26 B.R. 350 (1982)
In re TRENDING CYCLES FOR COMMODITIES, INC., Debtor.
Bankruptcy No. 80-00099-BKC-TCB.
United States Bankruptcy Court, S.D. Florida.
December 22, 1982.
Jeanette Tavormina, Trustee.
Irving Wolff, Miami, Fla., for trustee.
Arthur Weitzner, M. Lewis Hall, III, Erwin A. Salisbury, F. William Harvey, Steven Brownstein, Miami, Fla., for claimants.
Ellen Meltzer, Commodity Futures Trading Commission, Washington, D.C., for debtor.
ORDER CONTINUING HEARING ON TRUSTEE'S OBJECTIONS TO CLAIMS FOR LOST PROFITS AND CALL MARGINS
THOMAS C. BRITTON, Bankruptcy Judge.
The trustee has filed objections to some 400 claims filed in this case. Of that number, some 85 have been resolved and are being paid the 10% partial distribution made previously to all remaining claimants.
The great bulk of the unresolved, disputed claims (about 200) fall either into the category of being claims for monies paid by the customer to the debtor in response to margin calls or claims for profits in addition to the sums paid by the customer to the debtor.
*351 The trustee objects to any distribution on account of margin calls, because the funds available for distribution are insufficient to repay customer's original payments and (the trustee argues) the Code, 11 U.S.C. § 761 et seq. reflects a distribution priority to be given to original payments. The trustee has offered no proof to support her factual assertion and no authority to support her legal contention. Instead, she relies on oral directives she received from the Commodities Exchange Commission. Representatives of that agency, although entitled to notice (§ 762) received no notice of this hearing and were not present.
The trustee's position with respect to claims for lost profits is that such claims are allowable to the extent that the customer's profit was in fact realized through a transaction and is, therefore, identifiable within the framework provided by § 766(h) and § 761(17). Unrealized profits, even though attributable to the negligence or fraud of the debtor, are not allowable under these provisions. I accept the trustee's legal contention in this instance, but there is no proof to support her factual contention that this broker never realized any profit for any customer, because this broker never conducted any transaction for the identifiable account of any customer.
Because the ruling on any claim may be reconsidered at any time until a case is closed (§ 502(j)) and because the trustee may be able to furnish the missing elements in support of her objection, the hearing on these objections is continued to 9:30 a.m. January 28, 1983, in Courtroom 1406, 51 S.W. 1 Avenue, Miami, Florida.
The trustee has argued that the burden of proceeding on a claim shifts to the claimant when an objection is filed. There is some support for this contention in cases decided before the adoption of the Bankruptcy Rules in 1975. However, B.R. 301(b) provides that:
"Evidentiary Effect. A proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim."
These rules, to the extent they are not inconsistent with the Code, remain applicable. Pub.L. 95-598, § 405(d). The foregoing provision is entirely consistent with the Code. § 502(a). It follows, that the burden of going forward with the proof is on the objecting trustee, not the claimant. That burden is not satisfied by the mere filing of an objection. Collier on Bankruptcy (15th ed.) ¶ 502.01[3] n. 20.


