UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ DREW MILLER, Plaintiff - Appellant,

v. INSTITUTE FOR DEFENSE ANALYSES, a Delaware non-profit corporation, Defendant - Appellee. No. 19-1110 (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 or der granting summary judgment in favor of Institute for Defense An alyses (“IDA”). In a detailed and wellreasoned memorandum opinion and order, th e magistrate judge found Miller to have failed to present ade quate evidence to withst and summary judgment. 1 Exercising

* After examining the briefs and appellate record, th is panel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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.

1 The parties consented to the magist rate judge conducti ng all proceedings, including the entry of a final judgment. See 28 U.S.C. § 636(c)(1). FILED United States Court of Appeals Tenth Circuit 

### December 20, 2019
Elisabeth A. Shumaker Clerk of Court2 jurisdiction 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 th e 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 Wh istleblower 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) unla wful prevention of lawful political participation in violati on of Colo. Rev. Stat. § 8-2-108. 2 B. Undisputed Material Facts “IDA is a non-profit cor poration organized under a government mandate and operating in the public interest, and it mana ges three federally fu nded research and development centers that provi de objective analyses of na tional security issues.” R. Vol. II at 188 (internal quotation marks omitted). Miller, a retired United Stat es 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 be gan working for IDA as a consultant. In 2006, he became an adjunct employee, work ing on a part-time, hourly basis, with no

2 Miller pled, but did not pursue, cl aims for non-payment of wages under the Fair Labor Standards Act and unlawf ul discharge under Colorado law.3 benefits. Then in 2012, he was hired full- time and “began speci alizing 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 Asse ssment Project (“ORAP”). Jerry Glasow, who worked at the Defe nse Threat Reduction Agency, was in charge of millions of dollars in funds allocated for the I DA. Glasow had previously worked for Jeff Grotte, Ph.D., who superv ised IDA’s chem-bio research, including thirty researchers and the ORAP. 3 Miller, however, “led th e day-to-day execution of the ORAP.” Id . at 188-89 (internal quotation marks om itted). At or about this same time, “Miller [privately] cr eated and began marketing memberships to Fortitude Ranch, a survival community.” Id . at 189. In January 2013, Michael Domingu ez, IDA’s Division Director, denied Miller’s request to write a le tter 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 Septem ber 2013, another issue arose when Grotte assigned six analysts from a nother IDA project to the OR AP. According to Miller, the new analysts were unqualified for thei r jobs, and “[o]n several occasions, [he] complained to . . . Grotte and others at IDA about the new anal ysts and the purported ill-effects caused by thes e analysts to the ORAP; [Mille r] even requested that IDA

