it please the court my name is john to represent the appellant's associated with the former evandale shipyard the issue on this appeal is whether at least one of the plaintiffs negligence climbs all of which concern as best as expose relate to or associated with the navy's mandate at avondale build the destroyer escorts with that's best evandale urges an affirmative response for relate to or be associated with a federal directive to satisfy the causal nexus element of the federal office or removal of test or removing defendant is no longer required to show that the challenge conduct was caused by a federal directive a second all of the duties of care that avondale owed mr made you concerned as best us and so related to the federal government's requirement to use asbestos a requirement evandale was obligated to comply with that the government maintained oversight to ensure compliance thus insuring that drop interest therefore avondale satisfies the new relating to test regardless of whether it had the discretion to warn or take safety precautions in third district court held th discord holding and savoir versus huntington ingles is binding precedent on the negligence claims in this case yet the savak panel itself held that it did not consider the effect of the twenty eleven amendments and that resolution of that issue awaited another day now with these general principles in mind let's move directly to the focus of this appeal and that is the relating to language added by the twenty eleven amendments congress by adding the relating to test change the law and change the law materially injuring this court held that the plain meaning of relating to is broad broadens the scope of the federal office or removal statute in that the plain import of the phrase is irreconcilable with the requirement of a persona federal direction in fact congress itself stated that the phrase broadens a universe of backs subject to federal office or removal therefore the twenty levon amendments replace the old caused by test with a new relating to test simply put the test is no longer whether the challenge conduct was caused by a federal directive but merely whether it is associated with or connected with a federal directive now the district court held that avondale did not satisfy the cultural connection test in this case because it did not offer evidence showing that a federal directive prevented it from taking safety precautions or warning now while that holding might have been in keeping with the old cause by standard it has no currency under the new relating to test unlike the old test the new test what's your limit federal government has to require you to do the thing that got you in trouble here they required us to use as best as in the but the federal government didn't require them not to give you any warnings about safety did it not on the facts of this record no but inept what does negligence claim is about that they didn't give any safety net the claim we're talking about no safety warning that that is the nature of the claims your honor but when congress and the very well but the federal government never said you're not allowed to give any safety warnings did it say then on the facts of this record you're correct on did the federal government take responsibility for giving this a do not on the facts of this record your own and what many federal regulations preventing them my client was not required to do anything with safety but the crux of this appeal is that under the new test as opposed to the o t s the new test is bro enough to encompass more than one act or activity contributing to the challenge conduct borrowing from negligence concepts or removing defendant is no longer required to show that a federal directive is the sole proximate cause of the challenge conduct but merely a contributing cause now furthermore the may use negligence claims in this case implicate federal interest first the navy required avondale to install as best as on the ships in avondale was obligated with those requirements furthermore the federal interest were further manifest by the federal government maintaining oversight over the constructions of these vessels to ensure that the federal specifications were complied with including the requirement to do you connect that to providing sync to your honor the test no longer you know no longer need that level of specificity if i may let me refer to the third circuit the may use negligence claims implicated federal interest first the government required evandale to use the asbestos in avondale it was obligated to comply with those requirements secondly the government maintained oversight over avondale to ensure that they were doing this therefore this case implicates the same federal interest as in winners where the federal government has control and over government did not require the removing defendant to do anything much less anything to do with asbestos by sharp contrast in this case the federal government required evan to use it as best as avondale is obligated to comply with that requirement and the government maintained oversight to ensure compliance therefore part tell is easily distinguishable because there was no such federal oversight or control in bartell say the government maintained oversight if they were maintaining oversight to see sure that asbestos was being used well not with respect to how this shipyard was being run and what kind of protection was being yes sure they'd put in if they'd put in this contract you have to use asbestos and furthermore you need to have a robust system to protect your employees from the effects of asbestos then what might we have a suit against the government to fact that we have already written about this post the amendments in which we articulated something that included something that's in our old standard and we we found it not to be intention not apply here for two reasons first of all the several i panel in a published per curiam opinion said that it was not addressing the effect of the twenty eleven  own now third under this court's holding in mactel versus department of labor a prior panel's silence on an issue of statutory law i just think bartell is clearly distinguished bull and there's another aspect of bartell that i haven't had a chance to mention that i think's distinguishable all of the the remove the federal government required someone in bartell to install asbestos on the vessels being operated by the bartell removing the thing that the federal government did not require the moving defendants to do it therefore the bar till defendants in avondale are not theory not just the not just the practical application of the case to the facts to bartell it brought the bar tell reasoning up well your honor again and you've got to look at the federal interest in the federal interest here is the government made us do it we were obligated to do it and they maintained oversight to do it in bar tell that wasn't in bartow application of the relating to moppin truly stretch the test to the point of irrelevance here it clearly does not because because you have this federal interest also your honor  you know in two thousand congress changed the law and changed the law materially first but continuing to apply the old caused by a test this court would render irrelevant congress's addition of the relating to phrase secondly by continuing to apply the o caused by standard this court would be giving the federal officer statute grudgingly narrow interpretation which has been proscribed about this court and by the supreme court also this court has repeatedly noted that the federal officer statute should be liberally construed and third your honor the continued application of the caused by test would create a direct conflict between the fifth and third circuits