Petition for Writ of Certiorari — James J. Decoulos, Petitioner v. Board of Registration of Hazardous Waste Site Cleanup Professionals, et al.

No. 24-1312.

FILED

JUN 1 3 2025

3fa tFje

Supreme Court of tlje Wniteti States

OFFICE

OFCOURT

THE CLERK

SUPREME

US*

JAMES J. DECOULOS,

Petitioner,

v.

BOARD OF REGISTRATION OF HAZARDOUS WASTE SITE

CLEANUP PROFESSIONALS AND THE MASSACHUSETTS

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Judicial Court of Massachusetts

PETITION FOR A WRIT OF CERTIORARI

James J. Decoulos

Petitioner Pro Se

38 Bow Road

Belmont, MA 02478

(617) 489-7795

jamesj@decoulos.com

June 13, 2025

SUPREME COURT PRESS

(888) 958-5705

Boston, Massachusetts

Received

JUN 2 3 2025

i

QUESTION PRESENTED

Whether a state court violates the Due Process

Clause of the Fourteenth Amendment when it defers

to a state agency’s interpretation of statutes and

regulations in a professional disciplinary proceeding,

contrary to this Court’s ruling in Loper Bright

Enterprises v. Raimondo, 603 U.S. 369 (2024), which

requires courts to exercise independent judgment

when interpreting the law.

ii

LIST OF PROCEEDINGS

Supreme Judicial Court for the Commonwealth of

Massachusetts

No. FAR-30133

James J. Decoulos v. Board of Registration of

Hazardous Waste Site Cleanup Professionals

Final Order: January 16, 2025

Commonwealth of Massachusetts Appeals Court

No. 2023-P-0663

James J. Decoulos v. Board of Registration of

Hazardous Waste Site Cleanup Professionals

Final Order: November 13, 2024

Commonwealth of Massachusetts County of

Middlesex Superior Court

No. 2019-00663

James J. Decoulos v. James N. Smith, et al., as they

are members of the Board of Registration of

Hazardous Waste Site Cleanup Professionals and

Martin Suuberg, as he is the Commissioner of the

Massachusetts Department of Environmental

Protection

Final Order: April 25, 2023

Ut

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED........................................... i

LIST OF PROCEEDINGS........................................... ii

TABLE OF AUTHORITIES....................................... vi

OPINIONS BELOW..................................................... 1

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

1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED................................... 1

STATEMENT OF THE CASE..................................... 2

A. Timeline of Extraordinary Delay..................... 3

B. Substantive Background................................... 4

C. Procedural Deficiencies..................................... 5

D. Judicial Review.................................................. 6

REASONS FOR GRANTING THE PETITION........ 7

I.

