feinberg on behalf of the appellant's which are referred to collectively as blue cross there are two primary issues in this case brought by two different medical providers against blue cross for fraud in the use of rights in connection with blue cross contract between blue cross and the united states office of personnel management the st issue is whether the federal officer removal statutes acting under and connection prongs have been met there's no dispute here that is put into issue in this case patients who were in fact covered or enroll in the service benefit plan i was planning to take those issues in that order most of the court  something different this is the st issue i mean the nd issue if there are no patients that are in that plan how does that affect the whole case it would seem like michael in the other hoarder i'm happy to do it that way you and i i agree judge all right you're exactly right if if none of the patients that issue here are in role in this plan there's really no dispute about any but so so let me flip the order and start with that st because i think it's quite clear that there background about how this works because a private private privacy sorry concerns the patients and issue are normally not included in the complaint and it's quite common practice for provider who sues cases like this to give a list informally to the other side to the defendant saying these are the claims we say are our vision and that's what happened here there are no patients identified what plans are insured under none of that was identified in the complaint and that was not identified or blue cross until this october st two thousand and nineteen list and that's the critical event in this case by the way the same exact thing happened in the same charles case that this court decided last number that are enrolled in this plan and it is unambiguous because each such in rowley has an id number that starts with an r that's a unique identifier that is specific to this plan that information by the way is publicly known because it's on it's on the internet and also has been established in other cases involving these exact parts so a police know full well that a number that starts with an r is somebody who is involved in this plan if that were clear enough their own lists label the labels all of these individuals as enroll in the b c b s federal plan so i don't think there's any dispute about that blue cross has written point of this fact out  squares with the disclaimers that are expressly in the complaint because they say they're not seeking any relief under the federal plan and my understanding is i've got it right is once these were disclosed on this  i think is the undisputed plea not true the these individuals that were disclosed on this list the notion that they were going to virtually disclose has never been made before other and then in this court this issue came up over and over as i just mentioned in the district court not once the appellate has ever say oh sorry we didn't mean to include these people or take any action to clarify that they didn't mean to include people inside and can feel are you saying when you said that's untrue i mean you didn't say that that's that's that's not accurate that's a mistake are you saying they're lying to what i and i don't really understand what your position is on accurate that it was a mistake well i think your honor it's it's pretty clear because the list has these people in them and a police made no effort ever to take these people off the list and just just to put a finer point on  page nine of the record of appeal in that case is a complete explanation of what these id numbers mean including the fact that our number is in the number specifically for rowley's of this plan you can find the same document  procedure fifteen b are quite liberal in that regard and the rules in louisiana this is a code of civil procedure article one thousand one hundred and fifty four is almost identical rule fifty four i'm sorry to rule federal rule fifteen phase and there's no guarantee they could ever give us and once they gave us that list that unambiguously said there are always in this planet issue we were entitled to remove well once it's clarified that there aren't any and that they aren't going to jurisdiction is determined at the moment the case with move so once they put an instance is where we allow people to say oh we're not really pleading hire and that we let people there all kinds of ways we let people come in and clarify  well i think it's the district court might have just pressure to do that but the police never asked for that in the district court they never said oh no we don't mean to be putting these people at issue in fact they took the exact opposite approach they said the removal was untimely because blue cross you knew that these federal employees were issue all along because you raise this as a defense over and over and so they can't have it both ways that they've intended all along that these federal employees be at issue and of course this does raise the issue of timeliness and as we pointed out in the breeze we had a suspicion all along that federal employees were worried issue but that wasn't confirm such that we could ascertain that fact until the list was actually provide ok let me go to your st point and can you deal with the fact that i am saying charles has where the opium matters because that's the policy that's directing th action whereas this case doesn't have that situation well yes and so i think the short answer to that judge all right is that there is no longer any requirement under either the acting under or the connection  eged so are you saying that even oprah virus exploited for all those kinds of things all all with the problems of the federal office or removal test yes absolutely you want to because we can do whatever supposed to be doing is long as you were doing it while you were performing your federal work that's sufficient to remove under federal oxer roof staff because the defendant will then be entitled to say no i didn't really do that or i have a good excuse for  send it back to the district court means further analysis there well that's a possibility your honor but i think the district court actually did analyze because the district courts entire rationale was o p m didn't direct the blue cross to take these particular allegedly fraudulent act and that although the district court analyzed that under the acting under that's really part of the connection that's exactly what happened in all of these other cases and all of the courts analyzed that as being part of what is now that connection i don't think there's also a show being a determined to be acting under opium but even the allegations of fraud and action is not relevant to the test the only part