[00:00:00] Speaker 01:
in February of 2003.

[00:00:05] Speaker 01:
And what Mr. Winder was disclosing is that funds were diverted from the transportation budget.

[00:00:13] Speaker 01:
And the practice had been that because there was a shortage of bus drivers, the bus drivers were discouraged from taking their vacation time because if the drivers were on vacation, there were no substitutes.

[00:00:28] Speaker 01:
There was no backup.

[00:00:29] Speaker 01:
These funds were diverted.

[00:00:32] Speaker 01:
Mr. Weiner told Mr. Erste before Christmas in 2002 that there were serious problems with refusing to pay the bus drivers their accumulated vacation in cash, which had been the practice, and that there was going to be a problem.

[00:00:48] Speaker 01:
He made the similar disclosure, the second to the special master, appointed by the district court.

[00:00:54] Speaker 01:
subsequently he made a number of disclosures indicating that there was going to be a problem, that there was going to be a walkout or some sort of strike or labor action.

[00:01:07] Speaker 01:
Mr. Weiner ultimately made these disclosures to a

[00:01:11] Speaker 01:
committee of the District of Columbia Council explaining in considerable detail exactly what happened and why the disclosures were more than just inadequacies in the pay system.

[00:01:24] Speaker 01:
The disclosures, in this case, involved the failure of Mr. Erste to take any action, even though the problem was on the horizon and Erste's decision to not pay the bus drivers their accumulated vacation.

[00:01:41] Speaker 01:
We submit under the law of the circuit, and particularly under Coleman, that there's a jury question as to whether or not Mr. Winder made protected disclosures during the December, January, and February time period.

[00:02:00] Speaker 04:
So let me ask you, the D.C.

[00:02:02] Speaker 04:
Court of Appeals has taken a view in

[00:02:06] Speaker 04:
familiar with the case of Williams versus DC?

[00:02:09] Speaker 01:
Yes, I am.

[00:02:10] Speaker 04:
All right.

[00:02:10] Speaker 04:
So saying that where there's public knowledge and vocalized public concern, that's not protected.

[00:02:18] Speaker 01:
That's correct.

[00:02:19] Speaker 04:
All right.

[00:02:19] Speaker 04:
So here, why isn't everything your client was talking about

[00:02:27] Speaker 01:
Why doesn't it come within that general concept of scope of the... For example, there was general knowledge that the transportation system wasn't working well.

[00:02:37] Speaker 01:
There was general knowledge that the payroll system was ineffective.

[00:02:40] Speaker 04:
So what new information did he impart?

[00:02:43] Speaker 01:
Number one, the funds were diverted from the transportation budget.

[00:02:46] Speaker 04:
And so why is that an indication of gross mismanagement?

[00:02:50] Speaker 01:
Well, because the reason why it appears the reason why the funds were diverted is because of prior, for example, hiring people for no-show jobs.

[00:03:00] Speaker 04:
And that meant that the... I didn't see that in his disclosure.

[00:03:03] Speaker 01:
Well, this is part of the, I guess, part of the back story, but more to the point... The only thing I saw in the record, and you're more familiar with the record than I,

[00:03:13] Speaker 04:
is that he claimed that certain funds that could have been used for his program, transportation, were diverted elsewhere.

[00:03:26] Speaker 01:
That's correct, Your Honor.

[00:03:27] Speaker 01:
But they weren't diverted to programs that were subject to the terms of the consent order.

[00:03:35] Speaker 04:
Is that clear from what he said?

[00:03:37] Speaker 01:
I believe it was in terms of his discussion of the disclosures, but perhaps more to Your Honor's point.

[00:03:45] Speaker 01:
The issue was, Winder saw that this was creating a problem.

[00:03:50] Speaker 01:
He repeatedly warned Hersey.

[00:03:52] Speaker 04:
But everybody knew there was a problem.

[00:03:54] Speaker 01:
They didn't know that the bus drivers were not going to get their vacation pay.

[00:03:58] Speaker 01:
And they had previously gotten a vacation pay.

[00:04:00] Speaker 01:
The number is approximately 1.2 million is what the vacation pay would have cost the transportation department.

[00:04:09] Speaker 01:
And so there was an implied commitment or understanding that the bus drivers would not take vacation so that they would be available

[00:04:17] Speaker 01:
to transport the children to school.

[00:04:21] Speaker 01:
And what happened is that Winder told Erste and subsequently disclosed this to the council and to the special master.

[00:04:28] Speaker 01:
Winder told Erste there's a problem.

[00:04:31] Speaker 01:
Winder told Erste that this was what was going to happen if he didn't pay the education.

[00:04:37] Speaker 00:
So it seems like this is...

[00:04:39] Speaker 00:
jumbling together a lot of stuff.

[00:04:41] Speaker 00:
It's a little bit hard to keep track of exactly which allegations of misuse go to which statements that were made by Winder through the process, because the way I read it, there's some assertions to the effect that there was a diversion of $1.2 million from a place that

[00:05:00] Speaker 00:
would have been for a particular purpose to a place that is at least open to other purposes.

[00:05:05] Speaker 00:
And then subsequently, there was a question about exactly why there was the so-called sick-out.

[00:05:11] Speaker 00:
And as to that there was testimony in the City Council meeting that there's no record of but there was testimony in the City Council meeting but the way you're talking about it today it makes it seem like that's It's all compacted into one thing that there was a million dollars that was moved out and that would have been the million dollars that was going to be used for vacation pay and that million dollars wasn't there anymore and that led directly to the sick out but then the way the case has been presented so far as

[00:05:34] Speaker 00:
as far as I could tell was not that that was all one seamless course of conduct that was being disclosed.

[00:05:40] Speaker 00:
It said there was an issue about a diversion of funds, and that was the subject of something that Winder made some comments about.

[00:05:47] Speaker 00:
And then there's the question about what led to the sick out, and that was an issue as to which Winder made some comments in the city council meeting.

[00:05:54] Speaker 00:
It didn't seem like they were all together in one seamless course of conduct that was interrelated.

[00:05:59] Speaker 01:
Well, there are two ways to look at it.

[00:06:00] Speaker 01:
We submit number one is that they were all separate disclosures for the purposes of the DCWPA.

[00:06:07] Speaker 01:
But secondly, they're related because the funds were diverted.

[00:06:12] Speaker 01:
Weiner told Ersteed, there's a problem.

[00:06:13] Speaker 01:
You've got to do something about it.

[00:06:16] Speaker 01:
And he subsequently took it.

[00:06:18] Speaker 03:
Before you go any further with that, Winder,

[00:06:22] Speaker 03:
Winder told him there was a problem, and you have to do something about it.

[00:06:27] Speaker 03:
But did he tell him that if he doesn't pay the vacation pay, it's going to cause a labor problem?

[00:06:37] Speaker 01:
Yes, he did.

[00:06:38] Speaker 03:
Where did he do it?

[00:06:39] Speaker 03:
I know you say that in your brief, but I can't find it in the record.

[00:06:43] Speaker 01:
Well, in the Winder's 2013 declaration, we provide a lot more detail.

[00:06:51] Speaker 03:
Well, in the 2013, is that what you're talking about, the 2013 affidavit?

[00:06:59] Speaker 03:
Yeah.

[00:07:02] Speaker 03:
He says only that Ernst diverted the money.

[00:07:08] Speaker 03:
Ernst refused to pay the overtime.

[00:07:11] Speaker 03:
I mean, the vacation pay.

[00:07:12] Speaker 03:
He doesn't say that he warned him that if he didn't pay, there would be a labor problem.

[00:07:19] Speaker 03:
I don't see that in there.

[00:07:20] Speaker 01:
I think when the court considers the 2013 affidavit, that's one of my answers.

[00:07:25] Speaker 01:
That's what I'm looking at right now.

[00:07:27] Speaker 03:
I'm asking about the 2013 affidavit.

[00:07:30] Speaker 03:
I mean, I can understand your argument.

[00:07:32] Speaker 03:
If there was evidence that he said to Erst, hey, look, if you don't pay this, these guys are going to walk out and we're going to have a big problem.

[00:07:39] Speaker 03:
And Erst ignored that.

[00:07:41] Speaker 03:
You know, then you might be getting close to something here, but according to the record, as opposed to your brief, all I can find, and if I'm missing it, tell me, all I can find is that he disclosed to the council that it was Earth's decision not to pay the accrued vacation fee.

[00:08:04] Speaker 03:
That's all.

[00:08:05] Speaker 01:
Well, just in terms of Weiner's response, he disclosed to the council that what was really going on is that the funds were diverted, and this was causing the labor problem, and that he tried to warn first aid.

[00:08:19] Speaker 03:
You keep saying that.

[00:08:20] Speaker 03:
I'm asking you where in the record in the declarations or interrogatories there is that evidence.

[00:08:27] Speaker 03:
I know you say it in your brief, but I can't find it in the record.

[00:08:31] Speaker 03:
And the one site you have to the record

[00:08:34] Speaker 03:
is you cite at page 29, this is of your brief, you cite an interrogatory, but that interrogatory doesn't have anything to do with the issue.

[00:08:48] Speaker 03:
By the way, which is typical of a lot of your record sites in the brief, it was very difficult to work with this.

[00:08:54] Speaker 03:
Many of your citations to the record are inaccurate.

[00:09:01] Speaker 03:
So not a good idea to

[00:09:03] Speaker 03:
annoy our law clerks.

[00:09:06] Speaker 01:
I apologize for the order.

[00:09:10] Speaker 01:
Our understanding of the record is that between the answers to interrogatories, the supplemental answers that were... Okay, but you can't cite anything to me now.

[00:09:18] Speaker 03:
Maybe on your rebuttal you'll point that out to us.

[00:09:21] Speaker 01:
I'll do that.

[00:09:22] Speaker 03:
Okay, let me ask you one related question about that.

[00:09:25] Speaker 03:
I'm not familiar with the Petty litigation, or at least I haven't been for years.

[00:09:31] Speaker 03:
Are there any orders?

[00:09:33] Speaker 03:
As I understand it, that case, as you said when you stood up, was designed aimed to make sure the district got bus drivers out on time, right, that they were on the street when they needed to be, that the system ran.

[00:09:47] Speaker 03:
Were there any orders in Petty requiring DCPS to pay to add funds to the transportation budget or to spend it in a particular way?

[00:09:55] Speaker 01:
The orders and petties established the 23 standards, including the maximum amount of time.

[00:10:02] Speaker 01:
For example, the students are supposed to be in the bus.

[00:10:04] Speaker 03:
I know.

[00:10:05] Speaker 03:
Was there anything about funding?

[00:10:08] Speaker 03:
Nothing.

[00:10:09] Speaker 03:
I don't remember the case as being about funding.

[00:10:12] Speaker 03:
The district had a lot of money.

[00:10:14] Speaker 03:
It was just a problem of gross incompetence, correct?

[00:10:18] Speaker 01:
I think it was more than that.

[00:10:19] Speaker 01:
I think it was an unwillingness to comply with the consent orders.

[00:10:22] Speaker 03:
That's fine, too.

[00:10:23] Speaker 03:
But my question is, are you aware of any orders where the district was ordered to increase the amount of funding for specialty transportation or to suspend it in any particular way?

[00:10:37] Speaker 03:
I'm not, and I'm just wondering whether you are, because it relates to your claim about the diversion of the $1.2 million.

[00:10:45] Speaker 03:
I mean, if Petty's is not about money, it's hard to see how a judgment to move a million dollars from one education account to another could be evidence of gross mismanagement.

[00:10:58] Speaker 01:
Well, the issue with respect to moving the money is that the transportation department was under a consent order, and in moving the money, what the effect of this was

[00:11:12] Speaker 01:
was to lead to the labor stoppage in January of 2000.

[00:11:17] Speaker 03:
And again, where is the evidence that

[00:11:21] Speaker 03:
Where is the evidence?

[00:11:22] Speaker 03:
I think Judge Srinivasan asked you the same question.

[00:11:25] Speaker 03:
Where is the evidence in the record that connects these two things?

[00:11:28] Speaker 01:
Part of the evidence is in Winder's description of what happened.

[00:11:31] Speaker 01:
Part of the evidence is in the temporal relationship and the fact that he had talked with all the bus drivers and they had had a previous understanding that the bus drivers would be paid

[00:11:43] Speaker 01:
their accumulated vacation paying cash and this was the practice that DCPS had followed in terms of making sure that they could have enough bus drivers available to pick up the kids and to take them home.

[00:11:59] Speaker 01:
And so it was the act of policy to discourage any of the

[00:12:03] Speaker 01:
the bus drivers from actually taking a vacation that they approved.

[00:12:07] Speaker 01:
They'd gotten a waiver in prior years to allow the payment of cash of the accumulated vacation pay to the bus drivers and that that's what they planned to do in 2002.

[00:12:19] Speaker 01:
Erste decided that he knew he was not going to do that.

[00:12:23] Speaker 01:
He was going to

[00:12:24] Speaker 01:
a break with past practice and not pay the bus drivers in cash, which ultimately led to the walkout of the bus drivers who had been expecting to have the money, essentially, to pay for it, to fund their purchase of Christmas gifts.

[00:12:43] Speaker 01:
And when I come back up here, I can try and locate a more precise citation.

[00:12:53] Speaker 01:
Thank you.

[00:13:04] Speaker 02:
Good morning, and may it please the Court, Carl Schifferle for the District of Columbia and Lewis-Hirstie.

[00:13:10] Speaker 02:
Let me jump right in where we were on the merits of the whistleblower claim.

[00:13:15] Speaker 02:
First of all, I would point out the requirement that in evaluating a protected disclosure, you look at the disclosure itself, what was actually said, rather than a subsequent characterization

[00:13:27] Speaker 02:
of that disclosure and litigation.

[00:13:30] Speaker 02:
I think that is particularly pertinent given the argument here today.

[00:13:34] Speaker 02:
There is, for example, no link between the link actually in the record or below that between this issue of reallocation of funds and his testimony at the council hearing about the driver's sick out.

[00:13:51] Speaker 04:
So no reasonable inference?

[00:13:55] Speaker 02:
No, no, I don't think there's a reason for inference.

[00:14:00] Speaker 02:
But then, as I said, it's not how we might characterize it in litigation.

[00:14:05] Speaker 02:
It's what the actual content of the disclosures were at the time and what the evidence shows those to be.

[00:14:12] Speaker 02:
And there is no evidence supporting such a link.

[00:14:16] Speaker 04:
So even if there's a temporal link, that would not be enough?

[00:14:23] Speaker 02:
Right, right.

[00:14:26] Speaker 02:
Because the testimony about the reallocation of funds is itself very vague.

[00:14:34] Speaker 02:
It doesn't indicate any impact whatsoever from that reallocation of funds.

[00:14:38] Speaker 02:
And as we pointed out, there was no impact because the transportation division could spend money as needed.

[00:14:45] Speaker 02:
And in fact, that's what it did in fiscal year 2002.

[00:14:48] Speaker 02:
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.

[00:14:57] Speaker 02:
There was no misuse of these funds.

[00:15:01] Speaker 02:
They were spent on other educational priorities within D.C.

[00:15:06] Speaker 02:
public schools, so this is not a situation where there's a gross

[00:15:10] Speaker 02:
misuse or waste of funds simply because funds are used on one educational priority rather than another.

[00:15:16] Speaker 02:
If Mr. Winder has a disagreement about that, that's just a mere difference of opinion.

[00:15:20] Speaker 02:
It's not a disclosure of gross mismanagement or a misuse or waste of funds.

[00:15:26] Speaker 02:
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 funds.

[00:15:38] Speaker 00:
What about the City Council meeting?

[00:15:40] Speaker 02:
So with respect to the City Council meeting, the evidence shows that what he disclosed was already well known publicly, these issues with driver absenteeism and

[00:15:57] Speaker 02:
payroll problems for the drivers and leave balances and so forth.

[00:16:02] Speaker 02:
This was already well known publicly, reported in the press.

[00:16:05] Speaker 00:
It would be surprising to me if that were really the law, that as long as there's some general set of issues that's generally publicly known, that somebody brings to light a specific instance that, you know, in some sense might be a manifestation of that.

[00:16:18] Speaker 00:
But as a particular instance that, and let's just suppose for these purposes that it raises some serious questions about that particular instance,

[00:16:25] Speaker 00:
that the law would be that, well, that doesn't matter.

[00:16:27] Speaker 00:
Because generally, people kind of understood that there was a problem in this area.

[00:16:31] Speaker 00:
So we're not going to protect someone who comes forward and says, I saw a particular instance of this that really raised some issues.

[00:16:35] Speaker 00:
You all ought to be aware of it.

[00:16:37] Speaker 00:
Is that really the law?

[00:16:38] Speaker 00:
That seems to be surprising to me.

[00:16:40] Speaker 02:
Well, no, I recognize your point.

[00:16:41] Speaker 02:
If it's at a very general level, and then someone comes forward with something specific that might highlight something that is truly independent and unknown.

[00:16:52] Speaker 00:
No, not independent.

[00:16:53] Speaker 00:
not independent, because it's the same course of conduct.

[00:16:57] Speaker 00:
It's that, yeah, there's all kinds of management issues in this program.

[00:17:00] Speaker 00:
And you can get it at any specific level of detail.

[00:17:04] Speaker 00:
But then we have a new instance.

[00:17:06] Speaker 02:
Yeah, maybe I should have said new and different rather than independent, even if it falls under the same general rubric.

[00:17:11] Speaker 02:
I mean, we do cite the Bowman case from this court, the Williams versus District of Columbia case from the DC Court of Appeals.

[00:17:18] Speaker 02:
And those support the general principle that I was arguing, that where it is already publicly known.

[00:17:23] Speaker 02:
That is not a disclosure, but to address the arguably new information that Mr. Winder disclosed at the council hearing about the reported reason for the sick out.

[00:17:39] Speaker 02:
I guess first of all, there's no evidence that – of these additional characterizations that were presented here today that Mr. Weiner warned Erskine that this was going to be a problem and that a sick-out would result.

[00:17:52] Speaker 02:
There's no evidence of that in the record.

[00:17:56] Speaker 02:
I would also note that it is not a disclosure of gross mismanagement or any other protected category under the Act.

[00:18:05] Speaker 02:
First of all, he presents no objectively reasonable basis for his belief that the failure to pay the accrued leave was the cause for the driver's sick out.

[00:18:15] Speaker 02:
There's no evidence in the record what basis he had for this belief.

[00:18:20] Speaker 02:
The Washington Times article that reported on it gave the

[00:18:25] Speaker 02:
you know, the recurring issues in the past that there were payroll problems that inaccurate leave balances, no mention of this being a reason.

[00:18:35] Speaker 02:
And in fact, the drivers themselves denied that it was the sick out that they

[00:18:40] Speaker 02:
the claim was that they were actually sick, so there's no evidence in the record indicating why Mr. Weiner would have them checked.

[00:18:47] Speaker 00:
Well, it wouldn't be terribly surprising that they said that they were sick given the circumstances.

[00:18:50] Speaker 00:
Right, right.

[00:18:51] Speaker 02:
I recognize that, but my point only is I'm trying to show that

[00:18:56] Speaker 02:
that there's no objectively reasonable basis in the record.

[00:18:59] Speaker 00:
Is there no evidence, I don't know the answer to this, is there no evidence from, is there no testimony by Winder himself that the way he gained this knowledge is by talking to the people?

[00:19:09] Speaker 02:
There's no evidence whatsoever.

[00:19:14] Speaker 02:
Even then, even assuming it were otherwise, there is no evidence that this would have constituted gross mismanagement.

[00:19:21] Speaker 02:
The drivers did not have an entitlement to payments of accrued leave at the end of the year.

[00:19:26] Speaker 02:
In fact, the transportation division manual, which is in the record, as well as the personnel regulations specify that.

[00:19:35] Speaker 00:
So let's suppose, just for argument's purposes, that there's at least an issue

[00:19:41] Speaker 00:
on whether this was in fact improper to cut off this funding to which the drivers apparently had grown accustomed.

[00:19:50] Speaker 00:
Let's just stipulate that maybe that there was every entitlement, that there was every right to do that, to cut that off, and so the drivers didn't in fact have entitlement to this.

[00:20:00] Speaker 00:
But if the head of the program comes to the supervisor and says, look,

[00:20:04] Speaker 00:
I don't know if this is right or wrong, what you're planning to do, but I'm just going to tell you, this is going to cause upheaval.

[00:20:09] Speaker 00:
We're under a decree to make sure that we don't have a problem with transportation in this area.

[00:20:14] Speaker 00:
I'm just going to tell you that if we do this, this is going to be a big, big problem.

[00:20:18] Speaker 00:
And then the supervisor just says, ah, no entitlement, too bad.

[00:20:22] Speaker 00:
I'm walking away.

[00:20:23] Speaker 00:
It seems to me like that could be gross mismanagement, just based on the lack of any reaction, independently of whether it was, in fact, ultimately proper to do.

[00:20:31] Speaker 02:
No, assuming all those assumptions, I would still disagree that that would be gross mismanagement, because what you have is a reasonable disagreement.

[00:20:41] Speaker 02:
Reasonable people could disagree on whether employees who are not entitled to this pay should nevertheless be paid it just because it happened a year before or two years before.

[00:20:52] Speaker 00:
You also have... I'm not talking about whether they should be paid it.

[00:20:55] Speaker 00:
I'm talking about the reaction that they're going to... Even if the reaction is wrong,

[00:20:58] Speaker 00:
If they're just wrong to think we should be paid this, if the alert that's raised is, yeah, look, it may be true that they have no entitlement to this.

[00:21:08] Speaker 00:
I'm just telling you, they think they do.

[00:21:10] Speaker 00:
And unless we do something about it, they're not going to provide transportation on these days.

[00:21:14] Speaker 00:
It's going to cause a problem for these kids.

[00:21:16] Speaker 00:
And the supervisor just says, ah, yeah, well, they're not entitled to it.

[00:21:20] Speaker 00:
I don't care.

[00:21:22] Speaker 02:
Well, that might be a disclosure of something that might be important for a supervisor to know, but that's not the test under the Whistleblower Protection Act.

[00:21:30] Speaker 02:
It has to fall under a particular category.

[00:21:32] Speaker 03:
I have to say, having read your brief, I don't understand your response to Judge Sridharvasan.

[00:21:37] Speaker 03:
I would have thought you would say, yes, you're absolutely right.

[00:21:41] Speaker 03:
That would be a protected disclosure that would show gross mismanagement.

[00:21:50] Speaker 03:
But are you, in refusing to say that, are you agreeing with his characterization of the record, namely that Winder said to Hearst, you know, look, I don't know whether they're entitled to this or not, but I guarantee you if you don't pay it, we're going to have a big labor strike, we're going to have a mess, and he ignored that?

[00:22:11] Speaker 02:
Is that?

[00:22:11] Speaker 02:
But my position is that that is not the evidence in the record.

[00:22:15] Speaker 03:
Oh, why didn't you answer the question that way?

[00:22:18] Speaker 03:
Is that your answer?

[00:22:19] Speaker 03:
I mean, that's the question I asked your counsel for a plaintiff.

[00:22:26] Speaker 03:
He said he would look up whether there was such evidence in the record.

[00:22:32] Speaker 02:
Do you know whether there is any?

[00:22:35] Speaker 02:
There is no evidence.

[00:22:35] Speaker 02:
I've looked at the record carefully.

[00:22:37] Speaker 02:
Perhaps I missed something because of the poor citation to the record, but no.

[00:22:42] Speaker 02:
No evidence in the record.

[00:22:43] Speaker 02:
So that was my... I was assuming a hypothetical in answering Judge Sveta Boston's question, and I didn't mean to concede anything about the state of the evidence in the record.

[00:22:53] Speaker 02:
Because, yeah, that evidence does not exist.

[00:22:56] Speaker 03:
Because the answer to this question has to be right.

[00:22:57] Speaker 03:
I mean, that would clearly be evidence of gross mismanagement under the facts he gave you.

[00:23:06] Speaker 03:
It's hard for me to see how you could resist that.

[00:23:09] Speaker 02:
Well, because it has to fall within one of the protected categories of the act.

[00:23:14] Speaker 02:
Gross mismanagement has to be something that there could be no serious dispute.

[00:23:21] Speaker 02:
Reasonable people could not disagree about

[00:23:24] Speaker 02:
a management action.

[00:23:26] Speaker 02:
And the question is, well, what do you do in this situation?

[00:23:28] Speaker 02:
I think reasonable people could disagree about how to handle that.

[00:23:32] Speaker 03:
Let me ask you a different question.

[00:23:34] Speaker 03:
In your brief, you argue we don't have to get to any of this at all, right?

[00:23:37] Speaker 03:
Because the district court should not have reinstated the whistleblower claims.

[00:23:40] Speaker 02:
Correct, Your Honor.

[00:23:41] Speaker 02:
I'm happy to address that.

[00:23:42] Speaker 03:
Well, yeah, that's why I asked the question.

[00:23:44] Speaker 03:
OK.

[00:23:46] Speaker 03:
In response, you say in your brief, look, we have a judgment, and it's been affirmed on appeal.

[00:23:53] Speaker 03:
The district court has an interest in that.

[00:23:58] Speaker 03:
The reply brief says, well, wait a minute, it's not a final order.

[00:24:01] Speaker 03:
This case is still ongoing, and therefore this new law can be applied to reopen the case.

[00:24:09] Speaker 03:
What do you think about that?

[00:24:11] Speaker 02:
No, because there was a final order that dismissed the whistleblower claims.

[00:24:16] Speaker 02:
It was appealed to this court.

[00:24:18] Speaker 02:
This court affirmed the dismissal of the whistleblower claims.

[00:24:20] Speaker 02:
So there is a final judgment as to the whistleblower claims.

[00:24:26] Speaker 03:
Have you found a case on that point?

[00:24:28] Speaker 03:
I haven't.

[00:24:29] Speaker 03:
I'm just curious.

[00:24:30] Speaker 03:
Do you know of a case where, I mean, obviously,

[00:24:36] Speaker 03:
If the district court agreed on a final judgment in the entire case, and it went up and got affirmed, I don't think anybody would argue that the new law could be applied retroactively.

[00:24:47] Speaker 02:
Right.

[00:24:48] Speaker 03:
So the question is, is there something about the fact that it isn't felt?

[00:24:59] Speaker 03:
This is only part of the case.

[00:25:01] Speaker 03:
Do you know of a case that covers that issue?

[00:25:05] Speaker 02:
No, I don't have a particular case to cite, but I don't think that mere happenstance should make a dispositive difference.

[00:25:12] Speaker 02:
If we agree that if the case were closed, it would not retroactively apply, I don't see why the mere happenstance that there are other unrelated claims that happen still be going on would make a difference.

[00:25:22] Speaker 00:
The happenstance would make a difference in many directions because it's a mere happenstance that the timing worked out so that

[00:25:28] Speaker 00:
that a firmness would have happened before the law changed.

[00:25:31] Speaker 00:
I mean, there's all kinds of happenstances that you could imagine.

[00:25:33] Speaker 00:
So I don't understand why that's the case.

[00:25:35] Speaker 02:
But that latter happenstance created a judgment that created settled expectations.

[00:25:42] Speaker 02:
So it's not the happenstance of the timing of the amendment.

[00:25:49] Speaker 00:
I'm not clear what the expectations are, because if the case is still going to go forward on other claims that arise out of the same facts,

[00:25:55] Speaker 00:
You know, so it turns out that there's a related claim that arises out of the same facts that now springs to life because the law has changed.

[00:26:03] Speaker 02:
Right.

[00:26:04] Speaker 02:
But you have that judgment, that order of dismissal that's been affirmed by this court of the whistleblower claims in their entirety.

[00:26:13] Speaker 00:
But I think it's just a question of characterization.

[00:26:15] Speaker 00:
And I think this goes to the heart of Judge Tatel's question, which is that it's true that if there were, in fact, a final judgment, that everybody agrees that at the time that everything congeals into a final judgment, finality considerations come into place so that we don't ordinarily assume a new law affects something that's already been final.

[00:26:31] Speaker 00:
But generally, the way we think about cases is, as long as there's a claim that's alive, the case keeps going.

[00:26:37] Speaker 00:
And for example, suppose it had never gone up to an appeal, and the district judge resolves this claim, and he's done with it.

[00:26:44] Speaker 00:
I'm done with this claim.

[00:26:44] Speaker 00:
I'm only going forward on remaining claims.

[00:26:46] Speaker 00:
You could say, well, that part of the case is over.

[00:26:49] Speaker 00:
everything else continues and then the law changes and it allows the dismissed claim to come back to life.

[00:26:54] Speaker 00:
I think I don't think anybody would be claiming that the new change doesn't apply to the claim that's already been dismissed in quotes by the district judge.

[00:27:02] Speaker 02:
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.

[00:27:11] Speaker 02:
I mean I would also point out to the Mayo decision from the DC Court of Appeals which I think is

[00:27:15] Speaker 02:
Analogous there, the case was still open in some respect.

[00:27:18] Speaker 02:
In fact, more so than here, because it was on direct review.

[00:27:22] Speaker 02:
And the DC 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.

[00:27:32] Speaker 02:
I think the Mayo case is persuasive authority.

[00:27:36] Speaker 02:
Well, I shouldn't say persuasive authority.

[00:27:39] Speaker 02:
It is a question of statutory interpretation of district law, and that should be applied here.

[00:27:46] Speaker 02:
Unless there are further questions.

[00:27:50] Speaker 02:
Thank you.

[00:28:00] Speaker 01:
Judge Tatel, I just briefly looked through the 2013 declaration, and I'd like to draw the following paragraphs to your attention and the attention of the court.

[00:28:12] Speaker 01:
I have the citation to the district court docket number.

[00:28:17] Speaker 01:
I do not have handy a citation to the appendix that I can... Well, are these sites you're about to give us in the joint appendix?

[00:28:25] Speaker 03:
Are these sites you're going to give us in the joint appendix?

[00:28:29] Speaker 01:
Yes, they are.

[00:28:31] Speaker 03:
But you don't have those sites?

[00:28:32] Speaker 01:
I don't have the paid site to the joint appendix.

[00:28:34] Speaker 01:
I have the site to the district courts, uh, pleading a document number 210-1.

[00:28:41] Speaker 04:
What paragraphs do you want us to focus on?

[00:28:45] Speaker 01:
18, 20, 22, 24,

[00:28:53] Speaker 01:
52 where Winder talks specifically about the disclosures that he made to the D.C.

[00:29:00] Speaker 01:
Council.

[00:29:01] Speaker 04:
And so are you suggesting that if we read those paragraphs in light of your discussion this morning that we will see the link?

[00:29:10] Speaker 01:
Yes, Your Honor.

[00:29:11] Speaker 03:
Well, more specifically, could you just read me your best example of where he says to Erst, if you don't

[00:29:20] Speaker 03:
These guys aren't going to show up.

[00:29:22] Speaker 03:
If you don't pay these guys their accrued vacation, they aren't going to show up.

[00:29:25] Speaker 03:
We're going to have a disaster.

[00:29:27] Speaker 03:
And he ignored that.

[00:29:28] Speaker 03:
Just give me your best.

[00:29:30] Speaker 03:
Don't read them all to me.

[00:29:31] Speaker 03:
Just the best one.

[00:29:34] Speaker 01:
In paragraph 18, Winder says, in my testimony, I explained that the strike occurred because the bus drivers did not receive checks for accrued vacation they expected to receive.

[00:29:48] Speaker 03:
Okay, we know that, but where did he say, I told Hearst that if he didn't pay the accrued.

[00:29:55] Speaker 01:
This was in the context of what he told the council.

[00:29:59] Speaker 01:
So it's not specific to what he, precisely what he told us.

[00:30:02] Speaker 03:
But that's your best one that you just cited?

[00:30:04] Speaker 01:
Well, in paragraph 2022, Ersdy Winder says part of the reason the bus drivers didn't receive

[00:30:15] Speaker 01:
application checks is that early in the year, Erstea abruptly and secretly decided he would not pay the accrued leave and the Christmas paychecks.

[00:30:24] Speaker 01:
So bus drivers would not be able to to elect to be paid cash in lieu of taking off.

[00:30:30] Speaker 04:
I don't have any questions.

[00:30:34] Speaker 01:
And just on the question of the applicability of the amendment of the 2009 amendment to this case, I think it's probably indistinguishable from this court's decision of Williams, but perhaps more to the point, there is no cross appeal by the district.

[00:30:51] Speaker 01:
And secondly, the

[00:30:52] Speaker 01:
district in its opposition to what was captioned as plaintiff's motion for reconsideration of the whistleblower claims waived the argument.

[00:31:03] Speaker 01:
They never challenged the decision of the district court.

[00:31:06] Speaker 01:
They never challenged the jurisdiction of the district court to address squarely the issue of the applicability of the 2009 amendment of the WPA to this case.

[00:31:18] Speaker 04:
Well, they didn't raise certain issues, but they did raise retroactivity.

[00:31:23] Speaker 04:
They did not, the district did not raise certain issues, but it did raise the question of retroactivity.

[00:31:30] Speaker 01:
Yes, they did challenge that.

[00:31:31] Speaker 01:
They challenged the merits of the issue.

[00:31:35] Speaker 01:
And I would respectfully submit that that was an issue that was decided by this court in Williams earlier this year.

[00:31:43] Speaker 04:
Anything further?

[00:31:44] Speaker 01:
No, Your Honor.

[00:31:45] Speaker 04:
Thank you.

[00:31:45] Speaker 04:
We'll take the case under advisement.