three in february of two thousand and three and what mr weiner was disclosing is the funds were diverted from the transportation budget and the practice   been the practice and that there was going to be a problem he made a similar disclosure of the second to the special master point and by the district court subsequently he made a number of disclosures indicating counsel explaining in considerable detail exactly what happened and why the disclosures were more than just the inadequacies in the pay system the disclosures in this case involved  that claim that certain fun that could have been used for his program transportation were diverted elsewhere that's critical but there were diverted which allegations of misuse go to which statements that were made by weiner in the process because the way i read there's this there's some assertions to the fact that there was an aversion to one point two million dollars was testimony in the city council meeting that there's no record but there is testimony it's a city council meeting but the way we're talking about today makes it seem like that's it's all packed into one thing there was a million dollars that was moved out and that would have been a million dollars it was going to yes or vacation pay here he he says oh only he says only that ernst diverted the money erst refused to pay the oversight i mean the vacation pay he he doesn't say that he it in your brief but i can't find it in the record and the one site you have to the record is on the site at page twenty nine this is of your of anything to do with the issue by the way which is typical of a lot of your record cites in the brief it was very difficult to work with this many of your  the twenty three staters including the maximum amount of time for example the students are supposed to be in the bus i know who was there anything about about funding nothing i don't i don't remember the case as being about funding the district had a lot of money it was just a problem of gross incompetence correct i think it was more though there was a little willingness to comply with the concern orders that's fine too but my question is whether you are you aware of any orders where  the district was ordered to increase the amount of funding for special special ed transportation or suspended in any particular way i'm not that i'm just wondering whether you are because it relates to your claim about the diversion part of the evidence isn't why there's a description of what happened part of the evidence in the in the temporal relationship and the fact that the top of all the bus drivers of and they have had a previous understanding that the bus drivers would be good morning to may please the court car share for leave for the district of columbia and was seriously let me jump right in where we were on the merits of the whistleblower quain first of all i would point out the requirement that in  today there is for example no wink between the link actually in the record or below that between this issue of reallocation of fines and his testimony of the counsel hearing about the  fake it doesn't indicate any impact whatsoever from that reallocation of funds and as we've pointed out there was no impact because the transportation division could spend money as needed and in fact that's what it did fiscal year two thousand two with went well over what was budgeted but there was no obstacle to doing so and that was the evidence that the transportation division could spend money as needed there was no misuse of these fines they were spent on ed educational priorities within d c public schools so this is not a situation where there's a gross misuse or waste of funds simply because funds are used on one educational priority rather than the other if mr weiner has a disagreement about that that's just a mere difference of opinion it's not a disclosure of gross mismanagement or a misuse or a waste of funds it would have to be a serious and unquestionable error that was being committed and that's not what the evidence shows in this particular case with regard to the allocation or reallocation of fines what about the city council and so with respect to the city council meeting the evidence or the yes the average says that what he disclosed was already well known publicly these issues with driver absenteeism and payroll problems for the drivers and we've balances and so forth this was already well known publicly reported in the press and then just it would be surprising to me that really the law as long as there are some general said issues that's generally publicly known and somebody brings to light a specific instance that you know in some sense might be a manifestation of about the reported reason for the sake of the for the sake of out i guess first of all there's no evidence that of these additional characterizations that were presented here today  or or any other protected category under the act first of all he presents no objective we reasonable basis for his belief that the failure to pay the crew leave was the cause for the driver sickout there's no evidence in the record what basis he had for this what we call the washington times article that reported on it gave the you know the recurring issues in the past that there were payroll problems that inaccurate balances no mention of this being a reason and in fact the drivers themselves that nod that it was the sick out that they the claim was that they were actually sex so there's no evidence in the record indicating why were otherwise there is no evidence that this would have constituted gross mismanagement of the drivers did not have an entitle meant to payments of recruit leave at the end of the year in fact the transportation division manual which is in the record as well u know i just you know assuming all those assumptions i would be i would still disagree with that that would be gross mismanagement because what you have is is a reasonable disagreement reasonable people could disagree on whether employees or not entitle to th paid it just because it happened a year before two years before you also have i'm not talking about whether they should be paid i'm talking about the reaction that they're going to even the reaction is wrong if they're just wrong to think we should be paid it if the alert that's raised is yellow it may be true that they have no entitle to this i'm just telling you they think they do and unless we do something about it they're not going to provide transportation on these days it's going to cause a problem having or having read your brief i don't understand your response to judge treated us and i would have thought you would say yes you're absolutely right that would be just a protect disclosure that would show gross mismanagement but are you are you in in refusing to say that or you agree with his characterization of the record namely that we endure said to erst you know look i don't i don't know whether they were entitle to this or not but i guarantee you if you don't pay it we're going to take a labor strike we're going to mass and he can order that is that but my position that that is not the evidence in the record oh it was always  has to be something that you know that there could be no serious dispute reasonable people cannot disagree about a management action and the question is well what do you do in this situation i think reasonable people could disagree about how to how to handle that let me ask you different question in your brief you argue we don't have to get to any of this at all right because a district court should not have reinstated the whistleblower claims director on how to dress that will be s y s question ok what  is that it's true that if there were in fact a final judgment that everybody agrees that at the time that everything congealed into a final judgment finality considerations come into place of that we don't ordinarily assume a new law something that's already been final generally the way we think about cases that part of the cases over everything else continues and then the law changes and allows the dismissed claim to come back to life i think i don't think anybody would be claiming that the new change doesn't apply to the claim it's already been dismissed imposed by the district  perhaps but in that situation there has not been a judgment in the sense that there was a final order that was appealable which is what exists in this case i mean i would also point out for the major decision from these court of appeals which i think is and now i guess they're the case was still open in some respects in fact more so than here because it was on direct review and the d c court of appeals says we're not going to go back and apply this law retroactively to a claim that's already been processed and decided no cross appeal by the district and secondly the district in its opposition to what was captioned as plain as motion for reconsideration of the whistleblower claims with the argument they never challenge the