if if eight requirement a binding requirement is authorized for the for the board to require does the fact that it also did a recommendation under two o five can no longer be a requirement no your honor i don't think the fact that it was submitted during the middle of the year as a two are by recommendation means it can't be to be included in our fiscal plan so the whole argument then we ray and figure out do they have the power to do that you are civil war and i think is the wrong place to look as to whether something can be binding because to go one does not have a self and forcing mechanism there's actually a specific section of courts spent most of the time of my brother counsel nothing authorizes the governor to characterize and prove it isn't a fiscal plan as a recommendation that he is then free to reject one k it is one of the requirements in the section and two there won't be the board therefore the problem is what is appropriate to include in the fiscal plan and that that certification you have a communication and then perhaps they will concede this perhaps and he and the board pick say it's going to be seventy five dollars but what you've done now is put in the budget or a fiscal plan for a year run a preemptive announcement shall be seventy five dollars for the next year and so i think one of the arguments i hear is that you're skipping the process that would normally play out with  that is the argument i think you characterize the argument correctly from my brother i don't agree that there's a skipping of the process this is part of the process that congress and blues and i can get to the budget section in compliance with the budget i don't think that that and now our system with the budgetary sections and compliance with the budget sections of committees but what i would say several things st of all the automatic budget cut if you is not necessarily before  some of the briefing these were no recommendations that were made under to all five this is the governor's characterization of the provisions in the fiscal plan as recommendations and the determination by the governor that these recommendations in his view could be rejected by the government if the governor as you are cronies allows the governor to determine what is a vacuum in dates and then almost commonwealth so that that i think that proves too much it seems to me that that would only be true if recommendation versus requirement of the fiscal plan are mutually exclusive which is that the point that we were trying to get out with your brother earlier in the week at least i don't understand why we're talking about two or five the question is whether the board has the authority to impose these requirements right you know it may be the board may think it's a good idea to enact certain legislation that will have some indirect effect on budgeting in the future but it may be so far removed that it wouldn't be appropriate to include it in a fiscal plan that still could be a school and that is the subject of this particular piece of litigation was a recommendation and the court the district court appropriately concluded that the while the language that the board the fiscal plan but it believed in that instant that the repeal he was a good idea that is a recommendation that was not mandated on the government and in this complaint in the district court's decision in evaluating a motion to should implement but they're not mandated but when the when the board uses mandatory language it does have the a school to hold is what the government or someone else may argue is a recommendation on a government and that recommendation becomes mandatory if mandatory language is used in the fiscal plan by the board can i ask you another question it's on a different topic with respect to this  university and a few other smaller agencies where you could essentially have no year appropriations or appropriations that last at least at least three years i think in your briefing you  suggest or state that there are there aren't even actual funds that have been identified that would otherwise lapse to the general fund but for that provision so what are we talking about here i mean how much money i mean i don't i don't quite understand exactly what's going on with that i think that's an excellent point your honor and it's not clear how much money we're talking about it's not clear where the reprogramming money even comes from the government was on used in a prior unit or is a mystery to the board but do you take that government and given its response in the reply brief do you take it to also be saying that even an unfunded appropriation would be allowed to be extended into a future year without without a funding source that does to be government's position it should have the right to do precisely that but it's it also your view that they've conceded that is at best a more for the cement precisely the problem for the border there's never been any identification of money that would be reprogramming that would be available to use and a current budget year  any any power can reprogram money from prior years is suspended and what the judge swain said in the district court you didn't need to do that because that is actually preempted and so we are dealing with a concrete issue in terms of is there money were cocking about as a concrete issue if the government tried to do it or the government tried to reprogram the board is taking the position that your ability to reprogram i'm after the sort of occasion of the new fiscal plan and in acting or on implementing joint resolutions that allow for reprogramming my brother's move to dismiss the hearing on that motion to dismiss thank you thank you that was made by the board it was rejected by and by the by the