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On this week's show we're going to take a stroll down the lane, we'll conjure up some memories, listen to some tunes from a couple of film soundtracks and have a happy ending. Actually, we'll have three happy endings.
Swingin' Down The Lane – Isham Jones AHO / Frank Sylvano, v.
At The End Of The Lane – Everett Hoagland and His Troubadours / Unidentified Vocal Trio, v.
Segment 2: "Other Men's Women"
The Kiss Waltz – Ben Bernie AHO / Unidentified, v.
Tomorrow Is Another Day – Ted Wallace and His Campus Boys / Elmer Feldkamp and Ed Kirkeby, v.
In My Bouquet Of Memories – Ben Selvin AHO / James Melton, v.
So Many Memories – Richard Himber AHO / Stuart Allen, v.
Segment 4: "Strangers On A Train"
A Happy Ending – Sam Lanin AHO / Harold Lang (Scrappy Lambert), v.
You're My Happy Ending – Leslie Norman's Plaza Band / Chick Endor, v.
Wait For The Happy Ending – The High Hatters / Frank Luther, v.

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The U.S. Court of Appeals for the Third Circuit held that a collection letter sent to collect a time-barred debt that makes a "settlement offer" to accept payment "in settlement of" of the debt could potentially violate the federal Fair Debt Collection Practices Act's ("FDCPA") general prohibition against "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e.
Accordingly, the Third Circuit vacated the ruling of the trial court dismissing the complaint, and remanded the matter for further proceedings.
The plaintiff debtor ("Debtor") incurred a debt of $1,289.86 at a fitness center. Subsequently, the defendant debt collection company ("Company") sent a letter dated May 18, 2015 that read as follows: "[The creditor] is willing to accept payment in the amount of $128.99 in settlement of this debt. You can take advantage of this settlement offer if we receive payment of this amount or if you make another mutually acceptable payment arrangement within 40 days . . ."
At the time the letter was sent, the six-year New Jersey statute of limitations applicable to debt-collection actions had already run.
The Debtor filed a class action in federal district court alleging that the Company's letter violated the FDCPA. The Debtor alleged that she interpreted the word "settlement" in the letter to mean she had a legal obligation to pay, and that the least-sophisticated debtor would hold a similar belief. She claimed that the letter was therefore false, deceptive, or misleading under section 1692e of the FDCPA.
The Company filed a motion to dismiss, which was granted by the trial court. In ruling in favor of the Company, the trial court relied on Huertas v. Galaxy Asset Management, 641 F.3d 28 (3d Cir. 2011), which it read to hold that an attempt to collect a time-barred debt does not violate the FDCPA unless it is accompanied by the threat of legal action. Because the word "settlement" did not constitute threatened legal action, the trial court dismissed the complaint.
On appeal, the parties offered competing interpretations of the Third Circuit's ruling in Huertas.
The Company argued "that Huertas imposed a 'threat of litigation' requirement that must be present for an attempt to collect a time-barred debt to violate the FDCPA." Conversely, the Debtor tried to distinguish Huertas and argued that an "offer to settle may mislead the least sophisticated [debtor] into believing that a time-barred debt is legally enforceable, even when litigation Is not threatened."
Thus, the Third Circuit first analyzed its prior opinion in Huertas, which it stated "stands for the proposition that debt collectors do not violate 15 U.S.C. § 1692e(2)(A) when they seek voluntary repayment of stale debts, so long as they do not threaten to take legal action." However, "the FDCPA sweeps far more broadly than the specific provision found in § 1692e(2)(A)," and "prohibits 'any false, deceptive, or misleading representation.'"
The appeal therefore required the Court "to decide whether collection letters may run afoul of the FDCPA by misleading or deceiving debtors into believing they have a legal obligation to repay time-barred debts even when the letters do not threaten legal action."
In ruling that they could, the Third Circuit noted that "three other United States Courts of Appeals have addressed the question presented in this appeal," and "[a]ll three have determined that, even absent threats of litigation, it is plausible that offers to 'settle' time-barred debts could mislead the least-sophisticated debtor." See McMahon v. LVNV Funding, LLC, 744 F.3d 1010 (7th Cir. 2014); Buchanan v. Northland Group, Inc., 776 F.3d 393 (6th Cir. 2015); Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507 (5th Cir. 2016).
Noting that it was not bound by these precedents, the Third Circuit was "persuaded their considered view is the best interpretation of the FDCPA."
In so ruling, the Court noted that "construing the Act to require a threat of legal action for any FDCPA violation interposes a mandate that is not found in its text." Further, "in the specific context of a debt-collection letter, the least-sophisticated debtor could be misled into thinking that 'settlement of the debt' referred to the creditor's ability to enforce the debt in court rather than a mere invitation to settle the account."
"Because the words 'settlement' and 'settlement offer" could connote litigation, the least-sophisticated debtor could be misled into thinking [the Company] could legally enforce the debt."
Accordingly, the Third Circuit held that the least-sophisticated debtor could plausibly be misled by the specific language used in the Company's letter. The Court therefore vacated the trial court's order granting the motion to dismiss and remanded the matter for further proceedings.
However, in so doing, the Court "reiterate[d] what we said both in Huertas and elsewhere: standing alone, settlement offers and attempts to obtain voluntary payments of stale debts do not necessarily constitute deceptive or misleading practices."
In addition, the Court cautioned that it did not "impose any mandates on the language debt collectors must use, such as requiring them to explicitly disclose that the statute of limitations has run," and that it did not "hold that the use of the word 'settlement' is 'misleading as a matter of federal law.'"
Instead, the Third Circuit held, "in keeping with the text and purpose of the FDCPA, we merely reiterate that any such letters, when read in their entirety, must not deceive or mislead the least-sophisticated debtor into believing that she has a legal obligation to pay the time-barred debt."


NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted December 21, 2017* Decided December 29, 2017 Before DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge DIANE S. SYKES, Circuit Judge No. 16 3939 MARIO HOWARD LLOYD, Plaintiff Appellant, v. SCOTT MOATS and TED WALL, Defendants Appellees. Appeal from the United States District Court for the Central District of Illinois. No. 13 1291 James E. Shadid, Chief Judge. O R D E R Mario Lloyd, a prisoner at the Federal Correctional Institution in Pekin, Illinois, brought an action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), claiming that a prison doctor and nurse were deliberately indifferent to his foot pain in violation of the Eighth Amendment. He asserts that Dr. Scott Moats and Nurse Ted Wall misdiagnosed the cause of his foot pain, unreasonably * We have agreed to decide the case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C). No. 16 3939 Page 2 delayed diagnostic testing, and inadequately treated him. The district court entered summary judgment for both defendants, and Lloyd appeals. We affirm the judgment. We review the facts, taken here from the summary judgment record, in the light most favorable to Lloyd. Estate of Perry v. Wenzel, 872 F.3d 439, 452 (7th Cir. 2017). While incarcerated, on October 10, 2011, Lloyd participated in a flag football game and badly injured his right foot. Afterwards his foot was bruised and he iced it all night. He attempted to go to sick call the next day, but he was not seen until October 13. That day, Lloyd says, he complained to Nurse Wall of pain in his right foot; Wall told him the discomfort was caused by a bunion. Lloyd said that his next visit was later in October. At that time he asked Wall to schedule an x ray for his foot, but Wall did not do so, citing his lack of authority. Lloyd swears that he first asked Wall for an x ray within a week of the October 13 appointment and then again in early November. Yet the October visits are not recorded in Lloyd’s medical records (which, Wall attested, cannot be deleted), and Wall stated in his affidavit that neither alleged October visit took place. The first medical visit documented in the record was on November 15, 2011, when Wall diagnosed Lloyd with a bunion. Wall advised Lloyd “to obtain a wider or size larger issue boot” because he did not meet the “criteria for a medical shoe.” A month later, Lloyd saw Dr. Moats and complained of pain over his right, first, metatarsophalangeal joint (the joint that connects the big toe to the base of the foot). Dr. Moats also diagnosed a bunion and took an x ray, which revealed an “old fracture in midfoot” that had healed itself. Dr. Moats’s notes state that Lloyd reported that he had hurt that portion of his foot “playing football” but that the area was “no longer bothersome.” (Lloyd disputes that he said this, but the difference in account does not matter to the outcome of his appeal.) Dr. Moats did not recommend any treatment for the fracture, but he was concerned about the “moth eaten” appearance in the area immediately below the base of Lloyd’s big toe, and suspected an “inflammatory process.” Dr. Moats prescribed aspirin and ordered blood tests, which did not reveal anything unusual. A radiologist also reviewed Lloyd’s x ray and reached the same conclusions: any bony trauma Lloyd had suffered had healed, and the source of his pain was the bunion and “degeneration.” Lloyd made several more complaints of foot pain to Dr. Moats and Wall, and the doctor ordered another x ray on March 15, 2013. A radiologist reviewed this x ray too, interpreting the results to be “[n]egative except for moderate degenerative joint disease.” Wall told Lloyd about these results but documented that Lloyd was “unwilling to accept findings … wants to be evaluated again.” The following week, after Lloyd continued to complain of foot pain, another prison doctor ordered an MRI. No. 16 3939 It was completed almost five months later, on August 28, and revealed “mild degenerative changes” with no abnormality of the midfoot. Page 3 Before the MRI, Lloyd went to sick call on August 19 and complained that over the counter pain medication was not easing his foot pain. But Wall countered that he reviewed Lloyd’s many commissary purchases since October 2011, and Lloyd had never purchased any pain relievers. The defendants submitted Lloyd’s commissary report and an affidavit from the facilities trust fund supervisor, who confirmed that Lloyd did not buy pain relievers from September 9, 2011 to September 4, 2014 (essentially, within three years after the injury). Lloyd disputes this, but the receipts for pain relievers that he submitted were from after September 4, 2014. On June 25, 2014, Lloyd was sent to an outside podiatrist. He told her that he had a history of pain on the top of his right foot and the joint of his big toe. She noted that he had a decreased range of motion in both