19-118 Panjiva, Inc. v. United States Customs and Border Protection
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2019 (Argued: December 11, 2019 Decided: September 17, 2020) Docket No. 19-118
PANJIVA, INC., A NEW YORK CORPORATION, TRADE DATA SERVICES, INC., DBA IMPORTGENIUS, AN ARIZONA CORPORATION, Plaintiffs-Appellants,
v.
UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF TREASURY, Defendants-Appellees.
Before: SACK, PARKER, and CHIN, Circuit Judges.
Section 431 of the Smoot-Hawley Tariff Act of 1930 requires all "vessel[s]
arriving in the United States" to maintain a "manifest" on which is recorded
information about the just-completed voyage and an account of what is "on
board." Pub. L. No. 71-361, § 431, 46 Stat. 590, 710 (1930). An amendment passed
in 1984 requires the information contained in those manifests to "be available for
public disclosure." Pub. L. No. 98-573, Title II, § 203, 98 Stat. 2948, 2974 (1984). The
plaintiffs-appellants, Panjiva, Inc., and Trade Data Services, Inc., dba
1 19-118 Panjiva, Inc. v. United States Customs and Border Protection
ImportGenius, brought a lawsuit in the United States District Court for the
Southern District of New York asserting, among other things, that section 431
requires aircraft entering the United States to make available for public disclosure
such manifests detailing the journey and cargo aboard. The district court (J. Paul
Oetken, Judge) agreed with the government that the statute requires only
waterborne vessels — and not aircraft — to publicly disclose such information,
and ultimately dismissed part of the plaintiffs-appellants' complaint. The
plaintiffs-appellants appeal that dismissal. For essentially the reasons articulated
by the district court, we agree with its conclusion. The judgment is therefore:
AFFIRMED.
DAVID A. BAHR, Bahr Law Offices, P.C., Eugene, Oregon, for Plaintiffs-Appellants; STEPHEN CHA-KIM Assistant United States Attorney, (Christopher Connolly, on the brief), for Audrey Strauss, Acting United States Attorney for the Southern District of New York. SACK, Circuit Judge:
BACKGROUND
The Smoot-Hawley Tariff Act of 1930 is known principally for the tariffs it
raised on imports to the United States and their alleged exacerbation of the Great
Depression. See Robert Whaples, Where Is There Economic Consensus Among
2 19-118 Panjiva, Inc. v. United States Customs and Border Protection
American Economic Historians? The Results of a Survey on Forty Propositions, 55 J.
Econ. Hist. 139, 151 (1995). This appeal involves a lesser-known component of the
Act — section 431 — which required all "vessel[s] arriving in the United States" to
maintain a "manifest" on which is recorded information about the just-completed
voyage and an account of what is "on board." Pub. L. No. 71-361, § 431, 46 Stat.
590, 710 (1930). Through a series of amendments over its long life, including one
that apparently contained a drafting error and is the focus of the case at bar, section
431 has come to comprise, as the district court put it in its decision in this case, "an
amalgamation of language from incompatible statutes." Panjiva, Inc. v. U.S.
Customs & Border Prot., 342 F. Supp. 3d 481, 490 (S.D.N.Y. 2018).
The plaintiffs-appellants, Panjiva, Inc., a New York Corporation ("Panjiva"),
and Trade Data Services, Inc., dba ImportGenius, an Arizona Corporation
("ImportGenius") (collectively the "plaintiffs") brought a lawsuit in the United
States District Court for the Southern District of New York against the defendants-
appellees, United States Customs and Border Protection ("CBP") and the United
States Department of Treasury (collectively, the "government"), asserting, among
other things, that somewhere within section 431's text is a requirement that aircraft
entering the United States also make available for public disclosure specified
3 19-118 Panjiva, Inc. v. United States Customs and Border Protection
contents of manifests they have maintained detailing each journey and the cargo
carried on that journey. The government disagreed, asserting that the statute
requires that only waterborne vessels — and not aircraft — publicly disclose such
information. The district court (J. Paul Oetken, Judge) agreed with the government
and therefore dismissed the part of the plaintiffs-appellants' complaint at issue
here. (The plaintiffs voluntarily dismissed the remainder of the complaint.) We
agree with the government's interpretation of the statute largely for the reasons
articulated by the district court. We therefore affirm its judgment.
