USCA11 Case: 21-13182 Date Filed: 03/22/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13182
Non-Argument Calendar
____________________
HENRY RAY CAMPBELL,
Plaintiff-Appellant,
versus
ADVANCED CORE CONCEPTS LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:18-cv-00434-MTT
____________________
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2 Opinion of the Court 21-13182
Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Henry Ray Campbell, proceeding pro se, appeals the
district court’s denial of his Fed. R. Civ. P. 60 motion for relief
from its previous grant of summary judgment for his former
employer, Advanced Core Concepts LLC (“ACC”), in Campbell’s
employment action. ACC has moved for sanctions, seeking
attorney’s fees and costs under Fed. R. Civ. P. 38 on the basis that
the appeal is frivolous. After review, we affirm the district court,
but we deny ACC’s motion for sanctions.
I. Background
Although the only order on appeal is the district court’s
denial of Campbell’s Rule 60 motion, a brief discussion of the
underlying action is necessary for context. In 2018, Campbell,
who is in his 70s, filed suit against ACC alleging retaliation in
violation of the Age Discrimination in Employment Act
(“ADEA”). He alleged that he complained to ACC’s Human
Resources Department that his supervisor was discriminating
against him based on his age by denying his travel requests.
Within the next few months, Campbell asserted that he
experienced retaliation for his complaint in the form of (1) an
e-mail from ACC’s Chief Executive Officer (“CEO”) that
Campbell perceived as harassment; and (2) a “Letter of Warning”
related to an alleged government official’s complaints about
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21-13182 Opinion of the Court 3
Campbell. Campbell filed a discrimination complaint with the
Equal Employment Opportunity Commission and ACC fired him
a few days later for “insubordination.” He alleged that these
adverse actions violated the ADEA.
ACC moved for summary judgment, arguing that the
adverse employment actions occurred because Campbell
“insubordinately undermin[ed] the relationship with [its] main
customer by [making] harassing, baseless, and spurious
accusations against both ACC and its customers.” ACC provided
several examples, including a complaint about Campbell made by
Jerome Jones, a manager with one of ACC’s customers.1
Campbell opposed the motion for summary judgment.
The district court granted ACC’s motion for summary
judgment, concluding that Campbell could not establish a prima
facie claim of retaliation. Furthermore, even if Campbell could
establish a prima facie claim, ACC established legitimate,
nondiscriminatory reasons for his termination, and Campbell
1
Jones, a program manager for the Department of Defense AIMS program,
reported that an e-mail Campbell sent to a French government official about
the AIMS program “negatively represented” the program. Jones requested
that, after completion of current projects, Campbell not be assigned to
anymore of Jones’s projects. This complaint was the basis of the letter of
warning Campbell received. According to ACC, after receiving the letter of
warning, Campbell disregarded previous instructions on addressing
workplace issues and continued to act in a disruptive and harassing manner
accusing Jones of “unethical practices” and of being “a threat to [Campbell’s]
safety.”
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4 Opinion of the Court 21-13182
failed to show those reasons were pretextual. Campbell appealed,
but later voluntarily dismissed the appeal.
Approximately five months after his voluntary dismissal of
his appeal, Campbell filed a motion for relief from judgment
under Fed. R. Civ. P. 60(b)(3) and (d). 2 He argued that ACC
committed fraud upon the court by making material factual
misrepresentations during the summary judgment proceeding,
including misrepresentations about Jones’s relationship with
ACC, his role, and his authority.3 Thus, he argued, ACC obtained
the summary judgment verdict through fraud and
misrepresentation, which entitled Campbell to relief under Rule
60. ACC opposed the motion.
The district court denied Campbell’s motion. 4 It concluded
that he should have raised his misrepresentation and fraud
2
Rule 60(b)(3) provides that, within a year of the entry of a final judgment,
the court may relieve a party from the judgment due to “fraud . . .,
misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. P.
60(b)(3), (c). Additionally, a court may at any time “set aside a judgment for
fraud on the court.” Id. Rule 60(d)(3).