areas, but the remainder of the physical exam was normal. The podiatrist reviewed Lloyd’s MRI results, which were positive for osteoarthritis in two of his joints. She discussed diabetic and osteoarthritis foot care with him and recommended a pair of “Dr. Comfort” diabetic shoes. The prison’s utilization review committee, however, denied Lloyd’s request for these shoes, determining that, based on Dr. Moats’s recommendation that osteoarthritis did not require specialized footwear, Lloyd could safely wear the prison issued boots. (The committee does not appear to have considered whether the podiatrist recommended the “diabetic” shoes to alleviate any symptoms caused by Lloyd’s diabetes.) After Lloyd exhausted his administrative remedies, he filed this suit in June 2013 (before the MRI and his visit to the podiatrist). The district judge screened the complaint, see 28 U.S.C. § 1915A, and allowed Lloyd to proceed on his claim that Dr. Moats and Wall were deliberately indifferent for failing to investigate the cause of Lloyd’s foot pain, waiting two months to x ray his foot, and not immediately ordering an MRI. Lloyd’s theory was that he broke his foot in his October 2011 fall, that this break was the cause of his pain, and that he continued to suffer because of the defendants’ inattention to the fracture. Lloyd asked the court three times for recruited counsel but the court denied each request. During discovery Lloyd served on the defendants requests to produce his medical records and interrogatories. The defendants turned over more than 900 pages of records and answered most of his interrogatories with only a few objections. Lloyd made two motions—one to compel the defendants to provide more discovery and one to require them to answer his interrogatories fully; he also accused the defendants of supplying “false information” about his treatment. The district judge denied both No. 16 3939 Page 4 requests, noting that Lloyd did “not state, with specificity, which of Defendants [sic] objections he believes to be unsupported” and that the defendants had adequately responded to his interrogatories. Lloyd also requested discovery sanctions because, he alleged, the defendants’ attorneys tampered with the disc containing images of his x rays. The judge also denied this motion because he found no evidence of tampering and Lloyd had been able to review the information on the disc at one point. Eventually Lloyd and the defendants filed cross motions for summary judgment. The judge granted the defendants’ motion and denied Lloyd’s. He offered two reasons for those rulings: first, that “the bunion and arthritic pain” did not represent “a serious medical condition”; and second, that the defendants were not deliberately indifferent in their treatment of Lloyd’s foot pain because they “undertook an extensive work up of Plaintiff’s foot pain and recommended appropriate over the counter pain medication.” On appeal Lloyd argues that factual disputes preclude a conclusion that there was no deliberate indifference as a matter of law. Prison officials violate the Eighth Amendment when they are deliberately indifferent to the serious medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To establish a deliberate indifference claim, a prisoner must demonstrate both that his medical condition is “objectively” serious and that the officials acted with a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834–35 (1994). “[A] prison official cannot be found liable under the Eighth Amendment … unless the official knows of and disregards an excessive risk to inmate health or safety.” Id. at 837. The parties dispute whether Lloyd’s foot pain was an objectively serious medical condition. But we need not reach this issue because, even assuming that it was, there is insufficient evidence from which a reasonable jury could conclude that the defendants acted with deliberate indifference. Lloyd maintains that the delay in Nurse Wall and Dr. Moats’s treatment of his fracture, including the delay in ordering x rays and an MRI, was unlawful. Even assuming that Lloyd fractured his foot in October 2011 (although it is impossible to tell when the fracture occurred), nothing in this record supports the conclusion that the delay before the x rays and MRI were taken was an “inexplicable delay in treatment which serves no penological interest” or that it “exacerbated the injury or unnecessarily prolonged pain.” Petties v. Carter, 836 F.3d 722, 731 (7th Cir. 2016) (en banc). It was up to Lloyd to “place verifying medical evidence in the record to establish” that it was, and he did not do so. Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir. 1996). Moreover, a delay in ordering tests must be evaluated in light of the entire record to determine if it evinces deliberate indifference: “[T]he question whether an X ray or additional No. 16 3939 Page 5 diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X ray, or like measures, does not represent cruel and unusual punishment.” Estelle, 429 U.S. at 107; see Pyles v. Fahim, 771 F.3d 403, 411 (7th Cir. 2014). The record of treatment that Lloyd received forecloses a finding of deliberate indifference. See Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997) (emphasizing the “detailed account of the treatment he received” in rejecting deliberate indifference finding). Wall and Dr. Moats examined Lloyd multiple times, took x rays that an outside radiologist interpreted, and referred Lloyd to an outside podiatrist. The outside specialist confirmed that degeneration and osteoarthritis caused Lloyd’s pain. Neither defendant disregarded Lloyd’s complaints of foot pain or made outrageous treatment (or non treatment) decisions; the record reflects a level of continuous care that is not consistent with a malicious state of mind. A prisoner “is entitled to reasonable measures” to prevent a serious risk of harm, but he “is not entitled to the best care possible.” Arnett v. Webster, 658 F.3d 742, 754 (7th Cir. 2011). On this record, a jury could not reasonably conclude that the defendants did not provide adequate care. Finally, neither Lloyd’s disagreement with his doctors nor any disagreement among the doctors, establishes deliberate indifference in this case. Plainly Lloyd disagrees with the course of action that Dr. Moats and Nurse Wall took in treating his foot pain, and also with their diagnosis of its cause; he says the fracture caused his ongoing pain, and he thinks he should have been given stronger pain medication and special footwear. But Lloyd’s disagreement is irrelevant. He is not competent to diagnose himself, and he has no right to choose his own treatment. See Holloway v. Delaware Cty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012). Further, the fact that Dr. Moats disagreed with the podiatrist’s recommendation for special shoes is not material here because the shoes were not prescribed, only recommended pending “prison medical department” approval. While a genuine issue of material fact may arise when a prison physician ignores a specialist prescribed treatment, Gil v. Reed, 381 F.3d 649, 663 (7th Cir. 2004), a prison physician’s decision to reject another doctor’s treatment recommendation in favor of his own “does not amount to deliberate indifference where both recommendations are made by qualified medical professionals” and the prison doctor’s decision is made for a medical reason. Shields v. Illinois Dep t of Corr., 746 F.3d 782, 797 (7th Cir. 2014); see Perez v. Fenoglio, 792 F.3d 768, 778 (7th Cir. 2015). As long as Dr. Moats used medical judgment—and there is no evidence he did not—he was free to devise his own treatment plan. See Holloway, 700 F.3d at 1073. No. 16 3939 Page 6 Lloyd also argues on appeal that the district judge abused his discretion by denying Lloyd’s motions for recruitment of counsel, but we disagree. When an indigent plaintiff requests recruitment of counsel the district judge must ask whether the plaintiff made reasonable attempts to independently obtain counsel (or was prevented from doing so), and whether it appears that he is competent to litigate the case. See Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc). We will reverse only if Lloyd demonstrates prejudice. See id. at 659. The district judge denied Lloyd’s first motion as premature, his second because he had not demonstrated reasonable efforts to retain counsel, and his third because he was competent to litigate the case himself. In denying the third motion, the judge noted that Lloyd “had strenuously prosecuted this case, and has filed a variety of motions, including motions to compel.” Lloyd’s extensive summary judgment filings also demonstrated that he could litigate the case himself. See Pruitt, 503 F.3d at 654–56. This decision was well within the bounds of the judge’s discretion. Lloyd believes that he suffered prejudice because, without an attorney, he could not obtain an expert medical witness, but he has not persuaded us that an expert would have made a difference. He already had the benefit of an outside podiatrist’s review of his medical records and her recommendation to provide Lloyd with special shoes. Further, to be useful an expert would have to opine that Dr. Moats and Wall strayed so far from the standard of care that their actions surpassed malpractice and instead approached intentional wrongdoing, see Arnett, 658 F.3d at 751. The nature and extent of the treatment in this case would make finding such an expert unlikely, at best. Lloyd also says that the district court erred in denying his discovery motions. But “[t]rial courts retain broad discretion to limit and manage discovery under Rule 26 of the civil rules.” Geiger v. Aetna Life Ins. Co., 845 F.3d 357, 365 (7th Cir. 2017) (internal alterations omitted). They also have broad discretion to impose discovery sanctions, and may impose them only “where a party displays willfulness, bad faith, or fault.” Scott v. Chuhak & Tecson, P.C., 725 F.3d 772, 778 (7th Cir. 2013). In the district judge’s view, the defendants complied with Lloyd’s discovery requests when they did not have valid objections, and they did not improperly object to or withhold anything. The judge further concluded that Lloyd’s assertions that the defendants acted in bad faith, provided “false information,” and tampered with the discs containing Lloyd’s x rays were baseless. We too see no evidence of censurable conduct, and we will not second guess the district judge’s ruling without good reason. See Chatham v. Davis, 839 F.3d 679, 687 (7th Cir. 2016). We AFFIRM the judgment of the district court.


text:
1.Xiong, Y. L. and Yang, D*., “Influence of slip on the three-dimensional instability of flow past an elongated superhydrophobic bluff body”, submitted to Journal of Fluid Mechanics.
2.Xiong, Y. L., Bruneau, C. H., Yang, D*., “Numerical study of the flow of viscoelastic fluid around a rigid body”, accepted by Applied Mathematical Modelling.
3.Yang, D., Xiong, Y. L. and Guo, X. F., “Drag reduction of a rapid vehicle in supercavitating flow”, accepted by International Journal of Naval Architecture and Ocean Engineering.
4.Yang, D., B. Pettersen, and Xiong, Y. L., “Interactions between two flat plates at different positions in a current”, Ocean Engineering, Vol. 119, 1 June 2016, Pages 75–85.
8.Yang, D., B. Pettersen, H. I. Andersson, V. D. Narasimhamurthy, "Analysis of vortex splitting characteristics in the wake of an inclined flat plate using Hilbert-Huang Transform", Acta Mechanica, (2015) 226: 1085. doi:10.1007/s00707-014-1222-1.
