honors morning may please the court ryan downer for a balance marks of barrow and amy was the key question before the court is whether plasma banks are beyond the reach of title three of the eight and therefore entirely free to discriminate against people with disabilities the answer is no plasma banks which are open to the public and provide benefits to the public are covered public accommodations because they are service establishment within the meaning of the act this is so for two basic reasons first the plain meaning of service establishment is broad enough to in compas apply the banks and second the context requires that those words be given their natural broad construction as to the first reason plasma banks like c s l's are clearly establishment and they provide services within the warden ery common understanding of that work this court sitting on bog has twice looked to the dictionary to define the word service expansively it's been held to mean an x done for the benefit of or at the command of another it's also been held to mean a bargain for rantis a pay to provision of labor from one party to another other definitions include useful labor or helpful activity a service they stablish mint is not providing a service to the person who comes in to donate plasma that's the person donating the plasma is providing a service can you help with that absolutely your honor i don't believe that's to be the case the service being provided to the customer who comes in to give his plasma is one of value creation but they're not actual customers they are customers just because they are taking advantage of these services activities that are provided by a positive fundamentally what's happening is that person the donor as their call for coming in to convert something with no market value into an asset that's transferable and then the plasma bank allows them to essentially bring that asset to market and cash in on the value of their plan i mean i have some real problems with how you're characterizing plasma because it's just it's not gold it's part of somebody's body there are aspects to this that are very different from just making widgets at the factory and selling those and so  they are taking something from the people that come in and paying them for it but how is that a service it's not a massage it's not cleaning up your house it's receiving something that isn't needed in the world we need this plasma because people need plasma when they come to hospitals and you're being paid for your trouble in coming in to do that how is that a service because in order for that process to take place the plaza bank must administer the service of evaluation and plasma extraction and fundamentally you as the donor are doing something that you want to do you need to do it's not a service to you it's a service to the person who gets the plasma that i don't get if i have to go to hospital i don't get plasma infected with whatever i don't know the degree to which plasma versus pure blood is the same thing but let's just go with me i don't get hiv from the plasma i don't know if you can but let's just assume argumenta that you can that's the that's the service but the service is to me the ultimate recipient not the person that came in the person that came in is not benefited by your filtering or  filtering of the blast the they absolutely do receive a benefit and title three overarching concerns about making any facility that's open to the public can provide benefits to the public available to people with disabilities on an equal basis you're benefited because you have something that is valueless to you essentially and because you went to the platinum bank you're able to redeem a value that's no different than a recycling center or a pawn shop or a consignment shop where you take objects that you don't have use for the difference is that when i pawn my ring and not going to be injected into somebody's the beneficiary on the other side is also receiving a benefit there's no mistake about that but that's really no different than if i ask a lawyer to draft a will for me and leave my estate to my son my beneficiary then he is receiving a benefit but i've also received the service and in this analogy the in this context of the plasma bank the donor is receiving the service of having his plasma extracted being evaluated this process has all the in dish of a medical procedure if it occurred in a doctor's office and theoretically you could take the plasma that's been extracted take it down the block and sell it that would be a service that coverage comes in and so if my sister needs a kidney and i come in to give her my kidney they're providing a service to me by taking my kidney i think the better analogy would be a fertility clinic where someone wants to sell their eggs and in order to make that happen the person has to go and have perceive a medical service so that they can then take advantage of the benefit the person donating a kidney in your example ultimately wants to do that and needs assistance to do that and that's fundamentally what a service is by the definition that this court adopted of service from the dictionary and frame the city of arlington it's merely an act done at the command of another and i mean somebody wants to clean my house and make money i don't think i'm providing them a service they're providing me a service so i guess i don't understand any i mean any transaction between two people you could see as a service because we interacted and i felt better because we interacted but i don't know that like right now you're providing of service to me the limiting principle here your honor is that the in order to be covered by title three it has to be an establishment that says stop no i mean i understand my house isn't hopefully not an establishment but still i mean what i'm saying is you can take any interaction among people that both people feel beneficial and make the and say well that's a service because you benefited me by going to the restaurant with me or going to the movies with me or