author: HULL, Circuit Judge: MARTIN, Circuit Judge,

text:
    Jean Bernard GELIN, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
    No. 15-12497
    United States Court of Appeals, Eleventh Circuit.
    September 22, 2016

      Sui Chung, Immigration Law & Litigation Group, Miami, FL, Michael S. Vastine, St. Thomas University School of Law, Miami Gardens, FL, for Petitioner.
    Margot Carter, Stefanie N. Hennes, U.S. Department of Justice, OIL, Office of Immigration Litigation, Washington, DC, Michelle Ressler, District Counsel’s Office, Miami, FL, for Respondent.
    Robert Mark Loeb, Thomas Mark Bon-dy, Orrick Herrington & Sutcliffe, LLP, Washington, DC, Brian .Philip Goldman, Orrick Herrington & Sutcliffe, LLP, San Francisco, CA, Aaron W.- Scherzer, Orrick Herrington & Sutcliffe, LLP, New York, NY, Jayashri Srikantiah, Stanford Law School, Stanford, CA, for Adelante Ala-bama Worker Center, American Immigration Lawyers Association, Americans for Immigrant Justice, Archdiocese of Miami, Jason Cade, Catholic Charities- Legal Services, Ericka Curran, Detention Watch Network, Florida Association of Criminal Defense Lawyers, Hispanic Interest Coalition of Alabama, Immigrant Defense Project, National Immigration Project of the National Lawyers Guild, Rebecca Sharp-less, Southern Poverty Law Center, Amici Curiae.
    Before HULL and MARTIN, Circuit Judges, and WRIGHT, District Judge.

       Honorable Susan Webber Wright, United States District Judge, for the Eastern District of Arkansas, sitting by designation.

   HULL, Circuit Judge:

Jean Bernard Gelin, a native and citizen of Haiti, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“U”) order finding him ineligible for relief from removal based on his criminal conviction for abuse of an elderly person or disabled adult under Florida Statute § 825.102(1). After review and oral argument, we conclude the BIA did not err in finding that Gelin is an illegal, criminal alien and that his criminal conviction constitutes a crime involving moral turpitude (“CIMT”). Accordingly, we dismiss the petition.

I. BACKGROUND

In March 1992, Gelin entered the United States illegally. In 2002, Gelin pled guilty in Florida state court to one count of abuse of an elderly person or disabled adult, in violation of Florida Statute § 825.102(1). On December 6, 2011, the Department of Homeland Security (“DHS”) denied Gelin’s application for Temporary Protected Status due to his 2002 felony conviction.

That same day, DHS issued a Notice to Appear, charging Gelin with removability ■because: (1) he was an alien present in the United States without being admitted or paroled, under Immigration and Nationality Act (“INA”) § 212(a)(6)(A)®, 8 U.S.C. § 1182(a)(6)(A)®; and (2) he was an alien convicted of a CIMT, under INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I). Gelin conceded his re-movability as an alien illegally present in the United States. Gelin’s removability is based on an uncontested non-criminal ground of illegal entry into the United States.

Whether Gelin’s conviction is a crime involving moral turpitude is relevant to whether he can show eligibility for discretionary relief from removal in the form of cancellation of removal. This form of relief permits the Attorney General to cancel the removal of certain non-permanent residents if the alien establishes that he has not been convicted of certain criminal.offenses, namely those under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2) and 1227(a)(3). See 8 U.S.C. § 1229b(b)(l)(C). Relevant to this case, 8 U.S.C. § 1227(a)(2) describes a certain type of criminal case — a conviction for a crime involving moral turpitude for which a sentence of one year or longer may be imposed. 8 U.S.C. § 1227(a)(2)(A)®.

A. The IJ’s Decision

On January 22, 2014, the IJ ordered that Gelin be removed from the United States, finding that (a) Gelin was convicted of abuse of an elderly person or disabled adult, in violation of Florida Statute §. 825.102(1); and (b) this conviction was categorically a CIMT because the conviction records established that Gelin “knowingly, willfully and intentionally inflicted injury upon an elderly person or disabled adult, or that he intentionally committed an act or actively encouraged another person to commit such an act.”

B. The BIA’s Decision

On May 7, 2015, the BIA dismissed Ge-lin’s appeal. The BIA stated that Gelin “conceded removability under section 212(a)(6)(A)® of the Act, 8 U.S.C. § 1182(a)(6)(A)®, and thus the only issue on appeal is whether the respondent [Ge-lin] qualifies for relief from removal.” The BIA then determined that Gelin did not qualify for relief from removal because his conviction under Florida Statute § 825.102(1) categorically qualified as a CIMT.

The BIA stated that: “To determine whether a crime qualifies as a CIMT in cases arising within the Eleventh Circuit, we apply the traditional ‘categorical approach,’ under which we focus upon the statutory definition of the crime rather than the facts underlying the particular offense. Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1305 (11th Cir. 2011).” The BIA explained that “[t]he categorical approach requires that ‘we analyze whether the least culpable conduct necessary to sustain a conviction under the statute meets the standard of a crime involving moral turpitude.’ Cano v. U.S. Att’y Gen., [709 F.3d 1052, 1053 n.3 (11th Cir. 2013)] (quoting Keungne v. U.S. Att’y Gen., 561 F.3d 1281, 1284 n.3 (11th Cir. 2009)).”

Quoting from the statute, the BIA stated “that a person [is] guilty of abuse of an elderly or disabled adult” when:

A person who knowingly or willfully abuses an elderly [person] or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or 's. 775.084.

The BIA then concluded that “[u]nder this statute, the State must prove the defendant knowingly or willfully committed one of the three alternatives and that at the time the victim was an elderly person or disabled adult.” The BIA quoted the three alternative definitions of “abuse” in § 825.102(1) as follows:

(1) intentional infliction of physical or psychological injury upon an elderly person or disabled adult;
(2) an intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult; or
(3) active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult.

The BIA concluded that the statute categorically qualified as a CIMT based on the “mental state required for a conviction” under any of the three subparts of the statute.

The BIA rejected Gelin’s argument that his conviction was not categorically a CIMT because he did not know that the victim was a member of a “protected class.” The BIA noted that the statute defined an “elderly person” as one manifestly “suffering from the infirmities of aging and physical or mental dysfunction to the extent that personal care or protection is impaired.” Second, the BIA determined that Florida case law prohibited conviction under the statute if the victim was “active and self-sufficient,” citing Watson v. State, 95 So.3d 977, 979-80, 982 (Fla. 2nd DCA 2012). The BIA concluded (1) “the victim’s status is a required element of the offense” and (2) there was “no realistic probability that Florida could successfully prosecute an individual under Section 825.102 where the evidence established that the accused was subjectively ignorant of the victim’s vulnerable condition.”,.

The BIA concluded that, “[a]s we have determined that section 825.102(1) is a categorical CIMT, we do not address the respondent’s [Gelin’s] statements regarding a modified categorical analysis.”

Finally, the BIA found that, ‘ even if a § 825.102(1) conviction was not categorically a CIMT, Gelin had “the burden as an applicant for relief from removal to prove that he 'has not been convicted of an offense under section 212(a)(2) [or] 237(a)(2)’ of the Act, 8 U.S.C. § 1182(a)(2), 1227(a)(2).” The BIA determined that Ge-lin had not met his burden, as an applicant for relief from removal, of proving that he was not convicted of a CIMT. The BIA pointed out that Gelin “concedes that his conviction records are ‘inconclusive.’”

The BIA also noted that Gelin relies on Matter of Sanudo, 23 I. & N. Dec. 968 (BIA 2006), and Matter of Danesh, 19 I. & N. Dec. 669 (BIA 1988). The BIA explained why “these cases are distinguishable.” As for Sañudo, the BIA stated that the California battery statute in that case included “minimal nonviolent touching” and no intent to harm. The BIA stated that,- in contrast, Florida Statute § 825.102(1) requires a more culpable mental state and “the commission of an intentional act, directed against an especially vulnerable victim, with an intent to injure or conscious disregard of the likelihood of injury.”

As for Matter of Danesh, the BIA recognized that the crime in that case — aggravated assault by knowingly causing bodily injury to a peace officer — was a CIMT. But the BIA stressed that “bodily injury is not necessarily a requirement of a CIMT,” citing Keungne as follows:

See Keungne v. U.S. Att’y Gen., supra, at 1286-87, (holding that a conviction for criminal reckless conduct under Georgia law still constituted a CIMT in the absence of “actually causing physical injury to another person,” as the “good fortune in not injuring or killing someone does not change the quality of [the respondent’s] actions or the culpability of his mental state”); see also Matter of O.A. Hernandez, 26 I. & N. Dec. 464, 467 (BIA 2015) (holding that “recklessly engaging] in conduct that places another in imminent danger of serious bodily injury” is categorically a crime involving moral turpitude).

II. JURISDICTION

As an initial matter, we must review whether we have jurisdiction to entertain Gelin’s petition for review. Sosa-Martinez v. U.S. Att’y Gen., 420 F.3d 1338, 1340 (11th Cir. 2005). When an alien seeking review of a removal order was convicted of a crime involving, moral turpitude, our jurisdiction to review the petition is limited to constitutional claims or questions of law. See INA § 242(a)(2)(C), (D), 8 U.S.C.- § 1252(a)(2)(C), (D). However, we retain jurisdiction to determine whether Gelin is “(1) an alien; (2) who is removable; (3) based on having committed a disqualifying offense.” Sosa-Martinez, 420 F.3d at 1340 (quoting Moore v. Ashcroft, 251 F.3d 919, 923 (11th Cir. 2001)). Gelin does not contest the fact that he is an alien who is subject to. removal. Therefore, our review is limited to determining whether Gelin’s conviction for abuse of an elderly person or disabled adult is a crime of moral turpitude that disqualifies him for relief from removal. See id. at 1340-41. If so, we lack jurisdiction to review Gelin’s final order of removal. Id. at 1341. We review de novo the legal question of whether an alien’s conviction qualifies as a crime involving moral turpitude. Cano, 709 F.3d at 1053.

III. “MORAL TURPITUDE”

An alien convicted of a CIMT is inadmissible. INA § 212(a)(2)(A)®©, 8 U.S.C. § 1182(a)(2)(A)(i)(I). Although the term “moral turpitude” is not defined by statute, this Court has held that it involves an “act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between .man and man.” Cano, 709 F.3d at 1053 (quotation omitted). In Gelin’s case, the BIA quoted and followed our definition in Cano.

