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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
NAVY SEALs 1-3, et al.,
Plaintiffs,
v.
LLOYD J. AUSTIN, III in his official capacity as
United States Secretary of Defense, et al.,
Defendants.
Case No. 4:21-cv-01236-O
DEFENDANTS’ REPLY IN SUPPORT OF
THEIR ASSERTION OF MOOTNESS
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INTRODUCTION
Plaintiffs focus the majority of their opposition on the provision of the Secretary of Defense’s
recission memo that allows for individual commanders to consider a service members’ unvaccinated
status when making assignment, operational, and deployment decisions. But, on February 15, 2023,
the Navy updated its standard operating guidance to remove the distinction between vaccinated and
unvaccinated service members when making assignment and deployment decisions. As a result, no
service member’s vaccination status will be a presumptive barrier to any prospective assignment or
deployment. The issuance of this new guidance further supports a finding that any remaining aspect
of this litigation is moot. Accordingly, this case should be dismissed for lack of subject matter
jurisdiction.
ARGUMENT
I.
This Litigation is Moot And Plaintiffs Lack Standing.
A.
The Challenged Regulations Are Not In Effect.
When a statute or regulation is amended or repealed after plaintiffs bring a lawsuit challenging
the legality of that statute or regulation, mootness is “the default.” Freedom From Religion Found., Inc. v.
Abbott, 58 F.4th 824, 832 (5th Cir. 2023). Here, as explained in Defendants’ motion, ECF No. 222
(Defs.’ Br.) at 15-17, each of the regulations Plaintiffs challenge in their Complaint have been
rescinded. The Department of Defense (DoD) COVID-19 vaccination requirement has been
rescinded as directed by the National Defense Authorization Act for Fiscal Year 2023 (NDAA). See
ECF No. 214-1. The Navy has expressly cancelled NAVADMIN 190/21 and ALNAV 062/21, and
the derivative enforcement policies—NAVADMIN 225/21 and NAVADMIN 256/21—are similarly
withdrawn. ECF No. 223 at 3-7. Trident Order #12 was previously withdrawn and cancelled. Id. at
12-13. And the specific language of MANMED § 15-105(4)(n)(9) that Plaintiffs challenge, see Am.
Compl., ECF No. 84 ¶¶ 51, 75, 111, has been amended. ECF No. 223 at 9-10.
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Plaintiffs do not discuss MANMED § 15-105(4)(n)(9) and Trident Order #12 in their
opposition, conceding that those challenges are now moot; however, they take issue with the wording
of the rescission of NAVADMIN 225/21 and NAVADMIN 256/21. See ECF No. 224 (Pls.’ Opp.)
at 4-5. NAVADMIN 225/21 and NAVADMIN 256/21 were regulations for enforcing
NAVADMIN 190/21 and ALNAV 062/21, both of which have been expressly cancelled.
Enforcement of the defunct COVID-19 mandate has ceased, so NAVADMIN 225/21 and
NAVADMIN 256/21 have no ongoing effect. While Plaintiffs claim the word “suspend” in
NAVADMIN 190/21 means the Navy has plans to bring back these enforcement mechanisms even
though it has cancelled the actual requirement they enforced, the issuance of the new standard
operating guidance dispels that notion. See Ex. 1 (App001–004) (NAVADMIN 038/23 – Navy
COVID-19 Standardized Operational Guidance (SOG) 8.0 noting that the Secretary “rescinded the
COVID-19 vaccination requirement for Department of the Navy Service members”). In any event,
the Secretary of Defense’s recission memo makes clear that enforcement of the prior mandate must
cease with respect to any service members who made an exemption request. ECF No. 214-1. If there
is doubt, the Secretary’s directive controls. See 10 U.S.C. § 113; 10 U.S.C. § 8013(b).
B.
The Issuance of SOG 8.0 Eliminates Any Continuing Controversy Regarding
Deployment, Assignment, and Operational Decisions.
