Petition for Writ of Certiorari — Joseph W. Wade, Petitioner v. Walter T. Mosley, New York Secretary of State, et al.

Supreme Court briefAug 21, 2025

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FILED

AUG 2 1 2025

25-5487

No. _ ________

3fti tlje

Supreme Court of ®fje Wniteti States;

JOSEPH W. WADE,

Petitioner

•ROBERT J. RODRIGUEZ,

in official capacity, et al.,

Respondent

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Joseph W. Wade

Pro Se Petitioner

9 Pinehurst Avenue,

Suite 2c

201.983.3009

owlcontract@gmail.com

August 20, 2025

Petitioner

SUPRiylEFTOURTLu.s5

CIVIL CASE

QUESTIONS PRESENTED

1) Under 42 U.S.C. § 1983, against state officials in

‘official capacity,’ does Article III standing require

proof that the final outcome of a ‘discrete

governmental decision’ would be different if-not-butfor a ‘race and sex conscious technical framework,’ or

is it sufficient to show an existence of ‘differential

treatment’ and an ‘inability to compete on equal

footing’ if-iiot-but-for a ‘race and sex conscious

technical framework?’

2) Does a prayer for “compensatory relief’ exclude all

viable remedies in law and equity under § 1983,

against state officers in ‘official capacity?’

LIST OF PARTIES

The Petitioner is Joseph W. Wade, Plaintiff in

civil case l:23-cv-4707-PAE-SLC (S.D.N.Y) and civil

appeal No. 24-2495. (2nd Circuit)

The Respondents are officials of the New York

State Department of State (NYSDOS); New York

Secretary of State Robert J. Rodriguez, in his official

capacity; David Ashton, in his official capacity as a

revitalization specialist; Catherine Traina, in her

official capacity as assistant director of the Bureau of

Fiscal Management; and Laurissa Garcia, in her

official capacity as a contract management specialist.

Defendants in civil case l:23-cv-4707 (S.D.N.Y) and

civil appeal No. 24-2495. (2nd Circuit)

RELATED CASES

In The United States Court of Appeals for the

Second Circuit:

Wade v. Rodriguez et al. No. 24-2495 (May 19,

2025, Summary Order (Dkt. 45.1)) (Affirming the

ruling of the lower court on different grounds)

(see APPENDIX: A & D)

In United States District Court, The Southern

District of New York:

Wade v. Rodriguez et al. No. l:23-cv-4707-PAESLC (Sept 10, 2024) (Granting a Rule 12(b)(1)

Dismissal)

(see APPENDIX: B & C)

TABLE OF CONTENTS

QUESTIONS PRESENTED.........................................i

LIST OF PARTIES..... :.................................................ii

RELATED CASES....................................... ,............. iii

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

INDEX OF APPENDICES........................................... v

TABLE OF AUTHORITIES....................................... vii

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

II. JURISTICTION...................................................... 1

III. STATUTORY PROVISIONS INVOLVED........ 3

IV. STATEMENT OF THE CASE.............. ............... 4

1. Case Background.........................................

2. Introduction........................................

3. An Otherwise Guaranteed Contract

Award Is Not Required to Establish

a Causal Connection to a Concrete and

Particular Injury................................. ,,....... 12

4. Petitioner has Articulated a Deprivation of

Due Process and Equal Protection which is

Able to be Remedied by Allowed Relief...... 23

5. Equitable Redressability..............................26

V. REASONS FOR GRANTING WRIT............... 32

1. Rule 10: Considerations Governing

Review on Certiorari........ :......................... 32

a. A United States court of appeals has

entered a decision in conflict with the

decision of another United States court of

appeals on the same important matter, or

has so far departed from the accepted and

usual course of judicial proceedings, or

sanctioned such a departure by a lower

court, as to call for an exercise of this

Court’s supervisory power................. 32

c. A United States court of appeals has

decided an important question of federal

law that conflicts with relevant decisions of

this Court................................................ 34

2. National Importance................................. 37

VI. CONCLUSION......................

VII. PRAYER FOR RELIEF.....................................40

VIII.

APPENDIX

INDEX OF APPENDICES

Appendix A Summary Order (Dkt. 45.1) of The

United States Court of Appeals for

the Second Circuit

(May 19, 2025)... APP 1

Appendix B Opinion and Order (ECF 92) (Dkt. 2)

in the United States District Court

for the Southern District of New York

(Sept. 10, 2024).

APP 7

Appendix C Clerk’s Judgment (ECF 93) (Dkt. 3)

in the United States District Court

for the Southern District of New York

(Sept. 10, 2024).APP 23

Appendix D Denial of Petition for Rehearing (Dkt.

56.1) by The United States Court of

Appeals for the Second Circuit

(June 26, 2025)...................... APP 24

Appendix E Constitutional Provisions,

Statues & Laws...................... APP 25

vii

TABLE OF AUTHORITIES

cases

pages

Adarand Constructors, Inc. v. Pena,

515 U.S, 200 (1995)

11, 19, 23, 37, 38

Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975)

Allen v. Wright,

468 U.S. 737 (1984)

10,17

Anti-Fascist Committee v. McGrath,

341 U.S. 171-172 (1951)

Auguste v. Dep't of Corr.,

424 F. Supp. 2d 363,367 (2006)

ASARCO Inc. v. Kadish,

490 U.S. 605, 615 (1989)

Ashcroft v. Iqbal,

556 U.S. 662 (2009)

................ 36

13, 14, 15, 21, 25

Babb v. Wilkie,

589 U.S. 399, 413 (2020)

. 9, 10, 11, 12, 22, 23, 26, 30, 35, 38, 39

Baker v. Carr,

369 U.S. 186, 204 (1962)

Bell v. Hood,

327 U.S.678, 684 (1946)

16, 28

viii

Bell v. Little Axe hidependent School Dist. No. 70,

766 F.2dl391 (CA10 1985)

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007)