This Case Presents an Ideal Vehicle to

Clarify that Loper Bright’s Rejection

of Judicial Deference Applies to State

Court Review of State Agency Action........7

A. Loper Bright Establishes That Courts

Must Exercise Independent Judgment

When Interpreting the Law........................ 7

B. State Courts Face an Unresolved

Question of Whether Loper Bright

Applies to State Court Review of State

Agency Action...............................................8

C. The Fourteenth Amendment Requires

Independent Judicial Review of Agency

Legal Interpretations................................ 13

IV

TABLE OF CONTENTS - Continued

Page

II. The Board’s Disciplinary Proceedings

Violated Fundamental Due Process

Guarantees That This Court Should

Clarify Apply to State Professional

Licensing Actions................................... 15

A. The Extraordinary Thirteen-Year Delay

Itself Constitutes a Due Process Violation

15

B. Professional Licensure Is a Protected

Liberty and Property Interest That

Triggers Robust Due Process Protections

16

C. The Denial of Subpoena Power, CrossExamination and Evidence Violated Core

Due Process Rights................................... 16

D. The Biased Selection of the Hearing

Officer Violated Due Process............. 18

III. This

Case

Involves

Exceptional

Circumstances Warranting This Court’s

Review........................................................ 19

A. The Extraordinary Duration and

Unfairness of the Proceedings Reflect

Systemic Due Process Failures................. 19

B. This

Case

Exemplifies

How

Administrative Deference Enables Due

Process Violations...................................... 19

C. The Case Has Significant Impheations for

Millions of Licensed Professionals........... 20

CONCLUSION............................................................ 21

V

TABLE OF CONTENTS - Continued

Page

APPENDIX TABLE OF CONTENTS

Opinions and Orders

Order Denying Appellate Review, Supreme

Judicial Court for the Commonwealth of

Massachusetts (January 16, 2025)...............la

Memorandum and Order Pursuant to Rule 23.0,

Commonwealth of Massachusetts Appeals

Court (November 13, 2024).......................... 2a

Memorandum of Decision and Order on Cross

Motions for Judgment on the Pleadings,

Commonwealth of Massachusetts County of

Middlesex Superior Court (April 25, 2023).... 16a

Agency Final Order, Massachusetts Executive Office

of Environmental Affairs Board of Registration

of Hazardous Waste Site Cleanup Professionals

(January 16, 2019)....................................... 34a

Denial of Preliminary Injunction

Court (January 25, 2011).......

53a

Statutory Provisions

Statutory Provisions Involved................................ 55a

vi

TABLE OF AUTHORITIES

Page

CASES

Barry v. Barchi,

443 U.S. 55 (1979)..................................... 16

Bell v. Burson,

402 U.S. 535 (1971)................................... 16

Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984)

7, 8, 10, 12

Cleveland Board of Education v. Loudermill,

470 U.S. 532 (1985)..................................... 16

Communist Party of the United States v.

Subversive Activities Control Board,

254 F.2d 314 (D.C. Cir. 1958)............................ 18

DTE Energy Inc. v. Mich. Occupational Safety

& Health Admin., 367604

(Mich. App. Nov 18, 2024).................................... 9

Gleason v. New Jersey Dep’t of Educ.,

756 A.2d 1047

(N.J. Super. Ct. App. Div. 2000).......................... 8

Greene v. McElroy,

360 U.S. 474 (1959).....................................17

In re 30 V.S.A. Sec. 30 & 209,

327 A.3d 789 (Vt. 2024)............................. 10

In re Murchison,

349 U.S. 133 (1955)................................... 18

Indiana Office of Utility Consumer Couns. v.

Duke Energy Indiana,

248 N.E.3d 1205 (Ind. 2024).............................. 10

vii

TABLE OF AUTHORITIES - Continued

Page

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024)

i, 7-14, 20, 21

Lucia v. Securities and Exchange Commission,

585 U.S. 237 (2018).................................... 18

MCI Telecommunications Corp. v. F.C.C.,

627 F.2d 322 (D.C. Cir. 1980)...................... 15, 19

Midwest Gas Users Ass’n v. FERC,

833 F.2d 341 (D.C. Cir. 1987)...................... 15, 19

Munch v. Munchkin Child Dev. Center,

556 N.W.2d 569 (Mich. Ct. App. 1996)................8

Ohio Valley Water Co. v. Ben Avon Borough,

253 U.S. 287 (1920).............................................14

Public Water Supply Co. v. DiPasquale,

735 A.2d 378 (Del. 1999)................................... 9

Tumey v. Ohio,

273 U.S. 510 (1927)........................................... 14

TWISM Enterprises, L.L.C, v. State Board of

Registration for Professional Engineers &

Surveyors, 172 Ohio St. 3d 225

(Ohio 2022)......................................................... 9

Withrow v. Larkin,

421 U.S. 35 (1975)............................................. 18

Workers’ Compensation Rating & Inspection

Bureau v. Commissioner of Ins.,

391 Mass. 238 (1984).......................................... 15

CONSTITUTIONAL PROVISIONS

U.S. Const, amend. XIV.......................................... i, 14

viii

TABLE OF AUTHORITIES - Continued

Page

STATUTES

28 U.S.C. § 1257(a)....................................................... 1

Mass. Gen. Laws ch. 21A, § 16.................................... 1

Mass. Gen. Laws ch. 30A, § 11(4)........................ 2, 17

Mass. Gen. Laws ch. 30A, § 12(3).................... 2, 5, 17

OTHER AUTHORITIES

Martha Kinsella et al.,

Judicial Deference to Agency Expertise in

the States, STATE COURT REPORT,

October 26, 2023....................................................9

Roscoe Pound,

The Challenge of the Administrative

Process, 30 A.B.A. J. 121 (1944)......................... 18

1

OPINIONS BELOW

The decision of the Massachusetts Appeals Court,

dated November 13, 2024, is unpublished. App.2a. The

denial of further appellate review by the Massachusetts

Supreme Judicial Court was issued on January 16,

2025, and is unpublished. App.la.