whatever because then i didn't have to go alone i'm an only you that is providing a service your honor is the c s l regards it as providing a service and eight advertise that on line to the public when they're not trying to avoid title three liability they also represent it to the federal government to united see trade and patent office which you cite in the briefs they say they provide medical services medical testing and screening services and blood bank services but to  the screening service is in the testing so we are saying that by virtue of the fact that in order for the plasma to be of any value they have to screen it that's a service to the person giving it is it precarious and a story it is a service to the person giving it it may also be a service to the person receiving it but looking at both sides of the transaction and title three covers the person coming into the establishment a member of the public to receive that benefit and the service is fundamentally a helpful activity it's assisting somebody it's beneficial conduct these are all things that happen in a plaster bank because if i mr soviero my client fell on hard times and needed to supplement his income he had a need to find a way to do that and he had something in his disposal that would allow him to do that and that was his blood plasma which he uses and many other people use to supplement their income the paralyzed veterans talks talks about that as well that their constituents would be affected by a ruling saying that these are not services because they rely on plasma banks in order to help i mean it's up to the last five banks benefit if you will to be open to as many people  are available if they want a lot of plasma so that would be sort of contrary to your point that somehow this is going to close off everybody your point is more that if they have a policy that we don't want people that are under stress to the point of needing a comfort animal or service animal of that sort to give plasma because we feel that that will be a problem that that's not acceptable that's really where you're at on that we're at the threshold issue because that's what the district court decided which is does title three apply at all the ruling from the district court would allow c s l to literally exclude anyone with a disability for any reason or no reason at all if there are particular reasons based on actual evidence and reasonable reasonable medical judgment that someone with a disability should be excluded title three already allows for that or do you need reasonable medical judgment to exclude someone from the service establishment if it were  you just have general policies that things that might disrupt can be you know if you believe people might be disruptive i'm asking do you actually have to have medical judgment i don't while if the if you're making an assessment that someone is a poses a risk to the safety of the of the organization or the entity the law says or to themselves or to themselves the law says you have to have a legitimate actual basis beast and medical evidence for that you have to have medical evidence that's under that the supreme court and drag in the abbotts and i'm making a safety exception you have to have actual objective medical evidence which there wasn't and so your reasoning that we can't affirm on the other ground is that there's avenue to receive relief is if it is a commercial establishment that invites in members of the public and a public a plaza bank is certainly that but this is certainly been a pollutant issue to the state of texas and we don't want to get the restaurant that's a different thing here we have a very specific rule about plasma banks how do those intersect the plasma specific rules with the general eighty one notable honor i don't believe c s l has claimed that they were required by the f regulations to exclude my clients the good health regulation provides for things like temperature minimum weight protein levels in the blood having diseases that could be transferable through the plasma it does not cover this situation specifically about anxiety or gait but you would agree it's a little different analysis than the general rule of like i don't want to turn people my restaurant connel which i'm not saying i mean mr x doesn't want people in his restaurant that said that's the standard you discuss with judge all right you would agree this f d a plasma rule is a little bit more specific it's more specific but it's no different than other contexts where there are regulations that apply in the johnson case which we cite in the briefs the district court was  it please the court elizabeth national behalf of the united states the united states agrees with the appellant's that plasma donation centers are public accommodations covered by title three of the a b a class in our nation centers easily fit within the definition of service establishment ordinary dictionary definitions as counsel has already discussed are quite broad those definitions include an active helpful activity or conduct or performance that assists or benefits someone or something you discussed the intersection with the because again i'm just having trouble with sort of this notion that this is just like a ring that i take to a pawn shop i mean this is part of a human being this can be put in another human being and i just see that is different does not mean that that the a doesn't apply don't get me wrong just saying it's different can you talk to me about the intersection of the f d a sort of plasma rules with the eighty eight general rules sure so there's no conflict between the f d a regulations and  coverage under title three we know that because the f d a regulations apply to things like hospitals which are specifically enumerated in subsection af so there is no inherent conflict between complying with the f d a regulations or any really complex regulatory scheme you see that with banks for they're highly regulated entities yet they're covered by title three of the a p a so certainly it is the case that if the