Plaintiffs spend the bulk of their brief arguing that the Navy’s prior operating guidance, which
limited assignment to operational units and deployment opportunities for unvaccinated service
members, creates a de facto mandate that allows them to maintain the litigation. See generally Pls.’ Opp.
at 1-14. 1 However, with the issuance of SOG 8, the Navy has effectively provided Plaintiffs and the
1 Plaintiffs cite NAVADMIN 093/22, Navy COVID-19 SOG 6.0 (Apr. 11, 2022), Pls.’ Opp. at 7, but
the most recent guidance prior to the issuance of SOG 8.0, Ex. 1 (App001–004), was NAVADMIN
234/22 Navy COVID-19 SOG 7.0 (Oct. 19, 2022), Ex. 2 (App005-012). Plaintiffs cast every
unvaccinated service member as being unvaccinated based on their religious beliefs. Pls.’ Opp. at 10.
But this is not the case, as Plaintiffs previously acknowledged. See, e.g., ECF No. 84 ¶ 42. The Navy’s
prior operating guidance treated service members unvaccinated for religious reasons exactly as it
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class members the relief they seek. Pls.’ Opp. at 10 (“Those sailors want to continue to serve in the
Navy and receive equal opportunity for promotions, assignments, benefits, and special pay as their
vaccinated peers….”). SOG 8 “rescinds and replaces [SOG 7.0] in its entirety, including the
requirement that all personnel assigned to operational Navy units be fully vaccinated against COVID-
19.” Ex. 1. It also explicitly states that “COVID-19 vaccination status shall not be a consideration in
assessing individual service member suitability for deployment or other operational missions.” Id. At
oral argument before the Fifth Circuit in this matter, Judge Ho asked Government counsel if there
are any assurances in the record that there will be no deployment decisions made on the basis of
vaccination. 2 Although such assurances are not required for a finding of mootness, see Freedom From
Religion Found., 58 F.4th at 835 n. 7, the Navy has in fact stated as much in its new SOG. Ex. 1. And
as previously noted in Defendants’ motion, ECF No. 222 at 12, 18-19, DoD’s travel policies were
updated on January 30, 2023, to eliminate the distinctions for vaccinated and unvaccinated service
members for travel purposes. In short, Plaintiffs have received the relief they sought both on a class-
wide and individual basis. Accordingly, not only is their claim moot, they no longer have a concrete
injury to maintain standing. TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021) (“Plaintiffs must
maintain their personal interest in the dispute at all stages of litigation.”).
C.
Plaintiffs’ Declarations Have Been Overcome By the Issuance of SOG 8 And
Should Not Be Considered Because they Refuse to Participate in Discovery.
With their opposition, Plaintiffs submitted twelve declarations from pseudonymous
Plaintiffs—all but two of whom have refused to participate in discovery—and from a class member
whom Plaintiffs never identified as having relevant information in their initial discovery disclosures.
treated service members unvaccinated for non-religious reasons. See Ex. 2 (App008) (“all personnel
assigned to operational Navy units shall be fully vaccinated against COVID-19.”). In any event, the
issue is now moot as explained herein.
2 See Oral Argument at 3:48 – 54, U.S. Navy SEALs 1-26 v. Biden, No. 22-10077 (5th Cir. Feb. 6, 2023),
available at https://www.ca5.uscourts.gov/OralArgRecordings/22/22-10077 2-6-2023.mp3
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See ECF No. 225 at 83-162. The vast majority of those declarants claim that they are being prevented
“from ever returning to an operational status, which directly harms their military career and inflicts
coercive pressure on them to take the vaccine.” See Pls.’ Opp. at 7 (citing ten declarations); see also id.
at 9 (citing eleven Plaintiff declarations). These declarations have now been overcome by the issuance
of SOG 8, which removes the barrier for unvaccinated service members to obtain Navy assignments,
deployments, and operational positions previously available to only vaccinated service members. See
Ex. 1 (App001-004).
