Tuesday, August 17, 2010
In same-sex marriage appeal, Ninth Circuit surprises Beldar with both composition of panel and results
[UPDATE (Wed Aug 18 @ 9:20 p.m.): Most of my speculation in this post is based on an apparently mistaken premise that I shared with other pundits who were speculating about the Perry case — viz, that the granting of emergency relief, like a stay pending appeal, by a Ninth Circuit motions panel would result in the merits of the appeal then being directed to that same panel. See my new post, which expand on the comments in the last updates below regarding Prof. Rick Hasen's comments in the press. — Beldar]
Along with many other legal pundits, I had predicted — not here, but on August 8 and again on August 13 in comments over on Patterico's blog — that the Ninth Circuit would refuse to stay U.S. District Judge Vaughn R. Walker's decision striking down California's "Proposition 8" state constitutional amendment that re-established the exclusivity of opposite-sex marriage there.
Today the Ninth Circuit proved my prediction wrong in a remarkable page-and-a-half order, the operative language of which amounts to less than a dozen sentences — but each of them is significant.
My prediction was not based on my view of what ruling would have been proper under the law — and for the record, let me promptly confirm that I think a stay is entirely appropriate, and that in due course Judge Walker's decision should be reversed and rendered by the appellate courts — but rather upon my admittedly cynical expectations based on my perception of the politics of the particular Ninth Circuit judges who I expected to be on the three-judge panel that would rule on the appellants' stay application: U.S. Circuit Judges Kim McLain Wardlaw, Raymond C. Fisher, and Marsha Siegel Berzon, all Clinton appointees who hail, respectively, from Pasadena, Pasadena, and San Francisco.
My friend and California/Ninth Circuit practitioner Patterico points out to me by email that these three judges comprise the Ninth Circuit's standing motions panel for August 2010, having been "[pre-]assigned [by the Ninth Circuit Clerk's office, under the administration of the Chief Judge, Alex Kozinski,] to consider ready substantive motions matters" which arise during that month. Every circuit maintains such a panel — emergency motions like this are sometimes purely procedural, sometimes somewhat substantive, but generally amount to "judicial scut-work" most of the time — and the membership of such panels typically rotates automatically, with different members serving every month. (For posterity, since the current page on the Ninth Circuit website listing members of the motions panel for August 2010 will change next month, here's a link to a .pdf capture of that page as of tonight.)
My prior understanding, however, was that the Ninth Circuit — like the Fifth, when I clerked for one of its judges way back in 1980-1981 — would automatically bypass the rotating motions panel when there was a subsequent appeal or emergency motion from a case that had already been heard by a prior Ninth Circuit panel, even if that was just a prior motions panel (as opposed to a panel that had heard a full appeal on the merits from a district court final judgment). Judges Wardlaw, Fisher, and Berzon — who, I assume, were the three members of an earlier motions panel — had heard and denied the earlier stay application last December in connection with Judge Walker's original ruling permitting the trial to be televised. So my assumption (shared by many other legal pundits) was that those same three judges would hear this motion too.
Some other facts that may or may not be, or become, significant:
- Judges Leavy and Hawkins are senior status judges. Senior status judges normally don't participate in the internal debate or voting on whether a panel decision should be reheard by the full circuit sitting en banc, which can sometimes affect the internal court dynamics of an appeal as it works it way through the circuit-court level and before it's considered by the SCOTUS.
- Judge Leavy was appointed by President Reagan, and Judges Hawkins and Thomas were Clinton appointees, but I don't know much more about them than that and the other very basic information in the Federal Judicial Center's biographical database.
- Although the Ninth Circuit is headquartered in San Francisco and appeals from the four Californa federal districts make up the majority of Ninth Circuit cases, there are other western states in the circuit, with circuit judges appointed from each; somewhat improbably, however, none of the three judges on this panel lives in California: Judge Leavy lives in Portland, Judge Hawkins in Phoenix, and Judge Thomas in Billings. Before I learned that they're on the August motions panel, I wondered whether perhaps Wardlaw, Fisher, and Berzon had been disqualified or had recused themselves based on their California citizenship. (FWIW, I don't think such recusal/disqualification is required.)
