41 Responses

  1. As hallucinogens go, I prefer mushrooms to LSD and both to peyote.

    Pot was just ok.

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    • I posted the John Hancock quotation at PL:

      “There, I guess King George will be able to read that.”

      ― John Hancock (1737–1793)

      and got these responses.

      CaoThien_KhuDanCuNamLong
      “… without his spectacles”

      Reference, check.

      Current significance, no clue. Please place into context.
      6:37 AM CST
      in reply to
      this comment
      1 Reply ▼
      CaoThien_KhuDanCuNamLong
      Oh, yeah, of course, today’s Independence Day. Appy Polly Loggies. I thought you were responding to something in the blog (that’s what most people do here)


      Yep, good ‘ole Chris Fox.

      QB – Sascha Volokh and some others have made the argument that RFRA violates the Establishment Clause by favoring deeply held religious convictions over equally deeply held conscientious convictions. There is a history of expanding deeply held “religious” to deeply held “conscientious” based on this theory, of course.

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  2. The other thing is that the RFRA provides for a pretty clear exemption:

    “(b) Rule of construction
    Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter. ”

    http://www.law.cornell.edu/uscode/text/42/2000bb-3

    If the Democrats had put that into the PPACA in the first place, they could have avoided all of this.

    Or they could amend the RFRA itself to narrow the definition of persons to one that doesn’t include corporations.

    http://www.law.cornell.edu/uscode/text/42/2000bb-2

    But of course that would take a consensus to do so and it’s easier to blame the SCOTUS.

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    • jnc:

      But of course that would take a consensus to do so and it’s easier to blame the SCOTUS.

      This is what comes from having passed this transformational monstrosity thru the brute force of partisan numbers in the first place. Those partisan numbers will, and have, disappeared.

      Liked by 1 person

  3. Petra Kvitova is simply overwhelming Bouchard with superb play. Very impressive. No one would touch her today.

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  4. I am bringing this here as continuation from the previous thread discussion. Here is a link to the Wheaton College brief in support of its request for temporary injunctive relief.

    http://www.becketfund.org/wp-content/uploads/2014/07/Wheaton-Kagan-Application-FINAL.pdf

    I think reading it gives a very clear understanding of the SCOTUS order and why it is entirely correct. It also makes clear why, I believe, SCOTUS will eventually, inevitably, and correctly hold that he certification requirement and perhaps the entire “accomodation” mechanism for non-exempt employers fails under RFRA and the First Amendment.

    The government’s position is a quite bizarre. It argues on the one hand that it has a compelling interest in forcing employers to certify their religious objection in order to trigger the authority and duty of a TPA to provide birth control, and yet on the other hand that the TPA must provide it regardless. In fact, bizarre does not begin to describe this position.

    When you grasp the first “half” of the government’s position, it becomes clear why the certification requirement indeed infringes free exercise. It is really a distinction without much difference to say the employer must either provide the coverage or in effect instruct a “third party” to provide it.

    Moreover, the government’s position that the administrator must provide the coverage regardless of whether it receives the certification makes its opposition to a temporary injunction completely nonsensical. It literally has no basis whatsoever to argue that an injunction has any adverse impact on anyone.

    As to Mark’s point about the lower court, the district court apparently did find that Wheaton would be irreparably harmed, and that the government showed no harm that would result from an injunction, but felt bound by a Seventh Circuit opinion that the form certification is irrelevant to the administrator’s obligation to provide coverage.

    It is unfathomable to me why the Obama administration is pursuing such completely incoherent and irresponsible positions. The outcome of this particular battle was and is all but guaranteed. You can’t tell the Court on the one hand that it is imperative that an employer sign a certification to trigger coverage, and at the same time that the form is irrelevant. Shame on Obama. Shame on Sotomayor et al. They are causing vast harm by their deceptive and gratuitously divisive and vindictive actions.

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    • As to Mark’s point about the lower court, the district court apparently did find that Wheaton would be irreparably harmed,

      I did not know this – I had only read that the PI had been denied. It does make a difference in the posture of the case that the trial court made that finding.

      I do not, however see the “disconnect” with permitting an employer exemption but assuring an employee’s choice. It is an accommodation to the employer’s RFRA claim. The insurer and the employee have made no such claim, obviously.

