[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 16, 2009
No. 08-15845 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 04-03243-CV-CAP-1
COREY AIRPORT SERVICES, INC.,
Plaintiff-Appellee,
versus
BEN DECOSTA,
KYLE MASTIN,
CAROLYN CHAVIS,
HUBERT OWENS,
ADAM L. SMITH, in their individual capacities
as officers and employees of the City of Atlanta,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(November 16, 2009)
Before EDMONDSON, BIRCH and COX, Circuit Judges.
PER CURIAM:
The City of Atlanta solicited bids for a contract to manage the advertising
displays at Hartsfield-Jackson International Airport. Plaintiff Corey Airport Services,
Inc. submitted a bid, but the City ultimately awarded the contract to the incumbent
advertising contractor, Clear Channel Outdoor, Inc. Corey, a self-proclaimed
political outsider, contends the bidding process was rigged. It sued the City and
individual City employees pursuant to 42 U.S.C. § 1983, claiming they conspired to
ensure Clear Channel, “a political elite,” would be awarded the contract, even though
acceptance of Corey’s bid would have been in the best interest of the City. Corey
asserts that this discriminatory “classification between political insiders and
outsiders” denied it equal protection of the laws.
The individual defendants Ben Decosta, Kyle Mastin, Hubert Owens, Adam
L. Smith, and Carolyn Chavis (“the Defendants”) contend they are entitled to
qualified immunity. They moved for summary judgment on this basis. The district
court denied the Defendants’ motion, and they appeal. We conclude that these
Defendants did not violate a clearly established constitutional right and are therefore
entitled to qualified immunity.
I. BACKGROUND
We basically accept the facts as stated in the district court’s order denying
summary judgment to the City employees. See Cottrell v. Caldwell, 85 F.3d 1480,
2
1486 (11th Cir. 1996) (“In exercising our interlocutory review jurisdiction in
qualified immunity cases . . . we have discretion to accept the district court’s findings,
if they are adequate.”) (citation omitted). We first review the factual background of
the case and summarize general contentions of bias in the bidding process before
proceeding to outline the evidence Corey offers to support its claims against these
individual Defendants.
In 2002, the City of Atlanta issued a request for proposal for a five-year
advertising contract at Hartsfield-Jackson International Airport. The successful
proponent would have the right to manage and rent out over 300 advertising display
locations throughout the airport. In exchange, it would pay a percentage of its
monthly gross receipts to the City as a rental payment. The incumbent contractor,
Clear Channel, continued to manage the airport advertising pending the award of a
new contract.
The request for proposal required bid proponents to project their gross receipts
for the five-year term and to commit to a monthly rent payment of at least sixty-
percent of those receipts. The request also provided for a minimum annual
guaranteed payment to the City if a contractor failed to attain projected revenues.
Each month, the advertising contractor would pay the City the rent payment, or one-
twelfth the minimum annual guaranteed payment, whichever was greater. The first
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payment would be due thirty-one days after execution of the contract. According to
Corey, if Clear Channel was awarded the new contract, it could continue to receive
revenue from advertisements it had installed under its old contract for the first month
of the new contract. Thus, Corey claims, the provision making the first rental
payment due thirty-one days after execution of the contract offered Clear Channel a
potential windfall equal to one month’s advertising revenues, approximately
$842,000. (R.34-591 at 69-70.) In contrast, a new advertising contractor would not
likely generate any revenue during the first month of the contract because it could not
obtain airport security clearance or approval for new advertisements prior to the due
date for the first month’s rent.1 Therefore, Corey argues, the thirty-one day rent
provision is evidence that bias in favor of Clear Channel was built into the request
for proposal. (Id. at 71.)
