Levorsen v. Octapharma Plasma , 828 F.3d 1227 ( 2016 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 12, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
BRENT LEVORSEN,
Plaintiff - Appellant,
v. No. 14-4162
OCTAPHARMA PLASMA, INC.,
Defendant - Appellee.
UNITED STATES OF AMERICA;
PLASMA PROTEIN THERAPEUTICS
ASSOCIATION,
Amici Curiae.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:14-CV-00325-DBP)
_________________________________
Ryan C. Downer, Relman, Dane & Colfax PLLC, Washington, D. C. (Sasha Samberg-
Champion and Michael Allen, Relman, Dane & Colfax PLLC, Washington, D. C., and
Aaron M. Kinikini Disability Law Center, Salt Lake City, Utah, with him on the briefs),
for Plaintiff-Appellant.
Cary B. Davis, Robinson Bradshaw & Hinson, P.A., Charlotte, N.C. (Charles E. Johnson,
Robinson Bradshaw & Hinson, P.A., Charlotte, N.C., and Lisa A. Yerkovich, and Liesel
Brand Stevens, Ray Quinney & Nebeker, Salt Lake City, Utah, with her on the brief), for
Defendant-Appellee.
Nathaniel S. Pollock, U.S. Department of Justice, Washington, D.C., (Vanita Gupta,
Principal Deputy Assistant Attorney General, and Tovah R. Calderon, U.S. Department
of Justice, Washington, D.C., with him on the brief) for United States of America,
Amicus Curiae.
Joshua Penrod and John T. Delacourt, Plasma Protein Therapeutics Association,
Washington, D. C.; Joseph A. Boyle, Kelley Drye & Warren, LLP, Parsippany, New
Jersey, filed a brief for Plasma Protein Therapeutics Association, Amicus Curiae.
_________________________________
Before BRISCOE, HOLMES, and MORITZ, Circuit Judges.
_________________________________
MORITZ, Circuit Judge.
_________________________________
Some statutes are so “enigmatic” that we must resort to diagraming their
clauses in an effort to discern their meanings. See, e.g., United States v. Rentz, 777
F.3d 1105, 1106, 1109 (10th Cir. 2015) (parsing 18 U.S.C. § 924(c)(1)(A)’s “bramble
of prepositional phrases”). Others are so abstruse that we must employ canons of
statutory interpretation to define their terms. See, e.g., United States v. Brune, 767
F.3d 1009, 1022-23 (10th Cir. 2014), cert. denied, 135 S. Ct. 1469 (2015) (applying
canon of ejusdem generis to 18 U.S.C. § 2252A(a)(5)(B)). Still others are so
ambiguous that we must comb the annals of legislative history to divine Congress’
intent. See, e.g., Woods v. Standard Ins. Co., 771 F.3d 1257, 1265-66 (10th Cir.
2014) (examining legislative history because meaning of 28 U.S.C. § 1332(d)(4)(A)
wasn’t apparent from its plain language).
But the statute we are tasked with interpreting here, 42 U.S.C. § 12181(7)(F),
isn’t one of those statutes. Section 12181(7)(F) makes “service establishments”
public accommodations for purposes of Title III of the Americans with Disabilities
2
Act (ADA). Title III, in turn, generally prohibits public accommodations from
discriminating against individuals on the basis of disability. See 42 U.S.C.
§ 12182(a). Here, the district court1 concluded that plasma-donation centers (PDCs)
aren’t service establishments because, unlike § 12181(7)(F)’s enumerated examples,
PDCs don’t provide a service to the public in exchange for a fee.
We find this superficial distinction irrelevant. Under the plain language of
§ 12181(7)(F), a PDC is a “service establishment” for two exceedingly simple
reasons: It’s an establishment. And it provides a service. This straightforward
conclusion is entirely consistent with the goal and purpose of Title III. Thus, we need
not look beyond the plain language of § 12181(7)(F) to determine that a PDC
constitutes a public accommodation. Because the district court erred in concluding
otherwise—and in dismissing the underlying action on that basis—we reverse and
remand for further proceedings.
BACKGROUND
Brent Levorsen suffers from various psychiatric disorders, including
borderline schizophrenia.2 For years, Levorsen has donated plasma in exchange for
money in an effort to supplement his limited income. And in May 2013, he attempted
to do just that at a Salt Lake City branch of Octapharma Plasma, Inc.
1
A magistrate judge heard the case upon the parties’ consent. See Fed. R. Civ.
P. 73.
2
We take the bulk of these facts from Levorsen’s complaint. See Cressman v.
Thompson, 719 F.3d 1139, 1152 (10th Cir. 2013) (noting that we accept the
complaint’s well-pleaded factual allegations as true at motion-to-dismiss stage).
3
Octapharma operates multiple PDCs, including the one at issue in this case. At
those facilities, Octapharma collects donors’ plasma using a process called
plasmapheresis. During that process, Octapharma draws and mechanically processes
each donor’s blood, separating and reserving the plasma before returning the red
blood cells to the donor. Octapharma pays its donors for this plasma, which it then
sells to pharmaceutical companies.
When an Octapharma employee learned that Levorsen suffers from borderline
schizophrenia, the employee became concerned that Levorsen might have a
schizophrenic episode while donating and dislodge the collecting needle, possibly
injuring himself or someone else. The employee thus advised Levorsen that he was
ineligible to donate plasma. Levorsen then provided Octapharma with a signed form
from his psychiatrists, who both indicated that Levorsen is medically suitable to
donate plasma twice a week. When Octapharma maintained its refusal to allow
Levorsen to donate, he brought this action under Title III of the ADA.
Title III generally prohibits public accommodations from discriminating
against individuals on the basis of disability. § 12182(a). For purposes of Title III,
“service establishment[s]” constitute public accommodations. § 12181(7)(F). In his
complaint, Levorsen alleged that PDCs like Octapharma are public accommodations
because they are service establishments. And he maintained that when it denied him
the opportunity to donate plasma in exchange for payment based solely on his
borderline schizophrenia, Octapharma impermissibly discriminated against him on
the basis of his disability in violation of Title III of the ADA.
4
Octapharma moved to dismiss under Fed. R. Civ. P. 12(b)(6). Octapharma
didn’t dispute that Levorsen’s borderline schizophrenia constitutes a disability for
purposes of Title III. Nor did it dispute that Octapharma prohibited Levorsen from
donating plasma based on that disability. Instead, it argued only that PDCs like
Octapharma are not public accommodations for purposes of Title III. More
specifically, Octapharma argued that PDCs are not service establishments because—
unlike § 12181(7)(F)’s enumerated entities—PDCs don’t provide a service to the
public in exchange for a fee.
The district court agreed. It reasoned that rather than accepting payment from
the public in exchange for a service that PDCs provide, PDCs instead offer payment
to the public in exchange for a service that PDCs receive. And because PDCs differ
from § 12181(7)(F)’s enumerated entities in that regard, the district court concluded
that PDCs are not service establishments. Consequently, it ruled, PDCs are not public
accommodations for purposes of Title III.3
Based on this conclusion, the district court granted Octapharma’s Rule
12(b)(6) motion and dismissed the action with prejudice. Levorsen appeals.
DISCUSSION
“Congress enacted the ADA in 1990 to remedy widespread discrimination
3
The district court also rejected Levorsen’s argument that Octapharma
constitutes a “professional office of a health care provider” under § 12181(7)(F).
