Date: Feb 20, 2026

McCone v. Exela: Tolling the Appeal Clock for Rule 60(b)(4) Denials and Defining When “Direct Threat” Is Not Sua Sponte

1. Introduction

In Henry McCone v. Exela Technologies, Inc. (11th Cir. Feb. 18, 2026) (unpublished, per curiam), a pro se plaintiff-appellant, Henry McCone, sought to undo an adverse employment-discrimination outcome after the district court entered summary judgment for Exela (and a related Exela entity). McCone attempted to reopen the case through post-judgment motions: a motion to vacate under Federal Rule of Civil Procedure 60(b)(4) (arguing the judgment was “void” for lack of due process), and a subsequent motion under Rule 59(e) to alter or amend the denial of Rule 60 relief.

The appeal raised three intertwined issues:

Appellate jurisdiction and timeliness: which orders were properly before the Eleventh Circuit given the timing of the notice of appeal and tolling effects of post-judgment motions.
Rule 60(b)(4) “voidness” and due process: whether the district court’s reliance on a “direct threat” concept (in the COVID-19/ADA context) deprived McCone of notice and an opportunity to be heard.
Sanctions and injunctive relief: whether a pro se appellant’s repetitive and meritless arguments warranted Rule 38 sanctions, and whether the appellee could obtain a filing injunction directly from the court of appeals.

2. Summary of the Opinion

The Eleventh Circuit:

Dismissed jurisdiction as to the underlying final judgment (and the first Rule 59(e) denial) due to an untimely notice of appeal.
Exercised jurisdiction over the denial of the Rule 60(b)(4) motion and the denial of the second Rule 59(e) motion because the second Rule 59(e) motion tolled the appeal deadline for the Rule 60(b)(4) denial.
Affirmed the district court’s denial of Rule 60(b)(4) relief, holding the judgment was not void: the record showed no jurisdictional defect and no due process violation.
Affirmed denial of the second Rule 59(e) motion because it largely re-argued the correctness of the Rule 60 ruling rather than identifying a manifest legal/factual error or newly discovered evidence.
Granted sanctions in part under Federal Rule of Appellate Procedure 38—awarding attorney’s fees and costs (amount to be determined by the district court on remand)—because McCone pursued a meritless appeal after being warned his arguments were vexatious.
Denied the requested injunction because Exela did not first seek such relief in the district court as required by Federal Rule of Appellate Procedure 8(a)(1)(C).

3. Analysis

A. Precedents Cited

The panel’s reasoning is anchored in a chain of procedural precedents governing timeliness, scope of appellate review, standards for post-judgment relief, and sanctions:

1) Timeliness and appellate jurisdiction

Pinion v. Dow Chem., U.S.A., 928 F.2d 1522 (11th Cir. 1991): Used for the foundational rule that an untimely notice of appeal deprives the appellate court of jurisdiction. This controlled the outcome as to the final judgment and the first Rule 59(e) ruling.
Williams v. Bolger, 633 F.2d 410 (5th Cir. 1980): Cited for the tolling proposition that a Rule 59(e) motion seeking reconsideration of an order denying Rule 60 relief can toll the time to appeal that denial. The Eleventh Circuit relied on this logic to hold that McCone’s second Rule 59(e) motion tolled the appeal deadline for the Rule 60(b)(4) denial.
Advanced Bodycare Sols., LLC v. Thione Int'l, Inc., 615 F.3d 1352 (11th Cir. 2010): Cited for the principle that even when the underlying final judgment is not properly before the court, the appellate court may still review a timely appealed post-judgment order (there, a Rule 50(b) order). This supported jurisdiction over the Rule 60(b)(4) and second Rule 59(e) denials.