10.Yang, D., B. Pettersen, H. I. Andersson, V. D. Narasimhamurthy, "On oblique and parallel shedding behind an inclined plate", Physics of Fluids, Vol. 25, 054101, 2013.
11.Yang, D., V. D. Narasimhamurthy, B. Pettersen, H. I. Andersson, "Three-dimensional wake transition behind an inclined flat plate", Physics of Fluids, Vol. 24, 094107, 2012.
12.Yang, D., B. Pettersen, H. I. Andersson, V. D. Narasimhamurthy, "Vortex shedding in flow past an inclined flat plate at high incidence", Physics of Fluids, Vol. 24, 084103, 2012.
13.Yang, D., Pettersen, B., Andersson, H. I., and Narasimhamurthy, V. D., “Three-dimensional transition to turbulence in the wake of an inclined flat plate”, Journal of Physics: Conference Series, 318, (2011) 032044.
14.Yang, D., Pettersen, B., Andersson, H. I., and Narasimhamurthy, V. D., “Vortex Shedding in Flow Past an Inclined Flat Plate at High Incidence”, Seventh International Symposium on Turbulence and Shear Flow Phenomena, Ottawa, Canada, 2011.
15.Yang, D., Pettersen, B., Andersson, H. I., and Narasimhamurthy, V. D. “Direct numerical simulation of flow past a rectangular flat plate at incidence”, Proc. ECCOMAS CFD 2010, Lisbon, Portugal, 2010.
Ph.D. Department of Marine Technology, Norwegian University of Science and Technology (Trondheim, Norway), 2009.3-2013.2. Research field: Direct numerical simulation of bluff body wakes, wake stability analysis.
Ph.D. College of Aerospace and Civil Engineering, Harbin Engineering University (Harbin, China), 2005.9-2009.6.Research field: Multiphase flow, Slag sloshing, Flight mechanics.
1. Xiong, Y. L. and Yang, D*, “Influence of slip on the three-dimensional instability of flow past an elongated superhydrophobic bluff body”, Journal of Fluid Mechanics (2017), vol. 814, pp. 69-94.
2. Xiong, Y. L., Bruneau, C. H., Yang, D*, “Numerical study of the flow of viscoelastic fluid around a rigid body”, Applied Mathematical Modelling, 42 (2017) 188–208.
3. Xinliang Tian, Longfei Xiao, Xiangdong Zhang, Jianmin Yang, Longbin Tao and Dan Yang, Flow around an oscillating circular disk at low to moderate Reynolds numbers, Journal of Fluid Mechanics (2017), vol. 812, pp. 1119-1145.
4. Dan YANG, Yongliang XIONG*, Qian REN, and Xianyong WANG, “Nutation instability of spinning solid rocket motor spacecraft”, Chinese Journal of Aeronautics, 2017, Vol. 30(4), pp: 1363-1372.
5. Yang, D., Xiong, Y. L. and Guo, X. F., “Drag reduction of a rapid vehicle in supercavitating flow”, International Journal of Naval Architecture and Ocean Engineering, 9 (2017) 35-44.
8. Yang, D., B. Pettersen, and Xiong, Y. L., “Interactions between two flat plates at different positions in a current”, Ocean Engineering, Vol. 119, 1 June 2016, Pages 75–85.
10. Yang, D., B. Pettersen, H. I. Andersson, V. D. Narasimhamurthy, "Analysis of vortex splitting characteristics in the wake of an inclined flat plate using Hilbert-Huang Transform", Acta Mechanica, (2015) 226: 1085. doi:10.1007/s00707-014-1222-1.
11. Yang, D., B. Pettersen, H. I. Andersson, V. D. Narasimhamurthy, "Floquet stability analysis of the wake of an inclined flat plate", Physics of Fluids, Vol. 25, 094103, 2013.
12. Yang, D., B. Pettersen, H. I. Andersson, V. D. Narasimhamurthy, "On oblique and parallel shedding behind an inclined plate", Physics of Fluids, Vol. 25, 054101, 2013.
13. Yang, D., V. D. Narasimhamurthy, B. Pettersen, H. I. Andersson, "Three-dimensional wake transition behind an inclined flat plate", Physics of Fluids, Vol. 24, 094107, 2012.
14. Yang, D., B. Pettersen, H. I. Andersson, V. D. Narasimhamurthy, "Vortex shedding in flow past an inclined flat plate at high incidence", Physics of Fluids, Vol. 24, 084103, 2012.
15. Yang, D., Pettersen, B., Andersson, H. I., and Narasimhamurthy, V. D., “Three-dimensional transition to turbulence in the wake of an inclined flat plate”, Journal of Physics: Conference Series, 318, (2011) 032044.
16. Yang, D., Pettersen, B., Andersson, H. I., and Narasimhamurthy, V. D., “Vortex Shedding in Flow Past an Inclined Flat Plate at High Incidence”, Seventh International Symposium on Turbulence and Shear Flow Phenomena, Ottawa, Canada, 2011.
17. Yang, D., Pettersen, B., Andersson, H. I., and Narasimhamurthy, V. D. “Direct numerical simulation of flow past a rectangular flat plate at incidence”, Proc. ECCOMAS CFD 2010, Lisbon, Portugal, 2010.

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The Complainant is Monarch Airlines Limited of Luton, Bedfordshire, United Kingdom of Great Britain and Northern Ireland, represented by Demys Limited, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Richard Nani of Alispell, Montana, United States of America.
The disputed domain name <monarchairlineuk.com> is registered with OnlineNic, Inc. d/b/a China-Channel.com (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 18, 2012. On December 18, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 19, 2012, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center appointed Richard Tan as the sole panelist in this matter on January 23, 2013. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant was established in 1968 and based in Luton, United Kingdom. It carries on business as a charter and scheduled airline and is one of the United Kingdom’s largest charter airlines, operating within Europe, the United States, the Caribbean, India and Africa, and mainly serving leisure destinations. It also operates scheduled flights to many Mediterranean destinations, the Canary Islands and Cyprus. Its main base is London Luton Airport, with hubs at Birmingham International Airport, London Gatwick Airport and Manchester Airport. The Complainant carried around 5.9 million passengers during 2011.
The Complainant is the owner of the trade mark MONARCH in the United Kingdom, trade mark registration number 1275140, registered in classes 37 and 39 with a filing date of October 1, 1986, and trade mark registration number 2259644, registered in class 43 with a filing date of October 24, 1996.
It has an online presence at <monarch.co.uk> through which the Complainant advertises and promotes its business, and allows Internet users to search for and book flights and hotels, in addition to making general corporate information available to the public.
The disputed domain name was registered by the Respondent approximately 26 years after the Complainant’s first registered trade mark.
The Complainant contends that the disputed domain name is identical to the Complainant’s MONARCH mark except that it has the modifiers “airline” and “uk”. Both terms directly relate to the Complainant’s activities as a major European airline based in the United Kingdom. The Complainant contends that it has extremely strong rights in the MONARCH mark and submits that the disputed domain name is confusingly similar to its mark, the modifying words “airline” and “uk” being merely descriptive of the Complainant’s primary business.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name and contends that Respondent’s registration and use of the disputed domain name has been entirely in bad faith.
The Respondent has not been commonly known by the term “Monarch Airlines UK”. The Respondent is not a licensee of the Complainant and has not received any permission or consent from the Complainant to use the Complainant’s trademark. The Respondent is not named or commonly known as “Monarch Airlines UK” and owns no trademarks or service marks incorporating marks related to the term “monarch”.
The Respondent has made no demonstrable use, or preparations to use, the disputed domain name in connection with a bona fide offering of goods and services. The Respondent has no right to appropriate the Complainant’s mark to give the appearance that it is approved by, connected with or is indeed the Complainant itself.
The Complainant further contends that the disputed domain name has been either directly used or has been permitted to be used for the purposes of fraudulently impersonating the Complainant to commit “advanced fee fraud”. The Complainant has produced evidence of an email it received from a potential victim of the scam who alerted the Complainant to the disputed domain name having been used in relation to a scam targeting people who have posted their resumes or curriculum vitae on Internet employment websites. An email was sent to that person by a person purportedly named “Benny Hogan” with annexures which refer to the email address “hr@monarchairlineuk.com” and mentions an apparently fictitious office in Northern Ireland. The Complainant states that it does not employ anyone called Benny Hogan (in its Human Resources department or otherwise), does not have a major presence in Northern Ireland and does not charge potential employees fees of any kind.
The Complainant states that it can conceive of no circumstances in which the appropriation of a third party’s mark within a domain name for the purposes of fraud could be considered a bona fide use.
The Complainant asserts that the Respondent’s use of the disputed domain name cannot be construed as noncommercial in any way as envisaged by the Policy. Equally the Respondent’s use of the disputed domain name cannot be construed as a fair use, given the evidence that the disputed domain name has been used to mislead Internet users through the incorporation of the Complainant’s mark in the disputed domain name.
The Complainant asserts that the Respondent registered and is using the disputed domain name in bad faith. The disputed domain name has been used for the purposes of advance fee fraud as mentioned above.
The Complainant contends that the use of the disputed domain name and the Complainant’s marks therein to potentially commit criminal activities will also inevitably disrupt the Complainant’s business. Any confusion will reflect extremely badly on the Complainant’s business and tarnish its reputation and goodwill with its customers and the general public.
Based on the evidence adduced by the Complainant as noted above, this Panel has no hesitation in finding that the Complainant has rights in the MONARCH mark. The MONARCH mark has been registered in the United Kingdom since 1986. The Complainant has an on-line presence and uses the domain name <monarch.co.uk> to market its services. Its airline services operate in many countries, including the United States of America (where the Respondent appears to be based), the United Kingdom and others.
In this Panel’s view, this threshold test is satisfied. The disputed domain name reproduces the MONARCH mark in its entirety but merely adds the common terms “airline” and “uk”.
As found by previous UDRP panels, the mere addition of common or generic words will not be sufficient under the circumstances to avoid a finding of confusing similarity. See the decisions by previous UDRP panels which have found that domain names that combine generic terms with trademarks are confusingly similar to the marks: Autodesk, Inc. v. Nurinet, WIPO Case No. D2011-1426 and the decision cited by the Complainant Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil, WIPO Case No. D2000-1409. The top level domain “.com” is required only for technical reasons and should be disregarded.
