United States District Court, D. South Carolina, Greenville Division
ORDER AND OPINION
matter is before the court on Defendant’s Motion to
Recuse (ECF No. 878) the undersigned. On March 12, 2018,
Defendant filed his Motion (ECF No. 878) pursuant to 28
U.S.C. §§ 455(a), (b)(1) and 28 U.S.C. § 144.
is an essential element of a recusal motion. It is explicit
in § 144, which requires a ‘timely and sufficient
affidavit.’ It is judicially implied in §
455.” United States v. Owens, 902 F.2d
1154, 1155 (4th Cir. 1990). Pursuant to 28 U.S.C. § 144,
a party seeking recusal must “make[ ] and file[ ] a
timely and sufficient affidavit” and the affidavit must
be filed “not less than ten (10) days before the
beginning of the term at which the proceedings is to be
heard.” “In general, ‘[o]ne must raise the
disqualification of the . . . [judge] at the earliest moment
after knowledge of the facts [giving rise to the need for the
judge’s recusal].’” Owens, 902
F.2d at 1156 (quoting Satterfield v. Edenton-Chowan Bd.
of Educ., 530 F.2d 567, 574-75 (4th Cir.
court construes that the event giving rise to
Defendant’s Motion to Recuse (ECF No. 878) is the
undersigned’s June 20, 2017 Order (ECF No. 853) denying
Defendant’s Motions for Reconsideration (ECF Nos. 846,
850) on the merits. Defendant moved the court to reconsider
its June 1, 2017 and June 7, 2017 Orders (ECF Nos. 836, 842)
denying several of Defendant’s Motions which were based
on the Government’s alleged breach of Defendant’s
Plea Agreement (ECF No. 175).
court denied Defendant’s Motions for Reconsideration
(ECF Nos. 846, 850) almost nine (9) months before Defendant
filed his Motion to Recuse (ECF No. 878). (ECF No. 853.) In
the time between the court’s June 20, 2017 Order (ECF
No. 853) and Defendant’s March 12, 2018 Motion to
Recuse (ECF No. 878), Defendant filed several different
motions including filing a November 27, 2017 Complaint (ECF
No. 878-3) with the Judicial Council of the Fourth Circuit
asserting the undersigned’s alleged judicial misconduct
by not ruling on his Motion to Vacate (ECF No. 819) within a
time period satisfactory to Defendant or ruling in
Defendant’s favor with respect to his Motions for
Reconsideration (ECF Nos. 846, 850). Defendant had ample time
in which to file a motion to recuse, however, he waited nine
(9) months to file his motion which was not the
“earliest moment after knowledge of the facts [giving
rise to the need for the undersigned’s
recusal].” See Owens, 902 F.2d at 1155;
see also Cameron v. Gen. Motors Corp., No. CIV. A.
6:93-1278-3, 1994 WL 159408, at *6 (D.S.C.) (holding that a
motion to vacate was not timely filed because Defendant did
not file its motion to recuse at the “first opportunity
after discovery of the facts,” but only did so after
filing several other motions and waiting to see the outcome
of those motions.) order vacated in part on other grounds
sub nom. In re Gen. Motors Corp., No. 94-1011, 1994 WL
914453 (4th Cir. Mar. 23, 1994).
did not file his Motion to Recuse (ECF No. 878) at the first
opportunity after discovery of the facts giving rise to his
claim. Therefore, his Motion to Recuse (ECF No. 878) is
untimely under both 28 U.S.C. § 144 and 28 U.S.C. §
455. See Owens, 902 F.2d at 1155. For this reason,
the court DENIES Defendant’s Motion to
Recuse (ECF No. 878).
 The timely-filing requirement noted in
Owens applies to both 28 U.S.C. § 455(a) and
(b). See Kolon Indus. Inc. v. E.I. DuPont de Nemours
& Co., 748 F.3d 160, 170–71 (4th Cir.
 To the extent that Defendant also
seeks the undersigned’s recusal based on the
undersigned not yet ruling on Defendant’s Motion to
Vacate (ECF No. 819), the court comes to the same conclusion.
Defendant’s Motion to Vacate (ECF No. 819) was filed on
March 27, 2017, and since the time of filing Defendant has
filed several motions including multiple motions for a ruling
(ECF Nos. 838, 867, 873) on Defendant’s Motion to
Vacate (ECF No. 819). However, Defendant did not file a
motion for recusal until March 12, 2018, which was not the
earliest moment after knowledge of the facts.
See also In re
573 F. Supp. 1237, 1244-45 (D. Conn.
1983) (“It must be presumed, in these circumstances,
that [Plaintiff] had some knowledge of [the events giving
rise to the alleged need for the judge to be recused] as
early as June 3, 1983, and that he deferred filing of his
motion [to recuse] until [June 15, 1983] shortly before the
court heard arguments on major motions (aimed at stopping his
form of harassment-by-litigation) so that he could deduce how
the court would rule or use the threat of a motion to recuse
in order to ...