United States Court of Appeals,

Fifth Circuit.

No. 95-50902.

WINTERS RANCH PARTNERSHIP, a Texas partnership; David W.

Winters; Sara F. Winters; Thomas D. Winters; John C. Winters,

Plaintiffs-Counter Defendants-Appellees,

v.

Roger C. VIADERO, Inspector General, U.S. Department of

Agriculture, Defendant-Counter Claimant-Appellant.

Oct. 1, 1997.

Appeal from the United States District Cour t for the Western

District of Texas.

Before GARWOOD, BARKSDALE and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Appellant, the Inspector General (of the United States

Department of Agriculture (USDA)) ("IG"), seeks summary enforcement

of administrative subpoenas duces tecum issued to App ellees,

Winters Ranch Partnership and its individual partners

(collectively, "the WRP group"). The WRP group contends that the

subpoenas were issued pursuan t to an investigation which exceeds

t he IG's statutory authority under the Inspector General Act and

are, therefore, unenforceable. The district court granted WRP's

motion for summary judgment and denied the IG's motion for summary

judgment, holding that the subpoenas were not issued for a purpose

within the statutory authority of the IG and denying the

enforcement of the subpoenas. W inters Ran ch Partnership v.

Viadero, 901 F.Supp. 237, 242 (W.D.Tex.1995). We determine that

the IG issued the subpoenas for a purpose within the IG's statutory

authority, viz, to t est the efficiency of the Consolidated FarmService Agency's implementation of payment limitations in the wool

and mohair price support programs. Accordingly, we reverse the

district court's judgment a nd render summary judgment ordering

enforcement of the subpoenas.

I. Factual Background

Plaintiffs-Appellees, Winters Ranch Partnership ("WRP") and

its individual partners, David W. Winters, his wife Sarah R.

Winters, and their children Thomas D. Winters and John C. Winters

(collectively, "the WRP group") have interests in a sheep and goat

ranch that produces wool and mohair. Based on their

representations that each partner was an active producer of wool

and mohair, all of the WRP partners received price support payments

under the federal wool and mohair price support programs for

marketing yea rs 1991, 1992, and 1993. The Consolidated Farm

Service Agency ("CFSA") is the federal agency statutorily

authorized to administer the price support program. In 1993, the

Inspector General formulated a plan to investigate and au dit the

CF SA's implementation of the payment limitation and eligibility

requirements for participation in federal wool and mohair support

programs. In connection with this investigation, the IG selected

a sample of six price support recipients out of the total number of

recip ients and proceeded to investigate these subjects to test

whether the agency's administration of the program effectively

prevented violations of payment limitation and eligibility

requirements. The WRP group was one of the six producer-recipients

selected for the investigation. The IG began by requesting

information to determine whether the WRP group's farming operationwas carried out in 1991 and 1992 as represented to the CFSA. The

WRP group cooperated for several months by producing the documents

requested. The IG's review of the documents submitted by the WRP

group revealed that the partners actual participation in the

farming o perations for marketing years 1991, 1992, and 1993 were

different from that represented to the CFSA. The IG notified the

CFSA of these discrepancies and recommended that the CFSA initiate

its own investigation. On December 16, 1994, the CFSA began its

own revi ew to determine if WRP farming operations were as

represented to the CFSA for program payment limitation and payment

eligibility requrements. On January 4, 1995, the WRP group

informed the IG that i t would no longer respond to the IG's

requests for information and instead would cooperate only with the

CFSA. On February 1, 1995, the IG issued administrative subpoenas

seeking informati on relating to the WRP group's eligibility for

price support payments in 1991 through 1993.

The WRP group refused to comply with the subpoenas and filed

this action for declaratory j udgment that the subpoenas were not

issued for a purpose within the IG's statutory authority. The IG

filed a counterclaim seeking enforcement of the subpoenas.

Subsequently, the adverse parties filed cross motions for summary

judgment. The district court granted summary judgment in favor of

the WRP group and denied the IG's motion for summary judgment. The

IG appealed from the district court's judgment.

