UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1238
JOHN J. WALKER,
Plaintiff, Appellee,
v.
WALTHAM HOUSING AUTHORITY and EDWARD McCARTHY,
Defendants, Appellants.
No. 94-1239
JOHN J. WALKER,
Plaintiff, Appellant,
v.
WALTHAM HOUSING AUTHORITY and EDWARD McCARTHY,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Marianne B. Bowler, U.S. Magistrate Judge]
Before
Boudin, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Young,* District Judge.
Paul E. Stanzler with whom Elizabeth J. Maillett and Burns &
Levinson were on briefs for defendants.
Philip R. Olenick with whom Paul L. Nevins was on briefs for
plaintiff.
January 17, 1995
*Of the District of Massachusetts, sitting by designation.
BOUDIN, Circuit Judge. The appellant Waltham Housing
Authority ("WHA") is a public agency responsible for
providing low income housing in Waltham, Massachusetts. In
1987, appellee John J. Walker had served as the WHA's
executive director for over eleven years and was currently
serving in this position under a two-year written contract
due to expire on December 31, 1988. The WHA Board of
Commissioners consisted of five members, including Chairman
Louis D'Angio and appellant Edward McCarthy.
In the summer of 1987, the Board began a personnel
search to replace the WHA's retiring assistant executive
director. At a board meeting on August 12, Walker expressed
his dissatisfaction with the three finalists whom the Board
was considering. The Board nevertheless selected one of the
remaining candidates, Walter McGuire, to fill the position.
Believing that his contract gave him the final say on
hiring, and angered by the Board's action in selecting
McGuire over his objection, Walker presented Chairmen D'Angio
with a hastily scribbled letter of resignation and then left
the meeting. The letter read:
Mr. Louis D'Angio Chairman Waltham Housing
Authority, I hereby resign effective 6:50 p.m.
Aug. 12, 1987 and will file for retirement Aug. 13,
1987.
/s/ John J. Walker
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D'Angio passed the letter around to the other Board members,
and the Board voted unanimously to table Walker's resignation
for further consideration.
Following the meeting D'Angio, at the urging of Board
members, went to Walker's office to talk him out of
resigning. D'Angio returned the resignation letter to
Walker, placing it on his desk and telling him that the Board
wanted him to take it back. Walker said nothing but (he
later testified) put the letter in his shirt pocket,
believing that his resignation had been rejected. The next
day Walker came into the office and did not file papers
applying for retirement.
The Board scheduled a special meeting for August 17 to
address the matter of Walker's resignation, which was still
tabled. Three days before the meeting Walker told D'Angio
that he wanted three matters "handled" or "cleared up": a
modification of the assistant executive director's job
description; a $2,000 salary adjustment for Dorothy Boyle,
who was an assistant WHA administrator and Walker's sister-
in-law; and Board agreement to Walker's "strong input" into
selections for assistant executive director and two other
positions. D'Angio asked Walker not to attend the August 17
Board meeting but to let D'Angio present his position.
D'Angio did not tell the Board that he had given Walker
his resignation letter back. Instead, at the August 17
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meeting D'Angio declared that Walker would rescind his
resignation only if the Board agreed to meet three
conditions. The three conditions, presented as nonnegotiable
demands by D'Angio, were the same three matters that Walker
had told D'Angio at their August 14 meeting that he wanted
"cleared up." The Board had no objection to the first two
conditions, but balked at the third request--Walker's "strong
input" into the Board's selection of the top staff positions.
Two members of the Board, McCarthy and Joseph Pavone,
were concerned that Walker wanted the final say on hiring for
those positions; they asked if Walker would come before the
Board to discuss his position on this matter. D'Angio said
that the three conditions were a "take it or leave it"
proposition and that Walker would not appear to discuss them.
