Santa Fe argues that
Shaw applies in situations only where there is complete preemption of state regulation by a federal scheme. Whether a federal statute completely preempts or only partially preempts local enactments can only affect the federal question analysis in a case involving removal jurisdiction.
This case does not involve removal jurisdiction. As the Supreme Court stated in
Shaw: “A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under
28 U.S.C. § 1331 to resolve.”
Shaw, 463 U.S. at 96 n. 14, 103 S.Ct. 2890. Our conclusion that the nature of the preemptive effect of the TCA is not relevant here is further supported by
Verizon Maryland, Inc. v. Public Service Commission, 535 U.S. 635, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). In that case, concerning a claim of preemption under another section of the TCA, the Court stated that federal question jurisdiction exists “if the right of petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another” unless the claim is made only to obtain jurisdiction or is insubstantial and frivolous.
Verizon, 535 U.S. at 643, 122 S.Ct. 1753 (quotation omitted). Given the language of
§ 253, Qwest's claim of preemption is not wholly insubstantial or frivolous. Accordingly, we conclude that the district court had federal question jurisdiction over Qwest's claim of preemption. Because we conclude that the district court had federal question jurisdiction, it is unnecessary to discuss whether there is diversity of citizenship jurisdiction.