person the department of labor these reports of phantom safety inspections that were critical to the safety of the public as well as his fellow employees on that if you in this case are two as to the jurisdiction issue the question is what did congress express by clear and convincing evidence about mr starr's right to judicial review by this court there is no case out of the southern district of indiana of green versus united states department of agriculture and the year two thousand it's also a similar case that provides highly persua analysis of the issues involved in terminating what congress says as opposed to what it said by the administrative agency and further extinguish or limit a judicial review there must be such a clear and convincing evidence now to reach if there is jurisdiction in this case i have mapped out a simple three step process under the case law the governing federal statute states the petition for review to the united states court of appeals seventh circuit in this case must be filed not later than sixty days after the date of issuance of the final order of the secretary of labor that is pursuant to forty nine u s c forty two one two one six forty nine you're a c two zero one zero nine d for that is the direct quote from the united states congress and that is the clear and convincing evidence of their intent to solve the riddle of the jurisdiction we now only need to know when the date of the issuance of the final order of the secretary of labor occurs because that's what is left open from that quote from that language from the united states congress that date of the issuance of the final order of the secretary of labor according to the department of labor which days run as occurred in this case then you can come to the judicial review within sixty days to this court for judicial review now my learned colleagues will surely point out there is twenty nine c a far nineteen eighty two doc one t n in which the department of labor attempts and probably has in many cases up  extinguishing the judicial review by an individual and that is expressed solely barred by case law of this court and other courts and as well as there is no clearing convincing evidence that that was congress does intend to in any way extinguish or restrict the right to digital review in such a way as written by twenty nine you're done no more judicial review those are the only two times that congress and federal statute spoke to the restriction or extinguishment or extinction of a judicial review by an individual and so nothing stated by congress other than those two occasions extinguish or limit to judicial review especially to add any clear and convincing evidence regarding such restriction has done by the department of labor there is also an equitable tolling argument that we make in this matter and of the fourteen day trigger that eliminates ten restricts the right traditional review and we agree with that as well that in essence it's an arbitrary hapless cation of fourteen days that has nothing to do with the purpose has set forth by congress to protect whistleblowers from retaliation in their employment in the department's view the issues in this case really are very simple it's whether mr spar is required to follow the department of labor regulations which set forth a mandatory administrative appeal in order for him to preserve his right to come to this court for judicial review we submit that mr started not comply with the mandatory appeal right restriction or vote requirement in the first regulations and so he did not obtain a final order the decision on the l j was not a final order at the time that it was issued i would even submit that it did not become a final order fourteen days after it was issued in fact what happened was that mr spark found a l appeal so in fact he had never received a received a fine order from the secretary of labor at the time that he came to this court in january asking this court to review the actions now it is possible under the regulations for l j decision to become a final what the statute provides is that you have to obtain a final order from the secretary of labor so there is an administrative exhaustion process you have to file a complaint has to be investigated you have the right to object and sick of hearing you have the right to get a decision from an l j none of those procedures within the department of labor are set forth in any of that was simpler statutes we administer twenty two different whistleblower statutes this one is for the railroads we have another one for mass transit systems we have another one for airlines there's process have your hearings pile your objections whatever you need to do and when you get the final order of the secretary of labor you know whether that's five minutes or five years that's the point at which you have the right to judicial review so i would submit contrary to what my colleague stated we don't restrict in any way a right to judicial review always requires that you allow the secretary of labor and the administrative review board which has been delegated properly delegated and set forth in regulations that the administrative review board its final decision that's when we know what the secretary outcome what the decision has been and the artistry level submit that mr starr simply chose not to find up to follow the regulations he was required to follow follow the regulations and for that reason his appeal his direct appeal to this court of the ayles a decision was premature and this court does not have subject matter jurisdiction to consider those arguments now on the second issue the equitable tolling matter he did file a late appeal when you got his appeal he requested that the administrative review board consider his case even though it was late several months later they found that the real reason that he filed late was because his attorney simply made a mistake they miscalculated the deadline and that's why the target on the thirtieth day now he's made a different argument to this court but i would submit that the finding of the secretary the final order of the secretary in this case is that the reason he missed the deadline was because attorneys were too busy to meet that deadline and that that does not rise to the level of extraordinary circumstances which is and so the department of labor the administrator of your board had the discretion to decline his request for equitable tolling which is what happened here so we would submit that there's abundant case law stating that garden variety negligence the extent the court wants to hear a little bit on the merits i would like to just address that in my brief time we this case was extensively litigated before the administrators at la judge extensive depositions were taken and through all that we proved to the l j that while mr spark in case the protective conduct on the f or a say he was it unable to show any retaliatory motive or collision with another look at motive and injured somebody and under federal regulations if you have what's called excessive speeding or that faction road in this case that he was doing twice the limit it might be he was who were involved in his f r a report in two thousand and ten had nothing to do as terminations in the four managers who were involved in the terminations had no knowledge of his protected activity that was our case and we prove that through extensive briefing in depositions with the corporal oh i see my time is and any questions we request that you grant the relief requested by the department of labor thank you found to be credible lead to credentials of a fifty year industry expert said that it was not just and reasonable for any finding of speeding by mr starr he said it was terminated for the reasons that were given by north folks on it so for them for norfolk southern to say it was just an average run of the mill terminations is absolutely false they had no disputing evidence on that issue secondly the a l j ignored that mr spar was treated more harshly than every employee in the history of north folks out there there was ignored by the administrative law judge further the ministry of luggage imposed that there must be direct knowledge of norfolk's ocean norfolk southern decision maker to terminate and that should not be that could show whether react he suspected or not because that was not proven at all finally as to the jurisdiction the only real issue at stake is whether there are clear and convincing