This Court has also previously held that uttering a forged instrument, resisting an officer with violence, criminal reckless conduct, second-degree arson, aggravated battery, aggravated child abuse, and misprision of a felony are all crimes involving moral turpitude. See Walker v. U.S. Att’y Gen., 783 F.3d 1226, 1229 (11th Cir. 2015) (Florida offense of uttering a forged instrument); Cano, 709 F.3d at 1053-55 (Florida offense of resisting an Officer with violence); Keungne, 561 F.3d at 1287-88 (Georgia offense of criminal reckless eon-duct); Vuksanovic v. U.S. Att’y Gen., 439 F.3d 1308, 1311 (11th Cir. 2006) (Florida offense of second-degree arson); Sosa-Martinez, 420 F.3d at 1342 (Florida offense of aggravated battery); Garcia v. Att’y Gen. of the U.S., 329 F.3d 1217, 1222 (11th Cir. 2003) (Florida offense of aggravated child abuse); and Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002) (misprision of a felony under 18 U.S.C. § 4).

In resolving whethér, a' conviction involves moral turpitude, this Court applies either the categorical approach or the modified categorical approach, depending on the statutory scheme. Fajardo, 659 F.3d at 1310; see also Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1280 (11th Cir. 2013) (explaining that this Court also uses either the categorical or modified categorical approach when determining whether a crime qualifies as an “aggravated felony” under the INA).

Both this Court and the BIA have historically utilized the categorical approach to determine whether a conviction for a particular crime qualifies, as a CIMT. Fajardo, 659 F.3d at 1305. Under the categorical approach, we consider only the fact of conviction and the statutory definition of the offense, rather than the specific facts underlying the defendant’s case. Id.; Donawa, 735 F.3d at 1280. In doing so, we ask “whether the least culpable conduct necessary to sustain a conviction under the statute meets' the standard of a crime involving moral turpitude.” Keungne, 561 F.3d at 1284 n.3.

We have cautioned, however, that “[t]his general approach is not without exception.” Donawa, 735 F.3d at 1280. This Court will instead apply the modified categorical approach when a state statute is “divisible.” Id. A statute is divisible when it “lists a number of alternative elements that effectively create several different crimes.” Id. at 1281 (citing Descamps v. United States, 570 U.S. —, —, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013)).

When the, statute is divisible, we may look beyond the fact of conviction and consider a limited class of documents, often called Shepard documents, to determine whether a prior conviction is a qualifying offense under the modified categorical approach. Id. at 1280; Descamps, 570 U.S. at —, 133 S.Ct. at 2283-84; see also Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005) (describing the scope of judicial records that can be relied upon by courts applying the modified categorical approach, which records include, inter alia, charging documents, plea agreements, and plea colloquy transcripts); United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006) (providing that unobjected-to facts in a criminal defendant’s presentence investigation report are deemed admitted); Fajardo, 659 F.3d at 1305 (stating that, when applying the modified categorical approach, courts may consider “the charging document, plea, verdict, and sentence”).

Here, the BIA applied only the categorical approach. On appeal, the parties have briefed the categorical approach. But the parties’ briefs have also assumed that the § 825.102(1) statute is divisible and that we can look at the record to see which of the three types of abuse in § 825.102(1) Gelin was convicted of. See Descamps, 570 U.S. at —, 133 S.Ct. at 2283-84; Fajardo, 659 F.3d at 1305. And if we look to the record and the conviction documents, the parties debate which record documents we can consider and what they show. Further, if the record documents are inconclusive, the parties dispute who has the burden of proof to establish eligibility for relief from removal.

Because we conclude that Gelin’s conviction categorically qualifies as a CIMT under the least culpable subpart of Florida Statute § 825.102(1), we need not reach any of the subsidiary issues in this case. We hold only that Gelin’s felony conviction under § 825.102(1) categorically qualifies as a CIMT and explain why.

IV. FLA. STAT. § 825.102(1)

As did the BIA, we begin and end with the Florida statute and Florida case law. Florida Statute § 825.102(1), currently and at the time of Gelin’s conviction, provides, in relevant part, that:

A person who knowingly or willfully abuses an elderly person or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree[.]

Fla. Stat. § 825.102(1). The elements of § 825.102(1) are: (1) knowing or willful; (2) abuse of an elderly person or disabled adult; (3) without causing great bodily harm, permanent disability, or permanent disfigurement.

Section 825.102(1) defines the second element, “abuse,” in three alternative ways:

(a) Intentional infliction of physical or psychological injury upon an elderly person or disabled adult;
(b) An intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult; or
(c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult.

Fla. Stat. § 825.102(1). Thus, the State can prove the element of “abuse of an elderly person or disabled adult” in one of three ways: (a) intentional infliction of injury; (b) committing an intentional act that could reasonably be expected to result in injury; or (c) active encouragement of another person to commit an act that results or could reasonably be expected to result in injury.

In Gelin’s criminal case, the 2002 judgment listed the offense statute as “825.102(1)” and did not specify a subsection of conviction. The charging information largely tracked the language of the statute and charged all three subsections and crimes as follows:

[Gelin] ... did knowingly or willfully, in violation of Florida Statute 825.102(1), intentionally inflict physical or psychological injury upon Daniel Rodriguez, an elderly person or disabled adult, or intentionally commit an act or actively encourage another person to commit an act which could reasonably be expected to result in physical or psychological injury to [Daniel Rodriguez].

Normally, we would next examine if this statutory scheme was (1) divisible, creating multiple crimes of abuse with multiple elements, or (2) indivisible, creating multiple means to commit one crime. See Mathis v. United States, 579 U.S. —, —, 136 S.Ct. 2248, 2248-49, 195 L.Ed.2d 604 (2016). We need not decide that divisibility question because the least culpable act— § 825.102(l)(c) — categorically constitutes a CIMT in any event.

Y. FLA. STAT. § 825.102(1) IS A CIMT

Whether “abuse of an elderly person or disabled adult” is a crime involving moral turpitude is a question of first impression in this Circuit, but one that we readily answer in the affirmative. Like the aggravated child abuse charge at issue in Garcia, abuse of the elderly or disabled is “[a]n act of baseness, vileness, or depravity” that “is so offensive to American ethics as to end the debate of whether moral turpitude was involved in the crime[.]” See Cano, 709 F.3d at 1053; Garcia, 329 F.3d at 1222 (citing Guerrero de Nodahl v. INS, 407 F.2d 1405, 1406-07 (9th Cir. 1969)). Even the least culpable conduct necessary to sustain an abuse conviction under Florida Statute § 825.102(1) constitutes a CIMT.

To be convicted of the least culpable conduct contained in § 825.102(1), the State must prove these elements: (1) the knowing or willful; (2) active encouragement of another person to commit an act (3) that results, or could reasonably be expected to result, in physical or psychological injury to an elderly person or disabled adult; (4) without causing great bodily harm, permanent disability, or permanent disfigurement. Fla. Stat. § 825.102(l)(c). In analyzing whether this § 825.102(l)(c) offense constitutes a CIMT, we may rely on court decisions in the convicting jurisdiction that interpret the meaning of the statutory language. See Cano, 709 F.3d at 1054 (using Florida state case law to help elucidate whether a Florida statute prohibiting resisting a law enforcement officer with violence qualified as a CIMT); United States v. Howard, 742 F.3d 1334, 1346 (11th Cir. 2014) (“Sentencing courts conducting divisibility analysis in this circuit are bound to follow any state court decisions that define or interpret the statute’s substantive elements[.]”); see also Mathis, 579 U.S. at —, 136 S.Ct. at 2256 (explaining that, in determining whether a statute’s listed items are elements or means, federal courts may look to state court decisions interpreting an alternatively phrased statute for guidance).

A violation of Florida Statute § 825.102(l)(c) qualifies as a CIMT because of (1) the culpable state of mind required by the statute, and (2) the particularly vulnerable nature of the victims. See Keungne, 561 F.3d at 1284 n.3; Fla. Stat. § 825.102(l)(c).

A. Culpable State of Mind

In our prior CIMT case law, this Court has looked to the level of intent involved in an offense to determine whether an act Was sufficiently base, vile, or depraved. See Cano, 709 F.3d at 1054. Here, the standard jury instructions for Florida Statute § 825.102(1) instruct that, to obtain a guilty verdict, the State must prove a defendant’s “knowing or willful” commission of subsection (a), (b), or (c). See In re Standard Jury Instructions in Criminal Cases—Report No. 2012-08, 131 So.3d 692, 703 (Fla. 2013). This comports with our reading of the statute that “knowing or willful” conduct is the first element.

In addition, the Florida courts have indicated that a knowing or willful act of “active encouragement” requires more than culpable negligence. A Florida court has addressed the state of mind necessary to violate Florida’s nearly identical child-abuse statute that proscribes knowing or willful “[a]ctive encouragement of any person to commit an act that results or could reasonably be expected to result” in injury to a child. The Florida court concluded that intent is an “essential element” of the crime of child abuse, noting that “child abuse requires an intentional act, knowing or willful.” Griffis v. State, 848 So.2d.422, 425, 427 (Fla. 1st DCA 2003); see also Pethtel v. State, 177 So.3d 631, 635 (Fla. 2nd DCA 2015) (concluding that voluntary manslaughter carries a “much broader ambit of intent” than. child abuse because manslaughter does not require that the defendant “actually intend” to kill or injure nor does it require “an element of foreseeability” between the defendant’s act and the resulting harm). The Florida court in Griffis expressly rejected a jury instruction that child abuse could be committed through “culpable negligence,” because that was instead an element of child neglect under § 827.03(2)(b) and (d). Griffis, 848 So.2d at 427-28. Similarly, the Florida statute at issue here also contains a separate prohibition of the neglect of an elderly person or disabled adult, which can be shown through “culpable negligence.” Fla. Stat. § 825.102(3). In contrast, § 825.102(l)(c) requires the knowing or willful active encouragement of another person to commit an unlawful act, which requires a sufficiently culpable state of mind to constitute a CIMT.

