Levorsen v. Octapharma Plasma, Inc.

correctly granted summary judgment

Domenico on this claim.

IY. CONCLUSION undisрuted facts show that Domeni- requirement mountain-driving expe-

co’s job

rience is an essential function of the

Mr. Kilcrease sought. Mr. Kilcrease failed genuine

to raise a issue of fact material to question of whether he satisfied that

requirement. The district court therefore

properly granted summary judgment on

the basis that Mr. Kilcrease failed to es-

tablish he a qualified individual under

the ADA. The properly district court also

granted summary judgment to Domenico

on Mr. Kilerease’s retaliation claim be-

cause Domenico took employ- no adverse against

ment action Mr. Kilcrease subse-

quent rights to his assertion of under the

ADA. grant We affirm the district court’s summary judgment to Domenico. LEVORSEN,

Brent Plaintiff-Appellant, PLASMA, INC.,

OCTAPHARMA

Defendant-Appellee. America;

United States of Plasma Therapeutics Association,

Protein

Amici Curiae.

No. 14-4162

United States of Appeals, Court

Tenth Circuit. July

FILED Davis, Bradshaw &

Cary B. Robinson (Charles Hinson, P.A., Charlotte, E. N.C. Hinson, Johnson, Bradshaw & Robinson N.C., P.A., Charlotte, A. Yerko- and Lisa vich, Stevens, Quin- Ray Brand and Liesel Utah, Nebeker, City, ney Lake with & Salt brief), Defendant-Appellee. her on Pollock, Department U.S. Nathaniel S. (Vanita Justice, D.C., Gup- Washington, ta, Attorney Principal Deputy Assistant General, Calderon, R. De- and Tovah U.S. Justice, D.C., Washington, partment of brief) States of with him on the for United America, Amicus Curiae. Delacourt, T. Penrod and John

Joshua Association, Therapeutics Protein Plasma C.; Boyle, A. Kel- Washington, Joseph D. Warren, LLP, Parsippany, ley Drye & Jersey, filed a brief for Plasma Pro- New Association, Amicus Cu- Therapeutics tein riae. BRISCOE, HOLMES, and

Before MORITZ, Judges. Circuit MORITZ, Judge. Circuit “enigmatic” statutes are so Some diagraming their clauses we must resort to See, meanings. in an effort to discern their Rentz, e.g., United States v. 777 F.3d 2015) (parsing 924(c)(l)(A)’s prepo “bramble of U.S.C. abstruse phrases”). sitional Others are so employ that we must canons of See, interpretation to define their terms. Brune, e.g., United States 2014), 1022-23 cert. de -, nied, U.S. canon of (applying

L.Ed.2d ejusdem generis 18 U.S.C. Downer, Reiman, & Ryan C. Dane Col- 2252A(a)(5)(B)). others are so am Still (Sasha PLLC, D. Sam- Washington, fax C. biguous that we must comb the annals of Allen, and Michael Rei- berg-Champion in legislative history Congress’ to divine man, PLLC, Washington, Dane & Colfax Co., tent. Woods v. Standard Ins. C., Disability Aaron M. Kinikini D. Utah, 1265-66 Center, with City, Law Salt Lake briefs), history because (examining legislative him Plaintiff-Appellant. on the 1382(d)(4)(A) meaning of 28 U.S.C. that at a City Salt Lake branch of Octap- Plasma, apparent wasn’t from its harma language). Inc. Octapharma operates PDCs,

But multiple the statute we are tasked with inter- in- here, cluding the one at preting isn’t issue this case. At facilities, those one of those statutes. Section collects do- plasma using nors’ a process plas- makes “service called public establishments” ac- mapheresis. During that process, Octap- purposes commodations for of Title III of harma (ADA). mechanically draws and processes the Americans with Disabilities Act blood, each donor’s III, turn, separating and Title reserv- generally prohibits public ing plasma returning before the red discriminating accommodations from blood cells to the donor. Octapharma pays against individuals on the basis оf disabili- its for plasma, donors this it ‍‌​‌‌‌​‌​‌​‌​‌‌​‌​‌‌​‌‌​‌​​​​‌​​‌​‌‌​​​‌‌‌​‌‌‌​​​‍12182(a). which then See ty. Here, § pharmaceutical sells to companies. district court1 that plasma-do- concluded (PDCs) nation centers aren’t service estab- an Octapharma employee When learned 12181(7)(F)’s because, § lishments unlike that Levorsen suffers from borderline examples, enumerated don’t PDCs schizophrenia, employee became con- public exchange a service to the for cerned that might Levorsen have a fee. schizophrenic episode donating while dislodge needle, collecting possibly in- find superficial

We distinction irrel- juring himself or someone else. The em- evant. plain language Under ployee thus advised Levorsen that he was § PDC is “service estab- ineligible plasma. to donate Levorsen then lishment” for exceedingly simple two rea- provided Octapharma signed with a form sons: It’s an provides establishment. And it psychiatrists, his who indicated both a service. straightforward This conclusion medically Levorsen is to do- suitable entirely (cid:127)is goal consistent with the plasma nate twice a Octap- week. When Thus, purpose of Title III. we need not harma maintained its refusal to allоw Le- beyond plain language look donate, brought vorsen to he this action 12181(7)(F) § to determine that a PDC III under Title of the ADA. a public constitutes accommodation. Be- cause the district court in concluding erred generally prohibits public Title III ac- dismissing otherwise—and in underly- discriminating against commodations from ing action on that basis—we reverse and disability. individuals on the basis of proceedings. remand for further 12182(a). III, purposes For of Title “ser- vice establishment^]” constitute ac- Background commodations. his com- Brent Levorsen suffers from various plaint, alleged Levorsen that PDCs like psychiatric disorders, including borderline Octapharma accommodations schizophrenia.2 years, For Levorsen has because are service establishments. plasma donated in exchange money in And he maintained that when it denied an effort to supplement his limited income. him opportunity plasma to donate May And in attempted just he to do payment solely based his magistrate judge 1. A upon (noting heard the case parties' consent. See Fed. Civ. R. P. 73. accept complaint’s well-pleaded that we allegations factual as true at motion-to-dis- 2. We takе the bulk of these facts from Levor- stage). miss complaint. Thompson, sen’s See Cressman v. 12182(a) “on the discrimination prohibits im- Octapharma schizophrenia, borderline equal disability him on in the full and against basis of permissibly discriminated services, facilities, disability violation of his enjoyment goods, the basis of the ADA. Title III of or accommodations advantages, privileges, accommodation.” -any place moved to dismiss Octapharma that, among clarifies And 12(b)(6). didn’t P. R. Civ. Fed. entities, consid- following “are other schizo- borderline dispute that Levorsen’s “a accommodations”: laundro- ered disability pur- constitutes phrenia bank, beau- mat, shop, barber dry-cleaner, dispute it Title III. Nor did poses of service, service, repair ty shop, shoe from do- travel Levorsen Octapharma prohibited station, In- office of an disability. parlor, gas based on that funeral nating plasma like Oc- stead, lawyer, pharmacy, that PDCs insurance argued accountant or public not accommodations tapharma office, of a care professional office health specifically, of Title III. More purposes estab- hospital, or other service provider, are not that PDCs Octapharma argued lishment.” establishments because—unlike service 12181(7)(F)’s enumerated Section 12181(7)(F)’s § entities— enumerated exhaustive, C.F.R. aren’t see 28 examples public to the service don’t PDCs 893; rather, C, app. serve pt. a fee. exchange illustrations, Dep’t Jus mere see U.S. It agreed. court reasoned The district tice, III Technical ADA Title Assistance accepting payment rather than from Covering Manual Public Accommodations for a service that exchange III-1.2000, § Facilities and Commercial pay- offer provide, PDCs instead PDCs (last visited www.ada.gov/taman3.html for a ser- to the ment 2016). Moreover, courts must con June receive. And because vice that PDCs 12181(7)(F)liberally to afford indi strue 12181(7)(F)’s enumer- differ PDCs disabilities access the same viduals with regard, the district entities in that ated to those establishments available without not service concluded that PDCs are court 676-77, Tour, 532 U.S. at PGA disabilities. ruled, Consequently, establishments. 1879; Apollo see also Trainor v. public accommodations are not PDCs Inc., 318 F.3d Specialties, Metal III.3 of Title purposes (10th 2002) (“In our review of the Cir. conclusion, the district Based on this must be mind laws we antidiscrimination 12(b)(6) granted Octapharma’s Rule cоurt purposes, ful of their remedial liberal prej- the action with motion and dismissed end.” ly interpret provisions their appeals. Levorsen udice. Hurdman, 825 F.2d (quoting Wheeler 1987))). (10th 257, 262 Cir.