JURISDICTION

The Supreme Judicial Court of Massachusetts

denied further appellate review on January 16, 2025.

App.la. On April 10, 2025, Justice Jackson granted

Petitioner a sixty-day extension of time to file a

petition for a writ of certiorari, extending the filing

deadline to June 15, 2025. (No. 24A967). This Court

has jurisdiction under 28 U.S.C. § 1257(a).

—-----------

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const, amend. XIV, § 1:

No State shall. . . deprive any person of life,

liberty, or property, without due process of law.

Mass. Gen. Laws ch. 21 A, § 16 (establishing the

Board of Registration of Hazardous Waste Site Cleanup

Professionals.)

2

Mass. Gen. Laws ch. 30A, § 11(4) (establishing the

right of parties in adjudicatory proceedings to obtain

evidence held by agencies.)

Mass. Gen. Laws ch. 30A, § 12(3) (establishing the

right of parties in adjudicatory proceedings to the

issuance of subpoenas for witnesses.)

®------STATEMENT OF THE CASE

Petitioner James J. Decoulos has been licensed as

a Massachusetts Hazardous Waste Site Cleanup

Professional (commonly referred to as a Licensed Site

Professional or “LSP”) since 1995. He has an extensive,

unblemished career serving as a civil professional

engineer since 1990. His expertise includes permitting

real estate development projects, designing stormwater

management systems, wetlands and waterways permit­

ting, and underground storage tank (“UST”) design

and compliance. Petitioner has served as a technical

consultant for the U.S. Environmental Protection

Agency on UST matters, represented the New York

State Department of Environmental Conservation and

the United States Postal Service, and managed the

Massachusetts Bay Transportation Authority’s program

for assessing and managing 158 USTs at 30 different

facilities.

This case arises from disciplinary proceedings

that began in December 2005 when a former client filed

a complaint with the Massachusetts Board of Regis­

tration of Hazardous Waste Site Cleanup Professionals

(the “Board”). The complaint was filed after Petitioner

notified the client that he would seek relief in Plymouth

3

Superior Court for breach of contract and unjust

enrichment because the client owed Petitioner and his

contractor $79,110.38 in fees.

A.

Timeline of Extraordinary Delay

The timeline of the case demonstrates extra­

ordinary delay at every stage:

• December 13, 2005

A former client files a complaint with the Board

seeking disciplinary action against Petitioner.

• January 8, 2010

More than four years after the complaint, the

Board issues an order to show cause initiating

formal disciplinary proceedings.

• January 26 - February 10, 2011:

The adjudicatory hearing is conducted.

• September 7, 2012:

The Presiding Officer issues a Recommended

Decision.

• January 16, 2019:

Over thirteen years after the initial complaint,

the Board issues its Final Order suspending

Petitioner’s license for one year.

• April 26, 2023:

The Massachusetts Superior Court affirms the

Board’s decision.

• November 13, 2024:

The Massachusetts Appeals Court affirms the

Board’s decision.

• January 16, 2025:

The Massachusetts Supreme Judicial Court

denies further appellate review.

4

The disciplinary process, from initial complaint

to final agency action, spanned over thirteen years

and one month—an extraordinary delay not contem­

plated by any statute or regulation.

B.

Substantive Background

The disciplinary proceedings concerned Petitioner’s

work at two sites: a retail gas station in Carver, Mass­

achusetts and another in Randolph, Massachusetts.

The work in question was performed between 2002

and 2005, meaning that a final agency decision was

rendered fourteen years after the professional work

had been completed.

The central technical issue in the case involved

Light Non-Aqueous Phase Liquids (“LNAPL”)— petro­

leum product that leaks into the ground from a failed

UST system and pools underground. During the 20022005 period when Petitioner was working on these

sites, the science related to LNAPL assessment and

remediation was in its infancy. As John Fitzgerald,

one of the leaders of the Massachusetts Department

of Environmental Protection (the “Department”) stated,

“if one looks carefully in the MCP [Massachusetts

Contingency Plan], NAPL is a bit of sticky wicket.” At

the time, LNAPL was not defined by the Department,

and it offered no guidance or policy on how LNAPL

should be recovered.