II. Legal Principles

A. Administrative Subpoenas

When called upon to enforce an administrat ive subpoena, a1 In the final pages of its brief, the WRP group raises, in a

cursory fashion, argument s that the administrative subpoenas are

unenforceable because they are irrelevant and burdensome. S ee Appellee's Brief p. 36-37. No summary judgment evidence supports

a finding that the information sought by the IG was either

irrelevant or burdensome. S ee infra at III (discussing the

undisputed facts). In fact the information directly relates to the court's role is limited to evaluating whether (1) the subpoena was

issued for a lawful purpose within the statutory authority of the

issuing agency; (2) the documents requested are relevant to that

purpose; and (3) the subpoena demand is reasonable and not unduly

burdensome. S ee, e.g., Oklahoma Press Publ. Co. v. Walling, 327

U.S. 186, 209, 66 S.Ct. 494, 506, 90 L.Ed. 61 4 (1946); E ndicott

Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 343, 87

L.Ed. 424 (1942); B urlington N. R.R. Co. v. Office o f Inspector

Gen., R.R. Retirement Bd., 983 F.2d 631, 637 (5th Cir.1993) (citing

United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357,

368-69, 94 L.Ed. 401 (1950); United States v. Westinghouse Elec.

Corp., 788 F.2d 164, 166 (3d Cir.1986); F ederal Election Comm'n v.

Florid a for Kennedy Comm., 681 F.2d 1281, 1284 (11th Cir.1982);

United States v. Powell, 379 U.S. 48, 58, 85 S.Ct. 248, 255, 13

L.Ed.2d 112 (1964)); U nited States v. Security State Bank & Trust,

473 F.2d 638, 641 (5th Cir.1973); see also RTC v. Walde, 18 F.3d

943, 946 (D.C.Cir.1994); L inde Thomson Langworthy Kohn & Van Dyke,

P.C. v. RTC, 5 F.3d 1508, 1513 (D.C.Cir.1993); F.T.C. v. Texaco,

555 F.2d 862, 872 (D.C.Cir.1977) (en ba nc) (citations omitted).

The WRP group principally contends that the subpoenas were not

issued for a purpose within the IG's authority. The WRP group did

not vigorously raise or address the issues of whether the subpoenas

sought irrelevant information or were unduly broad or burdensome. 1purpose of the audit and encompasses documents not requested by the

CFSA. The district court's ruling was restricted to the authority of the

IG to issue the subpoenas.

B. Inspector General Act

The Office of Inspector General of the United States

Department of Agriculture was established by the Inspector General

Act. Inspector General Act of 1978, Pub.L. No. 95-452 (codified in

5 U.S.C. app. 3 §§ 1-12). Congress created the Office of Inspector

General for the express purpose of combating "fraud, waste, abuse,

and mismanagement in the programs and operation s of the federal

government." S.R E P

. N O

. 95-1071, at 1, reprinted i n 1978

U.S.C.C.A.N. 2676, 2676. An office of Inspector General is

established in executive departments and executive agencies to act

as an independent and objective unit "(1) to conduct and supervise

audits and investigations relating to the programs and operations

of [the agency]," (2) to re commend policies for "activities

designed (A) to promote economy, efficiency, and effectiveness" in

the agency's programs and operations, and "(B) to prevent and

detect fraud and abuse" therein, and (3) to provide a means to keep

the agency head and Congress informed of problems and deficiencies

in the agency's programs and operations and to recommend corrective

action. 5 U.S.C. app. 3 § 2. Each Inspector General, in carrying

out the provisions of the Act, is authorized "to make such

investigations an d reports relating to the administration of the

programs and operations of [the agency] as are, in the judgment of

the Inspector General, necessary or desirable," and "to require bysubpena [sic] the production of all informa tion, documents,

reports, answers, records, accounts, pap ers, and other data and

documentary evidence necessary in the performance of the functions

assigned" by the Act. Id. § 6(a)(2), (4).

In short, Congress conferred very broad audit, investigatory,

and subpoena powers on each Inspector General , as an independent

and objective unit of the department or agency, to help promote

efficiency and prevent fraud, waste, abuse, and misma nagement in

federal government programs; Congress also prohibited any

government agency from transferring its program operating

responsibilities to an Inspector General. See Burlington N. R.R.

Co., 983 F.2d at 634-35.

