Hannington v. Sun Life and Health Insurance

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; Kenneth F. Ripple and Kermit V. Lipez, Appellate Judge. Published. [12-1085]

Case: 12-1085

Document: 00116510614

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Date Filed: 03/29/2013

Entry ID: 5722332

United States Court of Appeals
For the First Circuit
No. 12-1085
DAVID HANNINGTON,
Plaintiff, Appellee,
v.
SUN LIFE AND HEALTH INSURANCE COMPANY,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]

Before
Howard, Ripple,* and Lipez,
Circuit Judges.

Joshua Bachrach, with whom Wilson, Elser, Moskowitz, Edelman
& Dicker LLP, Byrne Joseph Decker, and Pierce Atwood LLP were on
brief, for appellant.
Gisele M. Nadeau for appellee.

March 29, 2013

*

Of the Seventh Circuit, sitting by designation.

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RIPPLE, Circuit Judge. David Hannington filed this ERISA
action against Sun Life and Health Insurance Company (“Sun”) after
Sun reduced his disability payments under an ERISA-qualified plan
(the “Plan”) because he also was receiving disability compensation
under the Veterans’ Benefits Act.
for judgment on the record.

The parties filed cross-motions

After a hearing, the magistrate judge

recommended that the district court grant Mr. Hannington’s motion
and deny Sun’s. The district court approved the magistrate judge’s
recommended decision and entered judgment for Mr. Hannington.1
timely appealed.2

Sun

For the reasons set forth in this opinion, we

affirm the judgment of the district court.

I
BACKGROUND
A.
Mr. Hannington participated, through his employer, in a
group long-term disability plan issued by Sun, then known as GE
Group Life Assurance Company (“GE”).

Under the Plan, a disabled

beneficiary receives sixty percent of his pre-disability salary.
However, the Plan reduces this benefit by amounts received as

1

The district court’s jurisdiction was predicated on 28
U.S.C. § 1331 and 29 U.S.C. § 1132(e).
2

The jurisdiction of this court is based on 28 U.S.C.

§ 1291.
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“Other Income.” This term is defined in the “Other Income” section
of the Plan, which lists seven categories of income that will be
deemed “Other Income” for purposes of reducing payments under the
Plan.

The fifth of these categories, the focus of the current

dispute,

defines

“Other

Income”

to

include

disability or retirement benefits under:

“any

amount

of

a) the United States

Social Security Act . . . ; b) the Railroad Retirement Act; c) any
other similar act or law provided in any jurisdiction.”3

The Plan

further identifies GE, now replaced by Sun, as the claims fiduciary
and grants it “the sole and exclusive discretion and power to . . .
construe any and all issues relating to eligibility for benefits.”4
It

further

provides

that

“[a]ll

findings,

decisions,

and/or

determinations of any type made by the Claims Fiduciary shall not
be disturbed unless the Claims Fiduciary has acted in an arbitrary
and/or capricious manner.”5
Mr. Hannington cannot work because he suffers from a

3

A.R. 103. These seven categories of “Other Income” are:
(1)
temporary
or
permanent
awards
under
various
laws;
(2) disability benefits under any compulsory benefit act or law;
(3) disability or loss of income benefits under various insurance
plans; (4) benefits received under an employer retirement plan;
(5) the disputed section; (6) income received from any salary
continuance plan; and (7) benefits under unemployment compensation
laws.
Id.
To provide context, a copy of the “Other Income”
section, denominated “Part 5” of the Plan, is appended to this
opinion.
4

Id. at 120.

5

Id.
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blood disease that he contracted from the administration of
vaccinations during his service in the United States Air Force. On
account

of

disability

this

disability,

compensation

(“VA

he

receives

benefits”)

service-connected

under

the

Veterans’

Benefits Act.
Sun approved Mr. Hannington’s claim for benefits under
the Plan.

