source: Caselaw Access Project

author: MARTIN, Circuit Judge:

license: Public Domain

text:
    Winsome Blaine VASSELL, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
    No. 15-11156
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 10/21/2016

      Benjamin J. Osorio, Murray Osorio, Fairfax, VA, for Petitioner.
    Anthony W. Norwood, Manuel A. Palau, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, AÍ-fie Owens, DHS/ICE Office of Chief Counsel—ATL, Atlanta, GA, for Respondent.
    Before WILSON and MARTIN, Circuit Judges, and RODGERS, District Judge.

       Honorable Margaret C. Rodgers, United States District Chief Judge for the Northern District of Florida, sitting by designation.

   MARTIN, Circuit Judge:

The opinion issued by this panel in this case on June 13, 2016 is withdrawn, and this opinion is issued in its place. In our earlier opinion, this Court reversed the holding of the Board of Immigration Appeals (BIA) that Winsome Vassell’s conviction under O.C.G.A. § 16-8-2 was a “theft offense” as that term is defined under 8 U.S.C. § 1101(a)(43)(G). The panel opinion expressly granted Ms. Vassell’s Petition for Review, but the panel is now advised that the BIA does not deem this Court’s June 13, 2016 opinion sufficient to require it to accept , Ms. Vassell’s case on remand. The panel is therefore reissuing this opinion to make clear that in addition to granting Ms. Vassell’s petition, we are REMANDING this case to the BIA for further proceedings consistent with this Court’s ruling in its June 13, 2016 opinion, which is restated in this opinion reissued today.

The BIA ruled that Ms. Vassell is de-portable because she pleaded guilty to “theft by taking” in violation of Georgia Code § 16-8-2. Mrs. Vassell filed a petition for review saying that this crime is not “a theft offense” as that term is used in the Immigration and Nationality Act’s (INA) list of grounds for deportation. Whether a state theft conviction is “a theft offense” for the INA turns on whether the state offense contains the elements of the generic definition of theft. Mrs. Vassell says Georgia “theft by taking” doesn’t require property to be taken “without consent,” as is required for generic theft. The BIA initially took this view too, so it ruled that Mrs. Vassell’s § 16§ 8-2 violation was not “a theft offense.” The BIA had held the same about § 16-8-2 in cases before Mrs. Vassell’s, and it has continued to do so after. But after its initial ruling, a BIA official granted a motion to reconsider in Mrs. Vassell’s case and ruled the second time around that the crime is generic theft. Mrs. Vassell’s appeal therefore requires us to consider how to treat inconsistent rulings by the BIA on the same question presented in different cases.

The government defends the BIA’s last ruling in Mrs. Vassell’s’ case, though it concedes nearly everything that we need to know to decide this view is wrong. First, the government concedes that generic theft contains a “without consent” element. The government also concedes that the Georgia offense “criminalizes the conduct of obtaining another’s property by consent fraudulently obtained.” All the govérnment disputes is whether theft based on taking property through fraudulently obtained consent is “without consent.” This isn’t much of an open question though, because the BIA answered no to it years ago in a published opinion. We thus grant Mrs. Vassell’s petition.

I.

Mrs. Vassell is a citizen of Jamaica who became a lawful permanent resident of the United States in 1990. In 2013, Mrs. Vas-sell pleaded guilty to “theft by taking” in violation of Georgia Code § 16-8-2 based on charges that she took merchandise from a department store while working at the store. An immigration judge held that this crime made her deportable because it was “a theft offense” as that term is used in the INA. The BIA first reversed that decision, holding that Georgia “theft by taking” is not generic theft because it doesn’t require “lack of consent of the victim.” The government then asked the BIA to, reconsider. This second time around, the BIA ruled that Georgia “theft by. taking” does require lack of consent of the victim. The BIA ordered Mrs. Vassell to return to .Jamaica.

II.

“[W]e have jurisdiction to decide in a petition for review proceeding whether the BIA erred in determining that a petitioner’s conviction is an aggravated felony.” Balogun v. U.S. Att’y Gen., 425 F.3d 1356, 1360 (11th Cir. 2005). When deciding this question we owe deference to the BIA’s interpretations of the INA to the extent its readings are reasonable. See id. at 1361. However, we owe no deference to unpublished single-member BIA decisions (like the BIA’s final order in this case) unless they are “consistent with other decisions rendered by the BIA.” Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1279 n.2 (11th Cir. 2013). We also owe no deference to the BIA’s views on state law. Instead we “are bound to follow any state court decisions that define or interpret the statute’s substantive elements.” United States v. Howard, 742 F.3d 1334, 1346 (11th Cir. 2014).

The INA provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony” includes “a theft offense (including receipt of stolen property).” Id. § 1101(a)(43)(G). Because the INA doesn’t define “a theft offense,” courts use “the generic definition of theft.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189, 127 S.Ct. 815, 820, 166 L.Ed.2d 683 (2007). To determine whether a state offense meets that definition, we apply what is called the “categorical approach.” Moncrieffe v. Holder, — U.S. -, -, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). This approach compares the generic offense to the “minimum conduct criminalized by the state statute.” Id. “[A] state offense is a categorical match with a generic federal offense only if a conviction of the state offense necessarily involved facts equating to the generic federal offense.” Id. (quotation omitted and alterations adopted).

Generic theft is “the taking of, or exercise of control over, property without consent whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.” In re Garcia-Madruga, 24 I. & N, Dec. 436, 440-41 (BIA 2008). Mrs. Vassell was convicted under Georgia Code § 16-8-2, which reads: “A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” O.C.G.A. § 16-8-2. Mrs. Vassell says this crime lacks the “without consent” element required for generic theft. We must therefore answer two questions. First, what does the generic definition of theft’s “without consent” require? Second, does the Georgia offense contain that element?

A.

The BIA’s final order in this case simply held that § 16-8-2 requires some lack of consent, without explaining what exactly the generic “without consent” element means. However, the BIA explained years ago that this element server to distinguish theft from fraud. See Garcia-Madruga, 24 I. & N. Dec. at 438. Garcia-Madruga was the first published BIA opinion to include a “without consent” element in the agency’s definition of “a theft offense.” Because Garcia-Madruga added this element to the BIA’s definition, our analysis of what the element requires starts with that opinion.

Garcia-Madruga explained that the BIA added the “without consent” element in order to distinguish theft offenses ¿rom fraud offenses. These two types of offenses must be kept separate because the INA has different requirements for each. See id. at 439. Fraud is a deportable offense only if it causes a loss of more than $10,000. 8 U.S.C. § 1101(a)(43)(M)(i), But theft is a deportable offense no matter,the value of the stolen property. Id, § 1101(a)(43)(G). Since fraud and theft can both involve obtaining property unlawfully, the fact that a state calls an offense “theft” doesn’t mean the offense actually meets the definition of generic theft. To give meaning to the INA’s distinct requirements for theft and fraud crimes, there must be an element that separates the two crimes.

The BIA thus added the “without consent” element to the generic definition of theft. According to the government’s brief, this change was in response to “criticism from several courts.” Specifically, “every Federal court of appeals to have addressed the meaning of ‘theft offense’ under section 101(a)(43)(G) ha[d] determined that it necessarily includes the requirement that the property have been obtained from its owner “without consent,”’ Garcia-Madruga, 24 I. & N. Dec. at 438. The Supreme Court also applied that same definition “with apparent approval.” Id. The BIA joined those courts and explained how the “without consent” element distinguishes theft from fraud by quoting this passage from the Fourth Circuit’s decision in Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005):

When a theft offense has occurred, property has been obtained from its owner “without consent”; in a fraud "scheme, the owner has voluntarily “surrendered” his property, because of an “intentional perversion of truth,” or otherwise “act[ed] upon” a false representation to his injury. The key and controlling distinction between these two crimes is therefore the “consent” element—theft occurs without consent, while fraud occurs with consent that has been unlaw- ' fully obtained.

Id. at 282 (quoting Black’s Law Dictionary (6th ed. 1951)) (emphasis added).

Solimán isn’t the only Court of Appeals case to stress that the “without consent” element distinguishes theft from , fraud. The Fifth Circuit has endorsed Soliman’s reasoning on this distinction. See Martinez v. Mukasey, 519 F.3d 532, 540 (5th Cir. 2008). And the Fourth Circuit relied on Solimon to hold that Virginia larceny is not “a theft offense” because it “treats fraud and theft as the same for larceny purposes, but the INA treats them differently.” Omargharib v. Holder, 775 F.3d 192, 197 (4th Cir. 2014). And the Third Circuit cited Solimán as a reason to overrule its previous approach to defining “a fraud offense.” Al-Sharif v. U.S. Citizenship & Immigration Servs., 734 F.3d 207, 211-12 (3d Cir. 2013) (en banc). No court appears to have criticized Soliman’s reasoning.

As for the BIA, Garcia-Madruga made the agency’s agreement with Solimán on this point very clear:

[W]e are in substantial agreement with Solimán v. Gonzales, that the offenses described in sections 101(a)(43)(G) and (M)(i) of the [INA] ordinarily involve distinct crimes. Whereas the taking of property without consent is required for a section 101(a)(43)(G) “theft offense,” a section 101(a)(43)(M)(i) “offense that involves fraud or deceit” ordinarily involves the taking or acquisition of property with , consent that has been .fraudulently obtained.

