FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCISCO NEGRETE; WILLIAM 

BERGER; BRANDON HRAIZ; CRAIG 

TANAKA; JOSEF PHILLIPS,

Plaintiffs-Appellants,

v.

CITY OF OAKLAND; POLICE 

COMMISSION OF THE CITY OF 

OAKLAND,

Defendants-Appellees.

No. 20-16244

D.C. No.

3:19-cv-05742-

WHO

OPINION

Appeal from the United States District Court

for the Northern District of California

William Horsley Orrick, District Judge, Presiding

Argued and Submitted May 10, 2021

San Francisco, California

Filed August 19, 2022

Before: J. Clifford Wallace and Daniel P. Collins, Circuit 

Judges, and Jed S. Rakoff,* District Judge.

* The Honorable Jed S. Rakoff, United States District Judge for the 

Southern District of New York, sitting by designation.
2 NEGRETE V. CITY OF OAKLAND

Opinion by Judge Wallace; 

Dissent by Judge Rakoff 

SUMMARY**

Civil Rights/Jurisdiction

In an action brought by five City of Oakland police 

officers seeking to overturn their termination, the panel 

vacated, for lack of subject matter jurisdiction, the district 

court’s judgment on the pleadings in favor of defendants and 

remanded with instructions to remand this case to state court. 

In March 2018, the officers were involved in the fatal 

shooting of a homeless man. The Oakland Police 

Department investigated the incident, concluding that the 

officers’ use of force was reasonable and complied with 

Police Department policy. The Chief of Police agreed. 

Separately, the Community Police Review Agency (CPRA), 

the investigative body of the City’s civilian oversight Police 

Commission, investigated the incident and determined that 

the use of force was objectively reasonable. Finally, the 

incident was also investigated by the Compliance Director, 

an individual who is independent of the Police Department 

but with temporary, limited oversight over it pursuant to a 

consent decree (the Consent Decree) reached in a different 

case, Allen v. City of Oakland, No. C00-4599 TEH (N.D. 

Cal.). The Compliance Director disagreed with the Chief of 

Police and the CPRA, instead recommending termination of 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
NEGRETE V. CITY OF OAKLAND 3

the officers for unreasonable use of force. Subsequently, the 

Commission decided to convene a “Discipline Committee” 

due to the Compliance Director’s disagreement with the 

CPRA. Following its review, the Discipline Committee 

agreed with the Compliance Director and directed 

termination. As a result, the City terminated the officers. 

After their termination, the officers sought a writ of 

mandate and declaratory relief in state court. The officers 

alleged that the City and the Commission violated their 

obligations under the City’s charter, the municipal code, and 

other sources of state law when the Commission assembled 

the Discipline Committee despite the consensus between the 

CPRA and the Chief of Police that there was no 

unreasonable use of force. The City removed the case to 

federal court, invoking federal question jurisdiction under 28 

U.S.C. § 1331. After determining that there was no conflict 

between the City charter and the Consent Decree, the district 

court concluded that the City acted in compliance under both 

its charter and the Consent Decree and entered judgment in 

favor of the City. 

The panel held that this was a case arising under state 

law that properly belonged in the state courts. Recognizing 

that under § 1331, a case can “arise under” federal law in 

two ways, the panel determined that it lacked subject matter 

jurisdiction under both branches of federal question 

jurisdiction. 

First, the panel lacked subject matter jurisdiction under 

the federal cause of action branch because federal law did 

not create the causes of action asserted. Plaintiffs 

exclusively asserted state law causes of action. The panel 

stated that the complaint correctly anticipated that the City, 

in defending against the officers’ claims, would assert that 
4 NEGRETE V. CITY OF OAKLAND

the Consent Decree, an agreement overseen and enforced by 

the federal district court, required the City to give effect to 

the Compliance Director’s findings in the way that it did. 