Discussion dictates, argues Levorsen Citing these in 1990 to “Congress enacted the ADA failing that the court erred district against remedy widespread discrimination liberally construe the term “service estab- Tour, Inc. v. individuals.” PGA disabled encompass According lishment” to PDCs. Martin, (2001). Levorsen, end, court To that the district unneeessari- 149 L.Ed.2d Stores, Wal-Mart rejected it. See Adler v. court also Levorsen's address district Inc., 1998) ("Ar- constitutes a argument provider” “professional office of a health care opening guments inadequately briefed in the Levorsen has Because waived_”). brief are argument appeal, we need abandoned this ly employed statutory interpre- canons of tangible commodity.” Id. at 2075. Accord impermissibly tation ingly, read into we conclude that a service establish (7)(F) language ap- doesn’t place ment is a business or a result, asserts, pear there. As a Levorsen that, private by institution its conduct or the district court arrived at an unaccept- performance, assists or benefits someone ably narrow definition of “service estab- or something provides useful labor with Instead, argues, lishment.” Levorsen out producing tangible good for a cus given district court should have the term Brune, tomer or client. See 767 F.3d at “service plain meaning establishment” its instances, (suggesting “many and defined it as an establishment simply resorting to a dictionary definition” provides a service. And because un- PDCs may of a statute’s terms “helpful”)4; definition, questionably satisfy this con- he Dist., re Hamilton Creek Metro. cludes, they constitute accommoda- 1381, 1385 (noting that purposes tions for of Title III. ordinary meanings words’ “may be found of commonly accepted aid dictionary review, Exercising de novo see Smith v. definitions”). words, In other a service es United unsurprisingly—an tablishment estab 2009), agree. is— provides lishment that a service. must, begin, We as we with the language of Octapharma See St. Charles straight resists this Comm’r, 773, Inv. Co. v. 232 F.3d forward 776 conclusion. It insists that rather (10th 2000) (“As in requiring Cir. all cases than simply combining the ordinary mean construction, statutory begin ‘we with the of ings the terms “service” and “establish ” plain language (quoting ment,” of the law.’ Unit- we must instead apply two canons 1495, ed Morgan, States v. 1496 statutory interpretation: of ejusdem gener- (10th 1991))). 12181(7)(F), Cir. Under is and noscitur а sociis. These canons “service establishment” is a accom- counsel, (1) respectively, “when a Thus, modation for purposes of Title III. general one, term specific follows a question whether, before us is general term should be understood as plain language a PDC subjects reference to akin to the one with Octapharma like is a service establish- enumeration,” specific Ry. & W. Norfolk ment. Ass’n, Dispatchers’ Co. v. Am. Train 499 117, 129, 111 U.S. S.Ct. 113 L.Ed.2d An “place establishment is a (1991), 95 “a word is known business” or “a or private institution company keeps,” it D. Jarecki v. G. Searle ([such] hospital).” school or Webster’s Co., & 6 Dictionary Third New International (1961). L.Ed.2d 859 (2002) [hereinafter And a ser Webster’s]. below, performance pointed vice is “conduct or As district court that as out specific sists or benefits someone or something,” entities 12181(7)(F) laundromats, “useful produce labor that does not dry-cleaners, — obvious, example 4. The dissent agree unitary” cites Bruñe as an of a seems to "an defi- beyond Id.', case in which we looked the dictio Aplt. nition of the term “service.” see Br. nary definition of the term issue to canons 13; 16; Aplee. Br. Dissent 1240 n.5. And nei- statutory construction. See Dissent 1237. ther nor the dissent offers a defi- But we did so because that term’s multi nition of "establishment” that is at odds with ple dictionary vious, "preclude[d] definitions ob an Thus, the one we arrive at here. we find Brune, unitary usage.” 767 F.3d at distinguishable. Bruñe Here, hand, everyone on the other Instead, a sociis. generis travel and noscitur banks, shops, beauty shops, barber services, meaning of services, par- funeral repair begin and end with shoe offices, stations, account- lors, lawyers’ gas Congress- employed. A ser- the words that offices, offices, insurance pharmacies, ants’ is “establishment” vice establishment offices, providers’ professional care health define a “service” as we provides at least to share hospitals happen See Woods v. Standard those terms above. traditionally re- trait: each one common (10th Co., F.3d Cir. Ins. its cus- payment some form ceives (“[I]f clear, statutory language is them. tomers, one to providing rather than ordinarily analysis ends.” our Cof- reasons, Congress’ Thus, Octapharma Gold, & Freeport Copper v. McMoran fey nec- specific terms employ these choice 2009))); CBS the more meaning essarily restricts Venture, 245 Inc. v. Joint PrimeTime term “service establishment” general 2001)5 (еx- n.6 F.3d this same that also share entities other statutory language of a plaining that “clear characteristic. any a status above provision holds the term “service establish- giving But construction, and often viti- canon of other (i.e., an estab- ordinary its ment” other any to consider ates the need service) yields provides lishment canons”). result. nor an irrational ambiguity neither event, giving phrase even if Valdez, See Edwards ordinary its mean- “service establishment” 1986) (“It a well[-]estab- in a definition we found to ing did result that, statutory construction law of lished irrational, ambiguous employing result, the or irrational ambiguity absent Oc- interpretation canons of controls.”). In of a statute language literal clarify wouldn’t matters. tapharma cites fact, ordinary meaning term its giving the True, ejusdem generis nosci- applying yields a broad just opposite: achieves might indicate that we tur a sociis should entirely consistent with that is definition es- treating refrain from PDCs as service affording with Ill’s aim of individuals Title because—unlike tablishments establish- to the same access disabilities 12181(7)(F)’s examples— § enumerated to those without disabili- available ments to, compensation rather than provide Tour, 676-77, at 532 See PGA U.S. ties. from, their custom- accept compensation 121 S.Ct. 1879. However, statutory another rule of ers. circumstances, we won’t these Under against reading counsels interpretation give to the term over backwards bend direction-of-compensation require- such a that a definition establishment” “service one doesn’t ment into the statute when meaning of its plain than the more- narrow Sturm, States v. appear there. See United fact, interpreta- In parts. such component 2012) (not- 1274, 1279 673 F.3d unnecessary only are not gymnastics tive ‘ordinarily resist read- ing that we “must duty here, given our they’re inappropriate 12181(7)(F). elements into a that ing words or statute § See liberally id. to construe ” (quoting on its face.’ Bates apply ejusdem appear to do Accordingly, we decline any plain vitiates” language Circuit's "often need quotes the Eleventh dissent Inc. to its assertion place. decision in CBS bolster CBS resort to the canons in the first "canons of construction Inc., exactly at 1225 n.6. That is construing language itself—not aids 12181(7)(F)’s plain lan- case here. Section only of ambi- in the face to be relied tools ejusdem guage need to apply "vitiates” guity.” But footnote, the Eleventh Dissent 1237-38. as genеris or noscitur a sociis. Id. a statute’s made clear in Circuit

