                                                                   ()RIGINAI,
  ln tbe @nite[ btutes @ourt of felersl @lsfmg
                                                                           No. l5-723C. 15-799C
                                                                           Filed: March 16,2016

*:l * * ** **   'l * * '* *   '1.
                                    **   r.   * * * * *:+   +   * r.* * * * * * * * * *   *             FILED
                                                                                                      MAR   I   6 20t6
                                                                                                     U.S. COURT OF
MONTE LITTLE COYOTE &                                                                                FEDERAL CLAIMS
MARK WAYNE BALLARD.

          Plaintiffs, pro se,




THE UNITED STATES,

          Defendant.



****   ** *:t   *:+ * *   *:t*,* * * *** * * * * ** * * ** * * * * * *


Monte Little Coyote, Mariann4 Floida, pro                                                     se.


Mark Wayne Ballard, Marianna, Florida, pro                                                     se.


Melissa Baker, United States Department of Justice, Civil Division, Washington, D.C., Counsel
for the Govemment.

MEMORANDUM OPINION AND FINAL ORDER GRANTING THE GOVERNMENT'S
                     MOTION TO DISMISS

BRADEN,Jadge.
       RELEVANT FACTUAL BACKGROUND,                        1




       Mr. Monte Little Coyote currently is an inmate at the Federal Correctional Institution in
Marianna, Florida. Little Coyote Cornp|. at L M-r. Little Coyote plead guilty to aggravated
sexual abuse in violation of 18 U.S.C. gg 1153(a)r and 2241(a).J See United States v. Little

        ' The facts discussed herein were derived from: Mr. Little Coyote's July 13,2015
Complaint, ("Little Coyote Compl."); Mr. Ballard's July 28, 2015 Complaint, ("Ballard
Compl."); and the January 14,2016 Joint Response to the Govemment's Motion To Dismiss,
("Pls. Resp."). See Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir. 1999) ("Fact-finding
is proper when considering a motion to dismiss where the jurisdictional facts in the complaint . . .
are challenged.").

       2
           Section 1153(a) of the Indian Crimes Act   of   1976, in relevant part, provides:

                Any Indian who commits against the person or property of another
                Indian or other person any of the following offenses, namely,
                murder, manslaughter, kidnapping, maiming, a felony under
                chapter 109,4', incest, a felony assault under section I 13, an assault
                 against an individual who has not attained the age of 16 years,
                 felony child abuse or neglect, arson, burglary, robbery, and a
                 felony under section 661 of this title within the Indian country,
                 shall be subject to the same law and penalties as all other persons
                 committing any of the above offenses, within the exclusive
                jurisdiction of the United States.

l8 U.S.C. g l1s3(a).
       3
         Section 2241(a) of the Criminal Law and Procedure Technical Amendment Act of 1886,
in relevant part, provides:

                By force or threat-Whoever, in the            special maritime and
                territorial jurisdiction ofthe United States or in a Federal prison, or
                in any prison, institution, or facility in which persons are held in
                custody by direction ofor pursuant to a contract or agreement with
                the head of any Federal department or agency, knowingly causes
                another person to engage in a sexual act-

                (1) by using force against that other person; or

                (2) by threatening or placing that other person in fear that any
                person will be subjected to death, serious bodily injury, or
                kidnapping;

                or attempts to do so, shall be fined under this title, imprisoned for
                any term of years or life, or both.

l8 U.S.c. 9224r(a).
Coyote, Jr., No.CV I5-{3-BLG-DWM,2015 WL 4617443 (D. Mont. July 31, 2015). Mr.
Mark Wayne Ballard also is cunently an inmate at the Federal Correctional Institution in
Marianna, Florida. Ballard Compl. at 1. Mr. Ballard plead guilty to the charge of aggravated
sexual abuse, in violation   of   18 U.S.C. $$ l153(a) and   2241(a). Pls. Resp. at 4.

II,    RELEVANTPROCEDURALHISTORY.