Corey, Clear Channel, and one other proponent ultimately submitted bids for
the advertising contract, which the City evaluated by awarding points based on
various criteria, including projected fees, past performance, the proponent’s financial
1
The request for proposal stated that the new contract would require City approval of all
advertising displays prior to their installation. The approval process would take approximately one
month. Also, persons associated with the installation, maintenance and management of the
advertising concession would be required to obtain airport security clearance. The City estimated
it would take sixty days to process new clearance requests.
4
condition, and experience in airport advertising. Corey’s proposal included an offer
to pay the City a higher percentage of its gross receipts than did Clear Channel’s
proposal, but Clear Channel’s proposal included higher overall revenue projections,
due, in part, to an assumption the City would increase the number of advertising
display locations. (R.34-591 at 15.) Ultimately, the City’s proposal evaluation team
awarded more points to Clear Channel’s bid than to Corey’s bid. The City selected
Clear Channel as the winning bidder, and these parties met to negotiate final contract
terms on November 14, 2002. Corey contends that, during these negotiations, the
City amended its original request for proposal and allowed Clear Channel to revise
its bid. Corey was not afforded the same opportunity.
In November 2002, Corey filed an administrative protest, challenging the
City’s selection of Clear Channel as the winning bidder. This protest was denied, but
an appeal remains pending. The Atlanta City Council has postponed action to ratify
the new contract pending the resolution of Corey’s challenges to the bidding process.
Corey calls attention to various acts of each Defendant that it argues
demonstrate that they conspired to manipulate the bidding process to favor Clear
Channel. We now summarize the relevant contentions against each Defendant:
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(1) Ben Decosta
Decosta was the Airport’s Aviation General Manager. He chose the team that
evaluated the proposals for the advertising contract and recommended that the City
award the contract to Clear Channel. According to Corey, Decosta had prior
knowledge of the meeting between the City and Clear Channel in November 2002 to
negotiate terms of the advertising contract and he did nothing to prevent its
occurrence.2
(2) Kyle Mastin
Mastin was the Airport Concession Manager. First, he drafted portions of the
request for proposals, including the terms that Corey claims favored incumbent Clear
Channel over other bid proponents. Mastin refused Corey’s request to modify or
remove these provisions. Second, Mastin was a member of the proposal evaluation
team. Corey presents evidence suggesting he manipulated the scoring of the
proposals to favor Clear Channel. Corey contends, for example, that Clear Channel’s
proposal included inflated revenue projections, that Mastin knew the projections were
2
This conduct is summarized from Corey’s Second Amended Complaint. (R.19-444 at 19.)
In opposing summary judgment, Corey made allegations of discriminatory acts by Decosta dating
from 2005-2007. (R.27-500 at 8-16.) The district court considered these acts in holding Decosta
is not entitled to qualified immunity. (R.34-591 at 58-68.) These allegations were not included in
Corey’s Second Amended Complaint and relate to facts occurring after Clear Channel was selected
the winning bidder. Because Corey cannot amend its Complaint by adding a new claim in its
summary judgment papers, we will not discuss conduct beyond the scope of the Second Amended
Complaint. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004).
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inflated, and that he used those projections in awarding extra points to the proposal.
Finally, Mastin participated in the November 2002 meeting with Clear Channel
representatives to negotiate the terms of the advertising contract. (R.34-591 at 68-
74.)
(3) Hubert Owens
Owens was the Director of the City’s Office of Contract Compliance. One
criterium in the proposal evaluation rubric awarded points if the proponent partnered
with a Disadvantaged Business Enterprise, certified by the Office of Contract
Compliance. Both Corey and Clear channel proposed to partner with Disadvantaged
Business Enterprises, Corey with Sydney Baxter & Co., and Clear Channel with
Creative Media Displays of Georgia. The Office of Contract Compliance certified
both as Disadvantaged Business Enterprises and awarded the same number of points
to Corey’s and Clear Channel’s proposals. Corey presents evidence, however, that
during the certification process Owens and his staff examined the application of
Corey’s partner more thoroughly than the application of Clear Channel’s partner.