2) Standards of review and Rule 60(b)(4) scope

Stansell v. Revolutionary Armed Forces of Colom., 771 F.3d 713 (11th Cir. 2014): Provided the standards of review: Rule 60(b)(4) denials reviewed de novo, Rule 59(e) denials for abuse of discretion; also reinforced liberal construction for pro se litigants.
Albra v. Advan, Inc., 490 F.3d 826 (11th Cir. 2007): Cited for liberal construction of pro se arguments, tempering procedural strictness but not excusing substantive defects.
Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001): The core Rule 60(b)(4) standard—judgments are “void” only if the court lacked jurisdiction or denied due process. This framed the dispositive inquiry.
United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010): Reinforced the narrowness of “voidness”: a judgment is not void merely because it is erroneous. The panel used this to reject McCone’s attempt to turn alleged analytic error into a due process defect.
Gonzales v. Crosby, 545 U.S. 524 (2005): Cited for the general allocation of burden on Rule 60 movants to justify vacatur; although Gonzales addressed Rule 60(b)(6), the cited principle supports the panel’s insistence that McCone demonstrate qualifying voidness rather than reargue merits.

3) Rule 59(e) limits

Arthur v. King, 500 F.3d 1335 (11th Cir. 2007): Supplied the governing Rule 59(e) framework: relief requires manifest legal/factual error or newly discovered evidence, and Rule 59(e) cannot be used to relitigate or raise arguments available earlier. This was central to affirming denial of the second Rule 59(e) motion.

4) Issue preservation on appeal

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324 (11th Cir. 2004): Defined abandonment: an appellant abandons an argument by failing to explain why it is meritorious. The panel invoked this doctrine but held McCone sufficiently articulated a due process theory to avoid abandonment.

5) Frivolous appeals, sanctions, and filing injunctions

Parker v. Am. Traffic Sol., Inc., 835 F.3d 1363 (11th Cir. 2016): Used to define “frivolous appeal” as one whose arguments lack merit, with a cautionary note that sanctions may be inappropriate where an argument is “not entirely meritless.”
United States v. Morse, 532 F.3d 1130 (11th Cir. 2008): Supported sanctions against a pro se litigant who persists in arguments previously warned to be meritless. The panel treated the district court’s “vexatious” warning as the predicate for imposing appellate sanctions.
Procup v. Strickland, 792 F.2d 1069 (11th Cir. 1986) (en banc): Cited for the institutional preference that district courts design filing injunctions, while appellate courts review them, not craft them in the first instance. This supported denying Exela’s request for an injunction on appeal.

B. Legal Reasoning

1) Jurisdiction: separating what is appealable from what is not

The panel applied a strict sequencing analysis under Fed. R. App. P. 4(a)(1)(A) and tolling under Fed. R. App. P. 4(a)(4)(iv): McCone’s notice of appeal was too late to reach the final judgment (and the first Rule 59(e) denial). But because a timely Rule 59(e) motion can toll the clock, and because post-judgment orders can be reviewed independently of the underlying merits judgment, the court retained authority to review: (i) the denial of the Rule 60(b)(4) motion and (ii) the denial of the second Rule 59(e) motion.

Practically, this created a narrow appellate lane: McCone could argue only that the judgment was “void” (jurisdiction/due process) and that the district court erred in denying reconsideration of that voidness ruling—not that the underlying summary judgment was wrong on the merits.

2) Rule 60(b)(4): “void” is narrower than “wrong”

The panel reiterated the two recognized avenues for voidness under Burke v. Smith: lack of jurisdiction or denial of due process. McCone pursued the due process path, asserting he lacked an opportunity to address the “direct threat” issue.

The court rejected this on record-based notice principles:

Exela’s summary judgment motion put McCone on notice of the factual and legal thrust of its position by citing requirements like a negative COVID-19 test or medical note, and by relying on EEOC guidance addressing workplace exclusion of infected employees because their presence “would pose a direct threat to the health or safety of others.”
Because Exela itself foregrounded the EEOC guidance and its “direct threat” rationale, the district court did not inject a new theory sua sponte. The district court’s reasoning was described as based on “almost identical EEOC guidance” and a similar statement from an EEOC investigator.
Consequently, McCone had the procedural opportunity to respond in his summary judgment opposition; due process was satisfied even if he failed to take advantage of it.

The panel also implicitly applied Espinosa: even if McCone believed the district court misapplied ADA principles or misread EEOC guidance, that would be (at most) legal error, not the kind of fundamental defect that renders a judgment void.

