05-6773 -cv
Seidemann v. Bowen


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                              August Term, 2006

 (Argued: December 20, 2006                                                   Decided: August 1, 2007)

                                            Docket No. 05-6773-cv

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DAVID SEIDEMANN,

                  Plaintiff-Appellant,
         -v.-

BARBARA BOWEN, PERSONALLY AND IN HER CAPACITY
AS PRESIDENT OF THE PSC/CUNY (PROFESSIONAL STAFF
CONGRESS/CITY UNIVERSITY OF NEW YORK), AND
PSC/CUNY*

                  Defendants-Appellees,
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         Before: HON. ROSEMARY S. POOLER,
                 HON. ROBERT D. SACK,
                 HON. PETER W. HALL,
                                      Circuit Judges.


       Plaintiff-Appellant David Seidemann appeals from an order of the United States District
Court for the Eastern District of New York (Bloom, M. J.) granting summary judgment in favor
of Defendants. We hold that a union may not require agency fee payers to object annually to
expenditures unrelated to the collective bargaining process. REVERSED and REMANDED.

                                                      Phineas E. Leahey, Davis Polk & Wardwell, New
                                                      York, New York, for Plaintiff-Appellant.

                                                      James R. Sandner, (Christopher M. Callagy, Bryan
                                                      D. Glass, on the brief), New York, New York, for
                                                      Defendant-Appellee.


         *
             We direct the Clerk of Court to amend the official caption as noted above.
HALL, Circuit Judge:

          Plaintiff David Seidemann is a tenured professor at Brooklyn College/City University of

New York (“CUNY”) and a nonunion employee, or “agency fee payer.” Defendant Professional

Staff Congress of the City University of New York (“PSC/CUNY”) is a public-sector union

designated as the exclusive collective bargaining representative for certain CUNY employees like

Seidemann. Barbara Bowen is the president of the PSC/CUNY.

          In 2002, Seidemann filed written objections with the union seeking to reduce his agency

fee for charges he alleges are not related to the collective bargaining process. He brought this

action against Defendants alleging that PSC’s agency fee procedures are inconsistent with the

First Amendment and the duty of fair representation. Several times during pretrial litigation the

union revised the procedures by which nonmembers may make such objections, and because of

admitted past violations, PSC refunded Seidemann’s agency fees for the 2001-2004 fiscal year,

with interest. Thereafter, the parties and the court addressed only the agency fee procedures

adopted on April 30, 2003.

          According to the April 2003 procedures, prior to the annual objection period PSC must

provide agency fee payers with information regarding the previous fiscal year’s rebatable

expenditures. Pursuant to this provision, PSC annually sends agency fee payers a notice letter

with a copy of the agency fee procedure outlining the objection procedures, and agency fee

payers have between May 1 and May 31 to mail their objections.1 Objecting fee payers are then

entitled to an advanced rebate for the projected pro rata amount of expenditures not related to the



          1
              As discussed below, there is a question of fact as to the actual content of PSC’s notice
letter.

                                                     2
collective bargaining process. If the objector is dissatisfied with the amount of the advance

rebate or disputes whether a category of expenditures is a component of collective bargaining, the

objector may appeal the determination in writing to the union president within thirty-five days

and the union will submit the matter to a neutral arbitrator for an “expeditious” hearing.

       After Seidemann filed his third amended complaint, the parties cross-moved for summary

judgment. The Magistrate Judge2 granted summary judgment in favor of Defendants and

dismissed the action.

       Seidemann makes several arguments on appeal. First, he asserts the union’s requirement

that objections be renewed annually and its refusal to accept continuous objections violates the

First Amendment. Seidemann further challenges the requirement that persons in his position

identify the percentage of political and ideological expenditures in dispute as a precondition to

arbitration, and he objects to the sufficiency of the notice given. Seidemann also asserts the

district court erred in holding some of his claims to be moot. Finally, he insists the court

erroneously dismissed his suit without addressing his claim asserting breach of duty of fair

representation.

