NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 1 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAURA C. FENIMORE, an individual; No. 23-35245 BRIAN HUBBLE, an individual, D.C. No. 6:20-cv-01844-AA Plaintiffs-Appellants,

v. MEMORANDUM*

LANE COUNTY REPUBLICAN

CENTRAL COMMITTEE, DBA Lane County Republican Party, an Oregon County Central Committee; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Argued and Submitted June 6, 2024 Portland, Oregon

Before: GRABER, RAWLINSON, and SUNG, Circuit Judges. Partial Dissent by Judge GRABER.

Laura Fenimore and Brian Hubble appeal the district court’s Rule 12(b)(6)

dismissal of their complaint against the Lane County Republican Central

Committee (“LCRCC”), which sought relief under the Americans with Disabilities

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Act of 1990 (“ADA”). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

1. We agree with the district court that Plaintiffs have failed to state a claim

under Title II of the ADA because LCRCC is not a “public entity.” The ADA

defines “public entity” to mean, in relevant part, “any State or local government,”

or “any department, agency, special purpose district, or other instrumentality of a

State or States or local government.” 42 U.S.C. § 12131(1)(A)-(B). Plaintiffs

contend that LCRCC is an instrumentality of the state of Oregon. The ADA does

not define “instrumentality,” so Plaintiffs rely on the Department of Justice’s ADA

Title II Technical Assistance Manual. According to the Manual, in cases where “it

is difficult to determine whether a particular entity that is providing a public

service . . . is in fact a public entity,” such as “[w]here an entity appears to have

both public and private features,” “it is necessary to examine the relationship

between the entity and governmental unit to determine whether the entity is public

or private.” ADA Title II Technical Assistance Manual, § II-1.2000, available at

https://archive.ada.gov/taman2.htm#II-1.2000. Further, the Manual provides that

factors “to be considered in this determination include”: “(1) Whether the entity is

operated with public funds; (2) Whether the entity’s employees are considered

government employees; (3) Whether the entity receives significant assistance from

the government by provision of property or equipment; and (4) Whether the entity

2 is governed by an independent board selected by members of a private

organization or a board elected by the voters or appointed by elected officials.” Id.

Assuming the Manual is persuasive authority, the factors weigh heavily

against concluding that LCRCC is an instrumentality of the state.

(1) LCRCC is not operated with public funds.

(2) LCRCC is composed of precinct committeepersons. Or. Rev. Stat. §

248.031 (“The precinct committeepersons of the county shall constitute the county

central committee of their party.”). “A precinct committeeperson is not considered

a public officer.” Or. Rev. Stat. § 248.015(7). Rather, precinct committeepersons

“shall be treated as directors of nonprofit corporations for liability for all matters

relating to the political party.” Or. Rev. Stat. § 248.004(4).

(3) Plaintiffs note that precinct committeepersons are elected through a

government-run election process, but they do not allege that LCRCC receives

significant assistance from the government by provision of property or equipment.

(4) A county central committee like LCRCC is governed by a board of

precinct committeepersons. Precinct committeepersons for a particular political

party are elected, but only by individuals who are registered to vote as members of

that political party, not voters generally. Or. Rev. Stat. § 248.015(1). Thus, we

agree with the district court that LCRCC is not governed by a board elected by “the

voters” or appointed by elected officials.

3 We also note that, in Oregon, the county and state central committees of

each major political party are, respectively, “the highest party authority” in county

and state political party matters. Or. Rev. Stat. §§ 248.031; 248.072. Historically,

political parties are private, voluntary associations. See San Francisco Cnty.

Democratic Cent. Comm. v. Eu, 826 F.2d 814, 819 (9th Cir. 1987), aff’d, 489 U.S.

214, 233 (1989). Consistent with that history, Oregon law expressly provides that

“a major or minor political party shall be treated for purposes of contractual, tort or

other liability as a nonprofit corporation.” Or. Rev. Stat. § 248.004(2). And,

political parties may opt out of state regulation. Or. Rev. Stat. § 248.007(2).

Considering the totality of the circumstances, we conclude that LCRCC is not an

instrumentality of the state, and therefore, not a public entity under the ADA.

2. We also agree with the district court that Plaintiffs have failed to state a

claim under Title III because the meeting place at issue is not a “place of public

accommodation.” 42 U.S.C. § 12182(a). Under Title III, a place of public

accommodation is “a facility operated by a private entity whose operations affect

commerce and fall within at least one of” twelve enumerated categories. 42 U.S.C.

§ 12181(7); 28 C.F.R. § 36.104. Plaintiffs concede that the meeting place at issue

is an LCRCC member’s private residential property. Plaintiffs contend that the

owner, by providing a venue for the LCRCC meeting, caused this property to

become “an auditorium, convention center, lecture hall, or other place of public

4 gathering.” Id. § 12181(7)(D). Plaintiffs, however, do not cite any legal authority

suggesting that providing a venue for one meeting is enough to convert a private

residence into a place of public accommodation.

3. The district court did not abuse its discretion in denying Fenimore leave to

amend because amendment would be futile. See Platt Elec. Supply, Inc. v. EOFF

Elec., Inc., 522 F.3d 1049, 1054 (9th Cir. 2008).

4. The district court properly dismissed Fenimore’s Title V retaliation claim

under 42 U.S.C. § 12203(a) and (b) because LCRCC is neither a public entity

under Title II nor a place of public accommodation under Title III.