Furthermore, both this Court and the BIA have held that “moral turpitude may inhere in criminally reckless conduct.” Keungne, 561 F.3d at 1284 (citing Matter of Franklin, 20 I. & N. Dec. 867, 869-70 (BIA 1994) (concluding that involuntary manslaughter was a CIMT where state law required that the individual acts “recklessly,” or when he “consciously disregards a substantial and unjustifiable risk that circumstances exist or' that a result will follow, and such disregard constitutes a gross deviation from the standard of care that a reasonable' person would exercise in the situation”) mid Matter of Medina, 15 I. & N. Dec. 611, 613 (BIA 1976) (finding that the Illinois aggravated assault was a CIMT where one of the three culpable mental states was recklessness)).

In Keungne, this Court held that a conviction under Georgia’s criminal reckless conduct statute qualified as a CIMT for three reasons: (1) it involved an individual “consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other, person”; (2) it required that “a person’s conduct must go far beyond mere negligence so as to constitute a ‘gross deviation’ from the standard of care expected from a reasonable person”; and (3) it required that this gross deviation cause harm or endanger the safety of another person. Keungne, 561 F.3d at 1286-87 (emphasis added).

Thus, when “[c]onsidering the totality of these required elements” in Keungne, this Court determined that the Georgia statute comprehended a “sufficiently culpable mental state” to qualify as a CIMT, even though the statute required that a defendant merely “endanger” the safety of another through “consciously disregarding a substantial and unjustifiable risk,” such that the defendant’s act need not be -willful or knowing or even cause actual harm or injury to another person. Id.

Here, the criminal intent required under the Florida statute is not merely a gross negligence standard, as Gelin argues; it is, in fact, even more culpable than the recklessness standard at. issue in Keungne. “Active encouragement” of an unlawful act is itself an intentional act, and.not recklessness or gross negligence. Plus, § 825.102(1) requires that the intentional act be knowingly or willfully committed. Further, the statute narrows the type of intentional act proscribed to an act that results, or could reasonably be expected to result, in injury. Thus, the type of act intentionally encouraged must be one that results in or could reasonably cause injury. A defendant’s intentionally encouraging that type of act necessarily requires that the defendant intended injury or a real likelihood of injury. Indeed, analogous Florida case law instructs us that all of the acts contemplated in Florida Statute § 825.102(1) require an intentional act and may not be-satisfied merely by a showing of “culpable negligence.” See Griffis, 848 So.2d at 427-28. For these reasons, we are convinced that Florida Statute § 825.102(l)(c) requires a sufficiently culpable mental state to constitute a CIMT.

We also reject Gelin’s argument that a showing of actual bodily injury to the victim is necessary to constitute a CIMT, Whether a criminal act resulted in actual injury to the victim is one factor that may be considered in determining whether an offense was a CIMT. See Danesh, 19 I. & N. Dec. at 673 (holding that aggravated assault by knowingly causing injury to a peace officer constituted a CIMT); Sanudo, 23 I. & N. Dec. at 972-73 (distinguishing California crime of domestic battery from other crimes that were CIMTs because it did not require proof of actual harm to the victim); Keungne, 561 F.3d at 1286-87 (noting that one of the reasons that the Georgia offense of criminal reckless conduct was a CIMT was because the reckless conduct could cause bodily harm or endanger the bodily safety of another person).

But, as the BIA explained here, this does not mean that a showing of bodily injury is a necessary requirement for an offense to be a CIMT. As this Court has noted, so long as one would reasonably expect injury to result, the perpetrator’s good fortune in not injuring someone does not reduce his culpability for CIMT purposes. Keungne, 561 F.3d at 1287 (“[T]he fact that a person can be convicted of criminal reckless conduct under Georgia law without actually causing physical injury to another person does not alter the baseness or depravity of the person’s actions. [A person’s] good fortune in not injuring or- killing someone does not [] change the quality of his actions or the culpability of his mental state.”); see also Vuksanovic, 439 F.3d at 1311 (finding that second-degree arson, which merely required damage to “any structure,” was a CIMT).

B. Vulnerable Victims

The fact that the Florida statute requires an intentional act targeted at vulnerable victims further demonstrates that a violation, of the statute is morally turpitu-dinous. There is . no crime under § 825.102(l)(c) if the person is not an elderly person or a disabled adult and thus a vulnerable victim.

Notably too, under the statutory definitions of those victims and Florida case law, the person’s vulnerable status must be proven and manifestly clear to the defendant. To secure a conviction under § 825.102(1), the prosecutor must prove that the victim outwardly manifests that he is suffering from the infirmities of age to the extent that his ability to care for himself is impaired. See Fla. Stat. § 825.101(4); Watson, 95 So.3d at 979-82 (reversing and remanding a § 825.102(1) conviction where the state failed to. establish that the victim — who was 79 years old and had a hip replacement, heart surgery, back surgery, and four stents — qualified as an “elderly person” under the statute because he lived independently, exercised regularly, rode a bicycle, and had no “observed disability or weakness”). Similarly, the statutory definition of “disabled adult” requires that the person have a “physical or mental-incapacitation” or “physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living.” Fla. Stat. § 825.101(3); see Jennings v. State, 920 So.2d 32, 34-35 (Fla. Dist. Ct. App. 2005) (indicating, in the context of a prosecution for lewd and lascivious molestation of a disabled person, that under the statutory definition of “disabled adult” the person’s disabled status must manifest itself in a concrete way to the perpetrator and concluding that the defendant’s concession that the victim was “mildly retarded” was not enough alone to meet the definition of “disabled adult”).

Florida law requires that statutes must provide a definite warning of the prohibited conduct, “measured by common understanding and practice.” Sieniarecki v. State, 756 So.2d 68, 74 (Fla. 2000) (finding that the “de facto total impairment which [the victim] exhibited clearly falls within” the statutory definition of “disabled adult” contained in Fla. Stat. § 825.101(4) (1997)); see also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007) (explaining that, in order to find that a statute falls outside the reach of the generic definition, there must be a “realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime”). Here, given the statutory definition of the types of victims impacted, it is apparent that, measured by common understanding and practice, perpetrators must have subjective knowledge of their victims’ vulnerable status.

We need not decide this case based on solely the culpable state of mind or solely the requirement- of a vulnerable victim. Both eléments are required for a § 825.102(l)(c) conviction. Thus, considering the totality of the circumstances, we are convinced that abuse of- an elderly person or disabled adult, in violation of Florida Statute § 825.102(1), is a CIMT and inherently involves an “act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” See Cano, 709 F.3d at 1053; Keungne, 561 F.3d at 1287.

VI. GELIN’S JOHNSON CLAIM

For the first time on. appeal, petitioner Gelin claims that the Supreme Court’s recent decision in Johnson v. United States, 576 U.S. —, —, 135 S.Ct. 2551, 2557-58, 2563, 192 L.Ed.2d 569 (2015) (holding that the residual clause of the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague), should be extended to find that the reasonable-expectation-of-injury requirement in § 825.102(l)(b) and (c) is unconstitutionally vague as applied to a CIMT analysis. Gelin argues , that the required harm in Florida State § 825.102(1) is speculative and insufficiently defined and is therefore constitutionally infirm.

Regardless of whether Gelin’s Johnson-based claim was properly exhausted, we cannot reach it. Gelin argues that Florida Statute § 825.102(1) is unconstitutionally void for vagueness. If this is so, his conviction under that statute would also be unconstitutional. As such, Gelin is essentially raising a collateral challenge to the validity of his conviction. A petition for review of an agency’s immigration determination is not the correct forum in which to address this claim. Mohammed v. Ashcroft, 261 F.3d 1244, 1251 (11th Cir. 2001) (“If the Florida trial court erred ... then [the petitioner’s] remedy is a collateral attack on the underlying convictions in Florida state court, not a judicial determination, in the context of a Petition for Review of a [] BIA decision, that he must as a matter of Due Process be eligible for relief from removal.”).

Even if we could examine this claim, however, it is meritless because the statutory .language at issue in Johnson is wholly different from the Florida statute’s language. Compare Johnson, 576 U.S. at —, 135 S.Ct. at 2555-56 (involving a residual clause that defines a violent felony as any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another”), with Fla. Stat. § 825.102 (prohibiting an intentional act or active encouragement of another to commit an act “that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult”).

Moreover, Johnson addressed the deprivation of a criminal defendant’s constitutionally protected liberty interest, but “an alien does not have a constitutionally protected interest in receiving discretionary relief from removal or deportation.” Mohammed, 261 F.3d at 1250. Nor does an alien have a constitutionally protected interest in being “eligible for discretionary relief.” Oguejiofor v. Att’y Gen, of the U.S., 277 F.3d 1305, 1309 (11th Cir. 2002) (citation omitted).

VII. CONCLUSION

Therefore, because a conviction for abuse of an elderly person or disabled adult pursuant to Florida Statute § 825.102(1) is categorically a crime involving- moral turpitude, we are deprived of jurisdiction to review Gelin’s petition for review under 8 U.S.C. § 1252(a)(2)(C). See INA § 242(a)(2)(C), 8- U.S.C. § 1252(a)(2)(C); Sosa-Martinez, 420 F.3d at 1340-41.

PETITION DISMISSED.

MARTIN, Circuit Judge,

dissenting:

The majority concludes that Florida statute § 825,102(1) categorically constitutes a crime of moral turpitude based on the level of intent required by the statute and because it reads the statute to require the defendant to know that the victim is a member of the protected class. My reading of § 825.102(1) differs from the majority’s, so I respectfully dissent.

Section 825.102(1) is as follows:

(1) “Abuse of an elderly person or disabled adult” means:
(a) Intentional infliction of physical or psychological injury upon an elderly person or disabled adult;
(b) An intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult; or
(c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult.
A person who knowingly or willfully abuses an elderly person or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree[.]

Fla. Stat, §' 825.102(1). As the majority correctly relates, the court’s job in determining whether a conviction under this statute constitutes a “crime involving moral turpitude” begins by determining the “least culpable conduct” for which someone could be convicted under the statute. The answer to this question leads me to the conclusion that a person can be convicted under § 825.102(1) without having committed a crime involving moral turpitude.

The investigation into the least culpable conduct calls for the court to look at the types of conduct state courts have recognized violate the statute. Like the majority, I have reviewed the standard jury instructions promulgated by the Florida Supreme Court for § 825.102(1). Those instructions show that the government must prove the following two elements: (1) knowing or willful commission of subsection (a), (b), or (c); and (2) at the time, the victim was an elderly person or disabled adult. See In re Standard Jury Instructions in Criminal Cases—Report No. 2012-08, 131 So.3d 692, 703-04 (Fla. 2013).

