directions and the plaintiff's claims and then third whether there is a colorable federal defense the district court's ruling here focus solely on the causal nexus and in looking at that they're essentially two prongs to that first whether the actions were taken under federal officer and second whether those actions are causally related to the dispute in this case both of those are satisfied both under this court case on under the supreme court's case law are supposed to be relatively low threshold that are easily satisfied defendants hear what old monsanto is asked to do for the government and i'm not sure that's right i think you need to show fair amount of direct control and direction by the government and what what direction of control by the government is there in the record year you have there are multiple examples of direction and control here if i could address those first with respect to the specifications the government specifically in a number of its specifications required particular types of p c these to be used they granted necessity certificates to allow monsanto to produce that it otherwise could not because it didn't have the capacity because they were essential for the national defense there's ample evidence in the record that the call these are p c b s they're for example their lack of solubility their resistance to changes in temperature all of their lack of flammability all of those were things that made them necessary for national defense and meant that there were no adequate substitute for it what what did they what did the government directed them to do something specific certainly it did so by requiring the use of specific p c b used in its specifications for example for coating for wires or cables in the navy for example for use  potting material in missiles for its use in anti fouling paint for ships and so all of those i think are examples where the government said you have to use this and the evidence and yes it does require the court to draw a connection the evidence of the government itself agreed that there were no other substitutes that would meet these requirements that it not be flammable that it be resistant again means that looking at that there was an air view that they acted under the direction of the kind of taking each of these pieces of evidence let's go to that one with respect to whether both of the purchase orders and some of this that's the case is what's your best that that means acting  example of where federal officer removal should apply that's particularly true here where we're talking about products that are made for the national defense as this court recognized in mackay when we're talking about things that are for the federal defense for national security the government may make calculations about risks and benefits that are different from the calculations that might be acceptable in a civil context and here time and time again when you look at the record you find the government itself saying again and again that these are central for the n expand capacity to meet that you have letters in which they direct monsanto to produce p c b s in compliance with contracts to third parties you have examples in the record where monsanto in fact objected and said it no longer want to sell p c s and it was directed pursuant to the d p a to produce those documents we think that that well together here's here's my problem with that argument so far as it goes i agree with you but the complaint is not are but that is focusing on simply one claim that's raised in the complaint and in fact there are multiple claims that they raise including defective design and so here where for example the government was specifying when it lists the particular p c b with a number that's referring to a specific chemical configuration so when the government says you have to use this particular type of eric loehr for example in our specification they understand what they're asking for the requiring monsanto to provide it and so to then have a claim that that is defective in design i think it's sort of a classic example of where that is appropriate to have federal officer removal because we're the government you know that i'm not sure you're answering my question he out is there anything here that shows that the government respect to the failure to mourn claim and that's one claim and one claim only there isn't evidence that the government failed to or instructed monsanto not to warn people there is however ample evidence that monsanto warned both the government and third parties of the risks of p with respect to disposal in fact we have evidence in the record that the government cell was responsible for improper disposal you have the spill into amish river when the government dropped a transformer you have similarly the fact that puget sound naval for p c b contamination because when they went to maintain them in the evil stations when they went to renovate their refurbish them then you could potentially have contamination you could have really because that's true i guess you defend well that government did that we didn't do that but again i think when you look at the purposes for which these products were sold and the fact that a substantial portion of them went to the government that's precisely the sort of area where there is a real federal interest in having these cases tried in a federal form if you go back and went back to look at the notes on the case you cite in your brief and that you just talked to us about so we are versus foster wheeler that's the fourth circuit craze correct correct but the actual language in that case talks about manufactured for the produce the fact that they did so in many instances as some contractor is a legal matter not relevant to whether they are entitled a federal officer removal and i think the letter is just in rough form i think those are your best evidence that secondly i think lapse over to the colorable federal defense because when you look at here the question is did they occur because of what they were asked to do the government asked for the p c b s d pacifically and asked for a particular piece based on their formulation because of their qualities because of what they did and the government did that knowing of the potential risks and making a distinction about balancing those benefits and those risks together that's something that this court mckay recognize is important to protect it's something that this room court in boyle recognized is essential that if you're going to have contractors do three things for the government that the government would