UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES EX REL. SAMUEL J. MAY, an individual, Plaintiff - Appellant,

v. UNITED STATES OF AMERICA; THE 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 agen cy of the United States; DEBORAH ZWANY; PATRICK HANNIGAN; SARA WINSLOW; OMOTUNDE OSUNSANMI, Defendants - Appellees. No. 23-1323 (D.C. No. 1:17-CV -00637-RM-SKC) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , EID , and FEDERICO , Circuit Judges.

________________ _________________

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 24, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-1323 Document: 010111084141 Date Filed: 07/24/2024 Page: 12 Samuel J. May, proceeding pro se, 1 seeks mandamus relief in this appeal from the district court’s denial of a post-judgmen t motion. We affirm the district court’s decision and deny the request for a writ of mandamus.
BACKGROUND Mr. May was employed by Amgen USA, Inc. in the 2000s. In 2010, he filed a False Claims Act qui tam suit against Amgen in the Northe rn District of California. The United States elected not to intervene. The district c ourt dismissed that case in January 2012 because Mr. May ha d not obtained counsel. After the dismissal of Mr. May’s su it, Amgen still faced other legal proceedings. In December 20 12, it entered into a settle ment with the United States, agreeing to pay a total of $762 million in criminal penalties, forfeiture, and settlement of ten False Cl aims Act suits. Although his suit had already been dismissed and he was not a party to the set tled cases, Mr. May be lieves he is entitled to a share of the $762 million. Among other actions seeking compensati on, Mr. May filed a complaint in the District of Colorado in 2017. As we described this suit: 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 $7 62 million recovered by the United States in its 2012 settle ment with Amgen or (2) Amgen’s value—at least $900 million.

1 “Because [Mr. May] is pro se, we liber ally construe his filings, but we will not act as his advocate.” James v. Wadas , 724 F.3d 1312, 1315 (10th Cir. 2013). Appellate Case: 23-1323 Document: 010111084141 Date Filed: 07/24/2024 Page: 23 United States ex rel. May v. United States ( May I ), 839 F. App’x 214, 216 (10th Cir. 2020) (unpublished). 2 The district court “dismisse d without prejudice counts one and two against the federal defendants for lack of subject-matter jurisdiction, and it granted the federal defendants summary ju dgment on the five remaining counts.” Id. We affirmed, see id. at 216-18, and issued our ma ndate on February 16, 2021. After we decided May I and issued our mandate, Mr . May filed suit in the United States Court of Federal Claims. As the Federal Circuit described that suit: Mr. May asserted in the compla int that, because his original qui tam complaint ultimately facilitated the United States’ recovery from Amgen under the 2012 settlement agreement, he is entitled to a 25-30% relator’s share of the settlement amount. He a sserted breach of contract; breach of the implied covenant of good faith and fair dealing; professional negligence; a wrong assert edly within 42 U.S.C. § 1983; and violations of the First Amendment, the Fifth Am endment’s Takings Clause, and the Fourteenth Amendment’s Equal Protection Clause. May v. United States ( May II ), No. 2023-1124, 2023 WL 38 36088, at *3 (Fed. Cir. June 6, 2023) (unpublished) (citation and internal quotation marks omitted). The Claims Court dismissed the case for la ck of subject-matter jurisdiction. See id. The Federal Circuit affirmed on June 6, 2023. See id. at *4-6. On August 14, 2023, Mr. May filed, in th e District of Colo rado, a “Motion to Stay the Mandate Pending Petition for Wr it of Mandamus.” R. Vol. 3 at 131 (capitalization modified). The motion was captioned “In the United States Court of

2 “[W]e may exercise our di scretion to take judicial notice of publicly-filed records in our court and certa in other courts concerning ma tters 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). Appellate Case: 23-1323 Document: 010111084141 Date Filed: 07/24/2024 Page: 34 Appeals for the Federal Circuit,” id. (capitalization modified), and requested “a stay issuing the mandate pending filing of a pe tition for mandamus relief in the Federal Circuit or the United States Supreme Court,” id. at 132. The district court denied the motion in a minute order, sta ting it lacked authority to st ay this court’s mandate and that the motion was untimely.
DISCUSSION Mr. May informs us the motion he filed in the district court was only a copy of a request for relief direct ed to the Federal Circuit. 3 He states that he did not intend to seek a stay of the May I mandate. See Aplt. Opening Br. at 2, 28-29. Although the district court might have mi sunderstood Mr. May’s filing, it did not have the ability to stay the mandate in May I (or May II , for that matter). Thus , to the extent that Mr. May appeals from the di strict court’s denial of his motion, we affirm. In both his opening brief and reply brie f, Mr. May requests we construe his appeal as a petition for a writ of manda mus, and he extensively discusses the conditions for granting mandamus. We have the ability to constr ue an appeal as a petition for mandamus, see Clyma v. Sunoco, Inc. , 594 F.3d 777, 781-82 (10th Cir. 2010); Boughton v. Cotter Corp. , 10 F.3d 746, 750 (10th Cir. 1993), and we grant Mr. May’s request to do so here. As Mr. May recognizes, there are three conditions for a writ of mandamus: (1 ) Mr. May “must have no other adequate means to attain

