Amicus Curiae Brief — Mark Silguero, et al., Petitioners v. CSL Plasma, Incorporated

No. 19-603

IN THE

MARK SILGUERO AND AMY WOLFE,

v.

Petitioners,

CSL PLASMA, INC.,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR AMICI CURIAE

CURRENT AND FORMER MEMBERS OF

CONGRESS IN SUPPORT OF PETITIONERS

Pamela S. Karlan

Counsel of Record

Jeffrey L. Fisher

Brian H. Fletcher

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 725-4851

karlan@stanford.edu

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICI CURIAE................................. 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 3

I.

Title III of the ADA broadly defines the

“public

accommodations”

that

cannot

discriminate against people with disabilities ...... 3

A. The ADA’s text and structure require full

integration of people with disabilities

across all aspects of civic life .......................... 3

B. Congress adopted a definition of “public

accommodations” that covers virtually all

public-facing entities ....................................... 4

C. The “public accommodations” provision

reaches all establishments that provide

services to the public ....................................... 9

II. Because plasma donation centers are “service

establishment[s],” they fall within Title III’s

definition of “public accommodations” ............... 11

A. The ordinary meaning of “service

establishment” covers plasma donation

centers ............................................................ 11

B. The Fifth Circuit erred in distinguishing

plasma donation centers from other

service establishments .................................. 14

CONCLUSION .......................................................... 22

APPENDIX ................................................................ 1a

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Baker Botts LLP v. ASARCO LLC,

135 S. Ct. 2158 (2015) ......................................... 12

Brown v. J.H. Bell Co.,

123 N.W. 231 (Iowa 1909) ................................... 22

Cecil v. Green,

43 N.E. 1105 (Ill. 1896) ....................................... 21

Circuit City Stores, Inc. v. Adams,

532 U.S. 105 (2001) ............................................. 22

Gooch v. United States,

297 U.S. 124 (1936) ............................................. 20

Heart of Atlanta Motel, Inc. v. United States,

379 U.S. 241 (1964) ............................................... 6

Kan. Comm’n on Civil Rights v. Sears, Roebuck

& Co.,

532 P.2d 1263 (Kan. 1975) .................................. 21

Levorsen v. Octapharma Plasma, Inc.,

828 F.3d 1227 (10th Cir. 2016) ..................... 15, 16

Local Fin. Co. of Rockland v. Mass. Comm’n

Against Discrimination,

242 N.E.2d 536 (Mass. 1968) .............................. 21

Matheis v. CSL Plasma, Inc.,

936 F.3d 171 (3d Cir. 2019) ................................. 15

Norfolk & W. Ry. Co. v. Am. Train Dispatchers’