............ 13, 15, 21

Birdsall v Coolidge,

93 U.S. 64 (1876)

Boddie v. Connecticut,

401 U.S. 371 (1971)

Brown v. Swann,

10 Pet. 497, 35 U.S. 503 (1836)

Carey v. Piphus,

435 U.S. 247 (1978)

25, 29, 33, 38

Chevron Corp. v. Donziger,

833 F.3d 74, 121 (2d Cir. 2016)

City of Richmond v. J. A. Croson Co.,

488 U.S. 469 (1989)

5, 16, 20, 37, 38

Conley v. Gibson,

355 U.S. 41, 47, (1957)

....15, 39

Cummings v. Connell,

402 F.3d 936, 942-46 (9th Cir. 2005)

15, 33

Draper v. Coombs,

792 F.2d 915, 921-22 (9th Cir. 1986)

Edelman v. Jordan,

415 U.S. 651 (1974)

26, 27, 29, 30

Ex Parte Young,

209 U.S. 123 (1908)

4, 16, 25, 27, 29, 35

Ford Motor Co. v. Department of Treasury,

323 U.S. 459 (1945)

Fisher v. University of Tex. at Austin,

570 U.S. 297, 311-312 (2013)

Goldberg v. Kelly,

397 U.S. 254 (1970)

20, 37

„............ 29

Grutter v. Bollinger,

539 U. S. 306, 326 (2003)

19, 37

Gutierrez v. Joy,

502 F. Supp. 2d 352,362 (S.D.N.Y. 2007)

Guy v. City of San Diego,

608 F.3d 582, 587 (9th Cir. 2010)

Havens Realty Corp. v. Coleman,

455 U.S. 363, 376 (1982)

...10

Heckler v. Mathews,

465 U.S. 728,738 (1984)

Herrera v. Valentine,

653 F.2d 1220, 1227-1229 (CA8 1981)

Hishon v. King & Spalding,

467 U.S..69, (1984)

27, 38, 39

Jackson v. Birmingham Bd. of Ed.,

544 U.S. 167, 174 (2005)

19, 34, 39

Joann Yellow Bird v. Clifford Valentine

653 F.2d 1220 (8th Cir. 1981)

Konczak v. Tyrrell,

603 F.2d 13, 17 (CA7 1979)

444 U.S. 1016 (1980)......................

...29

Lane v. Wilson,

307 U.S. 268, 59 S. Ct. 872,

83 L. Ed. 1281 (1939)

Lujan v. Defenders of Wildlife,

504 U. S. 555 (1992)

21, 25, 35, 36, 38

Mahach-Watkins v. Depee,

593 F.3d 1054, 1059 (9th Cir. 2010)

Memphis Comm. Sch. Dist. v. Stachura,

477 U.S. 299 (1986)

Nixon v. Condon,

286 U.S. 73 (1932)

Nixon v. Herndon,

273 U.S. 536, 47 S. Ct. 446,

71 L. Ed. 759 (1927)

Northeastern Fla. Chapter, Associated Gen.

Contractors of America v. Jacksonville,

508 U. S. 656, 666,

11, 13, 14, 16, 19, 21, 22, 34, 35, 38

Norwood v. Harrison,

413 U.S. 455 (1973)

Oneida Indian Nation of N. Y

v. County of Oneida,

414 U. S. 661, 666...............................................29

Peck v. Montoya,

51 F.4th 877, 891 (9th Cir. 2022).................... 32

Porter v. Warner Holding Co.,

328 U. S. 395, 328 (1946)................................. 16

Regents of Univ, of Cal. v. Bakke,

438 U.S. 265

............. 13,20, 37, 38

Reynaga Hernandez v. Skinner,

969 F.3d 930, 941-42 (9th Cir. 2020)............. 32

San Antonio Independent School Dist.

v. Rodriguez,

411 U.S. 1, 105 (1973)................................ 20, 22

Safeco Ins. Co. of America v. Burr,

551 U.S; 47, (2007) .......................................... 34

Schlesinger

v. Reservists Comm, to Stop the War,

418 U.S. 208, 217 (1974).................................. 21

Schneider v. County of San Diego,

285 F. 3d-784, 794-95 (9th Cir. 2002)............. 33

Shain v. Ellison,

356 F.3d 211, 215 (2d Cir. 2004)..................... 11

Simon v. Eastern Kentucky Welfare Rights Org.,

426 U.S. 26, 41(1976).................................. 10, 21

xii

Spokeo, Inc. v. Robins,

578 U.S._ (2016)

Steel Co. v. Citizens for Better Environment,

523 U. S. 83, 103 (1998)

10, 29

Students for Fair Admissions, Inc.

v. President and Fellows of Harvard College,

600 U.S:

(2023)

20, 37, 38

Texas v. Lesage,

528 U.S. 18 (1999)

11, 12, 13, 22, 35, 38, 39

TransUnion LLC v. Ramirez,

594 U.S. ' (2021)

29, 30, 38

Trevino v. Gates,

99 F.3d 911, 922 (9th Cir. 1996)

United States v. Bailey,

444 U.S. 394, 404 (1980)

United States v. United States Gypsum Co.,

438 U.S. 422, 445 (1978)

Utah v. Evans,

536 U.S. 452, 464

...........

Uzuegbunam v. Preczewski,

592 U.S,

(2021)

Valley Forge,

454 U.S. 472

36, 38

xiii

Village of Arlington Heights

v. Metropolitan Housing Dev. Corp.,

429 U.S. 252 (1977)................................... 38

Warth v. Seldin,

422 U.S. 490, 501 (1975)........................... 10

Wayne v. Venable,

260 F. 64 (8th Cir. 1919)............................ 34

Wilks v. Reyes,

5 F.3d 412, 416 (9th Cir. 1993)............... 33

Wygant v Jackson Board of Ed.,

476 U.S. 279-280 (1986)...

Yick Wo v. Hopkins,

118 U.S:356 (1886).................................... 37

Constitution and Statutes

U.S. Const. Article III................................. 26, 27, 36

U.S. Const, amend V..................................... 2, 6, 24

U.S. Const, amend XI..................... 2, 6, 7,16, 25, 27

U.S. Const, amend XIV............... 2, 6, 22, 23, 24. 37

NY Const art I § 11.......................................... 3, 6, 24

28 U.S.C § 1254(1)....................................................... 2

28 U.S.C § 2201 ................... 2, 6, 7, 14, 16, 25, 26, 28

28 U.S.C § 2202........................................................... 2

xiv

42 U.S.C §1983

4, 6, 11, 23, 24, 32, 33, 38

42 U.S.C §1985(c)

1.....................3,6

42 U.S.C §1986

............................................ 3, 6

42 U.S.C § 2000d

3, 27

Uniform Declaratory Judgment Act

2, 6, 26

New York State Statues

N.Y. Exec. Law Art. 15-A §§ 310-318

3, 5

5 NYCRR § 142.2

5 NYCRR § 142.3

3, 5

Rules

S.Ct. R. 10

S.Ct. R. 13

2, 9

S.Ct. R. 14

S.Ct. R. 14(l)(a).......................

S.Ct. R. 14(l)(b)(i)

S.Ct. R. 14(l)(b)(iii)

iii

S.Ct. R. 14(l)(c)

....................................... iv

S.Ct. R. 14(l)(d)

................ 1

S.Ct. R. 14(l)(e)

S.Ct. R. 14(l)(f)

2, 3

S.Ct. R. 14(l)(g)

S.Ct. R. 14(l)(h)

.................. 32

S.Ct. R. 14(l)(i)

see APPENDIX

FRCP Rule 8(a).............................................. 15, 28

FRCP Rule 8(d)(2)................................................. 28

FRCP Rule 8(d)(3)................................................. 28

FRCP Rule 12(b)(1)........................................ 4, 6, 7

FRCP Rule 12(b)(6)................................................. 6

Other Authorities

law.cornell.edu/wex/..................... ;................ 26, 28

Section 1983 Outline:

United States Court of Appeals for the

Ninth Circuit Office of Staff Attorneys

by: Kent Brintnall........... ...................................... 33

Webster’s Third New International

Dictionary 905 (def. 4(a)(2)) (1976)..................... 18

IN THE SUPREME COURT OF THE UNITED

STATES PETITION FOR WRIT OF CERTIORARI

Petitioner, Joseph W. Wade, humbly prays that a

writ of certiorari issue to review the judgment below.

