Acting with unpredictable alacrity and unpredictable brevity, we break down the Supreme Court's recent interim order in Trump v. Boyle, and discuss what it means for the unitary executive, and for the shadow docket. We also debate the best name for the Court's emergency/interim orders docket.
Acting with unpredictable alacrity and unpredictable brevity, we break down the Supreme Court's recent interim order in Trump v. Boyle, and discuss what it means for the unitary executive, and for the shadow docket. We also debate the best name for the Court's emergency/interim orders docket.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, we are doing a rare, exceedingly rare emergency episode. Is this really an emergency episode, or is this more of a lightning quick episode?
Will: I like to think of it as an interim episode. It's an episode about something that's just happened on what some people call the emergency docket, but we might be rebranding as the interim orders docket.
Dan: Yeah, we were just having a debate about that with some other folks about a better label for this. I mean, I think that with apologies to you, I think shadow docket is on its way out. Because now these things get more attention than anything else. Emergency works, and that seems to be what the court had initially settled on. But not all these things are emergencies.
Will: Yeah. I mean, so technically speaking, the shadow docket is the broad umbrella of everything that's not the merits docket, of which this docket is a subset.
Dan: Including summary reversals.
Will: Including summary reversals including the parties are ordered to come to court prepared to talk about what Steve Sachs thinks, [Dan laughs] which was one of the examples, I think, in my shadow docket article.
Dan: Yeah.
Will: All the weird stuff, but of which this is now the most salient subset. I do think emergency docket is the current term. And so, this goes a little bit to the general conversation. As a descriptivist, there's something to be said for just using the term everybody else is using. But I do think there's an important critique that a lot of them are not really emergencies. And what really defines them is these are things like requests for stays and injunctions while the rest of the case proceeds.
Dan: Yeah. I mean, certainly if we went back and looked at the list of the ones to which we've given the most attention over the last year or two, probably almost all of them fit into that category.
Will: Yeah.
Dan: All right.
Will: Now, there is the irony that in plenty of cases, the interim order ends up being the only order-- [crosstalk]
[laughter]
Dan: yeah.
Will: Because once the Supreme Court has ruled about the likelihood of success in the merits, a lot of further litigation becomes unnecessary. Not always, but sometimes. But okay.
Dan: It's formally an interim order. I still liked my lightning-- [crosstalk]
Will: Lightning?
Dan: Because I do think almost all of these things happen faster than regular merits cases, right?
Will: They do.
Dan: So, speed is maybe part of it.
Will: Although, I do think it's relative speed, because I think you saw already some people complaining for some of the interim orders this term that the court took weeks to rule on this [Dan laughs] or months to rule on the birthright citizenship nationwide injunction issue when it's not particularly problematic to take that long, unless if it were a real emergency. Okay, maybe. So, it's something faster than the speed of a merits opinion, but slower than lightning. I guess that's thunder, because thunder is slower than lightning. The thunder docket-- [crosstalk]
Dan: Travels at speed of sound, not speed of light. Okay.
Will: Okay.
Dan: All right. So, the ostensible emergency making this not necessarily an emergency docket, but an emergency episode is the decision in Trump v. Boyle came down on July 23rd. We're recording this on the 24th. Hopefully, this will be up soon. And this is a one pager. It's a one-page unsigned order. Just some words. It's not styled as opinion of the court. I know that's a little weird. Some of these interim orders are per curiam or opinion of the court, and some are just text.
Will: And do we do the 30 second summary thing?
Dan: Yeah, do it.
Will: Okay. This is a case about whether or not to grant a stay pending appeal of the litigation about the removal of somebody on the Consumer Product Safety Commission.
Dan: Yeah, Three members.
Will: Right. Trump v. Boyle. And the Trump administration had lost below. So, the removed members had prevailed, and the Trump administration asked for that decision to be stayed while they litigate this issue. The Supreme Court agreed to grant the stay over the dissent of three Justices, Kagan, Sotomayor, and Jackson. Maybe there's a hidden fourth dissenter, but probably not.
Dan: I wish we didn't have to say that every time. I know it's true but--
Will: Yeah. And with a concurring of Justice Kavanaugh. So, it's a victory for the Trump administration over the former members of the Consumer Product Safety Commission on something.