Ass’n,

499 U.S. 117 (1991) ............................................. 22

Octane Fitness, LLC v. ICON Health &

Fitness, Inc.,

572 U.S. 545 (2014) ............................................. 14

iii

PGA Tour, Inc. v. Martin,

532 U.S. 661 (2001) ......................................passim

Rhone v. Loomis,

77 N.W. 31 (Minn. 1898) ..................................... 22

Sebelius v. Cloer,

569 U.S. 369 (2013) ............................................. 11

Sutton v. United Air Lines, Inc.,

527 U.S. 471 (1999) ............................................... 3

Toyota Motor Mfg., Ky., Inc. v. Williams,

534 U.S. 184 (2002) ............................................... 3

United States v. Powell,

423 U.S. 87 (1975) ............................................... 20

Watt v. W. Nuclear, Inc.,

462 U.S. 36 (1983) ............................................... 22

Statutes

Americans with Disabilities Act of 1990,

Pub. L. No. 101-336, 104 Stat. 327 ..............passim

ADA Title I ...................................................... 4, 18

ADA Title III ................................................passim

ADA Title IV .......................................................... 4

42 U.S.C. § 12101 .........................................passim

42 U.S.C. § 12101(a)(1) ....................................... 21

42 U.S.C. § 12101(a)(5) ............................... 2, 4, 21

42 U.S.C. § 12101(a)(7) ................................... 3, 21

42 U.S.C. § 12101(b)(1) ..................................... 4, 8

42 U.S.C. § 12101(b)(4) ......................................... 3

42 U.S.C. § 12103 .................................................. 9

42 U.S.C. § 12111 .................................................. 4

iv

42 U.S.C. § 12111(9)(B)......................................... 9

42 U.S.C. § 12181(7).....................................passim

42 U.S.C. § 12181(7)(A)......................................... 7

42 U.S.C. § 12181(7)(B)..................................... 7, 8

42 U.S.C. § 12181(7)(C)..................................... 6, 7

42 U.S.C. § 12181(7)(D) ........................................ 7

42 U.S.C. § 12181(7)(E)................................. 5, 6, 7

42 U.S.C. § 12181(7)(F) ................................passim

42 U.S.C. § 12181(7)(G) ........................................ 7

42 U.S.C. § 12181(7)(H) .................................... 6, 7

42 U.S.C. § 12181(7)(I) ...................................... 6, 7

42 U.S.C. § 12181(7)(J) ......................................... 7

42 U.S.C. § 12181(7)(K) ................................ 5, 7, 8

42 U.S.C. § 12181(7)(L) ......................................... 7

42 U.S.C. § 12182(a).............................................. 4

Civil Rights Act of 1964, Pub. L. No. 88-352,

78 Stat. 241 ............................................................ 5

Civil Rights Act Title II ................................. 2, 4, 5

42 U.S.C. § 2000a(b) .............................................. 5

47 U.S.C. § 225............................................................. 4

Alaska Stat. § 18.80.300 (1987)................................. 10

Colo. Rev. Stat. § 24-34-601 (1989) ................... 6, 9, 10

D.C. Code § 2-1401.02 (1987) ................................ 9, 10

Del. Code Ann. tit. 6, § 4501 (1963) .......................... 10

Haw. Rev. Stat. § 489-2 (1988) .......................... 6, 9, 10

775 Ill. Comp. Stat. 5/5-101 (1980) ....................... 9, 10

Iowa Code § 601A.2 (1988) ........................................ 11

v

Mass. Gen. Laws ch. 272, § 92A (1989)................. 9, 10

Me. Rev. Stat. Ann. tit. 5, § 4553 (1987) ................... 10

Mont. Code Ann. § 49-2-101 (1989) ........................... 10

N.D. Cent. Code § 14-02.4-02 (1989) ......................... 11

N.Y. Exec. Law § 292 (1982).................................. 9, 10

Ohio Rev. Code Ann. § 4112.01 (1980) ...................... 10

Okla. Stat. tit. 25, § 1401 (1968) ............................... 10

43 Pa. Cons. Stat. § 954 (1986) ................................. 10

11 R.I. Gen. Laws Ann. § 11-24-3 (1956) .................. 10

Rules and Regulations

Sup. Ct. R. 37.2 ............................................................ 1

Sup. Ct. R. 37.6 ............................................................ 1

Legislative Materials

136 Cong. Rec. H11472 (daily ed. May 22, 1990) ... 8, 9

Americans with Disabilities Act of 1989: Hearing

on H.R. 2273 Before the Comm. on the

Judiciary and the Subcomm. on the Civil and

Constitutional Rights of the Comm. on the

Judiciary, 101st Cong. (1989) ............................... 6

Oversight Hearing on H.R. 4498, Americans with

Disabilities Act of 1988 Before the Subcomm.

on Select Education of the Comm. on

Education and Labor, 100th Cong. (1988)........ 6, 7

S. Rep. No. 101-116 (1989) .......................................... 7

Other Authorities

CSL Plasma, Contact Us,

https://www.cslplasma.com/contact-us ............... 12

vi

CSL Plasma, Donation Process,

https://www.cslplasma.com/become-adonor/the-donation-process ................................. 15

CSL Plasma, Registration No. 4976372 ................... 12

Danny Recycling Inc., Services,

https://www.dannyrecyclinginc.com/services ..... 18

Eskridge, William N. Jr. et al., Cases and

Materials on Statutory Interpretation

(2012 ed.) ............................................................. 14

GreenCitizen’s Burlingame EcoCenter,

https://greencitizen.com/free-electronicsrecycling-drop-off ................................................. 18

Kavanaugh, Brett M., Fixing Statutory

Interpretation, 129 Harv. L. Rev. 2118

(2016) (book review) ............................................ 20

Oxford English Dictionary (2d ed. 1989) .................. 12

Scalia, Antonin & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts

(2012) ................................................................... 20

Webster’s New International Dictionary (2d ed.

1945) ........................................................ 11, 12, 14

INTEREST OF AMICI CURIAE 1

Amici are a bipartisan group of current and

former United States Senators and Representatives

who were instrumental in sponsoring and enacting the

Americans with Disabilities Act, 42 U.S.C. § 12101 et

seq. Their names are listed in Appendix A. In this case,

the court of appeals adopted an unduly narrow

construction of the language that amici and their

colleagues deliberately selected to create a broad

public accommodations provision. This misreading of

a landmark civil rights statute warrants the Court’s

intervention.

SUMMARY OF ARGUMENT

Congress enacted the Americans with Disabilities

Act (“ADA” or the “Act”) to eliminate widespread

discrimination against people with disabilities. Title

III broadly prohibits discrimination that denies

individuals the ability to be consumers, patrons, or

clients of “public accommodations.” Plasma donation

centers fall within the plain meaning of “service

establishment” in the definition of “public

accommodations” and therefore cannot deny access to

individuals on the basis of those individuals’

disabilities. As the principal sponsors of the Act, amici

offer a unique perspective on the text, structure, and

drafting history supporting that conclusion.

1

Pursuant to this Court’s Rule 37.6, counsel for amici curiae

state that this brief was not authored in whole or in part by

counsel for any party, and no person or entity other than amici

and their counsel made a monetary contribution to the

preparation or submission of this brief. In accordance with this

Court’s Rule 37.2, all parties were timely notified of the amici’s

intent to file this brief, and all parties consented to the filing.

2

Taken together, the ADA’s titles cover all aspects

of civic life. This Court has recognized that “one of the

Act’s most impressive strengths” is “its comprehensive

character.” PGA Tour, Inc. v. Martin, 532 U.S. 661,

675 (2001) (internal quotation marks omitted). In

particular, Title III’s public accommodations provision

sweeps more broadly than both the state public

accommodations laws that predated it and Title II of

the Civil Rights Act of 1964. Title III bans virtually all

entities open to the public from implementing

“exclusionary qualification standards and criteria”

that categorically exclude prospective patrons on the

basis of their disabilities. 42 U.S.C. § 12101(a)(5).