24 I. & N. Dec. at 440 (citation omitted). The Solimán opinion went into even more detail on this point:

In order to give proper effect to the intention of Congress that theft and fraud offenses are to be treated differently for purposes of an “aggravated felony” issue, a proper definition of the term “theft offense” must distinguish between such an offense and a fraud scheme. And the key distinction on that point is the “without consent” element, present in the classic definition of a theft offense.... [T]he BIA’s definition of “theft offense” makes the fraud provision of Subsection (M)(i) superfluous, and it results in an outcome that is contrary to Congress’s explicit inclusion of a $10,000 threshold for fraud offenses into Subsection (M)(i)—transforming all fraud offenses into theft offenses, and thus also into aggravated felonies under § 1101(a)(43).

419 F.3d at 283.

Though Garcia-Madruga does not bind us, it bound the BIA in Mrs. Vassell’s case. And Garcia-Madruga makes clear that the BIA added the “without consent” element in order to separate theft and fraud. The question then is where this element draws a line between the two offenses. After all, every fraud that results in a victim losing his or her property to someone else involves a taking or appropriation of property with some lack of consent. But Garcia-Madruga and Solimán make clear that all those frauds are not theft. Both opinions instead draw a line based on the scope and timing of the consent. Theft involves an utter lack of the victim’s consent at the moment his property is surrendered. The thief intends to take the victim’s property, and the victim either doesn’t know his property is being taken or he knows but can’t stop it for whatever reason. Put simply, “property has been obtained from its owner ‘without consent,”’ which means “a theft offense has occurred.” 24 I. & N. Dec. at 439 (quoting Solimán, 419 F.3d at 282). As the BIA put it in a later opinion, “we construe the ... words ‘without consent’ in their conventional sense, as denoting any involuntary or unwilling taking of property.” In re Cardiel-Guerrero, 25 I. & N. Dec. 12, 20 (BIA 2009).

By contrast, fraud involves a victim who willingly consents at the time the property is surrendered, though this consent was obtained through some kind of falsehood. If the victim knew better, he wouldn’t have consented. This victim “has voluntarily ‘surrendered’ his property, because of an ‘intentional perversion of truth,’ or otherwise ‘act[ed] upon’ a false representation to his injury.” Garcia-Madruga, 24 I. & N. at 439 (quoting Soliman, 419 F.3d at 282 (alterations in original)). When the victim is tricked into handing property over in this way, the crime is fraud not theft. A crime like this is a deportable offense only if it meets the INA’s distinct requirements for “a fraud offense.” “The key and controlling distinction between these two crimes is therefore the ‘consent’ element—theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained.” Id.

B.

The second question is whether Georgia Code § 16-8-2 requires the same lack of consent as does generic theft. Again, § 16-8-2 reads: “A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” O.C.G.A. § 16-8-2. Mrs. Vassell argues that the phrase “regardless of the manner in which the property is taken or appropriated” establishes that the statute doesn’t require any lack of consent on the part of the victim.

Georgia law is full of cases that confirm Mrs. Vassell’s reading. First, Mrs. Vassell cites Spray v. State, 223 Ga.App. 154, 476 S.E.2d 878 (1996), which said that “the phrase ‘regardless of the manner in which the property is taken or appropriated’ is a catch-all phrase rendering our theft by taking statute broad enough to encompass theft by conversion, theft by deception or any other of the myriad and even yet-to-be-concocted schemes for depriving people of their property.” Id. at 880 (quotation omitted). Charlie Spray was a police officer who applied for a grant of free equipment for his police department from the Georgia Emergency Management Agency (GEMA). GEMA approved the grant and awarded the equipment, which Officer Spray picked up from GEMA. Id. Instead of taking the equipment to his police department or using it for anything official, Officer Spray took it home for personal use. Id.

The government tries to distinguish this case by saying Officer Spray’s later “conversion of the property to personal use was without the consent of the state.” That’s not how the Georgia Court of Appeals analyzed the issue. That court held that Officer Spray’s conviction was valid because he “deprive[d] the State of Georgia of the goods at the time [he] received the property from GEMA.” Id. at 881 (emphasis added). Officer Spray’s crime was deceiving GEMA. More specifically, he lied in a way that induced GEMA to give him its property. Spray confirms that § 16-8-2 is overbroad because it punishes both theft and fraud. Or as the Georgia Court of Appeals put it, the statute is “broad enough to encompass theft by conversion, theft by deception or any other of the myriad and even yet-to-be-concocted schemes for depriving people of their property.” Id. at 880.

Mrs, Vassell also cites Ray v. State, 165 Ga.App, 89, 299 S.E. 2d 584 (1983), which similarly held that “the clause, ‘regardless of the manner in which said property is taken or appropriated[ 3’ ... renders the section sufficiently broad to encompass thefts or larcenies perpetrated by deception.” Id. at 586 (quotation omitted). Mr. Ray was a used car salesman who filed fraudulent bank drafts. He submitted the drafts with envelopes that he said contained the documents for valid car sales, when “[i]n fact they contained therein no documents relating to the automobile described on the outside and were commercially worthless.” Id. at 587-88. The Georgia Court of Appeals upheld Mr. Ray’s conviction because “there was evidence that the defendants intentionally created a false impression as to existing facts.” Id. at 588. The court, explained that this evidence alone “was sufficient to enable a trier of fact to find the defendant guilty.” Id. The court even added that “the fact that the party alleged to have been defrauded did not exercise reasonable diligence in preventing the fraud affords no defense.” Id at 587 (quotation omitted). Ray confirms that § 16-8-2 punishes both theft and fraud.

The government cites a few Georgia cases of its own. First, the government points to Stull v. State, 230 Ga. 99, 196 S.E.2d 7 (1973), which said “the gravamen of [§ 16-8-2] is the taking of the property of another against the will of such other.” Id. at 9. But the question here isn’t about the “gravamen” of the crime. It’s about the elements. Also, even if “against the will” is some kind of implied element of § 16-8-2, it is far broader than the generic “without consent” element. Even if “against the will” implies some lack of consent, a victim could just surrender property against his or her “will” based on fraud or deception. Or as the Georgia Supreme Court put it: “the language embodied in the clause, ‘Regardless of the manner in which said property is taken or appropriated,’ renders the section sufficiently broad to encompass thefts or larcenies perpetrated by deception.” Id.

The facts of Stull show why this statutory language takes § 16-8-2 far beyond generic theft. Henry Stull ordered merchandise and airline tickets on behalf of a fake company that he made up. IcL at 102-03, 196 S.E.2d 7. His victims delivered the merchandise and airline tickets to him. Id. The Georgia Supreme Court held that “[t]he jury was authorized to find that the accused embarked on a fraudulent scheme wherein by the use of letterheads purporting to be those of a legitimate business concern, and by the use of other deceptive practices he gained possession of the personal property which was the subject matter of the theft by taking charge.” Id. at 10. The court explained that the victims

. inten[ded] ,.. to extend credit, not to the accused, but to the corporation or business firm which they thought the accused represented. They intended to sell the property to the corporation. They delivered possession to the accused, not for himself, but as they supposed, as agent. He was not the agent of the business firm which they were led to believe he represented, and the personnel of that firm did not know anything about hipa or his activities. It is clear that the accused intended to appropriate the proceeds of the property, the possession of which he thus acquired, to his own use.

Id. These victims handed over property based on the fraudulently induced belief about the defendant’s identity. Or as Garcia-Madruga put it, the victim “voluntarily surrendered [its] property, because of an intentional perversion of truth, or otherwise acted upon a false representation to [its] injury.” 24 I. & N. Dec. at 439 (quotation omitted). Counting the taking, in Stull as “a theft offense” under the INA would ignore the INA’s distinction between theft and fraud.

The government also cites two Georgia Court of Appeals cases. First, In re E.C., 311 Ga.App. 549, 716 S.E.2d 601 (2011), involved two teenage boys accused of taking their sister’s car without permission. The sister refused to testify, so the state had no evidence that she gave no permission. The Georgia Court of Appeals overturned the boys’ convictions, saying: “That the taking was ‘unlawful,’ that is, without the owner’s consent, is an essential element of the crime.” Id. at 602. Next, Payne v. State, 301 Ga.App. 515, 687 S.E.2d 851 (2009), also involved a stolen car. The defendant claimed he had permission to take the car, but the evidence showed that he violently assaulted the car owner, who screamed “take everything” and fled. Id. at 854. The Georgia Court of Appeals upheld the conviction. Neither of these cases tell us what consent § 16-8-2 requires. In E.C. there was no evidence at all of lack of consent. In Payne there was a very stark lack of consent. These opinions don’t tell us what happens between those two extremes. Specifically, they don’t say whether a defendant can be convicted of “theft by taking” if she obtains consent by fraud or deception. And Spray, Ray, and Stull make clear that the answer to that question is yes.

The government also points to Georgia’s jury instructions, which say:

A person commits theft by taking when (a) that person unlawfully takes any property of another with the intention of depriving the other person of the property, regardless of the manner in which the property is taken or appropriated; or (b) being in lawful possession of any property of another, that person unlawfully appropriates such property with the intention of depriving the other person of property, regardless of the manner in which the property is taken or appropriated.

