                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-1077



In Re:   HILARY K. JOHNSON,

                                                      Appellant.

-------------------------------------

TERRY W. GIVENS,

                                                      Plaintiff,

           versus


JERRY O’QUINN; R. BROOKS; BILL REYNOLDS; MIKE
MULLINS; CHARLES JANEWAY; FRANK WILKINS; TIM
YATES; STAN YOUNG; RICHARD YOUNG; RONALD J.
ANGELONE; JOEY O’QUINN,

                                                     Defendants.



                              No. 06-1088



In Re:   HILARY K. JOHNSON,

                                                      Appellant.

-------------------------------------

SAMANTHA STILLWILL,

                                                      Plaintiff,

           versus
RICHLANDS    POLICE   DEPARTMENT;    TOWN     OF
RICHLANDS,

                                                          Defendants.


Appeals from the United States District Court for the Western
District of Virginia, at Big Stone Gap and Abingdon.   James P.
Jones, Chief District Judge. (2:02-cv-00214-jpj; 1:04-cv-00125-
jpj)


Submitted:   May 12, 2006                     Decided:   June 1, 2006


Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Hilary K. Johnson, Abingdon, Virginia, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               -2-
PER CURIAM:

     Hilary K. Johnson, an attorney practicing in the Western

District of Virginia, was sanctioned by the district court under

Federal Rule of Civil Procedure 11 and ordered to pay $250 in each

of two separate cases for filing frivolous motions under 28 U.S.C.

§§ 144 and 455 to recuse the district judge, Chief Judge James

Jones.   Following two hearings, one in which Johnson presented her

grounds for the motions and the other in which she attempted to

show cause why sanctions should not be imposed, the district court

concluded that the motions were without a factual basis and that

“no reasonable attorney would have believed that the motions were

legally sufficient.”

     On appeal, Johnson contends that there was a “legitimate

argument that the recusal motion was supported by existing law and,

therefore, [was] not sanctionable. However, even if the motion had

no reasonable chances of success, it was not so frivolous as to

invoke liability for Rule 11 sanctions.”       Johnson rested her

motions on two arguments.   First,

     Judge Jones has evinced severe bias against [Johnson]
     that is of a continuing and personal nature (which still
     continues today). This deeply grounded animosity toward
     appellant could well have affected Judge Jones’ decisions
     in regard to appellant’s clients, Samantha Stillwell and
     Terry Givens. Hence, Judge Jones’ bias against appellant
     could reasonably be imputed as improper bias against a
     party.

And second,



                                -3-
      Relatedly, what has appeared, based on extra judicial
      sources (to-wit:    Judge Jones’ record of decisions in
      employment discrimination and civil rights cases versus
      the record of the remaining three judge[s] in the Western
      District (Judges Turk, Wilson and Williams), as well as
      his comments and apparent demeanor from the bench during
      previous oral arguments in other cases filed by
      appellant), Judge Jones’ bias against plaintiffs in
      employment discrimination and civil rights cases as a
      whole amounts to bias within the meaning of Section 455.

      We have carefully reviewed the entire record and considered

Johnson’s arguments in full, as well as the district court’s

detailed opinion, and for the reasons that follow, we conclude that

the   district    court   did   not   abuse   its     discretion   in    imposing

sanctions   and    that   the   sanctions     were    not   unreasonable.      We

therefore affirm.


                                       I

      Representing    Terry     Givens,     Johnson    commenced   one    of   the

actions before us on December 17, 2002, naming as defendants two of

Givens’ coworkers at the Wallens Ridge State Prison, as well as

other employees of the Virginia Department of Corrections, and

asserting that Givens had been assaulted in violation of 42 U.S.C.

§ 1983 and state law.      The case was assigned to Chief Judge Jones,

who dismissed the case on the ground that state action was not

involved in the coworkers’ assault.           After this court reversed and

remanded the case, see Givens v. O’Quinn, 121 Fed. Appx. 984 (4th

Cir. 2005), Judge Jones scheduled the case for trial.




                                      -4-
       Representing Samantha Stillwell, Johnson commenced the other

action before us on November 1, 2004, against the Richlands Police

Department and the Town of Richlands, alleging that Stillwell had

been discriminated against on account of her sex, in violation of

the Equal Pay Act and Title VII of the Civil Rights Act of 1964.

That case too was assigned to Chief Judge Jones.

       While both cases were ongoing, Johnson filed identical motions

in each case on July 19, 2005, to recuse Judge Jones, explaining

that she believed that Judge Jones could not be impartial in either

case and therefore must recuse himself under 28 U.S.C. §§ 144 and

455.    In support of her motions, Johnson advanced no facts or

incidents relating to bias or impartiality in these two cases.

Indeed,    opposing   counsel   in   the   Givens   case   observed   at   the

hearing:

       I just wanted to note there’s nothing specific in the
       Givens case that would indicate a need for recusal.
       There’s no such indication. I’d add for the record that
       every other case we’ve appeared before you has been just
       the opposite. I’m shocked by this motion. If the motion
       is granted, you would have to recuse yourself in every
       case, which is absurd, frankly.

