Levorsen v. Octapharma Plasma, Inc.

828 F.3d 1227

Brent Levorsen, Plaintiff–Appellant

v.Octapharma Plasma, Inc., Defendant–Appellee.

United States of America; Plasma Protein Therapeutics Association, Amici Curiae.

No. 14-4162

United States Court of Appeals, Tenth Circuit.

FILED July 12, 2016

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 , ––– U.S. ––––, 135 S.Ct. 1469, 191 L.Ed.2d 414 (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 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.

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.

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 against disabled individuals.” PGA Tour, Inc. v. Martin , 532 U.S. 661, 674, 121 S.Ct. 1879, 149 L.Ed.2d 904 (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, 121 S.Ct. 1879 ; 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 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...