order on sanctions in flds child labor case

8/9/2019 Order on sanctions in FLDS child labor case

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FILED IN UNITED STATES

DISTR

COURT DISTRICT OF UTAH

APR 8 2015

IN THE UNITED STATES DISTRICT COURT

BYD.

MARK JONES

CLERK

FOR THE DISTRICT OF UTAH CENTRAL DIVISION DEPUTY

CLERK

THOMAS E. PEREZ, SECRETARY OF

LABOR, UNITED STATES

DEPARTMENT OF LABOR,

PETITIONER,

v

PARAGON CONTRACTORS

Case No. 2:13cv00281-DS

ORDER IMPOSING SANCTIONS

CORPORATION; BRI N JESSOP; The Honorable David Sam

D LE BARLOW; KEITH DUTSON;

VERGEL STEED; NEPHI JEFFS; LYLE

JEFFS and CORPORATION OF THE

PRESIDING BISHOP OF

THE

FUNDAMENTALIST CHURCH OF

JESUS CHRIST OF LATTER-DAY

SAINTS,

RESPONDENTS.

A FACTUAL BACKGROUND

1

The Wage and Hour Division of the U.S. Department of Labor ( Wage Hour )

served subpoenas duces tecum and

d

testificandum on Respondent Lyle Jeffs over one year ago

on

March 19, 2014. Wage Hour served a subpoena ad testificandum

on

Respondent Nephi Jeffs

on January 6, 2014. To date, Respondents have not complied with their obligations under the

administrative subpoenas.

2. Respondent Lyle Jeffs first moved to quash the subpoenas, which the Court

denied (ECF 99). He then appeared pursuant to the subpoenas on April 22, 2014. However, he

refused to answer the majority

of

questions posed on the basis

of

alleged constitutional

protections, and

he

failed to produce any documents responsive to the subpoena duces tecum

Case 2:13-cv-00281-DS Document 163 Filed 04/08/15 Page 1 of 10


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3 Respondent Nephi Jeffs also moved to quash the subpoena, which the Court

denied (ECF 79). He then appeared pursuant to the subpoena on May 21, 2014. However, he

refused to answer the majority

of

questions posed

to

him on the basis

of

alleged constitutional

protections.

4 Petitioner filed a Motion to Enforce Administrative Subpoenas Against

Respondent Lyle Jeffs (ECF 111 and a similar motion against Nephi Jeffs (ECF 112) on July 2,

2014. Respondents did not respond to the motions. They also did not appear for the motions

hearing the Court set on October 2, 2014.

5 At the request of counsel for Respondents, the Court rescheduled the motions

hearing for January 21, 2015 and scheduled an evidentiary hearing for earlier the same day to

assess the credibility

of

Respondents alleged sincerely held religious beliefs.

6

Following the evidentiary hearing, the Court ordered Respondents to produce, no

later than February 4, 2015, a copy of the published doctrines of the religious beliefs upon which

they allegedly relied to support the assertion

of

privilege under the First Amendment. To date,

Respondents have not complied with this Order.

7 Following oral argument on the motions and a careful question-by-question

review

of

the constitutional privileges asserted y Respondents, the Court: granted Petitioner s

motions to enforce the subpoenas (ECF 150); ordered Respondents to answer the majority

of

questions posed to them y Wage Hour; and ordered Respondent Lyle Jeffs to comply with the

subpoena

duces tecum

8 At the behest of counsel, the Court gave Respondents ten days from receipt of the

hearing transcript to notify the Court and the undersigned whether Respondents would comply



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with the Court's Orders to answer specific questions. (Petitioner opposed the request.) The

transcript was produced to counsel for Respondents on January 27, 2015. The deadline to comply

with this order was on February 6 2015.

9. Following the motions hearing Petitioner orally requested an order from the Court

tolling the statute

of

limitations from the date Respondents should have complied with the

subpoenas until the date Respondents have complied with the subpoenas. The Court granted this

request and asked the parties to confer and draft proposed orders for the Court's review.