OPINIONS BELOW

Cases are from federal courts;

In case No. 24-2495, The United States Court of

Appeals for the Second Circuit issued a Summary

Order (Dkt. 45.1) on May 19, 2025, this was

electronically recorded with the Second Circuit

ACMS, it appears at APPENDIX: A

In case No. l:23-cv-4707, The Southern District

Court of New York issued an Opinion and Order (ECF

92) (Appeals Dkt. 2) on September 10, 2024, this was

electronically recorded with the Southern District’s

CM/ECF system, it appears at APPENDIX: B

II.

JURISTICTION

Cases are from federal courts;

The United States Court of Appeals for the Second

Circuit decided case No. 24-2495 with a dispositive

Summary Order (Appeals Dkt. 45.1) on May 19, 2025,

this was electronically recorded to the Second Circuits

AMCS, it appears below at APPENDIX: A

A timely petition for rehearing (Dkt. 52) was filed

June 4, 2025 and denied (Dkt. 56.1) by the United

States Court of Appeals on June 26,2025. Pursuant to

Supreme Court Rule 13(3), Monday, Sept. 24, 2025,

marks 90 days from Thursday, June 26, 2025. A copy

of the order denying rehearing (Appeals Dkt. 56.1)

appears at APPENDIX: D

The Jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1);

28 U.S. Code § 1254

Courts of appeals; certiorari; certified questions;

Cases in the courts of appeals may be reviewed

by the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the

petition of any party to any civil or criminal case,

before or after rendition of judgment or decree;

III. CONSTITUTIONAL & STATUTORY

PROVISIONS INVOLVED

See APPENDIX: E

U.S. Const, amend. V

U.S. Const, amend. XI

U.S. Const, amend. XIV Section 1

U.S. Const, amend. XIV Section 5

28 U.S. Code § 2201 - Creation of remedy

28 U.S. Code § 2202 - Further relief

42 U.S. Code § 1983 - ... deprivation of rights

42 U.S. Code § 1985 - Conspiracy ...

42 U.S. Code § 1986 -... neglect to prevent

42 U.S. Code § 2000d - Title VI Civil Rights Act

42 U.S. Code § 2000d-7- ... remedies equalization

NY Const art I § 11 - Equal Protection

NYS Executive (EXC) CHAPTER 18, ARTICLE 15

§ 291. Equality of opportunity a civil right

§ 292. Definitions

§ 296. Unlawful discriminatory practices

§ 296-D. Unlawful discriminatory practices ...

NYS Executive (EXC) CHAPTER 18, ARTICLE 15-A

§ 310. Definitions.

§ 312-a. Study of minority and women ...

§ 313. Opportunities for minority and women ...

§ 313-a. Diversity practices of state contractors.

N.Y. Comp. Codes R. & Regs. Tit. 5 - Department of

Economic Development

§ 140.1 - Definitions

§ 141.2 - Annual State agency-specific goals

§ 142.1 - Purpose, scope and applicability

§ 142.2 - Establishing contract goals...

§ 142.3 - Diversity practices, bidding...

§ 142.4 - Utilization plans

§ 142.14 - Quantitative scoring factors ...

IV.

STATEMENT OF THE CASE

Case Background

This case (l:23-cv-4707-PAE-SLC) (Appeal Dkt.

No. 24-2495), was initially brought against the New

York State Department of State Office of Planning,

Development and Community Infrastructure (EOF 1)

for the statewide imposition of overly broad race and

sex conscious technical frameworks.

Initiating documents were submitted June 5, 2023.

On June 13, 2023, an IFP was granted by The

Honorable Judge Laura Taylor Swain in the Southern

District of New York (ECF 5). The initial complaint

sought, “money damages and ‘a relief from bias’.” (see

ECF 1 at 10) (see Judge Cave’s R&R, ECF 76 at 7)

On Aug. 1, 2023, an Order (ECF 8) by The

Honorable Judge Paul A. Engelmayer construed the

complaint as asserting official capacity claims against

the New York Secretary of State, Robert J. Rodriguez,

actionable under 42 U.S.C §1983 and allowed by the

doctrine of Ex Parte Young.

On Aug 2, 2023, a summons (ECF 10) was issued

to New York State Secretary of State, Robert J.

Rodriguez. The receipt of which (ECF 14) was received

Oct. 03, 2023. Subsequently, a Motion to Dismiss

(ECF 20) and The Declaration of Cathrine Traina

(ECF 22) was filed by council Alice Goldenberg, New

York Assistant Attorney General, on Nov. 30, 2023.

This MTD cited FRCP Rule 12 (b)(1) ‘lack of standing.’

(ECF 21)

In support of the MTD (ECF 21), The Declaration

of Traina (ECF 22) claims the NYS DOS’s authority to

impose a M/WBE program is derived from N.Y. Exec.

Law Art. 15-A §§ 310-318, 5 NYCRR § 142.2 and 5

NYCRR § 142.3. (ECF 22 p. 3-5)

N.Y. Exec. Law Art. 15-A §§ 310-318 does in fact

broadly guide state agency action when conducting

race and sex based remediation programs that are

‘practical, feasible and appropriate,’ 5 NYCRR § 140145, the parallel legislative law, also delineates

required Due Process.

5 NYCRR § 142.2 and § 142.3 specifically describes

how race and sex conscious remediation programs can

be imposed upon contracts at certain dollar amounts,

if done so “in good faith” but, it is not itself

justification for an imposition of race and sex

conscious programs.

Overly broad state-actions, justified by state

officers ‘under the color’ of state law but, not enacted

within the guidance of law, remains the Petitioner’s

ultimate challenge at the district level.

“[R]emedial classifications warrant no different

standard of review under the Constitution than the

most brutal and repugnant forms of state-sponsored

racism, a majority of this Court signals that ...

government bodies need no longer preoccupy

themselves with rectifying racial injustice.” City of

Richmond v. J. A. Croson Co., 488 U.S. 469 (1989).

On Dec. 21, 2023, the Petitioner filed an Amended

Complaint (ECF 31) related to ECF 1. Following the

guidance of Judge Paul A. Engelmayer, the First

Amended Complaint (ECF 31) pursues action against

New York State officials in official capacity, for the

“deprivation of rights ... secured by the Constitution

and laws,” (42 U.S.C. §1983) citing “Equal Protection”

and “Due Process” violations of the Fourteenth

Amendment. The FAC (ECF 31) also discusses Fifth

Amendment violations, New York State constitutional

violations, New York State statutory claims, and

circumstances actionable under 42 U.S.C §1985 and

42 U.S.C §1986.

Prayer for relief included assertions and requests

for declaratory relief (see 28 U.S.C §2201) and

compensatory relief, see Birdsall v Coolidge 93 U.S. 64

(1876) ("compensatory" and "actual" are identical)

On Feb. 12, 2024, council Alice Goldenberg filed a

new Motion to Dismiss (ECF 49), its Supporting

Memorandum of Law (ECF 50) cited Rule 12(b)(1),

Rule 12(b)(6) and the Eleventh Amendment.

