SETO v. USA

Filing 25

REPORTED OPINION AND ORDER DISMISSING CASE: Defendant's 16 Motion for Summary Judgment and to Dismiss is GRANTED and plaintiff's 20 Cross-Motion for Summary Judgment is DENIED. The Clerk's Office is directed to ENTER final judgment accordingly. No costs. Signed by Judge Armando O. Bonilla. (ead) Service on parties made.

3Jn tbe Wniteb ~tates <!Court of jfeberal QClaitns
No. 21-1497T
(Filed: May 9, 2022)
FOR PUBLICATION

JEFFREY K. SETO,

Plaintiff
v.
UNITED STATES,

Defendant.

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Tax Refund: Treasury Offset
Program; CARES Act;
Illegal Exaction

Jeffrey K. Seto, pro se Plaintiff.
Brendan D. Jordan, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Depm1ment of Justice, Washington D.C., for Defendant. With him on the briefs were
Brian M Boynton, Acting Assistant Attorney General , Patricia M. McCarthy, Director, Steven J.
Gillingham, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice, Washington, D.C.
OPINION AND ORDER

BONILLA, Judge.

Plaintiff prose Jeffrey K. Seto initiated this action to challenge, among other things,
the decision of the Internal Revenue Service (IRS), a bureau of the United States Department
of the Treasury, to apply his 2019 federal income tax refund to offset (in pm1) over $170,000
in defaulted student loans (inclusive of interest and fees & costs) dating back nearly 30 years.
In support of his claim, Mr. Seto first contends that the United States Department of Education
failed to notify him that his student loans were in default. Next, Mr. Seto avers that the IRS
unlawfully offset his refund in light of fact that, had he filed his 2019 federal income tax return
later in the tax season, his refund would not have been withheld due to ce11ain financial relief
provisions included in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act),
Pub. L. No. 116-136, 134 Stat. 281 (2020). Finally, Mr. Seto contends that the Department of
Education erred in applying his monthly payments toward interest rather than to pay down the
principal, resulting in the continuous assessment of compound interest.

In addition to monetary damages (i.e., the release of his 2019 federal income tax refund
in the net amount of $7,213), 1 Mr. Seto seeks an order of this Comt directing the Department of
Education to retroactively recalculate Mr. Seto's outstanding student loan debt by applying all
payments made since 2013 toward the principal of his student loans rather than the interest, and
to re-enroll Mr. Seto in the Depaitment of Education's Loan Rehabilitation Program.
Before the Court are the parties' cross-motions for summaty judgment pursuant to
Rule 56 of the Rules of the United States Comt of Federal Claims (RCFC) addressing the
propriety of the IRS 's decision to apply Mr. Seto's 2019 federal income tax refund to offset his
outstanding student loan debt. The United States also seeks dismissal of Mr. Seto's claims for
injunctive relief for lack of subject matter jurisdiction under RCFC 12(b)(1 ). For the reasons that
follow, defendant's dispositive motion is GRANTED and plaintiffs dispositive cross-motion is
DENIED.

BACKGROUND
A.

Student Loan Histo1y and Loan Rehabilitation Program

Between 1981 and 2002, Mr. Seto took out a series of federal student loans to finance
his education. He cunently has eight outstanding student loans under the William D. Ford
Federal Direct Loan Program (f/k/a Direct Stafford Loan Program) and the Federal Family
Education Loan (FFEL) Program. All are in default. Relevant here, as of December 5, 2018,
Mr. Seto's "Total Balance" was $170,264.67, broken down into principal balance ($95,616.99),
interest ($48,772.99), and fees & costs ($25,874.68). ECF 16-1 at A9.