3 Miller argued an improper relationshi p existed between Grotte and Glasow because, he suspected, Glasow wanted to return to run the IDA when Grotte retired, and as a result, he speculates, Glasow never questioned Gr otte’s decisions.4 remove him from the ORAP.” Id . Other employees, however , contradicted Miller’s assessment and “opined that Dr . Miller’s inconsistencies a nd lack of direction to the six new analysts was the problem.” Id . at 190. In any event, in November 2013, “d espite the initial su ccess of the ORAP, Dr. Grotte issued a cease work order on the ORAP without info rming Dr. Miller of the reasons.” Id . (citations omitted). According to Miller, “the six new analysts [were reassigned] to new proj ects,” but he was forced to take leave because he had no work. Id . Miller believes Grotte shut dow n 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 la rgely criticized Dr. Grotte ’s management . . . while also suggesting that Dr. Gr otte’s negative comments we re retaliation for [his] complaints about the six new analysts.” Id . Significantly, however, Miller’s rebuttal contained no allegations of fra ud, 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 revi ew process an article that he allegedly researched and prepared on his own time concerning a bi oengineered viral pandemic—the article was unlike typical IDA arti cles 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 strong5 criticism from Dominguez and IDA’s peer re viewers, including,” as one example, “the fear-based tone needed rework ing to an analytical approach.” Id . at 191. Although IDA eventually published the heav ily 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 soci etal 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. Mill er submitted the draf t 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 th e six new analysts assi gned to the ORAP.” Id . at 192. On or about April 28, 2015, Dominguez ra ised a potential conflict of interest with Fortitude Ranch and Mille r’s chem-bio work for IDA. He directed Miller “not to speak or write publically [s ic] about any topic that rela tes to ‘chem-bio’ pandemics or societal collapse.” Id . (internal quotation marks omi tted). Miller disagreed about the alleged conflict of interest; nonetheless, he agreed not to wr ite 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 ultim ately concluded alt hough Miller had not6 committed scientific misconduct, the pa per was seriously flawed. Among other things, the investigation found the paper “was not written in an objective manner, made misleading statements a nd used some references in a deceptive way, and failed to meet IDA standards.” Id . at 192-93 (brackets a nd internal quotation marks omitted). For his part, “Miller vehemently disagr eed” with the investigation, which he “believed to be additional whistleblower retaliation, and which caused damage to [his] reputation as well as stress and anxiet y given the prospects of severe ramifications if found guilty.” Id . at 192. As a result of the investigation and th e 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 issu ed Miller “a letter of counseling . . . admonish[ing] [him] for his violations of IDA practices sta ndards, including his purported work on chem-bio related issu es on ‘his own time,’ and prohibit[ing] [Miller] from working on chem -bio-related projects while employed with IDA or in academic or professional fo rums outside of IDA.” Id . at 193 (internal quotation marks omitted). Despite Dominguez’s prohibition, in la te 2016, Miller “published an article titled ‘The Age of Designer Plagues’ in the journal The Am erican Interest,” id ., which was essentially the sa me article Miller published in 2014. Grotte alerted Dominguez to the “new” article in an email dated Janua ry 12, 2017. Believing Miller had violated the prohibition and “pursuant to the decision of IDA’s Vice President,7 General Counsel, and Human Resource Director, [Domingue z] terminated Dr. Miller on or about January 17, 2017.” Id . at 193-94. “Following his termination, [Miller] f iled 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 reco rd 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 assu me the role of advo cate for the pro se litigant.” Id . The magistrate judge applied this st andard to Miller’s pro se pleadings throughout the litigation. Nonetheless, Miller argues, withoutany support, the magistrate judge’s “memora ndum demonstrated bias in favoring the Denver big law firm attorneys over the Pro Se party, highl ighting their material facts and ignoring mine.” Aplt. Opening Br. at 32. Miller’s discourse on the gene ral 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] he r demeanor and kindness, but suspect[s] that inherent bias against Pro Se parties im pacted her judgment.” Id . at 33-34 (emphasis added). Miller’s suspicions are insufficient to raise an issue on appeal.8 Under Fed. R. Civ. P. 56(a), “[t]he [district] court sh all grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “We review a grant of summary judgment de novo.” Adams v. Am. Guarantee & Liab. Ins. Co. , 233 F.3d 1242, 1246 (10th Cir. 2000). “A fact is ‘material’ if under the substantive law it could have an effect on the outcome of the lawsuit.” Id . “An issue is ‘genuine’ if a rational juror could find in favor of the nonmoving party on the evidence presented.” Id . (brackets and internal quot ation marks omitted). “In conducting our review, we view the factual record and draw any reasonable inferences theref rom in the light most favor able to the nonmoving party.” Id . To avoid summary judgment, the part y opposing the motion must come forward with evidence and cannot re ly on “mere speculation, c onjecture, or surmise. Unsubstantiated allegati ons carry no probative weight in summary judgment proceedings.” Self v. Crum , 439 F.3d 1227, 1230 (10th Cir. 2006) (citation and internal quotation marks omitted). “Where . . . a defendant moves for summ ary judgment to test an affirmative defense, the defendant must demonstrate that no disput ed material fact exists regarding the affirmativ e defense asserted.” Helm v. Kansas , 656 F.3d 1277, 1284 (10th Cir. 2011) (brackets, ellipsis, and internal quotati on marks omitted). “Once the defendant makes this initial showing, the plaintiff must then demonstrate with specificity the existence of a disputed material fact.” Id . (internal quotations marks omitted).9 Throughout his brief, Mille r confuses arguments and th eories with evidence. But no matter how fervently they are he ld, his personal opinions, assumptions, or suspicions cannot defeat summary judgment. Nor ca n Miller meet his burden by arguing the magistrate judge ignored certain facts withou t showing how those facts are material to his claims, wh ich he has failed to do. III. DISCUSSION A. False Claims Retaliation “The [False Claims Ac t] covers all fraudulent attempts to cause the government to pay out sums of money.” United States ex rel. Conner v. Salina Reg’l Health Ctr., Inc ., 543 F.3d 1211, 1217 (10th Cir. 2008) (internal quotation marks omitted). “Because employees will often be in the be st position to report frauds perpetrated by their employe rs, the statute includes a whistleblower provision to protect employees from retaliation.” Potts v. Ctr. for Excellence in Higher Educ.,
Inc ., 908 F.3d 610, 613 (10th Cir. 2018) (internal quotation marks omitted). 4 Without any direct evidence of retali ation, a plaintiff asserting a False Claims Act retaliation claim may rely on circumstantial evidence under the