10. The parties reached an impasse on language regarding the tolling

of

the statute

of

limitations. The Court ordered Respondents' counsel to

brief

his objection to the tolling language

proposed by Petitioner no later than February 16, 2015. No objection has been filed with the

Court to date.

11. On the February 4, 2015 deadline to produce the religious doctrines, and

just

two

days before the deadline to inform the Court and the undersigned whether his clients intended to

comply with the Court's orders granting the motions to enforce, Respondents' attorney filed a

Motion to Withdraw as Counsel.

12. The Court granted this motion on February 20, 2015 (ECF 154), and ordered

Respondents to file a notice

of appearance within 21 days. The Order states: any party who fails

to file a Notice

of

Appearance

m y

be subject to sanction pursuant to Federal Rule

of

Procedure

16(f)(l), including but not limited to dismissal or default judgment. This deadline passed on

March 10, 2015. No notice

of

appearance has been filed.

13. On March 30, 2015, the Court entered an Order to Show Cause Why Sanctions

Should Not Be Imposed (ECF 156). The Order states ''unless within 7 days

of

this Order

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Respondents can in writing show good cause for failure to comply with the Court's February 20,

2015 Order, appropriate sanctions will be entered. Respondents have failed to show good cause.

14.

Respondents waited until the very last day to show cause to file an entry

of

appearance and respond to the order to show cause, and their excuse for noncompliance with

numerous outstanding court orders falls short of establishing the requisite good cause burden.

B SANCTIONS

OR ER

Respondents have failed to comply with the Courts orders to: (1) produce religious

doctrines

y

February 4, 2015; (2) notify the Court and opposing counsel whether they intend to

comply with the Court's orders granting the motions to enforce and ordering Respondents to

comply with the subpoenas y answering questions and producing documents y February 6,

2015;

1

(3) state objections to the language proposed y Petitioner

to

toll the statute oflimitations

y

February 16, 2015; (4) file a notice of appearance

y

March 10, 2015; and (5) show good

cause for their failure to comply with the Court's February 20, 2015 Order y April 6 2015.

Respondents have made no apparent effort to comply with these deadlines.

This is a subpoena enforcement action, i.e. a summary proceeding related to Wage

Hour's investigation of alleged child labor activities that took place in 2012. Wage Hour needs to

timely complete interviews

of

Respondents in order to complete its investigation and take any

appropriate action(s) under the Fair Labor Standards Act ( FLSA ) within the applicable statutes

1

The Court ordered Respondents to comply with Wage Hour's subpoenas on January 21, 2015

(ECF 150). Respondents asked the Court for additional time to determine whether they would

comply with the Court's Order, which the Court granted. Now, over two months have passed and

Respondents have neither complied with the Court's Order

to

answer questions pursuant

to

the

subpoenas, nor informed the Court of their intention to

do

so. Respondents' silence can only be

interpreted as a refusal to comply with orders from the Court enforcing the subpoenas.

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of limitations. The ongoing delay caused

by

Respondents related to the subpoenas issued to them

over one year ago is highly prejudicial to Petitioner. Respondents have demonstrated a complete

disregard for the judicial process and the numerous orders issued

by

this Court.

y failing to enter an appearance by the March 10, 2015 deadline, Respondents triggered

contempt of the prior orders issued

by

the Court which were implicitly stayed while Respondents

hired new counsel or entered an appearance pro se. Respondents' failure to timely enter an

appearance (and failure to show good cause) subjects them to sanction under F.R.C.P. 16 ±) 1)2;

and their failure to comply with the other orders from the Court subjects them to contempt under

F.R.C.P. 45 ( The court for the district where compliance is required

[]

may hold in contempt a

person who, having been served, fails without adequate excuse to obey the subpoena or an order

related to it. ).

3

2

Under F.R.C.P. 16(±)(1), the Court may issue any just orders, including those authorized by

Rule 37(b)(2)(A)(ii)-(iv), if a party fails to obey an order from the Court. In the context of this

case, the only meaningful remedies under these rules is a finding

of

contempt and a sanction that

precludes Respondents from supporting or opposing claims or defenses, or from introducing

matters into evidence, that are related to Wage Hour's investigation.