In addition to staying the effect of Judge Walker's decision, the panel sua sponte — that is, on "its own motion," without anyone connected to the case asking it to — set the case for an expedited appeal, on an accelerated briefing schedule shorter than the default deadlines established by the Federal Rules of Appellate Procedure that had already been applied to this appeal. The panel also announced that no exceptions or extensions are likely to be granted. (This same panel would hear such procedural motions.) And the panel also directed that the appellants "include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing," thereby ensuring that the standing issues will be fully briefed by both sides as part of the consideration of the merits of the appeal.
I'm still looking into this, and will quite possibly have updates to this post depending on what I find.
UPDATE (Tue Aug 17 @ 12:25 a.m.): This is from the Court Structure and Procedures preface to the Ninth Circuit Rules, under section E(4) on "Court Procedures for Processing and Hearing of Cases":
The only exception to the rule of random assignment of cases to panels is that a case heard by the Court on a prior appeal may be set before the same panel upon a later appeal. If the panel that originally heard the matter does not specify its intent to retain jurisdiction over any further appeal, the parties may file a motion to have the case heard by the original panel. Matters on remand from the United States Supreme Court are referred to the panel that previously heard the matter.
This sort of rule is common in both state and federal court systems, and it's intended to promote judicial economy by directing particular cases to judges who may already be "up to speed" on them. It's not unknown for such rules to generate some gamesmanship by the litigants, however, and more rarely, even by judges or clerks' office personnel. Typically if there's any question about how or whether such a rule applies in a given case, the clerk turns for an answer to the chief judge. And the administrative power to make such procedural rulings is, as a practical matter, an important adjunct of a chief judge's power as "first among equals" on any given court.
What's currently before the Ninth Circuit does have a different Ninth Circuit docket number (No. 10-16696) from the proceedings on the trial televising ruling (No. 09-17241), so it's possible that someone in Clerk Molly C. Dwyer's office either never considered directing this stay motion to the earlier panel, or else thought about it and concluded, "Nope, this is not a 'later appeal' from the 'same matter' within the meaning of the rule." Or the Ninth Circuit Clerk's office may have a standing, but (perhaps) unwritten, rule that prior decisions by mere motions panels don't count unless it's for another procedural motion that's from the same stage of an appeal (e.g., also from after a final judgment), such that a prior motions panel ruling from an emergency interlocutory appeal just doesn't qualify for the re-assignment rule.
On the Ninth Circuit's helpful web page accumulating filings from this case, I don't see any separate motion by the respondents (that is, the ssm-proponents who won before Judge Walker) asking for their opponents' stay motion to be assigned back to the same panel that had heard the earlier motions in connection with televising the trial. That might turn out to have been a tactical blunder by Olsen and Boies and their allies, perhaps based on their assumption that the Clerk would make that re-assignment automatically.
As for whether this same motions panel will — by virtue of having ruled on the stay application and, sua sponte, on the briefing schedule — will now be assigned the appeal on the merits, I just don't know the answer to that question. Before today, I would have said "yes" with some confidence. But if the Wardlaw-Fisher-Siegel panel didn't hear the stay application, I'm not sure whether the Leavy-Hawkins-Thomas panel will hear the merits, especially given that two members of the latter are senior status judges.
UPDATE (Tue Aug 17 @ 12:55 a.m.): There was a tip-off as to who the panel would be: On Friday, August 13, there was a short order from the current motions panel — Leavy-Hawkins-Thomas — granting the appellants' motion for leave to exceed the normal page limitations in connection with their stay application. But it's Docket No. 14 in the Ninth Circuit's docket. Even with instantaneous service by email, Olsen, Boies et al. probably did not have had that order in-hand when they prepared and filed their response (which has Docket No. 9 and was e-filed on that same date). I haven't read them yet, but a word-search of the .pdf files indicates that the word "panel" doesn't appear in either their response or the responses filed by their allies fighting the stay (the City & County of San Francisco and, despicably, the California Attorney General).
Others (besides me and Patterico) who had speculated that the Wardlaw-Fisher-Berzon panel would hear the appeal on the merits include Orin Kerr at the Volokh Conspiracy and bmaz at Empty Wheel/Firedoglake. Prof. Kerr added a parenthetical edit, perhaps presciently: "(edit: just to be clear, I mean the Ninth Circuit merits panel, not the motions panel that will hear the stay denial in the next few days)." But if the above-quoted provision of the Ninth Circuit rules didn't even get this stay motion back to the Wardlaw-Fisher-Berzon panel, then why would it get the decision on the merits back to them? And will it even get the case back to the Leavy-Hawkins-Thomas panel?
