FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOIS SHARER; STEVEN HUMBER, 

Plaintiffs-Appellants, No. 08-35396

v. D.C. No.  3:04-CV-01690-BR STATE OF OREGON; PETER OZANNE;

PETER GARTLAN, OPINION

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted

June 3, 2009—Portland, Oregon

Filed September 21, 2009

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

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COUNSEL

Stephen L. Brischetto, Portland, Oregon, for the plaintiffsappellants.

John R. Kroger, Attorney General; Rolf C. Moan, Acting

Solicitor General; Leigh A. Salmon (argued), Assistant Attorney General, Salem, Oregon, for defendants-appellees. 

OPINION

FISHER, Circuit Judge:

Lois Sharer appeals from the district court’s grant of summary judgment to defendants on her disability discrimination

claim under section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794. The district court determined that Oregon’s

Office of Public Defense Services (“OPDS”) was not a “program or activity receiving Federal financial assistance” within

the meaning of section 504 during the period of alleged discrimination. Id. § 794(a). Sharer also appeals the district

court’s denial of her claim under the Family and Medical

Leave Act (“FMLA”), 29 U.S.C. §§ 2601-54. We have jurisdiction under 28 U.S.C. § 1291, we review de novo a grant of

summary judgment, Mendez v. County of San Bernardino,

540 F.3d 1109, 1123 (9th Cir. 2008), and we affirm.1

1We address appellant Steven Humber’s appeal in a concurrently filed

memorandum disposition. 

13696 SHARER v. STATE OF OREGON
I. Background

Sharer was employed as a legal assistant for the OPDS and

its predecessor agency, the Oregon Public Defender Office,

from 1999 until May 2003. She alleged that she was a disabled individual with post-traumatic stress disorder, anxiety

disorder, depression and agoraphobia. Sharer claimed that

defendants State of Oregon and two of her supervisors, Peter

Ozanne and Peter Gartlan, failed to provide her with reasonable accommodation, terminated her because of an actual or

perceived disability and terminated her for asserting her federally protected rights to be free from discrimination on the

basis of disability. She alleged violations of section 504 and

the FMLA, as well as other claims not at issue on this appeal.

The district court granted defendants’ motion for summary

judgment on Sharer’s section 504 claim, concluding that she

failed to meet her burden of establishing that OPDS was a

“program or activity receiving Federal financial assistance.”

The court also granted summary judgment on her FMLA

claim. Sharer appealed.

II. Section 504

[1] Section 504 provides that “[n]o otherwise qualified

individual with a disability . . . shall, solely by reason of her

or his disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a) (emphasis added). Defendants

argue that Sharer’s section 504 claim fails because OPDS was

not a “program or activity receiving Federal financial assistance” at the time of the alleged discrimination. We agree.

[2] Section 504 defines “program or activity” to include

“all the operations of . . . a department, agency, special purpose district, or other instrumentality of a State or of a local

government.” Id. § 794(b)(1)(A). Congress adopted this broad

definition in response to Consolidated Rail Corp. v. Darrone,

SHARER v. STATE OF OREGON 13697
465 U.S. 624, 635-36 (1984), where the Court narrowly construed “program or activity” to reach “only the specific parts

of a recipient’s operation which directly benefited from federal assistance.” Haybarger v. Lawrence County Adult Prob.

& Parole, 551 F.3d 193, 199 (3d Cir. 2008); see also Civil

Rights Restoration Act of 1987, Pub. L. No. 100-259, §§ 2, 4,

102 Stat. 28 (1988). To honor Congress’ intent, we “interpret[ ] ‘program or activity’ broadly.” Haybarger, 551 F.3d at

200.

