In re: Hilary K. Johnson

UNPUBLISHED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

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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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).

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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,

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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.

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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,

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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,

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*
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
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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. *

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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-
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

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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.

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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

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-11-
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

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“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

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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED

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