If a statute encompasses some conduct that would constitute a crime involving moral turpitude and other conduct that would not, then the statute does not categorically involve a crime of moral turpitude. My reading of the statute does not require the intentional or knowing infliction of injury. Subsection (l)(b) requires “an intentional act that could reasonably be expected to result in physical or psychological injury,” The intent requirement seems to me to go to the.act, not to the harm that might result from the act. Along this same.line, the BIA characterized the intent required under this , statute as “conscious disregard of the likelihood of injury,” or recklessness. This is in keeping with the Florida case law interpreting the nearly identical child abuse statute. See Clines v. State, 765 So.2d 947, 948 (Fla. 5th DCA 2000) (holding that the defendant’s “irrational, hostile and. reckless behavior” — cocking a loaded gun in the same room as a sleeping child and pointing it at the ceiling after threatening the child— was sufficient evidence to support the trial judge’s conclusion that the defendant’s “intentional acts placed the child in a zone of ‘reasonably expected’ physical danger”). A person may be convicted under subsection (l)(b) even if the person did not intend to cause injury, so long as the person intended to commit ah act, while disregarding the reasonable likelihood of injury.

Second, I do not read § 825.102(1) to require knowledge of the victim’s status as a member of the protected class. The statute says that the lack of knowledge of the victim’s age is not a defense. Fla. Stat. § 825.104. And the jury instructions do not require the jury to find that the defendant had knowledge of the victim’s status. See In re Standard Jury Instructions, 131 So.3d at 703.

Finally, a person can be convicted under the statute without causing actual injury to the victim. Fla. Stat. § 825.102(l)(b)-(c). Thus, under my reading of the statute, a defendant can be convicted without injuring the victim; without intending to injure the victim; and without knowing that the victim is a member of the protected class.

Moral turpitude is, admittedly, a “nebulous concept.” Matter of Danesh, 19 I. & N. Dec. 669, 670 (BIA 1988)1 But in my view, the least culpable conduct proscribed by the statute does not rise to the level of moral turpitude. For that reason, I respectfully dissent.

      . The BIA quoted the definitions of “elderly person” and "disabled adult” in the statute. Specifically, an "elderly person” is someone “60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunc-tioning, to the extent that the ability of the person to provide adequately for the person’s own care or protection ' is impaired.” Fla. Stat. § 825.101(4). Lack of knowledge of the victim’s age is not a defense. Id. § 825.104.
      Rather, the victim must outwardly manifest infirmities or dysfunctioning to the extent so described. See id, § 825.10-1(4).
      "Disabled adult” means a person 18 years of age or older "who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person’s ability to perform the normal activities of. daily living.” IA § 825.101(3).

      . We review only the BIA's decision in this case because the BIA did not. expressly adopt the IJ’s decision. See Hernandez v. U.S. Att'y Gen., 513 F.3d 1336, 1338-39 (11th Cir. 2008) ("When the BIA issues a decision, we review only .that decision, except to the extent that the BIA expressly adopts the IJ’s decision.”).

      . Gelin's brief submits that only the categorical approach applies. Gelin’s reply brief states, "This inquiry is governed by the categorical approach and is limited to an analysis of the statute of conviction,” As noted later, we need not, and do not, decide whether this Florida statute is divisible or indivisible because Gelin's conviction qualifies as a CIMT under the categorical approach in any event.

      . "Elements are the constituent parts of a crime’s legal definition — the things the prosecution must prove to sustain a conviction. At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty.” Mathis v. United States, 579 U.S. —, —, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) (citations and quotation marks omitted).

      . Florida law states that whoever “knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement” commits a third-degree felony. Fla. Stat. § 827.03(2)(c), The statute defines “child abuse” as:
      (1) Intentional infliction of physical or mental injury upon a child;
      (2) An intentional act that could reasonably be expected to result in physical or mental injury to a child; or
      (3) Active encouragement of any person to commit an act that results or could rea-
      sonably be expected to result in physical . or mental injury to a child.
      Id.§ 827,03(l)(b).

      . That Georgia statute provided that: "A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm- or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the sitúation is guilty of a misdemeanor.” Q.C.G.A, § 16-5-60(b) (emphasis added).

      . Gelin’s reliance on Matter of O-, 4 I. & N. Dec. 301 (BIA 1951) (finding that a German statute requiring no knowledge that the person assaulted was a police officer was not a CIMT), is unavailing. The statutory definitions of "elderly person” and "disabled adult,” as provided in Fla. Stat. § 825.101(3) and (4) and referenced in the standard jury instruction, do require knowledge of the vulnerable state of the victims. See Watson, 95 So.3d at 980-82; Jennings, 920 So.2d at 34—35.

      . Gelin filed his brief to the BIA in August 2014, before the Supreme Court’s June 2015 decision in Johnson, but after the Supreme Court granted certiorari in that case in April 2014. Johnson v. U.S., — U.S. —, 134 S.Ct. 1871, 188 L.Ed.2d 910 (Mem.) (2014) (granting certiorari).


source: Caselaw Access Project

author: PROST, Chief Judge.

license: Public Domain

text:
    ASIA VITAL COMPONENTS CO., LTD., Plaintiff-Appellant v. ASETEK DANMARK A/S, Defendant-Appellee
    2015-1597
    United States Court of Appeals, Federal Circuit.
    Decided: September 8, 2016

      Andeew C. Ajtken, Aitken Law Offices, Wheaton, MD, and Cameron H. Tousi, IP Law Leaders PLLC, Washington, DC, argued for plaintiff-appellant. Also represented by Raymond Ho.
    Robert F. McCauley, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Palo Alto, CA, argued for defendant-appellee. Also represented by C. Brandon Rash, Washington, DC.
    Before PROST,- Chief Judge, LINN and TARANTO, Circuit Judges.
   PROST, Chief Judge.

Asia Vital Components Co., Ltd. (“AVC”) -filed- a- declaratory judgment action against Asetek Danmark A/S (“Ase-tek”) seeking a declaration that AVC did not infringe U.S. Patent Nos. 8,240,362 (“’362 patent”) and 8,245,764 (“’764 patent”) (collectively, “the asserted patents”) and that those patents are invalid. The United States District Court for the Eastern District of Virginia dismissed the case for lack of subject matter jurisdiction, concluding that AVC’s complaint did not plead sufficient facts to show that there is a substantial controversy between the parties. For the reasons stated below, we reverse the district court’s ruling and remand for further proceedings.

Background

AVC is a Taiwanese corporation that manufactures cooling systems for integrated circuits. Asetek is the assignee of the ’362 and ’764 patents, which are generally directed toward liquid cooling systems that are used in connection with computers to cool integrated circuits.

Beginning in 2012, Asetek brought lawsuits against other competitors that make and sell liquid cooling systems, alleging infringement of the ’362 and ’764 patents. In April 2014, Asetek sent AVC a letter accusing AVC of infringing the ’362 and ’764 patents. That letter, however, was based on Asetek’s mistaken belief that AVC manufactured a- particular product, the Liqmax 120s. In- the letter, Asetek specifically referenced the Liqmax 120s product and provided an exemplary infringement claim chart for that product.

In response, AVC told Asetek that it did not manufacture the Liqmax 120s. Nonetheless, AVC requested a meeting with Asetek ■ “to discuss various related matters,” which AVC considered “of importance concerning future cooperation” with Asetek. J.A. 105. Asetek responded in an email dated August 2, 2014, that if AVC was not making the Liqmax 120s then there did not appear to be a reason to meet. Also in the email, Asetek referenced the fact that it had tried to cooperate with AVC previously “and the experience went very poorly and sowed distrust in Asetek for AVC.” J.A. 207. Asetek further noted that it does not license its- patents and said that “although that option may have previously been available to AVC when it was manufacturing Asetek’s products, that option is no longer available to AVC (based in large part on AVC’s prior behavior toward Asetek).” Id. Finally, Asetek .stated,

Please be advised that Asetek believes that AVC is likely selling other infringing products in the United States. We are sure you are aware that Asetek enforced its IP, as it has in pending litiga-tions against CoolIT and Cooler Master. Asetek has also been allowed a patent in the European .Union with claims similar to the US ’362 and ’764 patents, with priority in 2003, and also has similar claims pending in China.

Id.

A meeting did ultimately take place between AVC and Asetek in August 2014. At the meeting, AVC expressed a desire to license the asserted patents, and Asetek initially declined. After further discussion, Asetek did offer AVC a license at a royalty rate of 16% or at a reduced rate if AVC would provide preferential pricing on components. AVC representatives at the meeting said they would consider that possibility and bring it -to the attention of AVC management. There was no specific discussion of AVC products potentially infringing the asserted patents at the meeting.

On September 30, 2014, AVC filed a complaint against Asetek alleging that AVC had designed and built liquid cooling products, identified as the K7 and K9 products, and seeking a declaration that its products did not infringe the ’362 and ’764 patents and that those patents are invalid. AVC contends that it had completed prototype products of the K7 and K9 products and that those products have a number of similarities to the CoolIT and Cooler Master products that Asetek did accuse of infringement. Asetek responds that it never accused the K7 or K9 products of infringement, and, in fact, contends it did not even know that those products existed before AVC’s complaint.

’ The district court agreed with Asetek and dismissed the complaint for lack of subject matter jurisdiction. The district court held that the “complaint does not plead sufficient facts to show that there is a substantial controversy under the totality of the circumstances.” J.A. 2. The district court did not explain its reasons in the written decision, but instead referred to the reasons stated during a hearing the court held on the question of jurisdiction. At the hearing, the district court emphasized that there was never any discussion between the parties as to whether AVC’s products were infringing and credited Ase-tek’s declarations that it was unaware of the existence of those products. AVC timely appealed to us. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

Discussion

We review a district court’s dismissal for lack of subject matter jurisdiction de novo. Powertech Tech. Inc. v. Tessera, Inc., 660 F.3d 1301, 1306 (Fed. Cir. 2011). We review factual findings underlying the jurisdiction determination for clear error. See SanDisk Corp. v. STMicroelecs., Inc., 480 F.3d 1372, 1377 (Fed. Cir. 2007). The burden is on .the party claiming declaratory judgment jurisdiction to establish that such jurisdiction existed at the time the claim for declaratory relief was filed. Powertech Tech., 660 F.3d at 1306.