Dan: Yeah. Continuing the administration's recent streak.
Will: Yeah. Okay.
Dan: And so, the text of the decision, text of the order, quite sparse. Does contain a little bit of analysis. And maybe we should quote that, I think maybe three or four sentences. So, says, “The application for stay is granted.” Then it says, “The application is squarely controlled by Trump v. Wilcox,” which is a decision we talked about some weeks back, which was a similarly situated posture, a decision, an emergency docket, interim docket case, about whether the President could fire without cause members of ostensibly independent agencies.
Will: They're the NLRB and the MSPB.
Dan: Yeah. And the court, in a relatively brief, slightly less brief order, explained why it was going to grant that relief and allow the president to do that. So, here the court says, “The application is squarely controlled by Trump v. Wilcox. Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases. The stay we issued in Wilcox reflected our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty. The same is true on the facts presented here, where the Consumer Product Safety Commission exercises executive power in a similar manner as the National Labor Relations Board, and the case does not otherwise differ from Wilcox in any pertinent respect.” Okay, that’s it
Will: Okay. This is a big deal.
Dan: Okay. Why? So, I know you had flagged for me a tweet. Are we still allowed to call them tweets? By very good friend of the show, Jack Goldsmith, who said the second sentence I mentioned the sentence about, “Although our interim orders are not conclusive as the merits, they inform how a court should exercise its equitable discretion in like cases.” Jack said that is a very, very important statement from the court that is sort of suggesting the amount of-- [crosstalk]
Will: Well, yeah, what Jack said, “This is the most extensive and important explanation for how and why Supreme Court interim orders are vertically binding.” This is true. And note the irony. This one sentence we just read you is the most explanation the Supreme Court has provided about how and why we should follow the interim order’s docket. So, that's what's funny is that this paragraph that might seem boilerplate. Because formally, the formal rule had been these interim order things. We're told they're not precedential, and then we will argue whether they shouldn't be precedential, but they shouldn't be precedential because the court's not the full merits cases, etc. And then people had pointed out that's weird because sometimes people act like they're precedential. And so, what's up with that?
In fact, I realized recently that in my original Shadow docket article, this was actually one of the issues I talked about because that was the period when there were all these lower court decisions striking down same sex marriage laws in the run up to Obergefell. And then some of them, the Supreme Court was staying. And then lower courts debated like, “Oh, is that a sign that we shouldn't do this? or we should-” and nobody knew what to make of them. And then it didn't grant cert, make it all the stays. [chuckles] And so, what's going on? So, it's always been a little bit of a puzzle. And now the court has told us something.
Dan: And often these cases arise in situations where the court has not clearly addressed the issue before, right?
Will: Right. So, yeah, this whole thing is exacerbated by the fact. I mean, this is one of the things that made Wilcox very controversial. I think you and I argued about it, and I wrote a New York Times op ed that everybody hated.
Dan: Not everybody.
Will: Well, you know, the New York Times readership was not primed to a op-ed about how the Supreme Court just ruled for Trump, and that's fine. Which I was aware of. So, there is a case called Humphrey's Executor that seems to say that independent agencies are perfectly fine and constitutional.
Dan: And has been understood as saying that for many, many decades.
Will: Yes. And it has not been overruled. And yet we all know the Supreme Court is likely to overrule or narrow it soon. And Trump v. Wilcox seemed to reinforce that. And so, it makes it extra confusing. Like, if you're a lower court judge, on the one hand, you're supposed to follow Supreme Court precedent even when you think that Supreme Court precedent is doomed. On the other hand, is Trump v. Wilcox, now a Supreme Court precedent that at least for the proposition that the precedent is doomed? It's just confusing.
Dan: Yeah.
Will: Now, is this statement, “Our interim orders are not conclusive as to the merits, but they inform how a court should exercise its equitable discretion in like cases.” Does that render it less confusing or is that just-- I've seen this mocked a bunch on various social media sites.
Dan: Yeah. What does it mean by “like cases”? I mean, so I could understand them saying it should inform how a court of appeals exercises its discretion in a totally similar posture. But some of the time, and I think as here, these are coming up from permanent injunctions, right?