On McCarthy's motion, the Board then voted to accept Walker's
resignation. D'Angio joined in the unanimous vote but then
resigned as chairman, and McCarthy was elected to complete
D'Angio's term. Afterwards, D'Angio discussed with Alfred
Bergin, another Board member, the possibility of calling a
special meeting to "straighten the whole matter out." The
WHA's bylaws required the chairman to schedule a special
meeting of the Board upon the request of two members.
D'Angio believed that there were at least three Board
members--Bergin, Pavone and himself--that could be counted on
to vote for Walker's reinstatement at a special meeting.
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By letter dated September 3, D'Angio and Bergin
requested that McCarthy schedule a special meeting for
September 21 to discuss Walker's resignation. The proposed
date was significant because it was just before Bergin's term
on the Board was slated to expire on October 1. The letter
recommended that Walker be invited to address the Board. On
September 9, Walker himself sent a letter to the Board asking
for an opportunity to speak to them about "a few
misunderstandings" concerning his resignation.
McCarthy told a subordinate to ask an attorney whether
McCarthy had authority to defer the Board meeting, and the
attorney said that McCarthy had authority to select the date
himself although the meeting should be held at the earliest
time convenient for all members. After getting this legal
advice, McCarthy put off the requested meeting until October
7, six days after Bergin's departure from the Board.
Apparently, the attorney had no information about Bergin's
expected departure between the two dates.
McCarthy later testified that he had postponed the
meeting because of conflicts with his own heavy work schedule
in September, but also because he wanted Bergin's
replacement, Henry Walsh, to consider the issue of Walker's
resignation; Walsh, said McCarthy, would be living with the
outcome of the controversy during his term on the Board.
McCarthy spoke with Walsh about the issue of Walker's
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resignation before the special meeting, and Walsh told
McCarthy that he wanted nothing to do with that "mess."
Walker appeared before the Board on October 7, and
raised the same three matters that D'Angio had set forth at
the August 17 meeting. After hearing from Walker, who
requested his job back, the Board voted on whether to waive
its earlier acceptance of his resignation and to reinstate
him as executive director. Two members--D'Angio and Pavone--
voted for Walker's reinstatement, and one member voted
against it. Henry Walsh, Bergin's replacement on the Board,
abstained. Apparently breaking with Board tradition,
McCarthy as chairman then cast a no vote to create a tie,
which defeated the motion.
Walker filed suit against the WHA and McCarthy on
December 23, 1987, claiming that he had rescinded his
resignation prior to the Board's August 17 meeting, thereby
preventing the WHA from accepting it. As later amended, the
complaint set forth six counts:
Count I, brought under 42 U.S.C. 1983,
alleged that the WHA and McCarthy violated Walker's
due process rights by terminating him without a
prior hearing;
Counts II and III alleged that the WHA
breached Walker's employment contract and its own
personnel policies;
Count IV alleged that McCarthy tortiously
interfered with Walker's employment;
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Count V alleged that McCarthy violated the
Massachusetts Civil Rights Act, Mass. Gen. L. ch.
12; and
Count VI sought a declaratory judgment that,
as a result of the preceding conduct, Walker's
dismissal by the WHA was improper.
Walker requested compensatory and punitive damages,
reinstatement, back pay, attorney's fees and various other
forms of equitable relief.
On count I, Walker's section 1983 claim, the district
court granted summary judgment for McCarthy and for the WHA
"with respect to liability for monetary damages." The court
found that McCarthy was immune from section 1983 liability
because, given D'Angio's statements to the Board, McCarthy
was entitled to vote to accept what he believed to be
Walker's still outstanding resignation letter. As for the
WHA, the court ruled that D'Angio's alleged
misrepresentations to the Board on August 17 did not make the
WHA liable for damages, since D'Angio lacked final
policymaking authority to act for the WHA to alter Walker's
employment status.
Nevertheless, the district court ruled that Walker might
still be able to obtain equitable relief under count I in the
form of reinstatement as the WHA's executive director.
