Martinez

*149 MEMORANDUM ***

1. The question presented on this appeal is identical to the one raised and decided by us in Wander v. Kaus: “When a state statute incorporates a federal statute in defining a violation of state law, is a federal question thereby created?” 304 F.3d 856, 858 (9th Cir.2002); Pet. Br. at 13. The similarity of this case to Wander extends beyond the presentation of the verbatim issue — indeed, both cases were brought by the same counsel, under the same statute, and pursuant to nearly identical facts. Although Appellant’s position was definitively rejected in Wander, he urges that we should reexamine the issue in light of the Supreme Court’s decision in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 , 125 S.Ct. 2363 , 162 L.Ed.2d 257 (2005), a case which he argues “implicitly overrules” Wander and limits the holding in Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 , 106 S.Ct. 3229 , 92 L.Ed.2d 650 (1986), upon which Wander relied.

2. In Merrell Dow, the Court held that federal question jurisdiction did not exist to consider a state tort claim resting in part on an allegation that the defendant pharmaceutical…