18-0 Phillip Brumley Opening Brief
October 16th, 2023
Excerpt from Brumley Appeal:
INTRODUCTION
Appellant Philip Brumley is not a party to this litigation, nor is he counsel of record representing any party in this litigation—nor could he be, given that he is not admitted to the District of Montana where the action is pending. Instead, Mr. Brumley is in-house General Counsel for one of the defendants, Watch Tower Bible and Tract Society of Pennsylvania (WTPA). During the district court litigation, acting in his capacity as WTPA’s representative on jurisdictional issues, Mr. Brumley signed affidavits, prepared with the assistance and advice of WTPA’s counsel in the litigation. Based on his signing factual affidavits for WTPA, the district court sanctioned Mr. Brumley personally for over $150,000 under 28 U.S.C. § 1927. The district court’s orders are unprecedented and should be reversed.
Section 1927 empowers courts to sanction an “attorney” who “unreasonably and vexatiously” “multiplies the proceedings” in a case. Section 1927 is designed to allow a court to sanction lawyers who are acting as counsel, i.e., conducting litigation, in a case pending before the court. Section 1927 was never intended to allow a fact-witness or party representative—who merely also happens to be a lawyer—to be sanctioned. Neither the district court nor the Plaintiffs-Appellees identified any case in which a court imposed § 1927 sanctions under such circumstances, i.e., against a non-party, non-counsel of record, who never appeared in the case (as party or counsel) and who is not even admitted to practice before the sanctioning court.
While this Court has not yet addressed whether a district court can impose sanctions against someone like Mr. Brumley—a non-party, affiant-witness, who also happens to be an attorney admitted in another jurisdiction—this Court should decide this important issue of first impression and hold that district courts lack authority to impose sanctions against someone like Mr. Brumley under § 1927. This Court’s precedent, as well as authority from other circuit and district courts, supports this proper reading of § 1927.
In addition, this Court should follow other circuits that have held that § 1927 should be interpreted narrowly because it is penal in nature—i.e., it serves to punish an “attorney” who “unreasonably and vexatiously” “multiplies” proceedings by imposing personal liability for fees and costs traceable to such conduct. This Court recognizes that penal statutes should be applied and interpreted narrowly, and should extend that reasoning to § 1927 to conclude that the sanctions against Mr. Brumley were unauthorized.
Legislative history confirms this narrow interpretation, and notes that § 1927 sanctions must meet a “high standard” to avoid infringing on the advocacy of an “attorney in representing his client.” H.R. Conf. Rep. No. 96-1234, at 8 (1980), reprinted in 1980 U.S.C.A.C.A.N. 2782. This and other legislative history material demonstrate that Congress contemplated sanctions against attorneys representing the parties before the sanctioning court—not against a non-party, affiant-witness, who also happens to be an attorney admitted in another jurisdiction.
Accordingly, this Court should reverse the district court and vacate the orders imposing § 1927 sanctions against Mr. Brumley.