Framing this issue for trial, the district judge wrote:
[A]t least in the factual context of this case, if
Walker can convince the jury that he had
unconditionally rescinded his resignation prior to
the August 17 Board meeting and that D'Angio
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misrepresented that fact to the Board, then
plaintiff may be entitled to reinstatement as
Executive Director.
Thereafter, the district court granted summary judgment
in favor of McCarthy and the WHA, on counts II (breach of
contract), III (breach of personnel policies) and V (state
civil rights claim). On count VI (the declaratory judgment
claim) the court dismissed "[t]hose portions . . . having to
do with the counts that have been disposed of on summary
judgment . . . ." The court denied summary judgment for
McCarthy on count IV (Walker's tortious interference with
employment claim) ruling that McCarthy enjoyed no immunity
from intentional torts under Massachusetts law and that
Walker had raised a triable issue of fact as to McCarthy's
motivations in scheduling the October 7 special meeting and
voting at that meeting to create a tie.
This left for trial count I, limited to equitable relief
against WHA, count IV (the tortious interference claim
against McCarthy) and possible declaratory judgment. After
conferring with the parties, the district judge entered a
pretrial order. The parties agreed that the case would be
tried, with a jury, before a magistrate judge. They also
agreed that "the only issues to be tried," as framed by the
order, were:
(a) Whether Louis D'Angio misrepresented to the
Board of the Waltham Housing Authority
plaintiff's alleged revocation of his
resignation and, if so,
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(b) Whether Edward McCarthy tortiously interfered
with plaintiff's employment as the Authority's
executive director?
(c) The amount of damages. Plaintiff claims for
back pay at least to December 31, 1988,
medical insurance, life insurance, pension
benefits, and the use of an automobile. The
parties agreed to stipulate the amounts of the
separate elements of damages.
The parties also agreed to bifurcate the trial with issue (a)
to be tried first ("phase I"), to be followed by the trial of
issues (b) and (c) ("phase II"), if necessary, to the same
jury immediately after the verdict on issue (a).
Thereafter, the defendants moved to strike Walker's jury
trial demand on phase I, arguing that count I was now limited
to an equitable remedy triable to the court. The magistrate
judge denied the motion, noting that phase I of the trial
encompassed a factual determination--whether Walker had
withdrawn his resignation--that was common to both Walker's
equitable claim under count I and his legal claim under count
IV. The court said this issue should therefore be tried to
the jury, but the court would ultimately decide whether
equitable relief was warranted.
Trial on phase I then proceeded. The trial evidence has
already been summarized above in the light most favorable to
the verdict. Hendricks & Assoc., Inc. v. Daewoo Corp., 923
F.2d 209, 214 (1st Cir. 1991). On November 19, 1992, the
jury answered affirmatively each of the three questions
submitted to it on issue (a):
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1. Do you find from a preponderance of the
evidence that plaintiff John Walker has proven that
he rescinded or revoked his written resignation
prior to the August 17, 1987, board meeting?
2. Do you find from a preponderance of the
evidence that plaintiff John Walker has proven that
the rescission or revocation of his resignation was
unconditional?
3. Do you find from a preponderance of the
evidence that plaintiff has proven that Mr. D'Angio
misrepresented to the board on August 17, 1987, the
fact that plaintiff had unconditionally rescinded
or revoked his resignation?
The next day trial proceeded to phase II, to address
issues (b) and (c) outlined in the pretrial order. On
November 30, the jury found that McCarthy had tortiously
interfered with Walker's employment at the WHA and awarded
him $79,018.78 in damages. The jury also answered
affirmatively the following five questions in phase II:
1. Do you find from a preponderance of the
evidence that plaintiff had an employment
relationship with the Waltham Housing Authority?
2. Do you find from a preponderance of the
evidence that plaintiff has proven that defendant
McCarthy knew about this relationship?
3. Do you find from a preponderance of the
evidence that plaintiff has proven that defendant
McCarthy's interference, in addition to being
intentional, was malicious?
4. Do you find from a preponderance of the
evidence that plaintiff has proven that his loss of
employment relationship directly resulted from
defendant McCarthy's conduct?