Statutory Background
In the spring of 1930, early in America's descent into the Great Depression,
Congress enacted the Smoot-Hawley Tariff Act. In addition to the controversial
tariffs, the Act imposed on imports to the United States, section 431 required "[t]he
master of every vessel arriving in the United States" to "have on board his vessel a
manifest" "contain[ing]" specified information concerning the vessel's voyage and
cargo. Pub. L. No. 71-361, § 431, 46 Stat. at 710. The Act defined "vessel" as
"includ[ing] every description of water craft or other contrivance used, or capable
of being used, as a means of transportation in water, but . . . not . . . aircraft." Id.,
§ 401(a), 46 Stat. at 708 (emphasis added).
4 19-118 Panjiva, Inc. v. United States Customs and Border Protection
In 1984, fifty-four years after the statute was enacted, Congress passed a
Trade and Tariff Act which, among other things, amended the Smoot-Hawley Act
by adding a new subsection, (c)(1), to section 431. Pub. L. No. 98-573, Title II, § 203,
98 Stat. 2948, 2949 (1984). Paragraphs (A) through (G) of subsection (c)(1) specified
"information [which], when contained in [the] manifest [required by the Smoot-
Hawley Act], shall be available for public disclosure," id., 98 Stat. at 2974:
(A) The name and address of each importer or consignee and the name and address of the shipper to such importer or consignee, unless the importer or consignee has made a biennial certification, in accordance with procedures adopted by the Secretary of the Treasury, claiming confidential treatment of such information. (B) The general character of the cargo. (C) The number of packages and gross weight. (D) The name of the vessel or carrier. (E) The port of loading. (F) The port of discharge. (G) The country or origin of the shipment.
Id.
The subsection that followed, 431(c)(2), set forth exceptions that the
Secretary of the Treasury could invoke to withhold from the public the
information otherwise required to be disclosed by subsection (c)(1). Id.
5 19-118 Panjiva, Inc. v. United States Customs and Border Protection
Congress again addressed section 431 some twelve years later, in July 1996.
As part of the Anti-Counterfeiting Consumer Protection Act ("ACPA"), Congress
amended subsection 431(c)(1) "by inserting the phrase 'vessel or aircraft' before
'manifest.'" Pub. L. No. 104-153, § 11(1), 110 Stat. 1386, 1389 (July 2, 1996). As of
early July 1996, therefore, the clause of subsection 431(c)(1) requiring public
disclosure of information contained in manifests provided that certain specified
"information, when contained in [the] vessel or aircraft manifest [required to be
kept by the master], shall be available for public disclosure." See id., 110 Stat. at
1389 (emphasis added).
The ACPA also amended section 431(c)(1)(D), (E), and (F), quoted above,
requiring that the information to be made available for public disclosure include
not only "the name of the vessel or carrier," but "the name of the vessel, aircraft, or
carrier"; and not only the "port" of loading or discharge, but the "seaport or airport"
of loading and discharge. See id., 110 Stat. at 1389 (emphases added).
Just three months later, in October 1996, though, Congress amended section
431(c)(1) again, this time in what it named the Miscellaneous Trade and Technical
Corrections Act (the "Corrections Act"). Pub. L. No. 104-295, § 3(a)(3), 110 Stat.
3514, 3515 (October 11, 1996). In a subsection entitled "Manifests," the Corrections
6 19-118 Panjiva, Inc. v. United States Customs and Border Protection
Act provided that the operative clause of subsection 431(c)(1) was to be
"amended . . . by striking 'such manifest' and inserting 'a vessel manifest.'" Id., 110
Stat. at 3515. The Corrections Act did not amend paragraphs (c)(1)(A) through (G).
The references to "aircraft" and "airport" remain. Congress has not amended any
portion of section 431(c)(1) since.
The Corrections Act contained an obvious mistake: For three months and
several days following July 2, 1996, the clause of section 431(c)(1) requiring public
disclosure did not contain the phrase "such manifest." Rather, it stated, as noted
above, that "information, when contained in such vessel or aircraft manifest, shall be
available for public disclosure." See Pub. L. No. 104-153, § 11(1), 110 Stat. at 1389
(emphasis added). The phrase "such manifest," therefore, was not there to be
"stri[cken]," as the Corrections Act purported to require.
Applying the law thus presents a challenge: It is not apparent what the
statute in its current incarnation says.