UPDATE (Tue Aug 17 @ 1:35 a.m.): The Advocate (h/t AllahPundit at Hot Air) quotes representatives from the California AG's office (heh) and the legal teams seeking to overturn the ssm-amendment as saying they won't ask the SCOTUS to overturn the stay. Presumably that also means they won't seek panel or en banc reconsideration of the stay at the Ninth Circuit level either. As for how it's being spun:
"We are very cognizant of the fact that many people wanted to get married as soon as possible, and that's why we so strongly opposed the stay," plaintiffs' attorney Ted Boutrous, who argued the case alongside lead attorneys Ted Olson and David Boies, told The Advocate. "But at the same time, had the stay not been entered, it may have been harder to get such an expedited briefing schedule in the case."
Another legal source, who declined to be named, said that had the ninth circuit ruled against a stay, an appeal by Prop. 8 supporters to the Supreme Court could have been harmful to Olson and Boies's highly strategical [sic] case. "When you have an important constitutional issue, as is the case here, you don’t want the first time it comes before the justices to be a high-pressure, high-speed situation," the source said. "You’d rather have it come on a full record and on a schedule where the court has time to consider the issues carefully.
"You don’t want this hitting their schedule when it's summer and they're on vacation," the source added.
The spin strikes me as spectacularly weak sauce: Yeah, if the stay had been denied, they might not have gotten an expedited briefing and argument schedule, but in the meantime, thousands of gays would have been getting married. Whether those marriages will later — after SCOTUS review — still be deemed valid can't possibly depend on whether they were entered into solely on the strength of Judge Walker's unstayed ruling or, instead, on the strength of a potential later affirmance of his ruling by the Ninth Circuit on the merits. Boutrous' suggestion that the stay somehow benefits gays wanting to get married in California is simply ridiculous, a particularly unpersuasive example of "well, we really sort of wanted to lose that motion, regardless of what our court filings said." Moreover, even in a "highly strategical case" (which I suppose is one in which you have to be extra careful not to misunderestimate your opponent), if you think that an appellate judge's first instinct would be to go with your side, then you quite possibly might prefer to present the issues to him for the first time in an emergency setting. And the "summer vacation" argument is childish. Whoever made those arguments, even for purposes of spin in the press, was very wise not to agree to be named.
UPDATE (Tue Aug 17 @ 2:15 a.m.): Musing on the significance of the order's concluding sentence and case citation regarding standing, Allahpundit writes (links his):
As of an hour ago, the first weddings were set to start at 5 p.m. on Wednesday; now they won’t happen until December at the earliest, with no explanation given of how Walker erred. Presumably they figured there’s enough of a chance that Prop 8 supporters will win on appeal that they didn’t want to let marriages happen now, only to have to void them later. That’s the good news for gay-marriage opponents; the bad news is that two of the three judges here are Clinton appointees and they’re clearly quite interested in Walker’s argument that Prop 8 supporters lack standing to appeal his decision. Merely postponing the inevitable here?
But if we're debating which tea leaves are strongest and most reliable as predictors, I have a contrary take. The standing issue had already been raised and briefed (albeit in a comparative hurry) by both sides in the stay application and responses. Every appellant has the obligation to demonstrate to the appellate court that it has federal subject-matter jurisdiction and that the appeal meets the other "case or controversy" jurisprudential requirements like standing, ripeness, non-mootness, etc., so there is absolutely no chance that the appellants would have ignored those issues in this case. However, precisely because it's so basic, if even one judge on the panel requested a sentence like this one — even if he simply wanted that briefing in order to confirm his or her preliminary view that there is indeed standing — then whoever drafted the order for the panel certainly would have included it. The sentence requesting this briefing is not the sort of thing anyone would object to including in the order, in other words, and I really don't think it necessarily implies anything important as a result.
