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                                                                  [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 15-13797
                               Non-Argument Calendar
                             ________________________

                    D.C. Docket No. 2:14-cv-00699-WKW-TFM



JANICE INGALLS, et al.,


                                                      Plaintiffs - Appellants,

versus

U.S. SPACE AND ROCKET CENTER, et al.,

                                                      Defendants - Appellees.

                             ________________________

                     Appeal from the United States District Court
                         for the Middle District of Alabama
                           ________________________

                                  (February 16, 2017)

Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, and SMITH, * District
Judge.

*
 Honorable C. Lynwood Smith, Jr., United States District Judge for the Northern District of
Alabama, sitting by designation.
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PER CURIAM:


      Dr. Wernher von Braun, a visionary rocket scientist, was responsible for

Nazi Germany’s V-2 rocket, and, after World War II, for putting American Apollo

astronauts on the moon. Also a visionary for earthly endeavors, he was responsible

for convincing the Alabama Legislature to create the U.S. Space & Rocket Center,

which put his rockets and work on display for future generations. Dr. von Braun

probably hoped that the Center would, like his rockets, launch visitors’

imaginations to the moon and back and keep America’s vigor for rocket science

alive. He probably did not expect, however, that his Center would also be the

launching pad for a federal equal protection and due process law suit.

      Decades after the Center opened its doors, three former employees sued

executives of the Space Science Exhibit Commission, which is responsible for

running the Center, for failing to pay holiday and longevity benefits allegedly due

to them under Alabama law. The former employees alleged that this failure,

among other things, violated their federal equal protection and due process rights.

The Commission executives countered by filing a motion to dismiss under Federal

Rule of Civil Procedure 12(b)(6), asserting that they are protected from suit by

qualified immunity. The district court agreed with the executives and dismissed

the claims against them. This timely appeal followed.



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      Following a review of the record, and with the benefit of oral argument, we

affirm. With respect to the equal protection claim, the former employees failed to

allege a violation of clearly established law. The due process claim fails because

the former employees concede that they will receive adequate process in their

parallel Alabama state court litigation.

                                           I

      The second amended complaint alleges the following facts, which we accept

as true. See Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008).

                                           A

      In March of 1970, the U.S. Space & Rocket Center opened its doors in

Huntsville, Alabama, and began offering visitors a unique glimpse into the United

States space program. To manage the facility and programming, the Alabama

Legislature established the Alabama Space Science Exhibit Commission. See

Alabama Code §§ 41-9-430 through 41-9-439. Today, as Dr. von Braun had

hoped, the U.S. Space & Rocket Center, operated by the Commission, provides the

leading museum experience for those interested in the United States space

program.

      In January of 2014, the Alabama State Department of Public Accounts,

which is responsible for auditing entities that receive or use state funds, issued a

report detailing its audit of the Commission for 2007–2012. The audit report

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found, among other things, that the Commission had failed to provide appropriate

holiday and longevity pay to its employees as required by certain Alabama statutes.

Specifically, the report concluded that (1) “[t]he Commission/USS&RC provides

six fewer holidays to its state employees than are mandated by law for state

employees,” and (2) “[t]he Commission/USS&RC’s employees who were entitled

to receive longevity payments received less than the amount to which they were

entitled.”

      To remedy the failure, the Department of Public Accounts recommended as

follows:

      The Commission should award to its employees the holidays provided
      by the Code of Alabama 1975, Section 1-3-8(a), and should provide a
      day of compensatory leave or paid compensation in lieu of any
      holiday on which the employee is required to work, as required by the
      Code of Alabama 1975, Section 1-3-8(e).

      The Commission should re-compute longevity pay for each employee
      for all years in which they were qualified to receive longevity pay for
      reason of not having received a cost of living pay increase and should
      pay the employees the total amount of all underpayments due them.

      The Department of Public Accounts released the report first to the

Commission, and then to the public. After the report was issued, the Commission

held a meeting with its employees. The Commission’s management acknowledged

the report and voiced its collective belief that the audit report findings were wrong.

Management also said that the Commission would, if required, implement changes

to the current employee benefits program. To date, Commission executives have
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adopted none of the changes regarding holiday and longevity pay recommended by

the Department of Public Accounts.

                                             C

       The appellants, three former Commission employees, brought suit against

several Commission executives for failing to provide them holiday pay pursuant to

Alabama Code § 1-3-8(e) and longevity pay increases under Alabama Code § 36-

6-11(a). As relevant here, the former employees alleged that these failures violated

their federal equal protection and due process rights.1

       In relevant part, § 1-3-8(e) provides that “[a]ny state employee working on a

state holiday shall receive a day of compensatory leave or paid compensation in

lieu of the holiday as provided herein.” The paid holidays are listed in § 1-3-8(a),

and § 1-3-8(b) specifies when those holidays shall be taken during the year.

