                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




 Illinois Department of Financial & Professional Regulation v. Rodriquez, 2012 IL 113706




Caption in Supreme         THE ILLINOIS DEPARTMENT OF FINANCIAL AND
Court:                     PROFESSIONAL REGULATION, Division of Professional Regulation,
                           Appellant, v. JACK V. RODRIQUEZ, M.D., Appellee.


Docket No.                 113706


Filed                      November 29, 2012
Rehearing denied           January 28, 2013


Held                       The statute providing for fees for invalidating an administrative rule does
(Note: This syllabus       not create a separate cause of action, and a fee request must be made
constitutes no part of     while the court invalidating the rule maintains jurisdiction over the
the opinion of the court   underlying issue.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the First District; heard in that court
Review                     on appeal from the Circuit Court of Cook County, the Hon. Sanjay Tailor,
                           Judge, presiding.



Judgment                   Appellate court judgment reversed.
                           Circuit court judgment affirmed.
Counsel on               Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro,
Appeal                   Solicitor General, and Carl J. Elitz, Assistant Attorney General, of
                         Chicago, of counsel), for appellant.

                         Stephen N. Roth and Nancy J. Brent, of Wilmette, for appellee.

                         Richard R. King and Sherri DeVito, of Chicago, for amicus curiae
                         Illinois State Medical Society.


Justices                 JUSTICE GARMAN delivered the judgment of the court, with opinion.
                         Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, Burke,
                         and Theis concurred in the judgment and opinion.


                                            OPINION

¶1        Plaintiff, Jack V. Rodriquez, filed a petition with the circuit court of Cook County
      seeking reimbursement of litigation expenses pursuant to section 10-55(c) of the Illinois
      Administrative Procedure Act (5 ILCS 100/10-55 (West 2008)). The petition followed a
      proceeding where Rodriquez successfully invalidated an administrative rule of the
      Department of Financial and Professional Regulations (Department). The circuit court
      granted the Department’s motion for summary judgment, concluding that Rodriquez’s claim
      for litigation expenses was barred by res judicata. The appellate court reversed the circuit
      court’s finding relating to litigation expenses and remanded the cause to the circuit court for
      a calculation of reasonable litigation expenses. 2011 IL App (1st) 102775. We granted the
      Department’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)). We have
      allowed the Illinois State Medical Society to file a brief amicus curiae pursuant to Supreme
      Court Rule 345 (Ill. S. Ct. R. 345 (eff. Sept. 20, 2010)). For the reasons that follow, we
      reverse the judgment of the appellate court and reinstate the circuit court’s original judgment.

¶2                                      BACKGROUND
¶3        In June 2000, the Department initiated an investigation into Rodriquez’s use of
      electroconvulsive shock treatment on a patient. Three years later, on June 3, 2003, the
      Department filed a complaint against Rodriquez alleging that Rodriquez violated section 22
      of the Medical Practice Act of 1987 (225 ILCS 60/22 (West 2002)). On a joint motion, the
      administrative trial was stayed while Rodriquez pursued two related circuit court actions.
      Accordingly, in 2004, Rodriquez filed his first complaint with the circuit court seeking an
      order compelling the issuance of deposition subpoenas related to the administrative trial. The
      circuit court denied the order and the appellate court affirmed. Rodriquez v. Department of
      Financial & Professional Regulation, 374 Ill. App. 3d 270 (2007).