5. Do you find from a preponderance of the
evidence that defendant McCarthy was motivated by
actual malice, amounting to malevolence, spite or
ill will?
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On April 5, 1993, the magistrate judge entered an order
denying Walker reinstatement under count I on the ground that
the equities weighed against reinstatement. The magistrate
judge initially ordered back pay as equitable relief and
declared that Walker's termination was improper but on
reconsideration vacated both awards--the former on the ground
that it was foreclosed by the district court's pretrial
rulings, and the latter on the ground that the WHA had acted
in good faith so that the termination could not be described
as improper.
Final judgment was entered on August 26, 1993, in favor
of the WHA and McCarthy on all claims except count IV. On
count IV judgment was entered for Walker against McCarthy in
the amount of $79,018.78. The court denied Walker's request
for attorney's fees under 42 U.S.C. 1988, finding that he
was not a prevailing party under that section. Both sides
have appealed to this court.
1. We first address Walker's challenge to the district
court's rulings that on count I McCarthy was entitled to
qualified immunity under section 1983 and that under that
section the WHA was not municipally liable for damages for
either McCarthy's or D'Angio's conduct. We review these
summary judgment determinations de novo, Maldonado-Denis v.
Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994), but
find no error.
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In dismissing the damage claims under count I, the
district court held that on the undisputed facts Walker had
submitted his resignation to the Board and thereafter had
given the Board no reason to think that the resignation had
been withdrawn. We agree that when McCarthy voted on August
17 to accept the resignation, he had no reason to think that
the Board was firing Walker or infringing upon any due
process right that Walker might have to a prior hearing
before being involuntarily dismissed. Feliciano-Angulo v.
Rivera-Cruz, 858 F.2d 40, 42-44 (1st Cir. 1988).
Accordingly, McCarthy had qualified immunity for his August
17 actions. Harlow v. Fitzgerald, 457 U.S. 800, 815-19
(1982).
Perhaps a municipality might in rare cases be liable for
a constitutional violation, even though the individual who
acted for it was protected by qualified immunity. See Owen
v. City of Independence, 445 U.S. 622, 647 (1980). But--
ignoring the other requisites for municipal liability, see
City of St. Louis v. Praprotnik, 485 U.S. 112 (1988)--in this
case it is difficult to see how there could be a
constitutional violation at all since a majority of the Board
reasonably thought that they had a voluntary resignation
before them. See Stone v. University of Maryland Medical
System, 855 F.2d 167, 172-75 (4th Cir. 1988).
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Walker says that McCarthy later acted in bad faith when
in October he blocked Walker's reinstatement. But nothing
McCarthy did after August 17 casts any doubt on his belief in
August that Walker's previously tendered resignation was
outstanding at that time. (Indeed, there is no evidence that
McCarthy acted in bad faith in October.) Walker's
alternative suggestion on appeal that the WHA might be liable
for D'Angio's misrepresentations is made in so cursory a
fashion that we regard it as waived. Ryan v. Royal Ins. Co.,
916 F.2d 731, 734 (1st Cir. 1990).
Walker next claims that the magistrate judge should have
ordered his reinstatement after the jury found that D'Angio
had misrepresented the status of Walker's resignation to the
Board. The Board responds that section 1983 is a fault based
statute and, since the Board was not at fault in accepting
the apparently outstanding resignation, the court had no
power to reinstate Walker. We need not resolve the legal
question whether there could be equitable relief without
fault, since the magistrate judge was unquestionably within
her authority in holding that the equities did not warrant
such relief.
At the time that court-ordered reinstatement became an
arguable option in late 1992, Walker's two-year contract had
long since expired. Further, Walker himself caused much of
the confusion, not merely by his impetuous resignation letter
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but by failing forthrightly to withdraw his resignation
thereafter, choosing instead to sponsor new demands as an
apparent condition of continuing as executive director. The
magistrate judge soundly exercised her discretion in finding
that Walker had no equitable claim to post-contract
reinstatement.
