T Mobile Northeast LLC v. City of Wilmington

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 18-1831

_____________

T MOBILE NORTHEAST LLC,

Appellant

v.

CITY OF WILMINGTON, DELAWARE;

CITY OF WILMINGTON ZONING BOARD OF ADJUSTMENT

_____________

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 1-16-cv-01108)

District Judge: Hon. Eduardo C. Robreno

_______________

Argued

September 12, 2018

Before: JORDAN, NYGAARD, and VANASKIE, * Circuit Judge

(Filed: January 10, 2019)

*

The Honorable Thomas I. Vanaskie retired from the

Court on January 1, 2019 after the argument and conference

in this case, but before the filing of the opinion. This opinion

is filed by a quorum of the panel pursuant to 28 U.S.C.

§ 46(d) and Third Circuit I.O.P. Chapter 12.

_______________

Thomas S. Thompson [ARGUED]

Davis Wright Tremaine

1919 Pennsylvania Avenue, NW

Ste. 800

Washington, DC 20006

Counsel for Appellant

Joseph Van Eaton [ARGUED]

Best Best & Krieger

2000 Pennsylvania Avenue

Ste. 5300

Washington, DC 20006

Counsel for Appellees

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

No one likes bad cell phone reception or slow

streaming data on their smartphone, but that does not mean

anyone wants a cellular antenna in their neighborhood, which

is why there are zoning battles like the one central to this

case.

T Mobile Northeast LLC (“T Mobile”), a wireless

telecommunications service provider, applied to the Zoning

Board of Adjustment (“ZBA”) of the City of Wilmington,

Delaware for permission to erect an antenna in the City. The

2

ZBA said no. So, relying on a provision of federal law that

allows a disappointed wireless service provider like T Mobile

to seek review in a district court “within 30 days after” a

zoning authority’s “final action,” 47 U.S.C.

§ 332(c)(7)(B)(v), T Mobile filed suit. After the case had

proceeded for over a year, however, the District Court

concluded that it lacked jurisdiction. The Court reasoned that

because T Mobile filed its complaint before the ZBA released

a written decision confirming an earlier oral rejection of the

zoning application, the claim was not ripe. And, since

T Mobile did not supplement its complaint to include the

ZBA’s written decision within 30 days of its issuance, the

Court also concluded that relation back could not remedy the

ripeness defect. The District Court thus granted the City’s

motion for summary judgment.

T Mobile now appeals. It argues that its complaint

was not premature or, in the alternative, that its supplemental

pleading cured any ripeness problem. We agree that the grant

of summary judgment was improper and, for the reasons that

follow, will remand the case for further proceedings

consistent with this opinion.

I. BACKGROUND

A. Statutory Framework

This dispute is governed by the Telecommunications

Act of 1996 (“TCA”), which amended the Federal

Communications Act of 1934 and includes provisions on

mobile phone services. Pub. L. No. 104-104, §§ 1, 704, 110

Stat. 56, 56, 151 (1996); 47 U.S.C. § 332. Passed to

“encourage the rapid deployment of new telecommunications

3

technologies,” Preamble, 110 Stat. at 56, the TCA provides

for expedited review in federal court of a denial of permission

to build a cell phone antenna, id. § 704, 110 Stat. at 151-52.

Such review is a “benefit Congress expressly intended to

confer on wireless providers[.]” Nextel W. Corp. v. Unity

Twp., 282 F.3d 257, 264 (3d Cir. 2002). At the same time,

the TCA also serves to preserve local zoning authority. 47

U.S.C. § 332(c)(7).

At issue here are three key sections of the statute.

First, the TCA mandates that “[a] State or local government

or instrumentality thereof shall act on any request for

authorization to place, construct, or modify personal wireless

service facilities within a reasonable period of time after the

request is duly filed[.]” Id. § 332(c)(7)(B)(ii). The Federal

Communications Commission (“FCC”) has interpreted

“reasonable period of time” in that statutory provision to

mean that zoning authorities have a “shot clock” 1 and must

act within 90 days of an application to attach an antenna to an

existing structure or 150 days of an application where a new

support structure is to be built. Petition for Declaratory

1

“Shot clock” is a term borrowed from basketball. In

that game, it signifies a time limit to make a shot attempt,

beginning once a team has possession of the basketball. See,

e.g., Nat’s Basketball Ass’n, NBA Rulebook Rule No. 7: Shot

Clock (2018-2019), http://official.nba.com/rule-no-7-24-

second-clock/. If the team has not made a shot attempt, i.e.,

acted, within the prescribed time limit, it forfeits possession

of the ball. Id. Here, the permitting authority has exclusive

jurisdiction over an application until it fails to act within a

“reasonable period of time.” 47 U.S.C. §§ 332(c)(7)(A),

332(c)(7)(B)(ii).

4

Ruling to Clarify Provisions of Section 332(c)(7)(B), 24 FCC

Rcd. 13994, 14008, 14012 (2009). Second, in what we will

call the “review provision” of the statute, the TCA grants

“[a]ny person adversely affected by any final action or failure

to act by a State or local government or any instrumentality

thereof” a right to have that locality’s decision reviewed by

“commenc[ing] an action” “within 30 days” in district court.

47 U.S.C. § 332(c)(7)(B)(v). Third, in the statute’s “denial

provision,” the TCA states that “[a]ny decision by a State or

local government or instrumentality thereof to deny a request

to place, construct, or modify personal wireless service

facilities shall be in writing and supported by substantial

evidence contained in a written record.” Id.

§ 332(c)(7)(B)(iii). Notably, the terms “act,” “final action,”

and “decision … to deny” are not defined in the TCA.

Furthermore, the statute does not make clear whether “final

action” should be read to encompass all decisions to deny,

including oral ones, nor does it address whether there is a

difference between an “act” for purposes of the shot clock

and a “final action” for purposes of judicial review.

B. Factual Background

T Mobile is a telecommunications service provider. It

says that it needs to erect a cellular antenna to fill “a

significant gap” in coverage for its customers in Wilmington,

Delaware, (Opening Br. at 3) presumably where there has

been an increase in phone calls and data usage. T Mobile

wants to put its antenna on top of a senior living high-rise in

the City, but, because a special exception to local zoning laws

is needed, it first had to go to the ZBA. It filed an initial

application and then, on August 25, 2016, a final amended

application, seeking the exception.

5

The ZBA held a hearing on October 26, 2016, to

consider T Mobile’s request, some two months after the final

amended application was submitted. During the hearing,

T Mobile presented evidence of the need for the antenna and

discussed proposals to address aesthetic concerns. The ZBA

also received objections from members of the local

community, some of whom were outspoken in worrying

about the effects of radio frequency emissions. At the end of

the hearing, the ZBA denied T Mobile’s application in a

unanimous oral decision.

The Board gave several reasons for the denial. One

board member said the ZBA should not encourage the use of

a senior living community rooftop as the base for an antenna

because of the potential adverse effect on the properties in the

neighborhood. Another board member said there was not

enough proof of a need for additional coverage to support the

application. The Chairman said there was not enough

evidence that T Mobile needed the antenna and that it did not

appear to satisfy the zoning code in terms of placement and

height restrictions.

The ZBA’s oral decision to deny the application was

not put in writing on October 26 or anytime soon thereafter.

According to T Mobile, that fits a “pattern and practice of

[the ZBA] not issuing a written decision of land use denials

unless or until the City is sued.” (Opening Br. at 7.) Only

after T Mobile had filed its initial complaint in the District

Court, and after the City filed its answer, did the ZBA issue

its written decision and explanation of its reasoning for

denying the application.