Opposing counsel in the Stillwell case argued likewise, stating,

“As we pointed out . . . in the response to the motion, there’s

really been nothing brought up about Mrs. Stillwell’s particular

case.     All of these things are about what may or may not have

happened in the past.”      When these observations were brought to

Johnson’s attention, Johnson noted only that in the Givens case,


                                     -5-
Judge Jones had referred to the conduct alleged by Givens as “horse

play.”

     Rather than resting on actions by Judge Jones in these cases,

Johnson’s arguments rely on several general accusations formed over

years of practice in the Western District of Virginia.   As Johnson

explained to the district court,

     [W]hen you [Judge Jones] first came on the bench, I was
     extremely pleased, but it just seems like in the past
     couple of years that I don’t know if I’ve done something
     to offend the court, or what, but your questioning, other
     attorneys laugh afterwards, “Boy, he sure doesn’t like
     you, does he?”

Johnson also observed that in civil rights cases and employment

discrimination cases, “I don’t see how the court can have any

feeling for these plaintiffs, and I understand there’s a law

obviously, but your interpretation of the law, it seems to me, has

absolutely, it’s like these people just don’t matter.”   When asked

for particulars, Johnson explained, “I feel like you’ve been

insulting to me in the past as I stand up here, and the way you

questioned me, and the tone in your voice, and it’s like, ‘Ms.

Johnson, you’re a big joke,’ and my clients are a big joke.      To me

I’m insulted by the way you’ve talked to me in the past, but you’re

the judge, so the proper way in which to bring this matter up is to

file a motion to recuse.”

     When pressed yet further for specifics, Johnson referred to a

few cases, the most emphasized (and perhaps relevant) of which

involved an exchange during argument in which the court responded,

                               -6-
as   Johnson   recalled,   with   insensitive   sarcasm.    As   Johnson

remembered the incident, when she observed that the defendant in

that case “talked to her [client’s] breasts,” Judge Jones allegedly

inquired, “Ms. Johnson, how do you talk to a woman’s breasts?”

Johnson took the response as one demonstrating “total disdain and

contempt” for civil rights plaintiffs.*


       *
       The transcript of the incident, however, reveals a
 substantially different exchange, revealing only questions by the
 court for clarification:

       Ms. Johnson:    Your Honor, under Title VII the plaintiff
                       is required to show by, under an
                       objective standard that the conduct
                       involved sexual harassment, in this
                       particular case on the average of three
                       to four times a week.

                       And I think if anybody asks any woman out
                       there, I think the response would be the
                       same, a man comes up to a woman and has a
                       conversation with her breasts, and the
                       conversation does not involve looking at
                       the person, doesn’t involve looking at
                       anything but her breasts, and I think
                       anybody, any woman would tell you that if
                       she has a conversation with a man for
                       more than a minute or two with a man
                       talking to her breasts the whole time --

       The Court:      Wait a minute.     You mean looking at her
                       breasts?

       Ms. Johnson:    Correct, correct.    That’s right.    And I
                       think --

       The Court:      You mean when he, when she, she says that
                       when he would talk to her, he would, his
                       eyes would be cast down toward her
                       breasts?

       Ms. Johnson:    And she felt like he was talking to her

                                   -7-
     At the hearing, other than the few incidents of the type

described, Johnson repeatedly argued only generalities, stating

that her motions were grounded on her beliefs and feelings about

Judge Jones and his alleged bias, which in turn were based on his

rulings against her, his demeanor in court proceedings, and the

opinions of unidentified attorneys.             Her principal support for

Judge Jones’ bias came from a “statistical analysis” of “employment

discrimination” cases decided by Judge Jones.            But even with this

statistical analysis, Johnson admitted that all of the reasons for

her motions relate to Judge Jones’ actions in discharging his

judicial duties in court, not to any extra-judicial activities or

statements.

     When questioned about the statistical analysis, Johnson stated

she looked at 226 cases from the Western District of Virginia that

a website labeled “employment discrimination” cases.                    Without

giving an explanation of her criteria, she excluded some cases from

the sample set.    She then labeled each decision by Judge Jones as

either “positive” or “negative,” without explaining the basis for

either label, and compared how the resulting figure related to the

three other judges in the district.            Johnson concluded from this

analysis   that   Judge    Jones   was   “20   percent   [for   civil    rights


                          breasts. If this were to occur one time,
                          I think a normal woman would say she felt
                          uncomfortable and an instinctive reaction
                          would be to cover her chest while the man
                          is talking.

                                     -8-
plaintiffs] versus 27 percent for Judge Wilson . . . .        Judge

Williams about half and half, and [Judge] Turk 36 percent.”

     As for her evidence from other attorneys, Johnson stated that

they were simply random conversations that she had had with other

attorneys, whom she refused to name, but who had been before Judge

Jones.