The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a). In MedImmune, Inc. v. Genentech, Inc., the Supreme Court stated that the test for whether an “actual controversy” exists is “whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (internal quotation marks omitted).

Although it relaxed the test for establishing jurisdiction, Medlmmune “did not change the bedrock rule that a case or controversy must be based on a real and immediate injury or threat of future injury that is. caused by the defendants- — wi objective standard that cannot; be met by a purely subjective or speculative fear of future harm.”. Prasco, LLC v. Medicis Pharm. Corp., 537 F.3d 1329, 1339 (Fed. Cir. 2008). Thus, we have explained post-Medlmmune that “jurisdiction generally will not arise merely on the basis that a party learns of the existence of a patent owned by another or even perceives such a patent to pose a risk of infringement, without some affirmative act by the patentee.” SanDisk, 480 F.3d at 1381. Instead, we have required “conduct that can be reasonably inferred as demonstrating intent to enforce a patent.” Hewlett-Packard Co. v. Acceleron LLC, 687 F.3d 1358, 1363 (Fed. Cir. 2009).

Here, AVC alleges that, under the totality of circumstances, a substantial controversy of sufficient immediacy and reality exists between it and Asetek to warrant jurisdiction. It contends that the district court improperly focused on Asetek’s contention, that it did not specifically accpse AVC’s K7 and K9 products of infringement in finding no jurisdiction. Asetek responds that, at most, AVC’s allegations amount to “a purely subjective apprehension of a future infringement suit involving the K7 and K9 prototypes” and thus- are insufficient to satisfy the actual controversy test. Appellee’s Br. 11.

We agree with AVC that the totality of circumstances indicates that an actual controversy existed between the parties at the time of the declaratory judgment complaint. Although the April 30, 2014 letter incorrectly accused AVC of manufacturing the Liqmax 120s, it was 'Still a demand letter that referenced a product that AVC contends is similar to its own K7 and K9 products. Upon receiving the letter, AVC contacted Asetek, saying that it did not manufacture the Liqmax 120s, and then, in a follow-up email, AVC requested a meeting with Asetek “to discuss the related matter.” J.A. = 105. Instead of simply responding that it had made a mistake with respect to the Liqmax 120s, Asetek’s August 2, 2014 email contained a number of statements that indicate that an actual controversy between the parties existed. For example, Asetek (1) rehashed the volatile relationship between the parties, saying that poor experiences with AVC in the past have “sown distrust in Asetek for AVC”; (2) stated that it “does not license its patents” generally and, more specifically, that it would not license them to AVC due to the previous conflicts between the parties; (3) accused AVC of “likely selling other infringing products in the United States”; (4) warned AVC that it “enforced its IP” and noted its “pending litigations against CoolIT and Cooler Master” — companies that AVC alleges sell products similar to the K7 and K9; and (5) .emphasized that it has been allowed a patent in the European Union with claims similar to the asserted patents and also has similar claims pending in China. J,A. 207. Such a response by Asetek clearly “demonstrate[s] intent to enforce a patent,” Hewlett-Packard, 587 F.3d at 1363, and is thus sufficient to conclude that a substantial controversy between the parties existed at the timé of the complaint.

The further interactions between the parties only confirm our conclusion. Despite recognizing that AVC does not manufacture the Liqmax 120s, Asetek still agreed to a meeting with AVC where they discussed potential licensing of the asserted patents. Moreover, AVC alleges that Asetek made threats to its customers regarding AVC’s infringement of the asserted patents. Specifically, AVC alleges that “AVC’s customers for the K7 and K9 products have expressed concern that [they will be subject] to liability under the Asserted Patents and AVC has-withheld accepting purchase order out of fear of possible liability based upon the Asserted Patents.” J.A. 67. To support its allegation, AVC submitted a declaration from its Chief Corporation Officer, David Wang, stating:

From discussions with representatives of two AVC customers, these representatives informed AVC that Asetek has expressed to them that AVC has infringed Asetek’s U.S. Patents, and that if these customers use AVC’s products, then lawsuit will follow. These customers are: Thermaltake (a Taiwanese company) and IBuyPower (a U.S. company).

J.A. 213. Such threats constitute affirmative actions by Asetek to impede and frustrate AVC’s attempts to meaningfully participate in the liquid cooling market and further support our conclusion that a substantial controversy existed between the parties.

Asetek relies heavily on the fact that it never referenced AVC’s particular products or product line as potentially infringing, and, in fact, did not even know of AVC’s products at the time of the complaint. But we have not required such specific facts to find jurisdiction. See ABB Inc. v. Cooper Indus., LLC, 635 F.3d 1345, 1348 (Fed. Cir. 2011) (“[A] specific threat of infringement litigation by the patentee is not required to establish jurisdiction.”). Indeed, in Arrowhead Industrial Water, Inc. v. Ecolochem, Inc., applying the stricter reasonable apprehension test, we stated that “a court may find a clear basis for a reasonable apprehension in all the circumstances, even when a patentee first learns of plaintiffs conduct upon receipt of the complaint.” 846 F.2d 731, 738 (Fed. Cir. 1988). The question of jurisdiction does not turn on Asetek’s knowledge of the specific AVC products or whether Asetek specifically alleged that the K7 and K9 products infringed the asserted patents; instead, the question is whether, under all the circumstances, Asetek’s actions “can be reasonably inferred as demonstrating intent to enforce a patent.” Hewlett-Packard, 587 F.3d at 1363. We conclude that Asetek’s conduct demonstrates just that.

In addition to an affirmative act by Asetek, AVC must also show that the threat of suit is real and immediate to establish jurisdiction. MedImmune, 549 U.S. at 127, 127 S.Ct. 764. “[Although a party need not have engaged in the actual manufacture or sale of a potentially infringing product to obtain a declaratory judgment of non-infringement, there must be a showing of ‘meaningful preparation’ for making or using that product.” Cat Tech LLC v. TubeMaster, Inc., 528 F.3d 871, 881 (Fed. Cir. 2008). Here, AVC has made the requisite showing. AVC. alleged that (1) it has completed designs of the K7 and K9 products; (2) it has manufactured sample prototype , products of the K7 and K9 (as confirmed by photographs of the products presented to the district court below); (3) it intends to market and sell the products in the United States; and (4) its K7 and K9 products “are positioned to directly compete in the market against Cooler Master, Coolit Systems and Ener-max as well as the Asetek’s products.” J.A. 67. AVC’s allegation regarding the concerns of its customers and that it has “withheld accepting purchase order[s]” indicates that AVC has customers lined up for its products that have submitted, or, at the very least, are prepared to submit purchase orders for the products. Id.

Asetek does not dispute these allegations but instead contends that they do not demonstrate “concrete plans” to engage in potentially infringing activities. We disagree. This is not the type of case where, at the time the complaint.was filed, the accused products were far from being complete or operational and were susceptible to design changes, making it impossible to compare them against the asserted patents. See, e.g., Sierra Applied Scis., Inc. v. Advanced Energy Indus., Inc., 363 F.3d 1361, 1380 (Fed. Cir. 2004) (finding no real or immediate controversy where the alleged infringer testified that it had no intent to market the accused product and “the design [of the accused product] was fluid on the date the complaint was filed” making it “impossible to determine — on that date — whether any eventual design of the [accused product] would infringe [the asserted] patents”); Int’l Harvester Co. v. Deere & Co., 623 F.2d 1207, 1216 (7th Cir. 1980) (finding no real and immediate controversy where, as of the date of the complaint, the alleged infringer “anticipated further, fairly extensive testing of the [accused product] including, construction of more test models, and anticipated design changes where necessary in response to the testing”). This is also not a case like Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct 2130, 119 L.Ed.2d 351 (1992), or Matthews International Corp. v. Biosafe Engineering, LLC, 695 F.3d 1322 (Fed. Cir 2012), in which an intent to take action was unaccompanied by any specific plans or steps that might satisfy the MedImmune “immediacy” requirement. MedImmune, 549 U.S. at 127, 127 S.Ct, 764. Instead, AVC provided undisputed allegations that it has manufactured prototypes, has potential customers, and has a sufficiently immediate interest to request a license to clear the path for its intended entrance into the U.S. market. That is sufficient to meet the real and immediate test.

We similarly disagree with Asetek that AVC’s allegations provide insufficient information about whether the K7 and K9 products would infringe the asserted patents. AVC specifically stated that its products “may have a number of structural similarities to the accused products sold by Coolit Systems, Inc. and Cooler Master Co., Ltd.” — products which Asetek has alleged infringe the asserted patents — and that its products “are positioned to directly compete in the market” against those of Cooler Master, Coolit Systems, Enermax, and even Asetek. J.A. 67. Moreover, AVC provided photographs depicting the similarities between the K9 product and the Liqmax 120s — the product that Asetek initially accused of infringement in its demand letter to AVC. AVC was not required, as Asetek contends, to specifically allege that the structural similarities between its products and the competitor products are relevant to the claims of the asserted patents; such an allegation is implicit in the complaint when read as a whole. Indeed, to require more from AVC would precipitate the anomalous result whereby a party seeking a declaration of noninfringement must show that its product is the same as the patented product in relevant respects. As is clear from our case law — and from common sense — that is not the test for jurisdiction. See Arrowhead, 846 F.2d at 738 (“It is at best incongruous to require that one seeking a declaration of noninfringement prove its process or product is the ‘same as’ or ‘identical’ to the patented process or product,”).

Thus, we conclude that AVC alleged sufficient facts that, “under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, 549 U.S. at 127, 127 S.Ct. 764,

Conclusion

For the foregoing -reasons, we reverse the ruling of the district court and remand for further proceedings.

REVERSED AND REMANDED

      . In so doing, the Supreme Court in Medlm-mune disagreed with the stricter "reasonable apprehension of imminent suit” test that our court had previously applied and thus lowered the bar to. establish jurisdiction. Teva Pharm. USA, Inc. v. Novartis Pham. Corp., 482 F.3d 1330, 1339 (Fed. Cir. 2007). Nonetheless, the reasonable apprehension test is still á factor and "one of many ways a paten-tee can satisfy the Supreme Court’s more general all-the-circumstances test to establish that an action presents a justiciable Article III controversy.” Caraco Pharm. Labs., Ltd. v. Forest Labs., Inc., 527 F.3d 1278, 1291 (Fed. Cir. 2008).