otherwise have to do itself in this case for example create the material for missiles or create insulation for cables and wires create the materials that would go into transformers then you don't want to create a disincentive where companies are producing things for the government and then are at risk for decisions and discretionary decisions that are made by the federal government itself  say about p c s and what they claim about the spread of them it's impossible to sort of view these waterways in hermetic isolation and say well only this part of this waterway can be attributed to the federal government and we're going to look at only the rest and so i think in this case because you had ships traveling through that were using these products because you have records of sales directly to washington because you have records of sales that were made over monsanto's objection at a point when it was no longer selling for to private companies we think we've more placed the court in eagle or deputy solicitor general appearing on behalf of the state of washington monsanto cannot meet its burden on her fourteen forty two for two reasons one there is no causal nexus between washington's claims and any action that monsanto took under the direction or guidance of a federal officer and second they have not shown a colorable federal defense lacking either of those elements the district court's findings would be correct to check and lack of any colorable federal defense that does not appear to be part of the appeal it is not part of the appeal but this is to novo review and the court can uphold the district court order on any basis moving first to causal nexus is the court noted the supreme court and this court have consistently found that what is required to be shown is that the federal government exercise d control or guidance over the manufacturing by monsanto and there is absolutely no evidence of that here what we have is sales of off the shelf goods the government never directed monsanto regarding its production its packaging its formulation or the warning placed on its products i guess their argument is but if the direct government directs that it needs these products and these products need to meet these specifications that in directly it is controlling manufacturer what is your response to my response your honor is that under the united states supreme court's analysis and boyle versus united technologies that exact scenario fails in that case the united states noted that if for example the u s military were to buy stock helicopters and those helicopters ended up having a problem in some way for example sample with the objection system if a lawsuit were brought federal removal would not be appropriate because in that instance the off the shelf or stock purchase of helicopters would not involve federal control or guidance of the contractor and that's what we have here as well yes monsanto has shown that a small percentage of its product was sold directly to the u s government they have shown that some of the product was sold to sub contractors with the u s military as well but that does not meet the test applied by the u s supreme court and consistently applied by this court and any gun called us and in the light a case in every one of those cases the court has held that that evidence of control is necessary now might santo points to the racing on letter as its best evidence federal control and it contends that at that time monsanto was not producing p c b s and the federal government directed them to do so that is not correct and i would  point you to e r to eighty five which is an inner departmental government study that was issued in the early one nine hundred seventy s the same time is a raytheon letter and in that government study the government notes that monsanto was still producing p c base they were still selling them to private companies and noted that they were sold for example too to those who would use them for transformers and capacitors montana's contention that it engaged in manufacturing because it was required to do so by the government is false what happened with respect to the raytheon letter is that the government was acting under the defense production act which allows the government to direct the company to prioritize orders based on military need and that's what was done here monsanto was required to comply with that law and as we know from the watson case the united states supreme court has held that compliance with the law is not sufficient to show government control or supervision so that letter that single letter standing alone their best possible piece of evidence does not pass the test ok here here's my here's it seems to me i have no difficulty accepting that the claim of failure to war is not removable as one of the government directed monsanto to conceal the risks and i think the claim of improper disposal is not removable and i don't see that the government was directing monsanto to dispose of improperly and i include within that in the negligence claim the one claim it gives me pause is the claim that was mentioned by your adversary which is the second cause of action about defective design how do you respond to that through the record because reading the record demonstrates that monsanto's characterization of the record is absolutely incorrect so for example monsanto contends that with respect to paints the government specified that heat resistant paint use monsanto's a specified products turning to one ten for example that is not so that record citation states that use of monsanto's p c b this is quote an example of a formulation and quote in no way is the supplier restricted to this formulation we can move through the record and look at the sales of thermos all at one sixteen the orders to the that were made by the federal government eighty or one twenty two through twenty seven the cable that was to use p c b is to meet specs for lacquer again the government did not specify how much santa was to manufacture its p c base and took no role in that manufacture and finally finally with respect to wire again it you are too fifty six the federal government approved eric or for for electrical wire but it did not require it and it took no act of control or guidance with respect to manufacture of the product there simply is not one piece of evidence showing any government control and i think it's helpful to look at this court's precedents as well monsanto relies heavily for example on gun calvinists that case is an excellent example of what level of control the courts have found to be