6

T Mobile asserts that the denial of its application

violates the TCA. Under the statute, such a denial is invalid

if it has the “effect of prohibiting the provision of personal

wireless services[,]” 47 U.S.C. § 332(c)(7)(B)(i)(II), or is “on

the basis of the environmental effects of radio frequency

emissions[,]” id. at § 332(c)(7)(B)(iv). T Mobile claims that

Wilmington’s denial was improper on both of those grounds. 2

But those assertions go to the merits and are not actually

before us on this appeal. At issue now is whether T Mobile’s

claim can be heard at all.

C. Procedural History

Evidently with its eye on the 30-day deadline in the

TCA’s review provision, T Mobile filed a lawsuit in the

United States District Court for the District of Delaware

within 30 days of the ZBA’s oral decision, challenging that

denial. 3 In addition to its claims on the merits, T Mobile’s

initial complaint alleged that the City violated procedures

mandated in the TCA, specifically those in the denial

provision, by failing to provide a written decision

2

T Mobile also raised a Delaware state law claim.

That claim is not at issue here and does not impact

T Mobile’s claims under federal law.

3

For reasons discussed herein, the 30-day filing

deadline was not triggered by the oral decision. See infra pp.

12-20. If it were, however, T Mobile’s complaint would have

been timely. The oral decision was delivered at the

October 26, 2016 hearing. Suit was filed on November 28,

2016, but because the thirtieth day from October 26 fell on a

weekend, the November 28 filing was within the 30-day

window. Fed. R. Civ. P. 6(a)(1).

7

contemporaneous with its oral decision and by not supporting

the denial with substantial evidence.

The parties entered into a stipulation asking the

District Court for an expedited case schedule, as provided for

in the review provision of the TCA. 47 U.S.C.

§ 332(c)(7)(B)(v). That request was granted. Wilmington

then answered the complaint, asserting a number of

affirmative defenses, including that the complaint was not

ripe because the ZBA had not yet issued a final written

decision. Nevertheless, the City did not, at that time, file a

motion to dismiss for failure to state a claim or for lack of

jurisdiction. Two days after the City filed its answer, the

ZBA issued a written decision on T Mobile’s application.

The parties pressed forward with the suit and prepared a

discovery plan, which specifically mentioned the written

decision. T Mobile filed a motion for summary judgment,

which the City met with a cross-motion for summary

judgment. The City’s motion was styled in the alternative as

a motion to dismiss the complaint as unripe because it was

filed prematurely, i.e., before the written decision had been

issued.

Not until December 21, 2017, nearly a year after the

ZBA issued its written denial, did T Mobile file a motion

seeking leave to amend or supplement the initial complaint to

note the issuance of that written decision. 4 The District Court

4

When “[a] claim or defense set out in a pleading [is]

affected by events that occur after the pleading is filed ….

Rule 15(d) allows a court,” to permit a supplemental

pleading. 3 James Wm. Moore et al., Moore’s Federal

Practice ¶ 15.30 (3d ed. 2018). Supplemental pleadings

8

granted the motion to supplement. Wilmington then

responded by moving to dismiss the supplemental complaint

as untimely because it failed to cure the defect.

Ultimately, the District Court granted Wilmington’s

cross-motion for summary judgment for want of jurisdiction,

without ruling on the City’s motion to dismiss. The Court

first concluded that the initial complaint was irreparably

unripe because both the TCA and Delaware law require the

ZBA to issue a written decision before the agency’s action

could be considered final, and T Mobile had thus filed its

initial complaint too soon. Second, the Court said that the

supplemental complaint could not fix the ripeness problem

because it was filed past the 30-day window for seeking

review of the ZBA’s final action. Because the Court reached

under Rule 15(d) differ from amended pleadings made under

Rule 15(a). First, amended pleadings “relate to matters that

occurred prior to the filing of the original pleading and

entirely replace the earlier pleading; [supplemental pleadings]

deal with events subsequent to the pleading to be altered and

represent additions to or continuations of the earlier

pleadings.” 6A Charles Alan Wright et al., Federal Practice

& Procedure § 1504 (3d ed. 2018). Second “certain

amendments may be made as a matter of course within stated

time periods, whereas all supplemental pleadings require

leave of court under Rule 15(d).” Id. “Parties and courts

occasionally confuse supplemental pleadings with amended

pleadings and mislabeling is common.” Id. Here, T Mobile’s

complaint was filed as an amended complaint but it is

properly categorized as a supplemental complaint, and we

will refer to it as such herein.

9

that determination, it found it unnecessary to conclude

whether T Mobile’s supplemental complaint was entitled to

the benefit of the relation-back doctrine under Rule 15(c).

This appeal followed.

II. DISCUSSION 5

T Mobile challenges the District Court’s grant of

summary judgment in favor of Wilmington, contending that

there is jurisdiction to hear its case. It advances two

alternative grounds for reversal: that its complaint was ripe

because the ZBA’s oral decision qualifies as a “final action”

under the review provision of the TCA, and, in the

alternative, that the supplemental complaint relates back to

and cures any ripeness problem with its initial complaint.

Those arguments in turn raise three questions for determining

whether the District Court’s jurisdictional ruling was proper.

First, whether the oral decision of the ZBA was a final action.

Second, whether the timing requirement in the TCA’s review

provision is jurisdictional. And third, whether an untimely

5

The District Court had jurisdiction to consider its

jurisdiction under 28 U.S.C. §§ 1331 and 1367(a), but

determined the complaint contained incurable jurisdictional

defects and declined to reach the merits. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We review all the issues

presented in this case de novo, as they involve only legal

issues, i.e., interpretation of a federal statute and of a Federal

Rule of Civil Procedure. Giles v. Campbell, 698 F.3d 153,

155 (3d Cir. 2012); Viera v. Life Ins. Co. of N. Am., 642 F.3d

407, 413 (3d Cir. 2011); DIRECTV Inc. v. Seijas, 508 F.3d

123, 125 (3d Cir. 2007).

10

supplemental complaint can relate back and cure an unripe

initial complaint. Although we disagree with T Mobile that

an oral decision of the ZBA qualifies as a “final action,” we

agree that jurisdiction was proper in the District Court

because the timing requirement in the TCA’s review

provision is non-jurisdictional, and T Mobile’s supplemental

complaint therefore relates back and cures the ripeness

problem with the initial complaint. The District Court should

thus have reached the merits of the dispute.

A. The Oral Decision Was Not a Final Action of

the ZBA.

The ripeness of T Mobile’s initial complaint depends

upon whether the ZBA’s oral decision was a “final action”

within the meaning of the TCA. Consideration of that issue

uncovers another: whether the TCA requires a locality to

render its decision in writing for that decision to qualify as a

final action. The District Court held that, under both federal

and Delaware law, only a written decision can serve as a final

action of the ZBA. Because traditional hallmarks of agency

action and the statutory text and structure of the TCA favor

that approach, we agree that only a written decision can serve

as a locality’s final action when denying an application.

In Delaware Riverkeeper Network v. Secretary

Pennsylvania Department of Environmental Protection,

(Riverkeeper III), we determined that, when reviewing

finality under the Natural Gas Act, “[a]lthough the

decisionmaking process we are reviewing is defined by [state]

law, we nevertheless apply a federal finality standard to

determine whether Congress has made the results of that

process reviewable[.]” 903 F.3d 65, 72 (3d Cir. 2018). The

11

same reasoning holds true here, since, for the TCA just as for

the Natural Gas Act, “the finality requirement itself, along

with the presumption that Congress intended us to apply it,

are creatures of federal, not state, law.” Id. at 71.

Under federal law, not all agency determinations are

final actions. Bacon v. Sullivan, 969 F.2d 1517, 1519 (3d Cir.

1992). Final agency actions bear certain “traditional

hallmarks” that demonstrate “[t]here is nothing left for the

agency to do[,]” Del. Riverkeeper Network v. Sec’y of Pa.

