* Pursuant to 5 TH 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH CIR

. R. 47.5.4.

### 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

Appeal 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 involvessanctions 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 vic e
. Following settlement ofthe 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 matter of sanctions from the underlying case. The September Order stated: “The court hereby informsthe partiesthat the court is takingjudicial notice in connection with the matters to be considered at such hearing all proceedings held, and papers filed, United States Court of Appeals

Fifth Circuit 

### F I L E D April 4, 2011 Lyle W. Cayce ClerkNo. 11-10039

2 in Case 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, 2010order ofthecourt (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 twicepresenting tothecourt, and advocating, a falsedeclaration . . . .” The challenged declaration by Gillig in turn accused the districtjudge of certain comments and behavior. The “twice presenting” referred to a response in opposition toa motion to transfer 4:08-CV-743-A to that districtjudge’s court and a motion to recuse that judge. In other words, the entirety of the conduct at issuewas based upon whether or not the districtjudge said and did the things of which Gillig accused him (and the propriety of the lawyers’ “advocating” of Gillig’s testimony) against a backdrop ofGillig trying to prevent thatjudge 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 thejudge 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, thejudge 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, andNo. 11-10039

3 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 ofdisputed evidentiary facts concerning the proceeding.” Further, under §455(e), “[n]o judge . . . shall accept from the partiestothe proceeding a waiver ofany 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. Accordi ngly, without considering the merits, we VACATE the January Order and REMAND to the district court for assignment to a differentjudge to consider the question of sanctions presented by the July Order and the September Order.