      . Asetek contends that- we should not look beyond the allegation in the complaint and thus should not consider the declaration. But we have said that "[i]n establishing the predicate jurisdictional facts, a court ... may review evidence extrinsic to the pleadings, including affidavits and deposition testimony.” Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed. Cir. 1993). Asetek also denies making any such threat to AVC's customers and thus says that the disputed allegation is "subject to fact-finding by the district court.” Id. Here, both the Wang declaration from AVC and Asetek’s declaration denying the allegátion were before the district court and, although it did not make any explicit fact findings, the district court appears to have assumed that the allegation was true. We have no reason to conclude otherwise. Moreover, even if we were to discount the allegation, the August 2, 2014 email itself is sufficient to demonstrate that an actual controversy existed between the parties at the time of the complaint.


author: NEWMAN, Circuit Judge.

text:
    UCB, INC., Plaintiff-Appellee v. YEDA RESEARCH AND DEVELOPMENT CO., LTD., Defendant-Appellant
    2015-1957
    United States Court of Appeals, Federal Circuit.
    Decided: September 8, 2016

      James Trainor, White & Case LLP, New York, NY, argued for plaintiff-appellee. Also represented by ChristopheR J. Glan-cy, Adam Gahtan, Robert Counihan, Dimitr-ios T. Drivas, John Padro.
    Nicholas P. Groombridge, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, argued for defendant-appellant. Also represented by RebeCoa Fett, Catherine Nyarady, Daniel Klein, William S. O’Hare III.
    Before NEWMAN, LOURIE, and CHEN, Circuit Judges.
   NEWMAN, Circuit Judge.

In this declaratory judgment action, UCB, Inc. sued Yeda Research and Development Co. in the United States District Court for the Eastern District of Virginia, requesting a declaration that UCB’s Cim-zia® brand antibody does not infringe Yeda’s U.S. Patent No. 6,090,923 (“the ’923 Patent”); UCB also sought a declaration that the ’923 Patent is invalid. Yeda counterclaimed for. infringement. The district court granted summary judgment of non-infringement, holding that, based on the specification and prosecution history, the monoclonal antibodies claimed in the ’923 patent are not infringed by the chimeric or humanized antibodies of the Cimzia® product. We affirm the district court’s judgment.

Background

The ’923 Patent describes and claims a monoclonal antibody that binds a defined human cytotoxin. Claim 1 is representative:

1. A monoclonal antibody which specifically binds a human cytotoxin having a molecular weight of about 17,600 as determined by polyacrylamide gel electrophoresis, said cytotoxin being obtainable from stimulated human monocytes, said cytotoxin being further characterized by exhibiting a cytotoxic effect on cyclohex-imide-sensitized SV-80 cells and by being obtainable in a state of enhanced purity by adsorption of the cytotoxin from an impure preparation onto controlled pore glass beads, and subsequent desorption of the cytotoxin in a state of enhanced purity.

’923 Patent, col. 6, 11. 64-63. The question is whether the monoclonal antibody of claim 1 includes chimeric or humanized antibodies, when the patent specification describes only murine (mouse) monoclonal antibodies. Yeda argues that since chimeric monoclonal antibodies were known at the time the ’923 priority application was filed in 1984, the claims should be construed to cover such chimeric antibodies, as well as humanized antibodies. UCB responds that the prosecution history prohibits coverage of chimeric and humanized antibodies, and that claim 1 cannot be construed to cover those types of antibodies.

The ’923 specification states that the “CT [cytotoxin] can be isolated by the use of monoclonal antibodies against such CT which can be obtained from mice injected with partially purified or crude preparations of CT.” Col. 1, 1. 66-col. 2, 1. 1. The specification states that “a monoclonal antibody specific for CT ... is produced by such hybridoma cell lines and is used for isolating CT in substantially homogenous purified form.” Col. 2, 11. 6-9. The specification presents examples of isolating, partially purifying, and characterizing the cy-totoxin, raising and purifying the mouse monoclonal antibody, and using this mouse antibody to bind the cytotoxin.

The claims as originally filed described the antibody as a “monoclonal antibody,” but during a lengthy prosecution Yeda first limited all the claims to murine antibodies, and then sought to remove this limitation, stating:

New claims 41 and 42 are being submitted herewith in order to present claims identical to presently appearing claims 38 and 39 without requiring that the monoclonal antibodies be murine monoclonal antibodies. Arguments have previously been made in this prosecution history that the recitation of “murine” with respect to the monoclonal antibody helps to distinguish the present claims over the references such as Matthews and Wallace which disclose obtaining rabbit poly-clonal antibodies. However, it is now believed that recitation of “murine” is unduly limiting and that claims 41 and 42 are allowable for the same reasons as argued in applicants’ amendment of April 21, 1998 with respect to claims 38 and 39.

Amendment letter of June 30, 1998 at 2.

The examiner rejected the new claims 41 and 42, on the ground that the specification did not “provide enablement for the claimed ‘monoclonal antibodies’ from a broad range of species.” Office Action of Sept. 10,1998 at 3. Yeda then argued that “the term should encompass chimeric monoclonal antibodies,” stating:

The term “monoclonal antibody” is defined ... as “an antibody produced by culturing a single type of cell”, which “consists of a single species of immuno-globulin molecules.” We do not believe that the term necessitates that the monoclonal antibody be produced by the original hybridoma cell; the term should encompass chimeric monoclonal antibodies produced by a genetically engineered cell line.

Amendment letter of March 10, 1999 at 3 (footnote omitted). The applicants’ letter continued:

Applicants are particularly interested in protecting chimeric forms of their anti-cytotoxin mouse monoclonal antibodies. One of the reasons for their insistence on not limiting the claims to “mouse” monoclonal antibodies is uncertainty as to whether that would literally cover a humanized or chimeric derivative of a mouse monoclonal antibody. Any suggestions by the Examiner as to how to reconcile Applicants’ concerns with the Examiner’s concerns as to enablement would be greatly appreciated.

Id, at 5-6. The amendment also added proposed claims 45-48, all of which expressly encompassed chimeric antibodies.

Thus Yeda argued to the Examiner that humanized or chimeric derivatives of mouse monoclonal antibodies were contemplated, and should be included in the claims. Yeda submitted the declaration of Dr. Hartmut Engelmann, stating that it was within the level of skill at the application date to produce monoclonal antibodies from species other than murine. Engel-mann Declaration, May 18, 1999 at 2. The Declaration also cited two references that preceded the effective filing date, describing mouse-human chimeric antibodies. Id. at 3 4.

The Examiner withdrew the rejection for lack of enablement “in view of the applicant’s arguments and the declaration of Hartmut Engelmann.” Office Action of June 7, 1999 at 3. However, the Examiner rejected the proposed new claims 45-48, which were specific to “rat, hamster and human antibodies and chimeras thereof’ and to “chimeras of’ mouse monoclonal antibodies and “non-murine” monoclonal antibodies; the Examiner stated that these claims added new matter and were not supported in the specification. Id. The Examiner did not respond to Yeda’s request for assistance in protecting the use of chimeric or humanized antibodies in the claimed subject matter.

Yeda then cancelled all the claims that Yeda had proposed to specify chimeric antibodies. The claim that became patent claim 1, filed as claim 41, did not mention chimeric antibodies, and- had not been amended during prosecution with respect to that aspect. On UCB’s motion for summary judgment,-the district court held that this history prohibits construction of claim 1 to cover humanized and mouse-human chimeric antibodies, and thus the court granted summary judgment of non-infringement.

Discussion

The issue on summary judgment was presented as a question of claim construction. Claim construction is a matter of law, based on underlying facts. Teva Pharm. USA, Inc. v. Sandoz, Inc., — U.S. —, 135 S.Ct. 831, — L.Ed.2d — (2015). Summary judgment may be appropriate when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The district court construed “monoclonal antibody,” as used in the ’923 patent specification and claims, to mean “a homogenous population of a single type of antibody produced via hybridoma and not including chimeric or humanized antibodies.” Dist. Ct. Op. at 774. We agree that the prosecution history requires this construction, for the scopé now sought by Yeda was requested of the Examiner, and refused on the ground of new matter. Yeda argues that present claim 1 was never rejected on this ground; Yeda states that only the specific species claims were deemed by the Examiner to contain new matter.

The district court held that all the claims, correctly construed, exclude chimeric or humanized antibodies, the court stating that “[ejxamination of the prosecution history reveals that for the first ten years of prosecution, neither Yeda nor the examiner understood the term ‘monoclonal antibodies’ to include chimeric or humanized antibodies. Like the evidence in the specification, the prosecution history weighs towards a construction of.‘monoclonal antibodies’ which does not include chimeric or humanized antibodies.” Dist. Ct. Op. at 770. On this ground, the court found non-infringement.

Yeda argues that the district court erred in construing the claims to find non-infringement, instead of construing the claims objectively. Yeda states that the “claims should not be construed with the goal of including or excluding the accused product.” Yeda Br. 38. Yeda points out that claim 1 does not mention any particular monoclonal antibody or species of chimera, and should- not be limited to the examples in the specification. Yeda states that every embodiment need not be specifically described and claimed to be within the scope of a generic term in a claim.

Yeda is correct in that generic terms in claims are construed in light of that which is already known. However, the content of the specification and actions and arguments during prosecution must also be considered, in defining the scope of a generic term in a claim. See Advance Transformer Co. v. Levinson, 837 F.2d 1081, 1083 (Fed. Cir. 1988) (“Positions taken in order to obtain allowance of an applicant’s claims are pertinent to an understanding and interpretation of the claims that' are granted by the PTO ... and may work an estoppel as against a subsequent different or broader interpretation.”).

During prosecution, Yeda submitted new claims specific to “rat, hamster and human antibodies and chimeras thereof’ as well as claims specifically encompassing “chimeras of’ mouse monoclonal antibodies and “non-murine’ monoclonal antibodies. Yeda argued that its invention is not limited to murine antibodies to human cytotoxin, and “should encompass chimeric monoclonal antibodies produced by a genetically engineered cell line.” Amendment Letter of March 10, 1999 at 2, 3. The Examiner rejected the proposed claims on the ground of new matter not supported in the specification. Yeda then withdrew the proposed specific claims, and the application was passed to issuance. The district court held that Yeda cannot now obtain a claim construction that recovers claim scope that was yielded in order to obtain issuance of the patent, and construed the claims as excluding chimeric and humanized antibodies.