Upon learning that Mr. Hannington was receiving VA

benefits, however, Sun determined that these VA benefits qualify as
“Other Income” and so reduced the amount of Mr. Hannington’s
monthly

plan

benefit

by

the

amount

of

his

VA

benefits.

Consequently, Mr. Hannington filed an administrative appeal as
required by the Plan.

Sun denied the appeal.

B.
Mr. Hannington then initiated this action in the district
court.

When

Sun

submitted

the

administrative

record

to

the

district court, it also produced an affidavit from the associate
director

of

its

appeal

unit

that

set

forth

the

procedures

implemented by Sun to fulfill its fiduciary duties under the Plan.
It submitted that these procedures sufficiently neutralize its
structural conflict of interest as both plan underwriter and
fiduciary.
The district court referred the case to a magistrate
judge for a recommended decision.

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In her recommendation, the

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magistrate judge first noted that, because the plan document gave
Sun discretion to interpret and construe the Plan’s language, the
court’s review was governed by the deferential arbitrary and
capricious standard.

The magistrate judge further noted, however,

that the fact that Sun was construing policy language in favor of
its own financial interest while laboring under a structural
conflict of interest was not an irrelevant factor and that the
court was entitled to take such a situation into consideration.
Turning to the merits of the dispute, the magistrate
judge reviewed the similarities that Sun had pointed out between
the

Social

compared

Security

the

Act

and

the

service-connected

Veterans’
disability

Benefits

Act6

compensation

and
that

Mr. Hannington receives to Social Security disability benefits.
She reviewed the respective statutes’ definitions of “disability”
and their purposes in awarding disability benefits.7
the

magistrate

judge

determined

6

that

those

Ultimately,

similarities

were

Before the magistrate judge, Sun provided no specific
discussion of the Railroad Retirement Act. R.31 at 9 n.8. Sun
identified the following similarities between the Veterans’
Benefits Act and the Social Security Act: (1) they are federal
laws, which provide disability benefits; (2) benefits are paid
periodically; (3) death benefits are available; (4) the Acts
contain
anti-assignment
clauses;
(5)
benefit
claims
are
administered by independent agencies; and (6) a single application
can be used to apply for both Social Security and VA benefits.
R.21 at 6. Sun also argued that benefits under both are awarded
without regard to fault and represent compensation for lost earning
capacity.
Id.
The magistrate judge rejected these last two
arguments as erroneous. R.31 at 9-10 nn. 9, 10.
7

R.31 at 9-11.
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superficial and represented only a “few common threads [which] are
woven into larger and distinctly different fabrics.”8

In her view,

it was “the differences [between these Acts] that stand out upon
comparison, not the similarities.”9
She

also

emphasized

Sun’s

structural

conflict

of

interest, concluding that “[a] fiduciary free of a structural
conflict of interest would not attempt to emphasize the limited
similarities given the more substantial and meaningful differences
that are readily apparent, particularly as the Plan Certificate
makes no mention of VA benefits at all.”10

In the magistrate

judge’s view, “[a] reasonable fiduciary would be troubled by the
[Plan’s]

omission

of

any

reference

to

veterans’

benefits

or

service-connected disability compensation.”11 The magistrate judge
found persuasive the decision of the Eighth Circuit in Riley v. Sun
Life & Health Insurance Co., 657 F.3d 739, 741 (8th Cir. 2011),
cert. denied, 132 S. Ct. 1870 (2012), in which the court construed
identical plan language under a de novo standard of review because
the fiduciary’s interpretation was “based on its construction of
existing law.” The Riley court concluded that VA benefits, awarded
“for a wartime service-related disability, as a matter of statutory

8

Id. at 10.

9

Id.

10

Id.

11

Id. at 11.
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construction, do not derive from an act that is ‘similar to’ the
SSA [Social Security Act] or the RRA [Railroad Retirement Act].”
Id. at 742.
In due course, the district court concurred in the
magistrate

judge’s

Mr. Hannington.

analysis

and

entered

judgment

for

Sun then filed this timely appeal.

