# In the United States Court of Federal Claims

No. 21

- 1080C (Filed: Dec ember 2

, 20 2 1 )

************************************

EDWARD MCLARNON

,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

************************************ *

*

*

*

*

*

*

*

*

*

* Pro Se Plaintiff; Motion to Reopen Time for Appeal

, Fed. R. App. P. 4(a)(6) ; Prison

Mailbox Rule

Edward McLarnon , Oakdale, LA, pro se

.

Michael Austin , United States Department of Justice, Washington, DC, for defendant

.

OPINION AND ORDER

SWEENEY

, Senior Judge

Plaintiff Edward McLarnon

, a prisoner in a federal corrections facility proceeding pro se ,

moves to reopen the time for appeal of the court’s judgment dismissing his claims for lack of jurisdiction pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure (“Fed. R. App. P.”). The court entered judgment dismissing Mr. McLarnon’s suit on July 9, 2021, and his motion to reopen time for appeal was filed on the court’s doc ket on October 27 , 2021. For the reasons set forth below, Mr. McLarnon’s motion to reopen time for appeal must be denied.

I. PROCEDURAL BACKGROUND

Because the issue before the court is procedur al in nature , background information regarding Mr. McLarnon ’s claims is not provided here but may be obtained from two prior opinions filed in this case. See McLarnon v. United States ( “ McLarnon II ” ) , No. 21

- 1080C, 2021 WL 5231986 (Fed. Cl. Nov. 10, 2021) ; McLarnon v. United States ( “ McLarnon I ” ) , 154 Fed. Cl. 459 (2021)

.

The court’s McLarnon I opinion and the judgment dismissing Mr. McLarnon’s suit were issued and served on July 9, 2021. This calendar date triggered two filing deadlines of note: (1) an y motion for reconsideration under Rule 59 of the Rules of the United States Court of Federal Claims (“RCFC”) was due by August 6, 2021; (2) any notice of appeal under Fed. R. App. P. 4(a)(1) was due by September 7, 2021. Mr. McLarnon asserts that he plac ed a motion

for an enlargement of the deadline for his RCFC 59 motion in the prison ’s mail system on- 2

- August 3, 2021. 1 This motion was received by the court on August 9, 2021, and was granted on August 10, 2021. The revised deadline set by the court for filing an RCFC 59 motion was August 27, 2021.

Mr. McLarnon asserts that he placed his RCFC 59 motion in the prison mail system on August 23, 2021. His motion was received by the court on August 30, 2021, and filed by the court’s leave on August 31, 2021. The court deem ed the motion for reconsideration to be untimely, but considered it as if it were timely filed. McLarnon II , 2021 WL 5231986 , at *2 &

n.2. It then denied the motion on November 10, 2021.

According to Mr. McLarnon

, he placed a notice of appeal, and an accompanying motion to reopen time for appeal, in the prison ’s mail system on October 19, 2021. These documents were received by the court on October 27, 2021 , and were filed the same day. The court did not require defendant to file a response to Mr. McLarnon’s motion to reopen time for appeal , and oral argument is similarly unnecessary.

II. DISCUSSION

Because Mr. McLarnon’s notice of appeal was not filed on or before the deadline of September 7, 2021, he must satisfy the criteria in Fed. R. App. P. 4(a) to proceed with an appeal

of this court’s judgment. See RCFC 77(d)(2) (“ Lack of notice of the entry [of judgment] does not affect the time for appeal or relieve

— or authorize the court to relieve

— a party for failing to appeal within the time allowed, except as allowed by Federal Rule of Ap pellate Procedure 4(a). ”). As is relevant here, Fed. R. App. P. 4(a) provides two avenues of potential assistance to Mr. McLarnon. First, if h e timely filed his motion for reconsideration, the appeal period would not have begun to run until that motion w as decided by this court , which in this case was on November 1 0, 2021 . Fed. R. App. P. 4(a)(4). Second, the September 7, 2021 notice of appeal

deadline could be reopened by the court if Mr. McLarnon filed his motion to reopen time for appeal within fourt een days of his receipt of service of the judgment. Fed. R. App. P. 4(a)(6) (B)

. As explained below, neither rule is of assistance to Mr. McLarnon

.

As a threshold matter, Mr. McLarnon invokes the prison mailbox rule, which has two applications to the procedural facts recounted here. Most formally, pursuant to Fed. R. App. P. 4(c)(1), a prisoner may be considered to have filed a notice of appeal with the trial court on the date such notice is deposited in the prison’s mail system. T he court finds , pursuant to Fed. R. App. P. 4(c)(1), that Mr. McLarnon ’s notice of appeal should be deemed to have been filed on October 19, 2021 , when he deposited the not ice in the prison’s mail system

.