The House of Representatives' Office of Law Revision Council engages in
drafting the provision of the U.S. Code corresponding to enacted statutes. 1 In
editing 19 U.S.C. § 1431(c)(1) — the provision of the U.S. Code that corresponds to
1 How regularly it does so is not clear from the record.
7 19-118 Panjiva, Inc. v. United States Customs and Border Protection
section 431(c)(1) of the Smoot-Hawley Act — in an effort to reflect the changes
effected by the Corrections Act, it added a new subsection (c)(1), to section 431.
The relevant part of 19 U.S.C. § 1431(c)(1) read (as it continues to read today):
"Except as provided in subparagraph (2), the following information, when
contained in a vessel vessel or aircraft manifest, shall be available for public
disclosure." 19 U.S.C. § 1431(c)(1) (emphasis added). The Code includes a footnote
concerning the repeated use of the word "vessel": "So in original." 19 U.S.C. § 1431
n.1.
Factual Background
Plaintiffs are businesses that seek to service the "global trade community"
by "aggregat[ing]" and analyzing "data," "including customs data," from the
United States. Joint Appendix ("JA") at 10, 12.
As discussed above, pursuant to section 431 of the Smoot-Hawley Tariff
Act, presently codified at 19 U.S.C. § 1431, "Every vessel required to make entry
[into the United States] shall have a manifest that complies with the requirements
prescribed under subsection (d) [of the statute]." 19 U.S.C. § 1431(a). Subsection
(c) of section 1431 requires that some of that information "shall be available for
public disclosure." 19 U.S.C. § 1431(c). Subsection (d) sets forth regulations
8 19-118 Panjiva, Inc. v. United States Customs and Border Protection
governing such manifests and their treatment, including the role to be played by
the Secretary of the Treasury and the "Customs Service." 19 U.S.C. § 1431(d).
The plaintiffs wish to use, for business purposes, information that is
contained in the manifests of aircraft entering the United States. To that end, in
January 2015, ImportGenius submitted a request to CBP under the Freedom of
Information Act ("FOIA") that sought "access to and copies of the portions of ALL
aircraft manifests for inbound shipments f[ro]m January 1, 2014 to July 31, 2014
that have been designated for public disclosure by 19 U.S.C. § 1431(c)." JA at 17.
In October 2016, CBP denied the request. ImportGenius appealed CBP's denial in
December 2016; CBP denied the appeal in September 2017.
In January 2017, Panjiva submitted a similar FOIA request to CBP seeking
"access to and copies of the portions of ALL aircraft manifests for inbound
shipments from December 5, 2016 to December 9, 2016 that have been designated
for public disclosure by 19 U.S.C. § 1431(c)." JA at 21.
Procedural History
On October 26, 2017, before CBP responded to Panjiva's FOIA request, the
plaintiffs filed an action against the government in the United States District Court
for the Southern District of New York. The complaint contained eight "counts":
9 19-118 Panjiva, Inc. v. United States Customs and Border Protection
Counts one through five alleged that the government had failed to comply with
various requirements of FOIA; counts five 2 and eight alleged that the
government's lack of FOIA compliance also violated the Administrative Procedure
Act ("APA"); and counts six and seven alleged in essence that the government had
violated the Smoot-Hawley Tariff Act of 1930 and the APA by failing upon request
to disclose information from aircraft manifests and by failing to promulgate
regulations to facilitate public access to aircraft manifest information.
On January 12, 2018, the government filed a motion pursuant to Federal
Rule of Civil Procedure 12(b)(6) to dismiss the complaint's Smoot-Hawley Tariff
Act (counts 6 and 7) and APA/FOIA (counts 5 and 8) claims. On September 24,
2018, the district court granted the motion.
The court's opinion began by addressing the Smoot-Hawley Tariff Act
claims. See Panjiva, 342 F. Supp. 3d at 486-94. Those claims, the parties agree,
turned on a pure — if challenging — question of statutory interpretation: whether
section 431(c)(1) of the act requires public disclosure of water-vessel manifests
only (that is, disclosure of manifests maintained by water craft entering the
country only) or of aircraft manifests too. The court concluded that only
2 Count Five contained an allegation under FOIA and an allegation under the APA.
10 19-118 Panjiva, Inc. v. United States Customs and Border Protection
information with respect to water-vessel manifests is covered. It therefore
dismissed counts six and seven of the complaint.
