author: MARCUS, Circuit Judge:

text:
    Jeffrey STANLEY, Plaintiff-Appellant, v. Broward County Sheriff, Scott ISRAEL, in his official capacity, Defendant-Appellee.
    No. 15-13961
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 12/14/2016

      William Robert Amlong, Jennifer Daley, Karen Coolman Amlong, Alison Leigh Churly, Amlong & Amlong, PA, Fort Lauderdale, FL, for Plaintiff-Appellant.
    Jonathan M. Streisfeld, David L. Ferguson, Seth David Haimovitch, Kopelowitz Ostrow, PA, Fort Lauderdale, FL, for Defendant-Appellee.
    Before MARCUS and DUBINA, Circuit Judges, and GOLDBERG, Judge.

       Honorable Richard W. Goldberg, Judge for • the United States .Court of International Trade, sitting by designation.

   MARCUS, Circuit Judge:

Florida law requires the counties of the state to designate a chief correctional officer (CCO), but it gives counties broad discretion to decide who that officer may be. Thus, for example, a county may (but need not) choose to designate its sheriff as its CCO, so long as it selects someone for that position. The sheriff as CCO may then hire and fire deputies to assist him with his responsibilities, and he may therefore face liability for personnel decisions that violate an employee’s constitutional rights. However, if the sheriff was acting as an arm of the state, he will be immune from suit in federal court on account of the Eleventh Amendment. Whether a sheriff acts as an arm of the state is a function-specific determination that is based heavily on a detailed analysis of state law, and is often a difficult question, as it is here.

This case arises from' the Broward County Sheriffs potential liability under § 1983 for failing to rehire a former deputy allegedly due to his political loyalties and in violation' of his First Amendment rights. Broward County has expressly designated its sheriff as its CCO; thus, at issue in this case is the basic question whether a Florida county sheriff, acting in his capacity as chief correctional officer in the hiring and firing of his deputies, is an arm of the state entitled to the benefit of the state’s Eleventh Amendment immunity from suit in federal court. After careful review, and having the benefit of oral argument, we conclude that a Florida sheriff is not an arm of the state when acting in this capacity. We, therefore, reverse the district court’s grant of summary judgment for the Sheriff and remand to the district court for further proceedings consistent with this opinion.

I.

The plaintiff, Jeffrey Stanley, worked for the Broward County Sheriffs Office (BSO) as a cross-certified detention deputy — a deputy sheriff who is also certified to partake in specific law enforcement duties such as maintaining perimeter posts and transporting certain prisoners. Stanley worked for the BSO for six years before voluntarily resigning in December 2007 to take a position as director of security at a new hospital in Miami Beach. The hospital was scheduled to open in January 2008, but it failed to open as planned, and, in May 2008, Stanley applied to be rehired at his same position with the BSO.

When a former employee is rehired, BSO policy sets his pay grade lower than it was at the time he left. This policy was apparently designed to deter law enforcement officers from moving to other law enforcement agencies and then returning if they failed their training or certification requirements. Stanley found out about this policy upon reapplication, but he believed that the policy should not have applied to him since he did not leave BSO for a different law enforcement agency. He expressed his dissatisfaction with the policy and contacted union representatives, BSO Human Resources, and then-Sheriff A1 Lamberti himself to voice his concerns. Nonetheless, Stanley was extended and then accepted a conditional offer of employment as a detention deputy at the lower pay grade on September 25, 2008. This offer was contingent on successful mental and physical evaluations and a final review of his file.

At the time of Stanley’s application for rehire, Sheriff Lamberti was running for reelection against his political adversary, Scott Israel. The Federation of Public and Private Employees, Stanley’s union, chose to endorse Israel. Stanley openly supported Israel’s campaign, allegedly due in part to his disappointment with the relime pay policy. Stanley attended an informal union picket in front of the BSO with approximately five hundred union members while wearing a “Cops for Israel” t-shirt. Later that evening, he attended a televised debate between Lamberti and Israel while wearing a different “Cops for Israel” t-shirt. At both events, BSO photographers took pictures of the attendees; Stanley appeared in some of these photographs. Stanley also volunteered for the Israel campaign in the weeks leading up to the election.

Lamberti was reelected on November 4, 2008., On December 4, 2008, Stanley spoke with his former supervisor to inform her that he had satisfied his end of the conditions of his employment offer. Later that day, Stanley received a phone call from then-Lieutenant David Benjamin, Lamber-ti’s executive officer, informing him that BSO was not going to rehire him because they had seen photographs of, Stanley wearing a t-shirt in support of Israel. Stanley testified that during this conversation, Benjamin told him “that the sheriff stated that since [Stanley] didn’t support him, he was not going to support [Stanley] in rehiring him.” The decision was made final in a letter from BSO dated December 8, 2008, which rescinded Stanley’s employment offer because “areas of concern arose during the selection process.”

Stanley filed a formal complaint against BSO with the Public Employees Relations Commission on May 7, 2009; the hearing officer found for Stanley. That decision was later reversed by Florida’s First District Court of Appeals. See Sheriff of Broward Cty. v. Stanley, 50 So.3d 640 (Fla. Dist. Ct. App. 2010). Stanley then commenced this lawsuit in the United States District Court for the Southern District of Florida against Lamberti in his official capacity, alleging violations of his First Amendment rights pursuant to 42 U.S.C. § 1983.

Meanwhile, Israel again challenged Lamberti at the ballot box in 2012, and this time he won; he took office in January 2013. In August 2013, Stanley’s complaint survived a motion to dismiss. On September 9, 2013, Stanley substituted Sheriff Israel as the defendant because Lamberti had been sued in his official capacity and was no longer Sheriff. See Fed. R. Civ. P. 25(d). Following discovery, BSO’s motion for summary judgment was denied. The case then proceeded to trial; a jury was selected on January' 14, 2015, and the trial was scheduled to begin the next day. However, on January 13, 2015, this Court issued an opinion in Pellitteri v. Prine, 776 F.3d 777 (11th Cir. 2015), which held that a Georgia sheriff is an “arm of the State” for Eleventh Amendment purposes when exercising his power to hire and fire deputies. Id. at 779. BSO first learned about this holding on the evening of January 14, and it brought the case to the district court’s attention on the morning of January 15. The court postponed the trial and ordered additional briefing regarding the question of Eleventh Amendment immunity in light of Pellitteri. After this briefing, BSO again moved for summary judgment. The court granted BSO’s motion on September 1, 2015, and Stanley appealed that decision.

Stanley’s complaint originally included five prayers for relief: (1) a declaratory judgment that Lamberti’s actions violated Stanley’s First Amendment rights; (2) an injunction against Lamberti, his successors, or his coworkers from retaliating against Stanley; (3) damages against Lam-berti in his official capacity; (4) costs and fees against Lamberti in his official capacity; and (5) other relief as is just. Stanley later conceded that the third item, damages in Lamberti’s official capacity, was a “typographical-error relic” from before the decision to sue Lamberti in only his official capacity, and he withdrew that claim. Thus, his remaining claims are for declaratory and injunctive relief, plus costs and fees.

II.

“We review a district court’s grant of summary judgment de novo, viewing all of the facts in the record in the light most favorable to the non-movant.” Haynes v. McCalla Raymer, LLC, 793 F.3d 1246, 1249 (11th Cir. 2015) (quotations omitted). Summary judgment is proper if “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(a). District court decisions regarding Eleventh Amendment immunity are also reviewed de novo. See Pellitteri, 776 F.3d at 779.

A.

The Eleventh Amendment to the Constitution protects states from being subjected to suit in federal court. The Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const, amend. XI. The Supreme Court has extended this protection to also bar suits against a state in federal court brought by the state’s own citizens. See generally Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). However, “the Eleventh Amendment does not immunize municipalities from suit.” Abusaid v, Hillsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1301 (11th Cir. 2005); see also Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690 n.54, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (noting the absence of “any basis for concluding that the Eleventh Amendment is a bar to municipal liability”). An officer, therefore, is entitled to Eleventh Amendment immunity if he is acting as an arm of the state but not if he is acting as an arm of the county.

The Supreme Court has clarified that in making an arm-of-the-state determination, the question is not whether the officer, acts for the state or the county “in some categorical, ‘all or nothing manner.” McMillian v. Monroe Cty., Ala., 520 U.S. 781, 785, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997). Rather, we “ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue.” Id. Th.e result is a function-specific determination — “we are not seeking to make a characterization of [] sheriffs that will hold true for every type of official action they engage in.” Id.

Following the Supreme Court’s guidance in McMillian, this Court adopted a function-specific approach to the arm-of-the-state analysis. See Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc) (“Whether a defendant is an ‘arm of the State’ must be assessed in light of the particular function in which the defendant was engaged when taking the actions out of which liability is asserted to rise.”), Manders solidified a four-factor test to be used in making such determinations: “(1) how state law defines the entity; (2) what degree of control the State maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity.” Id. at 1309. These factors are evaluated in light of the specific function at issue. Id. at 1308,

We have never addressed the precise question at issue in this case, but a trio-of cases — Manders, Abusaid, and Pellitteri — bears heavily on our decision. Because the analysis in each case is peculiarly dependent on facts and on state law, we detail these precedents at some length.

