versus crane company may please the court my cross on me have a pal and crank up your r s if i may i'd like to start with one brief procedural point before i jump into the substance of my argument and that is that is i was doing my final preparations yesterday evening i  and i want to let the court know we're not relying on that opinion all right we'll ignore it and turning to the substance your honour's crank over move this action into twenty eight u s c fourteen forty two a one and everyone agrees that statute has to be interpreted broadly  and we submit the answer is yes now i don't think there's any dispute here as to either the nature of plaintiff's claims or the actions the crane co took that are the subject of those claims plaintiff asserts claims that product liability claims based on two to the navy had asbestos components in them specifically a gasket and a piece of what's called stem packing some of those products contain this best to some did not crane co supplied both types to the name there's also no dispute that the navy upon receiving these valves from company often or at times applied other us best products to them primarily external insulation that the navy used to insulate valves once it installed them in pipelines and ship it ships finally there is no dispute that this time period these valves would have had any type of warning caution relating to the use of asbestos now franco's so so i think the appeal boils down to is under the causal nexus element was the navy involved in those actions and we believe the answer is absolutely it was franco's theory of the case which under jefferson county v a has to be accepted at this stage at the jurisdictional stage is that regardless of the valves misters ring game count on the navy would have exercised extensive absolutely made those decisions and that's what i was going to turn to first that was in the design specs right that's exactly correct that's exactly correct two two points one as far as who made the decision to put supplied contained as best as components are evidence and of vermin so that the navy issued detailed military specifications and started doing that prior to the world war two era at least by the third of us and the specifications govern supplied the navy now the specifications change somewhat over the years we've provided the district court with several exemplars of them but they all had the same basic characteristics the design of the valve was dictated the materials of components to be used in the valve whether asbestos or non us best us and the product literature labeling and warnings that were to be supplied with the valves the valve had an identification plate that had certain information the spec said times to supply manuals with the valves and then it dictated the contents of the man on the outlook to some of the record i couldn't couldn't let me read on alliston asbestos the word since this is on a few pages of the it wouldn't have as best us unless it was specifically in that specific a space that's right whatever the specification said if it said use another type of gasket some of these were made of metal and that's what franco would supply the testimony from our expert navy witnesses whatever the spec pleading the government through the navy into this case your honor i'm not an expert on that but i believe that there are some decisions from the one nine hundred eighty s where makers of the insulation products that were installed on the navy pipelines a particularly the johns manville company tried to employ in the navy in the semester best as claims and i believe there is federal precedent that the foreign sovereign immunity the navy is has sovereign believe that there is any allegation beyond misters aurangzeb work in the navy he served in the navy from if i'm recalling correctly nine hundred fifty two to nine hundred sixty on three different ships and i think the claim focused solely on that time period i'm not aware of there's any evidence of him being exposed in for instance a refinery or some way of employment your orders as we pointed out in our briefing we crank zero and several other equipment companies that are similarly situated sold to put into the navy  have have brief this issue and presented this issue to three other circuit courts of appeals that's the ninth circuit in the late eighty's case the second circuit in the cuomo case and the seventh circuit in the ruble case and each of those courts held that that allegat if i can very briefly your honor turning to where i think the district court may have gone wrong here i think the district court just plain applied a too stringent version of the tests that are applicable under fourteen forty two you know if you're going to if you're going to have an intention that the statute be interpreted broadly in favor of removal but how do you do that you only require a colorable defense not a not an airtight defense not of the fence that's going to win on the merits necessarily it's the burden of proof the burden of proof your honor i evidence in support of them there is authority going both ways i can now i like to think that the answer is no because fourteen forty six does not require evidence to be attached to a notice of a move i don't think it's an issue the court has to reach here because we did supply a significant amount of should be in federal court the district court remanded this case even after finding the crinkle had a plausible defense and i don't think that's right whether this defense well to really succeed on the merits of it should not be the question at this stage unless the court has any further questions i'll wait  colorable defense yes the bar is so low to establish causal connection but there is a bar and does have the burden of proving it and we contend that it did not prove that either with respect to showing government specifications for the use of this past us or government control over the war warnings and it's important to get into that habit and specifically to talk about how it failed and that that burton first of all i'm surprised mr options are here entirely outside of the record this morning and sang that the ships were constructed in one nine hundred forty five in one nine hundred forty six we have nothing in the record to say that nowhere he says that there is no dispute that as best as was put on the outside at the navy's decision there's nothing in the record about that all and i'm going to get to what is in the record and address specifically where i think that fell down first with respect to korea and to use of this past as a manufacture i'm glad he withdrew the decision in houston in one nine hundred ninety seven because we have the supreme court and watson philip morris in two thousand and seven a case not cited in either party is appell briefs i apologize i want to read to you directly now the words acting under are broad and the statute must be liberally construed but the term is not limitless the fact that a federal regulatory agency directs supervisors and monitors a company's activities in considerable detail does not bring that company within the scope of the statute and thereby permit removal  further said regulation of that activity doesn't authorize removal the matter how extensive and as the supreme court said later in the case of correspondence surfaces go to satisfied that burden of proof a contractor has to show that the government