     A couple of the few incidents recalled by Johnson supposedly

demonstrate that Judge Jones has treated her unfairly because she

represents plaintiffs.    One involved the fact that the court

prematurely ordered dismissal of a case for settlement when the

settlement had been announced unilaterally by her opposing party

but not yet completed.   And the other involved an e-mail sent by

the clerk of the district court to Johnson in which the clerk

wrote, “Please note that the amended complaint that you filed in

the above case did not contain your electronic signature.   Please

check these documents before you submit them for filing. Continued

incorrect filings may result in your privileges being revoked by

the Court.”   Johnson assumed that the clerk issued the letter at

the direction of Judge Jones, although she conceded that she had no

basis for this conclusion, and nothing in the records suggests that

any judge was behind the clerk’s communication.

     From the district court’s order concluding that Johnson’s

motions were frivolous and imposing sanctions, Johnson filed these

appeals, which we have consolidated.


                               -9-
                                   II

     Johnson does not challenge the district court’s denial of her

motions to recuse Judge Jones, but only the court’s decision to

impose sanctions under Rule 11.

     Under Rule 11, by presenting a written motion to the court, an

attorney “is certifying that to the best of the person’s knowledge,

information, and belief, formed after an inquiry reasonable under

the circumstances,” the motion is, among other things, “warranted

by existing law or by a nonfrivolous argument for the extension,

modification, or reversal of existing law or the establishment of

new law” and its “allegations and other factual contentions have

evidentiary support.”     Fed. R. Civ. P. 11(b).    If a court believes

that the attorney has failed in this task, it can, on its own,

order the attorney to the show cause why Rule 11(b) was not

violated by the motion, Fed. R. Civ. P. 11(c)(1)(B), and ultimately

can impose a sanction calibrated to deter repetition of such

conduct, Fed. R. Civ. P. 11(c)(2).        “[A]ll aspects of a district

court’s   Rule    11   determination”    are   reviewed   for   abuse   of

discretion.      Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 405

(1990); see also Hunter v. Earthgrains Co. Bakery, 281 F.3d 144,

150 (4th Cir. 2002).       At bottom, a court considering Rule 11

sanctions must differentiate between a losing argument or position,

which is not sanctionable, and a frivolous one, which is.        “We have

recognized that maintaining a legal position to a court is only


                                  -10-
sanctionable      when,    in   ‘applying      a    standard        of     objective

reasonableness, it can be said that a reasonable attorney in like

circumstances could not have believed his actions to be legally

justified.’”      Hunter, 281 F.3d at 153 (quoting In re Sargent, 136

F.3d 349, 352 (4th Cir. 1998)).

      We agree with the district court that the allegations to

support Johnson’s motions lack both factual and legal support.

With respect to the facts on which Johnson relied, the district

court carefully demonstrated how Johnson incorrectly recalled the

events that she claimed justified her belief that Judge Jones was

personally prejudiced against her and how she also relied on

irrelevant events.        It is apparent that Johnson proceeded merely

from a subjective perception and corrupted memory and did not

examine any of the court records or transcripts that would have

corrected   her     mistaken    recollections.         Furthermore,          Johnson

conceded    twice     during    the    hearings     that      she        formed   her

“understanding” of court procedures without investigation, but

rather derived her understandings from her perception that she was

being treated unfairly.         We conclude that Johnson’s “knowledge,

information,    and   belief”    was    not   the   product    of    “an     inquiry

reasonable under the circumstances.”           Fed. R. Civ. P. 11(b).

      Johnson’s conclusions that Judge Jones is personally biased

against civil rights plaintiffs are likewise unconnected to fact

and   legally   unsupportable.          Johnson     relied    heavily        on   her


                                       -11-
“statistical analysis” of civil rights cases adjudicated in the

Western    District        of    Virginia.       But    this     analysis    was    only

superficially “statistical” and even misleading.                        She apparently

collected      a   class    of    cases   based    on    a     single    docket    sheet

classification, modified that class by arbitrarily excluding some

cases for an unexplained reason, and applied to those cases a

“positive” or “negative” label without defining the criteria other

than that she liked or disliked the result.                        Thus, instead of

conducting a scientific collection and analysis of the data, which

might     be   replicated        and   refuted,        Johnson    merely    added     up

insignificant numbers and performed simple division.

     Johnson also relied on informal opinions of unnamed lawyers

and the fact that Judge Jones, prior to his appointment as a

district judge in 1996, represented civil rights defendants.                         But

such reference to lawyers’ opinions is no more factual than would

be schoolyard gossip about a teacher, and the allusion to Judge

Jones’ prior practice can support no inference that Judge Jones is

incapable of judging cases impartially.

     In the totality of these circumstances, we conclude that the

district court did not abuse its discretion in imposing sanctions

under Rule 11 and that the sanctions are not unreasonable.                            We

dispense with oral argument because the facts and legal contentions




                                          -12-
are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                      AFFIRMED




                              -13-