         On July 13, 2015, Mr. Little Coyote filed a Complaint in the United States Court of
Federal Claims, alleging that the United States ("the Government") violated "the Taking[s.l
Clause, Due Process Clause, and the Non-Delegation Of Powers Clause of the United States
Constitution by charging and indicting Little Coyote[.]" Little Coyote Compl. at l. The July 13,
2015 Complaint also alleged that the Govemment failed "to define the element of 'force' to the
grand jury." Little Coyote Compl. at 1. In addition, the July 13,2015 Complaint also alleges
that the Government entered into an illegal contract by threatening to withhold "federal funding
if an increased amount of Indian cases were not submitted for federal indictments per month . . .
with the increased submissions enabled by . . . lowering the evidentiary threshold for federal
indictment from plausible to viable." Little Coyote Compl. at 2. The July 13,2015 Complaint
adds that govemmental acts violated the Fort Laramie Treaty of l85la and Fort Laramie Treaty
of 1868.' Little Coyote Compl. at 2. Finally, the July 13,2015 Complaint alleged that numerous

       o
           The Fort Laramie Treaty of 1851, in relevant part, provides:

                 In consideration of the [T]reaty stipulations, and for the damages
                 which have or may occur by reason thereof to the Indian nations,
                 parties hereto, and for their maintenance and the improvement of
                 their moral and social customs. the United States bind themselves
                 to deliver to the said Indian nations the sum of fifty thousand
                 dollars per annum for the term of ten years, with the right to
                 continue the same at the discretion of the President of the United
                 States for a period not exceeding five years thereafter, in
                 provisions merchandise, domestic animals, and agricultural
                 implements, in such proportions as may be deemed best adapted to
                 their condition by the President of the United States, to be
                 distributed in proportion to the population of the aforesaid Indian
                 nations.

Fort Laramie Treaty of 1851. 1l Stat. 749.

       '   The Fort Laramie Treaty of 1868, in relevant part, provides:

                If bad men among the whites, or among other people subject to the
                authority of the United States, shall commit any wrong upon the
                person or property of the Indians, the United States will, upon
                proof made to the agent, and forwarded to the Commissioner of
                Indian Affairs at Washington city, proceed at once to cause the
                offender to be arrested and ounished accordins to the laws of the
federal acts, including the Tribal Law & Justice Act, and Violence Against Woman Act were not
"published," pursuant to the Administrative Procedures Acl, 5 U.S.C. $ 551 et seq. C'APA).
Little Coyote Compl. at 2. On July 13, 2015, Mr. Little Coyote also filed a Motion For Leave To
Proceed./n Forma Pauperis. Mr. Little Coyote's case initially was assigned to the Honorable
Judge Lydia Kay Griggsby.



              United States, and also reimburse the injured person for the loss
              sustained.

              If   bad men among the Indians shall commit a wrong or depredation
              upon the person or property of [any] one, white, black, or Indian,
              subject to the authority of the United States, and at peace
              therewith, the Indians herein named solemnly agree that they will,
              upon proof made to their agent, and notice by him, deliver up the
              wrongdoer to the United States, to be tried and punished according
              to its laws, and, in case they willfully refuse so to do, the person
              injured shall be reimbursed for his loss from the annuities, or other
              moneys due or to become due to them under this or other treaties
              made with the United States; and the President, on advising with
              the Commissioner of Indian Affairs, shall prescribe such rules and
              regulations for ascertaining damages under the provisions of this
              article as in his judgment may be proper, but no one sustaining loss
              while violating the provisions of this [T]reaty, or the laws of the
              United States, shall be reimbursed therefor. . . .

              In lieu of all sums of money or other annuities provided to be paid
              to the Indians herein named under any [T]reaty or featies
              heretofore made, the United States agrees to deliver at the agency
              house on the reservation herein named, on or before the first day of
              August ofeach year, for thirty years, the following articles, to wit:

              For each male person over 14 years of age, a suit of good
              substantial woolen clothing, consisting of coat, pantaloons, flannel
              shirt, hat, and a pair of home-made socks.

              For each female over 12 years of age, a flannel shirt, or the goods
              necessary to make it, a pair of woolen hose, 12 yards ofcalico, and
               12 yards of cotton domestics.

              For the boys and girls under the ages named, such flannel and
              cotton goods as may be needed to make each a suit as aforesaid,
              together with a pair of woolen hose for each.