But even if they had not been overcome by SOG 8, these declarations should not be
considered because these Plaintiffs have failed to comply with discovery rules. See FED. R. CIV.
P. 37(d)(1)(A) (providing for sanctions when a party fails to comply with discovery rules including
preventing a party from supporting their claims or defenses or from introducing matters in evidence).
All but the four class-representative Plaintiffs have steadfastly refused to participate in any discovery.
See ECF Nos. 198, 206, 211. They refused to produce a single document, answer a single interrogatory,
or sit for a deposition. Id. They have opposed Defendants’ two motions to compel, claiming that
they are not required to participate in discovery—even though they are parties to this litigation—and
claim they may be “passive” and “sit back and allow the litigation to run its course[.]” ECF No. 198,
at 3-4 (internal citations omitted). But continuing to submit declarations and asking the Court to rely
on them is anything but passive. Plaintiffs cannot have it both ways. They cannot continue to submit
evidence they want the Court to consider, while refusing to be questioned on that evidence by
Defendants.3
3 Even the two class representatives who have participated in discovery have failed to comply with
discovery rules because they have not updated their responses to Defendants’ Interrogatories seeking
information about adverse consequences they claim to have suffered as a result of the vaccination
requirement. See ECF No. 192 at 12. Plaintiffs have acknowledged “their continuing obligation to
supplement their responses to all discovery” and these questions in particular. ECF No. 198 at 13.
But to date they have only responded that Defendants should “see the transcript of the December 20,
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D.
The Navy Continues to Have A Process for Providing Religious
Accommodations to Service Members.
Plaintiffs also assert that the Navy has eliminated its process for providing religious
accommodations to service members. See, e.g., Pls.’ Opp. at 1, 5-6, 11-12. This assertion is simply
wrong. Plaintiffs appear to confuse the Secretary’s directive to discontinue processing requests for
the now-defunct mandate. See ECF No. 214-1. However, the next paragraph in the Secretary’s
directive shows that the military’s religious accommodation process remains. Id. (“Components shall
continue to apply the uniform standards set forth in DoD Instruction 1300.17, ‘Religious Liberty in
the Military Services.’”).
If Plaintiffs wish to seek a religious accommodation to be exempt from a current Navy
requirement, to include immunization requirements, they may do so using the procedures outlined in
Bureau of Naval Personnel Instruction 1730.11A. See Ex. 3 (App013-035) (2d Decl. of Gareth J.
Healy, (“Healy Decl.”) ¶ 7). But they cannot seek a religious exception from DoD’s August 24, 2021,
COVID-19 vaccination requirement and the Navy’s implementation of that requirement through
ALNAV 062/21 and NAVADMIN 091/21 because those requirements no longer exist. And they
cannot receive an accommodation from a non-existent policy. The requirement to be vaccinated
against COVID-19 in order to be assigned to a Navy operational unit has similarly been rescinded
with the issuance of SOG 8.0. See Ex. 1 (App001-004) (“rescind[ing] . . .the requirement that all
personnel assigned to operational Navy units be fully vaccinated against COVID-19,” and stating that
“[u]nder no circumstances shall a Commander mandate that any Navy Service member receive the
COVID-19 vaccination.”). If Plaintiffs were to face a COVID-19 vaccination requirement in the
future, they would be free to seek a religious accommodation at that time.4
2021 hearing in this matter.” See ECF No. 193 at 602, 620. Similarly, Lieutenant Commander (Select)
Beaird was never identified as a relevant witness in Plaintiffs’ Initial Disclosures.
4 The Navy has, however, permanently discontinued its staffing procedure developed to efficiently
manage and process the unprecedented influx of religious accommodation requests related to the
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E.
Any Claim for Money Damages is Subject to Tucker Act Jurisdiction.