But even assuming that such a contention by the City would 

raise a federal issue, it would not establish that federal law 

created the officers’ claims. It is settled law that a case may 

not be removed to federal court on the basis of a federal 

defense. And that remains true even if, as here, the state-law 

complaint explicitly sought declaratory relief with respect to 

the anticipated federal defense. Additionally, this action 

could not be characterized as equivalent to a motion under 

Federal Rule of Civil Procedure 60 to obtain relief from the 

terms of a federal consent decree, because the officers were 

not parties, or in privity with parties, to the Allen judgment, 

and their petition and complaint did not seek to challenge, 

enforce, or otherwise modify the terms of the Consent 

Decree or the federal court orders in Allen. 

The panel next held that it lacked subject matter 

jurisdiction under the substantial federal question branch. 

The officers did not necessarily raise a federal issue in their 

petition and complaint and accordingly their claims fell 

outside the special and small category of state law causes of 

action arising under federal law. The panel rejected the 

parties’ contentions that a federal issue was necessarily 

raised because the officers were attacking a federal district 

court’s consent decree. Here, the officers were not parties, 

or in privity with parties, to the Allen action, and they were 

not directly attacking the Consent Decree. Although there 

was a potential federal issue involving the question of how 

to resolve an alleged conflict between the Consent Decree 

and the City charter, it was not an essential element of any 

of the officers’ claims. At most, the officers anticipated that 

the City would rely on the Consent Decree, but a federal 

issue raised in anticipation of a defense was not sufficient to 
NEGRETE V. CITY OF OAKLAND 5 

establish federal question jurisdiction. Moreover, for federal 

question jurisdiction to extend to a declaratory judgment

action, the claim itself must present a federal question 

independent of anything alleged in anticipation of a defense. 

Here, but for the federal issues identified in the officers’ 

request for state declaratory relief, any potential federal issue 

would arise only as a defense to a state-created action. 

 Dissenting, Judge Rakoff agreed with the majority’s 

statement of the legal conditions under which a case “arises 

under” federal law, but respectfully disagreed that the claims 

here did not meet those conditions. Because the officers’ 

petition necessarily attacked a federal consent decree and 

determining the scope and meaning of the consent decree 

was necessary to decide this case, Judge Rakoff would hold 

that the officers’ claims gave rise to a federal cause of action.

COUNSEL

Zachary A. Lopes (argued), Harry S. Stern, and Timothy K. 

Talbot, Rains Lucia Stern St. Phalle & Silver, PC, San 

Francisco, California, for Appellants. 

Gina M. Roccanova (argued) and Yuki Cruse, Jackson 

Lewis P.C., San Francisco, California; Barbara J. Parker, 

City Attorney; Ryan G. Richardson, City Attorney; Oakland 

City Attorney’s Office, Oakland, California; for Appellees.
6 NEGRETE V. CITY OF OAKLAND

OPINION

WALLACE, Circuit Judge:

In March 2018, five City of Oakland police officers were 

involved in the fatal shooting of a homeless man. The 

officers were fired for the incident, and they sought to 

overturn their termination in state court. The City then 

removed the case to federal district court, which granted 

judgment in favor of the City. The officers appeal from the 

district court’s judgment.

But before we can review the district court’s judgment, 

we must ensure that we do not exceed the scope of our 

subject matter jurisdiction, “i.e., [our] statutory or 

constitutional power to adjudicate the case.” Steel Co. v. 

Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). Because 

subject matter jurisdiction “involves [our] power to hear a 

case,” United States v. Cotton, 535 U.S. 625, 630 (2002), we 

“have an independent obligation to . . . raise and decide 

jurisdictional questions that the parties either overlook or 

elect not to press,” Henderson ex rel. Henderson v. Shinseki, 

562 U.S. 428, 434 (2011). “Consequently, defects in 

subject-matter jurisdiction require correction regardless of 

whether the error was raised in district court,” and regardless 

of whether the parties agree that we have jurisdiction. 

Cotton, 535 U.S. at 630. We review de novo questions of 

subject matter jurisdiction. Lake v. Ohana Mil. Cmtys., LLC, 

14 F.4th 993, 1000 (9th Cir. 2021). “Even where subject 

matter jurisdiction is otherwise lacking, we always have 

jurisdiction to determine our own jurisdiction.” Chavez v. 