II
DISCUSSION
We review de novo the district court’s grant of judgment
on the record. Morales-Alejandro v. Med. Card Sys., Inc., 486 F.3d
693, 698 (1st Cir. 2007).

Therefore, we must employ the same

standard of review that the district court was required to employ
on the issue for decision.

A.
The

district

court

reviewed

Sun’s

offset

of

Mr. Hannington’s VA benefits under a deferential, arbitrary and
capricious standard.12

This deferential standard is appropriate

when “the benefit plan gives the administrator or fiduciary[13]
discretionary authority to determine eligibility for benefits or to

12

See id. at 5.

13

“Administrator,” “claims fiduciary” and “plan fiduciary”
are used interchangeably by the parties in this case.
For
consistency, we shall refer to Sun as the Plan’s “fiduciary.”
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construe the terms of the plan.”

Firestone Tire & Rubber Co. v.

Bruch, 489 U.S. 101, 115 (1989).

Thus, when such discretion is

vested in the plan fiduciary, as it is here, our standard of review
for the fiduciary’s interpretation of plan language is deferential.
See Cusson v. Liberty Life Assurance Co., 592 F.3d 215, 230 (1st
Cir. 2010).
course

of

However, when the plan fiduciary is required, in the
determining

the

meaning

of

the

plan

language,

to

interpret material outside the plan, our review of the extra-plan
material is de novo.
For instance, in Coffin v. Bowater Inc., 501 F.3d 80 (1st
Cir. 2007), we addressed an administrator’s determination that its
plan obligations to its subsidiary’s workers terminated upon the
subsidiary’s sale. The plan at issue allowed the administrator “to
modify, amend or terminate the plan at any time” and “afford[ed]
the administrator substantial deference.”
Coffin

administrator

argued

that

a

stock

Id. at 84, 85.
purchase

The

agreement

executed in connection with the sale contained language sufficient
to

terminate

its

obligations

termination requirements.

and

Id. at 84.

satisfy

ERISA’s

procedural

Discussing the standard of

review, we held that “[w]here the administrator’s determination of
eligibility depends upon an interpretation of non-plan documents
(in this case, the [stock purchase agreement]), our review is . . .
de novo.”

Id. at 85 (citing Firestone, 489 U.S. at 112).

Thus, we

reviewed de novo the administrator’s interpretation of the stock

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purchase agreement and of ERISA (that the stock purchase agreement
satisfied ERISA’s requirements).
Our decision in Coffin is in accord with the decisions of
the other circuits that have recognized that when a fiduciary’s
interpretation of the plan is based on a legal determination,
review is de novo.

See, e.g., Daft v. Advest, Inc., 658 F.3d 583,

594 (6th Cir. 2011) (noting that the deferential standard of review
“does

not

apply

to

a

plan

administrator’s

determination

of

questions of law, such as whether a plan meets the statutory
definition of a top-hat plan; a court reviews those questions de
novo”); Riley, 657 F.3d at 741-42 (concluding in a case identical
to the one before us in all significant respects that the de novo
standard of review ought to apply because the court was required to
review

the

administrator’s

“interpretation

of

a

controlling

principle of law”--the character and scope of benefits under the
Veterans’

Benefits

Act

(internal

quotation

marks

omitted));

Johannssen v. Dist. No. 1--Pac. Coast Dist., MEBA Pens. Plan, 292
F.3d

159,

169

(4th

Cir.