Will: Well, yes, there's both, what's the difference between conclusive as to the merits and inform equitable discretion. And then what are like cases. So, I take it's not conclusive as to the merits, both because that's one of the rules of the shadow docket is they don't set the merits. And in the four-factor test, it's only likelihood of success on the merits. That's like one factor. But if you're a lower court judge, you have to decide whether to stay your ruling about the firing of the CPSC commissioners, and now you know, maybe the way to think of it is, you know that if you had Trump v. Wilcox before you, you're supposed to grant a stay there. And so, then you have to, taking that as a premise, ask yourself whether there's any reason not to grant a similar stay here. And maybe sometimes there will be. You'll say, ah-- [crosstalk]
Dan: And so, is that statement directed at the Fourth Circuit rather than directed at the District Court?
Will: I think it's directed at all the lower courts, both the District Court and the Fourth Circuit, but I think they're saying yes, the Fourth Circuit in the future, we expect the Fourth Circuit to stay opinions like this and the DC Circuit, which has a ton of these cases.
Dan: Yeah. Although I mean, does the District Court have the same degree of equitable discretion in a case seeking a permanent injunction?
Will: Well, can't the district court decide whether to stay its own permanent injunction?
Dan: Okay, I see. So, the question is not whether to grant the injunction, but whether it should stay its own permanent injunction.
Will: Yes.
Dan: Okay.
Will: I mean, maybe you could also decide not to grant the permanent injunction for the same reason, I'm not sure. But I think at a minimum you could say I grant the permanent injunction because under current precedent, Boyle wins. But also, I recognize that the United States is likely to succeed on appeal, at least on appeal to the Supreme Court, and therefore I stay in my own ruling. And I think that's what lower courts are now supposed to do in these Humphrey’s cases is they're now supposed to say.
Dan: They're not supposed to deny. Are they still required to grant the injunction, say, like I have under the merits, you win, and then they're automatically required to stay it because under the state standard you lose.
Will: The injunction is granted and stayed, like an automatic self-stay. I mean, these orders inform how the court [laughs] exercises equitable discretion. I mean, there are a lot of mysteries left here. There is also this debate which may be relevant in a minute when we talk about the Kavanaugh concurrence about what the state of precedent really is because there have been these cases like Seila Law that said some things about Humphrey’s executor that are not the same as the things that had conventionally been understood to be the truth about Humphrey’s executor. Like, say the law said Humphrey's executor doesn't apply to any agency that exercises significant executive power. And then the dissent at the Seila law said, “Well, that can't be right because the FTC in Humphrey’s executor exercises significant executive power.” And the majority said, “Well, maybe we didn't know that.” So, you could even debate maybe even on the merits, you're supposed to say Humphrey’s executor no longer like even now does not apply to these agencies. I'm not sure.
Dan: That seems not the way that precedent normally works that you need a little bit of a clearer statement to overrule precedent.
Will: Well, you wouldn't be overruling. What you would be doing is applying Seila Law's retcon of Humphrey’s executor.
Dan: Yeah, but I mean it is dicta in that case to some degree, right?
Will: Well--
Dan: I mean if they're saying in Seila Law all those principles don't apply to single director agencies.
Will: Yeah.
Dan: Right. And to the extent that the Court is revising precedent about multi member independent agencies.
Will: I'd have to reread Seila, but I think it's actually a two-part test in Seila. I think at Seila they say those principles only apply to multi-member agencies that do not exercise significant executive power.
Dan: Yeah, that's correct. That is-- [crosstalk]
Will: So, if you are either single member or exercise significant executive power, then those principles don't apply. And the CFPB met both prongs. But maybe a two-pronged test is inherently dicta in a case where the party meets both prongs. I'm not sure.
Dan: Yeah.
Will: So, that gets into the sort of the fine details of Supreme Court holdings that may not have real answers, but I think even just this general message of this is what the Court expects people to do with its state decisions is helpful and important because as the Court has indicated, they intend to do a lot of their governing on the interim orders docket. And so, now we at least have some principle for what to do with this stuff.
Dan: Did we see some of this in the COVID era? I remember there being a lot of shadow docket-y orders dealing with COVID restrictions.