The court then addressed the complaint's APA/FOIA claims, see Panjiva, 342
F. Supp. 3d at 494-96, concluding that they were duplicative of the Smoot-Hawley
Tariff Act claims and therefore should be dismissed too.
On November 13, 2018, the plaintiffs voluntarily dismissed the complaint's
remaining FOIA claims. This appeal followed.
DISCUSSION
On appeal, the plaintiffs raise a single argument: that the district court
adopted an incorrect interpretation of section 431(c)(1) of the Smoot-Hawley
Tariff Act by failing to recognize that it now requires public disclosure of
information in aircraft manifests, and therefore erred in its dismissal of the
plaintiffs' claims brought under that statute.
Analysis
"We review a district court's grant of a motion to dismiss under Rule 12(b)(6)
de novo." Edwards v. Sequoia Fund, Inc., 938 F.3d 8, 12 (2d Cir. 2019).
"When interpreting the meaning of a statute," in this case, the Smoot-
Hawley Tariff Act, "the starting point of inquiry is of course the language of the
11 19-118 Panjiva, Inc. v. United States Customs and Border Protection
statute itself." In re Edelman, 295 F.3d 171, 177 (2d Cir. 2002). "If the statutory
terms are unambiguous, we construe the statute according to the plain meaning
of its words." Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir. 2013). In other
words, "[i]f the meaning is plain, the inquiry ends there." United States v.
Rowland, 826 F.3d 100, 108 (2d Cir. 2016). "If, however, the terms are ambiguous
or unclear, we may consider legislative history and other tools of statutory
interpretation." Nwozuzu, 726 F.3d at 327.
1. Ambiguity
The government and the plaintiffs disagree at the threshold as to whether
section 431(c)(1)'s language is unambiguous. The government contends that the
provision's language is ambiguous and tells us that we can and therefore should
look to other "tools," including the statute's legislative history, to interpret it. The
plaintiffs assert to the contrary that the provision's text is clear and express, and
that it therefore would be "inappropriate" for us to "resort to collateral
interpretive tools such as legislative history." Pls. Br. at 11.
Determining the clarity of section 431(c)(1)'s text plainly requires us to first
determine what the text of section 431(c)(1) is. Although determining the text of a
12 19-118 Panjiva, Inc. v. United States Customs and Border Protection
statute is usually a matter of routine, in the case at bar, it presents a substantial
challenge.
As discussed above, the relevant provision was clear throughout most of
the long life of the Smoot-Hawley Tariff Act. As enacted in 1930, section 431
provided that "every vessel," which the statute defined to include all "water craft"
and "not . . . aircraft," Pub. L. No. 71-361, § 401(a), 46 Stat. at 708 (1930), that
"arriv[ed] in the United States" was required to "have on board . . . a manifest"
containing information specified in the statute. Id., § 431, 46 Stat. at 710.
In 1984, Congress added a subsection, (c)(1), to section 431 that required
statutorily enumerated "information . . . contained in such manifest" to be made
"available for public disclosure . . ." Pub. L. No. 98-573, § 203, 98 Stat. at 2974
(1984). So far so good: Section 431 required all vessels (water craft) entering the
United States to maintain a manifest, and section 431(c)(1) required specific
information to be both included in "such" manifests and made "available for
public disclosure."
In 1996, the combination of two amendments to the statute muddied the
statutory waters.
13 19-118 Panjiva, Inc. v. United States Customs and Border Protection
To repeat, first, in July of that year, Congress passed the ACPA, which
amended section 431(c)(1) "by inserting 'vessel or aircraft' before 'manifest.'"
Pub. L. No 104-153, § 11(1), 110 Stat. at 1389 (July 2, 1996). 3 As of that point, the
clause of section 431(c)(1) covering public disclosure read:
Except as provided in subparagraph (2), the following information, when contained in such vessel or aircraft manifest, shall be available for public disclosure.
See id., 110 Stat. at 1389. The list of each type of information to be disclosed
followed, including the reference to "the name of the vessel, aircraft, or carrier,"
and the "seaport or airport" of loading and discharge. See id., 110 Stat. at 1389
(emphasis added).
