.
JUSTICES ALBIN and TIMPONE did not participate.
2
SUPREME COURT OF NEW JERSEY
A-5 September Term 2016
077506
IN THE MATTER OF THE
ENFORCEMENT OF NEW JERSEY
FALSE CLAIMS ACT SUBPOENAS
Argued March 13, 2017 – Decided June 7, 2017
On appeal from the Superior Court,
Appellate Division, whose opinion is
reported at 444 N.J. Super. 566 (App. Div.
2016).
John M. Falzone, Assistant Attorney General,
argued the cause for appellant (Christopher
S. Porrino, Attorney General of New Jersey,
attorney; Andrea M. Silkowitz, Melissa H.
Raksa and Brian F. McDonough, Assistant
Attorneys General, of counsel; John M.
Falzone, Joan E. Karn, Janine Matton and
Kent D. Anderson, Deputy Attorneys General,
on the briefs).
Kevin H. Marino argued the cause for
respondent Arthur Nardin (Marino, Tortorella
& Boyle, attorneys; Kevin H. Marino and John
A. Boyle on the brief).
Elizabeth J. Hampton argued the cause for
respondent John Henderson (Fox Rothschild,
attorneys; Elizabeth J. Hampton and Alain
Leibman of counsel and on the brief).
Lawrence S. Lustberg argued the cause for
intervenors Medco Health Solutions, Inc. and
Express Scripts Holding Co. (Gibbons,
attorneys; Lawrence S. Lustberg, Amanda B.
Protess, Jennifer G. Wicht and Holly M.
Conley, on the brief).
JUSTICE PATTERSON delivered the opinion of the Court.
1
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
(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 action has expired. Id. at 572-73 (citing N.J.S.A. 2A:32C-
5(g), -6(f), -14(a)). We share the panel’s view that after the
Attorney General declines to intervene in a qui tam action
pursuant to N.J.S.A. 2A:32C-5(g) and leaves that action in the
relator’s control, the Attorney General loses the authority
conferred by N.J.S.A. 2A:32C-14(a) to issue administrative
subpoenas. Id. at 572-74.
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
2
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 specific respect. See Airwork Serv. Div. v.
Dir., Div. of Taxation, 97 N.J. 290, 294 (1984), cert. denied
471 U.S. 1127, 105 S. Ct. 2662, 86 L. Ed. 2d 278 (1985) (“Where
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the Legislature adopts a new law, using as a source a statute
theretofore enacted in another jurisdiction, but omits a
provision of the source statute, the omission is construed as
being deliberate.” (quotation omitted)). To the contrary, the
NJFCA’s provision authorizing administrative subpoenas, N.J.S.A.
2A:32C-14(a), tracks neither the structure nor the text of the
FCA discovery provision, 31 U.S.C.A. § 3733(a)(1).1 The fact
that N.J.S.A. 2A:32C-14(a) does not mirror the precise wording
of the FCA’s temporal limitation on the United States Attorney
General’s authority to issue subpoenas is therefore not evidence
of the Legislature’s intent to grant the New Jersey Attorney
General such authority in perpetuity. In short, the federal
statute offers little guidance on the specific issue raised in
this case.
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),
1 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).
4
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 Attorney General clearly has the authority to
issue subpoenas in accordance with N.J.S.A. 2A:32C-14(a).
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
5
intervene and take over the action on behalf of the State at a
later date.” N.J.S.A. 2A:32C-6(f).2
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.3
We therefore concur with the Appellate Division panel’s
determination that the trial court erred when it enforced the
2 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.
3 Our dissenting colleague 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 ___ (slip op. at 10). 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 (App.
Div. 2016). Instead, we view the relevant provisions of the
NJFCA to jointly express the Legislature’s intent to afford to
the Attorney General an opportunity to investigate a qui tam
action using administrative subpoenas, and to limit that
opportunity to the sixty-day period prior to the unsealing of
the complaint. See N.J.S.A. 2A:32C-5(d), N.J.S.A. 2A:32C-5(g),
N.J.S.A. 2A:32C-6(f), N.J.S.A. 2A:32C-14(a).