Because Levorsen has abandoned this argument on appeal, we need not address it.
See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments
inadequately briefed in the opening brief are waived . . . .”).
5
against disabled individuals.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001).
To that end, § 12182(a) prohibits discrimination “on the basis of disability in the full
and equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation.” And § 12181(7)(F) clarifies
that, among other entities, the following “are considered public accommodations”: “a
laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair
service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy,
insurance office, professional office of a health care provider, hospital, or other
service establishment.”
Section 12181(7)(F)’s enumerated examples aren’t exhaustive, see 28 C.F.R.
pt. 36, app. C, at 893; rather, they serve as mere illustrations, see U.S. Dep’t of
Justice, ADA Title III Technical Assistance Manual Covering Public Accommodations
and Commercial Facilities § III-1.2000, www.ada.gov/taman3.html (last visited June
29, 2016). Moreover, courts must construe § 12181(7)(F) liberally to afford
individuals with disabilities access to the same establishments available to those
without disabilities. PGA Tour, 532 U.S. at 676-77; see also Trainor v. Apollo Metal
Specialties, Inc., 318 F.3d 976, 983 (10th Cir. 2002) (“In our review of the
antidiscrimination laws we must be mindful of their remedial purposes, and liberally
interpret their provisions to that end.” (quoting Wheeler v. Hurdman, 825 F.2d 257,
262 (10th Cir. 1987))).
Citing these dictates, Levorsen argues that the district court erred in failing to
liberally construe the term “service establishment” to encompass PDCs. According to
6
Levorsen, the district court unnecessarily employed canons of statutory interpretation
and impermissibly read into § 12181(7)(F) language that doesn’t appear there. As a
result, Levorsen asserts, the district court arrived at an unacceptably narrow
definition of “service establishment.” Instead, Levorsen argues, the district court
should have given the term “service establishment” its plain meaning and defined it
as an establishment that provides a service. And because PDCs unquestionably
satisfy this definition, he concludes, they constitute public accommodations for
purposes of Title III.
Exercising de novo review, see Smith v. United States, 561 F.3d 1090, 1098
(10th Cir. 2009), we agree.
We begin, as we must, with the plain language of § 12181(7)(F). See St.
Charles Inv. Co. v. Comm’r, 232 F.3d 773, 776 (10th Cir. 2000) (“As in all cases
requiring statutory construction, ‘we begin with the plain language of the law.’”
(quoting United States v. Morgan, 922 F.2d 1495, 1496 (10th Cir. 1991))). Under
§ 12181(7)(F), a “service establishment” is a public accommodation for purposes of
Title III. Thus, the question before us is whether, under the plain language of
§ 12181(7)(F), a PDC like Octapharma is a service establishment.
An establishment is a “place of business” or “a public or private institution
([such] as a school or hospital).” Webster’s Third New International Dictionary 778
(2002) [hereinafter Webster’s]. And a service is “conduct or performance that assists or
benefits someone or something,” or “useful labor that does not produce a tangible
commodity.” Id. at 2075. Accordingly, we conclude that a service establishment is a
7
place of business or a public or private institution that, by its conduct or performance,
assists or benefits someone or something or provides useful labor without producing a
tangible good for a customer or client. See Brune, 767 F.3d at 1022 (suggesting that in
“many instances, simply resorting to a dictionary definition” of a statute’s terms may be
“helpful”)4; In re Hamilton Creek Metro. Dist., 143 F.3d 1381, 1385 (10th Cir. 1998)
(noting that words’ ordinary meanings “may be found by aid of commonly accepted
dictionary definitions”). In other words, a service establishment is—unsurprisingly—an
establishment that provides a service.
Octapharma resists this straightforward conclusion. It insists that rather than
simply combining the ordinary meanings of the terms “service” and “establishment,” we
must instead apply two canons of statutory interpretation: ejusdem generis and noscitur a
sociis. These canons counsel, respectively, that (1) “when a general term follows a
specific one, the general term should be understood as a reference to subjects akin to the
one with specific enumeration,” Norfolk & W. Ry. Co. v. Am. Train Dispatchers’ Ass’n,
499 U.S. 117, 129 (1991), and (2) “a word is known by the company it keeps,” Jarecki v.
G. D. Searle & Co., 367 U.S. 303, 307 (1961).
4
The dissent cites Brune as an example of a case in which we looked beyond
the dictionary definition of the term at issue to canons of statutory construction. See
Dissent 6. But we did so only because that term’s multiple dictionary definitions
“preclude[d] an obvious, unitary usage.” Brune, 767 F.3d at 1022. Here, on the other
hand, everyone seems to agree on “an obvious, unitary” definition of the term
“service.” Id.; see Aplt. Br. 13; Aplee. Br. 16; Dissent 12 n.5. And neither
Octapharma nor the dissent offers a definition of “establishment” that is at odds with
the one we arrive at here. Thus, we find Brune distinguishable.
8
As the district court pointed out below, the specific entities listed in
§ 12181(7)(F)—laundromats, dry-cleaners, banks, barber shops, beauty shops, travel
services, shoe repair services, funeral parlors, gas stations, lawyers’ offices, accountants’
offices, pharmacies, insurance offices, health care providers’ professional offices, and
hospitals—happen to share at least one common trait: each traditionally receives some
form of payment from its customers, rather than providing one to them. Thus,
Octapharma reasons, Congress’ choice to employ these specific terms necessarily
restricts the meaning of the more general term “service establishment” to other entities
that also share this same characteristic.
But giving the term “service establishment” its ordinary meaning (i.e., an
establishment that provides a service) yields neither ambiguity nor an irrational result.
See Edwards v. Valdez, 789 F.2d 1477, 1481 (10th Cir. 1986) (“It is a well[-]established
law of statutory construction that, absent ambiguity or irrational result, the literal
language of a statute controls.”). In fact, giving the term its ordinary meaning achieves
just the opposite: it yields a broad definition that is entirely consistent with Title III’s aim
of affording individuals with disabilities access to the same establishments available to
those without disabilities. See PGA Tour, 532 U.S. at 676-77.
Under these circumstances, we won’t bend over backwards to give the term
“service establishment” a definition that is more narrow than the plain meaning of its
component parts. In fact, such interpretative gymnastics are not only unnecessary
here, they’re inappropriate given our duty to liberally construe § 12181(7)(F). See id.
Accordingly, we decline to apply ejusdem generis and noscitur a sociis. Instead, we
9
begin and end with the plain meaning of the words that Congress employed. A service
establishment is an “establishment” that provides a “service” as we define those terms
above. See Woods v. Standard Ins. Co., 771 F.3d 1257, 1263 (10th Cir. 2014) (“[I]f
the statutory language is clear, our analysis ordinarily ends.” (quoting Coffey v.
Freeport McMoran Copper & Gold, 581 F.3d 1240, 1245 (10th Cir. 2009))); CBS Inc.
v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1225 n.6 (11th Cir. 2001)5 (explaining
that “clear language of a statutory provision holds a status above that of any other canon
of construction, and often vitiates the need to consider any of the other canons”).
In any event, even if giving the phrase “service establishment” its ordinary
meaning did result in a definition we found to be ambiguous or irrational, employing
the canons of statutory interpretation that Octapharma cites wouldn’t clarify matters.
