                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
MARK ISSAC SNARR,                   )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                  Civil Action No. 19-1421 (ABJ)
                                    )
FEDERAL BUREAU OF PRISONS,          )
                                    )
                  Defendant.        )
____________________________________)


                                   MEMORANDUM OPINION

       On May 14, 2019, plaintiff Mark Isaac Snarr brought this action under the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552, against the Federal Bureau of Prisons (“BOP”),

alleging that the agency failed to produce records in response to two FOIA requests. Compl.

[Dkt. # 1] ¶¶ 36–44. In 2010, plaintiff was convicted and sentenced to death in a federal criminal

proceeding, id. ¶ 3, and in pursuing collateral relief, he has sought information on other inmates

connected to his prosecution. Id. ¶¶ 12–13. The FOIA requests were submitted to BOP in 2016,

id. ¶¶ 15, 27, and plaintiff has yet to hear a response. Id. ¶¶ 25, 34.

       Pending before the Court is defendant’s motion to dismiss for lack of subject matter

jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).        Def.’s Mot. to Dismiss

[Dkt. # 11] (“Def.’s Mot.”); Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. [Dkt. # 11] (“Def.’s

Mem. to Dismiss”). Plaintiff opposed the motion, Pl.’s Opp. to Mot. to Dismiss [Dkt. # 12] (“Pl.’s

Opp.”), and he filed a motion for leave to amend his complaint, pursuant to Federal Rule of Civil

Procedure 15(a)(2). Pl.’s Mot. to Amend Compl. [Dkt. # 14] (“Pl.’s Mot. to Amend”).
       At this point in the proceedings, plaintiff, who is represented by counsel, is entitled to

amend the complaint as of right. See Fed. R. Civ. P. 15(a)(1). But he has declined to do that.

Instead, he has insisted that the Court rule first on the motion to dismiss, and in that motion, the

defense has demonstrated this Court’s lack of jurisdiction over the original complaint. Once the

Court makes that finding, in accordance with plaintiff’s preferences, it lacks jurisdiction to

entertain a request for leave to amend to cure the jurisdictional problems. Given the strategy the

plaintiff has elected to employ, the Court will grant defendant’s motion to dismiss and deny

plaintiff’s motion for leave to amend.

                                         BACKGROUND

       Plaintiff is an inmate in a federal penitentiary in Terre Haute, Indiana. Compl. ¶ 3. Plaintiff

was convicted and sentenced to death in a federal criminal proceeding in the Eastern District of

Texas, see United States v. Snarr, 704 F.3d 368 (5th Cir. 2013), cert. denied, 140 S. Ct. 156 (2019),

and he has since moved for collateral relief pursuant to 28 U.S.C. § 2255 in a case that is now

pending in that district. Compl. ¶ 3. The Office of the Federal Defender for the District of Utah

(“UFPD”) represents plaintiff in those proceedings. Id. ¶ 12.

       In furtherance of its representation of plaintiff, UFPD submitted two FOIA requests to BOP

in July of 2016, seeking documents about individuals connected to plaintiff’s criminal prosecution.

Compl. ¶¶ 13, 17, 27–28. The complaint alleges that they were submitted “on Snarr’s behalf.” Id.

¶ 13. The federal public defender requested records related to two other inmates, id. ¶ 1: David

Wengler, who consented to the release of his information, Request Regarding Release of Records

Related to Inmate David Paul Wengler, Ex. A to Def.’s Mot. [Dkt # 11-1] (“Wengler Request”) at

5–8, and Danny Fortner, who was deceased when the request was submitted. FOIA Request for

Release of Records Related to Deceased Inmate Danny Dale Fortner, Ex. B to Def.’s Mot.




                                                 2
[Dkt. # 11-1] (“Fortner Request”) at 13–14. 1 While plaintiff asserts that these requests were made

on his behalf, the formal requests do not state that they were made on behalf of a third party; they

do not mention plaintiff’s name at all. See Wengler Request at 1–8; Fortner Request at 9–14.

Plaintiff does not dispute that the FOIA requests were not sent in his name. See Pl.’s Opp.

         Plaintiff alleges that over the course of the next three years, he followed up on the FOIA

requests multiple times, and defendant responded by confirming that they were at various stages

of “processing,” “review,” and awaiting “final review.” Compl. ¶¶ 18–21, 29–32. At the time of

the filing of this complaint, plaintiff had not received any of the requested records; nor had he

heard whether BOP intended to deny the request in full or in part. Id. ¶¶ 25, 34, 37, 42.