2. We come now to the difficult part of the appeal,
which is McCarthy's challenge to the verdict against him on
count IV. McCarthy's best argument is that the evidence
simply was not sufficient to permit a reasonable jury to find
that McCarthy tortiously interfered with Walker's employment.
The claim was rejected by the magistrate judge, who stressed
that the jury is entitled to great latitude in factfinding.
We agree with the principle but cannot, in this instance,
agree that a rational jury could find that McCarthy engaged
in tortious interference.
McCarthy's first argument is that the Board lawfully
accepted Walker's resignation on August 17 and thereafter,
when McCarthy took his challenged actions before and at the
special meeting on October 7, no employment contract existed
with which he could interfere. We have a different reason
for thinking that McCarthy could not be liable for tortiously
interfering with an existing contract. Whatever the status
of Walker's resignation, McCarthy reasonably believed that
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the resignation was outstanding on August 17 and that it had
been accepted, thus terminating the contract.
Under Massachusetts law, one cannot tortiously interfere
with a contract that one reasonably believes is not in
existence. See Yiakas v. Savoy, 526 N.E.2d 1305, 1309 (Mass.
App. Ct.), review denied, 529 N.E.2d 1346 (Mass. 1988) (actor
must have knowledge of contract and must know that he is
interfering with its performance). Accordingly, it does not
matter whether the Board's acceptance of the resignation was
based on a misunderstanding or even whether (in some Platonic
sense) the employment contract endured thereafter. McCarthy
cannot be liable for tortious interference with contract
rights that he had every reason to believe Walker had himself
abandoned.
The question whether the resignation was rejected by the
return of the letter might be of some importance if Walker
were appealing on his original contract claim, but he has
chosen not to do so. Even then it would be hard to resist
the conclusion that if the resignation was rejected by the
return of the letter, it was effectively renewed by allowing
D'Angio to assert nonnegotiable conditions for Walker's
return. It is even easier to conclude that McCarthy had no
reason to believe that the resignation had been withdrawn,
and that is sufficient to protect his vote to accept it.
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Walker, however, has a second string to his bow. In his
complaint, count IV focused on McCarthy's actions "in
preventing the Board . . . from rescinding" the prior
asserted termination of Walker. Under Massachusetts law,
this kind of interference with prospective employment
relations is, like interference with existing employment,
tortious if done out of actual malice or through improper
means.1 The magistrate judge so instructed the jury. There
is no showing that McCarthy's means were unlawful or
intrinsically unethical, so the question to be answered is
whether a reasonable jury could find that McCarthy acted with
actual malice.
The case for malice is extraordinarily thin. McCarthy
testified that he postponed the special meeting because it
was a busy period in his own regular job and because he
thought that it was right for Walsh as a new Board member to
consider a matter that would affect his own period in office.
Neither explanation was directly impeached; and whether the
latter reason is deemed good or bad, it is certainly a view
that could be entertained without malice. There is also no
1When an employer or supervisor is acting within the
scope of his employment responsibilities, the hiring and
firing decisions are privileged unless he acted with
malevolence. Gram v. Liberty Mutual Ins. Co., 429 N.E.2d 21,
24 (Mass. 1981). When a third-party contract is involved,
liability is tested differently. Compare King v. Driscoll,
638 N.E.2d 488, 494-95 (Mass. 1994) with Draghetti v.
Chmielewski, 626 N.E.2d 862, 870 n.14 (Mass. 1994).
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evidence that McCarthy's discussions with the new Board
member were improper or dishonest.
Nor do we think weight can be placed on McCarthy's
failure to tell the lawyer about the prospective change in
membership. McCarthy was assertedly concerned that he might
be under a legal obligation to call the meeting on the night
designated in the request for the special meeting and asked
someone else to check with the lawyer. There is no evidence
that McCarthy thought that the change in Board membership was
pertinent to this legal question and deliberately had this
information withheld from the lawyer.