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  5. I am going to explore some of the dishonest aspect of the Wheaton dissent. Take this:

    “For one thing, the merits of this case are not before this Court for full review; adjudication of the merits is still pending in the District Court. So nothing necessitates intervention in order to “‘aid . . . our jurisdiction,’” Turner Broadcasting System, 507 U. S., at 1301 (alterations omitted), over any eventual certiorari petition from a decision rendered below. If the Government is allowed to enforce the law, either Wheaton will file the self-certification form, or it will not. Either way, there will remain a live controversy that this Court could adjudicate after the case isdecided on the merits below. And either way, if Wheaton is correct in its challenge to the law, its rights will bevindicated and it will obtain the relief it seeks.”

    She is saying, so what if injunctive relief is denied and Wheaton is compelled to violate its beliefs (or be bankrupted) before we can rule on the merits of the case on ceriorari; it will still be a live controversy. That is, however, entirely unclear. Absent an injunction, the violation will have occurred before the Court hears the case on the merits. There will be nothing to stop. Granting temporary injunctive relief to preserve the status quo is a standard part of appellate law. That is why it is called irreparable harm. Moreover, does anyone doubt for a minute that the Obama administration would later argue that the case was moot after temporary relief was denied?

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  6. Here is a flat-out false statement by Sotomayor:

    “Wheaton, for religious reasons, categorically opposes theprovision of contraceptive services.”

    Wheaton’s brief:

    “Consistent with these beliefs, although Wheaton does not object to traditional
    contraception (i.e., contraceptives that work before fertilization), it is religiously
    opposed to emergency contraceptives because they may act by killing a human
    embryo. Dkt. 41-1 at ¶ 41.”

    Why is Sotomayor misrepresenting Wheaton’s position?

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  7. Sotomayor uses a (false) conscientous objector analogy (someone else must take his place) to argue that Wheaton’s claim fails on the merits, because its notice to the administrator is irrelevant to the latter’s obligation to provide the coverage.

    But the government’s own position is that the employer’s completion and trasmittal of the certification are necessary to trigger the adminstrator’s authority and duty to provide coverage. (Note that Sotomayor studiously avoids any discussion of the government’s position.) As Wheaton pointed out in its brief, if it were true that the obligation was independent of the employer’s certification, there would be no reason for the government to seek to compel the certification in the first place. Wheaton’s brief, however, quotes numerous instances of the government’s arguing that the obligation in fact depends as a matter of law on the certification.

    There is no other way to understand the government’s and the dissenter’s positions but as a war on Christian faith.

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  8. More slippery argument from Sotomayor:

    “The self-certification form is the least intrusive way for the Government to administer the accommodation.”

    Clever, huh, switching from the least intrusive way to achieve the compelling interest to the least intrusive way to administer the accomodation, which is an apparent tautology. The form requirement must be the way least restrictive on the employer for the government to ensure that employees get birth control. It self-evidently is not.

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  9. “If the Government cannot require or- ganizations to attest to their views by way of a simpleself-certification form and notify their third-party administrators of their claimed exemption, how can it ever identify the organizations eligible for the accommodation and perform the administrative tasks necessary to make the accommodation work?”

    In this case, where the only issue currently before the Court was temporary relief, this is a complete non-issue.

    It is also a red herring. The issue is not whether the government knows or can know. The issue is the law makes the administrator’s obligation and authority to provide coverage contingent upon the completion and transmittal of the specified form. That is an act with legal consequence, and that is the entire bone of contention, as the government itself is arguing.

    Again, Sotomayor is simply evading and obfuscating.

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  10. “I have deep respect for religious faith, for the importantand selfless work performed by religious organizations, and for the values of pluralism protected by RFRA and the Free Exercise Clause.”

    Yeah, sure you do.

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  11. I do not, however see the “disconnect” with permitting an employer exemption but assuring an employee’s choice. It is an accommodation to the employer’s RFRA claim. The insurer and the employee have made no such claim, obviously.

    That isn’t the issue. There are a million ways for the government to give birth control to people. The way they chose to “give” it to employees of this category of employers they created is to compel the employer to play a necessary role. Now they want to have it both ways, by saying that the employer must play a necessary role but at the same time that role isn’t necessary when it comes to weighing the burden on free exercise.

    The government’s position is contradictory, as is Sotomayor’s, since she is just miming the government’s without describeing it.