An other application of the prison mailbox rule is not enshrined in court rules but in precedent. A prisoner’s motion for reconsideration should also be deemed, in appropriate

1 For the purposes of considering Mr. McLarnon’s motion, the court assumes without deciding that his factual representations are accurate.- 3

- circumstances, to have been filed on the date of delivery to the prison’s mail system. 2 See Bernaugh v. United States , 168 F.3d 1319 (Fed. Cir. 1998) (table) (stating that “ a prisoner ’ s submission may be deemed filed with the court when it has passed into the control of the prison

officials ” (citing Houston v. Lack , 487 U.S. 266, 272 (1988) )) ; accord Sharpe v. United States

, 111 Fed. Cl. 334, 337 (2013). Thus, pursuant to the prison mailbox rule, Mr. McLarnon’s

motion for reconsideration is deemed to have been filed on August 23 , 2021

.

A. The Unti mely Motion for Reconsideration D id Not Toll the Appeal Deadline

A motion for reconsideration “must be filed no later than 28 days after the entry of judgment,” RCFC 59(b)(1), and t he deadline for filing such a motion may not be enlarged by the

court

, RCFC 6(b)(2) ; see also Progressive Indus., Inc. v. United States , 888 F.3d 1248, 1255 (Fed. Cir. 2018) ( confirm ing that this court lacks the authority to enlarge the deadline for the filing of a motion for reconsideration). If a motion for reconsid eration is filed more than twenty

eight days after judgment was entered, it is untimely and will not toll the deadline for filing a notice of appeal. See Fed. R. App. P. 4(a)(4) (tolling the notice of appeal deadline where

motions for reconsideration are “filed within the time allowed” ); accord Browder v. Dir., Dep’t

of Corr. of Ill

. , 434 U.S. 257, 269 (1978) (noting that F ed . R. App. P. 4(a) requires “that a [Rule 59] motion be timely if it is to toll the time for appeal”); Westine v. United States , 263 F . App’x 879, 880 (Fed. Cir. 2008) ; Batiste v. United States , 38 F. App’x 586, 587 (Fed. Cir. 2002)

. Because Mr. McLarnon’s motion for reconsideration was filed on August 23, 2021, not on or before August 6, 2021, it was untimely and did not t oll his deadline for filing a notice of appeal. 3

The court has also considered whether Mr. McLarnon’s motion for an enlargement of the filing deadline for his motion for reconsideration could satisfy the timeliness requirement for

2 The United States Court of Appeals for the Third Circuit (“Third Circuit”) has adopted

an additional rule: “ [A] p rison’s actual delay or interference in the delivery of a final order of

the district court is excluded from the calculation of the timeliness of motions for reconsideration under Federal Rule of Civil Procedure 59 or 60 filed by pro se inmates.” United S tates v.
Fiorelli , 337 F.3d 282, 289

- 90 (3d Cir. 2003). Th e Third Circuit’s “reverse

- mailbox” rule has not been adopted by the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) and appears to express a minority view as to the time liness of Rule 59 motions filed by prisoners

. See Catherine T. Struve, The Federal Rules of Inmate Appeals , 50 A riz. St. L.J. 247,

280

- 89 & nn.212

- 18 (2018) ( “ So far, the Third Circuit ’ s approach [to excusing late filings based on a prison’s delayed deliv ery of a court’s judgment] seems to have gained little traction in other

circuits. ” ). The court does not find the Third Circuit’s approach to be in accord with Federal Circuit precedent or to be persuasive . Thus, the court will not apply it to the facts of this case.

3 Because Mr. McLarnon’s motion to enlarge the deadline for the filing of his motion for reconsideration was not received by the court until August 9, 2021, the court’s order of August 10, 2021, erroneously granting the motion, see RCFC 6(b)(2); Progressive Indus. , 888 F.3d at 1255, could not have misled Mr. McLarnon into missing the August 6, 2021 deadline because by

that time th e deadline had already passed.- 4

- R CFC 59 motions that will toll appeal deadlines, as set forth in Fed. R. App. P. 4(a)(4)

. The United States Court of Appeals for the District of Columbia Circuit has sanctioned such an approach, allowing the prisoner’s enlargement motion , with its reference to the grounds for

rec onsideration, to be deemed the actual motion for reconsideration, and the later

- filed motion for reconsideration to be deemed a memorandum in support of the motion for reconsideration.