Although Commission employees were provided a benefits program that included

some of the listed holidays, six of the holidays listed under § 1-3-8(a) were

excluded.

       Under § 36-6-11(a), “[e]ach person employed by the State of Alabama” is

entitled to certain longevity pay. This provision awards the following longevity

compensation to state employees:



1
  The former employees sued additional parties and asserted more claims, but they are not at
issue on appeal.
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      [A] lump sum the first payday of December each year the sum of
      three hundred dollars ($300) per annum after such employee has
      served for a total period of five years and shall receive the payment
      until the tenth year of total service, at which time the payment shall be
      made in a like manner and at a like time but in the amount of four
      hundred dollars ($400) per annum until the fifteenth year of total
      service, at which time the payment shall be made in a like manner and
      at a like time but in the amount of five hundred dollars ($500) per
      annum until the twentieth year of total service, at which time the
      payment shall be made in a like manner and at a like time but in the
      amount of six hundred dollars ($600) per annum until the twenty-fifth
      year of total service, at which time the payment shall be made in a like
      manner and at a like time, but in the amount of seven hundred dollars
      ($700) as long as the employee remains in service.

Id. The Commission’s benefits program provided employees these longevity pay

benefits.

      When state employees fail to receive cost-of-living pay raises, the longevity

pay statute also provides for an increase in longevity pay:

      Beginning October 1, 2006, and continuing each fiscal year thereafter
      in which an employee does not receive a cost-of-living increase in
      compensation, each per annum amount provided in this subsection
      shall be increased by one hundred dollars ($100) per year to a
      maximum amount of one thousand dollars ($1,000) for 25 years of
      total service as long as the employee remains in service.

Id. This increase in the longevity pay was excluded from the Commission’s

benefits program.

                                         II

      “A motion to dismiss a complaint on qualified immunity grounds will be

granted if the complaint fails to allege the violation of a clearly established

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constitutional right.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir.

2002) (quotation marks and citation omitted). “Whether the complaint sets forth a

violation is a question of law that we review de novo.” Griffin Indus., Inc. v. Irvin,

496 F.3d 1189, 1199 (11th Cir. 2007).

      In conducting this review, “[w]e are required to accept the facts as set forth

in the . . . complaint as true, and our consideration is limited to those facts

contained in the pleadings and attached exhibits.”         Id.   “[A]ny conclusory

allegations, unwarranted deductions of fact or legal conclusions masquerading as

facts,” on the other hand, “do not prevent dismissal.” Weissman v. Nat’l Ass’n of

Sec. Dealers, Inc., 500 F.3d 1293, 1305 (11th Cir. 2007) (en banc).          See also

Chandler v. Sec’y of Florida Dep’t of Transp., 695 F.3d 1194, 1198–99 (11th Cir.

2012) (“[T]he tenet that a court must accept as true all of the allegations contained

in a complaint is inapplicable to legal conclusions.”).

       Qualified immunity “protects all but the plainly incompetent or those who

knowingly violate the law.” Jordan v. Mosley, 487 F.3d 1350, 1354 (11th Cir.

2007) (citations and quotation marks omitted). The defense protects government

officials sued in their individual capacities from liability when (1) they act within

the scope of their discretionary authority, and (2) their conduct “violates no clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Id. (citation and quotation marks omitted).

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      If a state official was acting “within the scope of his discretionary authority,

the burden falls to the plaintiff to show that qualified immunity is inappropriate.”

Jacoby v. Baldwin Cty., 835 F.3d 1338, 1344 (11th Cir. 2016). To meet this

burden, a plaintiff must (1) “allege facts that establish that the [official] violated

[his] constitutional rights,” and (2) “show that the right involved was clearly

established at the time of the putative misconduct.” Id. (citation and quotation

marks omitted). “We may consider these two prongs in either order, and a public

official is entitled to qualified immunity if the plaintiff fails to establish either

one.” Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

      “For a constitutional right to be clearly established, its contours must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.”   Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation and

quotation marks omitted). This may be shown in one of three ways: “(1) case law

with indistinguishable facts clearly establishing the constitutional right; (2) a broad

statement of principle within the Constitution, statute, or case law that clearly

establishes a constitutional right; or (3) conduct so egregious that a constitutional

right was clearly violated, even in the total absence of case law.” Lewis v. City of

W. Palm Beach, Fla., 561 F.3d 1288, 1291 (11th Cir. 2009) (citations omitted).

“In this circuit, the case law can be ‘clearly established’ for qualified immunity

only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals,

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or the highest court of the state where the case arose.” Jenkins v. Talladega City

Bd. of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997).