4 Section 3730(h)(1) provides: “Any empl oyee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is di scharged, demoted, su spended, threatened, harassed, or in any other manner discrimina ted against in the terms and conditions of employment because of lawful acts done by the employ ee, contractor, agent or associated others in furthera nce of an action under this s ection or other efforts to stop 1 or more violations of this subchapter.”10 burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-03 (1973). 5 Although this court has not formally adopted the McDonnell Douglas burden-shifting framework as appl ying to such claims, other courts considering the issue have unifo rmly applied this framework. 6 We do likewise. “Adapting McDonnell Douglas to the [False Claim Act’s] anti-retaliation provision, a plaintiff first must set forth a prima facie case of retaliation. Once this is accomplished, the burden then shifts to the defendantto articulate a legitimate, nonretaliatory reason for the adverse employment action.” Harrington v. Aggregate Indus .- Ne. Region, Inc ., 668 F.3d 25, 31 (1st Cir. 2012) (citation omitted). “[I]f the employer produces evidence of a legitimate nonretaliatory reason, the plaintiff must assume the further burden of showing that th e proffered reason is a pretext calculated to mask retaliation.” Id

. See also Diaz v. Kaplan Higher Educ., LLC , 820 F.3d 172, 176 (5th Cir. 2016) (same).

5 Miller continues to insist he provi ded direct evidence of retaliation and therefore McDonnell Douglas does not apply. But he cites no direct evidence of retaliation in the record and we can find none.