On March 12, 2024, the Petitioner filed a Motion to

Add Parties in Individual Capacity. (ECF 67). This

was dismissed by an Order (ECF 73) on March 19,

2024. This Order (ECF 73) included an explicit

direction from Magistrate Judge Sarah J. Cave,

instructions to wait until the Motion to Dismiss (ECF

49) was resolved to request any further Leave to

Amend.

On June 28, 2024, 93 days after the court was fully

briefed, Magistrate Judge Sarah J. Cave filed a Report

and Recommendations (ECF 76), suggesting that the

asserted claims had no standing and should be wholly

dismissed with prejudice.

The Petitioner, in response, submitted a Corrected

Objections and Comments, July 8, 2024 (ECF 80).

On Sept 10, 2024, the Honorable Paul A.

Engelmayer, denied an instant Motion for Leave to

Amend (ECF 87) and granted the Defense’s MTD

(ECF 49) under Rule 12(b)(1) without prejudice.

His decision was handed down in an Opinion and

Order (ECF 92) (Appeal Dkt. 2). Subsequently a

Clerk’s Judgement was filed the same day (ECF 93)

(Appellant Dkt. 3).

The Opinion and Order (ECF 92) (Appeal Dkt. 2)

dismisses civil case l:23-cv-4707-PAE-SLC under

12(b)(1), it states the only “relief (money damages)

[he] seeks is backward-looking. It is limited to

compensating Wade for the past injury he claims from

the failure to be awarded the RFP contract...” (ECF

92 p. 12) (Appeal Dkt. 2 p.12)

“When Wade filed the Complaint, the Court

initially construed it to assert official-capacity claims

against Rodriguez seeking prospective injunctive or

declaratory relief, such that these claims would not be

barred by the Eleventh Amendment. But Wade's AC,

today the operative complaint, seeks only monetary

relief from defendants and only in their official

capacities. As such, its claims are barred by the

Eleventh Amendment. See, e.g., Auguste v. Dep't of

Corr., 424 F. Supp. 2d 363,367 (D. Conn. 2006); ...

Gutierrez v. Joy, 502 F. Supp. 2d 352,362 (S.D.N.Y.

2007) (same).” see Opinion and Order (EOF 92 p. 13)

(Appeal Dkt. 2 p.13)

A Notice of Civil Appeal (ECF 94) (Appeal Dkt.l)

and a Motion for Leave to Appeal IFP (ECF 95)

(Appeal Dkt. 7) was filled on Sept. 19, 2024.

The Civil Appeal was received by the Second

Circuit on Sept. 19, 2024 (Appeal Dkt. 5) on behalf of

Appellant, Joseph W. Wade, endorsed by The

Honorable Judge Engelmayer (ECF 97) (Dkt. 5).

Case No. 24-2495, Wade v. Rodriguez, was Opened

(Appeal Dkt. 5) on Sept. 24, 2024. The Appellant’s

Brief (Dkt. 19), was recorded on Nov. 7, 2024, it cited

error of law, error of fact and abuse of discretion.

On May 16, 2025, civil appeals case No. 24-2495,

conducted oral argument before The Honorable Judge

Guido Calabresi, The Honorable Judge Barrington D.

Parker Jr., and The Honorable Judge William J.

Nardini, Panel B for The United States Court of

Appeals for the Second Circuit. An audio recording at

ww3.ca2.uscourts.gov/oral arguments.

Shortly after, a Summary Order (Appeal Dkt. 45.1)

was filed on May 19, 2025.

The Second Circuit Summary Order (Dkt.45.1)

affirmed the lower court’s judgment but, for different

reasons, citing lack of ‘traceability.’

“Here, the rejection of Wade’s bid was not traceable

to the conduct he challenged ... Wade failed to

plausibly allege that the DPQ could have had a “butfor” causal impact on the final decision to reject his

proposal. See Babb, 589 U.S. at 413-14 (Appeal Dkt.

45.1 p. 5)

The Second Circuit did not comment on

‘redressability’ or any of the District Court’s points,

“[b]ecause we conclude that the district court properly

dismissed this action for lack of jurisdiction on

standing grounds, we need not reach the additional

issues he raises on appeal.” (Appeal Dkt. 45.1 p. 5)

It is this Summary Order (Dkt 45.1) which is now

under the jurisdiction of this Court (28 U.S.C

§1254(1)) and reviewable for Certiorari.

The Petitioner filed a Petition for Rehearing on

June 4, 2025, (Appeal- Dkt. 52) this was denied on

June 26, 2025. (Appeal Dkt. 56.1)

Pursuant to Supreme Court Rule 13(3), “... if a

petition for rehearing is timely filed in the lower court

by any party, the time to file the petition for a writ of

certiorari for all parties ... runs from the date of the

denial of rehearing...” therefore the ‘time to file a

petition for a writ of certiorari’ runs 90 days from

Thursday, June 26, 2025.

Wednesday, September 24, 2025 marks 90 days

from Thursday, June 26, 2025.

This Petition for Writ of Certiorari has been

complied and submitted on August 20, 2025, 55 days

after the Denial of a Petition for Rehearing (Appeal

Dkt. 56.1) on June 26, 2025.

2. Introduction

It is bedrock law that “requested relief’ must

“redress the alleged injury.” Steel Co. v. Citizens for

Better Environment, 523 U. S. 83,103 (1998).” quoting

Babb v. Wilkie, 589 U.S. 399, 413 (2020)

“Persons seeking judicial relief from an Art. Ill

court must have standing to maintain their cause of

action. At a minimum... "such a personal stake in the

outcome of the controversy as to assure that concrete

adverseness which sharpens the presentation of

issues upon which the court so largely depends ..."

Baker v. Carr, 369 U.S. 186, 369 U. S. 204 (1962).

Under the Court's cases, this "personal stake"

requirement is satisfied if the person seeking redress

has suffered, or is threatened with, some "distinct and

palpable injury," Warth v. Seldin, 422 U.S. 490, 422

U.S. 501 (1975), and if there is some causal connection

between the asserted injury and the conduct being

challenged, Simon v. Eastern Kentucky Welfare Rights

Org., 426 U.S. 26,41 (1976). See Heckler v. Mathews,

465 U.S. 728, 738 (1984); Havens Realty Corp. v.

Coleman, 455 U.S. 363, 376 (1982); Valley Forge, 454

U.S. 472.” Allen v. Wright, 468 U.S. 737 (1984)

“But-for causation is nevertheless important in

determining the appropriate remedy... Remedies

must be tailored to the injury. Plaintiffs who show

that [ a protected trait ] was a but-for cause of

differential treatment in an employment decision, but

not a but-for cause of the decision itself, can still seek

injunctive or other forward-looking relief.” Babb v.