C. Wool and Mohair Act

The National Wool Act of 1954 created price support programs

for the production of wool and mohair and designated the Secretary

of Agriculture to administer the programs. 7 U.S.C.S. §§ 1782-1785

(Supp.1996). Beginning in the 1991 marketing year, the Food,

Agriculture, Conservation, and Trade Act of 1990 imposed ceilings

on the amount of price support payments received by any one

"person". 7 U.S.C.S. § 1783(b) (Supp.1996) (repealed 1996).

Payments to any "person" were limited to (a) $200,000 for the 1991

marketing year; (b) $175,000 for the 1992 marketing year, and (c)

$150,000 for the 1993 marketing year. 7 U.S.C.S. § 1783(b)

(Supp.1996) (repealed 1996). For payment limitation purposes, a

"person" is any individual or org anizational entity actively

participating in farming operations, provided they have a separate

and distinct interest in the land or crop involved, e xerciseseparate responsibility for their interests, and maintain separate

funds or accounts. 7 C.F.R. §§ 1497.7, 1497.9 (1990).

USDA regulations charge the CFSA wi th determining program

eligibility, payment limitation compliance, and participants'

general compliance with all program requirements. S ee 7 C.F.R. §§

1468.102, 1472.1502 (1990). According to the USDA handbook on

payment limitation enforcement, the CFSA is responsib le for

conducting compliance reviews, termed "end-of-year reviews," as

part of its program administration responsibilities. U.S. D EPT

. OF

A GRICULTURE

, ASCS H ANDBOOK

, P AYMENT L IMITATION FOR S TATE AND C OUNTY O FFICES 1-

PL (Revis ion 1), P. 7-1 (Jan. 23, 1992). The purpose of

end-of-year reviews is "to maintain the integrity of payment

limitation and payment eligibility provis ions" and to "ascertain

that farming operations were carried out as represented when

initial determinations were made." Id.

D. Appellate Review Standards

An appellate court applies the same standard in reviewing the

grant or denial of a summary judgment motion as that used by the

trial court initially. M elton v. Teachers Ins. & Annuity Ass'n of

Am., 114 F.3d 557, 559 (5th Cir.1997) ; Dawkins v. Sears Roebuck

and Co., 109 F.3d 241, 242 (5th Cir.1997) (citing Cockerham v.

Kerr-McGee Chem. Corp., 23 F.3d 101, 104 (5th Cir.1995)); W aymire

v. Harris County, Tex., 86 F.3d 424, 427 (5th Cir.1996) (citing

Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 950 (5th

Cir.1994)); J urgens v. E.E.O.C., 903 F.2d 386, 388 (5th Cir.1990)

(citing Waltman v. International Paper Co., 875 F.2d 468, 474 (5th

Cir.1989)); M cCrae v. Hankins, 720 F.2d 863, 865 (5th Cir.1983)(citations omitted). Under Rule 56(c), a summary judgment is

proper when it appears that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law. F ED .R.C IV .P. 56(c).

III. Discussion

A. There is no dispute as to any material fact.

In support of the IG's motion for summary judgment to enforce

the subpoenas, the IG filed numerous exhibits including: (1) a

declaration under penalty of perjury by Melinda S. Wenzl, Auditor,

Office of the IG of the U.S. Dept. of Ag., Auditor-in-Charge of the

a udit of the Wool and Mohair Payment Limitations; (2) the IG's

Survey Program providing instructions and guidance for conducting

a survey of the 1991 and 1992 wool and mohair payment limitations

administered by the Agricultural Stabilization and Conservations

Service [predecessor of the CFSA], dated July 15, 1993; (3) copies

of correspondence between the office of the IG and the WRP group;

(4) copies of the subpoenas duces tecum issued to the WRP group;

(5) a copy of IG's correspondence to the CFSA recommending a review

of WRP operatio ns; and (6) a copy of the CFSA's letter to WRP

announcing its end-of-year review of WRP.

In support of its motion for summary judgment, the WRP group

submitted a number of exhibits primarily including: (1) a July 9,

1994 fax transmittal from M elinda Wenzl, IG Auditor, to David

Winters of WRP requesting certain documents necessary for the IG's

review of WRP's 1991 and 1992 payment limitations; and (2) copies

of correspondence between the IG and the WRP group, the CFSA and

the WRP group, and the IG and the WRP group's attorney.The exhibits submitted by the WRP group are consistent with

and partially duplicate the IG's filings. A review of the parties'

exhibits reveals that the following material facts are undisputed.