    Here is part of the Wheaton brief showing that HHS itself argues that completion of the certification is legally necessary to the administrator’s duty and authority to step in:

    “Respondents have repeatedly admitted in court that the Form has these legal
    effects. For instance, Respondents have conceded that TPAs “become a plan
    administrator and are required to make these payments by virtue of the fact that they
    receive the self-certification form from the employer.” See Dkt. 41-13, Archbishop of
    Wash. Tr. (Appendix at 141) (emphasis added). They also stated in open court that,
    “for an ERISA plan—in order for the TPA, essentially, to have the authority to
    provide coverage, the self-certification has to designate—has to be an instrument
    under which the third-party administrator is designated as a provider of those
    specific benefits.” Dkt. 41-12, Reaching Souls Tr. (Appendix at 135). Respondents
    have also conceded that, after delivery of EBSA Form 700, “technically, the
    contraceptive coverage is part of [the religious objector’s health care] plan.” EWTN v.
    Burwell, No. 1:13-cv-00521, Dkt. 49-3 at 12 (S.D. Ala. filed Oct. 28, 2013). In writing
    on Friday, Respondents conceded that Wheaton’s executed Form is a “prerequisite”
    of the TPA’s independent obligation, and that the “independent” “operation of law”
    happens only “once plaintiff has . . . complet[ed] the self-certification form.” Dkt. 68
    at 8 (Appendix at 207).”

    With HHS’s arguing out of one side of its mouth that it is imperative that Wheaton sign the certification, and on the other that it is legally unnecessary for the coverage to be provided, I think the outcome here was and is a foregone conclusion. Sotomayor is left to argue that the certifications are needed as an administrative matter for the government to know who claims exemption. That apparently isn’t the government’s own principle argument and leaves them again with no real argument that this arrangement is the least restrictive means, since religious denominations and churches are completely exempt, as are the vast majority of all employers.

    This is persecution of religious institutions and organizations and nothing more. They knew they couldn’t go after churches per se, but they are going after everyone they think they can get away with going after.

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    • So I take Wheaton’s position to be:

      1] It has a bona fide religious objection to providing employee health coverage that includes certain, but not all, contraceptives, it perceives as causing abortions. A conceded point.

      2] If it does not file a prescribed form with the gummint and the carrier it must pay for the coverage it abhors or pay a substantial and material fine. True.

      3] If it does file the prescribed form it pushes the general obligation to provide the abhorrent coverage on to the 3rdPA, based on an individual rider offered to employees. True.

      4] The shifting of responsibility from the Employer to the 3rdPA should not be a function imposed on the Employer by the notice provision. For the Employer to opt out by using the prescribed form that notifies the 3rdPA to step in impinges on the Employer’s belief that the coverage is abhorrent because by using it the Employer becomes an active participant in providing the abhorrent insurance to someone else.
      [uncertain as to whether I have characterized the argument as it was made].

      If 1-4 are correct, and Wheaton and similarly situated employers prevail and can opt out by letter to HHS, then the notification to the carriers would fall on HHS, correct?

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      • Or is the ultimate result that all policies will not have the coverage that the religious objectors do not want but the insurers will offer all employees opt-ins?

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      • I think that is the basic argument. Which I did not fully understand before reading their brief, which explains some of the cryptic language in the unsigned order.

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        • qb/mark;

          Can one of you confirm my understanding of this Wheaton issue? My understanding is:

          Wheaton claims that even having to file the paperwork with its insurer declaring itself exempt from the mandate on religious grounds is itself a violation of its rights under RHRA.

          In the absence of filing the paperwork, Wheaton is subject to daily fines that could reach into the millions, eventually bankrupting them.

          Wheaton lost its challenge in the lower court, but is appealing to SCOTUS.

          Wheaton was seeking relief from having to either file the paperwork or be fined while the appeal is still pending, on the grounds that it would have suffered irreparable harm should its appeal eventually be upheld, a claim that the district court had already established.

          SCOTUS granted this temporary relief, with Sotomayor (and others?) dissenting and saying that Wheaton should be subject to the fines while the appeal is still pending.

          Is this all correct?

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        • Scott, that is not all correct. QB has sharpened my understanding but he is more familiar. He read the Wheaton brief.

          The posture of the case is that it has not gone to trial. Wheaton asked for a Preliminary Injunction pendente lite. A PI requires a fact finding and two legal conclusions by the trial court. First, that Plaintiff is likely to prevail eventually and second that without the PI Plaintiff will suffer irreparable injury. QB says the trial court made the second conclusion from the facts presented but denied the first as a matter of 7th Circuit law.