The Panel finds that the addition of these generic or descriptive terms to the MONARCH mark do not distinguish the Respondent’s website from the Complainant or its services, but indeed only, as the Complainant asserts, adds to the likelihood of confusion.
As several UDRP panels have found, a complainant is only required to make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name and once such a prima facie case is made, the respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.
In this case, the Complainant contends that the Respondent registered the disputed domain name long after the Complainant established its rights in the MONARCH mark, which the Respondent would clearly have been aware of at the time of the registration of the disputed domain name.
On the evidence, the Panel accepts that the Respondent is not and has not been commonly known by the disputed domain name, that the Respondent has not been granted any license or other rights to use the Complainant’s mark for any purposes and that the Complainant is in no way associated or affiliated with the Respondent.
The Complainant further contends that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, and the disputed domain name has have been used for the purposes of committing “advanced fee fraud”, a term that is used to describe a fraudulent scheme in which a party impersonates another person and induces innocent people to make payment based on false promises.
The Complainant has produced evidence of an email it received from a potential victim of the scam who alerted the Complainant to the use of the disputed domain name being used for a scam which targeted people who have posted their resumes or curriculum vitae on Internet employment websites. The scammer impersonates a business – in this case the Complainant – and claims it wishes to employ the potential victim. It backs up its claims by sending the target a variety of documents which include falsified company logos. These communications often come from an email address which appears to be similar to that of the impersonated business’ domain name. The job offer itself usually offers an exceptional salary and benefits but notes the victim needs work or other permits to be employed in the impersonated business’s country. The scammer then takes payment for these permits and continues to press for further expenses until the victim realizes he or she is being targeted.
In this case, an email was sent by a person “Benny Hogan” with an email address “hr@monarchairlineuk.com” within its content and mentions an apparently fictitious office in Northern Ireland. The Complainant states that it does not employ anyone called Benny Hogan (in its Human Resources department or otherwise), does not have a major presence in Northern Ireland and does not charge potential employees fees of any kind. The Respondent has not filed a response to refute these allegations.
Absent a Response and in the light of the material before the Panel, the Panel accepts the contentions of the Complainant that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant submits that the Respondent registered and is using the disputed domain name in bad faith.
The disputed domain name was registered well after the Complainant’s mark was in use. The Panel finds that the Respondent must have had notice of the Complainant’s mark and business when registering the disputed domain name. The Respondent must have been intended to take advantage of the reputation of the Complainant.
The Panel finds that the incorporation of the MONARCH mark in its entirety as part of the disputed domain name is an indication of bad faith under the circumstances. The Respondent also added the descriptive element “airline” to the disputed domain name which, given the fact that the Complainant’s business was that of an airline, merely served to add to the confusion.
As noted above, the Complainant further asserts that the disputed domain name has been used for the purposes of advance fee fraud. Previous UDRP cases concerned with advance fee fraud have found the disputed domain name to have been registered in bad faith where the disputed domain name has been used for criminal activity: see La Française des Jeux v. MichaelE Wilkins, WIPO Case No. D2009-0898.
The Panel accepts that the use of the disputed domain name and the Complainant’s marks as an instrument of fraud constitutes bad faith.
The Panel also accepts the Complainant’s assertion that such use is capable of disrupting the Complainant’s business and the confusion will reflect extremely badly on the Complainant’s business and tarnish its reputation and goodwill with its customers and the general public.
The Panel further notes that, as found by other UDRP panels, where a domain name is so obviously connected with a well-known product or service, its very use by someone with no connection with the product suggests opportunistic bad faith: See for example Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163; PepsiCo, Inc. v. “null”, aka Alexander Zhavoronkov, WIPO Case No. D2002-0562; Go Daddy Software, Inc. v. Internet Masters, WIPO Case No. D2002-0570; and RapidShare AG, Christian Schmid v. PrivacyProtect.org, Domain Admin / n/a, Sergey Malgov, WIPO Case No. D2010-0608.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <monarchairlineuk.com> be transferred to the Complainant.

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State v. Moua Her is the case blog of the day. This is an older case that has come back for some revisions to case law after Giles v. California. Mr. Her was originally charged with First Degree Domestic Abuse, Murder. After a jury trial in Ramsey County, Mr. Her was found guilty and sentenced to life in prison.
The problem arose out of the fact that Ms. Vang (Moua Her’s wife) had previously made statements to a police officer. During the jury trial those statements were admitted against Mr. Her on the grounds that Mr. Her had waived his right to confront Ms. Vang by killing her. (Anyone else see the Catch 22 with that statement?). Thus the Minnesota Supreme Court rejected Mr. Her’s Sixth Amendment Confrontation Clause appeal and held that the forfeiture-by-wrongdoing doctrine applied.
The problem was further complicated when the United States Supreme Court decided Giles v. California. In Giles, the Supreme Court held that the State must show, not only that the defendant was responsible for the killing, but also that he committed the killing with the intent of preventing the victim from testifying against the defendant. In Minnesota, as in California before Giles, the State only needed to show that the defendant intended to kill the victim, not that the intent was to keep them from testifying.
Because the Minnesota Supreme Court did not make a ruling on whether Mr. Her intended to prevent Ms. Vang from testifying (in fact they originally held it didn’t matter based on Minnesota precedent), the question of whether Mr. Her’s Sixth Amendment rights were violated is still in question.
The end result is that State v. Moua Her has been remanded to the District Court level for hearings to determine if Mr. Her’s Sixth Amendment rights were violated in light of Giles.
Dissenting, Page and Anderson, Paul H., JJ.
Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, St. Paul, Minnesota, for respondent.
Suzanne M. Senecal-Hill, Assistant State Public Defender, Minneapolis, Minnesota, for appellant.
Because Giles v. California, 128 S. Ct. 2678 (2008), changed the law in Minnesota regarding the standard for application of the forfeiture-by-wrongdoing doctrine in a murder case, remand to the district court for an evidentiary hearing is required to assess whether appellant forfeited his Confrontation Clause claim.
A Ramsey County jury found appellant Moua Her guilty of murdering his estranged wife Sheng Vang. The district court convicted Her of first-degree domestic abuse murder under Minn. Stat. § 609.185(a)(6) (2008), and imposed a life sentence. Her appealed his conviction arguing, among other things, that his rights under the Confrontation Clause of the Sixth Amendment were violated when the district court allowed the State to introduce evidence of Vang’s March 23, 2004, statements to a police officer. See State v. Moua Her (Her I), 750 N.W.2d 258, 264 (2008). We affirmed Her’s conviction and held that because Her intentionally killed Vang, the forfeiture-by-wrongdoing doctrine applied and estopped Her from raising his Confrontation Clause rights. Id. at 274-75. Her petitioned for a writ of certiorari in the U.S. Supreme Court, and the Supreme Court vacated and remanded for reconsideration in light of Giles v. California, 128 S. Ct. 2678 (2008).
We set out the facts surrounding the murder in detail in the opinion in Her I. We discuss in this opinion those facts relevant to the remand from the Supreme Court. Those facts relate to the State’s evidence on the element of “past pattern of domestic abuse.” See Minn. Stat. § 609.185(a)(6). In seeking to prove that Her had a “past pattern of domestic abuse,” the State introduced evidence of four instances where Her had committed acts of physical abuse against Vang. Her I, 750 N.W.2d at 278. Vang reported the first three instances of abuse at a family meeting in March 2001. See id. at 278. At the meeting, Vang alleged Her had hit and kicked her, electrocuted her, and poured curry juice over her clothes. See id.
The other incident the State used as evidence of a past pattern of abuse was a March 23, 2004, altercation that took place between Her and Vang outside a restaurant located on University Avenue in Saint Paul. Saint Paul police officer Amy Baumhofer was called to the restaurant around 6:00 p.m. and met Vang there. Officer Baumhofer described Vang’s condition: “She was very upset, she was crying, she was shaking, and she had a hard time completing sentences. She was very, very upset and had to pause between words to get . . . herself composed enough to get the words out so we could understand what had happened.” Officer Baumhofer observed “fresh” injury marks under Vang’s chin and on her clavicle and stomach.
Vang told Officer Baumhofer that Her had assaulted her just before the police arrived. Vang said that she met Her at the restaurant to talk. During their conversation, Her “pulled [her] into the car by her hair and, as she fell into the passenger seat, her husband had hit her with what she thought was a metal nightstick several times.” As he hit her, Vang said that she tried to get away. She tried to leave the car, but it was locked. As Her began to back-up the car, Vang was able to unlock the door, leave, and call the police. After taking Vang’s statement, Officer Baumhofer issued a probable cause pick-up for Her for domestic assault and called for a camera car to photograph Vang’s injuries. The record does not establish which of these two things Baumhofer did first.
As a result of Vang’s report about the incident at the St. Paul restaurant, the State charged Her with domestic assault on March 24, 2004. That same day, Vang obtained a No Contact Order against Her. In May, Her failed to appear for a hearing on the domestic assault charge, and a bench warrant was issued for his arrest. The domestic assault charge was still pending at the time of Vang’s murder, and the warrant and the No Contact Order were still in effect.
Her’s jury trial for Vang’s murder took place June 5-16, 2006. Following the trial, the jury found Her not guilty of first-degree premeditated murder, but guilty of first-degree domestic abuse murder in violation of Minn. Stat. § 609.185(a)(6) and three counts of second-degree murder. The district court convicted Her of first-degree domestic abuse murder and imposed a life sentence.