Although it addressed neither the function nor the state law at issue today, Manders is important because it established the four-factor test in light of the Supreme Court’s decision in McMillian. Manders involved a determination of whether a Georgia sheriff was acting as an arm of the state in establishing, a use-of-force policy at a jail and training his deputies accordingly. Manders, 338 F.3d at 1305-06. In concluding that the sheriff was an arm of the state, the Manders Court first emphasized that Georgia’s sheriffs are defined as separate constitutional offices independent from their counties and that “counties delegate no power or authority to. sheriffs.” Id. at 1319. Specifically, “[t]he sheriffs authority to use force ,., and, the, sheriffs obligation to administer the jail are directly derived from the State and not delegated through the county entity.” Id. Second, there was a high degree of state control because Georgia required annual specialized training of sheriffs in all counties, and we found it “reasonable to assume that such training includes instruction on force policy.” Id at 1320. In contrast, the counties had “no authority, control over, or involvement in” the sheriffs force policy at the jail. Id. at 1322. Third, although the county bore “the major burden of funding [the sheriffs] office and the jail,” this characteristic was not dispositive because the state had mandated that structure and because the state funded sheriffs’ training programs. Id. at 1323. The fourth and final factor — the payment of adverse judgments — was not clearly in favor of either side. But with three of the four factors pointing decidedly toward immunity, the Court concluded that, “at a minimum, the liability-for-adverse-judgment factor [did] not defeat” the Sheriffs immunity claim. Id. at 1328.

Manders is informative but not dispositive in this case because it addressed a Georgia sheriff. Given the weight of state law in this analysis, cases involving Florida sheriffs ’are more instructive. See Manders, 338 F.3d at 1309 n.10 (“[S]tates have extremely wide latitude in determining their forms of government and how state functions are performed.”); McMillian, 520 U.S. at 786, 117 S.Ct. 1734 (“[O]ur understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official’s functions under relevant state law.”); In Hufford v. Rodgers, 912 F.2d 1338 (11th Cir. 1990), a panel of this Court held that “the Eleventh Amendment does not protect Florida sheriffs from liability under section 1983.” Id. at 1342. Cases involving Florida sheriffs after Hufford have uniformly followed that decision and have entertained § 1983 suits against sheriffs in. various situations. See, e.g. Hutton v. Strickland, 919 F.2d 1531, 1542 (11th Cir. 1990) (repossessing property); Ortega v. Schramm, 922 F.2d 684, 694 (llth Cir. 1991) (searching and arresting); Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991) (arresting and detaining suspects); Schmelz v. Monroe Cty., 954 F.2d 1540, 1543 (11th Cir. 1992) (supervising inmates); Edwards v. Okaloosa Cty., 5 F.3d 1431, 1432 (llth Cir. 1993) (supervising inmates); Gordan v. Cochran, 116 F.3d 1438, 1439 n.1 (11th Cir. 1997) (discharging administrative employees).

Hufford and its pre-Manders progeny did not undertake the functión-by-function analysis mandated by McMillian and Man-ders. This Court’s lone post-Manders case addressing Florida sheriffs is Abusaid, which determined that a Florida county sheriff does not act as an arm of the state when enforcing a county ordinance. Abusaid, 405 F.3d at 1304. he Court marched through the Manders factors, starting with the state law definition: Florida’s constitution labels sheriffs “county officers” and “expressly authorizes counties to abolish the office of the sheriff altogether.” Id. at 1305 (citing Fla. Const. art. VIII, § 1(d)). The degree-of-control factor, while “arguably mixed,” weighed against immunity because individual counties had “substantial discretion over how to utilize” the sheriff. Id. at 1306. In this particular case, the Sheriff was acting “pursuant to [an] express grant of authority by the County” and “acting on behalf of the County” to enforce its ordinance. Id. at 1310. The source of funds also weighed against immunity because even some residual state control left “unaltered the fundamental fact that the sheriffs’ funds are derived entirely from their respective counties.” Id. at 1311. Finally, the Court concluded that the adverse-judgment factor also weighed against immunity, because no state statute provided funds for payment but “counties certainly may be — and have been — held liable for a judgment against a sheriff.” Id. at 1313.

Abusaid did not address the function at issue in this case — the hiring and firing of deputies while acting in the capacity of chief correctional officer. The closest we have come to addressing that precise function is in Pellitteri. In that case, this Court determined that a Georgia sheriff acts as an arm of the state when hiring and firing his deputies. Pellitteri, 776 F.3d at 778. As for the first factor, the Court emphasized that “sheriffs in Georgia derive their power and duties from the State, are controlled by the State, and counties cannot, and do not, delegate any law enforcement power or duties to sheriffs.” Id. at 780 (quoting Manders, 338 F.3d at 1313). Specifically, “the authority of sheriffs to employ personnel is also derived from the State.” Id. The state maintained control over hiring and firing by regulating the certification process for peace officers, disciplining peace officers for misconduct, and giving the Governor broad investigative and suspension powers. See id. at 781. Any deputies hired would “assist [sheriffs] in executing their own duties, which have been delegated to them by the State.” Id. at 782. Funding was also controlled by the state because state law required counties to set budgets for their sheriffs. See id. While the adverse-judgment factor “weighted] in favor of denying immunity,” it was outweighed by the first three factors and immunity was proper. Id. at 783.

B.

With these cases in mind, we apply the Manders analysis to a Florida sheriff acting in his capacity as Chief Correctional Officer (CCO) in the hiring and firing of deputies. Because the overall weight of the factors tips on the side of county status, we conclude that a Florida sheriff acting in this capacity is not entitled to Eleventh Amendment immunity.

1.

Again, the first factor — how state law defines the entity — weighs toward county status. Notably, state law defines sheriffs as county officers, and it gives counties the discretion to choose their CCOs. These characteristics are indicative of county status, and the district court’s opposite conclusion was due in part to its reliance on Pellitteri. The Florida constitution names the sheriff as one of several “county officers,” and provides that a county is free to abolish any county office, including the sheriffs office, as long as those duties are assigned to another officer. See Fla. Const. art. VIII, § 1(d). As we have previously concluded, this definition “weighs heavily against assigning arm of the state status to a Florida sheriff.” Abusaid, 405 F.3d at 1305.

State law creates the position of CCO and requires county commissioners to “designate a chief correctional officer and such correctional officers as they deem necessary.” Fla. Stat. § 951.06(1). The Florida constitution does not define “chief correctional officer.” “Correctional officer” is statutorily defined as “any person who is appointed or employed full time by the state or any political subdivision thereof, ... whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution.” Id. at § 943.10(2). The CCO’s responsibilities are statutorily defined: he “shall see that all rules and regulations prescribed- by law or the department are fully observed and complied with; enforce discipline among the prisoners in and about the camps; and administer punishment to prisoners.” Id. at § 951.06(2). Importantly, a county may, but need not, choose to designate its sheriff as its CCO in satisfaction of § 951.06, so long as it selects someone for that position. See id. at § 951.061(1). This was not the case until § 951.061 was enacted in .1986; before then, Florida sheriffs had “no inherent or constitutional duty to maintain a county jail.” Feldman v. Brescher, 561 So.2d 1271, 1272-73 & n.3 (Fla. Dist. Ct. App. 1990). Thus, the county may designate its sheriff the CCO if he. is to have those responsibilities at all.

Broward County has enacted an ordinance designating the Broward County Sheriff as the CCO of the Broward County Correctional System. See Broward Cty. Ord. § 18-01(a). That County ordinance instructs the Sheriff, as CCO, to (1) “appoint such officers as he deems necessary ... to perform the duties of chief correctional officer”; (2) “enforce all existing state laws, administrative rules of the Florida Department of Corrections, and rules of the Bro-ward County Administrative Code, concerning the. operation and maintenance of county jails”; and (3) “include salaries for county correctional officers in -his proposed budget of expenditures.” Id. at § 18-01(b). The Broward County Administrative Code specifies that “[t]he Sheriff, as the Chief Correctional Officer, is solely responsible for the operation of the existing correctional System.” Broward Cty. Admin. Code § 18.40(a). The Sheriff exercises this responsibility solely because Broward County designated him as its CCO.

The district court construed the county’s ability to choose its CCO as a characteristic favoring immunity because the state created the CCO position and charged the CCO with enforcing state laws. This conclusion was based on its reading of Pellitteri. But we think there are two powerful differences between Florida’s and Georgia’s laws. First, the Florida constitution leaves with the county the choice of whether to have a sheriffs office at all, while the Georgia constitution does not. Compare Fla. Const. art. VIII, § 1(d) (“[A]ny county office may be abolished when all the duties of the office prescribed by general law are transferred to another office.”), with Ga. Const. art. IX, § 1, ¶ III (providing for the election, terms, and salaries of county officers'but not discussing the ability to abolish the sheriffs office).' Second, Georgia does not have a separate position equivalent to CCO. While Georgia statutes occasionally refer to the “chief law enforcement officer” of a county, that term is nowhere defined in state law. Georgia sheriffs are, “[b]y virtue of their offices,” the jailers of their counties and have the authority to appoint other jailers. Ga. Code Ann. § 42-4-1(a). In sharp contrast, Florida creates a separate position of CCO that is responsible for overseeing county jails. See Fla. Stat. § 951.06. Florida then gives to the county the additional choice whether to assign that position to a person who functions solely as the CCO, to the sheriff pursuant to § 951.061, or even tó a private entity under § 951.062. Only if the county designates the sheriff as CCO is he tasked with the responsibility of running the county’s correctional facilities. Thus, Florida’s laws (unlike Georgia!s) define the CCO role in a way that affords great discretion tó the counties, and this weighs heavily against Eleventh Amendment immunity.

