United States District Court, D. Colorado
KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on the Application for an Order to Show Cause Why an Administrative Subpoena Should Not Be Enforced [#2] (the "Motion"), filed by Petitioner Equal Employment Opportunity Commission (the "EEOC"). A Response [#12] in opposition to the Motion was filed by Centura Health ("Centura" or "Respondent"). A hearing on the Motion was held on August 6, 2014. Minute Entry [#13]. On August 7, 2014, Respondent filed a Supplement [#14] to its Response [#12], and the EEOC subsequently filed a Response [#19] to the Supplement [#14]. The Court has reviewed the entire case file and the applicable law and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#2] is DENIED.
In short, the EEOC asks the Court to require Centura to respond to the subpoena at issue in this case (the "Subpoena"). The material facts underlying the EEOC's purported service of the Subpoena are undisputed. Between February of 2011 and January of 2012, the EEOC received four charges of discrimination against Centura filed by one current and three former employees. Petitioner's Ex. 1 [#3-1] ¶¶ 1-4. In the course of its investigation of Centura in connection with these charges, the EEOC issued the Subpoena on November 8, 2012, to "Michelle M. Lucero, Esq., Vice Present-Employee Relations, Centura Health, 188 Inverness Drive West, Suite 500, Englewood, CO 80112." Attach. 22 to Petitioner's Ex. 1 [#3-23] at 1. The EEOC chose to attempt to serve Ms. Lucero by certified mail. Id. at 3. Sharon Pelache ("Pelache") signed the return receipt on the certified mail letter containing the Subpoena. Id. at 5. Ms. Pelache was not an employee of Centura but was instead employed by a temporary agency to fill in at Centura's front desk because the regular receptionist was out for the day. Respondent's Ex. A: Decl. of Kimberly Kmentt [#12-1] ¶ 3. In addition, Ms. Lucero had not been employed at Centura since August of 2012, and the Subpoena was never given to or served on her. Id. ¶¶ 2-6.
On or about November 29, 2012, Centura's counsel informed the EEOC that he had been out of the office when a copy of the Subpoena was sent to him, and that he believed that the original Subpoena had not been properly served on Ms. Lucero. Attach. 25 to Petitioner's Ex. 1 [#3-26]. He also offered to arrange for acceptance of service of a new subpoena addressed to Kimberly Kmentt ("Kmentt"), the employee who replaced Ms. Lucero after Ms. Lucero left the company. The EEOC followed up on this correspondence in March of 2014. Attach. 26 to Petitioner's Ex. 1 [#3-27].
A. Five-Day Period to Petition for Revocation or Modification
Respondent does not contest the EEOC's authority to issue and serve administrative subpoenas. Response [#12] at 1. As an initial matter, the EEOC asserts that "an employer served with an EEOC subpoena issued in an investigation of a charge filed under the ADA who does not intend to comply may petition the EEOC to revoke or modify the subpoena within five days after service of the subpoena." Motion [#3] at 7 (citing 29 U.S.C. § 161; 29 C.F.R. § 1601.16(b)(1)). The EEOC argues that because Respondent never petitioned the EEOC to revoke or modify the Subpoena, and because Respondent does not raise any constitutional objections, the Subpoena must be enforced. Motion [#3] at 7. However, the statutory and regulatory language is clear that service is a prerequisite to the five-day objection period. 29 U.S.C. § 161 ("Within five days after the service of a [subpoena] requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke... such [subpoena]...."); 29 C.F.R. § 1601.16(b)(1) ("Any person served with a subpoena.. shall petition... to seek its revocation or modification... within five days... after service of the subpoena."). A logical reading of the regulation leads to the conclusion that the five-day objection period does not apply if a subpoena is not "served." Hence, the propriety of service must be the starting point in analyzing whether the Subpoena may be enforced, and despite its failure to petition for revocation or modification of the Subpoena, Respondent may contest the Subpoena on the basis of improper service. Accordingly, the next question presented to the Court is whether the Subpoena was properly served on Centura.