Petitioner proposed excavating and disposing of

LNAPL-contaminated soil and passively collecting

accumulated oil in the subsurface. The Department

rejected this approach, demanding expensive and less

effective active LNAPL recovery and groundwater treat-

5

ment.l Over time, however, the science evolved, and

by February 2016, the Department issued a policy

entitled “Light Nonaqueous Phase Liquids and the MCP:

Guidance for Site Assessment and Closure,” which

aligned with the approach Petitioner had originally

proposed.

C.

Procedural Deficiencies

Throughout the administrative adjudication, Peti­

tioner was systematically denied basic procedural

protections:

1. Selection of the Hearing Officer: Robert

Luhrs, a Board member who later appeared as a

witness against Petitioner, participated in selecting

Timothy M. Jones as the Presiding Officer for the

case, creating structural bias.

2. DENIAL OF WITNESSES: Despite the clear mandate

of G.L. c. 30A § 12(3) that “any party to an adjudicatory

proceeding shall be entitled as of right to the issue of

subpoenas in the name of the agency conducting the

proceeding,” Petitioner was denied the right to sub­

poena crucial Department witnesses, including:

• Jonathan Hobill, the ultimate decision-maker for

Department approvals related to the case;

• Frederick Civian, the Commonwealth’s stormwater

coordinator with expertise in both stormwater

and hazardous waste management;

1 Based on the ineffective demands of the Department, more

than 1.1 million dollars of public funds have been expended and

cleanup has not been completed. Petitioner’s estimated cost of

reaching a final cleanup was less than ten percent of this amount

and would have been completed within a few years.

6

• Thomas Potter, who had conducted field audits;

and

• Millie Garcia-Serrano, sectional chief of the

Department’s regional office.

3. Denial of Evidence: Petitioner was denied

access to email communications between Department

employees that were crucial to his defense. When he

sought these communications through discovery, they

were withheld and sealed by the Presiding Officer.

Only years later, on March 5, 2021, did the Superior

Court order that these communications be unsealed

and made part of the record.

4. Failure to Join the Department: Despite the

central role of Department decisions and the control

of evidence, the Presiding Officer denied Petitioner’s

motion to join the Department as a necessary and

indispensable party.

The severity of these procedural deficiencies

prompted Massachusetts Superior Court Justice

Thomas R. Murtagh to note, when denying a prelim­

inary injunction in a related matter, that he found it

“troublesome. . . that DEP witnesses may be

unavailable to plaintiff to defend against positions

supported by other DEP employees.” See App.54a.

D. Judicial Review

Petitioner sought judicial review in the Mass­

achusetts Superior Court, which affirmed the Board’s

decision on April 26, 2023. The Massachusetts Appeals

Court affirmed, and the Supreme Judicial Court of

Massachusetts denied further appellate review on

January 16, 2025.

7

Throughout the judicial review process, the

Massachusetts courts explicitly deferred to the Board’s

interpretations of both the LSP statute and its

implementing regulations, despite the intervening

decision in Loper Bright Enterprises v. Raimondo, 603

U.S. 369 (2024), which rejected such deference. On

July 22, 2024, Petitioner notified the Appeals Court of

the pertinence of Loper Bright.

----------- &-----------

REASONS FOR GRANTING THE PETITION

I.

This Case Presents an Ideal Vehicle to

Clarify that Loper Bright’s Rejection of

Judicial Deference Applies to State Court

Review of State Agency Action

A. Loper Bright Establishes That Courts

Must Exercise Independent Judgment

When Interpreting the Law

In Loper Bright Enterprises v. Raimondo, 603 U.S.

369 (2024), this Court rejected the judicial deference

framework established in Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984), holding that courts must exercise their inde­

pendent judgment when interpreting statutes and

regulations in federal administrative law cases. The

Court recognized that the judicial duty to interpret the

law extends to the administrative context and cannot

be abdicated through deference. 603 U.S. at 388-90.

As Justice Gorsuch emphasized in his concurrence,

deference regimes undermine due process by effectively

allowing agencies to “judge the scope of their own

8

lawful powers.” Id. at 399 (Gorsuch, J., concurring).

This concern is equally applicable—if not more acute—in

the context of state administrative proceedings affecting

constitutionally protected interests like professional

licensure.

B. State Courts Face an Unresolved Question

of Whether Loper Bright Applies to State

Court Review of State Agency Action

The question of whether Loper Bright’s rejection

of administrative deference applies to state court

review of state agency action presents an important

federal question that has not yet been resolved. State

courts across the country have long applied various

deference doctrines to state agency interpretations of

law, similar to the now-overruled Chevron framework.