The decision in this case both creates a circuit split

on the interpretation of a landmark federal civil rights

statute and threatens to undermine the Act’s

comprehensive character. The Fifth Circuit concluded

that plasma donation centers are not “service

establishment[s].” In doing so, it inappropriately

applied the ejusdem generis canon, adopting a

cramped interpretation of “service establishment” that

contravenes both the ordinary meaning of the

language that Congress deliberately selected and the

ADA’s duly enacted findings. Nothing about the

business model that plasma donation centers use

should exempt them from Title III’s prohibition on

discrimination against members of the public with

disabilities.

*

*

*

3

ARGUMENT

I.

Title III of the ADA broadly defines the “public

accommodations” that cannot discriminate

against people with disabilities.

Petitioners have shown that plasma donation

centers fall within the ordinary meaning of “service

establishment” and are therefore covered by Title III’s

public accommodations provision. Pet. 22-28; see also

infra pages 11-14. And as amici are uniquely

positioned to explain, petitioners’ interpretation of the

operative statutory text is powerfully reinforced by

both the Act’s specific findings and amici’s deliberate

drafting

decisions

that

confirm

“public

accommodations” must be read to reach virtually all

public-facing entities.

A. The ADA’s text and structure require full

integration of people with disabilities across

all aspects of civic life.

1. In 1990, Congress “invoke[d] the sweep of

congressional authority” to pass the ADA, a bipartisan

effort “to address the major areas of discrimination

faced day-to-day by people with disabilities.” 42 U.S.C.

§ 12101(b)(4). It issued detailed findings to support the

legislation. As this Court has recognized, those

findings have served a “critical[]” role in judicial

construction of the Act’s scope. Sutton v. United Air

Lines, Inc., 527 U.S. 471, 484 (1999); see Toyota Motor

Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197-98

(2002).

In particular, the Act announced the goals of “full

participation, independent living, and economic selfsufficiency” for Americans with disabilities. 42 U.S.C.

4

Given this mission, Congress

§ 12101(a)(7).

structured the ADA to ensure its applicability in

virtually all parts of American life: in employment

(Title I); in transportation and civic life (Title II); in

economic and social life (Title III); and in

communications (Title IV). 42 U.S.C. § 12111 et seq. 3

Together,

these

provisions

constitute

a

“comprehensive national mandate for the elimination

of

discrimination

against

individuals

with

disabilities.” 42 U.S.C. § 12101(b)(1).

2

2. Title III realizes that commitment by

guaranteeing people with disabilities “the full and

equal enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations of any

place of public accommodation.” 42 U.S.C. § 12182(a).

By

prohibiting

public-facing

entities

from

implementing “exclusionary qualification standards

and criteria,” Title III secures the rights of persons

with disabilities to engage these entities on the same

terms as all other members of the public. 42 U.S.C.

§ 12101(a)(5).

B. Congress adopted a definition of “public

accommodations” that covers virtually all

public-facing entities.

Congress did not write on a blank slate when it

crafted Title III’s definition of a “public

accommodation,” 42 U.S.C. § 12181(7). Title II of the

For the convenience of the reader, we use the current

numbering of the relevant findings. Those findings are carried

over unchanged, but renumbered, from the original 1990 version

of the Act. See 42 U.S.C. § 12101 note.

2

Title IV, the telecommunications section of the Americans

with Disabilities Act, is codified at 47 U.S.C. § 225.

3

5

Civil Rights Act of 1964 and state statutes provided

templates. Moreover, some state courts at the turn of

the twentieth century had given unreasonably narrow

constructions to state public accommodations laws,

and Congress wished to avoid that danger. See infra

pages 21-22. Comparing what Congress did in the

ADA with those prior federal and state models

underscores Title III’s broad reach. The ADA defined

public accommodations using an extensive set of

categories, illustrated those categories with numerous

examples, and added a catchall to each category to

capture what was not specifically enumerated. That

combination both reached the discrimination of which

Congress was already aware and prohibited

discrimination by a broad swath of entities going

forward.

1. The definition of “public accommodations” in

Section 12181(7) of the ADA goes far beyond the

definition in Title II of the Civil Rights Act of 1964.

The 1964 Act limited itself to places of lodging,

facilities principally engaged in selling food, and

places of exhibition or entertainment. Civil Rights Act,

Pub. L. No. 88-352, § 201(b), 78 Stat. 241, 243 (1964),

codified as 42 U.S.C. § 2000a(b). By contrast, the ADA

covers a much larger portion of the private sector—

reaching, for example, everything from adoption

agencies to hardware stores to accountants’ or lawyers’

offices. 42 U.S.C. § 12181(7)(K), (E), (F).

In fact, in Section 12181(7) Congress listed more

than fifty specific “private entities” that “are

considered public accommodations” as long as they

affect commerce. Congress drew many of its

enumerated examples from states, which had a wealth

of experience regulating public accommodations, see

6

Heart of Atlanta Motel, Inc. v. United States, 379 U.S.

241, 259 (1964) (observing that state regulation of

public accommodations dates to at least the 1880s).

For instance, “funeral parlor” and “travel service” are

examples of service establishments enumerated in

state public accommodations laws before 1990. See,

e.g., Colo. Rev. Stat. § 24-34-601 (1989) (funeral

parlor); Haw. Rev. Stat. § 489-2 (1988) (travel service).