About three months later, in October 1996, Congress enacted the
Corrections Act, which amended section 431(c)(1) yet again. See Pub. L. No. 104-
295, § 3(a)(3), 110 Stat. at 3515 (October 11, 1996). In relevant part, the
Corrections Act provided that "Section 431(c)(1) of the Tariff Act . . . is amended
. . . by striking 'such manifest' and inserting 'a vessel manifest.'" Id., 110 Stat. at
3515.
3 As described more fully above, the ACPA also amended the list of information that must be contained in a manifest to include references to "airports" and "aircraft." Pub. L. No. 104-153, § 11(2)-(4), 110 Stat. at 1389.
14 19-118 Panjiva, Inc. v. United States Customs and Border Protection
The problem, though, is that the phrase "such manifest" no longer
appeared in section 431(c)(1), because the ACPA had replaced "such manifest"
with "such vessel or aircraft manifest." It could not simply be amended. If one
were to try to do what the statute seems to require — that is, if one were to
remove the two words "such" and "manifest" separately — the language that
remained would describe "information, when contained in . . . vessel or
aircraft . . . ." This reading makes no sense, let alone results in statutory text that
is "clear."
Other subsections of section 431 manage, if anything, to add to the lack of
clarity. Congress has never changed section 431's core instruction that it is only
"vessel[s]" — which are explicitly defined as "not includ[ing] aircraft" — that
must "have . . . manifest[s]" when entering the United States. 46 Stat. at 708, 710.
To this day, the corresponding section of the U.S. Code, 19 U.S.C. § 1431(a),
continues to read: "Every vessel required to make entry . . . shall have a manifest
that complies with [the statutory requirements]." The definition of "vessel"
contained in the "definitions" section of the Tariff Act, 19 U.S.C. § 1401, also states
that "[t]he word 'vessel' includes every description of water craft or other
contrivance used, or capable of being used, as a means of transportation in water,
15 19-118 Panjiva, Inc. v. United States Customs and Border Protection
but does not include aircraft." (emphasis added). Thus, aside from the question of
whether section 431(c)(1) requires the public disclosure of "aircraft manifests," it is
not even clear whether section 431 requires aircraft to possess and maintain
manifests in the first place. We think, therefore, that because we are permitted to
"consider . . . other tools of statutory interpretation" when attempting to
understand "terms" that are merely "ambiguous [and] unclear," Nowzuzu, 726
F.3d at 327, so too can we use those tools in odd circumstances such as these, to
attempt to determine what the text of section 431(c)(1) now says, and then what
those words mean.
2. Tools of Statutory Interpretation
a. Canon Against Superfluity
In addition to their argument that our analysis ought go no further than a
plain reading of section 431's text, the plaintiffs also appear to assert that if we do
go beyond the statute's plain meaning, their interpretation of the statute is aided
by the so-called "canon against superfluity," see Microsoft Corp. v. i4i Ltd. P'ship, 564
U.S. 91, 106 (2011), also known as the "canon against surplusage," see, e.g., Marx v.
Gen. Revenue Corp., 568 U.S. 371, 385 (2013). It has been referred to as "a cardinal
principle of statutory construction" which requires courts to "give effect, if
16 19-118 Panjiva, Inc. v. United States Customs and Border Protection
possible, to every clause and word of a statute." Williams v. Taylor, 529 U.S. 362,
404 (2000) (internal quotation marks omitted).
The plaintiffs rely on the canon to attack the government's interpretation of
section 431, which, as described above, reads the statute as requiring only
waterborne vessels — and not aircraft — to publicly disclose information
maintained in their manifests. The plaintiffs' contention is straightforward: The
government's interpretation of section 431 fails to "give effect" to words in both (1)
the provision's clause requiring public disclosure and (2) paragraphs (D), (E), and
(F) of the provision, which identify the specific types of information in manifests
that must be publicly disclosed.
The plaintiffs assert first that the government's interpretation of section
431(c)(1)'s operative clause fails to give effect to the term "aircraft manifest," which
was added to the clause by the ACPA; the term "aircraft manifest," the plaintiffs
argue, is thereby rendered surplusage and thus the government's reading violates
the canon. As the district court recognized, though, this argument relies on the
plaintiffs' assumption that after the ACPA was enacted, the Corrections Act "did
not remove" the term "aircraft manifest" from section 431(c)(1), Pls. Br. at 16,
thereby leaving it in section 431(c)(1) as surplus. But whether the Corrections Act
17 19-118 Panjiva, Inc. v. United States Customs and Border Protection
removed the allegedly surplus term "aircraft manifest" from the text of section
431(c)(1) is, as the district court put it, the "fundamental question" before us.
