hundreds of other villages of alaska that rely solely on air transportation when you receive that air transportation council maybe you can just jump into the jurisdictional issue of skin to be hard for me to continue to listen to you about the merits of must we are satisfied that we this case this court has jurisdiction under section fourteen forty seven which provides for this court to have jurisdiction over a case that was removed under section fourteen forty one it wasn't right  the notice of the only notice of removal filed in this case most certainly did not assert fourteen forty two as a basis for move on i didn't even provide the facts necessary to support that basis for federal jurisdiction so that's where i'm i'm just stuck right there at the outset i'd like right to a federal officer defense as the aviation company yes no difference between the two no difference because there were claims the claim against both was they were negligent for just  he said there was an allegation of the airport feel they need federal standards but that the federal government was aware of the condition of the runway but nevertheless authorized corrective flights into the airport and paid carriers secure e mail to the airport and that federal law should provide the standard of care he did not mention fourteen forty two in his nose of removal we wish he had but you know what he did but those are the those are sufficient not if they've been named in the complaint but haven't been formally served would have been entitled to file a notice of removal once they were federal court you could not file a notice removal with the state court because the state court no longer had jurisdiction  court you know i think there's cases where the court has accepted jurisdiction but a but in terms of you know where there is a remailer and i'm not aware of any case so what we have here is we we have the stone notice  which states you know the person requirement we have the nexus requirement i'm just looking at the stone notice removal maybe you can point me to some different language but the only place i see of any relevance looks like it's on page two and all it says is the federal aviation administration right not the postal service that's the basis for your federal officer removal claim says the federal aviation administration and other federal agencies were aware of the condition of the runway and nevertheless authorized flights in the airport and indeed paid air carriers to carry mail to that airport that's just focused on the f a a i don't know how the district court was supposed to read that and understand oh no you're saying that the postal service is the one that made you do this it doesn't say that but sort of the f a a they would understand the f a a doesn't pay carriers to carry mail so that under the notice pleading standards  was this your client was eventually served i think it was a day or two after the case was removed yes right ok the case has already been removed your client is get served you would have passed thirty days within which to file your own notice of removal you could have asserted additional grounds at that point beyond those that stone had asserted in his notice or removal and you didn't do that your honor you're correct we could have filed something with the federal court at that point  that's where the notice of her move will get filed you file it in the federal court but it's not required to do a jointer i think but let me do it all i'm saying the hang on just one second i just want to be clear on your position you're saying that you didn't need to file a new notice of removal because stones notice of removal contained all that was necessary to invoke a federal officer removal jurisdiction but your first position that's my first visit ok and if that's if we don't accept that then you're saying that you know effect when you file the opposition to the motion to remain and that that even though that was a pleading filed on behalf of your client that you know affect amended stones notice removal is that your position or both amended and acted as a separate notice of removal functionally and we did not meet the thirty day requirement but the thirty day requirement is not jurisdictional in my understanding notice of removal i mean to the state jurisdiction more than thirty days later when to file its opposition to the motion remain and i thought hang on wasn't served in its own name until less than thirty days before you federal defense i'm going to address the nexus thing because that's the reason that the district court denied federal officer jurisdiction in this case here we have the bypass mail system and the bypass meal system so this is a system where the federal government is hating here yours such as hey glenn carry vive has to carry passengers and freight by rewarding them by compensating them by wouldn't be obligated to carry mail just because they were also carrying at least twenty percent for a passenger trying i don't believe they'd be obligated to carry mail but these routes are profitable really unless you are hearing bypass  it's that additional revenue under this subsidized bypass mail program that makes all the air service available to the village at a somewhat reasonable rate what makes this case different from other federal legal cases is you don't have a sole source contract i mean if they're going to source contract with haviland to carry passengers to quit killing i don't think we really have a question of whether there was federal officer jurisdiction what the federal government did here too is regulations to set up the requirements contract scheme the father of the regulations or the requirements the air carriers accepted contract by performance so you have a cut you know you have a contract that was accepted by more than one here carrier in the question  whether the fact that there is as it was a requirements contract that more than one air carrier responded to keeps there from being in a nexus or position is there is the federal nexus the federal government mission in this case was a delivery of freight passengers by fast mail to these remote landlocked villages of the requirement federal mandate or requirement mission was to deliver mail to queen a grieving to accept the federal government's offer to fly into queen gilling you there have that nexus that's required i guess the only allegation of negligence that seems relevant to your claim here is that he can fail to properly respond to the hazardous physical condition of the runway and the government federal government didn't order you were shut down your plight or stone to fail to properly respond to some hazard on the runway so i don't even understand how you're saying that this was the relevant allegation of negligence he's under the direction of a federal officer the the allegation was that flying in to  guy in the first instance was negligent no it's not i just read to you the relevant i'm looking at page what is this if you are one fifty seven it says a proximate cause of the crash one of them there are others but they're not even close to relevant the only one that's relevant says failing to properly respond to the hazardous physical condition of the i can't say the name could clearly runway that's not saying that it was negligence to even think about flying into that airport in the first place it just sa that there was a hazard hazardous condition on the runway that your client failed to properly respond to i don't see were the postal service or any other federal officers direct you not to properly respond to a hazardous condition on the runway the to go sit down thank you turn to the first question and that is that appellate jurisdiction can only be based on haggling fourteen forty two federal officer arguments as opposed to the federal question the first issue is whether this court has section fourteen forty seven if fourteen forty two federal officer jurisdiction was raised for the first time in the opposition for in the end the answer is no as you said in your comments the notice of removal made no reference to a federal officer no reference to a federal mission no reference to the post office directing the controlling or requiring operations into which we refer to in a short and way as quick and it best there was  b to c addresses the situation where defendants are served different times in a later served defendant can