on down are did you work things out it could happen to the evandale shipyard the issue on this appeal is whether the negligent the plainest negligence claims all of which concern as best as exposure relate to or  with the federal maritime commission requirement that avondale build world war two tugs in cargo ships with asbestos evandale urges an affirmative response to this question for four basic reasons first under the running versus crane co in the relating to language added by the twenty eleven the minimum and to the federal officer removal statute the tortious conduct need only relate to or be associated with the federal directive to make the case removable removing defendant is no longer required to show that the challenge conduct was caused by the federal directive dissatisfied the causal connection element of the federal office or removal statute of causation is no longer required just you  that there is a federal interest in this case for several reasons first of all the federal maritime commission required avondale to install asbestos on the ships secondly avondale was obligated to comply with that requirement the federal interest was further manifested your honor by government inspectors who oversaw the construction of these  ensure that the federal requirements were complied with including the requirement to install asbestos indeed your honor one of the vessels used in during the built in avondale during the relevant time period was used during the d day invasion in normandy further this case implicates the same federal interests that were implicated in your case you were involved in your honor dig winners case for government oversight and control over the composition and manufacture of agent or and implicated federal interest anything in the record showing there was a government control of the safety practices as distinct from the manufacturing requirements no sir there is not i so if that is your honor i submit that government control of safety is no longer required under the new relating to and judge africa judge africa was sensitive to that but felt that we were constrained by post twenty eleven amendment case law and it's the trilogy that both parties have talked in the briefs bar tell put aside savoie because the panel rehearing is is sort of our more complicated but then and not have a risk i have several spoke a first of all your honor panel itself held that it was not addressing the effect of the twenty eleven and that rather it said that the resolution of that makkah tale versus us department of labor this court held that a panel was silence on statutory construction is not binding precedent and as we demonstrated in our briefing your honor all of the cases in this circuit decide to go for the fair curiam opinion in in seven was that denying our petition for a hearing on bach none of those and the reason that bartell is easily distinguishable is because in bartell the federal government did not require our removing defendants to do anything much less direct them to do contrast the two because in bartell the federal government didn't require the removing defendants to do anything your own much less anything to do with asbestos by sharp contrast the federal government here required evandale to install asbestos evandale was required to comply with that requirement and the government maintained oversight control in bartell by contrast your honor there was no government oversight can or control now in bartell although someone must have directed the removing i'm sorry someone must be directed to i'm sorry the federal government must a directed someone to install as festus on the vessels operated by the dependents it certainly didn't direct that requirement to the removing defendant therefore avondale is not similarly situated your honor to the bar tailed congress by adding the twenty eleven amendments changed the law and it changed a lot materially in three this court held that the plain meaning of relating to  excelsis said that the amendment broaden the universe of cases subject to federal officer removal therefore the twenty eleven amendments replace the old caused by standard with a new relating a standard simply put a removing defendant now need only show that the federal directive is associated with or connected with the federal directive here the district court held that we did not satisfy her does that mean that every every ship as best contractor would have to be required to install as best as yes in i think that is one of the lines that you can draw you know trying to find help for the relating to put out but you end up old caused by test the new relating to test is broader and it can encompass more than one activity or act that relate to the talents conda to borrow on negligent terminology or removing the pin that is no longer required to show that the federal directive is the sole proximate cause it need only show that it is a contributing cause to borrow from negligence type of law so it has relaxed the standard but it has not done away with the standard itself now is it fair to say that no matter how we rule there will be a split in other words post two thousand and eleven the eleventh circuit isn't aligned with the third in the fourth  honor the third circuit in in re commonwealth has certainly articulated your viewpoint articulated my viewpoint in not only believe the eleventh circuit in taber or  is incompatible with with mob view in both of those cases they would have satisfied the old caused by test anyway so those circuits really haven't gone that extra step that the third circuit did in right commonwealth or that i'm asking for you to do today your honor i don't see a conflict because a case they haven't gone that your view of tell me if i'm oversimplifying your view of that the eleventh circuit case is a little bit how you view bar tell which is the language and in the opinions that refer to causality is unnecessary to the decisions yes or i am aware of the language  believe it just wasn't necessary and it wasn't necessary for the facts of that case if you can recall your honor in that case the ruling electrical company had a contract with the department of agriculture have offered absolutely no reason why this court should deviate from its normal practice and indeed in federal officer removal cases your honor this court has historically been very cautious limiting its decisions to just cases to do issues that are looked fully developed in the record for example in sad walk in humphreys versus elliott company the parties our position is that the district court was correct in finding that there was no causal nexus between the challenge conduct at issue in this case and abigail's directions under from the government to use its best us and i think that's what is somewhat getting lost in avondale argument they're essentially taking the position that the two thousand and eleven men may change the causal nexus test to one not of looking at the challenge conduct issue that didn't lead to a federal interest because the challenge conduct at issue was failure to train failure to warn failure did adopt safety procedures and with court held is that is charged conduct addressing the negligence claims basically said the allegations in the challenge conduct are identical so we think the result and sat was what ultimately be the same even though on rehearing the southwark panel chose not to address the american i think essentially it wasn't brought up fairly room excuse me some are fairly rude but one of the things that pose a counsel brought up is he came forth with the idea that he believes the third circuit decisions support his position i would disagree with that in reading the commonwealth case they do talk about the relating to language and the association and what it must bring but one of the key cases that just came out of the