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Relist Watch
John Elwood reviews Monday’s relists.
Greetings and welcome to the last Relist Watch of the year. It’s been a time of great excitement for the Supreme Court bar. If it were not enough that the court is reconsidering basic doctrine, there have been exciting moves among the bar itself.
Let me get one non-relisted matter out of the way right at the beginning: The Supreme Court is set to consider at conference tomorrow a motion for a limited remand respondents in the census case filed to permit the lower courts to consider evidence that the Department of Commerce added the citizenship question for the very purpose of suppressing Hispanic participation. [Disclosure: Arnold & Porter is among the counsel to the plaintiffs in this case.] But we also have relists a-plenty: 19 of them. There’s something for everyone: abortion restrictions, the Lanham Act, jurisdiction over foreign states, antidiscrimination law, ERISA, a surprisingly basic Armed Career Criminal Act question and even something called the “Bob Richards” rule. Mind you, there are some relists that seem destined just to be “GVRd” — to have the petition granted, the judgment vacated and the case remanded for further consideration in light of some recently decided case. And, worse yet, some seem destined to have cert denied outright.
That’s all for October Term 2018. Thanks to Sam Callahan, Andrew Tutt and Graham White for helping me sort the wheat from the chaff before the dockets had been updated.
New Relists
Republic of Sudan v. Owens, 17-1236
Issues: (1) Whether plaintiffs suing a foreign state bear a “lighter burden” in establishing the facts necessary for jurisdiction than in proving a case on the merits despite the Supreme Court’s holding to the contrary — at the urging of the solicitor general and the Department of State — in Venezuela v. Helmerich & Payne International Drilling Co.; (2) whether plaintiffs suing a foreign state can establish facts necessary for jurisdiction “based solely upon” the opinion testimony of so-called “terrorism experts,” when the record lacks admissible factual evidence sufficient to establish jurisdiction; and (3) whether the plaintiffs’ failure to prove a foreign state “either specifically intended or directly advanced” a terrorist attack is “irrelevant to proximate cause and jurisdictional causation,” when (i) the Foreign Sovereign Immunities Act’s “terrorism exception” establishes jurisdiction over a foreign state only when the foreign state provided material support “for” a specified act of terrorism, and (ii) proximate causation requires a “direct relationship” between the defendant’s conduct and the resultant injury. CVSG: 05/21/2019.
(relisted after the June 20 conference)
Opati v. Republic of Sudan, 17-1268
Issues: (1) Whether a party who knowingly and intentionally twice defaults; acts to delay, and not in good faith; and affirmatively elects not to contest a nonjurisdictional legal issue before judgment may nevertheless demonstrate “extraordinary” and “exceptional” circumstances warranting appellate review of the forfeited nonjurisdictional legal issue post-judgment; and (2) whether, consistent with the Supreme Court’s decision in Republic of Austria v. Altmann, the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages 28 U.S.C. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute. CVSG: 05/21/2019.
(relisted after the June 20 conference)
Republic of Sudan v. Opati, 17-1406
Issues: (1) Whether the term “extrajudicial killing” means a summary execution by state actors, as is consistent with international law and the statutory text, context and purpose of 28 U.S.C. § 1605A(a); (2) whether foreign sovereign immunity may be withdrawn for emotional-distress claims brought by family members of victims under 28 U.S.C. § 1605A(a)(2)(A)(ii); (3) whether 28 U.S.C. § 1605A(c) provides the exclusive remedy for actions brought under 28 U.S.C. § 1605A(a), and forecloses state substantive causes of action previously asserted through the “pass-through” provision of 28 U.S.C. § 1606; (4) whether the statute of limitations contained in 28 U.S.C. § 1605A(b) is jurisdictional in nature and, if it is not, whether the U.S. Court of Appeals for the District of Columbia Circuit should nonetheless have heard Sudan’s limitations defense asserted through its timely, direct appeal; and (5) whether the undisputed fact of civil war, internal strife and partitioning of Sudan into two counties constitutes excusable neglect or extraordinary circumstances for vacatur under Rule 60(b) of the Federal Rules of Civil Procedure. CVSG: 05/21/2019.
(relisted after the June 20 conference)
Thole v. U.S. Bank, N.A., 17-1712
Issue: (1) Whether an ERISA plan participant or beneficiary may seek injunctive relief against fiduciary misconduct under 29 U.S.C. § 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof; and (2) whether an ERISA plan participant or beneficiary may seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. § 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof. CVSG: 05/21/2019.