In 2005, after initially defaulting on the student loans in issue, Mr. Seto's account was
referred to the Depaitment of Education's Default Resolution Group. Thereafter, in March 2014,
Mr. Seto emolled in the Depaitment of Education's Loan Rehabilitation Program and executed a
Repayment Agreement. Under the terms of the Repayment Agreement, Mr. Seto was required
to make at least nine monthly payments of approximately $180 to rehabilitate his student loans.
The Repayment Agreement explained that following the specified rehabilitation period, the loans
would be sold to a new lender, who "will establish a new due date and will calculate a new
monthly payment amount based upon the balance owed at the time of sale. The amount of the
required monthly installment payment may substantially increase." Id. at Al (emphasis added).
Mr. Seto successfully completed the Loan Rehabilitation Program and, consequently,
his outstanding student loans were transferred to Fedloan Servicing on December 3, 2014.
The next day, Fedloan Servicing sent Mr. Seto two letters advising him of the details of his
outstanding student loans (e.g., loan program, owner, disbursement date, principal balance,
interest rate, loan status) as well as his repayment options. The Fedloan Servicing letters fu1ther
explained to Mr. Seto that his monthly payment would remain the same as it was during the
Rehabilitation Program for an additional three months, and that during this introductory period,
The full amount of Mr. Seto's 2019 federal income tax refund was $9,288. ECF 16-1 at A 179. In July 2020, the
Department of Education refunded $2,075 to the Setos in connection with a verified innocent spouse claim. See id.
at Al 16-17, 178.
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Mr. Seto could elect a new repayment plan from among those offered. The Fedloan Servicing
letters specifically noted:

If you do not choose a new repayment plan, your rehabilitated loans with either
be:
1. Placed on a standard repayment plan. This means your payment will be the
same each month. Please note your standard payment amount may be
significantly higher than your payment amount during the rehabilitation
process.
2. Placed on the same repayment plan as your other Direct Loans, if you have
any that we are cunently servicing.

Id. at A3, AS (emphasis added). Between December 2014 and February 2015, Mr. Seto's
monthly payment to Fedloan Servicing was $176.39. Id. at A120-25.
Following the three-month introduct01y period, on Februmy 17, 2015 - after Mr. Seto
failed to select a new repayment plan - Fedloan Servicing informed Mr. Seto that he had been
placed on a standard repayment plan and that his new monthly payment was $1,281.47. Id. at
A126-29. Although Mr. Seto continued making monthly payments to Fedloan Servicing, his
payments were well below the standard repayment plan amount. See id. at A 13 0-77. Indeed,
by December 2015 - ten months into the new repayment plan - Mr. Seto's "Amount Past Due"
totaled $10,956.36. Id. at Al 76.
B.

Notices of Delinquency and Default

Between March and December 2015, Fedloan Servicing sent Mr. Seto detailed monthly
bills and separate delinquency notices info1ming him that he was in arrears and headed towm·d
default. Id. at Al30-77. In the interim, on May 14, 2015, Fedloan Servicing notified Mr. Seto
that his continuing failure to make required minimum monthly payments would cause his loans
to default on December 10, 2015. Id. at Al37. On December 14, 2015, Fedloan Servicing
notified Mr. Seto that his failure to comply with the te1ms and conditions of his loan repayment
schedule, coupled with his decision to ignore the company's repeated efforts to resolve his
delinquency, required that he remit payment in the full amount of $137,866.70 by January 11,
2016. Id. at Al 74-75. The December 14, 2015 notice further informed Mr. Seto that his failure
to repay this debt in full within 30 days or contact Fedloan Servicing to make alternative
mrnngements, "will cause these loans to default." Id. at Al 74. Mr. Seto did neither.
On Janumy 15, 2016, the Depmtment of Education fo1mally issued Mr. Seto a formal
Notice of Default. Id. at A7-8. The Notice of Default explained to Mr. Seto:
Consequences of default include ineligibility for federal student financial aid and
most other federal benefits programs. In addition, your account may soon be sent
to the US. Department ofEducation's Debt Collections Service for additional
collection activities, which may include:

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Wage garnishment.
Offset your federal student loan debt against your federal tax return.
Possible legal action by the United States Depa1tment of Justice.
Assessment of collection costs and fees.
Credit bureaus will be notified, and your credit rating may suffer.