Fort Laramie Treatv of 1868. 15 Stat. 649.
         On July 28,2015, Mr. Ballard filed a separate Complaint in the United States Court of
Federal Claims, alleging that the Govemment violated the Due Process Clause of the Fifth
Amendment, Article I, Section 8, Clause 18 of the United States Constitution, and the APA,
because the Government threatened to withhold "federal contract funding[,] if an increased
amount of cases per month (including Ballards'      case      .) were not submitted for federal
indictments and prosecutions . . . with the increased submissions enabled by . . . lowering the
evidentiary threshold for federal indictment and conviction from plausible to viable;' Ballard
Compl. at 2. The July 28, 2015 Complaint also alleged that Congress illegally enacted l8 U.S.C.
$$ 1153(a) and 2241(a), because these statutes were not published, as required by the APA.
Ballard Compl. at 2. ln addition, the July 28, 2015 Complaint alleged that the Government
illegally required the Cherokee Tribe (of which Mr. Ballard is a member) "to relinquish [T]reaty
rights to education, health care, housing, law, and environmental protection by denying funding
for those programs[.]" Ballard Compl. at2. That same day, Mr. Ballard also filed: a Motion For
Leave To Proceed In Forma Pauperisl a Motion For Preliminary Injunction; a Motion For
Temporary Restraining Order; and a Notice Of Directly Related Cases: Little Coyote v. United
S/d/es, No. 15-723C: Fourstar v. United S/a/es, No. 15-l4C; Peters v. United States, No. 15-
528C; and Jones v. United States, No. 15-806C. Mr. Ballard's case was assigned to the
undersigned judge.

       On August 13, 2015, the Govemment filed a Motion To Consolidate And                   Stay
Proceedings in Little Coyote v. United States, No. l5-723C and Ballard v. United States,No. 15-
799C, until the court ruled on the Government's Motion To Dismiss in Peters v. United States,
No. 15-528C.

        On August 18, 2015, Little Coyote v. United States, No. 15-723C was reassigned to the
undersigned  judge. That same day, the court granted the Govemment's Motion To Consolidate
And Stay Proceedings in Little Coyote v. United States, No. l5-723C and Ballard v. United
Slcres, No. 15-799C, pending resolution of Peters v. (Jnited Stares, No. l5-528C.6

       On August 20,2015, Mr. Ballard filed another Motion For Leave To Proceed In Forma
Pauperis. That same day, the court granted Mr. Ballard's July 28,2015 and August 20,2015
Motions For Leave To Proceed 1n Forma Pauperis.

        On November 24,2015, the Government filed a Motion To Dismiss ("Gov't Mot.") the
consolidated cases Little Coyote v. United States, No. l5-723C and Ballard v. United Stdtes,No.
l5-7ggc, pursuant to Rules 12(bX1)7 and l2(b)(6)8 of the Rules of the United States Court of
Federal Claims f 'RCFC").


       6
         On November 10, 2015, the court dismissed the pro se Complaint in Pelers v. flnited
Stales, No. 15-528C. See Memorandum Opinion And Final Order, Peters v. United Slales, No.
15-528C, Dkt. No. 20 at 9.
       7
         RCpC 12(bX1), in relevant part, provides: "Every defense to a claim for relief in any
pleading must be asserted in the responsive pleading ifone is required. But a party may assert the
following defense[] by motion: Lack of subject-matter jurisdiction[.]" RCFC 12(bX1).
         On December 28,2015, Mr. Little Coyote and Mr. Ballard (hereinafter "Plaintiffs")
jointly filed a Response to the Government's November 24, 2015 Motion To Dismiss.

        On January 7,2016, the court granted Mr. Little Coyote's Motion For Leave To Proceed
In Forma Pauperis. On that same day, the court denied Mr. Ballard's Motion For Preliminary
Injunction And Restraining Order, because on November 10, 2015, the court issued a
Memorandum Opinion And Final Order in Peters lifting the Stay in Ballard. Ballqrd v. United
States, No. 15-799C, Dkt. No. 1 1 at 1. But, the court granted Mr. Ballard leave to file updaled
motions.