f d a were to issue a regulation that said you know plasma donation centers are under an obligation to defer this type of donor which they occasionally do so for example if somebody comes in and test positive for hepatitis b let's say a plasma donation center could and could rely on that regulation to say we're going to defer that donor from donating plasma coverage under title three does does not require that a plasma donation center serve every single person that enters the establishment and it certainly gives plasma donation centers many things to think about and many things to evaluate when a doctor comes and asks for the service of you know plasma procurement services so to the extent that the court is concerned about the intersection i would say that you know there is no conflict there the a specifically contemplates that what about this term good health and i'm not saying the two individuals who are not in good health but i'm just saying that term seems to encompass something a little bit more then again the restaurant excluding somebody or an ordinary business excluding somebody i don't want to be in good health to go to a restaurant in other words to the way that the f d a regulations work is that they were acquired plasma donation centers to establish the standard operating procedures that essentially allow the class in a nation center to make a determination about whether the person coming in to donate is in good health somebody might have a cold or you know they might be coming off of an illness or whatever it might be so the standard operating procedures allow the plasma donation center to make that evaluation and certainly if a placid or nations that are made that evaluation and applied these eligibility criteria that they've developed that would be evidence that the person may not be able eligible to donate and so certainly there is discretion afforded to plasma to nate pleasant mission centers under the f d a regulations but the question here is just whether or not there's title three coverage so you're saying we don't even really care about the individual of whether any policy that excluded these particular people was wrong or right is for another day in your view that would do you have a view on it we do not united states does not take a position on whether or not these particular plaintiffs were properly turned away from donation but i would say that any eligibility criteria that a plaster nation center does establish does have to be based on objective medical evidence and it can't be based on stereotypes or generalizations about people with disabilities so you know for example there are plenty of people with disabilities that may be in very good health that somebody maybe who is deaf wants to donate plastic on the quote all the united states is saying here is that if a deaf person comes into a pleasant nation center and wants to donate plants my that person has to be evaluated under the contemplating that all services stablish months are covered it's an important for plasma donation center so can you can you help us with the same like kind analysis district court performed i'm sorry can you repeat that question the district eight and specifically in that case it was sales establishment here certainly the united states agrees that this court should apply the existing generous canon to to look at the enumerated examples in the statute to inform the definition of the broad catch all phrase that act but what we see here is that the fourteen examples listed in the statute are quite broad and so when we're looking to the candidate reduced and generous we're looking for the broadest possible common trait that encompasses all fourteen examples and here there are examples that ring from funeral parlor to gas station to lawyers office but in every single one of them the company provides a service for which the person pay  know which one a bank so an individual can open a savings account but they're providing a service in your pay you're getting some interest but you're paying and you pay a monthly radar you might get a free one if you have a certain balance but in general you're paying for the privilege of having that be your bank not always so there are plenty of plenty of times when a person opens an account that has no monthly service fees or those few have a way banks making money off your money in their pain you less of that that's how they make their money so yeah they're being paid at the example hospital so an individual who comes in to participate in a clinical trial a hospital might pay that person to participate in that clinical trial simply because the hospital also provides services for which  doesn't pay people it doesn't necessarily mean that it is not also providing services ok thank you very much you this is the sort of case it would have taken a full day to argue days to prepare for the questioning of the anticipated here and i'll be happy to get to any of your questions i just want to open with two just a couple of points  noticed in the arguments of counsel all very well made and well intentioned it wasn't until your honor judge l rudd finally asked the question about the statute that anyone even mentioned really the statute we have to begin with the statute i do want to however respond to a couple of points made by counsel for the united states to say that the united states isn't really concerned with what goes on inside the plasma center i think it's somewhat disingenuous that is exactly the opposite position that the same attorneys took when they worked for the united states in the  that is exactly what is involved here the first step is to declare a plasma collection center a place of public accommodation and then to be in a position under the discrimination provisions of one twenty one twenty one twenty one  two to regulate and debate what goes on in the centers it might be useful to take just a brief moment to clarify what it doesn't do us hard to regulate under the  a it doesn't in the clinic well that's i mean they let me let me try to explain