True, applying ejusdem generis and noscitur a sociis might indicate that we should
refrain from treating PDCs as service establishments because—unlike
§ 12181(7)(F)’s enumerated examples—they provide compensation to, rather than
accept compensation from, their customers. However, another rule of statutory
interpretation counsels against reading such a direction-of-compensation requirement
into the statute when one doesn’t appear there. See United States v. Sturm, 673 F.3d
5
The dissent quotes the Eleventh Circuit’s decision in CBS Inc. to bolster its
assertion that “canons of statutory construction are aids in construing the language
itself—not tools to be relied on only in the face of ambiguity.” Dissent 6-7. But as
the Eleventh Circuit made clear in a footnote, a statute’s plain language “often
vitiates” any need to resort to the canons in the first place. CBS Inc., 245 F.3d at
1225 n.6. That is exactly the case here. Section 12181(7)(F)’s plain language
“vitiates” any need to apply ejusdem generis or noscitur a sociis. Id.
10
1274, 1279 (10th Cir. 2012) (noting that we “must ‘ordinarily resist reading words or
elements into a statute that do not appear on its face.’” (quoting Bates v. United
States, 522 U.S. 23, 29 (1997))); see also Chickasaw Nation v. United States, 534
U.S. 84, 94 (2001)6 (“Specific canons ‘are often countered . . . by some maxim
pointing in a different direction.’” (alteration in original) (quoting Circuit City
Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001))). In light of these contradictory
suggestions, we think that looking beyond the plain language of the statute would
serve only to manufacture ambiguity where none exists.
But if we had to resolve that manufactured ambiguity, we would next examine
the legislative history. See United States v. Quarrell, 310 F.3d 664, 669 (10th Cir.
2002). Here, that history bolsters our decision to refrain from concluding that an
entity is a service establishment only if it is “similar” to § 12181(7)(F)’s enumerated
examples. See, e.g., H.R. Rep. No. 101–485, pt. 3, at 54 (1990), as reprinted in 1990
U.S.C.C.A.N. 445, 477 (explaining that “[a] person alleging discrimination does not
have to prove that the entity being charged with discrimination is similar to the
6
The dissent cites Chickasaw Nation for the proposition that we should
employ the canons to discern § 12181(7)(F)’s plain meaning. Dissent 5. But notably,
Chickasaw Nation ultimately declined to apply the canons upon which the petitioner
relied, in part because the application of those canons “would produce an
interpretation [of the statute at issue] that . . . would conflict with the intent embodied
in the statute Congress wrote.” 534 U.S. at 94 (noting that “canons are not mandatory
rules”). Given our duty to construe § 12181(7)(F) liberally to afford individuals with
disabilities access to the same establishments available to those without disabilities,
see PGA Tour, 532 U.S. at 676-77, applying ejusdem generis and noscitur a sociis in
this case would produce the same result. Accordingly, Chickasaw Nation only lends
further support to our decision to refrain from applying these canons.
11
examples listed in the definition”; instead, he or she need only “show that the entity
falls within the overall category”). In fact, Congress changed the language in
§ 12181(7)(F) from “other similar service establishments” to “other service
establishments,” presumably to make clear that a particular business need not be
similar to the enumerated examples to constitute a service establishment.7 Compare
H.R. Rep. No. 101-485, pt. 4, at 56 (1990) (emphasis added), as reprinted in 1990
U.S.C.C.A.N. 512, 545, with § 12181(7)(F). Cf. 136 Cong. Rec. 11,472 (1990)
(explaining, with reference to 42 U.S.C. § 12181(7)(E), that one of the changes
“adopted in the final bill . . . was to delete the word ‘similar’” so that “a person
alleging discrimination does not have to prove that a particular business is similar to
one of the businesses listed . . . but rather, that the business falls within the general
category described”).
So whether we confine our analysis to, or extend our analysis beyond, the
plain language of § 12181(7)(F), the result is the same: service establishments are
7
The dissent purports to explain why it can ignore this legislative history,
noting that “we only turn to extrinsic sources such as legislative history for
illumination after we have been unsuccessful in discerning Congress’s intent from the
words of the statute itself—including through the use of canons of statutory
interpretation.” Dissent 9 n.1. We wholeheartedly agree with the dissent that
examining the legislative history is unnecessary in this case, albeit for the same
reasons that we also find it unnecessary to apply the canons. But even if we assume
that we must apply the canons, the result of that application is so ambiguous as to
require us to examine the legislative history as well. And that history makes it
abundantly clear that the dissent’s approach does precisely what Congress warned
against doing: it reads a similarity requirement into § 12181(7)(F)’s “other service
establishment” clause. See Dissent 10-18.
12
establishments that provide a service, regardless of whether they provide or accept
compensation as part of that process.
The only remaining question before us is whether PDCs like Octapharma
satisfy that definition. We conclude that they do. PDCs like Octapharma are “place[s]
of business.” Webster’s, supra, at 778. And they “assist[] or benefit[]” those who wish to
provide plasma for medical use—whether for altruistic reasons or for pecuniary gain—by
supplying the trained personnel and medical equipment necessary to accomplish that
goal. Id. at 2075. Finally, while PDCs may ultimately “produce a tangible good”8 for
pharmaceutical companies in the form of plasma, they don’t “produce a tangible good”
for individuals like Levorsen, who seek to use their plasma-procurement services. Id.
Rather, PDCs simply “assist[]” those individuals in accomplishing their goal of providing
plasma. Id. Accordingly, we conclude that PDCs like Octapharma are service
8
Both the dissent and Octapharma characterize PDCs as manufacturers. See
Dissent 18-20; Aplee. Br., 13-19. But neither provides any authority establishing that an
entity can’t simultaneously be both a manufacturer and a service establishment for
purposes of § 12181(7)(F), especially if—as is the case here—that entity provides a
service to some customers while producing a tangible good for others. In fact,
Octapharma implicitly acknowledges that entities can simultaneously perform different
functions for different customers or clients. See Aplee. Br. 15 n.6 (characterizing pawn
shops and used record stores as “sales establishments” for purposes of § 12181(7)(E)
because, while these entities buy goods from some members of the public, they sell goods
to others). Moreover, we question the dissent’s likening of PDCs to paper mills. See
Dissent 19. Unlike PDCs, paper mills don’t typically hold themselves open as accepting
source product from individual members of the public. PDCs, on the other hand, are
public-facing businesses. Given the ADA’s goal of affording individuals with disabilities
access to the same establishments available to those without disabilities, see PGA Tour,
532 U.S. at 676-77, this is a relevant distinction.
13
establishments under § 12181(7)(F). And because they are service establishments under
§ 12181(7)(F), they are public accommodations for purposes of Title III.9
CONCLUSION
Because Octapharma is an establishment that provides a service, it is a service
establishment under the plain language of § 12181(7)(F). And even if that weren’t
unambiguously the case, the relevant legislative history and our duty to liberally construe
the statute would lead us to the same conclusion.
Octapharma is a public accommodation for purpose of Title III. Because the
district court erred in finding otherwise and in dismissing the action on that basis, we
reverse and remand for further proceedings.