3
Briefly, Campbell argued that contrary to ACC’s assertions during the
summary judgment proceeding, neither the AIMS program nor Jones were
direct customers of ACC; a regulation prohibited Jones from having direct
contact with ACC; and Jones did not have the authority to comment on
Campbell’s performance or make personnel decisions.
4
Notably, in a footnote, the district court described the Rule 60 motion as
apparent “gamesmanship” on Campbell’s part, explaining that Campbell’s
arguments were available to him when he voluntarily dismissed his appeal
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21-13182 Opinion of the Court 5
arguments in his opposition to summary judgment. The district
court also concluded that, even if ACC “misrepresented Jones’s
role and authority,” those misrepresentations would not have
altered its conclusion that Campbell could not establish a prima
facie claim of retaliation. Finally, the district court found that
Campbell’s allegations of fraud were not the type of “egregious
conduct that would constitute fraud upon the court under Rule
60(d).” Campbell filed a notice of appeal.
Meanwhile, ACC moved for sanctions under Fed. R. Civ.
P. 11 in the district court, and that motion remains pending. ACC
has also moved for sanctions in this Court.
II. Discussion
A. Rule 60 motion
Campbell argues that the district court abused its discretion
in denying his Rule 60 motion because ACC committed fraud on
the court during the summary judgment proceeding. He
maintains that the district court’s summary judgment decision
“could not possibly have been the same without the lies,
misrepresentations, and egregious misconduct by ACC.” He
argues that he could not have known of the effect of ACC’s
misrepresentations until the district court issued its summary
judgment decision, and thus he should not be faulted for not
from the order granting summary judgment, and noting that he filed the
Rule 60 motion “only after the [c]ourt dismissed” a subsequent lawsuit he
filed against ACC on res judicata grounds.
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6 Opinion of the Court 21-13182
making these arguments previously. 5 ACC asserts that this appeal
is frivolous, and it should be awarded sanctions under Fed. R.
App. P. 38.
We review the denial of a Rule 60(b)(3) and Rule 60(d)(3)
motion for abuse of discretion. Cox Nuclear Pharm., Inc. v. CTI,
Inc., 478 F.3d 1303, 1314 (11th Cir. 2007). “Discretion means the
district court has a range of choice, and that its decision will not
be disturbed as long as it stays within that range and is not
influenced by any mistake of law.” Betty K Agencies, Ltd. v. M/V
Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) (quotation omitted).
(i) Rule 60(b)(3) motion
“An appeal of a ruling on a Rule 60(b) motion . . . is narrow
in scope, addressing only the propriety of the denial or grant of
relief and does not raise issues in the underlying judgment for
review.” Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co., 198
F.3d 1332, 1338 (11th Cir. 1999). In other words, a Rule 60(b)
motion cannot be used “as a substitute for a proper and timely
appeal.” Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th
Cir. 1993) (quotation omitted).
Rule 60(b)(3) provides relief from final judgment due to
“fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party.” Fed. R.
5
In his reply brief, Campbell argues that ACC “tries to work the same fraud
on this Court that was so successful in the district court.”
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21-13182 Opinion of the Court 7
Civ. P. 60(b)(3). Rule 60(b)(3) “is aimed at judgments which were
unfairly obtained, not at those which are factually incorrect.”
Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978). 6
To prevail on a Rule 60(b)(3) motion, a party must “prove by
clear and convincing evidence that an adverse party has obtained
the verdict through fraud, misrepresentation, or other
misconduct.” Cox Nuclear Pharm., 478 F.3d at 1314 (alteration
adopted) (quotation omitted). “The moving party must also
show that the conduct prevented the losing party from fully and
fairly presenting his case or defense.” Frederick v. Kirby
Tankships, Inc., 205 F.3d 1277, 1287 (11th Cir. 2000).