See, e.g., Munch v. Munchkin Child Dev. Center, 556

N.W.2d 569, 572 (Mich. Ct. App. 1996) (applying

deference to agency interpretation); Gleason v. New

Jersey Dep’t of Educ., 756 A.2d 1047, 1049-50 (N.J.

Super. Ct. App. Div. 2000) (same).

i. State Court Responses to Loper

Bright Demonstrate the Need for

This Court’s Guidance

Since Loper Bright was decided, state courts have

responded in markedly different ways, creating precisely

the kind of inconsistency that warrants this Court’s

intervention. Some states had already rejected Chevron­

like deference before Loper Bright, while others continue

to apply deferential standards despite the federal

precedent.

9

ii. States That Rejected Deference

Before Loper Bright

Since 1999, the Kansas, Utah, Mississippi, Ark­

ansas, Michigan, Ohio and Delaware Supreme Courts

have each taken a sledgehammer to their state defer­

ential standards.2 See Public Water Supply Co. v.

DiPasquale, 735 A.2d 378 (Del. 1999); and, TWISM

Enterprises, L.L. C. v. State Board of Registration for

Professional Engineers & Surveyors, 172 Ohio St. 3d

225 (Ohio 2022).

iii. State Court Decisions Citing Loper

Bright

State courts have now begun addressing Loper

Bright’s relevance to state administrative law, with

dramatically different conclusions:

Michigan: The Michigan Court of Appeals explicitly

rejected the relevance of Loper Bright to state law dis­

putes, stating: “Loper Bright is a federal case dealing

with federal law and has no particular relevance to this

state-law dispute. Indeed, Michigan has long understood

that separation-of-powers concerns imply that courts

do not defer to an administrative agency’s interpretation

of law.” DTE Energy Inc. v. Mich. Occupational Safety

& Health Admin., 367604 (Mich. App. Nov 18, 2024)

(emphasis added).

GEORGIA: In contrast, the Georgia Court of Appeals

has embraced Loper Bright as directly applicable to

state law. Presiding Judge Dillard wrote: “ .. . I fail to

2 Judicial Deference to Agency Expertise in the States, by Martha

Kinsella and Benjamin Lerude, STATE COURT REPORT, October

26, 2023

10

see how the nature and structure of judicial power and

the separation of powers in Georgia differs in any

material respect from that exercised by our federal

counterparts. I say this to emphasize the nationwide,

systemic importance of the Supreme Court of the

United States overruling Chevron this past term in

Loper Bright Enterprises." Board of Commissioners of

Brantley County, v. Brantley County Development

Partners, 905 S.E.2d 685, 704 (Ga. App. 2024).

VERMONT: The Vermont Supreme Court took a

middle approach, recognizing the change brought by

Loper Bright but declining to decide its impact on

Vermont jurisprudence by distinguishing the holding

from the matter before it. In re 30 V.S.A. Sec. 30 &

209, 327 A.3d 789, footnote 6 (Vt. 2024).

INDIANA: The Indiana Supreme Court adopted a

cautious approach, recognizing its precedential reliance

on Chevron-like deference while noting that

administrative agencies should stay within their “legal

guardrails” and apply existing precedent until changed

by legislative enactment. Indiana Office of Utility

Consumer Couns. v. Duke Energy Indiana, 248 N.E.3d

1205, 1219 (Ind. 2024). Notably, Indiana’s legislature

changed its deference to administrative agencies for

any decisions made after June 30, 2024, which aligns

with Loper Bright principles. Indiana House Enrolled

Act 1003.

iv. The State Legislative Movement

Demonstrates

Loper

Bright’s

Constitutional Foundations

The state-level response to Loper Bright has not

been limited to judicial decisions. A coordinated legis­

lative movement both preceded and followed this Court’s

11

decision, demonstrating that the constitutional prin­

ciples underlying Loper Bright extend beyond federal

administrative law.

Before Loper Bright (2018-2024), several states

proactively eliminated judicial deference:

1.

Arizona (2018)

First state to pass anti-Chevron legislation

via H.B. 2238

2.

Tennessee (2022)

Enacted Senate Bill 2285, requiring courts to

resolve ambiguities against government

agencies

3.