      On January 14,2016, the Govemment filed a Reply To Plaintiffs' Opposition To
Defendant's Motion To Dismiss ("Gov't Reply").

        On February 25,2016, Plaintiffs filed a Motion To Amend Complaints ("Pls. Mot.") to
include claims for: wrongful imprisonment; criminal indictment; $1,000,000 in compensatory
damages, plus interests and costs; appointment ofcounsel, and other relief appropriate under the
All Writs Act.' Pls. Mot. at       l-5. The amended claims arose from the alleged wrongful and
negligent restraint of Plaintiffs' rights by Federal Bureau of Prisons employees. Pls. Mot. 1-5.
Plaintiffs' also claim that their rights were violated under the Ex post Facto Clause;ro the Fort
Laramie Treaties of 1851 and 1868; the Racketeer Influenced and Corruption Organizations Act




       " RCFC 12(bX6), in relevant part, provides: "Every defense to a claim for relief in any
pleading must be asserted in the responsive pleading if one is required. But a party may assert the
following defense[] by motion: Failure to state a claim upon which relief can be granted[.]"
RCFC 12(bX6).
       e
           Section 1651 of the   All Writs Act, in relevant part, provides:
                (a) The Supreme Court and all courts established by Act of
                Congress may issue all writs necessary or appropriate in aid of
                their respective jurisdictions and agreeable to the usages and
                principles of law.

                 (b) An altemative writ or rule nisi may be issued by a justice or
                judge of a court which has jurisdiction.

28 U.S.C. $ 1651.

       r0 "An Ex post Facto Law is "[a] law that applies retroactively, esp. in a way that
negatively affects a person's rights[.]" BLACK'S LAW DICTIONARY 601 (7th ed. 1999).
The Ex post Facto Clause of the United States Constitution provides, "[n]o Bill of Attainder or
[E]x post [F]acto Law shall be passed." U.S. Const. art. I, g 9, cl.   3.
("RICO");tt and the Sixth,r2 Eighth,r3 and Fourteenth Amendmentra of the United States
Constitution. Pls. Mot. at 3. On that same dav. Plaintiffs also filed a Motion For Interlocutory


       '   ' Section   1962 of RICO, in relevant part, provides:

                   (a) It shall be unlaufi,rl for any person who has received any
                   income derived, directly or indirectly, from a pattern of
                   racketeering activity or through collection of an unlawful debt in
                   which such person has participated as a principal within the
                   meaning of section 2, title 18, United States Code, to use or invest,
                   directly or indirectly, any part of such income, or the proceeds of
                   such income, in acquisition of any interest in, or the establishment
                   or operation of, any enterprise which is engaged in, or the activities
                   of which affect, interstate or foreign commerce. A purchase of
                   securities on the open market for puposes of investment, and
                   without the intention of controlling or participating in the control
                   ofthe issuer, or of assisting another to do so, shall not be unlawful
                   under this subsection if the securities of the issuer held by the
                   purchaser, the members of his immediate family, and his or their
                   accomplices in any pattern or racketeering activity or the collection
                   of an unlawful debt after such purchase do not amount in the
                   aggregate to one percent of the outstanding securities of any one
                   class, and do not confer, either in law or in fact, the power to elect
                   one or more directors ofthe issuer.

                   (b)   It
                          shall be unlawfr.rl for any person through a pattern of
                   racketeering activity or through collection of an unlawful debt to
                   acquire or maintain, directly or indirectly, any interest in or control
                   of any enterprise which is engaged in, or the activities of which
                   affect, interstate or foreign commerce.

                   (c) It shall be unlawful for any person employed by or associated
                   with any enterprise engaged in, or the activities of which affect,
                   interstate or foreign commerce, to conduct or participate, directly
                   or indirectly, in the conduct of such enterprise's affairs through a
                   pattem ofracketeering activity or collection of unlawful debt.

                   (d) It shall be unlaw{ul for any person to conspire to violate any of
                   the provisions ofsubsection (a), (b), or (c) ofthis section.

