was filed early the court need not ultimately reach that issue at all because rule fifteen see relations back to shore is any timing issue in this case or complaint an amended complaint or supplemental d s where they cited to secure insurance and all recognized that the rule fifteen c is part of the remedial scheme of the rules of civil procedure that intended to be applied in a legal fashion is that a three ninety five and three ninety six in fact are this is a situation where the city acted the took its vote we asked them to said we're there we know so how would we how would how would we write an opinion that would uphold your position that it was good enough for them to say it in an open meeting and trust us reporters on point the same as unless it's adopted by the city in other words if the city adopted that within the within a certain period of time we would have then said ok then that that he is running but i don't think that occurred here we asked the city within two weeks after the world vision where is the written decision young this is i think brought this to the the issue that that we've raised which says that you know following the analysis of the supreme court in the russell case if but now would you say that a written decision that they should all or do we traditionally operate on  requirement runs from the time of an oral vote i'm aware of mike i couldn't tell you when off my head i run into them which is part of what raises this kind of godly right it's a file but if they see riverkeeper three again three operate off with available and then that we have the only option we have is to wait and then file an action only for failure to act a remedy of which would the now they're going to issue a decision possibly months later that we could then appeal this possibly complaint that says that they failed to issue a written decision as as part of their denial and i view it as an independent requirement under section three thirty two subsection three little three says that the decision to deny must be in writing and supported by substantial evidence if we say that it has that then we can only speil once there is a written decision we could never claim that they failed to issue a written decision why was that  repeatedly they said that they had acted within a reasonable time that was enough paragraph i believe it is one hundred nine of their complaint i mean their answer doesn't rise well actually this is the chief justice  perfectly acceptable under the cases that's exactly what happened in the securities insurance case the reality is in this case it's not as if there was a question about the existence of that decision the parties mentioned it in a filing to the court just three days after it was issued and the legally answer seems to me to be avoiding not answering the question when you say we believe we had a friend or you might have believed it but you knew you had a final answer when you got something in writing you pressed them for something in writing you sue them you said they'll only respond when you see ok so then maybe you're right but then they gave you something in writing why didn't you just behind all some than then sure and it it certainly would have been easier if we had  the courts have recognized that the the rules still receive your want he says we saw on the merits as long as there was no surprise to the city which obviously there could not have been in this case the parties there was a sitting on written decision the part the the issue of when we perfected this the formality of noting in our complaint the issuance of a written decision that everybody knew about the rules  say that that's should be fine and let's get the merits which is what we are seeking to do in this era is that these that  is could could you still is there anything to prevent you today i don't think so there may be a limit so many cities have a provision that says you can't file within many see have a provision say you can't refile the same application within a certain period time sometimes it's here i don't remember i'll tell my head definite please ecarte my name is joe vanny moon i'm representing the city of wilmington in this matter let me start if i could by addressing the river keepers case because i think it goes the question of whether when the decision became final which is obviously critical to the determination and then turn to what we think is critical which was we think this is a jurisdictional provision and even if it isn't that's a relation back doctor and doesn't work in this particular case to remedy the defect under river keepers the basic standard the court adopted with respect to a was that a decision did not become final until it had proposed use would not be in harmony and is the ninth in the present tense why don't we look at that a signal that the operative date because the effective date of the certification which is what's critical under the delaware state law is the date it was entered which i believe was december twenty first go until bath and that's the operative days all their reciting is effectively we did it we took a vote on that day but it doesn't then it doesn't really take the action back connecting if they say it's the nie this date as a matter of federal law what do you rely on to say well that's not really final because the state does not know until that piece of paper gets filed and that could be months later adopting an ordinance and on first reading voted unanimously to pass it it's still not final until the third reading and federal law would never come in and say oh it's final even though the act that hasn't actually been adopted it would look to the date that the action becomes becomes effective and that date is not a date it's going to which is simply a minute entry effectively it's the date at the bottom of that same piece of paper which had certified this dat blank and you have to take those both into account i think to recognize that the action was taken on december twenty first not that the action became effective for purposes having any legal effect on the twenty technically they should not begin construction if it's approved and they are precluded from the city the city is not precluded from changing the decision and by the way they can ask for reconsideration a rehearing at any time nothing in this code precludes that it's it was actually is actually something that's actually permitted i believe under delaware law i mean the city of wilmington new this this was being contested supplemental complain until a year later so i guess the prejudice to us comes from the way the entire process is set up under three thirty two c seven which in part because of the question of is it a jurisdictional requirement the idea of the act is obviously to provide some protections to wireless providers but the title of section three thirty two seven is the preservation of local authority and local authority is disrupted when as in this case in the wild for a for the proceeds actually finalized we essentially have to come in and defend the case in federal court as well that's why you're defending that mean everybody knew what was going on it wasn't some mystery everybody knew exactly i understand what i'm saying the question was is how we practice we're prejudiced because the way the act is set up we get to complete our process before the action com says that's a bad thing ok that's a bad thing now we're talking or at least i suspect this out the back you knew the whole time was they were testing and they filed a supplemental  leave to file a supplemental complaint that was granted so those questions how were you part with the prejudice to the city under those circumstances where maybe they came out of the box too soon but everybody knew it was it issue and we're not even