2002)

(“Such

legal

questions

are

appropriate terrain for the courts, not plan administrators, and
when eligibility determinations turn on questions of law we have
not hesitated to apply a de novo standard of review.”), abrogated
on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105
(2008); Weil v. Ret. Plan Admin. Comm. of Terson Co., 913 F.2d
1045, 1049 (2d Cir. 1990) (same), vacated on other grounds, 933

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F.2d 106 (2d Cir. 1991); see also 2 Lee T. Polk, ERISA Practice &
Litigation § 11:53 (2010).
In the particular dispute before us, Sun’s interpretation
of the “Other Income” section of the Plan depends wholly upon its
interpretation of external, non-plan material:

the Veterans’

Benefits Act,14 the Social Security Act15 and the Railroad Retirement
Act.16

Under the Plan language, the character of, and especially

14

The only citation Sun provides to the Veterans’ Benefits
Act is 38 U.S.C. § 1110. See Appellant’s Br. 16. Section 1110 is
only
the
provision
concerning
basic
entitlement
to
service-connected disability compensation. Like other courts to
consider the issue, see, e.g., Riley v. Sun Life & Health Ins. Co.,
657 F.3d 739, 740 (8th Cir. 2011), we believe that the Veterans’
Benefits Act begins at 38 U.S.C. § 101 and encompasses all of Title
38 (Veterans’ Benefits).
It is probably a misnomer to refer to Title 38 this way. See
Gov’t’s Amicus Br. 5. Title 38 provides for all veterans’ benefits
but is not comprised of one act. In 1958, Congress passed Public
Law 85-857, which was codified as Title 38, “[t]o consolidate into
one Act all of the laws administered by the Veterans’
Administration.” Pub. L. No. 85-857, 72 Stat. 1105 (1958). This
enactment codified provisions for both service-connected disability
compensation and non-service-connected disability pensions.
In
subsequent years, Title 38 has been amended multiple times.
However, since the parties use the term “Veterans’ Benefits Act,”
we also refer to Title 38 in this way for ease of discussion.
On October 15, 2012, this court issued an order inviting the
United States to file a brief as amicus curiae “presenting its view
on whether the Veterans’ Benefits Act reasonably could be
characterized as similar to the Social Security Act or the Railroad
Retirement Act such that benefits under the Veterans’ Benefits Act
could be deemed equivalent to those provided under the other two
acts.” Hannington v. Sun Life & Health Ins. Co., No. 12-1085, R.32
at 2 (Oct. 15, 2012). The court expresses its thanks to the United
States for having accepted the invitation and for having provided
a very helpful brief.
15

42 U.S.C. §§ 401 et seq.

16

45 U.S.C. §§ 231 et seq.
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the benefits available under, the comparator acts and the statute
providing the benefits potentially available for off-set determine
the scope of benefits available under the Plan.

If the Veterans’

Benefits Act is not similar to the Social Security Act and/or the
Railroad Retirement Act, then Sun cannot offset Mr. Hannington’s VA
benefits.
Mr.

Therefore,

Hannington’s

VA

because

benefits

Sun’s

was

decision

governed

to

entirely

offset
by

its

interpretation of several statutes, the district court ought to
have reviewed de novo Sun’s determination that Mr. Hannington’s VA
benefits were “Other Income” under the Plan; this is the standard
of review which we also must employ.

B.
We now turn to an examination of Sun’s decision, as plan
fiduciary, to set off Mr. Hannington’s VA benefits against the
amount owed him under the Plan.

1.
Sun seeks reversal of the district court’s decision
prohibiting

its

offset

of

Mr.

Hannington’s

service-connected

disability compensation under the Veterans’ Benefits Act against
the long-term disability payments that it provides to him under the
Plan.

Sun bases its position on an interpretation of the Plan’s

“Other Income” section.

In its view, under the fifth clause of

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this section, Mr. Hannington’s VA service-connected disability
compensation must be considered income from “a similar act or law.”
The fifth clause defines “Other Income” as follows:
[a]ny amount of
benefits under:

disability

or

retirement

a) the United States Social Security Act to
which[:]
i) you are entitled; and
ii) your Dependents may be entitled
because of your disability or retirement;
b) the Railroad Retirement Act;
c) any other similar act or law provided in
any jurisdiction.[17]
Sun determined that the Veterans’ Benefits Act is similar
to the Social Security Act and/or the Railroad Retirement Act based
simply on its identification of some common characteristics of the
statutes.