      For a broad statement of principle to clearly establish a constitutional right,

the case law must provide “fair warning” to the state actor, meaning that “in the

light of pre-existing law the unlawfulness must be apparent.” Terrell v. Smith, 668

F.3d 1244, 1256 (11th Cir. 2012) (citations and quotation marks omitted). This

encompasses “those situations where the official’s conduct lies so obviously at the

very core of what the [relevant constitutional provision] prohibits that the

unlawfulness of the conduct was readily apparent to the official, notwithstanding

the lack of case law.” Maddox v. Stephens, 727 F.3d 1109, 1121 (11th Cir. 2013)

(citation and quotation marks omitted) (addition in original).

                                         III

      The former employees argue that the Commission executives are not

protected by qualified immunity for two reasons. First, they did not act within

their discretionary authority when they decided not to pay benefits required by

Alabama law. Second, their decision violated clearly established equal protection

and due process rights, whether or not there was case law directly on point. We

disagree with both arguments.

                                         A




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      The Commission executives acted within their discretionary authority when

they decided not to provide their employees with holiday and longevity pay. The

relevant inquiry is “whether the act complained of, if done for a proper purpose,

would be within, or reasonably related to, the outer perimeter of an official’s

discretionary duties.” Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir.

1998). The former employees ask us to examine “whether it was within the

defendant’s authority to commit the allegedly illegal act,” but “framed that way,”

the inquiry becomes “not more than an untenable tautology.” Id. at 1282–83.

Whether an act fell within an official’s discretion is “distinct” from whether that

same act was illegal. See Sims v. Metro. Dade Cty., 972 F.2d 1230, 1236 (11th

Cir. 1992).

      The question is whether the executives had the authority to set the

appropriate pay and fringe benefits for the Commission’s employees. See Harbert

Int’l, Inc., 157 F.3d at 1282–83; Sims, 972 F.2d at 1236. Clearly they did. The

enabling legislation authorizes the Commission to “allocate and expend funds from

all donations, income and revenue from any source whatsoever,” Ala. Code § 41-9-

432(11), and to “fix the compensation of . . . personnel,” Ala. Code § 41-9-

432(13). This suit, moreover, is premised on the former employees’ assertion that

the executives were responsible for operating the Commission and had the power

to adjust employee compensation, including holiday and longevity pay. Setting the

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Commission employees’ fringe benefits was a task that fell squarely within the

executives’ discretionary authority.



                                          B

       The former employees failed to allege violations of their clearly established

equal protection rights. The Commission’s employees are uniquely situated under

Alabama law, and an apparent conflict between the Commission’s enabling

legislation and the benefits statutes gave the executives a reasonable statutory basis

for their decision. Under these circumstances, qualified immunity protects the

executives from suit.

                                          1

       The holiday pay statute requires that state supervisors who fail to schedule

listed holidays “justify that action in writing to the Director of State Personnel.”

Ala. Code § 1-3-8(d)–(f). The Director of State Personnel, however, is a position

created under Alabama’s Merit System Act, and the Commission’s employees are

expressly excluded from the Merit System Act under the Commission’s enabling

statute.   See Ala. Code § 41-9-432(13) (providing that the Commission’s

“executive director and such additional personnel shall not be subject to the

provisions of the state Merit System Act”). The holiday pay statute also instructs

that an “employee shall receive pay at a rate not less than the employee’s usual and

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customary rate of pay for any compensatory leave day[.]” Ala. Code § 1-3-8(f).

Yet the Commission’s enabling legislation, contrary to this command, gives the

Commission authorization “[t]o allocate and expend funds from all donations,

income and revenue from any source whatsoever coming into its treasury[.]” Ala.

Code § 41-9-432(11) (emphasis added). And it states that the Commission “shall

fix the compensation of . . . personnel and such compensation shall be paid from

the funds of the commission.” Ala. Code § 41-9-432(13).

      The longevity pay statute also apparently conflicts with the Commission’s

enabling legislation. Although the longevity pay statute does state that it applies

“whether [the employee is] subject to the state Merit System or not,” it

nevertheless commands that employees be paid “in addition to all salaries or

wages” “from such funds as the salaries of the several state employees are,

respectively, paid[.]” Ala. Code § 36-6-11(b), (d). This latter command is at odds

with the Commission’s enabling statute, which created an entity that self-funds and

has discretion to set its employees’ compensation. See Ala. Code § 41-9-432(13)

(providing that “additional personnel and such compensation shall be paid from the

funds of the commission”); Ala. Code § 41-9-432(11) (affording the Commission

discretion “[t]o allocate and expend funds from all donations, income and revenue

from any source whatsoever coming into its treasury”).