See

F.R.C.P. 37(b)(2)(A)(ii)

(vii). There are no pleadings to strike, and staying the proceedings, dismissing the action or

rendering a default judgment will only cause undue prejudice to Petitioner who has a legitimate

need for the information Petitioner sought from Respondents through the issuance

of

subpoenas.

See

F.R.C.P. 37(b)(2)(A)(ii)-(vi).

3

The Court has significant discretion in fashioning an equitable remedy for civil contempt.

See,

e.g., Rodriguez v. IBP, Inc.,

243 F.3d 1221, 1231

10th

Cir. 2001) ( A district court may exercise

broad discretion in using its contempt power to assure compliance with its orders. ) Indeed, the

measure

of

the court's power in civil contempt proceedings is determined by the requirements of

full remedial relief.

McComb

v.

Jacksonville Paper

Co.,

336 U.S. 187,

193

(1949). Sanctions in

civil contempt proceedings may be employed for either or both of

two purposes: to coerce the

defendant into compliance with the court's order, and to compensate the complainant for losses

sustained.

Local 28 of Sheet Metal Workers' Int' As n v. EEOC,

478 U.S. 421, 443 (1986).

When the public interest is involved, the court's equitable powers assume an even broader and

more flexible character. AT T

Broadband

v.

Tech Communications, Inc.,

381 F.3d 1309, 1316

11th

Cir. 2014).

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In light of Respondents' conduct as outlined above, the Court finds Respondents in

contempt and imposes the following sanctions:

The Court NT RS

of

the following factual findings:

4

1

Lyle Jeffs is the Bishop of the Fundamentalist Church

of

Jesus Christ of Latter

Day Saints ( FLDS Church or Church ).

5

2. Lyle Jeffs was the Bishop of the FLDS Church in 2012 and at all times relevant to

Wage Hour s investigation.

6

3.

As the Bishop

of

the FLDS Church, Lyle Jeffs manages the day-to-day operations

of

the Church.

7

4. Lyle Jeffs is an employee and agent of the Church and has authority to act on

behalf

of the Church.

8

5 The FLDS Church is incorporated as the Corporation of the President

of

the

Fundamentalist Church of Jesus Christ of Latter Day Saints and the Corporation of the Presiding

Bishop of the Fundamentalist Church of Jesus Christ

of

Latter Day Saints.

9

6 Lyle Jeffs coordinated, facilitated, and organized the 2012 pecan harvest at the

Southern Utah Pecan Ranch ( SUPR ) on behalfof the FLDS Church.

10

4

The Court finds that the factual findings entered are reasonable, narrow in scope, and tailored to

specific questions asked

of

Respondents that Respondents refused to answer despite the Courts

order compelling them to do so. The citations set forth herein are citations to the transcript from

the motions hearing held

on

January 21, 2015.

5

Tr. at 62-66.

6

Tr. at 66-67.

7

Id

8

Tr. at 66-67; 71-72.

9

Tr. at 67-70.

10

Tr. at 79.

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7 The FLDS Church, through Lyle Jeffs, Dale Barlow, Brian Jessop, and Paragon

Contractors Corporation ( Paragon ), coordinated efforts to supply the labor and materials

necessary to satisfy Paragon's contractual obligation to manage and operate the pecan harvest at

SUPR in 2012.

11

8. The FLDS Church, through Lyle Jeffs, Dale Barlow, Brian Jessop, and Paragon,

provided access to SUPR, as well as all instruction, direction, and supervision, for members of

the FLDS Church to participate in the pecan harvest each year, including the 2012 harvest.

12

9. As part of his duties and responsibilities as the Bishop of the FLDS Church, Lyle

Jeffs held weekly work project meetings with the FLDS Church congregation on Saturdays and

Mondays

in

2012.

13

10. The FLDS Church, through Lyle Jeffs and the Bishop's Office, notifies its

members of

the pecan harvest at SUPR every year, including the 2012 harvest.