Yeda argues that this construction is incorrect at least as to claim 1, which recites “monoclonal antibody” but does not specify any specific form or source of antibody. Yeda states that chimeric or humanized monoclonal antibodies were known at the time its priority application was filed, December 20, 1984, and thus should be included in the monoclonal antibodies of claim 1. Yeda presented a publication of Morrison dated November 1, 1984, that describes chimeric antibodies, and cited a December 8, 1984, Nobel Prize speech by César Milstein referring to chimeric antibodies. The district court responded to these arguments, stating:. “At best, these references establish that scientists knew of chimeric antibodies in November 1984. Establishing that chimeric antibodies existed in 1984, however, is different from establishing that a person of ordinary skill in the art would have understood chimeric antibodies to be monoclonal antibodies in 1984.” Dist. Ct. Op. at 772.

The district court concluded that “the extrinsic evidence relied upon by Yeda’s experts does not support the conclusion that the understanding of ‘monoclonal antibodies’ in 1984 included either chimeric or humanized antibodies.” Id. The district court found that “for the first ten years of prosecution, neither Yeda nor the examiner -understood the term ‘monoclonal antibodies’ to include chimeric or humanized antibodies.” Id. at 770. The district court held that Yeda’s unsuccessful attempt to claim chimeras in the pending application, with acquiescence in the examiner’s rejection on the ground of new matter not supported by the specification, prohibited now obtaining a claim construction that chimeric antibodies, or equivalents thereof, are described in the specification and included in the claims.

Yeda argues that absent a narrowing amendment to the proposed claim that is now claim 1, there can be no prosecution estoppel to the scope of claim 1, merely because some proposed different claims were rejected by the,examiner and then dropped by the applicant. That is not a correct general principle. Although each claim in a patent warrants independent consideration in light of its particular facts and history, the general rule is that a patent applicant cannot later obtain scope that was requested during prosecution, rejected by the Examiner, and then withdrawn by the applicant.

Such estoppel was reasonably applied to claim 1 by the district court, although claim 1 had not' been amended. In Builders Concrete, Inc. v. Bremerton Concrete Products Co., 757 F.2d 255, 259 (Fed. Cir. 1985), the court rejected the argument that “file wrapper estoppel cannot arise without an amendment,” and explained that the “position must be evaluated in the context of this specific case.” In Wang Laboratories, Inc. v. Mitsubishi Electronics America, Inc., 108 F.3d 1571, 1578 (Fed. Cir. 1997), the court again explained: “We examine the statements and actions of the patentee before the PTO during prosecution ... and ask what a competitor reasonably may conclude the patentee surrendered to gain issuance of the patent.” (internal citations omitted).

We conclude that the district court correctly applied the law, and we affirm the holding that Yeda is estopped from including chimeric and humanized antibodies within the scope of the monoclonal antibodies claimed in the ’923 Patent.

AFFIRMED

      . UCB, Inc. v. Yeda Research and Dev. Co., 117 F.Supp.3d 755 (E.D. Va. 2015) ("Dist. Ct. Op.”).


author: SCHALL, Circuit Judge. NEWMAN, Circuit Judge,

text:
    Marion ALDRIDGE, Claimant-Appellant v. Robert A. MCDONALD, Secretary of Veterans Affairs, Respondent-Appellee
    2015-7115
    United States Court of Appeals, Federal Circuit.
    Decided: September 9, 2016

      Natalie A. Bennett, McDermott, Will & Emery LLP, Washington, DC, argued for claimant-appellant. Also represented by Leigh J. MaRtinson, Boston, MA.
    IgoR Helman, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Benjamin C. Mizer, Robert E. Kirsohman, Jr., Martin F. Hockey, Jr; Brian D. Griffin, Jonathan Krisch, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
    Before NEWMAN, SCHALL, and TARANTO, Circuit Judges.
   Dissenting opinion filed by Circuit Judge NEWMAN.

SCHALL, Circuit Judge.

Marion Adridge appeals the final decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) that dismissed as untimely his appeal from a final decision of the Board of Veterans Appeals (“Board”). Aldridge v. McDonald, 27 VetApp. 392, 394 (Vet. App. 2015). We affirm.

Background

Mr. Adridge served on active duty in the United States Marine Corps from January of 1984 to May of 1992. On December 24, 2013, the Board denied his claim for a disability rating higher than 10% for his right-knee patellofemoral syndrome and his claim for a disability rating higher than 10% for his left-knee patellofemoral syndrome. J.A. 59-60. The Board informed Mr. Adridge that, if he wished to challenge its decision, he had 120 days to file a notice of appeal with the Veterans Court. J.A. 69; see also 38 U.S.C. § 7266(a) (providing that a person adversely affected by a final decision of the Board “shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed”). Any appeal by Mr. Adridge thus was required to be filed by April 23, 2014.

The Veterans Court received a notice of appeal from Mr. Adridge on October 27, 2014, more than six months after it was due. J.A. 75. After the Secretary filed a motion to dismiss the appeal, the Veterans Court ordered Mr. Aldridge to explain why his appeal should not be dismissed as untimely. Responding to the Veterans Court’s order, Mr. Aldridge acknowledged that his appeal was late under § 7266(a). He stated, however, that deaths in his family and his resulting depressive state had prevented him from timely filing his notice of appeal. Specifically, Mr. Aldridge recounted in an affidavit that his mother died on September 27, 2013; that his daughter gave birth to a stillborn child on December 16, 2013; and that his sister passed away on January 14, 2014. J.A. 34-35. Mr. Aldridge averred that he was “severely depressed for at least nine months” following the death of his mother and that, because of his depressive state and his focus on his family, he did hot appreciate that he was required to file a notice of appeal by April 23, 2014. J.A. 37. Stating that it was “around the summer of 2014” that he recovered from his depressive state and was able to consider the need to file his appeal, J.A. 37, he asked the Veterans Court to apply the doctrine of equitable tolling and thereby deem his October 27 notice of appeal timely, see J.A. 31.

The Veterans Court began its consideration of Mr. Aldridge’s request by noting that the Supreme Court has determined that equitable tolling is appropriate when an appellant demonstrates “ ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Aldridge, 27 Vet.App. at 393 (quoting Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005))). Focusing on the second prong of the Holland test, the Veterans Court determined that Mr. Aldridge had failed to demonstrate that the deaths of his mother and sister and the stillborn birth of his grandchild “themselves directly or indirectly affected the timely filing of his appeal.” Aldridge, 27 Vet.App. at 393. The court arrived at this determination after noting that Mr. Aldridge stated that, during the period of his depression, he closed the estates of his deceased mother and sister, became his elderly father’s primary caregiver, .maintained his job as a.desk clerk at a Veterans Affairs hospital, and attempted to hire a law firm to represent him in his appeal. Id. “Given these facts,” the court stated, it was “unconvinced that Mr. Aldridge’s depression rendered him incapable of handling his affairs or otherwise directly or indirectly prevented his appeal from being timely filed.” Id. Having concluded that Mr. Aldridge had failed to demonstrate “facts sufficient to justify equitable tolling,” the court dismissed his appeal. Id. at 393, 394. One judge dissented on the ground that, in his view, the facts' presented by Mr. Aldridge justified equitable tolling. Id. at 396 (Greenberg, J., dissenting). Mr. Aldridge has timely appealed from the dismissal of his appeal.

Disoussion

Our ability to review a decision of the Veterans Court is limited. Pursuant to 38 U.S.C. § 7292(a), we may review “the validity of a decision of the Court on a rule of law or of any statute or regulation ... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.” We have exclusive jurisdiction “to review and decide any challenge to the validity of any statute or regulation or any interpretation- thereof brought under [38 U.S.C. § 7292], and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). However, except to the extent that an appeal presents a constitutional issue, we “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2).

I.

Miv Aldridge makes three arguments on appeal. First, he contends that, in denying him equitable tolling, the Veterans Court applied a legal standard that is inconsistent with the decision of the Supreme Court in Holland. See Appellant Opening Br. 17-18. Second, he argues that application of the correct legal standard to what he characterizes as “the undisputed facts” of the case establishes that he is entitled to equitable tolling. See id. at 18-19. And third, he urges that, even if the Veterans Court did not apply an incorrect legal standard, it still erred as a matter of law when it determined that no “extraordinary circumstance stood in his way” so as to prevent timely filing of his notice of appeal. Id. at 19-20. Specifically, Mr. Al-dridge argues that the court necessarily took an incorrectly narrow view of what constitutes an “extraordinary circumstance” when it determined that, because he was able to address certain matters in his life when he claimed he was in a depressive state, an “extraordinary circumstance” did not exist. Id. According to Mr. Aldridge, “[n]othing in the case law forecloses the possibility that [his] circumstances qualify as a basis for equitable tolling, even if he was not fully incapacitated by his grief.” Id. at 41.

We have jurisdiction to consider Mr. Aldridge’s first argument — that the Veterans Court applied a legal standard that is inconsistent with Supreme Court precedent — because it represents a challenge to the Veterans Court’s interpretation of a rule of law; namely, the rule as to what must be shown to. establish equitable tolling. We do not reach Mr. Aldridge’s second argument because, as set forth below, we conclude that the Veterans Court did not apply an incorrect legal standard when it denied his request for equitable tolling. Mr. Aldridge’s third argument is beyond our jurisdiction. Although Mr. Al-dridge chuches this argument in legal terms, urging that the Veterans Court took an incorrectly narrow view of what constitutes an “extraordinary circumstance,” the argument ultimately seeks a fact-based analysis that we may not undertake. Cook v. Principi, 353 F.3d 937, 937-38 (Fed. Cir. 2003) (dismissing for lack of jurisdiction because the requested review “ultimately reduce[d] to an application of the law to facts,” where the veteran “presented] his argument as a legal premise couched in terms of statutory interpretation”). What the Veterans Court did was simply look at the various tasks that Mr. Aldridge said he performed during the period he was depressed and conclude that his ability to perform those tasks indicated that he was not confronted with a Holland-like “extraordinary circumstance.” In other words, contrary to Mr. Aldridge’s assertion, the court did not impose a per se requirement of full incapacitation. The court merely applied law to fact, and review of that decision is not within .our jurisdiction. See Leonard v. Gober, 223 F.3d 1374, 1375-76 (Fed. Cir. 2000) (dismissing appeal because “we lack[ed] jurisdiction to consider the application of equitable tolling” to the facts of the case, which included determining whether untimely filing of the veteran’s appeal was “not due to neglect but rather to events beyond her control”); Sullivan v. McDonald, 815 F.3d 786, 789 (Fed. Cir. 2016) (explaining that “[w]e may not review factual determinations or application of law to fact” (citing 38 U.S.C. § 7292(d)(2))).

