USA, ex. rel., Lauren Kieff, et al. v. Wyeth

Filing 454

Judge Douglas P. Woodlock: MEMORANDUM AND PROCEDURAL ORDER entered concluding that 31 U.S.C. sec. 3731(a) with its authorization of nationwide service of False Claims Act subpoenas imports an authorization to compel testimony in this court at the trial of this case on witnesses nationwide and providing a procedure for implementing this conclusion.(Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA, et al.,
ex rel. LAUREN KIEFF,

)
)
)
Plaintiffs,
)
)
v.
)
)
WYETH,
)
)
Defendant.
)
___________________________________)
)
UNITED STATES OF AMERICA, et al., )
ex rel. WILLIAM LACORTE,
)
)
Plaintiffs,
)
)
v.
)
)
WYETH,
)
)
Defendant.
)
)

CIVIL ACTION
NO. 03-12366-DPW

CIVIL ACTION
NO. 06-11724-DPW

MEMORANDUM
December 4, 2015
The government seeks damages in these civil cases under the
Federal False Claims Act, 31 U.S.C. §§ 3729-3733.

The Act

provides that “a subpena (sic) requiring the attendance of a
witness at a trial or hearing being conducted under [the False
Claims Act provision for civil claims, 31 U.S.C.
§ 3730] may be served at any place in the United States.”
U.S.C. § 3731(a).

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The plaintiff United States, in alignment for

this purpose with defendant Wyeth, contends that the statute

authorizes this court to compel witnesses anywhere in the United
States to testify before it.

The parties have asked my

direction regarding the issue in anticipation of subpoenaing
witnesses to the trial in these matters set to begin in March
2016.

I am of the view that § 3731(a), with its authorization

of nationwide service, imports an authority in the issuing court
to compel testimony where the trial will be conducted, and that
Rule 45 is best understood to preserve that statutory
authorization while adding a requirement that good cause be
shown before a subpoena shall issue.
Because I have been asked to provide direction without
benefit of adversary process, however, I emphasize my
reservation that this view is provisional and made without
prejudice to challenges by any potential witness who seeks to
quash such a subpoena.

To assure notice and hold out the

opportunity to be heard in opposition to my provisional view in
an adversarial setting, I will require that any subpoena as to
which either party may seek enforcement under § 3731(a) shall
have attached to it a copy of this Memorandum.
I. ANALYSIS
The conventional rule for the enforcement of civil process
— Rule 45 of the Federal Rules of Civil Procedure — allows a
court to compel attendance at a trial or hearing only from
certain persons who reside, are employed, or regularly transact
2

business in the state or within 100 miles of where the
proceeding is to be held.

Fed. R. Civ. P. 45(d)(3).

The

parties implicitly contend and - subject to the reservation that
this view is without prejudice to challenge in an adversarial
setting - I expressly conclude that § 3731(a) of the False
Claims Act supplements Fed. R. Civ. P. 45(d)(2).

In reaching

this conclusion, I first interpret § 3731(a) before analyzing
the statute’s interaction with the Federal Rules of Civil
Procedure.
A.

The Scope of § 3731(a)
It appears that no appellate court has yet interpreted

§ 3731(a).

U.S. ex rel. Brooks v. Stevens-Henager College, Inc.

Civ. No. 13-00009-BLW, 2015 WL 758988 (D. Ida. Feb. 23, 2015).
Nevertheless, the overwhelming trend in district court case law,
which generally arises somewhat obliquely in the context of
venue disputes, is that § 3731(a) allows courts issuing
subpoenas to compel testimony from witnesses anywhere in the
United States.

