remain ending this case to state court finding that there was no federal jurisdiction under the federal officer removal statute twenty eight u s c fourteen forty two a one the case presents a single issue whether the claims in this case relate to a an act under color of federal law as your owners are certainly or shirt certainly aware in two thousand and eleven congress amended the federal officer remove the longer you now can see that lady does not have any different argument than grimes or anybody else in other words that his status as working for the navy doesn't change anything because you're now arguing that we should not follow martel at at sec but you in your brief argued that even if we did you still win this case i think the bar tells distinguishable because in that case repairing the vessel and required to use as best as by the federal government who monitored the site but our primary argument your honor is that the relating to issue has with respect not been decided by this court and would include that if you lose on that issue just when you lose the case do you lose the or at least not the whole case but the federal jurisdiction part of the case i think it makes a lot harder obviously because of the loss of a case where the guy was a continue to advance that argument primarily distinguishing bar tell where it was much more insinuated how many more of these cases are there by the way by these cases do you mean the cases arising out of avondale shipyards with these everybody claiming asbestos injuries i was drafted to do the appeal only your honor but i know that there are probably dozens i don't know the exact number of politics that have the same issue re man vs maintaining federal jurisdiction or against a court nobody tried to take them to federal this one was filed before the loss on tace this appeal presently i don't think that there's any intention to appeal unless we can get a favorable result i can't say one hundred percent it will never happen but i think the situation now is we believe and maintain that this court has not address the relating to the issue as it applies to claims of this type if you look back through the case law starting with your honor's was on the panel and martell and that case there's no indication that the relating to the issue was presented to the court it was decided under the floor and asked under color of state law and i'm not arguing that the court didn't know what they were doing i'm arguing that the issue was not properly presented to the court or considered by the court and after bar tell the sepoy case came up and again the south were court specifically did not address the issue of whether the site type of negligence claims we have to have here failure to warn you provide an adequate workplace would have supported federal jurisdiction in that case said there's strict liability that's enough we're not going to go to that argument that's a really good question i think is i don't know it's related to applies to bar tell but i think it does apply to us and relating to is broader i mean you just know what i'm saying is desiring gay i mean i think you're trying to tea this uproar on bonk which is fine but i'm wondering is that needed if ziran gay is correct that remains here is broader we understand it we got it we don't have to overrule or  our precedent in our tell because that was a different scenario can you live with that our position on that would be if you if you say there is a sufficient relating to nexus whatever the test may be is it is it a causal or is it just on the broader relating to this gentleman was in the navy he was on the bus because he was a federal employee the federal government required us to use as best as i think that's sufficient to relate to or to be caused by but and why would you have had a duty to warn is that the argument of the relay of the causal nexus that unlike your own employees or maybe you had a duty to  federal government would have had an obligation to him and that's the federal interest that is missing in say the other cases that were settled yes as i understand the was there another party question i thought there was but if it's not is continuing well i do have another question but it wasn't part of the part when the other question is we haven't talked very much about this cargo federal defense in your argument as well send it back but i wonder if on the colorable federal defense you're not saying that was changed by the two thousand and eleven amendment i'm not saying it was changed but i think it it plays a greater role in the importance of the now analyzing whether or not t claim relates to the color of federal office because and this is this is alluded to in judge taken botham's concurring opinion in maybe mispronouncing it to the john j case where the court said it does look like it's broader and this is a significant issue that we think or tells already decided on these facts and we don't want to interfere with the previous panel's decision with respect i think that that court tillage i'm going to penalties going unduly restrictive view of the rule of war of orderliness because this specific issue hasn't been decided but judge higginbotham in his concurrence said you know we should really look at more carefully at the colorable federal defense part of this because that can supply and inform whether or not there is a colorable excuse me a a nexus an association or connection between the claim and how can there be a colorable federal defense here when you're you're you were never told not to warn people you were told to use this past us so the lawsuit was you should have used as best us then i understand the current column and frankly the calls on axis however if you were told us is best to spend nobody said it should be applied no to the new language of relating to statute but we did have at the district court level you need three things for government contractor you need precise regulation and we had that we had to use as best as you have to have compliance and we are only liable if we fail to warn of risks that were unknown to the government and we have in the record in the in the district court in an expert report of a public safety expert mr christopher hurtful who said you know the government knew about this stuff since at least the forty's and fifty's it lou that it knew at least as much as they'll probably more and at this stage we don't have to convince a jury or the trier of fact that we just bottom said if you've got a federal culpable federal offense isn't that exactly the claims that should be provided for under the federal officer removal statute because the purpose of that statute is t my understanding of the previous treatment of these issues as the court would typically remain but we did argue that to the district court we did support it with an expert report and we do have a colorable federal defense the only question is should we do it nothing would make us happier than to get in on donkey well it seems to me that your your brief and your arguments all go off on you know this doesn't apply that