262 P.2d 148 (1953)
In re ELSTON'S ESTATE.
ELSTON et al.
v.
ELSTON et al.
No. 35747.
Supreme Court of Oklahoma.
October 13, 1953.
*149 Jones & Wesner, Cordell, and Carder & Carder, Hobart, for plaintiffs in error.
J.T. Bailey, Cordell, for defendants in error.
BLACKBIRD, Justice.
The present proceedings contesting the will of the late Harry Elston arose as a result of his practical disinherison of four of his eight children. By the terms of said will, he bequeathed them, the above contestants, only $50 each out of an estate valued at more than $50,000. The remainder was all left to his other four children and his surviving widow, hereinafter referred to as proponents.
The issue in the contest, decided adversely to plaintiffs in error, as contestants, in both the county and district courts, concerned the testator's testamentary capacity. No question is raised herein concerning the testator's physical health or his mental competency with reference to business matters and ordinary affairs of life, there being an abundance of testimony by bankers, business men, and others with whom he had dealings, that the testator exhibited good judgment and acumen in such matters and was fully competent and sane. The only doubt sought to be injected with reference to the general issue of testamentary capacity relates to the testator's beliefs as a member of a religious sect known as "The Church of the First Born", which he joined while residing at Arnett, near the Fay community in Western Oklahoma, prior to 1910, and later upon removal therefrom, again affiliated with near Rocky, Oklahoma, remaining in the latter church or "Church Assembly" until his death there in 1952, at the age of 73 years.
According to the evidence, "The Church of the First Born" has no written creed or doctrine, its practices being governed by the teachings of its elders and ministers, which have been described as inspired "Prophets", authorized to speak for God. These teachings are based upon the Bible and express the minister's or prophet's interpretation thereof. The particular belief and teaching involved in this case is based upon Chapter 3, Verse 6 of the Book of Thessalonians, (11), as follows:
"Now we command you, brother (brethren), in the name of our Lord Jesus Christ, that ye withdraw yourselves from every brother that walketh disorderly, and not after the tradition which he received (of us)." (King James Version)
It appears that in or near the community in which the testator lived, the followers of this faith were divided into three separate groups, churches, or church assemblies, each of which took their names after their minister and were known as the Luke's or Holman, the Jack's or Merchant, and the Ott's or Cunningham Churches, which have no connection or association with each other, each believing that the other's prophets are false, misguided or not inspired. The testator belonged to the Holman group referred to in parts of the testimony as the parent or mother church. Apparently, in all three of these groups, members may be expelled or "rejected" by action of the elders for a number of offenses, including the use of tobacco and marrying a non-member, or "outside" the church. In case of such expulsion, rejection or excommunication, the members believe that under the above biblical quotation, they should "withdraw" and disassociate themselves from such former member. The extent to which this church's members go in their interpretation and practice of such withdrawal seems to have varied between the groups at different times. In this connection, beginning about 1910, the Holman group or parent church had an elder and preacher named Clay Tomalson or Thomason, who believed and taught that when a member was expelled or "rejected", the remaining members should not only withdraw from all association and social intercourse with him, but that in keeping with one statement in the parable concerning the Prodigal Son, (Luke, 15:16) "* * * no man gave unto him", they should see to it that no such former member received any gift, beneficence or bounty at the hands of the members, as long as he remained out of the church. As explained by one of the prominent churchmen who testified, the application of this doctrine or belief could extend, not only to withholding succor and sustenance to a child *150 or relative in need, but also to disinheriting him if he remained out of the church, which he could always re-enter upon application and "humbling himself" by acknowledging and seeking forgiveness for his former wrongdoing. The evidence was to the effect that the testator was a very devout follower and adherent of the Tomalson theory or interpretation, and tended to show that after the contestants were "rejected" from the church he had nothing more to do with them except to visit them on only two or three infrequent occasions for a few minutes during illness, and that, as these four of his children never returned to membership in the church, this religious belief was the reason they were given such small and disproportionate bequests in his will.
Contestants' position in this appeal is that the beliefs of the testator, above described, amounted to an "insane delusion" sufficient to invalidate his will. In their briefs they concede however that "whether religious views, commonly entertained by a considerable number of persons, are true or false, is not a subject for judicial inquiry." 57 Am.Jur. 90, Sec. 80. The reason for this, as stated in Scott v. Scott, 212 Ill. 597, 72 N.E. 708, is that no creed or religious belief, in so far as it pertains to an existence after death, can be regarded as a delusion, because there is no test (known to men) by which it can be tried and its truth or falsity demonstrated. They say, however, that the evidence is clear that the testator's beliefs alluded to were not common to other members of his denomination or sect, and that there is no evidence that any other member of the church at Rocky, Oklahoma, ever entertained the same views, though a few of the members at Fay, Oklahoma, did. They further assert that the testimony shows no single instance in which any member of the church ever excluded his children from inheritance on that ground. They also refer to O'Dell v. Goff, 149 Mich. 152, 112 N.W. 736, 10 L.R.A., N.S., 989, 119 Am.St. Rep. 662, in support of their view that though a religious faith may afford no evidence of insanity, it may destroy testamentary capacity where one of its believers thinks so continually or persistently upon that subject (as may be done on any other subject) that he becomes a monomaniac, incapable of reasoning where such subject is concerned.
We think the evidence in this case is sufficient to bring it under the rule above referred to excluding the truth or falsity of religious beliefs from judicial inquiry, and is insufficient to show that the testator's faith constituted an "insane delusion."
The church members better qualified to give information on the subject testified that both the Fay and Rocky churches subscribed to the doctrine of "withdrawal" from "rejected" members and indicated that members in good standing were supposed, in conformity with said doctrine, to refrain from having anything to do with "rejected" members. One or two witnesses indicated that as far as they knew this doctrine was not practiced in business matters nor did it forbid an inheritance from a member of a "rejected" or former member. However, the testimony also indicated that some of the members were more devout and stricter practitioners of the religion than others, the testator being of the former class. Even the witness, Clessie Tittle, admitted that the above quoted scripture believed by his church group, of more than one hundred members, to support the doctrine of withdrawal, could be interpreted to mean that the testator should not will the contestants any of his property. The witness, Orval Cunningham, an elder who belonged to the same group or "assembly" of the church as the testator, on cross-examination testified as follows:
"Q. And your interpretation of the scripture, and the great portion of the church members' interpretation of the scripture means when a member has been rejected by the church, expelled from the church, or withdrawn from the church, you should no longer associate with that person? A. Well, we just read that scripture that says: `Keep no company.' It is up to the individual.
*151 "Q. He interprets that as he sees fit? A. If he wants to abide by that scripture, it is left up to him.
"Q. If he goes further in his interpretation of that scripture to mean he shall also disinherit, he has the same bases for that as he otherwise had? A. Each individual places his own interpretation.
"Q. In the light of the church belief, it would be reasonable, he would have just as much scriptural authority to disinherit as to withdraw? A. He would have the same authority.
"Q. He would have the same authority to disinherit as to withdraw? A. If he interpreted it.
"Q. If he did that, saw it that way, would he be acting just as rational as any other member? A. If he saw it that way.
"Q. Would you say he had a reason on which to base that belief? A. Yes, I would.
"Q. If he is crazy for having believed that, the rest of you are crazy for having convicted views that you should not associate with them? A. That's right."
Of similar import was the testimony of other members or former members of the church, including Loyd West, who traced the development of, and more fully described, the doctrine of withdrawal as taught and advocated by the Elder or "Prophet" Tomalson, Thomalson, or Thomason. This witness testified positively that both the church at Rocky and the one at Fay practiced the doctrine. Although he indicated that the former did not go so far in applying it to business matters as the latter, he testified positively and specifically that the doctrine as taught and advocated by the above named leader included the disinheritance of children who had been expelled from the church and he stated repeatedly that the majority of the Fay church's members believed and followed such interpretation of the scriptures.
In view of the above, it cannot be said that the testator's belief that the contestants, having been rejected from his church a number of years before he executed his will, should not inherit the substantial portions of his estate that proponents inherited, was a belief peculiar to, and subscribed to by, him alone. On the contrary there is sufficient evidence to support the trial court's finding (inferable from the judgment) that similar views were "commonly entertained by a considerable number" of other members of his church, that we cannot say such judgment is clearly against the weight of the evidence. In this connection, see In re Wilkins' Estate, 199 Okl. 249, 185 P.2d 213, and In re Smith's Estate, 197 Okl. 405, 172 P.2d 328.
Though, as will be seen from the cases cited in the Annotations beginning at 175 A.L.R. 882 (including In re Robertson's Estate, 199 Okl. 582, 189 P.2d 615), the term "insane delusion" has been variously defined, we believe that the better definitions exclude a religious belief having a factual basis, especially where based upon a conclusion, whether correct or incorrect, peculiar or eccentric, if reached in a not altogether illogical manner. See also 57 Am.Jur. p. 88, Secs. 75, 76, p. 90, Sec. 80. In Owen v. Crumbaugh, 228 Ill. 380, 81 N.E. 1044, 1051, in which it was held that a belief in Spiritualism is of itself no evidence of monomania or insane delusion, the court said:
"An insane delusion is not established when the court is able to understand how a person situated as the testator was might have believed all that the evidence shows that he did believe and still have been in full possession of his senses."
Compare other expressions concerning "delusion" in the above case with those in In re Trich's Will. 165 Pa. 586, 30 A. 1053, 1056-1057, and see generally Page on Wills, Vol. 1, secs. 140-149, both inclusive.
In many of the cases in which various delusions, religious and otherwise, have been held to have superseded or influenced the testator's otherwise normal and natural desires in the matter of testamentary disposition so as to be said to have destroyed normal testamentary capacity, there was abundant evidence from other statements, beliefs, ideas or conduct of the testator that he was demented. In this case as in the last two cases cited above, See 81 N.E. 1044, 1050, and 30 A. 1053, 1056, there is *152 not a scintilla of such proof. As will be seen, the testator's belief was based upon evidence, i.e., passages from the Bible, a book that has probably been given a wider variety of interpretations (as witnesseth the great number and variety of religions and creeds) than any other. As hereinbefore indicated, most courts have rightly avoided holding that any such interpretation, literal or otherwise, constitutes proof in itself of mental derangement or testamentary incapacity. On principle, we find nothing in the beliefs of the testator and many of his fellow church members that is any more difficult to subscribe to than some of the beliefs adopted by better known denominations. In accord with the above views and on the basis of the evidence, all of which we have examined thoroughly, the judgment of the trial court must be and is hereby affirmed.
HALLEY, C.J., JOHNSON, V.C.J., and WELCH, CORN, DAVISON, O'NEAL and WILLIAMS, JJ., concur.
ARNOLD, J., dissents.


603 F.Supp. 590 (1984)
Patrick D. CIOPPA, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, Defendant.
No. CIV-84-627T.
United States District Court, W.D. New York.
October 4, 1984.
Geiger & Rothenberg, Rochester, N.Y. (David Rothenberg, Rochester, N.Y., of counsel), for plaintiff.
Salvatore R. Martoche, U.S. Atty., Rochester (Jonathan W. Feldman, Rochester, N.Y., of counsel), Vanessa A. Miree, Office of Labor Law, U.S. Postal Service, Washington, D.C., for defendant.

MEMORANDUM DECISION AND ORDER
TELESCA, District Judge.

INTRODUCTION AND PROCEDURAL HISTORY
On February 3, 1984, plaintiff, Patrick Cioppa, was terminated from his employment with defendant, United States Postal Service, allegedly as a result of unsatisfactory performance during his probationary period. On February 23, 1984, plaintiff appealed his termination to the Merit Systems Protection Board. Since plaintiff was a probationary employee, his appeal was dismissed for lack of appellate jurisdiction. On May 30, 1984, plaintiff brought this action against defendant under 39 U.S.C. Section 409(a), alleging that his dismissal *591 was "arbitrary and capricious" and occurred under suspicious circumstances pointing to fraud. The defendant moved for an order dismissing the action, or in the alternative for summary judgment, on the grounds that the Court lacks subject matter jurisdiction and that the complaint fails to state a claim upon which relief can be granted. After hearing the argument of counsel, this Court denied defendant's motions in an oral decision on September 5, 1984.
On September 19, 1984, defendant brought the present motion, urging this Court to reconsider the defendant's earlier motions, or in the alternative, to certify the question of law at issue in this case for interlocutory appeal pursuant to 28 U.S.C. Section 1292.

