UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BEN GHEE TAN, Defendant-Appellant.
No. 20-56399
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
November 1, 2021
D.C. No. 8:20-cv-02165-JVS-ADS
Opinion by Judge Graber
FOR PUBLICATION
Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding
Argued and Submitted October 6, 2021 Pasadena, California
Filed November 1, 2021
Before: Susan P. Graber, Morgan Christen, and John B. Owens, Circuit Judges.
Opinion by Judge Graber
SUMMARY*
Administrative Subpoena
The panel affirmed the district court‘s order enforcing an administrative summons issued by the U.S. Customs and Border Protection division of the Department of Homeland Security.
Appellant Ben Tan operates businesses that import agricultural merchandise, and the director of a section within Customs that specializes in agricultural imports served him with an administrative summons to compel him to provide testimony. After Tan refused to appear, the government filed a petition in the district court to enforce the summons, as provided by
Tan argued that the provision in
Tan next asked the panel to consider the legislative history of
Finally, the panel examined the enforcement of the summons. In United States v. Powell, 379 U.S. 48 (1964), the Supreme Court—in a case concerning an Internal Revenue Service summons—articulated the substantive elements that the government must establish for enforcing a summons. The panel held that the same criteria applied to administrative summons issued by Customs. Here, Customs supported its position with a sworn declaration, on personal knowledge, from the director of the Customs section that covers agricultural imports. The record confirmed that Customs complied with all statutory criteria—for example, personal service, and details concerning the date, time and location of the interview. The panel disagreed with Tan‘s argument that the declaration contained too little detail to permit the district court to assess compliance with the Powell requirements. The panel found no precedent requiring greater detail in a testimony-only administrative summons from Customs. The panel concluded that there was no clear error in the district court‘s decision to enforce the summons.
COUNSEL
Robin R. Scroggie (argued), Los Angeles, California, for Defendant-Appellant.
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, Washington, D.C.; for Plaintiff-Appellee.
GRABER, Circuit Judge:
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
Tan operates businesses that import agricultural merchandise. The director of a section within Customs that specializes in agricultural imports served on Tan an administrative
A. Statutory Interpretation1
Tan first argues that the command in
Title
(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]
(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 records: “reasonable notice” of the examination of records and “reasonable specificity” in the description of the records sought. Id.
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 . . . .”
Tan also asserts that we should borrow the requirements of
enforcement of a summons seeking records and are thus inapt.
Tan next asks us to consider the legislative history of
Even when we 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
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
The committee‘s brief discussion does not support Tan‘s position. At most, one legislator seems to have thought that
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
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 Supreme Court in Powell articulated the substantive elements that the government must establish. Id. 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
[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
The record confirms that Customs complied with all statutory criteria, for example, personal service (acknowledged by Tan‘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
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.
AFFIRMED.