May v. United States
| Decision Date | 13 July 2022 |
| Docket Number | 21-1496C |
| Parties | SAMUEL J. MAY, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. Claims Court |
Samuel J. May, pro se, Lynnwood, WA.
Kristin E. Olson, Civil Division, United States Department of Justice, Washington, DC, for Defendant.
Plaintiff Samuel J. May brings the present Complaint, alleging a number of claims related to a settlement agreement between the United States and his former employer, the pharmaceutical company Amgen, Inc. Previously, in 2010, he filed a qui tam[1] complaint alleging that Amgen violated the False Claims Act ("FCA").[2] That complaint was dismissed for failure to prosecute, but soon afterward, Amgen and the United States reached a multimillion-dollar settlement stemming from several similar qui tam complaints to which Mr. May was not a party. Having unsuccessfully sought relief in federal district courts and courts of appeals, he now brings new claims to this Court.
The Government moves to dismiss pursuant to Rules 12(b)(1) and (6) of the Rules of the U.S. Court of Federal Claims ("RCFC"). It argues that qui tam actions are beyond this Court's jurisdiction and that Mr May's contract claims are time-barred and fail to demonstrate the existence of a contract. The Government also contends that this Court lacks jurisdiction over Mr. May's tort and due process claims and that his Fifth Amendment theories fail to state a claim upon which relief can be granted. Mr. May moves to supplement the record, for a default judgment, and for judgment on the pleadings.
For the reasons set forth below, this Court lacks subject matter jurisdiction over the Complaint. Mr. May's contract and Fifth Amendment claims are time-barred, and his tort and due process claims are not based on a money-mandating provision of law. Therefore, the Court GRANTS the Government's Motion to Dismiss, and the other outstanding motions are DENIED as moot.
The following facts are based on the allegations in Plaintiff's Complaint, which the Court accepts as true solely for the purpose of ruling on the Government's pending Motion to Dismiss. See Bioparques de Occidente, S.A. de C.V. v. United States, 31 F.4th 1336, 1343 (Fed. Cir. 2022); Celgene Corp. v. Mylan Pharms., Inc., 17 F.4th 1111, 1128 (Fed. Cir. 2021); see also Def.'s Mot. to Dismiss ("Def.'s Mot."), Docket No. 18. The Court also considers filings in Plaintiff's prior lawsuits to determine whether this Court has jurisdiction to adjudicate the instant case. See Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991) ().
Mr. May was employed by Amgen from 2002 until he resigned to take a position at a different company in 2006. Def.'s App. at 42, 45, Docket No. 18-1; see Compl. ¶ 18, Docket No. 1. In 2007, he sued Amgen for wrongful termination, discrimination, and related claims. Def.'s App. at 1-11 (). Among his other claims, Mr. May alleged that Amgen retaliated against him because he had "brought attention to the fact that Amgen, its supervisors, and employees . . . were in violation of federal rules and regulations in having open protocols and because Plaintiff refused to simply ignore such open protocols which would have constituted an illegal and unethical act." Id. at 5 (cleaned up).
Mr. May voluntarily dismissed the complaint because of an arbitration clause in his employment contract. Id. at 34; see Pl.'s Ex. 5 at 1-2, Docket No. 1-6 (arbitration agreement). [3]One year later, in 2008, he brought an arbitration demand for the same underlying claims. Compl. ¶ 22; Def.'s App. at 12-31 (Mr. May's arbitration demand). On October 14, 2011, the arbitrator found against Mr. May and in favor of Amgen. Def.'s App. at 40-53 (arbitration award).[4] That December, Mr. May's motion for reconsideration of the arbitration award was denied. Id. at 54-57 (). Amgen then successfully moved to confirm the arbitration award in Colorado state court. Compl. ¶ 42; see also Def.'s App. at 58-64 (Amgen's motion to confirm arbitration award), 65-68 (judgment and order confirming arbitration award).
Over the next several years, Mr. May attempted, through lawsuits in state and federal courts, to either vacate or modify the arbitration award. Compl. ¶ 42. All of these lawsuits were dismissed. Id.; see also Def.'s App. at 69-70 (), 156-57 (district court order denying motion for leave to file motion for reconsideration), 161-62 (Ninth Circuit order summarily affirming the district court's order), 163 (Ninth Circuit order denying reconsideration). Finally, the Supreme Court denied Mr. May's petition for certiorari in 2015. Compl. ¶ 42.
