Petition for Writ of Certiorari — Erroll Tyler, individually and as President and CEO of Nautical Tours, Inc., et al., Petitioners v. Michael Cox, Commissioner, Boston Police Department, et al.

Supreme Court briefNov 22, 2024

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1

No.

34-ioMq.

In the

Supreme Court of tfje Mntteb States

ERROLL TYLER, ET AL.,

Petitioner,

v.

MICHAEL COX,

BOSTON POLICE COMMISSIONER, ET AL.,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

PETITION FOR A WRIT OF CERTIORARI

Erroll Tyler

Aliena Tabb-Harper

Plaintiffs' - Appellants'

Pro-Se Litigants

910 Main Street, Suite 714

Melrose, MA 02176

(781) 662-2680

nauticaltours@j uno.com

Dated: March 29, 2025

1

THE QUESTIONS PRESENTED ARE:

1.

Whether the First Circuit erred in holding

that City officials decision [not] to act on

Petitioners completed sightseeing vehicle

license applications, in absence of any form of

due process, fails to suffice a "Due Process

violation" and an "Equal Protection Clause

violation" on the part of the Respondents, as

deemed relevant to undisputed facts.

2.

Whether the First Circuit erred

not

warranting summary reversal - when the

court failed to hold to the Federal Rule of Civil

Procedure 60(b)(4) and 56(a)(c) as deemed

relevant to the Plaintiffs Statement of

Material Facts of this case.

3.

Whether the U.S. District Court's analysis,

pursuant to the Due Process Clause of the

Fourteenth Amendment, is fundamentally

flawed, whereby the Court fails to hold to the

stated purpose of that enactment; Notice and

Opportunity to be heard before an impartial

tribunal must be administered prior to

rendering a final decision or judgment of

deprivation of a persons rights.

4.

Whether the U.S. District Court for the

Eastern District of MA and the First Circuit

committed; REVERSIBLE ERROR when

they failed to hold to "The Law of Void

Judgments and Decisions" that a judgment

may not be rendered in violation of U.S.

Constitutional Protections due to lack of due

process, in accordance with Fed. R. Civ. P.

60(b)(4) and the doctrine of procedural due

process law, as deemed relevant to the

undisputed material facts of this case. A VOID

11

JUDGMENT MAY BE CHALLENGED IN

ANY COURT AT ANY TIME. THERE ARE

NO

TIME

RESTRAINTS

WHEN

APPEALING A VOID JUDGMENT.

i

Ill

PARTIES TO THE PROCEEDING

Petitioners who were Plaintiffs-Appellants

below are Erroll Tyler and Aliena Tabb-Harper, the

co-owners of Nautical Tours, Inc.

Petitioners were Plaintiffs in the district court

and the Appellants in the First Circuit.

Respondents' who were Defendants'-Appellees

are Michael Cox, in his official capacity as Boston

Police

Commissioner;

Thomas

Lema,

Jr.,

individually and in his official capacity as Boston

Police Department, Inspector of Carriages, Hackney

Carriage Unit were the municipal entity Defendants

in the district court and Appellees in the First

Circuit.

IV

RELATED PROCEEDINGS

Nautical Tours, Inc. v. Department of Public

Utilities, No. SJC-11455, Commonwealth of

Massachusetts, Supreme Judicial Court,

Judgment entered August 20, 2014.

Tyler v. Evans, No. l:18-cv-10677, United

States District Court, for the Eastern District

of Massachusetts, Judgment entered May 31,

2022.

Tyler v. Cox, No. 22-1514, United States Court

of Appeals, for the First Circuit, Judgment

entered June 25, 2024.

Tyler v. Cox, No. 22-1514, United States Court

of Appeals, for the First Circuit, Judgment

entered August 26, 2024.

V

TABLE OF CONTENTS

QUESTIONS PRESENTED......................

1

PARTIES TO THE PROCEEDING...........

m

RELATED PROCEEDINGS......................

IV

TABLE OF CONTENTS...... .....................

,v

TABLE OF CITED AUTHORITIES..........

XI

PETITION FOR WRIT OF CERTIORARI

1

OPINIONS BELOW....................................

1

JURISDICTION..........................................

1

STATEMENT OF THE CASE...................

2

REASONS FOR GRANTING THE WRIT.

9

A.

The Court Should Grant

Certiorari to Clarify the Proper

Scope and Constitutional

Application of the Doctrine of

Federal Rules of Civil Procedure,

Rule 56, Conjointly with the

Doctrine of Due Process Law,

Pursuant to the Law of Void

Judgments and Decisions,

Supreme Court Decisions on Void

Orders..!...........................................

I.

Constitutional Provision

Involved.... ...........................

10

Court's Overview of

Procedural Due Process.....

10

The Decision Below Is

Egregiously Wrong........................

13

II.

B.

9

VI

I.

District Court's Summary

Judgment Ruling is Not

Grounded in Fact or Law

and Warrants Summary

Reversal or at least

Vacated and Remanded to

Trial..................................

SUMMARY JUDGMENT GUIDELINES

13

17

A.

Procedure for Granting Summary

Judgment............................................ 18

B.

The District Court Failed to Address

the Essential Due Process Violation

Elements of Plaintiffs' Complaint in

Count I & II.......................................... 19

EQUAL PROTECTION CLAUSE CLAIM.......... 20

A.

The First Circuit Court of

Appeals Erred by Affirming the

District Court's Decision of No

Due Process Violation, in

Contrast with the District

Court's Previously Cited Widely

Held Precedents.................................. 21

I.

B.

The First Circuit's Cited

Precedents are Not

Grounded In Fact, or Law....... 24

The Respondents have cited

inaccurate information, which

First Circuit has misconstrued as

Factual in their Ruling

28

Vll

C.

Memorandum of Law in Support

of Writ of Certiorari to Vacate

Void Judgment for lack of Due

Process............................................

30

I.

Vacate Judgment...............

30

II.

Legal Standard...................

30

III.

The Judgment Violates

Due Process Due to Lack

of Proper Notice..................

31

Petitioners Were Not

Provided Proper Notice......

31

IV.

V.

The Judgment Violates

Due Process Due to Lack

of Opportunity to be Heard......32

VI.

Petitioners were Denied

the Opportunity To Be

Heard.................................

32

Void Judgments Must Be

Vacated as a matter of

Law.....................................

32

The Law of Void Judgments and

Decisions, Supreme Court

Decisions on Void Orders...........

33

The First Circuit's Analysis of

the Undisputed Facts is Flawed .

35

The First Circuit Failed to

Recognize the Due Process

Violations Essential to the

Petitioners Complaint................

36

VII.

D.

I.

II.

Vlll

III.

The First Circuit Panel

Manifestly Erred by Denying the

Petitioner's Request for a Panel

Rehearing......................................

37

CONCLUSION....................................................

40

TABLE OF APPENDICES

APPENDIX A - OPINION OF THE UNITED

STATES COURT OF

APPEALS FOR THE FIRST

CIRCUIT, DENIAL OF

PETITIONER'S REQUEST

FOR PANEL REHEARING

FILED AUGUST 26, 2024.....

la

APPENDIX B - OPINION OF THE UNITED

STATES COURT OF

APPEALS FOR THE FIRST

CIRCUIT AFFIRMS

JUDGMENT CITED BY THE

DISTRICT COURT FILED

ON JUNE 25, 2024..................

3a

APPENDIX C - OPINION OF THE UNITED

STATES DISTRICT COURT

FOR THE EASTERN

DISTRICT OF

MASSACHUSETTS,

COURT'S MEMORANDUM

& ORDER RENDERING

SUMMARY JUDGMENT IN

FAVOR OF DEFENDANTS

FILED MAY 31, 2022..............

11a

IX

APPENDIX D - OPINION OF THE UNITED

STATES DISTRICT COURT

FOR THE EASTERN

DISTRICT OF

MASSACHUSETTS,

COURT'S MEMORANDUM

& ORDER DENYING THE

RESPONDENT'S MOTION

TO DISMISS FILED

AUGUST 1,2019..................

APPENDIX E - PLAINTIFF'S LOCAL RULE

56.1, STATEMENT OF

MATERIAL FACTS FILED

JANUARY 27, 2022................