[3] At the same time, “to avoid deciding difficult constitutional questions where the text fairly admits of a less problematic construction,” Pub. Citizen v. DOJ, 491 U.S. 440, 455

(1989), we interpret “program or activity” to place meaningful constraints on section 504’s scope. The “program or activity” language has constitutional significance because it limits

section 504’s reach so that it “does not encompass all the

activities of the State,” thus ensuring Congress acted within

its Spending Clause power “when it conditioned the receipt of

[section 504] funds on a waiver of sovereign immunity.” Lovell v. Chandler, 303 F.3d 1039, 1051 (9th Cir. 2002); see also

Jim C. v. United States, 235 F.3d 1079, 1081 (8th Cir. 2000)

(en banc) (explaining section 504 does not violate the Spending Clause because “[a] State and its instrumentalities can

avoid Section 504’s waiver requirement on a piecemeal basis,

by simply accepting federal funds for some departments and

declining them for others”). Mindful of these considerations,

we conclude OPDS is not a “program or activity receiving

Federal financial assistance,” and the State therefore did not

waive immunity for claims brought against the agency under

section 504.

A. Oregon’s “Judicial Department”

Whether a particular state entity is a program or activity

receiving federal financial assistance within the meaning of

section 504, though itself “a question of federal law[,] . . . can

be answered only after considering the provisions of state law

13698 SHARER v. STATE OF OREGON
that define the agency’s character.” Regents of Univ. of Cal.

v. Doe, 519 U.S. 425, 429 n.5 (1997) (discussing whether an

agency is “an arm of the State” for Eleventh Amendment sovereign immunity purposes); see also Haybarger, 551 F.3d at

201 (“[t]hough not dispositive, a State’s characterization of an

entity under state law is significant” in determining whether

that entity is a “program or activity” under section 504).

Therefore, we look to the state constitutional and statutory

regime governing OPDS to determine whether it is, for section 504 purposes, a “program or activity receiving Federal

financial assistance.”

[4] Sharer contends that OPDS, together with Oregon’s

state courts and their administrative apparatus, comprise a

uniform “judicial department” organized under Article III of

the Oregon Constitution. This article provides that “[t]he

powers of Government shall be divided into three separate

[sic] departments, the Legislative, the Executive, including

the administrative, and the Judicial.” Or. Const. art. III, § 1

(emphasis added). Defendants concede that Oregon’s judicial

branch of government receives federal financial assistance. It

follows from this concession that, insofar as OPDS is organized under the State’s judicial branch, and that branch should

be considered a unitary “department” or “agency” for section

504 purposes, Sharer would be entitled to pursue her disability discrimination claim. See 29 U.S.C. § 794(b)(1)(A).

[5] During the relevant period, OPDS was located within

the judicial branch of Oregon’s government. A 2001 Oregon

session law reorganizing the State’s public defender system

established a Public Defense Services Commission

(“Commission”) “in the judicial branch of state government,”

Or. Rev. Stat. § 151.213(1), and charged the Commission

with establishing the OPDS “to carry out the administrative

policies and procedures for the public defense system,” id.

§§ 151.216(1)(b), 151.211(5). See 2001 Or. Laws ch. 962.2

2Although portions of the 2001 session law did not become effective

until October 1, 2003, all portions relevant to this analysis were operative

as of October 1, 2001. See 2001 Or. Laws ch. 962, § 15. 

SHARER v. STATE OF OREGON 13699
Thus, OPDS was established within Oregon’s “judicial

department” — that is, the judicial branch of Oregon’s government — as the administrative arm of the Commission.

It does not follow, however, that Oregon’s judicial “department” of government comprises a unitary “department” or

“agency” within the meaning of section 504. Oregon’s statutes draw a distinction between the State’s “judicial department” (lower case), which refers to the judicial branch of

government in its entirety, and the “Judicial Department”

(upper case), which refers to the predominant administrative

agency within the judicial branch. Section 1.002(1), for example, provides that the Oregon Supreme Court “is the highest

judicial tribunal of the judicial department of government in

this state,” but that the Chief Justice may “[s]et staffing levels

for all courts of the state operating under the Judicial Department and for all operations in the Judicial Department,”

“[e]stablish budgets for the Judicial Department and all courts

operating under the Judicial Department” and “[a]ssign or

reassign all court staff of courts operating under the Judicial

Department.” Or. Rev. Stat. § 1.002(1) (emphasis added).

