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NOTE: This order is nonprecedential.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.
ORDER
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).
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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
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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.
2 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
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