JPMorgan Chase & Co., 888 F.3d 413, 415 (9th Cir. 2018)

(internal quotation marks and citation omitted). Because we 

lack subject matter jurisdiction and thus are powerless to 

adjudicate this case, we vacate the district court’s judgment 
NEGRETE V. CITY OF OAKLAND 7

and remand with instructions for the district court to remand 

this case to state court.

I.

A.

After the fatal shooting, an investigation ensued. The 

Oakland Police Department (the Police Department) 

investigated the incident, concluding that the officers’ use of 

force was reasonable and complied with Police Department 

policy. The Chief of Police agreed. Separately, the 

Community Police Review Agency (CPRA), the 

investigative body of the City’s civilian oversight Police 

Commission (the Commission), investigated the incident 

and determined that the use of force was objectively 

reasonable. Finally, the incident was also investigated by the 

Compliance Director, an individual who is independent of 

the Police Department but with temporary, limited oversight 

over it pursuant to a consent decree (the Consent Decree) 

reached in a different case, Allen v. City of Oakland, No. 

C00-4599 TEH (N.D. Cal.). The Compliance Director is 

authorized to direct disciplinary actions against officers to 

ensure compliance with the Consent Decree. Here, the 

Compliance Director disagreed with the Chief of Police and 

the CPRA, instead recommending termination of the officers 

for unreasonable use of force. Subsequently, and critically 

here, the Commission decided to convene a “Discipline 

Committee” due to the Compliance Director’s disagreement 

with the CPRA. Following its review, the Discipline 

Committee agreed with the Compliance Director and 

directed termination. As a result, the City terminated the 

officers.

After their termination, the officers sought a writ of 

mandate and declaratory relief in state court. The officers 
8 NEGRETE V. CITY OF OAKLAND

alleged that the City and the Commission (collectively, the 

City) violated their obligations under the City’s charter (the 

Charter), the municipal code, and other sources of state law 

when the Commission assembled the Discipline Committee 

despite the consensus between the CPRA and the Chief of 

Police that there was no unreasonable use of force. The City 

removed the case to federal court, invoking federal question 

jurisdiction under 28 U.S.C. § 1331.

The City then moved for judgment on the pleadings. The 

City contended that it was required to reconcile its 

competing obligations under the Charter, the Consent 

Decree, and the district court’s orders implementing the 

Consent Decree. The City maintained that the 

Commission’s decision to convene the Discipline 

Committee to resolve the conflicting recommendations was 

necessary to satisfy these obligations. The officers crossmoved for judgment on the pleadings, asserting that the 

Consent Decree and the district court’s implementing orders 

were not controlling because (1) they should be construed as 

not overriding the City’s Charter obligations, and (2) to the 

extent that they did override the Charter, they were invalid. 

As to the latter point, the officers asserted that the Consent 

Decree could not lawfully override the Charter’s 

requirements; nor could the City execute an agreement 

allowing it to violate its Charter. Reconciling the Charter’s 

terms with the Consent Decree, the district court held that 

the Compliance Director, standing in the shoes of the Chief 

of Police, had the authority to convene the Discipline 

Committee. After determining that there was no conflict 

between the Charter and the Consent Decree, the district 

court concluded that the City acted in compliance under both 

the Charter and the Consent Decree, and it entered judgment 

in favor of the City.
NEGRETE V. CITY OF OAKLAND 9

B.

The City of Oakland, like many cities and counties in the 

United States, is governed by a charter. In California, the 

provisions of a city’s charter “have the force and effect of 

legislative enactments.” Cal. Const. art. XI, § 3(a). A 

charter permits the city to “make and enforce all ordinances 

and regulations in respect to municipal affairs, subject only 

to restrictions and limitations provided in [its] charter[] and 

in respect to other matters [it] shall be subject to general 

laws.” Id. § 5(a). For instance, a charter may provide “the 

constitution, regulation, and government of the city police 

force.” Id. § 5(b). Ultimately, a “city may make and enforce 

within its limits all local, police, sanitary, and other 

ordinances and regulations not in conflict with general 

laws.” Id. § 7.