Ga. Suggested Pattern Jury' Instructions 2.64.20. These instructions never mention consent. Instead they'repeat the-“regardless of the manner in which the property is taken or appropriated” language that makes § 16-8-2 broader than generic theft. The government says the term “unlawfully” in these instructions means that juries must find a lack of consent. This argument is puzzling. § 16-8-2 also uses the word “unlawfully” in this exact same way, so; it’s unclear how the same word implies a “without consent” element in one place but not the other. And best we can tell, the government’s argument hangs on equating “unlawfully” and “without consent.” The word “unlawfully”' means lots of things, not just “without consent.” Crucially, it can refer to unlawful fraud. Also, these are jury instructions. Telling a jury that a taking must be “unlawful” hardly specifies that the taking must be without consent, especially when the instructions include the broad disclaimer “regardless of the manner in which the property is taken or appropriated.”

C.

The government makes two additional arguments for why § 16-8-2 is “a theft offense.” First, it points to this language from the Supreme Court’s Duenas-Alvarez case: “to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires 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.” 549 U.S. at 184,127 S.Ct. at 816. The government says Mrs. Vassell “does not discuss her individual case or point to a decision in which the state court applied the statute to an action that was not an aggravated felony.” This Court rejected this same argument when we held that Georgia’s “theft by shoplifting” offense is not “a theft offense” for the INA:

[T]he Government argues that, under Duenas-Alvarez, Ramos must show that Georgia would use the Georgia statute to prosecute conduct falling outside the generic definition of theft.... But Due-nas-Alvarez does not require this showing when the statutory language itself, rather than ‘the application of legal imagination’ to that language, creates the ‘realistic probability’ that a state would apply the statute to conduct beyond the generic definition. Here, the ... statute’s language [ ] creates the “realistic probability” that it will punish crimes that do qualify as theft offenses and crimes that do not.

Ramos v. U.S. Att’y Gen., 709 F.3d 1066, 1071-72 (11th Cir. 2013). Here too § 16-8-2’s “regardless of the manner in which the property is taken or appropriated” language “creates the ‘realistic probability’ that [courts] would apply the statute to conduct beyond the generic definition” of theft. Id. at 1072. Indeed we have already explained how Mrs. Vassell has “point[ed] to ... cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which [s]he argues.” Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. at 822.

Second, the government suggests that the “without consent” element can be satisfied at whatever moment an offender exceeds the victim’s consent, even if this happens long after property is initially surrendered with consent. The government points here to generic theft’s “exercise of control over property without consent” language (as in, “taking of, or exercise of control over, property without consent”). The government made no argument about this “exercise of control” language in its appeal brief. But it suggested at oral argument that even if a victim hands property over due to a falsehood, consent no longer exists at the moment the victim realizes that the false thing turns out not to be true. At this point, the government’s argument goes, the offender has committed “exercise of control over property without consent” and the crime becomes a generic theft.

But this argument just recreates the problem that Garcia-Madruga and “every Federal court of appeals to have addressed the meaning of ‘theft offense,’ ” 24 I. & N. Dec.- at 438, tried to solve: it turns all fraud into theft. All fraud could become an “exercise of control overt ] property without consent” at whatever point the fraudulently obtained consent expires. For example the statute addressed in Garcia-Madruga punished “[a]ny person who by any fraudulent device obtains, or attempts to obtain, or aids or abets any person to obtain public assistance .., to which he or she is not entitled.” Id. at 437 (quotation omitted). For this statute, as for § 16-8-2, the offender’s appropriation of property is criminalized even if the victim’s consent expired at some later point. For example, the welfare agency in Garcia-Madruga might have realized that Ms. Garcia-Ma-druga lied.on her welfare application and asked for its disbursement back. Or the agency in Spray might have realized that Officer Spray lied on his application and asked him to give back the equipment it gave him. Or the bank in Bay might have asked Mr. Ray to return the money that the bank paid him based on his fraudulent draft document. Or the vendor in Stull might have asked Mr. Stull to give back the property that it gave to him based on his lies. Indeed this possibility would exist for any fraud victim.

But even if those victims asked for their property back, it wouldn’t make a difference for whether the crime was committed. All those defendants committed the crimes at issue when their victims handed over property because of fraud that was intended to induce this surrender. See Spray, 476 S.E.2d at 881 (“[T]he manner in which the theft occurred is not necessarily determinative. Instead, the question is whether the appellant had thé requisite intent to deprive the State of Georgia of the goods at the time appellant received the property.”); Ray, 299 S.E.2d at 588 (“[F]rom the record there was evidence that the defendants intentionally created a false impression as to existing facts. The evidence was sufficient to enable a rational trier of fact to find the defendant guilty.”); Stull, 196 S.E.2d at 10 (“The jury was authorized to find that the accused embarked on a fraudulent scheme wherein by the use of letterheads purporting to be those of a legitimate business concern, and by the use of other deceptive practices he gained possession of the personal property which was the subject matter of the theft by taking charge.”). These defendants were convicted of defrauding their victims. Calling these crimes “a theft offense” ignores the INA’s separate requirement for fraud offenses. And the categorical approach would make every1 § 16-8-2 violation “a theft offense.” The Georgia statute covers both theft with consent (as in, nongeneric theft) and theft that lacks consent (generic theft). A violation of the statute isn’t necessarily “a theft offense” as that term is used in the INA.

That said, we acknowledge that some statutes that punish non-generic theft could also give rise to a conviction for generic theft in some instances. For example, a statute may create one crime that is generic theft plus another crime that isn’t. When a statute is divisible into more than one crime in this way, courts can easily identify whether a conviction was for generic theft and then apply the INA’s specific requirements for a “theft offense.” But the BIA didn’t rule that § 16-8-2 is divisible, and the government never argued for the statute’s divisibility here either. To the contrary, it seems clear that § 16-8-2 is not divisible. Though the statute uses the word “or” (as in “unlawfully takes or, being in lawful possession thereof, unlawfully appropriates”), this, entire phrase is modified by the language “regardless of the manner in which the property is taken or appropriated” that makes the statute overbroad as to the consent element required for generic theft.

III.

There is one more reason to grant Mrs. Vassell’s petition. Mrs. Vassell’s is not the only case in which the BIA has decided whether a § 16-8-2 conviction is “a theft offense” for the INA. And in every case Mrs. Vassell points us to other than her own, the BIA ruled in the way she asks us to rule here. This includes decisions that are older than the most recent order in Mrs. Vassell’s case, see In re Facio-Alba, No. [ AXXX-XXX-XXX ], 2010 WL 5559167, at *3 (BIA Dec. 17, 2010) (unpublished), as well newer decisions, see In re Al'aelu, No. [ AXXX-XXX-XXX ], slip op. at *1-2 (BIA Sept. 3, 2015) (unpublished). Those orders invoke the exact reasoning Mrs. Vassell asks us to apply here. And the government points to no BIA orders deciding the issue the other way. The government has also confirmed that the Aiaelu order (which seems to be the BIA’s most recent opinion on this issue) was the final order in that case. The government gives no explanation for why Mrs. Vassell must be deported for her § 16-8-2 conviction but Mr. Ajaelu can’t be deported for his. Mrs. Vassell claims that lack of consistency make the BIA’s order in her case arbitrary and capricious. We need not decide this question because we agree with Mrs. Vasell that the BIA’s reasoning in her case was mistaken. The fact that the BIA adopted Mrs. Vas-sell’s view in apparently every other case simply underscores this.

IV.

We end by noting three questions that this case did not decide. First, we did not decide whether Mrs. Vassell committed “a fraud offense.” The BIA’s two orders in Mrs. Vassell’s said nothing about “a fraud offense.” We can’t turn the agency’s |indr ing that Mrs. Vassell was convicted of “a theft offense” into a finding that she was convicted of “a fraud offense.” See Jaggernauth v. U.S. Att’y. Gen., 432 F.3d 1346, 1356 (11th Cir. 2005) (per curiam). Second, we did not decide the meaning, of “theft” for federal statutes that don’t distinguish theft from fraud, as the INA does.- If a statute doesn’t distinguish theft from fraud in this same way, there may not be a need for a “without consent” element. The parties here agreed that generic theft contains the “without consent” element, as set out in Garda-Madruga and Duenas-Alvarez. Third, we did not rule on Mrs. Vassell’s claim about her eligibility for withholding of removal. Because we reverse the BIA’s decision that Mrs. Vassell’s theft crime made her removable, we need not address this other claim.

PETITION FOR REVIEW GRANTED. THIS CASE IS REMANDED1 TO THE BIA FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

      . Solimán quoted this 1951 dictionary to analyze how the terms "theft” and "fraud” “were commonly used at the time of the [INA’s] adoption in 1952.” Soliman, 419 F.3d at 282.