DISCUSSION

SUBJECT MATTER JURISDICTION

I.
At the outset, it would appear that subject matter jurisdiction over this action is proper under 39 U.S.C. Section 409(a), which provides that, with one exception not applicable here, "the United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service." Relying in part upon this general jurisdictional grant, plaintiff argues that this Court has the "inherent non-statutory power of judicial review" over administrative agency action to guard against "arbitrary and capricious" decisions. Defendant, relying principally upon Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), argues that a dismissal of a probationary employee is a matter strictly within the discretion of the federal agency and cannot be reviewed in federal court, even if plaintiff's dismissal were in fact "arbitrary and capricious." I disagree.
As a preliminary matter, it must be emphasized that the question before this Court is extremely narrow. Plaintiff does not allege that his dismissal violated any of his constitutional rights. Moreover, plaintiff frankly concedes that his dismissal complied with the minimal procedural requirements imposed by applicable federal law for probationary employees. Plaintiff contends simply that his discharge was "arbitrary and capricious" and that it was procured by fraud and urges this Court to exercise review only on that basis. Defendant, for its part, candidly acknowledges that there are several "limited exceptions" to the general rule which immunizes the discharge of a probationary employee from judicial review, but denies that this case falls within a recognized exception, even if plaintiff's allegations are true. The only question of law to be resolved, therefore, is whether this Court has the nonstatutory power to review administrative personnel decisions which are allegedly "arbitrary and capricious".
39 U.S.C. Section 410(a) specifically exempts the Postal Service from the requirements of the Administrative Procedure Act (APA) 5 U.S.C. Section 701 et seq., including the provision of the APA authorizing judicial review over arbitrary and capricious agency action. 5 U.S.C. Section 706(2)(A). Although this Court is not empowered under the APA to determine whether a Postal employee's dismissal was arbitrary or capricious, the question remains open as to whether Congress affirmatively intended to forbid such review.
The question is phrased in terms of "prohibition" rather than "authorization" because a survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress ... [O]nly upon a showing of "clear and convincing evidence" of a contrary legislative intent should the courts restrict access to judicial review.
Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 141, 87 S.Ct. 1507, 1510, 1511, 18 L.Ed.2d 681 (1967) (Citations omitted).
Consequently, the mere absence of express statutory authorization does not necessarily foreclose this Court from exercising *592 limited judicial review over Postal Service actions. As the Court reasoned in Burns v. United States Postal Service, 380 F.Supp. 623, 626 (S.D.N.Y.1974),
There is nothing in the legislative history of the [Postal] Reorganization Act which suggests that Congress either impliedly or expressly intended to commit [employee compensation] entirely to the Postal Service's discretion. In fact, just the opposite conclusion may be inferred from the enactment of Section 409 which grants original jurisdiction to the District Court of "all actions brought by or against the Postal Service" ... The existence of a jurisdiction-conferring section like Section 409 provides the basis for maintaining a "`nonstatutory' review action". Byse and Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and "Nonstatutory" Judicial Review of Federal Administrative Action, 81 Harvard Law Review 308, 321, 323, (1967).
As the Supreme Court observed in Christian v. New York State Department of Labor, 414 U.S. 614, 622, 94 S.Ct. 747, 751, 39 L.Ed.2d 38 (1974), an action brought by a probationary Postal employee challenging her dismissal, "the fact that the employing agency's decision is not statutorily subject to judicial review does not preclude review of the agency's procedure used to reach that determination."
Despite the absence of express statutory authorization for judicial review, and the fact that the Postal Service enjoys the widest latitude in its personnel decisions, virtually every federal court confronting the issue has held that Postal Service employees are nonetheless entitled to non-statutory judicial review as a safeguard against arbitrary and capricious dismissal, in light of the "strong presumption in favor of judicial review of administrative action, especially in conjunction with the general jurisdictional grant of 39 U.S.C. Section 409(a)." Jordan v. Bolger, 522 F.Supp. 1197, 1202 (N.D.Miss.1981), affirmed, 685 F.2d 1384 (5th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983). Although a federal court may not second guess the wisdom of administrative personnel decisions, federal courts routinely review dismissals of Postal Service employees for the limited purpose of ensuring that such decisions are neither arbitrary nor capricious  precisely the sort of review requested by plaintiff in this case. Book v. U.S. Postal Service, 675 F.2d 158 (8th Cir. 1982); Yacavone v. Bolger, 645 F.2d 1028 (D.C.Cir.1981), cert. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981); Adkins v. Hampton, 586 F.2d 1070 (5th Cir. 1978); Alsbury v. U.S. Postal Service, 530 F.2d 852 (9th Cir.1976), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976); Ross v. U.S. Postal Service, 556 F.Supp. 729 (N.D.Ala.1983); Poole v. U.S. Postal Service, 540 F.Supp. 105 (S.D.Ohio 1982); Oates v. U.S. Postal Service, 444 F.Supp. 100 (S.D.N.Y.1978); Withers v. U.S. Postal Service, 417 F.Supp. 1 (W.D.Mo.1976).
Additionally, federal courts have also exercised their inherent power of review over "arbitrary or capricious" agency action in cases involving the dismissal of probationary Postal employees. Jordan v. Bolger, 522 F.Supp. 1197 (N.D.Miss.1981), affirmed, 685 F.2d 1384 (5th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983); Neal v. U.S. Postal Service, 468 F.Supp. 958 (D.Utah 1979). Since this limited form of judicial review exists independently of any statutory grant, it applies equally to the dismissal of probationary and permanent employees, despite the vast difference in the procedural protections enjoyed by the two groups under applicable federal statutes.[1]
Although the exercise of non-statutory judicial review over "arbitrary or capricious" administrative action may not be the *593 universal rule in the federal courts,[2] it is beyond question the rule prevailing in this circuit. In a case brought by a Postal employee challenging his dismissal, the Second Circuit long ago laid down the rule that "the taking of disciplinary action against Government employees, including the invocation of the sanction of dismissal, is a matter of executive discretion, and is subject to judicial supervision only to the extent required to insure `substantial compliance with the pertinent statutory procedures provided by Congress' and to guard against arbitrary or capricious action." McTiernan v. Gronouski, 337 F.2d 31, 34 (2d Cir.1964) (citations omitted). Accord, Burns v. U.S. Postal Service, 380 F.Supp. 623 (S.D.N.Y.1974). Apparently without exception, the courts of this circuit have consistently held that dismissals from the Postal Service are subject to this limited judicial review to guard against arbitrary or capricious action.[3]Grebosz v. U.S. Civil Service Commission, 472 F.Supp. 1081 (S.D.N.Y.1979) (ordering reinstatement of Postal employee dismissed in arbitrary and capricious manner); Lee v. Bolger, 454 F.Supp. 226 (S.D.N.Y.1978); Oates v. U.S. Postal Service, 444 F.Supp. 100 (S.D.N.Y. 1978). See also, Lutz v. U.S. Postal Service, 538 F.Supp. 1129, 1134 (E.D.N.Y.1982) (federal courts may exercise limited review over the procedures used to reach postal service personnel decisions); McDowell v. Goldschmidt, 498 F.Supp. 598 (D.Conn. 1980) (applying "arbitrary and capricious" standard of review to dismissal of air traffic controller by FAA).