Dep’t of Envtl. Prot., (Riverkeeper II), 870 F.3d 171, 178 (3d

Cir. 2017). We noted those hallmarks on an earlier occasion

when we said that, “[f]inal agency action must mark the

consummation of the agency’s decisionmaking process, must

not be of a merely tentative or interlocutory nature, and must

be one by which rights or obligations have been determined,

or from which legal consequences will flow.” Riverkeeper

III, 903 F.3d at 72, 75 (citation and internal quotation marks

omitted).

To decide what the TCA requires for finality, we

begin, of course, with the text. See, e.g., Ross v. Blake, 136 S.

Ct. 1850, 1856 (2016) (“Statutory interpretation … begins

with the text[.]”) Here, the statutory text makes it clear that,

if a denial is not in writing, there is something left for the

agency to do. The denial provision of the TCA states that

“[a]ny decision … to deny … shall be in writing and

supported by substantial evidence contained in a written

record.” 47 U.S.C. § 332(c)(7)(B)(iii). We see no reason

why the same should not be true for actions besides denial, 6

6

For instance, it is not apparent why community

members aggrieved by a decision to grant some permit to a

12

but we need not decide that today. It is enough to say that, in

those zoning decisions governed by the TCA, a locality’s oral

declaration of a denial is “of a merely tentative or

interlocutory nature.” Riverkeeper III, 903 F.3d at 72

(citation omitted) (speaking in reference to the Natural Gas

Act); cf. Athens Cellular, Inc. v. Oconee Cty., 886 F.3d 1094,

1104-05, 1107 (11th Cir. 2018) (noting that a zoning board

could have approved the minutes, revised them, or rejected

them, and thus until the board approved the minutes its

decision was not final).

Moreover, an oral decision is not an action from which

legal consequences flow. Federal law governs finality, but

Delaware’s procedures still matter, and the Delaware

Superior Court has concluded that a written document must

be filed for a ZBA action to be final. McDonald’s Corp. v.

Zoning Bd. of Adjustment for the City of Wilmington, No.

CIV. A. 01A-05-011CG, 2002 WL 88944, at *1 (Del. Super.

Ct. Jan. 10, 2002). The court reasoned that Section 328 of

Title 22 of the Delaware Code, the section that governs

appeals from ZBA proceedings, requires a written document

to be filed because the statute “provides that [s]uch petition

shall be presented to the Court within 30 days after the filing

of the decision in the office of the board.” Id. (internal

quotation marks omitted). That reasoning is persuasive and

wireless provider, assuming those members have standing to

sue, would not be equally entitled to a zoning authority’s

written decision before the time limit in the TCA’s review

provision is triggered.

13

shows that, under Delaware law, the ZBA’s oral decision is

without legal consequences. 7

There are distinct policy advantages to forestalling

judicial scrutiny until a written denial is issued. Requiring a

written decision focuses review on a particular, documented

statement of reasons. See USCOC of Greater Mo. v. City of

Ferguson, 583 F.3d 1035, 1042 (8th Cir. 2009) (“Because the

written decision is the central object of our scrutiny under the

TCA, the process of judicial review is best served by delaying

the ripening of a TCA claim until the local authority has

issued its written decision.”). It also prevents ambiguity with

respect to when a claim can be brought. As the District Court

here stated, to hold otherwise “would promote a pernicious

ambiguity as to when that short period of time begins to run.”

(App. at 7.) And it promotes uniformity of federal procedures

by clarifying when, across all jurisdictions, an action becomes

final.

7

T Mobile cites to a different opinion, Schmalhofer v.

Board of Adjustment of Newark, to advance a contrary

position. No. C.A. 99A-05-010-WTQ, 2000 WL 703510

(Del. Super. Ct. May 9, 2000). Schmalhofer states in a

footnote that “a written decision is not required or expressly

contemplated by this section.” Id. at *3 n.3. But T Mobile is

stretching the Schmalhofer court’s language too far. In that

case, the City of Newark had issued a verbatim transcript of

the hearing, so there was a writing. Id. at *3; see infra note

11. There is no indication of any written decision in this case,

prior to December 22, 2016, when the City issued the written

denial bearing the date of December 21, 2016.

14

The Supreme Court’s decision in T-Mobile South, LLC

v. City of Roswell, Georgia, also adds support to the

conclusion that only a written denial can constitute final

action, triggering a party’s right to review. 135 S. Ct. 808

(2015). In that case, the Court held that the “substantial

evidence” supporting a locality’s decision to deny must be

released contemporaneously with the written decision to

deny. 8 Id. at 811-12. In doing so, the Court tied together a

local zoning authority’s final action, which triggers judicial

review, and its decision to deny, which must be in writing.

Indeed, the Supreme Court said in no uncertain terms that,

“[t]he relevant ‘final action’ [in that case, was] the issuance of

the written notice of denial[.]” Id. at 817 n.4. The Court

linked the locality’s decision to deny to the 30-day time limit

to file a complaint after a final action has been taken. Id. at

817 (“Only once the denial is issued would the 30-day

commencement-of-suit clock begin.”); id. at 813 (“[N]ow 29

days after the City denied petitioner’s application—petitioner

filed suit in Federal District Court.”).

The Court went on to discuss timing, saying, “the

locality must provide or make available its written reasons at

essentially the same time as it communicates its denial[,]”

“[b]ecause an entity may not be able to make a considered

8

The Court was interpreting the denial provision,

which, as we noted earlier, states that, “[a]ny decision by a

State or local government or instrumentality thereof to deny a

request to place, construct, or modify personal wireless

service facilities shall be in writing and supported by

substantial evidence contained in a written record.” 47

U.S.C. § 332(c)(7)(B)(iii), City of Roswell, 135 S. Ct. at 811.

15

decision whether to seek judicial review without knowing the

reasons for the denial of its application, and because a court

cannot review the denial without knowing the locality’s

reasons[.]” Id. at 816. The majority opinion was critical of

the dissent for attempting to “fashion a world in which a

locality can wait until a lawsuit is commenced and a court

orders it to state its reasons[,] … [leaving the challenging

entity to] risk being sandbagged by the written reasons that

the locality subsequently provides in litigation after the

challenging entity has shown its cards.” Id. at 816 n.3. That

critique is premised on the written decision being the final

action that starts the 30-day time limit for commencing suit. 9

The Supreme Court anticipated that localities might

need to delay issuing a written denial if they are not ready to

release their substantial reasons. See id. at 817 (noting that

9

T Mobile asserts that Wilmington has a “pattern and

practice of not issuing a written decision of land use denials

unless or until the City is sued.” (Opening Br. at 7.) But if

only a written denial is a final action, the shot clock requires

the City to issue that written decision within a given time

period. 24 FCC Rcd. 13994, 14012 (2009). T Mobile also

asserts that when a locality has a pattern and practice of not

releasing written decisions, that practice delays the overall

process, since a cellular service provider would be required to

initiate two causes of action: one to compel a written decision

and another to challenge that written decision. That,

however, is precisely what Congress envisioned by providing

separate remedies for a failure to “act” within a reasonable

time period and for an improper denial. 47 U.S.C.

§ 332(c)(7)(B)(iii).

16

“[i]f a locality is not in a position to provide its reasons

promptly, the locality can delay the issuance of its denial

within this 90– or 150–day window, and instead release it

along with its reasons once those reasons are ready to be

provided.”). That further counsels against treating an oral

determination as a final action since, if an oral determination

is deemed a final action, localities will be unable to take

advantage of the permissible delay afforded by the shot clock

for publishing their reasoning.

