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Date: 12-14-2021
Case Style:
United States of America v. Ben Tan
Case Number: 20-56399
Judge: Susan Pia Graber
Court:
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
On appeal from The United States District Court
for the Central District of California
Plaintiff's Attorney: William Kanellis (argued), Attorney; Jason M. Kenner,
Senior Trial Counsel; Patricia M. McCarthy, Assistant
Director; Jeanne E. Davidson, Director; Brian M. Boynton,
Acting Assistant Attorney General; Commercial Litigation
Branch, Civil Division, United States Department of Justice
Defendant's Attorney:
Description:
San Francisco, CA - import Agricultural Merchandise lawyer represented defendant with appealing from a district court order enforcing an administrative summons issued by the United States Customs and Border Protection division of the Department of HomeLand Security (“Customs”).
Ben Ghee Tan appeals from a district court order
enforcing an administrative summons issued by the United
States Customs and Border Protection division of the
Department of Homeland Security (“Customs”). He argues
that 19 U.S.C. § 1509(a)(2) requires that a summons to
compel testimony include a detailed description of the subject
matter of the investigation and the requested testimony,
which the summons here did not, and that in any event
Customs failed to meet the criteria for enforcement of a
summons established in United States v. Powell, 379 U.S. 48
(1964). We disagree with both contentions and, therefore,
affirm.
Tan operates businesses that import agricultural
merchandise. The director of a section within Customs that
specializes in agricultural imports served on Tan an
administrative summons to compel him to provide testimony.
UNITED STATES V. TAN 5
The summons contained no requirement that he produce
records. The summons directed Tan to appear before a
specified individual at a specified place, date, and time to
testify. “Your testimony . . . is required in connection with an
investigation or inquiry to ascertain the correctness of entries,
to determine the liability for duties, taxes, fines, penalties, or
forfeitures, and/or to ensure compliance with the laws or
regulations administered by [Customs] . . . .” After Tan
refused to appear, the government filed a petition in the
district court to enforce the summons, as provided by
19 U.S.C. § 1510. The district court granted the
government’s petition, and this timely appeal followed.
A. Statutory Interpretation1
Tan first argues that the command in 19 U.S.C.
§ 1509(a)(2)—that the government provide “reasonable
notice” when issuing an administrative summons for
testimony—requires the government to provide a notice that
describes with “reasonable particularity” the subjects about
which it intends to question the summoned person, so that the
person can prepare ahead of time. As always, our analysis
begins with the text of the statute. Hughes Aircraft Co. v.
Jacobson, 525 U.S. 432, 438 (1999). We must construe the
text in the “specific context in which that language is used,
and the broader context of the statute as a whole.” J.B. v.
United States, 916 F.3d 1161, 1168 (9th Cir. 2019) (quoting
Yates v. United States, 574 U.S. 528, 537 (2015)).
1 We review de novo the district court’s interpretation of statutes.
United States v. Jefferson, 791 F.3d 1013, 1015 (2015).
6 UNITED STATES V. TAN
Title 19 U.S.C. § 1509 provides in relevant part:
(a) In any investigation or inquiry
conducted for the purpose of ascertaining the
correctness of any entry, for determining the
liability of any person for duty, fees and taxes
due or duties, fees and taxes which may be
due the United States, for determining liability
for fines and penalties, or for insuring
compliance with the laws of the United States
administered by the United States Customs
Service, the Secretary . . . may—
(1) examine, or cause to be examined,
upon reasonable notice, any record . . .
described in the notice with reasonable
specificity, which may be relevant to such
investigation or inquiry . . .
. . . .
(2) summon, upon reasonable notice—
(A) the person who—
(i) imported, or knowingly caused to be
imported, merchandise into the customs
territory of the United States, . . .
. . . .
(B) any officer, employee, or agent of any
person described in subparagraph (A); [or]
UNITED STATES V. TAN 7
. . . .