motion to appoint counsel the third circuit held that the eleven amendment replaced the old caused by tasked with the new relating to test and the third circuit applied the relating use test in circumstances that would not have said a spied the old caused by test in that case the call you had the federal community defender who was under no mandate to make appearances in state court post conviction hearings although they were under a mandate to participate in the federal hate b s hearings but the third circuit held that even though it was within their discretion whether or not to do it that day still it still is closely related with its federal mandate to provide adequate representation to these post conviction defendants your hon that ag i mean if you want me to i can answer that right now your honor if you don't mind me here ok the fourth circuit in song goes has held that the twenty eleven amendments replaced the old because of or caused by test with a new relating to test that case involved westinghouse boilers on the ship also your honor the eleventh circuit in the cave or case which involves a rule electrification corp in alabama again alabama noted chance ok thank you sixty and has since passed i want to go back to avondale as argument on federal interest it's a critical argument in any of the federal contractor case in this case and in this case alone and there are many before you similar to this we produced the federal contracts signed between the us navy and avondale shipyards some of those contracts for the destroyer escorts and which mr were some of those contracts are sixty two pages long those contracts are silent absolutely silent on any provision or dyed woods or control or finding from the contracts that there is nothing in there directing avondale she was stablished this best to safety program why is that important to go back to the the cases cited by avondale and particularly to those cases he just cited from the eleventh circuit in the third circuit in the cave for the court found there must be your relationship federal officer and the private person and it must be one of subjection guidance and control in this case the federal officer being the u s navy in the private person being avondale shipyards one of suggestion guidance and control there's nothing in this u s navy contracts that subject avondale to a safety program that died avondale as to his best to safety program or control avondale question that i had was if there had been such a provision in the contract that laid out safety requirements since we're mandating you use asbestos there where you need to take great precautions regarding safety etc would the government then be a defender i think that's the winters case which was referenced in bar tel in winters it's an agent orange case in that case the government specifically packaged and delivered the hazardous product agent orange the government had the opportunity to place a safety warning on the agent orange or in conjunction with the production of the agent orange it failed to do that so there was a causal nexus between the federal action the failure to warn when it packaged the product itself and the company and the harm caused again in another case in this circuit nine hundred ninety eight long laundry if i'm saying that right also referenced in bartow the federal government actually imposed the safety requirements on the the manufacturing facility even to the extent of dictating the topics to be covered at the safety meetings so that's an incidence in there and those are facts and these are all these cases turn on the facts that in those cases the government is asserting a control not only guidance to control over the safety issue we don't have that in this case avondale argues that the two thousand eleven amendment to the federal contractor statute replaces the old but for causal relationship with the new standard of relating to or associated with even and they argue that it goes to the stent even to the extent of no longer requiring government control of safety it no longer requires government control safety safety if you've got the words best assume that contract  is that even under the avondale somewhat tortured construction the two thousand and eleven amendment there is nothing to relate or connect to in the contracts since there is they are law don't have to go with two thousand and eleven or not in the extent of it and what the new test is that it doesn't matter under both tests abbondio as argument fails under the old test a but for the new test of relating to avondale is argument fails because there's nothing to relate to there's no provision for his best to safety program in the contracts there has to be at least a minimal connection as as a rank said it can't be extended to the point of irrelevance that standard must be connected to something and here the federal government simply had no interest in telling the private contractor how to protect it workers it had an interest in building destroyer escorts perced best of the taishan at the cost agreed to that's what those contracts say it left to the private contractor the safety of its of the statute to include in the body any acts that are connected with or associated with the federal directive here if you look at the plaintiff's petition which recited in whole on page twenty five and twenty six of the different district court opinion the core allegation is that mr may use died as a result of exposure to asbestos while he worked at avondale the next ten allegations of negligence then relate back are concerned that it's things like if they didn't take precautions to  giving respiratory equipment they didn't give him protective clothing all of those allegations your honour's relate back to that core allegation that he was exposed to asbestos therefore applying this case in this case doesn't stretch the causal nexus test to the point of irrelevant in as far as president is concerned well durang is held to the test has been changed so the test has to go somewhere in that application of the cause boston or the way we have in the past doesn't mean you need the needle on the  broadens the scope of the statute it also admonishes against reading the statute in such a way that it doesn't render the twenty eleven amendments irrelevant or look at them in a grudgingly narrow way asa if the holding ins arriving had been limited district products liability your honor there would have been no reason for the court to have considered or plug the twenty eleven amendments in winners in one thousand nine hundred eight this court held that strict product liability claims satisfied all four elements of the culture nexus removal test points out that relating to is broader encompassing all acts that are associated with or connected to a federal directive in the united states supreme court in morale us w even further your honor in describing in i'm sorry let me back up second morale is decided by this rank or its president on the definition of relating to and if you look at the way the supreme court  interpreted relating to they used adjectives like expansive sweep broadly worded deliberately expansive in conspicuous for its breath your honor congress has the authority to define the jurisdiction of the lower federal courts and congress can the men jurisdictional statutes whenever it deems fit and when congress application of the relating to test in this case is consistent with the plain language of the twenty eleven the minutes the principles underlying zeroing in the supreme court's command which was around much longer than the twenty eleven the minutes that the causal nexus analysis is not to be unduly demanding but these reasons evandale respectfully request that you bake eight the district court room and order in remand the case