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U.S. Court of Appeals for the Federal Circuit, 2022

McLarnon v. United States

McLarnon v. United States
U.S. Court of Appeals for the Federal Circuit · Decided August 29, 2022
McLarnon v. United States

Opinion

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NOTE: This order is nonprecedential.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).

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 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 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.

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 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

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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