      . Garcia-Madruga did however warn that the BIA .wasn't adopting every aspect of Solimán, which defined both theft and fraud. The BIA explained that "the definition in Soliman v. Gonzales of a fraud offense is not before us, and we need not decide whether it is sufficiently inclusive.” 24 I. & N. Dec. at 440 n.5 (citation omitted). The "definition ... of a fraud ■ offense is not before us” here either because the BIA didn't say Mr. Vassell’s crime was "a fraud offense.” Garcia-Madruga further added that the BIA was also not deciding whether theft by coercion or extortion is "without consent." See id. The BIA then addressed this question a year later. In re Cardiel-Guerrero, 25 I. & N. Dec. 12, 20-21 (BIA 2009). Our analysis today is limited to the issue analyzed in Garcia-Madruga: whether theft through consent obtained using fraud or deception is "without consent.” For that reason, we also need not decide whether theft committed through embezzlement is "without consent.” See Mena v. Lynch, 820 F.3d 114, 122 (4th Cir.2016) (Wilkinson, J., dissenting) (arguing that theft through embezzlement is generic theft because "the owner of the funds voluntarily entrusts them to the embezzler” and "the whole purpose of the entrustment is for an honest stewardship of the funds”). As discussed below, § 16-8-2 applies whenever a victim gives up property based on a falsehood, even without any ongoing expectation of "honest stewardship.”

      . This isn’t the first time the government has argued that “unlawful” and "without consent” mean the same thing. Solimán rejected this same conflation:
      [T]he key distinction [between theft and ■ fraud] is the “without consent” element-This key distinction was eliminated by the definition of "theft offense” used by the BIA in this proceeding, substituting the term "unlawful” for "without consent” of the property owner. In so doing, the BIA authorized a fraud offense to satisfy the "unlawful taking" requirement of a theft, and thus be subsumed within the term “theft offense.” Such a result is contrary to the intention of Congress.
      419 F.3d at 283 (citation omitted). Again, this is the concern that led the BIA to add “without consent” to its definition of generic theft. The BIA ignored this concern in Mrs. Vassell’s case.

      . To be clear, this is different from when an offender borrows property legitimately (as in, planning to give it back) but then later changes her mind. Garcia-Madruga addresses this scenario in a footnote, which explains that generic theft's "exercise of control over[ ] property without consent” element "[p]re-sumably ... capture[s] the concept of an indirect ‘taking’ or a situation where the owner originally relinquished the property on a consensual, nonfraudulently induced basis (e.g., where it was lent to the offender for a limited time or purpose, but the offender later determined to keep it for himself).” 24 I. & N. Dec. at 440 n.6 (emphasis added). That’s of course different from “a situation where the owner originally relinquished the property on a” fraudulently induced basis, as in Spray, Ray, and Stull.

      . Indeed, every violation of the Rhode Island statute at issue in Garcia-Madruga appears to also be a violation of § 16-8-2. We know from Spray that § 16-8-2 applies to fraud of state agencies. See 476 S.E.2d at 881. And anyone who uses a "fraddulent device ... to obtain public assistance ... to which he or she is not entitled,” R.I. Gen. Laws § 40-6-15, no doubt also "unlawfully takes ... property of another with the intention of depriving him of the property,” O.C.G.A. § 16-8-2. But Garcia-Madruga said no violation of the Rhode Island statute is considered "a theft offense” for the INA.

      . Beyond the cases cited by the parties, Georgia law is full of § 16-8-2 cases that show how the statute punishes fraud. See, e.g., Raymond v. State, 322 Ga.App. 404, 745 S.E.2d 689, 690 (2013) (defendant told victims they were "approved for a [] loan, but would have to pay a fee” and then failed to either provide a loan or return the fee); Branan v. State, 285 Ga.App. 717, 647 S.E.2d 606, 608-09 (2007) (defendánt sold securities "for an initial payment of $3,000, with the option to sell 13 months later for $20,000” but when the victims "attempted to exercise their resale options after a year and demanded their money, [the defendant] failed to comply with the agreements and the victims never received returns on their investments”); Smith v. State, 255 Ga.App. 580, 565 S.E.2d 904, 907 (2002) (defendant "made withdrawals which far exceeded the amounts he knew had been deposited" in a bank account); Thogerson v. State, 224 Ga.App. 76, 479 S.E.2d 463, 463 (1996) (defendant ‘ 'presented a forged cash refund voucher in the amount of $829.50 to a department store”); Matthews v. State, 214 Ga.App. 104, 446 S.E.2d 790, 792 (1994) (defendant falsely told car rental company "he was an employee of 'AT & T’ and a rental was for that company” when he "did not intend to pay any rental fee”):


author: ROSENBAUM, Circuit Judge:

text:
    Lee Roy SWAFFORD, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 15-15412
    United States Court of Appeals, Eleventh Circuit.
    (October 27, 2016)

      Hendrick Lafayette Cromartie, III, Kathryn Drew Parrish Bennett, Matthew Walker Hurst, H. L. Cromartie III, PC, Rome, GA,
    Lisa D. Cooper, Lori Beranek, John Andrew Horn, David Alan O’Neal, Asha J. Palmer, Lawrence R. Sommerfeld, U.S. Attorney’s Office, Atlanta, GA, for Defendant-Appellee.
    Before ROSENBAUM and JILL PRYOR, Circuit Judges, and UNGARO, District Judge.

       Honorable Ursula Ungaro, United States District Judge for the Southern District of Florida, sitting by designation.

   ROSENBAUM, Circuit Judge:

This appeal requires us to consider the scope of the United States’s liability under federal and state law for injuries suffered by a plaintiff who fell down a set of stairs within a federally owned recreation area. The district court granted summary judgment in favor of the Government, finding that the United States was insulated from liability under both the discretionary-function exception to the Federal Tort Claims Act and the limited-liability provisions of Georgia’s Recreational Property Act. While we reverse the district court’s application of the discretionary-function exception, we ultimately affirm the judgment because Georgia law precludes recovery against the Government under the circumstances of this case.

I.

A.

The relevant undisputed facts are as follows. On September 18, 2010, Plaintiff-Appellant Lee Roy Swafford and his wife traveled to the R. Shaefer Heard Campground (“Campground”), near West Point, Georgia. The United States Army Corps of Engineers (“the Corps”) owns the campground, which is situated on the shores of West Point Lake and is encompassed within the scope of the Corps’s broader West Point Lake Project in Georgia and Alabama. ■

A few days into his stay, Swafford woke before dawn and, after it was light out, took his dog for a walk. Swafford walked from Campsite 23, where he was staying, towards Campsite 26 because he wanted to see the view of the lake from that campsite. At Campsite 26, with dog leash and cup of coffee in hand, Swafford descended the site’s wooden stairway. In the process, Swafford fell and injured himself.

Before arriving at the Campground, Swafford reserved his campsite online, paying $132 in fees for six nights of camping ($22 per night). By statute, the Corps is prohibited from charging “entrance or admission fees” to its recreational areas. 16 U.S.C. § 460d-3(a). Instead, the fee charged in Swafford’s case was for use of the Campground’s overnight camping facilities, which included a recreational-vehicle parking pad with electrical, water, and sewage services. The Corps sets the campsite fee based on the electrical amperage available at each site and charges the fee on a per-vehicle, rather than a per-person, basis.

Persons who are not staying overnight may visit campers at the Campground, but they must pay a daily “user fee” to do so. No general, day-use access to the Campground is available to the public; only campers and campers’ visitors may enter. So it is undisputed that no one can access the Campground without paying some type of fee. But beyond the campsite fees and visitor fees, the Corps does not levy any other fees for recreational activities at the Campground. The Corps uses the fees it collects to defray some of the costs of services it provides at the Campground.

Since December 1, 2005, the Corps has contracted with the Anderson Construction Company (“Anderson”) to provide “all ‘maintenance, repair, and operations of facilities, vehicles, and equipment” at West Point Lake, including the Campground. The contract provides for Anderson’s “complete inspection, maintenance, and repair” of all campsites and stairways “necessary to keep them in safe working condition.” Under the contract, “[w]ork ... shall be performed under the general direction of the Authorized Representative of the Contracting Officer (ARCO),” and all work must comply with “applicable laws, regulations, codes, or directives.”

B.

In January 2012, Swafford filed a claim with the General Services Administration and received notification in June 2012 that investigation of his claim was complete and that he would receive a decision shortly. When Swafford did not receive a decision letter, he filed a complaint in federal court on September 19, 2012. Swafford amended his complaint on November 4, 2013.

Relying on the Federal Tort Claims Act (“FTCA”), Swafford’s amended pleading alleges three counts against the United States. The first asserts a claim of premises liability under O.C.G.A. § 51-3-1, alleging that the United States, as owner of the property where Swafford was injured, “negligently and carelessly caused, allowed, and/or permitted a hazardous condition to exist and remain as to the steps at Campsite 26.” The second count, relying on O.C.G.A. § 51-2-5(5), asserts that “any negligence on the part of Anderson in also failing to inspect, maintain, and repair the steps at Campsite 26” is imputable to the United States because the Corps exercised control over Anderson in a master-servant relationship. The final count, citing O.C.G.A. § 51-2-5(6), contends that the United States is liable because it “ratified Anderson’s negligent failure to inspect and/or repair the steps at Campsite 26 on the Defendant’s premises by not requiring the repair of the defective and hazardous steps.”

The district court ultimately granted summary judgment in the Government’s favor. With respect to Count I, the district court concluded that Georgia’s Recreational Property Act (“RPA”), O.C.G.A. §§ 51-3-20 to -26, limited the liability of the United States as landowner because the Government had made the Campground available for recreational use free of charge. In the district court’s view, the campsite and visitor fees charged by the Corps were not charges for admission to the Campground.

