Levorsen v. Octapharma Plasma, Inc.
2016 U.S. App. LEXIS 12787
| 10th Cir. | 2016Background
- Brent Levorsen, who has borderline schizophrenia, sought to donate plasma at an Octapharma plasma-donation center (PDC) and was refused after staff expressed safety concerns; Levorsen provided doctors’ notes clearing him to donate.
- Octapharma operates PDCs that collect plasma via plasmapheresis, pay donors, and sell collected plasma to pharmaceutical companies.
- Levorsen sued under Title III of the ADA, alleging Octapharma is a "service establishment" (public accommodation) and unlawfully discriminated by excluding him on the basis of disability.
- Octapharma moved to dismiss under Rule 12(b)(6), conceding Levorsen’s disability but arguing PDCs are not "service establishments" because they pay donors rather than receiving payment for services.
- The district court agreed and dismissed; the Tenth Circuit majority reversed, holding PDCs are service establishments under 42 U.S.C. § 12181(7)(F) and therefore public accommodations for Title III purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a plasma-donation center is a "service establishment" under 42 U.S.C. § 12181(7)(F) | Levorsen: plain meaning — a service establishment is an establishment that provides a service; PDCs provide screening and plasmapheresis services, so they qualify | Octapharma: statutory examples all receive fees from customers; PDCs instead pay donors, so they are unlike listed examples and not covered | Court: Reversed — under plain text and context, a service establishment is an establishment that provides a service; PDCs provide services and are public accommodations |
| Whether canons (ejusdem generis, noscitur a sociis) narrow the residual "other service establishment" to entities similar to enumerated examples | Levorsen: canons unnecessary; plain text is clear and should be liberally construed to effectuate ADA's remedial purpose | Octapharma: canons show the list implies entities that receive payment for services; PDCs differ and are excluded | Court: Declined to apply those canons to limit the plain meaning; even if applied, legislative history shows Congress removed "similar," supporting broad scope |
| Whether statutory or regulatory conflicts (e.g., FDA donor-safety rules) preclude treating PDCs as public accommodations | Levorsen: DOJ Title III regs permit safety-based requirements consistent with ADA; no direct conflict | Octapharma: FDA rules impose donor-eligibility safety standards that may require exclusion and could conflict with ADA obligations | Court: Noted DOJ regs allow legitimate safety requirements; holding does not require admitting Levorsen or resolve discrimination merits — only that PDCs qualify as public accommodations |
| Whether PDCs are more properly characterized as manufacturers, excluding them from § 12181(7)(F) | Levorsen: PDCs can simultaneously manufacture and provide services to the public; that does not preclude ADA coverage | Octapharma/dissent: PDCs resemble manufacturers (collect raw material, pay donors, produce plasma for sale) and differ from service establishments listed in the statute | Court: Majority rejected manufacturing-based exclusion; an entity can both manufacture and provide services and still be a service establishment when it provides services to the public |
Key Cases Cited
- United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015) (example of parsing complex statutory language)
- United States v. Brune, 767 F.3d 1009 (10th Cir. 2014) (use of dictionary meanings and canons when terms are ambiguous)
- Woods v. Standard Ins. Co., 771 F.3d 1257 (10th Cir. 2014) (resort to legislative history when plain language unclear)
- PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) (ADA Title III’s remedial purpose and liberal construction to afford access)
- Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976 (10th Cir. 2002) (remedial statutes construed liberally)
- Chickasaw Nation v. United States, 534 U.S. 84 (2001) (canons of construction are aids, not mandatory rules)
- CBS Inc. v. PrimeTime Joint Venture, 245 F.3d 1217 (11th Cir. 2001) (plain statutory language often obviates need to apply canons)