II.
Notwithstanding all of the foregoing, defendant argues that this Court has no jurisdiction to determine whether plaintiff's discharge was "arbitrary or capricious", in light of the Supreme Court's decision in Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). According to defendant, Bishop held that, in the absence of a constitutional or statutory violation, a *594 federal court can never review any aspect of personnel decisions made by a public employer, including the procedures used to reach the decision. In effect, the defendant urges this Court to adopt an interpretation of Bishop which would require the reversal of virtually every decision cited in part I of this opinion. That is an invitation which I cannot accept.
At the outset, it is clear that the defendant's reading of Bishop draws no support from the actual holding of the case itself. The Court held that a probationary city policeman had no constitutional right to receive "a hearing to determine the sufficiency of the cause for his discharge." Id. 342, 96 S.Ct. at 2076. That holding is irrelevant to the present action, for plaintiff has neither alleged a violation of his constitutional rights, nor requested a hearing to determine the sufficiency of the cause of his discharge. He argues only that the procedures used to evaluate his competence were "arbitrary and capricious", and requests judicial review on that limited basis alone. The petitioner in Bishop made no such allegation, and the propriety of such review was not explicitly addressed anywhere in the Court's opinion.
Despite the narrowness of the actual holding in Bishop, defendant argues that the possibility of judicial review in the present case is foreclosed by the expansive language of the opinion's final paragraph, in which the Court stated that "the federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies." Id., 349, 96 S.Ct. at 2080. Quite clearly, the Court did not intend to intimate that agency personnel decisions are always inappropriate matters for review in federal court.[4] On the contrary, it is clear from the remainder of the opinion's concluding paragraph that the Court had in mind only those situations in which a discharged employee requests a federal court to substitute its judgment for that of the agency on the merits of the dismissal decision.
We must accept the harsh fact that numerous individual mistakes are inevitable in the day-to-day administration of our affairs. The United States constitution cannot feasibly be construed to require federal judicial review for every such error. In the absence of any claim that the public employer was motivated by the desire to curtail or to penalize the exercise of an employee's constitutionally protected rights, we must presume that official action was regular and, if erroneous, can best be corrected in other ways. The Due Process Clause ... is not a guarantee against incorrect or ill-advised personnel decisions.
Id. 349-350, 96 S.Ct. at 2080 (emphasis added). This understanding of the Bishop decision is fully consistent with the facts of that case, in which petitioner sought to prove "that he was a competent police officer" and that his discharge therefore must have been "a mistake and based on incorrect information." Id. 348,[5] 96 S.Ct. at 2079.
For the foregoing reasons, I conclude that Bishop v. Wood left entirely unaffected the longstanding and universal availability of limited federal judicial review over arbitrary and capricious agency conduct. Significantly, plaintiff has failed to cite a single subsequent case in which any Court has adopted a contrary interpretation of Bishop. Indeed, in one case relied upon by *595 defendant, the D.C. Circuit Court of Appeals (perhaps the only Circuit Court to directly address the question) expressly held that the limitations imposed on federal court jurisdiction by Bishop have not foreclosed the availability of "arbitrary or capricious" review.
While the transition from unreviewability to reviewability of adverse personnel actions against federal employees has left a legacy of some disagreement and confusion in the reported cases, it is at least reasonably well settled that, whatever is at least reasonably well settled that, whatever its exact scope, judicial review in the federal courts is necessarily limited. Federal judges do not sit as ombudsmen for government employment relations [citing Bishop v. Wood], nor do we indulge in the conceit of substituting our own judgment ad libitum for that of the agency. Rather, we concern ourselves in the personnel business only insofar as is necessary to assure that the action challenged (1) is not arbitrary or capricious; (2) was reached in conformity with relevant procedural requirements; and (3) was not otherwise unconstitutional.
Doe v. Hampton, 566 F.2d 265, 271-72 (D.C.Cir.1977) (emphasis added) (footnotes omitted).
Although the Supreme Court's opinion in Bishop concludes with rather sweeping language (which might lend itself to some misinterpretation), one recent decision correctly observed that "many federal district courts and courts of appeals nevertheless have found that the decision in Bishop v. Wood does not preclude review of personnel decisions made by government employers, even in the absence of any allegation of a violation of constitutional rights." Ross v. United States Postal Service, 556 F.Supp. 729, 732 (N.D.Alabama 1983). The Court noted that there is still ample precedent "for providing a narrowly limited review of personnel decisions made by the Postal Service" to determine "whether its actions were arbitrary or capricious" Id. 733 (citations omitted). On the basis of the foregoing review of the case law, I must agree.

III.
Defendant has made one further argument which is worthy of no more than passing comment. Defendant has placed great reliance on a number of circuit opinions which have reiterated the basic fact, irrelevant here, that probationary employees have no constitutional or statutory right to an administrative hearing on the merits of their dismissal. If plaintiff has no right to an administrative hearing, defendant reasons, it should follow with even greater force that there is no right to a hearing in federal court. But that line of reasoning misses the point entirely. Plaintiff does not (and could not) ask this court to conduct an independent investigation into the wisdom of an administrative agency's discretionary decision as to his fitness for continued employment. On the contrary, he alleges in effect that there was no evaluation of his competence for this Court to review, because his dismissal was procured through fraud and deception for purely personal reasons. That is a different matter altogether, and it falls squarely within the jurisdiction of this Court's inherent power of review.
The same response can also be made to defendant's argument that, even if this Court has subject matter jurisdiction, "the plaintiff is not entitled to discovery or a trial de novo," since "judicial review is strictly limited to a review of the administrative record." (Brief for defendant, pages 9, 10.) In support of this proposition, defendant rather surprisingly cites four cases in which federal courts exercised judicial review over allegedly "arbitrary and capricious" agency action  precisely the sort of review which defendant argues is beyond the powers of this Court. In each of those cases, moreover, the courts were reviewing dismissals which had been previously examined at administrative hearings, typically before the Merit Systems Protection Board. In the present case, however, since plaintiff was only a probationary employee, his request for an administrative hearing was denied, and so *596 there is no administrative record for this Court to review.

IV.
Finally, in the event that this motion should be denied, defendant has asked this Court to certify the question of law at issue in this case for interlocutory appeal under 28 U.S.C. section 1292(b). That request is also denied. Defendant has alleged that "there is a substantial difference of opinion with respect to the question of law" (Brief for defendant, page 11). Indeed there is, at least between the parties to this dispute. But the statute requires something more: there must be "substantial ground for difference of opinion" as to a controlling question of law, 28 U.S.C. section 1292(b), and that is something else altogether. It is established beyond dispute that this Court possesses the inherent power to grant the limited scope of review requested by plaintiff, and the grounds for defendant's difference of opinion are "insubstantial" as best.