talking about the too soon piecing or your argument is well you can't save your to save because you filed too late right i mean you wouldn't be having this discussion at all if they filed within thirty days of the will use serves the final the difference between had they filed in thirty days and we mentioned this in our brief their contention which they litigated strongly we've had to defend strongly that we failed to issue a decision  writing wouldn't have been available to them and any sensible way that they say to any women that assume you win that we hate you when there had to be a writing ok and they should've filed within thirty days of the writing i'm a try i'm i'm thinking of your back and point i'm i'm obviously i think harmed by the fact that i have to expend resources to defend against a claim that's based on a prematurely file complaint that they could have so unfair they didn't do stuff when they should have but deletion back says yeah maybe there's a little problem there but you know what we want to get to the merits so we're going to the mayor i don't think that i think i think that that's different than the typical fifteen c k their claim is not that that's the writing itself there was obviously want to raise a claim that the writing itself was defective their claim is that there was no writing at all we've been defending against that claim that claim would not have been available had they because of fears that radio waves with her people's brain according to the record ok and they say that's just wrong this is a matter of federal law that can't be a reason you're not that's them understand that's the marriage stuff or the marriage thing they want to argue since you knew all along that was issue and everybody's known all along that what's the harm to the city of having to defend on the merits if this is not a  back to if we have to or you're assuming yours you're saying it's irrelevant i guess or i would disagree with you as i think it's relevant that they pursued a claim that was based on the claim on a writing structure that design to protect our authority to make decisions and then allows for some court review and i think the troop case out of the eleventh circuit sort of says that structure is very important and we are prejudiced in our ability to go through that process if someone can file early and then file later and correct everything it's so that that that disrupts the entire process and the decision making  there's an element of but in this case i think the difference is that you're trying to preserve that structure of decision making which allows third party like the public to participate and when you disrupt that you can't come up with a situation where someone can file or away just like you can't normally a you can't use that administrate of cases appeals are deemed incurably deficient if they're there's no magic words that require congress doesn't have to say this is jurisdictional you look at the history the context and the tasks in deciding whether it's jurisdictional and while it may not be just where the congress as  magic words it doesn't require magic words but the part of the quote clear statement and then you get a clear statement by looking i believe the cases that you look at history context and text in determining whether it's terrific show so in this case i think you look at the text i think while it may not be dispositive certainly relevant that the cause of action arises in a section says except as provided in this paragraph we're preserving local authority over zoning so the federal intrusion is meant to be limited it deals with the preemption issue and that intrusion on constitutionally protected local rights  completely narrow that clears the places that just a statement about this is the way we want leads this is the way it's supposed to work as opposed to this is the way it's supposed to work and it's jurisdictional if you go outside you're done i think you look at the question i think you then look at that so you look at the creation the fact that it's created within three thirty two c seven itself that it gives the cause of action that arises in it and that the purpose is to preserve the local allowing someone to disrupt the process by filing early and we're talking about not just this case but anyone could come in and file early and then correct under fifteen day later as a strategic and you know they're complaining that's this was a strategic ma because if they had filed within thirty days what we would be essentially saying is we're just saying fifteen they file a valid action against the city within the time that the statute  was really cool that's a tough question for me because honestly if i would have either refiled or come in and put in something called a distributed antenna system that uses the streets to provide this service i mean that was and option that was considered i just don't think we don't understand it what you really don't there's you don't have any sense what was motivating them usually think what they what they're concerned about is that there are alternatives that would not involve placement of the disco they as at the location involved with  that's my take but i don't know that that answers the question because if their concern is providing service we think there are alternatives to providing service and it would certainly make the case clear if it was refiled in th proper manner i mean that's one of the reasons why we think feeling this is jurisdictional is helpful to a clean decision and avoiding putting chords and a position of second guessing what was done at the local level right was that it wouldn't be the same litigation because right now no litigation we're fight right now is whether you get it to the merits at all that's what this is all about that's what this appeal is all about it's not about the merits about whether you get them the strategic planning folks i mean i'm not i'm not asking you to reveal some you should i'm just trying to figure out as a practical matter why we're fighting over her so surely procedural issue unless it's because you've got a record below that you think helps you on the merits if you don't think you can recreate the second time or something like that i'm just a bit long your i believe that the answer comes down to we believe that the district court was wrong at that last minute avoid the merits based on a technicality and that in fact it had before it it was a record that had been developed you could have gotten to the merits way sooner is it if six months later at the moment you could have filed district court if you win says ok go back to the city so it's not a consensus to me if you say oh we just want a decision on the merits because you have been at the marathon a lot sooner than this year i'm not sure that we would have it took us a long time to the right then and we believe that under the court erred under the clear law in failing to rule that the supplemental complaint shorten think counsels of the first halt just to address quickly the jurisdictional point b section three three two there is no clear statement here and there's no indication from the text and the other thing i wanted to point out is a council house arguing that their process and this is somehow interrupting her process in their answer they repeatedly s decision is supported by substantial evidence those e v a s decision i'm quoting here does not effectively prohibit they knew exactly that they had acted they knew that they could respond on the merits to our claims they didn't say we haven't acted we don't know what say this yet that's what they could have said if there was if this was truly premature but it wasn't everybody knew it was going on and it was appropriately the formality of the pleading was correct