Id. at A 7 (emphasis added). Between May 2016 and December 2018, the Department of

Education sent Mr. Seto a series of fo llow-up requests for payment and reminders of the
potential consequences of his continued nonpayment outlined in the Notice of Default. Id. at
A9-11, A 75-80. Instead, Mr. Seto continued making monthly payments consistent with his
initial payments under the Loan Rehabilitation Program.
C.

Federal Income Tax Refund Offset

On December 5, 2018, the Depa1tment of Education informed Mr. Seto:
The Depaitment intends to refer your [student loan] debt to the U.S. Depaitment
of the Treasury for collection through Treaswy offset against all payment streams
that are currently authorized by law or that become authorized in the future.
These payment streams may include, but are not limited to, Federal and State tax
refunds, Social Security benefits, and Federal travel reimbursements.

Id. at A9 (emphasis added). On February 15, 2019, Mr. Seto's outstanding student loan debt was
ce1tified to Depaitment of the Treasury. Id. at Al 78.
Thereafter, on July 19, 2019, Mr. Seto purchased a rooftop solai- energy system for
his home at a total cost of $26,939, financed over ten years with Loanpal. ECF 20 at Exs. 1-2.
Mr. Seto's decision to invest in renewable energy was inspired, in part, by the Federal
Investment Tax Credit (commonly known as the Solar Tax Credit) which, in 2019, granted
taxpayers a residential energy efficient prope1ty credit equal to thirty percent (30%) of the cost
of rooftop solar energy systems. See https://www.irs.gov/newsroom/energy-incentives-forindividuals-residential-property-updated-guestions-and-answers. Indeed, in accordance with the
terms of the Loanpal Loan Closing Certificate, Mr. Seto's initial monthly payment of $187.22
would increase to $277.05 on March 4, 2021, if he failed to pay down the loan principal by
$10,094.71 and meet the "tai-get balance" of $16,844.29 by that date. ECF 20 at Ex. 1.

In January 2020, Mr. Seto filed his 2019 federal income tax return with the IRS, claiming
a $7,994 Federal Investment Tax Credit for the purchase and installation of the solar energy
system and a net refund of $9,288. By letter dated February 20, 2020, the Depaitment of the
Treasuiy, Bureau of the Fiscal Service, notified Mr. Seto that his 2019 federal income tax refund
in the amount of $9,288 had been applied to offset (in pait) his outstanding student loan debt.
ECF 16-1 at Al 79. Thereafter, on July 16, 2020, following the Setos' submission of a verified
innocent spouse claim with the IRS, the Department of Education refunded them $2,075. See id.
atA116-17, 178.

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DISCUSSION
A.

Cross-Motions for Summaiy Judgment: 2019 Federal Income Tax Refund
1.

Standard of Review

Under RCFC 56, "[t]he comt shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter oflaw." RCFC 56(a). A "genuine dispute" exists where a reasonable factfinder "could
return a verdict for the nonmoving patty." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248
(1986). "Material facts," in tmn, are those which might affect the outcome of the case. Id.
In deciding motions for summary judgment, particularly where, as here, the patties filed crossmotions for summa1y judgment, the Comt must draw all inferences in the light most favorable to
the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S . 574, 587-88
(1986) (quoting United States v. Diebold, Inc., 369 U.S. 654,655 (1962)).
2.