Corey argues that if Owens and his staff had thoroughly examined the application of
Clear Channel’s partner, he would not have approved the Disadvantaged Business
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Enterprise application, and Clear Channel’s proposal would not have received as
many points. (R.34-591 at 74-75.)
(4) Adam L. Smith
Smith was hired as Chief Procurement Officer for the City in January 2003,
several months after the City selected Clear Channel as the winning bidder and after
Smith’s predecessor denied Corey’s bid protest. Corey argues that Smith
discriminated against Corey by neglecting to launch an independent investigation of
Corey’s bid protest. Also, Corey presents evidence that Smith knew there were
irregularities with the 2002 request for proposal, but he declined to cancel the bid and
issue a new request for proposal. (R.34-591 at 75-77.)
(5) Carolyn Chavis
Chavis was the City’s Aviation Contract Administrator. She served as the
contact person for bid proponents, receiving and answering questions about the
bidding process. Corey submitted three sets of questions to Chavis. She answered
the first two sets of questions, but not the third. In contrast, Chavis answered all of
Clear Channel’s questions. While Chavis claims the failure to answer the third set
of questions was a simple mistake, Corey argues it was a discriminatory act. (R.34-
591 at 77-79.)
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II. PROCEDURAL HISTORY
In 2004, Corey filed suit against the City, the individual Defendants identified
above, and several other entities and individuals, seeking relief based upon multiple
state and federal claims. The initial Complaint included 42 U.S.C. §1983 claims
asserting equal protection violations and conspiracy to violate Corey’s equal
protection rights. The district court dismissed several of the claims, but denied
several individual defendants’ motions to dismiss the § 1983 claims based on
qualified immunity. This court affirmed the denials, holding that the Complaint
sufficiently alleged violations of Corey’s equal protection rights. Corey Airport
Servs. v. City of Atlanta, 181 F. App’x 908 (11th Cir. 2006).
Corey filed a Second Amended Complaint in 2007. Counts I and II retain the
original equal protection and conspiracy claims. Count III seeks attorneys’ fees
pursuant to 42 U.S.C. §1988, Count IV asserts claims for Federal Restraint of Trade
and Conspiracy to Monopolize, and Count V asserts a Monopolization claim.3 The
City and the individual City employee Defendants moved for summary judgment on
the §1983 and §1988 claims, with the individual Defendants relying on the defense
3
Counts IV and V included antitrust and related claims against Clear Channel and other
defendants who were not City employees. In its order dated September 30, 2008, the district court
granted these private defendants summary judgment on these claims. We do not consider Counts
IV and V in this appeal.
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of qualified immunity. In an order dated September 30, 2008, the district court
denied the City’s motion for summary judgment; the claims against the City remain
pending and are not before us on appeal. The court also denied the individual
Defendants’ motions for summary judgment, holding they were not entitled to
qualified immunity. The individual Defendants appeal.
III. ISSUE ON APPEAL AND CONTENTIONS OF THE PARTIES
The issue on appeal is whether the Defendant City employees are entitled to
qualified immunity for this alleged violation of the Equal Protection Clause of the
Fourteenth Amendment.4 The Defendants contend Corey has not presented evidence
that they discriminated against it in violation of the Equal Protection Clause. The
Defendants also argue that, even if the evidence supports a finding of a constitutional
violation, they are nevertheless entitled to qualified immunity because they did not
have fair and clear notice that their conduct violated a clearly established
constitutional right.
Corey contends that it has presented sufficient evidence to show that each
Defendant treated Corey and Clear Channel unequally while they were similarly
4
Corey contends this court should refuse jurisdiction because the district court’s ruling is
heavily dependent on the resolution of existing factual disputes. The district court order, as it must
on summary judgment, views the facts in the light most favorable to Corey. We find no basis for
declining jurisdiction in this case.