third circuit in two thousand sixteen is the pat case and interestingly they don't put much of a discussion there brief about pop they just drop it as a footnote but it actually was in his best his case and what was key in that case is typically the these remains get overturned you see there's a strict liability component to the case and it's pretty easy in those cases because the challenge conduct is the mere use of a specialist in the product and that's what the government told the product manufacturer to do in the pap case it was boeing being sued as a defendant a product manufacturer defended for including this passes in their airplanes but it didn't go up on strict liability it went up on failure to warn failure to war it was an issue in bartow was an issue in southwell and is an issue in this case but what the court said in the air it didn't find that the relating to test was met simply because the government is the for relating to requirement was met because of boeing's evidence submitted that the government controlled the content of the written materials and warnings a soda associated with the aircraft they actually came forth with evidence showing a answer this question of whether there is of the requisite federal interest here that underpinned the move and i question as well if the government i think it's not there if the government has a government interest to i think i think it differs depending on the claims at issue if it's a product manufacturer i agree because the challenge conduct is the fact that their products defective because the stuff this is used as not our claims here are claims and nothing to that type of case where you have a failed to train failure to warn you have to extend it back to you again and i'm sure it helps you to move to safety precaution i understand why you do it but they now you know you're dealing with  government structure and policing of government contracts with the government has a very unique instinct in power with regard to government contracts you wouldn't you know that of course what we know the justice  that different it sounds to me like that's an even more interest in the federal government because it's different because of what's challenged conduct is and that's what the ranks that the test is still what the challenge conduct is something you can look to the failure of the government and the federal hands to subdue to police the use of the product but that avondale itself is there not of a federal there are contract who has a federal contract with the government but they're a private employer and when you look at i think a good distinguish government stepped forth the safety record it regulations and what the contractor had to actually did the federal government set forth orders as to what the employer had to tell the employees and give warnings about employees that's the type of case that that up and comes out to be a federal interest not one where you have a private employer like avondale where you had own safety guys say and that amdo had no control what i mean that the government had no control whatsoever over situation where the government in conflict with the government specification that it be located at the trade off we make the law over john you know once you go in one way of policy and the federal interest is going the other they passes and that's my position i think that's what the way in reading the ranks that's how they read bartell a distinguished part tell  one of the additional things i wanted to bring up is in what in the in the watson case was watson first philip morris in talking about statutory construction the supreme court indicated that while the language may be broad it's not limitless and you can look to context history history legislative intent and what avondale does is actually cite to the house report and what they're essentially coming here arguing is that the two thousand and eleven amendment was meant to essentially abrogate or overturn the line of cases that have discussed this negatives came to light rain like barto and i think ultimately it talks about what it's aimed at it wasn't even that the causal nexus requirement was the big issue was with you read the house report that avondale cites the problem with some of the dishes when the courts were having is pretty soon discovered so a federal officer would get petition to give a deposition that officer would remove it courts were saying well the statute says a suit relating to our suit for their acts so that the courts are saying well they have to have a lawsuit that's actually been filed so we're going to remit it there's no lawsuit involved at this discovery so they in the in the house report actually states that's what this is meant to address because forty seven states at the two thousand and eleven time period had preceded discovery amendments and they were looking to fix that next to death with the language that they changed was it used to say sued in official or individual capacity for any act under color of such office now it says for relating to any act under such color of federal offices so i think what the two thousand level members really meant to do was to handle those precinct discovery type cases and the circuit splits on that and the issues that the district courts and federal courts were ha with those cases because since two thousand and eleven i don't think any case has gone as far as i mean there was trying to do here which is today just because they say the government specified discusses this failure to warn claims bring it to be removable and i think that that that pap case that third circuit case highlights this because that was a failure to warrant case and the reason the government found that the related to requirement was where it was met was because of the evidence that the government there's evidence in those cases and that's the evidence was that the government had directed that particular warning yes and i think that was the one that maybe some of the foster wheeler if i'm trying to remember correctly put these equipment manufacturers that's what they usually the argue when they remove these cases is that the government directed the warnings they come forth with military specifications showing that for architect and technical manuals the government says we had to do x y and z for warnings  and just like that pat case the evidence that they actually met about the warnings they would be included that's what's absent from avondale removal they don't even dispute that they're not even arguing that the government was involved in how they would warn their employees and in the implementation of safety measures and to address just briefly the colorable federal defense force and you have until he just brought up the fact that judge africa didn't reach that  issue and i know typically the courts won't address an issue that the lower court didn't address but i would like to point out of the court and i think we pointed out in our brief as well the issue sorry the eleven amendments in such a way as to render them irrelevant or to give them a grudgingly narrow interpretation indeed this court has repeatedly noted to s courts had a mission not to in too liberally interpret the federal officer in move of statute what they are advocating is precisely that type of grudgingly narrow interpretation build these cargo ships in these tugs and it doesn't require any citation of authority to show that american industrial might in particular getting shipped over to europe was an eleven amendment in circumstances other than pretty soon discovery so that therefore that horse is out of the barn finally your honor application the relating to standard is consistent with the plain meaning of the twenty eleven amendments is consistent which is arising in its consistent with the federal interest implicated in for these reasons