3) Rule 59(e): reconsideration is not a second appeal

Under Arthur v. King, Rule 59(e) is limited to correcting manifest errors or considering newly discovered evidence. The court characterized McCone’s second Rule 59(e) motion as a re-argument—that the district court “incorrectly analyzed” the Rule 60(b)(4) motion— rather than an identification of a specific controlling legal misstatement or newly discovered evidence. That mismatch justified denial.

4) Sanctions and injunction: deterrence with procedural guardrails

The court drew a careful line between (i) monetary sanctions for frivolous appeals and (ii) injunctive restrictions on filings:

Sanctions granted (fees and costs): After Exela requested sanctions and McCone had an opportunity to respond (the Rule 38 prerequisite), the panel deemed the appeal meritless and emphasized the district court’s prior “vexatious” warning—aligning with United States v. Morse. The amount was remanded for district court determination, a common allocation because fee quantification is fact-intensive.
Injunction denied: Even though the panel acknowledged district courts can craft filing injunctions and cited Procup v. Strickland, it refused to issue an injunction where Exela had not first sought an injunction pending appeal in the district court as required by Fed. R. App. P. 8(a)(1)(C). The decision reflects both procedural regularity and institutional competence: trial courts develop the record and tailor restrictions; appellate courts review.

C. Impact

Although unpublished and nonprecedential, the decision is instructive in at least four practical ways:

Post-judgment “timeliness triage”: The opinion models how appellate jurisdiction can be partially preserved for post-judgment rulings even when the underlying judgment is no longer appealable—critical for litigants who miss the primary appeal deadline but still pursue Rule 60 relief.
Rule 60(b)(4) remains exceptional: The court reinforced that “void” is confined to jurisdictional defects and genuine due process failures. Parties cannot repackage merits disagreements as voidness.
“Sua sponte” due process claims face a record-based test: If a summary judgment motion and supporting materials reasonably flag an issue (here, “direct threat” via EEOC guidance), a district court’s reliance on that issue typically will not constitute a surprise theory depriving the opponent of an opportunity to respond.
Escalation for repetitive, warned-against arguments: The sanctions discussion signals that pro se status does not immunize a litigant from Rule 38 consequences, especially where a lower court has already characterized the arguments as vexatious.

4. Complex Concepts Simplified

Rule 60(b)(4) “void” judgment: A judgment is “void” only when the court lacked power to act (no jurisdiction) or when the process was fundamentally unfair (no meaningful notice/opportunity to be heard). It is not void simply because it may be wrong.
Due process in civil litigation: At minimum, due process requires notice of the issues and a fair chance to present arguments and evidence. If the opposing party’s motion squarely raises an issue, the court can decide it without “surprising” the nonmovant.
Rule 59(e) motion: A narrow reconsideration tool—meant to correct obvious errors or account for new evidence—not to reargue points already available.
Tolling the appeal deadline: Certain timely post-judgment motions pause (“toll”) the running of the deadline to appeal until the motion is resolved. Here, the court held the second Rule 59(e) motion tolled the appeal time as to the denial of Rule 60(b)(4) relief.
“Direct threat” (ADA context): A concept permitting workplace exclusion or restrictions when an individual’s presence poses a significant risk to the health or safety of others, particularly relevant to communicable disease scenarios addressed in EEOC guidance during COVID-19.
Rule 38 sanctions: If an appeal lacks merit, the appellate court may award the appellee damages, attorney’s fees, and costs—especially when the appellant persists after warnings.
Filing injunction: A court order limiting a litigant’s ability to file new motions or cases to prevent abuse. The Eleventh Circuit emphasized that such injunctions are generally crafted in the district court first.

5. Conclusion

McCone v. Exela is a procedural-focused decision that underscores three core lessons: (1) appellate jurisdiction depends on strict compliance with notice-of-appeal deadlines, though timely post-judgment motions can preserve review of specific post-judgment orders; (2) Rule 60(b)(4) voidness is confined to jurisdictional and true due process defects, not alleged analytical error; and (3) repetitive, meritless litigation—especially after explicit warnings—can trigger Rule 38 fee-and-cost sanctions, while requests for filing injunctions must follow the proper route through the district court under Rule 8.