See, e.g., id. at *11 (“the weight of persuasive

authority supports the court's power to subpoena witnesses from
anywhere in the United States to testify”); United States ex
rel. Westrick v. Second Chance Body Armor, Inc., 771 F.Supp.2d
42, 49 (D.D.C. 2011) (“Because the FCA provides for nationwide
service of trial subpoenas . . . all prospective witnesses will
be available for trial in either district”); United States v.
3

Gwinn, No. 06–00267, 2008 WL 867927, at *19 (S. D. W. Va. Mar.
31, 2008) (“compulsory process of unwilling witnesses is
available pursuant to the False Claims Act, 31 U.S.C. §
3731(a)”); Little v. ENI Petroleum Co., No. 06–120–M, 2007 WL
2254318, at *4 (W. D. Okla. Aug. 3, 2007) (“under the False
Claims Act, parties have nationwide power to subpoena all
witnesses to testify at trial, regardless of the location of the
pending action”); U.S. ex rel. Wilson v. Bristol-Myers Squibb,
Inc., No. CA 06-12195-MLW, 2013 WL 3327317, at *3 (D. Mass. June
27, 2013) (“the weight of authority supports the court’s power
to subpoena non-party witnesses from anywhere in the United
States to testify in Massachusetts”); U.S. ex rel. Penizotto v.
Bates E. Corp., No. CIV.A. 94-3626, 1996 WL 417172, at *5 (E.D.
Pa. July 18, 1996) (“Under the FCA, parties have nationwide
power to subpoena all witnesses to testify at trial, regardless
of the location of the pending action.”).

Those courts that

have determined § 3731(a) grants nationwide compulsory process,
however, have done so without fully developed analysis.
Moreover, many of these opinions predate the 2013 revisions to
Rule 45.
By contrast, one of the very few district court opinions
that has taken the opposite position has offered somewhat more
extensive reasoning for rejecting the majority position.

The

court in U.S. ex rel. Thomas v. Siemens, AG, No. 1:04-cv-116,
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2009 WL 1657429 (D.V.I. 2009) at *2, observed that Rule 45
treats as separate two aspects of the subpoena process: the
place of service and the place where testimony may be compelled.
The since-revised subsection (b) of Fed. R. Civ. P. 45 governed
where a subpoena may be served (currently, at any place within
the United States).

Subsection (b)(2) of Rule 45 (now part of

the separate subsection (c)) limited where the subpoena may
command a person to attend and provide testimony to within the
state or within 100 miles.

Subsection (c)(3) (now (d)(3)) was

said in Siemens to require a court to quash a subpoena that
fails to command testimony within those limits.
The observation in Siemens that Rule 45 treated the service
and enforcement of subpoenas separately was formally prescient.
In the 2013 revisions to Rule 45, those two steps in the
subpoena process were more clearly separated, at least
stylistically: Rule 45(b) now allows nationwide service of
subpoenas while Rule 45(c) limits where those subpoenas may
order a witness to appear.1

1

See also Report of the Civil Rules Advisory Committee to the
Standing Committee on Rules of Practice and Procedure May 2,
2011, available at http://www.uscourts.gov/uscourts/RulesAnd
Policies/rules/Reports/CV05-2011.pdf (“Proposed Rule 45(b)(2)
removes the uncertainty about where a subpoena may be served; in
place of a four-part provision in the current rule, the amended
rule simply authorizes service "at any place within the United
States." The rule is modeled on Fed. R. Crim. P. 17(e), which
provides for nationwide service of subpoenas in criminal cases.
But unlike Criminal Rule 17(e), the amended rule does not
5

Having noted that service and enforcement of subpoenas were
treated separately by Rule 45, the Siemens court concluded that
§ 3731(a) only affected the former.

Section 3731(a), the court

held, provides only that a subpoena “may be served” nationwide;
nothing in the statute expressly addressed the enforcement of
subpoenas or where the recipient of a subpoena might lawfully be
ordered to appear.

Upon reflection, I find the textual analysis

of the Siemens court to be unsympathetic to the plain intent of
§ 3731(a) and oblivious to the familiar language used to embody
that intent.

I conclude its holding should not be followed.