APPENDIX F -AFFIDAVIT OF PETITIONER

ERROLL TYLER FILED

FEBRUARY 10, 2022.............

APPENDIX G - LT. LEMA & JULIE SUSI

DEPOSITION

TRANSCRIPTS FILED

DECEMBER 23, 2021............

APPENDIX H - STATUTORY AND

REGULATORY

PROVISIONS INVOLVED....

16a

20a

31a

32a

33a

X

TABLE OF CITED AUTHORITIES

CASES:

Adickes v. S.H. Kress & Co.,

398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142

(1970)...................................... .............................

18

Anderson v. Liberty Lobby, Inc.,

All U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202

(1986).....................................................................

18

Ashcroft v. al-Kidd,

563 U.S. 731 (2011)

16

Board of Regents of State College v. Roth,

408 U.S. 564...................... .........................

6

Bos. Env't Sanitation Inspectors Ass'n v. City of Bos.,

749 F.2d 12 (1st Cir. 1986)

23, 24, 29

Brosseau v. Haugen,

543 U.S. 194(2004).

16

Caesars Mass. Mgmt. Co. v. Crosby,

778 F.3d 327 (1st Cir. 2015)....................

25

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985)...................................

11

Earle v. McVeigh,

91 U.S. 503 (1875)

34, 35

Eves v. LePage,

2019 WL. 2521731, (1st Cir. June 19, 2019)

4, 12, 17, 23

XI

Goldberg v. Kelly,

397 U.S. 254 (1970)

1, 14

Greene v. McElroy,

360 U.S. 474 (1959)

14, 22, 26

Hanson v. Denckla,

357 U.S. 235, 2 L. Ed. 2d 1283, 78 S. Ct. 1228

34

Kalb v. Feuerstein,

308 U.S. 433 (1940)

32

Kentucky Dept, of Corrections v. Thompson,

490 U.S. 454 (1989)........................................

22

Kiugh v. U.S.,

620 F.Supp. 892 (D.S.C. 1985)

34

Limerich v. Greenwald,

749 F.2d 97 (1st Cir. 1984)

29

Maldanado v. Fontanes,

568 F.3d 263 (1st Cir. 2009)

5

Martinez-Velet v. Simonet,

919 F.2d 808 (1st Cir. 1990)

26

Matthews v. Eldridge,

424U.S. 319 (1976)....

10, 12, 32, 36, 39

Mead v. Independent Ass'n,

684 F.3d 226 (1st Cir. 2012)

14

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306 (1950)

12, 31, 36

Xll

Nautical Tours, Inc. u. Department of Public

Utilities, 396 Mass. 1007 (2014).....................

Newman v. Massachusetts,

884 F.2d 19 (1st Cir. 1989)

4

3, 8, 16

Peralta v. Heights Medical Center, Inc.,

485 U.S. 80 (19881...................................

31

Perez-Acevedo v. Rivero-Cubano,

520 F.3d 26 (1st Cir 2008)...... ...

14

Raper v. Lucey,

488 F.2d 748 (1st Cir. 1973)

Renaud v. Abbott,

116 U.S. 227, 29 L. Ed. 629, 6 S. Ct. 1194

United Student Aid Funds, Inc. v. Espinosa,

559 U.S. 260 (2010).........................................

Wall v. King,

206 F.2d 878 (1st Cir. 1953)

15, 22

35

30-31

13

Yick Wo v. Hopkins,

118 U.S. 355 (1886)

12, 20

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017)

4, 17

Xlll

FEDERAL STATUTES:

Title 42 U.S.C. § 1983.1, 13, 15, 22, 29, 30, 33, 35, 37

United States Constitution XIV Amendment

.................................. 6, 9, 11, 13, 14, 25, 26, 33, 35-39

Federal Rules of Civil Procedure, Rule 56(a)(c)

1, 17, 36, 40

Federal Rules of Civil Procedure, Rule 60(b)(4)

................................................................. 1, 9, 30, 34, 40

STATE ADMINISTRATIVE STATUTES &

REGULATIONS:

Chapter 399 of the Acts of 1931

3, 13, 15, 21

Massachusetts General Law 159A, § 1

2-4, 7, 8, 19, 23-28, 30

City of Boston, BPD Rule 404, No. SO-10-002

(2010)

8, 16, 21

1

PETITION FOR WRIT OF CERTIORARI

Petitioners Erroll Tyler, Aliena Tabb-Harper

respectfully petition this Court for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the First Circuit.

Pursuant to the Fed. R. Civ. P., Rule 60(b)(4): Law of

Void Judgments and Decisions; concurrent with Fed.

R. Civ. P., Rule 56(a)(c): Summary Judgment

Guidelines.

OPINIONS BELOW

August 26, 2024, opinion of the court of

appeals (Pet. Appx. la) is unpublished case No. 221514, 1st Cir. (2024). Its order denying petition for

panel rehearing is attached as (Appendix A). June

25, 2024, opinion of the court of appeals (Pet. Appx.

3a) is unpublished case No. 22-1514, (1st Cir. 2024).

Its judgment affirmed the U.S. District Court's

judgment, granting summary judgment in favor of

Defendants-Appellees is attached as (Appendix B).

May 31, 2022, opinion of the District Court (Pet.

Appx. 11a) is published, case No. l:18-cv-10677-IT,

1st Cir. (2022). Attached as (Appendix C). Each is

reproduced in Petitioner's Appendix filed herewith.

JURISDICTION

The First Circuit Court of Appeals filed its

judgment on August 26, 2024. (Pet. Appx. la). This

petition is filed pursuant to Fed. R. Civ. P.R.

60(b)(4), Fed. Law on Void Judgments and Decisions;

concurrent with Fed. R. Civ. P., Rule 56(a)(c):

Summary Judgment Guidelines. This Court has

jurisdiction invoked under 28 U.S.C. § 1254(1), the

Constitutional and Statutory Provisions involved

U.S. Const. XTV, § 1., and 42 U.S.C. § 1983.

2

STATEMENT OF THE CASE

A.

Introduction

This is an appeal which derives from the

enduring case of the plaintiffs Erroll Tyler and

Aliena Tabb-Harper, (collectively) owners of

Nautical Tours, Inc. is a company for amphibious

sightseeing tours based in Boston, MA.

Despite the City's resistance, Nautical Tours,

Inc. has established its fitness to operate its tour

business, having received its Certificate of Public

Convenience and Necessity ("CPCN" from the

Massachusetts Department of Public Utilities,

including its Certificate of Compliance for Charter

Service. PERMITS: from the Department of

Conservation & Recreation to travel across the

Longfellow and Harvard Bridges, along with its City

of Cambridge, MA Municipal Street License received

more than a decade ago, similar to the City of

Boston's Municipal Street License Permits, which

the plaintiffs sought in their petition in this

proceeding.

The Boston Police Commissioner, Inspector of

Carriages, and Hackney Carriage Unit officials had

(collectively) refused for years to take any action,

whatsoever, on the Plaintiffs sightseeing automobile

license applications.

While these same City officials were timely

and routinely processing similarly situated vehicle

license applications of other similarly situated

Boston sightseeing tour companies who applied for

similar licenses year after year, all despite Plaintiffs'

formal request for a hearing pursuant to M.G.L.

159A.

3

I.

City

of

Boston’s

Sightseeing

Automobile Licensing Program

Several licenses and various permits are required

to operate a sightseeing vehicle tour business in

Massachusetts. Pursuant to M.G.L. 159A. £ 1. A

municipal street license is required to carry

passengers for hire on the public ways of cities and

towns in the Commonwealth of Massachusetts.

B.

Statement of Proceedings

I.

Proceedings prior to Petitioner's

initial filing for license

On August 20, 2014, the Supreme Judicial

Court of the Commonwealth of Massachusetts issued

their ruling that the Boston Police Commissioner

had exclusive authority to grant municipal street

licenses for sightseeing vehicles in the City of

Boston, MA, pursuant to the authority granted to

the City of Boston, Police Commissioner by the State

Legislature under Chanter 399. of the Acts of 1931.

W

The United States District Court, District of

Massachusetts issued a Memorandum & Order, Civil

Action No. l:18-cv-10677-IT entered on August 1,

2019. The District Court denied the Respondents’

motion to dismiss, wherein, the court noted that;

..."Plaintiffs' have adequately stated a claim in

Count II that Lt. Lema denied them procedurally

due process by refusing to process their sightseeing

automobile applications."2

1 See Nautical Tours, Inc. v. Department of Public

Utilities, 396 Mass. 1007, 1009 (2014).

