Opinion
23-1389
01-16-2024
In re: SAMUEL J. MAY, Petitioner.
(D.C. No. 1:17-CV-00637-RM-SKC) (D. Colo.)
Before PHILLIPS, KELLY, and EID, Circuit Judges.
ORDER
Samuel J. May, proceeding pro se, petitions this court for a writ of mandamus. We deny mandamus relief.
Mr. May's mandamus petition relates to an earlier lawsuit he filed against Amgen, USA, Inc., his former employer, and several federal defendants-the United States of America, the Department of Justice, and the Department of Health and Human Services. In that action, he brought contract and tort claims and sought between 25% and 30% of the $762 million recovered by the United States in a 2012 settlement with Amgen. The district court dismissed with prejudice all counts against Amgen, dismissed without prejudice two counts against the federal defendants for lack of subject-matter jurisdiction, and granted the federal defendants summary judgment on the five remaining counts. Mr. May appealed, and this court affirmed the district court's judgment. See United States ex rel. May v. United States, 839 Fed.Appx. 214, 216 (10th Cir. 2020). The mandate issued on February 16, 2021.
Over two years later, in August 2023, Mr. May filed a motion in district court to stay this court's mandate pending the Federal Circuit's consideration of a petition for writ of mandamus. The district court denied the motion, explaining it had no authority to stay this court's mandate, and further noting Mr. May's pleading was untimely.
Two months later, Mr. May filed the instant mandamus petition. In it, he contends he has a right to "specific monetary relief" and further contends it is "clear and indisputable" the writ would be appropriate under the circumstances of this case. Pet. at 1. He seeks an order directing the federal defendants from his earlier lawsuit and the Chief Executive Officer of Amgen to pay him 16.4% plus interest from the proceeds that were recovered in the False Claims Act lawsuit against Amgen. Alternatively, he seeks an order directing the district court to vacate its order denying his motion to stay the mandate.
A writ of mandamus is a "drastic remedy, and is to be invoked only in extraordinary circumstances." In re Cooper Tire &Rubber Co., 568 F.3d 1180, 1186 (10th Cir. 2009) (internal quotation marks omitted). "Unlike an appeal, a writ of mandamus is used only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Id. (internal quotation marks omitted). To be entitled to a writ of mandamus, three conditions must be met: "First, because a writ is not a substitute for an appeal, the party seeking issuance of the writ must have no other adequate means to attain the relief he desires." Id. at 1187 (internal quotation marks omitted). "Second, the petitioner must demonstrate that his right to the writ is clear and indisputable. Id. (internal quotation marks omitted). "Finally, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances." Id. (internal quotation marks omitted).
Mr. May failed to prevail in his lawsuit in district court or on appeal. Given that he was unsuccessful on his contract and tort claims in district court and that this court affirmed the district court's judgment, he fails to adequately explain why he has a clear and indisputable right to any specific monetary relief. He likewise fails to adequately explain what authority this court or the district court would have to order monetary relief when the mandate issued almost three years ago. Under these circumstances, Mr. May has not demonstrated his entitlement to the drastic remedy of a writ of mandamus.
Accordingly, we deny his mandamus petition. We also deny his motion for leave to proceed without prepayment of costs or fees.