                                   STANDARD OF REVIEW

I.       12(b)(1) Motion to Dismiss

         In evaluating a motion to dismiss under Rule 12(b)(1), the Court must “assume the truth of

all material factual allegations in the complaint and ‘construe the complaint liberally, granting

plaintiff the benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins.

Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011), quoting Thomas v. Principi, 394 F.3d 970,

972 (D.C. Cir. 2005). Nevertheless, the Court need not accept inferences drawn by the plaintiff if

those inferences are unsupported by facts alleged in the complaint, nor must the Court accept

plaintiff’s legal conclusions. Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir.

2015).



1       Plaintiff’s complaint centers on these FOIA requests, Compl. ¶¶ 13–14, and the Court may
therefore properly consider them in resolving defendant’s motion to dismiss. See Gustave-Schmidt
v. Chao, 226 F. Supp. 2d 191, 195 (D.D.C. 2002) (“[I]n deciding a 12(b)(1) motion, it is well
established in this Circuit that a court is not limited to the allegations in the complaint but may
consider material outside of the complaint in an effort to determine whether the court has
jurisdiction in the case.”), citing EEOC v. St. Francis Xavier Parochial Sch., 117 F. 3d 621, 624–
25 n.3 (D.C. Cir. 1997).


                                                 3
       Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan

v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited

jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA,

363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with

an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as

well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction

upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003),

quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

       When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a

motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.”

Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S.

64 (1987). Rather, “a court may consider such materials outside the pleadings as it deems

appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v.

D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l

Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA,

402 F.3d 1249, 1253 (D.C. Cir. 2005).

II.    Fed. R. Civ. P. 15

       Under Rule 15, “a party may amend [his] pleading once as a matter of course within . . .

21 days after service of a motion under Rule 12(b)[.]” Fed. R. Civ. P. 15(a)(1)(B). Otherwise, “a

party may amend its pleading only with the opposing party’s written consent or the court’s leave.”

Fed. R. Civ. P. 15(a)(2).




                                                  4
       When a party seeks to amend its pleading pursuant to Rule 15(a)(2), the Court should

“freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2); see Firestone v.

Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996). When evaluating whether to grant a party’s

motion for leave to amend its pleading, the Court must consider (1) undue delay; (2) prejudice to

the opposing party; (3) futility of the amendment; (4) bad faith; and (5) whether the plaintiff has

previously amended the complaint. Atchinson v. District of Columbia, 73 F.3d 418, 425 (D.C. Cir.

1996), quoting Foman v. Davis, 371 U.S. 178, 182 (1962). While leave to amend pursuant to Rule

15(a)(2) should be “freely given,” Fed. R. Civ. P. 15(a)(2), it is broadly accepted that “‘if

jurisdiction is lacking at the commencement of a suit, it cannot be aided by the intervention of a

[plaintiff] with a sufficient claim.’” Pressroom Unions-Printers League Income Sec. Fund v.

Cont’l Assurance Co., 700 F.2d 889, 893 (2d Cir. 1983), quoting Pianta v. H.M. Reich Co., 77

F.2d 888, 890 (2d Cir. 1935). Thus, “if a plaintiff lacks standing to be before the court from the

time of the filing of the original complaint, there is no action for him to amend, since the court is

deprived of subject matter jurisdiction over the entire matter.” Lans v. Gateway 2000 Inc., 84 F.

Supp. 2d 112, 116–17 (D.D.C. 1999), aff’d 252 F.3d 1320 (Fed. Cir. 2001).

                                           ANALYSIS

       Defendant has filed a motion to dismiss arguing that plaintiff does not have standing to

bring an action under FOIA because he is not the person who submitted the FOIA requests. Def.’s

Mem. to Dismiss at 3–5. Plaintiff maintains that he has standing as an “unidentified principal,”

Pl.’s Opp. at 4, but he requests, in the event that the Court finds that he does not have standing,

that he be given leave to amend his complaint to substitute UFPD as the plaintiff pursuant to

Federal Rule of Civil Procedure 15(a)(2). Pl.’s Mot. to Amend at 1. Plaintiff does not seek to




                                                 5
amend as a matter of course, though he could have done so under Federal Rule of Civil Procedure

15(a)(1)(B). Id. at 2–3.

       The Court finds that plaintiff does not have standing to bring the FOIA claims, and it will

deny his request to amend the complaint. 2

I.     Plaintiff Lacks Standing to Bring a Claim Under FOIA

       “To state a case or controversy under Article III, a plaintiff must establish standing.” Ariz.

Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133 (2011); see also Lujan, 504 U.S. at 560.