2.

The second Manders factor — degree of state control — presents a closer call. While sheriffs may appoint deputies free from state or county interference, the state sets minimum hiring qualifications that deputies must satisfy. This is a strong indicia of state control, and our recent opinion in Pellitteri addressed a similar situation in Georgia and reached the same conclusion. In this case, however, we find this power counterbalanced by a county’s unilateral ability to designate its CCO and by a county’s involvement in the removal of deputies.

Of importance in this case is the sheriffs capacity as CCO..,The state exerts some control over the various capacities in which a sheriff acts by codifying a set of responsibilities in Fla, Stat. § 30.15. But, as we noted in Abusaid, “this list does not- alter the ability of a county to assign its sheriff whatever additional duties it sees fit”; and “many of the functions assigned to the sheriff are carried out either at the sole discretion of the county or on behalf of the county.” Abusaid, 405 F.3d at 1309-10. And as we have noted, Florida sheriffs receive those responsibilities only if the county makes the designation; control over that critical decision is vested solely in the county.

An examination of control over the hiring and firing of the CCO’s deputies is more mixed. Florida’s sheriffs have the power to appoint deputies as they wish. See Fla. Stat. § 30.07. The sheriffs’ decisions in this regard are protected from state or county interference by statute: “The independence of the sheriffs shall be preserved concerning the purchase of supplies and equipment, selection of personnel, and [] hiring, firing, and setting of salaries of such personnel.” Id. at § 30.53. This independence extends to sheriffs acting in their capacity as CCO, because state law allows a sheriff as CCO to “appoint such officers as he or she deems necessary.” Id. at § 951.061(1). A sheriff acting as CCO can thus appoint deputies without state or county interference.

State law gives the Governor some control over removal of the sheriff: he may suspend county officers “for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony.” Fla. Const. art. IV, § 7(a). However, the state has little involvement in the removal of deputies, be they deputy sheriffs or’ deputy correctional officers. The state allows sheriffs to remove deputies with written notice, see Fla. Stat. § 30.073(3), and state law lists one instance in which the county must remove a misbehaving correctional officer. See id. at § 951.06(3) (“All boards of county commissioners shall immediately discharge any correctional officer who shall be guilty of gross negligence or cruel and inhuman treatment of prisoners under their control.”). These provisions leave the counties free to implement additional removal procedures, as Broward County has done. In fact, Broward County’s removal ordinance is more detailed than the state statutes: it allows the county sheriff to remove full-time deputy sheriffs of rank lieutenant and below for cause after notice and a hearing, while other employees are removable at will. See Broward Cty. Ord. § 18-6(b)(2), (d)(2)t-(3). Although.a county’s removal decisions have to be reported to the state, see Fla. Stat. § 943.139(2), merely reporting such decisions does not automatically impose state control over the decision.

The strongest indicia of state control over personnel decisions is found in state law that requires sheriffs and their deputies to meet certain statutory qualifications and baseline requirements before they may be hired. See id. at §§ 30.073, 943.13. Florida created the Criminal Justice Standards and Training Commission (CJSTC) to monitor compliance with those standards and to govern the training and certification of correctional officers. See. id. at §§ 943.11, 943.12. Counties have no control over the CJSTC’s actions, but they are free to impose additional or more-stringent requirements on top of the statutory, minimums. See id. at § 943.137(1). If a county sets higher standards, the CJSTC will recognize and uphold those standards. See id. at § 943.137(2).

In Pellitteri, a structure like the one Florida has devised with the CJSTC was treated as a strong indication of state control. The Georgia legislature created a similar committee — the Peace Officer Standards and Training Council — and set similar minimum qualifications. See Ga. Code Ann. §§ 35-8-3, 35-8-7.1. The Pellitteri panel concluded that “[t]hese threshold requirements for serving as a peace officer in Georgia significantly limit a sheriffs discretion when hiring potential deputies.” Pellitteri, 776 F,3d at 781. We agree that the state exerts greater power than the county in this regard.

While this factor is close, we conclude that it ultimately weighs toward county status and against immunity. Of primary importance is the fact that in Florida, the county controls whether the sheriff will act as CCO at all or whether those responsibilities will be assigned elsewhere. .This characteristic, along with a county’s ability to regulate the removal of deputies, sufficiently counterbalances the state-controlled nature of the CJSTC.

3.

The third factor — the source of funding — also points toward county status. The fact that a sheriffs budget is funded entirely by the county, even when he acts as CCO, is a strong indicator of county control that is not outweighed by the fact that the state maintains some control over the budget review process.

While state law pets sheriffs’ salaries and requires that sheriffs’ budgets include their deputies’ salaries, see Fla. Stat. §§ 30.49(4), 145.071, this Court has previously found “nothing in Florida law to suggest that the state contributes any money at all to its sheriffs.” Abusaid, 405 F.3d at 1310. The sheriff is “financially accountable to his county and only to his county, since he must pay any money his office earns into the county treasury.” Id. at 1312. The sheriffs budget must be approved by the county, and the salaries of correctional officers are funded from the general revenue of the county. See Fla. Stat. §§ 30.49, 951.06(5); Broward Cty. Ord. § 18-01(e). And while the sheriffs salary is set by state legislature, correctional officers’ salaries are fixed by the board of county commissioners. Compare Fla. Stat. § 145.071, with id. at § 951.06(4).

Even more telling is the fact that the decision to designate the sheriff as CCO rests solely within the county’s discretion. If the county does not want to provide its sheriff with extra funds to fulfill the obligations of CCO, it can choose to designate a private entity as its CCO. See id. at § 951.062(1). That entity would enter into a contract with the county for the operation and maintenance of county jails, the terms of which would be determined by contract between the county and the entity without state involvement. See id. at § 951.062(l)-(2). Perhaps recognizing that sheriffs are good candidates for CCO, the state legislature has merely simplified the budget process for sheriffs who are so designated and has allowed them to submit one budget instead of two.

The state does, however, retain some control over how a sheriff spends its funds, but that is not enough to tip the scale. State law requires sheriffs who are also CCOs to include their deputies’ salaries in their county budgets, see id. at § 951.061(3), but, again, county revenue is the actual soured of the funding. More salient is the state’s involvement in the budget review process. The sheriff is required to submit a proposed budget to the board of county commissioners each year, id. at § 30.49(1), and the commissioners “may amend, modify, increase, or reduce any or all items” in the proposed budget and must approve the final budget. Id. at § 30.49(4). But if the sheriff disagrees with the commissioners’ actions, he may appeal to the Administration Commission — composed of the Governor and the members of his Cabinet, id. at § 14.202 — by filing a petition with the Executive Office of the Governor. Id at § 30.49(4)(a). The Administration Commission’s decision is final, and the county may not alter it except on request of the sheriff. Id. at § 30.49(5), (8).

The Pellitteri panel relied on this review process in concluding that the funding factor is indicative of arm-of-the-state status. The district court agreed with that conclusion, in part because it understood Pellitteri as shifting the third-prong analysis from the source of funds to the degree of control the state maintains over how the entity spends its funds. See Pellitteri, 776 F.3d at 782 (“[Although each, county sets the total budget for the sheriffs office, it cannot dictate how the sheriff spends those funds.”). In Abusaid, however, we suggested that control over budgeting is more properly considered under the second prong. See Abusaid, 405 F.3d at 1311. But “even if state control over the budgeting process were the proper inquiry, this third factor would still weigh against arm of the state status” for Florida sheriffs. Id. at 1312. This conclusion is even stronger, we think, for a sheriff acting as CCO, because the county determines whether the sheriff will act in that capacity at all and sets correctional officers’ salaries. The third factor thus weighs against arm-of-the-state status.

4.

The final factor — responsibility for adverse judgments — also weighs against immunity, as BSO conceded in its motion for summary judgment on the Eleventh Amendment question. D.E. 145 at 6 (“The Broward Sheriff concedes that as in Pellitteri, the fourth Manders factor ... does not weigh in favor of BSO’s argument of Eleventh Amendment immunity.”). This point was again conceded on appeal. Appellee’s Brief at 25 (“BSO concedes that the fourth Manders factor ... does not weigh in favor of arm of the State status.”). It is enough for us to note that “no provision of Florida law provides state funds to a Florida sheriff to satisfy a judgment against the sheriff,” Hufford, 912 F.2d at 1342, and that “neither the State nor the County will be required to directly pay for any adverse judgment against the Sheriffs office.” Pellitteri, 776 F.3d at 783; see also id. (“[T]o the extent that the state treasury will be spared here from paying any adverse judgment, this factor weighs in favor of denying immunity.”). But because the issue is not contested here, the fourth factor can summarily be taken in favor of county rather than state status.

While the issue of state or county control is a close question, and we commend the district court for the care with which it undertook this analysis, we conclude that the four Manders factors taken in concert ultimately indicate that a Florida sheriff is not an arm of the state when he is acting in his capacity of CCO in the hiring and firing of his deputies.

IV.

Stanley’s second claim is that even if BSO is an arm of the state, he was still entitled to declaratory and injunctive relief. However, in entering final judgment for BSO, the district court did not address equitable relief. We, therefore, decline to rule on that claim and instead remand the matter in the first instance to the district court for a decision.