6
Attorney General’s administrative subpoenas and ordered
compliance with those subpoenas. The judgment of the Appellate
Division is affirmed.
CHIEF JUSTICE RABNER and JUSTICE SOLOMON join in JUSTICE
PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA filed a separate,
dissenting opinion, in which JUSTICE LaVECCHIA joins. JUSTICES
ALBIN and TIMPONE did not participate.
7
SUPREME COURT OF NEW JERSEY
A-5 September Term 2016
077506
IN THE MATTER OF THE
ENFORCEMENT OF NEW JERSEY
FALSE CLAIMS ACT SUBPOENAS
JUSTICE FERNANDEZ-VINA 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 tam 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 (2016) (quoting Jersey Cent. Power & Light Co.
v. Melcar Util. Co., 212 N.J. 576, 586 (2013)). It is a well-
established canon of statutory construction that the starting
point for determining the Legislature’s intent is the language
1
of the statute itself. Ibid. If the language is clear and
unambiguous on its face, that is the end of the interpretive
inquiry. See ibid. (“‘If the plain language leads to a clear
and unambiguous result, then our interpretive process is over.’
It is only when there is ambiguity in the language that we turn
to extrinsic evidence, such as legislative history.” (quoting
Richardson v. Bd. of Trs., Police & Firemen’s Ret. Sys., 192
N.J. 189, 195-96 (2007))).
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
2
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 tam 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 may issue subpoenas. The majority’s position violates
accepted principles of statutory construction. See, e.g., State
v. Smith, 197 N.J. 325, 332 (2009) (“Plainly, courts are not to
read into a statute words that were not placed there by the
Legislature.”). Moreover, even looking beyond the plain
language of N.J.S.A. 2A:32C-14, there is still no support for
the majority’s conclusion.
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 (Feb. 25, 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,
3
2008), and State ex rel. Hayling v. Corr. Med. Servs., Inc., 422
N.J. Super. 363, 367 (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 (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.
The section of the federal False Claims Act that governs
the use of civil investigative demands (CIDs) is 31 U.S.C.A.
4
§ 3733.4 That section stipulates that “the [U.S.] Attorney
General, or a designee, may, before commencing a civil
proceeding under section 3730(a) or other false claims law, or
making an election under section 3730(b), issue in writing and
cause to be served upon such person, a [CID].” Ibid. (emphasis
added). Thus, the federal False Claims Act, after which the
NJFCA was modeled, expressly limits the use of CIDs to the time
period before the Attorney General makes an election whether to
intervene in a qui tam action or commences a false claims
action. Those same temporal limitations simply do not appear in
the NJFCA. The Legislature’s election to depart from the
federal False Claims Act in this respect evidences legislative
intent not to impose a requirement that the Attorney General
issue subpoenas before the unsealing of a qui tam complaint or
an intervention decision. See Airwork Serv. Div., Div. of Pac.
Airmotive Corp. v. Director, Div. of Taxation, 97 N.J. 290, 294
(1984) (“Where the Legislature adopts a new law, using as a
source a statute theretofore enacted in another jurisdiction,
but omits a provision of the source statute, the omission is
construed as being deliberate.” (citation omitted)), cert.
denied, 471 U.S. 1127, 105 S. Ct. 2662, 86 L. Ed. 2d 278 (1985).
1 “A CID is analogous to an investigative subpoena.” FTC v. Mfrs.
Hanover Consumer Servs., Inc., 543 F. Supp. 1071, 1073 (E.D. Pa.
1982).