18 U.S.C. $ 1962.

           "   The Sixth Amendment, in relevant part, provides:

                    In all criminal prosecutions, the accused shall enjoy the right to a
                    speedy and public trial, by an impartial jury of the State and
Appeal, Injunction, Temporary Restraining Order Relief And Motion For Relief Under All Writs
Act, Opposition To Motion To Dismiss.

      On March 3,2016, the Govemment filed a Motion To Stay Or For Enlargement Of Time
To Respond To Plaintiffs' Motions ("Gov't Reply").

III.   DISCUSSION,

       A.       Jurisdiction.

         The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28
U.S.C. $ 1491, "to render judgment upon any claim against the United States founded either
upon the constitution, or any Act of Congress or any regulation of an executive department, or
upon any express or implied contract with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort." 28 U.S.C. $ 1491(a)(1). The Tucker Act, however, is "a
jurisdictional statute; it does not create any substantive right enforceable against the United
 States for money damages . . . [T]he Act merely confers jurisdiction upon [the United States
Court of Federal Claims] whenever the substantive right exists." United States v. Teslan,424
u.s. 392, 398 (1976).



                district wherein the crime shall have been committed, which
                district shall have been previously ascertained by law, and to be
                informed of the nature and cause of the accusation; to be
                confronted with the witnesses against him; to have compulsory
                process for obtaining witnesses in his favor, and to have the
                Assistance ofCounsel for his defense.

U.S. Const. amend. VI.
       13
           The Eighth Amendment, in relevant part, provides: "Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const.
amend. VIII.

       la
            Section 1 ofthe Fourteenth Amendment, in relevant part, provides:

                 All persons born or naturalized in the United States, and subject to
                the jurisdiction thereof, are citizens ofthe United States and ofthe
                state wherein they reside. No state shall make or enforce any law
                 which shall abridge the privileges or immunities of citizens of the
                 United States; nor shall any state deprive any person of life,
                 liberty, or property, without due process of law; nor deny to any
                 person within its jurisdiction the equal protection ofthe laws.

U.S. Const. amend XIV, $ 1.
         To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an
 independent contractual relationship, constitutional provision, federal statute, and,/or executive
 agency regulation that provide a substantive right to money damages. See Todd v. United States,
 386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the litigant
 to identifu a substantive right for money damages against the United States separate from the
 Tucker Act[.]"); see also Fisher v. United States,402F.3d 1167,1172 (Fed. Cir. 2005) (en banc)
 ("The TuckerAct... does not create a substantive cause of action; ... a plaintiff must identify a
 separate source of substantive law that creates the right to money damages. . .   .  [T]hat source
 must be 'money-mandating."'). Specifically, a plaintiff must demonstrate that the source of
 substantive law upon which he relies "can fairly be interpreted as mandating compensation by
 the Federal Government[.]" Testan, 424 U.S. at 400. And, plaintiff bears the burden of
 establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force
 Exch. Serv.,846 F.2d 746, 748 (Fed. Cir. 1988) ("[O]nce the [trial] court's subject marter
jurisdiction [is] put in question . . . [plaintiff] bears the burden of establishing subject matter
jurisdiction by a preponderance ofthe evidence.").

       B.      The Court's Resolution.

                       a.     Pra   ^9e
                                          Considerations.

        The court is cognizant of its obligation to construe liberally pro se plaintiffs' pleadings.
See Estelle v. Gamble, 429 U.S. 97, 106 (197 6) (holding that the "pro se document is to be
liberally construed"). But, pro se plaintiffs still must "comply with the applicable rules of
procedural and substantive law;' ll/alsh v. United States, 3 Cl. Ct. 539,541 (1983). Therefore,
as a matter of law, the court is not at liberty to excuse a Complaint's failures. See Henke v.
United Stotes,60 F.3d 795, 799 (Fed. Cir. 1995).

                       b.     Whether The Court Has Jurisdiction To Adjudicate The
                              Claims Alleged In Plaintiffs' Complaints.

        As a threshold issue, the Fifth Amendment's Due Process Clause of the United States
Constitution is not money-mandating. "[I]t is well established that the [United States] Court of
Federal Claims lacks jurisdiction over [Fifth Amendment's Due Process irnd Double Jeopardy]
claims[,j because neither of the two clauses is a money-mandating provision." James v. Caldera,
159 F.3d 573,581 (Fed. Cir. 1998).