Even though Plaintiffs sought only equitable relief in their Complaint, Plaintiffs continue to
speculate that they might have a claim for monetary damages. Pls.’ Opp. at 13-14. But a hypothetical
claim for damages cannot keep the litigation alive and would certainly be too individualized for class
treatment. In any event, as Defendants stated in their motion, if Plaintiffs had such a claim they would
have to cite a proper jurisdictional and factual basis for it, including what jurisdictional statute the
claim is being pled under and whether they missed payments for work actually performed. Defs.’ Br.
at 12-13. Plaintiffs cite Tanzin v. Tanvir, 141 S. Ct. 486 (2020), and argue that RFRA allows them to
obtain money damages from the Government. But Tanzin involved “a suit against individuals, who
do not enjoy sovereign immunity.” Id. at 492-93. And the Supreme Court acknowledged in Tanzin
that Sossamon v. Texas, 563 U.S. 277 (2011), held that identical “appropriate relief” language in the
related statute RLUIPA did not waive states’ sovereign immunity from money damages. 141 S. Ct. at
492-93. Plaintiffs have voluntarily dismissed their claims against individuals, and only official capacity
claims against the Government remain. See ECF No. 84. To the extent Plaintiffs have brought claims
for money damages under RFRA, those claims are barred by sovereign immunity.
II.
The Voluntary Cessation Exception Does Not Apply.
Plaintiffs misunderstand the nature of the exception to the mootness doctrine for voluntary
cessation. First, Plaintiffs continue to insist that Defendants’ rescission was voluntary, while
simultaneously acknowledging that the NDAA required “that the current vaccine mandate be
rescinded.” Pls.’ Opp. at 15. Plaintiffs argue that Defendants’ involuntary cessation does not suffice
because Defendants retained control over “[t]he specifics for how [the vaccination requirement] was
to be rescinded.” Id. This is irrelevant. Courts of Appeals regularly find that, when a statute
now-defunct DoD COVID-19 vaccination requirement. Healy Decl. ¶ 6 (App016). That
discontinuation only underscores that the vaccination requirement no longer exists, and this case is
moot.
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“compelled the termination of the [challenged] program,” “[t]he cessation of the program therefore
was not voluntary” and this mootness exception cannot apply. Klayman v. Obama, 759 F. App’x 1, 3
(D.C. Cir. 2019); see, e.g., Spell v. Edwards, 962 F.3d 175, 178-80 (5th Cir. 2020) (vacating as moot order
denying preliminary injunction in challenge to expired COVID-19 stay-at-home orders and explaining
“a statute that expires by its own terms does not implicate [the voluntary cessation exception] . . . .
[b]ecause its lapse was predetermined and thus not a response to litigation.”); Hall v. Louisiana, 884
F.3d 546, 553 (5th Cir. 2018) (explaining that an appeal “was mooted by actions of the Louisiana
legislature, which [was] not a party to th[e] suit”); Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116 (4th
Cir. 2000); Diffenderfer v. Gomez–Colon, 587 F.3d 445, 452 (1st Cir. 2009); see also Sea-Land Serv., Inc. (Pac.
Div.) v. Int’l Longshoremen’s & Warehousemen’s Union, Locals 13, 63, & 94, 939 F.2d 866, 870 (9th Cir.
1991). The NDAA required Defendants to rescind the vaccination requirement. The rescission was
therefore not voluntary. The analysis ends there.
Even were this Court to consider the rescission voluntary, the exception still does not apply
here. The central inquiry is “whether the defendant’s actions are ‘litigation posturing’ or whether the
controversy is actually extinguished.” Yarls v. Bunton, 905 F.3d 905, 910 (5th Cir. 2018). And courts
presume “that formally announced changes to official governmental policy are not mere litigation
posturing.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009), aff’d, 563 U.S. 277
(2011); see also Stauffer v. Gearhart, 741 F.3d 574, 582 (5th Cir. 2014) (“In an ordinary case, ‘subsequent
events’ would have to make it ‘absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.’ [Plaintiff’s] argument, however, ignores the ‘lighter burden’ that
government entities bear in proving that the challenged conduct will not recur once the suit is
dismissed as moot.” (quoting Sossamon, 560 F.3d at 325)).
