16 F.4th 1346
9th Cir.2021Background
- Ben Ghee Tan operates businesses that import agricultural merchandise and was served an administrative summons by U.S. Customs to appear and give testimony (no records were requested).
- The summons specified the officer, place, date, and time for Tan to testify; Tan refused to appear.
- The government petitioned the district court under 19 U.S.C. § 1510 to enforce the summons; the district court granted enforcement.
- Tan appealed, arguing § 1509(a)(2) requires a summons for testimony to describe with reasonable particularity the subjects to be questioned and that Customs failed to satisfy the Powell enforcement criteria.
- Customs supported enforcement with a sworn declaration from the director of the agricultural imports section explaining the investigation, topics sought, and procedural compliance; the Ninth Circuit affirmed the enforcement order.
Issues
| Issue | Tan's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether § 1509(a)(2)’s “reasonable notice” requires advance description of testimony subjects | § 1509(a)(2) requires notice describing the subjects to be probed with reasonable particularity | "Reasonable notice" is a temporal requirement (sufficient time to appear); specificity is required only for records under § 1509(a)(1)/(c) | Court held "reasonable notice" is temporal only; no statutory requirement for subject-matter specificity for testimony summonses |
| Whether Federal Rule 30(b)(6)-style specificity should be read into § 1509(a)(2) | Rule 30(b)(6)’s reasonable particularity should apply to administrative testimony summonses | Civil discovery rules do not supplement the statutory scheme; Rule 30(b)(6) serves different purposes (corporate rep identification) | Court declined to import Rule 30(b)(6) demands into § 1509(a)(2) |
| Whether legislative history or policy supports requiring specificity for testimony summonses | Legislative history and policy favor preventing fishing expeditions; specificity helps preparation | Text is clear; sparse/ambiguous legislative history does not override statute; Congress could rationally treat records and testimony differently | Legislative history does not overcome the clear statutory text; court defers policy choices to Congress |
| Whether Customs met Powell criteria to enforce the summons | Powell not satisfied because declaration lacks sufficient detail | Government submitted sworn declaration showing legitimate purpose, relevancy, information not already possessed, and procedural compliance | Court found no clear error: government met Powell elements and enforcement was proper |
Key Cases Cited
- United States v. Powell, 379 U.S. 48 (Supreme Court) (sets elements for enforcement of administrative summonses)
- Russello v. United States, 464 U.S. 16 (Supreme Court) (textual differences within a statute should be given effect)
- United States v. Rubin, 2 F.3d 974 (9th Cir.) (interpreting § 1509 in the context of records summonses)
- Crystal v. United States, 172 F.3d 1141 (9th Cir. 1999) (government may make prima facie showing by agent declaration)
- United States v. Derr, 968 F.2d 943 (9th Cir. 1992) (summons enforcement is summary in nature)
- Azar v. Allina Health Servs., 139 S. Ct. 1804 (Supreme Court) (caution against using ambiguous legislative history to override clear statutory text)