SUMMARY JUDGMENT
In its second motion, defendant argues in the alternative that it is entitled to summary judgment because there is no genuine question of fact as to whether plaintiff's dismissal was "arbitrary or capricious." Before that question can be resolved, it is necessary to flesh out the meaning of the applicable standard of review.
Under the most widely accepted formulation, administrative action is "arbitrary and capricious" when it is "willful and unreasoning action, without consideration and in disregard of the facts or circumstances of the case." First National Bank of Fayetteville v. Smith, 508 F.2d 1371, 1376 (8th Cir.1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975). Accord, Jordan v. Bolger, 522 F.Supp. 1197, 1202 (N.D.Miss.1981), affirmed, 685 F.2d 1384 (5th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983); Coleman v. Darden, 595 F.2d 533, 539 (10th Cir.1979), cert. denied, 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979). In the application of this standard, the Supreme Court has stated that:
The Court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The Court is not empowered to substitute its judgment for that of the agency.
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971) (citations omitted).
In reviewing administrative decisions which call for specialized competence, the Supreme Court has stated that the agency's order should stand unless the order represents a clear attempt to achieve ends other than those perceived by Congress when delegating the authority to make such findings. NLRB v. Seven-up Bottling Company, 344 U.S. 344, 346-47, 73 S.Ct. 287, 288-89, 97 L.Ed. 377 (1953). Defendant concedes that the purpose of the system of probationary employment is not to give the Postal Service discretion for its own sake, as an end in itself, but rather "is intended to enable a federal agency to determine whether a prospective career employee possesses the qualifications and character worthy of a permanent appointment." (Brief for defendant, page 7.) Applying that standard to the instant situation, it has been held that when the discharge of a Postal employee was made in a genuine effort "to promote the efficiency of the service," such action "does not constitute an attempt to achieve ends other than those perceived by Congress when delegating authority to the Postal Service over its personnel affairs," and therefore is neither arbitrary nor capricious. Poole v. U.S. Postal Service, 540 F.Supp. 105, 111 (S.D.Ohio 1982). In Youtsler v. Koeppel, C-1-79-641 (S.D.Ohio March 20, 1981) affirmed, 81-3300 (6th Cir. May 24, 1982), the same Court held that a decision to discharge a Postal Service employee had been "a clear attempt to achieve some end other than the efficiency of the service" *597 and was therefore arbitrary and capricious. Poole, supra, at 111.
Applying the foregoing standards to the instant case, it must be determined whether plaintiff has raised any genuine question of material fact in support of his allegation that his dismissal was arbitrary and capricious. This inquiry requires a brief review of the circumstances surrounding his discharge. On November 12, 1983, plaintiff was hired by the Postal Service for a ninety day probationary period of employment. Throughout his probationary employment, plaintiff worked for defendant six days each week, eleven hours every day.
On December 9, 1983, plaintiff received his required thirty day evaluation from Supervisor Moynihan. That evaluation rated plaintiff satisfactory (the best possible rating) in every category but one. He was not rated in the category of "progress in learning required schemes", since he had not passed the required LSM training exam. On January 9, 1984, plaintiff received identical ratings from Supervisor Lamendola on his required sixty day evaluation. In addition, that second report recommended plaintiff's retention.
On January 25, 1984, plaintiff took his required training exam for the first time, but did not pass the exam. Later that day, he received his eighty day evaluation from Supervisor Lamendola, in which he once again was rated satisfactory in every category but one. For the first time, plaintiff was rated unsatisfactory for progress in learning required schemes, because he had failed the test.
The following day, January 26, plaintiff received a notice from the Postmaster indicating that he would be permitted to retake his LSM exam. The letter also reminded plaintiff that he was required to pass the exam sometime before the expiration of his probationary period on February 8, 1984, or else he would be terminated on that date. Several days later, on January 31, 1984, plaintiff retook and passed the LSM exam.
On February 3, 1984, five days before the end of his probationary term, and allegedly without any prior warning whatsoever, plaintiff was advised that he was being fired. He was shown a letter from Postmaster Schubert dated that same day which stated that he was being terminated as a result of unsatisfactory performance. Although he was informed that he had been written up by some supervisors, he was not shown any copies of any adverse memoranda or evaluation.
About one or two weeks later, plaintiff was shown for the first time a copy of the "special" evaluation which apparently was the basis for his termination. On the "special" evaluation, which was prepared by Supervisor Lamendola and dated January 30, plaintiff was rated unsatisfactory in eight out of eleven categories. This rather striking reversal was ostensibly based upon statements prepared by four of plaintiff's supervisors. In support of its instant motion, defendant has submitted copies of those reports, which were all dated January 28 and January 29  ostensibly between the time plaintiff received his last favorable evaluation and the date on which he passed the LSM test. (Defendant's Exhibit 6.)
Defendant now argues that it is entitled to summary judgment, because these reports represent the genuine and good faith judgment on the part of plaintiff's supervisors that his dismissal would be in the best interest of the Postal Service. If there were no reasons to doubt that assertion, I would not concern myself with the wisdom of that judgment, and my inquiry would come to an end. Plaintiff argues, however, that several features of the circumstances surrounding his dismissal are sufficient to create at least some suspicion as to defendant's good faith. For the following reasons, I must agree.
To begin with, it must be noted that the copies of the statements provided by the defendant are not in the form of either deposition or affidavit. They are not sworn, they are not originals, and they are not even certified as authentic by any sworn affidavit. Curiously, they are not included in the bound collection of defendant's *598 exhibits which were certified as "true and correct copies of original U.S. Government records ... in the official custody of the United States Postal Service" by Mr. Stephen Alpern. Indeed, it is not obvious that these statements can be properly considered by this Court under Federal Rules of Civil Procedure 56(c), although plaintiff has not contested their introduction. Two of the four statements complained of events which allegedly occurred before plaintiff received his last two favorable evaluations, and a third offers no clue as to the date of the incidents alleged therein.
Even though the alleged episodes of plaintiff's poor work performance began as early as December 22, 1983, he apparently received no formal criticism or warning until the day of his termination. On the contrary, he received satisfactory evaluations on January 9 and again on January 25. He was formally encouraged in writing on January 26 to retake the LSM test, supposedly to avoid automatic termination on February 8. Although the negative reports of his supervisors, and the "special" evaluation based upon them, were allegedly prepared between January 28 and January 30, he received no notice of any of this action until February 3  shortly after he passed the test which had stood as the final obstacle to his avoiding automatic termination. Oddly enough, one of the very few categories in which plaintiff was rated satisfactory in his special evaluation was "attendance  punctuality  reliability", even though those were the very attributes about which each of his four supervisors had complained. It appears that the dates on some of the forms have been altered for some reason. Finally, in their sworn affidavits, plaintiff and his attorney contend that they possess a signed and written statement by an as yet anonymous co-worker who was told by one of plaintiff's supervisors that they "pulled a fast one" in procuring his dismissal.
Plaintiff has proposed the theory that the unsworn statement of his supervisors and the special evaluation based upon them do not constitute a genuine or good faith exercise of defendant's administrative discretion. Rather, they were contrived immediately after he passed his LSM training exam, and had been backdated to conceal any evidence of irregularity. As it presently stands, the factual record contains abundant and clear evidence that plaintiff's dismissal was highly irregular, although it remains to be determined whether his termination was indeed arbitrary and capricious. Plaintiff has surely raised sufficient questions of fact to survive a motion for summary judgment at this time.

CONCLUSION
For all of the reasons outlined above, and upon careful reconsideration of the arguments raised by counsel, I would be remiss if I were to grant defendant's motion for dismissal or summary judgment. Defendant's several motions are denied in all respects.
It is conceded that the institution of probationary employment is largely designed for the very purpose of permitting agencies like the Postal Service to quickly and efficiently exercise their specialized competence over personnel decisions, subject only to the most minimal procedural restrictions. Defendant has repeatedly and persuasively reminded this Court that those purposes would be substantially undermined if any significant number of probationary employees could routinely challenge their dismissals in Federal Court and survive a pre-answer motion for summary judgment. Given the highly unusual circumstances of the present case, however, it is abundantly clear that the limited scope of this decision does not carry with it any risk of exposing defendant to that possibility.
ALL OF THE ABOVE IS SO ORDERED.
NOTES
[1]  Since the form of judicial review requested by plaintiff in this case has been widely obtained by nonprobationary employees as well, there is no merit to defendant's argument that the relief sought by plaintiff would constitute a greater measure of protection than that afforded to career Postal employees.
[2]  I use the words "may not" advisedly, for defendant has not cited a single decision in which a court squarely confronted this particular question of law and reached a contrary result. The solitary exception to this otherwise universal rule may be Bartholomew v. United States of America, Docket No. 81-C-5096 (N.D.Ill., 1983), affirmed on other grounds, slip opinion No. 83-1989 (7th Cir. July 18, 1984), in which the District Court apparently held (in an unpublished decision) that it lacked jurisdiction to determine whether a discharge was arbitrary and capricious, but that particular question of law was neither challenged on appeal nor addressed by the 7th Circuit.
[3]  Smith v. Lehman, 533 F.Supp. 1015 (E.D.N.Y. 1982), aff'd., 689 F.2d 342 (2d Cir.1982), cert. denied, 459 U.S. 1173, 103 S.Ct. 820, 74 L.Ed.2d 1018 (1983), upon which defendant places great reliance, is not to the contrary. In that case, the Court of Appeals held that a probationary employee of the United States Navy had no constitutional or statutory right to an administrative hearing prior to his termination. That holding is irrelevant in the present case, however, for plaintiff concedes that his constitutional rights have not been violated, and does not request a hearing upon the merits of his discharge. He merely seeks judicial review as to the question of whether the procedures used to determine his fitness for continued employment were "arbitrary and capricious", an issue which was not before the Court of Appeals in Smith. (In fact, the plaintiff in Smith originally also alleged that his dismissal was "arbitrary and capricious" under the APA, but that claim was dismissed by the District Court on the grounds of sovereign immunity, for reasons not applicable here. That decision was not challenged on appeal, and therefore was not reviewed by the Second Circuit. 689 F.2d at 345, footnote 6.)

In support of its motion to dismiss, defendant's two memoranda of law cite only five other cases from this circuit. In two of those cases, as in Smith, the Courts held that probationary employees are not constitutionally entitled to a pre-termination administrative hearing on the merits of their discharge, but did not address the question of law before this Court. Chu v. Schweiker, 690 F.2d 330 (2d Cir.1982); Christian v. New York State Department of Labor, 347 F.Supp. 1158 (S.D.N.Y.1972), vacated on other grounds, 414 U.S. 614, 94 S.Ct. 747, 39 L.Ed.2d 38 (1974). In the other three cases, where the Courts were faced with the same question of law now before me, all three courts concluded that they had the power to exercise the sort of limited review requested by plaintiff in this case. Lutz v. U.S. Postal Service, 538 F.Supp. 1129 (E.D.N.Y.1982); McDowell v. Goldschmidt, 498 F.Supp. 598 (D.Conn.1980); Oates v. U.S. Postal Service, 444 F.Supp. 100 (S.D.N.Y.1978).
[4]  In its memorandum of law, defendant tacitly concedes that the quoted language from Bishop cannot be read too literally, for defendant acknowledges that there are at least three exceptions in which federal courts may properly exercise review over administrative agency personnel decisions.
[5]  In emphasizing the scope of its holding, the Court did state by way of dictum that the petitioner's discharge would not have violated his constitutionally protected "liberty" even if the reasons given for his dismissal had been deliberately falsified, and not merely incorrect. 426 U.S. 345, 349 at footnote 13, 96 S.Ct. 2077, 2080 at footnote 13. Although the Court stated that deliberate fraud would not affect "our analysis of the Federal Constitutional question", Id., it gave absolutely no indication that such extreme circumstances would also leave unaffected the propriety of limited judicial review on nonconstitutional grounds.