Sun observes that all (1) are federal, (2) pay certain

periodic disability benefits, (3) have anti-assignment clauses and
(4) are administered by independent agencies. It also stresses the
similarities between the Social Security Act and the Veterans’
Benefits Act:

Both pay benefits based on impairment of earning

capacity, both ensure a minimum level of income and both can have
identical qualifications because one way to qualify for VA benefits
is to have been determined permanently disabled under the Social
Security Act.

17

A.R. 103.
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Importantly, Sun has never considered whether the VA
service-connected disability compensation Mr. Hannington receives
is similar to available disability benefits under the comparator
acts.

Sun’s statutory interpretation ignored the context and the

purpose of the comparison.

When, as here, the object of the

inquiry is to identify sources of income for purposes of set-off,
a meaningful comparison of the Social Security Act and the Railroad
Retirement Act to a potentially similar act or law requires a
comparison of the benefits offered by the laws in question.

The

“Other Income” section has no interest in the administrative
mechanics

of

various

statutory

schemes

or

of

the

statutory

structure of the agency administering the disbursement.

Its focus

is simply the nature of the payments and the role that they play in
the financial health of the recipient.

The district court was

therefore correct in characterizing Sun’s focus on factors not
relevant to this inquiry as “superficial.”18

18

Sun’s approach to the

R.31 at 10.
Sun also cites the Texas Supreme Court’s
statement in Barnett v. Aetna Life Insurance Co., 723 S.W.2d 663,
666 (Tex. 1987), of the “similar features” of the Social Security
Act and the Veterans’ Benefits Act. Both “are (1) governmental or
legislative plans providing for (2) periodic payment (3) to
qualified individuals (4) who have suffered a physical disability
(5) without regard to fault.
In addition, all provide death
benefits, have anti-assignment clauses, and are administered by
independent agencies.” Id. These similarities are superficial; as
the Texas Supreme Court went on to note, “the similarity of
features of the acts are not the key ingredient, rather it is the
objectives for which they were created and the manner in which the
acts are implemented.” Id. at 666-67.
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interpretation question was thus improper and, as we shall explain,
its conclusion also was erroneous.

2.
Sun’s inexplicable decision to omit from its comparison
of the disability statutes any examination and comparison of the
substantive features of the veterans’ disability scheme caused it
to misapprehend, seriously, the degree of dissimilarity between the
Veterans’

Benefits

Act

and

the

comparator

acts.

When

the

substantive features of the Veterans’ Benefits Act are viewed as a
whole, its

dissimilarity

in

scope

and

purpose

to

the

Social

Security Act and the Railroad Retirement Act is evident.
The primary purpose of the Veterans’ Benefits Act is to
care for and to support those who have served our Country in the
Armed Forces of the United States.19

Its purpose is to, “in the

words of Abraham Lincoln, ‘provide[] for him who has borne the

19

Title 38 therefore includes not only disability
compensation, but a host of other benefits for veterans. See,
e.g., 38 U.S.C. §§
1902 (life insurance policies), 3461
(entitlement to educational assistance), 3710 (loans to purchase or
construct a primary residence). Therefore, as a threshold matter,
the Veterans’ Benefits Act’s broad scope demonstrates the
inaccuracy of Sun’s view that its “primary purpose [is] providing
the same types of benefits” as the Social Security Act and the
Railroad Retirement Act. Appellant’s Br. 16. The Social Security
Act and Railroad Retirement Act do not provide life insurance, home
or small business loans, educational benefits or any other benefits
beyond those for disability and retirement; they certainly do not
offer benefits specifically designed to assist beneficiaries with
navigating most major facets of civilian life.
See 38 U.S.C.
§§ 3001-4335 (Part III. Readjustment and Related Benefits).
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battle, and his widow and his orphan.’”
Radiation

Survivors, 473

U.S.

