parties actions taken pursuant to a federal officers direction and plaintiff's claims that the second part of the right this is second part and seems that's the part that the district court focused that the brief focus on so tell me i'm trying to figure out here in this case where the federal officers direction there isn't one that's the point ok what if i may change the facts a little bit delegates is it ok and they said to them you better check their export licenses carefully before you proceed with the case then be removable no one has you're still lacking a federal relationship well i guess we did it's the relationship that be relationship other than acting under the direction now acting under has two parts under means there is a federal officer and a subordinate then the second piece of acting under is this directive from the subordinate or from the superior to the subordin without the relationship you never get well i understand all that and my problem is are you saying that the relationship is some additional requirement in your case law over and above acting under the direction of no it's a piece of the acting under a case so it's really  another way to describe it right well it's a requirement of acting under and the reason i'm saying that it's course you must have a relationship with the person with the relationship is that some federal officer has directed you to act under his supervision case is that how do you deal with the federal contractor cases we have cases that say i can't government contractor produces a product it's defective so private person sues and the government contractor may remove that case correct yes but you deal with those cases the same way watson they're distinct because there's a contractual relationship which creates the subordinate superior relationship the contract i don't have why why do we have to have subordinate under requires the subordinate superior relationship and that doesn't exist here and there's no relationship much difficulty with this case and it's helpful to us i don't see any relationship at all that's exactly the same the direction at all that's exactly right other si contention seems to be we wanted to be careful and make sure we weren't breaking the law and so we did some things i also don't i think if you get to the second part of the claim which is is that they in effect to go over your customers i'm not sure i see the direction at all but if we just focus on the part where they're saying to your client we're not going to deliver right now because we need more verification  i'm not sure i see even the direction they're putting aside whether they were equal to the fed subordinate or what and so let me see if i can explain what happened here is that the district court bypasses this first issue whether there is a relationship come from the federal superior to its subordinate so that relationship doesn't exist you never got to the directive more than that oh i do have one question and the only thing that gave many pause here is there's some person in situ called the delegated security officer or something right and so well and she is approved as i understand it by the state department is that right i believe so yes so what what is her  obligation they have under the regulation it's not a product of their relationship with a fellow or their relationship with the state department wouldn't suit your claims and what the district court relied on was twenty two c f r one twenty seven subsection  point is that they cannot knowingly assist my client in the unlawful export of a great big that is reasonable that is the only basis of their claim that they have an obligation to ensure compliance with the they have to do x y and say yes with the federal officer for this purpose if they've been sued no because they and they don't have a contractual relationship they are not sim by mean it just seemed to me reading through the cases that the underlying license here is something more than just a regulation applicable to people in general and it was very  off course because i thought there was a direct but it was a directive and perhaps a relationship i mean you've got i got a direct relationship at some point with the government because the doctrine let's assume and i don't think the record makes this supports this year so this is i think a hypothetical that in c two does some checking and then calls up the federal government and says are these guys complying with their licenses and they're told yes they are ok are they acting under the direction of a federal officer that you know because all they're talking about they're not acting deliver the drone the why is because it's not compliant with the regulation you're not complaint with i started out with the what if what the officer just says you don't get to change my hypothetical the officer just says ok don't do don't do anything until i check to make sure that these guys are compliant and they saw at that point that's not this case so i'm not ok i'm trying to just the limits of this doctor and the and in see two says fine and says to your client having some difficulty getting to and that's i don't think it's the facts of this case and that's why i am a little resistant to importing the subordinate superior language from watson into this case so let me give you the next step of the hypothetical the the officer at the state department says don't deliver these i think there's a problem with these guys is they then acting under the direction of a federal officer yes  absence of all those things in this case cut in your favor i'm just trying to figure out yeah i'm a little resistant to your notion that the office of the order must always come from a subordinate to a superior because in the citizen help me arrest this bootlicker now now i want to get back to the real world i want to make sure i understand the record correctly there's none of that in this case is now and that's exactly why this argument fails watson refers to it as the failure of a mission there is obligation to ensure compliance without asking why and the why is because that's how in situ follows i tire not because they were directed to ensure compliance but because that's how they follow i tire and under wants and that's just not enough  in addition to asking the court to reverse remand to the state court and ask for fees because there's no reasonable basis for removal here intil instance you can identify a delegation a contractual relationship or a direct federal order there morning your honour's eric wealth counsel for instituting with me to counsel table is alex fenner right i heard a lot of questions that seem to be expressing concern about the removal here and i want to go straight to some of the hypotheticals now go straight to the real facts first sure tell me what federal officer you were acting under the direction of so there are different levels in the first level is the licensing officers at d t c that you were on that last and it's our product it's certain