State law impacts many aspects of a sheriffs actions taken in his capacity of CCO, including personnel decisions. But the designation of the sheriff as the CCO is a decision that rests solely with the county. Broward County has made that designation, and its sheriff performs his duties in this function because of the county’s action. In light of our review of the Manders factors; the district court’s grant of summary judgment in favor of BSO is REVERSED and the case REMANDED to the district court.

REVERSED and REMANDED.

      . In Gordon, former employees of the Bro-ward County Sheriff’s office brought a § 1983 action against the sheriff, alleging that they were discharged by the new sheriff because they had opposed his candidacy. Gordon, 116 F.3d at 1439. However, the analysis in that case focused on whether political loyalty was an appropriate requirement for the plaintiffs’ various jobs. See id. at 1440-41. Gordon ultimately offers us little help in this case, despite its factual similarities.

      . The CJSTC has nineteen members, including three state officers (Secretary of Corrections, Attorney General, and Director of the Division of Florida Highway Patrol) and sixteen members appointed by the Governor. Fla. Stat. § 943,ll(l)(a). Each of the sixteen members appointed by the Governor is “accountable to the Governor for the proper performance of the duties of his or her office" and is removable by the Governor for “malfeasance, misfeasance, neglect of duty, incompetence, or permanent inability to perform official duties,” or for pleading guilty to or being found guilty of a felony. Id. at § 943.1 l(l)(d).

      . The district court may also consider whether Stanley's claims for declaratory and in-junctive relief are moot, since it is unclear on this record whether Stanley has requested reinstatement or reapplied for his position.


source: Caselaw Access Project

author: O’MALLEY, Circuit Judge.

license: Public Domain

text:
    Nicholas Jay WILSON, Petitioner v. DEPARTMENT OF THE NAVY, Respondent
    2015-3225
    United States Court of Appeals, Federal Circuit.
    Decided: December 7, 2016

      Matthew August LeFande, Matthew August LeFande Attorney at Law PLLC, Arlington, VA, argued for petitioner,
    Renee Burbank, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Benjamin C. Mizer,. Robert E. Kirschman, Jr., Elizabeth M. Hosford.
    Before O’MALLEY, MAYER, and STOLL, Circuit Judges.
   O’MALLEY, Circuit Judge.

Nicholas Wilson (“Wilson”) seeks review of the Merit Systems Protection Board’s (“the Board”) decision denying his request for corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4301, et seq. Specifically, Wilson alleged that the Department of Energy (“the DOE”) improperly revoked his security clearance, and the Department of the Navy (“the Navy”) improperly terminated his employment thereafter. The Board rejected Wilson’s claims, finding that it lacked the authority to review adverse security clearance determinations and that the Navy had not acted improperly in terminating Wilson given the revoked clearance. Wilson v. Dep’t of the Navy, 122 M.S.P.R. 585 (2015). For the following reasons, we affirm.

Background

A. Clearance Revocation and Termination

Wilson worked as a civilian Resource Analyst at the Nuclear Propulsion Directorate at the Naval Sea Systems Command, a position that required him to hold a DOE security clearance (“Q clearance”). On January 8, 2014, the DOE suspended Wilson’s security clearance. The DOE listed as security concerns that Wilson: (1) knowingly brought a personal firearm onto a Navy facility in violation of regulations and- directions he received; (2) armed himself with a personal weapon while acting as a Metropolitan Police Department (“MPD”) reserve officer, contrary to regulations; and (3) made false statements and false time and attendance entries to his civilian employer, the Naval Reserve Unit and the MPD. Wilson maintains that he brought his firearm to the Navy facility in response to the Washington Navy Yard shooting that occurred on September 16, 2013, in perceived fulfillment of his duty as a Navy Reservist,

Wilson argued to the DOE that the clearance revocation was based on his service as a Naval Reservist, in violation of USERRA. Unpersuaded, on July 25, 2014, the DOE revoked Wilson’s security clearance. On July 29, 2014, based on the DOE’s revocation, Wilson’s supervisor at the Department of the Navy proposed Wilson’s removal. Wilson filed a response to the Navy’s proposal, arguing that the revocation violated USERRA and his due process rights. Nevertheless, on September 12, 2014, the Navy removed Wilson from federal service because he no longer had the security clearance that was a prerequisite for his position. Wilson appealed to the Board.

B. The AJ’s Initial Decision

In an initial decision, the administrative judge (“AJ”) determined that the Board did not have authority to consider claims of discrimination or reprisal in the context of an appeal from a removal based on security clearance revocation. In particular, the AJ stated that she would not allow discovery, hear witnesses, or consider evidence regarding Wilson’s USERRA defense, as it was entirely premised on the allegedly improper revocation. The AJ determined that she could only decide the facts of: (1) whether Wilson’s security clearance was required for his former position, and (2) whether it was actually revoked. She answered both of those questions in the affirmative and Wilson does not dispute those conclusions;

Additionally, because Wilson alleged that the Navy violated his due process rights, thé AJ examined whether the Navy provided him the procedural protections of 5 U.S.C. § 7513(b): 30 days advance written notice, reasonable time to answer, notification of the right of representation by an attorney, and provision of a written decision detailing the agency’s reasoning. Looking to the record, the AJ found that the Navy proposed Wilson’s removal in writing, gave him a reasonable time to respond, notified Wilson of his right to an attorney, and provided a written decision as to the agency’s reasoning. The AJ also found that the Navy did not have a policy or regulation to reassign employees to alternate positions that do not require a security clearance. Absent such a policy, the AJ concluded, the Navy was not required to reassign Wilson to- a position that did not require a security clearance. See Griffin v. Def. Mapping Agency, 864 F.2d 1579, 1580-81 (Fed. Cir. 1989) (“[I]f the Defense Mapping Agency had an ‘existing policy,’ manifested by regulation, to transfer applicants who unsuccessfully seek a security clearance to nonsensitive positions if available, it could be held to that policy and the Board could review its efforts. In the absence, of this policy, the Board has no role.”). Because the investigation and subsequent procedures were consistent with agency policy, the AJ sustained the agency’s decision. Wilson appealed.

C. Appeal to the Board

The Board issued its final decision on August 5, 2015. Wilson had argued that the AJ’s decision to not allow discovery, hear witnesses, or consider evidence regarding his USERRA defense was in error. USERRA, Wilson argued, was intended to be broadly construed — such that the Board could (and should) review the merits of his security revocation because it constituted a violation of USERRA. Wilson also noted that he did not claim there was a procedural violation in the course of the agency’s revocation of his security clearance, but rather that the revocation itself violated USERRA. That is, Wilson argued that the agency revoked his security clearance based on his military service, and the revocation was the proximate cause of his dismissal; therefore, the Board must examine the merits of the revocation to determine whether there was a violation of US-ERRA.

The Board noted at the outset that it could not review agency revocations of security clearances because such revocations are not considered adverse actions. The Board relied in particular on Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), stating:

The Board has thus interpreted Egan to preclude review of allegations of prohibited discrimination and reprisal when such affirmative defenses relate to the revocation of a security clearance. Pangarova [v. Dep’t of the Army], 42 M.S.P.R. [319], 322 [(1989)]. Our reviewing court also has taken this approach. See, e.g., Adams v. Department of Defense, 688 F.3d 1330, 1334 (Fed. Cir. 2012) (stating that neither the Federal Circuit, nor the Board, has authority to review a charge that retaliation and discrimination were the reasons for revocation of a security clearance).

Wilson, 122 M.S.P.R. at 589. Unless Congress has specifically authorized otherwise, the Board held, it cannot review security clearance determinations. Wilson’s assertion that USERRA did offer such authorization was rejected; the Board found US-ERRA’s “[s]hall adjudicate any complaint” language insufficiently explicit to “constitute a specific statement of congressional intent.” Id. (citing Hesse v. Dep’t of State, 217 F.3d 1372, 1378 (Fed. Cir. 2000)). The Board thus held that it lacked the authority to consider Wilson’s USERRA claim as it related to the revocation of his security clearance, and denied Wilson’s petition for review, finding no error in the AJ’s decision. Wilson timely appealed to this court, and we have jurisdiction pursuant to 5 U.S.C. § 7703(b)(1)(A).

Discussion

The scope of our review in an appeal from a decision of the Board is limited. We must affirm the Board’s decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c).

Wilson maintains on appeal that the Board should have reviewed whether the security clearance invocation was in violation of USERRA. Specifically, he argues that: (1) USERRA necessarily authorizes review of security clearance determinations, (2) alternatively, the Board could have reviewed whether his revocation was “initiated” based on a discriminatory motivation without reviewing the merits of the revocation itself, and (3) irrespective of his revocation, he was entitled to reemployment in a similar position under USERRA. None of these arguments are persuasive.

In Egan, the Supreme Court “established that MSPB review of an agency’s denial or revocation of a security clearance is limited to determining whether the agency provided minimal due process protection.” Adams v. Dep’t of Def., 688 F.3d 1330, 1334 (Fed. Cir. 2012) (citing Egan, 484 U.S. at 529-31, 108 S.Ct. 818). That is the well-established limit of our review; “neither this court nor the [Board] has authority to review the charge that ... discrimination w[as] the reasonf ] for revocation of the security clearance.” Id. Congress has not “specifically .., provided otherwise” in this case, because USERRA makes no mention of security clearances, explicitly or otherwise. Egan, 484 U.S. at 530, 108 S.Ct. 818. Nor does Wilson— relying solely on USERRA on appeal-raise a constitutional claim that' might transcend these limitations. See, e.g., Dubbs v. CIA, 866 F.2d 1114, 1120 (9th Cir. 1989) (permitting review of a security clearance determination on Equal Protection grounds).