(relisted after the June 20 conference)
Hall v. United States, 17-9221
Issue: Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for the same conduct.
(relisted after the June 20 conference)
Harris v. West Alabama Women’s Center, 18-837
Issue: Whether a state ban on dismemberment abortions is unconstitutional where there is a reasonable medical debate that alternatives to the banned procedure are safe.
(rescheduled before the April 12, April 18, April 26, May 9, May 16, May 23, May 30, June 6 and June 13 conferences; relisted after the June 20 conference)
Babb v. Wilkie, 18-882
Issues: (1) Whether the statement in 42 U.S.C. § 2000e-16(a) that “all personnel actions effecting employees or applicants for employment … in executive agencies as defined in Title 5 … shall be made free from any discrimination” permits federal-sector personnel actions that are not made free from any discrimination or retaliation, as long as discrimination or retaliation is not the but-for cause of the personnel action, or rather prohibits personnel actions where discrimination and retaliation is a factor; (2) whether Title VII bans retaliation in federal employment.
(relisted after the June 20 conference)
GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC, 18-1048
Issue: Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a non-signatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.
(relisted after the June 20 conference)
Lucky Brand Dungarees v. Marcel Fashions Group Inc., 18-1086
Issue: Whether, when a plaintiff asserts new claims, federal preclusion principles can bar a defendant from raising defenses that were not actually litigated and resolved in any prior case between the parties.
(relisted after the June 20 conference)
Espinoza v. Montana Department of Revenue, 18-1195
Issue: Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.
(relisted after the June 20 conference)
Romag Fasteners Inc. v. Fossil Inc., 18-1233
Issue: Whether, under Section 35 of the Lanham Act, 15 U.S.C. § 1117(a), willful infringement is a prerequisite for an award of an infringer’s profits for a violation of Section 43(a), 15 U.S.C. § 1125(a).
(relisted after the June 20 conference)
Rodriguez v. Federal Deposit Insurance Corporation, 18-1269
Issue: Whether courts should determine ownership of a tax refund paid to an affiliated group based on the federal common-law “Bob Richards rule,” as three circuits hold, or based on the law of the relevant state, as four circuits hold.
(relisted after the June 20 conference)
Shular v. United States, 18-6662
Issue: Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the Act.
(relisted after the June 20 conference)
Hunter v. United States, 18-7105
Issue: Whether a post-2002 conviction for sale of cocaine or possession of cocaine with intent to sell in violation of Fla. Stat. § 893.13 is a “serious drug offense” as defined in 18 U.S.C. § 924(e)(2)(A)(ii) if, according to the Florida legislature, the state need not prove that the defendant “knew the illicit nature of the substance” he sold or possessed with intent to sell.
(relisted after the June 20 conference)
Patrick v. United States, 18-7797
Issue: Whether, in determining if a prior offense is a qualifying predicate conviction under the Armed Career Criminal Act, courts should employ a categorical approach or a conduct-based approach.
(relisted after the June 20 conference)
Hayes v. United States, 18-7833
Issues: (1) Whether a post-2002 conviction for sale of cocaine or possession of cocaine with intent to sell in violation of Fla. Stat. § 893.13 is a “serious drug offense” as defined in 18 U.S.C. § 924(e)(2)(A)(ii) if, according to the Florida legislature, the state need not prove that the defendant “knew the illicit nature of the substance” he sold or possessed with intent to sell; (2) whether the U.S. Court of Appeals for the 11th Circuit erred in denying petitioner a certificate of appealability because the issue above is debatable among reasonable jurists.
(relisted after the June 20 conference)
Pressey v. United States, 18-8380
Issues: (1) Whether prior convictions under Fla. Stat. §893.13 qualify as “serious drug offenses” for purposes of the ACCA, §924(e)(2)(A)(ii); (2) whether Florida’s resisting-with-violence offense qualifies as an ACCA predicate, where that offense can be committed by only a minimal degree of force.
(relisted after the June 20 conference)
Wilson v. United States, 18-8447
Issue: Whether the U.S. Court of Appeals for the 11th Circuit erred in holding that the petitioner’s drug offense qualifies as a “serious drug offense” under the Armed Career Criminal Act where mens rea is not even an implied element of the definition of a “serious drug offense” in § 924(e).
(relisted after the June 20 conference)
Moody v. United States, 18-9071
Issue: Whether 18 U.S.C. §924(a) provides for criminal penalties to felons who possess firearms in interstate commerce absent proof that they knew of their felon status, or of the firearm’s movement in interstate commerce.