          There is an extraordinary remedy sometimes available [as in death penalty cases] where the All Writs power to maintain jurisdiction in the federal court is imposed by the Supremes. Wheaton came up to the Supremes prior to trial on the merits on the notion that jurisdiction would be nullified by the denial – which I think means that Wheaton argued it was forced to buy the dreaded insurance, not that it was forced to pay the fine. Fines can be ordered remitted and paying a fine is never an irreparable harm. Jurisdiction would have been preserved pending trial if Wheaton refused to buy insurance and had paid the fine.

          QB?

          Addendum: I second what QB implies about the finer points of preliminary injunctions, stays on appeal, and the various procedural hurdles. This is complicated procedural stuff. It will require, for instance, two different types of bonds to be posted by Wheaton, in the usual course of events.

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  12. Wheaton claims that even having to file the paperwork with its insurer declaring itself exempt from the mandate on religious grounds is itself a violation of its rights under RHRA.

    Yes, but it is a little more than that. The argument isn’t merely that filling out the form is a burden but that filling out the form is a legally necessary, active step in providing the coverage.

    Wheaton lost its challenge in the lower court, but is appealing to SCOTUS

    The district court has not actually decided the merits. It denied a preliminary injunction (saying it felt bound by a 7th Circuit precedent it appears to believe is wrong). The district court and 7th Circuit both failed to rule on motions for a stay pending appeal of that denial of a preliminary injunction. (Appellate practice around preliminary injunctions gets a little complicated.) Wheaton therefore petitioned the Supreme Court for what amounts to emergency relief because it was about to be fined. (And of course the Obama Admin refuses to agree to temporary stays in all these cases, despite there being no conceivable harm in doing so. What are we to make of that except that they are a bunch of jackbooted fascists?)

    Wheaton was seeking relief from having to either file the paperwork or be fined while the appeal is still pending, on the grounds that it would have suffered irreparable harm should its appeal eventually be upheld, a claim that the district court had already established.

    As I understand the brief, the district court agreed that Wheaton would suffer irreparable harm, and the governmen no harm, but felt constrained to follow precedent holding that the certification was not relevant to the administrator’s duty to provide coverage (a remarkable situation).

    Edit: I am not sure from the brief of the exact findings of the district court. It apparently found that the equities clearly favored Wheaton, and that Wheaton faced a Hobson’s choice.

    SCOTUS granted this temporary relief, with Sotomayor (and others?) dissenting and saying that Wheaton should be subject to the fines while the appeal is still pending.

    Subject to fines if it does not submit the form, yes. I’m sure she rationalizes that they should just fill out the form, since she purports to decide for them that they shouldn’t care about it.

    You can see in all this that the government’s strategy is to deprive these organizations of any meaningful day in court to vindicate their rights. There is no other conceivable explanation for what they are doing. They hope the threat of massive fines, which HHS will immediately begin to impose, will compel the organizations to submit the forms, at which point you can bet that HHS will flip-flop and argue that their challenges are moot.

    This is a government of brute thugs, joined across branches.

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    • QB/mark:

      Thanks for the clarifications.

      And of course the Obama Admin refuses to agree to temporary stays in all these cases, despite there being no conceivable harm in doing so. What are we to make of that except that they are a bunch of jackbooted fascists?

      Well this is sort of what I was trying to confirm. Forgetting about all of the procedural legalese, the only issue is whether or not Wheaton will be fined while its challenge is being adjudicated and before it is ultimately decided. As a practical matter, why wouldn’t the government agree to stay the fine while the case is still pending, if not out of simple spite, or as a bullying tactic? Mark?

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  13. Why the adjective “dreaded?”

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  14. I guess no one needs my answer to that question again, since I’ve given it. But my anger at this government after reading these decisions and some of the briefs is practically incandescent. They are waging a vicious war against Christians and Christianity. They literally are the enemies of a large portion of this country whom they are working tirelessly to suppress and persecute. They are doing all they can to destroy freedom and violate the bitter clingers Obama so despises.

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  15. Wheaton came up to the Supremes prior to trial on the merits on the notion that jurisdiction would be nullified by the denial – which I think means that Wheaton argued it was forced to buy the dreaded insurance, not that it was forced to pay the fine. Fines can be ordered remitted and paying a fine is never an irreparable harm. Jurisdiction would have been preserved pending trial if Wheaton refused to buy insurance and had paid the fine.

    The standard of the All Writs Act is different from PI standard, requiring showing of “critical and exigent circumstances.” Wheaton argued that it was forced to choose between forfeiting its rights (always irreparable harm) and massive financial damage and potential destruction.

