U.S. Court of Appeals for the Fifth Circuit in New Orleans/photo by Mike Scarcella / ALM Media

The U.S. Court of Appeals for the Fifth Circuit has prevented a pair of disabled plaintiffs from asserting an Americans with Disabilities Act claim against a plasma collection center after the business declined to take their blood.

It's a ruling contrary to one reached on the same issue in a different federal appeals court two years ago, the decision noted.

The case, Silguero v. CSL Plasma, was filed by Mark Silguero and Amy Wolfe, who allege they attempted to donate plasma but were deferred for reasons related to their disabilities: Silguero uses a cane and has a limp, and Wolfe has anxiety and requires the use of a service animal.

Silguero and Wolfe later sued CSL Plasma, alleging unlawful discrimination under Title III of the ADA and Chapter 121 of the Texas Human Resources Code, in a Southern District of Texas U.S. District Court.

CSL Plasma moved for summary judgment, arguing that its business was neither a “public accommodation” under the ADA nor a “public facility” under the THRC. It also argued that the plaintiffs could not identify a genuine fact issue or show that CSL Plasma had done anything other than impose a legitimate safety requirement.

The trial court agreed with CSL Plasma's arguments and concluded that neither the ADA nor the THRC applied to the plaintiffs' claims.

Judge Catharina Haynes/courtesy photo

In its decision, the Fifth Circuit ruled that CSL Plasma was not a “public accommodation.” But the court noted that the U.S. Court of Appeals for the Tenth Circuit had tackled the same ADA question in 2016's Levorsen v. Octapharma Plasma and reached a different conclusion, finding that the federal law applied to plasma centers because they were “service establishments.”

“We disagree with the Tenth Circuit, however, about whether plasma collection centers provide a 'service' to customers,” wrote Judge Catharina Haynes.

“Here, CSL Plasma pays donors who receive no detectable benefit from the act of donation. Its entire business model is structured this way,” Haynes wrote. “It thus does not offer plasma collection as a 'service' to the public and is therefore not a 'service establishment.' We affirm the district court's order granting summary judgment to CSL Plasma on Silguero's and Wolfe's ADA claims.”

But the court declined to rule on whether CSL Plasma was a “public facility” under the THRC because Texas state courts had not definitively interpreted the term. Instead, the Fifth Circuit referred that issue to the Texas Supreme Court via certified question.

Sasha Samberg-Champion, a lawyer with the Washington, D.C., civil rights law firm Relman Dane & Colfax who represents the plaintiffs in the case, was disappointed in the ruling, noting that it “contradicts the Tenth Circuit's decision on the same question and is contradictory to the Justice Department's view under both the Obama and Trump administrations.''

Samberg-Champion, who partnered with nonprofit Disability Rights Texas in the case, said that Congress' intent in passing the Title III ADA was to guarantee that every commercial entity was open to people with disabilities. “We don't think it was intended to create loopholes, such as the plasma center here, by arguing their business model takes them out of Title III,'' he said.

Bruce Douglas, a shareholder in Ogletree, Deakins, Nash, Smoak & Stewart who represents CSL Plasma, did not immediately return a call for comment.