5
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 its current form. See Appendix to Letter from
Brian A. Benczkowski, Off. of Legis. Aff., U.S. Dep’t of
Justice, to Sen. Patrick J. Leahy 15-16 (Feb. 21, 2008),
https://www.justice.gov/archive/ola/views-letters/110-2/02-21-
08-s2041-false-claims-correction-act.pdf (recommending that
Congress “clarify that the [U.S.] Attorney General (or his
designee) may issue CIDs in connection with a qui tam action
prior to the Government’s election to intervene or decline to
intervene in that action”); see also Pub. L. No. 111-21, § 4,
123 Stat. 1616 (amending CID provision in section entitled
“CLARIFICATIONS TO THE FALSE CLAIMS ACT TO REFLECT THE ORIGINAL
INTENT OF THE LAW” “by striking ‘the Attorney General may,
before commencing a civil proceeding under section 3730 or other
6
false claims law,’ and inserting ‘the Attorney General, or a
designee, may, before commencing a civil proceeding under
section 3730(a) or other false claims law, or making an election
under section 3730(b)’” (emphasis added)).
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.5 Accordingly, insofar as N.J.S.A.
2A:32C-14(a) is ambiguous concerning temporal restrictions
placed on the Attorney General’s subpoena power, the legislative
2 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. 175/6(a)(1) (2017) (same);
Mass. Gen. Laws ch. 12, § 5N(1) (2017) (same).
7
history of the NJFCA should dissipate any doubts as to the
Legislature’s intent.
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
8
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 (1987) (quoting N.J.
Builders, Owners & Managers Ass’n v. Blair, 60 N.J. 330, 338
(1972)), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L.
Ed. 2d 855 (1988). The text of the NJFCA tells us that it is
remedial legislation. N.J.S.A. 2A:32C-17 (“This Act shall be
liberally construed to effectuate its remedial and deterrent
purposes.”); cf. United States v. Neifert-White Co., 390 U.S.
228, 233, 88 S. Ct. 959, 962, 19 L. Ed. 2d 1061, 1065 (1968)
(noting that federal False Claims Act is “remedial” and “should
not be given [a] narrow reading”).
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 (2016) (noting that remedial legislation should be
“liberally construed”); Young v. Schering Corp., 141 N.J. 16, 25
(1995) (“Where the Legislature’s intent is remedial, a court
9
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 tam
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 (1988); see also In
re Phila. Newspapers, LLC, 599 F.3d 298, 307 (3d Cir. 2010)
10
(“Considering the application of the canon ‘the specific governs
the general,’ the [Supreme] Court reasoned that it only applied
where the more specific provision clearly placed a limitation on
the general.” (citing Varity Corp. v. Howe, 516 U.S. 489, 511,
116 S. Ct. 1065, 1077, 134 L. Ed. 2d 130, 148 (1996))).6
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
3 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.”).
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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.7
In addition, section 6(f), which permits the Attorney
General to seek intervention at any time upon a showing of good
cause, does not conflict with N.J.S.A. 2A:32C-14. By allowing
intervention for good cause after the seal has been lifted,
section 6(f) recognizes that the Attorney General might uncover
additional information through continued investigation that
would prompt him to intervene later in the matter. One avenue
by which the Attorney General could uncover additional
information is through the subpoena power granted by N.J.S.A.
4 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 subpoena power in
31 U.S.C.A. § 3733(a)(1). See supra Part II.A. This
illustrates that the U.S. Attorney General’s subpoena power is
limited by the federal False Claims Act’s subpoena provision,
not its intervention provision. Consequently, the majority’s
scrutiny of the NJFCA’s intervention provision, section 5(g),
for a time constraint on the Attorney General’s subpoena power
is an inapt endeavor; the more natural place for such a limit
would be in the statute’s subpoena provision, N.J.S.A. 2A:32C-
14.
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2A:32C-14. Section 6(f) and N.J.S.A. 2A:32C-14 thus do not
conflict. If anything, section 6(f) undermines the majority’s
holding that the Attorney General’s power to issue subpoenas is
extinguished by the unsealing of a qui tam complaint or an
intervention decision.
For those reasons, I respectfully dissent from the judgment
of the Court.
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