Wool and mohair producers are eligible under the National Wool

Act of 1954 for price support payments when the yearly average

price received for wool or mohair is below the established support

price. The USDA makes price support payments through its component

agencies, one of which is the CFSA. The CFSA is responsible for

determining producers' eligibility for payments and compliance with

program requirements. To enforce these eligibility and program

requirements, the CFSA is charged with the responsibility of

conducting end-of-the-year reviews to ascertain that participation

in farming operations are carried out as represented.

Beginning with the 1991 marketing year, price support payments

to federal producer recipients were subject to limits. The payment

limitations restrict the total amount of price support that each

person may receive for a particular marketing year. The payment

limitations per person were $200,000 for the 1991 marketing year;

$175,000 for 1992; $150,000 for 1993; and $125,000 for 1994. For

payment limitations purposes, a "person" is an individual or entity

w ho has a separate and distinct interest in the land or crop

involved, exercises separate responsibility for such interest, and

maintains funds or accounts separate from that of any other

individual or entity. Any person who participates in a scheme or

device to evade the payment limitations is not eligible for CFSA

program payments.

The IG decided to test the efficiency of the CFSA'sadm inistration of the wool and mohair price support programs to

determine whether payments for the 1991, 1992, and 1993 marketing

years were properly made to a sample of producers who had

rep resented that they met eligibility requirements, or whether

producers had developed scheme s or devices to evade payment

limitations. After studying payment limitations records for 1989

and 1990 and comparing them with records for 1991, 1992, and 1993,

the IG determined to select for independent IG investigation those

producers who had received payments in excess of $200,000 in 1989

and 1990 and new producers who had received more than $50,000 in

1991. WRP was one of the six producers who fell into this category

becau se: prior to 1991, only plaintiff David Winters of the WRP

group participated in the programs and he received $424,715.27 for

1989 and $595,689.61 for 1990. David Winters, his wife Sara

Winters, and thei r two children formed WRP after payment

limitations were imposed effective in the 1991 marketing year.

Based on representations by the WRP group, the CFSA approved their

classification as four "persons" actively engaged in farming during

t he 1991, 1992, and 1993 marketing years. The combined wool and

mohair payments to the WRP group for 1991, 1992, and 1993 were

$670,200.62, $755,687.71 and $695,120.32, respecti vely. The IG

examined operations and financial transactions of the WRP group and

five other producers to determine the incidence, if any, of

misrepresentation or non-compliance with program eligibility and

limitation requirements.

At first the WRP group responded to the IG's request for

information and documents. The IG's preliminary review uncovereddiscrepancies between the WRP group's actual farming operations and

financial records and those represented to the CFSA as meeting the

require ments of eligibility for price support payments. As

required by the Act, the IG reported these findings to the CFSA and

recommended an end-of-year review of the WRP group. The CFSA, on

December 16, 1994, notified the WRP group that it was conducting an

end-of-year review of WRP's operations and payment eligibility for

1991, 1992, and 1993. On January 4, 1995, the WRP group's counsel

notified the IG that they woul d no longer respond to the IG's

r equest for information, but that they would cooperate only w ith

the CFSA.

The IG renewed the request f or additional documentation

pointing out that the IG's author ity to conduct independent,

objective audits is separate and distinct from the CFSA's authority

to conduct end-of-year reviews. The WRP group again refused to

respond.

The IG determined that the information requested was essential

to a complete review of the enforcement of laws and regulations

with respect to the WRP group's operations and the completion of

the IG's survey program. Accordingly, the IG issued administrative

subpoenas to the WRP group seeking the data on February 1, 1995.

The WRP group responded by filing the instant action on February

21, 1995.