Wilson’s shift in the alternative to the initiation of revocation — as opposed to the “merits” — relies on a distinction without a difference. The core of Wilson’s allegation is that his security clearance revocation was initiated based on “false” complaints and accusations. Because the DOE’s security determination was based on the information contained therein, it evaluated the trustworthiness of those statements as part of its determination— and specifically found them reliable. If the Board — or this court — were to reverse or remand on the basis that those statements were false, it would therefore necessarily involve “second-guessing ... national security determinations” in abrogation of Egan. Kaplan v. Conyers, 733 F.3d 1148, 1155 (Fed. Cir. 2013).

Wilson’s reliance on Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012), is misplaced. In Rattigan, the D.C. Circuit stated:

The question, then, is whether we must bar reporting and referral claims altogether, as the government urges, or whether we can sufficiently minimize the chilling effect of Title VII liability by narrowing the scope, of such claims. We ask this question because it is our duty not only to follow Egan, but also to ‘preserv[e] to the maximum extent possible Title VU’s important protections against workplace discrimination and retaliation.’ ... Title VII claims based on knoioingly false reporting present no serious risk of chill, [so] we believe that claims of knowingly false security reports , or referrals can coexist with Egan....

Rattigan, 689 F.3d at 770 (quoting Rattigan v. Holder, 643 F.3d 975, 984 (D.C. Cir. 2011)). Even if this court were to follow the approach set forth in Rattigan, which we are not required to do, the “knowingly false” requirement of Rattigan has not been met here given the DOE’s findings of reliability.

Nor is Wilson entitled to reemployment independent of his USERRA discrimination claim. USERRA does provide a right to reemployment following “absence ... necessitated by reason of service in the uniformed services.” 38 U.S.C. § 4312(a). But when an employee has returned to employment and is subsequently terminated due to antimilitary animus, no claim exists under § 4312, even if a claim for discrimination under § 4311 might otherwise be available. See Pittman v. Dep’t of Justice, 486 F.3d 1276, 1279-80 (Fed. Cir. 2007). Wilson does not dispute either that he returned to work after his alleged military service or that the only reemployment claim he asserted was under § 4312. He thus has not asserted an actionable reemployment claim.

Accordingly, after careful consideration, we find no error in the Board’s decision.

AFFIRMED


author: STOLL, Circuit Judge.

text:
    IN RE: JOBDIVA, INC., Appellant
    2015-1960
    United States Court of Appeals, Federal Circuit.
    Decided: December 12, 2016

      Daniel I. Sohloss, Greenberg Traurig LLP, New York, NY, argued for appellant. Also represented by Masahiro Noda.
    Mary Beth Walker, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for interve-nor Michelle K. Lee. Also represented by Thomas W. Krause, Christina Hieber.
    Before PROST, Chief Judge, DYK, and STOLL, Circuit Judges.
   STOLL, Circuit Judge.

In this trademark case,! we must decide whether JobDiva, Inc. used its marks in connection with personnel placement and recruitment services, or whether the Trademark Trial and Appeal Board correctly held that JobDiva failed to do so because it used its marks on software offerings, without more. The Board required JobDiva to prove that it used its marks on more than just software because its software sales alone could not, in the Board’s view, constitute personnel and recruitment services. We disagree with the Board’s approach. The proper question is whether JobDiva, through its software, performed personnel placement and recruitment services and whether consumers would associate JobDiva’s registered marks with personnel placement and recruitment services, regardless of whether the steps of the service were performed by software. Because the Board must visit that question in the first instance, we vacate its decision and remand for further consideration.

BACKGROUND

I.

On June 8, 2004, the United States Patent and Trademark Office issued Registration No. 2851917 (“the '917 registration”) to JobDiva for the service mark JOBDIVA for “personnel placement and recruitment” services. On November 8, 2005, it issued Registration No. 3013235 (“the ’235 registration”) to JobDiva for the service mark shown below:

for “personnel placement and recruitment services; computer services, namely, providing databases featuring recruitment and employment, employment advertising, career information and resources, resume creation, resume transmittals and .communication of responses thereto via a global computer network.” J.A. 498; see also J.A. 52-53.

JobDiva uses its trademarks in connection-with its product and service offerings, which its website describes as “the largest, ultimate, full service solution for the staffing industry with an extensive suite of products & tools, front to back end, covering all staffing needs.” J.A. 117. JobDiva offers, in the words of its Chief Executive Officer, “an applicant tracking system for recruiting departments, [and] for HR departments seeking to staff people.” J.A, 212. JobDiva uses software to automatically provide these offerings to clients.

JobDiva’s software generally provides a database of employment applications that a hiring manager or recruiter might use to fill a job opening, J.A. 223. The software performs multiple functions. to facilitate this job-filling process. It employs automated “harvesters” to find potential job candidates by automatically scraping job boards and aggregating relevant resumes. J.A. 223, 461-63. And it reviews and analyzes job candidates’ resumes to determine if any candidate’s qualifications match the job’s requirements. J.A. 393. It thus “replaces a tedious manual search” previously performed by hiring managers or recruiters. J.A. 462-63. JobDiva also helps hiring managers directly communicate with job candidates. For instance, it permits hiring managers to post job openings in a job candidate portal. J.A. 221. This candidate portal may also be embedded into a company’s website. J.A. 13. The software further assists job candidates by recommending potential openings to the candidates based on skillsets and provides them automated resume feedback. J.A. 221.

In many circumstances, JobDiva renders these offerings on a software-as-a-serviee, or “SaaS,” basis to its customers. As the Board explained, “Software as a Service (SaaS) leverages software by delivering it over the Internet.” JobDiva, Inc. v. Jobvite, Inc., Cancellation No. 92050828, 2015 WL 3542849, at *1 (T.T.A.B. May 20, 2015) (“JobDiva Rehearing”). The Board noted that SaaS is “also known as cloud computing.” Id. at *2. “Cloud computing,” according to the Board, “is defined as ‘computing operations carried out on servers that are accessed through the Internet, rather than on one’s own personal computers.’ ” Id. at *2 (quoting Dictionary of Computer and Internet Terms 434 (11th ed. 2013)). By hosting its software remotely, JobDiva provides its clients a product without the need to download “cumbersome software ... onto office desktops or laptops.” J.A. 474.

As the Board explained, JobDiva’s SaaS model of software delivery also changes the way that users interact with JobDiva: “The users pay for the computing as a service rather than owning the machines and software to do it.” JobDiva Rehearing, 2015 WL 3542849, at *2 (quoting Dictionary of Computer and Internet Terms, supra, at 434). Unlike a locally installed software program, which might be downloaded from the Internet or a disk, JobDiva’s software resides on remote servers and customers access it via the Internet.

II.

The Board cancelled JobDiva’s marks in a proceeding that JobDiva originally requested. JobDiva initially petitioned the Board to cancel a registration owned by Jobvite, Inc., which is no longer a party to this case. JobDiva asserted, inter alia, a likelihood of confusion between Jobvite’s and JobDiva’s service marks. To establish its claim, JobDiva asserted ownership of its two marks introduced above.

Jobvite counterclaimed, petitioning the Board to cancel JobDiva’s trademark registrations by alleging that JobDiva failed to perform personnel placement and recruitment services. Jobvite requested that the Board cancel the ’917 registration in whole and its ’235 registration in part. Notably, Jobvite did not submit affirmative evidence of abandonment or challenge that JobDiva used the ’235 registration to identify the other services specified in its registration.

A.

The Board granted Jobvite’s counterclaim, cancelling the ’917 registration in whole and the ’235 registration in part. JobDiva, Inc. v. Jobvite, Inc., Cancellation No. 92050828, 2015 WL 2170162 (T.T.A.B. Apr. 16, 2015). The Board explained that under Section 45 of the Trademark Act, “[a] mark shall be deemed to be ‘abandoned’ ... [w]hen its use has been discontinued with intent not to resume such use.” Id. at *7 (quoting 15 U.S.C. § 1125).

The Board started its analysis of JobDiva’s use of its marks by defining the scope of JobDiva’s registrations for “personnel placement and recruitment” services and consulting dictionary definitions .for each word. Id. at *6, Combining these definitions, the Board found that “personnel placement and recruitment” meant “that [JobDiva] is finding and placing people in jobs at other compames or providing personnel staffing services for others.” Id.

To prove its use of the marks in connection with personnel placement and recruitment, JobDiva had submitted screenshots from its website and a declaration of its CEO, Diya Obeid. But the Board found JobDiva’s evidence insufficient, explaining that “[t]here [was] no reference ... to Petitioner’s performance of personnel placement and recruitment services other than supplying Petitioner’s software.” Id. The Board concluded that, “[s]ince there is no evidence of use of Petitioner’s marks in connection with ‘personnel placement and recruitment’ services, there has been non-use for three consecutive years.” Id. The Board therefore cancelled the ’917 registration in whole and amended the ’285 registration to delete “personnel placement and recruitment.” Id.

B.