Wilkie, 589 U.S. 399, 413 (2020)

To establish standing for prospective relief, a

plaintiff "must show a likelihood that he will be

injured in the future." Shain v. Ellison, 356 F.3d 211,

215 (2d Cir. 2004) (see also Adarand Constructors,

Inc. v. Pena, 515 U.S. 200 (1995))

“...plaintiffs are not without a remedy if they show

that [a protected trait] was a but-for cause of

differential treatment ... plaintiffs can seek []

forward-looking relief.’ Determining what relief, if

any, is appropriate in the present case is a matter for

the District Court to decide in the first instance if [a

plaintiff] succeeds in showing that [a statute] was

violated.” Babb v. Wilkie, 589 U.S. 399, 413 (2020)

“[A]

summary judgment [dismissal] was

inappropriate on [a] § 1983 damages claim, even if

petitioners conclusively established that he would

have been rejected under a race-neutral pokey,

[dismissal] is inconsistent with this Court's wellestablished framework for analyzing such claims. ...

Of course, a plaintiff challenging an ongoing race

conscious program and seeking forward-looking relief

need only show ‘the inability to compete on an equal

footing.’" Texas v. Lesage, 528 U.S. 18 (1999))

3. An Otherwise Guaranteed Contract Award

Is Not Required to Establish a Causal

Connection to a Concrete and Particular

Injury

In Summary Order (Dkt.45.1), The Second Circuit

demands that the Petitioner claim a much narrower

injury-in-fact then is necessary to establish standing,

“...where a plaintiff challenges a discrete

governmental decision as being based on an

impermissible criterion and it is undisputed that the

government would have made the same decision

regardless, there is no cognizable injury warranting

damages relief.” Babb v. Wilkie, 589 U.S. 399, 413

(2020) (quoting Texas v. Lesage, 528 U.S. 18, 21-22

(1999)).” (Summary Order, Dkt. 45.1 at 4)

While this specific fact from The Second Circuit is

true, it is not the poignant issue at hand. It’s focus

attempts to spin the substance of Babb v. Wilkie

(2020) on its head, “[h]ere, the rejection of Wade’s bid

was not traceable...Wade failed to plausibly allege

that the DPQ could have had a “but-for” causal impact

on the final decision to reject his proposal. See Babb,

589 U.S. at 413-14.” (Appeals Dkt. 45.1 p. 5)

There is a proper distinction between the separate

nexuses of proximate cause and the types of injuries

they accrue. Separate is the injury of ‘inability to

compete on equal footing’ and the injury of ‘loss of

contract.’ Here though the Petitioner makes his

complaint against the former not the latter.

“When the government erects a barrier that makes

it more difficult for members of one group to obtain a

benefit than it is for members of another group, a

member of the former group seeking to challenge the

barrier need not allege that he would have obtained

the benefit but for the barrier in order to establish

standing. See, e.g., Regents of Univ, of Cal. v. Bakke,

438 U. S. 265. The "injury in fact" element of standing

in such an equal protection case is the denial of equal

treatment resulting from the imposition of the

barrier-here, the inability to compete on an equal

footing in the bidding process, not the ultimate

inability to obtain the benefit. To establish standing,

therefore, petitioner need only demonstrate that its

members are able and ready to bid on contracts and

that a discriminatory policy prevents them from doing

so on an equal basis.” Northeastern Fla. Chapter of the

Associated Gen.

Contractors of America v.

Jacksonville, 508 U.S. 656 (1993)

“In Twombly, the complaint alleged general

wrongdoing that extended over a period of years,

whereas [ Iqbal ] alleges discrete wrongs—for

instance, beatings—by lower level Government

actors.” Ashcroft v. Iqbal, 556 U.S. 662 (2009)

“[A] plaintiff challenging an ongoing race

conscious program and seeking forward-looking relief

need only show "the inability to compete on an equal

footing." Texas v. Lesage, 528 U.S. 18 (1999)

The Petitioner’s FAC (ECF 31) clearly “discuss [es]

how the actions, policies and customs of these officers

are actual causes of significant damage, accompanied

with claims [and] descriptions of instances of

proximate causes with grounds for redress and

reasoning for compensatory and declaratory relief.”

FAC(ECF31 at 31)

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable

for the misconduct alleged. The plausibility standard

is not akin to a “probability requirement,” but it asks

for more than a sheer possibility that a defendant has

acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662

(2009)

The Petitioner’s FAC (ECF 31) does show a

‘reasonable inference’, that the “denial of equal

treatment resulting from the imposition of [a] barrier,

here, the inability to compete on an equal footing in

[a] bidding process,” “was a but-for cause of

differential treatment.” see Northeastern Fla. Chapter

of the Associated Gen. Contractors of America v.

Jacksonville, 508 U.S. 656 (1993)

On the face of the FAC is a repeated assertion;

“Deprivation of Rights: 14th Amendment Due Process

and Equal Protection; Officers have not maintained

fair and just procedures.... These officers have mis

stepped over broadly in their duties, trampling on my

Constitutional Privileges dishonestly... Specifically,

when creating and implementing the frameworks and

tactics of MWBE remediation programs. The State

agency is now responsible for... Duty of Care required

... officers have allowed the MWBE program [to]

become overly broad indifferently, with no reasonable

justification. [Because they are] responsible for the

unlawful corrosion of these Constitutional Privileges,

and outright denial of Equal Protection under the

color of law, I plead for compensatory redress...”

Petitioner’s FAC (ECF 31 at 46)

“It may be difficult to define the precise

formulation of the required prima facie case in a

particular case before discovery has unearthed

relevant facts and evidence. Consequently, the prima

facie case should not be transposed into a rigid

pleading standard for discrimination cases. Imposing

the Second Circuit's heightened standard conflicts

with Rule 8(a)'s express language, which requires

simply that the complaint "give the defendant fair

notice of what the plaintiffs claim is and the grounds

upon which it rests." Conley v. Gibson, 355 U. S. 41,47.

Under Federal Rule of Civil Procedure 8(a)(2), a

pleading must contain a “short and plain statement of

the claim showing that the pleader is entitled to

relief.” “As the Court held in Twombly, 550 U.S. 544,

the pleading standard Rule 8 announces does not

require “detailed factual allegations,” but it demands

more than [the] unadorned.” Ashcroft v. Iqbal, 556

U.S. 662 (2009)

In this mater, the Petitioner is named in a Pro se

‘individual capacity.’ The nexus of the Petitioner’s

proximate cause is not how a ‘discrete governmental

decision’ rejected a company proposal, but instead,

how the introduction of ‘qualitative’ or ‘race and sex

conscious’ technical point schemes grade the ‘racial

qualities’ and ‘sex compositions’ of a company’s

personnel, and how these race and sex conscious

grading schemes effect the ‘equal footing’ of

individuals, business relationships and employment

considerations, see City of Richmond v. J. A. Croson

Co., 488 U.S. 469 (1989) also see Northeastern Fla.

Chapter, Associated Gen. Contractors of America v.