905 F.2d 208
11 UCC Rep.Serv.2d 926
UNIFIRST FEDERAL SAVINGS BANK f/k/a Poinsett County Savings& Loan Association, Appellant,v.The AMERICAN INSURANCE COMPANY, one of the Fireman's FundGroup of Insurance Companies, Appellee,v.JAMCO, INC., Appellee.
No. 89-2382.
United States Court of Appeals,Eighth Circuit.
Submitted April 11, 1990.Decided June 5, 1990.

Ben F. Arnold, Little Rock, Ark., for appellant.
James A. Knox and John W. Nassen, Dallas, Tex., for appellee.
Before ARNOLD, Circuit Judge, BRIGHT and ROSS, Senior Circuit Judges.
ROSS, Senior Circuit Judge.

1
Unifirst Federal Savings Bank (Unifirst) appeals from the district court's1 order granting summary judgment in the amount of $250,000 to the American Insurance Company.  We affirm.

2
Jamco, Inc. subcontracted to perform certain electrical work on a construction project for Brown-Olds Corporation.  Jamco obtained a "Performance Guarantee-Irrevocable Letter of Credit" in the amount of $250,000 from Unifirst, formerly known as Poinsett County Savings & Loan Association, to secure its performance on the contract.  Brown-Olds was identified as the beneficiary of the letter of credit.  Brown-Olds thereafter filed a Chapter 11 bankruptcy petition.  The bankruptcy court ordered it to assign all right, title, and interest in and to its contracts and subcontracts to the American Insurance Company (American) as surety to complete the project.  Pursuant to the order, Brown-Olds and American entered into an assignment agreement on May 25, 1985.  The assignment agreement provided in part:

3
Surety shall have the right in its own name or in the name of Contractor to demand, collect, receive, receipt for, sue for, compound, give acquittance for, settle, and release any and all amounts due or to become due on the aforesaid Assigned Items and to endorse the name of Contractor on all commercial paper in payment or part payment thereof, and in Surety's discretion to file any claim or take any other action or proceeding which Surety may deem necessary or appropriate to protect, preserve and realize upon the aforesaid Assigned Items.

4
Jamco continued with performance of its work but was later unable to meet its financial obligations.  On May 12, 1986, its vice-president so informed American and requested $150,000 in financial assistance.  On June 19, 1986, American made its first presentation for payment of $150,000 on the letter of credit to Unifirst.  It included a letter stating that it had right, title, and interest in the letter of credit and that its assignment was approved by the bankruptcy court.  It also presented the original letter of credit, a separate statement that Jamco had not fulfilled its contractual obligations to Brown-Olds, Jamco's written admission of default, and a sight draft.  Unifirst declined payment for the reason that no evidence showed American had the right to receive payment and because Brown-Olds needed to present the draft and its written statement that Jamco had not fulfilled its contract.

5
Subsequently, on November 3, 1986, American, through Brown-Olds (the original beneficiary), presented to Unifirst a sight draft and declaration that Jamco had defaulted for payment on the letter of credit.  It also notified Unifirst that American was entitled to receive the payment as assignee.  Brown-Olds demanded the full amount of $250,000.  A November 10, 1986 letter from Jamco to Unifirst stated that Jamco was not in default on its contract and had not been notified of any default.  On November 12, 1986, Unifirst again refused payment, citing 11 U.S.C. Sec. 365(c)(1) and (3), and stating that the documents submitted were fraudulent.

6
Unifirst filed suit in state court seeking injunctive relief and a declaratory judgment that it had no liability to American on the letter of credit.  American removed the case to federal district court on diversity grounds and counterclaimed for $250,000 on the letter of credit.  On cross-motions for summary judgment, the district court granted judgment in favor of American and awarded it $250,000.  The court also granted Unifirst a judgment against Jamco for the sums paid under the letter of credit.

7
On appeal, Unifirst argues the district court erred in failing to find that 11 U.S.C. Sec. 365 precluded the granting of summary judgment for American, and in granting summary judgment for American in view of its method of presenting the letter of credit.

8
Unifirst first asserts that the letter of credit is a "financial accommodation" which was terminated upon filing of the bankruptcy petition;  that it was neither assumable nor assignable under 11 U.S.C. Sec. 365 of the Bankruptcy Code.  Section 365 states that a trustee or debtor in possession may assume or reject an executory contract of the debtor.  One of the limited exceptions to this general power is contained in section 365(c)(2).  That section provides that a trustee may not assume or assign an executory contract if "such contract is a contract to make a loan, or extend other debt financing or financial accommodations," for the benefit of the debtor.  11 U.S.C. Sec. 365(c)(2).

9
American responds that bankruptcy defenses are inapplicable in this nonbankruptcy litigation, citing Lindsey v. Ipock, 732 F.2d 619, 622 (8th Cir.)  (disallowing collateral attack of unappealed bankruptcy court order even if it was in error), cert. denied, 469 U.S. 881, 105 S.Ct. 247, 83 L.Ed.2d 185 (1984).  Even if section 365 were applicable, American contends that it would not preclude assignment of the letter of credit because the letter is not an executory contract.  Regardless, because Unifirst failed to file a complaint in the bankruptcy court proceedings, we agree with American that Unifirst's collateral attack of the bankruptcy court's judgment has no place in this litigation.

10
Presentment of a letter of credit is governed by the terms of the letter itself.  See Ark.Code Ann. Secs. 4-5-103(1)(a) and 4-5-114(1).  The letter of credit in this case demanded that Brown-Olds present a draft drawn on Unifirst for the beneficiary, the original letter of credit, and its written declaration that Jamco had not fulfilled its obligations under the contract.  The letter did not expressly designate that it was assignable.  Under Arkansas law, a letter of credit is not assignable but the right to proceeds of the letter is assignable.  Ark.Code Ann. Sec. 4-5-116(1).  Thus American's first presentment in which it claimed it was assigned the letter of credit was clearly incorrect.  The second presentment, however, in which American claimed it had been assigned the right to the proceeds of the letter of credit, was proper.  This latter presentment also conformed to the other requirements of the letter of credit.

11
Unifirst contests that American was ever actually assigned the right to proceeds, noting that neither Jamco, Unifirst, nor the letter of credit were referred to in the bankruptcy court's order.  The district court adopted American's reasoning for assignment:  that Ark.Code Ann. Sec. 4-5-116(2) provides for an assignment of the right to receive proceeds from a letter of credit.  This section provides in part:

12
Even though the credit specifically states that it is nontransferable or nonassignable, the beneficiary may before performance of the conditions of the credit, assign his right to proceeds.  Such an assignment is an assignment of an account under chapter 9 of this title on secured transactions and is governed by that chapter except that:

13
.    .    .    .    .

14
(b) The issuer may honor drafts or demands for payment drawn under the credit until it receives a notification of the assignment signed by the beneficiary which reasonably identifies the credit involved in the assignment and contains a request to pay the assignee;  and

15
(c) After what reasonably appears to be such a notification has been received, the issuer may without dishonor refuse to accept or pay even to a person otherwise entitled to honor until the letter of credit or advice of credit is exhibited to the issuer.

16
The district court noted that assignment occurred before Brown-Olds attempted to perform the various conditions under which payment could have been made, and that Brown-Olds adequately informed Unifirst of the assignee.  See Ark.Code Ann. Sec. 4-5-116(2)(b).  We agree that the right to receive proceeds of the letter of credit was properly assigned.

17
Finally, Unifirst argues that the documents presented to it were fraudulent under the Uniform Commercial Code, citing Ark.Code Ann. Sec. 4-5-114.  The letter sent from the president of Jamco to Unifirst on November 10, 1986, stated that it was not in default on the construction contract.  Six months earlier, however, Jamco had requested financial assistance from American.  American had supplied this earlier letter to Unifirst along with its declaration of default.  The district court ruled that the documents presented to Unifirst satisfied the requirement of showing a default.  We do not believe the court needed to explore whether a default actually occurred, as an issuer is obliged to pay on the presentation of "specified documents showing a default, rather than upon proof of the fact of default."    Bank of N.C., N.A. v. Rock Island Bank, 570 F.2d 202, 206 n. 7 (7th Cir.1978).

18
In sum, we find that the assignment was valid under Ark.Code Ann. Sec. 4-5-116(2) and proper presentation was made;  the documents presented were sufficient to show that Jamco had defaulted.  We find no material facts in dispute.