(relisted after the June 20 conference)
Returning Relists
Department of Homeland Security v. Regents of the University of California, 18-587
Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.
(relisted after the January 11, January 18, June 13 and June 20 conferences)
Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.
(relisted after the January 11, January 18, June 13 and June 20 conferences)
Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.
(relisted after the January 11, January 18, June 13 and June 20 conferences)
Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.
(relisted after the April 12, April 18, April 26, May 9, May 16, May 23, May 30, June 6, June 13 and June 20 conferences)
Box v. Planned Parenthood of Indiana and Kentucky, 18-1019
Issue: Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
(relisted after the May 9 and May 16 conferences; now held)
Kelly v. United States, 18-1059
Issue: Whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision.
(relisted after the June 13 and June 20 conferences)
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Opinion analysis: Divided court throws out additional jail time for sex offender
In 2010, Andre Haymond was convicted of possessing child pornography and sentenced to 38 months in prison, followed by 10 years of supervised release. He was also required to register as a sex offender. In 2015, a federal district court sent Haymond back to prison for five more years because he had violated the terms of his supervised release. Haymond argued that the federal law requiring him to return to prison violated his constitutional right to have his sentence determined by a jury, rather than a judge, beyond a reasonable doubt. Today a divided Supreme Court agreed.
Justice Gorsuch with opinion in U.S. v. Haymond (Art Lien)
Today’s decision dealt with a provision of the Adam Walsh Child Protection and Safety Act, which Congress passed in 2006 to “protect the public from sex offenders and offenders against children.” Justice Neil Gorsuch wrote an opinion that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Gorsuch emphasized that only “a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.” But in this case, he observed, “a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt” – which, in his view, violated both the Fifth Amendment’s guarantee of due process and the Sixth Amendment’s right to a jury trial.
Gorsuch also took pains to make clear that he was not saying that a jury will be needed whenever prosecutors are seeking to revoke a defendant’s supervised release. His opinion, he stressed, was limited to this specific statute, which he described as “an unusual provision enacted little more than a decade ago.” Gorsuch acknowledged that requiring a jury for supervised-release revocation proceedings will be “inconvenient for the government.” “Yet like much else in our Constitution,” he maintained, “the jury system isn’t designed to promote efficiency but to protect liberty.”
Justice Stephen Breyer agreed with Gorsuch on the result in the case, but not with his reasoning. In most cases, Breyer contended, the revocation of supervised release is generally understood as “part of the penalty for the initial offense.” When supervised release is violated, he continued, the punishment is for the failure to follow the conditions that the court imposed, rather than for the conduct that prompted the court to revoke the defendant’s supervised release. But in Haymond’s case, Breyer emphasized, the revocation of supervised release is more like a punishment for a new offense – for which the defendant would be entitled to a jury. For that reason, Breyer agreed with Gorsuch that the statute in this case is unconstitutional and that Haymond’s case should be sent back to the lower court for it to decide what to do next.
Justice Samuel Alito dissented, in an opinion that was joined by Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh. Alito was not particularly enthusiastic about Breyer’s opinion, which he described as providing the court’s holding in the case, but he seemed to regard it as preferable to Gorsuch’s opinion, which he characterized as “not based on the original meaning of the Sixth Amendment,” “irreconcilable with precedent” and replete with “rhetoric with potentially revolutionary implications.”
Although Gorsuch did not say so explicitly, Alito warned ominously, Gorsuch’s opinion implied that all supervised-release revocation proceedings will require a jury trial. With nearly 17,000 supervised-release revocation proceedings last year, Alito pointed out, “there is simply no way that the federal courts could empanel enough juries to adjudicate all those proceedings.” “So if every supervised-release revocation proceeding is a criminal prosecution,” Alito posited, “the whole concept of supervised release will come crashing down.”
This post was originally published at Howe on the Court.
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Challengers urge justices not to decide racial-discrimination claim in census case
With less than 24 hours before the justices are expected to issue their final decisions of the term, yet another filing in the dispute over the decision to add a question about citizenship to the 2020 census arrived at the Supreme Court. This one came from the challengers in the case, who urged the justices to turn down the federal government’s request for a ruling that Secretary of Commerce Wilbur Ross did not intend to discriminate against Hispanic voters when he made the decision to include the citizenship question.