JobDiva petitioned the Board to reconsider its judgment, arguing that “the Board made erroneous findings of fact bécause there is ‘abundant evidence of record’ that shows Petitioner providing the .service of ‘finding and placing people in jobs at other companies or providing personnel staffing services for others.’ ” JobDiva Rehearing, 2015 WL 3542849, at *1. The Board again disagreed, finding that JobDiva had failed to prove use of its marks for “personnel placement and recruitment” services.

The Board explained that “[a] term that only identifies a computer program does not become a service mark merely because the program is sold or licensed in commerce.” Id. at *2. “Such a mark does not serve to identify a service unless it is also used to identify and distinguish the service itself, as opposed to the program.” Id. The Board counseled, however, that “it is important to review the record carefully to determine the manner of use of the mark and the impression it is likely to make on purchasers.” Id.

The Board found JobDiva’s evidence of use insufficient because JobDiva only provided software, but not additional “personnel placement and recruitment” services. The Board explained that it “looked for evidence that Petitioner was rendering ‘personnel placement and recruitment services’ for others rather than merely providing a software solution for clients to use in performing their ‘personnel placement and recruitment’ activities.” Id. The Board criticized’ JobDiva for “confus[ing] the service of providing a software solution for personnel placement and recruitment with actually rendering personnel placement and recruitment services.” Id. at *3. The Board repeatedly faulted JobDiva’s evidence as proving only that JobDiva offered software for personnel placement and recruitment, instead of providing that software in addition to offering .personnel placement and recruitment services. Id. at *3-4. Indeed, the Board required JobDiva to prove that “it is rendering ‘personnel placement and recruitment’ as an independent activity distinct from providing its software to others.” Id. at *4 (emphasis added).

The Board further made clear that JobDiva did not use the marks for services, even though the software itself could perform the “personnel placement and recruitment” functions. JobDiva’s CEO had testified that JobDiva’s software actually performs personnel placement and recruitment services:

“JobDiva aggregates resumes for its clients, employers, from the job boards ... they apply to job boards to source candidates and that is usually- a manual exercise,” but JobDiva can “search the job board’s sites and databases for candidates on behalf of employers who are subscribing to these job boards, so it’s almost like an outsource function that JobDiva performs in the recruiting process.”

Id. at *3 (quoting J.A. 223). The Board dismissed this evidence, however, because the testimony did “not provide any, evidence that Petitioner renders ‘personnel placement and recruitment services’ other than by providing the software that performs those functions.” Id. Thus, the Board ultimately found that JobDiva had failed to establish “that it is rendering ‘personnel placement and recruitment’ services for others separate and apart from providing its software.” Id. (emphasis added).

The Board denied JobDiva’s request for reconsideration, and JobDiva appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(4)(B).

Discussion

Section 1(a) of the Lanham Act requires that an application to register a trademark must include “specification of ... the goods in connection with which the mark is used.” 15 U.S.C. § 1051(a). The Supreme Court has recognized that “[t]he usages listed in [an] application ... are critical” because of, inter alia, the legal rights that trademark registration conveys. B & B Hardware, Inc. v Hargis Indus., Inc., — U.S. —, 135 S.Ct. 1293, 1300, 191 LEd.2d 222 (2015). As such, a registrant must use its mark in accordance with goods and services recited in the registration. 15 U.S.C. § 1064(3); see also 15 U.S.C. § 1058(b)(1)(B).

A registration may be cancelled on grounds of abandonment when the mark has not been used for the goods or services specified in the registration for at least three years and there is no showing of an intent to resume use of the mark for those goods or services. 15 U.S.C§ 1127; On-Line Careline, Inc. v. Am. Online, Inc., 229 F.3d 1080, 1087 (Fed. Cir. 2000). Because service mark registrations are presumed valid, the party seeking cancellation of such registration must “establish[ ] a prima facie case of abandonment by showing proof of nonuse for three consecutive years.” On-Line Careline, 229 F.3d at 1087, Whether a mark has been used to identify a particular service is a question of fact. In re Advert, & Mktg. Dev., Inc., 821 F.2d 614, 621 (Fed. Cir. 1987). Likewise, whether a trademark holder has abandoned its use of a mark is a question of fact. On-Line Careline, 229 F3d at 1087. We review the Board’s legal conclusions de novo and its factual findings for substantial evidence. Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc,, 786 F.3d 960, 964 (Fed. Cir. 2015).

We agree with the Board’s initial observation that, with modern technology, the line between services and products sometimes blurs. See JobDiva Rehearing, 2015 WL 3542849, at *2. As the Board correctly observed, “[i]n today’s commercial context if a customer goes to a company’s website and accesses the company’s software to conduct some type of business, the company may be rendering a service, even though the service utilizes software.” Id. (quoting In re Ancor Holdings, No. 76213721, 2006 WL 1258813 (T.T.A.B. April 28, 2006)). But a mark used with a web-based offering may equally identify the provision of software, rather than a service. For these reasons, careful analysis is required to determine whether web-based offerings, like those JobDiva provides, are products or services: “[I]t is important,” as the Board properly noted, “to review all the information in the record to understand both how the mark is used and how it will be perceived by potential customers.” JobDiva Rehearing, 2015 WL 3542849, at *2.

But while the Board rightly recognized that it is crucial to carefully review the manner of use of the marks and their likely impression on purchasers, id. it nevertheless appeared to apply a bright-line rule requiring JobDiva to show that it performed the “personnel placement and recruitment” services in a way other than having its software perform those services. It stated, for example, that “there is no testimony or evidence that supports [Job-Diva’s] claim that it is rendering ‘personnel placement and recruitment’ as an independent activity distinct from providing its software to others.” Id. at *4 (emphasis added). The Board repeatedly faulted Job-Diva for failing to prove that it offered personnel placement and recruitment services in addition to its provision of software. Id. at *3 (“The references on Petitioner’s web sites show that Petitioner is supplying ‘personnel placement and recruitment’ software, not that Petitioner itself is rendering ‘personnel placement and recruitment’ services for others.”); id. at *4 (“Petitioner’s ‘harvesters’ are functions or capabilities of the JobDiva software, not activities performed by Petitioner for the purpose of offering ‘personnel placement and recruitment services’ for others.”). In holding JobDiva to that standard, the Board erred in its understanding of the law.

Even though a service may' be performed by a company’s software, the company may well be rendering a service. For example, in On-Line Careline, we held that AOL had used its ONLINE TODAY mark in connection with services, even though those services were provided by software. 229 F.3d at 1088. AOL had used its mark in connection with software that “provided its users with ‘access’ to its service through on-screen menu items.” Id. We affirmed the Board’s finding that AOL used its mark to identify the services described in the registration: “providing access to online computer services offering computer-industry news, commentary and product reviews.” Id. We explained that, “[i]n a very literal sense, the subject mark was the designation by which AOL provides -users access to the Internet news and information service.” Id. At bottom, we recognized that software may be used by companies to provide services. Id. Indeed, here the ’235 registration for “computer services, namely, providing databases featuring recruitment and employment, employment advertising, career information and resources, resume creation, resume transmittals and communication of responses thereto via a global computer network,” remains unchallenged.

To determine whether a mark is used in connection with the services described in the registration, a key consideration is the perception of the user. See Lens.com, Inc. v. 1-800 Contacts, Inc., 686 F.3d 1376, 1381-82 (Fed. Cir. 2012). The question is whether a user would associate the mark with “personnel placement and recruitment” services performed by JobDi-va, even 'if JobDiva’s software performs each of the' steps of the service. In other words, the question is whether the evidence of JobDiva’s use of its marks “sufficiently creates in the minds of purchasers an association between the mark[s] and [JobDiva’s personnel placement and recruitment] services.” Ancor Holdings, 2006 WL 1258813, at *3.

This “is a factual determination that must be conducted on a case-by-case basis,” and there are many case-specific factors the Board might examine. Lens.com, 686 F.3d at 1381-82. For example, in this case, the Board should consider the nature of the user’s interaction with JobDiva when using JobDiva’s software, as well as the location of the software host. If JobDiva sells its software to a customer who hosts the software on its own website and a third-party user’s interactions appear to be with the customer (as opposed to Job-Diva), it is unlikely that the customer or the third-party user would associate the JOBDIVA mark with a service performed by JobDiva. But if the software is hosted on JobDiva’s website such that the user perceives direct interaction with JobDiva during operation of the software, a user might well associate JobDiva’s marks with personnel “placement and recruitment” services performed by JobDiva. The purchasers’ acquiring ownership in JobDiva’s software likely will preclude a finding that JobDiva has rendered services, unless Job-Diva’s activities after the sale create the perception that JobDiva is in fact providing services.

The ultimate question here is this: whether purchasers would perceive JobDiva’s marks to identify “personnel placement and recruitment” services. Because that question is a factual one, the Board must answer it in the first instance.

Conclusion

Because the Board applied the wrong legal standard, we vacate its judgment and remand for further consideration in light of this opinion.