Illegal Exaction Claim

In his complaint and dispositive cross-motion, Mr. Seto cites the Due Process Clause
of the Fifth Amendment to the United States Constitution as the basis for his claim. ECF 1 at 4;
ECF 20 at 3. The Due Process Clause is not money-mandating and, thus, claims asserting this
constitutional provision are generally not properly before this this Court. Tabb Lakes, Ltd. v.
United States, 10 F.3d 796,803 (Fed. Cir. 1993) (citing Hamlet v. United States, 873 F.2d 1414,
1416 (Fed. Cir. 1989)). However, as suggested by the government in its October 1, 2021 status
repmt, see ECF 10 at 1, Mr. Seto's claim is appropriately considered under this Comt's illegal
exaction jurisprudence. See, e.g., Pennoni v. United States, 79 Fed. Cl. 552, 560-61 (2007)
(citing New York Life Insur. Co. v. United States, 118 F.3d 1553, 1556 (Fed. Cir. 1997) (citing
United States v. Testan, 424 U.S. 392 (1976); Eastport S.S. Corp. v. United States, 372 F.2d
1002 (Ct. Cl. 1967))); see also Embrey v. United States, No. 19-740, 2020 WL 732184, at *2
(Fed. Cl. Dec. 11, 2020) ("A prose litigant's complaint is to be construed liberally.") (citing
Erickson v. Pardus, 551 U.S . 89, 98 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)));
Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013)).
An illegal exaction occurs when money is "improperly paid, exacted, or taken from the
claimant in contravention of the Constitution, a statute, or a regulation." Norman v. United
States, 429 F.3d 1081, 1095 (Fed. Cir. 2005) (cleaned up). "[A] plaintiff claimingjurisdiction
based on an illegal exaction must demonstrate that 1) the exaction was directly caused by a
misapplication of a statute, and 2) the remedy implicit in the statute is the return of the funds."
Pennoni, 79 Fed. Cl. at 561 (citing Norman, 429 F.3d at 1095-96). The record presented in this
case is clear: the government's actions did not constitute an illegal exaction entitling Mr. Seto
to relief. The Comt will address the arguments advanced by Mr. Seto seriatim.
First, Mr. Seto asse1ts that the Department of Education failed to notify him that his
student loans were in default, claiming that he first learned of the default after the IRS applied
his 2019 federal income tax refund to offset his outstanding student loan debt. Mr. Seto's
assertion is belied by the record presented and borders on sanctionable under RCFC 11.

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The official "Notice of Default" issued by the Depaiiment of Education on Januaiy 16, 2016,
was mailed to the same address Mr. Seto used to file his Complaint in this case as well as the
address cited and listed in his Cross-Motion for Summaiy Judgment. Compare ECF 16-1 at A 7
with ECF 1 at 5 and ECF 20 at 7, 10. The same is true for the: (1) Department of Education's
follow-up requests for payment and reminders of the potential consequences of his continued
nonpayment outlined in the Notice of Default sent to Mr. Seto between May 2016 and December
2018; and (2) the monthly detailed bills and separate delinquency notices Fedloan Servicing sent
Mr. Seto between March 2015 and January 2016 informing him that he was in ai-rears and
headed towai·d default. See ECF 16-1 at A9-l 1, A75-80, Al30-77. Mr. Seto' s decisions to
ignore these notices do not equate to the government's failure to notify him.
Similarly unavailing is Mr. Seto's reliance upon the CARES Act. Although the CARES
Act temporarily suspended collection actions for bonowers with defaulted federal student loans,
including federal income tax refund offsets, the statute did not go into effect until the President
signed the bill into law on Mai·ch 27, 2020. Pub. L. No. 116-136, 134 Stat. 281 (2020). Mr. Seto
filed his 2019 federal income tax return in Januaiy 2020. ECF 1 at 3. The IRS processed his
return and applied his refund to offset a p01iion of his outstanding student loan debt on or before
Februaiy 20, 2020, when Mr. Seto was formally notified of the government's action. ECF 16-1
at Al 79. Nothing in the CARES Act states or clearly suggests that the student loan temporaiy
relief provisions applied retroactively. Absent such statuto1y language, comis cannot construe
laws and implementing regulations to have retroactive effect. Hicks v. Merit Sys. Prof. Bd. ,
819 F.3d 1318, 1321 (Fed. Cir. 2016) ("Retroactivity is not favored in the law and congressional
enactments and administrative rules will not be construed to have retroactive effect unless their
language requires this result. Accordingly, we will construe a statute to avoid retroactivity
unless there is clear evidence that Congress intended otherwise.") (cleaned up). Consequently,
the enactment of the CARES Act has no bearing on Mr. Seto' s illegal exaction claim.
Next, contrary to Mr. Seto's argument, the Department of Education did not improperly
apply his monthly payments to the interest on his student loans rather than to pay down the
principal. By regulation, under the Federal Direct Loan Program, save specified repayment
plans not applicable here, "the Secretary applies any payment first to any accrued charges and
collection costs, then to any outstanding interest, and then to outstanding principal." 34 C.F.R.
§ 685.21 l(a)(l). The regulation governing FFEL loans similarly provides: "the lender may
credit the entire payment amount first to any late charges accrued or collection costs and then to
any outstanding interest and then to outstanding principal." Id. § 682.209(b)(1 ). Accordingly,
under applicable law, Mr. Seto's monthly student loan payments were properly applied to
accruing interest, thereafter compounded, rather than to pay down the loan principal.
Finally, Congress specifically authorized all federal agencies to coordinate with the
Department of the Treasury to collect past-due debts through offsets to federal disbursements
and accounts payable, including federal income tax refunds. See 31 U.S.C. §§ 3176(c)(6)(A),
3720A(a). To implement these statutes, the Depaitment of the Treasmy established the Treasmy
Offset Program (TOP), administered by the Bureau of Fiscal Service, to " collect past-due
(delinquent) debts (for example, child support) that people owe to state and federal agencies.
See https://fiscal.treasury .gov/top/. More specifically, "TOP matches people and businesses who
owe delinquent debts with money that federal agencies are paying (for example, a tax refund).