Still other enumerated entities in Section

12181(7) came from congressional testimony. For

example, emphasizing the ubiquitous nature of

disability discrimination, a paralyzed veteran referred

to “the drycleaner, grocery store, theater and bank

that I can’t get into.” Those businesses are enumerated

in Paragraphs F, E, C, and F, respectively. Another

witness described the difficulty Americans with

disabilities had in accessing “the bakery shop or the

shoe repair service”—enumerated in Paragraphs E

and F. Further witnesses described experiences of

discrimination that occurred at libraries (Paragraph

H) and movie theaters (Paragraph C). And a Senate

report referred to children with disabilities having

been refused admission to a zoo (Paragraph I). 4

4

For reference to discrimination involving a drycleaner, a

grocery store, a theater, and a bank, see Americans with

Disabilities Act of 1989: Hearing on H.R. 2273 Before the Comm.

on the Judiciary and the Subcomm. on the Civil and

Constitutional Rights of the Comm. on the Judiciary, 101st Cong.

48 (1989) (statement of Peter Adesso, Paralyzed Veterans of

America). For reference to a bakery shop and a shoe repair

service, see id. at 57 (statement of Chai R. Feldblum, Legislative

Counsel, American Civil Liberties Union). For reference to

libraries, see Oversight Hearing on H.R. 4498, Americans with

Disabilities Act of 1988 Before the Subcomm. on Select Education

of the Comm. on Education and Labor, 100th Cong. 70 (1988)

7

2. Ultimately, the more than fifty enumerations

drawn from congressional testimony and state models

provide only “a few examples” of the entities covered

within the twelve categories Congress used to define

“public accommodations.” S. Rep. No. 101-116, pt. 6, at

59 (1989). These categories cover a wide range of

entities, from “place[s] of lodging” to “sales or rental

establishment[s]” to “place[s] of recreation” to “service

establishment[s].” See 42 U.S.C. § 12181(7)(A)-(L).

Taken together, these categories cover virtually every

form of private entity open to the public.

Not only are the categories broad when taken

together, but they also overlap. Thus, there are many

enumerated entities that could qualify as public

accommodations under more than one category. For

example, while an auditorium is listed as an example

of a “place of public gathering” in Paragraph D, it could

just as easily have been included in the list of “place[s]

of exhibition or entertainment” delineated in

Paragraph C. And while a gas station is listed

explicitly in Paragraph F as a “service establishment,”

it also undoubtedly qualifies as a “sales” establishment

under Paragraph E. There are also many

unenumerated private entities that would qualify

under more than one category. Imagine a cabaret. It

would qualify both as an “establishment serving food

or drink” (Paragraph B) and as a “place of exhibition

or entertainment” (Paragraph C). This redundancy

was not inadvertent. Rather, it is a consequence of

(statement of Shelley Teed-Wargo, Chairman, Connecticut Union

of Disability Action Groups). For reference to movie theaters, see

id. at 38 (statement of William Cavanaugh, Executive Director,

Ad Lib, Inc.). For reference to zoos, see S. Rep. No. 101-116, pt. 4,

at 7 (1989).

8

Congress’s commitment to the “comprehensive . . .

elimination of discrimination against individuals with

disabilities,” including discrimination by entities

holding themselves out to the public. 42 U.S.C.

§ 12101(b)(1).

3. Moreover, many of the categories are

themselves “extensive,” PGA Tour, Inc. v. Martin, 532

U.S. 661, 676 (2001)—that is, they reach a wide range

of private entities. For example, Paragraph K, which

covers “social service center establishment[s],” is

illustrated with examples ranging from “adoption

agenc[ies]” to “food bank[s].” 42 U.S.C. § 12181(7)(K).

The breadth of the public accommodations provision is

reinforced by Congress’s decision to add a catchall

phrase into each category. For example, Paragraph B

refers to “a restaurant, bar, or other establishment

serving food or drink.” 42 U.S.C. § 12181(7)(B).

Congress also specifically rejected a proposal that

would have narrowed those catchall provisions.

Congress

considered—and

rejected

in

the

reconciliation process—including the word “similar”

after the word “other” in each category. 136 Cong. Rec.

H11472 (daily ed. May 22, 1990) (statement of Rep.

Hoyer). For example, “other similar social service

center establishment” became just “other social service

center establishment.” 42 U.S.C. § 12181(7)(K).

Congress made that change to make clear that “a

person alleging discrimination does not have to prove

that a particular [unenumerated] business is similar

to one of the businesses listed.” 136 Cong. Rec.

H11472. Instead, a plaintiff must prove only that “the

9

business falls within the general category described.”

Id. 5

C.

The “public accommodations” provision

reaches all establishments that provide

services to the public.

Perhaps the best example of the breadth of Section

12181(7) is the category at issue in this case: “service

establishment[s],” as delineated in Paragraph F. The

category contains such varied institutions as hospitals,

banks, offices of accountants and lawyers, and

laundromats. 42 U.S.C. § 12181(7)(F). Thirteen of the

fifteen entities enumerated in the service

establishment category of Title III were listed in at

least one state law prior to Title III’s drafting. But

Paragraph F added two examples—“office of an

accountant or lawyer”—to ensure that professional

services beyond health care services (which many

state statutes had expressly included) are also

covered. 6

At the same time, where states differed in the

breadth of their coverage, Congress adopted the

broader construction. For example, eleven states and

By contrast, elsewhere in the ADA, Congress did choose to

use the narrowing function of the term “similar.” See, e.g., 42

U.S.C. § 12111(9)(B) (discussing employment-related reasonable

accommodations); 42 U.S.C. § 12103 (discussing auxiliary aids

and services).