Far more importantly: Probability of success on the merits is explicitly made part of the standard of review for stay applications like this one. If you lack standing, your probability of success is zero. Probability of success on the merits is not determinative by itself, but it's very important — easily the single most important factor in most situations. Implicit in the unanimous ruling granting the stay, therefore, is that at least two judges are satisfied — at least for the present preliminary purposes, that being deciding an emergency stay motion — that there is adequate standing. They (or others) might come to a contrary decision later, but that's the decision of at least two of these judges, at least for today. If, by contrast, even two members of this motions panel really seriously thought that the opponents had already made a persuasive case that there's no standing, that should have resulted in the stay being denied. (If only one judge thought there's a serious doubt about standing, he/she might well have decided not to write that up now as a dissent to the stay ruling — such dissents are extremely rare at the circuit court level — but instead to kick that overt discussion on down the road to the panel proceedings on the merits, with the possibility that full briefing may persuade at least one of his/her panel-mates to agree there's no standing, or perhaps with the possibility that it will be an altogether new panel, with three entirely different members, who may hear the appeal on the merits.)
Also, Prof. William A. Jacobson at Le-gal In-sur-rec-tion speculates that the November election results and January office-taking of a new California governor and attorney general might affect the standing issue in a way that will help Prop 8 supporters. He might be right, but I haven't done enough to refresh my recollection and update my knowledge on standing to weigh in on that. When a governor or AG may decide to stop trying to defend the validity (under the federal constitution) of a state statute or state constitutional provision is an interesting mix of constitutional law, civics, and even legal ethics. I didn't disapprove, for example, of the Texas solicitor general's and attorney general's decision not to seek certiorari from the Fifth Circuit ruling striking down Texas' "five-dildo" rule, even though the Fifth Circuit had explicitly created a split between the circuits; but that was after full briefing and a decision on the merits by a Fifth Circuit panel, and after a motion for rehearing en banc had been denied. Morever, millions of Texans had not just voted to confirm the five-dildo rule!
UPDATE (Tue Aug 17 @ 6:15 a.m.): From the NYT's article on the decision (boldface mine):
Richard L. Hasen, a professor of law at the Loyola Law School Los Angeles, said the ruling "takes the heat off the Supreme Court," which was likely to have been asked for an emergency stay by those who support Proposition 8 if the Ninth Circuit had not acted.
But Mr. Hasen added that the stay’s putting a halt to any potential marriages did not mean that the Ninth Circuit would necessarily rule in favor of Proposition 8.
"I don’t think that the granting of the stay means much, if anything, about how the Ninth Circuit will rule on the merits," he said. "It won’t be the same panel deciding the merits as decided the stay motion."
Mr. Hasen added he believed that even supporters of same-sex marriage could see the logic of extending a stay.
I hold Prof. Hasen in high regard, and having clerked for a judge on the Ninth Circuit, he has vastly more experience with that court than I have. (I've only appeared as counsel there once, and that was long ago.) I agree with his first observation, regarding Monday's panel ruling "tak[ing] the heat off the Supreme Court," although the SCOTUS is pretty much used to such heat and it naturally comes with their institutional responsibilities. I wish I knew the exact basis for his assertion that it "won't be the same panel," but I certainly can't dispute that conclusion. And I don't know what to make of his last comment: I think there are excellent reasons for proponents of same-sex marriage to have concluded that as a matter of long-term strategy, it was a mistake to even bring this case, in this fashion, from California at this particular time, in the immediate aftermath of the passage of Prop 8 and with the current composition of the SCOTUS. But (unless the NYT quoted Prof. Hasen out of context), why pretend that this is not a set-back, even a temporary one, for ssm-supporters?
UPDATE (Tue Aug 17 @ 7:10 a.m.): Prof. Hasen's quoted at more length in the LAT (bracketed portion theirs):
Loyola Law School professor Richard Hasen said Monday's order was strategically advantageous for supporters of same-sex marriage, no matter how disappointed many couples may be. If the panel had refused to place a hold on Walker's ruling, the supporters of Proposition 8 were prepared to seek a stay from the Supreme Court. The court is believed to be divided on the question of gay marriage, with Justice Anthony Kennedy considered a swing vote. A vote on a hold might have pushed the justices into taking an early position on the question.
"I think there are strategic reasons why even the most ardent supporter of gay marriage could opt for a stay," said Hasen, an expert on federal court stays. "The concern is that rushing things to the Supreme Court could lead to an adverse result [for supporters of gay marriage.] If this case takes another year to get to the U.S. Supreme Court, there could be more states that adopt same-sex marriage and more judicial opinions that reach that conclusion."