19
Accordingly, the district court's order granting summary judgment to American in the amount of $250,000 plus interest is affirmed.

1
 The Honorable Henry Woods, United States District Judge for the Eastern District of Arkansas


363 S.W.2d 366 (1962)
James F. BURKE d/b/a Burke's Drugs, Appellant,
v.
T. L. BEAN, Appellee.
No. 6586.
Court of Civil Appeals of Texas, Beaumont.
November 29, 1962.
Rehearing Denied December 19, 1962.
Melvin Combs, Beaumont, for appellant.
Sample & Walker, Beaumont, for appellee.
McNEILL, Justice.
Bean had a gall bladder attack and his physician gave him a prescription for Oxacholin tablets. The prescription was taken March 28, 1960, to Burke's Drug Store to be filled, and the pharmacist there, by mistake delivered Oxsoralen capsules to Bean. The doctor prescribed a pill after each meal. After Bean had taken one or two doses of the medicine he called his doctor and told him he was in much pain and needed a sedative, and the doctor prescribed relief medicine for him, which he took for about two days. In the meantime he continued to take the improperly filled prescription.
Bean's brother happened to be visiting from Mississippi, and desiring to have the gall bladder prescription refilled for him, Bean went to another drug store owned and operated by C. P. Rainey. Bean took the container along that had the improper medicine in it and while he was at Rainey's, Rainey called Burke's Drug Store and talked to Burke. It is not clear in the record as to just what day this took place. Witnesses fixed it as between the 4th and 7th of April. (The parties stipulated that the re-fill by Burke was on the 8th). In the telephone conversation, Rainey obtained *367 knowledge of what the original prescription called for and told Burke that the prescription as filled contained pink Oxsoralen capsules. Burke realized then that a mistake had been made. He testified that he thought Rainey had refilled the prescription but he told Rainey to have Bean come by and he would adjust the price charged. Rainey then told Bean to go to Burke's but did not tell him a mistake in filling the prescription had been made. Bean then took the prescription to Burke's to be refilled for his brother. He did not see Mr. Burke and neither did Burke see him. He obtained the proper refill this time from the pharmacist, but paid the same amount of $6.50 for this prescription as he had been charged for the first prescription, although the price for the proper drug would have been $2.75. This refilled prescription was turned over by Bean to his brother who returned to Mississippi a short while later.
Bean continued to suffer from the gall bladder pains in much the same severe way as he had suffered since the original attack about March 28th, but he kept on taking the original incorrectly filled prescription until April 11th, when he returned to his physician. Upon examination of the bottle of medicine the doctor told him that he had been taking the wrong medicine, whereupon Bean went to Rainey's Drug Store and obtained the proper filling of the prescription, and then began to take the prescribed gall bladder medicine, and soon showed improvement.
The literature furnished by the manufacturer of Oxsoralen recommends that a person, after having taken these capsules for two weeks, should have a liver test run on him. A few days after learning he had taken the wrong medicine, Bean saw Dr. James Q. Blackwood, a dermatologist. Dr. Blackwood ran three such tests and found that the liver functions were within normal limits. This doctor, called by Bean, testified the Oxsoralen did Bean no good. He suggested additional liver tests at indeterminate future dates, although it was his opinion that the patient would have no future trouble as result of having taken the Oxsoralen capsules. Dr. H. E. Alexander, who testified at the request of Burke, was of the same opinion.
As a result of the incorrectly filled prescription, Bean sued Burke for damages, both actual and exemplary. In answer to issues submitted, the jury found that Oxsoralen capsules were supplied to Bean instead of Oxacholin tablets as prescribed; that Bean was injured as a result of the improper filling of the prescription; that the improper filling of the prescription was negligence and a proximate cause of plaintiff's injuries; that he was actually damaged in the amount of $500.00.
In addition to the above issues, on the exemplary damage feature of the case, the court submitted further issues which were found in Bean's favor, as follows: Burke intended to conceal from Bean the fact that the prescription had been improperly filled; that Burke's failure to advise Bean of the mistake in filling the prescription constituted gross negligence. In connection with this issue the term "gross negligence" was defined as "that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it." In answer to the issue as to what amount should be awarded as exemplary damages, the jury found $2,000.00. In answer to further issues, the jury found that Bean was not contributorily negligent in not recognizing the difference between the medicine with which the prescription was first filled and that when correctly filled; nor was he negligent in failing to inquire why the refilled prescription was not the same (in appearance) as upon the first filling.
The characteristic symptoms of an acute gall bladder attack are pain between the shoulder blades, cramping pains and nausea. The Oxacholin tablets prescribed by the physician were for the purpose of aiding the gall bladder to drain and would thereby relieve *368 pain. The object of giving Oxsoralen capsules is to tan the skin of the patient. The side effects of taking these sun-tan capsules are the same as those of gall bladder attacks, and in addition they will give a person a feeling of depression, nervousness and insomnia. Bean testified that he had all of these symptoms for the two weeks he took the wrong medicine, and that his feeling of nervousness and depression persisted for some time afterward. He was also unable to work for several weeks during which time he had to employ a substitute to do his work.
No serious attack is made upon the award of actual damages, but it is urged that the award for exemplary damages is without legal basis. We do not agree. In filling prescriptions a druggist is required to use that high degree of care which a very prudent and cautious person would exercise under the same or similar circumstances in that business. Peavy v. Hardin, Tex.Civ.App., 288 S.W. 588; 28 C.J.S. Druggists § 6, p. 511. The general customer ordinarily has no definite knowledge concerning many medicines, and must rely implicitly upon the druggist, who holds himself out as one having the peculiar learning and skill, and license from the state, to fill prescriptions. He owes to his customer purchasing a prescription that highest degree of prudence, thoughtfulness, and vigilance consistent with the reasonable conduct of the business, in order that human life may not constantly be exposed to the danger flowing from the substitution of a harmful drug for a beneficial drug ordered by the customer's physician.
Argument is stressed that Burke's negligence was entirely passive, not positive and consequently gross negligence could not be charged to him. Burke had the duty under the circumstances of this case upon discovery of the error, to make prompt correction thereof. That very high decree of thoughtfulness and vigilance in the original filling of the prescription placed by the law upon the druggist must also enjoin him to exercise that same vigilance and care for his customer upon the discovery of a mistake to see that it is promptly rectified. This Burke failed to do. Bean argues that contrary to Burke's duty in this respect, by charging the original price for the refill that was paid for the improperly filled prescription, Burke affirmatively attempted to conceal his mistake. The jury accepted this view. Undoubtedly Burke had the patient's name and address in the city, and in addition, a telephone was listed in the name of Mrs. T. L. Bean, wife of plaintiff. No effort was made by Burke after he learned of the mistake to reach Bean and correct it, although Bean continued to take the wrong medicine for three days thereafter, and only stopped when he went back to his physician on April 11th who told him of the mistake. The above outline of facts, in our opinion, justified the jury in concluding that the druggist showed a conscious indifference to the rights and welfare of the plaintiff and was guilty of gross negligence. Missouri-Pacific Railway Co. v. Shuford, 72 Tex. 165, 171, 10 S.W. 408; 17 Tex.Jur.2d 245-247.
It is urged that the amount of exemplary damages allowed were excessive, because well out of proportion to the actual damages allowed. The ratio of 1 to 4, as exists in this case, has been upheld several times in this state. 17 Tex.Jur.2d 256. With respect to the amount of the damages awarded, much is left in the first instance to the discretion of the jury. Tynberg v. Cohen, 76 Tex. 409, 13 S.W. 315. We hold that this discretion was not abused. Schutz v. Morris, Tex.Civ.App., 201 S.W.2d 144.
The judgment is affirmed.