See Toolasprashad v. Bureau of Prisons , 286 F.3d 576, 582

- 83 (D.C. Cir . 2002) (characterizing a “Motion Requesting an Enlargement of Time to File a Motion and Brief for Reconsideration” as a motion for relief from judgment, and a later

- filed motion for reconsideration that was untimely under a strict application of court rul es as a “memorandum in support” of the motion for relief from judgment ). But the Federal Circuit has not adopted this particular approach to excusing the late filing of R CFC 59 motions, and the court declines to break new ground in this regard. Under

the precedent of Browder , 434 U.S. at 269, Mr. McLarnon’s motion for reconsideration was untimely and it cannot toll his deadline for filing an appeal.

B. The Motion to Reopen Time for Appeal Was Filed More Than Fourteen Days After

Notice of Judgment Had Be en Received and Cannot Be Granted

For this court t o reopen an appeal period under Fed. R. App. P. 4(a)(6)

, the motion to

reopen must be filed within fourteen days of receipt of service of the court’s judgment. See Fed. R. App. P. 4(a)(6)(B) (allowing reopening only if “ the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party re ceives notice under Federal Rule of Civil Procedure 77(d) of the entry [of the judgment]

, whichever is earlier ” (emphasis added) ) ; see also 28 U.S.C. § 2107(c) (same)

. Mr. McLarnon does not state with any specificity when he received service of the court’ s judgment of July 9, 2021. See Pl.’s Mot. 1 (stating that he “hereby attests that the last Judgment he received was the court’s Judgment of 7/27/21”). The judgment notice could not have been received by Mr. McLarnon any later tha n August 3, 2021, howeve r, since that is the date that he deposited with the prison’s mail system his motion to enlarge the deadline for filing a motion for reconsideration of the court’s judgment. Pl.’s Mot. to Enlarge 2. His enlargement request specifically mention ed “this Co urt’s Order of July 9, 2021.” Id. at 1.

Thus, any motion to reopen the time for appeal needed to be filed within fourteen days of August 3, 2021, the latest possible date that notice of the judgment was received by M r.
McLarnon

. In other words, h is deadline for filing the motion was August 17, 2021 , if not earlier

. As noted above

, the court deems Mr. McLarnon ’s motion to reopen time for appeal to have been

filed on October 19, 2021

, pursuant to the prison mailbox rule

. Therefore, he fil ed his motion at
least sixty

- three days after the deadline set by Fed. R. App. P. 4(a)(6)(B). Because Mr. McLarnon’s motion to reopen time for appeal wa s untimely filed , it cannot be granted. See, e.g.

, Bowles v. Russell , 551 U.S. 205, 2 09

- 13 (2007) (holding t hat the time limits set forth in Fed. R. App. P. 4(a)(6) are jurisdictional) ; accord D’Angelo v. United States , No. 19

- 2091, 2021 WL 4955612, at *1 (1st Cir. May 10, 2021) (holding that the statutory time limits set by Fed. R. App. P. 4(a)(6)(B) are jurisd ictional and not subject to equitable exceptions); Baker v. United States

, 670 F.3d 448, 456 (3d Cir. 2012) (“[T]here is no doubt after Bowles that those rules listed in 28 U.S.C. § 2107, which are also embodied in Appellate Rules 4(a)(1) and 4(a)(6), are-5- jurisdictional, and are not subject to equitable modification.”). 4

I II . CONCLUSION

For the reasons stated herein, Mr. McLarnon’s motion to reopen time for appeal is

DENIED

.

IT IS SO ORDERED.

MARGARET M. SWEENEY Senior Judge

4 The United States Supreme Court in Bowles also held that a misleading order issued by

the trial court could not rehabilitate an untimely notice of appeal. See 551 U.S. at 206- 07 (“[W]e hold that petitioner’ s untimely notice [of appeal] —even though filed in reliance upon a District Court’s order—deprived the Court of Appeals of jurisdiction. ”). Thus, even if Mr. McLarnon was misled by the court’s erroneous enlargement of the filing deadline for his Rule 59 motion, the court cannot reopen the time for appeal here because the time limits of Fed. R. App. P. 4(a) are strictly c onstrued. See id. ; accord Marandola v. United States, 518 F.3d 913, 914 (Fed. Cir. 2008) (“An untimely appeal must be dismissed for lack of jurisdiction; the requirement cannot be waived, and is not subject to equitable tolling.” (citing Bowles , 551 U.S. at 214)); Int’l Rectifier Corp. v. IXYS Corp., 515 F.3d 1353, 1358 (Fed. Cir. 2008) (noting that the holding in Bowles requires a “ strict application ” of Fed. R. App. P. 4).