Because “standing is a necessary predicate to any exercise of [federal] jurisdiction . . . if it is

lacking, then the dispute is not a proper case or controversy,” and the court does not have subject

matter jurisdiction to decide the case. Dominguez v. UAL Corp., 666 F.3d 1359, 1361 (D.C. Cir.

2012) (internal citation and quotation marks omitted).

       To determine constitutional standing, the Court looks to the face of the complaint. Haase

v. Sessions, 835 F.2d 902, 908 (D.C. Cir. 1987). To comply with the Article III standing

requirements, a plaintiff must show that:

               (1) [He] has suffered an “injury in fact” that is (a) concrete and
               particularized and (b) actual or imminent, not conjectural or hypothetical;
               (2) the injury is fairly traceable to the challenged action of the defendant;
               and (3) it is likely, as opposed to merely speculative, that the injury will be
               redressed by a favorable decision.




2       Two other districts have dealt with the precise circumstances present in this case and came
to the same conclusion. See Slaughter v. NSA, Civ. A. No. 15-5047, 2015 U.S. Dist. LEXIS
154322, at *3–*8 (E.D. Pa. Nov. 16, 2015) (granting defendant’s motion to dismiss for lack of
standing because the plaintiff was not named on the FOIA request, and denying plaintiff’s motion
for leave to amend the complaint to substitute the plaintiff with the party who submitted the FOIA
request, because a plaintiff without standing cannot amend an action that the Court has no
jurisdiction to consider); Wingate v. U.S. Dep’t of Homeland Sec., No. 8:11-cv-223-T-33AEP,
2012 U.S. Dist. LEXIS 75270, at *4–*8 (M.D. Fla. May 31, 2012) (same).


                                                 6
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180–81 (2000). “The party

invoking federal jurisdiction bears the burden of establishing” standing, Lujan, 504 U.S. at 561,

and when reviewing a standing claim, the Court must be “‘careful not to decide the questions on

the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiff[]

would be successful in [his] claims.’” In re Navy Chaplaincy, 534 F.3d 756, 760 (D.C. Cir. 2008),

quoting City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003).

        “[T]he Freedom of Information Act creates a private cause of action for the benefit of

persons who have requested certain records from a public agency and whose request has been

denied[.]” Halperin v. CIA, 629 F.2d 144, 153 (D.C. Cir. 1980), quoting United States v.

Richardson, 418 U.S. 166, 204 (1974) (Stewart, J. and Marshall, J., dissenting); see also 5 U.S.C.

§ 552(a)(4)(B) (“On complaint, the district court of . . . the District of Columbia, has jurisdiction

to enjoin the agency from withholding agency records and to order the production of any agency

records improperly withheld from the complainant.”); Feinman v. FBI, 680 F. Supp. 2d 169, 173

(D.D.C. 2010) (“The statute creates a private cause of action for the benefit of persons who have

requested certain records from a public agency and whose request has been denied. . . .”) (internal

quotation marks omitted). The denial of the right to receive this information constitutes an injury

in fact for standing purposes, “because he did not get what the statute entitled him to receive.”

Zivotofsky ex rel. Ari Z. v. Sec’y of State, 444 F.3d 614, 617–18 (D.C. Cir. 2006) (“The requestor

is injured-in-fact for standing purposes because he did not get what the statute entitled him to

receive.”); Feinman, 680 F. Supp. 2d at 172–73 (holding that plaintiff could not sue under FOIA

because “it is well established that standing under FOIA is limited to the person who made the

initial request”).




                                                 7
       When a party does not appear on a FOIA request, he lacks the necessary injury in fact to

establish standing to bring a claim in relation to that request. Feinman, 680 F. Supp. 2d at 173,

citing McDonnell v. United States, 4 F.3d 1227, 1236–37 (3d Cir. 1993). Courts have consistently

concluded that if an attorney submits a FOIA request on behalf of a client, and the client’s name

does not appear on the request, only the attorney has standing to pursue relief under the statute.

See The Haskell Co. v. U.S. Dep’t of Justice, No. 05–CV–1110, 2006 WL 627156, at *2 (D.D.C.

Mar. 13, 2006) (dismissing case for lack of standing because FOIA request was “submitted solely

by” plaintiff’s attorney and plaintiff was “not the real party in interest”); MAXXAM, Inc. v.