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situated, with the intent to discriminate against Corey. These acts, it argues, violated
Corey’s right to equal protection. Further, Corey contends that in 2002 the law was
clearly established that unequal application of facially neutral laws between similarly
situated persons violates the Constitution. Therefore, Corey argues, the Defendants
are not entitled to qualified immunity.
IV. STANDARD OF REVIEW
We review a district court’s denial of summary judgment de novo, viewing all
evidence and drawing all reasonable inferences in favor of the non-moving party.
Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). Summary judgment is
appropriately granted if there is no genuine issue of material fact, and the moving
party is entitled to judgment as a matter of law. Galvez v. Bruce, 552 F.3d 1238, 1241
(11th Cir. 2008).
V. DISCUSSION
Qualified immunity shelters government officials performing discretionary
functions from “liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738
(1982) (citation omitted). The doctrine “balances two important interests—the need
11
to hold public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan, 555 U.S. __, 129 S. Ct. 808, 815
(2009). “Qualified immunity is ‘an immunity from suit rather than a mere defense to
liability . . . .’” Scott v. Harris, 550 U.S. 372, 376 n.2, 127 S. Ct. 1769, 1773 n.2
(2007) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815 (1985)
(emphasis omitted)).
The standard for qualified immunity is well established. First, the government
official must show that he was engaged in a “discretionary function” when he
committed the allegedly unlawful acts. Holloman ex rel. Holloman v. Harland, 370
F.3d 1252, 1263-64 (11th Cir. 2004). If the official acted within his discretionary
authority, “the burden shifts to the plaintiff to show that qualified immunity is not
appropriate.” Lee, 284 F.3d at 1194 (citation omitted). The plaintiff must satisfy the
two-prong test prescribed by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121
S. Ct. 2151 (2001); he must show: (1) the defendant violated a constitutional right,
and (2) this right was clearly established at the time of the violation. 533 U.S. at 201,
121 S. Ct. at 2156. By “clearly established” we mean “it would be clear to a
reasonable [official] that his conduct was unlawful in the situation he confronted.”
Id. 533 U.S. at 202, 121 S. Ct. at 2156. “If the plaintiff prevails on both prongs of
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this test, then the defendant is unable to obtain summary judgment on qualified
immunity grounds.” Holloman, 370 F.3d at 1264.
In performing the analysis, the district court first held that each of the
Defendants acted within his or her discretionary authority in committing the acts of
which Corey complains. (R.34-591 at 57.) Second, it considered whether the
Defendants violated Corey’s constitutional rights. The court found that Corey
presented evidence that the general structure of the request for proposal and the
overall selection process were “biased and manipulated by the City to the benefit of
Clear Channel and to the detriment of any non-incumbent bid proponents.” (Id. at
50.) It also found there are disputed issues of material fact as to whether “each
individual defendant’s conduct, as alleged, violated Corey’s right to equal
protection,” (id. at 78-79), and whether each defendant acted with discriminatory
intent. (Id. at 67, 74, 75, 77, 78.) Turning to the clearly established prong of the test,
the district court did not cite any case law with facts similar to those in this case.
Nevertheless, it held that “the individual City defendants had fair notice that their
alleged conduct and treatment of Corey would be unconstitutional.” (Id. at 82.) It
explained, “[a]ny reasonable government official would know that he or she must
13
administer his or her duties in a fair-handed and equal manner with regard to
similarly situated persons.” (Id. at 81-82.) Therefore, the court held, the Defendants
were not entitled to qualified immunity. (Id. at 82.)