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¶4        Rodriquez filed a second complaint in 2005, arguing that Rule 1110.220 (68 Ill. Adm.
     Code 1110.220 (2004)) of the Department’s administrative rules was invalid. Rule 1110.220
     contains the evidentiary hearsay rules applicable at the Department’s administrative hearings.
     The circuit court granted Rodriquez’s motion for summary judgment on October 17, 2005,
     invalidating Rule 1110.220. Thirty-one days after the entry of the judgment, the Department
     filed a motion for relief from judgment pursuant to section 2-1401 of the Code of Civil
     Procedure (735 ILCS 5/2-1401 (West 2004)). The circuit court granted the Department’s
     motion and vacated its prior judgment invalidating the rule. On June 22, 2007, the appellate
     court reversed, finding that the Department’s motion for reconsideration had been untimely
     filed, and reinstated the original order declaring the rule invalid. Rodriquez v. Illinois
     Department of Financial & Professional Regulation, No. 1-06-0236 (2007) (unpublished
     order under Supreme Court Rule 23).
¶5        Following the invalidation of the rule, on April 18, 2008, the Department sent Rodriquez
     a letter informing him that the Medical Disciplinary Board had determined that Rodriquez
     had not violated any rules and had ordered the case closed without prejudice. In response,
     Rodriquez filed a motion to dismiss the complaint with the Department’s hearing officer. The
     Department refused to dismiss the complaint, citing the Medical Disciplinary Board’s policy
     to close cases without prejudice, rather than dismiss the complaint.
¶6        Finally, on July 16, 2008, Rodriquez filed a petition for litigation expenses pursuant to
     section 10-55(c), which is the subject of this appeal. Under section 10-55(c), a litigant is
     entitled to litigation expenses when he has an administrative rule invalidated. The circuit
     court found that Rodriquez’s claim for litigation expenses was barred by res judicata, as it
     could have been brought with the prior litigation seeking to invalidate the rule, and granted
     the Department’s motion for summary judgment. The appellate court reversed, concluding
     that section 10-55(c) “allows for a plaintiff to bring an independent action to recover
     litigation expenses incurred while invalidating an administrative rule” and that res judicata
     did not apply because the operative facts giving rise to the claim for litigation expenses did
     not arise until the rule was invalidated. 2011 IL App (1st) 102775, ¶ 13. This court allowed
     the Department’s petition for leave to appeal pursuant to Supreme Court Rule 315 (Ill. S. Ct.
     R. 315 (eff. Feb. 26, 2010)).

¶7                                         ANALYSIS
¶8       The Department argues that section 10-55(c) does not create an independent cause of
     action for the recovery of fees, and therefore a petition for fees must be brought while the
     court maintains jurisdiction over the original action. Additionally, the Department argues that
     the doctrine of res judicata bars Rodriquez’s petition for fees. The Department requests that
     we reverse the appellate court’s decision and reinstate the circuit court’s judgment.
¶9       Rodriquez, however, maintains that section 10-55(c) creates a separate cause of action
     and the court retains indefinite jurisdiction to hear the petition for fees. Rodriquez further
     contends that res judicata does not apply because the claim for fees was unavailable to him
     until the rule was invalidated. Additionally, Rodriquez argues that the declaratory judgment
     provisions of the Code of Civil Procedure (735 ILCS 5/2-701 (West 2008)) provide an


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       applicable exception to the res judicata doctrine.
¶ 10       The circuit court granted summary judgment based on statutory construction and res
       judicata principles, and we review de novo. Advincula v. United Blood Services, 176 Ill. 2d
       1 (1996); Morris B. Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 565 (2000).