Despite Mr. May's repeated attempts to have the arbitration award vacated or modified, he nonetheless appears to interpret the arbitrator's decision as endorsing his claim for relief. He states that the arbitrator "ruled May's contracts permitted him for legal remedy" and found that his claim "satisf[ied] three of the four . . . elements for threshold relief under state law." Id. ¶ 25; see also Pl.'s Mot. for J. on the Pleadings at 6, Docket No. 29 ("May's offer of proof shows that he met the threshold requirement for three of the four Lorenz[] elements."). In fact, the arbitrator found that he was not entitled to relief and did not find that he had satisfied three of the four factors of the relevant test. Def.'s App. at 51-52. She concluded that because he failed one factor of the conjunctive test, as well as at least one other factor, his claim must be dismissed. Id.
On June 11, 2010, while Mr. May's arbitration was pending, he filed a qui tam complaint, pro se, under the FCA in the U.S. District Court for the Northern District of California. Compl. ¶ 23; see Def.'s App. at 164-289 (). The qui tam complaint "alleged that Amgen had inflated drug prices for unapproved uses, distributed substandard or adulterated [drugs] into interstate commerce, and had sold to third party government entities causing improper reimbursements by the Centers for Medicaid and Medicare Services." Compl. ¶ 24. Specifically, Mr. May alleged that Amgen made false claims to the Government for payment or approval of regulatorily non-compliant, tainted, or misbranded units of two drugs, Aranesp and Epogen. Def.'s App. at 218-21. He alleged that Amgen took steps to mask manufacturing deficiencies of these drugs and that it "promoted off-label uses of Aranesp and Epogen doses that were neither effective nor safe, all for the purpose of significantly increasing their sales." Id. at 200 ¶ 97 (cleaned up). He also contended that Amgen misrepresented the cost of producing these drugs by falsely claiming to assign resources to quality control, allowing it to charge Medicare and Medicaid more than regulations permitted. Id. at 205-06 ¶¶ 115-16.
In September 2010, the United States elected not to intervene in Mr. May's qui tam complaint and suggested that the court dismiss the case unless Mr. May obtained counsel within 60 days of the court's order. Def.'s App. at 290-92 (government's declination notice); see Compl. ¶ 30. The Government's notice observed that "the Ninth Circuit has held that a pro se relator cannot prosecute a qui tam action on behalf of the United States under the False Claims Act." Def.'s App. at 291 (citing United States ex. rel. Stoner v. Santa Clara Cnty. Off. of Educ., 502 F.3d 1116, 1126-28 (9th Cir. 2007)).
Mr. May retained a law firm but it terminated its representation shortly thereafter. Pl.'s Ex. A at 10-13, Docket No. 1-9; Pl.'s Resp. to Def.'s Mot. at 9 ¶¶ 29-31, ("Pl.'s Resp."), Docket No. 22. He retained new counsel, but that law office also ended its representation without ever noticing a court appearance, claiming that Mr. May's "failure to disclose [his] prior arbitration agreement, which covers many of the same claims in [his] qui tam Complaint, is an unfortunate error which effectively terminates our legal representation." Pl.'s Ex. A at 15-16; see Pl.'s Resp. at 9-10 ¶ 32.[5] On January 5, 2012, Mr. May's qui tam suit was dismissed for failure to prosecute because he was not represented by counsel. Def.'s App. at 293-94 (order dismissing qui tam action); Pl.'s Resp. at 10 ¶ 34.
In December 2012, the United States, Amgen, and multiple relators entered into a $762 million settlement agreement for FCA-related claims ("the Amgen Settlement"). Compl. ¶ 31; see Def.'s App. at 336-85 (the Amgen Settlement). Similar to Mr. May's qui tam complaint, the settlement agreement included the allegation that "Amgen knowingly promoted the sale and use of Arenesp for indications which were . . . not approved by the Food and Drug Administration" and "for dosing intervals, amounts, or regimens that were . . . not approved by the FDA." Def.'s App. at 339; see Compl. ¶ 31. More than three years later, Mr. May moved to reopen his qui tam complaint, seeking a share of the settlement. Def.'s App. at 295-330 (). The U.S. District Court for the Northern District of California denied the motion and the Ninth Circuit dismissed his appeal. See Def.'s App. at 331 (), 334-35 (Ninth Circuit order dismissing appeal).
On March 10, 2017, eight days after the Ninth Circuit dismissed Mr. May's appeal, he filed a complaint in the U.S....
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