things but at the at the highest level here the federal government is providing aid to colombia they do that through foreign military sales which are direct u s purchases which in situ made to the federal government they do that by coordinating purchases by colombia some of which are made with u s funds so they have made a decision officers military officers you can read their declarations at s e r sixty three and s e r seventy they have chosen the scan eagle technology for colombia ok how do they get that they get that from in situ they place an order for that technology which comes from insitute that then flows down to the licensing officers and you get these very specific directions for specific transactions and if directed at the world that that is not a fair characterization of our target really in the way it works because it goes down to specific the specific transaction level which is why i think it would be a mistake for this court to just say well compliance with i tar that can't be a basis for removal because this is not a federal question case though we're not dealing here with a case it's being removed because it's a federal question cases not a thirteen thirty one case we're dealing with a case where the basis of removal second one and i tend to agree that you would have a colorable federal defense even if you were in state even this is even if it weren't removable that's not the issue the issue is whether you are acting under the direction of if it is the federal office to remove a statute so again i ask you identify the federal officer who's under whose direction you are acting the federal the first line federal officers are tim ruth meyer and tony derth ok so tell me what direction they gave you i read their notice of  license they're in a license to export and we cannot export any i don't know where you grieve about the law so tell me these two people that you identified did either of them say to you check out and make sure that these guys are in compliance with the provisos and not that i'm aware of ok did did did did they did did any federal officer instruct you to other than what i talked tells you to do to look at your own let me finish and finish and we'll give you time to to check out fidel attach compliance with the proviso so i understand federal law may have mandated that you did that that's not my question my question is whether some officer told you t program in colombia ok this is not like you go on amazon dot com and order a scan eagle and it's subject to some regulatory requirements these are this is defense technology that the u s wants in colombia the u s the first s eagles in colombia and this is coming straight out of the complaint were purchased by the federal government through a classified federal agency in city didn't even know they were in colombia ok the government is placing this technology in colombia make with respect to whether or not look the government could be selling because our reasons are these to the colombians so the question in this case is whether your client was acting under the direction of a federal officer if i understand your correctly so tell me if i'm wrong is that you were acting of the direction of a federal officer because federal officers compiled these general provisos and i don't know i would say our core argument is there is no principled reason to treat us different than the government differently than the government contractor cases and you ask the government contractor cases the government has told you how to make a product and then and then the the person who buys the product who's injured by it or if product in those cases because you had a contractual relationship with the federal government that told you how to build ai and i understand you're trying to make the analogy but again it's those cases where you say it's this close to i mean it is it is this close the question essentially a preemption like the feds says we had to do this because we were required by law to do it would not get you into federal court i'm federal question correct and the more one expands honor your i think what you're about to say is we need to insist on federal officer direction because that's going to keep it within federal question and the federal that and that is actually not how it works and in that city of mesa right city of mesa it's the federal defense that gets you within article three arising under jurisdiction so we did the federal defense gives you enough of a federal question which is the statute is constitutional it's constitutional but you're not asserting a rising under jurisdiction here correct that the federal defense is enough to satisfy the constitutional requirement of arising under for two or three that's not is that's i thought that's not the problem and here's where here's the problem to judge to judge burton and lays out is this the supreme court of the united states for better or worse starting with motley has said that while a federal defense satisfies article three it doesn't satisfy thirteen thirty one and so now we have a question of whether or not we've in effect join an enormous hole in the motley d thirteen thirty one doctrine by letting a plaintiff say well but i was just following federal law no your honor nothing we're saying here contradicts merrill dow any of the arising under cases i mean we're now no no you've got everybody agrees if this were simply a question of article three jurisdiction it would be fine because you're asserting a federal defense and that's enough for our to that's very it's not enough for removal though so for removal so for removal we have to satisfy the statute and the the issue is you do not need to do that for some purposes of arising under and making sure there's a federal question or whatnot and there is no way that ruling that affirming judge rice is going to create some gaping hole that allows removal as we noted our brief state courts are not handling i tartus issues i mean i've had cases that involve more run of the mill torts and courts naturally say well if we allow removal feel like the court has provided this like withering analysis of the allegations and what's going on that frankly is very removed from the procedural framework that you set in light versus crane in the complaint as true we take everything you legend your notice of removal as true and you may disagree with me on the effect of this my difficulty is taking each of those is true i still can't identify the federal officer under whose direction you are acting and so i take it your legal position is there need not be a specific federal officer under whose direction you are acting as long as you are acting pursuant to the general commands of federal law can i obligation your notice of removal that a licensing officer communicated with you and said you must do the following things correct incorrect the proviso is their communication to the manufacturer we make the product is that what you're saying yes yes that's the that's that's the that's