Hasen said the hold "takes the heat" off Kennedy and takes the case "off the front burner for a while."
That makes more sense to me, although I'm not entirely persuaded. The change that ssm-by-judicial-decree supporters would need in the interim is not just another state or two moving into the (so-far quite short) ssm-permitted column, but instead in the occupancy of one of the SCOTUS seats held by Chief Justice Roberts and Justices Scalia, Thomas, Alito, and (possibly) Kennedy.
The LAT leaves unremarked — but I cannot — the cynicism that underlies all this punditry. I'm guilty of it too, but still: How and when, exactly, would the federal Constitution change between now and, say, the five or six months from now during which the Ninth Circuit's expedited proceedings will play out?
UPDATE (Wed Aug 18 @ 9:20 p.m.): As I warned in my update at the top of this post, anyone reading it should also see my newer post for more on Prof. Hasen's statements about an entirely new panel hearing the merits, which I increasingly believe is likely to be the correct prediction.
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(1) Gregory Koster made the following comment | Aug 17, 2010 2:34:43 AM | Permalink
Dear Mr. Dyer: If you don't mind being a bit of a tour guide:
1. How are chief judges appointed? I thought it was the most senior judge who hadn't taken senior status, but that plainly isn't so.
2. I'm astonished that The One hasn't been able to nominate and confirm any judges to the Ninth. It is the largest Circuit Court.
3. I'll stick with Learned Hand on this issue: "Who cares what anyone says about the Constitution except the Final Five of the August Nine?" At present, that final five equals Kennedy in God-knows-what-mood. It does show the importance of retaking the Senate this fall. Let Scalia, age 74, kick the bucket, allowing The One to nominate someone---well, you can imagine the rest of that nightmare yourself. With a Democratic Senate, that nominee would signal mass suicides in the Red States, even while Harvard Law would chortle with glee at the prospective reign of terror for those unspeakables. With a Republican Senate, it would mean hand to hand warfare, with possibly several nominees defeated, before a squish is finally set on the Supreme Bench, and the reign of terror comes at glacial speed, with glacial weight and destructiveness in its wake, while the Ivies bawl, faster, faster.
5. I'm sorry Prop 8 was ever passed, but I'm even sorrier that yet another tin-pot judicial Messiah decided to overturn it, spitting his chaw of librul brand chewing terbacker in the faces the peasants who voted for it, snickering that of course the greatest deference must be paid to the voice of the people.
6. Jerry Brown's limp performance in this case is not going to help him become Guv this fall. Oh sure, the coastal ninnies will warble for him, their warbles having a distinct tremolo from all that medicinal pot they've been inhaling prior to voting. But the 52% that passed Prop 8 may be a wee bit less lyrical. That'll be his reward for what you rightly call despicable. Not to worry: when The One heaves Eric Holder under the bus (which now needs demolition derby truck tires to touch the ground) ol' Jer will get that long deferred crack at DC that he's pined for.
(1) Re chief judges of circuit courts of appeal, 28 U.S.C. § 45(a)(1) provides:
The chief judge of the circuit shall be the circuit judge in regular active service who is senior in commission of those judges who—(A) are sixty-four years of age or under;
(B) have served for one year or more as a circuit judge; and
(C) have not served previously as chief judge.
Judge Kozinski, born in Romania in 1950 and appointed to the Ninth Circuit in 1985 (as then the youngest circuit judge in the country), has more seniority than any other member of the Ninth Circuit who hasn't already turned 65 or taken senior status.
(2) The Senate has been slow to confirm circuit court nominees of presidents of both parties for many years. I think that's unfortunate. But I have no sympathy for Obama in particular, who I think forfeited any expectations of comity or deference or even alacrity from the Senate based on his own actions, statements, and votes when he was, briefly, among its members.
(3) How Kennedy ultimately votes is likely to be more important than anything that could happen in the Ninth Circuit, but there are some scenarios in which the Ninth Circuit -- either en banc or through a panel ruling that survives an en banc challenge -- reverses Judge Walker and the Supreme Court denies cert. For a variety of reasons, that's actually the scenario I'd most like to see play out. The model is probably SVREP v. Shelley, in which I believe Judge Kozinski (even though not yet chief judge) masterfully maneuvered the Ninth Circuit out of a national embarrassment and the losing side didn't even seek SCOTUS review.