Two of our sister courts of appeals agree that only a

written decision can constitute final action. The Eighth

Circuit in USCOC of Greater Missouri v. City of Ferguson

stated that “[t]he plain language of the TCA indicates that

‘final action’ does not occur until issuance of a written

decision.” 583 F.3d at 1041. The Eleventh Circuit in

Preferred Sites LLC v. Troup County likewise held a

complaint to be timely when it was filed within 30 days of a

written decision, even though it was filed more than 30 days

after an oral decision. 10 296 F.3d 1210, 1217-18 (11th Cir.

10

T Mobile attempts to distinguish Preferred Sites by

stating that, unlike here, the case did “not address a city that

does not issue a written decision close in time to when it

makes the decision to deny.” (Opening Br. at 37.) But that

argument is irrelevant to whether the statutory text requires a

writing for an agency decision to be final. T Mobile also cites

to Preferred Sites to argue that it should not matter if there is

a writing requirement since the oral denial could be seen as

akin to a court announcing a decision. It explains that “when

an appeal is filed after the court announces a decision, but

before the entry of the judgment, it is treated as being filed on

the date of entry.” (Opening Br. at 28-29 (citing Preferred

17

2002) (concluding that, “[b]ased on the plain language of the

statute,” that “a ‘final action’ occurs when the state or local

authority issues its written decision. The statute expressly

mandates a … decision … committed to writing. Until the

state or local authority issues its written notification, its task

under the statute is not complete.”). No circuit has held

otherwise.

Persuasive authority thus indicates that any action, and

certainly a denial, must be in writing to be final. But, there is

another possible interpretation of the statutory text. The

words “shall be in writing” could be read not as a condition of

finality, but instead as a simple directive to state and local

governments to place their final action in writing. “The TCA

provides no express answer to … when a local government’s

permitting decision becomes a ‘final action,’ which starts the

thirty-day clock.” Athens Cellular, 886 F.3d at 1102-03. The

statute only states that denials must be in writing. 47 U.S.C.

§ 332(c)(7)(b)(iii). Decisions to grant are not limited in the

same way. Id. And, Congress used the words “decision to

deny” in one statutory subsection and “final action” in

another, which could evince an intent to give those terms

different meanings. As the Supreme Court has “recognized

… Congress’s use of certain language in one part of the

statute and different language in another can indicate that

different meanings were intended.” Sebelius v. Auburn Reg’l

Med. Ctr., 568 U.S. 145, 156 (2013) (citation and quotation

Sites, 296 F.3d at 1217 n.7).) That analogy did appear in

Preferred Sites, but it was only contained in a footnote. No

other court has followed that line of reasoning, and we

decline to follow it here.

18

marks omitted). Thus, it could be argued, if Congress wanted

to mandate a writing for zoning denials to constitute final

action, it could have been more explicit, providing, for

instance, that a “decision must be in writing to qualify as a

final action.”

But, of course, one can almost always fault legislative

drafting, like other kinds of writing, after the fact. That

something might have been said even more clearly does not

mean it is not clear enough. So, “[r]ather than expecting (let

alone demanding) perfection in drafting,” we can “construe[]

statutes to have a particular meaning even as we

acknowledge[] that Congress could have expressed itself

more clearly.” Torres v. Lynch, 136 S. Ct. 1619, 1633

(2016).

The text and structure of the statute, Delaware

procedures, Supreme Court reasoning, our sister circuits’

decisions, and policy arguments all support the conclusion

that a writing is in fact a requirement for a denial to be final. 11

In light of that conclusion, the ZBA’s oral determination on

11

What constitutes a “writing” has some flexibility,

though. See, e.g., Omnipoint Holdings, Inc. v. City of

Southfield, 355 F.3d 601, 605-07 (6th Cir. 2004) (approving

minutes by written resolution was a final action that bound

the parties). In City of Roswell, for example, the Supreme

Court indicated that minutes of an oral meeting could be

sufficient. 135 S. Ct. at 816. Here, however, there is no

evidence that the ZBA’s oral determination was noted in the

minutes of the October 26th meeting and issued by the City as

its formal decision.

19

October 26, 2016, was not a final action ripe for judicial

review. Therefore, as that oral determination was not reduced

to writing until December 22, 2016, preceding the filing of

T Mobile’s initial complaint, that complaint’s cause of action

was not ripe.

20

B. No Separate Time Limit Exists Following an

Oral Determination.

As an alternative to its argument that the ZBA’s oral

decision was a final action, T Mobile asks us to consider

whether a “local government must issue the ‘writing’ close in

time to the ‘decision … to deny’ to establish a ‘final action’

that will be subject to expedited review.” 12 (Opening Br. at

41.) Essentially, T Mobile is asserting that the “shot clock”

governing the time to act, which allows a wireless carrier to

sue for a locality’s failure to act, is insufficient, and that a

new requirement, albeit not in the statute, should be imposed

on localities. Under T Mobile’s proposed rule, an oral

decision would have to be reduced to writing within a

specified time period. That argument assumes that an oral

determination can serve to satisfy the requirement to “act” on

a request within the limits of the shot clock, and that, without

a separate judicially created time limit, there would be no

deadline for the locality to release its written decision to deny,

despite City of Rowell’s contemporaneous writing

requirement. Because we conclude that a denial must be in

writing to be a final action, the issuance of that writing is the

government “act” ruled by the shot clock. 13 Aside from the

12

Wilmington argues that T Mobile has waived that

issue, but we need not address that argument because we

conclude that no such requirement exists.

13

Again, the Supreme Court held in City of Roswell

that a locality’s decision to deny must be accompanied by

substantial reasons. 135 S. Ct. at 811-12. Otherwise, if a

locality were able to withhold its reasoning for its decision,

those aggrieved by the locality’s actions would “be left to

21

time limits associated with the “shot clock,” there is no other

deadline governing the issuance of a written decision

following an oral determination. 47 U.S.C. § 332(c)(7)(b).

Any time limit we fabricated would be inappropriate.

T Mobile argues that, without a requirement for

localities to issue a written decision within a set amount of

time following an oral determination, wireless carriers are left

“to wait until the FCC ‘shot clock’ expires – which could be

90 or 150 days depending on the type of installation involved

– and then [to] file an action alleging that the City has failed

to act in a reasonable time[.]” (Opening Br. at 45.) It also

contends that a “failure to act” lawsuit is insufficient because

the remedy for a successful suit is simply an order telling the

City to issue a written decision. In T Mobile’s view, forcing

wireless providers to sue both to compel a written decision

once the shot clock is violated and again to contest the written

decision serves only to “create yet further delay.” (Opening

Br. at 46.)

guess at what the locality’s written reasons will be, write a

complaint that contains those hypotheses, and risk being

sandbagged by the written reasons that the locality

subsequently provides in litigation after the challenging entity

has shown its cards.” Id. at 816 n.3. If an applicant cannot

file suit, however, because the locality’s “final action” has not

yet occurred, those concerns vanish. The ZBA’s decision

here, when reduced to writing, was both its decision to deny

and its final action.

22

Those concerns are overstated and, in any case,

irrelevant. The shot clock begins to run once a wireless

provider files its application, so it is already ticking before

any oral decision is made. If the locality fails to meet that

deadline by not issuing a written decision before the shot

clock expires, the wireless provider can bring a claim for a

“failure to act.” 14 24 FCC Rcd. 13994, 14012 (2009). T

Mobile asserts that requiring a separate failure-to-act suit, in

addition to a suit on the merits, undercuts the statutory

purpose of expedited judicial review, particularly in cases

where the locality has a “pattern and practice of not issuing a

written decision of land use denials unless or until [it] is

sued.” (Opening Br. at 7.) But the statute’s own remedies

cannot possibly undercut its purpose. A separate failure-to-

act claim is the very remedy Congress chose for shot clock

violations. 24 FCC Rcd. 14013 at ¶ 4 (2009). Whether or not

T Mobile likes that policy choice, it is the one Congress

made, and we are not free to change it.