(D) any other person he may deem proper;
to appear before the appropriate customs
officer at the time and place within the
customs territory of the United States
specified in the summons (except that no
witness may be required to appear at any
place more than one hundred miles distant
from the place where he was served with the
summons), to produce records, as defined in
subsection (d)(1)(A), and to give such
testimony, under oath, as may be relevant to
such investigation or inquiry; and
(3) take, or cause to be taken, such
testimony of the person concerned, under
oath, as may be relevant to such investigation
or inquiry.
. . . .
(c) A summons issued pursuant to this
section may be served by any person
designated in the summons to serve it. . . .
When the summons requires the production of
records, such records shall be described in
the summons with reasonable specificity.
Id. (emphases added.)
It is clear from the foregoing text that Congress requires
two things when Customs summons the production of
8 UNITED STATES V. TAN
records: “reasonable notice” of the examination of records
and “reasonable specificity” in the description of the records
sought. Id. § 1509(a)(1). But Congress requires only one of
those things with regard to testimony: the government may
summon a person to appear “upon reasonable notice.” Id.
§ 1509(a)(2). Subsection 1509(c) emphasizes the same
distinction by mandating a description of records “with
reasonable specificity” only “[w]hen the summons requires
the production of records.” We must give effect to that
textual difference. See Russello v. United States, 464 U.S. 16,
23 (1983) (“[W]here Congress includes particular language
in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” (brackets in original) (internal quotation marks
omitted)). Tan’s reading would ignore the different wording
of the two related provisions.
Tan’s proposed interpretation suffers from an additional
flaw. We “strive to give meaning to every word in a statute
and to avoid constructions that render words, phrases, or
clauses superfluous.” Edgerly v. City & Cnty. of San
Francisco, 713 F.3d 976, 984 (9th Cir. 2013) (internal
quotation marks omitted). As just noted, Customs may
“examine, or cause to be examined, upon reasonable notice,
any record . . . described in the notice with reasonable
specificity . . . .” § 1509(a)(1) (emphases added). If
“reasonable notice” encompassed “reasonable specificity,”
the clause concerning reasonable specificity would serve no
function. And even though the testimonial provision appears
in paragraph (a)(2), rather than in paragraph (a)(1), a statutory
phrase “ordinarily retain[s] the same meaning wherever used
in the same statute.” Nat’l Aeronautics & Space Admin. v.
Fed. Labor Rels. Auth., 527 U.S. 229, 235 (1999).
UNITED STATES V. TAN 9
Tan also asserts that we should borrow the requirements
of Federal Rule of Civil Procedure 30(b)(6), which allows a
party to notice the deposition of a corporation and to list
proposed areas of inquiry. Such a notice must specify the
areas of inquiry with “reasonable particularity.” Id. We
decline Tan’s invitation for three reasons. First, the Rules of
Civil Procedure do not apply to, or supplant, the complete and
self-contained statutory process that Congress established in
§ 1509. Second, Rule 30(b)(6) uses the phrase “reasonable
particularity,” which is notably absent from § 1509(a)(2) and
is, instead, akin to “reasonable specificity,” which is found
only in §§ 1509(a)(1) and 1509(c). Third, the purpose of the
requirement in Rule 30(b)(6) is to help a corporation identify
an appropriate representative to attend the deposition; there
is no similar uncertainty when an individual receives a
summons to testify.2
After carefully examining the statutory text of
§ 1509(a)(2) in context, we conclude that “reasonable notice”
is a temporal requirement; an interviewee must have
sufficient time to arrange to attend the interview. Cf. J.B.,
916 F.3d at 1167–68 (discussing the temporal nature of a
“reasonable notice in advance” provision).3 By contrast,
“reasonable specificity” in § 1509 is a substantive
requirement. Cases such as United States v. Rubin, 2 F.3d
974 (9th Cir. 1993), on which Tan relies, pertain to
2 Tan argues, in addition, that he is a third-party recordkeeper. But he
clearly does not meet the definition found in 19 U.S.C. § 1509(d), because
he is not a customhouse broker who is not an importer; a lawyer; or an
accountant.