       I. DISCUSSION

       A. Requirements for Objecting Agency Fee Payers

       Generally, employees who do not choose to join the union must still pay union dues;

these employees are referred to as “agency fee payers.” For such employees, the employer

deducts agency fees equivalent to the amount of union dues from their paychecks and remits



       2
         The parties consented to adjudication by the Magistrate Judge pursuant to 28 U.S.C.
§ 636(c)(1).

                                                 3
those fees to the union. Although fee payers must pay union fees even if they are not union

members, they are entitled to notice of the union’s expenditures not related to the collective

bargaining process—i.e., expenditures for items political and ideological in nature—and may

obtain a refund of their pro rata share of those expenditures by filing timely objections with the

union. Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 524 (1991); Chicago Teachers Union,

Local No. 1 v. Hudson, 475 U.S. 292, 303 (1986).

       So-called “agency-shop” arrangements that compel all employees within a bargaining unit

to pay agency fees as a condition of employment are permitted in light of “the government’s

interest in promoting labor peace and avoiding the free rider problem that would otherwise

accompany union recognition.” Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 511, 520-21

(1991); see also Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 472 (1997) (citing

Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)). “However, agency-shop arrangements in

the public sector raise First Amendment concerns because they force individuals to contribute

money to unions as a condition of government employment.” Davenport v. Wash. Educ. Ass’n,

127 S.Ct. 2372, 2377 (2007). To safeguard employees’ constitutional rights, therefore, unions

must allow employees who do not wish to be union members to be able to object to the payment

of portions of the union fee that are not related to collective bargaining. See Int’l Ass’n of

Machinists v. Street, 367 U.S. 740, 768-69, 774 (1961) (noting such employees must “identif[y]

themselves as opposed to political uses of their funds”). The Supreme Court specifically

addressed union dues collection in the public sector in Abood v. Detroit Board of Education., 431

U.S. 209, 235-36 (1977), holding that it is unconstitutional for a union to collect sums from

dissenting employees to support political and ideological causes not germane to the union’s


                                                  4
duties as a collective-bargaining agent. See also Ellis v. Bhd. of Ry., Airline, & S.S. Clerks, 466

U.S. 435, 447 (1984) (same); Bhd. of Ry & S.S. Clerks v. Allen, 373 U.S. 113, 118-19 (1963)

(same). To achieve the appropriate balance between constitutional and unconstitutional

collections, the union must “devise a way of preventing compulsory subsidization of ideological

activity by employees who object thereto without restricting the Union’s ability to require every

employee to contribute to the cost of collective-bargaining activities.” Abood, 431 U.S. at 237.

          Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 303 (1986), established

three requirements for the procedures unions put in place to handle public employees’ objections

to fee allocations intended to minimize the risk that objectors’ First Amendment rights will be

burdened. Principally, the procedures must “minimize the risk that nonunion employees’

contributions might be used for impermissible purposes.” Id. at 309. Second, they must provide

adequate “information about the basis for the proportionate share” of the union expenses fee

payers must pay. Id. at 306; see also id. at 309 (reiterating that although the nonmember

employee has the “burden of raising an objection, . . . the union retains the burden of proof” with

respect to apportionment and notification to the fee payers of the appropriate payment); accord

Allen, 373 U.S. at 122 (“Since the unions possess the facts and records from which the

proportion of political to total union expenditures can reasonably be calculated, basic

considerations of fairness compel that they, not the individual employees, bear the burden of

proving such proportion.”). Finally, a union procedure must “provide for a reasonably prompt

decision by an impartial decisionmaker” adjudicating fees that are in dispute. Hudson, 475 U.S.

at 307.




                                                 5
       Procedural safeguards prevent “compulsory subsidization of ideological activity . . .

without restricting the Union’s ability to require every employee to contribute to the cost of

collective-bargaining activities.” Id. at 302 (internal quotation marks omitted). Although the

government interest in a stable labor force is strong, the fact that constitutional rights are

protected by the First Amendment requires the union procedures be carefully tailored to

minimize the risk of burdening employee’s First Amendment rights. Id. at 302-03 (procedures

must “minimize the infringement”). Nonunion employees, “whose First Amendment rights are

being affected[] must have a fair opportunity to identify the impact of the governmental action on

[their] interests and to assert a meritorious First Amendment claim.” Id. at 303.