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To the extent allowed by law, when a match happens, TOP withholds (offsets) money to pay the
delinquent debts." Id. This Program is codified in 31 C.F.R. § 285.5 (Centralized offset of
Federal payments to collect nontax debts owed to the United States). Under TOP, the United
States possesses the right to apply monies held by it to extinguish debts due to it. See United
States v. Munsey Trust Co. of Washington, D.C. , 332 U.S. 234,239 (1947).
Moreover, the Debt Collection Improvement Act of 1996, Pub. L. No. 104-134, requires
federal agencies owed eligible delinquent nontax debts (refe1Ted to as " creditor agencies") to
refer those debts to the Depmtment of the Treasury for offset. 26 U.S.C. § 6402(d); 31 U.S.C.
§§ 3716, 3720A. As a creditor agency, the Department of Education submits delinquent debts,
including defaulted student loans, to the Depmtment of the Treasury for inclusion in TOP by
ce1tifying that such debts qualify for collection by offset. See 26 U.S .C. § 6402(d); 31 U.S .C.
§§ 3716(c), § 3720A(b); 31 C.F.R. §§ 285.2, 285.4 & 285.5. The Department of the Treasury
then matches payments (e.g., federal benefits payments, federal income tax refunds) from
"payment agencies" (e.g., Social Security Administration, IRS) with delinquent debts held by
"creditor agencies" (e.g., Depmtment of Education). 31 C.F.R. §§ 285.5(b)(2) and 285.4(c). If
there is a match, the Depmiment of the Treasury offsets all or a p01tion of the federal payment,
pays the offset to the creditor agency, and sends a notice and any remainder to the payee.
31 C.F.R. § 285.5(c) & (h).
The record presented in this case is a textbook application of TOP. At the time of the
IRS offset, Mr. Seto's outstanding student loans were delinquent for 274 days, well in excess of
the 120-day delinquency required by regulation. Compare 31 C.F.R. § 285.5(d)(l) with ECF 161 at A8. On February 15, 2019, the Depmiment of Education certified Mr. Seto's student loan
debt to the Depatiment of the Treasury for inclusion in TOP.2 Id. at Al 78. The Department of
the Treasury then properly matched the IRS's impending remittance of Mr. Seto's 2019 federal
income tax refund with his delinquent student loan debt held by the Depmiment of Education.
The Department of Education, the Department of the Treasury, and the IRS adhered to the
governing statutes and regulations. At bottom, Mr. Seto's 2019 federal income tax refund was
properly offset to satisfy a portion of his defaulted federal student loan debt. Id. at A 179.
B.