5

See, e.g., Colo. Rev. Stat. § 24-34-601 (1989) (funeral

parlor); D.C. Code § 2-1401.02 (1987) (laundromat, dry-cleaner,

insurance office, hospital, bank); Haw. Rev. Stat. § 489-2 (1988)

(travel service, pharmacy); 775 Ill. Comp. Stat. 5/5-101 (1980)

(shoe repair service); Mass. Gen. Laws ch. 272, § 92A (1989)

(barber shop, gas station, beauty shop); N.Y. Exec. Law § 292

(1982) (professional office of a health care provider).

6

10

the District of Columbia included a “barber shop” as

an example of a public accommodation. Oklahoma and

Delaware, by contrast, explicitly excluded “barber

shops” from their definitions. Congress included

“barber shop” in Paragraph F to avoid any ambiguity

about whether a barber shop qualifies as a service

establishment, not to limit the scope of Paragraph F.

This was part of Congress’s overall strategy of

enumerating examples in each category to ensure

broad coverage. 7

Although the enumerated examples within the

category identified by Paragraph F have in common

that the entity is providing a service (rather than, for

example, selling a tangible good), they differ sharply

across a number of dimensions. For example, they use

very different business models. Laundromats are often

self-serve. Lawyers may work on contingency, for free,

or for an hourly rate. Banks pay depositors interest in

order to obtain funds that the banks can use for their

own purposes. Hospitals often bill third-party payors,

sometimes under a fee-for-service model and

sometimes under risk-sharing arrangements, and they

are obligated by law to serve some patrons at no cost.

Of particular salience to this case, Congress did

not adopt the model some states had used of restricting

For examples of state statutes expressly including barber

shops, see Alaska Stat. § 18.80.300 (1987); Colo. Rev. Stat. § 2434-601 (1989); Haw. Rev. Stat. § 489-2 (1988); 775 Ill. Comp. Stat.

5/5-101 (1980); Me. Rev. Stat. Ann. tit. 5, § 4553 (1987); Mass.

Gen. Laws ch. 272, § 92A (1989); Mont. Code Ann. § 49-2-101

(1989); N.Y. Exec. Law § 292 (1982); Ohio Rev. Code Ann.

§ 4112.01 (1980); 43 Pa. Cons. Stat. § 954 (1986); 11 R.I. Gen.

Laws Ann. § 11-24-3 (1956); and D.C. Code § 2-1401.02 (1987).

For examples of states that excluded barber shops, see Okla. Stat.

tit. 25, § 1401 (1968) and Del. Code Ann. tit. 6, § 4501 (1963).

7

11

public accommodations to entities that provided a

service “for a fee or charge.” Iowa Code § 601A.2

(1988); see also, e.g., N.D. Cent. Code § 14-02.4-02

(1989) (“for a fee, charge, or gratuity”). Thus, for

example, the professional office of a lawyer or a health

care provider is a “public accommodation” whether it

provides a service for a fee, pro bono, or upon payment

by a third party.

In short, the text and structure of the ADA require

reading the “public accommodations” provision

broadly to cover virtually any entity that provides a

service to the public.

II. Because plasma donation centers are “service

establishment[s],” they fall within Title III’s

definition of “public accommodations.”

Plasma donation centers perform a service for

individuals who seek to donate plasma. As such, they

constitute “service establishment[s],” like the other

professional providers listed in 42 U.S.C.

§ 12181(7)(F). Contrary arguments that focus either

on the nature of plasma donation or the fact that

plasma donation centers compensate their donors are

unpersuasive.

A. The

ordinary

meaning

of

establishment” covers plasma

centers.

“service

donation

Congress did not provide a special definition for

“service establishment” in Title III. Thus, the ordinary

meaning of those words controls. See Sebelius v. Cloer,

569 U.S. 369, 376 (2013).

1. CSL Plasma plainly constitutes an

“establishment.” That word connotes an “institution or

place of business.” Establishment, Webster’s New

12

International Dictionary (2d ed. 1945); see also Pet.

App. 9a. As the Fifth Circuit acknowledged, both

parties “agree that CSL Plasma is an ‘establishment.’”

Id. 7a.

2. CSL Plasma’s establishments also provide a

“service” to the public. In fact, CSL Plasma itself has

used the word “service” to describe the nature of its

business. In 2016, CSL Plasma obtained a service

mark, rather than a trademark, from the United

States Patent and Trademark Office. It based its

application on the sworn representation that it

provides “[b]lood bank services; medical services; [and]

medical testing and screening services for diagnostic

or treatment purposes.” CSL PLASMA, Registration

No. 4976372. CSL Plasma’s marketing materials drive

home the character of its interactions with the public.

Those materials state that CSL Plasma is “committed

to providing the best in customer service to [its] loyal

plasma donors.” 8 Having described plasma donors as

customers and itself as a provider of “services” outside

this litigation, CSL Plasma cannot plausibly deny that

its activities fall within the word’s ordinary meaning.

Other traditional indicia confirm that CSL

Plasma’s own usage comports with the ordinary

meaning of “service.” Dictionary definitions of

“service” include a “performance of labor for the benefit

of another,” Service, Webster’s New International

Dictionary (2d ed. 1945) and “professional assistance,”

Service, Oxford English Dictionary (2d ed. 1989). This

Court agrees. See Baker Botts LLP v. ASARCO LLC,

135 S. Ct. 2158, 2165 (2015). These definitions apply

Contact Us, CSL Plasma, https://www.cslplasma.

com/contact-us (last visited Nov. 17, 2019).

8

13

to the activities CSL Plasma engages in with respect

to plasma donors.

