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.