Jacksonville, 508 U. S. 656, 666 (1993)

Early in this case it was shown that “[the

Petitioner] may bring suit for prospective injunctive

relief against an individual state official ..., see Ex

Parte Young, 209 U.S. 123 (1908) (holding that state

officials are not immune under the Eleventh

Amendment from official-capacity claims seeking

prospective injunctive or declaratory relief)” see Judge

Paul A. Engelmayer, Order (ECF 8)

“...Congress took care to arm the courts with full

equitable powers. For it is the historic purpose of

equity to "secur[e] complete justice," Brown v. Swann,

10 Pet. 497, 35 U.S. 503 (1836); see also Porter v.

Warner Holding Co., 328 U.S. 395, 328 U.S. 397-398

(1946). "[W]here federally protected rights have been

invaded; it has been the rule from the beginning that,

courts will be alert to adjust their remedies so as to

grant the necessary relief." Bell v. Hood, 327 U.S. 678,

327 U. S. 684 (1946). Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975) But, the Second Circuit’s

Standards assert differently.

Additionally, the Second Circuit argues, “the

Amended Complaint did not allege that Wade was

aware of the DPQ prior to making subcontracting

decisions or that he discriminated against any group

due to the existence of the questionnaire. See, e.g.,

Chevron Corp. v. Donziger, 833 F.3d 74, 121 (2d Cir.

2016)” (Appeals Dkt. 45.1 p. 5)

An important distinction exits here too. Specific

relationships to third parties are required to establish

separate ‘causal connections.’ To say that the

Petitioner was not ‘caused to knowingly discriminate’

by an overly broad M/WBE program because, of a ‘lack

of knowledge’ of the program, you must also say there

is a strong plausibility that other actors were ‘caused

to knowingly discriminate’ because of “knowledge of

the program-.’

“In Norwood v. Harrison, 413 U.S. 455 (1973), we

noted that "a state may not induce, encourage or

promote private persons to accomplish what it is

constitutionally forbidden to accomplish.'" quoting

Allen v. Wright, 468 U.S. 737 (1984)

There exists a ‘person’ who enacts, or who is

manipulated to act by, the state imposed discrim

inatory policies. While these individuals can be peers,

or other business owners, usually they are town or

local representatives. Also considered ‘state-actors,’

they are persuaded by state funding to “knowingly’

engage in unconstitutional ‘state-action.’ It is safe to

assume these individuals are much more likely, if not

required to have ‘awareness’ of these policies prior to

implementing them in the general public.

As pointed out in United States v. United States

Gypsum Co., 438 U.S. 422, 445 (1978), a ‘person’ who

causes a particular result is said to act ‘purposefully’

if 'he consciously desires that result, whatever the

likelihood of that result happening from his conduct,’

while he is said to act ‘knowingly’ if he is aware 'that

the result is practically certain to follow from his

conduct, whatever his desire may be as to that result.’

United States v. Bailey, 444 U.S. 394, 404 (1980)

“[As law] concerns ‘personnel actions.’ ... its

meaning is easy to understand ... broadly ... a

‘personnel action’ include[s] ... decisions such as

appointment, promotion, work assignment, compen

sation, and performance reviews...That interpre

tation is consistent with the term’s meaning in

general usage... [Personnel actions must be made

“free from” discrimination. The phrase “free from”

means “untainted” or “[clear] of (something which is

regarded as objectionable).”1 (“[n]ot affected or

restricted by a given condition or circumstance”); ...

(defining “free” as “exempt or released from something

specified that controls, restrains, burdens, etc.”). Thus

...a personnel action must be made “untainted” by

discrimination..., and the addition of the term “any”

(“free from any discrimination based on age”) drives

Webster’s Third New International Dictionary 905

(def. 4(a)(2)) (1976); ...

the point home. And' as for “discrimination,” we

assume that it carries its ‘normal definition,’ which is

‘differential treatment.” Jackson v. Birmingham Bd.

of Ed., 544 U.S. 167, 174 (2005).

“This-is an a fortiori case. There is no mere risk

that [New York State] will repeat its allegedly

wrongful conduct; it has already done so .... The

gravamen of petitioner's complaint is that [ he is]

disadvantaged in [his] efforts to obtain [] contracts.”

Northeastern Fla. Chapter of the Associated Gen.

Contractors of America v. Jacksonville, 508 U.S. 656

(1993)

Over the course of this case, the Petitioner has

continued to bid for public contracts funded with state

monies, each utilized some version of a state-imposed

M/WBE technical framework, (see Petitioner’s

Petition for Rehearing (Appeal Dkt. 52 at 32)) May any

concern about the plaintiffs ’awareness’ of New York’s

policies be resolved in harmony with its onset.

To the extent the Second Circuit is concerned with

the temporal nature of ‘awareness’ and the legal

significance of ‘being aware’ of certain policy, this

concern advances a significant theme of worth.

Exposure to M/WBE policies of the New York

State can and does affect a decisionmaker’s future

liability.

Therefore, it is not a wild prerogative to demand

policy documents and technical frameworks, “survive

a daunting two-step examination known in our cases

as “strict scrutiny.” Adarand Constructors, Inc. v:

Pena, 515 U. S. 200, 227 (1995). Under [this] standard

we ask, first, whether the racial classification is used

to “further compelling governmental interests.”

Grutter v. Bollinger, 539 U. S. 306, 326 (2003). Second,

if so, we ask whether the government’s use of race is

“narrowly

tailored”—meaning

“necessary”—to

achieve that interest. Fisher v. University of Tex. at

Austin, 570 U. S. 297,- 311- 312 (2013) (Fisher I )”

Students for Fair Admissions, Inc. v. President and

Fellows of Harvard College, 600 U.S.

(2023)

The very existence of “[classifications based on

race carry a danger of stigmatic harm. Unless they are

strictly reserved for remedial settings, they may in

fact promote notions of racial inferiority and lead to a

politics of racial hostility. See University of California

Regents v. Bakke, 438 U.S., at 298, 98 S.Ct., at 2752

(opinion of Powell, J.) ("[P]referential programs may

only reinforce common stereotypes holding that

certain groups are unable to achieve success without

special protection based on a factor having no relation

to individual worth"). We thus reaffirm the view

expressed by the plurality in Wygant that the

standard of review under the Equal Protection Clause

is not dependent on the race of those burdened or

benefited by a particular classification. Wygant, 476

U.S., at 279-280, 106 S.Ct., at 1849-1850; id., at 285286, 106 S.Ct., at 1852-1853 (O’CONNOR, J.,

concurring in part and concurring in judgment). See

also San Antonio Independent School Dist. v.

Rodriguez, 411 U.S. 1, 105, 93 S. Ct. 1278,1333, 36 L.

Ed. 2d 16 (1973)” Richmond v. J. A. Croson Co., 488

U. S. 469, 493 (1989) (plurality opinion)

Lastly, the Second Circuit believes that for some

claims, “such “generalized grievances about the

conduct of Government” are not generally sufficient to

confer standing. Schlesinger v. Reservists Comm, to

Stop the War, 418 U.S. 208, 217 (1974).” (Appeals Dkt.