On Count III, the district court held that the decisions of the Corps or Anderson either not to inspect or not to repair the stairs at Campsite 26 fell within the discretionary-function exception to the FTCA. As a result, the district court determined, the United States could not be held liable for those decisions. So the district court granted the Government summary judgment on that claim.

With respect to Count II, though, the district court .initially denied summary judgment. While recognizing that the FTCA precludes liability for the actions of the Government’s independent contractors, the district court concluded that material disputes of fact existed over the extent of the Corps’s control of Anderson’s activities and whether Anderson was properly characterized as an independent contractor. The court set the case for trial on Count II. As trial approached, however, the district court reconsidered its position, concluding that Georgia’s RPA also precluded finding the United' States liable under the respondeat superior theory of Count II. As a result, the district court granted summary judgment to the Government on Swafford’s last pending claim. This appeal followed.

II.

We review a district court’s grant of summary judgment de novo. Brinson v. Raytheon Co., 571 F.3d 1348, 1350 (11th Cir. 2009). Summary judgment is warranted if the record demonstrates “no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P, 56(a); see Brinson, 571 F.3d at 1350-51.

III.

Although the district court considered the discretionary-function exception last, and only with respect to Count III of Swafford’s complaint, we recognize that whether the FTCA, applies in Swafford’s ease is a question that implicates our subject-matter jurisdiction. See JBP Acquisitions, LP v. United States ex rel FDIC, 224 F.3d 1260, 1263-64 (11th Cir. 2000). If the exception were to apply to Swafford’s claims, we would lack jurisdiction over this action. See id. But we conclude that Swaf-ford’s claims lie outside the discretionary-function exception, so we reverse that part of the district court’s order holding otherwise.

A.

The FTCA grants federal district courts exclusive jurisdiction over claims for damages against the United States arising from personal injury “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Specifically, “[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674.

But the FTCA exempts from liability torts resulting from “discretionary functions”:

The provisions of this .chapter and section 1346(b) of this title shall not apply to—
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a). This exception “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. Varig Airlines, 467 U.S. 797, 808, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984). This exception , must be strictly construed in favor of the Government, and if it applies, federal courts lack subject-matter jurisdiction over the claims. See U.S. Aviation Underwriters, Inc. v. United States, 562 F.3d 1297, 1299 (11th Cir. 2009); JBP Acquisitions, 224 F.3d at 1263.

In evaluating whether the discretionary-function exception applies, we first “must determine exactly what conduct is at issue.” Autery v. United States, 992 F.2d 1523, 1527 (11th Cir. 1993). Courts then apply the two-step test developed by the Supreme Court in Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), and United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). See U.S. Aviation Underwriters, 562 F.3d at 1299.

First, we consider whether the challenged conduct “is a matter of choice for the acting employee.” Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958. “[Cjonduct cannot be discretionary unless it involves an element of judgment or choice.” Id. Challenged conduct is not discretionary “when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow” because “the employee has no rightful option but to adhere to the directive.” Id. at 536, 108 S.Ct. at 1958-59. Here, Swafford has submitted no evidence that a federal statute, regulation, or policy specifically requires the inspection, maintenance, and repair of the stairs at Campsite 26. As a result, on this record, we must conclude that deciding whether to engage in these tasks involves an element of judgment or choice.

If the conduct involves an element of judgment and is discretionary, the court “must determine whether that judgment is of the kind that the discretionary function exception was designed to shield.” Id. at 536, 108 S.Ct. at 1959. As the Supreme Court has explained, the exception is designed to prevent “judicial second guessing” of decisions “grounded in social, economic, and political policy.” Id. at 536-37, 108 S.Ct. at 1959 (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2764-65). Accordingly, the discretionary-function exception “protects only governmental actions and decisions based on considerations of public policy.” Id. at 537, 108 S.Ct. at 1959; see also Gaubert, 499 U.S. at 323, 111 S.Ct. at 1274.

In Gaubert, the Supreme Court further elaborated on the discretionary-function exception by linking the two parts of the test with a presumption: “When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.” 499 U.S. at 324, 111 S.Ct. at 1274. But importantly, the Court observed that some otherwise-discretionary acts are “obviously” outside the scope of the discretionary-function exception, citing the example of negligently driving an automobile on official business. Id. at 325 n.7, 111 S.Ct. at 1275 n.7 For example, the Court explained, “[although driving requires the constant exercise of discretion, the official’s decisions in exercising that discretion can hardly be said to be grounded in regulatory policy.” So “[t]he discretionary function exception applies only to conduct that involves the permissible exercise of policy judgment,” See Berkovitz, 486 U.S. at 539, 108 S.Ct. at 1960 (emphasis added).

B.

In urging us to find the discretionary-function exception inapplicable, Swaf-ford points us to the Supreme Court’s decision in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). In Indian Towing, a barge company sued the United States for damages when its vessel ran aground, alleging negligence by the Coast Guard in failing to maintain a lighthouse. Id. at 62, 76 S.Ct. at 123. In that case, the government conceded that the facts of the case would not fit within discretionary-function exception but instead argued that the FTCA did not apply to “uniquely governmental functions.” See id. at 64-69, 76 S.Ct. at 124-27; see also Gauberb, 499 U.S. at 326, 111 S.Ct. at 1275.

The Supreme Court disagreed. In holding that the United States could be liable, the Supreme Court relied on “hornbook tort law that one who undertakes to warn the public of danger and thereby induces reliance must perform his ‘good Samaritan’ task in a careful manner.” Indian Towing, 350 U.S. at 64-65, 76 S.Ct. at 124. So even though the Coast Guard was under no obligation to construct a lighthouse, once the Coast Guard “exercised its discretion to operate [the lighthouse] and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order,” including monitoring its function and repairing it or at least warning if it were not functioning. Id. at 69, 76 S.Ct. at 126-27. In the same vein, we conclude that the Corps’s decision to build and “operate” a staircase on the Campground gives rise to a similar obligation to inspect and maintain that staircase in a safe condition.

In Berkovitz and Gauberb, the Supreme Court reconciled its discretionary-function holdings with the Indian Towing decision. Specifically, in Berkovitz, the Supreme Court observed that Indian Towing “illuminates the appropriate scope of the discretionary function exception” by explaining that while “the initial decision to undertake and maintain lighthouse service was a discretionary judgment,” failure to maintain the lighthouse in good, working condition “did not involve any permissible exercise of policy judgment.” Berkovitz, 486 U.S. at 538 n.3, 108 S.Ct. at 1959 n.3.

Similarly, in Gauberb, the Supreme Court clarified that “[t]he United States was held liable [in Indian Towing}, not because the negligence occurred at the operational level but because making sure the light was operational ‘did not involve any permissible exercise of policy judgment.’ ” Gaubert, 499 U.S. at 326, 111 S.Ct. at 1275 (quoting Berkovitz, 486 U.S. at 538 n.3, 108 S.Ct. at 1959 n.3.) Indeed, Gauberb reiterates that the Government did not seek to claim the benefit of the discretionary-function exception in Indian Towing— a decision that in all probability reflects the Government’s recognition that negligent maintenance of the lighthouse is not the type of permissible policy decision the exception is designed to protect. See id; see also Indian Towing, 350 U.S. at 64, 76 S.Ct. at 124.

We recognize that decisions of this Court have spoken negatively of the Indian Towing decision post-Gauberb. See, e.g., Cranford v. United States, 466 F.3d 955, 959 (11th Cir. 2006); Monzon v. United States, 253 F.3d 567, 572-73 (11th Cir. 2001); Ochran v. United States, 117 F.3d 495, 505-06 (11th Cir. 1997). But the criticism of Indian Towing in those decisions centers on plaintiffs’ attempts to use Indian Towing to support a dichotomy between “discretionary functions” and “operational functions” under the FTCA—a distinction the Supreme Court expressly disavowed in Gaubert. See Gaubert, 499 U.S. at 325-26, 111 S.Ct. at 1275-76. Swafford’s ' argument here, though, is not that maintaining the stairs is an “operational” function instead of a “discretionary” one. Rather, Swafford argues that, like the lighthouse, once the Corps exercised its discretion to build and maintain the stairs, failure to maintain them in a safe condition is simply not a permissible exercise of policy judgment. We agree.

C.

The Government also attempts to distinguish Indian Toiping by framing the relevant, conduct as the Corps’s “acceptance or non-acceptance of . Anderson’s work,” a type of conduct, it argues, that is regularly protected by the exception. But the Government’s argument misses the mark. The Government is correct that, generally, decisions about accepting a contractor’s work or decisions about how to supervise a contractor can be discretionary decisions, particularly when a contract does not specify how the Government must supervise the contractor. See Andrews v. United States, 121 F.3d 1430, 1440-41 (11th Cir. 1997). But here, unlike in Andrews, the Corps’s contract with Anderson specifically required Anderson to inspect, maintain, and repair the Campground’s stairways as “necessary to keep them in safe working condition.” Whatever range of choice the Corps may have had in supervising Anderson, “choosing” to “accept” a dangerously unsafe stairway is simply not a permissible exercise of discretion any more than is choosing to not maintain a lighthouse, Indian Towing, 350 U.S. at 69, 76 S.Ct. at 126-27, or choosing to drive carelessly on official business, Gaubert, 499 U.S. at 325 n.7, 111 S.Ct. at 1275 n.7.