your debt your direction argument that is absolutely our direction argument and it follows through your honor it falls through up the chain to the military commanders well now w directed you to deliver them to the federal government troop the shrew the federal government direct ok but so they didn't want to federal government did not order the drones from you correct ultimately of course they because what my child wanted for christmas i guess you could say i ordered not my child i think you know i think you don't have a better argument in this case i'm not denigrating your argument by what i'm hearing what i'm having difficulty with is your remaking of the facts and the facts are the facts no federal so that may be that may be a good position you may win on it but i'm we've had difficulty so far with as your insistence that some federal officer gave some direction to you other than issuing the license and i don't want i don't want cases you may have countries that side on their own want to particular technology the u s says fine ok over here in our case and again this is why this case is a narrow removal situation you have a more than a decade old u s federal government program in colombia using the scandal technology and and the u s government buys scan equals and the u s government and this is in the complaint itself the u s government plans with the colombians what technology they're going to get and how they're going to use it so they're making that order so there are there are government contractors in this case and actually fidelity has previously conceded their government contracts sure there are plenty of government contractors should but and this is not a case that arises out of government contracting well the second life and they don't when they deliver it in pennsylvania they're delivering it to fidelity that is a government contract and and if you tell it was complaining about the delivery of the it is there is a liberal construction a federal officer removal and you have a liberal panel but i'm so very liberal different versions of liberal but but you know we made our allegations by attaching a declaration from the tree control person bowing and turning what i'm saying a trade control person it bowing and for those folks you they are absolutely working with the federal government but  deliver these products and i've read the declaration and the difficulty again agree with me the declaration doesn't say somebody at the federal government communicated with me and told me to do the following things correct as as as you know me just say about your hypotheticals on that point the idea of calling up the state department and somebody says don't don't give it to him that is absolutely i think i agree but i thought your opponent was being too quick too cautious and i don't think that's a close call in fact we cite the c r g t case which is actually from the fourt circuit it's a district court in the fourth circuit where that's exactly what happened the government said stop working with that subcontractor and they are acting under the direction of less adderall bar and but for the folks on the front lines at boeing and in feel they are acting under federal officers they are acting under these licensing officers i mean that is their job to follow these instructions no differently than if they called up and were told that on the phone that's how they would treat these provisos and i think a fair reading mr h declaration would interpret it that way and so if the panel has more questions about those relationships more questions about that evidence that could have been developed in the district court and that's the proper procedure would be to ok allow true on its face are insufficient to support federal removal and the district judge says no there's sufficient so it's hard for me to understand where there was a burden on them at some point to bring forth further and what i think if they want to claim that as a practical matter this is regular old compliance or as a practical matter people don't treat these things as directions that they need to have a declaration that says that we did our declarant says that and we should win if that's unopposed so you say i don't read was complying with federal law and i regarded these these provisos as directions it doesn't turn them into directions unless they are as a matter of federal law correct correct  but i'm not sure that the death fact that was unopposed means the case is over it just means we have to determine whether or not what your officer said amounts to acting under the direction so there's what the officer said about how he treats them and then there are the provisos themselves which is the district courts that are transaction specific about orders of the scan eagle and those provisos on their face are no different than the kinds of provisions you would find in a government contract they they read the same way there they are providing the product to columbia no differently than when in situ provides it under a government contract in our core argument is there is no principled reason and there is so i believe we have agreement that there is no federal officer who ordered instituted to do anything and the argument as i understand it is that in situ is nonetheless close and close is not enough well to the argument and  to hear you respond to it the argument is that federal officers don't send their directives with respect to specific export licenses by calling operate e mailing we're doing whatever you and i might do in order to communicate with voluntarily shared it with them to have transparency in their business relationships that's the excerpts of record for sixty three that was issued to my client and my client has a responsibility to follow it so i understand  had an obligation to make sure they have an obligation not to sell us a product if they know we're going to send it overseas unlawfully that does not create is therefore they perceived a need to see your license well we shared it with them voluntarily  certain but i want to go back to what i now understand to be in c to say central argument which is that this is the equivalent of a direction from a federal officer not in  court finds there's no evidence of that but that aside from that it never it was never actually came to fruition you get in trouble the more you press on the facts because then we get into the summary judgment where i must tell you if it were in front of me i would affirm so i'm focusing on ju n so watson distinguishes contractor cases one because there's no contract and then absent the contract you don't have the specific direction as if the subject matter of the case is there is a drives out of a contract with the federal government and we have direction the fact well i think in effect and the winters example of course is not just the contract exists but then there is a very specific detail control over the chemicals and ratio is used to create agent orange so it's the contract and the very