Tyler Miller, an individual v. Steve Watson, an individual

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TYLER MILLER, an individual,
Plaintiff-Appellant,
v.
STEVE WATSON, an individual,
Defendant-Appellee.
No. 20-35922
D.C. No. 3:18-cv-00562-SB
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Stacie F. Beckerman, Magistrate Judge, Presiding
Argued and Submitted December 8, 2021
Seattle, Washington
Before: McKEOWN and BADE, Circuit Judges, and FITZWATER,** District
Judge.
Tyler Miller appeals from the district court’s entry of summary judgment
against his Oregon state law claim for whistleblower retaliation. We have
jurisdiction, 28 U.S.C. § 1291, and affirm in part, reverse in part, and remand for
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
FILED
DEC 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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further proceedings.
Miller’s claim that he was terminated in violation of Or. Rev. Stat.
§ 659A.203 was timely. Under federal law, a claim for unlawful termination
accrues on the day the employee is informed of their impending discharge. See
Chardon v. Fernandez, 454 U.S. 6, 7–8 (1981) (per curiam); Del. State Coll. v.
Ricks, 449 U.S. 250, 258 (1980). Miller’s claim, however, is governed by Oregon
law. See Bass v. First Pac. Networks, Inc., 219 F.3d 1052, 1055 n.2 (9th Cir.
2000). The Oregon Supreme Court has expressly rejected the federal rule in the
analogous context of common-law wrongful-discharge claims, reasoning that
“[t]he legal injury in a wrongful-discharge claim is the discharge” and not the
notice of discharge. Stupek v. Wyle Labs. Corp., 963 P.2d 678, 681 (Or. 1998); see
id. at 682 & n.5 (holding that cause of action did not accrue until the “employment
relationship conclusively ended,” recognizing “split in state and federal law on this
issue,” and joining “other states that have similar claim-accrual standards”). Faced
with this “clear state court exposition of a controlling principle,” Takahashi v.
Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir. 1980), we conclude that
Miller’s claim for unlawful termination accrued on the day of his discharge from
employment, April 2, 2017, and that his complaint, filed on April 2, 2018, was
timely. See Or. Rev. Stat. § 659A.875 (imposing a one-year limitations period).
We consequently deny Miller’s motion to certify this question to the Oregon

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Supreme Court.
We will not consider Miller’s argument, raised for the first time on appeal,
that his former employer’s sitting for an interview with Oregon State Police on
April 5, 2017 constituted a second, separate injury within the limitations period.
See Rothman v. Hosp. Serv. of S. Cal., 510 F.2d 956, 960 (9th Cir. 1975).
Costs shall be awarded to Miller.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
MOTION TO CERTIFY DENIED.

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