1233 States, 23, 29, examples definition”; v. United in- 285, (1997))); stead, only 139 L.Ed.2d 215 see also he or she need “show that the entity falls category”). Chickasaw Nation v. United 534 within the overall 84, 94, fact, In Congress changed U.S. S.Ct. 151 L.Ed.2d 474 language (cid:127) (2001)6 (“Specific canons ‘are often coun- “other similar service establishments” to “other pointing tered some maxim service estab- (alteration lishments,” presumably to make origi- different direction.’” clear that nal) Stores, particular business need not be similar City Circuit Inc. v. Adams, 105, 115, examples enumerated constitute a' U.S. (2001))). service establishment.7 Compare Rep. 149 L.Ed.2d H.R. light of these (1990) 101-485, pt. No. at contradictory (emphasis suggestions, we think that added), reprinted as in 1990 looking beyond plain U.S.C.C.A.N. language of the §with only Cong. statute would serve to manufacture Cf 11,472 Rec. ambiguity (explaining, with refer- where none exists. § 12181(7)(E), ence to 42 U.S.C. that one But if we had to resolve that manufac- changes “adopted in the final bill tured ambiguity, we would next examine ” ... was to delete the word ‘similar’ so legislative history. See United States v. person alleging “a discrimination does Quarrell, prove not have to that a particular busi- 2002). Here, history bolsters our deci- ness is similar tо one of the businesses sion to refrain from concluding that an rather, listed ... but the business entity is a service only establishment if it n general falls within the category de- 12181(7)(F)’s is “similar” to enumerated scribed”). examples. 101-485, Rep. H.R. No. (1990), pt. reprinted in 1990 analysis So whether we confine our to, U.S.C.C.A.N. (explaining analysis our beyond, “[a] extend person alleging discrimination language does not the result is the prove entity have to being same: service establishments are establish charged service, with discrimination is similar to ments that regardless of 6. The dissent cites Chickasaw purports explain why Nation for the 7. The dissent it can ignore legislative history, noting proposition that “we employ that we should the can- legisla- turn to 12181(7)(F)’s extrinsic sources such as plain meaning. ons to discern history tive for illumination after we have notably, Dissent 1236. But Chickasaw Nation discerning Congress’s been unsuccessful ultimately apply upon declined to the canons intent from the words of the statute itself— relied, petitioner part which the because including through the use of canons of statu- application pro- of those canons "would tory interpretation.” Dissent ‍‌​‌‌‌​‌​‌​‌​‌‌​‌​‌‌​‌‌​‌​​​​‌​​‌​‌‌​​​‌‌‌​‌‌‌​​​‍1238 n.l. We interpretation duce an [of statute at issue] wholeheartedly agree with the dissent that ... would with the intent em- conflict examining legislative history is unneces- Congress bodied in the statute wrote.” 534 case, sary in this albeit for the same reasons (noting U.S. at 122 S.Ct. 528 that "canons unnecessary apply that we also find it to rules”). mandatory duty are not Given our to canons. But even if we we assume that must § liberally construe to afford in- canons, apply applica- the result of that dividuals with disabilities access to the same ambiguous require tion is so as to us to exam- establishments to available those without dis- legislative history ine the as well. And that abilities, Tour, 676-77, see PGA 532 U.S. at history abundantly makes it clear that 1879, applying ejusdem generis approach precisely does what dissent’s Con- produce noscitur a sociis in this case would gress against doing: warned it reads a similar- Accordingly, the same result. Chickasaw Na- l(7)(F)’s ity requirement § into "other support tion lends further to our deci- service establishment” clause. See Dissent applying sion to refrain these canons. 1239-43. Rather, in- they accept compensa- simply PDCs those “assist[]”

whether or process. accomplishing goal tion as of that dividuals in their part Id. plasma. Accordingly, we con- providing only remaining questiоn be Octapharma that PDCs like are ser- clude Octapharma is whether PDCs like fore us 12181(7)(F). § vice establishments under satisfy that definition. We conclude that they And because are service establish- they Octapharma do. PDCs like are § they pub- are ments Webster’s, supra, “place[s] of business.” purposes lic accommodations for of Title they or those “assist[ ] benefit[ ]” 778. And III.9 provide plasma to for medical who wish for altruistic reasons or for use —whether Conclusion pecuniary gain by supplying the trained Octapharma Because is an establishment personnel equipment and medical neces service, provides is a service Id. sary at 2075. accomplish goal. to plain language under the Finally, may ultimately “pro while establishment PDCs § And even if that weren’t tangible good”8 pharmaceutical duce a case, they legis- the relevant companies plasma, unambiguously the form of history duty liberally “produce tangible good” don’t for indi lative and our Levorsen, viduals like who seek to use construe the statute would lead us Id. plasma-procurement their services. same conclusion. promulgated by Drug 8. Both the dissent and charac- tions the Food and Ad- terize PDCs as manufacturers. See Dissent ministration. C.F.R. 1243-44; Br., pro- Aplee. 606.100(b)(1) neither § 13-19. But (requiring to establish PDCs any authority establishing entity vides eligibility, used to determine donor "[c]riteria simultaneously can't be both a manufacturer including acceptable history medical crite- purposes and a service establishment ria”); 630.10(a) (noting 21 C.F.R. 12181(7)(F), especially if—as is the case eligibility, PDCs must determine donor entity provides here—that a service to some eligible good that donors aren’t if "not in producing tangible good customers while "factor(s) health” or if PDC identifies fact, Octapharma implicitly others. In ac- may adversely cause the donation to affect” a knowledges simultaneously that entities can "safety, purity, po- donor’s health or the perform different functions for different cus- tency component”). of the blood or blood We (char- Aplee. tomers or clients. See Br. 15 n.6 argument unavailing. find this As the United acterizing pawn shops and used record stores out, points States as amicus curiae the De- purposes as "sales establishments" for partment regulations III Justice’s Title ex- because, 12181(7)(E) while these entities plicitly allow accommodations “im- buy goods public, from some members of the рose legitimate safety requirements that are Moreover, others). goods ques- sell necessary operation,” long for safe as as likening paper tion dissent’s of PDCs to requirements those are "based on actual risks PDCs, paper mills. See Dissent 1244. Unlike speculation, stereotypes, and not on mere open typically mills don’t hold themselves generalizations about individuals with disabil- accepting product source from individual Reply ities.” U.S. Br. 3 28 C.F.R. PDCs, public. members of the hand, on the other event, 36.301(b)). we do not hold public-facing businesses. Given the today Octapharma must allow Levorsen goal affording with dis- ADA’s individuals plasma. position to donate Nor do we take a abilities access to the same establishments Octapharma unlawfully on whether discrimi- disabilities, available to without see PGA those 12182(a). against § nated Levorsen under We 676-77, Tour, 532 U.S. at 121 S.Ct. Octap- hold that Levorsen has access to ais relevant distinction. Thus, public harma as a accommodation. we reject Octapharma’s suggestion that our hold- Octapharma put