       It is in light of these principles and requirements that we examine the agency fee

procedures at issue here. We conclude that PSC’s procedures for dealing with agency fee payers’

objections fail to minimize the risk that objectors’ First Amendment rights will be burdened and

are therefore unconstitutional. Id.

       B. Annual Objection Procedures

       This Circuit has mandated that unions use “narrowly drawn” objection procedures to

protect the First Amendment rights of agency fee payers, while allowing unions and government

to pursue their needs in “establishing a rational system to consummate labor negotiations.”

Andrews v. Educ. Ass’n of Cheshire, 829 F.2d 335, 339 (2d Cir. 1987). Although we have not

required that objection procedures be the “least restrictive” means available, they must,

nonetheless, be “narrowly drawn” to comply with the strictures imposed by Hudson. Andrews,

829 F.2d at 339-40; cf. Price v. Int’l Union, UAW, 927 F.2d 88, 92 (2d Cir. 1991) (distinguishing

cases involving private employee unions from public sector union cases, where constitutional


                                                   6
concerns warrant the Hudson safeguards). The issue of principal concern to us in this case is

whether requiring agency fee holders to object annually to payment of expenses other than for

costs of collective bargaining meets this mandate.

       The Fifth Circuit addressed the issue in Shea v. Int’l Ass’n of Machinists & Aerospace

Workers, 154 F.3d 508, 515-17 (5th Cir. 1998), and held that an annual objection requirement

failed to meet the Hudson standards. Acknowledging that other cases, discussed below, had

decided whether annual objections were permissible only as related to a union’s duty of fair

representation, the Fifth Circuit instead examined the requirement to ensure that it followed

Hudson’s admonition that a union “adopt those reasonably practicable procedures that least

interfere with an objecting employee’s exercise of his First Amendment rights.” Shea, 154 F.3d at

517. “[T]he procedure that least interferes with an employee’s exercise of his First Amendment

rights is the procedure by which an employee can object in writing on a continuing basis.” Id. at

515. The union in Shea, moreover, had proffered no legitimate reason for requiring annual

objections. Id. “[I]n the absence of such a reason . . . the annual written objection procedure is an

unnecessary and arbitrary interference with the employees’ exercise of their First Amendment

rights.” Id.; see also Lutz v. Int’l Ass’n of Machinists & Aerospace Workers, 121 F. Supp. 2d 498,

506 (E.D. Va. 2000) (analyzing the propriety of annual objection requirements under the First

Amendment and concluding that because such requirements burden the First Amendment rights of

nonmembers while offering no legitimate benefit to the union, they are not carefully tailored to

minimize the risk that objectors’ First Amendment rights will be burdened and are thus invalid).3


        3
         The Seventh Circuit also addressed annual objection requirements, albeit only briefly,
in considering overall procedures established by a public teachers’ union. Tavernor v. Ill. Fed’n
of Teachers, 226 F.3d 842, 848-49 (7th Cir. 2000). The court stated that, in addition to other

                                                  7
       As did the court in Shea, we note that two other Circuits have reached a contrary

conclusion with respect to annual objections. The Sixth Circuit merely observed that Hudson

had placed the burden of objection on the employee and concluded therefore that the annual

objection procedure was not “unreasonable.” Tierney v. City of Toledo, 824 F.2d 1497, 1506

(6th Cir. 1987). The D.C. Circuit also upheld an annual objection requirement in Abrams v.

Commc’ns Workers of Am., 59 F.3d 1373, 1381-82 (D.C. Cir. 1995), stating simply that the

annual objection procedure was “permissible” in light of Street’s directive that “dissent is not to

be presumed.” 59 F.3d at 1382 (quoting Street, 367 U.S. at 774) (internal quotation marks

omitted). The plaintiffs in Abrams had asserted that the annual objection procedure violated the

union’s duty of fair representation. The Abrams court did not specifically base its holding on the

union’s providing fair representation, but by the same token, it did not discuss First Amendment

requirements as elucidated by Hudson.