Will: I think this is the moment that the Court most embarrassed itself or certainly that most embarrassed itself in the eyes of Steve Vladeck. But I think on the merits as well because the Court had a bunch of these interim orders about COVID closures and then it culminated in one of the cases might have been Tandon v. Newsom where the Court said something like, “As our previous decisions ought to have made clear, there are four principles, stop doing this.” Even though, it was totally unclear that those previous decisions were supposed to be establishing law. So that may have been the moment when they realized that they were confused about what they were doing.
Dan: Yeah.
Will: And now is the moment when they at least, a little bit, try to resolve the confusion. One of my colleagues suggested this sentence should be paraphrased as, you should take our interim orders seriously but not literally. There's a throwback to what people used to say about Trump's tweets. You understand, this is what we're going to do. But they don't actually take them to resolve the merits of the thing they talk about.
Dan: Except to the extent that they do.
Will: Yeah.
Dan: No, I mean, one of these orders could resolve the merits. It could just say, “We've gone through it and we think you win unlikelihood of success because your argument is right.”
Will: Well, I think it's still formally true that an interim order that says X is the law is not conclusive as to the proposition whether X is the law.
Dan: How can that be right?
Will: Because it's not a-- [crosstalk]
Dan: And what does that mean? Just that it wouldn't formally require overruling? I mean, obviously, in practical terms, it would accomplish that goal of establishing that X is the law.
Will: Well, I think it would definitely mean in any interim orders case, you have to assume the likelihood of success prong is 100%. Because that's where it said it's 100%. I guess his point is, it might still be that the court just lacks the power to actually change doctrine on the shadow docket even if they say-- [crosstalk]
Dan: Why would they lack that power? What if they just said they had that power? How would that violate Article III? I mean, where would that-- [crosstalk]
Will: The Supreme Court's making up all these rules. I'm just saying, by the rules they're currently making up, they've currently got a portion of their docket that's like the Mother, may I Docket. This is like unpublished opinions in courts of appeals. Unpublished opinions the courts of appeals have announced lack the power to change the law. Now, sometimes they say things that change the law, and it's just the meta rule that you have to put an asterisk on all those opinions because they didn't think about them very carefully. And currently, the shadow docket, the emergency orders docket, the interim relief docket, whatever, the lightning thunder docket occupy is like an unpublished opinions docket.
Dan: Yeah.
Will: But since the court's making up all these rules, it could make up new ones.
Dan: Okay.
Will: Okay.
Dan: Concurrence. One page concurrence by Justice Kavanaugh.
Will: Yep. A Kavanaugh classic. Justice Kavanaugh concurs in the grant of the application for a stay. He says, “But in addition to granting a stay, I would have granted cert before judgment, in this case or in Wilcox, we should get this issue.” And then he indeed explains, I think quite helpfully, “When an emergency application turns on whether this court will narrow overall precedent, in many cases, the better practice will be both to grant a stay and grant cert before judgment, because otherwise there's going to be extended uncertainty and confusion about the status of the precedent in question. Plus, in those circumstances, further percolation is not very useful because lower courts can't alter overall the precedent.” So, I would do that.
Dan: That seems, I think, correct. Right?
Will: Here's the puzzle, right?
Dan: Yeah.
Will: Isn't that so obviously correct that why does Justice Kavanaugh not have three other votes to grant cert?
Dan: Yeah, I mean, why are we waiting? So, I guess the posture right now is this case remains pending and the application is granted and then we're going to go through the Fourth Circuit and not exactly clear on what timeline, but go through the Fourth Circuit. Fourth Circuit will issue decision cert petition from that decision. How long is that going to take?
Will: Maybe a while.
Dan: Yeah, potentially.
Will: Yeah.
Dan: Yeah. Why not go ahead.
Will: Right. So, on the one hand, you have the other members of the majority who presumably also think that Trump should win on the merits and will eventually narrow or overrule Humphrey’s executor. And I guess they just want to do it later rather than sooner.
Dan: If you think about it this way, doing it formally is going to create a little bit more reputational blowback for the court. Obviously, doing this creates some reputational blowback because people who understand what they're doing, understand that they are practically overruling a very established, longstanding precedent. But it's going to be a little bit more controversial when they actually drive a stake through its heart. And they can functionally do that now by saying, “Stay all these decisions, don't grant that relief.” Basically, they're just like, you can't—“If Trump fires somebody, you got to let them be fired. And we'll get around to saying, giving you the full opinion, explaining why someday. But in the meantime, no rush.”