6 See Diaz v. Kaplan Higher Educ., LLC , 820 F.3d 172, 175 n.3 (5th Cir. 2016); United States ex rel. Schweizer v. Océ N.V. , 677 F.3d 1228, 1240-41 (D.C. Cir. 2012); Harrington v. Aggregate Indus.-Ne. Region, Inc. , 668 F.3d 25, 31 (1st Cir. 2012); Hutchins v. Wilent z, Goldman & Spitzer , 253 F.3d 176, 186 (3d Cir. 2001). And in unpublished decisions, this court and the Sixth Circuit have also applied the McDonnell Douglas framework to False Claims Act retaliation claims. See United States ex rel. Erickson v. Uintah Special Servs. Dist. , 268 F. App’x 714, 717-18 (10th Cir. 2008); Scott v. Metro. Health Corp ., 234 F. App’x 341, 346 (6th Cir. 2007).11 A plaintiff proves a prima facie case of False Claims Act retaliation by showing “(1) the employee engaged in prot ected activity, (2) th e employer . . . knew about the protected activity, a nd (3) retaliation because of his protected activity.” United States ex rel. Ki ng v. Solvay Pharm., Inc ., 871 F.3d 318, 332 (5th Cir. 2017) (brackets, ellipsis and internal quotation marks omitted). With regard to the element of causation, “[t]he [False Claims Act] prohibits adverse em ployment action taken ‘because of’ protected activity.” Id . at 333 (quoting § 3730(h )(1)). At least one circuit has held the heightened “but-for” ca usation standard appl ies only at the third and final pretext stage of the McDonnell Douglas framework—not at the prima facie stage. See Garcia v. Prof’l Contract Servs., Inc ., 938 F.3d 236, 241 (5th Cir. 2019) (a prima facie case of retalia tion under the False Claims Act requires a plaintiff only to “demonstrate a ‘causal connection’ betw een his protected activity and his firing, even if he must ultimate ly demonstrate but-for causati on at the pretext stage”). We assume, arguendo only, Miller satisfied the first two elements of a prima facie retaliation claim—he engaged in protected activity and IDA knew about the protected activity. Regarding the third el ement, we again assume without deciding Miller need only establish the lesser requi rement of a causal connection—not but-for causation. In this regard, Miller maintained there wa s a causal conn ection between his complaints throughout the fall of 2013 about the six researchers assigned to ORAP, and the concerns he raised in Apri l 2014, and possibly as late as November12 2014, about Grotte’s improper spending, an d the scientific misc onduct investigation and his later termination. 7
In the absence of direct evidence, to establish causa tion, Miller “must present evidence of circumstances that justify an inference of re taliatory motive.” Ward v. Jewell , 772 F.3d 1199, 1203 (10th Cir. 2014) (int ernal quotation marks omitted). To establish such a motive, courts may in fer a causal connecti on where “protected conduct is closely followed by the adverse action.” Id . Here, Miller relied on the alleged temporal proximity between his pr otected conduct and th e adverse action is what Miller relied on to prove causation. But Miller’s “protected cond uct” lacks the required te mporal proximity needed to justify an inference of retaliatory motive. For example, “[w]e have held that a one and one-half month period between a protec ted activity and adverse action may, by itself, establish causation[, but] a three-month period, st anding alone, is insufficient to establish causation.” Foster v. Mountain Coal Co. , 830 F.3d 1178, 1191 (10th Cir. 2016) (brackets and internal quotation marks omitted); see also Hennagir v. Utah Dep’t of Corr ., 587 F.3d 1255, 1266 (10th Cir. 2009) (concluding “[a]lthough close temporal proximity between the employee’ s complaint and the adverse employment

7 Miller argued he suffered several adverse employment consequences in addition to the scientific mi sconduct investigation and his te rmination. The district court disagreed, however, concluding “the i nvestigation (and its purported effects) and Dr. Miller’s termination are the only occurrences constituting adverse employment actions.” R. Vol. II at 197. But even if there were other adverse employment actions, it does not matter, because there was no causal connection between the alleged adverse employment actions and his protected activity.13 action may be considered in the reta liation inquiry,” a five-month gap was insufficient to create a triabl e issue of material fact as to retaliation (brackets and internal quotation marks omitted)). Here, Miller’s protected activity ended November 2014, at the latest, but the scientific misconduct investigation di d not begin until April 2015, and his termination occurred even later. As such, we agr ee with the district court that “the month’s and year’s long gaps between the protected activity and the adverse employment actions fail to support an inferen ce of retaliation.” R. Vol. II at 201. And because Miller failed to come forward with any ot her evidence from which to infer a retaliatory motive, hi s False Claims Act retaliati on claim fails for lack of causation. B. Whistleblower Retaliation The Defense Contractor Whistleblower Protection Act prohibits the discharge, demotion, or discrimination against employees as reprisal for re porting, among other things, government fraud, waste or abuse. See 10 U.S.C. § 2409(a)(1)(A). 8 Section 2409(c)(6) provides that the legal burdens in 5 U.S.C. § 1221(e) shall be controlling for any judicial determination of whether retaliation occurred. Section 1221(e), in

8 Section 2409(a)(1)(A) prohibits the disc harge, demotion, or discrimination against employees “as reprisal for disclosing to a person or body . . . information that the employee reasonably believes is eviden ce of . . . [g]ross mismanagement of a Department of Defense contra ct or grant, a gross wast e of Department funds, an abuse of authority relating to a Department contract or gran t, or a violation of law, rule, or regulation relate d to a Department contr act . . . or grant.”14 turn, requires that an empl oyee show his protected ac tivity was a “contributing factor” in the adverse empl oyment action taken, unless the employer “demonstrates by clear and convincing evidence that it w ould have taken the same personnel action” notwithstanding the protected activity. Id