Finally, McCarthy's casting of the tie vote, allegedly
against tradition for the WHA chairman, proves nothing about
malice. There is no claim that McCarthy broke any law or
rule. Based on Walker's behavior--the impromptu resignation,
the failure to come to the August 17 meeting, the apparently
non-negotiable demands--there was ample reason for McCarthy
to think that it would be in the best interest of the WHA if
someone else were to assume the role of executive director.
At trial Walker offered evidence that he had complained
to McCarthy that the latter's brother-in-law, also an
employee of the WHA, had been performing insufficient work,
and that McCarthy disagreed. Nothing in the fairly tame
evidence about this episode suggested that McCarthy had
become angry, threatened Walker, vowed revenge, or done
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anything else that would suggest that he harbored a
continuing desire to harm Walker.
What we have is a perfectly plausible story from
McCarthy, uncontradicted in either substance or detail, that
is consistent in every respect with permissible motives. The
jury might have thought it unfair that Walker, an eleven-year
veteran of WHA, forfeit his job because of one impulsive
step; it may have thought that McCarthy was uncharitable and
opportunistic. But it is impossible to understand how a
rational jury could infer malice by a preponderance of the
evidence when there is no evidence of malice at all.
Of course, the jury may simply have disbelieved
McCarthy's statement of his reasons; factfinders have a great
deal of latitude in appraising witnesses, cf. D'Orsay Equip.
Co. v. United States Rubber Co., 302 F.2d 777, 779-80 (1st
Cir. 1962), although one might think that there are some
limits where the story is plausible, consistent and wholly
uncontradicted. Cf. Frank Music Corp. v. Metro-Goldwyn-
Mayer, Inc., 772 F.2d 505, 514 n.8 (9th Cir. 1985). But even
if McCarthy were not credited in one particular or another,
Walker's burden goes beyond merely setting McCarthy's
testimony aside: the burden was upon Walker to show
affirmatively that McCarthy acted out of malice.
Most of the authorities say that one side cannot carry
its affirmative burden of proof on a fact by pointing to the
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possibility that the jury disbelieved the other side's denial
of the fact. United States v. Zeigler, 994 F.2d 845, 848-50
(D.C. Cir. 1993); Jannigan v. Taylor, 344 F.2d 781, 784-85
(1st Cir.), cert. denied, 382 U.S. 879 (1965); Dyer v.
MacDougall, 201 F.2d 265, 268-69 (2d Cir. 1952) (Hand, J.).
But others have disagreed, see United States v. Zafiro, 945
F.2d 881, 888 (7th Cir. 1991), aff'd on other grounds, 113 S.
Ct. 933 (1993), and the strength of such an inference could
vary greatly depending on context, including other evidence
and the logical force of the inference. Here, there is no
"other evidence" of malice and malice is not the only logical
alternative to believing in full McCarthy's account of his
own motives in postponing the meeting.
The Supreme Judicial Court of Massachusetts has stressed
that in tortious interference cases involving employment and
discharge, malice means "actual malice" and "[a]ny reasonable
inference of malice must . . . be based on probabilities
rather than possibilities." Gram, 429 N.E.2d at 24-25. The
court continued: "An inference of the probability of malice,
action motivated by spite, does not reasonably follow from a
showing, in these circumstances, only of negligence or of
sloppy and unfair business practices." Id. at 25. This is
virtually an epitaph on Walker's claim.
The remaining claims and arguments by both sides are
mooted by our decision. The appellants' numerous other
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attacks on Walker's monetary judgment need not be considered.
Likewise, Walker's claim that attorney's fees and costs
should have been granted him under Rule 54(d) and 42 U.S.C.
1988 fails since he has obtained no relief at all. The
judgment in favor of WHA and McCarthy on all claims other
than count IV is affirmed; the judgment in favor of Walker
and against McCarthy on count IV is reversed. No costs in
this court are awarded to either side.
It is so ordered.
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