It has been commonplace for other rules and statutes to use
language similar to that of § 3731(a) in authorizing compulsory
subpoenas of witnesses nationwide.

Under § 3731, a subpoena

“requiring the attendance of a witness at a trial or hearing
conducted under section 3730 of this title may be served at any
place in the United States.” 31 U.S.C. § 3731(a).

This language

is very similar to that of Federal Rule of Criminal Procedure
17(e), which provides that a “subpoena requiring a witness to
attend a hearing or trial may be served at any place within the
United States.”

It is well-established that this Rule allows

for nationwide service and enforcement of subpoenas in criminal

purport to require a person subject to a subpoena to comply in
the issuing court. Instead, new Rule 45(c) collects the
provisions on place of compliance that were formerly located in
a number of provisions of Rule 45 and simplifies them.”)
6

proceedings. See, e.g., Johnson v. Big Lots Stores, Inc., 251
F.R.D. 213, 218 (E.D. La. 2008)(Rule 17(e)(1) is a
“straightforward example of a rule providing for nationwide
subpoena service”); WRIGHT

AND

HENNING, 2 FED. PRAC. & PROC. CRIM. §

277 (4th ed.) (describing rule in terms of allowing both service
and power to “compel” testimony).

Likewise, the Walsh Act,

which governs the process for issuing subpoenas on United States
nationals outside the country, speaks only of issuing those
subpoenas, without separately discussing enforcement.

28 U.S.C.

§ 1783(a) (“A court of the United States may order the issuance
of a subpoena requiring the appearance as a witness before it,
or before a person or body designated by it, of a national or
resident of the United States who is in a foreign country . . .
.”).

Certain substantive statutes also contain similar

provisions.2

2

For example, in antitrust suits brought by the United States,
“subpoenas for witnesses who are required to attend a court of
the United States in any judicial district in any case, civil or
criminal, arising under the antitrust laws may run into any
other district,” although cause must be shown for distant
witnesses. 15 U.S.C. § 23. Nearly identical language to that
antitrust provision appears in 38 U.S.C. § 1984(c), governing
disputes over veterans’ insurance. The RICO statute provides
that “In any civil or criminal action or proceeding instituted
by the United States under this chapter in the district court of
the United States for any judicial district, subpenas issued by
such court to compel the attendance of witnesses may be served
in any other judicial district,” although it requires judicial
approval for subpoenas issued on individuals outside of the
district and more than 100 miles from the court. 18 U.S.C. §
1965(c).
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For each of these parallel statutes, not only service but
also nationwide enforcement of subpoenas is generally understood
to be authorized.3

This is so even though they speak only of the

“service” or “issuing” of a subpoena.

While it can be dangerous

to assume that language in one part of the United States Code
has the same effect in every statute, see, e.g., William W.
Buzbee, The One-Congress Fiction in Statutory Interpretation,
149 U. PA. L. REV. 171, 221 (2000), it is clear that language like
that of § 3731(a) not only can authorize both nationwide service
and nationwide enforcement of a subpoena, but usually does.
These parallel provisions show that the text of § 3731(a),
although it refers only to service of a subpoena, does not
compel the interpretation advanced in Siemens; rather, the kind
of language used in § 3731(a) generally allows nationwide
service and enforcement of subpoenas.
On this textual basis alone, I would be likely to find,
with the great majority of courts, that the False Claims Act
allows a court to compel testimony from witnesses from anywhere
in the United States.

Any remaining ambiguity is resolved by

3

See, e.g., Azari v. B&H Photo Video, No. 06 CIV.7825 DLC, 2007
WL 13101, at *3 (S.D.N.Y. Jan. 3, 2007) (“The RICO statute
generally provides for nationwide service of process for
witnesses, 18 U.S.C. § 1965(c); see PT United Can Co. v. Crown
Cork & Seal Co., 138 F.3d 65, 72 (2d Cir. 1997), so neither
court should have difficulty compelling witnesses to testify.”).

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the legislative history of § 3731(a).