2 See Newman v. Massachusetts, 844 F.2d 19, 23

4

The Court further stated that; ..."Lt. Lema

was reasonably aware that stonewalling Plaintiffs'

completed applications by failing to take any action

deprived Plaintiffs of the procedural notice and

opportunity to be heard that due process demands"3

"that the very action in question has previously been

held unlawful."4

... "The SJC made clear that Plaintiffs had a

potential "remedy" in judicial review of an adverse

decision, and it is reasonable to conclude at this

juncture that Lt. Lema was aware that his failure to

act would deprive Plaintiffs of this procedural

process."6

II.

Facts relevant to the questions

presented

On April 13, 2015, plaintiffs petitioned the

Boston Police Commissioner, Inspector of Carriages,

Hackney Carriage Unit for nine sightseeing

automobile license permits. City officials failed to act

on the plaintiffs petition within sixty days of the

filing thereof.

On June 17, 2015, sixty-five days after the

filing thereof, plaintiffs filed a petition unto City of

Boston, Inspector of Carriages, Hackney Carriage

Unit, pursuant to M.G.L. 159A, § 1., requesting a

hearing regarding their petition, filed on April 13,

(1st Cir. 1989).

See e.g. Eves v. LePage, No. 16-1494 (1st Cir. June

19, 2019).

4 See e.g. Ziglar v. Abbasi, 137 S. Ct. 1843, 1866

(2017).

5 See Nautical Tours v. Boston Police Commissioner,

memorandum (2019).

5

2015, for nine Boston sightseeing vehicles license

permits.

C.

United

States

Court,

District

of

Massachusetts, Memorandum & Order,

Civil Action No. l:18-cv-l0677-IT, Entered

Aug. 1, 2019

The District Court's ruling, as applicable to the

Court denying the Defendants "motion to dismiss" is

the underlying basis of Plaintiffs' legal argument.

Preceded by the Court's ruling cited, in supra section

111(c); The District Court issued the following

opimon.

..."Plaintiffs have adequately stated a claim

in Count II that Lema denied them procedural

due process by refusing to process their

sightseeing vehicle license applications." See

Newman v. Massachusetts, 884 F.2d 19, 23

(1st Cir. 1989). See Appendix D. Memorandum

& Order United States District Court of

Massachusetts Id. at 17

..."The relevant dispositive inquiry in

determining whether a right is clearly

established is whether it would be clear to a

reasonable [official] that his conduct is

unlawful in the situation he confronted." Id.

(alterations and emphasis in original) (quoting

Maldonado v. Fontanes, 568 F.3d 263, 269

(1st Cir. 2009). See Appendix D, Id. at 17.

"Notice and an opportunity to be heard have

traditionally and consistently been held to be

essential requisites of procedural due process. "

I.

Prospective

Sightseeing

Tour

Businesses May Apply for Such

License Locally

6

Sightseeing tour vehicles that would operate

on the streets of Boston must be licensed and

inspected by the City of Boston, Boston Police Dept.,

Hackney Carriage Unit, receiving a "sightseeing

automobile license." The Boston Police Dept, will not

allow an individual to operate a tour vehicle on the

streets of Boston without a sightseeing automobile

license. The purpose of the sightseeing automobile

license is to determine the specifications of the

vehicle and assure the City of Boston that the tour

vehicle is properly registered and inspected

annually.

On April 13, 2015, plaintiffs petitioned the City of

Boston, Hackney Carriage Unit for nine sightseeing

automobile licenses. But, City of Boston, Hackney

Carriage Unit officials simply refused to act on the

petitioners

sightseeing

automobile

license

applications. Over the next three months, Hackney

Carriage Unit officials cited various reasons to

support their efforts to rebuke the petitioners’ nine

sightseeing automobile license applications. Hackney

Carriage Unit officials collectively ignored the

petitioner's numerous pleadings to act on their

license petition. See Appendix F. Tvler Aff. at 40.

II.

Defendants by Their Actions

Deprived the Plaintiffs of Their

Protected Liberty Interest; The

Right to Use Their Property to

Make a Living in Their Chosen

Profession

To succeed on a procedural due process claim,

plaintiffs must first allege deprivation of "property"

or "liberty" interest protected by the Fourteenth

Amendment of the United States Constitution. See:

7

Board of Regents of State College v. Roth, 408 U.S.

564, 577 (1972).

On June 17, 2015, pursuant to Commonwealth

Carriers

Laws

of the

Commonwealth

of

Massachusetts in accordance with M.G.L 159A, § 1.

Plaintiffs filed a written request with the Boston

Police Department, Hackney Carriage Unit,

Inspector of Carriages requesting a due process

hearing on their vehicle license petition. The City of

Boston officials took no action on the Plaintiffs'

hearing request, which led to the Plaintiffs' lawsuit

being filed three years later on April 6, 2018.

Notably, the District Court cited in its

Memorandum & Order entered on August 1, 2019,

"Plaintiffs' were left without any

understanding of the specific reasons behind

the City's decision and lacked [a]ny

opportunity to be heard in response." noting;

(the "[rjeasons for governmental action

affecting important individual rights must be

timely preferred in order to satisfy due

process."); holding that; ("due process requires

the opportunity to be heard at a meaningful

time and in a meaningful manner” See

Goldberg v:Kelly, 397 U.S. 254, 267 (1970).

Importantly, here Plaintiffs were also left

without any opportunity to seek judicial review of an

adverse decision contrary to the earlier SJC's August

20, 2014, decision in their DPU lawsuit.

For nearly ten years [3,575] days and

counting, the Respondents' have knowingly and

willingly thumbed their noses at the laws of the

Commonwealth of Massachusetts and the United

States Constitution.

8

The irrefutable, undisputed evidence, in this

case, reveals the egregious nature of the

Respondents actions. Boston Police Department,

Hackney Carriage Unit, Inspector of Carriages was

thoroughly aware of his legal responsibilities, in

accordance with M.G.L. 159A, $ 1.

Whereby, under this statute, the Boston Police

Department, Hackney Carriage Unit officials

routinely issue notices and conduct due process

hearings on a frequent basis in accordance with Rule

404 and [SJtate law.

The District Court's previously cited opinion

supports that conclusion, supra section III(c),

("Plaintiffs have adequately stated a claim in Count

II that Lt. Lema denied them procedural due process

by refusing to process their sightseeing automobile

license applications".) See Newman v. Mass., 844

F.2d 19, 23 (1st Cir. 1989).

When Boston City officials eventually did act,

four years later, exactly [1,660 days] [after] plaintiffs

filed their initial petition for sightseeing automobile

license permits, and [572 days] [after] plaintiffs filed

their civil action lawsuit, the City’s hindered Oct

2019 final decision was void as a matter of law,

whereby it was accomplished without due process.

9

REASONS FOR GRANTING THE WRIT

A.

The Court Should Grant Certiorari to

Clarify

the

Proper

Scope

and

Constitutional Application

of the

Doctrine of Federal Rules of Civil

Procedure, Rule 60(b)(4), in accordance

with the Doctrine of Due Process Law,

Pursuant to the Law of Void Judgments

and Decisions* Supreme Court Decisions

on Void Orders

This Court should grant certiorari and

summarily vacate and remand the District Court's

May 31, 2022, Judgment primarily to ensure the

elucidation of the doctrine of procedural due process

law, and its irrevocable legal precedents, which

establish the rules and guiding principles that

ensure an individual’s guaranteed constitutional

rights shall not be infringed upon.

Properly perceived, the process of summary

judgment is primarily meant to secure the just,

speedy and inexpensive determination of every

action and proceeding. And applied critically, this

process is incapable of decerning which acts are

intentional, and which are not.

Therefore, an accurate assessment of the

disputed and undisputed material facts is pivotal to

ensure impartial and just treatment of the relevant

evidence set forth in these proceedings.

This court must grant review and remand in

this case, to firmly establish the relative importance

attached to the accurate application of the doctrine

of Fed. R. Civ. P., Rule 60(b)(4), pursuant to the

doctrine of Due Process Law, and Equal Protection

Clause of the Fourteenth Amendment of the United

10

States Constitution, as deemed relevant to the

undisputed material facts defined in this case.