3 The Federal Circuit denied mandamus re lief while this appeal was pending. See In re May , No. 2023-151, 2023 WL 8637556, at *1 (Fed. Cir. Dec. 14, 2023) (unpublished). Appellate Case: 23-1323 Document: 010111084141 Date Filed: 07/24/2024 Page: 45 the relief he desires”; (2) he “must demonstr ate that his right to the writ is clear and indisputable”; and (3) this c ourt, “in the exercise of its discretion, must be satisfied that the writ is appropriat e under the circumstances.” In re Cooper Tire & Rubber
Co. , 568 F.3d 1180, 1187 (10th Cir. 2009) (i nternal quotation marks omitted). Mr. May asserts that in May I , the district court awar ded him “equitable relief” by creating “an implied-in-fact reward c ontract.” Aplt. Opening Br. at 2; see also id. at 14 (alleging “the district court devised the reward c ontract” under the False Claims Act framework); id. at 15 (“The district court . . . found the qui tam suit . . . was worthy of compensation,” so it “duly devise [d] the reward contract fixed at 16.4%” of the restitution portion of the settlem ent). He believes the defendants are responsible for payment of the “reward contra ct.” He seems to attribute the “reward contract” to the defendants’ failure to object to recommendations by the magistrate judge in May I , see id. at 11, 15, 19-20, 37, 43, althoug h he additionally states that the “reward contract . . . wa s also exchanged to forego tort claims for summary judgment,” id. at 21; see also id. at 37-38, 44. And he invo kes the Takings Clause. Mr. May already filed a petition for mandamus in this court. See In re May , No. 23-1389 (10th Cir. Jan. 16, 2024) (unpub lished order). We denied that petition, stating: Mr. May failed to prevail in his lawsu it in district court or on appeal. Given that he was unsuccessful on his co ntract 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. Id. at 3. Nothing in Mr. May’s filings in this appeal underm ines that determination. Appellate Case: 23-1323 Document: 010111084141 Date Filed: 07/24/2024 Page: 56 In May I , the district court dismissed the c ontract claims ag ainst the federal defendants for lack of subject-matter juri sdiction and granted summary judgment on the tort claims against them on the ground of untimeliness. See 839 F. App’x at 217-18. Contrary to Mr. May’s percep tions, those proceedings did not create a “reward contract” in his favor . Quite the opposite. The magistrate judge stated: [Mr. May] does not plausibly allege that he ever had a contractual relationship with the Federal Defendants. He was not a party to the settlement agreement. In fact, his qui tam complaint had been dismissed before the agreement was signed. Furthermore, his qui tam claims were unrelated to those that were resolv ed by the settlement agreement, which means that the [False Claims Act’s] “alternate remedy” provision is inapplicable. Therefore, the government owed him no duty or obligation to include him in the settlement agreemen t, or share with him the settlement proceeds. May v. United States , No. 17-cv-00637-RM-MJW, 2018 WL 1046802, at *9 (D. Colo. Feb. 26, 2018) (unpublished) (cita tions omitted). The district court upheld those findings. United States ex rel. May v. United States , No. 17-cv-00637-RMSKC, 2018 WL 7141426, at *5 n.9 (D. Co lo. Aug. 29, 2018) (unpublished). The district court further denied Mr. May’s motions for relief: In this case, if the Magistrate Judg e’s recommendation to dismiss and enter summary judgment is correct and valid , then [Mr. May] has no claims for relief as such claims have been eith er dismissed or judgment has been found in favor of Defendants. Here, the Court has found the recommendation to be co rrect and valid. As su ch, Plaintiff’s motions seeking relief based on such dismissed claims are moot. Id. at *6. Thus, far from devising a “rewar d contract,” the dist rict court rejected Mr. May’s asserted rights to payment. Appellate Case: 23-1323 Document: 010111084141 Date Filed: 07/24/2024 Page: 67 Nor did we affirm the exis tence of a “reward contract .” To the contrary, we affirmed the district court’s denial of relief. See May I , 839 F. App’x at 216-18. To the extent Mr. May ties the “rewar d contract” to his contract claims, the district court did not have the ability to order a monetary award on those claims . As we explained previously, the district court lacked jurisd iction to adjudicate contract claims that exceeded $10,000, and Mr. May sought much more than $10,000. See id. at 217. And to the extent that Mr. May ties the “reward contract” to his tort claims, the district court dismissed those claims as untimely. See id. at 218. There is no indication that dismissal of the tort cl aims involved (or s hould have involved) payment of consideration to Mr. May. In short, Mr. May has failed to demonstr ate any right to paym ent arising out of May I , much less a clear and indisputable one. Accordingly, we deny mandamus relief.
CONCLUSION We deny the government’s motion to dism iss or summarily affirm the appeal and grant Mr. May’s motion to proceed wit hout prepayment of costs or fees. We affirm the district court’s de nial of the motion to stay a nd deny Mr. May’s request for a writ of mandamus.

Entered for the Court

Allison H. Eid Circuit Judge Appellate Case: 23-1323 Document: 010111084141 Date Filed: 07/24/2024 Page: 7