The legislative history

of § 3731(a) supports the holdings of the majority of district
courts that enforcement of a False Claims Act subpoena is not
subject to the geographical limitation now found in Fed. R. Civ.
P. 45(d)(2).

Section 3731(a) was added to the False Claims Act

in 1978, under the title “An Act to provide for nationwide
service of subpoenas in all suits involving the False Claims
Act.”

Pub. L. No. 95–582, 92 Stat. 2479.

The House Committee

report makes clear that the purpose of the legislation, which
came at the recommendation of the Department of Justice, was to
facilitate the prosecution of False Claims Act cases by ensuring
that witnesses from across the country could be brought into
court by subpoena.

H.R. Rep. No. 95-1447 (1978).

The same

report emphasized that the language of § 3731(a) was modeled
after Federal Rule of Criminal Procedure 17(e), which grants a
nationwide subpoena power in criminal matters.

Id. at 3 (“the

distance or uncooperativeness of witnesses does not impede the
prosecution of Federal criminal cases because nationwide service
of subpoenas has been authorized under Rule 17.”)

The clear

intent and effect of § 3731(a) is to authorize courts to compel
witness testimony nationwide.

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B.

Interaction Between § 3731(a) and Rule 45
Having determined that § 3731(a) provides nationwide

subpoena power in False Claims Act cases would, until recently,
have settled this issue.

In the 2013 revisions to Federal Rule

of Civil Procedure 45, however, textual support in the rule has
disappeared.

In what seems to be an oversight of the revisers,

the provision of the Rule which allowed for the operation of
statutes that expand a court’s subpoena power, like § 3731(a),
was dropped from the current Rule.

I nevertheless hold that the

Rules give effect to § 3731(a) and similar statutes, according
to the same standards as before the 2013 revisions.
At issue here is the relationship between Rule 45 and §
3731(a).

Until the 2013 revisions, this relationship was clear.

The former Rule 45(b)(2)(D) authorized service “at any place . .
. that the court authorizes on motion and for good cause, if a
federal statute so provides.”

Thus, the Rule expressly

incorporated federal statutes allowing nationwide service of
subpoenas, while also ensuring minimal procedural protections
for distant witnesses being called to testify.

Indeed, a

provision has existed to allow statutes to expand the geographic
reach of courts’ subpoena powers since the original enactment of
the Rules of Civil Procedure.

See Fed. R. Civ. P. 45, 1937

Advisory Committee Note to Subdivision (e) (“For examples of
statutes which allow the court, upon proper application and
10

cause shown, to authorize the clerk of the court to issue a
subpoena for a witness who lives in another district and at a
greater distance than 100 miles from the place of the hearing or
trial, see…”).
By excising this provision, the revisers might be thought
to have made a significant change to subpoena practice under a
variety of federal statutes.

In the absence of former Rule

45(b)(2)(D), it could be argued that § 3731(a) and other similar
statutes have been abrogated.

Under the Rules Enabling Act, 28

U.S.C. § 2072(b), federal rules supersede previously existing
statutes with which they conflict.

Courts agree that under this

provision, if there is a conflict between a rule and a statute,
the later-enacted provision governs; new rules automatically
abrogate conflicting statutes, but Congress retains the power to
supersede rules through subsequent action.

Jackson v. Stinnett,

102 F.3d 132, 134-5 (5th Cir. 1996); Local Union No. 38, Sheet
Metal Workers' Int'l Ass'n, AFL-CIO v. Custom Air Sys., Inc.,
333 F.3d 345, 348 (2d Cir. 2003).

Thus, if they were in

conflict, the 2013 revisions to Rule 45 would trump the 1978
enactment of § 3731(a), as well as other previously existing
statutes.
These two provisions are superficially in conflict.

Rule

45(d)(3)(A)(ii) expressly requires a subpoena to be quashed if
it fails to comply with the geographical limits specified in
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Rule 45(c).

