these oral arguments are going to be audio only a couple prefatory remarks because we are only proceeding on audiophile that may result in some interruptions including by the judges of the attorneys so we want to apologize in advance for those secondly i wanted to note that nobody is going to be penalize for any technical difficulties we may have to endure  watson and this court's reasoning and that's there and ruffle eisen are acted under the federal government when it contracted with the army to producing oxide and when it produced and supplied zinc oxide and white less carbon it to government contractors and conformance with details of government specifications for military use during world war two there is a connection or association between plaintiff's claims the four relating to requirement was defeated merely because the plaintiffs lawsuit related not only to i asked an arts production for the government during world war two but also to i asked in our production of materials outside the war effort on our production for the government under contract and pursuant to federal specifications is an inseparable part of the conduct at issue in the suit and under the case both during world war two when the defendant repaired the government ships under contract as well as before and for many years after the war when defendant repaired ships for private parties and so even though the defendant acted under the federal government for only some of the relevant period that was sufficient and the recent borzois and new jersey department of environmental protection decisions which we submitted by a twenty eight j letter support that same point and your honor the district court made a number of errors in concluding that removal was improper st with respect to the acting under element the district court contravenes the supreme court's and this court's admonitions that federal officer removal is not narrow or limited sec and also with respect to acting under the district court erred in concluding cry from the assistance that i assign are provided in producing critical war materials indeed the watson court expressly distinguished cases like this one where the fandom has a contractual relationship with the government to produce an item it needs from the one before it the court also erred in concluding that atlanta richfield failed to assert a colorable federal defense because the court entirely ignored i assume ours directs defense contracts with the federal government to produce ink oxide because i s n are producing oxide under a contract and pursuant to detail occurred while dupont was acting under government direction during world war two on this point where the district court erred with finding to part could remove only is operated under federal direction for the entire time period court must resolve the merits of the complaint to determine whether federal officer jurisdiction exists and then removal as appropriate so that's in here what plaintiffs i mean the issue is whether du pont's production of freon twelve resulted in the lead and arsenic contamination the plaintiffs complain it's about the merits that's a merit issue that removal is appropriate meets the there's no issue as you depart on the acting under because plaintiffs are not contested it to pont has shown that it meets the connection or association requirement in undertaking acts at the government's direction including receiving allocations of lead and building a plant and operating it to manufacture freon twelve which resulted in in waste streams that include lead and arsenic which is what plaintiffs are suing about now the important thing is plaintiffs present no fact undermining dupont's showing on this requirement or any other they present only one fact they point to a statement by dupont that it used led as an input in the production of another product but that statement about an input of lead does not contradict dupont's evidence that the production of freon twelve resulted in an output of lead in arsenic so here's the really the court should accept dupont's allegations because plaintiffs have not presented any facts undermining tip on showing the  supreme court and willingham say that those amend the notice of removal so to me it is akin to a statute of limitations defense in a complaint the court will typically not dismiss a case for  failure to adequately leave the statute of limitations is met but where facts are in the that the complaint sufficient to show that if that you have limitations has expired then the complaint can be dismissed and the same thing here with the notice of remov straightforward and we can look at those facts and say based upon the facts provided in the affidavit and in the notice of removal is there a meritorious claim here and so i i think the answer to your question your honor is the co absolutely be factual category not the jurisdictional category and doherty it might explain the problem with so called jurisdictional disclaimers is that they try to disclaim essentially any cause of action  constitution or the various set of circumstances that would be a federal defenses or federal claims the problem with those those kind of disclaimers is that at the outset you have no idea what what facts matter here we have material to begin with were some sort of nuclear fusion has occurred change a base element into another element now with the freon twelve out of the picture that leaves only two pods or c five  now as we see in maize versus city a flip from the th circuit and also in washington versus monsanto from the th circuit merely receiving federal resources is not enough to satisfy federal officer removal and maze it was the receipt it was  early on in the case that the the michigan environmental department received federal funds that was an on off in washington versus monsanto it was even more direct monsanto received funding from the government to but let's keep in mind the requirement under boil and every case that is dealt with the federal contractor defense is that there must be reasonably precise specifications merely specifying a quantity is far touchstone of federal contractor defenses is if the government made me do it the fact that dupont received shipments of lead has nothing to do with the government making  pollute and finally du pont was not under the direction of the government in doing any of that there is under a boil there is a requirement not only that the the government contractual relationship and reasonably specific requirements are reasonably precise specifications there is the requirement that the government of the obligations to the government forced a conflict between the the contractors obligations to the government and the contractors obligations under state tort law and that is absolutely not here there's no specifications whatsoever there was nothing from the government that says you needed to pollute that this is a far cry from the new jersey department of environmental protection cases which have been cited in the recent notices of additional authority but in both of those cases  transitioning over to atlantic richfield it's important to break up the zinc oxide zinc oxide pigment the white lead carbonate and the let the sink oxide only contract directly between it is the appear to me of an off the shelf product now as we the brief goes through and recent court decisions from the th circuit in the th circuit have shown quite concretely there is no basis for federal officer removal when the contractor is doing nothing more than selling to the government a standard commercial product that it would sell to anyone else in the market generally called an off the shelf product that was the  circuit just found in baltimore mayor of baltimore that that is not enough and i certainly found before in washington versus monsanto if that's not enough and then the decision that was cited to the court by me last night regrettably i just found out last night the th circuit again in a case mirroring mayor of baltimore again found that off the shelf products are not enough and if sales for multiple reasons in those cases it failed because there is no there's no causal connection whatsoever between the governments purchase of an off the shelf product and the creation and building of the product but it also fails to the government contractor defense and  in boyle the supreme court specifically gave two illustrations of where the contractor would fail merely by engaging and off the shelf products an air conditioning unit that merely has  by the government for cooling as the supreme court said would not be a sufficient defense as a government contractor to avoid liability under state law for not putting in safety measurements  matter how detailed the government regulation or how intensely they have to d's activities are supervisor and monitored it is not sufficient that you merely participate in a regulated environment and in watson the so an important contractor was aiding the government an entity such a film morris isn't aiding the government whatsoever in the philip morris like atlanta critchfield does have certain limitations on sale of products some of what it landed ridgefield relies on that it could not sell certain lead products certain other products outside of the government there's already limitations on the sale of products and cigarettes as well say persons under the age of twenty one and leading in opinion is that correct no your honor yes it has been heard on bob but the opinion was issued in february i believe it was the defendants who submitted that to the court in their st notice of supplemental authority very good you've got about fifteen seconds left if you want to wrap  up for yes thank you are because both the atlantic richfield defendants defensively through their respective burns to show that they acted under a federal entity that their conduct was called we connect to the relationship that they were governed the they were government contractors adhering the court must accept as true or removing defendants allegations whereas here a plaintiff's makes a facial attack on removal here plaintiffs have not introduced any facts to dispute the allegations and based on those allegations and the record atlanta critchfield satisfy each element a federal officer removal under this court's case that's certain the rd circuit's decision and those must be accepted as oxide is the only direct contract that i assume are with the government in the record and that's correct but that's enough to establish acting under under watson a federal officer excuse me a private contractor acts under a federal officer when it both assists the federal government in carrying out its duties and is subject to government guidance and control and here it's undisputed as the district court observed  quote operated facilities during the world war two period where it produced materials the government has to support for it that's enough to satisfy the assistant's requirement and with respect to control and are contracted with the army to the presence of lead at the e chicago property at the government's direction is sufficient for dupont to state a colorable federal defense on lead because it fits within those allegations and i think it's also worth noting the plaintiffs