C. The Timing Requirement Is Not

Jurisdictional.

Because we hold that a writing is required for a denial

to constitute a final action, T Mobile’s initial complaint was

not ripe for review when filed. And, T Mobile’s

supplemental complaint was filed more than 30 days after the

ZBA issued its written decision and was therefore untimely

under the TCA’s review provision. 47 U.S.C.

§ 332(c)(7)(B)(v). Thus, the District Court only had

jurisdiction if T Mobile’s supplemental complaint cured the

14

It is not clear which time limit would have applied in

this case and whether it would have been violated.

23

ripeness flaw in its initial complaint by relating back to the

original filing date. If the 30-day time limit in the TCA’s

review provision is nonjurisdictional, we can safely say that

relation back is possible and allows a supplemental complaint

to cure a defective premature filing. 15 At the outset, then, we

must determine whether that 30-day time limit is

jurisdictional, being mindful both of the Supreme Court’s

counsel to exercise caution before holding timing

requirements to be jurisdictional and of its guidance regarding

what constitutes a jurisdictional limit. 16 Sebelius, 568 U.S. at

149, 153-54. Caution is indeed warranted because statutes of

limitations and other filing deadlines “ordinarily are not

jurisdictional.” Id. at 154; see also United States v. Kwai Fun

Wong, 135 S. Ct. 1625, 1632 (2015) (“[M]ost time bars are

nonjurisdictional.”).

15

We do not reach the issue of whether an unripe

complaint can be cured by a supplemental or amended

pleading over which the Court lacked jurisdiction.

16

The City claims that our decision in Nextel Partners

Inc. v. Kingston Township, 286 F.3d 687 (3d Cir. 2002) is

effectively determinative. Not so. In Kingston Township,

then-Judge Alito noted that the District Court had held the

timing requirement in the TCA’s review provision was

jurisdictional. Id. at 695. But we did not address whether

that determination was correct, nor did we rely on it. Instead,

we concluded that there could be no “failure to act” towards

an application that was not submitted. Id. at 692. Since our

decision in that case, the Supreme Court has clarified the

process for determining if a time limit is jurisdictional.

Sebelius, 568 U.S. at 149.

24

“[T]o ward off profligate use of the term ‘jurisdiction,’

[the Supreme Court has] adopted a readily administrable

bright line for determining whether to classify a statutory

limitation as jurisdictional.” Sebelius, 568 U.S. at 153 (citing

Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006))

(quotation marks omitted). We are to ask “whether Congress

has clearly state[d] that the rule is jurisdictional; absent such a

clear statement, we … should treat the restriction as

nonjurisdictional in character.” Id. (alteration in original)

(citation and quotation marks omitted); see also Musacchio v.

United States, 136 S. Ct. 709, 716 (2016) (Thus, “[w]e treat a

time bar as jurisdictional only if Congress has ‘clearly stated’

that it is.”). In deciding whether Congress has made such a

clear statement, “we evaluate the ‘text, context, and relevant

historical treatment.’” United States v. Kalb, 891 F.3d 455,

460 (2018) (quoting Reed Elsevier, 559 U.S. 154, 166

(2010)).

Referencing that last test, Wilmington asserts that

“[s]ection 332’s statutory grant of jurisdiction to district

courts, the text of the statute, the placement of the filing

window in that same section, and the well-established

treatment of the filing window as jurisdictional, [all

demonstrate] that the filing window is jurisdictional.”

(Answering Br. at 15.) We disagree. The differences

between the review provision’s timing requirement and the

timing requirement we held to be jurisdictional in Kalb, and

the similarities between the review provision’s timing

requirements and those at issue in Sebelius and Musacchio,

which the Supreme Court held to be nonjurisdictional,

actually support treating the timing requirement in the TCA’s

review provision as nonjurisdictional.

25

First, although Wilmington says that the text of the

statute indicates Congress’s desire to make the 30-day timing

requirement jurisdictional, the text does not use the term

“jurisdictional” or any variation of it to describe the timing

requirement. 47 U.S.C. § 332(c)(7)(B)(v). To the contrary,

the statute uses permissive rather than mandatory language.

Unlike the timing requirement we held to be jurisdictional in

Kalb, which mandated that an action would be barred if not

filed in time, the TCA’s review provision states that an action

“may” be filed within 30-days. Compare Kalb, 891 F.3d at

460 with 47 U.S.C. § 332(c)(7)(B)(v). The language is much

closer to that which the Supreme Court decided was

nonjurisdictional in Sebelius. The statute at issue in that case,

like the review provision here, uses a permissive phrase –

“may obtain a hearing” – before it states the timing

requirement. 17 Compare Sebelius, 568 U.S. at 154, with 47

U.S.C. § 332(c)(7)(B)(v) (“may … commence an action”).

Similar to the timing requirement the Supreme Court held to

be nonjurisdictional in Musacchio, the review provision does

not confer jurisdiction, instead it allows an action to be

17

T Mobile also points to Henderson v. Shinseki,

which held a timing requirement to be nonjurisdictional even

though it used the mandatory “shall” before stating the timing

requirement. 562 U.S. 428, 441-42 (2011). But the decision

in Shinseki, where the pertinent timing requirement could

have barred a veteran’s appeal, was partly based on “the

canon that provisions for benefits to members of the Armed

Services are to be construed in the beneficiaries’ favor,” and

so it is of less utility in deciding this dispute. Id. at 441

(quotation marks and citations omitted).

26

commenced “in any court of competent jurisdiction.” See

Musacchio, 136 S. Ct. at 717 (“[The provision] does not

expressly refer to subject-matter jurisdiction or speak in

jurisdictional terms.”). The text of the statute therefore favors

a holding that the timing requirement is nonjurisdictional.

Wilmington next contends that the context of the

timing requirement favors the view that the requirement is

jurisdictional, because the Supreme Court has stated that it is

“inextricably linked to … the language that creates the right

of action[.]” (Answering Br. at 13-14 (citing City of Rancho

Palos Verdes v. Abrams, 544 U.S. 113, 125 (2005)).) Thus,

says the City, the “filing window created by [the review

provision] is jurisdictional [because] it is integral to the

express purpose of the section, to this Court’s jurisdiction,

and to the parties’ rights and obligations[.]” (Answering Br.

at 8.)

True enough, the review provision’s timing

requirement does appear in the same subsection as the

statutory text granting jurisdiction. 47 U.S.C.

§ 332(c)(7)(B)(v). And, as we stated in Kalb, the Supreme

Court’s decisions in Bowles v. Russell, 551 U.S. 205, 210

(2007), and Reed Elsevier, Inc. v. Muchnick, 559 U.S. at 166,

both found the source of the timing requirement to be

important in determining whether that requirement was

jurisdictional. 891 F.3d at 462. In Kalb, moreover, we made

the same point the City now does, stating that a timing

requirement was jurisdictional because “the thirty-day appeal

period here is embedded in the same statutory section that

grants jurisdiction to the court of appeals.” Id.

27

But the location of the timing requirement within the

statutory structure, without more, does not clearly reveal

Congressional intent. As noted by the Supreme Court in

Sebelius, a timing requirement should not be classified as

jurisdictional solely based on its placement in a jurisdictional

provision. Sebelius, 568 U.S. at 155 (“A requirement we

would otherwise classify as nonjurisdictional … does not

become jurisdictional simply because it is placed in a section

of a statute that also contains jurisdictional provisions.”

(citing Gonzalez v. Thaler, 565 U.S. 134, 146-47 (2012))). In

Musacchio too, the Supreme Court held that a timing

requirement was nonjurisdictional despite its presence in the

jurisdiction-granting section of the statute at issue. 136 S. Ct.

at 717. The Court emphasized that the statute did not directly

speak of the timing requirement as jurisdictional, despite its

mandatory language. Id. That reasoning applies with at least

equal force here, so the context of the review provision’s

timing requirement does not make the requirement

jurisdictional.

