Miller v. Inst. for Def. Analyses

DREW MILLER, Plaintiff - Appellant, v. INSTITUTE FOR DEFENSE ANALYSES, a Delaware non-profit corporation, Defendant - Appellee.

No. 19-1110

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

December 20, 2019

(D.C. No. 1:17-CV-02411-NYW)

(D. Colo.)

ORDER AND JUDGMENT^*

Before LUCERO, O'BRIEN, and CARSON, Circuit Judges.

Drew Miller, pro se, appeals from the district court's order granting summary judgment in favor of Institute for Defense Analyses ("IDA"). In a detailed and well-reasoned memorandum opinion and order, the magistrate judge found Miller to have failed to present adequate evidence to withstand summary judgment.¹ Exercisingjurisdiction under 28 U.S.C. § 1291, we affirm the court's February 26, 2019 decision and order.

I. BACKGROUND

A. The Claims

Miller pled four claims arising from the termination of his employment with IDA: (1) retaliation in violation of the False Claims Act, 31 U.S.C. § 3730(h)(1); (2) retaliation in violation of the Defense Contractor Whistleblower Protection Act, 10 U.S.C. § 2409(a)(1)(A); (3) wrongful termination for lawful off-duty activity in violation of Colo. Rev. Stat. § 24-34-402.5; and (4) unlawful prevention of lawful political participation in violation of Colo. Rev. Stat. § 8-2-108.²

B. Undisputed Material Facts

"IDA is a non-profit corporation organized under a government mandate and operating in the public interest, and it manages three federally funded research and development centers that provide objective analyses of national security issues." R. Vol. II at 188 (internal quotation marks omitted).

Miller, a retired United States Air Force Reserve Colonel, is a graduate of the United States Air Force Academy, and also holds both a master's degree and Ph.D. in public policy. In or around 2003, Miller began working for IDA as a consultant. In 2006, he became an adjunct employee, working on a part-time, hourly basis, with nobenefits. Then in 2012, he was hired full-time and "began specializing in chem-bio research . . . involv[ing] the research and analysis of biological and chemical threats[.]" Id. (internal quotation marks omitted). Miller was assigned to work with the Operational Risk Assessment Project ("ORAP").

Jerry Glasow, who worked at the Defense Threat Reduction Agency, was in charge of millions of dollars in funds allocated for the IDA. Glasow had previously worked for Jeff Grotte, Ph.D., who supervised IDA's chem-bio research, including thirty researchers and the ORAP.³ Miller, however, "led the day-to-day execution of the ORAP." Id. at 188-89 (internal quotation marks omitted). At or about this same time, "Miller [privately] created and began marketing memberships to Fortitude Ranch, a survival community." Id. at 189.

In January 2013, Michael Dominguez, IDA's Division Director, denied Miller's request to write a letter to the editor of the Wall Street Journal, identifying himself as an IDA employee and supporting the nomination of then-Senator Chuck Hagel as Secretary of Defense. In September 2013, another issue arose when Grotte assigned six analysts from another IDA project to the ORAP. According to Miller, the new analysts were unqualified for their jobs, and "[o]n several occasions, [he] complained to . . . Grotte and others at IDA about the new analysts and the purported ill-effects caused by these analysts to the ORAP; [Miller] even requested that IDAremove him from the ORAP." Id. Other employees, however, contradicted Miller's assessment and "opined that Dr. Miller's inconsistencies and lack of direction to the six new analysts was the problem." Id. at 190.

In any event, in November 2013, "despite the initial success of the ORAP, Dr. Grotte issued a cease work order on the ORAP without informing Dr. Miller of the reasons." Id. (citations omitted). According to Miller, "the six new analysts [were reassigned] to new projects," but he was forced to take leave because he had no work. Id. Miller believes Grotte shut down the ORAP as retaliation for his complaints about the new analysts. Miller and Grotte never worked together again.

Miller's performance review concerning his work in 2013, noted his lack of day-to-day leadership at the ORAP. In a memorandum dated April 9, 2014, Miller responded to the review "and largely criticized Dr. Grotte's management . . . while also suggesting that Dr. Grotte's negative comments were retaliation for [his] complaints about the six new analysts." Id. Significantly, however, Miller's rebuttal contained no allegations of fraud, but at or about the same time, Miller also "raised concerns with Dr. Grotte's use of government funds." Id. at 200 (citations omitted).