The Police Department, in addition to being governed by 

the Charter, is subject to oversight from the district court 

under the terms of the Consent Decree. The City entered 

into the Consent Decree in January 2003 after the Allen

plaintiffs asserted Section 1983 claims, alleging violations 

of their civil rights due to a pattern and practice of 

misconduct by the City’s police force, as well as deliberate 

indifference by the Police Department and its officers. The 

Consent Decree included numerous tasks that the City and 

the Police Department would need to satisfy, including 

implementing reforms to the Police Department’s policies 

on adjudicating and disciplining officers. In December 

2012, the court approved the Allen parties’ negotiated plan 

to appoint a Compliance Director, who would have authority 

to oversee the City’s and the Police Department’s 

implementation and execution of new policies to comply 

with the Consent Decree.

Specifically, the district court ordered that:
10 NEGRETE V. CITY OF OAKLAND

The Compliance Director will have the 

authority to direct specific actions by the City 

or [Police Department] to attain or improve 

compliance levels, or remedy compliance 

errors, regarding all portions of the [Consent 

Decree] . . . , including but not limited to: . . . 

personnel decisions, including but not limited 

to . . . findings and disciplinary actions in 

misconduct cases and use-of-force 

reviews. . . .

In November 2016, the City’s voters approved an 

amendment to the Charter titled “Measure LL,” adding 

Section 604. Section 604 established the Commission and 

the CPRA to investigate claims of police misconduct. 

Section 604 also sets forth the procedure for investigating 

officer misconduct and any ensuing disciplinary 

determinations, as well as the Commission’s oversight role 

over the CPRA and the Police Department. Section 

604(f)(3) requires the CPRA to issue written findings after 

completing an investigation and propose disciplinary actions 

to the Commission and Chief of Police. If the Chief of Police 

agrees with the CPRA’s findings and proposed discipline, 

Section 604(g)(1) provides that the Chief of Police then 

notifies the subject officer of the findings and the intent to 

discipline. However, if the Chief of Police disagrees with 

the CPRA’s findings or proposed discipline, Section 

604(g)(2) states that the Chief of Police and the CPRA shall 

submit their respective findings and/or proposed discipline 

to a Discipline Committee, consisting of three Commission 

members. Finally, Chapters 2.45 and 2.46 of the Municipal 

Code codified the investigatory and discipline determination 

provisions of Section 604. Once convened, the Discipline 

Committee is required to “resolve any dispute” between the 
NEGRETE V. CITY OF OAKLAND 11

determinations of the Chief of Police and the CPRA, “solely 

on the record presented by the [CPRA] and the Chief.”

In this case, the officers seek to overturn the Discipline 

Committee’s decision to terminate them. The officers’ first 

cause of action is a petition for traditional mandate directing 

the City to comply with Section 604 of the Charter and 

Chapters 2.45 and 2.46 of the Municipal Code. See Cal. Civ. 

Proc. Code § 1085. The officers argue that the City violated 

the Charter and the Municipal Code when it improperly 

ignored the determination of the Chief of Police and instead 

relied on the Compliance Director’s review. In their view, 

the Discipline Committee lacked jurisdiction or authority to 

impose any disciplinary action. The officers’ petition 

therefore requests a writ of mandate compelling the City to 

comply with the Charter and the Municipal Code and to 

exonerate formally each officer, as well as appropriate 

injunctive relief restraining the City from maintaining or 

imposing any disciplinary action on the officers.

The officers’ second cause of action is a request for 

declaratory relief over the proper application of the statutory 

procedures set forth in Section 604 of the Charter and 

Chapters 2.45 and 2.46 of the Municipal Code. See Cal. Civ. 

Proc. Code § 1060. The officers seek a judicial declaration 

establishing that (1) the Committee may not assert 

jurisdiction to determine disciplinary action on Police 

Department sworn personnel based on a disagreement 

between the Compliance Director’s and the CPRA’s 

findings and proposed discipline, (2) the Compliance 

Director’s findings and proposed discipline do not stand in 

place of the Chief of Police’s findings and proposed 

discipline for investigations of alleged misconduct of Police 

Department sworn personnel, and (3) the Committee does 

not have authority to review material from outside the record 
12 NEGRETE V. CITY OF OAKLAND

presented by the Chief of Police and the CPRA when making 

a disciplinary determination.