                                         2

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      The former employees argue that our decision in Strickland v. Alderman, 74

F.3d 260 (11th Cir. 1996), and the Alabama Supreme Court’s decision in Barbour

Cty. Comm’n v. Employees of Barbour Cty. Sheriff’s Dep’t, 566 So. 2d 493 (Ala.

1990), established that the executives’ failure to pay them fringe benefits under

Alabama law violated their clearly established equal protection rights. Our review

of these cases, however, leads us to a different conclusion. We discuss Alderman

first, and then turn to Barbour County.

      The former employees cite to Alderman for the “broad, clearly established

principle,” Appellants’ Br. at 21–22, that “unequal application of a facially neutral

statute may violate the Equal Protection Clause.”       830 F.2d at 264.      But in

Alderman, we explained that to prevail on such an equal protection claim plaintiffs

must establish that they were “treated differently than similarly situated persons.”

Id. at 264 (ellipsis omitted). This showing is important:

      The reason that there is a similarly situated requirement in the first
      place is that at their heart, equal protection claims, even class of one
      claims, are basically claims of discrimination. To maintain this focus
      on discrimination, and to avoid constitutionalizing every state
      regulatory dispute, we are obliged to apply the similarly situated
      requirement with rigor.

Griffin Indus., Inc., 496 F.3d at 1207 (citations and quotation marks omitted). That

is why we also explained in Alderman that “[d]ifferent treatment of dissimilarly

situated persons does not violate the equal protection clause.” 74 F.3d at 265

(emphasis added) (citation and quotation marks omitted).
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      Although the former employees may allege that they have been treated

unlike “other state employees,” Second Amended Complaint, D.E. 31, at ¶¶ 104–

109, the outlined statutory scheme makes clear that they were uniquely situated

under the statutes creating the Commission and establishing its powers.          See

Weissman, 500 F.3d at 1305 (“[C]onclusory allegations, unwarranted deductions of

fact or legal conclusions masquerading as facts do not prevent dismissal.”). Given

the potential difference between Commission employees and other Alabama state

employees, Alderman did not put the Commission executives on notice that their

decision violated clearly established federal equal protection rights. See Corey

Airport Servs., Inc. v. Decosta, 587 F.3d 1280, 1285 (11th Cir. 2009) (“By clearly

established we mean it would be clear to a reasonable official that his conduct was

unlawful in the situation he confronted.”) (citation and quotation marks omitted).

      The former employees also rely on the Alabama Supreme Court’s Barbour

County decision, which they claim recognized that the “unequal application of a

facially neutral law” gives rise to an equal protection claim. Appellants’ Br. at 23.

As with Alderman, their reliance is misplaced.

      In Barbour County, the Alabama Supreme Court concluded that the Barbour

County Commission’s decision to arbitrarily include some employees in its

retirement and insurance benefits program while excluding others violated the

federal equal protection and due process rights of County employees. 566 So. 2d

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at 494. The Barbour County Commission had passed a resolution providing that

all its “public employees” who held “fully budgeted positions on a full normal

working time basis” were permitted to participate in a certain benefits program. Id.

But certain obviously and undebatably eligible employees were excluded by other

language in the resolution or by actions of the Commission, and those employees

sued. Id. Upon review, the Alabama Supreme Court concluded the Barbour

County Commission’s “attempted classifications” to justify excluding obviously

eligible employees were “not based on substantial distinctions between the

employees,” and did “not achieve the very purposes set forth in the [r]esolution.”

Id. at 498 (ellipsis omitted). This “unreasonable” “attempt to justify the unequal

treatment of various of its employees,” the Alabama Supreme Court reasoned,

violated those “employees’ rights to due process and equal protection.”          Id.

(ellipsis omitted).

      The circumstances which provided the basis for the holding in Barbour

County are absent here.        The Commission here, unlike the Barbour County

Commission, did not create and then discriminatorily apply a benefits scheme to

exclude clearly eligible employees from coverage.          Instead, the Commission

executives made a decision to not provide full longevity and holiday pay to

employees who, as we have outlined, are uniquely situated under an existing, state-

wide statutory scheme.      Barbour County would not have made clear to a

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reasonable official that the decision to not provide greater holiday and longevity

pay was unlawful.2 See Decosta, 587 F.3d at 1285.