The parties do not dispute that the Defendants acted within the scope of their
discretionary authority. (Appellee’s Br. at 29.) Thus, we consider only whether
Corey has satisfied the two-prong test. Saucier mandated consideration of both
prongs of the test; courts were instructed to first resolve whether the facts alleged
showed a violation of a constitutional right. Saucier, 533 U.S. at 201, 121 S. Ct. at
2156. “If, and only if, the court [found] a violation of constitutional right . . . [would
it] ‘ask whether the right was clearly established . . . .’” Scott, 550 U.S. at 377, 127
S. Ct. at 1774 (quoting Saucier, 533 U.S. at 201, 121 S. Ct. at 2156). The Supreme
Court recently changed course, however, and withdrew the requirement of adherence
to the Saucier protocol. Pearson, 555 U.S. at ___, 129 S. Ct. at 818. It reasoned
courts “should be permitted to exercise their sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be addressed first in light
of the circumstances in the particular case at hand.” Id. The Court explained that
“[b]ecause the two-step Saucier procedure is often, but not always, advantageous, the
judges of the district courts and the courts of appeals are in the best position to
14
determine the order of decisionmaking will best facilitate the fair and efficient
disposition of each case.” Id. at ___, 129 S. Ct. at 821.
In Pearson, the Court recognized that in some cases, “a court will rather
quickly and easily decide that there was no violation of clearly established law before
turning to the more difficult question whether the relevant facts make out a
constitutional question at all.” Id. at ___, 129 S. Ct. at 820. In these cases, courts
may prefer to consider only the question of clearly established law and not to reach
the constitutional question and risk “being insufficiently thoughtful and cautious in
uttering pronouncements that play no role in their adjudication.” Id. (quotation and
citation omitted). Because we conclude examination of the clearly established law
question will “best facilitate the fair and efficient disposition” of this case, we
consider only this prong of the qualified immunity analysis. We do not reach the
question whether Corey has presented sufficient evidence to show a constitutional
violation.
Corey claims to be the victim of political discrimination. It presents evidence
purporting to show that the individual Defendants conspired to apply facially neutral
procurement laws and policies to favor political-insider Clear Channel to the
detriment of and with the intent to discriminate against Corey, a political-outsider.
To support its claim that insider-outsider discrimination violates a clearly established
15
constitutional right, Corey relies on three cases: Snowden v. Hughes, 321 U.S. 1, 64
S. Ct. 397 (1944); Strickland v. Alderman, 74 F.3d 260 (11th Cir. 1996); and E&T
Realty v. Strickland, 830 F.2d 1107 (11th Cir. 1987). These cases all note the general
proposition that the Equal Protection Clause may be violated by an unequal
application of a facially neutral statute. Snowden, 321 U.S. at 8, 64 S. Ct. at 401;
Strickland, 74 F.3d at 264; E&T Realty, 830 F.2d at 1112. This broad statement,
however, was not made in the context of a decision holding that the Constitution had
been violated. In Snowden, the Supreme Court affirmed the dismissal of the
plaintiff’s case because he did not show he had been deprived of a constitutional
right. 321 U.S. at 13, 64 S. Ct. at 403. In Strickland, this court reversed a denial of
the defendant’s motion for judgment as a matter of law because the plaintiff’s claims
were not ripe. 74 F.3d at 266. In E&T Realty, this court vacated a judgment for the
plaintiffs on an equal protection claim because the district court applied an incorrect
legal standard in finding the parties were similarly situated and because the district
court made no finding of discriminatory intent. 830 F.2d at 1111, 1114. Because the
circumstances of this case differ from the circumstances of the cited cases and
because the courts in the cited cases did not hold that the defendants violated the
Constitution, we cannot conclude that these decisions made it clear that the conduct
at issue here violated the Constitution. Nor are we aware of any other relevant cases
16
decided prior to 2002 finding a violation of a constitutional right based on facts
similar to those in this case.
Therefore, to hold that Defendants violated Corey’s clearly established
constitutional rights, we must conclude that a court’s recitation of the highly general
principle—that unequal application of facially neutral law with the intent to
discriminate may violate the equal protection clause—in and of itself, offered the
defendants “fair warning that their [treatment of Corey] was unconstitutional.”5 Hope
v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002). Our precedents cannot
support this conclusion. For general principles to clearly establish the law, the case
must be an obvious one. See Brosseau v. Haugen, 543 U.S. 194, 199, 125 S. Ct. 596,
599 (2004). Because this is not such a case, the Defendants did not violate a clearly
established constitutional right and are therefore entitled to qualified immunity.