Motion to Dismiss: Lack of Subject Matter Jurisdiction
1. Standard of Review

Under RCFC 12(b)(l), this Comi must dismiss a claim where it lacks subject matter
jurisdiction. " In dete1mining jurisdiction, a court must accept as true all undisputed facts
asse1ied in the plaintiffs complaint and draw all reasonable inferences in favor of the plaintiff."
Mr. Seto contends that the IRS 's failure to similarly apply his 20 I 8 federal income tax refund in the amount of
$1,358 to offset his outstanding student loan debt should estop the government from withholding his 2019 federal
income tax refund; specifically, Mr. Seto asserts that he relied upon the IRS's prior inaction in purchasing the
rooftop solar energy system for his home. See EFC 20 at 4, 5, 8. Setting aside the legal infirmity of Mr. Seto's
argument, the simple answer is that the Depaitment of Education did not certify Mr. Seto's student loan debt to the
Department of the Treasmy until Februaiy 15,2019 -two days after the IRS processed and remitted Mr. Seto's
2018 federal income tax refund. Compare ECF 16- 1 at A 178 with id. at A 118-19. Consequently, there was nothing
for the Department of the Treasury to act upon prior to February 15, 2019.

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Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011 ) (citing Henke v.
United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). When challenged by the defendant or raised
sua sponte by the court, the plaintiff "bears the burden of establishing the comt's jurisdiction
over its claims by a preponderance of the evidence." Id. (citing Reynolds v. Army & Air Force
Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).
2. Plaintiffs Claims for Injunctive Relief
This Comt's authority to hear cases and controversies is confened by the Tucker Act,
28 U.S.C. § 1491, which grants the Comt "jurisdiction 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 depaitment, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in t01t." Id. To assert a
viable claim in this Court, moreover, "a plaintiff must identify a separate course of substantive
law that creates a right to money damages." Fisher v. United States, 402 F.3d 1167, 1172
(Fed. Cir. 2005) (en bane).
In this case, Mr. Seto seeks an order of this Court directing the Depaitment of Education
to retrnactively recalculate Mr. Seto's outstanding student loan debt by applying all payments
made since 2013 toward the principal of his student loans rather than the interest, and to re-enroll
Mr. Seto in the Department of Education's Loan Rehabilitation Program. ECF 1 at 5. Such
claims for pme injunctive relief fall outside this Comt's jurisdiction.3 See Johnson v. United
States, 105 Fed. Cl. 85, 95-96 (2012) ("The Federal Circuit has unambiguously held that
cancellation of debt does not constitute monetary damages.") (citing Gonzales & Gonzales
Bonds & Ins. Agency, Inc. v. Dep't ofHomeland Sec., 490 F.3d 940 (Fed. Cir. 2007)); James v.
Caldera, 159 F.3d 573,580 (Fed. Cir. 1999) (claims for injunctive relieflie outside the
jurisdiction of the Court of Federal Claims). Accordingly, Mr. Seto's claims for injunctive relief
are dismissed for lack of jurisdiction.
CONCLUSION
For the reasons stated herein, defendant's motion for summary judgment and to dismiss
(ECF 16) is GRANTED and plaintiffs cross-motion for summary judgment (ECF 20) is
DENIED. The Clerk's Office is directed to ENTER final judgment accordingly. No costs.
It is so ORDERED.

In any event, as explained above, the application of Mr. Seto's monthly student loan payments to accruing interest
prior to paying down the principal is consistent with governing regulations. As for Mr. Seto's re-enrollment request,
the Loan Rehabilitation Program is available "one time per loan." See 20 U.S.C. § 1078-6(a)(5); see also 34 C.F.R.
§ 685.21 l (f)(l2) ("Effective for any defaulted Direct Loan that is rehabilitated on or after August 14, 2008, the
borrower cannot rehabilitate the loan again if the loan returns to default status following the rehabilitation.");
34 C.F.R. § 682.405(a)(4) (same for FFEL loans).

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