Services can be provided in a multiplicity of ways,

as the enumerated examples within Paragraph F

show. Some enumerated establishments, such as shoe

repair shops, provide a single, simple service. Others,

like banks, provide services that can be described in

various ways. Take a bank that offers customers an

interest-bearing checking account: In one view, it is

providing a safe place to store money. In another, it is

facilitating an easy and secure way for the depositor to

make payments to third parties. In a third, the bank

pays interest to the depositor in exchange for the

opportunity to use the customer’s deposits. Each of

these characterizations supports the conclusion that a

bank is a service establishment.

CSL Plasma’s services to donors can likewise be

characterized in multiple ways, all of which confirm

that it falls within the category of “service

establishment[s].” For example, CSL Plasma serves

donors by using specialized medical equipment and

assistance from trained medical professionals to

extract their plasma. U.S. C.A. Br. 11. Another way to

frame this service is that CSL Plasma, as a licensed

extractor and seller of plasma to the biotherapeutic

market, is an intermediary that enables individuals to

monetize their plasma. As a matter of economic

reality, CSL Plasma is compensated for this service

because it deducts from the payment it gives to its

donors the cost of the supplies, equipment, and labor

required to screen them, extract their plasma, and

return the remaining blood to their bodies.

Regardless of how one describes CSL Plasma’s

activities, the practical reality is that individuals can

14

sell their plasma only if they receive the assistance of

a business like CSL Plasma. Because CSL Plasma

“perform[s]” a “labor for the benefit of” its donors, it

falls under the plain meaning of “service”

establishment.

See Service, Webster’s New

International Dictionary (2d ed. 1945). Here, the

“analysis begins and ends with the text” since its

ordinary meaning is clear. Octane Fitness, LLC v.

ICON Health & Fitness, Inc., 572 U.S. 545, 553 (2014).

CSL Plasma is therefore covered by Title III.

B. The Fifth Circuit erred in distinguishing

plasma donation centers from other service

establishments.

As amici have explained, Congress defined public

accommodations by delineating “twelve extensive

categories” and providing examples in each category

drawn from congressional testimony and pre-existing

state civil rights statutes. PGA Tour, Inc. v. Martin,

532 U.S. 661, 676 (2001); see supra pages 4-9. The

Fifth Circuit, however, treated those examples as if

they were meant to limit the reach those categories

would otherwise have. It did so by applying ejusdem

generis, which teaches that when general words follow

specific words, the general words include things only

of the same nature as those specifically enumerated,

William N. Eskridge, Jr. et al., Cases and Materials on

Statutory Interpretation 852 (2012 ed.).

The Fifth Circuit erred in thinking that ejusdem

generis separates plasma donation centers from the

examples listed in Paragraph F. Moreover, its overly

aggressive application of ejusdem generis is

particularly out of place here because it ignores the

drafting history of Title III and undermines the

statute’s articulated purposes. This Court should

15

grant review and clarify that the approach taken by

the Third and Tenth Circuits—each of which held that

plasma

donation

centers

are

“service

establishment[s]” within the meaning of Paragraph

F—better comports with the text and structure of the

ADA. See Matheis v. CSL Plasma, Inc., 936 F.3d 171

(3d Cir. 2019); Levorsen v. Octapharma Plasma, Inc.,

828 F.3d 1227 (10th Cir. 2016).

1. The Fifth Circuit erred in distinguishing

plasma donation centers from the enumerated

examples in Paragraph F on the grounds that, unlike

those entities’ services, “plasma collection does not

provide any detectable benefit for donors.” Pet. App.

11a. That assumption beggars reality: Donors are

better off after they receive the extraction services that

CSL Plasma provides because they have a saleable

object that CSL then purchases, leaving donors with

more money than they had before their plasma was

collected. The Fifth Circuit failed to understand this

straightforward point because it thought that the

“payment of money” was “wholly collateral to the act

of plasma collection.” Id. 10a.

To the contrary, the payment and the collection

are inextricably linked. Individuals who want

payment for their plasma must find an entity that can

“collect [their] plasma using a special process called

plasmapheresis” that depends on “sophisticated hightech machine[s]” to separate out the plasma and then

“return[] the other parts of the blood back to [them].” 9

Plasma centers provide that service, which obviously

benefits donors. It does not matter that donors may

Donation Process, CSL Plasma,

https://www.cslplasma.com/become-a-donor/the-donationprocess (last visited Nov. 17, 2019).

9

16

have no “independent desire to get rid of their plasma”

absent a payment. Def. C.A. Br. 33. After all,

individuals who put their money into a savings

account have no “independent desire to get rid of ”

their money; the reason they give it to the bank is to

make more money. 10

The Fifth Circuit’s approach would improperly

exempt from Title III a significant number of entities

that provide services analogous to those provided by

CSL Plasma. For example, in a clothing consignment

shop, the shop provides the following service to people

who want to sell their clothes: It prices the clothes,

displays the clothes, interacts with potential buyers,

and when the clothes are sold provides a payment to

the consignor. The fact that the ultimate benefit the

consignor seeks is money does not change the fact that

the store is a service establishment. So, too, an auction

house provides a service to members of the public who

seek to sell their goods.

2. The Fifth Circuit also found it “highly relevant”

that CSL Plasma pays its donors rather than the other

way around. Pet. App. 15a. 11 That too was an error.

For several reasons, the formal direction of payment

Even less can the fact that the service CSL provides may

subject donors “to discomfort and medical risks,” Pet. App. 10a,

somehow remove CSL from the category of service providers.