9
Octapharma insists this conclusion will put PDCs in an untenable position by
creating a conflict between the ADA and certain regulations promulgated by the Food
and Drug Administration. See, e.g., 21 C.F.R. § 606.100(b)(1) (requiring PDCs to
establish “[c]riteria used to determine donor eligibility, including acceptable medical
history criteria”); 21 C.F.R. § 630.10(a) (noting that PDCs must determine donor
eligibility, and that donors aren’t eligible if “not in good health” or if PDC identifies
“factor(s) that may cause the donation to adversely affect” a donor’s health or the
“safety, purity, or potency of the blood or blood component”). We find this argument
unavailing. As the United States as amicus curiae points out, the Department of
Justice’s Title III regulations explicitly allow public accommodations to “impose
legitimate safety requirements that are necessary for safe operation,” as long as those
requirements are “based on actual risks and not on mere speculation, stereotypes, or
generalizations about individuals with disabilities.” U.S. Reply Br. 3 (quoting 28
C.F.R. § 36.301(b)). In any event, we do not hold today that Octapharma must allow
Levorsen to donate plasma. Nor do we take a position on whether Octapharma
unlawfully discriminated against Levorsen under § 12182(a). We hold only that
Levorsen has access to Octapharma as a public accommodation. Thus, we reject
Octapharma’s suggestion that our holding is fundamentally irreconcilable with the
FDA regulations governing PDCs.
14
No. 14-4162, Levorsen v. Octapharma Plasma, Inc.
HOLMES, Circuit Judge, dissenting.
I respectfully dissent. The sole question on appeal is whether a plasma-donation
center constitutes a “service establishment” within the meaning of 42 U.S.C.
§ 12181(7)(F). In contrast to the majority, I do not believe that such centers fall within
the ambit of the term “service establishment.” Therefore, I would affirm the district
court’s judgment.
I
A
In 42 U.S.C. § 12181(7)(F), Congress identified a category of “private entities
[that] are considered public accommodations”—i.e., service establishments—under Title
III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101–12213.
Congress enumerated the category as follows: “a laundromat, dry-cleaner, bank, barber
shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of
an accountant or lawyer, pharmacy, insurance office, professional office of a health care
provider, hospital, or other service establishment.” 42 U.S.C. § 12181(7)(F) (emphasis
added).
We construe Title III with its broad remedial purpose in mind. See, e.g., PGA
Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001) (discussing the “broad mandate,”
“comprehensive character,” and “sweeping purpose” of the ADA in “eliminat[ing]
discrimination against disabled individuals[] and . . . integrat[ing] them ‘into the
economic and social mainstream of American life.’” (citations omitted)); id. at 676
(stating that Title III’s legislative history indicates that the categories of “public
accommodation[s]” “should be construed liberally” (citation omitted)); see also Trainor
v. Apollo Metal Specialties, Inc., 318 F.3d 976, 983 (10th Cir. 2002) (“In our review of
the antidiscrimination laws we must be mindful of their remedial purposes, and liberally
interpret their provisions to that end.” (quoting Wheeler v. Hurdman, 825 F.2d 257, 262
(10th Cir. 1987))); Butler v. City of Prairie Vill., 172 F.3d 736, 744 (10th Cir. 1999)
(noting that “the ADA’s remedial purposes are broad and far-reaching”). Nevertheless, I
would conclude that a plasma-donation center is not a “service establishment” within the
meaning of § 12181(7)(F).
More specifically, I would conclude that the district court correctly ruled—by
reference to the examples of service establishments listed in § 12181(7)(F)—that service
establishments offer certain services in exchange for monetary compensation (i.e., a fee).
Going further, in my view, every service establishment listed in § 12181(7)(F) shares
some key unifying traits: they offer the public a “service” (1) in the form of (a) expertise
(e.g., barbers, beauticians, shoe-repair craftsman, dry cleaners, funeral parlors, lawyers,
accountants, insurance offices, pharmacists, health care providers, and hospitals) or (b)
specialized equipment (e.g., laundromats and gas stations), (2) for use in achieving some
desired end, (3) in exchange for monetary compensation.
With the foregoing considerations in mind, it becomes clear that plasma-donation
centers are not service establishments within the meaning of subsection (7)(F). First,
plasma-donation centers do not receive a fee from members of the public in exchange for
2
any services that they provide. Second, to the extent that plasma-donation centers
provide services to the public, they do not do so for the public’s use in achieving a desired
end; instead, they provide them for the centers’ use in achieving a desired end—the
collection of plasma for sale to pharmaceutical companies. For these two principal
reasons, plasma-donation centers are fundamentally unlike the service establishments
listed in 42 U.S.C. § 12181(7)(F), and I would conclude that they do not fall within the
scope of that statute. Consequently, plasma-donation centers do not qualify as public
accommodations under Title III of the ADA, and the district court therefore did not err in
dismissing Mr. Levorsen’s complaint.
1
“[O]ur primary task in interpreting statutes [is] to determine congressional intent,”
and the starting point for discerning congressional intent is the plain language of the
statute. Coffey v. Freeport McMoran Copper & Gold, 581 F.3d 1240, 1245 (10th Cir.
2009) (per curiam) (quoting Russell v. United States, 551 F.3d 1174, 1178 (10th Cir.
2008)); see United States v. West, 671 F.3d 1195, 1199 (10th Cir. 2012) (stating that “we
first and foremost look to the statute’s language to ascertain Congressional intent”). If the
statute’s language is clear, our analysis comes to an end. See, e.g., Woods v. Standard
Ins. Co., 771 F.3d 1257, 1263 (10th Cir. 2014); United States v. Sprenger, 625 F.3d 1305,
1307 (10th Cir. 2010); Coffey, 581 F.3d at 1245. That is, if the statute is unambiguous,
we need not “resort . . . to the statutory history” or other extrinsic sources. Wyodak Res.
Dev. Corp. v. United States, 637 F.3d 1127, 1135 (10th Cir. 2011); see also Antonin
3
Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 56
(2012) (“[T]he purpose [of a statute] must be derived from the text, not from extrinsic
sources such as legislative history or an assumption about the legal drafter’s desires.”). In
fact, “[w]e will look beyond the plain language of a statute only if the result is an absurd
application of the law.” United States v. Brown, 529 F.3d 1260, 1265 (10th Cir. 2008).
We do not, however, construe statutory terms in isolation. See, e.g., McDonnell v.
United States, --- S. Ct. ----, 2016 WL 3461561, at*13 (June 27, 2016) (“To choose
between those competing definitions, we look to the context in which the words
appear.”); United States v. Brune, 767 F.3d 1009, 1022 (10th Cir. 2014) (“[N]o statute is
an island unto itself. We can look around to provide substance and context to a
potentially unclear term.”); see also Brune, 767 F.3d at 1022–23 (“[W]e are required to
construe a phrase within a statute with reference to its accompanying words ‘in order to
avoid the giving of unintended breadth to the Acts of Congress.’” (quoting Jarecki v. G.
D. Searle & Co., 367 U.S. 303, 307 (1961))). Indeed, “the meaning of statutory language,
plain or not, depends on context.” First Nat’l Bank of Durango v. Woods (In re Woods),
743 F.3d 689, 694 (10th Cir. 2014) (quoting United States v. Villa, 589 F.3d 1334, 1343
(10th Cir. 2009)); see also Villa, 589 F.3d at 1343 (observing that, in order to give the
language of a statute its “most natural reading,” we “consider not only the bare meaning
of the [text] but also its placement and purpose in the statutory scheme” (alteration in
original) (citations omitted)). Thus, “[t]he plainness or ambiguity of statutory language is
determined by reference to the language itself, the specific context in which that language
4
is used, and the broader context of the statute as a whole.” Salazar v. Butterball, LLC,
644 F.3d 1130, 1137 (10th Cir. 2011) (quoting Robinson v. Shell Oil Co., 519 U.S. 337,
341 (1997)).
