Case: 22-1134 Document: 47 Page: 1 Filed: 08/29/2022
`
`NOTE: This order is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`EDWARD MCLARNON,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2022-1134
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:21-cv-01080-MMS, Senior Judge Margaret M.
`Sweeney.
`
`______________________
`
`ON MOTION
`______________________
`
`PER CURIAM.
`
`O R D E R
`The United States moves to waive the requirements of
`Federal Circuit Rule 27(f) and to dismiss the appeal as un-
`timely. Edward McLarnon opposes dismissal. For the rea-
`sons set forth below, the government’s motion to dismiss is
`denied, but the appeal is nonetheless dismissed under 28
`U.S.C. § 1915(e)(2)(B)(i).
`
`
`
`
`
`
`
`NOTE: This order is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`EDWARD MCLARNON,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2022-1134
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:21-cv-01080-MMS, Senior Judge Margaret M.
`Sweeney.
`
`______________________
`
`ON MOTION
`______________________
`
`PER CURIAM.
`
`O R D E R
`The United States moves to waive the requirements of
`Federal Circuit Rule 27(f) and to dismiss the appeal as un-
`timely. Edward McLarnon opposes dismissal. For the rea-
`sons set forth below, the government’s motion to dismiss is
`denied, but the appeal is nonetheless dismissed under 28
`U.S.C. § 1915(e)(2)(B)(i).
`
`
`
`
`
`
`
`Case: 22-1134 Document: 47 Page: 2 Filed: 08/29/2022
`
`2
`
`
`
`MCLARNON v. US
`
`BACKGROUND
`Mr. McLarnon, currently incarcerated, filed a pro se
`complaint in the United States Court of Federal Claims as-
`serting various grievances against a large number of de-
`fendants associated with his criminal prosecution,
`conviction, and imprisonment, Appx to Mot. to Dismiss
`(“Appx”) at 1, and demanding compensation based on al-
`leged contracts with the United States, ECF No. 31 (“Op.
`Br.”) at 1–2.
`On July 9, 2021, the Court of Federal Claims dismissed
`Mr. McLarnon’s claims for lack of subject matter jurisdic-
`tion. On August 3, 2021, Mr. McLarnon placed a document,
`entitled “Plaintiffs’ Motion for an Expansion of Time,” in
`the prison’s mail system. In it, he requested additional
`time to submit a motion for reconsideration under Rule 59
`(due to a prison lockdown) and noted that he would be re-
`questing “reconsideration . . . [because the court] erred and
`abused its discretion when it[, among other things,] failed
`to review all evidence on record, [and] misapplied the law
`on record,” No. 21-cv-1080, ECF No. 23, at 1.
`The Court of Federal Claims granted the extension.
`And on August 23, 2021, Mr. McLarnon mailed his “Motion
`for Reconsideration: Alter & Amend Judgment.” No. 21-cv-
`1080, ECF No. 27, at 1. Before the court ruled on that mo-
`tion, Mr. McLarnon filed a notice of appeal on October 19,
`2021, along with a motion to reopen the time to file an ap-
`peal. On November 10, 2021, the Court of Federal Claims
`denied his request for reconsideration. And on Decem-
`ber 2, 2021, the court denied his request to reopen the time
`for appeal. The court also certified, under 28 U.S.C.
`§ 1915(a)(3), that any appeal would not be taken in good
`faith. Appx 10.
`This court has jurisdiction over appeals from final de-
`cisions of the Court of Federal Claims. 28 U.S.C.
`§ 1295(a)(3).
`
`
`
`Case: 22-1134 Document: 47 Page: 3 Filed: 08/29/2022
`
`MCLARNON v. US
`
` 3
`
`DISCUSSION
`The government argues that this court lacks jurisdic-
`tion over Mr. McLarnon’s appeal from the July 2021 deci-
`sion because it was not filed within 60 days of entry. The
`government further contends that deadline was not tolled
`because Mr. McLarnon did not file a timely motion for re-
`consideration. We reject the government’s argument.
`A notice of appeal must generally be filed within
`60 days from the entry of final judgment by the Court of
`Federal Claims, 28 U.S.C. §§ 2522, 2107(b), but the timely
`filing of a motion for reconsideration under Rule 59(a)(1) of
`the Rules of the Court of Federal Claims (“RCFC”) will de-
`lay entry of final judgment (and with it the time for filing
`an appeal) until the motion is resolved, Fed. R. App.
`P. 4(a)(4)(A); Fed. Cir. R. 1(a)(1)(C), (b)(1). Here, the dead-
`line for filing a timely motion for reconsideration ended 28
`days after the Court of Federal Claims entered judgment
`on July 9, 2021. RCFC 59(b)(1).
`
`Although the government is correct that Mr. McLarnon
`did not file the document entitled “Plaintiff’s Motion for Re-
`consideration: Alter & Amend Judgment” until after that
`deadline, we directed the government to explain why we
`should not interpret his August 3, 2021, motion for an ex-
`tension of time to seek reconsideration as itself a timely
`motion for reconsideration.1 That approach was taken by
`
`
`1 For an inmate confined in an institution with a sys-
`tem designed for legal mail, such as Mr. McLarnon, the fil-
`ing of certain pro se prisoner pleadings is deemed to occur
`when they are given to prison officials for delivery to the
`court. See Fed. R. App. 4(c); Bernaugh v. United States, 168
`F.3d 1319 (Fed. Cir. 1998) (table) (citing Houston v. Lack,
`487 U.S. 266, 272 (1988)); see also Anyanwutaku v. Moore,
`151 F.3d 1053, 1057 (D.C. Cir. 1998). For purposes of re-
`solving the government’s motion, we accept as true the
`
`
`
`Case: 22-1134 Document: 47 Page: 4 Filed: 08/29/2022
`
`4
`
`
`
`MCLARNON v. US
`
`the United States Court of Appeals for the D.C. Circuit in
`Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 582–83
`(D.C. Cir. 2002). As in Toolasprashad, Mr. McLarnon re-
`quested an extension of time (which the court erroneously
`granted, see Appx 13 & n.3 (citing RCFC 6(b)(2)) in a pro se
`document that had “virtually the same argument [Mr.