Will: I mean, it could be. This is what super friend of the show Jack Goldsmith calls temporizing. It's politically useful to the court to buy time because they've got a complicated portfolio of right-wing stuff to do and less right-wing stuff to do, and they got to bundle it in the right politically acceptable bundles. I find that really unattractive, but it may be happening.
Dan: What's the other explanation? You got another one?
Will: Well, so I think you might think there is some percolation needed not on the core proposition, but on the ancillary propositions the court's going to say something about why are these things different from the [Dan laughs] Fed or I naively thought I understood these questions until I started trying to follow the DC Circuit motions panels for the past couple months. So, what about the Inter-America Foundation? What about the Smithsonian? What about the Register of Copyrights, which each have these wrinkles about quasi private boards or a person who's appointed by somebody else who has a different tenure, there just turn out to be more wrinkles than you'd think if you were merely at a A- common law professor understanding of this topic. And maybe they know that.
Dan: You're better than A-.
Will: Wow. I gave the court A-, I don't think it's fair to give myself a higher grade.
Dan: [laughs] I give you, what is it, a 173. What's the good one?
Will: 173 is very bad, Dan.
Dan: Oh, it is. Okay. What's a good one?
Will: 186 is the highest grade, but it's really only given in historic cases. But I agree something funny going on here. Now just the only other thing is, of course the dissenters also could vote to grant cert. If the dissenters think this sort of extended Schrodinger's Humphrey's executor is a problem, the three of them could say, “Okay, we agreed with Justice Kavanaugh, grant now, do it or don't do it.”
Dan: Yeah. And if they think that it's beneficial to the majority to put off the decision, then they might say, “Okay, go ahead.”
Will: Right. Yeah. So, somehow neither side of the court, other than poor Justice Kavanaugh, wants to actually rule on this question that they all seem to have made up their minds about.
Dan: Yeah.
Will: So, I feel for Justice Kavanaugh here. I feel like he's got a point.
Dan: Yeah, I thought it was good. Then we have a three page, three Justice dissent by Justice Kagan, who is understandably very peeved at what the majority is doing here, reiterates some arguments that came up in her dissent in Wilcox, but also makes an interesting point that what the court seems to be doing here, it's building a body of precedent and its shadow docket that now they've got two cases and then presumably they're going to do it again. But ultimately you have this rich. What you might imagine is you have this rich body of cases all supporting one proposition, but they all rest on basically unexplained reasoning, which is a fair criticism.
Will: Yeah, it's a totally fair criticism. Now, I guess all process criticisms, will this really persuade anybody who's got strong views about the merits one way or another? Maybe not, but I think she's right.
Dan: Have I already made my Annie Hall analogy on the show about the Shadow Docket?
Will: I don't remember, but it's a good joke so you can make it, now.
Dan: I don't want to be one of those people that just repeats himself all the time.
Will: Well, Dan, we're over 100 episodes.
Dan: [laughs] Yeah, maybe I get to repeat myself once every 100 episodes, but yeah there's the monologue at the beginning of Annie Hall by Woody Allen, who tells the old Borscht belt joke about the two women complaining about a restaurant. One says, “The food there is terrible,” and the other says, “Yeah, in such small portions.” And I sort of think that's some of the criticism of the Shadow Docket. It was like that people object to how long stuff is and the procedures, but then they don't actually want a long opinion doing the bad thing.
Will: “The Supreme Court is making bad law, and they're not even making it.”
Dan: Yeah, right.
Will: The other thing it reminds me of, and this parallel is also in the article by Richard Re on a conservative Warren Court that I think I mentioned before on the show, now on SSRN.
Dan: Which is out, out.
Will: Yeah, well, out on SSRN, it's not-- [crosstalk]
Dan: Yeah, I mean, it's available to the public. Not yet formally published.