AFFIRMED.

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FILED

Fenimore v. Lane Cnty. Republican Cent. Comm., No. 23-35245 JUL 1 2024

MOLLY C. DWYER, CLERK

GRABER, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS

I respectfully dissent from the holding that Fenimore failed to state a claim

under Title II of the ADA.

1. In my view, LCRCC is a public entity for purposes of Title II, which

provides that “no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subjected to discrimination

by any such entity.” 42 U.S.C. § 12132. A “public entity” is defined to mean,

among other things, “any . . . special purpose district, or other instrumentality of a

State . . .or local government.” 42 U.S.C. § 12131(1)(B).

Although we have not addressed the meaning and scope of “instrumentality”

for purposes of Title II, other circuits have held that an entity is an instrumentality

of the government if that entity is “created by” or a “creature of” the state or a local

government. See, e.g., Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010)

(holding that “the term ‘instrumentality of a State’ refers to governmental units or

units created by them”); see also Green v. City of New York, 465 F.3d 65, 79 (2d

Cir. 2006) (holding that Congress intended “instrumentality” to refer to “a creature

of a state or municipality”). LCRCC fits squarely within the definition of “instrumentality.” A county

central committee is an entity that is created entirely by Oregon law. Or. Rev. Stat.

§ 248.031. The precinct committeepersons who constitute a county central

committee are elected pursuant to Oregon law. Or. Rev. Stat. § 248.015. Oregon

law regulates a county central committee’s organizational meetings, property

transfers, and elections of committee officers and executive committees. Or. Rev.

Stat. §§ 248.033, .035, .043, .045, .075. In other words, without the relevant

statutes, LCRCC would not exist. LCRCC, therefore, is an “instrumentality”

because it was “created by,” or is “a creature of,” the state. See Edison, 604 F.3d at

1310 (holding that “instrumentality of a State” refers to units “created by” a state).

And as an instrumentality of the state, LCRCC is a public entity under Title II. 42

U.S.C. § 12131(1)(B).

Furthermore, LCRCC serves a public purpose. It functions as “the highest

party authority in county party matters” and has broad authority to adopt rules and

regulations for any matter of party government within the county. Or. Rev. Stat.

§ 248.031. Indeed, the agenda of the LCRCC meeting that Plaintiffs hoped to

attend included voting on bylaw changes and staffing committees to further

LCRCC’s work toward the November 2020 elections. Uninhibited engagement

with the political process goes to the heart of the ADA: Congress passed the ADA

to address the diminished ability of individuals with disabilities to participate fully

2 in all aspects of society, including “critical areas” like voting. 42 U.S.C.

§ 12101(a)(1), (3). Title II prohibits discrimination against an individual with a

disability by an entity that has a public purpose, which is what Fenimore alleges

occurred here. 42 U.S.C. § 12132. Because Fenimore alleges sufficient facts to

state a claim against LCRCC as a public entity under Title II, I would reverse the

district court’s dismissal.

The majority disposition’s reasoning is unpersuasive. First, it should not

matter that voters from one political party elect the officers of a county central

committee. Voting in the election of boards of other public entities similarly is

limited to a subset of the general voting public. Voters who elect the board of a

park and recreation district in Oregon, for example, must reside in a certain

geographic area. Or. Rev. Stat. § 266.330(1)(b).

Second, the majority disposition’s discussion of political parties is irrelevant

to whether LCRCC is a public entity. The county central committee of Lane

County, not the Republican party, is the defendant in this action. LCRCC is a

state-created entity that is entirely separate from the Republican party. Or. Rev.

Stat. § 248.031. It is therefore immaterial that Oregon law provides that a political

party shall be treated as a nonprofit corporation, Or. Rev. Stat. § 248.004(1), and

that political parties may opt out of state regulation, Or. Rev. Stat. § 248.007(2).

Moreover, the fact that the Republican party could opt out of the statutory

3 opportunity to create a county central committee underscores that the two are not

the same—the Republican party could exist as wholly independent from a county

central committee. Id.

2. Because I would hold that LCRCC is a public entity under Title II, I

would not reach the Title III question.

3. I concur in the majority disposition that the district court properly denied

leave to amend.

4. Finally, I agree with the majority disposition’s stated principle that a

plaintiff cannot maintain a Title V retaliation claim if the relevant entity is not

covered by the ADA, although I disagree with its application. Title V prohibits (1)

retaliating against individuals who oppose an act or practice made unlawful under

the ADA, 42 U.S.C. § 12203(a); and (2) coercing, intimidating, threatening, or

interfering with an individual for exercising, or aiding another individual exercise,

any right granted or protected by the ADA, 42 U.S.C. § 12203(b). By the plain

text of the statute, for Title V to apply, there must be a preexisting act or practice

made unlawful by the ADA or a statutory right that the ADA protects. If an entity

is not covered by the ADA under Titles I, II, or III, then, there can be no viable

Title V claim. See Baird ex rel. Baird v. Rose, 192 F.3d 462, 464, 472 (4th Cir.

1999) (holding that the district court properly dismissed a Title V claim because

the parties were not covered under Title II).

4 Here, because I would hold that LCRCC is liable under Title II, I would hold

that Plaintiffs alleged facts sufficient to state claims under Title V.

5