Furthermore, in interpreting the plain meaning of statutory terms, courts frequently
use various canons of interpretation “designed to help judges determine the Legislature’s
intent as embodied in particular statutory language.” Chickasaw Nation v. United States,
534 U.S. 84, 94 (2001). Two canons, ejusdem generis and noscitur a sociis, are
particularly relevant for interpreting § 12181(7)(F)’s statutory language. Under the
ejusdem generis canon, “when a general term follows a specific one, the general term
should be understood as a reference to subjects akin to the one with specific
enumeration.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 223 (2008) (quoting Norfolk
& W. Ry. Co. v. Am. Train Dispatchers’ Ass’n, 499 U.S. 117, 129 (1991)). The
interpretive canon noscitur a sociis similarly counsels that “a word is known by the
company it keeps,” id. at 226 (quoting S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547
U.S. 370, 378 (2006))—i.e., the word “may be ‘given more precise content by the
neighboring words with which it is associated,’” United States v. Stevens, 559 U.S. 460,
474 (2010) (quoting United States v. Williams, 553 U.S. 285, 294 (2008)); see also
United States v. Phillips, 543 F.3d 1197, 1206 (10th Cir. 2008) (“Under the venerable
interpretive canons of noscitur a sociis and ejusdem generis, the meaning of a catchall
phrase is given precise content by the specific terms that precede it.”).
5
2
At issue in this case is subsection (7)(F); it includes in the definition of
“public accommodations”: “a laundromat, dry-cleaner, bank, barber shop, beauty shop,
travel service, shoe repair service, funeral parlor, gas station, office of an accountant or
lawyer, pharmacy, insurance office, professional office of a health care provider, hospital,
or other service establishment.” 42 U.S.C. § 12181(7)(F) (emphasis added). The district
court sought to derive a “common theme” from the enumerated examples, and concluded
that they all involve “the provision of goods or services to the public, in exchange for
money.” Aplt.’s App. at 37. In effect, the court applied the ejusdem generis and noscitur
a sociis canons.
The majority concludes that the district court erred in applying these canons
because the ordinary meaning of the statutory language is clear. This conclusion,
however, overlooks the key principle that such canons of statutory construction are aids in
construing the language itself—not tools to be relied on only in the face of ambiguity.
See McDonnell, 2016 WL 3461561, at *13–14 (applying the noscitur a sociis canon to an
unambiguous statute in giving it a “more limited reading”); Chickasaw Nation, 534 U.S.
at 94 (stating that canons of construction are “designed to help judges determine the
Legislature’s intent as embodied in particular statutory language” (emphasis added));
Brune, 767 F.3d at 1022–23 (stating that “simply resorting to a dictionary definition in
this case is not especially helpful” because “[t]he multiple definitions of [the residual
phrase at issue] preclude an obvious, unitary usage,” but “the wording of the statute
6
invites the application of the canon of construction of ejusdem generis[] [because]
‘general words follow specific words in a statutory enumeration . . .’” (quoting Circuit
City Stores, Inc. v. Adams, 532 U.S. 105, 114 (2001))); CBS, Inc. v. PrimeTime 24 Joint
Venture, 245 F.3d 1217, 1225 (11th Cir. 2001) (“[T]he canons of construction focus on
the text actually approved by Congress and made a part of our country’s laws. . . .
Canons of construction are essentially tools which help us to determine whether the
meaning of a statutory provision is sufficiently plain, in light of the text of the statute as a
whole, to avoid the need to consider extrinsic evidence of Congress’ intent.” (footnote
omitted)); cf. In re Woods, 743 F.3d at 694 (“[T]he meaning of statutory language, plain
or not, depends on context.” (quoting Villa, 589 F.3d at 1343)). Thus, the consideration
of interpretative canons is not a step beyond a plain-meaning analysis; instead, as here, it
can be part and parcel of such an analysis and complement any reliance on dictionary
definitions of the relevant terms.
Indeed, the single case the majority cites in support of its assertion that resort to
canons of construction is appropriate only in the face of an ambiguity or an irrational
result does little to advance that position. In Edwards v. Valdez, our court made the
unremarkable point that courts should look to legislative history only when faced with a
statutory ambiguity. See 789 F.2d 1477, 1481 (10th Cir. 1986) (“[A]bsent ambiguity or
irrational result, the literal language of a statute controls. When the meaning of the
statute is clear, it is both unnecessary and improper to resort to legislative history to
divine congressional intent.” (citation omitted)). This case makes no mention of
7
interpretive canons, nor does it in any way suggest that consideration of such canons
amounts to a departure from a plain-meaning analysis of a statute. I thus must disagree
with the majority’s assumption that the canons that the district court implicitly invoked
have no role to play in the present analysis absent a statutory ambiguity or irrational
result; rather, these canons are directly relevant to our plain-meaning analysis.
Furthermore, the majority’s suggestion that applying these canons here amounts to
“interpretative gymnastics . . . [that are] inappropriate given our duty to liberally construe
§ 12181(7)(F)” is misguided. Maj. Op. at 9. Though we construe statutes like Title III of
the ADA liberally to effectuate their remedial purposes, see, e.g., PGA Tour, 532 U.S. at
676, that does not mean that we “extend[]” the relevant language “beyond the just and
ordinary sense of the terms,” 1 Joseph Story, COMMENTARIES ON THE CONSTITUTION OF
THE UNITED STATES § 429, at 412 (Fred B. Rothman & Co. 1991) (1833) (“Where a
power is remedial in its nature, there is much reason to contend, that it ought to be
construed liberally. . . . But this liberality of exposition is clearly inadmissible, if it
extends beyond the just and ordinary sense of the terms.”); see Symons v. Chrysler Corp.
Loan Guarantee Bd., 670 F.2d 238, 241 (D.C. Cir. 1981) (“The fact that legislation has a
remedial purpose, however, does not give the judiciary license, in interpreting a
provision, to disregard entirely the plain meaning of the words used by Congress.”); see
also Scalia & Garner, supra, at 364 (citing the COMMENTARIES and criticizing the so-
called “remedial-statute rule”). And the weight of authority cited above makes clear that
“venerable interpretive cannons” like ejusdem generis and noscitur a sociis are useful and
8
proper tools to employ in discerning the just and ordinary sense of a statute’s terms.
Phillips, 543 F.3d at 1206.