       We are persuaded by the Fifth Circuit’s analysis in Shea, which is most in line with this

Circuit’s jurisprudence regarding agency fee procedures and our reading of Supreme Court

precedent. See Shea, 154 F.3d at 515-17; see also Tavernor v. Ill. Fed’n of Teachers, 226 F.3d

842, 848-49 (7th Cir. 2000); Lutz, 121 F. Supp. 2d at 506. Although the Supreme Court in

Street, 367 U.S. at 774, placed the burden of making an initial objection on the employee,

nothing in Street or the subsequent decisions of the Supreme Court suggest that merely because



onerous and lengthy requirements for objection, which can take up to a year to complete, the
union “requires objections to be renewed annually, which places an additional burden on
objectors.” Id. at 849. The Tavernor court, citing Shea, commented that because of this
additional burden: “No sooner does the objector complete one round than, like Sisyphus with his
rock, he must begin anew with another.” Id. The court asserted the emphasis should be on
“minimiz[ing] the burden on the objectors’ First Amendment rights.” Id.

                                                 8
an employee must initially make his objection known, a union may thereafter refuse to accept a

dissenter’s notice that his objection is continuing. See Davenport,127 S.Ct. at 2379 (stating that

with respect to Street’s requirement that dissent is not to be presumed, “[w]e meant only that it

would be improper for a court to enjoin the expenditure of the agency fees of all employees,

including those who had not objected, when the statutory or constitutional limitations established

in those cases could be satisfied by a narrower remedy.”); see also Shea, 154 F.3d at 515

(“Nothing in [Street or subsequent cases] requires repeated objection.”). The fact that employees

have the responsibility of making an initial objection does not absolve unions of their obligation

to ensure that objectors’ First Amendment rights are not burdened. Davenport, 127 S.Ct. at

2379; Hudson, 475 U.S. at 303; Andrews, 829 F.2d at 339.

       Here, PSC’s annual objection requirement burdens employees exercising their

constitutionally protected right to object, and the union has proffered no legitimate need for

disallowing continuing objections. See Shea, 154 F.3d at 515. While PSC suggests that it wants

to take advantage of inertia on the part of would-be dissenters who fail to object affirmatively,

thus preserving more union members, that rationale cannot carry the day in light of Hudson’s and

Andrews’s requirements that procedures for objecting be drawn narrowly. See Shea, 154 F.3d at

515 (noting the union had asserted no legitimate interest and therefore the “unduly cumbersome”

annual objection requirement “serves only to further the illegitimate interest of the [union] in

collecting full dues from nonmembers who would not willingly pay more than the portion

allocable to activities germane to collective bargaining”). We hold the annual objection

requirement imposed by PSC in this case is an unnecessary burden on an employee’s exercise of

First Amendment rights. See Hudson, 475 U.S. at 303, 309.


                                                 9
       C. Identification of Particular Expenditures

       Seidemann asserts the union’s requirement that agency fee payers object to the specific

percentage of expenditures in dispute as a pre-condition to arbitration is also unconstitutional.

PSC requires that in order for an objector to obtain arbitration of a disputed fee, “s/he must

indicate to the union local president the percent of agency fees that s/he believes is in dispute.”

We agree that this is improper.

       The Supreme Court has specifically and consistently rejected the notion that dissenters

must object with particularity. The first suggestion that general objections to union fees would

be sufficient to preserve a dissenter’s rights came in Allen, 373 U.S. at 118, which stated that

“[i]t would be impracticable to require a dissenting employee to allege and prove each distinct

union political expenditure to which he objects; it is enough that he manifests his opposition to

any political expenditures by the union.” Although Allen refers to the sufficiency of an objection

necessary to preserve the employee’s right to sue for a First Amendment violation, the Court in

Abood furthered Allen’s holding and specifically prevented unions from requiring particularized

objections. Abood, 431 U.S. at 239 n.39 & n. 40, 241 (noting any implication in Street that

employees were required to voice particularized objections was rejected in Allen). The Court

reiterated in Air Line Pilots Association v. Miller, 523 U.S. 866, 878 (1998), that “when pursuing

the union’s internal remedies, an objector may preserve the right to subsequent judicial relief

without ‘indicat[ing] to the Union the specific expenditures to which he objects.’” (quoting

Abood, 431 U.S. at 241) (emphasis in Abood). Moreover, requiring particularized objections to

preserve an objector’s rights to dissent places an additional unnecessary burden on objectors in

violation of the Court’s holding in Hudson. 475 U.S. at 303; see also Andrews, 829 F.2d at 339.