In turn, Rule 45(c)(1) only allows a subpoena to

command a person to attend a trial, hearing or deposition within
the state, or within 100 miles of, where the person resides, is
employed, or regularly transacts business.

No express exception

is made for subpoenas authorized by statutes, as was made before
2013.

Read literally, then, this would require a subpoena

served on a distant, out-of-state witness under § 3731(a) to be
quashed.
Such a literal reading would be inappropriate here,
however.

The 2013 revisions to Rule 45 involved wholesale

revision of the text of the rule but were not intended
substantively to alter the locations to where a court’s subpoena
power would extend.

The new subdivision (c) was meant to

“collect[] the various provisions on where compliance can be
required and simplif[y] them.”
Advisory Committee Notes.

Fed. R. Civ. P. 45, 2013

See also Report of the Civil Rules

Advisory Committee to the Standing Committee on Rules of
Practice and Procedure at 6, May 2, 2011, available at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/
CV05-2011.pdf, (“Rule 45(c) conforms very closely to the
scattered provisions of the current rule regarding place of
compliance”). This was understood to be “mostly a stylistic
change.”

WRIGHT & MILLER, 9A FED. PRAC. & PROC. CIV. § 2451 (3d ed.).

Neither the Advisory Committee Notes nor the report of the Civil
12

Rules Advisory Committee suggests that there was any intent to
abrogate those statutes allowing for nationwide subpoena powers.
In interpreting the relationship between the Rules and
statutes, repeals by implication are disfavored, unless there
is an irreconcilable conflict between the two provisions.
Jackson v. Stinnett, 102 F.3d at 135-36.

The conflict

between Rule 45 and § 3731(a) is not impossible to resolve.
The operation of Rule 45 prior to 2013 shows that specific
statutes can provide nationwide subpoena powers alongside the
geographically-constrained powers provided in Rule 45.

Both

provisions can be given effect and doing so would best realize
the intent of the Rule’s drafters and of Congress.
Reconciling Rule 45 and § 3731(a) requires still one
further step, however.

In providing for nationwide service of

subpoenas under the False Claims Act, Congress did not place any
procedural limits on when those subpoenas may be granted.
U.S.C. § 3731(a).

31

This stands in contrast to analogous

statutes, where cause must be shown for subpoenas issued to
distant witnesses.

See, e.g., 15 U.S.C. § 23 (antitrust).

Prior to 2013, Rule 45(b)(2)(D) would have superimposed such a
good cause requirement.

Now, if both Rule 45 and § 3731(a) are

to be given effect literally, there would be no such cause
requirement regarding False Claims Act cases subpoenas.
too, would stray from the revisers’ intent to make only
13

This,

stylistic changes and could not be said to have “preserved all
of the protections previously in place for a non-party who is
subject to a subpoena.”
2451 (3d ed.).

WRIGHT & MILLER, 9A FED. PRAC. & PROC. CIV. §

Consequently, to preserve the pre-2013 status

quo — as I must to enforce both the Rule and the statute
faithfully — I will require the parties before me to show good
cause before a subpoena shall issue under § 3731(a) compelling
attendance at trial by witnesses out-of-state and more than 100
miles away.

I conclude that this requirement, now implicit

rather than explicit in the Rule, gives meaning to the direction
of Rule 45(d)(1) to avoid the imposition of undue burden on
persons subject to a subpoena, which the district court is
obligated to enforce.
II. CONCLUSION
I am of the view that this Court has the power to compel
attendance from witnesses from anywhere in the United States for
civil False Claims Act cases, if good cause is shown.

This

memorandum shall be attached to subpoenas served on witnesses
whose presence at the trial in this case is sought based on
31 U.S.C. § 3731(a).

Potential witnesses will thereby have

notice both that a provisional determination has been made
regarding this issue and that it has been made without

14

prejudice, so that they may seek an opportunity to be heard in
challenge to the provisional determination.

/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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