that's relevant is is the alleged conduct in this case fraud related in not causally related but just associated with the federal work and in this case that's undoubtedly true because a they were to the minister in the federal probe b it was carrying out this federally mandated pre approval process which is in the plan documents it's and rd there is this issue of assignments and and granted they're not suing on the side but the powerless here do say part of the conduct was not honoring assignments and paying the patients directly when they wanted the payments go to them wood where would rest our you can proceed but i do want you to answer the question if you piers if if a different strategy was pursued in the district court and so this is now and if this is a new strategy that  if it does not involve federal employees he said remained was proper in this appeal should be dismissed or the district court should be affirmed and i agreed with that for him to say that we've made no concession or clarification said that a document to be produced there has to be produced not it doesn't have to be admissible it just needs to if it's reasonably calculated to lead to the discovery of admissible evidence and should be turned over we complied with that we were comfortable doing it because we wanted to disclose as much information as we had and we made that disclosure after we had already made these this point was where it was a normal situation that's number one number two i disagree with my opponent i  is acted pursuant to a federal officers direction and number four the charge conduct is connected or associated with an act pursuant to a federal officers the retching so while the office federal officer does not have to dictate the challenge to action he does have to direct it there is no direction here o p m has not corrected anything in the points for which we were very if the concession is that there are letter to the court and so on that would be fine i missed you please do that within three business days and mr feinberg you may file a twenty eight day response as well in three days the away and then really get it i mean is that is that the right disposition here i don't think so judge duncan i think the judge in the district court decided this case on the rd prong that no action the th problem you know is is an open question in that it had really been analyzed the district court settlements stay away from not so what if what if that were you would would could could we decide that for prong and you and i think the district court stopped at the rd palm because it was so clear your honor that nothing when challenges to no activity challenge was taken at the direction of a federal officer but if the court isn't on just to disagree with me and the district at the direction of it doesn't need to be dictated by what has to be taken at the direction of and i think transitional may have used the word dictate in it but i don't think that upsets or over terms that courts this position or i'll we knew that had to happen some at some point apologize your honour's thank you i just want to make make a couple points st of all on on this issue of judge wilson your notion of a frolic you know and ultraviolence action by blue cross which obviously relates to this th element that we were just talking about i just want to note a passage from the supreme court's ruling him versus morgan decision this is a page four and nine of the decision it says it is not that petitioners act or the presence of a place in the forms of their fictional duties constitutes the basis the mistaken or false of the state prosecution in this case once petitioners had shown that their only contact only contact with the respondent occurred inside the penitentiary while they were performing their duties we believe they had demonstrated the required causal connection the connection consists simply enough undisputed fact that the petitioners were on duty at their place of federal employment at all roe relevant relevant times if the question raised is whether they were engaged in some kind of frolic of their own in relation to respondent they should have the opportunity to present their version of the facts to a federal not a state or and that is exactly the situation that we have here in light of your light i think makes this point really clear in  laws at that time was well if the conduct was used as best this you can remove because the navy told you to use as fast but as the conduct was you didn't do enough to protect your the workers from  or you didn't do enough to warn them the navy didn't say anything about that and so the courts consistently said you cannot remove that but lateral a change that in fact that's exactly what happened in laviolette there were no allegation about the use of us just as it was only a failure to warn  and failure to provide enough protection and the court said even though there is no direction specifically as to those safety measures that it could be removed because that conduct took place during the federal and so that's all that's required it's a very very easy test to me particularly after you lay the action here just has to be connected or associated with the federal work and that's exactly what we have here for the reasons already stated there any distinction because legislation was negligent or not of an intentional act like what is alleged is there matters there no i don't think so in a lot of the federal officer rule cases involve purposeful conduct that there's an old case for davis st south carolina that's discussed in the courts watson decision where the charge was murder because the federal the person in the private person acting under the federal employee legibly shot someone and there was no they're not missing no direction that you should shoot the person but that case was held by the supreme court many years ago to be removed on the supreme court in the last twelve years or so it's worth looking very carefully at these waivers and even the way mr woodruff explained them today we are not we understand that they're not seeking benefits and but that's not the issue here the issue is are any of the people involved that is are any of the patients members of this federal plan and as i said the record is unbelievably clear that they are and it would have been very easy for  say no no we didn't put them on the list but they never ever made that point in the district court as i said before they did the exact opposite they said you knew federal employees were involved and so you raise that as an affirmative defense and so your remov now is on time so it just makes no sense one other point along those lines a police in this case in this appeal and in the district court did not challenge our federal defenses those are different preemption underfe