Panjiva, 342 F. Supp. 3d at 490. In other words, the Corrections Act's effect on
section 431(c)(1) is precisely what we must determine in order to resolve the issue
of "what the text [of]" section 431(c)(1) now says and means. Id. Thus, because the
plaintiffs assume the answer to this question, and because we on our own see little
reason why the Corrections Act should be assumed not to have removed "aircraft
manifest" from section 431(c)(1), the plaintiffs' contention is not persuasive. 4
The plaintiffs' second attack on the government's interpretation is that it
does not give effect to the references to "airports" and "aircraft" in paragraphs (D),
(E), and (F) of the subsection as amended by the ACPA. Quoted above, they
continue to require manifests to contain:
(D) The name of the vessel, aircraft, or carrier. (E) The seaport or airport of loading. [and]
4 The plaintiffs attempt to support their argument by pointing to a decision by the United States District Court for the District of Minnesota, Grupo Petrotemex, S.A. De C.V. v. Polymetrix AG, No. 16-cv-2401, 2018 WL 5307823 (D. Minn. Oct. 26, 2018), which, contrary to the district court in this case, concluded that the reading of section 431 proposed by the government essentially ignores the "plain language" of the provision that requires public disclosure of information in "aircraft manifests," id. at *6 n.6. We are of course not bound by that decision; but in any event we disagree with its conclusion because, like the plaintiffs' argument here, it is based on an assumption as to what effect the Corrections Act had on the text of section 431(c)(1).
18 19-118 Panjiva, Inc. v. United States Customs and Border Protection
(F) The seaport or airport of discharge.
19 U.S.C. §§ 1431(c)(1)(D), (E), (F). (emphases added).
This assertion, unlike the plaintiffs' first contention, assumes nothing about
the effect of the Corrections Act. The Corrections Act did not address
subparagraphs (D), (E), and (F) of section 431(c)(1), and it is thus indisputable that
the text of those paragraphs continues to refer to airports and aircraft. The
plaintiffs are thus correct insofar as the government's interpretation of section
431(c)(1) renders the airport and aircraft references superfluous — if aircraft are
not covered by section 431(c)(1), for example, what is the word "aircraft" doing in
paragraph (E) as a covered place of loading?
The Supreme Court has made clear, though, that "[t]he canon against
surplusage is not an absolute rule," Marx, 568 U.S. at 385, and it "assists only where
a competing interpretation gives effect 'to every clause and word of a statute.'"
Microsoft Corp., 564 U.S. at 106 (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)).
And however powerful this attack against the government's interpretation of the
provision may be, it cannot aid the plaintiffs' contrary reading of section 431(c)(1)
inasmuch as the plaintiffs do not even tell us what the words of section 431(c)(1)
are post-Corrections Act, let alone give effect to every one of them. The closest the
19 19-118 Panjiva, Inc. v. United States Customs and Border Protection
plaintiffs come to offering a suggestion as to how section 431(c)(1)'s text now reads
is by quoting 19 U.S.C. § 1431(c)(1), which, as we have noted, the House Office of
Law Revision Council decided was: "the following information, when contained
in a vessel vessel or aircraft manifest, shall be available for public disclosure."
(emphasis added). Thus, although they attempt to dismiss it as "a minor
syntactical issue," Pls. Br. at 6, the plaintiffs' understanding of the text of section
431(c)(1) to contain the phrase "vessel vessel" makes it obvious that their reading
of the statute also contains a superfluous term.
In addition, the plaintiffs' interpretation of section 431(c)(1) fails to give
effect to any clause or word in the Corrections Act amendment because their
interpretation of section 431(c)(1) is only possible if the Corrections Act is
understood to have had no effect on section 431(c)(1) at all. In other words, the
parties agree that in the period after Congress enacted the ACPA in July 1996 and
before it enacted the Corrections Act in October 1996, section 431(c)(1) explicitly
required the government to publicly disclose manifests of both vessels and
aircraft. 5 Because the plaintiffs thus understand section 431(c)(1) to continue to
5This assumes that section 431 requires an aircraft entering the country to have a manifest in the first place, which, as discussed above, is itself not clear.