¶ 11                                        Section 10-55(c)
¶ 12       At issue is whether section 10-55(c) authorized Rodriquez to bring a claim for attorney
       fees more than one year after the rule was invalidated. The appellate court agreed with
       Rodriquez and ruled that section 10-55(c) authorizes an independent cause of action without
       any time limitation. The Department, however, argues that the petition for fees must be made
       while the court invalidating the rule maintains jurisdiction over the underlying litigation.
       Section 10-55(c) states:
                “In any case in which a party has any administrative rule invalidated by a court for
                any reason, including but not limited to the agency’s exceeding its statutory authority
                or the agency’s failure to follow statutory procedures in the adoption of the rule, the
                court shall award the party bringing the action the reasonable expenses of the
                litigation, including reasonable attorney’s fees.” 5 ILCS 100/10-55(c) (West 2010).
¶ 13       The principles of statutory interpretation are well established.
                     “The fundamental principle of statutory construction is to ascertain and give
                effect to the legislature’s intent. [Citations.] The language of the statute is the most
                reliable indicator of the legislature’s objectives in enacting a particular law.
                [Citation.] We give statutory language its plain and ordinary meaning, and, where the
                language is clear and unambiguous, we must apply the statute without resort to
                further aids of statutory construction.” Town & Country Utilities, Inc. v. Illinois
                Pollution Control Board, 225 Ill. 2d 103, 117 (2007).
       As section 10-55(c) provides for attorney fees, it is to be strictly construed. Carson Pirie
       Scott & Co. v. State of Illinois Department of Employment Security, 131 Ill. 2d 23, 49 (1989).
       Additionally, the purpose of section 10-55(c) “is to discourage enforcement of invalid rules
       and give those subject to regulation an incentive to oppose doubtful rules where compliance
       would otherwise be less costly than litigation.” Citizens Organizing Project v. Department
       of Natural Resources, 189 Ill. 2d 593, 598-99 (2000).
¶ 14       The Department focuses on the use of the phrase “the court” in section 10-55(c). It argues
       that under the plain language of the statute, “the court” refers to the specific court in which
       the claim for fees arose. Focusing on the same phrase, Rodriquez argues that the word
       “court” does not refer to a particular judge or division of the court, but rather the court as a
       whole.
¶ 15       The phrase “the court” may not be read in isolation. Rather, statutory phrases are to be
       interpreted along with other pertinent provisions of the statute. Town & Country Utilities,
       Inc. v. Illinois Pollution Control Board, 225 Ill. 2d 103, 117 (2007). Therefore, we must read
       “the court” together with the rest of section 10-55(c). The relevant language from section 10-
       55(c) reads, “In any case in which a party has any administrative rule invalidated *** the


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       court shall award the party bringing the action the reasonable expenses of the litigation.”
       When “the court” is read together with this phrase, it becomes clear that the fees are to be
       awarded by the court that invalidated the rule. Therefore, the fee request must be made while
       the court invalidating the rule maintains jurisdiction. While we agree with Rodriquez’s
       argument that the word “court” does not refer to a particular judge or division, we are not
       concluding that the fee petition must be made to the same judge who invalidated the rule.
       Rather, the petition for fees must be brought before the court that invalidated the rule, while
       it maintains jurisdiction.
¶ 16       Rodriquez points to this court’s decision in Nottage v. Jeka, 172 Ill. 2d 386 (1996), in
       support of his argument that section 10-55(c) provides an independent cause of action. In
       Nottage, this court held that section 508 of the Illinois Marriage and Dissolution of Marriage
       Act (750 ILCS 5/508 (West 2010)), which allows the court to award a party attorney fees,
       did not prevent a separate cause of action filed by the attorney seeking fees based on a breach
       of contract. Nottage is distinguishable from the present case. In Nottage, the party sought
       fees based upon a contractual provision. The party was not seeking fees under the statutory
       provision in the Illinois Marriage and Dissolution of Marriage Act.
¶ 17       Additionally, Rodriquez maintains that because the statute does not include an express
       time limitation, the petition for fees may be brought at any time.1 Rodriquez is correct that
       the court “must not depart from the plain language of the Act by reading into it exceptions,
       limitations, or conditions that conflict with the express legislative intent.” Town & Country
       Utilities, Inc. v. Illinois Pollution Control Board, 225 Ill. 2d 103, 117 (2007). The plain
       language of section 10-55(c), however, does in fact place such a limit. Under section 10-
       55(c), the petition for fees must be brought in the case in which the rule was invalidated. The
       legislature did not need to include a time limitation because the claim for fees necessarily
       arises in the same action in which the administrative rule is invalidated.
¶ 18       We conclude that the plain language of section 10-55(c) does not create a separate cause
       of action, and therefore the fee request must be brought while the court invalidating the rule
       maintains jurisdiction. Next, we must determine whether the court retained jurisdiction when
       Rodriquez’s petition for fees was filed on July 16, 2008. The parties disagree as to the
       relevant date the rule was invalidated. Rodriquez argues that the rule was invalidated twice,
       both when the circuit court invalidated the rule on October 17, 2005, and on June 22, 2007,
       when the appellate court reinstated the circuit court’s October 17, 2005, order. The
       Department disagrees, maintaining that only the circuit court’s October 17, 2005, order is
       relevant. We need not decide which date is pertinent. Applying either date, neither the
       appellate nor the circuit court retained jurisdiction when the fee petition was filed on July 16,
       2008.