Similarly, section 8.125 provides that “[t]he State Court

Administrator shall, to the extent directed by the Chief Justice

of the Supreme Court . . . [s]upervise and maintain the law

libraries of the judicial department of government of this

state,” but that he or she shall “[e]nter into contracts on behalf

of the Judicial Department.” Id. § 8.125.3 Oregon’s statutes

also make clear that the Commission and the Judicial Department are distinct administrative entities. A statute pertaining

to the State’s financial administration, for example, defines

“state agency” to include “the courts and their officers and

committees . . ., at their option,” and — separately — “the

Public Defense Services Commission, at the option of the

3Reenforcing this distinction, the Oregon Governor’s 2005-2007 recommended budget for the state, defines the “Judicial Department” to include,

among other things, the operations of the courts and the State Court

Administrator, but not the Commission. 

13700 SHARER v. STATE OF OREGON
commission.” Id. § 291.030. Another statute authorizes the

state treasurer to establish “procedures for the efficient handling of cash and cash equivalents under the control of the . . .

the Judicial Department” and — again, separately — “the

Public Defense Services Commission.” Id. § 293.875(1).

Because the Commission (of which OPDS is a subunit) and

the Judicial Department are distinct entities within Oregon’s

judicial branch, we next must consider whether these entities

are sufficiently independent from one another to constitute

separate “department[s]” or “agenc[ies]” under section 504.

Cf. Haybarger, 551 F.3d at 202 (holding that parole officer

employed by a “subunit” of a Pennsylvania state judicial district could bring a claim under section 504 because a different

subunit within the district received federal funds); Thomlison

v. City of Omaha, 63 F.3d 786, 789 (8th Cir. 1995) (holding

that an employee of public safety department’s “Fire Division” could bring a section 504 claim where the department’s

“Police Division” received federal funds). Oregon’s statutes

demonstrate that these entities, though part of the same branch

of government, have distinct funding sources and administrative apparatuses. With regard to their funding, the Commission is financed through an account in the State’s “General

Fund,” Or. Rev. Stat. § 151.225(1), whereas the Judicial

Department is financed through an “Operating Account” in

the State Treasury that is “separate and distinct from the General Fund.” Id. § 1.009(1). In terms of their administration, the

Chief Justice of the Oregon Supreme Court is “the administrative head of the judicial department of government,” including OPDS. Id. § 1.002(1). The Chief Justice’s statutory

authority over the Commission, however, is considerably

more circumscribed than his authority over the Judicial

Department. The Chief Justice is authorized to appoint the

seven members of Commission, and serves as a nonvoting, ex

officio member. See id. § 151.213(2). “Except for the appointment or removal of commission members,” however, “the

commission and employees of the commission are not subject

to the exercise of administrative authority and supervision by

SHARER v. STATE OF OREGON 13701
the Chief Justice of the Supreme Court as the administrative

head of the Judicial Department.” Id. § 151.213(1). By contrast, the Chief Justice’s broad authority over the Judicial

Department includes the power to establish its budgets, set its

staffing levels and “[a]ssign or reassign all court staff.” Id.

§ 1.002(1). 

[6] In light of the Judicial Department and Commission’s

distinct funding sources and administration, we conclude that

the entities are not “linked . . . by virtue of their status under

[Oregon] law.” Haybarger, 551 F.3d at 202. Unlike the “subunits” of government considered in Haybarger, the Commission is “independent” from the Judicial Department in terms

of its administrative structure, and the judicial branch’s federal funds “are [not] imputed” to the Commission. Id. We

therefore hold that the Commission — and hence OPDS — is

not a “program or activity receiving Federal financial assistance” within the meaning of section 504 simply by virtue of

the Judicial Department’s receipt of federal funds.

