[DO NOT PUBLISH]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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8 Opinion of the Court 21-13182

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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21-13182 Opinion of the Court 9

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. 

 

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