The letter from New York Solicitor General Barbara Underwood was the latest in an unusual flurry of filings over the past two days. The case was argued in late April. Normally, the stretch between the oral argument and the announcement of the opinion is relatively (if not completely) quiet, but in late May the challengers notified the court about new evidence that, they said, indicated that the government wanted to add the citizenship question to provide whites and Republicans with an advantage in future elections. Two weeks later, they asked the justices to send the case back to the lower court to allow it to consider that new evidence. The justices have not yet acted on that request.
Although the New York case is before the justices, it is not the only challenge to the decision to include the citizenship question in 2020. In April, a federal judge in Maryland had ruled for civil-rights groups challenging Ross’ decision, but he rejected their claim that Ross had intended to discriminate against Hispanic voters.
The civil-rights groups appealed that ruling to the U.S. Court of Appeals for the 4th Circuit, which yesterday sent the case back to U.S. District Judge George Hazel for him to consider the groups’ discrimination claim in light of the new evidence. In a concurring opinion, Judge James Wynn suggested that Hazel might want to consider whether to temporarily block the government from including the citizenship question on the census questionnaire.
In the wake of the 4th Circuit’s order yesterday, the government wrote to the justices, asking them to decide the question of Ross’ intent in their opinion in the New York case. Doing so, the government reasoned, would allow the court to settle the issue once and for all, and to avoid having to do so in an emergency appeal from the Maryland case.
In a letter on behalf of all of the challengers in the New York case, Underwood urged the justices to deny what she characterized as the government’s “extraordinary request.” The question of whether Ross intended to discriminate against Hispanics wasn’t briefed or argued in this case, she emphasized, except for one “conclusory paragraph” in the government’s brief. Under the Supreme Court’s normal practice, she continued, the justices wouldn’t address this question; it makes even less sense for them to do so when the government’s request is based on “speculative concerns about a potentially adverse decision in a separate case not before this Court.”
This post was originally published at Howe on the Court.
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Opinion analysis: Justices leave agency deference doctrine in place – with limits (Updated)
Editor’s Note: This post, originally published at 11:49 a.m., was expanded at 1:26 p.m.
A divided Supreme Court issued a major opinion on administrative law today. The justices declined to overrule a longstanding line of cases instructing courts to defer to an agency’s interpretation of its own regulation – a doctrine sometimes known as “Auer deference.” But in an opinion by Justice Elena Kagan, the court made clear that the doctrine has limits, and it will not apply in every scenario in which an agency is interpreting its own rules. That was not enough, however, for Justice Neil Gorsuch, who complained that today’s ruling had left the doctrine a “paper tiger” and warned that the court would almost certainly have to address the issue again soon.
Justice Kagan with opinion in Kisor v. Wilkie (Art Lien)
The Auer deference doctrine – named after the 1997 case Auer v. Robbins – is also sometimes called Seminole Rock deference, after the 1945 case Bowles v. Seminole Rock & Sand Co. It rests on the idea that agencies have more expertise in the subject covered by a law than courts do and are therefore better suited to interpret both gaps in a federal law and their own regulations. Supporters of the doctrine also believe that the doctrine provides predictability and consistency: Courts are more likely to uphold regulations, they say, because judges only have to determine whether the agency’s interpretation is reasonable, not whether it is the best interpretation. But opposition to the doctrine has grown in recent years, particularly among conservatives and business groups, who believe that it gave federal agencies too much power.
This high-stakes legal issue came to the Supreme Court in the fairly unremarkable case of James Kisor, a Vietnam veteran who applied for benefits for his post-traumatic-stress disorder. The Department of Veterans Affairs agreed with Kisor that he suffers from PTSD but rejected his request for benefits dating back to 1983. When Kisor appealed the VA’s decision to the U.S. Court of Appeals for the Federal Circuit, the court of appeals deferred to the VA’s interpretation of its own regulation and sided with the agency.
Last year Kisor asked the Supreme Court to weigh in, and today the Supreme Court gave him a partial victory. It declined to overrule the Auer doctrine, as he had asked, but it sent his case back to the Federal Circuit for it to take another look.
In her opinion for the court, Kagan stressed that courts should not reflexively defer to an agency’s interpretation of its own regulation. Instead, she explained, deference should be given only if the agency’s regulation is genuinely ambiguous. If it isn’t ambiguous, she continued, the “regulation then must means what it means—and the court must give it effect, as the court would any law.” And she suggested that courts must try hard to resolve any ambiguities that it thinks it sees in a regulation: She acknowledged that “regulations can sometimes make the eyes glaze over,” but emphasized that “hard interpretative conundrums, even relating to complex rules, can often be solved.”