                                                 10
Accordingly, PSC’s requirement that agency fee payers must assert particularized objections as a

sine qua non to obtain review by an impartial decision-maker violates Seidemann’s constitutional

right to dissent.

        D. Sufficiency of Notice

        Seidemann contends that the notice the union provided him was insufficient under

Hudson because it does not allow would-be dissenters “to gauge the propriety of the union’s fee.”

Hudson, 475 U.S. at 306. Seidemann makes two arguments with respect to the notice received.

First, he asserts the notice fails to provide sufficient information to fee payers. Second, he claims

the notice either mischaracterizes information or conceals it from agency fee payers. We address

the notice letter first.

        Seidemann argues PSC violates Hudson’s notice requirement because PSC’s notice letter

fails to provide potential fee payers with information about the union’s finances. PSC contends

the notice letter meets Hudson requirements because it directs fee payers to the union’s website,

which contains the necessary financial information. The district court concluded that a notice

letter directing potential fee payers to a union website that contains the required financial

information on union expenditures is sufficient under Hudson. The record, however, contains

two notice letters, and it is unclear which notice letter the court relied on to reach its

determination that the letter was sufficient under Hudson. There is a notice letter that directs

potential fee payers to the union website, dated June 20, 2003, and a notice letter dated April 15,

2004, that neither provides financial information nor directs potential fee payers to a union

website. Because the record contains two inconsistent versions of the letter, there remains a




                                                  11
factual dispute as to its contents. The grant of summary judgment on this point was therefore

inappropriate.

        Seidemann next contends the financial information available to agency fee payers

mischaracterizes expenditures because it lists political and ideological expenses under innocuous,

seemingly appropriate, categories of expenses such as “office supplies,” and then charges fee

payers for 100% of those expenditures. As evidence that the union concealed information from

potential fee payers, Seidemann points to detailed budget reports sent to union delegates that

contain “critical information” about expenditures that was withheld from agency fee payers.

        First, we reiterate that there is a factual issue with respect to the contents of the letter.

However, because that factual dispute appears to be limited to whether or not the letter directs

potential fee payers to the union website, we will address Seidemann’s claims here to help clarify

the issue.

        Seidemann’s argument on this point conflates the requirements of Hudson and those of

Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991). While in Hudson the Supreme

Court addressed the adequacy of the notice to fee payers, in Lehnert, the Supreme Court

articulated the requirements for evaluating the propriety of a union’s determinations with respect

to what could and could not be charged: “chargeable activities must (1) be ‘germane’ to

collective-bargaining activity; (2) be justified by the government’s vital policy interest in labor

peace and avoiding ‘free riders’; and (3) not significantly add to the burdening of free speech that

is inherent in the allowance of an agency or union shop.” Id. at 519. There is a “clear distinction

between the adequacy of a union’s notice, addressed by the Supreme Court in Hudson, and the

propriety of a union’s chargeability determinations, considered separately by the Supreme Court


                                                   12
in Lehnert.” Jibson v. Michigan Educ. Ass’n-NEA,, 30 F.3d 723, 730 (6th Cir. 1994); accord

Knight v. Kenai Peninsula Borough Sch. Dist., 131 F.3d 807, 813-14 (9th Cir. 1997); Hudson v.

Chi. Teachers Union, 922 F.2d 1306, 1314 (7th Cir.1991) (holding plaintiffs “mistakenly

equate[] the adequacy of the notice with the accuracy of the fee assessment” (internal quotation

marks omitted)). As the Seventh Circuit stated, “Hudson did not contemplate that federal courts

would be required, on the basis of the notice, to pass on the legality and accuracy of every

element of the fee calculation before any fees could be collected.” Hudson, 922 F.2d at 1314.

