NOTE: This order is nonprecedential.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 untimely. Edward McLarnon opposes dismissal. For the reasons 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). 

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2 MCLARNON v. US

BACKGROUND

Mr. McLarnon, currently incarcerated, filed a pro se

complaint in the United States Court of Federal Claims asserting various grievances against a large number of defendants associated with his criminal prosecution, 

conviction, and imprisonment, Appx to Mot. to Dismiss

(“Appx”) at 1, and demanding compensation based on alleged 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 jurisdiction. 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 requesting “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-cv1080, ECF No. 27, at 1. Before the court ruled on that motion, Mr. McLarnon filed a notice of appeal on October 19, 

2021, along with a motion to reopen the time to file an appeal. On November 10, 2021, the Court of Federal Claims

denied his request for reconsideration. And on December 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 decisions 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 jurisdiction over Mr. McLarnon’s appeal from the July 2021 decision 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 reconsideration. 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 delay 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 deadline 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 Reconsideration: 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 extension 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 system designed for legal mail, such as Mr. McLarnon, the filing 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 resolving 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 requested 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 reconsideration,” 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 argued the Court of Federal Claims has jurisdiction to award 

him money damages and specific performance in connection with his claims—arguments the Court of Federal 

Claims ultimately rejected in its November 10, 2021, decision. The government here has provided no sound basis for 

why we should not adopt this interpretation of Mr. McLarnon’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 notice 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 reconsideration and denying the request to reopen the time to appeal. Mr. McLarnon’s informal opening brief, filed within 

60 days after entry of those decisions, challenges those decisions, Op. Br. at 2. And a pro se brief may be sufficient to 

establish jurisdiction where, as here, the brief was filed

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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 malicious. 

Because we conclude that Mr. McLarnon’s appeal is frivolous, 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. McLarnon’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 nonfrivolous basis for Mr. McLarnon’s allegation.

And for Mr. McLarnon’s contract claim (the primary issue 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 documents (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 officials, 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 genuine doubt [] about who is appealing, from what judgment, 

to which appellate court,” Becker v. Montgomery, 532 U.S. 

757, 767–68 (2001).

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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 omitted). 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 jurisdiction 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.

August 29, 2022

 Date

 FOR THE COURT

 /s/ Peter R. Marksteiner

 Peter R. Marksteiner

 Clerk of Court

 

 

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