All Along the Watchtower

The United States Court of Appeals for the Ninth Circuit affirmed a sanction imposed on an attorney

Attorney Philip Brumley was sanctioned by the district court under 28 U.S.C. § 1927 for submitting a signed affidavit that demonstrated a reckless disregard for providing an accurate and truthful accounting of facts relevant to determining whether the court had personal jurisdiction over defendant Watch Tower Bible and Tract Society of Pennsylvania (“WTPA”), causing the proceedings to be multiplied for seventeen months. Brumley, an attorney admitted to practice before the United States Supreme Court, signed the affidavit in his role as General Counsel for WTPA but contends he cannot be sanctioned under § 1927 because he was acting as a fact witness, not as an attorney, when he signed the affidavit. We disagree and therefore affirm.

Two Jehovah’s Witnesses corporations were sued in federal court by women who alleged they had been repeatedly sexually molested as young girls in the 1970s and 80s by Jehovah’s Witnesses officials in Hardin, Montana. One of the defendant corporations, WTPA, moved to dismiss the lawsuit for lack of personal jurisdiction. The sole evidentiary basis for WTPA’s motion to dismiss was an affidavit signed by Brumley. In the affidavit, Brumley identified himself as “General Counsel for defendant Watch Tower Bible and Tract Society of Pennsylvania” and stated that “[i]n this role, I have direct knowledge of the information contained in this Affidavit.”

The majority of Brumley’s statements in the affidavit were made in the present tense. Id. For example, Brumley’s affidavit stated that WTPA “has no contact with congregations of Jehovah’s Witnesses located in Montana,” “does not establish or disseminate policy or procedure to congregations of Jehovah’s Witnesses in Montana,” and “does not appoint or remove elders, ministerial servants or publishers in congregations of Jehovah’s Witnesses in Montana.” Plaintiffs produced evidence that raised questions as to whether Brumley’s present-tense statements in his affidavit would be true if applied to the relevant time period, the 1970s and 80s. Finding that the relevant facts were controverted, the district court ordered jurisdictional discovery.

More than a year later, citing evidence obtained during discovery and from independent sources, plaintiffs served WTPA with a motion for sanctions under Federal Rule of Civil Procedure 11. The motion alleged Brumley’s representations to the district court had been “knowingly false and misleading.” Fifteen days later, WTPA withdrew its motion to dismiss for lack of personal jurisdiction, triggering the safe harbor provision of Rule 11.

Plaintiffs next filed for sanctions under 28 U.S.C. § 1927, contending that Brumley and another WTPA attorney had unreasonably and vexatiously multiplied the proceedings for the purpose of obstructing plaintiffs’ claims.

Sanction affirmed on appeal

Under 28 U.S.C. § 1927, a court may sanction “[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously,” and the court may require the sanctioned attorney to “satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” The sole issue on appeal is whether Brumley was  an “attorney” within the meaning of § 1927 when he signed an affidavit testifying to “direct knowledge” gained in his role as “General Counsel” for WTPA. Brumley argues that he was not acting as “an attorney” when he signed and submitted the affidavit because he was not an attorney of record in the underlying matter. He further argues that he was acting only as a fact witness so could not have been acting as “an attorney” when he signed the affidavit. We disagree.

That Brumley was not an attorney of record is immaterial. In Caputo v. Tungsten Heavy Powder, Inc., 96 F.4th 1111 (9th Cir. 2024), we stated that “[t]he plain language of [§ 1927] . . . supports the conclusion that the attorneys of record for a specific client do not represent the entire universe of individuals who may be sanctioned pursuant to § 1927.” Id. at 1153. Caputo also forecloses Brumley’s argument that he may not be sanctioned under § 1927 because he is not admitted to practice before the district court or any court in the Ninth Circuit. Id. We further explained in Caputo that “§ 1927’s language is also broad in that it can reach ‘any attorney or other person admitted to conduct cases in any court of the United States’ provided they personally ‘multiply the proceedings in any case unreasonably and vexatiously.’” Id. Counsel for Brumley stated at oral argument that Brumley is an attorney admitted to practice in the United States Supreme Court. Thus, Brumley is an attorney admitted to conduct cases in a court of the United States whose undisputed conduct before the district court may be reached by § 1927. There was therefore no abuse of discretion in the district court’s decision to sanction Brumley under § 1927 for unreasonably and vexatiously multiplying proceedings.

(Mike Frisch)