3 Tan does not argue that he failed to receive “reasonable notice” in
that sense.
10 UNITED STATES V. TAN
enforcement of a summons seeking records and are thus
inapt.
Tan next asks us to consider the legislative history of
§ 1509. Because the statute’s text is clear, we need not do so.
See Chamber of Com. of the U.S. v. Whiting, 563 U.S. 582,
599 (2011) (“Congress’s authoritative statement is the
statutory text, not the legislative history.” (internal quotation
marks omitted)).
Even whenwe examine legislative history, though, it does
not alter our conclusion. We have found only two potential
clues to the meaning of the disputed phrase, and neither
undermines our analysis.
First, Tan cites a small portion of testimony by
Commissioner of Customs Robert E. Chasen before the
House Ways and Means Committee in 1977. The committee
was considering proposed amendments to 19 U.S.C. § 1509,
which resulted in the statutory phrases that we are
considering. Customs Procedural Reform Act of 1977:
Hearings on H.R. 8149 and H.R. 8222 Before the Subcomm.
on Trade of the H. Comm. on Ways & Means, 95th Cong.,
First Session (1977). Commissioner Chasen said, among
other things, that “[i]mporters will, under the administrative
subpoena provided for in section 509, be specifically advised
of the information sought from them.” Id. at 53 (statement by
Robert E. Chasen, Commissioner of Customs). But
Commissioner Chasen primarily discussed records and
record-keeping, not testimony. Id. at 52–53. Accordingly,
the quoted comment cannot reasonably be understood to refer
to a summons for testimony only; at a minimum, the
comment is ambiguous.
UNITED STATES V. TAN 11
Second, the committee received two suggestions that, in
the provision dealing with a summons for testimony, another
requirement be added. Id. at 282 (statement of William G.
Pennell, Chair of the Nat’l Comm. on Int’l Trade
Documentation, “[w]e suggest the following additional
phrase be included in Sub-Section 509(a)(2): [i]mmediately
following ‘upon reasonable notice’ the phrase ‘and with
reasonable specificity’ be added”); 338 (statement of the JFK
Airport Customs Brokers Assoc., Inc. that “[i]n addition to
reasonable notice, the person summoned should be given an
indication of the purpose of the investigation or inquiry”).
One of the commenting parties reasoned that such an addition
would prevent fishing expeditions by Customs investigators
and that the person summoned would come to the interview
better prepared. Id. at 338. The Chair of the House Ways
and Means Committee raised this issue and received the
following response from a member of the committee:
“Mr. Chairman, in [section 1509(c)], there is a requirement
that the summons require the production of records and such
records will be described in the summons with reasonable
certainty. So it seems to me we have already covered that
point.” Id. at 534–35. The discussion stopped there.
Reasonable specificity with respect to records was retained;
reasonable specificity with respect to testimony was not
added. That colloquy points in two directions. On the one
hand, it could suggest that a specificity requirement with
respect to a summons for testimony was missing, was
considered, and was rejected. On the other hand, the
discussion reveals that one legislator may have viewed the
specificity requirement in what became § 1509(c) as
sufficient to cover a summons for testimony.
The committee’s brief discussion does not support Tan’s
position. At most, one legislator seems to have thought that
12 UNITED STATES V. TAN
the specificity requirement would apply to a summons for
testimony. But “remarks of a single legislator, even the
sponsor, are not controlling in analyzing legislative history,”
Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979),
particularly when made in a committee hearing and not in a
floor debate where Congress as a whole could consider the
remarks. Even “floor statements by individual legislators
rank among the least illuminating forms of legislative
history.” N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 943
(2017). Most importantly, the committee’s discussion could
just as easily support our view of the statute, because the
possibility of adding a specificity requirement for testimony
was broached, but the requested text was not added. “[E]ven
those of us who believe that clear legislative history can
illuminate ambiguous text won’t allow ambiguous legislative
history to muddy clear statutory language.” Azar v. Allina
Health Servs., 139 S. Ct. 1804, 1814 (2019) (internal
quotation marks omitted).