¶ 19                                         Ripeness
¶ 20       Rodriquez also maintains that his claim for fees was unripe and therefore was unavailable

               1
                At oral argument Rodriquez conceded that at a minimum the default five-year statute of
       limitations would apply. 735 ILCS 5/13-205 (West 2010).

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       at the time the rule was invalidated. The appellate court agreed, concluding that the relevant
       operative facts did not arise until the regulation was declared invalid. The appellate court
       relied on Town of Libertyville v. Bank of Waukegan, 152 Ill. App. 3d 1066 (1987). In
       Libertyville, the court considered the defendants’ application for attorney fees made pursuant
       to section 7-123(a) of the Code of Civil Procedure, now section 10-5-70 (735 ILCS 30/10-5-
       70 (West 2010)). As Rodriquez and the appellate court point out, the court in Libertyville
       stated that the application for attorney fees “could not be made thereunder until final
       judgment in the condemnation suit” and that a litigant could “wait until the appeal process
       ends before filing an application or *** proceed at a time after the judgment is entered.”
       Libertyville, 152 Ill. App. 3d at 1073. We find Libertyville to be inapplicable to the issue at
       hand. First, the issue addressed in Libertyville was whether the circuit court lost jurisdiction
       to rule on the fee request after the plaintiff’s notice of appeal. Id. at 1072. Also, in
       Libertyville, the fee request was made within 30 days of the final judgment, while the court
       maintained jurisdiction.
¶ 21        Rodriquez cites two additional appellate court cases in support of his argument that the
       claim for fees was unripe and unavailable at the time the rule was invalidated. First, in Ardt
       v. State of Illinois, 292 Ill. App. 3d 1059 (1997), the plaintiff sought litigation expenses in
       the circuit court more than four years after the appellate court invalidated an administrative
       rule. Rodriquez points out that not only was the petition filed four years later, but it was also
       filed in a court other than the one that invalidated the rule. In reading Ardt, we must consider
       that the defendant challenged only the amount of the fees, not the circuit court’s authority to
       award litigation expenses arising from the prior litigation. As this issue was not raised, it was
       also not addressed by the court and has little impact on our analysis.
¶ 22        Rodriquez also looks to Berrios v. Rybacki, 236 Ill. App. 3d 140 (1992), for support.
       After filing workers’ compensation claims, the plaintiff in Berrios filed suit, challenging the
       validity of the Illinois Industrial Commission’s arbitration rules. In his initial complaint, the
       plaintiff sought attorney fees in the event that the rules were invalidated. Id. at 142. The
       circuit court upheld the rules at issue, but the appellate court found a rule to be invalid and
       remanded the cause to the circuit court. Id. at 142-43. During this process, the plaintiff and
       the Commission reached a settlement that authorized the plaintiff to receive attorney fees.
       Id. Eight months after the circuit court entered its order on remand, the plaintiff’s attorneys
       filed a petition for attorney fees. Id. at 143. The circuit court granted the fee request and it
       was affirmed upon appeal.
¶ 23        Rodriquez argues that Berrios shows that the court invalidating the rule (here the
       appellate court) need not be the court that awards the fees (here the circuit court) and that
       there is no time limitation for the fee request. Berrios, however, is not applicable to the
       present case. Even though the attorney’s petition for fees came months after the rule
       invalidating the rule, the plaintiff in Berrios requested the fees in his initial complaint.
       Furthermore, the parties in Berrios had reached a separate agreement entitling the plaintiff
       to fees.
¶ 24        Contrary to Rodriquez’s argument that his claim for fees was unavailable to him at the
       time Rule 1110.220 was invalidated, past litigants have made fee requests pursuant to section
       10-55(c) both with the initial claim to invalidate the rule and while the court retained