it this way your honor i think that it's and i don't want to waste the limited time i have but let's understand what a plasma collection center is first of all those in council likes to call it a plasma bank it's not a plasma bank it's not at all like a blood bank it is regulated by the f d a and  various departments of the f d a cbers c b e are the biologics group in the same way as blood banks they have this pretty much the same eligibility criteria but a plasma collection center does one thing and one thing only it is literally the back door to a pharmaceutical manufacturing plant c s l plasma has one function it collects human source plasma source plasma is defined by the f d a regulations as human plasma that is used for further manufacturing what is it used for it is used to make injectable pharmaceuticals they are known as plasma protein therapies they treat some of the most horrific and ongoing diseases and conditions in the world such as he anything having to do with you know the blood can't clot that is what plasma is used for ok what about this argument that your company is just monetizing something that would otherwise amount with a bunch of plasma in my body  demanding money and now i show up at your plasma center and i can make money on it what about that argument the reason that plasma centers compensate the donors for their time is because in contrast to the blood banks which in the united states never to my knowledge compensate for the time the time differential is vast it takes on average ninety minutes to two hours every time you go to the plasma center from the time you walk in the door and you check into your screening you do your waiting and then you have to go through the plasmapheresis process where you get on a kind of a leave the boy chair the cookie up to the machine your blood is drawn it's separated from the plasma your blood put back in the plasma goes into a container in the bottom of the chair and if everything goes according to you put some citrate in the to try to make the ship think in the thing to return to your body everything goes well what happens is that we collect the bottle a plasma of about eight hundred milliliters so about the size of a wine bottle those bottles are then stored for a short period of time they're kept frozen there held for about sixty days to allow for the testing of the plasma to determine it safety and integrity to the results to come back and then if everything is ok after about sixty days all these bottles of plasma that we collect are dumped into very large vats they're aggregated and then sent off to the manufacturing plants around the world in the united states pays compensates the donors and produces more than half of all the plasma in the world and part of the reason is the europeans don't like them they'll be happy to take our plasma but they don't like the fact that we compensate people for it so they set some very strict standards as to the quality and safety of the plasma that they're getting from the united states but there's no service being provided here to the donors l it would it be appropriate for you to just say to add all deaf people we just don't want deaf people in our place i mean you know it appropriate to be discriminating against people based on disability you know putting aside title three your honor that it would material for plasma to make the therapies that these i mean he would have thought in the fifty's hotels would like all the people they could get but they still excluded people based on race so we know discrimination happens even when it seems contrary to business  plasma is in the business of discriminating in the in the in a lawful way were required by the f d a to make gotten so let me ask you about that you do see still garo and wolf as mattering here the united states is just wanting a threshold question that's fair but you see this as mattering so defend to me then and to all of us these particular rules that prohibited these particular people from giving on these particular day certainly recognizing that the district court didn't reach that question those deferrals are not really before us but i'll be here all weekend if i'm on any ground if you don't want us to that's final be happy to do ok so if there is a ground zero firm on even assuming argue endo title three applies these two were not improperly discriminated against i'd like to hear if there's not that that's fine i'll be happy to address that your honor these two donors in the case of seal harrell he was not be for medical reasons he was d for his behavior what happened  of people who are coming in every week or two hundred donations a year what happened was he was having difficulty emulating that they be concerned about his ability to emulate to get to the donor chair safely and get off the donor chair hundred different reasons that we have to do that we defer people mr so harold didn't like that deferral he came back the next day and he got into it with the center manager and he made threats he said you're going to be sorry in the admits he got his heart about it and  couldn't they assist mr i understand when he got nasty and started threatening i understand what you but the day before why couldn't somebody assist him he weighs three hundred sixty nine well i mean a lot of people weigh three hundred sixty nine pounds and they get assisted it well assisted living in the concern was never a carol they don't have a lift they're in it's not a medical facility as such it's a commercial facility where people are just coming to do and so they thought that they couldn't move him without him falling and it was one of them of hundred decisions made in a day he' contrary to what opposing counsel said and what the department of justice might imply the decision to defer miss wolf was made on medical evidence in fact what happened she came in with her in all and by the way the record isn't entirely clear whether this is a that she came in and the staff evaluated her at each location there are medical staff associates on site