file something with the federal court i don't know whether you would call it a supplemental notice of removal i don't know whether you'd call it a joint or don't you know we don't really know what the form but the rule doesn't tell us what the form of that has to be but but correct but the statute recognizes why couldn't it be the form of a response you didn't actually didn't and didn't object to the done in responding to new motions raise for the first time the right answer if you had an opportunity to respond you didn't complain that you didn't have an opportunity you didn't complain that there was any kind of surprise or that they should have done something different but district court treated it as dollars everything had been  properly played a proper time and decided thing on the merits and i think that the point there your honor is that does not make an untimely action timely it's true judged by slide rules anyway but it does not change the underlying facts is ok ok i think it was august twentieth or so and if that's true then when they filed their opposition to the no to two your motion to remain and it was within thirty days if that is true and if that counter plays out in the way that the court is saying the counter will speak for itself ok but let's assume that those are the facts and show that there's no timeliness issue necessarily or is it your argument that we can't look at the opposition of the motion to remain as in effect a new notice of removal asserting additional grounds it is your honor because of the fact there is a quote i don't understand the yes what yes we can or cannot cannot cannot because of the fact that the important policy reasons for further disclosure in the first place is thin refused to provide discovery had opposed to scot free and the jurisdictional facts and which were arguing today were never disclosed at that time were disclosed to the federal court so what the district court had in front of it is the just record also went on to address the federal officers and right but but but it hasn't reached any of the questions as to whether for example whether they were carrying mail at the time or whether that's whether that's even relevant that on its own and they have the opportunity to make a more complete record on that had they chosen to do so at the lower court level  i have seven minutes i'd like to move to the subject of issues that unless the court has more questions regarding the procedural issues the burden is on the headline to state was there is a federal officer jurisdiction  that actually we know today that there was no male freight on this flight there was none delivered there was none taken out in terms of the showing that was made is to the federal officer jurisdiction there was no suggestion of any contractual relationship between sheree seeds the passenger in the postal service she contracted separately to become a passenger there was no evidence that was presented to the district court showing that flights to or quigg were specifically required in order for headley to be paid to carry mail freight to other airports in alaska there was no contract documents that were presented at all in which the postal service sets set forth the flight performance requirements there was no contract documents that were presented at all there was no suggestion that the postal service directed that this flight be flow either at this time or any other time and if you look at the headlines reply brief at page two headland itself concedes that it had one hundred percent discretion as to where  when and whether flew passengers into quigg well but not i guess your your opponent has alleged that paragraph thirty six as you just alluded to that even allowing pilots to fly into that airport was a reckless or obviously a negligent act right and that their position at least is that they were work wired to service that airport as part of participating as no by prince their position in arguing today was to say that they were required to use that here port they presented no evidence to the district court that in fact that was the case is there another airport or not a runway there no other is it your say no the greatest discretion on the part of an air carrier is the ability to say here is how we will fly this particular flight in these particular circumstances the greatest discretion in terms of the air in terms of the air carrier is every windows the weather conditions in alaska everyone knows the flight conditions in alaska and and the ability to control those events lies exclusively with the pilot and the air carrier if you when you go back to when you fly when you leave anchorage and as you board the aircraft most likely an alaska airlines jet my guess is if you went to the pilot and say well i hope you're doing what the f or the postal service told you to do the pilot would say i'm just flying the aircraft i'm going to do it and so far i've never left anyone up there you know that's the that's the discretion the postal service does not tell people  to fly aircraft and i would submit to you that based on the record before you you have nothing absolutely zero to suggest that the postal service said that they have to fly to what you have is a brochure that highly critical of what they call the bypass mail system is actually not mail at all it's meal freight you have an affidavit from the air carrier saying that the f a a permitted it approved flights to get but nothing saying that flights to get were required and you have a very complicated federal statute that talks about eligibility criteria for someone who's in your carry in alaska to have their operations subsidized if we're talking about subsidies i guess if i received a medicare benefit in getting close to that that maybe i would be on a federal mission of my own sort or if i were bringing my tax return to the mailbox on you know april fifteenth i'd be on my own federal mission according to the arguments that there are america to be a person operating under federal control yes that's right that's the standard yeah it and my point is no one's operating under federal control because it's the pilot makes the decision and it's the air carrier that makes the decision and no one has made any showing to judge by slight or to this panel saying that the postal service required this particular flight or any particular flight to go ahead you could opt out of flying to might affect your revenue but you would still be operating under the same criteria for eligibility for on the are the basis of our complaint is they fail to respond to the known hazards of the runway here well but you have other broader allegations that say basically i'm looking out for thirty nine i'm just going to use the shortened name the quick runway was not suitable for commercial passenger flight operations period and that's under a breach of unfair trade practices act claim which is something very different than a negligence claim no i know but then and th wrong for your but the essence of that claim is that if you have an unsuitable runway for commercial operations that you have a duty to share that information when you're entering into the contractual relationship with the passenger that is not the negligence claim that they are spinning the pleading into meaning well is this unfair trade practices claim i mean that's why wouldn't that still be part of the basis they can rely on for federal to remove  but that's a claim you've asserted again save lives and it is a claim we've asserted your honor they're saying as a defense to that claim we were going to rely on the fact that the federal government basically made us pointed that out but they don't have that showing in front of you they don't they've never made that showing that the posts to postal service require them to flight if we go to the most showing that you have is if they fly to get their operations there will be subsidized underserved conditions you know if there is no mail freight there qualified to carry mail but you have to be carrying twenty percent passengers and freight so if you're flying in there on your own home you just want for your own purposes you're not qualified from the outset so you have to be you have to be flying remote alaska villages which cannot exist plaintiff would argue and we should not a flown is the quake in the first place and that allegation so directly conflicts with a federal