Finally, Wilmington asserts that the timing

requirement is jurisdictional because of the historical

treatment of similar provisions. The City asserts that the

phrase “within 30 days after” creates a “window,” during

which a complaint must be filed, and not a “deadline.”

(Answering Br. at 11-12 (citing W. Union Tel. Co. v. FCC,

773 F.2d 375, 377 (D.C. Cir. 1985)) (noting that “within 60

days after” creates a 60-day filing window while “no later

than 60 days after” creates a filing deadline).) But that

argument misses the point because it goes to whether the rule

bars suit between certain dates or only after a certain date, not

to whether the timing requirement is jurisdictional. See, e.g.,

Union Tel. Co., 773 F.2d at 377-78 (discussing whether the

28

filing window is a jurisdictional bar for suits filed before the

window opens). And just because a complaint may be unripe

before a particular date does not mean that a deadline by

which suit must be filed is jurisdictional. As we stated in

Kalb, the Supreme Court’s decisions in Bowles and Reed

Elsevier both looked to “the Court’s prior treatment of

[similar timing requirements.]” Kalb, 891 F.3d at 460. In

Sebelius, the timing requirement, as here, used the phrase

“within” and thus, under Wilmington’s logic, it would have

been a jurisdictional limit. Sebelius, 568 U.S. at 154. But the

Supreme Court held otherwise, id., and that is of high

importance.

Because the text and context of this statute, and

historical treatment of timing requirements in similar statutes,

do not reveal a clear intent from Congress to make the review

provision’s timing requirement jurisdictional, we conclude

that it is not. 18

D. Rule 15 Allows a Supplemental Complaint

Filed After a Claims Processing Deadline To

Relate Back and Cure an Unripe Initial

Complaint.

We next consider whether an untimely supplemental

complaint can, by relating back, cure an initial complaint that

was unripe. We believe it can, and because T Mobile’s

18

That conclusion is further supported by the

thoughtful concurrence in Athens Cellular, concluding after

Sebelius that the timing requirement “imposed by Congress in

the TCA … is not a jurisdictional bar.” Athens Cellular, 886

F.3d at 1113 (Kaplan, J. concurring).

29

motion to supplement its complaint was properly granted, that

supplemental complaint relates back and is ripe. The District

Court therefore had jurisdiction and should not have granted

Wilmington’s motion for summary judgment.

At the outset, we note that the parties do not dispute,

and we agree, that the District Court was within its discretion

to grant T Mobile’s motion to supplement its complaint.

Pursuant to Federal Rule of Civil Procedure 15(d), “[o]n

motion and reasonable notice, the [district] court may, on just

terms, permit a [moving] party to serve a supplemental

pleading setting out any … event that happened after the date

of the pleading to be supplemented.” Fed. R. Civ. P. 15(d);

see also 3 James Wm. Moore et al., Moore’s Federal Practice

¶ 15.30 (3d ed. 2018) (“Supplemental pleadings … are

limited to subsequent events related to the claim or defense

presented in the original pleading.”). Here, the District Court

rightly granted T Mobile’s motion to supplement. That

decision was just, since Wilmington had long since had notice

of the event – the filing of the written denial – that occurred

after the initial pleading. After all, the City issued that denial,

and the denial was featured in the parties’ discovery plan.

The issuance of it was also plainly related to T Mobile’s

initial complaint.

That the initial complaint was premature is not a bar

since, under Rule 15(d), “[t]he court may permit

supplementation even though the original pleading is

defective in stating a claim for relief or defense.” Fed. R.

Civ. P. 15(d). As the Advisory Committee Notes make clear,

“Rule 15(d) is intended to give the [district] court broad

discretion in allowing a supplemental pleading.” Fed. R. Civ.

P. 15(d) advisory committee’s note to 1963 amendment. It is

30

furthermore “within the discretion of the court to allow a

supplemental pleading to be filed at any stage of the case[.]”

Moore et al., supra, ¶ 15.30. The District Court here was thus

well within its discretion in granting T Mobile’s motion to

supplement the complaint.

Rule 15 does not indicate whether or under what

circumstances a supplemental pleading can relate back to the

date of the original pleading to avoid the effect of a time

limit. 6A Charles Alan Wright et al., Federal Practice &

Procedure § 1508 (3d ed. 2018). Subsection (c) of the Rule,

which provides for the relation back of amended pleadings,

does not specifically refer to supplemental pleadings. Fed. R.

Civ. P. 15(c). Nor does Rule 15(d) make any mention of

relation back. Fed. R. Civ. P. 15(d). But case law and

secondary sources have long instructed that once a

supplemental complaint is granted, it is treated like an

amended complaint for purposes of relation back. 19 Thus,

even though Rule 15(d) is in a separate statutory provision

from Rule 15(c), a supplemental complaint can relate back.

Wright et al., supra, § 1508; see also F.D.I.C. v. Knostman,

966 F.2d 1133, 1138 (7th Cir. 1992) (“The distinction

between an amended pleading and a supplemental pleading is

19

Courts have generally held that a supplemental

complaint is eligible for relation back, but rely on different

rationales to do so. See Wright et al., supra, § 1508 (“[S]ome

courts have held that for purposes of applying the relation-

back doctrine a supplemental pleading may be treated as an

amended pleading under Rule 15(c); other courts have

applied the relation-back principle directly to supplemental

pleadings even though Rule 15(d) does not mention it.”)

(internal citations omitted).

31

often disregarded for purposes of relation back under Rule

15(c).”); Russell v. New Amsterdam Cas. Co., 303 F.2d 674,

680-81 (8th Cir. 1962) (finding supplemental pleading related

back despite plaintiff suing in the wrong capacity and not

achieving appropriate status for diversity jurisdiction until

after the limitations period had expired). That stands to

reason, since, if a “defendant had notice of the subject matter

of the dispute and was not prejudiced in preparing a defense

…[,] the policy against stale claims becomes subsidiary to the

policy expressed throughout the rules in favor of allowing a

party to set forth all the grievances against another party in

one action and resolving them on their merits.” Wright et al.,

supra, § 1508.

So a pleading filed according to Rule 15(d) can relate

back, assuming it meets “the basic test for relation back

prescribed by Rule 15(c).” Id.; see also Moore et al., supra,

¶ 15.30 (“A supplemental pleading may relate back to the

date of the original complaint if the requirements under Rule

15(c) for relation back are satisfied”); Davis v. Piper Aircraft

Corp., 615 F.2d 606, 609 n.3 (4th Cir. 1980) (supplemental

pleading relates back if Rule 15(c)’s test is met). In fact, as

the District Court observed, if a supplemental complaint

meets the requirements for relation back then “[r]elation back

is mandatory,” and not subject to additional equitable

considerations. 20 (App. at 6 (citing Arthur v. Maersk, Inc.,

434 F.3d 196, 202-03 (3d Cir. 2006)).)

20

We note, however, that “[a] party opposing the

introduction of a supplemental pleading might wish to raise

the statute-of-limitations defense when the additional

pleading (1) alleges new matter that brings the earlier

pleading up to date; (2) cures a defect in the original pleading;

32

Looking then to Rule 15(c), a complaint “relates back

to the date of the original pleading when … [it] asserts a

claim or defense that arose out of the conduct, transaction, or

occurrence set out -- or attempted to be set out -- in the

original pleading[.]” Fed. R. Civ. P. 15(c)(1)(B). The

District Court here concluded that there was no need to

determine whether T Mobile’s supplemental complaint

related back, because, even if it did, “it fail[ed] to cure the

deficiencies of the initial complaint[.]” (App. at 8.) But

given our view that the supplemental complaint could indeed

cure the ripeness problem with the initial complaint, we must

contend with the relation-back question.