Although the CFSA has provided th e IG with information and

documents it recovered in its end-of-year review, the IG still has

not received all of the information which it sought. Based on the

partial information, the IG has determined, in conjunction with theCFSA, that the WRP group received payments for which they were

ineligible in each of the marketing years 1991 through 1993. The

remainder of t he information that the IG requested, however, is

indispensable to the IG's audit and i nvestigation of the

enforcement of program requirements with respect to the WRP group

and to its survey testing of USDA price support programs. The

following information was requested by the IG but has not been

supplied: (1) explanations of abbreviations and codes contained in

WRP's ledgers and account books; (2) loan documents, including

promissory notes, security agreements, and transaction histories;

(3) copies of David Winters's 1991 through 1993 accounting records;

(4) information relating to offsets noted in WRP's general ledgers;

(5) employer identification numbers for livestock or ranching

operations in which David Winters had an interest; and (6) copies

of sales documents for mohair sales records on WRP's general

ledgers for 1992.

From the undisputed material evidentiary facts, we find that

the IG issued the administrative subpoenas for two purposes. The

immediate purpose was to obtain informa tion relevant to whether

each member of the WRP group met program eligibility requirements;

whether any member of the group had received support payments in

excess of that for which he or she was eligible; and whether the

group or any of its members had participated in a scheme or device

to evade price support limitations. The ultimate purpose of the

subpoenas was to obtain information to complete the IG's survey

program designed to determine whether the agency's procedures for

detecting and preventing fraud and abuse were effective and whetherdeficiencies were prevalent in the agency's price support programs,

and, if so, to determine the scope, p atterns, and possible

antidotes for the problem, and to enable the IG to make

recommendations as to necessary or desirable remedial measures to

the head of the agency and to Congress.

B. The Inspector General is entitled to judgment as a matter of

law.

The subpoenas were issued for a lawful purpose within the

statutory authority of the IG as the issuing agency. The Inspector

General Act clearly authorizes an IG to require by subpoena

information from persons who receive federal fu nds in connection

with a federal agency program or operation for the purpose of

evaluating the agency's programs in terms of th eir management,

efficiency, rate of error, and vulnerability to fraud, abuses, and

other problems.

The purpose of the Act in establishing an IG office in each

agency is to effect independent and objective audits and

investigations of the programs and operatio ns of each agency, to

promote economy, efficiency, and effectiveness and to prevent fraud

and abuse in the agency's programs, and to keep the agency head and

Congress apprised of problems and deficiencies in the programs. 5

U.S.C. app. 3 § 2(1)-(3).

To achieve this purpose, the Act imposes duties and

responsibilities on each IG to conduct, supervise, and coordinate

audits and investigations relating to the programs and operations

of the agency. I d. § 4(a)(1). The Act also charges the IG to keep

the agency and Congress informed of fraud, abuses, and serious

problems in programs financed or administered by the agency. Id.§ 4(a)(5).

To fu lfill these duties, the Act gives the IG additional

powers. The IG is authorized "to make such investigations and

repor ts relating to the administration of the programs and

operations of the agency as are, in the judgment of the [IG],

necessary or desirable." I d. § 6(a)(2). The IG is authorized "to

have access to al l records, reports, audits, reviews, documents,

papers, recommendations, or other material available to [the

agency] which relate to programs and operations with respect to

which that [IG] has responsibilities." Id. § 6(a)(1). The IG is

authorized "to request such infor mation or assistance" necessary

"to c arrying out the [IG's] duties and responsibilities from any

Federal, State, or local governme nt agency." I d. The IG is

authorized to require by subpoena from any person or entity, except

federal agencies, "the production of all informat ion, documents,

reports, answers, records, accounts, papers, and other data and

documentary evidence necessary" to its functions. Id. § 6(a)(4).

"Procedures other than subpoenas shall be used by the IG to obtain

documents and information from federal agencies." Id. The IG is

authorized "to administer to or take from any person an oath,

affirmation, or affidavit, whenever necessary in the performance"

of the IG's functions. Id. § 6(a)(5).

In the present case the district court concluded the following

about the purpose of the IG's investigation: that it was "of a

regulatory, rather than oversight, nature;" that it was not " "to

promote economy, efficiency and effectiveness in the administration

of and to prevent and detect fraud and abuse in and relating to theprograms and operations of' " the CFSA; and that it was "a payment

limitation compliance review to be co nducted pursuant to a

long-term regulatory plan." W inters Ranch Partnership, 901 F.Supp.

at 241. In reaching these conclusions, the district court fell

into error, evidently beca use it applied an incorrect

interpretation of the provisions of the Inspector General Act to a

clearly erroneous inference from the undisputed evidentiary facts

of record.