Her appealed his conviction, arguing that his Sixth Amendment Confrontation Clause rights were violated when the district court permitted Officer Baumhofer to repeat the statements Vang made to her on March 23, 2004, after the incident at the St. Paul restaurant. We rejected Her’s Confrontation Clause challenge in Her I, 750 N.W.2d at 264-75. As a preliminary matter, we held that the State had failed to meet its burden to show that Vang’s statements to Baumhofer were nontestimonial. Id. at 269. In analyzing this question, we applied the newly promulgated “primary purpose” test set forth by the U.S. Supreme Court in Davis v. Washington, 547 U.S. 813 (2006), which was decided days after Her’s trial ended. See Her I, 750 N.W.2d at 269. We next considered the forfeiture-by-wrongdoing doctrine. Her argued that the doctrine should not apply because the State did not demonstrate that his motive for murdering Vang was to prevent Vang from testifying against him. Id. at 269-70. Relying on our precedent, and the policies underlying the Confrontation Clause, we held that the State did not have to prove that the motive for Vang’s murder was Her’s desire to silence her. Id. at 270-74. Rather, we held that the State’s demonstration that Her was responsible for Vang’s absence from the trial was sufficient to sustain application of the forfeiture-by-wrongdoing doctrine. Id. at 274-75.
Approximately one month after we decided Her I, the U.S. Supreme Court decided Giles v. California, 128 S. Ct. 2678 (2008), which also addressed application of the forfeiture-by-wrongdoing doctrine in the context of a murder case. The Supreme Court held that to invoke the forfeiture-by-wrongdoing doctrine, the State must show, not only that the defendant was responsible for the killing, but also that he committed the killing with the intent of preventing the victim from testifying against the defendant. Id. at 2684. This case now returns to us from the Supreme Court for our renewed consideration of Her’s Confrontation Clause claim in light of Giles.
We begin our analysis with a discussion of Giles. In Giles, the State of California charged the defendant in connection with the murder of his former girlfriend. The State sought to introduce statements that the victim made to the police three weeks before the murder in which she told the police the defendant had assaulted her and had threatened to kill her if he caught her cheating on him. Giles, 128 S. Ct. at 2681-82. The California Court of Appeals upheld the admission of this evidence, concluding that the defendant had forfeited his confrontation rights because he had committed the intentional killing that rendered the victim unavailable to testify. Id. at 2682. The California Supreme Court affirmed on the same grounds. Id.
The U.S. Supreme Court overturned the California Supreme Court decision. The Court held that the forfeiture-by-wrongdoing doctrine permits unconfronted testimony of a murder victim into evidence only if there is a showing that the defendant killed the declarant with the intent of preventing the declarant from testifying. Id. at 2684. Because the California courts failed to inquire into the defendant’s intent in killing the victim, the U.S. Supreme Court vacated the decision. Id. at 2693. The Supreme Court remanded the case to the California courts to consider evidence of the defendant’s intent. Id.
The State argues that a remand for an evidentiary hearing on the issue of Her’s intent is necessary to reach a determination of whether Her forfeited his confrontation rights under Giles. Her objects to a remand for two reasons. First, Her argues that a remand is unnecessary because Giles did not announce a new standard. Second, Her argues that even if Giles did change the law regarding application of the forfeiture-by-wrongdoing doctrine, the evidence in the record is sufficient for this court to decide as a matter of law that Her did not forfeit his right to confront Vang. We consider each of Her’s arguments in turn.
Her argues that remand to the district court is not necessary because Giles did not change the law. Specifically, Her contends that “federal and Minnesota caselaw put the [S]tate on notice” of its obligation to prove that a desire to silence Vang motivated Her to murder Vang. We disagree.
A remand to allow the State an opportunity to develop the factual record on an issue is appropriate when, at the time of trial, the law did not require the State to establish a factual record on the issue in question. State v. Wright (Wright II), 726 N.W.2d 464, 482 (2007). As we explained in Her I, under the law in Minnesota and elsewhere at the time of Her’s trial, the forfeiture-by-wrongdoing doctrine did not depend on a showing that a desire to silence the victim motivated the killing in cases where the unavailable witness was also the murder victim. See Her I, 750 N.W.2d at 270-74.
We applied the forfeiture-by-wrongdoing doctrine in this manner in State v. Langley, 354 N.W.2d 389 (Minn. 1984), and the State relied on Langley in the district court to argue that Her forfeited his right to confront Vang. In Langley, a jury found the defendant guilty of drowning his wife in the bathtub. 354 N.W.2d at 391. At trial, the State introduced a variety of hearsay statements of the wife alleging abuse by the defendant and the defendant objected on Confrontation Clause grounds. Id. at 396. We held that the statements were properly admitted, explaining that the defendant “cannot invoke his sixth amendment rights as a shield to protect him from the ramifications of having murdered his wife . . . because the evidence is strong that he has been the instrument of the denial of his own right of cross-examination.” Id. at 400.
Her argues that the State should not have limited its evidence on the forfeiture issue based on Langley. According to Her, the State’s reliance on Langley was misplaced because Langley was an “anomaly” among our forfeiture decisions. But we rejected the argument that Langley was out of step with our forfeiture law in Her I when this argument was offered by the concurrence. Her I, 750 N.W.2d at 299 (Page, J., concurring) (arguing that “Langley is an anomalous outlier” and citing State v. Fields, 679 N.W.2d 341, 347 (Minn. 2004); State v. Peirce, 364 N.W.2d 801, 807-08 (Minn. 1985); State v. Hansen, 312 N.W.2d 96, 103-105 (1981), abrogation on other grounds recognized by State v. Bobadilla, 709 N.W.2d 243 (Minn. 2006); State v. Olson, 291 N.W.2d 203, 207 (Minn. 1980); State v. Black, 291 N.W.2d 208, 214 (Minn. 1980), abrogation on other grounds recognized by State v. Jones, 556 N.W.2d 903 (Minn. 1996)). Her cites these same cases in advancing his argument that Langley did not govern what the State needed to prove on the forfeiture question. We addressed these cases in Her I and found them inapposite because they do not address application of the forfeiture-by-wrongdoing doctrine in the context of a murder case where the out of court declarant was also the murder victim. Her I, 750 N.W.2d at 270 & n.11 (distinguishing cases cited by Her and the concurrence from murder cases for purposes of forfeiture analysis). At the time the parties litigated the forfeiture question in the district court, Langley was controlling authority in Minnesota on the application of the forfeiture-by-wrongdoing doctrine in a case where the murder victim was also the unavailable witness.
In Langley, we did not require any showing that the defendant intended to prevent his wife from testifying against him. 354 N.W.2d at 400. Indeed, as Her pointed out at oral argument, there was evidence in Langley that, approximately four years before the murder, the defendant had threatened to murder the victim if she reported his abuse to the police. The State referenced this threat in its brief in Langley, but we did not even discuss it in our opinion. Evidence of this type of threat would be relevant evidence under the standard announced in Giles. 128 S. Ct. at 2693 (noting that “threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry”). The absence of any mention of the threat in our opinion, however, provides further support for our conclusion in Her I that under Minnesota law, application of the forfeiture-by-wrongdoing doctrine did not depend on an assessment of the defendant’s motive for the murder. Langley, 354 N.W.2d at 400; Her I, 750 N.W.2d at 274.
In Her I, we adhered to Langley in concluding that Her forfeited his confrontation claim. Her I, 750 N.W.2d at 274-75. Our precedent required a showing of intent before the forfeiture-by-wrongdoing doctrine applied in the murder context. But unlike Giles, the relevant intent under our precedent, and that of other states including California, was the defendant’s intent to kill the victim. See id. at 269-74. Giles requires a different type of intent. Giles requires not only that the defendant intend to kill the victim, but also that the defendant killed the victim with the intent of preventing the victim from testifying. Giles, 128 S. Ct. at 2684. This is a change in the law from Langley, and we therefore reject Her’s argument that Giles did not sufficiently change the law regarding forfeiture in Minnesota to warrant a remand. Because our law did not require an examination of Her’s motive for killing Vang, the State cannot be said to have had the opportunity to develop a factual record regarding Her’s intent when it was litigating the applicability of the forfeiture-by-wrongdoing doctrine at the district court. See Wright II, 726 N.W.2d at 482 (concluding that, in light of the intervening decisions in Crawford and Davis, the State had not waived the opportunity to develop a further factual record on the issue of forfeiture).
We turn next to Her’s alternative argument that even if Giles changed the law, the record establishes that the State cannot meet the standard articulated in Giles, and that therefore a remand is not necessary. After Giles, the forfeiture-by-wrongdoing doctrine allows the introduction of a murder victim’s unconfronted testimonial statements if the victim was murdered to prevent the victim from being a witness. 128 S. Ct. at 2684. We have recognized that issues of intent, such as the Giles intent-to-silence requirement, are inherently fact-driven. See, e.g., State v. Fratzke, 354 N.W.2d 402, 409 (Minn. 1984) (stating that “intent is primarily a question of fact”). The district court is the best place in which to undertake the inherently fact-driven intent analysis that Giles requires.
But Her contends that we need not remand the question of his intent to the district court. Specifically, Her argues that the record establishes that he did not kill Vang because he wanted to keep her from being a witness against him. For example, Her notes that the State argued at trial that Her murdered Vang because “he didn’t want to live his life without her.” Her also argues that the additional evidence the State seeks to offer on remand, including evidence relating to a domestic assault charge pending at the time of Vang’s murder and Vang’s order for protection, is insufficient as a matter of law to satisfy Giles.
The State responds that remand is necessary and argues that an intent-to-silence does not have to be the sole motive for the murder. The State relies on federal appellate decisions interpreting Federal Rule of Evidence 804(b)(6) (2008), which have held that to show forfeiture under Rule 804(b)(6), the State must show that the defendant was motivated only in part to silence the victim. See, e.g., United States v. Gray, 405 F.3d 227, 242 (4th Cir. 2005) (“Although the Rule requires that the wrongdoing was intended to render the declarant unavailable as a witness, we have held that a defendant need only intend ‘in part’ to procure the declarant’s unavailability.”); United States v. Dhinsa, 243 F.3d 635, 654 (2d Cir. 2001) (“The government need not, however, show that the defendant’s sole motivation was to procure the declarant’s absence; rather, it need only show that the defendant ‘was motivated in part by a desire to silence the witness.’ ” (internal citation omitted)); United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996) (“Moreover, it is sufficient in this regard to show that the evildoer was motivated in part by a desire to silence the witness; the intent to deprive the prosecution of testimony need not be the actor’s sole motivation.”). Her does not discuss these cases in his brief nor does he directly respond to the State’s argument that an intent-to-silence need not be the sole motive for the murder. But implicit in Her’s argument—that the State’s evidence as to his intent is insufficient as a matter of law—is the suggestion that Giles requires that an intent-to-silence be the sole motive for the murder.