In the end, however, we do not have the authority to 

consider the merits of the officers’ claims because we lack 

subject matter jurisdiction over this action.

II.

Federal courts are courts of limited jurisdiction that 

“possess only that power authorized by Constitution and 

statute, which is not to be expanded by judicial decree.” 

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 

377 (1994) (citations omitted). Removal to federal court is 

generally proper only when the district court has original 

jurisdiction. See 28 U.S.C. § 1441. Because the parties in 

this case are non-diverse, the only avenue to federal court is 

if the parties can establish federal question jurisdiction under 

28 U.S.C. § 1331.

Under 28 U.S.C. § 1331, federal courts “have original 

jurisdiction of all civil actions arising under the Constitution, 

laws, or treaties of the United States.” “[A] case can ‘arise 

under’ federal law in two ways.” Gunn v. Minton, 568 U.S. 

251, 257 (2013) (alteration omitted). First and “[m]ost 

directly, a case arises under federal law when federal law 

creates the cause of action asserted.” Id., citing Am. Well 

Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916). 

This branch—suits raising federal causes of action—

“accounts for the vast bulk of suits that arise under federal 

law.” Id.

Second, under the substantial federal question branch, 

“even where a claim finds its origins in state rather than 

federal law,” the Supreme Court has “identified a ‘special 

and small category’ of cases in which arising under 
NEGRETE V. CITY OF OAKLAND 13

jurisdiction still lies.” Id. at 258, quoting Empire 

Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699 

(2006). Specifically, “federal jurisdiction over a state law 

claim will lie if a federal issue is: (1) necessarily raised, 

(2) actually disputed, (3) substantial, and (4) capable of 

resolution in federal court without disrupting the federalstate balance approved by Congress.” Id.

For the following reasons, we lack subject matter 

jurisdiction under both branches of federal question 

jurisdiction.

A.

First, we lack subject matter jurisdiction under the 

federal cause of action branch. Here, the officers do not 

allege any cause of action expressly created by federal law. 

Rather, the officers exclusively assert state law causes of 

action—for a writ of mandate under California Code of Civil 

Procedure § 1085 compelling the City to comply with 

Section 604 of the Charter and Chapters 2.45 and 2.46 of the 

Municipal Code, as well as for declaratory relief under 

California Code of Civil Procedure § 1060 that, 

notwithstanding the Consent Decree and related federal 

court orders, the Compliance Director’s findings cannot 

substitute for those of the Chief of Police under the Charter 

and cannot give rise to the empanelment of a Discipline 

Committee.

To be sure, the officers’ complaint correctly anticipated 

that the City, in defending against the officers’ claims, would 

assert that the Consent Decree, an agreement overseen and 

enforced by the federal district court, required the City to 

give effect to the Compliance Director’s findings in the way 

that it did. But even assuming that such a contention by the 

City would raise a federal issue, it would not establish that 
14 NEGRETE V. CITY OF OAKLAND

federal law creates the officers’ claims. Such a federal 

ground for declining to comply with what the officers 

contend is the plain meaning of the Charter raises, at best, a 

federal defense to the officers’ state law claims demanding 

compliance with the Charter. See also infra at 17–18. It is 

“settled law that a case may not be removed to federal court 

on the basis of a federal defense, including the defense of 

pre-emption, even if the defense is anticipated in the 

plaintiff’s complaint, and even if both parties concede that 

the federal defense is the only question truly at issue.” 

Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987), citing

Franchise Tax Bd. v. Constr. Laborers Vacation Tr. for S. 

Cal., 463 U.S. 1, 12 (1983). And that remains true even if, 

as here, the state-law complaint explicitly seeks declaratory 

relief with respect to the anticipated federal defense. See 

Franchise Tax Bd., 463 U.S. at 19, citing Skelly Oil Co. v. 

Phillips Petroleum Co., 339 U.S. 667 (1950).

In removing the case, the City relied solely on Baccus v. 