The district court erred in concluding that the Act prevents

the IG from using investigative techniques similar to the agency's

end-of-year reviews as a means of executing the IG's functions.

The A ct establishes and protects the IG's independent, objective

judgment in designing the scope, methodology, and focus of audits

and investigations of the administration of agency programs and

operations. The IG is specifically authorized to make such

investigations as are, in the judgment of the IG, necessary or

desirable. Id. §§ 2, 6(a)(2); see also Burlington Northern, 983

F.2d at 641. Although the IG is under the general supervision of

the head of the agency, neither the head officer nor any other

person may "prevent or prohibit [the IG] from initiating, carrying

out, or completing any audit or investigation, or from issuing" any

investi gative subpoena. I d. § 3(a). The independence and

objectivity of th e IG is enhanced because the IG is appointed by

the President, by and with the advice and consent of the Senate,

and may be removed only by the Pr esident, who is required to

explain the removal to both Houses of Congress. Id. § 3(a), (b).

The district court evidently based its decision in part on amisinterpretation of § 9(a) of the Inspector General Act. That

Section provides:

§ 9. Transfer of functions.

(a) There shall be transferred—

(1) to the Office of Inspector General—[subsections (A)

through (V) list pre-existing internal audit and

in vestigative units of various agencies that shall be

transferred]

(2) such other offices or agencies, or functions, powers, or duties thereof, as the head of the [agency] involved

may deter mine are properly related to the functions of

the Office and wo uld, if so transferred, further the

purposes of this Act,

except that there shall not be transferred to an Inspector

General under paragraph (2) program operating

responsibilities.

Section 9(a)(2) authorizes the head of an agency to transfer agency

offices, functions, powers, or duties to the Office of the

Inspector General if they are properly related to the functions of

the IG and their transfer would further the purposes of the

Inspect or General Act. Correlatively, Section 9(a)(2) adds that

program operating responsibilities shall not be transferred to an

IG. Thus, the agency head cannot convey to the IG any of the

agency's congressionally-delegated program operating

responsibility. S ee Burlington Northern, 983 F.2d at 642. The

transfer of such responsibility would not be properly related to or

compatible with the function of the IG as an independent, objective

inspector of the agency's operations; and such a transfer would

thwart, not further, the statutory design to establish the IG as a

separate, i ndependent, and objective auditor and investigator of

agency operations. See id.

The district court's apparent interpretation of Section9(a)(2) as prohibiting an IG from using the agency's investigatory

techniques in conducting an independent IG investigation is simply

incorrect. Section 9(a)(2) prohibits the transfer of "program

operating responsibilities," and not the duplication of functions

or the copying of techniques. No transfer of operating

responsibility occurs and the IG's independence and objectivity is

not compromised when the IG mimics or adapts agency investigatory

methods or functions in the course of an independent audit or

investigation. In fact, no transfer of function can occur simply

because the IG emulates a function normally performed by the agency

as part of the IG's own independent investigation. In order for a

transfer of function to occur, the agency would have to relinquish

its own performance of that funct ion. S ee, e.g., Burlington

Northern, 983 F.2d at 642.

As we have explained, the Act authorizes and enables the IG to

make independent decisions as to how and when to investigate the

agency's operation of its programs; it does not withdraw any

legitimate investigatory technique from the IG's repertoire, and it

does not dictate any particular manner in which the IG must deploy

or orchestrate the available devices of inquiry. S ee 5 U.S.C. app.

3 § 6(a)(2); s ee also Burlington Northern, 983 F.2d at 641 (noting

that the Inspector General Act gives Inspectors General "broad—not

limited—investigatory and subpoena powers") ; United States v.

Newport News Shipbuilding & Dry Dock Co., 837 F.2d 16 2, 170 (4th

Cir.1988) ("[W]here the interests of the government require broad

invest igations into the efficiency and honesty of a defense

contractor, the Inspector General is equipped for this task."). Asa practical matter, it is difficult to see how the IG could

evaluate the accuracy and effectiveness of the agency's eligibility

a nd compliance procedures without performing some of the same or

similar procedures in at least a sample or limited number of cases

and comparing the IG's findings and evaluations with that of the

agency.