there's not always a doctor on site the doctors come and check things out but the all the n s a s report to him work under the delegated supervision of the division so what happened is will comes in and the medical staff associate reaches out on the eight hundred number to the regional medical directors we have three or four of them employed by c specialists in transfusion medicine that's the subs that's a big special duty and they reach out and call them and said here's the situation with ms wolf what should we do and the doctor a medical doctor gets back to her listens to the story and makes the decision based on his experience his professional medical judgment having worked in the be a having worked with patients and others who are have emotional issues that the presence of the animal in his opinion his professional medical opinion was an indicator that her anxiety was so severe that she was there was a good possibility that she would have an episode while in the chair lose control of the animal and then it would be a safety issue to third parties which which is the direct threat or the safety defense under title three it's a reasonable medical judgment it wasn't that you know that somebody just said oh you've got a dog we don't we're not going to take the dog they let service animals on the floor for blind people and others who needed to steady them but the one thing that's clear in the regulations promulgated by the d o j say this explicitly it is not the responsibility of the public accommodation if you will to control the animal that is always the responsibility of the animal's handler and so there was no evidence at the time that she could control the animal if she had an episode we would be stuck controlling the animal and by the way in a plasma collection center this may not be on the record but to tell you there's fifty or sixty of these chairs on the floor in there usually pretty busy all at one time so if she's not virus self there's other people around there are other lots of other texas supreme court i think it's unnecessary we would not object to it at the court felt that was important recognizing that i think the wording of the statutes a little bit different the text entry talks about a quote public facility not a place of public accommodation and i think that the texas supreme court's decision in the prison case indicating that you know it's a place where people may come but they don't really have access to the whole thing i think that the district court's decision below was sound that the conclusion reached by the district court here that the c s l plasma center is not a place of public accommodation under one twenty one eighty one seven f is correct and that would really hold true the same analysis would hold true under the texas human resources co ok would you like to address statute yes i would your honor i think what we have here is the this is a this is not a new effort by my friends across the aisle but it is the same effort to literally divorce the two words of the statute from everything else in the statute now we begin as the supreme court has said and as this court has said in the in other cases we always begin with the language of the statute if the statute is clear our judicial task is at an end but if the statute is not necessarily clear and require some kind of construction it is permissible and it is proper to use the canons of construction the two canons of construction that were used here probably in this pronounce these so she they were all they were used by these by the by this court in the case and they are what i would refer to as above the line cans of construction in other words that's part and parcel of the analysis to determine if there is an ambiguity of the standard textual analysis itself that's correct it's part of the textual analysis in it once you resolve that you don't even get to legislative history although certainly grant you know that legislative history is you know it's intending that disabled persons have access to places of public accommodation but merely having a broad purpose in legislation doesn't mean that every situation is governed any more than i think that there is a misconception here on the part of my colleagues across the aisle that there isn't a definition of service establishment in the statute what we have and i think the district court got this exactly right the service establishment is actually defined by the list of items that come before it and then you have the term or other services stablish meant the problem with the definition that we have of the approach that the department of justice may take or my colleagues may take is that virtually everything in section one twenty one eighty one sub seven is a service establishment of some kind it serves the public so why did congress do this why does congress have twelve different categories which the regulations state and d o j would agree are exhaustive although within that the examples are just examples why did congress do this in very carefully draft the statute the way they did it's because this statute unlike title seven for example the civil rights act of one thousand nine hundred sixty four going on the lunch counter cases this statute imposes additional obligations on commercial facilities and places of public accommodation it imposes the requirement on all commercial facilities for the elimination of architectural barriers in new construction and alterations and reconstruction and as to public accommodations it goes further and imposes upon it the anti discrimination provisions if congress had wanted to just say the service establishment is every place it could have said that but it didn't it carved them out individually and it made it very clear that you it has to be like the items that preceded that's what the cans of construction tell us and that's really if one reads the the the statute carefully that is exactly what the statute says for example some paragraph e which says a bakery grocery store clothing store hardware store shopping center or other