Plaintiffs offer nothing to combat the presumption that Defendants’ “formally announced
changes” are “not mere litigation posturing.” Sossamon, 560 F.3d at 325. Indeed, Plaintiffs do not
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even allege—nor could they—that the rescission was intended to moot the instant litigation. See
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (explaining that the purpose of the exception for
voluntary cessation is to prevent a defendant from being able to “engage in unlawful conduct, stop
when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he
achieves all his unlawful ends”). Instead, Plaintiffs focus on incorrect and irrelevant facts. Plaintiffs
assert that “Defendants have made no representations that they will not continue to discriminate
against Plaintiffs.” Pls.’ Opp. at 17. To the contrary, Defendants have expressly made representations
that the policies they challenge and claim are “discriminatory” have been discontinued: Defendants
have released NAVADMIN 005/23 and ALNAV 009/23, which canceled NAVADMIN 190/21 and
ALNAV 062/21—the Navy’s implementation of the Department of Defense’s mandatory COVID-
19 vaccination requirement. Such “formally announced changes” render the case moot. Sossamon,
560 F.3d at 325. Plaintiffs further argue that the exception applies because “Defendants retain the
authority to reinstitute a new vaccine at any time.” Pls.’ Opp. at 15. But “the government’s ability to
reimplement
the statute or regulation
at
issue is insufficient
to
prove the voluntary-
cessation exception.” Freedom From Religion Found., Inc., 58 F.4th at 833; see also Sossamon, 560 F.3d at
325 (“We will not require some physical or logical impossibility that the challenged policy will be
reenacted[.]”). Accordingly, the exception for voluntary cessation does not apply.
III.
The Capable-of-Repetition-Yet-Evading-Review Exception Does Not Apply.
Plaintiffs also fail to carry their burden of establishing the mootness exception for issues
capable of repetition yet evading review. First, in an attempt to show that the vaccination requirement
was “in its duration too short to be fully litigated prior to its cessation or expiration,” Empower Texans,
Inc. v. Geren, 977 F.3d 367, 370 (5th Cir. 2020) (quoting Kingdomware Techs., Inc. v. United States, 579 U.S.
162, 170 (2016)), Plaintiffs rely on the fact that the vaccination requirement lasted “for less than 18
months,” Pls.’ Opp. at 18. But there is no such precise “calendar for evading review.” Empower Texans,
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Inc., 977 F.3d at 370. Rather, “[c]laims need to be judged on how quickly relief can be achieved in
relation to the specific claim.” Id. (emphasis added). The Fifth Circuit has explained that “cases involving
strikes, pregnancies, or elections” are prototypical examples of the “‘exceptional’ situations” in which
the exception may apply. See Meadows v. Odom, 198 F. App’x 348, 352 (5th Cir. 2006) (citation omitted).
As for Plaintiffs’ specific claims, vaccination requirements are not inherently too short to be
fully litigated. Plaintiffs rely on the argument that the SARS-CoV-2 virus “is constantly changing.”
Pls.’ Opp. at 18. But Plaintiffs fail to show that the challenged conduct itself—the vaccination
requirement—ever changed prior to its final rescission, or that it would have changed but for
Congress’ intervening legislation. That stands in contrast to Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63, 68 (2020), where the challenged conduct—the lockdown orders—constantly changed.
Indeed, Plaintiffs’ cited cases each involve challenged conduct that is inherently limited in time.