sufficient to meet this test under one fourteen in that case yes this court held that the burden is low but then it went through and analyze the evidence and found that the federal government directly controlled the insurance company that was at issue directly required the subrogation clause that was at issue in the lawsuit that the federal government actually own the funds that were at issue as well here this case stands in stark contrast there is absolutely no evidence of government control the government never became involved with how this product was manufactured it was persist off the shelf by a variety of customers and at no time did the government become involved and this is particularly important when you look at the purpose for federal court remove all the purpose is to ensure that when a federal officers actions are going to be subject to judicial review that the federal officer has the ability to bring a defense in federal court here there simply are no federal officer actions for the court to review and that is best this use was directly controlled by the us government there were a cording to the case quote intense direction and control on the part of the federal government the federal government was involved not only in the specifications but also the warnings that were not to be placed on that product again that's an excellent example of the type of control that the federal courts and this court have found to be sufficient to provide the causal nexus there is not one piece of evidence in this case that provides such evidence in conclusion because the federal government never directed supervised controlled or financed monsanto's manufacturing process or the warnings that it provided monsanto simply cannot meet its burden and the district court order remained in the case to state court should be upheld thank you thank you time and time again the supreme court and this court of caution that federal officer removal is not to be applied unduly grudgingly but the standards are relatively low and lenient and the test of the district court applied here or no relation to the statute if i could turn to the questions about the records what washington is asking you to do is to look at least each piece of evidence in complete isolation as they would argue they say zero plus zero equals zero none of these pieces of evidence are by themselves here and certainly put together they more than adequately meet the standard of showing that in this case the causal nexus is met they were met under the statute before it was amended and they more than thirty are met under the statute with the amendment you address the answer that i got to my question with respect control  design of the p c b because that seemed to me among the arguments you made the one that lee struck me as plausible but the response was the government did not in fact order specific formulations by moms an this court looks at the specifications and looks at them in the context of all of the documents where the government said again and again there were no substitute for p c b s that while there might be some variation in the particular percentages there was no variation in terms of what they could use there was no alternative that could comply with their requirements because of their unique qualities in terms of flame resistance lack of solubility and others if this court also looks for example at page five hundred five something they talk about the fact that when you're talking about these specific names when they call out a particular product name they're talking about a specific chemical compositions because not all p c these are like they have different some are resin summer oils and each of them have a different chemical composition so when the government was asking for a specific type of an era clear with a particular number they're asking for it because that was what was suited for the application for which they wanted to use it that is precisely the sort of guidance and control that's been adequate this is not a case as washington would have it we're talking about buying a stock item off the shelf where there is discretion in the person who's producing the item right if you produce if you just told by producing a helicopter and there's always a safe reduced me a helicopter for the government the specs are given very specifically and it's usually to manufactured this particular steel or alloy or for this seems a far cry from that i think it is not actually if the court looks at what they were talking about when they list for example the requirements that they needed in terms of how flame resistant it needed to be what did it need to resist for example with products being used and maybe did it need to resist salt but it was going to be in salt water all of those are things that the record amply shows could only be m this particular situation by the p c b that they specified so there was this question there's a difference i mean you say because these are not really off the shelf but you could have you know aircraft or pipeline or more too when they talk about expanding the capacity at those at those factories that were saying one hundred percent of that expansion was going to the national defense for example once monsanto somebody said stop selling to private sector entities but it was being directed by the government to sell either to it or to contractors in order to meet the national defense needs so given those i think they're sort of complimentary arguments in that case as i read the second cause of action which is the one that i'm said it's quite content to purchase the p c b is manufactured by monsanto but it made clear that it was willing to purchase other p c b is formulated somewhat different way by other manufacturers that sounds to me as though they're not ordering federal office removal they're supposed to look at the defense theory of the case and particularly here where it is a facial not a factual challenge all the inference is need to be drawn in monsanto's favor doing that thank you the government you have evidence over and over again in the record that there weren't substitutes you have examples where for example contractor said look up is for what's worse generically or want to substitute for monsanto's p c b when monsanto was effectively the set forth and call this an light and this court should reverse a district court and remain and so this case can be heard in federal court to accommodate the federal interests at play thank your honor thank you thank the council for your excellent arguments this morning state of washington versus my