After all, health care providers, hospitals, and beauty shops are

all enumerated in Paragraph F even though many of the services

they provide can subject patrons to discomfort and medical risks

even greater than any faced by plasma donors.

10

Judge Holmes, in his dissenting opinion in Levorsen,

would have gone even further to hold that service establishments

must “offer services to the public in exchange for a fee (i.e.,

monetary compensation)” to come within Title III. 828 F.3d at

1240 (Holmes, J., dissenting).

11

17

does not distinguish plasma donation centers from the

enumerated examples of service establishments.

First, this purported distinction between CSL

Plasma and the enumerated service establishments is

descriptively incorrect. It is true that some of the

enumerated establishments do fit a business model

where a patron rings a service provider’s bell seeking

to exchange currency for completion of a task. But

others do not. “Office of a[] . . . lawyer” encompasses

non-profit legal service providers that may actually be

forbidden by law from charging their clients. 42 U.S.C.

§ 12181(7)(F). Still other lawyers’ offices provide pro

bono legal services or specialize in fee-shifting cases.

Moreover, hospitals are required to provide emergency

treatment without regard to a patient’s ability to pay.

These organizations are covered by Paragraph F even

when they do not provide a service in exchange for

payment from the member of the public protected by

Title III.

Indeed, one enumerated service establishment—a

bank—does exactly what CSL does: namely, pay its

customers. Banks pay interest to customers with a

wide range of no-fee accounts. These customers enjoy

the same protection under Title III as customers

seeking loans.

Furthermore, when Congress drafted the ADA, it

had before it state public accommodations statutes

that contained direction-of-payment restrictions. See

supra pages 10-11. Its decision not to include that

language in Section 12181(7) is telling—and the Fifth

Circuit erred in reading in a limitation that Congress

never adopted.

Second, a direction-of-payment limitation would

improperly exclude from Title III many businesses

18

beyond plasma donation centers that plainly provide a

service to the public. Take the example of a recycling

center, which performs the service of helping people

get rid of waste in an ecologically responsible way.

These centers have at least three payment models:

Some charge customers to take recyclable materials off

their hands; some pay customers for recyclable

material that customers turn in; and some accept the

materials with no exchange of payment at all. 12 In each

case, the service is the same. But under the Fifth

Circuit’s direction-of-payment rationale, coverage

would extend only to the first model. That cannot be

right. Congress did not make Title III’s coverage turn

on a particular business model. 13

Moreover, the Fifth Circuit was wrong to fear that

treating CSL Plasma as a service establishment, even

though it pays its donors, would blur “[t]he distinction

between customer relationships and employer

relationships [that] is embodied in the structure of the

ADA.” Pet. App. 13a. No one could plausibly argue that

a plasma donor is an employee of a donation center.

Petitioners are not workers seeking the protections

Title I of the ADA provides to employees; rather, they

See, e.g., GreenCitizen’s Burlingame EcoCenter,

https://greencitizen.com/free-electronics-recycling-drop-off (last

visited Nov. 17, 2019) (customer pays recycling center or recycling

center accepts some materials free of charge); Services, Danny

Recycling Inc., https://www.dannyrecyclinginc.com/services (last

visited Nov. 17, 2019) (recycling center pays customer).

12

Indeed, as an economic matter, one can easily reverse the

characterization of direction of payment in many transactions. In

this case, donors implicitly pay a fee for the time, expertise, and

equipment necessary for plasma extraction. The plasma donation

center then deducts that fee from the payment to the donor. In

the most accurate sense, then, payment flows in both directions.

13

19

seek the access to service establishments that Title III

secures for members of the public.

In treating donors as solely suppliers who are not

protected by Title III, the Fifth Circuit mistakenly

resurrected a theory that this Court rejected in PGA

Tour. There, a professional golfer with a disability

claimed that the petitioner violated Title III because it

refused his request for an accommodation. The Tour

responded that the golfer could not invoke Title III

because he was not a “client[] or customer[]” of the

Tour and Title III is limited to protecting the public.

PGA Tour, 532 U.S. at 662. In the Tour’s view, the

golfer was “a provider rather than a consumer of the

entertainment” the Tour supplied to public spectators.

Id. at 678.

This Court rejected the Tour’s attempt to narrow

the scope of Title III. The fact that the golfer helped

the Tour supply entertainment to spectators did not

prevent him from bringing a claim under the public

accommodations provision. PGA Tour, 532 U.S. at 680.

Plasma donors are in an analogous position. The

fact that donors provide an “input” to the donation

centers’

business—namely,

plasma—does

not

undercut the reality that they also seek access to the

services CSL Plasma provides to members of the

public.

3. Both of the Fifth Circuit’s theories relied on the

application of ejusdem generis. But its mechanical use

of the canon was particularly inappropriate here

because it inserted into the statute a word Congress

deliberately omitted, frustrated Congress’s statutorily

expressed purpose, and ignored Congress’s reasons for

including an enumerated list.

20

First, ejusdem generis “implies the addition of

similar after the word other.” Antonin Scalia & Bryan

A. Garner, Reading Law: The Interpretation of Legal

Texts 199 (2012). For that reason, then-Judge

Kavanaugh opined that the canon should be

“toss[ed] . . . into the pile of fancy-sounding canons

that warrant little weight in modern statutory

interpretation” because it illegitimately reads a word

(“similar”) into statutory text against the drafters’ will.

Brett M. Kavanaugh, Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118, 2160-61 (2016) (book review).