I.

Constitutional Provision Involved

United States Constitution, Amendment XIV:

"All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

the State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States: nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the

laws."

II.

Court's Overview of Procedural

Due Process

[Procedural due process rules are shaped by

the risk of error inherent in the truth-finding process

as applied to the generality. Carey v. Piphus (1978);

See also: Matthews v. Eldridge (1976).

The Court has also stressed the dignitary

importance of procedural rights, the worth of being

able to defend one's interest even if one cannot

change the result. Fuentes v. Shevin (1972). See also:

Carey v. Piphus (1978).

The Supreme Court has held that;

[P]rocedural due process rules are meant to protect

people not from deprivation, but from the mistaken

or unjust deprivation of life, liberty, or property.

Carey v. Piphus (1978). The District Court's

Memorandum & Order, entered on August 1, 2019,

Adequately Infers to Legal Precedent Supporting

Petitioners Claims, Under the Doctrine of

11

Procedural

Due

Process,

and

Fourteenth

Amendment of the United States Constitution.

The District Court has inferred compelling

legal precedents in its ruling. Appendix D.

Memorandum & Order. Civil Action No. l:18-cv10677-IT. Dated Ausust 1. 2019. which reads in part.

..."Similarly, the right to equal treatment of

those similarly situated is clearly established,

and a reasonable police officer in Defendant

Lema's position would know that disparate

treatment of similarly situated applicants

violates the right of equal protection."...

See City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 439 (1985). See Appendix D.

District Court's Memorandum & Order. Id. at

17-18

...("The Equal Protection Clause of the

Fourteenth Amend commands that no state

shall 'deny to any person within its

jurisdiction the equal protection of the laws,'

which is essentially a direction that all

persons similarly situated should be treated

alike.")

..."And the court finds it was clear to a

reasonable officer in Lt. Lema's role that

processing applications for existing companies

but refusing to process the applications for

similarly situated new companies, with no

additional reason for the difference in

treatment, violates that right of equal

treatment. Lt. Lema fails to provide any

reason why an application form for a

renewed license from an existing company can

be processed immediately, whereas the exact

[s]ame application form from a new company

12

cannot be processed within four years." See

Appendix D, Id. at-18. See also: Yick Wo v.

Hopkins, 118 U.S. 355 (1886).

..."Lt. Thomas Lema was reasonably aware

that

stonewalling Plaintiffs

completed

applications by failing to take any action

deprived Plaintiffs of the procedural notice

and opportunity to be heard that due process

demands." See Eves v. LePage, No. 16-1492,

2019 WL. 2521731 at *16, (1st Cir. June 19,

2019) (See: Appendix D, Id. at 17) (See

Appendix G, Lt. Lema Tr. at 54, 55-56, 98-2

thru 105-3)

The lower courts, however, including the First

Circuit, have construed the doctrine of procedural

due process far more broadly than what was

demonstrated by the First Circuit in this case. The

Courts have held and unanimously determined that

due process concerns the procedures that the

government must follow [b]efore it deprives an

individual of their guaranteed rights of life, liberty

or property, and that due process requires [at] a

minimum. Notice, and an opportunity to be heard,

before an impartial tribunal Mullane v. Central

Hanover Bank (1950).

This right is a "basic aspect of the duty of the

government to follow a fair process of decision

making when it acts to deprive a person of his

possessions." Matthews v. Eldridge, 424 U.S. 319,

333 (1976).

13

B.

The Decision Below Is Egregiously

Wrong

District

Court's

Summary

I.

Judgment Ruling is Not Grounded

in Fact or Law and Warrants

Summary Reversal or at least

Vacated and Remanded to Trial

In any § 1983 action, the initial inquiry must

focus on whether two essential elements to a § 1983

deprivation action are present.

• Whether the conduct complained of was

committed by a person acting under color of

[S]tate Law; See Chapter 399, Acts of 1931

• Whether this conduct deprived a person of his

rights, privileges or immunities secured by

laws under the United States Constitution.

The District Court previously determined that

petitioners had a protected liberty interest under the

Fourteenth Amendment,

..."to make use of one's own property, here a

motor vehicle, as a means of getting from

place to place, whether in pursuit of business

or pleasure, ... which ... cannot be denied or

curtailed by a state without [procedural] due

process of law," Id. at 752 (quoting Wall v.

King, 206 F.2d 878, 882 (1st Cir. 1953).

The District Court cited August 1, 2019,

Memorandum & Order. Case #l:18-cv-10677, [Doc.

50]

..."To prove a procedural due process violation,

a plaintiff must demonstrate (1) a deprivation

of a protected interest and (2) that the

deprivation was accomplished without due

14

process. Perez-Acevedo v. Rivero-Cubano, 520

F.3d 26, 30 (1st Cir. 2008) Appx. C, Mem. Id.

at 10.

The Court's summary judgment reasoning is

unsupported by the facts. Defendant Lt. Lema's

deposition testimony indifference that he, in fact, did

nothing to address Plaintiffs license petition for

years is compelling.

The manifest nature of the District Court's

erred summary judgment ruling, coupled with its

ensuing negative impact on due process law, both in

this case and elsewhere, clearly warrants summary

reversal.

The District Court had cited in its

Memorandum & Order, entered on August 1, 2019,

... "The court thus concluded that Fourteenth

Amendment due process will attach to state

procedures regulating applications and

issuance of motor vehicle operator's license."

.. "[as] due process within administrative

procedures requires the opportunity to be

heard "at a meaningful time and in a

meaningful manner." Id. at 752-53 (quoting

Goldberg v. Kelly, 397 U.S. 254, 267 (1970).

... "In the case at hand, Plaintiffs have a

protected liberty interest in their ability to

make a living in their chosen profession." See

Greene v. McElroy, 360 U.S. 474, 492 (1959).

... ("[T]he right to hold specific private

employment and to follow a chosen profession

free

from

unreasonable

government

interference comes within the "liberty" and

"property concepts of the Fifth Amendment.");

See also Mead v. Indep. Assn’s, 684 F.3d 226

15

(1st Cir. 2012) (Holding that plaintiffs liberty

interests include the right "to pursue one’s

chosen profession free from unreasonable

government interference.")

... "A state denial of this protected liberty

interest without the exercise of adequate

procedural process may give rise to a viable

section 1983 claim." See Raper v. Lucey, 488

F.2d at 750, 752, 753 (1st Cir. 1973). See also:

Appendix D. District Court's Memorandum &

Order. Aus 1. 2019.

Whereby, petitioners specify the undisputed

material facts which support the genuine issues of

fact relevant to their § 1983 deprivation claim. See:

Appendix E. Plaintiffs' Statement of Material Facts

in Support of Opposition to Defendants' Motion for

Summary Judgment.

Respondents are policymakers for their

municipality, pursuant to the Commonwealth of

Massachusetts. Acts of 1931. Chapter 399. and

although there was ample opportunity to issue notice

and a hearing prior to the city officials rendering

their final decision on petitioners' sightseeing vehicle

license applications in Oct. 2019. Petitioners

received no pre-decision notice nor hearing prior to

City of Boston officials eventually rendering their

final decision four years after their initial license

applications filings in 2015.

The District Court itself has expressed

reference to this indifference committed by

Defendants as cited in the Court's issued ruling.

Appendix D. Memorandum & Order, entered Aueust

1. 2019.

16

The District Court's ruling cited the following

opinion:

(quoting District Court) First, "the legal

contours of the right in question" must be so

clear that "a reasonable officer would have

understood that what he was doing violated a

right." Mlodzinshi v. Lewis, (1st Cir. 2011);

Snyder, 756 F.3d at 33 (quoting Ashcroft v. alKidd, 563 U.S. 731, 741 (2011).

("[EJxisting precedent must have placed ...

beyond debate" that the "particular conduct" under

consideration violated that right.)

Second, the "clearly established" inquiry

"must be undertaken in light of the specific context

of the case, not as a broad general proposition.

Rocket Learning, 715 F.3d at 9 (quoting Brosseau v.

Haugen, 543 U.S. 194, 198 (2004)).

