May v. United States ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 10, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES EX REL. SAMUEL J.
MAY, an individual,
Plaintiff - Appellant,
v. No. 19-1478
(D.C. No. 1:17-CV-00637-RM-SKC)
UNITED STATES OF AMERICA; THE (D. Colo.)
DEPARTMENT OF JUSTICE, an agency
of the United States; THE DEPARTMENT
OF HEALTH AND HUMAN SERVICES,
an agency of the United States; FOOD
AND DRUG ADMINISTRATION, an
agency of the United States; EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION, an agency of the United
States; AMGEN USA INC., A California
and Delaware corporation; DEBORAH
ZWANY; SARA WINSLOW; PATRICK
HANNIGAN; OMOTUNDE
OSUNSANMI
Defendants – Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, MURPHY and PHILLIPS, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
_________________________________
In the 2000s, pro se plaintiff Samuel May worked for defendant Amgen USA,
Inc. (Amgen). After he left the company, he brought an unsuccessful arbitration
claim against it, and then unsuccessfully tried to vacate the arbitration award in state
and federal courts. Meanwhile, he also filed a qui tam action under the False Claims
Act against Amgen in the United States District Court for the Northern District of
California. The United States declined to intervene, and the case was later dismissed
without prejudice because May did not obtain counsel. Just under a year later, in
2012, the United States and Amgen reached a settlement not involving May. More
than three years after that, May moved to reopen his qui tam action in the Northern
District of California, seeking a share of the settlement. But the court denied the
motion because May still had “not retained counsel, and his filings [were] untimely
and plainly frivolous.” R. vol. 1 at 808. May appealed to the Ninth Circuit, and the
appeal was dismissed.
Eight days after the Ninth Circuit dismissed his appeal, May filed this lawsuit
in the District of Colorado against Amgen and several federal defendants—the
United States of America, the Department of Justice, and the Department of Health
and Human Services (collectively, “the federal defendants”).1 His complaint contains
seven claims: counts one and two allege contract claims, counts three through seven
tort claims. The relief he seeks includes between 25% and 30% of (1) the $762
1
May’s complaint lists several other defendants too, but the district court
ultimately dismissed them without prejudice.
2
million recovered by the United States in its 2012 settlement with Amgen or
(2) Amgen’s value—at least $900 million. The district court dismissed with
prejudice all counts against Amgen. It dismissed without prejudice counts one and
two against the federal defendants for lack of subject-matter jurisdiction, and it
granted them summary judgment on the five remaining counts. May appeals, and we
affirm.
I. Pro Se Pleadings
We construe May’s pro se pleadings liberally, holding them to a less stringent
standard than we would a lawyer’s pleadings. Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). But we may not go so far as to serve as May’s advocate. See id.And pro se litigants must follow the same procedural rules that govern other litigants.
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
II. Judicial Notice and Motion to Strike
May asks us to take judicial notice of two documents related to a state
arbitration case between him and Amgen. We have discretion to take judicial notice
of publicly filed records from “other courts concerning matters that bear directly
upon the disposition of the case at hand.” United States v. Ahidley, 486 F.3d 1184,
1192 n.5 (10th Cir. 2007). We decline to notice the documents that May has
submitted, however, because they have no bearing on our analysis. Because we deny
May’s motion to notice the documents, we also deny as moot the federal defendants’
motion to strike May’s declaration in support of his motion for judicial notice.
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III. Subject-Matter Jurisdiction
May’s opening brief contains many assertions about jurisdiction. Reading his
brief liberally, we construe those assertions to challenge the district court’s decision
to dismiss count one (breach of contract) and count two (breach of an implied
covenant of good faith and fair dealing) as to the federal defendants under Federal
Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. We review
the Rule 12(b)(1) dismissal de novo. Chance v. Zinke, 898 F.3d 1025, 1028
(10th Cir. 2018).
Together, the Tucker Act (28 U.S.C. § 1491) and the Little Tucker Act
(28 U.S.C. § 1346) vest the Court of Federal Claims with exclusive jurisdiction over
contract claims against the United States for more than $10,000. Burkins v. United
States, 112 F.3d 444, 449 (10th Cir. 1997). So the district court correctly concluded
that, as to the federal defendants, it lacked subject-matter jurisdiction over counts one
and two—contract claims seeking millions of dollars.
May does not persuade us that, despite the Tucker Act, the district court
nevertheless has jurisdiction over his contract claims against the federal defendants.
The Tucker Act is displaced “when a law assertedly imposing monetary liability on
the United States contains its own judicial remedies.” United States v. Bormes,
568 U.S. 6, 12 (2012). May cites several statutes that, in his view, give the district
court jurisdiction to hear his contract claims against the federal defendants: 9 U.S.C.
§§ 1–16 (Federal Arbitration Act); 21 U.S.C. §§ 301–92 (Food, Drug, and Cosmetic
Act); 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 1332 (diversity
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jurisdiction); 28 U.S.C. § 1343(a)(3) (civil actions for equal-rights violations);
42 U.S.C. §§ 1981 (equal rights), 1983 (civil actions for rights deprivations). But he
has not identified any specific language in these assorted statutes displacing the
Tucker Act’s exclusive jurisdiction over his contract claims against the federal
defendants.
IV. Qui Tam
May cannot salvage claims one and two against the federal defendants by
framing them as a qui tam action under 31 U.S.C. § 3730 (False Claims Act).
A pro se litigant may not bring a qui tam action. See Wojcicki v. SCANA/SCE&G,
947 F.3d 240, 246 (4th Cir. 2020). And although May’s pro se status does not
implicate the district court’s jurisdiction, it would warrant dismissal without
prejudice of any qui tam claims, see Georgakis v. Ill. State Univ., 722 F.3d 1075,
1078 (7th Cir. 2013), as the district court ordered on counts one and two against the
federal defendants.
May’s failure to obtain counsel similarly forecloses any argument that he
properly brought a qui tam action against Amgen. See Wojcicki, 947 F.3d at 246.
V. Rulings Not Considered
May seems to claim that “the district court erred in denying [his] First
Amended Complaint.” Aplt. Opening Br. at 11. But it appears that May never tried
to amend his complaint. It is possible that May refers to the motion to alter the
judgment that he filed on December 14, 2019, identified in the docket record in part
as his “First MOTION to Alter Judgment.” R. vol. 1 at 14. The district court denied
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this motion, but not until after May filed his notice of appeal. And May did not file
another notice of appeal or amend the original one to include the order denying his
motion to alter the judgment. As a consequence, that order is not properly before us.
See Fed. R. App. P. 4(a)(4)(B)(ii).
May’s opening brief does not present a coherent challenge to (1) the district
court’s summary judgment (based on the statute of limitations) for the federal
defendants on counts three through seven; (2) the district court’s dismissal with
prejudice under Federal Rule of Civil Procedure 12(b)(6) of all claims against
Amgen; or (3) the district court’s award of attorney’s fees to Amgen. May has thus
waived any argument against these rulings. See Sawyers v. Norton, 962 F.3d 1270,
1286 (10th Cir. 2020) (“Issues not raised in the opening brief are deemed abandoned
or waived.” (internal quotation marks omitted)).
VI. Conclusion
May’s motion that we take judicial notice of certain documents is denied. The
motion to strike May’s declaration is denied. May’s motion to expedite the appeal is
denied as moot. We do not consider any arguments in May’s motion to expedite that
do not relate to the motion itself. See Fed. R. App. P. 28(c) (“Unless the court
permits, no further briefs may be filed.”). The district court’s judgment is affirmed.
Entered for the Court
Michael R. Murphy
Circuit Judge
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