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       jurisdiction after invalidating the rule. In Citizens Organizing Project v. Department of
       Natural Resources, 189 Ill. 2d 593, 598-99 (2000), the plaintiff filed a petition for fees after
       it succeeded in having an administrative rule invalidated. Id. at 597. The exact date of the fee
       request is unclear, but this court noted that the petition was “timely filed” and that it was
       filed in conjunction with the same case in which the rule was invalidated. Id. Similarly, the
       defendant in County of Du Page v. Illinois Labor Relations Board, 231 Ill. 2d 593 (2008),
       filed its petition for litigation expenses with the appellate court that invalidated the rule.
       Although the fee request was filed after the order invalidating the rule, it was made before
       the opposing party filed its petition for leave to appeal, while the appellate court retained
       jurisdiction.
¶ 25        Furthermore, in Carson Pirie Scott & Co. v. State of Illinois Department of Employment
       Security, 131 Ill. 2d 23, 31 (1989), the plaintiff sought administrative review after the
       Director of Employment Services partially denied the plaintiff’s request to cancel some of
       the benefit wage charges filed against it. The circuit court reversed the Director’s final order
       and the plaintiff then filed a motion for attorney fees pursuant to the former section 1014.1(b)
       of the Illinois Administrative Procedure Act (now section 10-55(c)). Id. The circuit court
       denied the motion. The Department of Employment Services appealed and the plaintiff cross-
       appealed the circuit court’s denial of fees. Id. This court upheld the denial of attorney fees
       because the rule upon which the plaintiff relied was not invalidated by the circuit court. Id.
       at 50. While the exact date of the motion for fees is unclear, the motion was clearly filed in
       the circuit court that maintained jurisdiction before the case went on to appeal.
¶ 26        Additional appellate court cases support the conclusion that Rodriquez’s fee request was
       available at the time the rule was invalidated. See Pollachek v. Department of Professional
       Regulation, 367 Ill. App. 3d 331, 337 (2006) (upon remand, the plaintiff filed a second
       amended complaint claiming that a rule under the Nursing Act was invalid and made a
       request for attorney fees pursuant to section 10-55(c) within the same complaint); Hansen
       v. Illinois Racing Board, 179 Ill. App. 3d 353, 356 (1989) (awarding fees pursuant to former
       section 1014.1(b) (now section 10-55(c)) at the same time the court invalidated rule);
       Hernandez v. Fahner, 135 Ill. App. 3d 372, 374-75 (1985) (ruling on a section 10-55(c) fee
       request at the same time the court granted the plaintiff’s request for summary judgment).
¶ 27        As discussed above, the plain language of section 10-55(c) does not authorize an
       independent cause of action. In turn, the cases above demonstrate that Rodriquez’s claim for
       fees was available at the time he sought to have the rule invalidated. The fee petition could
       have been filed along with the original complaint seeking a declaratory judgment, or shortly
       after the rule was invalidated while the court maintained jurisdiction. By choosing to wait
       more than one year after the appellate court reinstated the circuit court’s invalidation of the
       rule, Rodriquez forfeited his right to fee reimbursement.

¶ 28                                       Collateral Matter
¶ 29       Rodriquez also urges this court to conclude that a fee request made under section 10-
       55(c) is a collateral action. Furthermore, Rodriquez contends that as a collateral matter, the
       circuit court retained indefinite jurisdiction to hear the fee request. This argument is without