To determine if relation back is proper, the only issue

is whether there is a “common core of operative facts in the

two pleadings.” Bensel v. Allied Pilots Ass’n, 387 F.3d 298,

310 (3d Cir. 2004.) Here, that test is met. Both complaints

rely on the same core facts. The written denial was a

certification and restatement of the earlier oral denial.

Thus, the only question remaining is whether a

complaint that relates back can cure an untimely initial

complaint, and the answer is yes. The clear preference

embodied in Rule 15 is for merits-based decision making. Cf.

Moore et al., supra, ¶ 15.30 (“The same principles that

support the liberal amendment of pleadings also apply to

supplemental pleadings.”). As the Supreme Court has stated,

the purpose of Rule 15 is “to balance the interests of the

or (3) states a new claim that arose after the filing of the

complaint.” Wright et al., supra, § 1508.

33

defendant protected by the statute of limitations with the

preference expressed in the Federal Rules of Civil Procedure

in general, and Rule 15 in particular, for resolving disputes on

their merits.” Krupski v. Costa Crociere S.p.A., 560 U.S. 538,

550 (2010). The requirements of Rule 15 itself protect

defendants from an unfair relation back. 21 Under that Rule,

courts “look[s] to whether the opposing party has had fair

notice of the general fact situation and legal theory upon

which the amending party proceeds.” Bensel, 387 F.3d at

310. In this instance, Wilmington had sufficient notice since

the supplemented complaint simply alleged the issuance of

the ZBA’s written denial. And, of course, Wilmington had

notice of everything in the supplemental complaint. It not

only knew of the written denial and the reasons given, it

generated them.

Relation back has been allowed to address

jurisdictional problems. We said in Berkshire Fashions, Inc.

v. M.V. Hakusan II that relation back may be used to cure

defects in jurisdictional allegations. 954 F.2d 874, 878 (3rd

Cir. 1992). In that case, the District Court had dismissed the

plaintiff’s claim based on admiralty jurisdiction and denied

the plaintiff’s motion to amend its complaint to allege

diversity jurisdiction. Id. at 877. We concluded that both

decisions were in error, holding that an amended complaint

relates back and can cure insufficient pleading of subject

matter jurisdiction. Id. at 878. Recently, our Circuit allowed

21

This is not a pass for endless delay in

supplementing a complaint. Indeed, we have endeavored to

emphasize that whether to allow supplemental pleading

depends on equitable considerations of fairness and notice

that district courts must take into account.

34

a plaintiff to cure a diversity defect when the case had been

litigated for years. See GBForefront, L.P., v. Forefront

Mgmt. Grp., LLC, 888 F.3d 29, 32 (3d Cir. 2018)

(“instruct[ing] the [d]istrict [c]ourt to give leave to further

amend the complaint … to cure defective jurisdictional

allegations”).

Other circuits have held the same. See Woods v. Ind.

Univ.-Purdue Univ. at Indianapolis, 996 F.2d 880, 884 (7th

Cir. 1993) (“Consistent with its history and purpose, Rule

15(c) has uniformly been applied to relate back [filings] that

cure defective statements of jurisdiction ….”); Boyce v.

Anderson, 405 F.2d 605, 607 (9th Cir. 1968) (allowing

amendment alleging that no previous appeal had been taken

to the United States Court of Customs and Patent Appeals to

cure jurisdictional defect in complaint after statute of

limitations had expired). That conclusion is also consistent

with 28 U.S.C. § 1653, which allows “[d]efective allegations

of jurisdiction [to] be amended, upon terms, in the trial or

appellate courts.” Id.

Courts have similarly permitted cure of actual defects

in the court’s jurisdiction, going beyond just jurisdictional

allegations. For instance, although not in a case involving a

later complaint, the Supreme Court has said that a court can

drop a dispensable non-diverse party to cure a defect in

diversity jurisdiction. Newman-Green, Inc. v. Alfonzo-

Larrain, 490 U.S. 826, 837-38 (1989); see also E.R. Squibb &

Sons, Inc. v. Lloyd’s & Cos., 241 F.3d 154, 163 (2d Cir.

2001) (stating that, “where it is appropriate to relate back an

amendment to a pleading under Rule 15, jurisdiction is

assessed as if the amendment had taken place at the time the

complaint was first filed[,]” and thus replacing a non-diverse

35

plaintiff with a diverse plaintiff cured any jurisdiction

problem); Rowe v. United States Fid. & Guar. Co., 421 F.2d

937, 939, 944 (4th Cir. 1970) (concluding that a defective

complaint could be cured by a later complaint that pled an

assignment occurring after the original complaint was filed).

Nonetheless, “[a]mendments that go beyond the mere

correction or factual modification of the original pleading and

significantly alter the claim or defense alleged in that

pleading are treated more cautiously by the courts in applying

the relation-back doctrine.” Wright et al., supra, § 1497. The

Second Circuit, for instance, only sometimes allows

jurisdictional defects to be cured “when the underlying facts,

if properly pled, would have supported jurisdiction at the time

the action commenced.” Correspondent Servs. Corp. v. First

Equities Corp. of Fla., 338 F.3d 119, 125 (2d Cir. 2003); see

also, e.g., Barton v. Ellis, No. 75-1188, 1977 WL 15469, at

*1 (D.S.C. Apr. 26, 1977) (denying using relation back to

cure the original complaint since they were defects “not [in

the] allegations of existing underlying jurisdictional facts but

rather [in] the prerequisite jurisdictional facts themselves”).

Wilmington argues such hesitance is appropriate here because

allowing relation back to cure the jurisdictional problem with

T Mobile’s initial complaint “would allow two wrongs under

Section 332 [(filing early and filing late)] to make a right.”

(Answering Br. at 2.)

We again disagree with the City. It is quite true that

T Mobile has made procedural matters more difficult than

they should be in this case. But denying relation-back to cure

the defect in this instance would not comport with Rule 15’s

aim to encourage resolution of disputes on the merits

whenever possible. The ripeness requirement exists so that

36

courts avoid issuing essentially advisory opinions. See

Richard H. Fallon, Jr. et al., Hart and Wechsler’s the Federal

Courts and the Federal System 224 (5th ed. 2003) (noting that

the ripeness doctrine allows courts to avoid a “dispute … too

‘ill-defined’ to be appropriate for judicial resolution until

further developments … more sharply framed the issues for

decision.”). That concern ceased to exist here once the

supplemental pleading was in place. At that point, the dispute

had matured and become capable of judicial review,

demonstrating that, “actions taken after the filing of the initial

complaint can be used to establish subject matter

jurisdiction.” Prasco, LLC v. Medicis Pharm. Corp., 537

F.3d 1329, 1337 (Fed. Cir. 2008).

If a supplemental complaint cannot cure an unripe

complaint, an endless feedback loop would be created

whereby the ripeness problem could never be overcome, even

though, as here, the dispute later became obviously ripe. Our

sister circuits have recognized that problem and concluded

that a supplemental complaint is the solution. 22 In Wilson v.

Westinghouse Electric Corp., the Eighth Circuit determined

that prohibiting an amended (or supplemental) complaint

from alleging facts that occurred after the date the initial

22

In our Circuit, a thoughtful district court decision

had long ago reached that conclusion. It held that an

untimely supplement adding facts occurring after the initial

filing that showed exhaustion of administrative remedies

could relate back to the initial premature complaint and allow

maintenance of the lawsuit. Bates v. W. Elec., 420 F. Supp.

521, 526-27 (E.D. Pa. 1976).