9. insists this conclusion will ing fundamentally position by creating is irreconcilable with the PDCs in an untenable regula- regulations governing conflict betweеn the ADA and certain FDA PDCs. history accommodation categories indicates that purpose for of Title III. Because the dis- “public “should accommodation[s]” be con- finding trict court erred in otherwise and (citation liberally” omitted)); strued see basis, in dismissing the action on that also Trainor v. Apollo Specialties, Metal proceed- reverse and remand for further Inc., 2002) ings. (“In our review of the antidiscrimination laws we must be mindful of their remedial HOLMES, Judge, dissenting. Circuit purposes, liberally interpret and pro- their I respectfully question dissent. The sole visions to that end.” (quoting Wheeler on appeal plasma-donation is whether a Hurdman, center constitutes a “service establish- 1987))); Vill, City Butler v. Prairie meaning ment” within the of 42 U.S.C. (noting that 12181(7)(F). § majority, contrast to the “the ADA’s remedial purposes are broad I do not believe that such centers fall Nevertheless, and far-reaching”). I would within the ambit of the term “service es- conclude that a plasma-donation center is Therefore, tablishment.” I would affirm not a “service establishment” within the judgment. the district court’s meaning §of specifically, More I I would conclude that ' the district court correctly by ref- ruled — A erence to the examples of service estab- In 42 Congress U.S.C. 12181(7)(F) lishments in listed —that category identified a of “private entities service establishments offer certain ser- [that] are considered accommoda- vices in exchange monetary compensa- i.e., service establishments —under tions” — fee). (i.e., further, tion Going my view, Title III of the Americans with Disabilities every service establishment (“ADA”), §§ Act of 1990 42 U.S.C. 12101- 12181(7)(F) key shares some unifying Congress category enumerated the (1) they traits: offer the a “service” laundromat, dry-cleaner, as follows: “a (a) expertise barbers, the form of (e.g., bank, beauty barber shop, shop, travel ser- beauticians, craftsman, shoe-repair dry vice, service, repair shoe parlor, funeral cleaners, parlors, lawyers, funeral account- station, gas office of an accountant or law- ants, offices, pharmacists, insurance health yer, office, pharmacy, insurance profes- (b) providers, hospitals) spe- care sional office of a provider, health care hos- equipment (e.g., cialized laundromats and pital, or other service establishment.” 42 (2) stations), gas achieving for use in some added). (emphasis (3) end, desired in exchange monetаry III We construe Title with its broad compensation. purpose remedial mind. PGA With the foregoing considerations in Tour, Martin, Inc. v. mind, it plasma-dona- becomes clear that 149 L.Ed.2d 904 tion centers are not service establishments (discussing mandate,” “compre- the “broad (7)(F). of subsection within character,” “sweeping pur- hensive First, plasma-donation centers do not re- pose” of the ADA in “eliminating] discrim- ceive a fee from members ination against disabled ] individuals! services that pro- integrating] them ‘into the economic ” Second, vide. plasma- to the extent that

and social mainstream of American life.’ (citations omitted)); donation id. centers services to the (stating legislative that Title Ill’s public, they public’s do not do so for the

1236 1260, Brown, instead, F.3d end; v. 529 United States a desired achieving use 2008). (10th centers’ use them for the 1265 Cir. they provide end—the collection of a desired achieving however, not, statutory construe doWe compa- pharmaceutical for sale plasma See, v. e.g., McDonnell terms in isolation. reasons, plas- principal For these two nies. -, -, States, 136 U.S. United fundamentally un- are centers ma-donation (“To 2355, 195 L.Ed.2d 639 in 42 establishments like the service competing dеfini those choose between I would conclude tions, the context in which the we look to’ scope they do not fall within Brune, v. United States appear.”); words plasma-dona- Consequently, that statute. 2014) (“[N]o (10th 1009, 1022 Cir. 767 F.3d accom- qualify not tion centers do can look unto itself. We statute is an island ADA, III of the under Title modations and context around to substance therefore did not err the district court term.”); see also unclear potentially complaint. Mr. Levorsen’s dismissing (“[W]e Bruñe, 767 F.3d 1022-23 phrase within required to construe

1 accompanying statute with reference to its interpreting stat task in primary “[0]ur giving of ‘in to avoid the words order in congressional to determine utes [is] the Acts of Con unintended breadth to discerning tent,” starting point for and the ” D. v. G. Searle & gress.’ (quoting Jarecki plain language is the intent congressional 1579, 6 Co., 81 S.Ct. 367 U.S. McMo Coffey Freeport v. of the statute. (1961))).Indeed, “the Gold, 1240, 1245 L.Ed.2d 859 & 581 F.8d Copper ran curiam) 2009) not, (10th (per (quoting statutory language, plain Rus de Cir. 1174, F.3d 1178 v. 551 Bank sell United First Nat’l pends on context.” (10th 2008)); v. see States (In Woods), Cir. United re 743 F.3d Durango v. Woods (10th 2012) West, Cir. 671 F.3d (10th 2014) (quoting United Cir. and foremost look to (stating that “we first (10th Villa, 589 F.3d States v. ascertain Con language,to the statute’s Villa, 2009)); F.3d at 1343 see also Cir. intent”). If the statute’s lan gressional that, give in order to the lan (observing clear, analysis comes to an our guage is its “most natural read guage of a statute Co., Ins. v. Standard end. Woods the bare mean ing,” we “consider (10th 2014); 1257, 1263 Cir. Unit ing placement but also its [text] Sprenger, ed States v. (altera statutory in the scheme” purpose 2010); Coffey, 581 F.3d at 1245. (citations omitted)). Thus, original) tion in is, unambiguous, we if the statute is That ambiguity statutory plainness or “[t]he statutory histo “resort ... need not by reference to the language is determined Wyodak sources. ry” ‍‌​‌‌‌​‌​‌​‌​‌‌​‌​‌‌​‌‌​‌​​​​‌​​‌​‌‌​​​‌‌‌​‌‌‌​​​‍or other extrinsic itself, context language specific States, 637 F.3d Corp. v. United Res. Dev. used, language and the which 2011); see also Anto- context of the statute as whole.” broader Reading Garner, Bryan nin A. Scalia & Butterball, LLC, Salazar Legal InteRpretation Texts Law: The Robinson v. (2012) (“[T]he purpose [of statute] Co., 337, 341, Shell Oil text, not from must from the be derived (1997)). 843, 136 L.Ed.2d 808 legislative history sources such as extrinsic Furthermore, plain interpreting legal about the drafter’s assumption or an terms, courts fre- meaning of desires.”). fact, beyond will look “[w]e interpreta- use various canons of quently only if the language of a statute “designed help judges determine the law.” tion application result is an absurd

