the issue before the court is the agency's statutory authority under thirty u s c section eight one five which we refer to as such a moral five say we are familiar with it why are interest why we have jurisdiction absolutely your honor both parties have conceded that the court has jurisdiction and the secretary and cal portland both contend that jurisdiction exists in two fashions won that the temporary reinstatement order is a final agency action that conclusively resolves that issue meaning temporary reinstatement second that the collateral order doctorin also provides jurisdiction because the temporary reinstatement order conclusively resolves that issue there would be no appeal ability of that issue if we were not allowed to appeal the order of the order wrong yes your honor if in fact that's the one that i primarily made extraordinary the issue at hand is extraordinary remedy a kin to a preliminary injunction that provides appellate jurisdiction when that when you've exhausted the administrative remedies on that issue going to the collateral order basis this eleventh circuit case jim walter resources in footnote for this supreme court case that said and it's in a different proceeding was already completed and i'm just i don't i haven't looked at that case it's a different statute brock versus roadway express but what's your position about if we don't exercise jurisdiction now and after the merits are reached in december whether we could review the legitimacy of the temporary reinstate that that issue is addressed i believe also by the dissent in cooper natural resources which we cite on this case and these the issue is is does this become mo when we have a final determination because when that happens the temporary reinstatement order will cease to exist in one way or another he will either be replaced by a final agency over natural resources that the said suggested i believe some others that we would have no real right at that point because the current position of the agency is that we cannot go back and recruit any pay of wages or anything that's occurred under the temporary reinstatement order so if we were to have waited to appeal to this court we would then be met with the argument that you don't have a right now to appeal from final judgment and longer because the issues moved in the temporary reinstatement order ceases to exist but how the degrading review exception in other words this whole argument about whether he's a minor or an applicant from point is going to come up again when you have a predecessor and successor and successor mine operator so that it might be moot as to cal portland but what about our our exceptional jurisdiction well and that's why i would repetition but evading review and that's why i believe the because of moot is timing or because it can't be reviewed upon final judgment the agency put in effect exceeded statutory boundaries at will without any review by the federal court and that's why we believe that the court should now act one because the temporary reinstatement order exists and two because we want to have a right to appeal that after in a final determination so absent jurisdiction mal the agency would be able to when we're considering any order issued by a commission i'm wondering is that what you used when you applied for a stay that that was my understanding when i read those in your honor though i'm not sure this in any way nor would i suggest it does limit your authority  to take additional action to stay a case or to provide a remedy that allows the court to exercise its jurisdiction over an agency action to ensure that  speaking of things that didn't happen during the temporary reinstatement or the what happened when the temporary reinstatement order was complied with but when as they had to well we review before this court is we try to find mr pappas a job at the facility and then we try to pay him under the new terms and conditions and benefits that are exist now it now or and which are  different than what was at martin marietta let me try to say when he applied for the job with cal court on what job did he apply for and was it different in any significant way from the job that he had and in marietta he apply for any job a n y job and why any job you have that he could do and the jobs are one uses less employees to run  the operational model is his job for he's been a miner right and right we've been a laborer a laborer ok and now sense in the arguments back and forth about exactly how to comply with a hiring order there was discussions where we said well we want to have him go to this part of the facility and i am shocked that you can't do that he has he has to stand inside the facility right here that's the only place you can work see it talk about the minor can be reinstated it doesn't say anything about an applicant because in an applicant can't be reinstated you can't go you know he hasn't been there before but this seems to be a different sort of circumstance that doesn't to be contemplated by the statute where somebody has a job new ownership takes over he wants that job back but he's been denied the job allegedly in pursuit of decision minor retail and that seems to be an accurate description of what it is but there's nothing in the statute about minor retention decisions that you're correct the statute does not say you have  doesn't is it so limited that he has to be a minor for a certain employer he's a minor he's somebody comes to the mine says i have a minor i want to work here he also happens to be an applicant we have a strange circumstance is he jobs they are that work would require him to be a miner that's not in the record i believe there are jobs there that that may necessarily not have him be a miner i don't there's certainly  can only be instated or hired he cannot it can't even be retained because the owners have changed and he's certainly not a miner who can be read who can be rehired or reinstated that that's correct your honor he's a minor for he was a minor for his past employer he's an applicant for employment a help portland he's never worked for when he's clearly applied it was a hiring situation and the statute addresses that i mean my guess is if you were to talks about on the street and ask them is he being the same up he was a minor at this mine he wants his job back at that mine some people would say that's reinstatement new new employer put in the form or position or past position that one is held previously that's what he wanted right but that doesn't exist any more why because maybe because new order because if he wanted to do that he could have brought an action against riverside cement company of martin marietta and said i want to be martin marietta still owns riverside cement company it's leagues as it still has the crest more facility and he could have said i have a right to be reinstated by you martin marietta riverside so have any other mines nearby there was the assets were purchased by four locations across more national city stockton and then oral ron i don't have the exact geographical locations of these i know there was some testimony one is approximately sixty miles away so here's the problem seems to me here's part of the problem with your argument so he has a job in the mine he files a complaint he  these duties discharge from that job right he he's got he's got a job in the mine the statute says he has a temporary right to that job as long as he has a complaint pending his lawyers a temporary thing and and he's losing that right under your theory right now he's losing that right now because the ownership changed that didn't anything to do with what he did but because the ownership change and that's something he has no control over th statute is designed to protect workers who bring claims right they get a temporary right to that job during the pendency their claim and under your reading of it he's going to lose that right not because of anything that he's done but because the ownership changed well that's why i asked you about age sixteen whatever it is b two because he could just just like you could come to get a stay he could come to us and say and the rose resolutions the same is he doesn't have that right under the statute this is an extraordinary remedy congress specifically delineated when this extraordinary remedy need be in polls and it's not just the stand you've already  saying you get this right but you know what if the ownership changes tough luck congress was sane applicants for employment do not get this right and that's clearly what he is and it's not just that the dictionary definition of reinstatement which we would defer to congress in the statute talks about what really higher and reinstatement means and it knows how to use the word hype rehire at the end of one o five c two it talks about rehired and reinstatement to a be i understand your question you're out here but the the issue really is congress made this decision and the statute applies not just to live for years but to persons and congress said  only if only will we allow a temporary action to be taken pending a final order if it's a reinstatement of a minor to a former position it doesn't exist your honor and that would answer any attempt a can i ask you about the dissenting commissioner and his reliance on lone mountain what i thought that was pretty persuasive why isn't it well the fact the lone mountain harvesting washable less the majority  commission pointed out in that the the minor and lone mountain had not worked at the mine for two posts he was seeking to be reinstated but he was a minor he was a minor but it was had a different mine all right he had no previously isn't this well this is this is it different mine in that it's owned by a different operator and is the operator who has to do you do the reinstating or the rehiring or the hiring or the instating so why isn't that more like the mountain in that it's a different mine not physically but it's being operated by a different operator and that is the person who does the action of temporarily reinstating or not well that's that's just the point is that the fact that a new owner takes over a min doesn't make it a different mine it's still the same mine it's still the same mine they're using the same it's still the same mind but what we're talking about is the entity that's taking the action of either temporarily reinstating or not and if if their dissent says you can't entity you can't reinstate if you never stated what is wrong with that i guess i'm asking just we i guess we know your position because i think i'm asking basically what judge sim tell asked yes and if i may though i would like to explain the statutory context because you can't just look at the word reinstate inspection horrified to see to an isolation and say that's the halves of the story because sectional five c two plays an integral role in achieving the overall safety and health purposes of the minor encouraging and empowering miners to raise teeth to get health issues at the he was also a minor future operator who is on the verge of taking over that mine and if we exclude mr pappas here then any miner who is in those shoes that is specifically the shoes of an individual who's working at a doesn't have a non frivolous claim that towel portland was complicit in the discrimination then he's not going to get temporary reinstatement who are left in this case has not appealed the finding that mr pappas is discrimination complaint against it was non frivolous that's not our issue here the only issue is whether this man was a minor and if you hold that he was a minor that doesn't mean that everybody in his shoes in the future is automatically going to get temporary reinstatement it only means that they're going to be eligible for it if they can bring a non frivolous discrimination complaint implicating the new owner of the mine but  again i have to have a section want to see do on its face does not resolve this question it says minor it says applicant for employment it doesn't say what happens when one individual is simultaneously story or in statement certainly congress could have your honor well then we would know that it was when you had a minor who was also in africa for employment that he could get a temporary in state we would know that and that would have been easy for congress to say you know if we just add the word statement where it fits if the minor happens to be both a minor an us yes i agree with you one hundred percent your honor except that we can't assume that congress will anticipate every conceivable circumstance that will arise that's why we have courts to interpret the application of i disagree with you that congress has not created this remedy  with respect to remedies it does not allow them access to the extraordinary temporary action that took place in this case it speaks directly to it in the absence any congressional intent to the contrary that conclusive statutory language use controlling number one number two the entire concept of temporary reinstatement as put in the language of the action by congress is reinstatement which by dictionary definition does not include forcing somebody to hire somebody for a new position number one and number two congress in the statute talks old job right he's back in that only he wants to go back in that mine and have the job that he had before the question is decent in my mind what's the significance of the fact that it's a new lawyer and does that change the travels all through the legal system and that's the type of argument you're making any they're there in the weeds and be on the staff usually get attached to an employer i've seen it's an employment situation you either work for this person and ha a job with this person out of the terms of benefit in conditions of employment or you didn't you either made an application to be hired or you were something else here he's clearly an applicant for employment that's a substantial evidence question that's and that's what they're