     Case: 11-10039 Document: 00511433522 Page: 1 Date Filed: 04/04/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             April 4, 2011

                                       No. 11-10039                         Lyle W. Cayce
                                                                                 Clerk

In re: JOSEPH F. CLEVELAND, JR.; MELVIN K. SILVERMAN; JOHN P.
GILLIG,

                                                   Appellants




                   Appeals from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:10-MC-0018-A


Before JOLLY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       This case involves sanctions entered against a represented client, John P.
Gillig, his local counsel, Joseph F. Cleveland, Jr., and his out-of-state counsel,
Melvin K. Silverman, admitted in the district court pro hac vice. Following
settlement of the underlying case in which Gillig was a party, the district judge
entered a sua sponte order on September 10, 2010 (the “September Order”),
setting the case for a sanctions hearing and severing the mater of sanctions from
the underlying case. The September Order stated: “The court hereby informs
the parties that the court is taking judicial notice in connection with the matters
to be considered at such hearing all proceedings held, and papers filed, in Case

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 11-10039 Document: 00511433522 Page: 2 Date Filed: 04/04/2011



                                   No. 11-10039

Nos. 4:04-CV-302-A and 4:08-CV-743-A” (the cases in which Gillig had
participated as a client or client representative and Silverman had appeared as
counsel; Cleveland was counsel in the latter of those cases).
      That order, in turn, referenced a prior July 22, 2010 order of the court (the
“July Order”) requiring written responses to the court’s indication that sua
sponte sanctions may be appropriate. The July Order stated: “The court has
concluded that it should not turn a blind eye to the conduct of . . . Gillig . . . and
their counsel in twice presenting to the court, and advocating, a false declaration
. . . .” The challenged declaration by Gillig in turn accused the district judge of
certain comments and behavior. The “twice presenting” referred to a response
in opposition to a motion to transfer 4:08-CV-743-A to that district judge’s court
and a motion to recuse that judge. In other words, the entirety of the conduct
at issue was based upon whether or not the district judge said and did the things
of which Gillig accused him (and the propriety of the lawyers’ “advocating” of
Gillig’s testimony) against a backdrop of Gillig trying to prevent that judge from
presiding over his case. In the July Order, the district judge stated: “The court
judicially knows that the undersigned did not say the things Gillig stated in his
declaration . . . .” The July Order goes on to examine the statements and state
matters such as “no such thing occurred.” The order indicated that the judge
perceived that Gillig had made false accusations against the judge and that the
lawyers, in turn, had intentionally or negligently sponsored the false testimony.
      The sanctions hearing ordered in the September Order was conducted by
the same district judge who entered the July Order and September Order.
During that hearing, the judge repeatedly questioned the witnesses about the
judge’s own statements and conduct. Following the hearing, the same district
judge entered an order on January 5, 2011 (as corrected on January 12,
2011)(the “January Order”) sanctioning Gillig, Cleveland, Silverman, and



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                                 No. 11-10039

another attorney who did not appeal. The January Order is the subject of the
current appeal.
      Under 28 U.S.C. §455(b)(1), a judge “shall . . . disqualify himself . . .
[w]here he has . . . personal knowledge of disputed evidentiary facts concerning
the proceeding.” Further, under §455(e), “[n]o judge . . . shall accept from the
parties to the proceeding a waiver of any ground for disqualification enumerated
in subsection (b).” Under the particular and peculiar facts of this case, we
conclude that the district judge was disqualified from presiding over the
sanctions hearing and entering the January Order.
      Accordingly, without considering the merits, we VACATE the January
Order and REMAND to the district court for assignment to a different judge to
consider the question of sanctions presented by the July Order and the
September Order.




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