305,

Entry ID: 5722332

Walters v. Nat’l Ass’n of

309

(1985).

VA

benefits

therefore are linked not to employment but to past service in the
Armed Forces.

Notably, because of this fundamental difference in

purpose and scope, “funding for SSA [Social Security Act] and RRA
[Railroad Retirement Act] disability benefits derives from a tax on
both the employee and employer” whereas Veterans’ Benefits Act
“benefits are funded by Congress through the VA’s budget instead of
by a tax on members of the military.” Riley, 657 F.3d at 742, 743.
This purpose stands in stark contrast to the Social
Security Act and the Railroad Retirement Act.

The Social Security

Act and the Railroad Retirement Act, like many of the other types
of “Other Income” defined in the Plan, are insurance programs tied
to the beneficiary’s employment.20

See generally Hisquierdo v.

Hisquierdo, 439 U.S. 572, 573 (1979) (discussing the Railroad
Retirement Act’s purpose as “provid[ing] a system of retirement and
disability benefits for persons who pursue careers in the railroad
industry”); California Dep’t of Human Res. Dev. v. Java, 402 U.S.
121, 130-32 (1971) (discussing the purposes and history of the
Social Security Act).

20

“Other Income” includes: workers’ compensation; benefits
under an occupational disease law; a settlement with an employer in
lieu of workers’ compensation; benefits received under a plan
related to or from the beneficiary’s employer; unemployment
compensation; and a salary continuance plan. A.R. 103.
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Furthermore, when we focus only on benefits related to
disability, the statutory scheme of the Veterans’ Benefits Act
provides for two different types of benefits:
disability

compensation

(which

Mr.

service-connected

Hannington

receives)

and

disability pensions for veterans of wartime service or their
surviving spouses or children.21

The latter benefit arguably might

bear some substantive similarity to the benefits obtainable under
the Social Security Act and the Railroad Retirement Act, but we
need not and do not decide that question today.

The former,

however--the service-connected disability compensation received by
Mr. Hannington--is decidedly different, and it is the substantive
nature of this benefit that must be compared to those under the
comparator statutes.

These VA benefits are based on diseases and

injuries incurred by service personnel on account of their military
service.

They are calculated not on a particular veteran’s actual

disability but rather “represent as far as can practicably be
determined the average impairment in earning capacity resulting
from such diseases and injuries and their residual conditions in
civil occupations.”22

Because they

are based on the special

sacrifice of illness or injury in military service, they are
payable in increments of disability ranging from ten percent to one

21

See 38 U.S.C. §§ 1521, 1541, 1542.

22

38 C.F.R. § 4.1; see also 38 U.S.C. § 1155.
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percent.23

hundred

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Notably,

Date Filed: 03/29/2013

although

Congress

has

Entry ID: 5722332

forbidden

duplication for some government benefits, it has not done so when
there is

an

overlap between

Social Security

Act

or

Railroad

Retirement Act benefits and VA benefits.24
There are very important substantive differences between
the Veterans’ Benefits Act and the Social Security Act and the
Railroad Retirement Act, especially between the service-connected
disability

compensation

received

by

Mr.

Hannington

available benefits under the comparator acts.
render the

Veterans’

construction,

Benefits

dissimilar

Railroad Retirement Act.

to

Act,

the

as

Social

a

and

the

These differences

matter

Security

of

statutory

Act

and

the

Thus, the VA benefits Mr. Hannington

receives are not “Other Income” for purposes of reducing the
payment Sun owes Mr. Hannington under the Plan.

Conclusion
The judgment of the district court is affirmed.
AFFIRMED.

23

See 38 U.S.C. §§ 1114, 1115.

24

See 20 C.F.R. § 226.72(d) (Railroad Retirement benefits are
not reduced by the receipt of VA benefits); id. § 404.408(b)(2)(ii)
(Social Security benefits are not reduced by the receipt of VA
benefits).
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APPENDIX

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