... "The relevant, dispositive inquiry in

determining whether a right is clearly

established is whether it would be clear to a

reasonable [officer] that his conduct was

unlawful, in the situation he confronted."

The District Court's ruling on Aug. 1, 2019,

cited the following opinion.

... "As the court has previously stated in their ruling,

Plaintiffs' have adequately stated a claim in Count II

that Lt. Lema denied them procedural due process

by refusing to process their sightseeing automobile

license applications." See: Newman v. Massachusetts,

884 F.2d 19, 23 (1st Cir. 1989). See: Petitioner's

Statement of the Case, § I. (A), Pg. 2-3.

..."the Inspector of Carriage's failure to act

under Rule 404, it is more than reasonable to

infer that Lt. Lema was reasonably aware

17

that stonewalling Plaintiffs' completed

applications by failing to take any action

deprived Plaintiffs of the procedural notice

and opportunity to be heard that due process

demands." See Eves v. LePage, (1st Cir. June

19, 2019).

... "that the very action in question has

previously been held unlawful." (quoting

Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017).

... "The SJC made clear that Plaintiffs had a

potential "remedy" in the judicial review of an

adverse decision, and it is reasonable to

conclude at this juncture that Lt. Lema was

aware that his failure to act deprives Plaintiffs

of this procedural process." See: Nautical

Tours, Inc., 14 N.E.3d. at 318.

The Supreme Court has held the required

elements of due process are those that "minimize

substantively unfair or mistaken deprivations" by

enabling people to contest the basis upon which a

State proposes to deprive them of their protected

interest.

SUMMARY JUDGMENT GUIDELINES

Accordingly, Fed.R.Civ.P. 56(a): summary

judgment may not be decided on disputed facts,

"when there is a genuine dispute as to the material

facts, the motion for summary judgment will be

denied, as the evidentiary conflict must be resolved

in a trial".

Plaintiffs dispute the City's allegation that the

city began using different applications for "new

companies" in 2009. See Appendix F, Tyler Aff., See

also; Appendix E, Plaintiffs’ Opposition to

18

Defendants' Motion for Summary Judgment Id. at

69-74.

A.

Procedure for Granting Summary

Judgment

The procedure for granting summary

judgment is found in Fed.R.Civ. P. 56 (a)(c) which

provides:

..."Summary Judgment will not lie if the

dispute about a material fact is genuine, that

is, if the evidence is such that a reasonable

jury could return a verdict for the nonmoving

party."

...At the Summary Judgment stage, the trial

Judge's function is not upon himself to weigh

the evidence and determine the truth of the

matter, but to determine whether there is a

genuine issue for trial." Anderson v. Liberty

Lobby, Inc.± 477 U.S. 242, 248, 106 S. Ct.

2505, 91 L. Ed. 2d 202 (1986).

The evidence must be viewed in light most

favorable to the nonmoving party. Adickes v.

S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598,

26 L. Ed. 2d 142 (1970).

The city has not offered [a]ny [rjational reason

why it treated new and existing companies

differently. The city had initially alleged that

Nautical Tours applications were incomplete, when

that argument failed, the city altered their position,

alleging that Nautical Tours had filed the wrong

applications. See: Appendix F. Tvler Aff. Id. at 8.

Eventually the City settled on the premise

that it viewed "new" companies, as being different

from "existing" companies, but gave no [rjational

reasons as to why they were different.

19

The fact that the city had a previous

relationship with these existing companies does not

meet the holding standard; "that the difference in

treatment rationally serves a permissible end based

solely on the difference identified."

The city offered no additional reasoning, nor

did the city uphold the plaintiffs' request for a

hearing, pursuant to M.G.L. 159A, § 1 affording due

process to the plaintiffs. See Appendix F, Tyler Aff.

Instead, the city chose to simply ignore the

plaintiffs' applications for four years, despite their

two written requests for a hearing, while they were

timely processing similarly situated sightseeing

tours companies petitions who filed on the same

application forms as plaintiffs. See: Appendix G.

Lema Tr. 94-23 thru 108. See: Appendix F. Tyler Aff.

The city must do more to survive

constitutional scrutiny. The city has failed to connect

the supposed difference between "new" and "existing

companies" difference in treatment, showing not

only that the two categories differ, but also, that the

difference in treatment rationally serves permissible

end based solely on the difference identified.

Court records indicate that the city failed to

make [a]ny [Rational connection that the difference

in treatment rationally serves a permissible end

based solely on the difference identified. See Yich Wo

v. Hopkins, 118 U.S. 355 (1886).

B.

The District Court Failed to

Address the Essential Due Process

Violation Elements of Plaintiffs'

Complaint in Count I & II.

The key question is whether First Circuit has

taken an unprecedented position that, because the

20

petitioners chose not to file nine additional

sightseeing automobile license applications, merely

at the arbitrary request of City Hackney Carriage

Unit officials, respondents were now, not required to

afford petitioners' due process rights [b]efore city

officials rendered a final decision on petitioner's

pending nine sightseeing automobile license

applications.

EQUAL PROTECTION CLAUSE CLAIM

The United States Supreme Court has held.

... ["Though the law itself is fair on its face and

impartial in appearance, yet, if it is applied and

administered by public authority with an evil

eye and an unequal hand, so as practically to

make unjust and illegal discrimination between

persons in similar circumstances, material to

their rights, the denial of equal justice is still

within the prohibition of the Constitution."] ...

-JUSTICE MATTHEWS, delivered the opinion

of the Court. Yick Wo v. Hopkins, 118 U.S. 355,

(1886).

The record indicates that the defendants by

their actions deprived the plaintiffs of their

guaranteed constitutional rights. The First Circuit's

ruling is wavering and clearly arbitrary, where the

doctrine plainly does not support the court's

inference.

In fact, making that inference requires a

rejection of the probabilities on which the doctrine of

the "Equal Protection Clause" is based in favor of

similarly situated individuals under similar

circumstances must be treated equally.

Here, the First Circuit has vested the Police

Commissioner authority not authorized in Chapter

21

399, or Rule 404. These provisions coupled with the

SJC's prior ruling clearly define the "exclusive

authority" vested to the Boston Police Commissioner,

to regulate only vehicles and the operators of said

vehicles on the streets of Boston. See: Ch. 399 of the

Acts of 1931. See. Nautical Tours v. Dept, of Public

Utilities. SJC-11455 (2014).

This provision does not warrant the Boston

Police Commission the authority to arbitrarily vet,

regulate, or impose actions on the corporate officers

of companies who may apply for such sightseeing

automobile license in the City of Boston.

The defendants by their actions deprived the

plaintiffs of the equal protection of the laws, failing

to process their applications in a timely fashion, and

then subjecting them to a different standard than

the similarly license applicants, who applied for

similar license, whom filed similar, or more precisely

the "same" application which plaintiffs' filed that

same year, and which were acted upon year after

year. The plaintiffs subsequently renewed their

requests that the city act on their initial sightseeing

vehicle license applications year after year, but to no

avail. Appendix F. Tyler Aff.

A.

The First Circuit Court of Appeals Erred

by Affirming the District Court's

Decision of No Due Process Violation, in

Contrast with the District Court's 2019

Previously Cited Widely Held Precedents

The First Circuit's most glaring error lies in

its conflicting ruling that a constitutional procedural

due process violation, so clearly established, does not

apply. The First Circuit's panel majority shockingly

concluded that Defendants had committed no due

process violation whatsoever, despite Lt. Lema's

22

deposition testimony admission statement that he,

in fact, did nothing to address the plaintiffs'

sightseeing vehicle license applications filed in April

2015. In their ruling, the First Circuit cited as a

precedent in their decision. Swarthout v. Cooke, U.S.

216, 219 (2011) (elements of a procedural due process

claim).

In reference to that ruling, the U.S. Supreme

Court has held that,

"As for the Due Process Clause, the standard

analysis under that provision proceeds in two

steps. We first ask whether there is liberty or

property interest of which the person has been

deprived and if so, we ask whether the

procedures followed by the state were

constitutionally sufficient." Kentucky Dept, of

Corrections v. Thompson, 490 U.S. 454, 460

(1989).

In respect to the undisputed material facts in

this case the District Court held that,

"Plaintiffs have a protected liberty interest in

their ability to make a living in their chosen

profession." See Greene v. McElroy, 360 U.S.