In short, I would conclude that the district court’s decision to apply, at least tacitly,
the canons of ejusdem generis and noscitur a sociis was not erroneous.1
1
Furthermore, the two reasons that Mr. Levorsen and the United States offer
for why these canons should not be applied here are no more persuasive than the
majority’s position. First, Mr. Levorsen and the United States point out that the
administrative guidance provided by the Department of Justice (“DOJ”) states that the
examples provided in § 12181(7) are not “exhaustive” but merely “representative.” 28
C.F.R. pt. 36, app. C, at 893 (2013). The guidance notes that “[t]he category of social
service center establishments would include not only the types of establishments listed,
day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies,
but also establishments such as substance abuse treatment centers, rape crisis centers, and
halfway houses.” Id. The DOJ’s Title III Technical Assistance Manual also states that
“the examples given are just illustrations.” U.S. Dep’t of Justice, ADA Title III Technical
Assistance Manual Covering Public Accommodations and Commercial Facilities § III-
1.2000, www.ada.gov/taman3.html (last visited July 7, 2016). While we accord
deference to the DOJ’s guidance regarding Title III, see, e.g., Bragdon v. Abbott, 524
U.S. 624, 646 (1998); Colo. Cross Disability Coal. v. Hermanson Family Ltd. P’ship I,
264 F.3d 999, 1004 n.6 (10th Cir. 2001), contrary to the suggestion of Mr. Levorsen and
the United States, such guidance does not suggest that we must disregard the examples
listed in subsection (7)(F) as touchstones when discerning the scope of the term “service
establishments.” To the contrary, the DOJ has made clear that the statutorily enumerated
examples are “representative” and “illustrations” of what constitutes a “service
establishment”—that is, that the examples possess qualities common to all “service
establishments.” See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1926 (2002)
[hereinafter WEBSTER’S] (defining “representative” as, inter alia, “conveying an idea of
others of the kind” and “one that in some way corresponds to, replaces, or is equivalent to
someone or something else”).
Second, Mr. Levorsen and the United States cite legislative history to suggest that
ejusdem generis and noscitur a sociis should not be applied to subsection (7)(F). But, in
relying on legislative history, they put the proverbial cart before the horse. As several
courts have observed, we only turn to extrinsic sources such as legislative history for
illumination after we have been unsuccessful in discerning Congress’s intent from the
words of the statute itself—including through the use of canons of statutory
9
Moreover, this conclusion is bolstered by the recognition that several of our sister circuits
have used noscitur a sociis in interpreting § 12181(7). See, e.g., Weyer v. Twentieth
Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); Ford v. Schering-Plough
Corp., 145 F.3d 601, 614 (3d Cir. 1998); Parker v. Metro. Life Ins. Co., 121 F.3d 1006,
1014 (6th Cir. 1997) (en banc). In my view, therefore, these canons are helpful to the
inquiry called for here, and I resort to them.
3
Having reviewed the examples listed in § 12181(7)(F) with the benefit of the
foregoing interpretive canons, I agree with the district court that service establishments
offer services to the public in exchange for compensation.2 Every service establishment
interpretation. See, e.g., Carrieri v. Jobs.com Inc., 393 F.3d 508, 518–19 (5th Cir. 2004)
(“Only after application of the principles of statutory construction, including the canons
of construction, and after a conclusion that the statute is ambiguous may the court turn to
the legislative history.” (footnote omitted)); PrimeTime 24 Joint Venture, 245 F.3d at
1225 (noting that “where the meaning of a statute is discernible in light of canons of
construction, we should not resort to legislative history or other extrinsic evidence”); see
also Circuit City Stores, 532 U.S. at 115, 119 (applying canons of construction including
ejusdem generis to interpret the text of a statute, and then concluding that because the
Court’s holding was “directed by the text of [the statute], [the Court] need not assess the
legislative history”); PrimeTime 24 Joint Venture, 245 F.3d at 1225 (“Even where the
statutory language is not entirely transparent . . . the Court has tools at its disposal for
elucidating the meaning of a statute without reverting to legislative history. These tools
are the canons of construction.”).
2
To be more precise, the district court indicated that “in all establishments
listed under subsection (F), a common theme is the provision of goods or services to the
public, in exchange for money.” Aplt.’s App. at 37 (emphasis added). However, it seems
more appropriate and natural to think of “service establishments” as providing some form
of “service,” rather than a good, though the delivery of a good may be incidental to the
furnishing of a service (e.g., a full-service gas station or a pharmacy). Indeed, there are
other provisions of the statute’s “public accommodations” definition that appear to more
10
listed in that subsection offers a service to the public in exchange for compensation:
laundromats and dry cleaners offer services involving the cleaning of clothes in exchange
for a fee, barbers and beauticians offer to cut and style hair in exchange for a fee, shoe-
repair businesses offer to repair shoes in exchange for a fee, and so on.3 Therefore, I
would conclude that service establishments offer services to the public in exchange for a
fee (i.e., monetary compensation).
The district court did not expressly opine on the kinds of “services” that the statute
contemplates. Undertaking a de novo study of the examples listed in subsection (7)(F),
however, offers some discernable clues. Specifically, every service establishment listed
in subsection (7)(F) provides the public a “service” in the form of (1) expertise (e.g.,
barbers, beauticians, shoe-repair businesses, dry cleaners, funeral parlors, lawyers,
clearly contemplate the provision of goods, see, e.g., 42 U.S.C. § 12181(7)(E) (defining
“public accommodations” to include “a bakery, grocery store, [or] clothing store”), and
we do not “lightly” presume that Congress intended any redundancy in enacting
subsection (7)(F), United States v. Smith, 756 F.3d 1179, 1187 (10th Cir. 2014)
(“Sometimes . . . legislatures employ redundant language. We don’t doubt that’s true but
neither are we entitled to reach such a conclusion lightly. Respect for democratic
authority requires unelected federal judges to exercise great caution before declaring the
words enacted by the people’s representatives to be superfluous.” (citation omitted)). In
any event, as I see it, the essential—indeed, determinative—point that the district court
sought to convey is that the “common theme” of subsection (7)(F)’s enumerated service
establishments is that they provide something to the public in exchange for a fee. And I
agree with the district court, as discussed infra, that this is a principal ground of
distinction between subsection (7)(F)’s service establishments and plasma-donation
centers.
3
The same can be said of every other listed example: that is, gas stations,
funeral parlors, banks, travel-service businesses, offices of accountants or lawyers,
pharmacies, insurance offices, professional offices of healthcare providers, and hospitals.
11
accountants, insurance offices, health care providers, and hospitals), or (2) specialized
equipment (e.g., laundromats and gas stations).4 Moreover, the services that such
establishments provide to the public (not surprisingly) are intended for the public’s use in
achieving a desired end (e.g., a hair cut, clean clothes, legal advice).5 Therefore, viewing
the statute with the foregoing considerations in mind, every service establishment listed in
4
Of course some of the entities listed in subsection (7)(F) could conceivably
provide the public a “service” in both forms—that is, they could provide the public both
expertise and specialized equipment. For example, a gas station might provide the public
specialized equipment for obtaining gasoline but also expertise in repairing
malfunctioning automobiles. It is reasonable to conclude that, in some circumstances,
unenumerated entities that qualify as service establishments under subsection (7)(F) may
provide a “service” to the public in both forms as well.