(4/5) I oppose Judge Walker's ruling, as I generally oppose judicial imposition of same-sex marriage. As I've explained elsewhere:
As a policy matter, I support same-sex marriage; but also as policy matters, I’d make it quite a bit harder to get married, a whole lot harder to get divorced, and more rewarding (via tax credits) to raise children over a sustained period in a two-married-parents home. Those views are exceptions to my generally libertarian outlook, in which I generally want the state and federal governments to stay out of private life decisions and affairs, and they’re keyed directly to the state’s interest in protecting children and promoting child-rearing. I would hate to see any of these policies imposed, though, by activist judges. And I genuinely do respect, and hope I always show genuine respect, to those with more traditional policy views; I don’t think they’re irrational, but just that on balance, they’re probably wrong.
(6) I'm not ready yet to venture any predictions about how Brown will fare in the November elections, but I agree that he's a sorry excuse for a state attorney general. Given his prior performance in other California offices, that's hardly a surprise.
(3) Gregory Koster made the following comment | Aug 17, 2010 10:59:04 AM | Permalink
Dear Mr. Dyer: 1. Thanks for the USC cite. It was section "(A)" that threw me.
2. I was surprised about no confirmed nominees for the Ninth because other circuits (the Second for example) have gotten new judges. Given that section "(A)" makes it important for a Prez to get young judges on the bench early, so the very important chief judgeship can be filled by a Prez's choice in later years, I'm surprised that The One hasn't pushed harder. To use the present example: however much we admire Scalia, Ronald Reagan did great service to the nation when he got Alex Kozinski on the 9th Circuit in 1985, as your SYREP link showed.
3. Ted Olsen's conscience needed (and needs) a big dose of sedatives. Can't he see that he's driving gay marriage down the same road Brennan & Co drove abortion? Think of the split that ROE has forced on the country, and even worse, on the nomination and confirmation of federal judges. ROE continues to suck way too much oxygen out of confirmation hearings. The better precedent was in women's suffrage. Various states allowed women to vote in different ways (e.g. some states allowed women to vote in primaries, others in presidential elections, and others went the whole hog and let women vote as men did) for almost fifty years before the 19th Amendment came through. To be sure, this was hard on the women in the states who couldn't vote at all, and from our 2010 viewpoint, looks idiotic. But once the 19th was enacted, women's suffrage was accepted by the citizenry in general in a way that abortion never has been. Gay marriage is on the abortion path. I also Judicial fiat allows the legislatures to avoid the tough issues. Not for nothing are legislatures considered the "people's branch" of government in a way that the Judicial and Executive are not. Something is wrong with a nation's culture when legislatures can futz around with trying to dictate how many servings of veggies we must eat every day, while ducking gay marriage. It leads to legislative flabbiness while giving the judiciary and by extension the administrative section of the Executive, too much power with too little oversight.
(4) Larry Brown made the following comment | Aug 17, 2010 2:09:48 PM | Permalink
Isn't having a vested interest in the outcome grounds for recusal?
(5) Mike Myers made the following comment | Aug 17, 2010 11:35:26 PM | Permalink
Mr. Dyer, I'm glad you are back in "action". Your posts, and the comments, on this blog are always interesting.
(6) Mike Fox made the following comment | Aug 27, 2010 12:58:34 AM | Permalink
I, too, am glad you're back in action.
I've known Judge Ed Leavy since 1974, when he was a Lane County, Oregon, Circuit Judge. He was one of the finest trial judges any lawyer would want to encounter, as a state judge, and as a federal magistrate and then as an Article III judge. Unlike a lot of 9th Circuit types, he's a straight shooter. He was a FISA Court of Appeals judge and was part of the panel that ruled on a critical War Powers case. If you want to determine how he thinks, perhaps you should examine that case. If my memory serves me, it was either the first or the second case decided by the FISA appeals court.
Ed grew up on a hop farm near Champoeg in the northern Willamette Valley.
I, too, would be interested in seeing if Ed is on the 9th Cir. panel that rules on the Perry case. Let's just say that Judge Leavy knows a finding of fact when he sees one!
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