B. Financial Assistance to OPDS

[7] Sharer further argues that, regardless of whether OPDS

and the Judicial Department are distinct departments or agencies under section 504, OPDS itself received two kinds of federal financial assistance. First, Sharer contends that she was

initially hired in November 1997 by OPDS’s predecessor

agency through a program under which Oregon’s Department

of Vocational Rehabilitation (“DVR”) subsidized her wages

using federal funds. Section 504’s reach, however, encompasses a department or agency receiving federal funds in

“only those periods during which the funds are accepted.”

Garcia v. SUNY Health Scis. Ctr., 280 F.3d 98, 113 n.2 (2d

Cir. 2001). Therefore, the circumstances of Sharer’s hiring in

1997 are irrelevant to whether she can bring a section 504

claim based on discrimination that allegedly occurred in 2003.4

4Sharer testified that she was aware of another employee OPDS hired

through the federally funded DVR program, but she did not state the

13702 SHARER v. STATE OF OREGON
[8] Second, Sharer contends OPDS received federal financial assistance by relying on the Judicial Department (which

defendants concede received federal financial assistance) to

subsidize the costs of ordering transcripts for indigent defendants. Sharer is correct that, for purposes of section 504,

“[f]ederal financial assistance can be direct or indirect.” Herman v. United Bhd. of Carpenters, 60 F.3d 1375, 1381 (9th

Cir. 1995). But while “[e]ntities that receive federal assistance

. . . through an intermediary[ ] are recipients” under section

504, “entities that only benefit economically from federal

assistance are not.” NCAA v. Smith, 525 U.S. 459, 468 (1999)

(holding that the NCAA’s acceptance of dues from colleges

receiving federal funding did not render the NCAA liable

under Title IX); see id. at 466 n.3 (noting scope of the federal

funding requirements of “several other federal antidiscrimination measures,” including section 504, “is defined in nearly

identical terms” to the Title IX requirement). 

[9] Here, there is no evidence that the Judicial Department

financed OPDS’s provision of transcripts “with federal funds

earmarked for that purpose.” Id. at 468. Indeed, under the statutory framework operative during the relevant period, the

costs of indigent defendants’ transcripts were “paid by the

state from funds for that purpose.” Or. Rev. Stat. § 138.500(5)

(1999).5 We therefore conclude that, at most, OPDS “only

benefit[s] economically from federal assistance” in receiving

period during which the other employee was hired. Therefore, this testimony likewise fails to establish that Oregon waived immunity with respect

to OPDS during the period of Sharer’s alleged discrimination. 

5Oregon Revised Statute § 138.500(5) was amended by the 2001 session law establishing the Commission such that “[t]he cost of the transcript preparation” for indigent defendants is now “paid for as provided by

the policies, procedures, standards and guidelines of the Public Defense

Services Commission.” See 2001 Or. Laws ch. 962, § 29 (codified at Or.

Rev. Stat. § 138.500(3)(b)). This provision, however did not become operative until October 1, 2003, subsequent to the period of Sharer’s alleged

discrimination. See id. § 15. 

SHARER v. STATE OF OREGON 13703
aid from Oregon’s Judicial Department for the provision of

transcripts.

[10] Accordingly, we hold that, notwithstanding defendants’ concession that the Judicial Department received federal funds, Sharer was not “subjected to discrimination under

any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

III. Family and Medical Leave Act

[11] Sharer also appeals from the district court’s grant of

summary judgment to defendants on her claim under the Family and Medical Leave Act, 29 U.S.C. §§ 2601-54. We conclude that Sharer’s FMLA claim is without merit. Even

assuming she could be found to have invoked her FMLA

rights, the record shows her claim to be without merit. We

therefore affirm the district court’s entry of summary judgment on that claim. 

AFFIRMED.

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