Because the State has not yet developed the factual record under the Giles rule, we conclude it would be premature for us to determine, at this stage, whether an intent-to-silence must be the sole motive for Vang’s murder. See In re McCaskill, 603 N.W.2d 326, 327 (Minn. 1999) (noting that appellate courts “decide only actual controversies and avoid advisory opinions”). This question will be better resolved with the benefit of a full evidentiary record developed on remand on the issue of Her’s intent.
Moreover, a remand comports with the Supreme Court’s treatment of the forfeiture question in Giles. See 128 S. Ct. at 2680 (“Here, the state courts did not consider Giles’ intent, which they found irrelevant under their interpretation of the forfeiture doctrine. They are free to consider intent on remand.”). Remand is also consistent with our precedent. See, e.g., State v. Warsame, 735 N.W.2d 684, 696-97 (Minn. 2007); Wright II, 726 N.W.2d at 482 (“Given the circumstances of this case and in particular, the state of the law interpreting the Confrontation Clause at the time of Wright's trial, we hold that the state has not waived the opportunity to present additional evidence to further develop a factual record on forfeiture.”); State v. Weekes, 250 N.W.2d 590, 594–95 (Minn. 1977) (remanding to district court for new evidentiary hearings in light of a U.S. Supreme Court decision changing the rules for finding attenuation of a Fourth Amendment violation).
The district court should resolve in the first instance whether the evidence the State proffers is insufficient, as Her contends, to satisfy the Giles standard. The Supreme Court’s emphasis on the relevance of the domestic violence context to the intent requirement should be helpful in making this determination. Giles, 128 S. Ct. at 2692-93. As the Supreme Court acknowledged in Giles, the context of domestic violence is relevant to the forfeiture question because “[a]cts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions.” Id. at 2693. Thus, “[e]arlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help” could be helpful to the question of forfeiture, “as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.” Id.; see also State v. McLaughlin, 265 S.W.3d 257, 272, 273 n.10 (Mo. 2008) (noting that Giles “clarified” “[t]he parameters of the forfeiture by wrongdoing doctrine” and upholding trial court’s determination that defendant forfeited his right to confront the murder victim based on the defendant’s prior acts of domestic violence committed “during the time that [the victim] was attempting to break from the relationship and had filed for orders of protection and sought protection from the police so that she could safely go from work to home.”).
On remand, the State should be given the opportunity to establish, by a preponderance of the evidence, that Her forfeited his confrontation claim by killing Vang with the intent to prevent her from testifying against him. If the State is able to prove that forfeiture occurred, the district court shall enter an order denying a new trial. If the State is unable to prove that forfeiture occurred, the district court shall reverse the conviction and order a new trial that does not include Vang’s statements to Officer Baumhofer.
I respectfully dissent. Our court rests its remand decision on the false conclusion that Giles v. California, 128 S. Ct. 2678 (2008), announced a new rule of law changing the requirements of the forfeiture-by-wrongdoing doctrine. Based on that false conclusion, our court concludes that remand is necessary to give the State an opportunity to develop a factual record regarding Her’s intent to procure Vang’s unavailability. Such a reading of Giles is without legal support and is absurd. The stark reality, which the court would like to ignore, is that Giles was not an announcement of a new rule or principle of law but rather the rejection of various courts’ attempts to create a murder exception, lacking any basis in common law, to the forfeiture-by-wrongdoing doctrine. Any question on this point was answered by the Giles Court itself when it said, “We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter. The judgment of the California Supreme Court is vacated.” Giles, 128 S. Ct. at 2693.
In sum, our interpretation of the common-law forfeiture rule is supported by (1) the most natural reading of the language used at common law; (2) the absence of common-law cases admitting prior statements on a forfeiture theory when the defendant had not engaged in conduct designed to prevent a witness from testifying; (3) the common law’s uniform exclusion of unconfronted inculpatory testimony by murder victims (except testimony given with awareness of impending death) in the innumerable cases in which the defendant was on trial for killing the victim, but was not shown to have done so for the purpose of preventing testimony; (4) a subsequent history in which the dissent’s broad forfeiture theory has not been applied. The first two and the last are highly persuasive; the third is in our view conclusive.
Notwithstanding the fact that for over 400 years the forfeiture-by-wrongdoing doctrine has required a showing that the defendant intended to procure the witness’s absence for the purpose of preventing the witness from testifying, our court still insists that at the time of State v. Her (Her I), 750 N.W.2d 258 (2008), the “forfeiture-by-wrongdoing doctrine did not depend on a showing that desire to silence the victim motivated the killing in cases where the unavailable witness was also the murder victim.” That insistence cannot credibly be maintained. The Supreme Court is charged with the task of interpreting the Federal Constitution and our court’s misapplication of the forfeiture-by-wrongdoing doctrine in one case, State v. Langley, 354 N.W.2d 389 (Minn. 1984), could not and did not create a different constitutional standard for Minnesota as opposed to the rest of country. See Webster v. Reprod. Health Servs., 492 U.S. 490, 518 (1989) (holding that apart from a constitutional amendment, the United States Supreme Court “is the only body able to make needed changes” to the Constitution).
Yet, in its decision today, our court still fails to acknowledge that Langley was simply a perversion of the forfeiture doctrine crafted for unknown and unexplained reasons to make an end run around the Confrontation Clause. While our Langley decision speaks for itself, that is all it does. As noted in my concurrence in Her I, in the years between Langley and Her I, our court did not cite or otherwise follow Langley’s forfeiture-by-wrongdoing approach. See Her I, 750 N.W.2d at 298-99 (Page, J., concurring). Instead, every case before Langley and every case after Langley, with the notable exception of Her I, followed the approach reaffirmed by the Supreme Court in Giles. Langley cannot be said to be anything other than an anomalous outlier. Our court’s reliance on Langley in Her I for the existence of an unwritten “murder exception” to the Confrontation Clause was absurd then, and our court’s insistence that until Giles Minnesota’s Confrontation Clause standard was somehow different than the rest of the country is equally absurd now. Having failed to raise or establish at trial Her’s intent to prevent Vang from being a witness at trial, the State is not entitled to a remand for a second bite at the apple.
ANDERSON, Paul H., Justice (dissenting).
I join in the dissent of Justice Page, but I write separately because I see the point of disagreement between the majority and the dissent in a slightly different way. At its core, the disagreement between the majority and the dissent is over what it means to announce a new rule or principle of law. The majority takes the position that when the United States Supreme Court interprets the United States Constitution to grant broader protections than we have granted the Supreme Court’s interpretation represents a new principle of law. I disagree. I would characterize our interpretation of the U.S. Constitution in State v. Langley, 354 N.W.2d 389 (Minn. 1984), as having been a misinterpretation, and characterize the Supreme Court’s interpretation in Giles v. California, 128 S. Ct. 2678 (2008), as a correction of that misinterpretation, not as the announcement of a new principle of law. The Supreme Court is, after all, the final interpreter of the U.S. Constitution. That said, I would not go as far as Justice Page to call the majority’s characterization absurd, nor would I characterize our misinterpretation of the U.S. Constitution in Langley as a perversion.
 Under this statute, it is first-degree murder to “cause the death of a human while committing domestic abuse, when the perpetrator has engaged in a past pattern of domestic abuse.” Minn. Stat. § 609.185 (a)(6).
 The domestic assault charge was not dropped until December 2005.
 The State argues that we need not reach the issue the Supreme Court remanded to us because any error the district court made in admitting Officer Baumhofer’s testimony was harmless. In essence, the State contends that even without Vang’s allegation that Her abused her at the St. Paul restaurant, the evidence was sufficient as to the element of past pattern. Because the State did not argue that the admission of Vang’s allegation was harmless during the first appeal, we decline to reach this issue here. See Her I, 750 N.W.2d at 269 n.10. The State also requests that we remand to the district court the question of whether Vang’s statements to Baumhofer were testimonial in light of Davis. But the State did not request a remand on this issue during the first appeal. Accordingly, we decline to consider this issue now and deny this portion of the State’s motion for remand.
 We noted that the rule we followed in Minnesota in murder cases was the same as that followed in other states, including California, and we specifically referred to the California Supreme Court’s decision in Giles. Her I, 750 N.W.2d at 271 (citing People v. Giles, 152 P.3d 433, 443 (Cal. 2007), rev’d sub nom. Giles v. California, 128 S. Ct. 2678 (2008)).
 Her also cites dicta from State v. Wright (Wright I) for the proposition that intent to silence a witness is required for a court to find forfeiture. See 701 N.W.2d 802, 815-16 (Minn. 2008), vacated and remanded for reconsideration in light of Davis v. Washington, 547 U.S. 813 (2006). Like all of the other cases upon which Her relies, Wright I is inapposite to the issue because it is not a murder case in which the unavailable witness is also the murder victim, but a witness-tampering case where the defendant was facing charges of assault and illegal possession of a firearm.
 The State does not argue that we can rule as a matter of law under Giles that the facts already established in Her I are sufficient to find forfeiture-by-wrongdoing and thus, we do not address that question.
 Although we ruled as a matter of law in Her I that forfeiture-by-wrongdoing applied, this was possible because, under the old standard, once the prosecution had established by a preponderance of the evidence that the defendant was responsible for the victim’s death, the out-of-court statements of the victim could be admitted under the forfeiture-by-wrongdoing exception. See Her I, 750 N.W.2d at 274-75. No factually intensive findings regarding motive were necessary. The rule announced by the Giles court requires additional factual findings not made by the district court.