45.1 p. 5)

The ‘traceability’ standard of Lujan, Twombley and

Iqbal remain good law “...a causal relationship

between the injury and the challenged conduct, by

which we mean that the injury "fairly can be traced to

the challenged action of the defendant," and has not

resulted "from the independent action of some third

party not before the' court," Simon v. Eastern

Kentucky Welfare Rights Organization, 426 U. S. 26,

41-42 (1976); see Lujan v. Defenders of Wildlife, 504

U. S. 555, 560 (1992); see Northeastern Fla. Chapter

of the Associated Gen. Contractors of America v.

Jacksonville, 508 U.S. 656 (1993); see Ashcroft v.

Iqbal, 556 U.S. 662 (2009); see Twombly, 550 U. S. 544

The Petitioner has shown with ‘direct traceability’

‘that [a protected trait] was a but-for cause of

differential treatment.’ A personal substantive and

procedural constitutional ‘injury-in-fact’.

See

Petitioner’s FAC (ECF 31 at 18-25)

At the minimum, there is an “importance to

organized society that procedural due process be

observed, see Boddie v. Connecticut, 401 U.S. 371

(1971); Anti-Fascist Committee v. McGrath, 341 U.S.

at 171-172

Without Due Process, the NYS DOS unlawfully

“operates to the disadvantage of some suspect class or

impinges upon a fundamental right explicitly or

implicitly protected by the Constitution, [it] thereby

require [s] strict judicial scrutiny. If not, the [NYS

DOS] scheme must still be examined to determine

whether, it rationally furthers some legitimate,

articulated state purpose, and therefore does not

constitute an invidious discrimination in violation of

the Equal Protection Clause of the Fourteenth

Amendment.” San Antonio Independent School

District v. Rodriguez, 411 U.S. 1 (1973)

“A plaintiff challenging an ongoing race-conscious

program and seeking forward-looking relief need only

show "the inability to compete on an equal footing."

Northeastern Fla.

Chapter, Associated Gen.

Contractors of America v. Jacksonville, 508 U. S. 656,

666. (quoting Texas v. Lesage, 528 U.S. 18 (1999))

“if they show that [a protected trait] was a but-for

cause of differential treatment in an employment

decision ..., plaintiffs can seek ... forward-looking

relief ... in the first instance [a plaintiff] succeeds in

showing that [a statue] was violated.” Babb v. Wilkie,

589 U.S.-399, 413 (2020)

4. The Petitioner has Articulated a

Deprivation of Due Process and Equal

Protection Rights which are Redressable by

Requested Relief

In contrast to the Second Circuit’s Summary

Judgment (Dkt. 45.1), it is not incumbent upon the

Petitioner to prove the otherwise guaranteed award of

a ‘discrete governmental decision’ if not but-for

‘differential treatment.’

Instead, only that a ‘constitutionally protected

trait’ was a but-for cause of ‘differential treatment.’

see Babb v. Wilkie, 589 U.S. 399, 413 (2020)

Here, the Petitioner, would not have a been

‘deprived of Fourteenth Amendment Due Process and

Equal Protection rights’ ‘if-not-but-for’ overly broad

‘state-action.’ This being, the erroneous publication,

inaccurate proliferation and unconstitutional use of

race and sex conscious programs, which has

‘subjected’ [ the Petitioner] to a ‘deprivation of right’

‘on the basis’ of his race and sex, ‘causing’ ‘the inability

to compete on an equal footing.’

State-actions have also, ‘caused’ a ‘taint’ to the

personal and personnel actions of third parties,

further ‘causing’ others to ‘deprivfe] [the Petitioner] of

[] rights, privileges, or immunities secured by the

Constitution and laws.’ (see 42 U.S.C. §1983)

Additionally, the Petitioner has made clear, not

only of his intentions to “bid, in the relatively near

future, on another Government contract,” Adarand

Constructors, Inc. v. Pena, 515 U.S. 200 (1995) but,

shows he has continued to do so during the duration

of these proceedings, (See Petitioner’s Petition for

Rehearing (Dkt. 52 at 32) enduring a continual and

patterned deprivation of rights.

The Petitioner frequently contends with the same,

‘concrete and particularized’ ‘deprivation’ of ‘Due

Process’ and ‘Equal Protection’ rights, ‘directly

causing’ an ‘inability to compete on equal footing’

because of technical grades distributed ‘on the basis’

of race and sex. A ‘deprivation,’ which is ‘directly

traceable’ to a ‘state-actor’, via

specific bid

solicitations on record, but also, a flood of official state

publications and overly broad agency actions.

“Currently

and

ceaselessly

contradicting

Constitutional Liberties [and civil Property], officers

remain in noncompliance with Due Process as

protected by the Fifth and Fourteenth Amendments

...For this I pray to the court for adjudication in

regards to the defendants’ actions, and ask for

certification of any just damages.” Petitioner FAC

(ECF 31) at 10.

The . Petitioner has also itemized certain

‘deprivations’ actionable under Title 42 U.S.C. § 1983,

describing only ongoing and rolling causes of action.

See Petitioner FAC (ECF 31 at 18-21.)

“[T]he elements and prerequisites for recovery of

damages appropriate to compensate injuries caused

by the deprivation of one constitutional right are not

necessarily appropriate to compensate injuries caused

by the deprivation of another. As we have said...,

these issues must be considered with reference to the

nature of the interests protected by the particular

constitutional right in question” Carey, 435 U.S. at

264-65, 98 S. Ct. at 1053.

The ‘close’ nature of these ‘injuries-in-fact,’ the

deprivation of ‘personal rights’, surpasses the

‘concrete and particular’ standard of Spokeo, Inc. v.

Robins (2016). see FAC Pp. 25-27 (ECF 31) (Due

Process failures); FAC Pp. 31-48 (ECF 31) (Equal

Footing)

More pertinent to this Court’s review though, the

second prong of Lujan (1992) ‘traceability,’ is also

satisfied, see The Declaration of Cathrine Traina

(ECF 22); see Petitioner’s Petition for Rehearing

(Appeals Dkt. 52 at 32); see FAC (ECF 31)

“[H]e may bring suit for prospective injunctive

relief against an individual state official ..., see Ex

Parte Young, 209 U.S. 123 (1908) (holding that state

officials are not immune under the Eleventh

Amendment from official-capacity claims seeking

prospective injunctive or declaratory relief)” see Order

(ECF 8), Judge Paul A. Engelmayer

“A complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that

is plausible on its face.:. [F]actual content that allows

the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged ...”

Ashcroft v. Iqbal, 556 U.S. 662 (2009)

The Petitioner’s injuries-in-fact are real, actual,

concrete, particular and directly traceable to the

adverse actions of NYS officials.

Lastly, the ability for requested declaratory relief

(28 U.S.C § 2201) and compensatory relief (Edelman

v. Jordan, 415 U.S. 651 (1974)) to redress asserted

injuries, in law and equity, clearly fulfills the

‘redressability’ prong of standing.

“[A]ny Court of the United States, upon the filing

of an appropriate pleading, may declare the rights and

other legal relations of any interested party seeking

such declaration, whether or not further relief is or

could be sought. Any such declaration shall have the

force and effect of a final judgment or decree and shall

be reviewable as such.” 28 USC § 2201 “Specific

performance is a contractual remedy in which a

court orders a party to fulfill their obligations as

closely as possible to what was promised in

the contract, rather than simply paying damages for

failing to do so. (definition of “specific performance,”2)

Therefore, the Petitioner holds Article III

standing.