VACATED AND REMANDED

      , We note that JobDiva, like any entity, may register its marks to identify both software and services performed by software. 37 C.F.R, § 2.86 ("In a single application for a trademark, service mark, and/or collective mark, an applicant may apply to register the same mark for goods, services, and/or a collective membership organization in multiple classes.”). For example, JobDiva might use its marks to identify software sold to some customers, but those uses do not somehow negate other uses of the same marks to identify service offerings.


author: LOURIE, Circuit Judge.

text:
    MEDGRAPH, INC., Plaintiff-Appellant v. MEDTRONIC, INC., Defendant-Appellee
    2015-2019
    United States Court of Appeals, Federal Circuit.
    Decided: December 13, 2016

      DaRiush Keyhani, Meredith & Keyhani, PLLC, New York, NY, argued for plaintiff-appellant.
    Wayne M. Barsicy, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, argued for defendant-appellee. Also represented by KATHERINE QüINN DOMINGUEZ, New York, NY.
    Before LOURIE, PLAGER, and TARANTO, Circuit Judges.
   LOURIE, Circuit Judge.

Medgraph, Inc. (“Medgraph”) appeals from the decision of the United States District Court for the Western District of New York, dismissing with prejudice Med-graph’s claims of infringement of U.S. Patent 5,974,124 (“the '124 patent”) and U.S. Patent 6,122,351 (“the '351 patent”) (collectively, the “asserted patents”) against Medtronic, Inc. (“Medtronic”). See Medgraph, Inc. v. Medtronic, Inc., 111 F.Supp.3d 346, 348 (W.D.N.Y. 2015) (“Decision”). For the reasons that follow, we affirm.

Background

Medgraph owns by assignment the asserted patents, directed to a method for improving and facilitating diagnosis and treatment of patients, whereby data relating to “medically important variable[s],” for example, blood sugar levels of a diabetic patient, measured from a patient’s body, are uploaded onto a computer and transmitted to a central storage device, from which they can be accessed remotely by medical professionals treating the patient. See, e.g., '124 patent col. 3 ll. 35-46.

Claims 1-15 of the '124 patent are method claims. Claim 1 is representative and reads as follows:

1. A method for improving and facilitating diagnosis and treatment of patients having medical conditions requiring long-term profiles of specific variables, said method including the steps of
using at least one measuring device, periodically taking a measurement of at least one medically important variable that has been identified for a patient from a body of said patient;
ensuring said patient is separated from .said at least one measuring device after taking each said measurement;
inputting said at least one medically important variable as raw data into a - primary -computer system after said step of ensuring said patient is separated and recording said raw data in a mass storage device integrated with said primary computer system;
compiling said raw data as data for said patient using the primary computer system, said data representing a history of values for said at least one medically important variable for said patient;
-receiving a request for data of one of said patients from by [sic] a medical practitioner that is treating said one of said patients; and
outputting requested data for said one of said patients in the form of at least one of a chart and a graph to said medical practitioner;
said step of inputting comprising one of
transferring said raw data to a remote computer comprising an ordinary general purpose personal computer, then transferring said raw data to said primary computer;
telephoning an automatic telephone interface and employing one of speech recognition and touch-tone recognition software to input said raw data into said primary computer; and
telephoning a live receptionist, speaking the raw data to said live receptionist for entry into said primary computer.

Id. col. 7 ll. 13-50.

The '351 patent, which is a continuation-in-part of the '124 patent, sets forth a single, similar claim, with differences that are not relevant to this appeal.

Claim 16 of the '124 patent is the corresponding system claim, and reads in relevant part:

16. A system for improving and facilitating diagnosis and treatment of patients having medical conditions requiring long-term profiles of at least one predetermined medically important variable, comprising ...
means for inputting said at least one predetermined medically important variable as raw data into a primary computer comprising software and hardware enabling said primary computer system to operate as at least one of a web server, a dial-up host, a network server, and a telephone answering and data collection device whereby raw data can be communicated from a remote computer proximate a patient comprising an ordinary general purpose personal computer and from an ordinary telephone wherein data is transmitted as one of spoken data and touch-tone data; .,.
means to transmit said requested data in the form of at least one of a chart and graph generated from said data from said primary computer to a remote computer proximate said practitioner whereby said primary computer is one of a web server, a dial-up host, and a network server and me.ans to transmit said requested data by facsimile through a fax-modem integrated with said primary computer.

'124 patent col. 10 ll, 24-40, 53-60 (emphases added).

Medtronic manufactures and markets a variety of integrated diabetes management solutions, including the CareLink® Therapy Management System for Diabetes, which integrates CareLink Personal Therapy Management-Software (“CareLink Personal”) for patients and CareLink Pro Diabetes Therapy Management Software (“CareLink Pro”) for healthcare professionals (collectively, the “CareLink System”). The CareLink System allows patients to upload data relating to management of their diabetes, including blood glucose readings, to Medtronic's central computer server, where the data are collected and stored in a database so that the patients can keep an online record of the information, and/or share the information remotely with a healthcare provider.

In December 2009, Medgraph sued Medtronic in the United States District Court for the Western' District of New York, alleging infringement of all claims of the 124 patent. In October 2010, Medgraph filed an amended complaint to assert that Medtronic also infringed claim 1 of the '351 patent. This appeal arises in part from the fact that Medgraph’s suit coincided with a multi-year process of judicial reconsideration by this court sitting en banc and by the Supreme Court of the relevant governing law, in a series of five appellate decisions, which the parties refer to as “the Akamai eases.”

A year after Medgraph’s complaint was filed, this court issued Akamai I, where we held that direct, infringement of a method claim requires a single party to perform every step of the claimed method and that there can only be. joint infringement where the acts of another are attributable to the accused infringer through either an agency relationship or a: contractual obligation. Akamai Techs., Inc. v. Limelight Networks, Inc., 629 F.3d 1311, 1318-19 (Fed. Cir. 2010) (“Akamai I”).

In August 2012, Medtronic filed a motion for summary judgment of noninfringement of all claims of the asserted patents, based on, inter alia, the grounds that: (1) the CareLink System does .not infringe any of the method claims of the asserted patents because those claims require performance of certain steps by patients and doctors in addition to those performed by Medtronic; and (2) the CareLink System does not infringe claim 16 of the '124 patent because that claim, if properly construed, requires a system that includes both telephonic and computer (e.g., Internet) communication.

Two days after Medtronic filed its motion, this court issued Akamai II, an en banc decision, in which we overruled and vacated the panel decision in Akamai I. Akamai Techs., Inc. v. Limelight Networks, Inc., 692 F.3d 1301, 1306 (Fed. Cir. 2012) (en banc) (per curiam) (“Akamai II”). In Akamai II, we left direct infringement standards in place without reconsidering them, but provided an independent inducement basis for divided infringement liability. Akamai II, 692 F.3d at 1317-18. As a result of that decision, Medtronic filed an amended motion for summary judgment, taking Akamai II into account. Medgraph submits on appeal that, “in response to Akamai II, [it] was compelled to forego its claim of direct infringement and rely, instead, upon a claim for indirect infringement under a theory of inducement.” Appellant’s Br. 10.

After the district court held a hearing on Medtronic’s summary judgment motion, the Supreme Court issued Akamai III, reversing Akamai II on the issue of induced infringement and remanding the case to this court for possible reconsideration of the standard of divided direct infringement. Limelight Networks, Inc. v. Akamai Techs., Inc., — U.S. —, 134 S.Ct. 2111, 2120, 189 L.Ed.2d 52 (2014) (“Akamai III”). The parties filed supplemental briefs to discuss the effect of Akamai III on Medtronic’s motion for summary judgment.

The district court awaited a decision from this court on remand from Akamai III before ruling on Medtronic’s motion. On May 13, 2015, a divided panel of this court issued Akamai IV, where we again rejected direct infringement liability for Limelight — as had the initial panel in Akamai I — reasoning that Limelight did not “direct or control” its customers to perform the claimed steps, that its customers were not agents of or contractually obligated to Limelight, and that Limelight’s customers were not acting in a “joint enterprise” with Limelight whereby each member could be charged with the acts of the others. Akamai Techs., Inc v. Limelight Networks, Inc., 786 F.3d 899, 915 (Fed. Cir. 2015) (“Akamai IV”).

On June 29, 2015, the district court in this ease issued a decision granting summary judgment of no infringement, applying the law on direct infringement liability as it then stood. In its decision, the district court noted that the legal standard governing direct infringement after Akamai IV was the same as under Akamai II, which had caused Medgraph to withdraw its claim of direct infringement because “more than one person, i.e., the patient or doctor, neither of whom is an agent of or under contractual obligation to Medtronic, is required to pei’form all of the steps of the method claims....” Decision, 111 F.Supp.3d at 356 (internal quotation marks omitted). Thus, the district court concluded that there was no infringement because there had not been any “showing that Medtronic itself directly infringed the method claims or that it acted as a ‘mastermind’ by controlling or directing anyone else’s direct infringement.” Id. (citing Akamai IV, 786 F.3d at 904). The district court then entered final judgment of non-infringement on July 2, 2015.

Shortly after the district court’s- entry of final judgment; this court issued Akamai V, an en banc decision where we broadened the circumstances in which others’ acts may be attributed to an accused infringer in cases of divided infringement. Akamai Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020, 1023 (Fed. Cir. 2015) (en banc) (per curiam) (“Akamai V”). We held that, in addition to an agency or contractual relationship, attribution is proper “when an alleged infringer conditions participation in an activity or receipt of a benefit upon performance of a step or steps of a patented method and establishes the manner or timing of that performance.” Id. Stated otherwise, an actor who is implicated in that way in all' of the claimed steps it does not itself perform may be liable ás á direct infringer.

Medgraph timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

Discussion

On appeal, Medgraph argues that: (1) given the change in controlling law, the district court’s decision should be. vacated and remanded for. proceedings in accordance with Akamai V; and (2) the district court’s finding of noninfringement of system claim 16 was in error because the court improperly construed the claim. We discuss each issue in turn.