1237 Legislature’s intent as embodied The distriсt court sought to derive “com- statutory particular language.” Chickasaw mon theme” from the enumerated exam- 84, 94, Nation v. United 534 ples, and U.S. concluded that all involve 528, 151 (2001). 122 S.Ct. provision goods L.Ed.2d 474 Two “the or services to the canons, ejusdem generis public, in exchange noscitur for money.” Aplt.’s sociis, effect, particularly App. are relevant at 37. In for inter applied court 12181(7)(F)’s preting ejusdem generis statutory language. and noscitur a sociis can- canon, ons. ejusdem generis Under the “when a general one, term specific follows a majority The concludes that the district general term should be understood as a court erred in applying these canons be subjects

reference to akin to the one with cause the ordinary meaning of the statuto specific enumeration.” Ali v. Bureau Fed. ry language conclusion, is clear. This how Prisons, 214, 223, 552 U.S. 128 S.Ct. ever, overlooks the key principle that such 831, 169 (quoting L.Ed.2d 680 Nor canons of construction are aids in Ry. & W. Co. v. Am. Dispatch Train folk construing the language itself—not tools to Ass’n, 117, 129, ers’ 499 U.S. 111 S.Ct. be relied the face ambiguity. 1156,113 (1991)). L.Ed.2d 95 — interpre McDonnell, at-, See U.S. 136 S.Ct. tive similarly canon noscitur a sociis coun 2355 (applying the noscitur a canon sociis that “a by sels word is company known to an unambiguous in giving statute it a 226, 128 keeps,” it id. at S.Ct. 831 “more reading”); limited. Chickasaw Na Prot., S.D. Warren Co. v. Me. Bd. tion, 94, 534 U.S. 122 (stating of Envtl. S.Ct. 528 370, 378, 547 U.S. 126 S.Ct. 164 that canons construction “designed are (2006)) i.e., L.Ed.2d “may 625 the word help judges determine Legislature’s ‘given precise by more content intent as embodied in particular statutory neighboring words with which it is associ language” (emphasis added)); Brune, 767 ” ated,’ Stevens, States v. United U.S. F.3d at (stating 1022-23 re “simply 460, 474, 130 S.Ct. 176 L.Ed.2d 435 sorting to dictionary definition in this (2010) (quoting Williams, United States v. case especially is not helpful” because 285, 294, 128 S.Ct. multiple “[t]he definitions of residual [the (2008)); L.Ed.2d 650 see also States United phrase preclude obvious, at issue] uni Phillips, tary usage,” but wording “the of the stat 2008) (“Under interpretive venerable application ute invites the of the canon of canons of noscitur a ejusdem sociis and ejusdem generis[ construction ] [be generis, of a catchall phrase is ‘general specific cause] words follow words given precise content specific terms in a statutory ...’” (quoting enumeration it.”). that precede Stores, Adams, Circuit City Inc. v. U.S. 149 L.Ed.2d (2001))); CBS, Inc. v. PrimeTime 24 (7)(F);

At in this Venture, issue case is subsection Joint (“[T]he the definition includes ac- “public canons of construction laundromat, “a dry-clean- commodations”: actually focus on text approved by er, bank, shop, beauty barber shop, travel Congress part made a country’s of our service, service, repair shoe parlor, funeral laws. of construction es Canons station, gas office of an sentially accountant or law- help tools which us to determine yer, pharmacy, office, insurance profes- whether meaning of a statutory provi sional office of a health provider, care sufficiently plain, sion is in light hos- of the text pital, or whole, other service establishment.” as a statute to avoid need added). (emphasis to consider extrinsic evidence of Congress’ omitted)); [that (footnote “interpretative gymnastics In re to

intent.” cf. (“[T]he duty to lib inappropriate our meaning given of Woods, are] F.3d at 694 743 12181(7)(F)” not, misguid is depends erally construe statutory language, Villa, construe Maj. Op. Though 589 F.3d at at 1231. ed. on context.” 1343)). liberally ADA Thus, interpre- of like Title III of the the consideration statutes see, step beyond plain- purposes, a remedial canons is not to effectuate their tative here, instead, Tour, can at meaning analysis; PGA analysis an and “ex- parcel and of such mean that we part that does not dictionary def- any “beyond complement language reliance the relevant ]” tendí terms,” terms. initions of the relevant ordinary sense of the just and Story, COMMENTARIES Joseph Indeed, majority on the Con case the single at resort assertion that support cites in of its OF THE UNITED States STITUTION 1991) (1833) (Fred B. & Co. Rothman appropriate is to canons construction (“Where nature, in is remedial its power ambiguity face an only contend, to that it much there is reason little to advance irrational result does ... But liberally. ought to be construed Valdez, In v. our court position. Edwards liberality clearly is inad exposition that courts point unremarkable made the missible, beyond just and if it extends only legislative history look to should terms.”); Sym ordinary sense of the see statutory ambiguity. See faced with a when Loan Chrysler Corp. Guarantee ons 1986) (“[A]b- 1477, 1481 (D.C. Bd., result, lit ambiguity or irrational sent (“The has a remedial legislation fact that of a statute controls. When language eral however, judi give not purpose, does clear, it is statute is license, ciary interpreting provision, unnecessary improper to resort and both entirely plain meaning disregard congression legislative history divine omitted)). by Congress.”); used see also (citation the words case This al intent.” Garner, (citing the & at 364 canons, supra, Scalia interpretive mention of makes no criticizing the so-called and way that consid suggest nor does it in COMMENTARIES rule”). weight And the “remedial-statute depar to a of such amounts eration canons authority makes clear that cited above analysis of plain-meaning ture from ejus- cannons” like interpretive “venerable disagree with the statute. I thus must and a sociis are generis dem noscitur majority’s assumption that the canons employ in dis proper useful tools invoked have implicitly the district court just ordinary sense of a cerning the present analysis play no role to Phillips, 543 F.3d at 1206. statute’s terms. statutory ambiguity or irrational absent a result; rather, directly canons are these short, I conclude that the dis- would analysis. plain-meaning relevant to our at least tac- apply, trict court’s decision to generis and itly, ejusdem the canons of

