Guided by Principles of Statutory Interpretation, the Ninth Circuit Upholds Enforcement of an Administrative Summons Issued by U.S. Customs and Border Protection

Case: United States v. Tan, No. 20-56399

Ninth Circuit Panel Composition: Graber (Clinton); Christen (Obama); and Owens (Obama)

Result: Affirming the district court’s order enforcing an administrative summons issued by the U.S. Customs and Border Protection


In a case that touches on agency law and civil procedure, the Ninth Circuit recently upheld the enforcement of an administrative summons issued by the U.S. Customs and Border Protection division of the Department of Homeland Security (“Customs”).

The factual background and procedural posture are straightforward. Appellant, Ben Ghee Tan, operates businesses that import agricultural merchandise. Customs served an administrative summons on Tan to compel him to provide testimony at a specified place, date, and time. No records were requested as part of the summons. Tan refused to comply with the summons, and so the government filed a petition in district court to enforce the summons. The district court sided with the government and granted the petition. Tan appealed to the Ninth Circuit.

Statutory Interpretation Issue

The crux of this action turned on the statutory interpretation of 19 U.S.C. § 1509, which sets forth the rules concerning administrative summons. In short, § 1509 requires the government to provide “reasonable notice” when issuing a summons for testimony.

On appeal, Tan argued that the government failed to provide “reasonable notice”—as it is contemplated under the statute—contending that reasonable notice requires the summons to describe with “reasonable specificity” the subject matter of the investigation and the requested testimony. Alternatively, Tan asserted that the Court should look to the Federal Rules of Civil Procedure and the legislative history to help analyze the statutory interpretation issue.

In a 3-0 decision, the panel soundly rejected Tan’s arguments. The Court began by grappling with Tan’s textual contentions. After walking through the text of the statute, the Court observed that the law at issue requires two things: (1) “reasonable notice” of the examination of records; and (2) “reasonable specificity” concerning the description of the records sought. But importantly, “Congress requires only one of those things with regard to testimony.” (emphasis added). So, when seeking testimony, the government may summon a person to appear by simply giving reasonable notice; the government need not, however, describe the subject matter with any sort of specificity as Tan averred. The Court emphasized that the statute makes a clear distinction between a summons to compel testimony versus a summons to compel records. In accordance with principles of statutory analysis prescribed by case law, the Court gave effect to such distinction; otherwise, the Court reasoned, the term “reasonable specificity” would serve no independent purpose in the statute.

Applied to Tan’s matter, because he was served a summons that sought to compel testimony, and not records, the Court concluded that only the temporal requirement of “reasonable notice” was applicable.

Next, the Court rejected and paid short shrift to Tan’s contention that the Court should look to the Federal Rules of Civil Procedure to help answer the statutory interpretation issue. Tan argued that the Court should borrow certain elements set forth in the Federal Rules of Civil Procedure—specifically Rule 30(b)(6), which requires “reasonable particularity” for notices of depositions on corporations. The Court was unpersuaded, explaining that the Federal Rules Civil Procedure do not “supplant” the statutory process established by Congress in § 1509. The Court also noted that Rule 30(b)(6) contemplates “reasonable particularity,” which is not a requirement found under § 1509(a)(2).

Finally, the Court declined Tan’s invitation to consider the legislative history of § 1509. The panel made clear that it need not consider the legislative history in cases where the text is unambiguous—as was the case here. Nevertheless, the Court briefly discussed the reasons the legislative history did not sway its conclusion.

Enforcement of Summons Issue

Tan fared no better with respect to his challenge to the enforcement of the administrative summons. The Court noted that “the government need only make a prima facie case for enforcement, which it may do so by submitting a declaration . . .” Once the government meets that threshold, the person opposing the summons “shoulders a heavy burden to disprove the government’s showing.” After applying Supreme Court precedent and analyzing the relevant factors, the Court concluded that Tan failed to disprove the government’s showing, reasoning that the government’s petition to enforce the summons had complied with all statutory criteria.

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