B. Standard Governing Service of the Subpoena
The first question regarding service that the Court must address relates to the appropriate legal standard governing service of an administrative subpoena. The EEOC argues that it must comply only with the EEOC Compliance Manual (the "Compliance Manual" or the "Manual") regarding service of an administrative subpoena. August 6, 2014 Hearing [#13]. Respondent "disputes that proper service of process is governed by the EEOC's Compliance Manual, " but offers no support for its position. Response [#12] at 4. In fact, Respondent concedes that it "was unable to find case law discussing proper service of administrative EEOC subpoenas." Id. at 2. Counsel for Respondent affirmed at the hearing that there appears to be no case law requiring an EEOC administrative subpoena to comply with the mandates for service of a subpoena under the Federal Rules of Civil Procedure. August 6, 2014 Hearing [#13] (further stating that case law regarding service of a subpoena under the Federal Rules of Civil Procedure was "instructive [and that] principles that apply [there] have application here if for no other reason than procedural due process reasons").
Unlike a regulation, an agency manual "is not necessarily entitled to the force and effect of law." Aragon v. United States, 146 F.3d 819, 824 (10th Cir. 1998). "This is particularly true if the agency did not intend the manual to be mandatory, but rather intended it as a guidance or advisory document." Id. In Aragon, the Tenth Circuit Court of Appeals found that a United States Air Force manual stating it was "intended for guidance" due to "the varied nature of industrial problems" included an "express qualification [that] heavily weigh[ed] against ruling the Manual prescribed mandatory directives." Id. at 824-25. In Nelson v. United States, __ F.Supp.2d __, __, 2014 WL 486029 (D. Colo. Feb. 6, 2014), this Court recently held that the United States Air Force Academy's Trail Management Plan did not require any particular action with regard to the type of path at issue, and thus the Trail Management Plan was not mandatory and allowed officials discretion regarding implementation of its guidelines. Id., 2014 WL 486029, at *12. Similarly, in WildEarth Guardians v. United States Fish and Wildlife Service, 622 F.Supp.2d 1155, 1164 (D. Utah Apr. 22, 2009), the Court found that a habitat conservation plan issued by the United States Fish and Wildlife Service which expressly stated that it provided "detailed but flexible guidelines" was not meant to have the force of law.
However, while an agency manual is not necessarily legally binding, "[w]here a government imposes a specific mandatory directive, conduct pursuant to the directive is not discretionary." Roath v. United States, No. 10-C-0228, 2012 WL 4718123, at *2 (E.D. Wis. Sept. 28, 2012) (emphasis in original) (citing Berkovitz by Berkovitz v. United States, 486 U.S. 531, 535 (1988); Aragon, 146 F.3d at 824). The parties have provided to the Court only "Section 24: Subpoenas" of the EEOC's Compliance Manual. [#12-2]. Nothing in this submission indicates that compliance with the Manual's directives regarding service of administrative subpoenas is discretionary and intended only for guidance or advice. The statements in the Manual are generally imperative in nature, although some permissive/discretionary statements are included. See, e.g., § 24.7 [#12-2] at 5 ("When the person subpoenaed is not the respondent or its agents, serve the subpoena on the person who is expected to comply. The subpoena may be served in person or by certified mail."). Thus, based on the lack of any legal authority requiring the EEOC to comply with any standard other than its own Compliance Manual, and based on the mandatory nature of the Compliance Manual's directives,  the Court determines whether the EEOC properly served the Subpoena in accordance with the Manual.
C. Compliance Manual's Service Requirements
The Compliance Manual provides explicit instructions for completion of administrative subpoenas. Under § 24.6(b), "[w]hen evidence or access to evidence is required, enter [on the subpoena form] the name, title, and business address of the person who has custody or control of the documents or facilities. The person so named is the addressee." Respondent's Ex. B [#12-2] at 4. The EEOC followed this instruction, as there appears to be no dispute that Ms. Lucero was at one time the person who had custody or control of the documents sought by the EEOC. [#3-5, #3-8, #3-11, #3-14, #3-16]. At least as of August 2012, Ms. Lucero appears to have been the proper employee of Respondent on whom such requests should have been served. [#12-1] ¶ 6. However, counsel for Respondent informed the EEOC by a letter dated November 29, 2012 that Ms. Lucero left her employment with Respondent in August 2012. [#3-26]. Thus, in early November 2012 when service of the Subpoena was attempted, the ...