`McLarnon] later raised in his official motion for reconsid-
`eration,” 286 F.3d at 582, and that was timely filed for a
`Rule 59 motion. Indeed, Mr. McLarnon’s August 3, 2021,
`motion identified several statutes pursuant to which he ar-
`gued the Court of Federal Claims has jurisdiction to award
`him money damages and specific performance in connec-
`tion with his claims—arguments the Court of Federal
`Claims ultimately rejected in its November 10, 2021, deci-
`sion. The government here has provided no sound basis for
`why we should not adopt this interpretation of Mr. McLar-
`non’s pro se filings. Under the circumstances of this case,
`we conclude that Mr. McLarnon’s motion for an extension
`of time is best construed as a motion for reconsideration
`under Rule 59, which tolled the time for him to file his no-
`tice of appeal such that it was timely; we therefore have
`jurisdiction to review the trial court’s July 2021 decision in
`this case.2
`
`
`facts asserted by Mr. McLarnon and assumed to be true by
`the Court of Federal Claims regarding the dates when
`Mr. McLarnon placed filings in the prison’s mail system.
`Appx 11–12.
`
` We also find that jurisdiction is proper with respect
`to the Court of Federal Claims’ decisions denying reconsid-
`eration and denying the request to reopen the time to ap-
`peal. Mr. McLarnon’s informal opening brief, filed within
`60 days after entry of those decisions, challenges those de-
`cisions, Op. Br. at 2. And a pro se brief may be sufficient to
`establish jurisdiction where, as here, the brief was filed
`
` 2
`
`
`
`Case: 22-1134 Document: 47 Page: 5 Filed: 08/29/2022
`
`MCLARNON v. US
`
` 5
`
`Having concluded that we have jurisdiction, we next
`evaluate whether Mr. McLarnon’s appeal, which he seeks
`to pursue in forma pauperis, complies with 28 U.S.C.
`§ 1915(e)(2)(B)(i):
`Notwithstanding any filing fee, or any portion
`thereof, that may have been paid, the court shall
`dismiss the case at any time if the court determines
`that . . . the action or appeal . . . is frivolous or ma-
`licious.
`Because we conclude that Mr. McLarnon’s appeal is frivo-
`lous, we dismiss the appeal.
`Mr. McLarnon identifies “[t]he sole question on appeal
`[as] whether [the] trial court abused its discretion and used
`fraud to find it lacked subject matter jurisdiction.” Op. Br.
`at 3. The allegation of fraud is completely frivolous; the
`Court of Federal Claims liberally construed Mr. McLar-
`non’s lengthy and difficult-to-decipher pro se complaint and
`filings and explained why the court lacked jurisdiction over
`each of his claims. Appx 1–5; Appx 6–10. We see no non-
`frivolous basis for Mr. McLarnon’s allegation.
`And for Mr. McLarnon’s contract claim (the primary is-
`sue he presses on appeal), that claim “lack[s] an arguable
`basis either in law or in fact,” Neitzke v. Williams, 490 U.S.
`319, 325 (1989). Mr. McLarnon alleges that he sent docu-
`ments (Notice – Private International Remedy Demand
`(“Proffer”); Notice of Fault-Opportunity to Cure; Notice of
`Default-Consent to Decree; Exhaustion of Administrative
`Procedures, ECF No. 31-2 at 1–2) to various federal offi-
`cials, and, by failing to respond, the United States thereby
`agreed to an implied contract with the purported terms in
`
`within the time to file a notice of appeal and leaves “no gen-
`uine doubt [] about who is appealing, from what judgment,
`to which appellate court,” Becker v. Montgomery, 532 U.S.
`757, 767–68 (2001).
`
`
`
`Case: 22-1134 Document: 47 Page: 6 Filed: 08/29/2022
`
`6
`
`
`
`MCLARNON v. US
`
`those documents. Appx 9–10. But not “respond[ing] to an
`unsolicited offer does not create a contract, regardless of
`any contrary terms in the offer,” Ibrahim v. United States,
`799 F. App’x 865, 867 (Fed. Cir. 2020) (citing Wells Fargo
`Bank, N.A. v. United States, 88 F.3d 1012, 1019 (Fed. Cir.
`1996)), and here there is no non-frivolous allegation of any
`“objective manifestation of voluntary, mutual assent” to
`any agreement between the parties, Turping v. United
`States, 913 F.3d 1060, 1065 (Fed. Cir. 2019) (citation omit-
`ted). Thus, Mr. McLarnon has no cognizable basis in law
`or fact to challenge the Court of Federal Claims’ dismissal
`of his claims. We have considered each of Mr. McLarnon’s
`arguments and find they similarly lack any arguable basis
`in law or fact.
`Accordingly,
`IT IS ORDERED THAT:
`(1) The United States’ motion to dismiss for lack of ju-
`risdiction is denied.
`(2) The appeal is dismissed pursuant to 28 U.S.C.
`§ 1915(e)(2)(B)(i).
`(3) All other pending motions are denied.
`(4) Each party shall bear its own costs.
` FOR THE COURT
`
`
`
`August 29, 2022
` /s/ Peter R. Marksteiner
` Date
` Peter R. Marksteiner
` Clerk of Court
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
