IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10039

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

United States Court of Appeals

Fifth Circuit

F I L E D

April 4, 2011

Lyle W. Cayce

Clerk

 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.

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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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