20 19-118 Panjiva, Inc. v. United States Customs and Border Protection
impose the same requirements as it did before the Corrections Act was enacted, as
the district court observed, their interpretation "render[s] the Corrections Act
amendment entirely superfluous." Panjiva, 342 F. Supp. 3d at 491.
We conclude, therefore, that the canon against surplusage offers little to our
analysis: Both the plaintiffs' interpretation and the government's interpretation of
section 431(c)(1) leave different portions of the statute without effect. We must
therefore turn to other tools of statutory interpretation in our analysis.
b. Implied Repeal
The plaintiffs argue also that their interpretation of section 431(c)(1),
which, to reiterate, requires public disclosure of manifests maintained by both
vessel and aircraft manifests, is superior to the government's interpretation,
which requires public disclosure of vessel manifests only, because the
government's interpretation runs counter to the rule against implied repeals.
The Supreme Court has instructed that "repeals [of statutes] by implication
are strongly disfavored" and that "it can be strongly presumed that Congress will
specifically address language on the statute books that it wishes to change."
United States v. Fausto, 484 U.S. 439, 452-53 (1988). According to the plaintiffs, the
government's interpretation of section 431(c)(1) runs counter to this presumption
21 19-118 Panjiva, Inc. v. United States Customs and Border Protection
inasmuch as its understanding of the statute treats the Corrections Act as having
deleted the phrase "aircraft manifests" from section 431(c)(1), and thus having
repealed the portion of the ACPA that introduced that phrase into section
431(c)(1) several months previously, by silent implication.
To be sure, the government's interpretation of section 431(c)(1) does treat
the Corrections Act as having removed the word "aircraft" from section
431(c)(1)'s operative clause. It is also true that the government asserts that the
Corrections Act did so without specifically addressing the term "aircraft." But it
does not follow that the government's interpretation relies on understanding the
Corrections Act to have repealed the relevant portion of the ACPA by
implication. Instead, the government's view of section 431(c)(1) treats the
Corrections Act not as having overlooked the phrase "aircraft manifests," or as
having silently repealed the relevant portion of the ACPA, but instead as having
attempted to remove the word "aircraft" from section 431(c)(1)'s operative clause
explicitly, if sloppily. In other words, under the government's reading, the
Corrections Act is "an affirmative showing of [Congress'] intention to repeal,"
Auburn Hous. Auth. v. Martinez, 277 F.3d 138, 145 (2d Cir. 2002), a specific
provision (the ACPA) through an equally specific amendment (the Corrections
22 19-118 Panjiva, Inc. v. United States Customs and Border Protection
Act) that continues to suffer from a drafting error. Therefore, because the
government does not contend that that Corrections Act repealed the ACPA by
implication, the presumption against implied repeals does not apply and thus
favors neither the plaintiffs' nor the government's interpretation of section
431(c)(1).
c. Legislative History
Having been pointed to nothing better to aid our interpretation, and with
the meaning of section 431(c)(1)'s text still uncertain, we turn to the provision's
legislative history. See Puello v. Bureau of Citizenship & Immigration Servs., 511
F.3d 324, 327 (2d Cir. 2007) ("If the meaning of a statute is ambiguous, the court
may resort to legislative history to determine the statute's meaning.") "[I]n so
doing, we must 'construct an interpretation that comports with [the statute's]
primary purpose and does not lead to anomalous or unreasonable results.'" Id.
(quoting Conn. ex rel. Blumenthal v. U.S. Dep't of the Interior, 228 F.3d 82, 89 (2d
Cir. 2000)).
23 19-118 Panjiva, Inc. v. United States Customs and Border Protection
The plaintiffs, as noted above, urge us to ignore the statute's legislative
history based on their view that the text of section 431(c)(1) is clear and resort to
legislative history therefore improper. 6
The government disagrees, identifying legislative history that it contends
helps make sense of section 431(c)(1)'s ambiguous text. It cites a report on the
Corrections Act by the Senate Finance Committee that states that the act "amends
section 431(c)(1) of the Tariff Act of 1930 to clarify that the references in the
section is to vessel manifests and not to other types of manifests." S. Rep. No.