Furthermore, majority’s suggestion a sociis was not erroneous.1 canons here amounts noscitur applying these C, Furthermore, pt. app. "representative.” C.F.R. Mr. Le- the two reasons that (2013). why guidance "[t]he notes that and the Stаtes offer vorsen United category center establish- applied of social these canons not be here service should types posi- persuasive majority's ments would include no more than the centers, listed, First, day care senior and the establishments tion. Mr. Levorsen United shelters, banks, ‍‌​‌‌‌​‌​‌​‌​‌‌​‌​‌‌​‌‌​‌​​​​‌​​‌​‌‌​​​‌‌‌​‌‌‌​​​‍centers, food guid- citizen homeless point the administrative States out that agencies, adoption but also establishments provided by Department of Justice ance centers, ("DOJ”) substance treatment examples provided such as abuse states that the centers, halfway 12181(7) houses.” Id. merely rape but crisis are not "exhaustive” Moreover, this conclusion bolstered are helpful to the inquiry here, called for recognition of our I several sister and resort to them. have used noscitur circuits a sociis in in 12181(7). See,

terpreting § e.g., Weyer v. Century Corp., Twentieth Fox Film Having examples reviewed the 2000); Ford v. with the benefit of the fore- Schering-Plough Corp., 145 F.3d 614 going canons, interpretive agree I with the (3d 1998); Cir. v. Metro. Ins. Parker district court that service establishments Life Co., (6th 1006, 1014 1997) (en Cir. offer public services to the in exchange for banc). view, therefore, my these compensation.2 canons Every service establish- construction, The DOJ’s Title III ples Technical Assistance Man- statutory including the examples ual states that given construction, also "the are canons of and after a conclusion Justice, just Dep’t illustrations.” U.S. ADA that the ambiguous may statute is the court Title III Technical Assistance Manual Cover- (footnote legislative turn the history.” to omit- ing Public Accommodations and Commercial ted)); Venture, PrimeTime 24 Joint 245 F.3d at III-1.2000, www.ada.gov/taman3. Facilities (noting 1225 that "where meaning the of a (last 7, 2016). July html visited While we statute is light discernible in of canons of guidance deference accord to the DOJ’s re- construction, we legisla- should not resort to III, see, garding Abbott, e.g., Title Bragdon v. history evidence”); tive or other extrinsic see 624, 646, Stores, City also Circuit 532 U.S. at (1998); Disability L.Ed.2d Colo. Cross 121 S.Ct. 1302 (applying canons of construc- I, Family P’ship Coal. Hermanson Ltd. including ejusdem generis tion interpret to the 2001), F.3d 1004 n.6 contrary statute, text of a and concluding then suggestion to the of Mr. Levorsen and the holding because the Court’s was “directed guidance United suggest such does not statute], the text of [the [the Court] need disregard that we examples must listed in legislative history”); assess the PrimeTime (7)(F) subsection as touchstones when dis- Venture, ("Even Joint 245 F.3d at 1225 where cerning scope of the term “service estab- language entirely is not trans- contrary, To lishments.” the DOJ has parent disposal Court has tools its statutorily made clear that the enumerated elucidating for of a statute with- examples "representative” are and "illustra- reverting out legislative history. These tools of what tions” constitutes "service establish- construction.”). are the canons of is, examples ment”—that possess qualities common to all "service establish- precise, 2. To be more the district court indi- ments.” See Webster’s cated that "in all establishments listed under Third New Internation- (2002) [hereinafter Web- Dictionary (F), al subsection theme provi- common is the as, (defining "representative” inter goods sion of ster's] public, or services to the in alia, “conveying an idea of others of the kind” exchange (em- money.” Aplt.'s App. for at 37 to, and way corresponds "one that in some added). However, phasis ap- it seems more replaces, equivalent or is to someone or some- propriate and natural to think of “service else”). thing providing establishments” as some form Second, “service,” Mr. Levorsen and United good, States rather thоugh than a legislative history cite suggest ejusdem delivery good may of a be incidental to the generis and noscitur a furnishing sociis should not be (e.g., of a gas service a full-service But, applied (7)(F). Indeed, relying subsection in pharmacy). station or a there legislative history, they put proverbial provisions cart other “public statute’s of the ac- before horse. As several courts have ob- appear commodations” definition that served, turn to clearly contemplate extrinsic sources such more provision legislative see, history (de- goods, e.g., 12181(7)(E) illumination after we 42 U.S.C. have discerning been unsuccessful fining "public in Con- accommodations” to include gress’s store, intent store”), from the bakery, grocery words of the statute "a clothing [or] including through the use of "lightly” presume canons of and we do not that Con- itself— statutory interpretation. gress Carrieri v. any redundancy enacting intended Inc., (7)(F),