Parrish, where the Fifth Circuit held that “[f]ederal 

jurisdiction is proper where a claim brought in state court 

seeks to attack or undermine an order of a federal district 

court.” 45 F.3d 958, 960 (5th Cir. 1995). At the outset, 

Baccus is not binding on our court. Moreover, because 

Baccus was decided prior to Grable & Sons Metal Products,

Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308

(2005), it is not entirely clear whether Baccus follows the 

federal cause of action branch or the substantial federal

question branch of federal question jurisdiction. Regardless, 

the notion that there is federal jurisdiction simply because 

purely state law claims have collateral impact on a federal 

decree conflicts with current Supreme Court caselaw. See 

Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 31 (2002) 

(rejecting the view that the All Writs Act, or notions of 

ancillary jurisdiction, allow removal of “a state-court case in 
NEGRETE V. CITY OF OAKLAND 15

order to prevent the frustration of orders the federal court has 

previously issued”); Rivet v. Regions Bank of La., 522 U.S. 

470, 477 (1998) (holding that, because federal claim 

preclusion is a defense, and not an aspect of a plaintiff’s 

cause of action, it is “not a proper basis for removal”); see 

also Energy Mgmt. Servs., LLC v. City of Alexandria, 

739 F.3d 255, 261 (5th Cir. 2014) (noting, but not deciding, 

the question of whether “Baccus is still good law in light of 

Rivet and Syngenta Crop Protection”). Framed at such 

breadth, Baccus would not correspond to any recognized 

category of federal jurisdiction.

We have instead more narrowly recognized that, in some 

circumstances, a state court action may properly be 

characterized as asserting a disguised direct federally 

created cause of action, equivalent to a motion under Federal 

Rule of Civil Procedure 60, to obtain relief from the terms of 

a federal consent decree. See Eyak Native Vill. v. Exxon 

Corp., 25 F.3d 773, 777–78 (9th Cir. 1994) (holding that 

district court properly “recharacterized” plaintiffs’ claims as 

“federal claims” asserting an “independent action for relief 

from [a federal] judgment” on grounds of fraud, at least 

where plaintiffs sought to represent parties in privity with 

those represented in the prior judgment); Villareal v. Brown 

Express, Inc., 529 F.2d 1219, 1221 (5th Cir. 1976) 

(recharacterizing artfully pleaded state court action as a 

motion under Rule 60(b)(3) to amend federal court judgment 

involving same plaintiff and same subject). This ground of 

federal jurisdiction does not apply here, because the officers 

are not parties, or in privity with parties, to the Allen 

judgment, and their petition and complaint do not seek to 

challenge, enforce, or otherwise modify the terms of the 

Consent Decree or the federal court orders in Allen. The 

officers’ petition and complaint simply seek compliance 
16 NEGRETE V. CITY OF OAKLAND

with, and clarification of, the Charter and the Municipal 

Code.

Accordingly, we hold that we lack federal question 

jurisdiction under the federal cause of action branch because 

federal law does not create the causes of action asserted.

B.

Second, we lack subject matter jurisdiction under the 

substantial federal question branch. This branch provides 

that “federal jurisdiction over a state law claim will lie if a 

federal issue is: (1) necessarily raised, (2) actually disputed, 

(3) substantial, and (4) capable of resolution in federal court 

without disrupting the federal-state balance approved by 

Congress.” Gunn, 568 U.S. at 258. Jurisdiction is proper 

“[w]here all four of these requirements are met” because in 

such a case, “there is a ‘serious federal interest in claiming 

the advantages thought to be inherent in a federal forum,’ 

which can be vindicated without disrupting Congress’s 

intended division of labor between state and federal courts.” 

Id., quoting Grable, 545 U.S. at 313–14.

Here, the officers’ action does not necessarily raise a 

federal issue in the way that Grable requires. We begin with 

the officers’ first cause of action, a writ of traditional 

mandate directing the City to comply with Section 604 of the 

Charter and Chapters 2.45 and 2.46 of the Municipal Code. 