Plaintiffs cite Kingdomware Techs., 579 U.S. at 170, and Southern Pac. Terminal Co. v. ICC, 219 U.S. 498,
515 (1911), for the proposition that “two years is too short,” Pls.’ Opp. at 18. But those cases applied
to short-term procurement contracts. See Kingdomware Techs., Inc., 579 U.S. at 170. Similarly, Plaintiffs
cite First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 774 (1978), for the proposition that “18 months
is too short,” Pls.’ Opp. at 18. But that case applied to a constitutional referendum. See Bellotti, 435
U.S. at 774. Short-term contracts and referendums—like “strikes, pregnancies, or elections,” Meadows,
198 F. App’x at 352—are inherently limited in time. A vaccination requirement, in contrast, is
inherently unlimited in time. Indeed, the military’s other vaccination requirements have been in place
for many years, and in some cases, decades. See, e.g., ECF No. 44-1 at 47-52. The mere fact that the
vaccine requirement ended prior to a dispositive ruling is insufficient to trigger the exception.5 Thus,
5 Plaintiffs acknowledge that “complete judicial review” includes “review by the Supreme Court.” Pls.’
Opp. at 17–18. Here, the Supreme Court has weighed in on the primary issue Plaintiffs claim is
remaining in the case. Austin v. Navy SEALs 1–26, 142 S. Ct. 1301 (2022) (granting the government’s
application for a partial stay of the district court’s injunction as it applies to considering Plaintiffs
vaccination status in making deployment, assignment, and other operational decisions).
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even if Defendants were to reinstate the same challenged vaccination requirement, “there is no reason
to suppose that the issues . . . will in the future evade review.” S. Bell Tel. & Tel. Co. v. United States,
541 F.2d 1151, 1155 (5th Cir. 1976).
Plaintiffs also fail to carry their burden of establishing a “reasonable expectation” that
Defendants will reimpose the same challenged vaccination requirement. Libertarian Party v. Dardenne,
595 F.3d 215, 217 (5th Cir. 2010). Plaintiffs’ sole support for this prong is that Defendants allegedly
“retain the power to institute an identical” requirement. Pls.’ Opp. at 19. Even so, “[m]erely showing
that the government will ‘have an opportunity to act in the same allegedly unlawful manner in the
future’ is not enough to satisfy the second prong of the exception without a reasonable expectation
that the government will act in that manner.” Long v. Jayton-Girard Indep. Sch. Dist., No. 5:21-CV-111-
H, 2021 WL 7906835, at *4 (N.D. Tex. Sept. 3, 2021) (quoting Lopez v. City of Houston, 617 F.3d 336,
341 (5th Cir. 2010)). And indeed, “the Fifth Circuit has held that the mere possibility of COVID-19
worsening or COVID-19 policies being re-imposed is insufficient to satisfy the ‘reasonable
expectation’ requirement of the second prong.” Id. (citing Spell, 962 F.3d at 180). Plaintiffs fail to
show anything more than a “theoretical possibility” that Defendants might reinstate the same
challenged vaccination requirement. Murphy v. Hunt, 455 U.S. 478, 482 (1982).6 Accordingly, Plaintiffs
fail to carry their burden of establishing issues capable of repetition yet evading review.
CONCLUSION
For the foregoing reasons, the Court should dismiss Plaintiffs’ complaint for lack of subject-
matter jurisdiction.
6 Plaintiffs appear to argue that there is reasonable expectation that Defendants will reimpose the same
challenged vaccination requirement because Defendants have allegedly “implemented a de facto
mandate.” Pls.’ Opp. at 19. But as discussed above, the Navy has now expressly stated that “COVID-
19 vaccination status shall not be a consideration in assessing individual service member suitability for
deployment or other operational missions.” Ex. 1 (App002-003).
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Dated: February 21, 2022
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
ALEXANDER K. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director
/s/Amy E. Powell
ANDREW E. CARMICHAEL (VA Bar. No. 76578)
AMY E. POWELL
Senior Trial Counsel
STUART J. ROBINSON
Senior Counsel
ZACHARY A. AVALLONE
COURTNEY D. ENLOW
LIAM C. HOLLAND
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (919) 856-4013
Fax: (202) 616-8470
Email: Amy.Powell@usdoj.gov
Counsel for Defendants
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