9-0 Brumley Opposition to Motion to Dismiss
June 5th, 2023
Filed (ECF) Appellant Philip Brumley response opposing motion ([4] Motion (ECF Filing), [4] Motion (ECF Filing), [4] Motion (ECF Filing)). Date of service: 06/05/2023. [12728498] [23-35329] (Shatz, Benjamin) [Entered: 06/05/2023 11:25 AM]
OPPOSITION TO MOTION TO DISMISS FOR LACK OF APPELLATE JURISDICTION AND FOR SANCTIONS; DECLARATION OF APPELLANT PHILIP BRUMLEY
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. Instead, Brumley is the in-house General Counsel of one of the defendants, Watch Tower Bible and Tract Society of Pennsylvania (WTPA). During this litigation, acting in his capacity as WTPA’s representative on jurisdictional issues, Brumley signed two 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 Brumley personally for over $150,000 under 28 U.S.C. § 1927 (first enacted in 1813). Brumley now appeals that order.
The order on appeal is unprecedented. Section 1927 is a statute empowering 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 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 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. Thus, Brumley’s appeal from the district court’s sanctions order raises an important legal question of first impression.1
Brumley’s appeal also arguably raises a novel question of appellate jurisdiction. The immediate appealability of sanctions orders is a tricky and underdeveloped area. Despite a few clear guideposts, in many situations appealability is unclear. Thus, as detailed below, federal appellate practice guides recommend filing appeals to avoid jurisdictional waivers.
As pointed out in the Plaintiffs’ motion to dismiss Brumley’s appeal, precedent from this Court, Stanley v. Woodford, 449 F.3d 1060 (9th Cir. 2006), holds that a lawyer cannot immediately appeal sanctions imposed under § 1927 when the sanctions arose from the lawyer’s conduct in acting as counsel of record in the litigation. But Stanley does not address Brumley’s situation—indeed, no court has. Similarly, as also pointed out in Plaintiffs’ motion, the United States Supreme Court, in Cunningham v. Hamilton County, 527 U.S. 198 (1999), has held that discovery sanctions against counsel of record are not immediately appealable. But again, that is not Brumley’s situation. As noted, there is no precedent that squarely addresses a sanctions order under circumstances like Brumley’s. Further, this Court has held that a non-party can immediately appeal a sanctions order. See David v. Hooker, Ltd., 560 F.2d 412, 415 (9th Cir. 1977). As a non-party, Brumley’s appeal is most analogous to that law.
This Court should rule that someone in Brumley’s situation has a right to an immediate appeal. At the very least, Brumley’s appeal has been taken in good faith, pursuant to primary and secondary authority, and therefore is not frivolous or sanctionable.