But at the very least, the Fifth Circuit erred in using

the canon to pencil similar back into the phrase “other

service establishment,” given that Congress

deliberately deleted that word from a prior draft. And

we know why Congress did so: It did not want to

impose on plaintiffs the obligation to show that the

defendant entity was similar to the enumerated

businesses. See supra page 8. Thus, it is enough for

petitioners to show that CSL Plasma is an

establishment that provides a service to the public.

They do not also have to explain how it resembles a

“laundromat” or a “funeral parlor.”

Second, the Fifth Circuit’s application of ejusdem

generis flouted this Court’s directive that the canon

should not be used to “defeat the obvious purpose of

legislation,” Gooch v. United States, 297 U.S. 124, 128

(1936); see United States v. Powell, 423 U.S. 87, 90

(1975). Here, Congress wrote the remedial purpose of

the ADA into its text. See supra pages 3-4. That is why

this Court has declared that Title III should be read

“liberally to afford people with disabilities equal access

to the wide variety of establishments available to the

non-disabled.” PGA Tour, 532 U.S. at 676-77 (internal

quotation marks omitted).

21

Using ejusdem generis here does the opposite. It

introduces an arbitrary criterion—either an

idiosyncratic notion of what constitutes a “benefit” or

an atextual direction-of-payment principle—to narrow

the meaning of the word “service.” This reading

undermines Title III by allowing plasma donation

centers to categorically exclude prospective patrons

with disabilities. Such an interpretation countenances

exactly the sort of “exclusionary qualification

standards and criteria” that interfere with those

patrons’ “economic self-sufficiency” and “right to fully

participate in all aspects of society.” 42 U.S.C.

§ 12101(a)(1), (5), (7).

There is a long provenance for rejecting the use of

ejusdem generis to narrow the scope of public

accommodations statutes. In modern times, state

courts interpreting their own public accommodations

laws—the models on which Title III is based—have

disfavored the canon. They reason that a public

accommodations provision, “when read in the light of

[its] obviously broad legislative purpose, strongly

indicates the enumerated specific examples . . . do not

restrict” the general statutory language “or provide a

basis for applying the principle of ejusdem generis.”

Local Fin. Co. of Rockland v. Mass. Comm’n Against

Discrimination, 242 N.E.2d 536, 538 (Mass. 1968); see

also Kan. Comm’n on Civil Rights v. Sears, Roebuck &

Co., 532 P.2d 1263, 1271-72 (Kan. 1975).

Those courts have strong historical reasons to

distrust application of this canon to public

accommodations laws. In the past, parties had often

escaped liability for their discrimination by using

ejusdem generis to gut antidiscrimination laws. See,

e.g., Cecil v. Green, 43 N.E. 1105 (Ill. 1896) (using the

22

canon to exempt soda fountains from a statute

covering “inns, restaurants, eating houses, . . . [and]

other places of accommodation and amusement”);

Rhone v. Loomis, 77 N.W. 31 (Minn. 1898) (exempting

saloon from “inn, tavern, restaurant, eating house,

soda-water fountain, [and] ice cream parlor”); Brown

v. J.H. Bell Co., 123 N.W. 231 (Iowa 1909) (exempting

a booth at a food show from “inns, restaurants,

chophouses, eating houses, lunch counters, and all

other places where refreshments are served”).

Finally, this Court has held that the inference

required for application of ejusdem generis—that

Congress meant to narrow the scope of a catchall by a

preceding list of enumerated examples—is “negate[d]”

where Congress has “special reasons” for specifying

the terms it did enumerate. Watt v. W. Nuclear, Inc.,

462 U.S. 36, 44 n.5 (1983); Norfolk & W. Ry. Co. v. Am.

Train Dispatchers’ Ass’n, 499 U.S. 117, 129 (1991); see

also Circuit City Stores, Inc. v. Adams, 532 U.S. 105,

140 (2001) (Souter, J., dissenting). As explained above,

Congress had precisely such reasons here: It drew its

enumerated list from establishments with a

demonstrated history of discrimination, taking a “belt

and suspenders” approach to ensure that courts would

not carve these businesses out. See supra pages 4-9. To

invoke ejusdem generis and use Congress’s

enumeration to narrow the scope of the public

accommodations provision would thwart the statutory

scheme.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari and reverse the

judgment of the court of appeals.

23

Respectfully submitted,

Pamela S. Karlan

Counsel of Record

Jeffrey L. Fisher

Brian H. Fletcher

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 725-4851

karlan@stanford.edu

December 9, 2019

APPENDIX

1a

APPENDIX

AMICI CURIAE

CURRENT AND FORMER MEMBERS OF

CONGRESS

Representative Steve Bartlett (R-Tex.) served in

the United States House of Representatives from 1983

to 1993. He was a sponsor of the Americans with

Disabilities Act.

Representative Tony Coelho (D-Cal.) served in the

United States House of Representatives from 1979 to

1989. He introduced the Americans with Disabilities

Act in the House on May 9, 1989.

Senator David Durenberger (R-Minn.) served in

the United States Senate from 1978 to 1995. He was a

sponsor of the Americans with Disabilities Act.

Senator Tom Harkin (D-Iowa) served in the

United States Senate from 1985 to 2015. He was the

chief sponsor of the Americans with Disabilities Act in

the Senate.

Representative Steny H. Hoyer (D-Md.) is the

Majority Leader in the House of Representatives,

where he has served since 1981. He was the chief

sponsor of the Americans with Disabilities Act in the

House.