        The court also does not have jurisdiction to adjudicate the claims based on Article I,
Section 8, the Ex post Facto clause, the Eighth Amendment, and the Fourteenth Amendment of
the united States constinrtion; the Fort Laramie Treaties; or the APA. Article I, Section 8 of the
United states constitution, in relevant part, requires that congress "regulate commerce with
foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, $
8, cl. 3. But, the United States Supreme Court has held "the proposition that all constitutional
provisions are enforceable by any citizen simply because citizens are the ultimate beneficiaries
ofthose provisions has no boundaries." schlesinger v. Reservists comm. to stop the lhar,4l8
U.S. 208, 227 (1974). Similarly, the court does not have jurisdiction over matters arising out of
the Eighth Amendment and the Fourteenth of the United States Constitution; and the Ex post
Facto Laws, because they are not money-mandating. See Trafny v. United States,503 F.3d 1339,
1340 (Fed. Cir. 2007) ("The Court of Federal Claims does not have jurisdiction over claims
arising under the Eighth Amendment, as the Eighth Amendment is not a money-mandating
provision.") (internal quotations omitted); see also LeBlanc v. United States, 50 F.3d 1025, 1028
(Fed. Cir. 1995) (The United States Court of Federal Claims does not have jurisdiction over
claims arising under the Equal Protection Clause ofthe Fourteenth Amendment, because they are
not money-mandating provisions.); see Atlas Corp. v. United States, 15 Cl. Ct. 681, 691 (1988)
affd, 895 F .2d 745 (Fed. Cir. 1990) ("[T]here is no language in the [EJx post [FJacto lCllause
itself which requires the payment of money damages for its violation."). Moreover, although the
Complaints allege Treaty violations, the relevant provisions of the Treaties that require payment
of money have expired. See Fort Laramie Treaty of 1851, 1l Stat. 749; see also Fort Laramie
Treaty of 1868, 15 Stat. 649. In addition, "the APA does not authorize an award of money
damages at all; to the contrary, Section l0(a) of the APA, 5 U.S.C. $ 702, specifically limits
[that] Act to actions seeking relief other than money damages." Wopsock v. Natchees,454 F.3d
1327, 1333 (Fed. Cir. 2006) (intemal quotations omitted).

       In addition, the court does not   have   jurisdiction to adjudicate malters arising from the
 Sixth Amendment of the United States Constitution and RICO. because the court does not have
jurisdiction over matters stemming from criminal claims. See Joshua v. United States, 17 F.3d
 378,379 (Fed.Cir.1994) (The United States Court of Federal Claims "has no jurisdiction to
 adjudicate any claims whatsoever under the federal criminal code").

       As for Plaintiffs' Fifth Amendment Takings Clause claims, to establish             standing,
Plaintiffs must show:

               (l) [they have] 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.

Friends ofthe Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,528 U.S. 167, 180-81 (2000).

        In this case, the Complaints do not allege what specific private property interest the
Govemment has taken. See KC Res., Inc. v. United States, 115 Fed. Cl. 602,603 (201$ affd,
607 F. App'x 993 (Fed. Cir.2015) ("[A Takings Clause claim] accrues only to the owner ofa
property right interest at the time a [T]aking occurs."). Nor do the Complaints allege that
Plaintiffs have suffered specific "injury in fact." Because the Complaints failed to show an
"injury in fact," the court need not address the remaining elements ofstanding.

        For these reasons, the court has determined that it does not have jurisdiction to adjudicate
the claims allesed in Plaintiffs' Comolaints.




                                                  l0
II.    CONCLUSION.

       For these reasons, the Govemment's November 24,2015 Motion to Dismiss is granted.
.See RCFC l2(bxl). Other pending motions are moot. The Clerk is directed to dismiss the July
 13,2015 and July 28, 2015 Complaints.

       IT IS SO ORDERED.


                                                         ,,   vv
                                                 SUS$I G. BRADEN
                                                 Judge




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