104-393, at 3 (1996). The report also includes a graphical representation of the
changes the committee intended the Corrections Act to make to section 431, with
the words to be removed indicated in brackets:
6 Before the district court, but not on appeal, the plaintiffs argued that their reading of section 431(c)(1) was bolstered by a report by the Senate Judiciary Committee that expressly states the ACPA "amends section 431(c)(1) of the Tariff Act to permit public disclosure of aircraft manifests under the same terms currently allowed for sea shipments" because the "distinction between information required about goods shipped by sea as compared to goods shipped by air" is "unwarranted and out-of-date." S. Rep. No. 104-177, at 11 (1995). Be that as it may, the report provides little more than what is offered by the text of the ACPA, which, by inserting "vessel or aircraft before manifest" in section 431(c)(1), makes it clear that Congress intended (at least for a short period of time) that section 431(c)(1) require the disclosure of aircraft manifests in addition to vessel manifests. This point does not appear to be disputed by the government. But crucially, the report leaves unanswered what the text of section 431(c)(1) should be read to mean post enactment of the Corrections Act.
24 19-118 Panjiva, Inc. v. United States Customs and Border Protection
Id. at 43. We agree with the district court that this report is "clear evidence that
the Corrections Act amendment was enacted to restrict the scope of § 431(c)(1)"
by limiting it to vessels, which means waterborne transport only, and that the
committee "understood that the version of § 431(c)(1) that would exist after [the
Corrections Act] would cover [such] vessel manifests only, and that [the
Corrections Act] would omit any reference to aircraft manifests from the
operative clause of § 431(c)(1)." Panjiva, 342 F. Supp. 3d at 492.
One might wonder why Congress changed its mind so dramatically and so
quickly between July and October of 1996. If the distinction between vessel and
aircraft manifests was "unwarranted and out-of-date," S. Rep. No. 104-177, at 11
(1995), when the ACPA was passed in July 1996, one might guess that it would
also be "unwarranted and out-of-date" three months later when the Corrections
Act was passed. But Congress is permitted a U-turn. This legislative history
suggests that it took one. And, critically, this reading allows for both 1996
amendments (i.e., the ACPA and the Corrections Act) to carry meaning:
25 19-118 Panjiva, Inc. v. United States Customs and Border Protection
Congress intended the ACPA to add aircraft manifests to section 431(c)(1)'s
public disclosure requirement, and (soon thereafter) intended the Corrections
Act to remove aircraft manifests from the public disclosure requirement.
Moreover, if, as all appear to agree, the ACPA was meant to expand
section 431(c)(1) to require the public disclosure of both vessel and aircraft
manifests, and, as the plaintiffs contend, section 431(c)(1) should be understood
to continue that requirement, then the Corrections Act was essentially a nullity.
Congress should not be understood to have intended an amendment to be
ineffective. Faced with two less than perfect readings of the statute, we conclude
that the government's interpretation of section 431(c)(1) more persuasively
reflects Congressional intent. 7
7 The government also relies on "subsequent legislative history," i.e., legislative history from the time since the Corrections Act was passed, to support its interpretation of section 431(c)(1). The argument is discussed at some length in the district court's opinion. See Panjiva, 342 F. Supp. 3d at 493-94. But the Supreme Court has warned (as the district court noted, see id.) that subsequent legislative history is "a particularly dangerous ground on which to rest an interpretation of a prior statute," inasmuch as "[a] bill can be proposed for any number of reasons, and it can be rejected for just as many others." Solid Waste Agency of N. Cook Cty. v. Army Corps of Eng'rs, 531 U.S. 159, 169-70 (2001) (internal quotation marks omitted). The district court concluded that subsequent legislative history "further supports the [g]overnment's reading of the statute." Panjiva, 342 F. Supp. 3d at 492. Under the circumstances, though, we need not and therefore do not rely on subsequent legislative history to reach our conclusion.
26 19-118 Panjiva, Inc. v. United States Customs and Border Protection
For the foregoing reasons, we conclude that section 431(c)(1) of the Smoot-
Hawley Tariff Act of 1930, presently codified at 19 U.S.C. § 1431(c)(1), continues
to require the government to make available for public disclosure manifests only
of vessels, meaning "water craft or other contrivance used, or capable of being
used, as a means of transportation in water, but . . . not . . . aircraft." See 19 U.S.C.
§ 1401.
CONCLUSION
We have considered the plaintiffs' remaining arguments on appeal and
conclude that they are without merit. We therefore AFFIRM the judgment of the
district court.