In sum, we conclude that the discretionary-function exception to the FTCA does not bar Swafford’s claims. Of course, a factual dispute remains over whether the stairs at Campsite 26 were dangerously unsafe. And, as the distinct court concluded, another factual dispute exists over whether Anderson is an independent contractor. Ultimately, though, these disputes will remain unresolved because we conclude that Georgia’s RPA precludes recovery for the negligence Swafford alleges led to the injuries he suffered at the Campground.

IV.

Swafford contends on appeal that the district court further erred in finding the Corps insulated from liability under Georgia’s Recreational Property Act (“RPA”), O.C.G.A. §§ 51-3-20 to -26. Specifically, Swafford asserts that because no person can access the Campground without paying some type of fee, those fees are essentially “admission charges” for- entering the Campground.. If true, those admission charges would defeat the statute’s limitation on liability. Our review of Georgia law, however, leads us to a different conclusion under the circumstances presented in this case.

A.

Georgia’s RPA limits the liability of landowners in order to encourage them to open up their properties for recreational use free of charge. Specifically, the statute provides,

Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.

O.C.G.A. § 51-3-22. As described by the legislature, the purpose of the RPA “is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.” O.C.G.A. § 51-3-20.

Two statutory exceptions to this limitation on liability exist. .One applies if the landowner willfully or maliciously fails “to guard or warn against a dangerous condition, use, structure, or activity.” O.C.G.A. § 51-3-25. This exception is not relevant to this case, as Swafford makes no allegar tions of willful or malicious conduct by the Corps or Anderson.

The second exception removes the RPA’s protection from liability “[f]or injury suffered in any case when the owner of land charges the person or persons' who enter or go on the land for the recreational use thereof.” O.C.G.A. § 51-3-25(2). The statute defines “charge” as “the admission price or fee asked in return for invitation or permission to enter or go upon' the land,” O.C.G.A. § 51-3-21(1). The statute non-exhaustively defines “recreational, purpose” to include “hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, aviation activities, nature study, water skiing, winter sports,. and viewing or enjoying historical, archeological, scenic, or scientific sites.” O.C.G.A. § 51-3-21(4).

Georgia’s courts have interpreted the RPA broadly in order to effectuate its purpose of encouraging land owners to open their properties for recreational use. And while the Georgia courts have several times considered fees charged by landowners, we have not located a single case where a Georgia court concluded that any fee qualified as a charge for admission to the property within the meaning of O.C.G.A. § 51-3-25(2).

In apparently the first case to consider the RPA, the Georgia Supreme Court held that a $1.00-per-car parking fee did not qualify as a charge for admission to the park. Stone Mountain Mem’l Ass’n v. Herrington, 225 Ga. 746, 171 S.E.2d 521, 523 (1969). Athough the court offered sparse discussion of the issue, it found that the parking fee. was charged per car, not per occupant of the car. The court explained that, in its view, the fee-was “purely a parking or driving permit for automobiles, and was in no way related to the admission of persons to the park.” Id. Other Georgia courts have similarly found that parking or automobile fees are distinguishable from admission fees under the RPA. See, e.g., Lowry v. Cochran, 305 Ga.App. 240, 699 S.E.2d 325, 330 (2010); Majeske v. Jekyll Island State Park Auth., 209 Ga. App. 118, 433 S.E.2d 304, 305-06 (1993).

Still other cases have likewise concluded that when fees relate to other services or permits, those fees are not “admission” charges within the meaning of the statute. For example, in Lee v. Department of Natural Resources, 263 Ga.App. 491, 588 S.E.2d 260 (2003), the plaintiffs traveled to Ossabaw Island, Georgia, to go hunting. Id. at 262. Georgia law requires hunters to obtain “wildlife management area licenses” to hunt in various wildlife areas around the state. Id. at 262-63. Athough the plaintiffs could not enter the island (or other wildlife areas in the state) to hunt without paying the fee to obtain a Georgia wildlife management area license, the court noted that access to the island for “recreational purposes is free to members of the general public, as are permits- to hunt on the - island, subject to having valid hunting and wildlife management area licenses.” Id. at 262. So the court held that the fees paid were for those licenses and “not for entry upon Ossabaw Island for recreational purpose.” Id. at 262-63.

In Hogue v. Stone Mountain Memorial Ass’n, 183 Ga.App. 378, 358 S.E.2d 852 (1987), a family was charged a $4 fee when entering the park, “in return for which they received a vehicle sticker which permitted them to exit and re-enter the park without additional charge during their stay there.” Id. at 854. The per-vehicle sticker fee also did not depend on the number of occupants in the car. Id. Additionally, during the family’s stay, they paid a camping registration fee and purchased food, souvenirs, and attraction tickets. Id. Relying on Herrington, the Georgia court concluded that the vehicle fee was for permission to use the vehicle in the park and not “a charge for 'the recreational use of the parkland itself.” Id. Similarly, the court concluded that the camping fee and other purchases were not “charges for the recreational use of the parkland itself, it appearing that such general activities as swimming and sightseeing were available to and engaged in by the family without charge.” Id.

Likewise, Georgia courts have found that when fees are used to defray certain costs, those fees are not admission charges. For example, in South Gwinnett Athletic Ass’n, Inc. v. Nash, 220 Ga.App. 116, 469 S.E.2d 276 (1996), a little-league baseball player was injured climbing on a wall while watching his brother’s T-ball game. Id. at 276-77. The boy’s family argued that the league registration fees constituted admission charges within the meaning of the RPA. Id. at 277. But the court concluded that this fee was not an admission charge, finding persuasive, among other things, that the. fee was charged to cover league expenses such as uniforms, umpires, lights, water, and sanitation. Id.; see also Gayle v. Frank Callen Boys & Girls Club, Inc., 322 Ga.App. 412, 745 S.E.2d 695, 697-98 (2013) (fees used, among other things, to “defray some of the operating costs for recreational activities”).

B.

With these cases in mind and on this record, we conclude that the fees charged by the Corps at the Campground, which are assessed to defray the costs of providing electricity and other utilities, do not constitute admission fees charged for permission to enter Campground for recreational use. It is undisputed here that the Corps uses the campsite and visitor fees it collects to defray some of the costs of services it provides at the Campground. See Gayle, 745 S.E.2d at 697-98; Nash, 469 S.E.2d at 277. It charges the variable campsite fee based on the amperage available at individual campsites and does not charge for any recreational activities at the Campground. See Lee, 588 S.E.2d at 262-63; Hogue, 358 S.E.2d at 854. And the Corps charges the fee on a per-vehicle basis—and not per-person—suggesting the fee is “in no way related to the admission of persons to the park.” See Herrington, 171 S.E.2d at 523.

We also note that federal law expressly prohibits the Corps from charging an entrance fee for admission to its public recreation areas. 16 U.S.C. § 460d-3(a). But federal law does allow the Corps to charge for use of “developed recreation sites and facilities,” as well as to assess fees “for the use of specialized sites, facilities, equipment or services related to outdoor recreation furnished at Federal expense.” 16 U.S.C. § 460d-3(b)(l); 36 C.F.R. § 327.23(a). The fees charged by the Corps at the Campground are authorized by these latter provisions and are compatible with Georgia law. Indeed, the distinction in federal law between admission fees and use fees emphasizes the view of Georgia courts that an admission fee can be, and is, distinguishable from service or facilities fees.

We acknowledge that, in determining that the RPA does not apply, some Georgia cases have also recognized as important the ability to access the land free of any charge. See, e.g., Herrington, 171 S.E.2d at 523; Nash, 469 S.E.2d at 277; Lowry, 699 S.E.2d at 330; Majeske, 433 S.E.2d at 305-06. But other cases have not considered the fees’ impact on access. See, e.g., Quick v. Stone Mountain Mem’l Ass’n, 204 Ga.App. 598, 420 S.E.2d 36, 38 (1992); Hogue, 358 S.E.2d at 854. Every Georgia case we have reviewed, though, has emphasized to some extent the use or purpose of the fee in determining whether the RPA applies. Under the circumstances of this case—where federal law prohibits the Corps from charging an admission fee and it is undisputed that the purpose of the fee is to defray the costs of utilities and services provided to campers and their guests—we have little difficulty concluding that the fee charged here is not a charge for admission.

Y.

In sum, we conclude that the district court erred in applying the discretionary-function exception of the FTCA to Swaf-ford’s claims. Accordingly, we reverse that part of the district court’s order. But we find that the district court correctly determined that the fees charged by the Corps are not admission charges within the meaning of the RPA. For this reason, we affirm the district court’s application of Georgia’s RPA to Swafford’s case.

AFFIRMED.

      . If that’s the case, the United States may be able to avoid liability for any negligence on Anderson’s part, See 28 U.S.C. § 2671; Tisdale v. United States, 62 F.3d 1367, 1371 (11th Cir. 1995).