Idaho (March 2024)

Governor Brad Little signed House Bill 626

4.

Nebraska (March 2024)

Governor Jim Pillen signed LB 43

5.

Indiana (March 2024)

Governor Eric Holcomb signed House Bill 1003

6.

Wisconsin

Passed legislative reforms ending judicial

deference

7.

Utah (March 2024)

Governor Spencer Cox signed H.B. 470

requiring review of federal regulations

previously subject to Chevron

According to the Pacific Legal Foundation’s State

Deference Map, the following additional states have

been classified as “reformed,” with no judicial deference:

12

Arkansas, Delaware, Florida, Kansas, Mississippi,

Ohio, Tennessee and Wisconsin. 3

Other states, such as Colorado, Kentucky, and

Missouri, recognize Loper Bright as additional legal

support for their existing state jurisprudence because

they had not adopted Chevron-like deference to admin­

istrative agencies.

v. The Need for Uniform Constitutional

Standards

Despite this legislative trend, approximately 34

states still maintain some form of judicial deference to

administrative agencies, including Massachusetts.

The state-level anti-Chevron movement represents a

significant and coordinated effort that both preceded

and now follows Loper Bright. With 13 states having

already eliminated judicial deference and model legis­

lation readily available, this trend is likely to continue

expanding to additional states in 2025 and beyond.

However, six states, including the Commonwealth

of Massachusetts, appear stuck in deferring to admin­

istrative agencies without any guardrails.4

This creates precisely the kind of constitutional

inconsistency that demands this Court’s attention, as

citizens in different states receive fundamentally differ­

ent levels of due process protection based solely on

their geographic location.

3 “Do Your Courts Cheat for State Agencies”, Pacific Legal

Foundation, www.pacificlegal.org/state-deference-map

±Ibid.

13

Because Loper Bright was decided so recently,

state courts have not yet had sufficient opportunity to

address its implications for state deference doctrines.

This Court should grant review to provide needed

guidance on this significant question. State courts will

inevitably confront this issue in the coming months

and years, and the Court’s clarification now would

prevent a patchwork of inconsistent approaches across

the states.

In this case, the Massachusetts courts explicitly

deferred to the Board’s interpretations of both the LSP

statute and its implementing regulations, despite the

intervening decision in Loper Bright. The Superior

Court’s decision stated: “The Board’s interpretation of

its own regulations is entitled to substantial deference”

(App.21a) and the Appeals Court similarly wrote: “We

accord substantial deference to an agency’s interpret­

ation of its own regulations and will uphold that inter­

pretation when it is reasonable” (App.8a.) These

positions present a clear opportunity for this Court to

address whether such deference is consistent with the

Due Process Clause of the Fourteenth Amendment.

Broad national legislative trends provide strong

supporting material for demonstrating that Loper Bright

reflects a broader national movement rather than an

isolated federal court decision, with states recognizing

the constitutional principles ultimately vindicated by

this Court.

C. The Fourteenth Amendment Requires

Independent Judicial Review of Agency

Legal Interpretations

The deference shown by the Massachusetts courts

to the Board’s legal interpretations violates the Four-

14

teenth Amendment’s Due Process Clause. As this Court

recognized in Ohio Valley Water Co. v. Ben Avon

Borough, 253 U.S. 287,289 (1920), when constitutional

rights are at stake, “the State must provide a fair

opportunity for submitting that issue to a judicial

tribunal for determination upon its own independent

judgment as to both law and facts.”

This principle has even more force today, as state

licensing boards regulate nearly 30% of the American

workforce, affecting the livelihoods of over 58 million

Americans. See Council of State Governments, National

Certified Public Manager Consortium (2023). When

these boards act as prosecutor, judge, and jury—and

courts defer to their legal interpretations—due process

protections become illusory.

The reasoning in Loper Bright applies with equal

force to state agencies through the Fourteenth

Amendment. Justice Gorsuch’s concurrence specifically

noted the due process concerns raised by deference

regimes, stating that they contravene the principle

that “no man can be a judge in his own case.” Loper

Bright, 603 U.S. at 399 (Gorsuch, J., concurring). This

fundamental due process principle applies to the states

through the Fourteenth Amendment, as this Court

has long recognized. See Tumey v. Ohio, 273 U.S. 510,

523 (1927).