474,

492

(1959).

See Appendix D,

Memorandum & Order, Aug 1, 2019, Id. at 12.

The District Court also cited in its August 1,

2019, ruling that,

... "A state denial of this protected liberty

interest without the exercise of adequate

procedural process may give rise to a viable

§ 1983 claim." See; Paper, 750 (1st Cir. 1973).

See; Appendix D, Memorandum & Order, Aug.

1, 2019. Id. at 13.

23

In full retrospect of the court records, the

District Court ruling established that.

..."Lt. Lema was reasonably aware that

stonewalling

the

Plaintiffs

completed

applications by failing to take any action

deprived Plaintiffs of the notice and

opportunity to be heard that due process

demands." See; Eves v. LePage, at 16, (1st Cir.

June 19, 2019) See; Appendix D at 17

District Court records also establish that,

Here plaintiffs sought an adequate [s]tate

sanctioned remedy pursuant to M.G.L. 159A, § 1

requesting a hearing on their pending vehicle license

applications. See Bos. Env't Sanitation Inspectors v.

City of Bos., 749 (1st Cir. 1986).

In denying the plaintiffs' due process, equal

protection violation claims the panel multiplied its

error several times over. In that instance, the First

Circuit failed to recognize the standard for defining

due process violations relevant to the undisputed

material facts in this case.

First Circuit failed to hold with the numerous

Circuit Courts and the U.S. Supreme Court who

have set forth guidance for determining when a

constitutional violation is "obvious." In this instance,

First Circuit sanctioned an (alleged), arbitrary,

disputed City of Boston, Police Department "new

company" license application policy as a form of

legislative statutory law, whereby the plaintiffs

vigorously argued that they were not required to

comply with since it was a disputed matter.

The manifest nature of the First Circuit's

error, coupled with the extraordinary impact it shall

have on procedural due process law proceedings

24

affecting the masses of small business licensing

litigation, both in this case and notably elsewhere,

clearly warrants this Court's review and summary

reversal.

I.

The

First

Circuit's

Cited

Precedents are Not Grounded In

Fact, or Law

Petitioners contend that the precedent cited

by the Circuit Court is not applicable nor germane to

the undisputed material facts of this case. See: Bos.

Env't Sanitation Inspectors Assn’s v. City of Bos., 749

F.2d 12 (1st Cir. 1986).

Petitioners assert they [d]id [n]ot voluntarily

forego a hearing, here Petitioners contend in Count I

& II that no notice nor hearing proceeding was

provided to them by City of Boston, Hackney

Carriage officials.

Here Petitioners' [d]id seek an adequate

[s]tate remedy in the form of M.G.L. 159A, § 1, of the

Commonwealth of Mass., Common Carriers Laws.

See Appendix F, Tyler Aff., Id. at 38, 40.

Lt. Thomas Lema, Inspector of Carriages,

BPD Hackney Carriage Unit has acknowledged

under oath, in his deposition testimony that he did

nothing, nor did he instruct his staff to act on the

Plaintiffs' petition, and that is exactly what they did

for the next (1,660 days, they did nothing. See:

Appendix G. Lema Tr. 98-2 thru 105-3.

Whereby, [w]ithout a final decree by the Police

Commissioner, here the plaintiffs had [n]o other

legal recourse but to seek relief pursuant to M.G.L,

159A. f 1.

In any event, City of Boston officials failed to

act on petitioners' license applications for a period of

25

four years, absent of due process. See Appendix G.

Lema Tr. at 98-2 thru 105-3.

The District Court cited in its Memorandum &

Order; August 1, 2019, that,

... "An action for deprivation of property by

[s]tate action without due process of law must

include a showing that [s]tate law protects an

identified property rights said to have been

violated. See: Caesars Mass. Msmt. Co. v.

Crosby. 778 F.3d 327. 331-32 (1st Cir. 20151.

See: Appendix D. Memorandum & Order. Id.

at 10-11. See M.G.L. 159A. $ 1.

The District Court further cited in its Aug. 1,

2019, ruling that,

... "Plaintiffs do not have a property interest in

their sightseeing automobile license that is

protected by the Fourteenth Amendment."

... "But this does not end the due process

inquiry, Plaintiffs also assert a protected

liberty interest: the right to make a living in

their chosen profession for which their soughtafter license is a prerequisite."

... ("Plaintiffs have sustained injuries and

damages [and] continue to suffer damage

including ... lost economic opportunity").

"Plaintiffs assert that the Defendants' failure

to act on their applications have deprived

them of this liberty interest without due

process by depriving them of both a decision

on their applications and the right to judicial

review of an adverse decision." See Appendix

D. Id. 10 -12.

... "In the case in hand, Plaintiffs have

protected liberty interest in their ability to

26

make a living in their chosen profession." See;

Greene v. McElroy, 360 U.S. 474, 492 (1959).

Appendix D, Id. at 12-13.

The First Circuit has held that applicants for

a license may have a protected interest which cannot

be denied without due process, but only if the

applicants can demonstrate a "legitimate claim of

entitlement" to the license sought. Martinez-Velet v.

Simonet, 919 F.2d 808, 810 (1st Cir. 1990) Id. at 1011.

Sixty-five days after the filing thereof,

plaintiffs entered an appeal under [s]tate law M.G.L.

159A, that protects their liberty rights. See Appx. D,

District Court’s Mem. & Order, Aug 1, 2019, Id. 1112

First Circuit has taken the contentious

position to issue a strikingly conflicting opinion

citing that because the plaintiffs declined City

officials arbitrary request to file nine additional city

sightseeing automobile applications, which may have

injured their ability to oppose the (alleged) "new

company" applications policy.

As a result, they shall somehow, ostensibly

forfeit their guaranteed Fourteenth Amendment

Constitutional right of due process when they

declined the City's questionable proposal. The

Court's legal position on this matter is flawed and

egregiously wrong as a matter of law!

The plaintiffs had the right to dispute a policy

they believed to be arbitrary and unfair. The

plaintiffs' actions were clearly justified and are

protected under their Fourteenth Amendment

Constitutional rights as defined and in accordance

with state law. M.G.L. 159A. ft 1.

27

Whereby, plaintiffs entered a formal appeal to

the City requesting a hearing, pleading that City

officials must first address their initial nine

sightseeing automobile license applications that

were pending, as a matter of state law, pursuant to

M.G.L. 159A, § 1.

Nevertheless, City of Boston officials

remained unwavering refusing to act on plaintiffs’

request for a hearing or their pending license

applications. See: Appendix E. Plaintiffs local Rule

56.1. Statement of Material Facts. Document 118.

filed 01/27/22. Id. at 54-57. See, also: Appendix D,

District Court's Memorandum. & Order. Id. at 54.

See, also: Appendix G. Lema Tr. at 102-103. 104.

106-107. See, also. Appendix F. Tyler Aff.

The leading question here is; What can be

inferred from the fact that, for more than four years,

the Boston Police Commissioner and the Hackney

Carriage Unit invariably refused to act on the

plaintiffs applications? See: Appendix F. Tyler Tr.

See also: Appendix D. Mem. Id. at 64-66. See:

Appendix E. Defendants Statement of Undisputed

Material Facts.

First the Circuit’s initial mistake was failing

to decern that the defendants had failed to meet any

of the essential requirements of Procedural Due

process Law.

This mistake, in turn, somehow or another led

the Court to affirm the district court's conclusion

that plaintiffs were by some means or other

compelled to file additional sightseeing automobile

license applications, even in contrast with the City's

officials outright refusal to act on the plaintiffs

pending nine initial sightseeing vehicle applications,

28

or issue notice and a hearing pursuant to M.G.L

.159A.

B.

The Respondents have cited inaccurate

information, which First Circuit has

misconstrued as Factual in their Ruling

The First Circuit Court of Appeals cited in

their brief opinion entered on June 25, 2024,

"Plaintiffs-Appellants' refusal to complete the forms

and process generally required of entities or

individuals in their position- that is, entities or

individuals seeking license for the first time- was

fatal to their claim that they were constitutionally

entitled to procedures they did not receive,

(explaining that the appellants could not "bootstrap

themselves into the federal court by failing to" access

procedures actually made available).