Jobs.com Smith, 518-19 subsection States v. United 2004) (“Only application princi- 2014) ("Some- after of the in sub- study examples a ser- novo in that offers ment listed subsection (7)(F), however, offers some dis- section exchange compen- vice to the Specifically, every service cernable clues. dry cleaners offer and sation: laundromats (7)(F) listed in subsection establishment cleaning of clothes involving the services in the form a “service” provides fee, barbers and beauti- for a exchange beauticians, barbers, expertise (e.g., style hair in ex- offer to cut cians cleaners, businesses, fu- dry shoe-repair fee, shoe-repair businesses for a change accountants, lawyers, insur- parlors, neral fee, exchange for a shoes repair offer to offices, providers, health care ance Therefore, I conclude would and so on.3 (2) specialized equipment hospitals), services offer establishments that service stations).4 gas (e.g., laundromats (i.e., a fee to the Moreover, the services that such establish- monetary compensation). (not surpris- to the ments expressly did not court The district in public’s for the use ingly) intended cut, hair achieving (e.g., kinds “services” a end a opine on the desired advice).5 Therefore, clothes, legal Undertaking a de clean contemplates. statute understanding in the con- employ lan- 5.This of "services” legislatures redundant times (7)(F) examples neither in subsection is doubt that's true but text of the guagе. We don’t a conclusion to reach such with the common view of the term are we entitled consistent notes, authority discerning re- lightly. Respect majority for democratic in "service.” As the term, judges to exercise quires ordinary generally unelected federal meaning of a we declaring See, the words en- great before caution dictionaries. In re look to standard representatives by people's Dist., to be acted Hamilton Creek Metro. omitted)). (citation any superfluous.” 1998) ("[TJhe ordinary mean- indeed, it, event, deter- as I see may essential' — ing attached to the word ... be found sought court point that the district commonly accepted dictionary defini- aid minative— to theme” of convey the "common is there, matter, tions.”). Looking general aas (7)(F)'s enumerated service estab- subsection perform- means "conduct or "service" something they provide is lishments or someone or some- ance that assists benefits agree exchange And I public in a 2075; fee. for thing.” supra, at see also Webster's, court, infra, as discussed with the district (2d ed. Dictionary New Oxford American principal ground of distinction be- this is (defining “service” [hereinafter Oxford] (7)(F)’s servicе establish- tween subsection as, alia, assistance”). A ser- inter "an act of plasma-donation centers. ments and produce tangible typically vice does not good a customer or client. See Webster’s, every other listed same can be said of 3. The as, (defining inter supra, at 2075 “service” stations, is, gas parlors, example: funeral alia, produce a "useful labor that does not businesses, banks, offices of ac- travel-service tangible commodity,” "providing services and lawyers, pharmacies, insurance countants tangible goods”); supra, rather than Oxford, offices, pro- offices of healthcare professional as, alia, (defining inter at 1549 "service” viders, hospitals. and for a other than manu- "work done customer facturing”). Though they joust spe- in about the of the entities listed sub- Of course some (7)(F) (7)(F) respect conceivably provide import with cific of subsection section could centers, is, parties (along they plasma-donation in both forms—that a "service” majority) gener- expertise appear with the to share this provide the both could understanding example, gas al of the foundational term specialized equipment. For Opening public specialized e.g., Aplt.'s Br. at 13 might provide the "service.” station (“[A] reading obtaining gasoline natural of the term 'service es- equipment but also ex- any facility, malfunctioning plainly pertise repairing automo- tablishment’ includes that, public, ex- open to the where commercial to conclude biles. It is reasonable circumstances, involving intangible change is con- entities unenumerated some benefit added)); (emphasis Aplee. at ducted.” Br. qualify service establishments under ("The (7)(F) dictionary definition of may provide most relevant subsection a "service” produce ‘useful labor that does not well. 'service' is in both forms as foregoing establishment,” the statute with the viewing con- “service it is critical that mind, every courts the analytical siderations estab- eschew misstep service concluding unambiguous that the meaning lishment shares of a statutory may term per divined key unifying some traits: offer to the force from ordinary (1) meaning of its (a) public a “service” in the form component terms. See Yates v. United barbers, beauticians, expertise (e.g., shoe- U.S.-, craftsman, cleaners, repair dry funeral (2015) (plurality opinion) L.Ed.2d parlors, accountants, lawyers, of- insurance (“Whether statutory term unambigu fices, providers, health care pharmacists, ous, however, does turn solely on dic (b) hospitals) specialized equipment tionary definitions of its component (2) (e.g., stations), gas laundromats and words.”); Bait, see also Barks v. Silver in achieving use some desired end of the LLC, 2015); public, for compensation. Found., NAACP, Radiance Inc. v. In contrast to this arriving method of 2015). Regrettably, establishment,” definition of “service the majority’s narrow focus on the dictio majority contends that may glean nary definitions of the terms “service” and phrase by simply combin- “establishment” leads it to fall prey to ing dictionary definitions of the terms precisely analytical misstep. As a con analy- “service” “establishment.” This sequence, majority misguidedly es however, misguided, sis is op- because the chews the well-established contextual (7)(F) erative term under subsection is examining of methodology statutory the establishment” —a statutory “service term language surrounding the term at issue. my that analysis shows has meaning See, Yates, e.g., 135 S.Ct. at (plurality quite from dictionary distinct defini- (“In life, opinion) however, law as in component tions of its words. Although the words, placed contexts, same in different ordinary meaning of the “service” terms sometimes mean things.”); different and may (“[N]o “establishment” in helpful Brune, dis- 767 F.3d at 1022 statute is itself.”).6 cerning statutory of the an term island unto ” tangible commodity.' they on the words statute and what Merriam- Collegiate Dictionary convey Congress’s about intent. Webster’s Venture, PrimeTime 24 Joint at 1996))). ed. (“[T]he of construction focus canons on the Additionally, majority apply- that asserts approved actually by Congress text and made ing the well-established canons construc- laws.”). part country’s Congress pro- of our tion princi- discussed herein runs afoul of the (7)(F) examples vided in textual subsection ple construction that "counsels that it to be illustrative intended of the mean- against reading direction-of-compensa- ... a establishment,” ing of the term "service cf. requirement tion into the when one statute Garner, ("The supra, Scalia & at 61 canons appear Maj. Op. doesn’t there.” at 1232. In just approach influence not how courts texts regard, majority cites States v. United techniques legal but also that drafters Sturm, where we cautioned "[c]ourts that texts.”), preparing follow in those and those 'ordinarily reading must resist or ele- words examples indicate that in order to bе a "ser- ments into a statute that appear establishment,” do not on its entity vice an must receive ” face.’ 673 F.3d compensation from the for services (quoting Bates v. United Furthermore, rendered. unlike the defendant (1997)). Sturm, 139 L.Ed.2d 215 Congress in do not contend I However, relying on canons of construction compensation omitted component glean Congress’s intent through from the statute's some "scrivener's error” and language cry reading far words into by reading should now correct that "error” simply a statute that component are not At all there. back into the statute. See times, canons, Sturm, Instead, applying these focus is 673 F.3d at 1278-79. I main- etc.”). ment, my analysis, purposes For sum, qualify that to I would conclude In Indeed, in they under are establishment” I assume that correct. “service entity offer the alleged must respects, these two some material expertise in the form public a service comfortably within the seem to fit services achieving for use equipment specialized that, view, my category of “services” exchange end of the some desired (7)(F) in that contemplates, subsection below, explained As compensation. for providing would involve they satisfy this centers dо not plasma-donation screening for expertise (e.g., blood with description. equip- eligibility) specialized donor (e.g., equipment capable perform- ment ing plasmapheresis). centers plasma-donation arguing However, I nonetheless conclude would under subsec- establishments” “service estab- the definition of “service (7)(F), and the United tion Mr. Levorsen above, princi- two discussed lishment” cen- plasma that “a donation assert States reasons, like plasma-donation centers pal two services: provides at least discrete ter qualify as es- Octapharma fail to service (1) en- individual’s screening the blood meaning of tablishments within the eligibility for a donation the donor’s sure 12181(7)(F). First, cen- plasma-donation trained technology and using its a fee from members of ters do not receive properly process to extract personnel services Aplt.’s Opening plasma.” the individual’s Quite furnish. the obverse is 20; Amicus Br. for U.S. as Br. at see also give pub- members of the true: the centers (“Plasma centers donation Curiae tendering to them a commodi- lic a fee for [as have same characteristics these or, plasma alternatively, inty the fоrm