    This is the first sentence of Wheaton’s brief:

    “At midnight tomorrow, a regulatory mandate will expose Applicant Wheaton
    College (“Wheaton”) to draconian financial penalties as high as $34.8 million per year
    unless it abandons its religious convictions and participates in the government’s
    system to distribute and subsidize emergency contraceptives.”

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    • So it is easier to get All Writs relief than I remember. Scott, it makes no sense at all for the USA to oppose temporary stay as far as I know. Federal judges have granted temporary stays of their opinions denying PI pending appeal of the PI even when opposed by the government. I once had one granted sua sponte, without asking for it, keeping 10 students in college pending litigation.

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  16. Here is some crafty language from the government’s brief in opposition to Wheaton’s petition:

    “If applicant were to opt out, its
    insurance issuers and third party administrator would be
    required to provide separate payments for contraceptive
    services. Hobby Lobby, slip op. 9-10; see 29 C.F.R. 2590.715-
    2713A(b)(2). The provision of this coverage would require no
    action by applicant, which would have no obligation to
    “contract, arrange, pay, or refer” for such coverage. 78 Fed.
    Reg. at 39,874.”

    Note that this concedes Wheaton’s point, without really saying it: the administrator would be required to provide payment “[i]f applicant were to opt out.” Then the government irrelevantly points out that the provision of coverage “would [then] require no [further] action by applicant.”

    This is the same obfuscation that Sotomayor is peddling. It appears not to be disputed in these cases that filling out and submitting the certification is a legal condition of the third party’s payment authority and obligation. This is equivalent to a rule that the employer either pay or appoint someone else to pay, which is a difference without real distinction.

    Unless Kennedy balks, SCOTUS will eventually hold the certification requirement a violation of RFRA, and rightly so.

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    • QB:

      Unless Kennedy balks, SCOTUS will eventually hold the certification requirement a violation of RFRA, and rightly so.

      How depressing is it that we can automatically count on 4 liberal justices to simply disregard the content of the law, and whether or not the law is ultimately applied is entirely dependent on the whims of a single, unpredictable justice.

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      • A good example of how the dishonest framing of issues from the left gets casually passed on as objective fact by the media. From a Bloomberg article reprinted in the WaPo:

        The court’s 5-4 ruling June 30 said that closely held, for- profit companies can opt out of providing birth control benefits, the same sort of exemption church-affiliated organizations get. Yet the justices didn’t strike down the requirement that American women have access to birth control.

        There is no such “requirement that American women have access to birth control” in ACA because legal access to birth control has been guaranteed for nearly 50 years, ever since Griswold v Connecticut. The issue was never in front of the court to “strike down”. This is how the media helps the left to confuse an ignorant public, falsely portraying women as potential victims of injustice in an attempt to hide the real victims of their injustices.

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  17. Boy, Greece sucks.

    The demands are outrageous, and include a requirement that the business pay taxes in advance equal to 50 percent of estimated profit in the first two years. And the taxes are collected even if the business suffers a loss.

    The government do take a bite, don’t she?

    http://mobile.nytimes.com/2014/07/03/opinion/greek-recipes-for-survival.html?smid=tw-share&_r=1&referrer=

    I’d guess a couple or new regulations and a new government department ought to fix this.

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  18. The anti-Keynesian explanation for our bouncing on the bottom.

    http://noahpinionblog.blogspot.com/2014/07/cochranes-thoughts-on-recession-and.html?m=1

    Hayek weeps.

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  19. I think the sole reason why Keynsianism gets the respect it does is because politicians get to use it as a justification to shovel pork back to their districts.

    The “more cowbell” argument with respect to the Japanese experience is completely lame

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    • Djokovic and Federer are playing so well it is as if it were imaginary. Like the Spurs in games 3 and 4.

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      • A bit of a strange match, though. A lot of great play but then quite a few points lost on poor shots and decisions. Federer seemed a little unenergetic to me.

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  20. What a lucky, lucky guy.

    http://mobile.nytimes.com/2014/07/06/fashion/Modern-Love-Taking-Marriage-One-Year-at-a-Time.html?referrer=&_r=0

    I’m completely wrong. Marriage is a great thing. This dude’s really caught a keeper.

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  21. Fresh thread posted.

    Move it or lose it.

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    • No fact finding, QB –

      And not clearly decided by the Supremes on All Writs, but written as if it were an injunction pending final appeal. So my best guess now is that they want to treat this case in a bundle with Little Sisters.

      Like

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