37

complaint was filed would turn a premature complaint into an

“irretrievable mistake that bars jurisdiction” and would be

“precisely the kind of procedural mousetrap that the Federal

Rules were designed to dismantle.” 838 F.2d 286, 289 (8th

Cir. 1988). The court held that, “[e]ven when the District

Court lacks jurisdiction over a claim at the time of its original

filing, a supplemental complaint may cure the defect by

alleging the subsequent fact which eliminates the

jurisdictional bar.” Id. at 290 (citing Mathews, 426 U.S. at

75). While Wilson addressed a circumstance in which the

supplemental complaint was timely filed, the proposition still

applies in a case like ours because, if a party was limited to

refiling within an applicable time limit, there would be little

need to make provision for supplementation of a complaint,

as a new complaint could be filed. 23

23

We note that sparing the cost of refiling and

providing convenience to the Court would remain legitimate

reasons for allowing supplemental complaints. But the

purpose of Rule 15(d) is broader. See Wright et al., supra, §

1504 (“The purpose of subdivision (d) is to promote as

complete an adjudication of the dispute between the parties as

is possible. … A supplemental pleading may be employed

for a variety of purposes.”). Wilmington contends that

Wilson is inapposite since it involved a timely supplemental

complaint. Thus, concern about a perpetual loop outcome

was not proper because the plaintiff could have simply refiled

his complaint. But we agree that “a plaintiff need not

commence a new action when after-occurring events

demonstrate that it has a right to relief even if the original

complaint was insufficient. A plaintiff may also be allowed

to supplement the complaint even if jurisdiction … would not

have been proper if the claim had been asserted in an

38

The Ninth Circuit, in Security Insurance Co. of New

Haven v. United States ex rel. Haydis, also relied on that logic

to find that relation back could cure an unripe complaint filed

before a statutory filing window opened. 338 F.2d 444, 448-

49 (9th Cir. 1964). In a fact scenario with striking similarities

to the present appeal, the plaintiff had filed its claim before a

statutory waiting period was over and then did not file an

amended complaint until after the statute of limitations period

had run. Id. at 445-46. The appeals court held that the

district court was “not required to apply the doctrine of

relation back so literally as to carry it to a time [before it was

ripe] so as to prevent the maintenance of the action in the first

place.” Id. at 449.

The Supreme Court has favorably cited Security

Insurance’s ruling. In Mathews, the plaintiff had not satisfied

a precondition of filing a complaint by first filing an

application with a particular agency. 426 U.S. at 72, 75. The

Court noted that a supplemental complaint, alleging that the

application had since been filed, would have cured the

jurisdictional defect. Id. at 75. In saying so, the Court relied

independent action.” Moore et al., supra, ¶ 15.30 (3d ed.

2018) (citation omitted). If supplemental complaints could

not cure ripeness, “then all supplemental pleadings of this

nature would be defeated for lack of jurisdiction – [the]

‘procedural mousetrap’ would render all supplemental

pleadings void.” George v. IRS, No. C05-00955 MJJ, 2006

WL 3499230, at *3 (N.D. Cal. Dec. 4, 2006) (citation

omitted).

39

on Security Insurance. Id. at 75 n.8 (citing Security

Insurance, 338 F.2d at 447-49). 24

Yet Wilmington asserts that ripeness can never be

cured by a later complaint. It advances four cases for that

proposition, but none are helpful. First, the City cites

Delaware Riverkeeper Network v. Secretary Pennsylvania

Department of Environmental Protection, (Riverkeeper I),

833 F.3d 360 (3d Cir. 2016), in which we concluded that,

“even though the underlying claim became ripe for review

during the pendency of the case, the ripening of the claim did

not cure deficient pleadings.” (App. at 8.) In that case,

however, no attempt to file a later complaint alleging ripeness

was made. Riverkeeper I, 833 F.3d at 369-70.

Likewise, in another two of the four cases that

Wilmington cites, there was no effort made to amend or

supplement the complaint. See TeleSTAR, Inc. v. FCC, 888

F.2d 132, 134 (D.C. Cir. 1989) (concluding non-final agency

action at the time of filing of petition may only be reviewed

upon the filing of another petition); W. Union Tel. Co., 773

F.2d at 377-78 (concluding that the court lacked jurisdiction

over challenges filed before the action became final).

Therefore, neither case determined whether relation back of a

later-filed complaint could cure a ripeness problem in the

initial complaint.

24

Wilmington contends that Mathews is inapposite

since the statute of limitations was waived. That argument

has no traction since, if it were a jurisdictional bar, it could

not be waived.

40

The City fares no better relying on Council Tree

Communications v. FCC, in which we stated that “[a] petition

to review a non-final agency order is incurably premature.”

503 F.3d 284, 291 (3d Cir. 2007). At no point in that case

was the complaint ripe, and the petitioner still had a petition

for reconsideration pending before the relevant agency on the

date the case was decided. Id. at 287. Furthermore, Council

Tree explicitly acknowledged that a supplemental complaint

can cure an unripe complaint when there is jurisdiction over

that supplemental pleading. See id. at 291 (“[W]e note that

‘nothing prevented [the petitioners] from supplementing their

premature petition with a later protective petition.’” (second

alteration in original) (quoting Horsehead Res. Dev. Co. v.

E.P.A., 130 F.3d 1090, 1095 (D.C. Cir. 1997))).

Wilmington also makes three policy arguments in

support of its position that an untimely supplemental

complaint should not be able to cure an unripe complaint.

First, it contends that allowing suits to be filed before an

action is ripe would “extend[] federal court jurisdiction over

local government actions before those actions are final[.]”

(Answering Br. at 9.) Second, such filings would waste

judicial resources and, in this case, cost taxpayers money, by

forcing courts to deal with a higher volume of unripe

complaints. Third, the purpose of § 332 is to preserve local

zoning authority, which would be undermined by allowing

plaintiffs to file suit early and thereby places undue pressure

on zoning commissions.

Those contentions, however, are unpersuasive. First, a

court would remain without jurisdiction if the claim had not

ripened by the time of the supplemental complaint. Second, it

41

seems that Wilmington overstates the impact that a decision

allowing an unripe complaint to be cured would have, since

our holding today makes it clear that an action is not final

until a written decision has been issued. Clarifying when a

determination is ripe for review should end any incentive for

aggrieved parties to file early to ensure they have not filed too

late.

Perhaps more importantly, however, courts can police

any potential abuse on a case-by-case basis using Rule 15(d)

and the Rule 15(c) test for relation back. It is understood that

“relation back of a supplemental pleading should not result in

providing unfair procedural advantages to a plaintiff[,] so …

relation back may not be for all purposes.” Wright et al.,

supra, § 1508. But here no unfair advantage has resulted, and

defendants in general will be adequately protected by a

district court’s Rule 15(d) analysis, which will determine if a

supplemental complaint should be allowed at all. For

instance, if a locality’s action is not yet a final action at the

time a Rule 15(d) motion is filed, the motion can easily be

denied. See Beezley v. Fremont Indem. Co., 804 F.2d 530,

530 (9th Cir. 1986) (supplemental pleading denied when it

still failed to cure defective original pleading).

When all is said and done here, we conclude that, to

effectuate the liberal purpose of Rule 15 and to avoid the

endless feedback loop that the City’s legal argument would

create, Rule 15 allows an untimely supplemental complaint to

relate back and cure an unripe initial complaint.

42

III. CONCLUSION

For the foregoing reasons, we will reverse the District

Court’s grant of the City’s motion for summary judgment,

vacate the District Court’s denial of T Mobile’s motion for

summary judgment, and remand to the District Court for

further proceedings consistent with this opinion.25

25

We will vacate the District Court’s denial of

T Mobile’s motion for summary judgment because it was

solely based on a finding that T Mobile’s suit was not timely

brought.

43