The parties contend that a federal issue is necessarily raised 

because the officers “are attacking a federal district court’s 

consent decree.” Not so. The officers were not parties, or in 

privity with parties, to the Allen action, and they are not 

directly attacking the Consent Decree. Instead, the officers 

allege that (1) the City violated the Charter and the 

Municipal Code when it improperly ignored the 

determination of the Chief of Police and relied on the 
NEGRETE V. CITY OF OAKLAND 17

Compliance Director’s review, (2) the City violated the plain 

language of Section 604 of the Charter in order to find a 

conflict between the CPRA and the Police Department’s 

determinations, and (3) the Discipline Committee lacked 

jurisdiction or authority to impose any disciplinary action. 

Because the express terms of Section 604 and Chapter 2.45 

state that the Discipline Committee can only be established 

when the Chief of Police and the CPRA are in disagreement, 

the argument goes, the City’s process of review and 

termination violated state law. In addition, the officers argue 

that under the Charter and the Municipal Code, the Chief of 

Police strictly means the “Chief of Police of the Oakland 

Police Department,” and neither the Charter nor the 

Municipal Code grants any authority to, or mentions, the 

Compliance Director appointed pursuant to the Consent 

Decree. Indeed, the officers’ prayer for relief contains no 

request to enforce, modify, or otherwise challenge the terms 

of the Consent Decree at all. In the officers’ view, they 

should have already been “formally exonerated” when both 

the Chief of Police and the CPRA agreed that their use of 

force was lawful and within Police Department policy. The 

officers merely request compliance with the Charter and the 

Municipal Code, as well as injunctive relief restraining any 

disciplinary action that resulted from a process that allegedly 

contravenes state law.

To be sure, there is a potential federal issue involving the 

question of how to resolve an alleged conflict between the 

Allen Consent Decree and the Charter. Although this 

question would inevitably arise in this case and may involve 

a federal issue, it is not an issue that is necessarily raised

within the meaning of Grable because it is not an “essential 

element” of any of the officers’ claims. See Grable, 545 U.S. 

at 314–15 (emphasis added). At most, it is a federal issue 

that may arise as a potential defense. In essence, the officers 
18 NEGRETE V. CITY OF OAKLAND

anticipate that the City will contend that the relied-upon 

provisions of state law conflict with, and have been 

displaced by, the Consent Decree, and that the City is thus 

required to comply with the provisions of the Consent 

Decree. In considering such a defense, the court would have 

to determine whether there is a conflict between the Consent 

Decree and the Charter, and if so, how to resolve that 

conflict.

Even assuming that these inquiries implicate questions 

of federal law, a federal issue raised in anticipation of a 

defense is not sufficient to establish federal question 

jurisdiction. “[T]he question whether a claim ‘arises under’ 

federal law must be determined by reference to the ‘wellpleaded complaint.’” Merrell Dow Pharms. Inc. v. 

Thompson, 478 U.S. 804, 808 (1986), quoting Franchise Tax 

Bd., 463 U.S. at 9–10. “A defense that raises a federal 

question is inadequate to confer federal jurisdiction,” id., 

because whether an issue is necessarily raised depends on if 

it is “an essential element” of a plaintiff’s claim, Grable, 

545 U.S. at 315. Indeed, “it is now settled law” that a federal 

defense to a state law cause of action cannot confer federal 

question jurisdiction. Caterpillar, 482 U.S. at 393.

We next turn to the officers’ second cause of action, a 

request for declaratory relief under California Code of Civil 

Procedure § 1060. Although the officers seek a judicial 

declaration resolving several potential federal issues—such 

as establishing that the Discipline Committee may not assert 

jurisdiction to determine disciplinary action based on a 

disagreement between the Compliance Director and the 

CPRA, and that the Compliance Director does not stand in 

place of the Chief of Police for investigations of alleged 

misconduct of Police Department personnel—this does not 

alter our jurisdictional analysis.
NEGRETE V. CITY OF OAKLAND 19 

“[F]ederal courts do not have original jurisdiction, nor 

do they acquire jurisdiction on removal, when a federal 

question is presented by a complaint for a state declaratory 

judgment, but Skelly Oil would bar jurisdiction if the 

plaintiff had sought a federal declaratory judgment.” 