directed the contractor to do the very thing that is the subject of the requires that's not just a statutory jurisdictional requirement it is a constitutional requirement that there must be that acting under a one and causal nexus fix to that now looking into their evidence they did not make that crucial sheli here they offered first the affidavit of an environmental safety expert mr paddled leoni who says crane operated pursuant to pointed out examples but his examples are from nineteen thirty eight and nine hundred seventy eight he made no effort whatsoever nor did any other expert were provided were average then that the navy is or any evidence that the navy ever did deviated from the way that it communicated with contractors other words did they use they the navy never only got down to the specification level in not in these two are slightly incidents this is important judge because the mills bags were rolled over year after year after them just as cranes burden to prove it would you just said they rolled over how do you know that well because they've given a several of them and if you look at the later ones it says the super c is the mills back from such for inspection that's what they said they are also extremely specific about the materials to be used for the purchase and issued extremely to specific th you got a year's nickel for this one copper nickel loud noise for this one steel for this one gun battle for this one they have to be threaded this way they have to be this size no mention of as with regard to the manufacture for shipboard use they also said that these parts have to withstand certain pressures and certain he's and the reason that the record examples of the types of doubts and issues in these cases meaning the seven to which is testimony is attaches exhibit it's not attached  because the navy required kring tried to import that by sergeant into this case but sergeant was talking about other ships and where he speaks generically and broad terms and judge i'm going to get to that in a minute but i want to refer to point two cranes brief words says the district court and plaintive appear to demand a level of specificity from crane that is virtually impossible to meet given the vague nature of plaintive cell gauge now we gave them the damage causing material as best as they have acknowledged they only prepared these pipes and valves we gave him the ships on which he served and the dates on which he served so did we give them an impossible burden didn't find it myself until i read all eight hundred pages and this to all of them in preparation for this argument it says in order to ensure affective efficient and safe operation of its warships the navy center at least world war two has developed and maintained extensive documentation for each ship class and individual ship he was able to reach into what he described in that paragraph as this extensive library of documentation to pull out the mills backs and the contracts related to is have you extrapolate from what sergeant said in his case which was a satisfactory showing in that case based on documentation that was provided but which hasn't been and admitted from this record and this court bart you know it may be difficult for you to meet the legal requirements and provide us with the contract but that's what the law requires that you do to establish this for us of this that's the city that the law requires and this case quite an expert has said it wouldn't have been difficult for them to do production documents he would have had to produce what you're looking for now strongly believe we did everything we needed to do with aiding through th ship i'll go with that up it's not hard it's quick crane's burton do you want to stay in state court you have to defeat this allegation of government contractor memory i don't believe that one thing i have not the district court ruled in our favor the district court ruled that this evidence was incompetent to satisfy claims byrd was not sufficient and we believe that it was of the navy ships or is it just exclusively as to the navy ships were the exposure took place believes that he was exposed to in other environments as well but cranes involved and this case relates only to its manufacture for the navy ships of the warnings that it provided for the parts of your taxes so that's all we're talking about this further said that the requirements of that city must be tailored to fit the facts of each case not of their cases that's what we've got at the davids prepared for other cases based on hearsay and double hearsay because the documents are missing it was us it was cringe burden of proof they called him produced what they needed to produce but they didn't this is what has been called strategic a mission something that crane has castigated for and other cases you might want to take a look at would be cr incompetent evidence and generic speak this court held incur starter if the contractor shows the government is involved in the decision to give or not give a warning is not the bird a few brief points here i am admittedly very biased but after listening to counsel i cannot help but think there is a huge factual dispute here and that is exactly why this case should stay in federal court  willingham said in that case this stays in federal court the factual dispute has to be resolved through the federal court proceedings not at the jurisdictional stage as far as you know and i would like to offer the court one quote from the third one thirteen the inquiry on the motion to remain and is purely jurisdictional and neither the parties nor the district courts should be required to engage in fact intensive motion practice pretty discreet to determine the threshold jurisdiction government is regulating us they're regulating everything we do we should get to remove and what the supreme court held in watson was no merely being regulated a member of a regulated industry is not enough a government contractor is someone who helps the government do classes they did not say that you have to put as best as inside the amounts of this i'm not sure that the they deal with i don't know how they deal with the packaging of us best astronomy one of the us best products used in the valve was called packet some of the specifications incorporate the valves specs incorporate the the spec for asbestos packing packing was like a piece of rope that contained us best as it would go inside the vax it's not the packaging no no no no asbestos packing is not is not a piece of it's not packaging and the other component the gasket that i talked about earlier again the specifications do i do dictate exactly what they had to do records exist for the ships that they specif morcha these are all you'd have to show it seems to me that they were on a ship he worked on just give you the specs for that ship one ship here's the thing you're on or is it the specs that applied to the valves in the engine room or the sneered i just these are some evidence about should have used as best us know the valves that were actually provided by your client for the ships is there any evidence that the evidence is that regardless of the valves one crank o sold a valve to the navy it had to comply with specs of the type that we've submitted and i would again refer the court to the cuomo case that it did it was dealt with exactly this issue and said customary specifications are sufficient