doesn't apply that wasn't argued and so on and i couldn't see with clarity that the most obvious potential solution was something that your client application i apologize for that but i think we want to take someone into cover we wanted to cover the waterfront but but i'm here today before you to address these concerns of it's a big mess and the reason it's a big mess in our in our review is our view respectfully is the cartel didn't address the issue later cases didn't really address the john didn't address the issue it's said that the argument was made it called it a significant argument it said that may be right it cited cases from the fourth and third circuit that said there is now a broader view of this but these facts before us were addressed in bar tell and we signed ourselves and feel ourselves to be bound by that decision respectfully i suggest that that is an unduly restrictive view of the rule of order limits i think we the fifth circuit decide our own rule of orderliness the supreme court can say what its precedent is and of course the supreme court can reverse us as they wish but i think we have a circuit decide our own rule of orderliness what are we going to follow because this is not a law a statute that says we have to follow our park cases this is a decision up so that we don't have the chaos of every panel deciding something different about the law i refer your honor to the apt in versus mccall case eighty eight after going twenty nine one thirty six foot four cases a little different but because it wasn't the presidential effect of a panel decision but it said a previous decision wasn't president because it didn't consider systematically analyze or grapple with controlling supreme court decision it we have a change in the statute where you have the sites case also which they rely on which after analyzing an issue  away that's correct so why didn't you just substitute is the executor of his state believe that they have been substituted in the state court i'm not sure if that's required of using a code of civil procedure but my understanding is that the successor he i'm not sure how long he served in the navy i know that he was at avondale on this particular ship for a it was a period of about a year in late one nine hundred sixty five and sixty six i'm not sure how long he served actually served in the navy in total but his claim in against avondale in this case is based solely on negligence so why don't you address my question which is i mean we may be all marching towards on bach and that's fine but i want to be sure if we're marching there that that's the right case marching there why isn't this different from i think it was grimes that grimes in burckhardt that settled that were in front of us originally why isn't this different because he was a navy officer and therefore any duty to warn would have been on his employer the navy which seems sort of federal to me right in your honor i think the answer to that question is because the question on removal the test on the focuses not on the identity of but on the claims that the plaintiff is making and also on the defendant and the defendant's yes but the claim is failure to warn yes that's correct and why isn't that on the navy rather than on avondale unlike the other crimes burckhard we have to look at the marriage to know what's being argued we don't have to find the merits we don't have to say they didn't more maybe they did warn but we have to look at what the argument is and i'm saying why isn't this different because he was an employee of the navy i understand it's not who he was an employee that is decisive but in this case of failure to warn why doesn't that alter this causal nexus argument  two second to go which is the focus in the causal nexus test is on the claim the claim that is being made which is failure to warn as opposed to the person that is making it the claim is salience award and in the focus is on that claim and its connection to any acts if there was one under under color of federal authority that was engaged in by the defended the focus there is on even if it was a maryland allegation you're saying we can't examine the merits of failure to warrant understand what you're saying about your client's claim is that it's no different than the other two that were settled or any of the other five that are in the post two thousand and eleven amendments to the officer removal statute for the purposes of what we're talking about today and whether or not this case is properly removable under section fourteen forty two it's no different so there would be no circumstance if when we're marching to an on bank consideration of this that we would hear from this quantum this client your client that this is somehow a poor vehicle for considering a question about related to i don't think so your honor i mean that i'm not sure what michael would say about that but i don't see the difference ok but on caller both federal defense you do look not totally at the merits but you look warnings by the federal government and here the evidence i believe is undisputed that there was absolutely no no direction no involvement of the navy in how or whether or how avondale warned people about the hate to have us take a case on pong to decide an issue that doesn't matter to the outcome so if carbo federal federal defense gets you back to state court that would seem to be important that would be your honor because issue doesn't matter right that's correct that's correct turning back to a this court's precedent i think that is the first and most important reason why i think that your hours of alluded to that in question of having else counsel the most important reason why this case should be affirmed and should be remanded is because there have been three different panels of this court that have decided just in the last year that claims billion one planes against of a deal just like mr legislates claims should be remanded  k but here's the problem is again you you could win the battle and lose the war and i'm wanting to make sure i understand because the question of whether to grant on bach is not really argument on bonk often not it doesn't have to be that often but the question is not so make your case when we were to rule as a panel in your favor based on these cases you're citing make your case for why it shouldn't go on or watch it it's a very good question that relating to language was and had made the determination that even under that broadened statute as it was arraigned that the panel there recognize that the statute was broader but even under the  statute ziran nevertheless concluded that a case like court's help which is on the panel in it and has a case like this one is not removable so i don't really think there is the need to go on here and then of course lose on relied on and the cases that fall of the john also i mean his argument is bar tell was a it's a mess because the argument wasn't main and so we got it wrong without knowing we got it wrong message sent to his argument and again it doesn't matter overruled twenty cases ok so