5
This understanding of “services” in the context of the examples in
subsection (7)(F) is consistent with the common view of the term “service.” As the
majority notes, in discerning the ordinary meaning of a term, we generally look to
standard dictionaries. See, e.g., In re Hamilton Creek Metro. Dist., 143 F.3d 1381, 1385
(10th Cir. 1998) (“[T]he ordinary meaning attached to the word . . . may be found by aid
of commonly accepted dictionary definitions.”). Looking there, as a general matter,
“service” means any “conduct or performance that assists or benefits someone or
something.” WEBSTER’S, supra, at 2075; see also THE NEW OXFORD AMERICAN
DICTIONARY 1549 (2d ed. 2005) [hereinafter OXFORD] (defining “service” as, inter alia,
“an act of assistance”). A service typically does not produce a tangible good for a
customer or client. See WEBSTER’S, supra, at 2075 (defining “service” as, inter alia,
“useful labor that does not produce a tangible commodity,” and “providing services rather
than tangible goods”); OXFORD, supra, at 1549 (defining “service” as, inter alia, “work
done for a customer other than manufacturing”). Though they joust about the specific
import of subsection (7)(F) with respect to plasma-donation centers, the parties (along
with the majority) appear to share this general understanding of the foundational term
“service.” See, e.g., Aplt.’s Opening Br. at 13 (“[A] natural reading of the term ‘service
establishment’ plainly includes any facility, open to the public, where commercial
exchange involving an intangible benefit is conducted.” (emphasis added)); Aplee. Br. at
16 (“The most relevant dictionary definition of ‘service’ is ‘useful labor that does not
produce a tangible commodity.’” (quoting MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY 1070 (10th ed. 1996))).
12
§ 12181(7)(F) shares some key unifying traits: they offer to the public a “service” (1) in
the form of (a) expertise (e.g., barbers, beauticians, shoe-repair craftsman, dry cleaners,
funeral parlors, lawyers, accountants, insurance offices, pharmacists, health care
providers, and hospitals) or (b) specialized equipment (e.g., laundromats and gas
stations), (2) for use in achieving some desired end of the public, (3) in exchange for
compensation.
In contrast to this method of arriving at a definition of “service establishment,” the
majority contends that we may glean the meaning of the phrase by simply combining the
dictionary definitions of the terms “service” and “establishment.” This analysis is
misguided, however, because the operative term under subsection (7)(F) is “service
establishment”—a statutory term that my analysis shows has a meaning quite distinct
from the dictionary definitions of its component words. Although the ordinary meaning
of the terms “service” and “establishment” may be helpful in discerning the meaning of
the statutory term “service establishment,” it is critical that courts eschew the analytical
misstep of concluding that the unambiguous meaning of a statutory term may be divined
perforce from the ordinary meaning of its component terms. See Yates v. United States,
--- U.S. ----, 135 S. Ct. 1074, 1081 (2015) (plurality opinion) (“Whether a statutory term
is unambiguous, however, does not turn solely on dictionary definitions of its component
words.”); see also Barks v. Silver Bait, LLC, 802 F.3d 856, 862 (6th Cir. 2015); Radiance
Found., Inc. v. NAACP, 786 F.3d 316, 324 (4th Cir. 2015). Regrettably, the majority’s
narrow focus on the dictionary definitions of the terms “service” and “establishment”
13
leads it to fall prey to precisely this analytical misstep. As a consequence, the majority
misguidedly eschews the well-established contextual methodology of examining the
statutory language surrounding the term at issue. See, e.g., Yates, 135 S. Ct. at 1082
(plurality opinion) (“In law as in life, however, the same words, placed in different
contexts, sometimes mean different things.”); Brune, 767 F.3d at 1022 (“[N]o statute is an
island unto itself.”).6
In sum, I would conclude that to qualify as a “service establishment” under
6
Additionally, the majority asserts that applying the well-established canons
of construction discussed herein runs afoul of the principle of statutory construction that
“counsels against reading . . . a direction-of-compensation requirement into the statute
when one doesn’t appear there.” Maj. Op. at 10. In this regard, the majority cites United
States v. Sturm, where we cautioned that “[c]ourts must ‘ordinarily resist reading words
or elements into a statute that do not appear on its face.’” 673 F.3d 1274, 1279 (10th Cir.
2012) (quoting Bates v. United States, 522 U.S. 23, 29 (1997)). However, relying on
canons of construction to glean Congress’s intent from the statute’s language is a far cry
from reading words into a statute that simply are not there. At all times, in applying these
canons, the focus is on the words of the statute and what they convey about Congress’s
intent. See, e.g., PrimeTime 24 Joint Venture, 245 F.3d at 1225 (“[T]he canons of
construction focus on the text actually approved by Congress and made a part of our
country’s laws.”). Congress provided textual examples in subsection (7)(F) that it
intended to be illustrative of the meaning of the term “service establishment,” cf. Scalia &
Garner, supra, at 61 (“The canons influence not just how courts approach texts but also
the techniques that legal drafters follow in preparing those texts.”), and those examples
indicate that in order to be a “service establishment,” an entity must receive compensation
from the public for services rendered. Furthermore, unlike the defendant in Sturm, I do
not contend that Congress omitted the compensation component through some
“scrivener’s error” and that we should now correct that “error” by reading that component
back into the statute. See Sturm, 673 F.3d at 1278–79. Instead, I maintain that the plain
terms that Congress provided us in subsection (7)(F) are imbued with the compensation
component and applying canons of construction makes this patent. See Chickasaw
Nation, 534 U.S. at 94 (canons of construction are “designed to help judges determine the
Legislature’s intent as embodied in particular statutory language.” (emphasis added)).
There is no language that needs to be added.
14
§ 12181(7)(F), an entity must offer the public a service in the form of expertise or
specialized equipment for use in achieving some desired end of the public in exchange for
compensation. As explained below, plasma-donation centers do not satisfy this
description.
4
In arguing that plasma-donation centers are “service establishments” under
subsection (7)(F), Mr. Levorsen and the United States assert that “a plasma donation
center provides at least two discrete services: (1) screening the individual’s blood to
ensure the donor’s eligibility for a donation and (2) using its technology and trained
personnel to extract and properly process the individual’s plasma.” Aplt.’s Opening Br.
at 20; see also Br. for U.S. as Amicus Curiae at 22 (“Plasma donation centers have these
same characteristics [as the examples listed in § 12181(7)(F)]. They provide the
specialized equipment needed to procure plasma and trained personnel to assess donor
eligibility, operate the equipment, etc.”). For purposes of my analysis, I assume that they
are correct. Indeed, in some material respects, these two alleged services seem to fit
comfortably within the category of “services” that, in my view, subsection (7)(F)
contemplates, in that they would involve providing the public with expertise (e.g., blood
screening for donor eligibility) and specialized equipment (e.g., equipment capable of
performing plasmapheresis).
However, I would nonetheless conclude that under the definition of “service
establishment” discussed above, for two principal reasons, plasma-donation centers like
15
Octapharma fail to qualify as service establishments within the meaning of § 12181(7)(F).
First, plasma-donation centers do not receive a fee from members of the public in
exchange for any services that they furnish. Quite the obverse is true: the centers give
members of the public a fee for tendering to them a commodity in the form of plasma or,
alternatively, for performing—at least in a colloquial sense—the “service”7 of donating
plasma. Put more concretely, unlike the service establishments found in subsection
(7)(F), Octapharma did not receive money from Mr. Levorsen in exchange for a service;
instead, it paid Mr. Levorsen. Therefore, plasma-donation centers are fundamentally
unlike the service establishments of subsection (7)(F); all of them provide services to the
public in exchange for a fee.
Second, to the extent that plasma-donation centers provide services to the
7
The district court suggested that plasma donors like Mr. Levorsen may be
viewed as providing a service to plasma-donation centers like Octapharma. In this
regard, it observed that “it is the plasma donation center that offers money to a member of
the public in exchange for a service to the center—the donation of plasma.” Aplt.’s App.
at 37. However, as noted infra in Part I.B, plasma-donation centers actually resemble
manufacturers much more than they do the typical business under subsection (7)(F) that
provides services to the public, and thus it is probably closer to the truth to say that Mr.