sales or rental establishment when you think about it those are all services stablish wants to but if we take service establishment and just say any place is a service first of all the hospitals not a real good example your honor with respect because hospitals are specifically listed in one twenty one eighty one parts of the just like in p g a versus martin golf courses are kind of listed here too they are providing the survey get some sort of information about their blood but i thought that on the internet it's advertised that it gives them a screening of some sort of screening is done for one reason the screening is done to determine whether or not they are healthy enough that day to donate if they get the information no they don't they're either told you can donate or you can't they're not said oh you you need to go see your doctor because there's only you have a well areas problem no that's not that kind of testing they take a little care to anybody at the center the whole purpose of the center and you know if we could we would locate the collection center at the back of the factories but the factories are few and far between and the plasma shipped all over the world to get there  someday maybe that somebody will come up with you know synthetic plasma in this whole thing will go away and then you know these people are not going to know what else is going to step into the breach to extract plasma that's that is a fanciful idea that we're providing the service of honor a few points if i may like to directly address the question about the statutory interpretation congress gave the list in order to demonstrate the incredible breath of coverage here there are more than fifty entities listed there are twelve categories that are meant to be construed liberally to approve people with this to afford people with disabilities equal access to the wide variety of us dial bushman's available to non disabled that's binding precedent from p g a tour and p g a tour also says or indicates that the relevant question is whether coverage is inconsistent with the literal text of the statute in the literal text of the statute here says service establishment and posin banks definitely provide services been struggling whether or not they provide a service to the person who comes in or not we've had a whole series of questions about that so it's not abundantly clear that they are the type of the plain meaning of service and establishment that they're covered the question is are activities happening that  ist people and benefit them that's what the definition of come in the people who come in are unambiguously receive a benefit of a result of donating plasma whether they're doing it for altruistic reasons or more commonly for monetary reasons that is a definitive benefit in terms of the direction of payment that question and whether that's a common theme it is not a bank is paid in the same way that has a free checking account or free savings account is paid in the same exact way as is by leveraging essentially the deposit whether it's money in the banks case or the deposit of plasma in the pleasant banks case it's getting paid off that deposit and leveraging that deposit and not receiving direct monetary payment from the customer neither does legal aid neither do public defenders neither do free medical clinics all of those are clearly service establishment within the express meaning of the statute other establishments also deal with human body with the human body and provide services hospitals and doctors clearly do rag bit yeah but i think if i go to a doctor and i get treated for being sick that yes i'm getting a service and so that's the same thing is having them take plasma out of me or my kidney or some other services that the banks providing services but they also do a lawyer for example is charging ninety percent of the clients but then they also do pro bono that doesn't suddenly make them not a service and i understand that that isn't what we have here right and to that point i just want to point out again that legal aid or public interest law firms that do not take payment as a rule are covered which indicates the direction of payment is not what congress was concerned about what also indicates the direction of payment is not what congress is concerned about i mean legal late isn't paying the client either banks do pay their clients and the the idea that congress was concerned about direction of payment is undermined completely by the rest of twelve one hundred one seven which lists an a ra establishment the congress wanted to secure access to including museums and libraries and homeless shelters organizations where there is no transaction at all doesn't that count the other way where congress wanted to identify groups where there's no payment this court in frame b arlington talked about that breath as a broad mandate of comprehensive character that aimed at eliminating discrimination in almost titles assigned to but it talk generally about the point of the i just think that talk about one twenty one point zero two five it all really and i'm wondering what do you do with the district court's analysis that this is not a compensation to the person coming in well it is a commercial establishment that provides that invites in the general public which is also part of the statute the district court focused on whether the bank meets a convenience or a need you so you do you agree that it doesn't i don't it doesn't i believe it meets a need in in the circumstances that mr so heroes in he needed to go to a plaza bank in order to convert his plasma take advantage of the service of having something that's not worth anything convert it into something that is worth something that is a service it is the same as as what a recycling center does essentially it's not that different from what a commercial bank does when you use your deposit and your interest off that there are some factual issues that i briefly briefly n we will stand in recess until tomorrow morning when we will hear additional cases thank you