Unrelated to his performance review, in an email dated April 24, 2014, "Miller submitted for IDA's peer review process an article that he allegedly researched and prepared on his own time concerning a bioengineered viral pandemic—the article was unlike typical IDA articles and [Miller] intended it for mass publication." Id. at 190-91. Miller sought mass publication in order to warn the public of the danger and threat of bioengineered pandemics. The proposed article "received strongcriticism from Dominguez and IDA's peer reviewers, including," as one example, "the fear-based tone needed reworking to an analytical approach." Id. at 191. Although IDA eventually published the heavily edited article, Miller withdrew it from consideration for mass publication.

In late 2014, "Miller approached IDA about giving a presentation at a conference on the psychological and societal effects of chemical, biological, radiological, and nuclear events." Id. Dominguez told Miller he needed to identify a government officer who would clear the presentation for public release. Miller identified the National Guard Bureau, whose project leader asked Miller to draft a report on the topic before presenting. Miller submitted the draft to Dominguez for peer review by Grotte and another IDA employee. The draft received "grave condemnation" from the peer reviewers, "which Dr. Miller believe[d] was retaliation for complaining about the six new analysts assigned to the ORAP." Id. at 192.

On or about April 28, 2015, Dominguez raised a potential conflict of interest with Fortitude Ranch and Miller's chem-bio work for IDA. He directed Miller "not to speak or write publically [sic] about any topic that relates to 'chem-bio' pandemics or societal collapse." Id. (internal quotation marks omitted). Miller disagreed about the alleged conflict of interest; nonetheless, he agreed not to write or speak on these topics.

The following day, April 29, Grotte levied scientific misconduct charges against Miller in response to the NGB paper. The IDA launched a misconduct investigation in June 2015, which ultimately concluded although Miller had notcommitted scientific misconduct, the paper was seriously flawed. Among other things, the investigation found the paper "was not written in an objective manner, made misleading statements and used some references in a deceptive way, and failed to meet IDA standards." Id. at 192-93 (brackets and internal quotation marks omitted).

For his part, "Miller vehemently disagreed" with the investigation, which he "believed to be additional whistleblower retaliation, and which caused damage to [his] reputation as well as stress and anxiety given the prospects of severe ramifications if found guilty." Id. at 192.

As a result of the investigation and the conclusions drawn from it, Miller was returned to his previous status as an adjunct employee, working part-time with no benefits. And in March 2016, Dominguez issued Miller "a letter of counseling . . . admonish[ing] [him] for his violations of IDA practices standards, including his purported work on chem-bio related issues on 'his own time,' and prohibit[ing] [Miller] from working on chem-bio-related projects while employed with IDA or in academic or professional forums outside of IDA." Id. at 193 (internal quotation marks omitted).

Despite Dominguez's prohibition, in late 2016, Miller "published an article titled 'The Age of Designer Plagues' in the journal The American Interest," id., which was essentially the same article Miller published in 2014. Grotte alerted Dominguez to the "new" article in an email dated January 12, 2017. Believing Miller had violated the prohibition and "pursuant to the decision of IDA's Vice President,General Counsel, and Human Resource Director, [Dominguez] terminated Dr. Miller on or about January 17, 2017." Id. at 193-94.

"Following his termination, [Miller] filed a Whistleblower Reprisal Complaint with the [Department of Defense] Office of the Inspector General and a fraud, waste, and abuse complaint with [the Department's agency]." Id. at 194 (brackets and internal quotation marks omitted). The record does not establish what, if anything, happened after the filing, but in any event, Miller filed suit on October 6, 2017.

II. STANDARD OF REVIEW

We construe Miller's pro se pleadings liberally and hold him "to a less stringent standard than . . . pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But "[a]t the same time, we do not believe it is the proper function of the . . . court to assume the role of advocate for the pro se litigant." Id. The magistrate judge applied this standard to Miller's pro se pleadings throughout the litigation. Nonetheless, Miller argues, without any support, the magistrate judge's "memorandum demonstrated bias in favoring the Denver big law firm attorneys over the Pro Se party, highlighting their material facts and ignoring mine." Aplt. Opening Br. at 32. Miller's discourse on the general topic of pro se litigation in the federal courts has nothing to do with the conduct of the magistrate judge in his case. In fact, Miller admits he "respect[s] Judge Wang's experience as an attorney, applaud[s] her demeanor and kindness, but suspect[s] that inherent bias against Pro Se parties impacted her judgment." Id. at 33-34 (emphasis added). Miller's...