249 F3d 1085 Kevin Michael Matthews v. Oregon State Board of Higher Education David Frohnmayer

249 F.3d 1085 (9th Cir. 2001)

KEVIN MICHAEL MATTHEWS, Plaintiff-Appellant,
OREGON STATE BOARD OF HIGHER EDUCATION, acting by and through University of Oregon; DAVID FROHNMAYER; JOHN MOSELEY; LORRAINEDAVIS, in their official and individual capacities, Defendants-Appellees.
Kevin Michael Matthews, Plaintiff-Appellant,
The State of Oregon, acting by and through the University of Oregon; John T. Moseley; Lorraine Davis; Jack M. Rice; Robert Z. Melnick; Michael
D. Utsey; George Z. Brown; Ronald Kellet, in their official and individual capacities, Defendants-Appellees.

Nos. 98-36218, 99-35601.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2000
Submission Withdrawn 98-36218 Aug. 14, 2000
Submission Withdrawn 99-35601 July 18, 2000
Both cases resubmitted May 1, 2001
Filed May 9, 2001

Donna Meredith Matthews, Eugene, Oregon, for the plaintiff-appellant.

Christina Chute, (98-36218), Richard Wasserman (99-35601), Assistant Attorneys General, Salem, Oregon, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief District Judge, Presiding. D.C. Nos. CV-98-06119-MRH, CV-98-06215-TMC.

Before: GOODWIN, GRABER, and W. FLETCHER, Circuit Judges.


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Kevin Matthews appeals the District Court's summary judgment in favor of the University of Oregon in his action for damages and equitable relief. Matthews claims that the University violated state and federal law in denying him indefinite tenure upon the completion of his sixth year as an annual appointee to the faculty. After the correctness of the summary judgment had been briefed and argued in this court, we certified, pursuant to Or. Rev. Stat. 28.2000-28.255 and Or. R. App. P. 12.20, a question of state law to the Oregon Supreme Court. See Matthews v. Oregon State Bd. of Higher Educ., 220 F.3d 1165 (9th Cir. 2000).


A companion appeal, Matthews v. Oregon, 249 F.3d 1085, has been pending, with submission deferred, awaiting the outcome of this appeal. We now consolidate the two appeals and treat both as controlled by Oregon law as declared by the Supreme Court of that state.


On April 23, 2001, after briefing and argument before the Oregon Supreme Court, that Court filed its opinion on the certified question, and we now vacate the stay which held the appeal in No. 98-36218 in abeyance pending the decision of the state law questions by the highest court of the State of Oregon. See Matthews v. Oregon State Bd. of Higher Educ., 332 Ore. 31, 22 P.3d 754 (2001). Pursuant to the opinion of the Oregon Supreme Court on the relevant questions of state law, and to our own judgment on questions of federal law, we affirm the summary judgment of the District Court in case No. 98-36218.


Because the substantive issues in Case No. 99-35601 are identical to the issues decided in case No. 98-36218, the claims in the former are precluded by the decision in the latter. The judgment in 99-35601 is therefore also affirmed as correct under Oregon law.


Because the two appeals are not categorically frivolous, and one of them at least raised justiciable questions of state law, we decline to award attorney fees to the State of Oregon or its officers and agencies as prevailing parties.


Both summary judgments are AFFIRMED.