First Circuit has misapplied the factual

evidence. The Appeals Court cited opinion which

implies that, Plaintiffs were not entitled to the

constitutional due process protections because they

refused to submit the additional disputed

sightseeing vehicle license application forms

baseless.

Petitioners contend First Circuit has

overlooked the compelling fact that the access

procedure they are referring to is a clearly disputed

fact and not a [s]tate sanctioned adequate due

process remedy procedure. See: Appendix E.

Plaintiffs’ Statement of Material Facts. Id. at 69-72.

Petitioners dispute the City’s allegation that

once the moratorium was lifted the Hackney

Carriage Unit required social security numbers of

corporate officers of companies who may apply for

29

vehicle permits. See Appendix E.

Statement of Material Facts. Id. at 70.

Plaintiffs'

Plaintiffs refer to the "Court's" cited precedent

on this matter. Bos. Env't Sanitation Inspectors

Assn’s v. City of Bos., 749 F.2d. 12, 13 (1st Cir.

1986).

Accordingly, the First Circuit's cited

precedent; Bos. Env't Sanitation Inspectors Assn’s v.

City of Bos., (1986) District Court (Garrity)

dismissed appellants' § 1983 claim on grounds that

appellants' [d]id [n]ot avail themselves or

satisfactorily explain their failure to avail

themselves, of an adequate Commonwealth of

Massachusetts [s]tate remedy.

Plaintiffs agree with District Court Garrity's

ruling, that appellants in that case, cannot complain

of a violation of procedural due process when the

appellants have made no attempt to avail

themselves to any existing [s]tate remedy procedure.

See Bos. Env't Sanitation Inspectors Assn’s v. City of

Bos.. 749 F.2dl2. 13 (1st Cir. 1986).

The Court further cited; it is well established

that a "claim of lack of available due process fail[s]

on the merits [w]here there [is] a process available

under [s]tate law. Limerick v. Greenwald, 749 F,2d

97. 99 (1st Cir. 1984).

Petitioners have entered compelling, well

documented evidence which confirms that they [d]id

avail themselves to a constitutionally adequate

[s]tate remedy procedure. Whereby, on June 17,

2015, 65 days after the filing thereof, plaintiffs

entered an appeal petition unto the Boston Police

Commissioner, Inspector of Carriages, Hackney

Carriage Unit requesting an appeal hearing

30

pursuant to M.G.L. 159A, § 1. See Appendix F, Tyler

Aff. Id. at 38, 40.

The questions presented here are whether the

conduct complained of was committed by a person

acting under color of [s]tate law and whether this

conduct deprived a person of rights, privileges or

immunities secured by laws of the Constitution of

the United States.

In any § 1983 action the initial inquiry must

focus on: whether the essential elements to § 1983

are present. Here, the essential elements are well

established by petitioners in District Court records.

See: Appendix E. Plaintiffs Statement on Undisputed

Material Facts. Id. at 62-68. See also: Appendix F.

Tyler Aff.

C.

Memorandum of Law in Support of Writ

of Certiorari to Vacate Void Judgment

for lack of Due Process

I.

Petitioners respectfully move this Court

to vacate the judgment entered against said

petitioners by District Court on May 31, 2022, on the

grounds that it is void under law due to a violation of

said petitioner's constitutional right to due process.

A void judgment is a legal nullity, and this Court has

both power and an obligation to set it aside under

the Federal Law of Void Judgments and Decisions

Rule 60(b)(4) of the Federal Rules of Civil Procedure.

II.

Legal Standard

A judgment is void when it is entered in

violation of due process. As the U.S. Supreme Court

has explained, "[a] judgment is void... if the court

that rendered it lacked jurisdiction of the subject

matter, or of the parties, or it acted in a manner

inconsistent with due process of law." United

31

Student Aid Funds. Inc. v. Espinosa. 559 U.S. 260.

271 (2010).

Due Process requires notice reasonably calculated to

apprise a party of the proceeding and an opportunity

to be heard. Mullane v. Central Hanover Bank &

Trust Co.. 339 U.S. 306. 314 (1950).

III.

The

Judgment

Violates

Due

Process Due to Lack of Proper

Notice

Legal Requirement of Notice:

Due process mandates that a party must be

given notice of the relevant proceedings. Notice must

be "reasonably calculated, under all circumstances,

to apprise interested parties of the pendency of the

action and afford them an opportunity to present

their objections." Mullane. 339 U.S. at 314.

TV.

Petitioners Were

Proper Notice

Not

Provided

In this case, Petitioners were not properly

served with notice of the proceeding. The court

records establish that Respondents failed to

administer notice nor hearing prior to rendering

their final decision.

As a result, Petitioners were deprived of an

opportunity to appear, defend, or otherwise

participate in the case, rendering the judgment void.

Courts have consistently held that judgments

entered without proper notice are invalid and must

be vacated. See Peralta v. Heishts Medical Center.

Inc.. 485 U.S. 80. 84 (19881.

32

V.

The

Judgment

Violates

Due

Process

Due

to

Lack

of

Opportunity to be Heard

Legal Requirement of Opportunity to Be

Heard:

Due process guarantees every party the

opportunity to present their case and respond to

claims. This fundamental right is violated when a

party is prevented from meaningfully participating

in the proceedings. Matthews v. Eldridse. 424 U.S.

319. 333 (1976).

VI.

Petitioners

were

Denied

Opportunity To Be Heard

the

The lack of notice described above resulted in

the said petitioners being deprived of a meaningful

opportunity to contest the adverse final decision

rendered to them. Without notice, petitioners could

not:

•

File responsive pleadings

•

Present evidence in defense

•

Challenge the jurisdiction or merits of

the respondent's claims

This deprivation of the right to be heard

violates due process and voids the judgment entered

against petitioners entered on May 31, 2022.

VII. Void Judgments Must Be Vacated

as a matter of Law

A void judgment has no legal effect and must

be vacated upon proper motion. Courts have no

discretion to enforce void judgments. See Kalb v.

Feuerstein. 308 U.S. 433. 438 (1940).

33

D.

The Law of Void Judgments and

Decisions, Supreme Court Decisions on

Void Orders

This petition arises from the plaintiffs' effort

to bring a second motion, a petition for panel

rehearing under Fed. R. App. P. Rule 40(a) to

remedy the District Court's misapplication of

procedural due process clause of the Fourteenth

Amendment, of the United States Constitution.

As relevant here, Petitioners contended in

their second §1983 motion, a request for panel

rehearing should not have been denied, by virtue of

the First Circuit's unsound analysis of the due

process clause pursuant the Law of Void Judgments

and Decisions, as deemed relevant to the Civil

Action. No. l:18-v-10677-IT. Judgment entered on

May 31. 2022.

As a result, through no fault of petitioner's,

there has not been an unabridged judicial review of

petitioner's contention that the United States

District Court, District of Massachusetts failed to

adequately address the procedural due process

violations. There is a reasonable probability that

petitioners would prevail in a through panel

rehearing proceeding.

The far-reaching consequence of decisions like

the District Court's misuse, or at least conflicting

application of the due process clause could result in

the devastating erosion of the United States citizens

constitutional due process rights in Circuit Courts

throughout this nation.

A judgment is a "void judgment" if court that

rendered judgment lacked jurisdiction of the subject

matter, or of the parties, or acted in a manner

34

inconsistent with due process. Fed. Rules Civ. Proc..

Rule 60(b)(4). 28 U.S.C.A.. U.S.C.A. Const. Amend.

5. Kiush v. U.S.. 620 F.Supp. 892 D.S.C. 1985).

In any event, a judgment may not be rendered

in violation of United States constitutional

protections. The validity of the judgment issued by

the United States District Court, District of

Massachusetts, Civil Action No. l:18-cv-10677-IT,

entered May 31, 2022, may readily be effected by

failure of Respondents to give petitioners their

constitutionally required notice and an opportunity

to be heard prior to Boston City officials issuing its

final decision on Plaintiffs' sightseeing vehicle

license applications in Oct. 2019, thus rendering said

final decision "void" as a matter of law. See Earle v.

McVeigh. 91 U.S. 503. 23 L. Ed. 398.