Franchise Tax Bd., 463 U.S. at 19, citing Skelly Oil, 339 U.S. 

at 667. Indeed, the Supreme Court has held that in enacting 

the federal Declaratory Judgment Act, “Congress enlarged 

the range of remedies available in the federal courts but did 

not extend their jurisdiction.” Skelly Oil, 339 U.S. at 671. 

Declaratory relief “could only be given if the requisites of 

jurisdiction, in the sense of a federal right or diversity, 

provided foundation for resort to the federal courts.” Id. For 

federal question jurisdiction to extend to a declaratory 

judgment action, the “claim itself must present a federal 

question unaided by anything alleged in anticipation of 

avoidance of defenses which it is thought the defendant may 

interpose.” Id. at 672 (internal quotation marks and citation 

omitted). Thus, “Skelly Oil has come to stand for the 

proposition that if, but for the availability of the declaratory 

judgment procedure, the federal claim would arise only as a 

defense to a state created action, jurisdiction is lacking.” 

Franchise Tax Bd., 463 U.S. at 16 (internal quotation marks 

and citation omitted). “[W]hile Skelly Oil itself is limited to 

the federal Declaratory Judgment Act, fidelity to its spirit 

leads us to extend it to state declaratory judgment actions as 

well.” Id. at 18. In this case, but for the federal issues 

identified in the officers’ request for state declaratory relief, 

any potential federal issue would arise only as a defense to a 

state-created action. Cf. id. at 16. 

In sum, because the officers do not necessarily raise a 

federal issue in their petition and complaint, their claims fall 

outside the “special and small category” of state law causes 
20 NEGRETE V. CITY OF OAKLAND

of action arising under federal law. Gunn, 568 U.S. at 258 

(citation omitted).

III.

This is a case arising under state law that properly 

belongs in the state courts. We recognize our decision today 

does not resolve the parties’ dispute and it has been nearly 

three years that the parties have been before federal court. 

But we are not free to disregard or evade the “limits upon 

federal jurisdiction, whether imposed by the Constitution or 

by Congress.” Owen Equip. & Erection Co. v. Kroger, 

437 U.S. 365, 374 (1978). Because the district court does 

not have original jurisdiction, we vacate the district court’s 

judgment and remand with instructions for the district court 

to remand this case to the state court from which it was 

improperly removed.

VACATED and REMANDED with instructions to 

remand to state court.

RAKOFF, District Judge, dissenting:

While I agree with the majority’s statement of the legal 

conditions under which a case “arises under” federal law, I 

respectfully disagree that the claims here do not meet those 

conditions. Because the officers’ petition necessarily attacks 

a federal consent decree, I would hold that their claims give 

rise to a federal cause of action.

It is well-settled that “[f]ederal jurisdiction over a state 

law claim will lie if a federal issue is: (1) necessarily raised, 

(2) actually disputed, (3) substantial, and (4) capable of 

resolution in federal court without disrupting the federal-
NEGRETE V. CITY OF OAKLAND 21

state balance approved by Congress.” Gunn v. Minton, 

568 U.S. 251, 258 (2013). For a federal issue to be 

necessarily raised, it must form an “essential element” of a 

plaintiff’s claims in the plaintiff’s “well-pleaded complaint.” 

See Grable & Sons Metal Prods. Inc. v. Darue En’g & Mfg., 

545 U.S. 308, 315–16 (2005). And federal jurisdiction 

cannot be conveyed on the basis of a federal defense, even if 

the defense is anticipated in the complaint. See Caterpillar 

Inc. v. Williams, 482 U.S. 386, 393 (1978).

Here, there is plainly a federal issue that is “essential” to 

the officers’ claims and therefore “necessarily raised.” In 

order to prevail on their claims, the officers must establish 

that the federal consent decree did not obligate the City to 

adopt the procedure it did. See Gunn, 568 U.S. at 259 

(finding federal jurisdiction where a federal issue was 

“necessary” for the plaintiff to “prevail on his . . . claim”). 

Without doing so, the officers are not entitled to relief 

directing the City to comply with a given procedure under 

state law.

Determining the scope and meaning of the federal 

consent decree is thus necessary to decide this case. Because 

the officers’ petition, as the majority appears to agree, also 

satisfies the other three Gunn factors, I would reach the 

merits of their claims.