There is no justification in the undisputed factual record for

the distri ct court's inference that the IG's investigation is a

"long-term regulatory plan," rather than an independent IG

investigation " "to prevent and detect fraud and abuse in and

relating to the programs and operations of the' " agency. The IG,

based on reasonable criteria, selected a sample of six wool and

mohair producers for a survey to determine to what extent, if any,

fraud, misrepresentation, and evasion schemes had circumvented

price support limitations during three marketing years. The WRP

group was one of the producers se lected because the previous

history and subsequent characteristics of their support p ayments

met or fell within reasonable and objective investigatory criteria.

The IG used, as part of its investigation, methods similar to those

that the agency uses at times to determine whether a producer

misrepresented any material facts in demonstrating the producer's

eligibility for price support payments during a particular

marketing year. When the IG detected discrepancies between the WRP

group's representations of facts to the agency and the true facts

uncovered by the IG's investigation, the IG turned this information

over to the agency, which promptly conducted its own investigation

and found that the group was, in fact, not eligible for all of thesupport payments received. The record plainly does not support the

district court's inferences that the IG's investigation usurped the

agency's program operating responsibilities, was long-term, or was

not being conducted for legitimat e purposes under the Act as

represented by the IG.

Our decision in Burlington Nort hern v. Office of Inspector

General, 983 F.2d 631 (5th Cir.1993), supports the conclusion that

the subpoenas here were issued for a purpose within the IG's

statutory authority and s hould be enforced. B urlington Northern

recognized and applied the same principles we do but reached the

opposite result on crucially different facts.

In Burlington Northern the agency, the Railroad Ret irement

Board (RRB), had never exercised its statutory duty to investigate

whether railroad companies' properly paid t axes to the Railroad

Unemployment Insurance Account. The IG assumed the agency's

primary duty, formed an alliance with the IRS, and was conducting

regular tax collection audits of substantially all major railroads

on a continuing, long-term basis. The IG was not merely conducting

" spot checks" of railroads' records to test the effectiveness of

the RRB's duty to investigate and audit railroad employers—the RRB

had never performed this duty . The IG issued subpoenas to the

Burlington Northern Railroad for payroll reco rds pursuant to the

IG's assumption of the RRB's statutory duty. The district court

denied enforcement. We affirmed, holding that the IG lacked

statutory authority to assume the agency's primary operating

responsibilities by conducting, as part of a long-term, continuing

plan, reg ular tax collection audits of the railroad companies'records. I d. at 642. Under the Railroad Unemployment Insurance

Act, this cou rt stated, the RRB, not the IG, is charged with

ensuring that railroad employers are accurately reporting taxable

compensation and properly paying taxes. I d. at 643. Further, and

highly significant to the present case, this court added:

We are not holding t hat, under all circumstances, the

Inspector General of t he RRB lacks statutory authority to

investigate or audit railroad employers' compensation

reporting. T he Inspector General of the RRB may well be able

to do so as part of a plan to test the effectiveness of the

RRB's summary reconciliation procedures or where he suspects

fraud and abuse on the part of such employers. We hold only

that, based on the district court's find ings concerning the

nature of this particular audit of Burlington Northern, the

Inspector General exceeded his statutory authority.

Id. at 643 (italics original) (underscoring added).

In the present case, the IG did not assume, and the CFSA did

not cede, any of the agency's program operating responsibilities.

The IG adopted a survey plan to "spot check" the records of six

producers for three marketing years. The IG did not adopt a

long-term, continuing plan to fill a void left b y the CFSA in

primary agency program administration. The purpose of the IG's

investigation was to te st the effectiveness of the agency's

discharge of a program operating responsibility as the Act

authorizes and as this court clearly indi cated an IG may do in

Burlington Northern. See id.

For the reasons assigned, the judgment of the district court

is REVERSED, summary judgment is granted in favor of the IG

ordering that the subpoenas issued by the IG shall be enforced, and

the case is REMANDED to the district court for further proceedings

consistent with this opinion.