Even when a regulation is genuinely ambiguous, Kagan continued, that is not enough for deference. First, she indicated, the agency’s interpretation must also be reasonable – which, she warned, is “a requirement an agency can fail.” And the interpretation must also reflect the agency’s official position in an area of its expertise. “The upshot of all this,” Kagan concluded, is that, when it applies, “Auer deference gives an agency significant leeway to say what its own rules mean.” “But,” she cautioned, “that phrase ‘when it applies’ is important—because it often doesn’t.”
Kagan added that the principle of stare decisis – the idea that courts should not overrule their prior cases unless there is a good reason to do so – weighs “strongly” against overruling the Auer doctrine. This is particularly true, she observed, because the doctrine isn’t just one case, but “a long line of precedents—each one reaffirming the rest and going back 75 years or more.” And overruling the doctrine now would inject “so much instability into so many areas of the law,” Kagan suggested, because Auer deference is so widespread.
And in any event, Kagan noted, because this is not a constitutional issue, Congress is free to pass a law that would overrule Auer. “Instead,” she observed, “for approaching a century, it has let our deference regime work side-by-side with” federal administrative laws “delegating rulemaking power to agencies. It has done so even after we made clear that our deference decisions reflect a presumption about congressional intent. And it has done so even after Members of this Court began to raise questions about the doctrine.”
Having outlined these limits on Auer deference, the court sent Kisor’s case back to the Federal Circuit for it to take another look at whether the doctrine should apply there. Kagan suggested that the lower court both “jumped the gun in declaring the regulation ambiguous” and “assumed too fast that Auer deference should apply in the event of genuine ambiguity.”
Justice Neil Gorsuch agreed with the decision to send Kisor’s case back to the Federal Circuit, but he – in a ruling joined in full by Justice Clarence Thomas and in part by Justices Samuel Alito and Brett Kavanaugh – was sharply critical of the court’s decision not to overrule Auer, which he described as “more a stay of execution than a pardon.” He made clear that he would “stop this business of making up excuses for judges to abdicate their job of interpreting the law and simply allow the court of appeals to afford Mr. Kisor its best independent judgment of the law’s meaning.”
Gorsuch characterized the Auer doctrine as “really little more than an accident” that “began as an unexplained aside in a decision about emergency price controls at the height of the Second World War.” The doctrine “sat on the shelf, little noticed, for years,” Gorsuch continued, and only recently came into being as “the reflexive rule of deference to regulatory agencies we know today.”
The doctrine, Gorsuch suggested, is deeply flawed. Among other things, it conflicts with the obligations of courts under the Administrative Procedure Act, which “instructs reviewing courts to ‘decide all relevant questions of law’ and ‘set aside agency action’” that does not comply with the law, and it “sits uneasily with the Constitution,” which gives courts the power to interpret the laws.
It is not at all clear that the principle of stare decisis applies to Auer deference, Gorsuch posited, because the court is not “dealing with a precedent that purported to settle the meaning of a single statute or regulation or resolve a particular case.” Instead, Gorsuch reasoned, the Auer doctrine “claims to do much more than that—to prescribe an interpretative method governing every future dispute over the meaning of every regulation.” But even if the principle of stare decisis does apply, Gorsuch continued, there are still good reasons to overrule Auer, because it is flawed and has not provided a workable standard.
Chief Justice John Roberts agreed with the court’s decision not to overrule Auer and its discussion of the limits on Auer deference going forward. However, both Roberts and Justice Brett Kavanaugh (who, like Gorsuch, agreed only with the result in the case) wrote separately to emphasize that, although Kagan and Gorsuch disagree on whether to keep Auer in place, their approaches “should lead in most cases to the same general destination.” If, Kavanaugh wrote, a court tries hard to resolve any ambiguities in a statute, it “will almost always reach a conclusion about the best interpretation of the regulation at issue” and won’t need to defer to the agency’s interpretation. Roberts and Kavanaugh also took pains to make clear that today’s decision is limited to Auer deference and does not affect the doctrine known as Chevron deference, which generally requires courts to defer to an agency’s interpretation of ambiguous statutes enacted by Congress.
This post was originally published at Howe on the Court.
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Live blog of opinions
We’re live-blogging as the Supreme Court releases opinions in one or more argued cases. Join us. SCOTUSblog is sponsored by Casetext: A more intelligent way to search the law.
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