II.

We turn now to Mr. Aldridge’s argument that we have jurisdiction to consider: his contention that, in denying him equitable tolling, the Veterans Court applied a legal standard that is inconsistent with the decision of the Supreme Court in Holland. As noted, after citing the two-pronged test set forth in Holland and examining the facts before it, the Veterans Court determined that Mr. Aldridge had failed to demonstrate that the deaths of his mother and sister and the stillborn birth of his grandchild “themselves directly or indirectly affected the timely filing of his appeal.” Aldridge, 27 VetApp. at 393. On this basis, the court concluded that Mr. Aldridge had failed to demonstrate that he was confronted with an “extraordinary circumstance,” as required by Holland, and it denied him equitable tolling. Id. at 394. Mi). Aldridge argues that the Veterans Court’s use of a causation analysis (i.e., “directly or indirectly affected”) was contrary to Holland. He states:

Instead of requiring the party petitioning for equitable relief to show that the missed deadline was a “but for” consequence of the extraordinary circumstances, the Supreme Court [in Holland ] imposed a simpler paradigm. The legal standard that was adopted, “some extraordinary circumstance stood in [the] way and prevented timely filing,” focuses on whether the extraordinary circumstances created a roadblock to timely filing as opposed to a metaphorical chain of causation that links events through time. This distinction is critical in this case, where Mr. Aldridge faces a serious roadblock, or impediment, to timely filing.

Appellant Opening Br. '28 (second alteration in original). Mr. Aldridge elaborates that the Veterans Court’s use of what he refers to as “a standalone ‘causation’ prong” placed “a heavier burden on the veteran than showing some threshold connection between extraordinary circumstances and the untimely filing,” which, he says, is all that Holland requires. See Appellant Reply Br. 3-4. Mr. Aldridge states that he is “entitled to have the undisputed evidence evaluated under the correct standard.” Appellant Opening Br. 31. He concludes by asking us to remand his case to the Veterans Court, adding that, on remand, the court “should adhere to the language in Holland and ask, simply, whether the deaths in [his] family and his ensuing depression stood in his way and prevented timely filing.” Id.

Having considered Mr. Aldridge’s arguments, we are unable to agree that, in denying his request for equitable tolling, the Veterans Court applied an incorrect legal standard. The requirement of prong two of Holland — that an appellant demonstrate that “‘some extraordinary circumstance stood in his way' and prevented timely filing,” 560 U.S. at 649, 130 S.Ct. 2549 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)) — necessarily carries with it an element of causation. That is because when something “stands in the way” and “prevents” another thing from happening, it is “causing” that other thing not to happen. In fact, this is precisely what the Supreme Court made clear this year in Menominee Indian Tribe of Wisconsin v. United States, — U.S. —, 136 S.Ct. 750, 193 L.Ed.2d 652 (2016). The Court stated: “We ... reaffirm that the second prong of the equitable tolling test is met only where the circumstances that caused a litigant’s delay are both extraordinary and beyond its control.” Id. at 756 (first emphasis added). Moreover, decisions of this court are consistent with what the Supreme Court said in Menominee, See, e.g., Toomer v. McDonald, 783 F.3d 1229, 1238 (Fed. Cir. 2015) (“[T]his court has made clear that ‘to benefit from equitable tolling, ... a claimant [must] demonstrate three elements: (1) extraordinary circumstance; (2) due diligence; and (3) causation.’ ” (second alteration in original) (quoting Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014))). In sum, the Veterans Court did not apply an incorrect legal standard when it determined that Mr. Aldridge had failed to demonstrate that the deaths in his family “themselves directly or indirectly affected the timely filing of his appeal.”

Conclusion

For the foregoing reasons, the decision of the Veterans Court dismissing Mr. Al-dridge’s appeal as untimely is affirmed.

AFFIRMED

Costs

Each party shall bear its own costs.

NEWMAN, Circuit Judge,

dissenting.

This case puts judicial humanity to the test; the Federal Circuit and the Court of Appeals for Veterans Claims fail the test.

Mr. Aldridge was six months late in filing a notice of appeal to the Veterans Court from a decision of the Board of Veterans Appeals. He explained the deaths of his mother, sister, and grandchild, all within four months. He explained his grief, his depression, and his focus on the needs of his family as well as the legal obligations he bore. He explained his role as caretaker for his elderly father, his emotional support for his daughter after the stillbirth of his grandchild, and his employment obligations. He explained that his attention to the needs of others overcame important matters in his own life, including the timely filing of this notice of appeal.

The Veterans Court (by split decision) concluded that the veteran was indeed capable of filing a timely notice of appeal, stating that there is “no support in the jurisprudence of either this Court, the U.S. Court of Appeals for the Federal Circuit, or the Supreme Court that would counsel the application of equitable tolling to the facts of this case as they have been presented.” Vet. Ct. Op. at 394. The Veterans Court held that equitable tolling is not available because Mr. Aldridge was not “rendered incapable of handling his affairs.” Id. at 393.

My colleagues on this panel agree, explaining that “Mr. Aldridge had failed to demonstrate that the deaths in his family ‘themselves directly or indirectly affected the timely filing of his appeal.’ ” Maj. Op. at 1266. That is not the correct standard. Equity requires not only justice and fairness, but a realistic and humane perspective on how the facts of life and death can affect human behavior. Equity is “flexible jurisdiction ... to protect all rights and do justice to all concerned.” Providence Rubber Co. v. Goodyear, 76 U.S. (9 Wall.) 805, 807, 19 L.Ed. 828 (1869).

Federal Circuit precedent has recognized that equitable tolling is available in “extraordinary circumstances,” and we have rejected the “suggestion that equitable tolling is limited to a small and closed set of factual patterns and that equitable tolling is precluded if a veteran’s case does not fall within those patterns.” Mapu v. Nicholson, 397 F.3d 1375, 1380 (Fed. Cir. 2005). In Sneed v. Shinseki, 737 F.3d 719 (Fed. Cir. 2013), the court stated that there are no “exclusive parameters of equitable tolling”), id. at 726, and held that “the Veterans Court’s analysis focused too narrowly on whether [the] case fell into one of the factual patterns of past cases considering § 7266(a),” id. at 724.

The pattern-seeking analysis that is here imposed against Mr. Aldridge is exactly the kind of “improperly narrow standard for equitable tolling” that was disclaimed in Sneed. Id. at 724. Yet the court now rejects this flexibility, instead stating that the “rule of law” controls whether to “establish equitable tolling.” Maj. Op. at 1264. Equity is not controlled by the rules of law. Equity includes not only what the law tells judges we may do, but is the “power to moderate and temper the written law, [subject] only to the law of nature and reason.” Samuel Johnson, Dictionary of the English Language (1756).

Although the time limit for appeal from the BVA to the Veterans Court is not “jurisdictional,” the VA argues that only incapacity of the veteran is an acceptable ground of equitable tolling. Precedent recognizes, but does not require, incapacity. The Court instructs that equity is adaptable to the circumstances:

[C]ourts of equity can and do draw upon decisions made in other similar cases for guidance. Such courts exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case.

Holland v. Florida, 560 U.S. 631, 650, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Such “special treatment” must take account of all of the circumstances confronting the veteran, particularly in light of the statutory (as well as equitable) requirements of special consideration to veterans. It cannot be that because Mr. Aldridge was not hospitalized for his depression, or other manifestation of incapacity, equitable tolling is not available.

Consideration of the circumstances includes considering what is sought to be tolled, and the consequences of tolling in the particular case:

“[Equitable relief] is not a matter of right in either party; but is a matter of discretion in the Court; not of arbitrary or capricious discretion, dependent upon the mere pleasure of the Judge, but of that sound, and reasonable discretion, which governs itself, as far as it may, by general rules and principles; but at the same time, which withholds or grants relief, according to the circumstances of each particular case, when these rules and principles will not furnish any exact measure of justice between the parties.”

Joseph Story, Equity Jurisprudence § 742 (1st ed. 1836). The circumstances affecting Mr. Aldridge must be considered, along with the consequences to the government. It is relevant that no government or other entity was prejudiced by this delay in appeal from the BVA; no records were lost or destroyed; no witness departed; no military or civilian action prejudiced. There is no monetary consequence, no extra draw on governmental resources.

The government argues, and the panel majority agrees, that since equitable tolling depends on the particular facts, this court has no jurisdiction to review the denial, no matter how strong the draw on equity. However, “this court has jurisdiction to consider whether the Veterans Court employed an improperly narrow standard for equitable tolling under § 7266(a).” Sneed, 737 F.3d at 724. The court has also recognized that veterans are “vulnerable litigants” who are typically unrepresented by counsel. Dixon v. Shinseki, 741 F.3d 1367, 1376 (Fed. Cir. 2014). Mr. Aldridge was not represented by counsel at the BVA, for counsel would routinely have filed a timely notice of appeal.

This court has been assigned the responsibility for assuring that the legislative purpose of establishing a veteran-friendly regime is implemented. This ease should never have come this far. On the undisputed circumstances that existed in this veteran’s family, the VA could readily have allowed the tardy appeal from the BVA to the Veterans Court. Instead, we see the government in uncompromising litigation to prevent this veteran from appealing the BVA decision on his percentage disability, straining precedent to its equivocal limits.' What happened to the recognition that “the veterans benefit system is designed to award ‘entitlements to a special class' of citizens, those who risked harm to serve and defend their country. This entire scheme is imbued with special beneficence from a grateful sovereign.’” Bailey v. West, 160 F,3d 1360, 1370 (Fed. Cir. 1998),

The question before the court is whether the circumstances excuse the untimely filing. Equity is no more confined to a few narrow categories than are humanity, reason, and justice. ! respectfully dissent.

      . Aldridge v. McDonald, 27 Vet.App. 392 (Vet. App. 2015) (“Vet. Ct. Op.”).