Campbell’s motion raised issues that he could have raised
in his opposition to the motion for summary judgment or on
direct appeal, and a Rule 60(b) motion is not a substitute for a
direct appeal. Cavaliere, 996 F.2d at 1115. Moreover, Campbell
did not establish by clear and convincing evidence that any fraud
or misrepresentation actually occurred. But even assuming that
he demonstrated fraud or misrepresentation by clear and
convincing evidence, he failed to show that it prevented him from
fully presenting his case. Frederick, 205 F.3d at 1287. As the
district court noted the alleged misrepresentations would not
have altered the district court’s conclusion that Campbell failed to
6
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc),
we adopted as binding precedent all decisions of the former Fifth Circuit
handed down before October 1, 1981.
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establish a prima facie claim for retaliation. Accordingly, the
district court did not abuse its discretion in denying Campbell’s
Rule 60(b)(3) motion.
(ii) Rule 60(d)(3)
Similarly, the district court did not abuse its discretion in
denying Campbell’s Rule 60(d)(3) motion. “[O]nly the most
egregious misconduct, such as bribery of a judge or members of a
jury, or the fabrication of evidence by a party in which an
attorney is implicated, will constitute a fraud on the court” for
purposes of Rule 60(d)(3). Rozier, 573 F.2d at 1338 (quotation
omitted). Even assuming ACC made factual misrepresentations
concerning Jones’s relationship with ACC, his role, and his
authority, those misrepresentations do not rise to the level of the
type of egregious misconduct contemplated by Rule 60(d)(3). Id.
B. Sanctions
ACC has moved for an award of double costs and
attorney’s fees and expenses on appeal, arguing that the appeal is
frivolous, and Campbell is engaged in “gamesmanship” as noted
by the district court. Campbell opposes the motion, arguing that
his appeal is not frivolous.
Federal Rule of Appellate Procedure 38 provides that if we
“determine[] that an appeal is frivolous, [we] may, after a
separately filed motion or notice from the court and reasonable
opportunity to respond, award just damages and single or double
costs to the appellee.” Generally, where, as here, the appellant is
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pro se, we have declined requests to impose sanctions under Rule
38. See Woods v. I.R.S., 3 F.3d 403, 404 (11th Cir. 1993); Hyslep
v. United States, 765 F.2d 1083, 1084–85 (11th Cir. 1985).
Nevertheless, we have made exceptions and imposed sanctions
against pro se appellants who were attorneys themselves or who
were explicitly warned by the district court that their claims were
frivolous See, e.g., United States v. Morse, 532 F.3d 1130, 1132–33
(11th Cir. 2008) (imposing sanctions on pro se appellant who had
been warned in the district court that his tax claims were “utterly
without merit”); Bonfiglio v. Nugent, 986 F.2d 1391, 1394–94
(11th Cir. 1993) (imposing sanctions on a pro se appellant who
was also an attorney); Pollard v. Comm’r, 816 F.2d 603, 604–05
(11th Cir. 1987) (imposing sanctions on pro se appellant who
brought tax claims that were determined to be frivolous in a
previous suit, and for which appellant had been sanctioned).
Although this appeal borders on the frivolous, none of the
special circumstances for awarding sanctions against a pro se
party exist in this case. There is no indication that Campbell is an
attorney. Further, even though the district court described the
Rule 60 motion as “gamesmanship,” it did not explicitly warn
Campbell that his arguments were frivolous. Thus, we exercise
the discretion afforded us by Rule 38 and decline to impose
sanctions on Campbell at this time. See Burlington N. R.R. Co. v.
Woods, 480 U.S. 1, 7 (1987) (“Rule 38 affords a court of appeals
plenary discretion to assess ‘just damages’ in order to penalize an
appellant who takes a frivolous appeal and to compensate the
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injured appellee for the delay and added expense of defending the
district court’s judgment ”); Woods, 3 F.3d at 404 (“There can be
no doubt that this is a frivolous appeal and we would not hesitate
to order sanctions if appellant had been represented by counsel.
However, since this suit was filed pro se, we conclude that
sanctions would be inappropriate.”).
AFFIRMED. MOTION FOR SANCTIONS DENIED.