 The State also argues that full confrontation rights do not attach at a preliminary evidentiary hearing and therefore, that, on remand, the State should be able to introduce unconfronted testimonial statements that might not be admissible at trial in support of its argument that Her forfeited his confrontation claim. In support of this argument, the State cites three recent state supreme court decisions that have held that Crawford does not apply to pretrial suppression hearings. See State v. Harris, 998 So.2d 55, 56 (La. 2008); State v. Rivera, 192 P.3d 1213, 1218 (N.M. 2008); State v. Woinarowicz, 720 N.W.2d 635, 641 (N.D. 2006). Her does not address this issue in his brief. For the same reason discussed in response to the issue the State raises about motive, we likewise decline to reach this issue at this stage of the proceedings.
 A remand to allow the State an opportunity to develop the factual record on an issue is appropriate when at the time of trial the law did not require the State to establish a factual record on the issue in question. State v. Wright (Wright II), 726 N.W.2d 464, 482 (2007). The State waives the right to raise an issue by failing to take advantage of an opportunity to build a factual record when it has ample opportunity to do so. See State v. Garza, 632 N.W.2d 633, 637 (Minn. 2001). Having had the opportunity at trial in this case and having failed to raise the forfeiture issue then, the issue has been waived.
 We have held that a Supreme Court holding constitutes a new rule of law “if it ‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal Government,’ or was not ‘dictated by precedent existing at the time the defendant’s conviction became final.’ ” O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004), abrogation recognized by (quoting Graham v. Collins, 506 U.S. 461, 467 (1993)). The Court’s holding in Giles did not “break new ground” or “impose a new obligation on the state, or federal government” and was “dictated by precedent existing at the time the defendants conviction became final.” See id.
 A witness having been “detained by the means or procurement of the prisoner,” provided a basis to read testimony previously given at a coroner’s inquest. Lord Morley’s Case, 6 How. St. Tr. 769, 770-71 (H.L. 1666); Queen v. Scaife, 117 Q.B. 238, 242, 117 Eng. Rep. 1271, 1273 (K.B. 1851) (“kept away”); Harrison’s Case, 12 How. St. Tr. 833, 851 (H.L. 1692) (“made him keep away”); see also Motes v. United States, 178 U.S. 458, 471-74 (1900) (holding that it would not be “consistent with the [Confrontation Clause] to permit the deposition or statement of an absent witness (taken at an examining trial) to be read at the final trial, when it does not appear that the witness was absent by the suggestion, connivance or procurement of the accused.”); Reynolds v. United States, 98 U.S. 145, 158 (1879) (holding that when a witness is absent by the defendant’s “wrongful procurement,” the defendant “is in no condition to assert that his constitutional rights have been violated” if “their evidence is supplied in some lawful way.”).
 The Federal Rules of Evidence provide further evidence, if any is needed, that Giles was simply a reaffirmation of the common law forfeiture-by-wrongdoing doctrine. In 1997, the Supreme Court approved a Federal Rule of Evidence, entitled “Forfeiture by wrongdoing,” which applies only when the defendant “engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Fed. R. Evid. 804(b)(6). The Court described 804(b)(6) as a rule “which codifies the forfeiture doctrine.” Davis v. Washington, 547 U.S. 813, 833, (2006).
 See, e.g., Wright II, 726 N.W.2d at 475-76; State v. Fields, 679 N.W.2d 341, 347 (Minn. 2004); State v. Byers, 570 N.W.2d 487, 494-95 (Minn. 1997); State v. Peirce, 364 N.W.2d 801, 807-08 (Minn. 1985); State v. Hansen, 312 N.W.2d 96, 103-105 (1981), abrogation on other grounds recognized by State v. Bobadilla, 709 N.W.2d 243, 248 (Minn. 2006); State v. Olson, 291 N.W.2d 203, 206-07 (Minn. 1980); State v. Black, 291 N.W.3d 208, 213-14 (Minn. 1980), abrogation on other grounds recognized by State v. Jones, 556 N.W.2d 903, 909 (Minn. 1996). Interestingly, in Her I, our court recognized that with the exception of murder cases, application of the forfeiture-by-wrongdoing doctrine in Minnesota required a showing that the defendant intended to procure the absence of the witness. 750 N.W.2d at 270 (holding that Wright II and similar cases are not controlling because “imposing the additional motive element [in murder cases] is inconsistent with the equitable notions underlying the forfeiture-by-wrongdoing doctrine”).
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This lawsuit, now pending appeal to Washington’s intermediate appellate court, seeks to enforce a constitutional limit on legislative power. Article II § 37 of the state constitution requires that “No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.” Plaintiffs are challenging a 2015 act that purported to allow a local government (Sound Transit, a regional transportation district) to levy a motor vehicle excise tax (“MVET”). A 2006 statute was already in place that specified how vehicles would be valued. The 2015 act didn’t use the current valuation schedule, but instead directed the use of a repealed 1996 act in lieu of the 2006 statute as the basis for calculating a motor vehicle excise tax. Instead of setting forth “at full length” the 2006 statute and showing how it was being amended, the 2015 act simply said “Notwithstanding any other provision . . . .” Article II § 37 of the state constitution provision has repeatedly been invoked, successfully, by Sound Transit, to invalidate legislation obliging it to reduce taxes. Plaintiffs intend to see it applied to require the same level of strict compliance with the state constitution when legislation raises taxes.
An MVET is an annual tax levy, paid together with vehicle registration. The tax is calculated by multiplying the tax rate times a vehicle’s starting value (often MSRP), times a valuation schedule or depreciation schedule that establishes by statute the decrease in value of a vehicle by age. MVETs have had a rocky and contentious history in Washington state, leading to the current litigation. CPSRTA, or Sound Transit, first received authority to levy an MVET at 0.3% of vehicle value starting in 1999. It issued bonds secured by that MVET revenue. The measure met with substantial opposition after imposition, in part due to the perception that the valuation schedule taxed vehicles based on gross overstatements of value. A statewide initiative repealed the authorization, and in ensuing litigation the state supreme court held that the repeal substantially impaired those bond contracts. Further, it held, it could not require Sound Transit to exercise its contractual authority to retire the bonds immediately, and therefore, Sound Transit could continue to levy the MVET for so long as the bonds remained outstanding.
In 2006, the legislature enacted a new valuation schedule, codified at RCW 82.44.035. The schedule lowered taxable value of vehicles by about 25% as compared to the repealed schedule. The schedule applies to “any locally imposed motor vehicle excise tax,” but Sound Transit took the position that it was not required to use the new schedule for its existing MVET. Legislative history documents confirm that the 2006 legislature discussed the cost to Sound Transit of paying the Department of Licensing to use two valuation schedules in parallel only if and when it instituted a new MVET while its old MVET remained in force, and in 2010 the legislature confirmed that Sound Transit could continue to use the repealed schedule for the 1999 MVET.
In 2015 the legislature passed a bill that, among other things, authorized a new Sound Transit MVET. In doing so, it rendered the 2006 valuation schedule inapplicable for so long as the 1999 bonds remained outstanding. It did so by broad reference to the chapter in which the valuation schedule is codified, stating that the existing contents of that chapter should be disregarded in favor of the chapter as it existed in 1996 until such time as the old bonds have been retired.
Plaintiffs sued on behalf of the class of aggrieved taxpayers, and moved for summary judgment of the constitutional question prior to addressing class issues. The challenged act reads, in pertinent part, “Notwithstanding any other provision of this subsection or chapter 82.44 RCW . . . [a new MVET] must comply with chapter 82.44 RCW as it existed on January 1, 1996 . . .” According to plaintiffs, this amends existing RCW 82.44.035, which on its face provides the valuation schedule “For the purpose of determining any locally imposed motor vehicle excise tax.” However, the amended section is not set out at full length in the new, amendatory act, triggering review under Article II § 37 of the constitution. While the state supreme court has identified a few exceptions to the requirement, this act does not fall into any of them. Relevant to the arguments presented to the trial court, it is not a complete act that incorporates existing law by reference, because it instead renders existing law inapplicable. It is also not an incidental amendment, because the act establishes an MVET, and the valuation schedule is key to the calculation of the MVET.
The state deferred any defense of constitutionality to Sound Transit, which argued that the first question was not whether the new act amended the old, but whether it was a “complete act.” If so, amendatory or not, Art. II § 37 did not apply. Reading the entire five sentences as though everything referred to in them were actually reproduced in full, a person would understand his tax liability, rendering it a complete act. If it amended an existing act, it did so only incidentally, because the main purpose of the act was to authorize a tax, not establish a valuation schedule. Other statutes had similarly used the word “notwithstanding” to avoid application of existing law, including by suspending application of a law, and yet avoided the Supreme Court evaluating them under Art. II § 37. Therefore, they claimed, Art. II § 37 also did not govern this statute.
In the words of local news coverage, the trial court “provided little rationale for her choice” in adopting Sound Transit’s position. The plaintiffs have noted their appeal to the state’s intermediate appellate court.


CAPITAL TRUST CO. v. CALHOUN.
Mr. T. L. Edelen, of Frankfort, Ky., for plaintiff in error.
Messrs. Charles F. Consaul and Joseph W. Bailey, both of Washington, D. C., for defendant in error.
Proceeding in equity under the law of Kentucky for an accounting from the Capital Trust Company as administrator de bonis non of the estate of Thomas N. Arnold, deceased, and that the estate be settled and distributed.
Defendant in error Calhoun and Calhoun & Sizer, a firm cm posed of C. C. Calhoun and Adrian Sizer, attorneys at law, appeared in the proceeding and by cross-petition prayed judgment against the trust company as such administrator for the sum of $1,504.50, with interest from July 10, 1915.
Thomas N. Arnold, prior to his death, believing that he had a just claim against the United States, entered into a contract with the firm of Calhoun & Sizer and employed it to undertake the prosecution of the claim, and on August 1, 1905, entered into a written contract with it by which in consideration of the services rendered and to be rendered by it in the prosecution of the claim, he agreed to pay it a fee equal in amount to 50 per cent. of whatever sum of money should be awarded or collected on the claim, the payment of which was made a lien upon the claim or upon any draft or evidence of payment that might be issued in liquidation thereof.