      . Although the district court applied the RPA to just the first two counts of Swafford’s complaint, we discern no reason why the RPA would not apply to all three. After all, the RPA protects the landowner from liability. O.C.G.A. § 51-3-22. Regardless of which theory of negligence Swafford advances, the United States is the landowner he is seeking to hold liable. And, of course, we may affirm a district court's judgment on any reason supported by the record, irrespective of whether the district court relied on that reason. See Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1283 (11th Cir. 2012).

      . We also acknowledge the possibility that a nefariously creative landowner could attempt to disguise his admission fee as nothing more than a service fee. But those are not the facts and circumstances presented in this case.


author: PROST, Chief Judge. ■ NEWMAN, Circuit Judge,

text:
    IN RE: Constantin EFTHYMIOPOULOS, Appellant
    2016-1003
    United States Court of Appeals, Federal Circuit.
    Decided: October 18, 2016

      LyNne A. BoRchers, Myers Bigel Sibley & Sajovec, PA, Raleigh, NC, argued for appellant. Also represented by Peter Daniel Siddoway, Anthony P. Derosa, Shawna Cannon Lemon.
    Farheena Yasmeen Rasheed, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for appellee Michelle K. Lee. Also represented by Thomas W. Krause, Scott Weid-ENPELLER, KAKOLI CAPRIHAN, LORA DrIS-COLL.
    Before PROST, Chief Judge, NEWMAN and BRYSON, Circuit Judges.
   Dissenting opinion filed by Circuit Judge NEWMAN.

PROST, Chief Judge. ■

This appeal arises from the examination of a number of claims of U.S. Patent Application No. 08/737,141 (“141 application”). The examiner rejected all pending claims as obvious and the United States Patent and Trademark Office, Patent Trial and Appeal Board (“Board”) affirmed all of those rejections. Appellant Constantin Efthymiopoulos (“Efthymiopoulos”) then requested rehearing, which the Board denied. For the following reasons, we affirm the Board’s decision.

Background

The 141 application relates to methods of treating or preventing influenza by administering the drug zanamivir by oral inhalation.' On appeal, Efthymiopoulos challenges the rejection of claims 14-30, 32, 34-38, and 43-65. Independent claim 14 is representative:

14. A method for treating a human suffering from an infection by an influenza virus, wherein the method comprises administering to the human an effective amount of [zanamivir], wherein the [za-namivir] is administered by inhalation through the mouth alone.

J.A. 1697.

The examiner rejected the pending claims as obvious over Australian Patent No. AU-A1-27242/92 (“Von Itzstein II”), in view of WIPO Publication WO 91/16320 (“Von Itzstein I”) and a number of other references. Like the 141 application, Von Itzstein I discloses that zanamivir can be administered to treat and prevent infections by the influenza virus. Von Itzstein I only discloses ■intranasal administration (and not oral inhalation) of zanamivir. Von Itzstein II discloses the administration of a compound similar to zanamivir by “inhalation” for the treatment and prevention of influenza. The examiner concluded that Von Itzstein II disclosed all of the limitations of the challenged claims except that it did not teach zanamivir specifically and did not expressly teach inhalation only by mouth of its compounds. The examiner found, however, that Von Itzstein I taught zanamivir and suggested administering that compound to the respiratory tract to treat or prevent influenza. The examiner further determined that zanamivir and the compound disclosed in Von Itzstein II are “adjacent homologues” (meaning they are part of a series of compounds that differ in structure only by a single substituent) and thus concluded 'that using zanamivir in the method disclosed in Von Itzstein II would have been obvious.

Finally, the examiner noted that, with respect to administration, there are only two possible inhalation methods: through the mouth (oral) or through the nose (nasal). In view of the other prior art references that taught the well-known availability of inhalers, that oral inhalation delivers more drug to the lungs than nasal inhalation, and the fact that influenza infects the lungs, the examiner concluded that treating influenza by oral inhalation of zanami-vir would have been obvious.

The Board agreed with and extensively cited the examiner and affirmed all of the rejections. The Board found that Von Itz-stein II’s disclosure of “inhalation”: for treating influenza with its compounds “is reasonably understood to disclose inhalation by either the nose alone, mouth alone, or both” and thus concluded that Von Itzstein II in view of Von Itzstein I’s disclosure of zanamivir rendered the claims obvious. J.A. 12-13. The Board also considered Efthymiopoulos’s evidence of secondary considerations—namely of unexpected results—but found it to be unpersuasive.

Efthymiopoulos sought rehearing, but the Board denied its request. Efthymiop-oulos then timely appealed the Board’s decision to us. We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A) (2012).

Discussion

We review the Board’s legal determinations de novo and its underlying factual determinations for substantial evi-dencie. Rambus Inc. v. Rea, 731 F.3d 1248, 1251 (Fed. Cir. 2013). Obviousness is a legal question based on underlying ’ fact findings. In re DBC, 545 F.3d 1373, 1377 (Fed. Cir. 2008).

Efthymiopoulos argues that the Board erred in rejecting the pending claims as obvious. Efthymiopoulos contends that none of the prior art references, alone or in combination, teach administration of za-namivir by inhalation through the mouth. Moreover, Efthymiopoulos says that a person ’of ordinary skill would not have expected that the administration of zanamivir through inhalation by mouth only would be effective. That is because oral inhalation delivers more drugs to the lower respiratory tract, and, at the time of the invention, it was thought that delivery of anti-influenza drugs to the upper respiratory tract was required to be effective. Finally, Efth-ymiopoulos faults the Board for failing to consider its evidence of unexpected results.

We conclude that the Board did not err in its obviousness determination. There is no dispute that Von Itzstein I discloses the use of zanamivir to treat and prevent influenza. There is also no dispute that Von Itzstein II discloses several pages of different administration methods for an adjacent homologue of zanamivir to achieve the same result—treating or preventing influenza. In particular, Von Itz-stein II expressly discloses administration through “oral,” “nasal,” or other forms “suitable for administration by inhalation,” among other methodologies. The Board’s finding then, that a skilled artisan would be motivated to use zanamivir in the methods disclosed by Von Itzstein II, is supported by substantial evidence.

The Board also agreed with the examiner’s conclusion that Von Itzstein II’s disclosure of administration through “inhalation” includes oral inhalation. That finding is supported by substantial evidence. As the Board noted, “[Ijnhalation can only be carried out via the nose or the mouth. Since Von Itzstein II does not limit its disclosure to nasal inhalation, it is reasonably understood to disclose inhalation by either the nose alone, the mouth alone, or both.” J.A. 12-13.

The Board’s conclusion is further supported by the fact that both Von Itzstein references teach that the compounds may be administered in many forms, including as a dry powder through an inhaler. And, as the Board noted, the state of the art at the time of invention established that dry-powder compositions were often used specifically for oral inhalation.

Efthymiopoulos’s argument that a skilled artisan would not reasonably expect zanamivir to be effective if administered through oral inhalation is also unpersuasive. As the examiner noted, it was known in the art at the time, that, although the influenza virus primarily attacks the upper respiratory tract, certain strains of the virus also attack the lower respiratory tract and that young children in particular were more susceptible to lower respiratory tract infections from the virus. And as the examiner observed, oral inhalation delivers more drugs to the lungs as compared to nasal inhalation. Thus, substantial evidence supports the determination that a skilled artisan would have a reasonable expectation of success in combining the Von Itz-stein references.

Finally, Efthymiopoulos contends that the Board disregarded its evidence of unexpected results, namely the testimony of Dr. Hayden. We disagree. The record shows that the Board thoroughly considered and discussed Dr. Hayden’s declaration in its decision and found that Dr. Hayden’s testimony insufficient to overcome the prima facie case of obviousness. For example, the Board found that a study by Dr. Hayden did not show unexpectedly superior results between oral and intrana-sal inhalation. That finding is supported by substantial evidence. As the Board observed, Dr. Hayden himself conceded that the conclusion of the study he conducted was that “adding intranasal administration of zanamivir did not obviously improve” the results of using oral administration alone for the treatment of influenza. J.A. 1706. Thus, after considering Dr. Hayden’s testimony and the manner in which it was conducted, the Board properly concluded that the claimed method would not necessarily yield an unexpectedly superior result.

Dr. Hayden also cited the Kaiser study which involved preventing influenza and showed that the rate of influenza was “substantially although not statistically significantly reduced” in patients treated with orally inhaled zanamivir compared to those treated with intranasal zanamivir. J.A. 1458. But, as the Board found, the Kaiser study is also unpersuasive because it did not disclose superior results, its findings were admittedly not statistically significant, and it dealt only with prevention of influenza, while the claims are directed to the treatment of influenza. .

The Board therefore properly considered Efthymiopoulos’s evidence óf unexpected results and simply found it lacking. That finding is supported by substantial evidence. We thus conclude that the Board correctly affirmed the examiner’s rejection of all pending cláims as obvious.

ConclusioN

For the foregoing reasons, we affirm the Board’s decision.

AFFIRMED

NEWMAN, Circuit Judge,

dissenting.

This litigation concerns the influenza drug zanamivir, marketed under the trademark Relenza®. The PTAB and now this court rule that it was obvious to administer this drug by oral inhalation, although there is no reference, Ho prior art, no suggestion, proposing that this mode of application might succeed, or that it should be tried. There was evidence of skepticism even as oral inhalation was evaluated. There was no contrary evidence. The evidence' on which the Board and now this court rely is the evidence in the patent application itself, describing oral inhalation, its benefits, and its effectiveness. Upon learning this information from this inventor’s disclosure, the Board found that it was obvious, and my colleagues agree that it is obvious to them.