. To succeed on his whistleb lower retaliation claim, Miller must demonstrate “(1) he engaged in protected activity . . ., (2) the [IDA] decision maker knew he engaged in protected activity, and (3) his protected activ ity was a contributing factor in the adverse employment act ion taken against him, unle ss (4) [IDA] shows by clear and convincing evidence that it would ha ve taken the employment action despite [Miller’s] protect ed activity.” Cejka v. Vectrus Sys. Corp ., 292 F. Supp. 3d 1175, 1192 (D. Colo. 2018). Again, assuming Miller engaged in pr otected activity and IDA was aware of his protected activity, he failed to establ ish the protected activity was a contributing factor in the adverse employm ent actions. “A contributing factor is any factor, which alone or in combination with other factors, tends to affect in an y way the outcome of the decision.” Feldman v. Law Enf’t Assocs. Corp ., 752 F.3d 339, 348 (4th Cir. 2014) (internal quotati on marks omitted). While temporal proximity is not an ex clusive test but can be a threshold, Miller relied on the temporal proximity between his protected activity and the adverse employment actions almost exclusivel y in attempting to establish causation. Lacking other probative evidence, he failed to demonstrate the degree of temporal proximity from which the district court could reasonably draw an inference of15 retaliation. Moreover, Miller failed to present any other evidence on causation. Therefore, his whistleblowe r retaliation claim fails. C. Unlawful Termination (Lawful Off-Duty Activity) Colo. Rev. Stat. § 24-34- 402.5, Colorado’s Lawful Activities Statute, considers it a “discriminatory or unfai r employment practice” to terminate an employee because he engage d “in any lawful activity off the premises of the employer during nonworking hours.” One exception to protection of the statute exists where conduct “[r]elates to a bona fide occupational requirement or is reasonably and rationally related to the em ployment activities and responsibilities of a particular employee or a pa rticular group of employees, ra ther than to all employees of the employer.” “The stat ute . . . reflects a legisla tive attempt to balance an employee’s right to engage in lawful activity away from work with an employer’s legitimate business in terests and needs.” Ruiz v. Hope for Children, Inc ., 352 P.3d 983, 985-86 (Colo. App. 2013). At issue is Miller’s term ination for lawful off-dut y conduct—publication of “The Age of Designer Plagues.” In Ap ril 2015, Dominguez raised a potential conflict of interest with Fortitude Ranch an d Miller’s chem-bio work for IDA, and he directed Miller not to speak or write publicly about any topic related to chem-bio pandemics or societal colla pse. Specifically, Doming uez “was concerned because Fortitude Ranch involved subj ect matter (disaster preparation, global pandemics, etc.) that overlapped with portions of IDA’s work in general, and so me of Dr. Miller’s work at IDA in particular .” R. Vol. I at 531.16 On summary judgment, IDA argued the re striction on Miller’ s ability to speak or write about certain topics was relate d to a bona fide occ upational requirement, because its “reputation for impartiality could be seriously da maged by an employee publishing articles warning of an imminent biological pandemic while simultaneously earning personal revenue by selling membership s to a community designed to survive just such a disaster.” Id . at 525. The district court agreed, and so do we. The term “bona fide” has b een interpreted to mean in “good faith; honestly, openly, and sincerely.” People v. Terry , 720 P.2d 125, 127 (Colo. 1986) (internal quotation marks omitted). The undisputed evidence show s the IDA to have imposed the restriction in good faith . The district court noted that in his declaration, Dominguez explained he “reported a poten tial conflict of interest involving Dr. Miller’s management/ownership role in Fortitude Ranch. Specifically . . . Dominguez stated [he] was concerned be cause Fortitude Ranc h involved subject matter . . . that overlapped with portions of IDA’s work in general, and some of Dr. Miller’s work at IDA in particular.” R. Vol. II at 207 (i nternal quotation marks omitted). Moreover, Dominguez “feared th at the appearance of the identical statements on both IDA publications and Fortitude Ranch publica tions could create the perception of a link between the two, which would compromise