Finally, Tan argues that we should interpret the statute to
contain identical notice requirements for testimony and
records because there is no principled reason to distinguish
between testimony and records. We are unpersuaded for two
reasons. First, that is a policy judgment for Congress, not us,
to make. Second, Congress could have reasoned that
different practical burdens attach to the different kinds of
summonses. An importer may possess four million
documents, and the importer may have no easy way to figure
out which ones may be relevant to the investigation and
which ones to produce. By contrast, an individual who is
asked to testify simply needs to show up and answer
truthfully (or refuse to answer on Fifth Amendment grounds)
the questions asked, from personal knowledge, which the
individual always possesses. Moreover, because the purpose
UNITED STATES V. TAN 13
of the interview is investigative, specificity ahead of time
could hinder the investigation by either encouraging evasion
or foreclosing the pursuit of new, relevant avenues of inquiry
that come to light during questioning.
B. Enforcement of the Summons4
Proceedings to enforce a summons are “summary in
nature.” United States v. Derr, 968 F.2d 943, 945 (9th Cir.
1992) (internal quotation marks omitted). To obtain a court
order enforcing an administrative summons, the government
need only make a prima facie case for enforcement, which it
may do by submitting a declaration from the investigating
agent. See Crystal v. United States, 172 F.3d 1141, 1143–44
(9th Cir. 1999) (discussing elements necessary for
government to seek enforcement of a summons). Once the
government establishes a prima facie case, the person
opposing the summons shoulders a “heavy burden” to
“disprove” the government’s showing. Id. at 1144.
The Supreme Court in Powell articulated the substantive
elements that the government must establish. 379 U.S.
at 57–58 . And, although Powell concerned a summons from
the Internal Revenue Service, courts have applied the same
criteria to administrative summonses issued by Customs.
See, e.g., United States v. Frowein, 727 F.2d 227 (2d Cir.
1984). We, too, conclude that Powell applies. Customs
“must show that the investigation will be conducted pursuant
to a legitimate purpose, that the inquiry may be relevant to
the purpose, that the information sought is not already within
4 We review for clear error the district court’s ruling that the
government has met the requirements to enforce a summons. United
States v. Blackman, 72 F.3d 1418, 1422 (9th Cir. 1995).
14 UNITED STATES V. TAN
[Customs’] possession, and that the administrative steps
required by the [statute] have been followed.” Id. at 230
(quoting Powell, 379 U.S. at 57–58).
Here, Customs supported its petition with a sworn
declaration, on personal knowledge, from the director of the
Customs section that covers agricultural imports. She stated,
under oath, that (1) Customs was engaged in an ongoing
investigation into whether Tan and companies that he owned,
operated, or controlled had complied with customs laws;
(2) Customs did not already possess the information sought;
and (3) Customs complied with each of the procedural
requirements of 19 U.S.C. § 1509(c) and 19 C.F.R. § 163.7.
The record confirms that Customs complied with all
statutory criteria, for example, personal service
(acknowledged byTan’s signature) and details concerning the
date, time, and location of the interview. Indeed, Tan did not
attempt in the district court to refute any fact contained in the
declaration. Instead he argues that the declaration contains
too little detail to permit the district court to assess
compliance with the Powell requirements. We disagree. The
declaration explains, among other things, that Tan and
companies that he owns and operates import merchandise and
may have violated 19 U.S.C. § 1592 pertaining to the
payment of duties. The declaration describes that the
information sought in Tan’s testimony includes information
about those companies’ business practices and importations,
as well as the identity of decision-makers on matters
pertaining to importation of merchandise into the United
States. Tan cites, and we have found, no precedent requiring
UNITED STATES V. TAN 15
greater detail in a testimony-only administrative summons
from Customs. For all those reasons, we see no clear error in
the district court’s decision to enforce the summons.
Outcome: AFFIRMED
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