F.D.I.C., No. 98–CV–989, 1999 WL 33912624, at *2 (D.D.C. Jan. 29, 1999) (dismissing for lack

of standing because attorney “made the FOIA request in its own name” and plaintiff’s name did

not appear on the request); see also Burka v. U.S. Dep’t of Health and Human Servs., 142 F.3d

1286, 1290–91 (D.C. Cir. 1998) (denying a motion for attorney’s fees in a FOIA case where the

attorney requested records under his own name, even though he asserted that he represented an

undisclosed client; as the requestor of the records, he “had standing to bring this suit when his

FOIA request was denied” and was the “real party in interest” such that “[a]ny arrangements

[plaintiff] had with a third party [were] legally irrelevant for the purposes of his FOIA request.”).

       Other cases in this district have gone further to find that even where the client’s name is

mentioned in the FOIA request, the client would still lack standing if the attorney does not “clearly

indicate that [the FOIA request] is being made ‘on behalf of’ the [client] to give that [client]

standing to bring a FOIA challenge.” Three Forks Ranch Corp. v. U.S. Bureau of Land Mgmt.,

358 F. Supp. 2d 1, 2 (D.D.C. 2005); see Wetzel v. U.S. Dep’t of Veterans Affairs, 949 F. Supp. 2d

198, 202 (D.D.C. 2013) (“. . . [Plaintiff’s] name is mentioned in the requests, and there is some

indication of a representational relationship between the requestors and [Plaintiff]. But that is not




                                                  8
enough.”); Brown v. EPA, 384 F. Supp. 2d 271 (D.D.C. 2005) (allowing a FOIA claim to go

forward for a request made by counsel only when the request clearly indicated that it was being

made on behalf of the client in question).

       Plaintiff does not contend that he was named in any communications between the public

defender and the agency. He does not assert that his defense team made it clear to BOP that the

FOIA requests were submitted on his behalf, and the records supplied to the Court do not reflect

that he was mentioned. See Wengler Request; Fortner Request; Ex. C to Def.’s Mot. [Dkt # 11-1]

(“Wengler Correspondence”) at 15–18; Ex. D to Def.’s Mot. [Dkt # 11-1] (“Fortner

Correspondence”) at 19–23. Therefore, when BOP failed to respond to UFPD’s FOIA requests,

plaintiff did not suffer an injury in fact, and he does not have standing. Thus, the Court lacks

subject matter jurisdiction to hear his claim, see Dominguez, 666 F.3d at 1361–62, and it will grant

defendant’s motion to dismiss.

II.    Plaintiff May Not Amend His Complaint to Create Jurisdiction

       Plaintiff specifically asked the Court to resolve the issue of standing before determining

whether he should be allowed to amend his complaint; the record reflects that he made a strategic

decision to forego invoking his right amend as a matter of course under Rule 15(a)(1)(B). Pl.’s

Mot. to Amend at 2–3 (“Because the resolution of that question [of standing] has significance

beyond this case, Mr. Snarr would like to have it resolved.”). 3 Because the Court has determined




3      The circumstances of this case distinguish it from Richardson v. United States, 193 F.3d
545, 548 (D.C. Cir. 1999), in which the D.C. Circuit held that the district court erred when it
dismissed the pro se plaintiff’s case for lack of jurisdiction without considering the plaintiff’s
complaint “in light of his reply to the motion to dismiss,” where the reply was clear that he intended
to amend the complaint. Here, it would not be similarly appropriate for the Court to substitute its
judgment for that of counsel and simply deem plaintiff’s motion for leave to amend as an
amendment as of right, even though such an amendment would have been timely.



                                                  9
that plaintiff lacks standing to bring any FOIA claim against defendant and that it therefore lacks

subject matter jurisdiction to hear his case, the Court may not grant a motion to amend to create

jurisdiction. See Fed. R. Civ. P. 12(h)(3). Thus, it will deny plaintiff’s motion for leave to amend.

       While leave to amend pursuant to Rule 15(a)(2) should be “freely given,” Fed. R. Civ. P.

15(a)(2), it is broadly accepted law that “‘if jurisdiction is lacking at the commencement of a suit,

it cannot be aided by the intervention of a [plaintiff] with a sufficient claim.’” Pressroom, 700

F.2d at 893, quoting Pianta, 77 F.2d at 890. Courts in this district employ this rule to bar

amendments that would create jurisdiction by adding or substituting plaintiffs. See Wash. Tennis

& Educ. Found. Inc. v. Clark Nexsen, Inc., 270 F. Supp. 3d 158, 166 (D.D.C. 2017); Lans, 84 F.

Supp. 2d at 116. Therefore, “when subject matter jurisdiction is wanting because the plaintiff

presently named in the complaint lacks standing, a court cannot grant leave to amend under Rule




                                                 10
15 to add a plaintiff for purposes of curing the jurisdictional defect.” 4 Wash. Tennis, 270 F. Supp.