14

11. To facilitate the harvest at SUPR

in

2012 Lyle Jeffs authorized a recorded

message sent from the Bishop s Office to members of the FLDS Church instructing the

community to close schools so the school children and their families could help with the

harvest.

15

11

Tr. at 85; 87.

12

Tr. at 84; 88; 90.

13

Tr. at 73.

14

Tr. at 88.

15

Tr. at 75-77; 88.

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12. Dale Barlow is employed

by

the FLDS Church and Paragon to maintain the pecan

orchard on a year round basis and control the day-to-day operations at SUPR on behalf

of

the

FLDS Church and Paragon.

16

13. In 2012 the FLDS Church through Lyle Jeffs Dale Barlow Brian Jessop and

Paragon provided security and the labor and supplies necessary to maintain the pecan trees and

take care

of

the operational maintenance

of

equipment at SUPR.

17

14. In 2012 the FLDS Church provided all of the supplies necessary for the FLDS

Church members to work on the pecan harvest at SUPR including buckets and bags for picking

and storing pecans.

18

15. The FLDS Church through Lyle Jeffs and Dale Barlow helped organize and pay

for the transportation

of

its members to and from the pecan harvest at SUPR each year including

in 2012.

19

16

In 2012 Brian Jessop worked on Lyle Jeffs security team and provided security

for the FLDS Church.

2

17

The FLDS Church maintains records

of

the names and ages

of

the Church

members who participated at SUPR in 2012 in addition to the days each individual worked.

21

18

The FLDS Church members who participated in the 2012 harvest at SUPR filled

out sign-in sheets for each day they worked at SUPR.

22

16

Tr. at 84-85; 86-87.

17

Tr. at 83.

18

Tr. at 84.

19

Tr. at 89.

2

Tr. at 86.

21

Tr. at 83 90.

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19. During the 2012 pecan harvest at SUPR, the FLDS Church, Lyle Jeffs, Dale

Barlow, Brian Jessop, and Paragon allowed at least 1,400 school age children and their parents to

enter SUPR and suffered or permitted them to work on the pecan harvest.

Of

these individuals, at

least

25

of them were under the age of 12; at least 50 of them were between the ages of 12-13;

and at least 25

of

them were between the ages

of

14-15.

23

20. Together, the FLDS Church, Lyle Jeffs, Dale Barlow, Brian Jessop, and Paragon

are an enterprise engaged in commerce or in the production

of

goods for commerce.

24

21. The FLDS Church s role at the pecan harvest at SUPR in 2012 was the same year

after year going back as early as 2007.

25

22. All

of

the proceeds from the sale

of

pecans from the 2007, 2008, 2009, 2010, and

2011 harvests at SUPR were deposited into the Church Bishop s Storehouse bank account or

given to Lyle Jeffs on behalf

of

the Church in cash.

26

23. The Bishop s Storehouse is operated

by

and part

of

the FLDS Church, the

Corporation

of

the President

of

the Fundamentalist Church

of

Jesus Christ

of

Latter

ay

Saints,

and the Corporation

of

the Presiding Bishop

of

the Fundamentalist Church

of

Jesus Christ

of

Latter Day Saints; and these two corporate entities are directly and integrally related to the FLDS

Church itself.

27

22

Tr. at 83.

23

Tr. at 80.

24 Id

25

Tr. at 90.

26

Tr. at 95.

27

Tr. at 108.

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OR ERS that the running o the applicable statute o limitations under the Fair Labor

Standards Act is tolled against Respondent Lyle Jeffs from April 22, 2014, the date Respondent

should have complied with the subpoenas, until such time

as

Petitioner notifies the District Court

that he has complied with the Court s Order enforcing the subpoenas.

OR ERS that the running o the applicable statute o limitations under the Fair Labor

Standards Act is tolled against Respondent Nephi Jeffs from May 21, 2014, the date Respondent

should have complied with the subpoena, until such time as Petitioner notifies the District Court

that he has complied with the Court s Order enforcing the subpoena.

SO ORDERED.

Dated: _ _ _ ~ ~ · _;:. 2015

United States District Court Judge

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