       Although PSC’s procedure for impartial review of disputed expenditures will require

revision, as discussed above, this Court may not at this stage substitute itself for the impartial

decisionmaker mandated by Hudson and go on to consider disputes regarding the proportion of

fees that my be charged. “Of course, the impartial decisionmaker’s determination is not the final

word on the challenge. If the decision is adverse to the plaintiff[], [he] may subsequently seek

review by a federal court.” Id. (citing Hudson, 475 U.S. at 308 n.21). Thus, to the extent that

Seidemann is suggesting that the letter provides insufficient notice of expenditures to allow

potential fee payers to make an adequate objection as required by Hudson, the district court

should consider those claims in the first instance. Indeed, while Hudson does not mandate that

potential fee payers receive all of the financial information union delegates may receive, the

union must provide adequate “information about the basis for the proportionate share” of union

dues to allow fee payers to make an accurate objection to the non-chargeable portions of the

dues. Hudson, 475 U.S. at 306. Lehnert, in turn, sets out the parameters for deciding what is and

is not chargeable. Lehnert, 500 U.S. at 519. Thus, we remand to the district court to ensure the

notice letter provides adequate information under Hudson. If and when the notice in the letter is


                                                 13
deemed adequate, the “neutral party appointed by the American Arbitration Association”

referenced in PSC’s agency refund procedure must in the first instance determine the

appropriateness of the expenditures under Lehnert.

       E. Mootness

       The district court refused to address Seidemann’s claims that the agency fee procedures

violate the holding in Lehnert because they allow nonmember employees to be charged for

political and ideological expenditures. See 500 U.S. at 519. The court concluded that because

PSC had refunded entirely Seidemann’s fees for fiscal years 2001 to 2004, “any specific

objections plaintiff may have claimed for [those years] are now moot.” Thus, the court did not

address the claim.

       The voluntary cessation of allegedly illegal activities can moot a claim only “if the

defendant can demonstrate that (1) there is no reasonable expectation that the alleged violation

will recur and (2) interim relief or events have completely and irrevocably eradicated the effects

of the alleged violation.” Granite State Outdoor Advert., Inc. v. Town of Orange, Conn., 303

F.3d 450, 451 (2d Cir. 2002) (per curiam) (quoting Campbell v. Greisberger, 80 F.3d 703, 706

(2d Cir. 1996)). Ordinarily, a party’s “voluntary cessation of allegedly unlawful conduct . . . does

not suffice to moot a case.” N.Y. Pub. Interest Research Group v. Whitman, 321 F.3d 316, 327

(2d Cir. 2003) (quoting Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 174 (2000))

(internal quotation marks omitted). Accordingly, a party “claiming that its voluntary compliance

moots a case bears the formidable burden of showing that it is absolutely clear the allegedly

wrongful behavior could not reasonably be expected to recur.” Id. (quoting Laidlaw, 528 U.S. at



                                                14
190); see also N.Y. Pub. Interest Research Group, 321 F.3d at 327 (concluding that although

state agency’s implementation of changes promised in letter of commitment indicated degree of

“good faith,” actions were insufficient to “carr[y] the formidable burden of making absolutely

clear that the problems identified . . . could not reasonably be expected to recur” (internal

quotation marks and citations omitted)).

       We conclude that the Union in this case has not met the “formidable burden” of

demonstrating that its prior unlawful conduct is unlikely to recur. In fact, Seidemann asserts on

appeal that violations have already recurred. We do not address the merits of Seidemann’s

claims on this point, but we conclude only that the claims are not moot and therefore remand to

allow the district court to address in the first instance PSC’s determinations regarding which fees

may be charged to agency fee payers.

       F. Duty of Fair Representation

       Finally, we note that the district court dismissed Seidemann’s suit without addressing his

state law duty of fair representation claim. On remand the district court must address this issue

in the first instance. See, e.g., Thompson v. County of Franklin, 15 F.3d 245, 253-54 (2d Cir.

1994) (declining to address res judicata issue in first instance).

       II. CONCLUSION

       We hold that PSC’s procedures requiring agency fee payers to file annual objections and

to specify percentages of expenditures in dispute to obtain arbitration violate Seidemann’s First

Amendment rights. We further hold that PSC has not demonstrated that its agency fee procedure




                                                  15
violations are unlikely to recur. For the foregoing reasons, we reverse the district court’s grant of

summary judgment and remand for further proceedings. REVERSED AND REMANDED.




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