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       merit.
¶ 30        Even if we assume that Rodriquez is correct that a fee request made pursuant to section
       10-55(c) is a collateral matter, Rodriquez establishes no support for his contention that the
       fee request may be made at any time. None of the cases cited by Rodriquez discuss whether
       a litigant may recover fees pursuant to section 10-55(c) in a separate cause of action. Rather,
       several cases cited by Rodriquez merely conclude that the circuit court retains jurisdiction
       over collateral matters even after a notice of appeal deprived the court of jurisdiction. See
       General Motors Corp. v. Pappas, 242 Ill. 2d 163 (2011) (relating to whether, after notice of
       appeal was filed, the circuit court maintained jurisdiction to award interest on tax refunds as
       provided by the Property Tax Code); Djikas v. Grafft, 344 Ill. App. 3d 1, 13-14 (2003)
       (finding that a motion for sanctions arising from conduct subsequent to the circuit court’s
       order did not eliminate the circuit court’s jurisdiction over the original order); Hartford Fire
       Insurance Co. v. Whitehall Convalescent & Nursing Home, Inc., 321 Ill. App. 3d 879 (2001)
       (focusing on whether a motion for fees affected the defendant’s ability to appeal the court’s
       judgment); Brown & Kerr, Inc. v. American Stores Properties, Inc., 306 Ill. App. 3d 1023
       (1999) (determining whether an order constituted a final judgment when the order did not
       rule on the parties’ claims for attorney fees that had been made with the original complaint
       and answer); Town of Libertyville v. Bank of Waukegan, 152 Ill. App. 3d 1066, 1072-73
       (1987) (finding that circuit court did not lose jurisdiction to hear fee petition after the filing
       of a notice of appeal).
¶ 31        Other cases cited by Rodriquez involved situations where the fee issue was separate from
       the issues in the underlying case, unlike the fees provided by section 10-55(c). See Moenning
       v. Union Pacific R.R. Co., 2012 IL App (1st) 101866 ¶¶ 4, 29 (determining that plaintiff’s
       attorney’s claim for fees pursuant to the Attorneys Lien Act (770 ILCS 5/1 (West 2010))
       addressed issues separate from the underlying issue); Djikas v. Grafft, 344 Ill. App. 3d 1
       (2003) (sanctions sought pursuant to the declaratory judgment provisions of the Code of
       Civil Procedure (735 ILCS 5/2-701(a) (West 2010))); People v. Herlinda M., 221 Ill. App.
       3d 957, 964 (1991) (concluding that fee request made pursuant to the Juvenile Court Act was
       “outside the issues involved in the principal action”).
¶ 32        We find Herlehy v. Marie V. Bistersky Trust, Dated May 5, 1989, 407 Ill. App. 3d 878
       (2010), to be on point. In Herlehy, the plaintiffs, relatives of the decedent, filed a cause of
       action for trust construction. The trial court granted defendant LaGrange Bank’s motion to
       dismiss on June 17, 2008. Id. at 886. More than one year later, on July 22, 2009, LaGrange
       Bank filed a motion for attorney fees pursuant to a document, signed by the plaintiff, that
       authorized the reimbursement of costs incurred by LaGrange Bank in connection with the
       decedent’s trust. Id. at 888. The court dismissed the defendant’s argument that the circuit
       court retained jurisdiction without limitation, and found that the trial court lost jurisdiction
       to hear the fee request 31 days after the last order or judgment was entered. Id. at 898-901.
       While Herlehy did not involve a fee request pursuant to section 10-55(c), the court’s analysis
       considered several cases involving section 10-55(c) fee requests in reaching its conclusion.
       Id. at 898-99. Herlehy stands for the general proposition that fee requests must be made
       while the court maintains jurisdiction.
¶ 33        Rodriquez fails to cite any authority in support of his argument that his petition for fees

                                                  -8-
       was a collateral matter of which the court retained indefinite jurisdiction. In sum, we hold
       that the court retained authority to award fees only while it maintained jurisdiction over the
       underlying issue.

¶ 34                                       Res Judicata
¶ 35      As we conclude that Rodriquez’s fee petition was untimely filed, we need not consider
       whether the fee request was barred under the doctrine of res judicata or whether the
       declaratory judgment provisions of the Code (735 ILCS 5/2-701 (West 2008)) provide an
       exception to the doctrine of res judicata.

¶ 36                                      CONCLUSION
¶ 37       Section 10-55(c) does not create a separate cause of action and, therefore, any fee request
       made pursuant to section 10-55(c) must be made while the court invalidating the rule retains
       jurisdiction over the underlying issue. Therefore, the petition for fees must have been filed
       with the initial complaint or brought while the circuit or appellate court retained jurisdiction.
       As he waited 33 months after the original circuit court order invalidating the rule and more
       than one year after the appellate court reinstated that order, the courts no longer maintained
       jurisdiction to hear his petition for fees. Accordingly, we reverse the judgment of the
       appellate court and reinstate the circuit court’s original judgment.

¶ 38       Appellate court judgment reversed.
¶ 39       Circuit court judgment affirmed.




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