The limitations inherent in the requirements

of due process and equal protection of the law

extends to judicial as well as political branches of

government, so that a judgment may not be rendered

in violation of those constitutional limitations and

guarantees, See Hanson v. Denckla. 357 U.S. 235. 2

L. Ed. 2d 1283. 78 S. Ct. 1228.

Even more significant, a void judgment is not

entitled to the respect accorded a valid adjudication,

but may be entirely disregarded, or declared

inoperative by any tribunal in which effect is sought

to be given to it... It is attended by none of the

consequences of a valid adjudication...

It has no legal or binding force or efficacy for

any purpose or at any place. ... It is not entitled to

enforcement ... All proceedings found on the void

judgment are themselves regarded as invalid. 30A

AM Jur Judgments 44. 45.

35

It is a fundamental doctrine of law that a

party to be affected by a personal judgment must

have some form of due process or his day in court,

and an opportunity to be heard. Renaud v. Abbott.

116 U.S. 227. 29 L. Ed. 629. 6 S. Ct. 1194.

Every person is entitled to an opportunity to

be heard in a court of law upon every question

involving his rights or interest, /bjefore he is affected

by [a]ny judicial decision on the question presented.

Earle v. McVeieh. 91 U.S. 503. 23 L. Ed. 398 (18751.

I.

The First Circuit’s Analysis of the

Undisputed Facts is Flawed

The Plaintiffs' filed a civil action in the United

States District Court for the Eastern District of

Massachusetts pursuant to 42 U.S.C. § 1983: in

order to remedy and seek relief for the deprivation of

the plaintiffs’ guaranteed rights under the

Fourteenth Amendment of the United States

Constitution.

The plaintiffs' civil action lawsuit filed on

April 6, 2018 [was not] an appeal of an unfavorable

final decision of their pending license applications

following notice and a hearing, whereas, at the time

of the plaintiffs filing, defendants had not acted in

any manner, on the plaintiffs’ applications for three

years prior to filing their civil action complaint.

Plaintiffs civil action lawsuit [was not] an

appeal of the City's contentious "new" and "existing"

company application policy (a disputed issue which

the court primarily based its erroneous summary

judgment ruling upon).

Here, the Court's reasoning is completely

unfounded, whereas it disturbingly rests on a clearly

disputed matter, which is not consistent with the

36

doctrines of Fed.R.Civ.P. Rule 56(a)(c) and 60(b)(4)

procedural due process law,

•

Notably; "Notice and a hearing, before

an impartial tribunal [prior] to rendering a final

decision." See: Mullane v. Cent. Hanover Bank &

Trust Co.. 339 U.S. 306. 313 (19501 See also:

Matthews v. Eldridse. 424 U.S. 319. 333 (19761.

Fuentes v. Shevin. U.S. 67. 80-81 (1972).

II.

The First Circuit Failed to

Recognize

the

Due

Process

Violations

Essential

to

the

Petitioners Complaint

The key question is whether the First Circuit

Court has taken the unprecedented opinion that,

because petitioners refused to file nine additional

vehicle license applications, at the arbitrary request

of Hackney officials, respondents now were not

required to provide them with their constitutional

due process rights, of notice and hearing on their

initial license applications prior to rendering their

final decision on the plaintiffs' initial sightseeing

vehicle license applications; and moreover did said

respondents violate due process law by their

obstinance?

This essential point of law was not clarified in

the District Court's cited opinion. The First Circuit

Appeals Court has also failed to define this

significant legal point as well. The District Court

had completely circumvented this point of law in

their ruling. Whereas, the First Circuit has failed to

address the issue of a due process violation in any

significant manner whatsoever.

Plaintiffs filed a civil action for deprivation of

their rights under the Fourteenth Amendment U.S.

37

Constitution. The deprivation of these guaranteed

rights is the foundation of their legal argument.

Plaintiffs' Counsel raised this legal reasoning

numerous times throughout the Summary Judgment

proceedings that the plaintiffs' have a protected

guaranteed constitutional "a right to be heard". See:

Appendix G. Lt. Lema Tr. at 54. 5-56.

III.

The First Circuit Panel Manifestly

Erred by Denying the Petitioner's

Request for a Panel Rehearing

The panel's most glaring error lies in its

conclusion that a constitutional violation so clearly

established does not apply. Plaintiffs filed their civil

action in the United States District Court for the

Eastern District of Massachusetts pursuant to; 42

U.S.C. $ 1983: to remedy and seek relief for the

deprivation of the plaintiffs' guaranteed rights under

the Fourteenth Amendment of the United States

Constitution.

As demonstrated above, it is hard to fathom

how the First Circuit majority concluded there was

[no] constitutional violation at all, in this case,

considering the District Court's cited precedents and

opinion in its Memorandum & Order ruling, entered

on August 1, 2019.

This apparent erosion of due process shall

have a significate, devastating and unfavorable

impact on the small business community throughout

this country. The number of small businesses in the

U.S. reached 34.8 million in 2024, marking a 4.5%

annual increase.

In the United States small businesses create

1.5 million jobs annually and most small businesses

require and uniformly seek various types of licenses

38

or permits to operate, similar to the vehicle permits

sought in this instance by the petitioners.

Ultimately, small businesses are an essential key

element in sustaining positive economic growth

throughout this nation.

City of Boston officials were not free to require

one set of standards from some companies and

another from others, or to timely process some

applications, but ignore others, or grant licenses to

some companies but not to others, either "at [its]

mere will or pleasure" or based on discriminatory

preference, political, racial, gender or otherwise.

If various policymakers across this country

were to adopt such unjust, and unlawful practices

many pertinent business licenses and permits

required for their business operations may likely be

in limbo, as well as the constitutional rights of many

of our nation's citizens.

If so, rulings like the opinion rendered in this

case may unduly inhibit small business' ability to

operate proficiently. Starting a small business [is]

difficult enough without placing additional barriers

for business entrepreneurs to navigate.

Leaving

the

District

Court's

ruling

undisturbed will likely usher in the unwarranted

consequence of granting certain government officials

the ability to impede selective petitioner's permit

applications. Generally, they may likely infringe

upon their protected constitutional right of due

process if or when adverse politics were to prevail.

To avoid erroneous judicial violations of

litigants Constitutional Rights and Statutory Laws,

this Court should grant certiorari to consider

whether, under the Fourteenth Amendment, Due

39

Process Clause, it is fair to treat violations of said

doctrine as "irrelevant" claims, and not as they truly

are, despotic results of government misconduct.

The First Circuit failed to grapple with the

guidance this Court has set forth for determining

when a constitutional violation is "obvious." And it

substituted an alleged, arbitrary city police

department policy, for a constitutional standard as if

that policy were constitutional law.

The manifest nature of the error above,

coupled with its extraordinary impact on procedural

due process law (both in this case and elsewhere)

clearly warrants summary reversal.

Due Process Law is one of the most deeply

rooted principals in American jurisprudence. Due

Process Law is a constitutional guarantee that the

actions of the government will not impact on the

citizens in an abusive manner. The assurance that all

levels of American government must operate within

the law and provide fair procedures. Matthews v.

Eldridge, 42 U.S. 391, 333 (1976).

This case presents this Court with the perfect

opportunity to set forth a precedent standard in the

face of judicial actions that violate the Fourteenth

Amendment Due process rights of litigants. As is

critical of any violation of the United States

Constitution, absent intervention by this Court, at

this moment in our nation's history may be ominous

to the judicial stability of the doctrine of Due Process

Law.

A void judgment may be challenged at any

time, as it is considered a legal nullity. Essentially, it

can be attached by any affected party regardless of

the normal appeal period.

40

CONCLUSION

For the foregoing reasons, petitioners

respectfully request this Court to grant their petition

for writ of certiorari, find the judgment entered

against petitioners on May 31, 2022, deemed void

due to a violation of due process, vacate the District

Court's judgment pursuant to Fed. R. Civ. P., Rule

60(b)(4), and Fed. R. Civ. P., Rule 56(a)(c).

Petitioners move the Court to remand this matter to

trial and grant any other relief this Court may deem

just and proper.

Respectfully Submitted,

by Plaintiffs-Petitioners

Is/ Erroll Tyler

/s/ Aliena Tabb-Harper

Erroll Tyler

Aliena Tabb-Harper

910 Main Street, Suite 714

Melrose, MA 02176

(781) 662-2680

Dated: March 29, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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