jurisdictional issue and then i would like to address don morgan's individual liability third to be the attorney for the issue in the fourth is the nonintervention by the morgans in league city enterprises on the jurisdictional issue there  reasons why the november two thousand and twelve order did not start the clock for filing the petition for review in this matter in the first is that it was never properly served on counsel for harry smith myself  the supplemental record that appendix eight zero eight two eight ten shows that i gave the administrative review board notice of my new address and yet no service was made in that address at any time but second the department of labor itself did not treat doubt order as a final order to the surface transportation assistance act provides that its final orders aren't forced by the solicitor of labor the statute does not give harry smith or his council the authority to go to court to enforce the final orders of the department of labor only the solicitor of labor can do that and they have not done that in this case they did not treat it as final to the point where they would proceed with enforcement of that order and to this day harry smith and i have yet to receive a single penny on the orders of the department of labor second the error be itself returned a file to the administrative law judge for further processing on the feet petition and third when when i made the motion to reopen the case at the administrative review board the air be decided it did not have jurisdiction because this court had jurisdiction because of the present petition for review if the november two thousand and twelve order had been final then this court would not have had jurisdiction but the a a r p did not see it that way but the third reason why it should not be treated as a final order is that the four constructors case is not controlling law and should not be persuasive law it is based on the supreme court's decision in the boudinot case but that case was interpret ng twenty eight u s c twelve ninety one which is the statute that controls proceedings under the civil was approved civil procedure and in particular it is interpreted in the word final in that statute here the surface transportation assistance act does not use that word so i don't see how boudinot interpreted the word final would apply but more significantly administrative law is different then civil procedure law and the d c circuit cases i cited john doe in union pacific make clear that in a ministry of law the standard is supposed to be more flexible is more flexible for the very purpose of avoiding piecemeal review and indeed that was the position lake city enterprises took in its petition for review to this to this court earlier but finally i would suggest that the  floor constructors case is outdated in light of the supreme court decision last year and long where the supreme court made very clear that there's a very high standard for congress to make clear when it is depriving a court of jurisdiction to hear a proceeding  and the fourth reason is that this court's two thousand and eleven order in the lake city enterprises petition for review you know set a lot that that is not going to review a proceeding the four corners of that document do not suggest that the heir be intends to take any further action on any issue however if that's the key decision yes my recollection and please correct me was that your the petition for review here and that kind of time so you had here to the attorney fees issue because after the final order issued on september twelfth twenty thirteen which i did receive through ordinary service  the arab issued another clarification order on september thirty but i remain completely unaware of it even through the time that i filed my principal brief in this case because it had never been served to be by any means and it's my contention here that that order in did not reopen the case because the air b did not give notice to the affected parties of the reopening for did they not make any effort to serve or was to the wrong address or what exactly happened its certificate of service states that it was sent to my old address after i had given them notice of the correct address and after they had served the september and thirteen order on the correct address you know why they would go back in and serve the old addresses just baffling i don't understand but the main point i want to make about the attorney for the issue is that the whole thing is modeled the department of labor was issue the fee is for the proceedings before them but then the air be in it's september twelfth and thirteen order did not address these issues or the ancillary proceedings of the fee claims for those and when they issued a clarification order and i believe th position of the solicitor of labor also just that the attorney feed issue should be remanded my request to this court is that it be remanded with directions to the air be it that they fully develop the record on all issues clear up the model and then see if anyone has any grounds to petition for review after they've done that let me turn back to my second point in which is don morgan's individual actually the main issue here is that the air be aired in its holding that in order for don morgan to be individually liable he had to personally participate in the adverse action of terminating harry smith that is just not the law the law is that four that if by his actions he could be held to be a joint employer then he is liable even if he did not personally participate in the adverse action and here there is abundant evidence that dan morgan held himself out as being a partner with his wife crystal morgan as being a cohen or the business he told that to scooter mick not to harry smith and his wife michelle he represented that to see r s t when he negotiated the agency agreement that was lake city's primary source of revenue is this something that we evaluate for substantial evidence support when there is substantial evidence supporting the administrative bodies substantial evidence to the factual issues are reviewed on substantial evidence i think that this issue could more fairly be characterized as a mixed issue of law in fact that the determination of individual liability should be reviewed from the whole record with you know an understanding about what the purpose of the law is and i think this purpose of the law is to assure that people who have the power to obtain lawful conduct by  the employer should be held liable when they fail to exercise their power to obtain lawful compliance and there's no dispute in this record there's no petition for review from the finding that harris miss terminations was a violation of the surface transportation assistance act a law that is intended to keep our highways safe by protecting truck drivers who raise safety concerns and this court should hold that the issue of joint employer status or individual find repeated direct evidence that he is no but we did find that you want to to impute ownership to him and i know we have a doc doctrine that does it basically basically i'm a stoppel principles that if somebody represents themselves something and the other side relies upon those representations reasonably to its detriment that we couldn't peut that that relationship here how was there any detrimental reliance upon donald morgan's a reputed ownership in the company by your client my client relied on those representations in his protected activity his concern was the trailer that lake city and don morgan who was in charge of the equipment for lake city enterprises had assigned to him that this trailer had been cut and rewelded in was not stable and was shaking on the highway and  was going to cause an accident that could kill someone or killed the driver and he raised that concern directly to don morgan because don morgan was in charge of the equipment they had this breakfast meeting now you said that morgan had nothing to do with his firing or i said that  there's a stop will because they should have corrected it but you're your claim here is not failing to correct but retaliation is it is it not that that's right that as mr morgan was not the retail he tore i think under your theory he was simply the owner the joint owner who was the subject the target i think you're missing the element here that's even under your theory our theory here is that determination protected don morgan from harry smith's criticism he was the beneficiary of that terminations because that protected activity was targeted at his misconduct in failing to correct the safety issue with that trail and as long as he had the authority to stop it then he should have the final point i want to make is that john morgan crystal morgan and lake city enterprise has never made any motion intervene and should not be parties  subject to equitable tolling mr smith has not presented any evidence any authority for the proposition that a petition for review deadline can be equitably told but the important point is there's no want to blame mr bennett but actually his notice of a change of address only included the docket numbers for the for the attorney's fees proceedings and they neglected to put the d n a of the docket number for the  if we were to get to the merits the issue is is don somebody who should be covered by the act is that correct should be treated as an employer correct and as i said mr smith is incorrect that to be found that he wasn't why would because he didn't personally participate he also they also found that he was not a joint employee and this is a doctrine that they if they personally participate in retaliatory action well if they were joining play and therefore they can be held liable for the actions of the other player but did they apply the proper test according to both you and your opponent as and wait we just they haven't finished my definition on the field so all questions that were raised in front of us such as i have time for travel and the question about depending on how the package is put together on any issue one party may decide not worth dealing with we don't want to deal with it and that applies whether it's an appeal from an agency or to split time with mr anguish is that correct so is that a recognition on your part that he actually is representing clients who are legitimately in front of us i mean there was no motion to intervene here my understanding is that the court named them as a party at the beginning of the case so deep i didn't move to intervene because they thought they were named response from the beginning well but that isn't what rule fifteen  says well i didn't focus on it i mean i don't know if the department has a position on the issue but my understanding was that they were named as a party by the clerk's office from the beginning and i'm going to spell my name is brant english i'm a counsel for lake city don morgan and crystal morgan who are now divorced both of them have filed bankruptcy petitions let me just focus on the one question that your hon judge griffen raised with respect to a stop all in the joint employer issue the evidence is quite clear that don working played no role in hiring mr smith tour smith in discharging mr smith or doing anything else that he typical employer would do he did not set any terms of his payment he did not a participant in any manner in directing him whatsoever that's what the record evidence shows the relevant standard is whether there's substantial evidence to support the notion that he's a joint employer and the bodies below got this entirely right he is in no  way an employer under any reasonable concept but mr renner tried to argue subsequently is that because someone else in a different proceeding had a perception on what basis is hard to know because we weren't a party to the stress eating that there was somehow a partnership that was involved between mr morgan and mrs morgan but that that constitutes somehow newly discovered evidence that the that are but should consider with respect to whether or not don't work and is in fact a joint employer all of that evidence is in the record and the decision that the administrative review board made was that if we had jurisdiction we would not find that that constitutes any additional evidence to support you in employment and as a result we would not name mr morgan under any circumstances so i would ask you to affirm that issue and and that's all i have to say understand it is to put it on the docket as it was originally framed bolo but but that doesn't i mean the fact that that happened doesn't mean that we put down some order saying you're legitimately  the court that we were response in this proceeding i think that the court has certainly the ability at this point to permit intervention for purposes you so make and i and i saw it in oral motion at the nih so move thank cross examination that don is the one that told me in front of the truck not to let c r s to inspect the truck he was the one that assigned the equipment to perry smith he's also the one who called harry smith to interview scooter make not harry smith's coworker how does he have personal knowledge of he worked with don and crystal more than he was one of their employees i know but how does that give him knowledge of the ownership i mean as opposed to speculation guess what's the basis for his opinion well he testifies that's what he was told when he was working told from somebody else that here is hearsay information you know this is an admission by don crystal morgan to scooter is that what he said that that mr morgan told him that he was an owner is that well that is testimony more precisely that it was donny he was in charge of the equipment it was you can you have anybody being to you could have some flunky be in  charge of equipment yes but in circumstances where don and crystal are holding themselves out as co owners and partners that's what they told michelle so smith and craig smith that sierra's t when they were negotiating the agency agreement that was the basis of this whole transaction craig smith testified that well don in crystal were essentially partners they were husband and wife but they also had a partnership with lake city enterprises this is the evidence in another proceeding that's correct and how does he know that what he is he's the one person knowledge of that as opposed to that's my thinking that's my guess as i mean if you read the transcript craig smith is the one who handled that negotiation on behalf of  don morgan is the one who approached him my impression was that they were co owners or something i mean you have to have a basis for your opinion that's all and you don't have a bases or it's not admissible testifies that don morgan approached him on behalf of sierra's t to negotiate the agency agreement that was lake city enterprise a source of revenue i'm just curious if don has declared bankruptcy is declared bankruptcy why do you care about time well this is the first notice i've had that done morgan found a bankruptcy i had not received notice that before i'd been hoping that he would be one possible avenue of collapse or the other