January 15, 1912, the Court of Claims made findings of fact in the matter of the claim and stated the amount thereof as $5,051. The court's findings were certified to Congress and that body, by an act approved March 4, 1915 ( 38 Stat. 968, c. 140), made an appropriation for the payment of the claim and the Secretary of the Treasury was directed to pay it.
'That no part of the amount of any item appropriated in this bill in excess of twenty per centum thereof shall be paid or delivered to or received by any agent or agents, attorney or attorneys on account of services rendered or advances made in connection with said claim. It shall be unlawful for any agent or agents, attorney or attorneys to exact, collect, withhold or receive any sum which in the aggregate exceeds twenty per centum of the amount of any item appropriated in this bill on account of services rendered or advances made in connection with said claim, any contract to the contrary notwithstanding. Any person violating the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not exceeding one thousand dollars.' 38 Stat. 996.
June 7, 1915, Calhoun requested the Secretary of the Treasury to issue a warrant to him for the sum of $1,003, which he recited was to be payable to him on account of services as attorney in the claim of the Capital Trust Company against the United States, as appropriated for by the act of Congress, the receipt of said warrant to be taken and accepted as a full and final release and discharge of any claim he had against the United States on account of services in said claim.
Afterward, on July 1, 1915, notice was given to Calhoun, as attorney for the claimant, that in settlement of the claim a check was mailed to him for $1,003, being 20 per cent. of the claim, and to the trust company as administrator de bonis non of Arnold, check for $4,012. A part of this money is still in the hands of such administrator and there is no other property belonging to the estate.
The cross-petition additionally asserts the following: No part of the fee except the sum of $1,003 has been paid and there is a balance due of $1,504.50, with interest from July, 191, the date the money was received by the trust company.
July 10, 1915, Calhoun presented his claim to the administrator duly proved and demanded payment, but payment was refused. The whole of the $1,504.50, there fore, remains unpaid, and he, Calhoun, has a lien upon the fund for the payment, he having accepted the check for $1,003 under protest and only on account. The contract preceded the act of Congress and when the act was passed such contracts were lawful and Congress was without authority to take from him his property without due process of law or just compensation therefor or to deprive him of his liberty of contract.
A demurrer to the cross-petition was overruled and the trust company answered. A detail of its averments is not necessary. It practically admits those of the cross-petition and pleads in defense the provisions of the act of Congress, and also section 3477, R. S. (Comp. St. § 6383).
'This case runs on all fours with Black v. O'Hara's Adm'r, 175 Ky. 623, 194 S. W. 811, where it was held that the act of Congress approved March 14, 1915, appropriating money for the payment of similar claims and containing a similar provision limiting an attorney's fee to 20 per cent. of the amount recovered, was in so far as it attempted to limit the amount of the fee heretofore earned, unconstitutional and invalid.
We encounter at the outset a question upon the form of the judgment. The cross-petition was presented in a proceeding to require an accounting of the administrator of Arnold and the petition asserted a claim and lien upon the money in the administrator's hands received from the United States government. The judgment, however, does not refer to that money or the lien upon it; it provides only that Calhoun recover of the administrator 'the sum of fifteen hundred four and 50/100 dollars, with interest from July 1, 1915, and his costs herein and may have execution,' etc.
If the judgment only etablishes a claim against the administrator to be satisfied, not out of the moneys received from the United States but from other assets of the estate, a situation is presented which it was said in Nutt v. Knut, 200 U. S. 13, 21, 26 Sup. Ct. 216, 50 L. Ed. 348, would not encounter legal objection. In other words, the limitation in the act appropriating the money to 20 per cent. as the amount to be paid to an agent or attorney would have no application or be involved.
But the judgment is construed by the parties as having more specific operation, construed as subjecting the money received from the government to the payment of the balance of Calhoun's fee, doubtless because the estate has no other property. On that account it is attacked by the trust company and defendant by Calhoun. The controversy thus presented is discussed by counsel in two propositions: (1) The validity of the contract independently of the limitation imposed by Congress upon the appropriated money; (2) the power of Congress to impose the limitation as to that money. The latter we regard as the main and determining proposition; the other may be conceded, certainly so far as fixing the amount of compensation for Calhoun's services (we say Calhoun's services, as the appearance of the firm of Calhoun & Sizer was withdrawn), and even so far as the contract provided for a lien, if the distinction made by counsel be tenablethat is, a distinction between a lien on the claim and a lien 'upon any draft or evidence of payment,' to quote from the first agreement, or 'on any warrant which may be issued in payment,' to quote from the second agreement.
So far as the contract fixed the amount of fee it is within the rule of Nutt v. Knut, supra, and, for the sake of the argument, the lien may be conceded to be valid against section 3477, R. S., to the contrary, if it be regarded as having been given, not upon the claim, but upon its evidence, as counsel contend. It may, therefore, not only excape the defect that was held fatal to the lien asserted in Nutt v. Knut, but may claim the support of McGowan v. Parish, 237 U. S. 285, 35 Sup. Ct. 543, 59 L. Ed. 955.
We, however, need not dwell upon the distinctions (their soundness may be disputed) nor upon the contentions based upon them, because, as we have said, we consider the other proposition, that is, the power of Congress over the appropriated money and the limitation of payment out of it to an agent or attorney to 20 per cent. of the claim, to be the decisive one.
In its discussion counsel for Calhoun have gone far afield and have invoked many propositions of broad generalityhave even adduced as impliedly against the power, if we understand counsel, the constitution of the Court of Claims and its jurisdiction as weight in the same direction.
We can only instance some of the points of the argument. The Act of February 26, 1853, c. 80, 10 Stat. 161, now section 823, R. S. (Comp. St. § 1375), is cited as recognizing the right of attorneys to compensation for their services in claims against the United States and it is said that contracts for such compensation have been universally sanctioned as legal. And, further, official statement are adduced to the effect that the Court of Claims is so constituted 'that the successful prosecution of a claim' in it 'is something more than a merely perfunctory performance on the part of counsel'; it is a matter of great business hazard and risk to counsel when done upon purely contingent fees. And in many cases, it is further urged, no other than contingent fees are possible and to deny them is practically to deny the right to counsel. Mr. Justice Miller is quoted from, in Taylor v. Bemiss, 110 U. S. 42, 3 Sup. Ct. 441, 28 L. Ed. 64, in illustration of such result and its injury.
The right to counsel being thus recognized, and recognized antecedently to the contract now involved, it became, counsel contend, a 'pre-existing valid right,' and to take it away is to divest the rightto take it away is to deprive of property of value assured of protection by the Constitution of the United States. To sustain the contentions a number of state cases are cited. Among them is Black v. O'Hara, Adm'r, 175 Ky. 623, 194 S. W. 811, the case which the Court of Appeals regarded as authority for its ruling in the present case.
In a general sense there is force and much appeal in the contentions, but we think they carry us into considerations beyond our cognizance. Liberty in any of its exertions and its protection by the Constitution are of concern. The right to bind by contract and require performance of the contract are examples of that liberty and that protection and they might have resistless force against any interfering or impairing legislation if the contest in the case was simply one between Calhoun and the Arnold estate. But there are other elements to be consideredthere is the element of the condition Congress imposed on the subject-matter of the controversy regarded as a condition of its grant. Relief could only be had through legislation. This was petitioned and the Senate of the United States was prompted to refer the claim to the Court of Claims. A defect of remedy remained even after the court had been thus invoked and had reported the amount and facts of the claim. Further legislation was necessary, but it could not have beenc ompelled; it was optional, not compulsory; and it would seem to require no argument to convince that the terms of its enactment must be taken as expressed and the relief it granted accepted with the condition imposed upon it. Indeed, the proposition is confused by its discussion. And it is certainly difficult to deal with the distinction that counsel makes between preexisting and prospective transactions. The right is absolute and universal and necessarily must be to have any strength at all. It is only arbitrary in the sense that many of the contract between Arnold and Calhoun, have seen there was exertion of one of its powers in the present case not, however, to interfere with or lessen the asserted obligation of the contract between Arnold and Calhoun, but to limit only the application of the money gratuitously appropriated in the payment of attorney's fees. The contention is that this cannot be done, or, to put it another way, that the appropriation, though it could not be compelled, was yet subservient to the contract of Calhoun (and, we may interject, if for 50 per cent. for any per cent. or terms) and that he was entitled to all the contract provided, denuded of the condition imposed upon the appropriation.
The contention has no legal basis, and it may be said it has no equitable one. Neither the justice nor the policy of what sovereignty may do or omit to do can be judged from partial views or particular instances. It is easy to conceive what difficulties beset and what circumstances had to be considered in legislating upon such claims. Definite dispositions were matters of reflection and, it may be, experienceimposition was to be protected against as well as just claims provided for, and, considering claimants and their attorneys in the circumstances, it may have seemed to Congress that the limitation imposed was fully justified, that 20 per cent. of the amounts appropriated would be a proper adjustment between them. We are not concerned, however, to accuse or defend. Whatever might have been the moving considerations, the power exercised must be sustained. Frisbie v. United States, 157 U. S. 160, 15 Sup. Ct. 586, 39 L. Ed. 657; Ball v. Halsell, 161 U. S. 72, 16 Sup. Ct. 554, 40 L. Ed. 622.
The first case dealt with conditions upon pension legislation; the second concerned a claim against the United States on account of Indian depredations. It is, therefore, contended that they are unlike Calhoun's contract with Arnold and that their principle is not applicable. We think otherwise. The legislation passed on was sustained as within the power of government.
We conclude, therefore, that Calhoun's claim for a balance due as fees cannot be paid out of the moneys appropriated by Congress and now in the hands of the administrator de bonis non, or recognized as having any validity as against that fund. Beyond this we need not go.
Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion.
Mr. Justice HOLMES concurs in the result.
Mr. Justice McREYNOLDS took no part in the decision.