Zanamivir was a known drug for treatment of influenza, administered by nasal inhalation, for the influenza virus was believed to infect the upper respiratory tract. The PTAB recognized that “the Examiner acknowledges that Von Itzstein II does not specifically teach inhalation of the compound through the mouth.” PTAB Op: 7. Nor does any other reference teach or suggest treatment of influenza by oral inhalation of this compound or any related compound. My colleagues nonetheless deem this treatment of influenza obvious on the ground that inhalation occurs only through the nose or the mouth. Thus the court rules that the discovery of effective treatment by oral inhalation is obvious to the court, although not obvious to experts, and not suggested in the prior art.

The applicant provided the expert opinion of Dr. Hayden, who discussed a large international study in which he participated, and concluded that , the “effectiveness of orally inhaled zanamivir as compared with nasal administration ... could be considered an unexpected result”:

In part because uncertainties existed regarding the transmission and pathogenesis of influenza as of the effective filing date of the present application, it was ■ unclear whether oral inhalation of zana-mivir with the dry powder inhaler device utilized in the studies would be clinically effective alone for prevention or treatment of naturally occurring uncomplicated influenza. In view of this uncertainty, the clinical effectiveness of orally inhaled zanamivir as compared to nasal administration for prevention of naturally occurring uncomplicated influenza above could be considered an unexpected result. Similarly, the effectiveness of orally inhaled zanamivir without intrana-sal zanamivir for treatment of naturally occurring uncomplicated influenza alone could be considered an unexpected result.

Decl. of Frederick G. Hayden, M.D. at 7 (filed in U.S. Patent Application No. 08/737,141 Mar. 12, 2013). Both the Board and the court discount Dr. Hayden’s opinion because these experiments were not conducted for patent purposes but for scientific purposes, and were not direct comparisons with the Board’s view of the closest prior art. Dr. Hayden explained that:

Although this study was not designed to compare directly the effects of zanamivir administration by oral inhalation alone to the effects of zanamivir administration by intranasal administration alone, •it nonetheless found that the oral inhalation route alone provided unexpectedly significant activity without requiring in-tranasal administration for effective treatment of influenza virus illness-....

Id. at 3. Dr. Hayden explained that it was unexpected that this study “demonstrated the therapeutic value of drug delivery by the oral inhalation route to the posterior oropharynx (throat) and lower respiratory tract to treat naturally occurring influenza virus infection.” Id. at 4.

Dr. Hayden also discussed a study that showed that the rate of influenza infection during 5 days of prophylaxis treatment was 6% for nasal inhalation alone—the same as for the placebo group—but was 2-3% for the group that received zanamivir “both by oral inhalation and intranasally.” Id. at 4, citing Kaiser et al. Short-Term, Treatment with Zanamivir to Prevent Influenza: Results of a Placebo-Controlled Study, 30 Clinxoal Infectious Diseases 587-89 (2000). Dr. Hayden concluded that “[t]he results of this study supported a difference in protection between intranasal zanamivir and orally inhaled zanamivir” and “suggest the importance of delivering zanamivir to the posterior oropharynx and/or lower respiratory tract for the prevention of naturally acquired influenza virus illness.” Id. at 4-5, As quoted supra, Dr. Hayden stated that this result was unpredictable and unexpected. Id. at .7.

As stated in In re Dihrendra Ranchhoddas Merchant, 575 F.2d 865, 868 (CCPA 1978), “The Board’s basic error resides in its determination that Pring was the closest prior art and that absent comparative tests vis-a-vis Pring, there was no rebuttal of what the Board considered a prima facie case.” The Board erred in refusing to consider Dr. Hayden’s results and in criticizing his tests as not in accordance with the Board’s design of patent-oriented directly comparable experiments. The Board disregarded that Von Itzstein I only evaluated administration by nasal administration of a solution. See International Patent Application No. WO91/16320 at 54 (Oct. 31, 1991) (“Von Itzstein I”) (describing intranasal administration of aqueous solution). The fact that scientific studies did not compare oral inhalation to liquid nasal administration does not mean the comparative evidence can be disregarded entirely. Dr. Hayden explained his conclusions; the Board should have considered them.

The Board did not hold that the result here was expected. However, the Board held that the claimed subject matter was obvious, on a rationale akin to “obvious to try.” However, in the unpredictable arts such as medicinal treatment, for a method to be obvious to try, there must be some suggestion in the prior art that the method would have a reasonable likelihood of success.

There is no suggestion in the prior art to pursue oral inhalation, for the teachings of Von Itzstein II must be taken in context. It is noteworthy that there is extensive discussion in Von Itzstein II directed to all of the known forms of oral administration of this product—plus parenteral, topical, rectal, vaginal, and intranasal administration—but Von Itzstein II lacks any mention of oral inhalation. The Von Itzstein II reference, which is the primary reference relied on by the Board, states:

Pharmaceutical formulations include those suitable for oral, rectal, nasal, topical, (including buccal and sub-lingual), vaginal or parenteral (including intramuscular, sub-cutaneous and intravenous) administration or in a form suitable for administration by inhalation or insufflation. The formulations may, where appropriate, be conveniently presented in discrete dosage units and may be prepared by any of the methods well known in the art of pharmacy. All methods include the step of bringing into association the active compound with liquid carriers finely divided solid carriers or both and then, if necessary, shaping the product into the desired formulation.
Pharmaceutical formulations suitable for oral administration may conveniently be presented as discrete units such as capsules, cachets or tablets each containing a predetermined amount of the active ingredient; as a powder or granules; as a solution, a suspension or as an emulsion. The active ingredient may also be presented as a -bolus, electuary or paste. Tablets and capsules for oral administration may contain conventional excipients such as binding agents, fillers, lubricants, disintegrants, or wetting agents. The tablets may be coated according to methods well known in the art. Oral liquid preparations may be in the form of, for example, aqueous or oily suspensions, solutions, emulsions,- syrups or elixers,- or may be presented as a dry product for constitution with water. or other suitable vehicle before use. Such liquid preparations may contain conventional additives such as suspending agents, emulsifying agents, non-aqueous vehicles (which may include edible oils), or preservatives.

Australian Patent No. AU-A-27242/92 at 8-9 (April 4, 1993). The description of suitable- formulations continues for almost three more pages, but does not mention or suggest oral inhalation. No disclosure of administration of zanamivir by oral inhalation can be found here or anywhere else in the prior art. One wonders how it can nonetheless be obvious, particularly in view of the specific teaching in Von Itz-stein I that nasal administration is the mode for administering zanamivir. To make a prima facie case, the prior art must provide, and the Board must identify, a reason or motivation to depart from the prior art; no reference or combination of references has been so identified—even in hindsight.

It cannot be “obvious to try” the only form of oral administration that is absent from the Von Itzstein recitations. In KSR v. Teleflex the Court explained that “obvious to try” may arise “where there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp.” 550 U.S. 398, 416, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007). The Board’s conclusion relies on a general finding that “inhalation can only be carried out via the nose or the mouth.” PTAB Op. 11. But this is a flawed rationale, for Von Itzstein II teaches a totality of “oral, rectal, nasal, topical (including buccal and sub-lingual), vaginal or parenteral (including intramuscular, sub-cutaneous and intravenous) administration or in a form suitable for administration by inhalation or insufflation.” Von Itzstein II at 8. The omission of oral inhalation from this compilation of all the “known options” for this drug makes conspicuously clear that oral inhalation was not an “identified predictable solution.” The Board’s ruling that oral inhalation was nonetheless obvious is not supported by substantial evidence. See In re Huai- Hung Kao, 639 F.3d 1067, 1067 (Fed. Cir. 2011) (“The Board’s own conjecture does not supply the .requisite substantial evidence to support the rejections — ”).

It was undisputed that, at the time of this invention, it was believed' that the influenza virus infected primarily the upper respiratory tract, that is, the nasal passages. It was undisputed that there was not a reasonable expectation that administration to the lower respiratory tract by oral inhalation would be effective. The Yon Itzstein references do not show or suggest oral inhalation, either for zanamivir or for any related compounds. The Board’s statement that inhalation is “reasonably understood” to include oral inhalation, PTAB Op. 12, is without authority. There was no record showing or supporting such an understanding. There was no suggestion or hint in any reference that treatment by oral inhalation would have a reasonable expectation of success.

This mode of therapy is taught only by this inventor. There was not substantial evidence to support the Board’s ruling of obviousness. From the court’s flawed analysis and unsupported' conclusion, I respectfully dissent.

      . The '141 application uses the chemical name of zanamivir: 5-acetamido-2,3,4,5-tetra-deoxy-4-guanidino-D-glycero-D-galacto-non-2-enopyranosonic acid. For ease of reference, we refer to the compound as zanamivir throughout the opinion.

      . This is the text on which the panel majority appears to rely for the statement that "Von Itzstein II expressly discloses administration through ‘oral,’ ‘nasal,’ or other forms ‘suitable .for administration by inhalation.' ” Maj. Op. at 1378.