179 N.J. Super. 142 (1981)
430 A.2d 964
MEDCOR, INC., PLAINTIFF-APPELLANT,
v.
JOANNE E. FINLEY, M.D., M.P.H. COMMISSIONER OF THE NEW JERSEY STATE DEPARTMENT OF HEALTH, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued May 5, 1981.
Decided May 22, 1981.
*143 Before Judges FRITZ, POLOW and JOELSON.[1]
Evan William Jahos argued the cause for appellant (Wood, Jahos, Broege & Wight, attorneys).
Charlotte Kitler, Deputy Attorney General, argued the cause for respondent (James R. Zazzali, Attorney General of New Jersey, attorney; John J. Degnan, former Attorney General of New Jersey; Erminie L. Conley, Assistant Attorney General, of counsel).
The opinion of the court was delivered by POLOW, J.A.D.
*144 Plaintiff appeals from the determination of the State Commissioner of Health that a hearing was not required to ascertain whether its mobile "multiphasic health testing" services are subject to the regulatory provisions of the Health Care Facilities Planning Act, N.J.S.A. 26:2H-1 et seq. We agree with the Commissioner and affirm.
Medcor offers automated testing using mobile vans and medical screening equipment. It performs such medical testing services as blood pressure readings, chest x-rays, urinalyses and electrocardiograms, among others. Test results and the medical history supplied by the participant are compiled in a "health profile" reviewed by Medcor's staff medical personnel and which is then forwarded to the individual or his or her personal physician. The Commissioner found that Medcor is a facility providing "standard categories of health care services" for which a certificate of need is required. N.J.S.A. 26:2H-7.
Based upon a recommendation of the Statewide Health Coordinating Council (N.J.S.A. 26:2H-2 g), Commissioner Finley denied Medcor's application for a certificate of need. Medcor was permitted an opportunity for a hearing on the denial prior to final action by the Health Care Administration Board. N.J.S.A. 26:2H-9. On the scheduled hearing date Medcor sought reconsideration of the basic jurisdictional issue, i.e., whether its services are within the scope of the Health Care Planning Facilities Act and thus subject to regulation. Plaintiff's demand for consideration of the jurisdictional issue was denied. To enable plaintiff to test the jurisdictional question, the administrative hearing on the certificate of need was dismissed without prejudice. We conclude that there was no final appealable order disposing of all issues as to all parties. Hudson v. Hudson, 36 N.J. 549, 552-553 (1962); Delbridge v. Jann Holding Co., 164 N.J. Super. 506, 509 (App.Div. 1978). Hence, this appeal is interlocutory and leave to appeal should have been but was not sought. Nevertheless, we conclude that the interests of justice *145 here are best served by the exercise of our discretion to grant leave to appeal nunc pro tunc. R. 2:2-3(b); R. 2:4-4(b)(2); Rybeck v. Rybeck, 150 N.J. Super. 151, 155 (App.Div. 1977) cert. den. 75 N.J. 30 (1977). We will, therefore, deal with the substantive issue.
The questionnaire submitted by Medcor describes its services as "Multiphasic Health Testing ... using mobile testing units, primarily sponsored by national organizations." The "battery of tests" listed are all of a medical nature. The questionnaire further explains that the "health profile," including test results and the participant's medical history, "is reviewed by Medcor's medical doctor, a N.J. physician. Diagnosis and treatment is only performed by the individual's own physician."
The act requires that no health care facility shall be constructed or expanded, and no health care services shall be instituted, except upon application for and receipt of a certificate of need. N.J.S.A. 26:2H-7. A health care facility is defined as a
... facility or institution ... engaged principally in providing services for ... diagnosis or treatment of human disease.... [N.J.S.A. 26:2H-2a]
A health care service is defined as the
... preadmission ... care provided in or by a health care facility, ... which are provided by or under the supervision of a physician for the purpose of ... diagnosis or treatment of human disease, . .. . [N.J.S.A. 26:2H-2b]
Administrative regulations, promulgated by the Commissioner pursuant to her statutory powers (N.J.S.A. 26:2H-5 b), set forth a list of services which are considered "health care services," and which, when provided by a "health care facility," require that facility to obtain a certificate of need. Free standing health screening centers and mobile multiphasic health testing services are included within those standard categories of health care services. N.J.A.C. 8:33-1.1 et seq. An administrative agency's interpretation of the statute it must enforce is entitled to great weight. In re Application of Saddle River, 71 N.J. 14, 24 (1976); In re Tomarchio, 148 N.J. Super. 99, 101 (App.Div. 1977).
The statutory provisions and the regulations properly promulgated thereunder are unambiguous. Performance by *146 Medcor of multiphasic health testing, which it describes as having been "designed to detect anatomical and physiological abnormalities/disorders as early as possible," without question supports the jurisdictional determination of the Commissioner. Medcor is a facility engaged "principally in providing services for ... diagnosis or treatment of human disease...." N.J.S.A. 26:2H-2 a. It certainly provides health care services by way of "services for ... diagnosis," if not by way of actual diagnosis of human disease. N.J.S.A. 26:2H-2 b. The issue is therefore not "susceptible to the receipt of evidence." Cunningham v. Civil Service Dep't, 69 N.J. 13, 22 (1975).
Our decision in Marsh v. Finley, 160 N.J. Super. 193 (App.Div. 1978), cert. den. 78 N.J. 396 (1978), upon which appellant relies, is inapposite. We found there that the purchase of a Computerized Axial Tomography (CAT) scanner by a private physician for use in his own private practice is expressly excluded from operation of N.J.S.A. 26:2H-2 b. Id. 160 N.J. Super. at 196.
We conclude that Medcor is unquestionably a "facility" subject to the Health Care Facilities Planning Act and we agree with the commissioner that no hearing was required for that determination.
Affirmed.
NOTES
[1]  This appeal was argued before Judges Fritz and Polow. Thereafter, counsel for the parties consented to have Judge Joelson participate without further argument.


5 F.3d 542NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,v.Richard KIRSCHBAUM, Defendant-Appellant.
No. 92-10274.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 16, 1993.*Decided Sept. 1, 1993.

Appeal from the United States District Court for the District of Arizona, No. CR-90-00114-01-AC;  Alfredo C. Marquez, District Judge, Presiding.
D.Ariz.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Before:  CHOY, GOODWIN, and SKOPIL, Circuit Judges.

1
MEMORANDUM**

2
Appellant Kirschbaum appeals from the district court's order directing the Special Master to disburse $60,524.06 in restitution and reimbursing the Master $1,291.62 for his expenses.  We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm in part, vacate in part, and remand for further proceedings.

3
The district court correctly concluded that under the terms of the plea agreement the deadline for submission of claims was six months after receipt of funds, or January 4, 1991.1  Since the Special Master did not keep track of when claims were received, the district court determined that claims dated on or before January 4, 1991 would be considered timely.  Kirschbaum argues that the only permissible claims are those for which the Master has produced postmarked envelopes dated prior to January 4.  However, Kirschbaum, not the Special Master, bore the burden of proving that the plea agreement was breached.  See United States v. Packwood, 848 F.2d 1009, 1011 (9th Cir.1988);  United States v. Verrusio, 803 F.2d 885, 891 (7th Cir.1986).  Since Kirschbaum presented no evidence that the claims dated January 4 or earlier were actually received after January 4, the district court properly considered these claims timely.  While it would certainly have been preferable for the Master to have tracked the receipt of claims, his failure to do so did not breach any provision of the plea agreement.

4
Although we approve the district court's procedure, we are unable to determine how the court arrived at the figure of $60,524.06 as the total amount of permissible claims.2  We therefore vacate this portion of the order and remand for recalculation of the total amount of timely claims, i.e., those dated on or before January 4, 1991.3

5
Kirschbaum also challenges the district court's award of $1,291.62 to the Special Master in partial payment of expenses.  This award is within the maximum for administration costs specified in the plea agreement and is amply supported by the Master's affidavit outlining the services he has performed.  However, we recommend that before further fees are awarded, the Special Master be directed to itemize his expenses and the precise number of hours worked.

6
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

*
 The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument.  Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4

**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

1
 The government argues that the "receipt of funds" never occurred because the amount deposited by Kirschbaum was five cents short of the amount specified in the plea agreement.  Especially since Kirschbaum was apparently never informed of the deficiency, we do not consider such a minor discrepancy to be a breach of the plea agreement

2
 The government has admirably brought our attention to the apparent error in the court's figure, and suggests that the correct figure is $51,522.06.  However, by our calculation based on the Master's report of July 15, 1991, the correct figure appears to be $50,225.18

3
 It is disturbing that many claimants who were told that the deadline was January 31 will receive no restitution because the deadline was actually January 4.  On remand, perhaps the parties can agree to a modification of the plea agreement whereby the appellant would be liable only for the total amount of claims dated on or before January 4, but this total would be distributed pro rata among all of the claims dated on or before the announced deadline of January 31