end this case must be refers because district court applied improper legal standards specifically to the district court held the order to obtain removal boeing was required to demonstrate way we should approach the case different chords seem to have different circuit course of course this is relatively new the a minute to the officer removal statute so there's not a lot of circuit court precedent but there seems to be a little bit of divergence with the night circuit taking the approaches saying we're going to treat this like a twelve one motion and try to assess whether you know there's a factual or facial challenge and that just came out last year that's a very recent case and it defender association this court cited through a standard to apply for a federal officer removal it cited the case in the seventh circuit which is one of the difficult because the insertion of those three words really did make a fundamental change in this column nexus requirement but to address judge jordan's question here about is it more like a twelve six is it more like a propane one is an initial this case is probably not the case to get into whether you look at it sort of as a a pleading sort of standard more like a summary judgment kind of standard which is what the court in the ninth circuit in and the reason for that is because in the court the net circuit your distinction between revs up a szell challenge to the notice removal or whether there was a factual challenge in this case there was only a facial challenge meaning that playfish did not a poll the facts that were alleged in the nose or movie or in any of the materials that were submitted in connection with the opposition to the motion to read and so  be a to some kind of all ladder of fact finding to try to decide whether rules appropriate because what the supreme court repeatedly says is a strong policy in favor of having federal defenses heard in federal courts when there's a federal officer or someone acting under a federal officer involved i think the other side here actually said hey all that stuff only stone you don't believe it true why do they are they trying to make a factual issue here they're just argue one you'll find a nose for removal which in itself would be sufficient to obtain removal in this case because the allegations support the removal and again because there's only a facial challenge those are to be accepted authenticated basically submitted various district court decisions the only document that was attached to that lawyer and a kiddie affidavit was a a page from the boeing website that describes the c forty seven military air aircraft in its history which of anything would support removal because we read that really is say what it is this is the quintessential example of private contractor acting under a federal  court's decision watson versus philip morris and it wasn't versus philip morris the example that the supreme court gives for acting under is when a private contractor provides  effect with the district court really did was it kind of combined the acting under and the four related two parts even though it said it didn't that's affectively what it did because it was its analysis on these various district court opinions that it cites their world looking at the preacher thousand women version of the statute and standards the three prong standards articulated under that which had that in order to obtain removal in a failure to warn case the disk recorder held that the policy can removal my show bit the government directly prohibited the requested  that standard is inconsistent with the the language of fourteen forty two way it's inconsistent with the principles and offenders o c asian end it has been explicitly rejected by all three circuit courts of appeals that have  affidavit it's clear that there was enough to did so it's not necessary so there's enough on this record that we would not be stepping out of our lane do it in the first instance because what what is it what is it about the fog affidavit which is so clear that makes it obvious because what you're really saying is if you set it back for the district court to look at this and the district were to say there was a colorable that would have to be should pursue into government military specifications that color and all markings all warnings it set are on that plane three that the planes were in fact are statements to be a fact that the guy is going to discuss warnings and that the government maintain control over all aspects of any markings that were on the plane or any components of the plane shouldn't the contractor be required to seek leave to give the warnings and the courts have come down the circuit courts have said no there is no such requirement because it's not there's nothing that you can find with the removal statute th were required at and there's nothing in the spring court decisions applying a rule statute that would require that ok thank you very much mr gainer  do something which but while in the supreme court never intended which is to somehow create a blanket immunity for contractors such as douglas with regard to state of war cases as long as it can be shown that a product was made for the government pursuant to government design and manufacturing specifications there is nothing in the statute already two thousand and eleven men which i included the legislative history for the court which says you if you make the showing of the sort that it's made in the fog affidavit that you were operating under the direction of the military in fact those cases seem to be pretty closely aligned you know maybe contracts that back in army air corps contracts but government military contracts that's you're good you're good to go why would why would this case why should it be treated differently than the seventh circuit contractor or others there's several factual basis judge sheridan recognize one was that we're not talking about there's no evidence that the government made a discretionary decision which is an important part of discretionary decision that somehow the us would be prohibited from issuing warnings similar to the type the government was issuing to its own employees that was regarded to specify containing way of being where sandblasting and writing is part of it's clear from all of these cases that when you do removal you have to support it if the challenge by way of competent evidence competent address is not hearsay  say and that because of bad there is strict liability if there's a failure to warn you're getting to the merits and i think that's great that you are you seem to be making arguments against removal which  specifically made it so that that kind of organ it would be heard in a federal court as opposed to being heard in a state court that assertion the government made me do it is a bear it's based defense which they're titled to have a federal court here instead of the state court here you've got to go to grapple with that i believe that that's part and parcel sorry the basis for removal under boil which is where we started all the us supreme court said that it must be shown that quote the state imposed duty of care is precisely contrary to the duty imposed by the government contract that was in a design manufacture case but it's been applied to failure workplaces and what that means what it says someone has to show something the person has to order to get it removed and and i thought that was exactly what the supreme court was saying the opposite of you don't have to show you're going to win you just going to show up with a colorable a non frivolous a kind of a straight face made us do it we couldn't do anything other than what the government told to do with the c forty seven's so i'm still trying to understand how your argument is not a merit based argument as opposed to have to show that at least to move that by competent evidence that there are this there are i'm sorry there are things that will support this the fence and under here  quoting what the district court said there was not language where we were holding things this was more of the scene with these district court opinions that were a minute well it was put it and that's where we got into what it was sure  destruction for failure warning of the government contractor you have for a separate and conjunctive elements that have to be proven not to but the burden is on you to show it's not on you to show the o remove for those who were acting within the context of the relationship with i don't government and explicitly disagreed with the argument that the contractor was quote required to allege the complaint of conduct itself was at the behest of the federal agency but was sufficient for acting under purposes that the allegations were going to something that related to you looking at it that the relationship the papers but i've dealt with asbestos cases or a number of years i know where the new jersey was on the basis for it and i've also looked at the cases in favor of allowing people into federal court if they've got a coble federal defense or you say that they've got no comparable federal defense all because if that's what you're saying is that was something you needed to come he talks about it like his decades of experience beginning back when douglas we spoke with aircraft company he talks about his experience working on was about his understanding of the history of this aircraft which he knows something about personally in which he's studied the business records i mean we're talking about a world war two era plane that people actually designed it worked on it made those decisions less their greatest generation heart they're gone we're left for evidence to look to somebody but mr paul what's wrong with his affidavit it doesn't give him the competence to say i've looked at all the records i've been at the company for more than three decades i can tell you this was the way the thing happened it was built under military spec and we were not free to change it how is that not competent because that is just conclusionary and i would point out one thing judge sheridan specifically one thing he sharon did was to look at that and say that's got nothing to do with a prohibition against putting some type of substantive warning of the same dangers  contract that we should be counting that the time is running from the filing of that battle and the disclosure of its military training in the definition ensure it's interesting that actually  that alone according to council should give rise to a color but with fans of of an immunity and so therefore when they get it they should know military you in your complaint just say we had it go as far as this from working on your planes it wasn't until the deposition that it was clear you were talking about a military plane and then they said oh military plane we had a defense that's where they made the hey this is a military aircraft realism place or the aircraft from that this plane or it was clear that you were talking about a military aircraft yes it says with regard to with regard to military aircraft does this say anything about military at all yes  well this is in the in the record r certification from mr fox it's clear that he does not differentiate between any type of military aircraft that was made he says that for all of or so it's just a form there's no actual allegation the complaint that says we're talking about military aircraft here there's no reference to the c forty seven in that complaint and is set out in our reply satisfied they are related but the acting under really the phrase that is used in trying to blanket on the supreme dissent and essentially what you read you'll see that's where this causes nexus came from before that apt under color of office in two thousand levon when congress amended the statute  world war two when the government is getting a detailed specifications as to the markings that it be on that plane is is clearly connected with that federal office thank you thanks very much appreciate  arguments this morning and will take the matter under advice and i will