Corey argues that even though there was no relevant case law in 2002 with
facts similar to the facts of this case, “officials can still be on notice that their conduct
5
Corey also points to a two step test in Strickland as offering the defendants “fair warning”
that their conduct was unconstitutional:
In order to prevail on an equal protection claim based upon the application of a
facially neutral statute, it must be establish[ed] that: (1) the plaintiff was treated
differently than similarly situated persons; and (2) the defendant unequally applied
the facially neutral statute for the purpose of discriminating against the plaintiff.
Strickland, 74 F.3d at 264 (citation omitted). This test is also a general statement of law. It offers
the defendants no better warning than does the Equal Protection Clause of the Fourteenth
Amendment itself.
17
violates established law even in novel factual circumstances.” Hope, 536 U.S. at 741,
122 S. Ct. at 2516. Corey asserts that certain authoritative judicial decisions “may
establish broad principles of law that are clearly applicable in a variety of factual
contexts going beyond the particular circumstances of the decision that establishes
the principle.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1208-09 (11th Cir. 2007)
(citing Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002)). These decisions
“can control ‘with obvious clarity’ a wide variety of later factual circumstances.”
Vinyard, 311 F.3d at 1351. But, such decisions are rare. They arise where
“precedents are hard to distinguish from later cases because so few facts are material
to the broad legal principle . . . [that] factual differences are often immaterial to the
later decisions.” Id. Because “[w]e believe that most judicial precedents are tied to
particularized facts,” id., broad principles of law are generally insufficient to clearly
establish constitutional rights and “we must look to precedent that is factually similar
to the case at hand.” See Williams v. Consol. City of Jacksonville, 341 F.3d 1261,
1270 (11th Cir. 2003) (citation omitted).
Corey’s claims of insider-outsider political discrimination present not only
novel factual circumstances, but also a novel question of law. Corey cites no
precedent holding that insider-outsider political discrimination violates the
Constitution. Corey does not point to a single decision concerning political
18
discrimination, let alone one that could control, “with obvious clarity,” these factual
circumstances and offer the defendants “fair warning,” that is, made it clear, that their
acts violated the Constitution. The cases Corey relies on, Snowden, Strickland, and
E&T Realty, did not hold that a particular act or course of conduct violated a
constitutional right. They could not make it clear that manipulating a contract bidding
process to favor an incumbent contractor was—in fact and in law—the kind of
purposeful and unlawful discrimination that would violate the Equal Protection
Clause of the Fourteenth Amendment.6
At oral argument, counsel for Corey stated that the bidding process was “so
biased and slanted toward the incumbent Clear Channel that Corey advertising had
little if any opportunity to meaningfully participate.” Whether or not this be true,
Corey is not entitled to relief from the individual Defendants pursuant to 42 U.S.C.
§ 1983. The Defendants did not violate a clearly established constitutional right and
are therefore protected by qualified immunity from both the equal protection claim
and the conspiracy claim. See GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d
6
In the qualified immunity analysis, we generally compare the acts of each defendant to
analogous case law to determine whether each defendant has violated a clearly established
constitutional right. Here, however, because we find there is no relevant case law supporting the
Plaintiff’s theory of recovery, we need not consider separately the allegations against each
Defendant.
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1359, 1370 (11th Cir. 1998) (noting plaintiff must demonstrate a denial of
constitutional rights to sustain a conspiracy claim under § 1983).
VI. CONCLUSION
For the reasons stated in this opinion, we reverse the district court’s denial of
the individual Defendants-Appellants’ motions for summary judgment on qualified
immunity grounds and remand to the district court with instructions to grant the
Defendants summary judgment.
REVERSED AND REMANDED WITH INSTRUCTIONS.
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