that's the point of on bach is we can take a line of cases and say you know they did their best but we don't agree anymore and we're going to overrule those i'm going move on so what's your related to under the this court's precedent that we go back to the words of the statute the case has to be there is a connection between the cause of action and an act under color of federal office is not just a connection between the cause of action in the fact that the government contractor had a government contract it has to be connection to an act and again in the ziran case after having grappled with the question of whether or not the two thousand and eleven amendment broaden the statute or not the court said that you know again there must be a connection between the charged conduct and the asserted federal authority even after having looked at the question they still went back to the panel in that case still went back to there has to be a connection to the charge conduct to the charge of conduct so you're saying the fact that asbestos is is to my knowledge the only cause amazing feeling oh my isn't enough because the argument you're making is not strict liability on his best tennis but which is the ra circuit case to believe that's pap and sawyer in both of those cases the courts went beyond just simply saying oh well of course there's a government contract here so that's enough those courts went beyond that and said we're going to require evidence because this is a failure to warn claim we're going to require evidence that the government played some role in warnings and you know frankly that is something that evan deal would go beyond in this case and say that even you know a finding or evidence that the government has something to do with warnings is not even necessary anymore ok so you're saying even under you know judge older makes a point that we don't just add things to a statute for no reason for having added a phrase that phrase has to have meaning you're saying even with that meaning that broadens the original statute it still has you still have to look at what we're talking about and what we're talking about here has nothing to do with the government involvement if we were talking about you should be used as best us then you would say that needs to relating to i would in a strip club billet case and i think that statute is broader but yet a case like bar tell in a case like this one still doesn't fall within the circle one of the arguments that evan bill makes in this case is about the plain meaning of the statute and sarang consider that  in the two cases that a follow on of our has always been very clear that when the when the claim is a failure to warn clean and there is no evidence that the defendant you know that the government participated in the defended safety practices at all that  sarang derive solway from its official authority to provide part and that authority relates to crane's allegedly improper actions namely the use of fast best as it says it is plain that looks like a real neck for one thing it didn't it deny remand and for another thing it said we can't consider this relating to to be a narrowing sort of phrase that's correct your still the law and then of course the list on case which directly addressed the question early last year came to the conclusion that martel is still good law part tells correct sarang made the right call with respect to whether or not a case like this is direction but there has to be some federal direction there has to be some federal involvement in the acts that are being complained of in order for there to be the you know the causal nexus even under the you know the new relating to lives and i think that's what the language limits that's just where the limits are in this case they do that statute even as amended does not reach a case like this well you know i mean you're splicing causes of action for injury because if as as fast as if this were in a receipt case it would almost surely be preempted and the and not only preemptive but wholly preempted because of the very same language through just relating to i mean relating to is carefully written but at the same time i mean it to me it just deepens the problems of that relating to does make the statute broader and sarang of course wrestled with that very question but ultimately came to the conclusion that even under you know it depends on what relating to relates to is your point that's playing does it relate to what does the government somewhere in the building in which case you lose or does it relate to the cause of action being asserted against the it's already picked up on this but as as i think one of your owners mentioned ziran did not address whether the show you the warren claims present in the case would have independently supported federal jurisdiction so i don't think it addresses the issue that we have here today before the court and it did discuss what relates to means but i'm not sure really what bearing that had on the holding because it was a centrally a strict liability claim that supported jurisdiction in that case in some measure i think  rang deepens the problem that i'd also like to point out a change said it better than me this gentleman was employed by the navy and so there is a federal interest here that was not present and board tell a better job of articulat than i did but that was what i was trying to get to in part tell the guy was just as an employee of a civilian contractor and there wasn't that same connection when he was sort of randomly on a ship and it was isn't a different case really i mean i'll accept it if we messed up in bartow we did in a mean that's part of the on bank process and i'm fine with that i mean i get paid the same but i've got to say that i want to make mistakes don't misunderstand me but i'm not sure the facts there are the facts here there are not i agree with you  i'm not saying that the court messed up in puerto if anything was messed up it was the failure to present this issue to you cleanly and properly and concisely in twenty fifteen if you know four years after the amendment but all that being said this i believe you know we're not here for entente but one of the owners mentioned well you know we really don't have the ruling on the colorable government contractor defense well i think the clarification of the statute would be  discussed it we could reach the colored there's no law that says we can't reach the colorable federal defense point that's correct and we could say we don't need to reach the cause the cause of nexus because we find no federal no colorable federal defense you would agree with that but we could do that i do but i don't agree that we don't at least have a couple federal defense and i also think that the fact that we have a callable federal defense and a good one is exactly the kind of claim that should relate to the color federal law the whole purpose of the statute is to get these defenses in federal court and to make sure that the federal interest implicated by those defenses are educated in a federal court all right thank you