I.

We first consider whether the district court’s grant of summary judgment of noninfringement of the asserted method claims should be vacated and remanded in light of Akamai V. We review the district court’s grant of summary judgment under the law of the regional circuit in which the court sits, here, the Second Circuit. Classen Immunotherapies, Inc. v. Elan Pharm., Inc., 786 F.3d 892, 896 (Fed. Cir. 2015). The Second Circuit reviews a grant of summary judgment without deference, construing the evidence in the light most favorable to the nonmovant and drawing all reasonable inferences in that party’s favor. Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 (2d Cir. 2011). Summary judgment may only be granted when no “reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Medgraph argues that the district court’s grant of summary judgment of noninfringement was based “solely” on Akamai IV, which limited attribution of liability for divided direct infringement to agency and contractual relationships. Appellant’s Br. 14. Medgraph asserts that, because Akamai V broadened the scope for attributing third party actions to an accused infringer, the district court did not conduct the relevant inquiries under Akamai V and the evidence of record would need to be developed. Thus, in effect, Medgraph argues that Medtronic conditions the patients’ and/or doctors’ participation in the CareLink System, or-receipt of the benefit to the patients and doctors of remote-access to patient information, upon their performance of the claimed method steps and establishes the manner or timing of that performance.

Medtronic responds that, under any of the Akamai cases, proof of direct infringement required Medgraph to show that some entity or group of entities performed all of the' claimed steps, a burden that Medgraph never met. Medtronic maintains that Medgraph never produced evidence of, inter alia, the steps that are performed by the patient and doctor. Thus, argues Medtronic, the outcome would remain unchanged if we were to remand this case, because the only relevant inquiry occasioned by the change in law from Akamai TV to V is the relationship between the accused infringer (itself) and the third parties (patients and doctors) that would allow for attribution, and this inquiry is unnecessary in the absence of evidence of patients and doctors performing the claimed steps.

We agree with Medtronic that a remand is unnecessary in this case. Ordinarily, when the governing legal standards change during an appeal, remand is an appropriate action. See, e.g,, Mankes v. Vivid Seats Ltd., 822 F.3d 1302, 1310 (Fed. Cir. 2016). However, in this case, Medgraph has not pointed to any evidence that would permit attribution of patient- and doctor-performed steps to Medtronic under the sole standard of Akamai V invoked by Medgraph. See Appellant’s Br. 25-26. A finding of direct infringement requires that "all steps of the claim are performed by or attributable to a single entity.” Akamai IV, 786 F.3d at 904. That rule was unaffected, by Akamai V, which reiterated the rule while broadening the circumstances under which attribution may be proper. 797 F.3d at 1023. Under the Akamai V standard invoked by Medgraph, the evidence would have to allow a finding that Medtronic “conditions participation in an activity or receipt of a benefit upon performance of a step or steps of a patented method and establishes the manner and timing of performance.” Id. Medgraph has not identified any basis on which it could meet that standard.

The evidence presented to the district court indisputably shows that Medtronic does not condition the use of, or receipt of a benefit from, the CareLink System on the performance of all of Medgraph’s method- steps. For example, Medtronic does not deny users the ability to use CareLink Personal and CareLink Pro without performance of the claim step of ensuring detachment of the measuring device from the patient after each measurement. Nor does it offer an incentive for such detachment. Indeed, the evidence indicates that Medtronic benefits when patients use its continuous glucose monitoring device, which does not involve ensuring detachment after each measurement. J.A. 1947-48. The evidence also shows that Medtronic freely permits using the CareLink System without performing synchronization, and it denies no benefit to such users for their .choices to do so. J.A. 1499, 1503. Patients can freely choose to bring their devices to their physician’s office and have their data extracted locally there. J.A. 820-21, 967-68. Patients also can print or email reports and bring-them to their medical practitioner. J.A. 907, 923.

This evidence defeats application of the Akamai V standard that Medgraph invokes. Discovery was extensive in this case, and Medgraph has identified no avenue of discovery it was denied,' or even that it chose not to pursue, that is relevant to applying that standard. Nor has it identified to this court any evidence that is in the record, or that it has reason to think exists, that would alter the conclusion required by the evidence' of record. In these circumstances, we have been furnished no basis for viewing a remand for further proceedings as anything but a pointless prolonging of litigation.

The district court also correctly concluded that Medtronic was not liable under a theory of indirect infringement, because indirect infringement is predicated on direct infringement. That rule was also unaffected by Akamai V, so the outcome would, again, not change if we were to vacate and remand.

We thus affirm the district court’s grant of summary judgment of noninfringement of the method claims of the asserted patents.

II.

We next consider whether the district court erred in granting summary judgment of noninfringement of system claim 16 of the '124 patent. Evaluation of summary judgment of noninfringement is a two-part inquiry: first, a court construes the scope and meaning of the asserted patent claims, and then compares the construed claims to the accused product or process. Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed. Cir. 2009). We review a district court’s ultimate claim constructions de novo and any underlying factual determinations involving extrinsic evidence for clear error. Teva Pharm, U.S.A., Inc. v, Sandoz, Inc., — U.S. —, 135 S.Ct. 831, 841-42, — L.Ed.2d — (2015). Here, because the district court relied only on the intrinsic record to construe claim 16, we review the district court’s construction de novo. See Shire Dev., LLC v. Watson Pharm., Inc., 787 F.3d 1359, 1364, 1368 (Fed. Cir. 2015) (citing Teva, 135 S.Ct. at 840-42).

Infringement is a question of fact. Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1129-30 (Fed. Cir. 2011). As such, a grant of summary judgment of noninfringement is proper when no reasonable factfinder could find that the accused product contains every claim limitation or its equivalent, PC Connector Sols., LLC v. SmartDisk Corp., 406 F.3d 1359, 1364 (Fed. Cir. 2005); see Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 39 n.8, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997).

Medgraph argues that the district court erred in construing the claim limitation “and” to mean “and” instead of “or.” Under the district court’s construction, claim 16 requires both computer (e.g., Internet) and telephone capabilities for receiving and transmitting data. Medgraph maintains that the written description supports a disjunctive construction because it repeatedly states that the invention transmits data either through “a common network, over telephone lines, or over the Internet.” See, e.g., '124 patent col. 2 ll. 32-33 (emphasis added).

Medtronic responds that the district court correctly held that “and” means “and” because claim terms are to be given their plain and ordinary meaning. Additionally, Medtronic argues, the written description teaches that the invention possesses both computer and telephonic capabilities, but only uses one at a time. See, e.g,, id. col. 6 ll. 32-41 (describing the “high-tech” and “low-tech” “utilization[s]” of the invention).

We agree with Medtronic that the district court correctly construed the claim. Although we have construed “and” to mean “or” when the specification so requires, see, e.g., Ortho-McNeil Pharm., Inc. v. Mylan Labs., Inc., 520 F.3d 1358, 1361 (Fed. Cir. 2008) (“In light of ,.. the specification, .., this court sustains the trial court’s ruling that ... claim l’s use of and means or.”), those cases are distinct from the present case. For example, in Ortho-McNeil, we held that “and” meant “or” because “as used in [the] claim, and conjoins mutually exclusive possibilities.” 520 F.3d at 1362. Such is not th'e case here. Telephone and computer capabilities are not mutually exclusive; the patents themselves teach that the invention may contain both, to serve a diverse set of customers, See, e.g., '124 patent col. 5 ll. 26-28. Indeed, all cases, cited by Medgraph, most of them district court eases that are not binding on this court, have a common theme that distinguishes them from this case: the specification compels a disjunctive construction for “and.” See, e.g., Merck & Co. v. Teva Pharm. USA, Inc., 228 F.Supp.2d 480, 493-94 (D. Del. 2002) (noting that a conjunctive construction would render tables in the written description meaningless), aff'd, 347 F.3d 1367 (Fed. Cir. 2003).

In this case, in contrast, the written description can be interpreted to support either construction. For example, the patent describes the “high-tech” and “low-tech” versions of the invention as both “utilization^” of the invention and as “two systems.” See '124 patent col. 6 11. 32-41. Likewise, the remainder of the written description contains portions that support a construction of “and” while others support a construction of “or.” Compare, e.g., id. col. 5 ll. 32-40 (explaining that “it is only for illustration purposes that FIG. 1 shows only one ... telephone interface” even though “the primary computer may have ... any number of telephone interfaces”) and id. fig.l (showing only one dashed arrow, which suggests that all other arrows, including the one leading to telephone 30, are not optional), with, e.g., id. col. 6 ll. 12-14 (“[Connection 60 can include a direct network connection, a modem-to-modem connection, or an Internet connection.” (emphasis added)).

Because the written description does not compel a disjunctive construction for “and,” the claim term should be given its plain and ordinary meaning. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc). We therefore conclude that the district court correctly construed the limitation “and” to mean “and,” rather than “or.”

It is undisputed that Medtronic’s CareL-ink System is not capable of transmitting patient data by telephone. Because claim 16, as properly construed, requires that the means for receiving and transmitting data include both computer and telephonic capabilities, we conclude that the district court correctly granted summary judgment of noninfringement of claim 16 of the '124 patent.

Conclusion

We have considered Medgraph’s remaining arguments but find them to be unpersuasive. For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED