60 F.Supp. 786 (1945)
In re MERCURY ENGINEERING CO.
No. 43619.
District Court, S. D. California, Central Division.
May 29, 1945.
*787 James M. Gammon and Cobb & Utley (by Ernest R. Utley) all of Los Angeles, Cal., for claimant.
Martin Gendel, of Los Angeles, Cal., for trustee.
YANKWICH, District Judge.
The order of the Referee, dated April 10, 1945, heretofore argued and submitted is reversed, with instructions to the Referee to allow the trustee to amend his objection so as to assert the counterclaim or off-set to the claim of Arthur E. Barili, and for such further proceedings as it may be advisable to have in conformity with the views hereinafter expressed.
As I take it, the gist of the order is contained in the following:
"It is ordered that the claim of Arthur E. Barili be and it is temporarily suspended for a sufficient period of time to permit the trustee to assert, in a plenary action, his claims, charges, set-offs, and counterclaims against the said Arthur E. Barili.
"It is further ordered that the trustee be and he hereby is permitted to institute and prosecute the action as indicated."
The Referee, however, has set forth in his order, his reasons for the rule, which, to my mind, deprived the Trustee of rights he may assert in bankruptcy court. When I first read the Referee's order, I thought that the Referee had merely exercised the right to defer the hearing of a claim until certain matters are adjudicated by plenary action. As the Referee, in passing on claims, exercises equity jurisdiction, Pepper v. Litton, 1939, 308 U.S. 295, 303-305, 60 S.Ct. 238, 84 L.Ed. 281, it is beyond dispute that he may, like any other court of equity, decline to entertain jurisdiction upon the ground that the litigation of a particular matter is only a part of a larger litigation which should be carried on before another forum. All courts recognize that there can be no splitting of a cause of action. (See: Yankwich on California Code Pleading, Secs. 115 to 118)
However, by his order, the Referee did not only permit the trustee to bring a plenary action, but forbade him from proceeding on his objection to the claim. In this respect, the trustee was not blameless, because his objection to the claim left in doubt whether he would assert in the bankruptcy court the right to a judgment for a surplus. The Referee based his order upon the express belief that he lacked authority to entertain any counterclaim for any surplus. As there are no pleadings before the Referee asserting the right to a surplus, the legal principles stated in the order are dicta, and I am not in a position to rule definitely upon the question. My own impression is, despite some older decisions by other judges of this district, that in the light of the more modern trend to identify the function of the Referee in passing on claims with that of a court of equity (see Pepper v. Litton, 308 U.S. 295, 308, 60 S.Ct. 238, 84 L.Ed. 281), the right to award a judgment for the surplus exists. The right to enter judgments is specifically conferred by Subdivision 15 of Section 2, sub. a, of the Bankruptcy Act of 1938, 11 U.S.C.A. § 11, sub. a(15). The power to allow and disallow claims is conferred by Subdivision a of Section 2, 11 U.S.C.A. § 11, sub. a. Section 68, subs. a and b of the Act, 11 U.S.C.A. § 108, subs. a and b, grants the power of determining set-offs and counterclaims. Courts which have interpreted these new enactments are of the view that they aim to make the Referee "an officer authorized to perform judicial duties." Donald v. Bankers Life Co., 1939, 5 Cir., 107 F.2d 810, 812. Counterclaims, set-offs and cross bills are creatures of equity carried over into modern pleading. One who comes into a court of equity and asks that it give recognition to a claim, so that he may share in an estate before it in the proportion which his claim bears to the value of the estate, has brought before the court the determination of his entire claim. And if the court finds that his claim is invalid, he is not in a position to say that the court, the jurisdiction of which he invoked, has no power to render judgment against him for the surplus. See: Alexander v. Hillman, 1935, 296 U.S. 222, 238, 56 S.Ct. 204, 80 L.Ed. 192; Florance v. Kresge, 4 Cir., 1938, 93 F.2d 784.
As said in Alexander v. Hillman, supra, 296 U.S. at page 237, 56 S.Ct. at page 209, 80 L.Ed. 192:
"The receivers are the court's representatives and are entitled to have all the property *788 belonging to defendant, and, upon leave, may sue to recover any part of the res. The controversies before us arise between respondents who come to share therein and the receivers who not only put in issue the validity of respondents' claims but allege that they have and refuse to account for a portion of the assets. Undoubtedly the court has jurisdiction of the subject-matter, i. e., the claims and counterclaims." (Emphasis added)
And, while the court there was dealing with receivers, the principle is the same in bankruptcy. See: Floro Realty Investment Co. v. Steem Electric Corporation, 1942, 8 Cir., 128 F.2d 338, 340, 341. The trustee is the representative of the court, entitled to the property belonging to the bankrupt. Bankruptcy Act, 1938, § 70, 11 U.S.C.A. § 110; Sampsell v. Imperial Paper Corporation, 1941, 313 U.S. 215, 217, 218, 61 S.Ct. 904, 85 L.Ed. 1293. It is made his duty to reduce the property to his possession. Bankruptcy Act of 1938, Sec. 2, sub. a(7), 11 U.S.C.A. § 11, sub. a(7). And when a claim is presented for a share of this property, the bankruptcy court has jurisdiction to determine its validity, which includes not only objections aiming to defeat it but also to recover, for the estate, any surplus owing the bankrupt.[1] But although thus indicating my views, I am not determining the matter definitely and foreclosing further arguments, because the matter is not before me upon proper pleadings. It is true that in his order the Referee gave a contrary view as the basis of his action. But the Referee speaks to the court through his order which grants or denies certain things and not through the reasons for the order. And the order in this case is limited to the two paragraphs set forth at the head of this memorandum. By reversing the order and suggesting that the indicated procedure be followed, we will be in a position to rule upon this matter definitely. The trustee may file a counterclaim. The creditor can object to the counterclaim and ask for its dismissal. The Referee will then have the choice of either ruling on the counterclaim as a matter of law, or he can hear evidence as to the whole matter and make a finding determining whether the claim as a whole is valid and whether, if so, a counterclaim can be asserted against it. Whichever course he follows, we will have an issue upon actual pleadings which can be determined on review.
Hence the ruling made above.
NOTES
[1]  The cases in this Circuit seemingly holding to the contrary (see In re Continental Producing Co., 1919, D.C.Cal., 261 F. 627; In re Patterson-MacDonald Shipbuilding Co., 1922, D.C.Wash., 284 F. 281; In re Patterson-MacDonald Shipbuilding Co., 1923, 9 Cir., 293 F. 192; In re Florsheim, 1938, D.C.Cal., 24 F.Supp. 991; In re Bowers, 1940, D.C.Cal., 33 F.Supp. 991) arose under the Bankruptcy Act of 1898. Two of them, In re Continental Producing Co., supra, and, In re Bowers, supra, definitely decide that no judgment can be rendered for a surplus. The holding is clearly based on general principles rather than on a consideration of the Bankruptcy Act, which, even before its recent amendments, explicitly gave to the bankruptcy court power to enter judgments. Bankruptcy Act of 1898, § 2, sub. a, 11 U.S.C.A. § 11, sub. a(15).

Judge Jenney's decision in Re Florsheim, supra, merely holds that in the particular case there was, in effect, a judgment for a surplus, rendered on objections to a claim and a charge of preference, without any more specific pleadings. In this respect, the ruling coincides with my ruling here, although some of the language might indicate adherence to the doctrine declared by Judges Bledsoe and Neterer in the cases cited above. The Circuit Court of Appeals for the Ninth Circuit has not spoken in the matter. And it is to be noted that in affirming Judge Neterer, it chose to base its decision not upon the ground stated by him that the bankruptcy court could not entertain the counterclaim, but upon the ground that the court lacked power to enter judgment against a foreign state. Judge Rudkin said:
"We are of opinion that the judgment of the court below must be affirmed, but we prefer to rest our decision on the want of power in the court below to enter judgment against a foreign state." In re Patterson-MacDonald Shipbuilding Co., supra, 293 F. 192, 193. (Emphasis added).


148 F.3d 1071
Smalleyv.Hillsborough County*
NO. 97-3334
United States Court of Appeals,Eleventh Circuit.
June 19, 1998
Appeal From:  M.D.Fla. ,No.9602064CVT24C

1
Affirmed.

*
 Fed.R.App.P. 34(a); 11th Cir.R. 34-3


273 P.3d 369 (2012)
248 Or. App. 753
STATE of Oregon, Plaintiff-Respondent,
v.
Kendall Kirk PAULING, Defendant-Appellant.
090632515; A145513.
Court of Appeals of Oregon.
Submitted January 31, 2012.
Decided March 14, 2012.
Peter Gartlan, Chief Defender, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.
*370 Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.
PER CURIAM.
Affirmed. State v. Leino, 248 Or.App. 121, 273 P.3d 228 (2012).


760 F.2d 102
Robert SMITH, Jr., Plaintiff-Appellant,v.Warden James ROSE, et al., Defendants-Appellees.
No. 83-5419.
United States Court of Appeals,Sixth Circuit.
Decided April 19, 1985.Argued Jan. 15, 1985.

Robert Smith, Jr., pro se.
Harold D. Vick (argued), Newport, for plaintiff-appellant.
W.J. Michael Cody, Atty. Gen. of Tenn., Nashville, Tenn., Ann Lacy Johns, David Himmelreich (argued), for defendants-appellees.
Before LIVELY, Chief Judge, MARTIN and JONES, Circuit Judges.
LIVELY, Chief Judge.

1
The plaintiff appeals from summary judgment in favor of all the defendants in this civil rights action.  At the time he filed the complaint, plaintiff was serving a life sentence at Tennessee State Prison in Nashville.  The defendants are the warden and several officers at the prison.

2
In addition to introductory material and a conclusion the pro se complaint contains forty-four numbered paragraphs.  Giving it the liberal reading required by Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the complaint made two distinct claims of deprivation of constitutional rights.  First, plaintiff charged that the warden ordered him placed in administrative segregation without cause and that he suffered hardships while so confined.  Second, plaintiff charged that the defendants took his personal property, refused to permit him to retrieve it and ultimately disposed of it.  After considering the complaint, the defendants' motion to dismiss or to grant summary judgment supported by affidavits, and the plaintiff's response, the district court concluded that neither allegation stated a claim under 42 U.S.C. Sec. 1983 and that there was "no state of facts upon which plaintiff could conceivably prevail."    This court appointed counsel for plaintiff on appeal.

I.
A.

3
In December 1981 plaintiff was involved in a work-release program which permitted him to work part time in a restaurant and take classes at a state technical institute.  On December 26, 1981 plaintiff was arrested at work by Nashville Metro police officers and charged with aggravated rape, aggravated kidnapping, armed robbery and assault with intent to commit murder.  These charges stemmed from an attack on a woman the previous day in the area of his workplace.  When plaintiff was returned to Tennessee State Prison on December 28 the defendant Warden Rose placed him in administrative segregation and recommended that he be confined there "for the security of the institution."    A disciplinary board hearing was held the following day to review the warden's recommendation.  Plaintiff waived his right to a 24-hour advance notice of the hearing, attended the hearing represented by a resident advisor and made a written statement.  The disciplinary board concurred in the warden's recommendation and plaintiff was kept in administrative segregation until sometime in February 1982.

4
Following plaintiff's arrest his personal effects were returned to Tennessee State Prison from the Nashville Community Service Center where plaintiff had been staying while on work release.  Metro police officers were permitted to examine the property for evidence related either to the crimes with which plaintiff was charged or to an unrelated murder for which he was being investigated.  While the property was being held for this purpose plaintiff was permitted to take personal items not related to the investigation.  According to the complaint, on or about April 27, 1982 a prison officer told plaintiff that the "hold" had been released and that he had until the following week-end to remove the property from a prison storage room.  Plaintiff charges that he talked with Rose and that Rose told him he would extend the time for removal of the property an additional 30 days from April 27th.  However, when plaintiff advised the officer in charge of the property room that his time for retrieving the property had been extended, the officer told him that the property already had been donated to a charity.  Under prison regulations plaintiff was entitled to a period of 30 days in which to remove property from the property room.

B.

5
In the "conclusion" of his complaint plaintiff charged that the defendants knew their actions were wrong and "[t]he plaintiff feels that the officials openly discriminated against the plaintiff because no other person was placed in segregation like the plaintiff was."    With respect to the deprivation of his property, plaintiff charged in paragraph 44 that the defendants refused to let the plaintiff have the property picked up and disposed of.  "There was no excuse for this action by the defendants and the plaintiff feels that this was done through spite and a conspiracy, because the defendant and his subordenates, [sic] and the Metro police knew that there was evidence in this property to clear the plaintiff of the charges that were brought back up."

6
Correctional officers who worked in the property room stated in affidavits that plaintiff was allowed to take items from his boxes of property on several occasions, that the Metro police officers went through the property early in January 1982 and that they told plaintiff during the second week in January that the property had been released and that he had 30 days to arrange for its removal.  According to the affidavits, plaintiff stated that he would have someone pick it up.  The property was donated to "Goodwill" on April 22, 1982.

7
Plaintiff's response to the motion for summary judgment reiterated the claims of the complaint and charged that the defendants' affidavits contained untruths.  He attached affidavits of three correctional officers who stated that they escorted plaintiff to the property room in January and February 1982 while he was confined in segregation, but that he was never permitted to take anything but some shirts and underclothes.  None of the affidavits addressed the facts surrounding the disposal of the property.  They appear to be intended to support plaintiff's claim that he was denied items of a personal nature while he was in administrative segregation.

II.
A.

8
Though he admits the prescribed processes were followed in sending him to administrative segregation, plaintiff argues without specificity that the hearing was a "hollow show."    The procedures followed in this case satisfied the requirements set forth by this court in Bills v. Henderson, 631 F.2d 1287 (6th Cir.1980).  The plaintiff appears to contend that the prison authorities could not place him in administrative segregation on the basis of state charges which had not resulted in a conviction.  He also makes the argument that even if he was properly sent to segregation when first returned to Tennessee State Prison, he should have been released when the charges based on the arrest warrant were dismissed.  However, the record is undisputed that the original charges were "nolle prossed" only because the victim of the rape and attempted murder was too ill to testify at a preliminary hearing and that the prosecution was never dropped.  The matter was presented to a grand jury which indicted plaintiff on the identical charges for which he was originally arrested.

9
Chief among the responsibilities of prison officials is security of the prison, and they must have broad discretion in carrying out this responsibility.   Bell v. Wolfish, 441 U.S. 520, 546-48, 99 S.Ct. 1861, 1877-79, 60 L.Ed.2d 447 (1979).  Involuntary confinement in administrative segregation may be ordered for the general purpose of maintaining institutional security when no specific rule infraction is charged.   Bills v. Henderson, 631 F.2d at 1295-96.  This limitation on a prisoner's already diminished liberty interest is part of the required "mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application."   Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974).  The immediate return to the general prison population of an inmate who is charged with serious crimes while on work release could reasonably be perceived as likely to create serious institutional problems.  It was within the warden's discretion to place the plaintiff in administrative segregation upon his return to the prison and then to convene the disciplinary board the next day.  Not only was plaintiff charged with serious offenses, he was also under investigation in connection with a homicide.  So long as the prison officials accorded plaintiff his procedural due process rights, he suffered no constitutional deprivation by being placed in administrative segregation.

B.

10
Plaintiff does not contend that the initial seizure of his personal property was wrongful.  The gravamen of his complaint is that, though he tried to retrieve his property on a number of occasions, the defendants did not return it to him, but gave it to a charity.  The district court held that this claim was foreclosed by Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).  In that decision the Supreme Court held that a state prisoner's claim that officials had negligently lost his property did not sufficiently allege a violation of the Fourteenth Amendment due process clause.   Id. at 537, 101 S.Ct. at 1914.  The deprivation in Parratt did not result from "some established state procedure," id. at 543, 101 S.Ct. at 1917, rather, it occurred because of a random act of carelessness.  Furthermore, the state provided a remedy for redress of the deprivation and, even though this remedy involved a postdeprivation hearing, it was sufficient to satisfy due process requirements.

11
Plaintiff argues that he charged the defendants with intentional, not negligent, actions which deprived him of property, and therefore Parratt does not control.  However, this argument is unavailing in view of the recent decision in Hudson v. Palmer, --- U.S. ----, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984).  In Hudson the Supreme Court held that the reasoning of Parratt applies to intentional deprivations of property as well as to negligent ones.

12
Plaintiff next contends that even if Parratt applies to an intentional deprivation, his Sec. 1983 claim survives because Tennessee has no postdeprivation remedy for intentional acts of state officials.  He relies on Tennessee Code Annotated (T.C.A.) Sec. 9-8-207 which provides for the hearing and determination by a state board of claims of "claims against the state for injuries or damages caused by the acts or omissions of any officers, members or employees of the state...."  Plaintiff argues that T.C.A. Sec. 9-8-207 permits the board of claims to hear and determine only claims based on negligence and that he consistently characterized the defendants' acts as "intentional, deliberate and willful" in his complaint.  This court recently held that T.C.A. Sec. 9-8-207 provides "adequate procedures to assure the return of items either negligently or intentionally converted...."  Brooks v. Dutton, 751 F.2d 197, 199 (6th Cir.1985).  Plaintiff argues that Sec. 9-8-207 does not provide him a remedy because it excludes claims based on "actual fraud, malice or corruption of the officer, member or employee."    However, plaintiff pled no facts and developed none in response to the motion for summary judgment upon which a finding of actual fraud, malice or corruption could be based.    Brooks v. Dutton would have no meaning if every claim of intentional misconduct were equated with actual fraud, malice or corruption.  The conclusory claims of plaintiff's complaint provided no basis for holding that he would be without a remedy under Sec. 9-8-207.1

13
We conclude that this case is within the rule of Parratt v. Taylor.    Though plaintiff could not recover the property, he had an adequate remedy in an action before the board of claims for its value.  Viewing the complaint and the materials filed by plaintiff in response to the motion for summary judgment most strongly in plaintiff's favor, he was deprived of his property because the defendants, either negligently or intentionally, failed to advise him in a timely manner that the "hold" on his property had been released.  The conclusory statement in the complaint that plaintiff "feels" that his property was disposed of through spite and conspiracy is not supported by factual statements and is not sufficient to state a claim for relief under 42 U.S.C. Sec. 1983.  In Place v. Shepherd, 446 F.2d 1239, 1244 (1971), we dealt with the pleading requirements under Sec. 1983 as follows:

14
We are unable to discern allegations of fact in the foregoing which would justify the broad conclusions asserted.  A pleading will not be sufficient to state a cause of action under the Civil Rights Act if its allegations are but conclusions.

15
This language would have supported a dismissal pursuant to the Rule 12(b)(6) motion of the defendants.  However, the district court considered the entire record and granted summary judgment.

16
If every factual claim made by the plaintiff in this case is accepted as true, the defendants were entitled to judgment as a matter of law.  Therefore summary judgment was properly entered in their favor.  Rule 56(c), Fed.R.Civ.P.  That plaintiff "felt" the defendants acted out of spite and pursuant to an agreement was a conclusion only.  The plaintiff was able to secure affidavits of three prison officers concerning his efforts to obtain a return of his property while he was still in administrative segregation, but produced no evidence to support his conclusory allegations of spite and conspiracy.  At most, the materials produced by the plaintiff show a failure to follow prison rules by notifying him of the availability of his property for removal from the storage room in sufficient time for him to arrange its removal.  This was the very type of act which Parratt v. Taylor disallows as the basis of a Sec. 1983 action where the state provides a postdeprivation remedy.

17
The judgment of the district court is affirmed.

18
NATHANIEL R. JONES, Circuit Judge, concurring in part and dissenting in part.

19
Although I agree that administrative segregation did not violate Smith's due process rights, I dissent from the majority's determination that Smith's claim for deprivation of property fails, as a matter of law, because an adequate state remedy was available.

20
It deserves emphasis that proper analysis begins from the dual premises that we should liberally construe Smith's complaint, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and that we must view all evidence supporting his factual allegations in the light most favorable to Smith on this review of a grant of summary judgment to the defendants.  Smith not only alleges that prison officials negligently or intentionally deprived him of property, but also alleges that he filed a state law tort suit against the defendants for deprivation of property.  The record reveals that Smith's pro se suit in state court was dismissed several months before he filed this action under 42 U.S.C. Sec. 1983.  Smith alleges that his state suit was dismissed for lack of prosecution because prison officials failed to transport him to Tennessee General Sessions Court on the hearing date.  The majority's resort to the Tennessee Code does not in this context establish that an adequate state remedy was available to Smith.  Viewing the evidence in the light most favorable to him, a genuine question of material fact remains on this issue.

21
I believe that whether an adequate state remedy is available must be considered in the context of each case, as a question of fact.   Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, --- U.S. ----, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), stand for the proposition that an adequate state postdeprivation remedy will satisfy procedural due process when a state prisoner alleges negligent or intentional deprivation of property by a person acting under color of state law but not in a manner authorized by established procedure.   Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), established that the federal remedy under Sec. 1983 is supplemental to state remedies, which "need not be first sought and refused" Id. at 183, 81 S.Ct. at 482.  The Court arrived at this conclusion by reviewing the legislative history of the Act and determining that Sec. 1983 has three distinctive purposes:  first, to override certain objectionable state laws;  second, to provide a remedy when state law is inadequate;  and third, the broader purpose to provide a federal remedy where a state remedy, although adequate in theory, is not available in practice.   Id. at 173-74, 81 S.Ct. at 476-77.    Parratt did not review the legislative history of Sec. 1983 and reject or revise the Court's declaration of the purposes of the Act as set forth in Monroe;  rather, Parratt operates within the tradition of Monroe and provides a gloss on Monroe's statement that a Sec. 1983 action may be brought when a state remedy is adequate in theory but not in practice.    Parratt establishes, for its particular factual setting, the characteristics of a state remedy that is adequate in practice.  Under Parratt, the state remedy must be available in a meaningful manner and at a meaningful time after the initial dispossession of the prisoner's property.   Parratt, 451 U.S. at 540, 101 S.Ct. at 1915.  If so, no constitutional deprivation has occurred and a federal forum is unnecessary.   Id. at 543, 101 S.Ct. at 1917.    Parratt has particularized the analysis of Monroe, rather than undermined Monroe's holding that the Sec. 1983 remedy is supplemental to state remedies.

22
The determination of whether a state remedy is actually, not merely theoretically, available in a meaningful manner and at a meaningful time necessarily requires consideration of the circumstances of each case.  For example, if the value of the seized property diminishes over time, or if its seizure places the property in jeopardy of destruction, then state provision of a remedy within a "meaningful time" may require a greater dispatch than where the property has been destroyed at the time of the seizure and only money damages, rather than restitution, are available.  This Court has noted, in another due process context, that "determining a reasonable time period defies easy exegesis."   Loudermill v. Cleveland Board of Education, 721 F.2d 550, 564 (6th Cir.1983).

23
Smith's complaint alleges that he was denied what he believed was an adequate state tort remedy by the abusive behavior of state officials who prevented him from pursuing his claim.  This is the sort of abuse Sec. 1983 was intended to remedy;  if Smith's allegation is true, his state remedy was only theoretically available.

24
The majority ignores these allegations and simply looks to the Tennessee Code to determine whether an adequate remedy is available.  The majority ultimately relies upon this Court's opinion in Vicory v. Walton, 721 F.2d 1062 (6th Cir.1983).  In Vicory, the Court properly required the plaintiff to plead and prove that state remedies were "inadequate in theory or practice."   Id. at 1065.  This portion of the Vicory holding is entirely in keeping with Monroe and Parratt.    The Court went on, however, to require demonstration of a "systematic problem with the state's corrective process."    Id.  While such a showing will satisfy Monroe and Parratt, a deprivation of due process is no less a constitutional violation for being aberrant rather than systematic.

25
It appears that the Court's concern in Vicory was not remedying due process violations, but remedying the case load of federal courts overburdened with prisoners' Sec. 1983 claims.   See Vicory, 721 F.2d at 1065 n. 4.  The majority today holds that Smith had an adequate state remedy on the ground that in Brooks v. Dutton, 751 F.2d 197 (6th Cir.1985), another panel of this Court examined the Tennessee Code and found that it provided "adequate procedures."   Id. at 199.  While this is a relevant threshold finding, it does not properly end the matter.  Nor will the question be finally resolved in this Circuit once we have examined the statute books of Kentucky, Ohio and Michigan.    Parratt and Monroe require not theoretical but actual state remedies for individual persons who have been deprived of property under color of state law.  These authorities mandate examination of the circumstances of each case.

26
Not all prisoner Sec. 1983 cases involve hobby kits.  Smith alleges that the clothes that the defendants did not return to him would have provided exculpatory evidence in later proceedings on the rape and assault charges.  This allegation is more than plausible;  the Nashville Metropolitan Police examined the same belongings for inculpatory evidence.

27
When I examine all of the circumstances of Smith's case and view the evidence in the light most favorable to him, I am not convinced that summary judgment on Smith's claim of property deprivation was proper.  I respectfully dissent because I believe reversal in part is appropriate.

1
 Section 9-8-207 was repealed effective January 1, 1985.  However, it controls this case where suit was filed in 1982 and the judgment of the district court was entered in 1983.  The new statutory scheme is not before us


651 So.2d 308 (1995)
AUTOCOUNT, INC., Plaintiff-Appellee,
v.
AUTOMATED PRESCRIPTION SYSTEMS, INC., Defendant-Appellant.
No. 94-1020.
Court of Appeal of Louisiana, Third Circuit.
February 1, 1995.
Rehearing Denied April 7, 1995.
*309 Christine Lipsey, James Rodney Chastain, Jr., Baton Rouge, for Autocount, Inc.
Charles Stovall Weems, III, Julie Rene Wilkerson, Alexandria, for Automated Prescription Systems, Inc.
Michael Simon Tudor, Alexandria, for Gary Steepleton.
Before DOUCET, C.J., and THIBODEAUX and SULLIVAN, JJ.
THIBODEAUX, Judge.
This case involves a dispute over whether fiduciary duties were breached by plaintiff-appellee/defendant-in-reconvention, Auto-Count, Inc., when its president, Gary Steepleton, allegedly used information he acquired as a former officer of defendant-appellant, Automated Prescription Systems, Inc. (APS) for seizing a business opportunity from APS. APS accuses Steepleton and AutoCount of manufacturing and marketing an automated pill counter for themselves after acquiring a knowledge of that instrument during Steepleton's employment with APS. In its view, these actions breached a fiduciary duty owed to APS and violated the Uniform Trade Secrets Act.
AutoCount, Inc. filed a motion for summary judgment which was granted by the trial court. The trial judge found that Steepleton, AutoCount's president and APS's former vice-president of marketing, in developing a pill counter, "did not breach a fiduciary duty nor did he usurp a corporate opportunity of APS."
For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES
APS appeals and asserts the following assignments of error:
1. Whether the trial court erred in granting AutoCount, Inc.'s motion for summary judgment on Automated Prescription Systems Inc.'s cause of action for breach of fiduciary duty by usurpation of a corporate opportunity.
2. Whether the trial court erred in granting AutoCount, Inc.'s motion for summary judgment on Automated Prescription Systems Inc.'s cause of action for violation of the Uniform Trade Secrets Act.

*310 II.

FACTS

A. Factual History
Prior to the formation of AutoCount on May 22, 1992, and prior to his becoming the president of AutoCount, Steepleton was employed by APS. Steepleton ultimately became vice-president of marketing and sales for APS. APS is in the business of marketing, engineering, and selling or leasing of automated drug counting equipment to the pharmacy industry. AutoCount's business is similar in that it involves pharmaceutical supplies specializing in pharmacy automation.
For several years, APS collected information about a product known as a universal counter. A universal counter is an instrument which counts pills and dispenses that quantity into a vial while returning the balance to the original bottle. There are two types of countersone that counts as the pills drop and another which computes a predetermined number of pills. In 1987, APS decided to pursue a universal counter to add to its product line. Prior to 1987, APS was involved in leasing to its customers a line of products called the Baker Cells and the Baker Cassette System. The Baker systems utilize a singular counting mechanism in a series of cassettes with each cassette containing a specific drug. After researching and testing several universal counters, APS decided that it would be more feasible and economical to develop and manufacture a universal counter in-house.
In mid 1991, APS obtained a pre-determining universal counter known as the Med-A-Counter which had been on the market since 1977 and observed its functioning. The president and chief executive officer of APS, James R. Baker, Jr., who observed the Med-A-Counter, decided that APS could enter the market quicker and cheaper by pursuing the rights to the Med-A-Counter as opposed to developing a universal counter in-house. Baker contends that he instructed Steepleton to pursue acquiring the rights to the Med-A-Counter for APS. Steepleton maintains that he was asked only to conduct a market assessment regarding universal pill counting machines. Steepleton was enthusiastic about the product but, according to Steepleton, Baker was not.
Steepleton had no written employment agreement with APS nor did he have an noncompetition agreement with APS. In 1991, Steepleton began considering the idea of going out on his own and developing a universal pill counter. Steepleton developed a business plan that became AutoCount. In his deposition, Steepleton stated that, by working with equipment that belonged to him out of his home at night and on weekends, he developed his ideas for a pre-determining universal pill counter.
Prior to leaving APS, Steepleton investigated the ownership of the Med-A-Counter patent and learned that the patent was owned by Pak-Tech Industries. Steepleton further stated in his deposition, that the purpose of his investigation was not to acquire rights to the Med-A-Counter, but to determine ownership and patent points. Neither Steepleton nor APS ever acquired the rights to the Med-A-Counter.
Baker contends that Steepleton, instead of pursuing the rights to the Med-A-Counter for APS, began pursuing the rights for himself and the company that he intended to form, which ultimately became AutoCount. APS further claims that Steepleton and Bob Wells, a former regional sales manager for APS who is now Steepleton's partner, obtained a Med-A-Counter and sent it to Korea. In Korea, the Med-A-Counter was reverse-engineered. APS claims also that Steepleton and Wells's idea was to manufacture the Med-A-Counter overseas for distribution in the United States and England.
APS considered information included in Steepleton's business plan, which was sent to potential investors who would fund the development of Steepleton's pre-determining universal pill counter, to be confidential and proprietary. Steepleton tendered his resignation from APS on April 1, 1992, and he left the company one month later on May 1, 1992. Steepleton took APS's profit and loss statement that was shown to an investor, Tom Adamek, who ultimately became a shareholder in AutoCount.
*311 Steepleton claims that AutoCount's product, which was introduced in August of 1992, with the trade name "Redicount," is the product of his own extensive design and engineering work. Further he claims that "Redicount" is distinct from and superior to the Med-A-Counter. Most notable, the "Redicount" can count any type of medication without any adjustmentsa feature not present in other products of this type on the market. APS, on the other hand, claims that the "Redicount" mirrors the Med-A-Counter.

B. Procedural History
Originally, AutoCount filed a petition for declaratory judgment which sought a declaration from the trial court that it had the right to market and sell a product known as the "Redicount" universal pill counter and a declaration that the "Redicount" universal pill does not utilize any proprietary technology of APS. APS filed an answer to Auto-Count's petition contending that AutoCount did not have the right to market the "Redicount." Not until September 9, 1993, did APS file a reconventional demand against AutoCount and Steepleton asserting that Steepleton, in developing and marketing a universal pill counter which he calls "Redicount" but which APS asserts is really the Med-A-Counter, breached a fiduciary duty that Steepleton owed to APS as an officer of APS based on usurpation of a corporate opportunity that belonged to APS and violating the Uniform Trade Secrets Act. In other words, Steepleton seized a business opportunity that rightfully belonged to his former employer, APS, and, in so doing, breached a fiduciary duty to APS. Additionally, as part of the relief requested in its reconventional demand, APS sought a preliminary injunction to prohibit Steepleton's actions with regard to the "Redicount."
Meanwhile, on October 21, 1993, Auto-Count filed a motion for summary judgment on the main demand and the reconventional demand. Attached to its motion were the following exhibits: excerpts from Steepleton's deposition, excerpts from Baker's deposition, Steepleton's affidavit, and APS's answer to AutoCount's interrogatory no. 3. The affidavit of Geoffrey Mantooth was offered at the hearing along with the entire record on the preliminary injunction.
The trial judge granted AutoCount's motion for summary judgment and denied APS's motion for preliminary injunction.
The final judgment granted the declaratory relief prayed for by AutoCount in its main demand, which included a declaration that AutoCount has all proprietary rights in the "Redicount;" that the "Redicount" technology does not involve intellectual property rights or trade secrets owned by APS; and, that AutoCount is free from interference and disturbance by APS. The judgment also dismissed APS's reconventional demand against AutoCount.

III.

LAW AND DISCUSSION

A. Summary Judgment
Preliminarily, it should be noted that appellate courts review summary judgments de novo under the same criteria that govern the trial judge's consideration of whether a summary judgment is appropriate. Schroeder v. Board of Sup'rs of Louisiana State University, 591 So.2d 342 (La.1991). As set forth in La.Code Civ.P. art. 966(A), a plaintiff or a defendant in the principal or any incidental action, with or without supporting affidavits, may move for summary judgment in his favor for all or part of the relief for which has been prayed. Further, the mover is entitled to judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with supporting affidavits, if any, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B); Durrosseau v. Century 21 Flavin Realty, Inc., 594 So.2d 1036 (La.App. 3d Cir.1992).

B. Breach of Fiduciary Duty by Usurpation of a Corporate Opportunity
APS claims that there are several disputed material facts with regard to Steepleton's fiduciary duty to APS. APS claims *312 that there is a disputed fact as to Steepleton's position as an officer at APS. This is incorrect. Steepleton admits that he was an officer of APS and he agrees that, as an officer, he owed APS a fiduciary duty. The second alleged disputed issue of fact asserted by APS is whether the Med-A-Counter was a corporate opportunity belonging to APS. APS asserts that the question of whether a "business" opportunity is a "corporate" opportunity is a question of fact to be determined from the circumstances existing at the time when the "opportunity" arose.
The record establishes that APS was interested in developing and manufacturing a universal counter. The record also establishes that in mid 1991, APS observed the functioning of the Med-A-Counter and determined that the market could be entered more quickly and less expensively by pursuing the rights to the Med-A-Counter. Steepleton conducted a market assessment regarding universal pill counting machines. However, APS maintains that Baker instructed Steepleton to obtain the rights to the Med-A-Counter. The record further establishes that Steepleton began formulating the idea of starting his own pharmaceutical supply company and in his spare time developed "Redicount" and did not pursue the rights to Med-A-Counter. Thus, the record clearly shows that Steepleton was an officer of APS and that APS was interested in adding a universal pill counter to its product line, specifically, the Med-A-Counter. The record also clearly shows that while Steepleton was employed with APS, he formulated the idea of starting his own business and marketing a universal pill counter.
Although the record clearly shows that APS was interested in the Med-A-Counter which was a universal pill counter and that Steepleton developed a universal pill counter called "Redicount," we find that the two products are not one and the same. Apparently, APS considers the products the same because they perform the same function and because Steepleton developed his product while APS was pursuing rights to the Med-A-Counter, a universal pill counter, for its own product line. We do not agree. Steepleton's deposition reveals that the "Redicount" is distinct from the Med-A-Counter in that it can count any type of medication without undergoing any adjustments. Therefore, we find, as did the trial judge, that Steepleton did not breach his fiduciary duty by usurpation of a corporate opportunity. The opportunity to obtain the rights to the Med-A-Counter still exists as neither APS nor AutoCount have procured those rights.

C. Violations of the Uniform Trade Secrets Act
APS asserts that information is a trade secret. Therefore, when Steepleton used APS's profit and loss statement in the business plan he submitted to potential investors in his company, he violated a trade secret. APS claims that there exists a material factual dispute as to what a trade secret is. AutoCount urges that the definition of trade secret does not include information.
Louisiana Revised Statute Title 51:1431(4) provides for the definition of "Trade Secret" as follows:
"Trade Secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(a) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and
(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
The information for which "trade secret" status is sought is not that which is contemplated as being a trade secret under the statute. It does not include all information about a company but only that information as delineated in the words illustrating the type of information and as further defined in subparagraphs (a) and (b) of La.R.S. 51:1431(4). The trial court's dismissal of the trade secrets claim was correct.

CONCLUSION
For the foregoing reasons, the judgment of the trial court granting AutoCount, Inc.'s *313 motion for summary judgment and dismissing, with prejudice, the reconventional demand by Automated Prescription Systems, Inc. against AutoCount, Inc. is affirmed. Costs of this appeal are assessed against Automated Prescription Systems, Inc.
AFFIRMED.


                               In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 06-2780
IN RE:
    UAL CORPORATION, et al.,
    Reorganized Debtors.

APPEAL OF:
    UNITED RETIRED PILOTS BENEFIT
    PROTECTION ASSOCIATION.
                     ____________
              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
                 No. 06 C 844—John W. Darrah, Judge.
                           ____________
   ARGUED SEPTEMBER 26, 2006—DECIDED OCTOBER 25, 2006
                           ____________

  Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
  POSNER, Circuit Judge. United Airlines and its affiliates
(“United” for short) declared bankruptcy in December 2002,
and in January 2006 the bankruptcy court in Chicago
entered a final order confirming a plan of reorganiza-
tion under Chapter 11. An association of retired United
pilots appealed the order to the district court, which dis-
missed the appeal on the ground that it was unripe. In re
UAL Corp., No. 06 C 844 (N.D. Ill. June 22, 2006). The
2                                                No. 06-2780

association (which we’ll refer to as the “retired pilots”)
appeals the dismissal.
  The background to this offshoot of United’s Chapter 11
proceeding is described in our decision of last March in In re
UAL Corp. (URPBPA), 443 F.3d 565 (7th Cir. 2006),
which we’ll call URPBPA I and summarize briefly before
moving to the particulars of the present case. United had
a collective bargaining agreement with its pilots’ union,
the Air Line Pilots Association (ALPA), that among other
things established a defined-benefit pension plan for both
active and retired United pilots. Sometime after entering
Chapter 11 bankruptcy, United invoked section 1113 of
the Bankruptcy Code, which permits the debtor to repudiate
the unexecuted portion of a collective bargaining agreement
with the approval of the bankruptcy judge after negotiations
between the debtor and the union aimed at modifying the
agreement. When ALPA made clear that it would not
represent the interests of the retired pilots in the negotia-
tions, the latter moved the bankruptcy judge to appoint a
representative to participate in the negotiations on their
behalf. The judge refused, and as a result the retired pilots
did not participate in the negotiations. We upheld the
judge’s refusal.
  The negotiations resulted in an agreement (called the
“Letter Agreement”) to modify the collective bargaining
agreement by eliminating the defined-benefit pension plan
but compensating the active pilots with replacement
benefits consisting of convertible notes valued at $550
million and other consideration, including a defined-
contribution pension plan. In return, the union agreed not
to oppose United’s terminating the existing pension plan.
United asked the bankruptcy judge to approve the Letter
Agreement, pursuant to section 363(b)(1) of the Bankruptcy
No. 06-2780                                                 3

Code, which requires the bankruptcy judge’s approval
for contracts made by the debtor that are outside the
ordinary course of business, as the Letter Agreement
obviously was. See 11 U.S.C. § 1108. The judge gave his
approval over the objection of the retired pilots, who again
maintained that he should have allowed them to participate
in the negotiations; such participation might, they argued,
have resulted in their receiving replacement benefits too.
But, also in URPBPA I, we approved the judge’s action.
  As matters developed, United did not press for volun-
tary termination of the pilots’ pension plan. Instead the
Pension Benefit Guaranty Corporation, which insures vested
rights created by ERISA pension plans, 29 U.S.C. § 1322(a);
Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633,
637-38 (1990), moved under 29 U.S.C. § 1342 for involuntary
termination of the plan. PBGC feared that the plan, if
it wasn’t terminated and so continued generating new
vested pension rights, would go into default and as the
insurer PBGC would face a staggering liability. The district
court granted PBGC’s application in an order that we affirm
today. In re UAL Corp., No. 06-2662 (7th Cir. Oct. 25, 2006).
  The collective bargaining agreement had granted the
pilots supplemental retirement benefits, which PBGC does
not insure. The termination of the pension plan extinguished
the claims against United that the pilots derived from the
plan, replacing them with insurance claims against PBGC.
But the supplemental benefits remained as unsecured claims
against the debtor’s estate, along with medical benefits to
which other agreements, also terminated by United, entitled
them. The active pilots gave up what would have been their
unsecured claims to these benefits in exchange for the
replacement benefits; the retired pilots did not, because they
got no replacement benefits.
4                                                 No. 06-2780

  In upholding the bankruptcy judge’s approval of the
Letter Agreement, we noted in URPBPA I that even if
the retired pilots had been parties to the negotiations that
resulted in the agreement, they would have been bound
to receive less in the way of replacement benefits than the
active pilots and indeed might well have received nothing.
They lost less from the termination of the pension plan,
because a retired pilot will have enjoyed the benefit of
full pension payments since his retirement while an active
pilot who is near retirement will have been contributing
to the pension plan for many years without receiving
any benefits. The active pilots also had a stick to use against
United—the threat of a strike—that the retirees didn’t have,
and besides surrendering the stick they agreed to substantial
salary cuts, a concession that retired pilots could not offer.
Such differences justify different treatment of creditors in
bankruptcy. In re Wabash Valley Power Ass’n, 72 F.3d 1305,
1321 (7th Cir. 1995); In re Dow Corning Corp., 280 F.3d 648,
661 (6th Cir. 2002); In re Briscoe Enterprises, Inc., 994 F.2d
1160, 1167 (5th Cir. 1993); In re U.S. Truck Co., 800 F.2d 581,
582-87 (6th Cir. 1986). But the retired pilots received not
merely lower replacement benefits than the active pilots;
they received no replacement benefits.
  They had no right to anything, however, as we explained
in URPBPA I. Parties to a contract are always free to modify
their contract without considering the views of third parties,
and United and ALPA were the only parties to the collective
bargaining agreement. A union’s duty to bargain collec-
tively on behalf of the members of the bargaining unit that
the union represents does not extend to retired workers,
because they are not members of the unit. Allied Chemical &
Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate
Glass Co., 404 U.S. 157, 166, 182 n. 20 (1971). And only
“interested parties” may participate in a hearing on the
No. 06-2780                                                  5

debtor’s proposal to reject a collective bargaining agree-
ment, 11 U.S.C. § 1113(d)(1), which means only the parties
to the agreement or a guarantor of it, In re UAL Corp. (IFS),
408 F.3d 847, 851 (7th Cir. 2005), and thus excluded the
retired pilots. Since, however, the rejection of the collective
bargaining agreement had to be approved by the bank-
ruptcy judge, it is possible that had the retired pilots been
parties to the negotiations leading up to the Letter Agree-
ment they would have been able to extract something from
United in exchange for agreeing not to oppose the termina-
tion of the pension plans. They might, in short, have
obtained some modest replacement benefits of their own.
Even if, as we doubted (because had United wanted to do
business with the retired pilots it could have done so
whether or not they were formally represented in the
negotiations), this possibility should have led the bank-
ruptcy judge to require that the retired pilots be admitted to
the negotiations that resulted in the Letter Agreement, we
thought it far too late to rescind the agreement and send the
parties back to square one. And we thought it wholly
unrealistic to remand the case to the bankruptcy judge for
him to determine what he would have insisted that the
retired pilots receive in the agreement as a condition of his
approving it. There would be no objective basis for calculat-
ing what the retired pilots might have received in a hypo-
thetical negotiation for giving up their opposition and what,
therefore, the bankruptcy judge might reasonably have
insisted that they receive as a condition of his approval.
  All this is by way of background, but indispensable
background, to the present controversy. Remember that
the retired pilots’ claims to pension benefits insured by
PBGC were transmuted into claims against PBGC, but that
their claims to supplemental benefits (also to certain medical
benefits) survived as unsecured claims in the bankruptcy
6                                                No. 06-2780

proceeding. In the plan of reorganization adopted by the
bankruptcy court last January, these claims were placed in
a separate class from the claims of United’s other unsecured
creditors. The plan provided that this class would receive
between 4 and 8 cents on the dollar. The parties, illustrating
lawyers’ typical insouciance about quantification, have not
told us what the retired pilots’ unsecured claims are likely
to be worth. But URPBPA’s estimate is that its members’
supplemental benefits amount to $340 million, and since
roughly 57 percent of the retired pilots belong to URPBPA,
the total supplemental benefits are probably around $600
million, implying a payout range between $24 and $48
million. The plan of reorganization also incorporated the
terms of the Letter Agreement, which gave the active pilots
upwards (how far upwards has never been calculated) of
$550 million, and their right to that money is preserved in
the settlement agreement between United and PBGC. The
difference between the payouts to the two groups of pilots
is an order of magnitude, though this is misleading since the
active pilots made substantial salary concessions in ex-
change for their $550 million in notes. (Of course, with-
out the concessions, United might have liquidated, leav-
ing the pilots with no salaries.)
  The retired pilots claim that they are entitled to benefits
proportionately equal to those of the active pilots, and since
retired pilots had entitlements to two-thirds of the pension
benefits when the plans were terminated, they want the plan
of reorganization revised to give them more than $1 billion.
The bankruptcy judge turned them down, and they ap-
pealed to the district court, which dismissed the appeal (in
three sentences) as “unripe” because, the district judge
erroneously believed, the pension plans had not yet been
terminated. Quite apart from his error, there is no doctrine
of appellate “ripeness.” “Finality, not ripeness, is the
No. 06-2780                                                   7

doctrine governing appeals from district court to court of
appeals.” United States v. Jose, 519 U.S. 54, 57 (1996) (per
curiam). Of course events after a notice of appeal is filed can
affect the appeal—for example by rendering it moot. E.g.,
Church of Scientology v. United States, 506 U.S. 9, 12 (1992);
Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414-15
(1972); Golden v. Zwickler, 394 U.S. 103, 108-10 (1969). But the
filing of the appeal cannot be delayed beyond the time
(usually 30 days, but 10 days in a bankruptcy case, Fed. R.
Bankr. P. 8002(a), though extensions are possible, Fed. R.
Bankr. P. 8002(c)) specified for appealing just because,
though the order to be appealed from is final, the appellate
court’s consideration might be better informed or yield a
more definitive result if the appeal could be delayed. United
States v. Jose, supra. The appellate court can, if need be, stay
appellate proceedings; that is common. But it would be
chaos if the filing of the appeal could be delayed indefinitely
by “ripeness” considerations; it would lead to endless
disputes over the timeliness of appeals. But rather than send
the case back to the district court for review on the merits,
we shall skip that stage and resolve the merits, which have
been fully briefed by the parties, ourselves. E.g., In re UAL
Corp., 411 F.3d 818, 821 (7th Cir. 2005); Ross v. Marshall, 426
F.3d 745, 761 n. 68 (5th Cir. 2005); Tilley v. TJX Companies,
Inc., 345 F.3d 34, 39 (1st Cir. 2003).
  The retired pilots’ claim is fantastic, as should be apparent
from our narrative. It also comes too late. The reorganiza-
tion has been carried into effect, and no stay was sought or
granted. It is true that the financial institutions that pro-
vided United with the money it needed to emerge from
bankruptcy as a going concern were on notice of the retired
pilots’ challenge, and that they could in principle have
protected themselves in advance from the possibility that
the challenge would burden the reorganized corporation
8                                                 No. 06-2780

with a further $1 billion or more debt by charging higher
interest rates. But the higher those rates, the less likely the
reorganization would be to succeed. And predicting the
outcome of litigation is very difficult. Therefore institutions
that engage in the inherently risky practice of “exit” financ-
ing of Chapter 11 bankrupts should have reasonable
assurance that once approved the plan of reorganization
will not, unless stayed, be rescinded or modified in order to
accommodate a very large, very late-appearing debtor, as
the retired pilots would be if they succeeded in this appeal.
Although the plan of reorganization is based in part on a
business model in which United emerges from bankruptcy
with a $1.35 billion equity cushion (that is, a value $1.35
billion greater than the aggregate value of the securities
issued to its creditors), the company remains fragile and a
$1 billion hit could send it spinning, to the detriment of the
creditors who consented to the plan.
   No exact rule can be laid down to govern challenges to an
approved plan of reorganization. A sensible result depends
on the strength of the late-appearing debtor’s claim, its size
relative to the debtor’s assets, the reason a stay was denied
or not sought, how far the plan of reorganization has been
executed, and whether the claim can be satisfied by reduc-
ing the claim of creditors who had not provided exit
financing. In re UNR Industries, Inc. 20 F.3d 766 (7th Cir.
1994); In re Andreuccetti, 975 F.2d 413, 415, 417-19 (7th Cir.
1992); In re U.S. Airways Group, Inc., 369 F.3d 806 (4th Cir.
2004); In re U.S. Brass Corp., 169 F.3d 957 (5th Cir. 1999); In
re Continental Airlines, 91 F.3d 553 (3d Cir. 1996) (en banc).
Despite the size of the retired pilots’ claim, they have made
no effort to explore and perhaps dispel the obvious difficul-
ties with granting relief at this stage.
  In any event, as we said, the claim is fantastic. It is true
that arbitrary differences in the treatment of creditors in
No. 06-2780                                                   9

bankruptcy are improper. So when creditors are placed
in separate classes in the sense of receiving different per-
centages of their claims, the differences in treatment must be
justified. In re Boston Post Road Limited Partnership, 21 F.3d
477, 478-79, 481-83 (2d Cir. 1994); In re Bryson Properties,
XVIII, 961 F.2d 496, 502 (4th Cir. 1992); In re Greystone III
Joint Venture, 995 F.2d 1274, 1280-81 (5th Cir. 1991). And the
fact that the active pilots’ “take” from the reorganization
comes in the form of approval of the Letter Agreement
rather than placing them in a favored class of unsecured
creditors could be disregarded as a merely formal matter.
Cf. In re Spong, 661 F.2d 6, 9-10 (2d Cir. 1981). But to suggest
that the retired pilots are entitled to parity with the active
ones is to seek a belated reargument of our decision in
URPBPA I. The bankruptcy judge approved the deal that
gave the active pilots $550 million plus (but also and
critically minus, because of the salary cuts that the pilots
accepted) in exchange for surrendering the leverage that
they enjoyed—United needs pilots to fly its planes. The
retired pilots, alas, did not have any leverage at all, or at
least so little that, as we said in our previous opinion, no ob-
jective quantification was possible. We said that more than
six months ago, and if we were wrong the retired pilots
have had plenty of time in which to generate some plausi-
ble, and at least minimally objective, estimate of what
they might have obtained in the way of replacement benefits
had they been admitted to the negotiations. In the present
state of the record the best answer is zero.
  They argue separately that the plan should not have
included a clause exculpating ALPA for liability for acts
done in relation to the reorganization, notably negotiat-
ing the Letter Agreement with no regard for the interests
of the retired pilots. But as ALPA had no legal duty to the
retired pilots (as we explained in our previous opinion,
10                                              No. 06-2780

and repeated briefly in this one), there is no wrong to be
excused; the validity of the clause is academic.
  The district court’s dismissal of the appeal from the
bankruptcy court is vacated and the bankruptcy court’s
order approving the plan of reorganization is remanded
to the district court with instructions to affirm it.

A true Copy:
       Teste:

                         _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit

                  USCA-02-C-0072—10-25-06


164 N.W.2d 901 (1969)
Arthur ZUEGER, Emil Zueger, Jr., Paul Zueger, Sonja Zueger, and David Zueger, Plaintiffs and Appellants,
v.
Leo BOEHM, and Morton County, a Public Corporation, Defendants and Respondents.
Civ. No. 8496.
Supreme Court of North Dakota.
February 7, 1969.
*902 Vogel, Bair & Graff, Mandan, for plaintiffs and appellants.
Richard P. Gallagher, Mandan, for defendant and respondent Leo Boehm.
Lester J. Schirado, Morton County State's Atty., for defendant and respondent Morton County.
TEIGEN, Chief Justice.
This appeal is from summary judgments of dismissal of the plaintiffs' complaint.
The plaintiffs brought action to enjoin the construction of a road grade upon an unimproved section line which bisects the plaintiffs' farm, and also seek damages for trespass and severance. The defendants separately moved for summary judgment of dismissal of the plaintiffs' complaint. During the summary judgment proceedings the parties stipulated that the plaintiffs' claim for damages be stricken from the action and reserved for another action to be brought later, if the plaintiffs prevail in defending against the motion for summary judgment of dismissal. The trial court granted the defendants' motions for dismissal and separate summary judgments were entered dismissing the action as against each of the defendants. The plaintiffs appealed.
It appears from the pleadings and the stipulation of facts that the defendant Boehm was desirous of having the section line in question improved so he could use it to travel from his farm to U.S. Highway *903 No. 10. The record does not disclose what other highways, if any, serve his farm. It was an unimproved section line and was impassable for use by vehicles and equipment for part or all of each year. The section line is located in an unorganized township. The defendant Boehm appeared before the board of county commissioners and requested the section line be opened. The county commissioners by resolution declared the section line "to be open" for highway purposes and directed the state's attorney to give notice to the adjacent property owners to remove fences located within thirty-three feet on either side of the section line within thirty days. Following this action some of the plaintiffs appeared before the board of county commissioners at its next meeting in regard to the subject; however, the commissioners "determined that the order to open the section line stand, but the county spend no money on building a highway or bridge which would be needed." The salient parts of the resolutions passed by the county commissioners at those two meetings are as follows:
[Meeting of June 2, 1964]
"WHEREAS, Leo Boehm has requested that the following described section line be opened to public travel and specifically to enable said person to obtain access from his farm residence to U.S. Highway No. 10:
"WHEREAS, said section line is presently fenced; and
"WHEREAS, this appears to be a proper case therefore:
"NOW THEREFORE, IT IS HEREBY ORDERED, by the Board of Morton County Commissioners that, the following described section line is hereby declared to be open and the States Attorney is directed to give written notice to the owner or owners of land adjacent thereto to remove within thirty (30) days of the mailing of said notice, all fences within 33 feet of each side of said line."
[Meeting of July 7, 1964]
"A hearing was held at this time on the Order of the Board dated June 2nd, 1964, opening the section line between Sections 17 & 18 and that part of Sections 19 & 20 north of U.S. Highway No. 10, Township 139, Range 82. Present at the hearing were Wm. C. Kelsch, States Attorney; Maurice LaGrave, Leo J. Boehm, Robert Vogel, Art Zueger and Paul Zueger.
"All parties were given an opportunity to be heard and after discussing the matter the board determined that the order to open the section line stand, but that the County spend no money on building a highway or bridge which would be needed."
Thereafter, the defendant Boehm, at his own expense, caused the section line in question to be improved by the construction of a road grade so as to make it passable for public travel. It was stipulated that the road, as graded, is located upon the section line, extending not more than thirty-three feet on either side thereof.
The question presented on this appeal is whether an abutting landowner is entitled to enjoin a private citizen from improving a section line for the purpose of public travel, where such improvement consists of the construction of a road grade on an otherwise impassable section line, and at his own expense and direction, after the county commissioners (the section line being located in an unorganized township) by resolution opened the section line for public travel.
The appellants make three contentions on this appeal to establish that the trial court erred in dismissing the action.
First, that there are genuine issues of material facts for decision, and it therefore was improper to grant the summary judgments.
Second, it is claimed that the defendant Boehm, as a private person, has no authority *904 in law to change the contour of land, regardless of whether it happens to be upon a section line, and regardless if it is a necessary alteration to allow the use of the section line for public travel. The plaintiffs argue that the defendant Boehm, as a member of the public, has a right to the use of the thirty-three feet on each side of the section line for travel in its natural condition, but that only the county, in an unorganized township, has the right to construct or maintain a road, or to change the contour of the land as it exists in its natural state.
Third, the plaintiffs argue that the county commissioners cannot open a section line for public travel in an unorganized township (as distinguished from establishing it as a highway) without notice to the owner of the adjoining land and, further, that the county commissioners are not authorized by law to allow an individual to construct a grade upon a section line as a project under his own control and direction.
The arguments in support of these contentions are based on the principle that the construction and maintenance of public highways is a governmental function, and that the governmental unit charged with the responsibility cannot delegate this power to an individual and thus relieve itself of its legal responsibility.
We will first consider whether this was a proper case for the entry of summary judgments of dismissal.
Under Rule 56(c), N.D.R.Civ.P., the moving party is entitled to summary judgment, if it appears that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. Wolff v. Light, N.D., 156 N.W.2d 175; Titus v. Titus, N.D., 154 N.W.2d 391; Verry v. Trenbeath, N.D., 148 N.W.2d 567; Lang v. General Motors Corporation, N.D., 136 N.W.2d 805; Fire Ass'n of Philadelphia v. Vantine Paint & Glass Co. of Bismarck, N.D., 133 N.W.2d 426; Mondy v. Gjesdal, N.D., 123 N.W.2d 33; Heasley v. State, N.D., 115 N.W.2d 334.
The party moving for summary judgment has the burden to show that there is no genuine issue as to material facts. Wolff v. Light, supra; Titus v. Titus, supra.
A review of the complaint discloses that the plaintiffs allege that the defendant Boehm, wrongfully and without authority of the defendant Morton County, commenced the construction of the road in question across the plaintiffs' land. The answer of the defendant Boehm alleges that the road in question was constructed under and pursuant to the authority of the defendant Morton County, and that the said county authorized him to construct a road. The answer of the defendant Morton County denies that the defendant Boehm improved the section line by the construction of the road pursuant to authority granted by it, but alleges that if it is found that such authority was granted, the improvement is properly a gift to the public which the defendant county is authorized by statute to receive. An examination of the evidence submitted to the trial court discloses that the issue arising from the pleadings as to this question is not settled. Was the question of fact material to the decision? We find, for reasons hereinafter stated in this opinion, that the question of fact, i.e., whether the defendant Morton County authorized the defendant Boehm to construct the grade in question upon the section line, is a material fact for decision in this case, and that upon this question there is a genuine issue raised by the pleadings which has not been settled by the evidentiary material presented. For this reason we find it was error for the trial court to grant summary judgments of dismissal.
This Court has previously held that highways belong to the state, that the state has an easement on the section lines to a width of two rods on each side for highway *905 purposes, and that the grading and maintaining of section-line highways is a governmental function.
"The highways belong to the state. The state has an easement on the section lines to the width of two rods on each side for highway purposes. From the very beginning of territorial days down to and including the present time section lines have been declared to be public highways. As shown in Hillsboro National Bank v. Ackerman et al., 48 N.D. 1179, 189 N.W. 657: `All section lines, under the grant of Congress of 1866 (section 2477, Rev.Stats.U.S. [N.S. Comp.St., § 4919 (43 U.S.C.A., Sec. 932)]), having been accepted by chapter 33, Laws Dak.Ter. 1871, became public highways from the time of the congressional grant.' The grading and maintaining of highways on section lines is a governmental function." King v. Stark County, 66 N.D. 467, 266 N.W. 654, 656.
The state has control over its highways in its sovereign capacity, as represented by the legislature, and it may exercise its power directly or delegate it to any properly constituted body. 39 Am.Jur.2d, Highways, Streets, and Bridges, Sec. 72.
The State Legislature, in recognition of its responsibility and duty relative to the highways of the state, has by legislation established a comprehensive plan consisting of various systems of highways. In its declaration of legislative intent, found in Sec. 24-01-01, N.D.C.C., the legislature has declared that the various highway systems of the state shall be under the management, operation, and control of various officials "whose duty it shall be, within the limits of available funds, to plan, develop, operate, maintain, and protect the highway facilities of this state, for present as well as for future use." It created the office of state highway commissioner and a state highway department, and provides their duties relative to highways, but it also reposes confidence in local officials. The statute, in part, states as follows:
"It is recognized that the efficient management, operation, and control of our county roads, city streets, and other public thoroughfares are likewise a matter of vital public interest. Therefore, it is the further intent of the legislative assembly to bestow upon the boards of county commissioners similar authority with respect to the county road system and to local officials with respect to the roads under their jurisdiction." Sec. 24-01-01, N.D.C.C.
The statutes provide for the establishment of a state highway system under the control of the state highway commissioner (chs. 24-01 through 24-04, N.D.C.C.), a county road system under the direction of the board of county commissioners (ch. 24-05, N.D.C.C.), and a local road system under the direction of the board of township supervisors (ch. 24-06, N.D.C.C.).
Chapter 24-06, N.D.C.C., provides that the board of township supervisors of any township in this state shall have general supervision over the roads, highways, and bridges throughout the township.
Section 24-06-14, N.D.C.C., provides that in unorganized territory the board of county commissioners shall appoint a district overseer of highways whose power and duties shall be the same as in an organized township. Section 58-12-03, N.D. C.C., provides that the township overseer of highways shall have direct charge of the construction of all township highways.
Section 24-07-04, N.D.C.C., provides that all proceedings for the opening, vacating, or changing of a highway outside of the limits of an incorporated city shall be under the charge of and in the name of:
"1. The board of county commissioners, if the road is in territory not organized into a civil township; * *"
These various statutes provide authority to the appropriate officials to lay out and establish public highways, and provide the *906 procedure. However, as to section lines, the statute provides that:
"In all townships in this state outside the limits of incorporated cities and villages, the congressional section lines shall be considered public roads, to be opened to the width of two rods on each side of such section lines, where the same have not been opened already upon the order of the board having jurisdiction, without any survey being had, except where it may be necessary on account of variations caused by natural obstacles, subject, however, to all the provisions of this chapter in relation to assessments of damages. * * *" Sec. 24-07-03, N. D.C.C.
It is stipulated that the road in question in this proceeding was built on a section line located in an unorganized township and that the improvement placed thereon by the defendant Boehm does not extend beyond thirty-three feet on either side of the section line.
The plaintiffs on this appeal for the first time have argued that the county cannot open a section line to public travel without notice to the adjoining landowners. They admit that the section line is established as a public highway, which is the holding of Hillsboro National Bank v. Ackerman, 48 N.D. 1179, 189 N.W. 657. It does not appear, however, that this issue was framed by the pleadings nor raised in the trial court, nor was it considered by the trial court in the summary judgment proceedings before it. A stipulation of facts entered into for summary judgment proceedings, in part, provides: "but said section line was never closed by competent authority." In the plaintiffs' complaint it is alleged that whatever right the public has to the use of the section line is a right to use it in its present condition and does not include any right to change the surface or grade of the land to the detriment of the plaintiffs. Therefore it appears that in the proceedings below the section line was considered open. Inasmuch as this was not one of the issues before the trial court we will not consider it on this appeal. An issue which is neither raised nor considered by the trial court cannot be raised for the first time on appeal. McDonald v. Abraham, 75 N.D. 457, 28 N.W.2d 582.
The state has control over its highways but has delegated its power in certain instances to other official bodies, such as the board of county commissioners over county highway systems and in unorganized territory, and to the board of township supervisors in civil townships. These powers include the power to construct and improve highways. The grading and maintaining of public highways is a governmental function. King v. Stark County, supra. As far as we can ascertain, the legislature has not delegated to private individuals the power to improve or maintain highways which have been officially opened. We believe, however, that private individuals may be granted the right to construct or improve a public highway, upon proper authorization from the proper public authority.
"Ordinarily, private individuals or corporations have no right to construct highway improvements without the permission of the governing public authorities. The public authorities may permit them to do so, and statutes and municipal ordinances sometimes grant them the right to make such improvements at their own expense. * * * If the consent of the public authorities is required, it must, of course, be obtained. The work must be done in substantial accordance with the requirements of such authorities or those prescribed by the ordinance directing the improvement to be made * * *." 39 Am.Jur.2d, Highways, Streets, and Bridges, Sec. 77, p. 463.
The construction of a public highway grade may be performed by a private individual on a contract basis for or without compensation. However, where, as here, it involves the construction of a highway grade on a section line in an unorganized *907 township, the construction work must be carried on under the direction of the district overseer of highways appointed by the county commissioners (24-06-14, N.D.C.C.), and he shall have direct charge of the construction (58-12-03, N.D.C.C.). Under such an arrangement the private individual who performs the work becomes the agent of the county and the county remains subject to all statutory provisions applicable to the improvement as if it were being constructed by the county under its power to construct highways in unorganized territory.
The defendant county, governed by its board of county commissioners, is a governmental agency of the state and possesses only such powers as are conferred upon it by law. We find no statute which authorizes the county or its board to delegate its authority over the highways under its jurisdiction to a private individual so as to relieve the county and its board of all responsibility. The defendant Boehm, in his answer to plaintiffs' claim of no authority, alleges that he was authorized to improve the section line in question by the board of county commissioners of Morton County, and denies that there was any wrongful dedication of power. The county denies it authorized the improvement by Boehm. The stipulation of facts and the other evidentiary material submitted does not establish either of these opposing claims. The issue formed by the pleadings on this fact question is not settled by the material on file in support of or in resistance to the motions for summary judgment. We find that the evidence submitted in support of the motions for summary judgment does not establish that there is no genuine issue as to a material fact. Therefore, it was error for the trial court to grant the summary judgments of dismissal.
Summary judgments reversed.
TEIGEN, C. J., STRUTZ, ERICKSTAD, PAULSON and KNUDSON, concur.


                       NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit
                                       2009-3107

                                WANDA N.D. THOMAS,

                                                            Petitioner,

                                            v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent.

      Wanda N.D. Thomas, of Evans, Georgia, pro se.

       Shari A. Rose, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With her on the brief
were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Harold D.
Lester, Jr., Assistant Director.

Appealed from: Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2009-3107

                                WANDA N.D. THOMAS,

                                                               Petitioner,

                                           v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                               Respondent.

Petition for review of the Merit Systems Protection Board in
AT831E080086-I-2.

                            ___________________________

                              DECIDED: February 4, 2010
                            ___________________________

Before DYK, SCHALL, and PROST, Circuit Judges.

PER CURIAM.

          Wanda Thomas (“Thomas”) appeals from a final decision of the Merit Systems

Protection Board (“MSPB” or “Board”). The Board affirmed the Office of Personnel

Management’s (“OPM’s”) denial of disability retirement benefits under the Federal

Employees Retirement System (“FERS”), 5 U.S.C. § 8451. See Thomas v. Office of

Pers. Mgmt., No. AT-831E-08-0086-I-2 (M.S.P.B. Dec. 2, 2008) (“Thomas II”).     We

affirm.
                                    BACKGROUND

        Thomas began working for the Department of the Army (“Army”) on October 24,

2002.       Effective October 2, 2005, Thomas was demoted from the position of

Supervisory Management Analyst, General Schedule 12 (“GS-12”), to Management

Analyst, GS-9, due to her alleged failure to successfully complete a one-year

supervisory probationary period for the GS-12 position. She never reported for duty in

the GS-9 position. Effective July 21, 2006, the Army removed her from civilian service

for misconduct, namely, her failure to meet attendance requirements for the GS-9

position.

        Thomas filed for disability retirement benefits in January of 2007. On April 25,

2007, OPM wrote Thomas a letter, requesting that she provide additional medical

information to establish that her service deficiencies were the result of a disabling

medical condition.    Thomas failed to provide the requested information, and OPM

denied benefits on July 5, 2007.       After Thomas requested reconsideration, OPM

affirmed its earlier decision on October 4, 2007, again noting Thomas’ failure to supply

the requested additional medical documentation. Thomas then appealed to the Board.

In an initial decision dated July 31, 2008, an Administrative Judge (“AJ”) affirmed OPM’s

decision, concluding that Thomas had not introduced sufficient evidence to establish her

entitlement to disability retirement benefits under FERS. Thomas v. Office of Pers.

Mgmt., No. AT-831E-08-0086-I-2 (M.S.P.B. July 31, 2008) (“Thomas I”). On December

2, 2008, the Board denied Thomas’ petition for review, and the initial decision became

the final decision of the Board. Thomas timely petitioned for review in this court, and we

have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).

2009-3107                               2
                                       DISCUSSION

       The scope of our review in an appeal from a Board decision arising out of an

OPM disability determination is very narrow. See Lindahl v. Office of Pers. Mgmt., 470

U.S. 768, 791 (1985). We must affirm the Board’s decision unless “there has been a

substantial departure from important procedural rights, a misconstruction of the

governing legislation, or some like error ‘going to the heart of the administrative

determination.’” Id. (citations omitted).

       Pursuant to 5 U.S.C. § 8451(a)(1)(B), an employee is only entitled to FERS

disability if she was unable “to render useful and efficient service in the employee’s

position” prior to her removal from federal service due to a disease or injury. Thomas

had the burden to prove by a preponderance of the evidence that she “had a medical

condition that was incompatible with either useful and efficient service or retention in

[her] position.” Thomas I, slip. op. at 6 (citing Gometz v. Office of Pers. Mgmt., 69

M.S.P.R. 115, 121 (1995); 5 C.F.R. § 844.103(a)(2)); see also 5 C.F.R. § 1201.56(a)(2);

§ 844.103(a). The Board observed that Thomas claimed she was debilitated to the

point of being unable to perform useful and efficient service in the GS-9 position due to

“Diabetes; Depression; Agoraphobia; Hypertension; High Cholesterol; Morbid Obesity;

Cholecystectomy; Angina; Asthma; Back Pain; Fibromyalgia; Nerve Loss; Right and Left

Knee Pain; Migraines; Hysterectomy; Enlarged Thyroids; Blindness In Left Eye;

Amblyopia; Hearing Loss; Shingles; and [Incontinence].” Thomas I, slip. op. at 2. After

considering the objective and subjective evidence of Thomas’ disability, as well as the

position description for the GS-9 position, the Board found “that the totality of the

evidence is insufficient to establish whether the appellant is unable to perform useful

2009-3107                                   3
and efficient service in the position.” Id. at 7. The Board further noted that Thomas had

not applied for disability retirement until after she had been removed for misconduct,

which detracted from the force of her application. Id. at 8.

       Thomas contends that the Board erred by failing to consider her mental, physical,

and personal problems and by excluding certain evidence. The Board explicitly did

consider Thomas’ mental and physical problems.          See id. at 7-11.     The excluded

evidence did not relate to her medical condition. To the extent that Thomas disagrees

with the weight the MSPB gave to the evidence, reviewing the weight of the evidence or

the factual underpinnings of the MSPB’s decision is beyond our limited jurisdiction.

Lindahl, 470 U.S. at 791; Davis v. Office of Pers. Mgmt., 470 F.3d 1059, 1060-61 (Fed.

Cir. 2006); Licausi v. Office of Pers. Mgmt., 350 F.3d 1359, 1361 (Fed. Cir. 2003).

       Thomas also suggests, in her reply brief, that the Board failed to consider that

she has received disability determinations from the Social Security Administration

(“SSA”) and the Department of Labor. While the Board did not explicitly discuss this

evidence in its decision, we must presume that the Board reviewed it. See Gonzales v.

West, 218 F.3d 1378, 1381 (Fed. Cir. 2000) (“[A]bsent specific evidence indicating

otherwise, all evidence contained in the record at the time of the . . . determination . . .

must be presumed to have been reviewed by the [fact finder], and no further proof of

such review is needed.”); see also Lowder v. Dep’t of Homeland Sec., 504 F.3d 1378,

1383 (Fed. Cir. 2007) (holding that a fact finder’s failure to discuss particular evidence

does not mean that it did not consider that evidence). Thus, this argument goes to the

weight of the evidence considered by the Board and is a matter beyond our limited

2009-3107                                4
jurisdiction. Lindahl, 470 U.S. at 791. 1 Under the Lindahl standard, there is no ground

for setting aside the Board’s decision.

                                          COSTS

       No costs.

       1
              Even if we could review the weight of the SSA evidence, the SSA “found
that . . . THOMAS became disabled under our rules on January 26, 2007.” Resp’t’s
App. 121. Because Thomas was removed from the GS-9 position six months before the
date the SSA determined her disability began, this evidence undermines Thomas’
argument that she became disabled while employed in a FERS position.

2009-3107                                 5