IDA’s reputation for objectivity.” Id . (internal quotation marks omitte d). Ample evidence supports IDA’s affirmative defense; it “imposed this prohibition b ecause it believed Dr. Miller17 lacked objectivity in this ar ea—a pillar of IDA’s mission and essential to its business reputation.” Id . at 209. In the face of this overwhelming evid ence, Miller argues “the publication ban was a ploy to up the pressure on me to quit, and [he] can convince a jury of this.” Aplt. Opening Br. at 28. There is no ev idence the restriction was a “ploy,” and Miller’s unsubstantiated theori es and suspicions do not cr eate a triable issue. D. Unlawful Prevention of La wful Political Participation Colorado’s Political Participation St atute prohibits an employer from “mak[ing], adopt[ing], or enforce[ing] any ru le, regulation, or policy forbidding or preventing any of his employees from e ngaging or participating in politics.” § 8-2-108(1). According to Miller, IDA vi olated the statute in January 2013, when he was prevented from wr iting a letter to the Wall Street Journal in support of Chuck Hagel as Secretary of Defense. Section 8-2-108(1) does not contain a statute of limitation. Under these circumstances, Miller had two years to file his claim. See Colo. Rev. Stat. 13-80-102(1)(i) (providing where no period of limitation is provided, a plaintiff must file suit within two years after the cause of action accr ues). Two years from January 2013 passed without any attemp t by Miller to timely file a claim; instead, he waited until October 2017 to file suit—several years beyond the statutory deadline. The district court properly gran ted summary judgment in favor of IDA on this claim.18 IV. CONCLUSION The judgment of the district court is affirmed. We deny Miller’s “request for sanctions” contained in his repl y brief. A party seeking sanc tions is required to file a separate motion or notice. Abeyta v. City of Albuquerque , 664 F.3d 792, 797 (10th Cir. 2011). We grant IDA’s motion to seal and to strike the attachment to Miller’s opening brief titled “Report on Institu te for Defense Analyses Fraud, Illegal Actions, and Abuse of FFRDC Quasi-Governme nt Powers.” The attachment was not part of the record below; instead, Mille r cobbled it together from confidential and proprietary information pr oduced in discovery. Due to the nature of IDA’s work, the di strict court entered a protective order during the litigation to prevent the parties fr om sharing or using materials defined as “proprietary” and “confidential” for any pu rpose except preparation for trial unless otherwise authorized by the disclosing party or the court. Despite the order, Miller made clear his intention to publicly disseminate th e confidential information contained in the attachment. In anticipat ion of Miller’s unauthorized disclosure, and while this appeal was pending, IDA returned to district court and obtained a further order instructing Miller not to violate th e terms of the protec tive order. IDA was prescient, because the attach ment to Miller’s opening brie f contains the information the district court ordered s hould not be disclosed. Miller’s attachment to his openi ng brief is ordered sealed. See AST Sports Sci., Inc. v. CLF Distribution Ltd ., 514 F.3d 1054, 1057 n.1 (10th Cir. 2008) (granting motion to seal in order to comply with the district cour t’s protective order).19 Further, Miller’s attach ment is stricken. See United States v. Kennedy , 225 F.3d 1187, 1191 (10th Cir. 2000) (holding this court does not generally consider material outside the district court record unless it is necessary to “‘truly disclose what occurred in the district court’ ”) (quoting Fed. R. App. P. 10(e) (brackets omitted)). Further, Miller’s response to IDA’s motion to seal, which was provisionally sealed, should remain sealed. In the final paragraph of Miller’s re sponse to IDA’s motion to strike, he writes: “[I]f the Court agrees with me that IDA has lied about the evidence being proprietary and confidential, and the evidence and argume nts not part of the 10th Circuit Court, I formally request Cour t action to punish and sanction IDA for deliberate lying to the Court.” Aplt. Resp. to Mot. to Strike Attach. and Request for Sanctions for IDA Submission of Lies to th e Court at 2. We deny Miller’s request because he did not file a sepa rate motion for sanctions. See Abeyta , 664 F.3d at 797.

Entered for the Court

Terrence L. O’Brien Circuit Judge