Levorsen is providing a commodity for Octapharma’s manufacturing process. Indeed, in
his complaint, Mr. Levorsen avers that the plasma that he donates is “used as source
material for further manufacturing use.” Aplt.’s App. at 8. However, for purposes of
analyzing the plain terms of the statute, the proper characterization of the donor’s action
as providing a commodity or service is immaterial. Rather, the important point is
that—irrespective of whether Mr. Levorsen (and other donors) provided Octapharma a
commodity or a service—in exchange, he received a fee from Octapharma, whereas, in
contrast, all of the service establishments listed in subsection (7)(F) received a fee from
the public for their service, rather than paying one. Therefore, in my view, Octapharma’s
business practice of paying plasma donors does not fit the paradigm of service
establishments described in subsection (7)(F).
16
public—such as those services identified by Mr. Levorsen and the United States—they do
not do so for the public’s use in achieving a desired end; instead, they provide them for
the centers’ use in achieving a desired end. More specifically, plasma-donation centers
provide the public with the expertise associated with blood screening and the specialized
equipment necessary to collect plasma so that the centers can sell the plasma to their
customers in the pharmaceutical industry (i.e., the desired end)—not so that they can
assist the public to achieve some desired end. Or, viewed through the lens of these facts,
Octapharma provided Mr. Levorsen its expertise and specialized equipment so that it
could obtain his plasma for sale (i.e., the desired end), not to allow Mr. Levorsen to
achieve some desired end.
This Octapharma-Levorsen scenario is patently at odds with the service-
establishment paradigm that subsection (7)(F) envisions: specifically, every service
establishment listed in that subsection offers members of the public a service—i.e.,
expertise or specialized equipment—for use in achieving an end desired by them (e.g.,
clean clothes, a haircut, repaired shoes)—not an end desired by the service establishment.
Thus, the majority’s conclusion that plasma-donation centers are service establishments
under subsection (7)(F) effectively turns the statute’s service model on its head—the
recipient of the desired end (as well as the payor) is the plasma-donation center and not
the public.8
8
To be sure, Mr. Levorsen receives a fee for his plasma donation, and the
complaint’s averments indicate that he clearly desires such payments. But such fees
17
Indeed, once one recognizes that it is the plasma-donation center, and not the
public, that is the recipient of the desired end, the first point of distinction discussed supra
between plasma-donation centers and subsection (7)(F)’s service establishments—i.e., the
fact that plasma-donation centers pay a fee rather than receive one—makes perfect sense.
Specifically, because the centers are the ultimate recipients of the desired end, it should
not be surprising that the centers are the ones providing the compensation, rather than the
public.
In sum, guided by well-settled canons of statutory construction, I would conclude
that plasma-donation centers are fundamentally unlike the service establishments listed in
42 U.S.C. § 12181(7)(F). And, consequently, they do not fall within the ambit of that
provision. It ineluctably follows that plasma-donation centers are not public
accommodations under Title III of the ADA. Accordingly, I would hold that the district
court did not err in dismissing Mr. Levorsen’s complaint.
B
The foregoing conclusion—that plasma-donation centers are not service
cannot be the desired end of the service under subsection (7)(F) because the statute
contemplates that the service establishment will provide the service to the public in
exchange for a fee that it receives; the statute does not envision that a member of the
public will receive from the service establishment both the service and the fee. In other
words, viewed through the prism of subsection (7)(F), the fee cannot be the desired end
that the public seeks to achieve from the plasma-donation centers because the statute
contemplates that it is the service establishment that will receive the fee in exchange for
providing the desired end.
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establishments within the ken of subsection (7)(F)—rests squarely on the plain terms of
the statute, viewed through the prism of well-settled canons of interpretation that allow
consideration of the relevant statutory context. And that conclusion, I believe, is a
sufficient basis for affirming the district court’s judgment. However, it is strongly
reinforced by the observation that plasma-donation centers resemble manufacturers much
more than they do the kind of entities that customarily provide services to the public
under subsection (7)(F). Plasma-donation centers manufacture a product: plasma. They
derive this product from a raw commodity—i.e., whole blood—that donors provide in
exchange for a fee. In this regard, plasma-donation centers are more like paper mills—a
type of manufacturer—than the typical business that provides services to the public under
subsection (7)(F). Paper mills, like plasma-donation centers, offer a fee in exchange for a
raw first-stage input (wood), which they convert first to pulp and, ultimately, into a
marketable end-product (paper), for sale to end users.9
In accord with this observation, at least for some purposes, Congress clearly
regards plasma-donation centers as manufacturers. See, e.g., 42 U.S.C. § 262(a)(1)(B)(ii)
(requiring that each package of a biological product be marked with the identity “of the
9
See generally Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1022 (D.C. Cir.
1978) (“To make paper from trees is an old art . . . . In papermaking, logs or wooden
chips must be ground up or ‘cooked’ in one of several processes until only cellulose pulp
is left. The pulp is bleached and made into various types and grades of paper.”);
Christopher D. Knopf, Closing the Loop: Requiring Double-Sided Copying and Non-
Chlorine Bleached Recycled Paper for Federal Court Papers, 1995 WIS. L. REV. 345,
356 (“Paper mills typically produce paper from wood by first stripping bark from logs
and grinding these stripped logs into chips.”).
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manufacturer of the biological product”); id. § 262(i)(1) (“The term ‘biological product’
means a virus, therapeutic serum, toxin, antitoxin, vaccine, blood, [or] blood
component . . . applicable to the prevention, treatment, or cure of a disease or condition of
human beings.” (emphasis added)).
Moreover, a regulatory agency, the Federal Drug Administration (“FDA”), too,
regards plasma-donation centers as “manufacturers,” and all their activities—including
the services that Mr. Levorsen and the United States identified—as “steps in the
manufacturing of Source Plasma.” 21 C.F.R. § 640.71(a) (“All steps in the
manufacturing of Source Plasma, including donor examination, blood collection,
plasmapheresis, laboratory testing, labeling, storage, and issuing shall be performed by
personnel of the establishment licensed to manufacture Source Plasma . . . .”); id.
§ 600.3(t) (“Manufacturer means any legal person or entity engaged in the manufacture of
a product subject to license under the act . . . .”); id. § 606.171(a) (“Who must report
under this section? You, a licensed manufacturer of blood and blood components,
including Source Plasma . . . .”).
Thus, the observation that plasma-donation centers resemble manufacturers much
more than they do the typical business that provides services to the public under
subsection (7)(F) is validated by the regulatory judgment of Congress and the FDA. And
this observation bolsters the conclusion that I would reach based on an analysis of the
plain terms of § 12181(7)(F)—viz., plasma-donation centers are not service
establishments within the meaning of subsection (7)(F).
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II
For the foregoing reasons, I am constrained to dissent. Contrary to the majority, I
would conclude that the district court did not err in dismissing Mr. Levorsen’s complaint
because he failed to demonstrate, as a matter of law, that plasma-donation centers are
service establishments under 42 U.S.C. § 12181(7)(F). Accordingly, I would affirm the
district court’s judgment.
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