Will: The Warren Court did this famously after Brown v. Board of Education. Brown deals with segregation in the context of education. Goes out of its way to say, “We're only dealing with segregation in the context of education. This is just about education. Education's special because of these social science reasons, etc.” And then has a whole series of summary rulings applying Brown to other areas where it's just like, “What about segregated golf courses?” “Reversed, see Brown.” “What about buses?” “Reversed. See Brown,” without ever actually explaining how to extend it. But it did, just as Justice Kagan's describing. Sort of built up a whole line of precedents so that by the time it was done, it was like, “Oh, well, the court's been doing that for a while. We all know that.”
Even though there was never actually a point at which they explained how they got from point A to point B. Now, people complained about that at the time I think Alexander Bickel and Harry Wellington had a famous article criticized in the Supreme Court for opinions that do not opine.
Dan: [laughs] We get a fair amount of those these days.
Will: Steve Vladeck, the modern-day Alexander Bickle?
Dan: Maybe. Okay, so what else to say about this? I mean, I thought that she had a good line at the end, basically saying, “By means of such actions, this court may facilitate the permanent transfer of authority piece by piece, from one branch of government to another.”
Will: Yeah. Piece by piece by piece.
Dan: Oh, sorry. Yes.
Will: It's the great colorful, like the triple rep.
Dan: Yeah.
Will: Yeah.
Dan: Which I thought was nice. And I do think that this is a point she's leaning into, which is that the majority is coming at this with this formalist separation of powers perspective, but there really is another branch of government in question. And what the court really seems to be doing is embracing this very, very broad conception of executive power in a way that is casting aside a role for Congress. She calls back to McMahon v. New York, the Department of Education case, which is maybe a more striking example of that, where executive branch seems to just be dismantling an agency established by Congress that has a function and is just trying to say, “We're not going to do that anymore.”
Will: Yeah, no, I think it's a helpful reminder that what on its face could just seem like judicial restraint. The government is doing something and we're letting them. So that's kind of like the good judicial conservatism in many cases, including these cases. But executive power is not just doing nothing, really. It is, as she says, “Facilitating the transfer of authority from Congress and the laws it enacted to somebody else.” All right, we promised a short episode and that's all I have to say about it.
Dan: I don't either. So, a five pager from the Court, including the separate opinions, produces a hopefully less than 30-minute episode. And maybe there's other stuff happening in the world, but not going to talk about it.
Will: Not today.
Dan: Yeah. I guess the only other thing to note is there was an order that went out where the court-- [crosstalk]
Will: Granted a stay by the Turtle Mountain Band about the question of whether Section II of the Voting Rights Act has an enforceable private cause of action. The lower court had ruled that it does not, and the Supreme Court granted the stay in favor of the voting rights petitioners over the dissent of Justice Thomas, Justice Alito, Justice Gorsuch. It was a little bit of a maybe surprise victory and also helped make me a little more sane because this is one of the cases that has been driving me nuts.
Dan: Because you think it's wrong, the case below?
Will: Half wrong. So, Section II, the Voting Rights Act may or may not contain a private cause of action. That's a somewhat interesting question, but it's actually not really interesting because there's a separate rule that you can enforce. If you have a federal statute that grants rights but not a cause of action, you can enforce them using section 1983, because section 1983 says you can enforce rights conferred by laws of the United States. And the Voting Rights Act ought to have an enforceable cause of action under section of 1983, even if it doesn't have an enforceable cause of action by itself, and these are two different lines of doctrine. People sometimes get confused, and I think the Eight Circuit got them confused, frankly.
And then even in this term’s decision in Medina, which we have not yet covered and may not cover, the court said, “Well, when the statute has rights in the title and then talks about rights a lot, that's the kind of magic words that means it's enforceable under section 1983,” which guess what? The Voting Rights Act does.
Dan: The Voting Rights Act?
Will: That's what they call it. [chuckles] It's right there in the name.
Dan: All right.
Will: Well, thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks for continuing the overwhelming tide of emails that we cannot always respond to but always read and occasionally incorporate in the show.
Dan: And rate and review the website dividedargument.com, blog blog.dividedargument.com, store for merchandise store.dividedargument.com, email pod@dividedargument.com voicemail 314-649-3790 and if there's a long delay between this and our next episode, it will because we have irreparably split over disagreement about what to call the emergency or interim or shadow or whatever docket.
Will: The whatever docket.
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