of 12181(7)(F)]. They §in examples listed colloquial in a performing least equipment needed specialized —at donating plasma. sense—the “service”7 plasma personnel and trained procure the service concretely, Put more unlike operate equip- eligibility, assess donor probably Congress pro- public, thus it is closer to plain to the that the terms that tain (7)(F) say providing Mr. Levorsen is are imbued with the truth that us in subsection vided commodity Octapharma’s component applying compensation manufactur- the Indeed, ing process. complaint, patent. in his Mr. makes See of construction canons Nation, plasma the he do- U.S. at avers that that Levorsen Chickasaw "designed (canons are further of construction nates is "used as source material for Legislature’s manufacturing Aplt.’s App. intent help determine the use.” at Howev- judges 8. er, statutory language.” particular purposes analyzing in the terms as embodied added)). statute, language that (emphasis proper There is no characterization providing commodity to be added. the donor’s action as needs Rather, impor- is immaterial. service point irrespective tant of whether Mr. plasma suggested do- district court that — donors) (and provided Octap- other Levorsen may like Mr. Levorsen be viewed nors commodity or a ex- harma a service—in plasma-donation cen- providing a service to Octapharma, change, a fee received regard, he Octapharma. In this it ob- ters like from whereas, contrast, estab- in all of service plasma that "it is the center served donation (7)(F) received listed in subsection money lishments to member offers service, public for their rather a fee for a service to center—the from Therefore, view, paying my plasma.” Aplt.'s than Oc- App. at 37. How- one. donation ever, I.B, practice paying plas- tapharma's plasma-dona- Part business as noted infra paradigm fit the of ser- actually ma donors does not tion resemble centers manufacturers described in they business vice establishments subsection typical more than do the much am. (7)(F) provides services subsection (7)(F), establishments found subsection not an by end desired the service estab- money did not receive Thus, lishment. the majority’s conclusion service; Mr. in exchange Levorsen for a that plasma-donatiоn centers are service instead, Therefore, it Mr. paid Levorsen. (7)(F) establishments under subsection ef- plasma-donation fundamentally centers are fectively turns the statute’s service model the service unlike establishments of sub- on its recipient head —the of the desired (7)(F); provide section all of them services (as end well payor) as the plasma- is the in exchange for a fee. donation public.8 center and not the Second, to the that plasma-dona- extent Indeed, recognizes once one it is tion provide centers services to pub- plasma-donation center, and not the lic—such as those services identified public, that recipient is the of the desired Mr. Levorsen they and the United States — end, point the first of distinction discussed do not public’s do so for the use achiev- supra plasma-donation between centers end; instead, ing desired they provide (7)(F)’s and subsection service establish- them for the centers’ use in achieving a i.e., plasma-donation the fact that ments — end. specifically, plasma-do- desired More centers pay fee rather than receive nation centers with the perfect one—makеs Specifically, sense. be- expertise associated with screening blood cause the centers the ultimate recipi- specialized equipment and the necessary to end, ents of the desired it should not be plasma collect so that the can sell centers surprising that the centers are the ones plasma to their customers phar- in the providing compensation, rather than (i.e., industry maceutical the desired public. end) so that can the public assist —not sum, guided by well-settled canons Or, to achieve some desired end. viewed statutory construction, I would conclude through facts, the lens of Octaphar- these plasma-donation centers are funda- ma Mr. provided expertise Levorsen its mentally unlike the service establishments specialized equipment so could 12181(7)(F).And, listed in 42 U.S.C. con- (i.e., plasma obtain for sale his the desired end), sequently, they do not fall within not to the ambit allow Mr. Levorsen achieve of that provision. ineluctably It some desired end. follows that plasma-donation centers are not ac- Octapharma-Levorsen This scenario is commodations under Title III of the ADA. patently at odds with the service-establish- Aсcordingly, I would hold that the district (7)(F) ment paradigm that subsection en- court did in dismissing not err Mr. Levor- specifically, every visions: service estab- complaint. sen’s lishment listed in that offers subsection public i.e., of the members ex- service — B pertise specialized equipment use —for achieving by end desired (e.g., foregoing plasma- them conclusion—that shoes)— clothes, haircut, clean repaired donation are not centers service establish- sure, beTo Mr. Levorsen public receives a fee for member of the will receive from donation, plasma his complaint’s and the service establishment both the service and the words, clearly indicate averments that he through prism desires fee. In other viewed payments. (7)(F), such But such fees be the of cannot subsection the fee cannot be the desired end of the service under subsection desired public that the end seeks to achieve (7)(F) contemplates because the plasma-donation statute that from the centers because the provide service establishment will contemplates the ser- statute that it is the service es- exchange vice to the a fee that it tablishment that will receive the fee in ex- for receives; the change statute does not that a providing envision for the desired end. human or condition of cure of a disease of subsection the ken ments within added)). (emphasis beings.” (7)(F) terms plain on the squarely —rests of statute, through prism viewed Moreover, regulatory agency, that interpretation canons (“FDA”), well-settled Drug Administration Federal the relevant statuto- allow consideration centers as too, plasma-donation regards believe, conclusion, I “manufacturers,” ry context. And activities— and all their affirming the dis- that Mr. Levorsen including basis the services is a sufficient However, identified —as the United States judgment. court’s trict manufacturing of Source in the “steps' by the observation strongly reinforced 640.71(a) (“All steps § Plasma.” C.F.R. manu- centers resemble plasma-donation Plasma, manufacturing of Source in the they do the kind much more than facturers examination, collec- blood including donor provide ser- customarily ‍‌​‌‌‌​‌​‌​‌​‌‌​‌​‌‌​‌‌​‌​​​​‌​​‌​‌‌​​​‌‌‌​‌‌‌​​​‍entities that tion, laboratory testing, plasmapheresis, (7)(F). subsection under vices to the per- labeling, storage, issuing shall manufacture a centers Plasma-donation by personnel of the establishment formed product derive this plasma. They product: Plasma to manufacture Source licensed commodity i.e.,whole blood— a raw 600.3(t) (“Manufacturer ....”); id. a fee. exchange that donors entity engaged any legal person or means centers regard, plasma-donation this subject to product manufacture of a manu- type mills—a paper more like ....”); act id. license under typical business facturer —than 606.171(a) (“Who report under this must under sub- to the provides services You, a licensed manufacturer section? (7)(F). mills, plasma- Paper like section including components, blood and blood centers, offer a fee donation ”). .... Source Plasma (wood), first-stage input which raw Thus, plasma-dona- the observation and, ultimately, pulp they convert first much manufacturers tion centers resemble (paper), for end-product into a marketable typical business more than do users.9 sale to end provides services to the observation, at least In accord with (7)(F) regu- is validated subsection clearly re- Congress purposes, for some Congress and the FDA. latory judgment of centers as gards plasma-donation manufac- conclu- this observation bolsters the And turers. analy- that I reach based on an sion would 262(a)(l)(B)(ii) each (requiring 12181(7)(F)— §of sis of the terms be marked package biological product of a viz., not ser- plasma-donation centers are identity “of manufacturer with the meaning of within the vice establishments 262(i)(l) (7)(F). biological product”); id. subsection (“The means ‘biological product’ term II antitoxin, serum, toxin, virus, therapeutic vaccine, blood, component reasons, foregoing I am con- blood For [or] treatment, Contrary major- to dissent. to the strained applicable prevention, to the Costle, Requiring Closing Loop: Double-Sided generally WeyerhaeuserCo. v. 9. See 1978) ("To (D.C. Recycled make Bleached Copying and Non-Chlorine paper- paper art .... from trees is an old Papers, Paper Federal Court 1995 WIS. L. chips ground making, logs wooden must typically pro- ("Paper REV. mills processes up ‘cooked’ in one of several stripping bark paper from wood first duce pulp pulp is left. The until cellulose stripped logs logs grinding these types and made into various bleached and chips.”). into Knopf, grades paper.”); Christopher D. I would conclude that the ity, district court in dismissing

did err Mr. Levorsen’s

complaint because he failed demon-

strate, law, plasma- as matter of

donation centers are service establish-

ments under Ac-

cordingly, I would affirm the district judgment.

court’s

PLANNED PARENTHOOD UTAH,

ASSOCIATION OF

Plaintiff-Appellant,

Gary HERBERT, R. in his official ca

pacity as Governor of the State of

Utah; Joseph Miner, M.D., K. in his capacity

official as Executive Director Department Health, the Utah

Defendants-Appellees.

No. 15-4189

United States Court of Appeals,

Tenth Circuit.

July

Case Details

Case Name: Levorsen v. Octapharma Plasma, Inc.

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jul 12, 2016

Citation: 828 F.3d 1227

Docket Number: 14-4162

Court Abbreviation: 10th Cir.