This case presents an ideal vehicle for the Court

to clarify that the Fourteenth Amendment requires

state courts to exercise independent judgment when

reviewing state agency interpretations of law, especially

when constitutionally protected interests in professional

licensure are at stake.

15

II. The Board’s Disciplinary Proceedings

Violated Fundamental Due Process Guaran­

tees That This Court Should Clarify Apply to

State Professional Licensing Actions

A. The Extraordinary Thirteen-Year Delay

Itself Constitutes a Due Process Violation

The Massachusetts Supreme Judicial Court has

recognized that unreasonable delays in administrative

hearings produce a denial of procedural due process.

Workers ’ Compensation Rating & Inspection Bureau v.

Commissioner of Ins., 391 Mass. 238,269 (1984). Federal

courts have similarly held that excessive delay in

administrative proceedings can violate due process. The

D.C. Circuit has stated that a “reasonable time for an

agency decision could encompass ‘months, occasionally

a year or two, but not several years or a decade.’”

Midwest Gas Users Ass’n v. FERC, 833 F.2d 341, 359

(D.C. Cir. 1987) (quoting MCI Telecomms. Corp, at 340).

In this case, the thirteen-year period from com­

plaint to final agency action is unprecedented and far

exceeds any reasonable time frame for administrative

adjudication. This delay:

1.

Allowed memories to fade, as evidenced by

Department employee Mark Jablonski’s ina­

bility to recall specific actions and events

during his testimony at the hearing, and his

contradicting his own contemporaneous writ­

ten observations;

2.

Prejudiced Petitioner’s defense as witnesses

became unavailable or unable to clearly

recall events;

16

3.

Placed Petitioner under a cloud of uncertainty

for over a decade regarding his professional

license and livelihood; and

4.

Left Petitioner unable to effectively challenge

evolving standards as the science of LNAPL

remediation developed during the pendency

of his case.

B. Professional Licensure Is a Protected

Liberty and Property Interest That

Triggers Robust Due Process Protections

This Court has long recognized that professional

licensure involves both liberty and property interests

protected by the Due Process Clause. See Bell v. Burson,

402 U.S. 535, 539 (1971); Barry v. Barchi, 443 U.S. 55,

64 (1979). As the Court explained in Cleveland Board

of Education v. Loudermill, 470 U.S. 532, 543 (1985),

“the significance of the private interest in retaining

employment cannot be gainsaid” because it may be

“the only means of livelihood.”

For Petitioner, the LSP license represented three

decades of professional investment and his primary

means of income. The Board’s one-year suspension

effectively terminated his practice by forcing clients to

seek other LSPs for ongoing projects and damaging his

professional reputation.

C. The Denial of Subpoena Power, CrossExamination and Evidence Violated Core

Due Process Rights

The right to confront and cross-examine witnesses

is a fundamental component of procedural due process.

As this Court stated in Greene v. McElroy, 360 U.S.

17

474, 496 (1959), “the right to confront, cross-examine

and refute adverse evidence” is one of “relatively

immutable principles” that should be present in many

types of proceedings.

The Massachusetts Administrative Procedure

Act (“MAPA”) explicitly provides that “any party to an

adjudicatory proceeding shall be entitled as of right to

the issue of subpoenas in the name of the agency

conducting the proceeding.” G.L. c. 30A, § 12(3). See App.59a.

Yet Petitioner was systematically denied this right.

Without the ability to subpoena Department officials

whose decisions and actions were central to the case,

Petitioner had no meaningful opportunity to challenge

the evidence against him.

MAPA also requires that all evidence in possession

of the agency “ ... be offered and made a part of the

record in the proceeding ...” G.L. c. 30A, § 11(4). See

App.56a. Specific email communications were concealed

and other evidence was withheld from Petitioner at

the adjudicatory proceeding, then sealed by the Presi­

ding Officer. Only eleven years later did the Superior

Court order that these communications be unsealed

and made part of the record.

The D.C. Circuit Court of Appeals noted that:

If this were a civil action in a court, or if it

were a criminal case, the party would be

entitled to production of these reports. The

question here is whether production is one of

the fundamentals of fair play required in an

administrative proceeding. We think it is.

Communist Party of the United States v. Subversive

Activities Control Board, 254 F. 2d 314, 327, note 9

18

(D.C. Cir. 1958). See also Roscoe Pound, The Challenge

of the Administrative Process, 30 A.B.A. J. 121 (1944).