                                            3

       We recognize that, as alleged, the Department of Public Accounts found that

Commission employees were entitled to greater holiday and longevity pay. But

that does not affect our analysis. The former employees are not asserting claims

under Alabama law, but under the federal Constitution. In order to resolve whether

qualified immunity protects the Commission executives from suit, therefore, we

need not take sides in a dispute about Alabama law between two Alabama

agencies. Qualified immunity “shield[s] officials from harassment, distraction, and

liability when they perform their duties reasonably.” Callahan, 555 U.S. at 231.

And we need only conclude that, at least under the circumstances presented, the

former employees cannot overcome qualified immunity. See Maddox, 727 F.3d at

1120 (qualified immunity “prevents public officials from being intimidated—by

the threat of lawsuits that jeopardize the official and her family’s welfare

personally—from doing their jobs”).




2
 The former employees, moreover, failed to allege circumstances so obviously at the core of
what equal protection prohibits that, notwithstanding a lack of on-point case law, the
unlawfulness of the executives’ conduct was apparent. See, e.g., Alderman, 74 F.3d at 264.
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                                           C

      The former employees’ procedural due process claim fails because Alabama

state law affords adequate process to compensate for the loss allegedly caused by

the Commission executives. See generally McKinney v. Pate, 20 F.3d 1550, 1564

(11th Cir. 1994) (en banc). The former employees conceded at oral argument that

Alabama law recognizes their claims and provides adequate process to address

their alleged pecuniary harm. They even admitted that this appeal would be moot

if an Alabama state court awarded them all the relief sought in their parallel state

court litigation. The due process claim does not survive these concessions.

      For nearly a quarter century, the law of this circuit has been that “the

presence of a satisfactory state remedy mandates that we find that no procedural

due process violation occurred.” McKinney, 20 F.3d at 1564. “It is well-settled

that a constitutional violation is actionable under § 1983 only when the state

refuses to provide a process sufficient to remedy the procedural deprivation.”

Reams v. Irvin, 561 F.3d 1258, 1266 (11th Cir. 2009) (citations and quotation

marks omitted).     Here, “because adequate state remedies were available,” the

former employees have “failed to state a procedural due process claim.” Cotton v.

Jackson, 216 F.3d 1328, 1330 (11th Cir. 2000).3


3
  There are some exceptions to this general rule, such as when due process requires pre-
deprivation process, see Hoefling v. City of Miami, 811 F.3d 1271, 1283 (11th Cir. 2016)
(discussing cases), but they are not applicable here.
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      The former employees’ assertion that they “arguably” lack process for their

breach of contract claim against the Commission, see Appellants’ Br. at 30, is of

no moment. The governing due process inquiry focuses only on whether state

remedial process compensates litigants for the alleged loss they have suffered.

See, e.g., McKinney, 20 F.3d at 1564 (“McKinney’s state remedy is adequate. The

Supreme Court held in Parratt that the state’s remedial procedure need not provide

all relief available under section 1983; as long as the remedy could have fully

compensated the [employee] for the property loss he suffered, the remedy satisfies

procedural due process.”) (citation and quotation marks omitted); Horton v. Bd. of

Cty. Comm’rs of Flagler Cty., 202 F.3d 1297, 1300 (11th Cir. 2000) (“[T]he

McKinney rule looks to the existence of an opportunity-to whether the state courts,

if asked, generally would provide an adequate remedy for the procedural

deprivation the federal court plaintiff claims to have suffered. If state courts

would, then there is no federal procedural due process violation regardless of

whether the plaintiff has taken advantage of the state remedy or attempted to do

so.”). As the former employees concede, their Alabama state court litigation

provides adequate process against the Commission executives for their alleged

losses. The former employees’ due process claim therefore cannot withstand the

Commission executives’ motion to dismiss.




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                                          IV

      In their initial brief, the former employees also contend that the district court

erred in ruling that they lacked standing to pursue their claims for prospective

injunctive relief. See Appellants’ Br. at 32–36. But in their reply brief, the former

employees say that the issue “is still not in a posture for proper consideration,” and

urge us not to address it. See Appellants’ Reply Br. at 13. Though the former

employees incorrectly presume that they will be able to engage in discovery with

respect to injunctive relief, they have nevertheless abandoned any challenge to the

district court’s ruling on standing by asserting that the matter is not ripe for

adjudication.

                                          V

      For the reasons outlined above, we affirm the district court’s dismissal, on

qualified immunity grounds, of the former employees’ equal protection and due

process claims against the Commission executives.


      AFFIRMED.




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