3d at 166.

        In Lans v. Gateway 2000, the plaintiff patent-holder had assigned the patent in controversy

to another company not party to the original lawsuit, and therefore lacked standing to sue for

infringement. 84 F. Supp. 2d at 113. Upon discovery of this defect, the plaintiff attempted to

substitute the assignee as the plaintiff via amendment pursuant to Rule 15(a). Id. at 114. The court

denied the plaintiff’s motion to amend, reasoning that “Lans seeks to retroactively create

jurisdiction by substituting [assignee] . . . the only party with standing to sue . . . as the plaintiff,”

in violation of the principal that “‘a plaintiff may not create jurisdiction by amendment where none

exists.’” Id. at 115, quoting 3 James Wm. Moore, et al., Moore’s Federal Practice § 15.14[3] (3d

ed. 1999). The district court reasoned that “if a plaintiff lacks standing . . . [at] the time of the




4       Plaintiff relies on case law outside this circuit to argue that he should be allowed to amend
his complaint to create jurisdiction. Pl.’s Reply to Def.’s Opp. to Pl.’s Mot. to Amend [Dkt. # 17]
(“Pl.’s Reply in Supp. to Amend”) at 1–2, citing Freight Drivers Pension Fund v. Penske Logistics
LLC, 784 F.3d 210, 218 (4th Cir. 2015); U.S. ex rel. Precision Co. v. Koch Industries, Inc., 31 F.3d
1015, 1018–19 (10th Cir. 1994). These cases are not binding on this court, and in any event, they
are distinguishable from the present situation.
        In Freight Drivers, the Fourth Circuit dealt with a Rule 15(c) relation back issue and
considered standing only peripherally. 784 F.3d at 218. Furthermore, the court noted that the
district court had explicitly granted leave to the plaintiff to amend his complaint before the
defendant took issue with it. Id. at 219. And the plaintiff, who had sued on behalf of the Pension
Fund in his capacity as a member of its board of trustees, amended his complaint to add the other
members of the board as co-plaintiffs – not to substitute the plaintiffs with new parties. Id. at 218.
Similarly, in ex rel. Precision Co., the plaintiffs amended as a “matter of course” pursuant to Rule
15(a)(1)(B) to add the company’s stockholders as co-plaintiffs. 31 F.3d at 1016–18. In the present
case, plaintiff seeks to amend his complaint to remove himself and substitute his counsel as
plaintiff. Pl.’s Mot. to Amend at 1. Plaintiff’s wholesale swap in the present case stands at odds
with the addition of group members that was incidentally approved in Freight Drivers, and was
made as a matter of course in ex rel. Precision Co. Plaintiff has explicitly disavowed his right to
amend as a matter of course. Id. at 2. The procedural and factual differences between the present
case and the cases on which plaintiff relies render them unconvincing.



                                                   11
filing of the original complaint, there is no action for him to amend, since the court is deprived of

subject matter jurisdiction over the entire matter.” 5 Id. at 116–17.

       Applying that reasoning, the Court finds that a “plaintiff may not substitute a new plaintiff

. . . for the purpose of creating jurisdiction.” Id. at 116; see Wash. Tennis, 270 F. Supp. 3d at 166

(relying on Lans in finding that party “cannot manufacture this court’s subject matter jurisdiction

through Rule 15(a)(2)”). Doing so would retroactively create jurisdiction where it had not existed

at the outset – effectively allowing an amendment when there is no pending action to amend.

                                         CONCLUSION

       For the foregoing reasons, defendant’s motion to dismiss will be granted, and plaintiff’s

motion for leave to amend will be denied.

       A separate order will issue.




                                              AMY BERMAN JACKSON
                                              United States District Judge

DATE: July 6, 2020



5       Plaintiff argues the district court’s conclusion in Lans “conflicts with several decisions of
the Supreme Court.” Pl.’s Reply in Supp. to Amend at 2–3, citing Willy v. Coastal Corp., 503
U.S. 131, 137–38 (1992), Grupo Dataflux v. Atlas Glob. Group, L.P., 541 U.S. 567, 568–73
(2004), and Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832–38 (1989). He cites cases
identifying situations in which courts may act without jurisdiction, such as when levying Rule 11
sanctions, id. at 3, or dismissing parties that would spoil otherwise acceptable jurisdiction after
judgment has been entered. Id. Those situations are distinguishable from the situation plaintiff
has voluntarily placed himself in here.


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