The Board, the Department and the Massachusetts

courts ignored their own laws and violated the rights

of the Petitioner.

The situation is particularly troubling given that

Petitioner’s original disciplinary complaint stemmed

from a retaliatory action by a former client who owed

him over $79,000 and who later requested the complaint

be withdrawn—a request the Board refused to honor.

D. The Biased Selection of the Hearing

Officer Violated Due Process

The selection of Timothy M. Jones as Presiding

Officer by a committee that included Robert Luhrs—

who later testified against Petitioner—created an

impermissible risk of bias. This Court has recognized

that “a fair trial in a fair tribunal is a basic requirement

of due process.” In re Murchison, 349 U.S. 133, 136

(1955). This requirement applies with equal force to

administrative adjudications. Withrow v. Larkin, 421

U.S. 35, 46 (1975).

More recently, in Lucia v. Securities and Exchange

Commission, 585 U.S. 237 (2018), this Court empha­

sized the constitutional requirements for administrative

hearing officers, holding that they must be properly

appointed under the Appointments Clause. While

Lucia addressed federal administrative law judges, its

reasoning underscores the importance of properly

constituted and unbiased administrative tribunals in

every corner of the nation.

19

III. This Case Involves Exceptional Circumstan­

ces Warranting This Court’s Review

A. The Extraordinary Duration and Unfair­

ness of the Proceedings Reflect Systemic

Due Process Failures

The thirteen-year administrative process in this

case is not merely a procedural anomaly but a symptom

of deeper systemic failures in administrative justice.

As the D.C. Circuit noted in MCI Telecommunications

Corp. v. F.C.C., 627 F.2d 322, 341 (D.C. Cir. 1980),

“delay in the resolution of administrative proceedings

can also deprive regulated entities, their competitors or

the public of rights and economic opportunities without

the due process the Constitution requires.”

The Board in this case acted on a complaint filed in

December 2005 regarding professional work performed

between 2002 and 2005. The final agency decision came

in January 2019, and judicial review was not completed

until January 2025—twenty years after some of the

work in question was performed. This timeline exceeds

even the “several years or a decade” that the D.C.

Circuit found unacceptable. Midwest Gas Users Ass’n

v. FERC, 833 F.2d 341, 359 (D.C. Cir. 1987).

B. This Case Exemplifies How Administrative

Deference Enables Due Process Violations

This case illustrates how judicial deference to

administrative agencies can compound due process

violations by allowing agencies to operate with minimal

accountability. The Board in this case:

20

1.

Operated without a statute of limitations,

allowing it to initiate and extend proceedings

indefinitely;

2.

Denied Petitioner access to witnesses and

evidence critical to his defense;

3.

Allowed a structurally biased process for

selecting the hearing officer; and

4.

Pursued disciplinary action even after the

complainant requested the complaint be

withdrawn.

When the Massachusetts courts deferred to the Board’s

legal interpretations rather than exercising indepen­

dent judgment as required by Loper Bright, they

abdicated their constitutional responsibility to ensure

due process.

C. The Case Has Significant Implications for

Millions of Licensed Professionals

State licensing boards regulate nearly 30% of the

American workforce across over 1,100 occupations. The

due process issues presented in this case thus have farreaching implications for millions of Americans whose

livelihoods depend on professional licenses.

This case provides the Court with an opportunity

to establish clear constitutional standards for:

1.

Timeliness in administrative proceedings

affecting professional licenses;

2.

The right to subpoena witnesses in profes­

sional disciplinary hearings;

3.

Access to exculpatory evidence in adminis­

trative proceedings;

21

4.

Structural separation between prosecutorial

and adjudicative functions; and

5.

Independent judicial review of agency legal

interpretations under Loper Bright.

------ ®-----CONCLUSION

This petition presents a rare opportunity for the

Court to address both the application of Loper Bright

to state court review of state agency action and the

minimum due process requirements for professional

disciplinary proceedings. The case presents these issues

in the context of extraordinary procedural deficiencies

that demonstrate the real-world consequences when

administrative agencies operate without meaningful

judicial oversight. For these reasons, the Petitioner

respectfully submits the petition for a writ of certiorari

be granted.

Respectfully submitted,

James J. Decoulos

Petitioner Pro Se

38 Bow Road

Belmont, MA 02478

(617) 489-7795

jamesj@decoulos.com

June 13, 2025