Equitable Redressability

The Second Circuit misapplies the substantive

precedent of Babb v. Wilkie (2020), in regards to

‘traceability.’ This remains the main contention of this

petition but, “[b] ecause [Panel B of the Second Circuit]

2 law.cornell.edu/wex/specificperformance

conclude [d] that the district court properly dismissed

this action for lack of jurisdiction on standing grounds,

[they did] not reach the additional issues [the

Petitioner] raises on appeal.” (Appeal Dkt. 45.1)

Since “redressability’ remains a consideration for

Certiorari, it will be briefly discussed.

The Opinion and Order (ECF 92) (Dkt. 2) of the

District Court misapplies the ‘redressability’

standards of Ex 'Parte Young (1908) and Edelman v.

Jordan (1974).

“A court may dismiss a complaint only if it is clear

that no relief could be granted under any set of facts

that could be proved consistent with the allegations.”

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)

"... A State shall not be immune under the

Eleventh Amendment of the Constitution of the

United States from suit in Federal court for a violation

of... title VI of the Civil Rights Act of 1964 [42 U.S.C.

2000d et seq.], or the provisions of any other Federal

statute prohibiting discrimination by recipients of

Federal financial assistance ... In a suit against a

State for a violation of a statute referred to [herein],

remedies (including remedies both at law and in

equity) are available for such a violation to the same

extent as such remedies are available for such a

violation in the suit against any public or private

entity other than a State.” 42 U.S.C. 2000d-7

‘[J]udicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution,”

(ARTICLE III sec II) this “Court [has] the power to

grant remedies other than monetary damages. These

remedies include injunctions, writs, or specific perfor

mance among others.” (definition; “court of equity” 3)

The District Court’s Order (Dkt.2) claims “the

operative complaint, seeks only monetary relief from

defendants and only in their official capacities.” (ECF

92 p.13) (Appeal Dkt. 2 p.13)

The Petitioner maintains this is erroneous, “For

the deprivation inflected upon me ... I claim civil

injury, harm and damage, and pray for declaratory

and compensatory relief ... Similarly [he states],

descriptions of instances of proximate causes with

grounds for redress and reasoning for compensatory

and declaratory relief.” (ECF 31 at 21)

Technical pleading standards are clear, FRCP

Rule 8(d)(2) and 8(d)(3) are explicit. Pleadings are

‘separate’ and ‘severable,’ “regardless of consistency.”

The term ‘compensatory relief includes certain

allowable ‘equitable relief.’ “It is firmly established

that a district court's subject-matter jurisdiction is not

defeated by the absence of a valid (as opposed to

arguable) cause of action, see, e. g., Bell v. Hood, 327

U. S. 678, 682. Subject-matter jurisdiction exists if the

right to recover will be sustained under one reading of

the Constitution and laws and defeated under

another, id.,, at 685, unless the claim clearly appears

to be immaterial, wholly insubstantial and frivolous,

or otherwise so devoid of merit as not to involve a

3 law. Cornell. edu/wex/court_of_equity

federal controversy, see, e. g., Oneida Indian Nation

ofN. Y v. County of Oneida, 414 U. S. 661, 666.” Steel

Co. v. Citizens for Better Environment, 523 U.S. 83

(1998)

‘Compensatory equitable restitution’ is separate

and distinct from ‘compensatory damages.’ See

TransUnion LLC v. Ramirez, 594 U.S.

(2021)

That being said, “[s]ince [the] decision in Carey v.

Piphus, 435 U. S. 247 (1978), several of the Courts of

Appeals have concluded that damages awards based

on the abstract value of constitutional rights are

proper, at least as long as the right in question is

substantive. E.g., Bell v. Little Axe Independent

School Dist. No. 70, 66 F.2d 1391 (CA10 1985);

Herrera v. Valentine, 653 F.2d 1220, 1227-1229 (CA8

1981), Konczak v. Tyrrell, 603 F.2d 13, 17 (CA7 1979)

(dicta), cert, denied, 444 U.S. 1016 (1980). See also

Love, Damages: A Remedy for the Violation of

Constitutional Rights, 67 Calif.L.Rev. 1242 (1979).”

Memphis Comm. Sch. Dist. v. Stachura, 477 U.S. 299

(1986)

“In Goldberg v. Kelly, 397 U.S. 254 (1970), the

fiscal consequences to state treasuries Q were the

necessary result of compliance with decrees which by

their terms were prospective in nature... shape[ing]

their official conduct to the mandate of the Court's

decrees...Such an ancillary effect on the state

treasury is a permissible and often an inevitable

consequence of the principle announced in Ex Parte

Young, supra.” Edelman v. Jordan, 415 U.S. 651

(1974).

"... The award in this case, held that it was

permissible because it was in the form of "equitable

restitution" instead of damages” TransUnion LLC v.

Ramirez, 594 U.S.

(2021) Even a simple

accounting for ‘accrual of harm,’ is “a federal court

conclusion that ... would “amount to a significant

increase in the likelihood” that [ a plaintiff ] “would

obtain relief that directly redresses the injury

suffered.” Utah v. Evans, 536 U. S. 452, 464.

There exists ‘actual relief of prospective nature,

which, in order to ‘compensate’ a deprivation of rights

‘equitably,’ may require expenditure of state monies.

Even this Court’s ruling in Babb v. Wilkie (2020)

does not ban compensatory damages outright, “If an

applicant incurs costs to prepare for the

discriminatorily administered Q test, a damages

award compensating for such out-of-pocket expenses

could restore the applicant to the “position tha[t] he or

she would have enjoyed absent discrimination.”

(Justice Sotomayor concurring) Babb v. Wilkie, 589

U.S. 399, 4.13 (2020) see also TransUnion LLC v.

Ramirez, 594 U.S.

(2021)

In closing, the following are specific examples of

possible ‘equitable restitution’ which could ...

resemble more closely [a] monetary award against

the State itself, Ford Motor Co. v. Department of

Treasury,” Edelman v. Jordan, 415 U.S. 651 (1974),

but yet, they are prospective equitable relief;

Specific Performance

A judicial decree can demand all future official

state documents comply with state laws on its

face.

Constructive Trust

A judicial decree can demand the creation of a

group of individuals or a pool of monies

dedicated to the continued maintenance of

compliance.

Accounting

A judicial decree can establish discovery to

determine the distinctions and accrual of

injuries.

Rescission

A judicial decree can revoke or stay overly

broad policies temporarily or indefinitely.

Rectification

A judicial decree can demand any pending

solicitation, contract or grant be amended to

comply with lawful standards.

Subrogation

A judicial decree can certify the right to sue

Restitution

A judicial decree can establish a procedural or

substantive status quo

Right to an Effective Remedy

A judicial decree can declare a plaintiff rights

or deprivation thereof.

REASONS FOR GRANTING WRIT

1. Rule 10: Considerations Governing Review

on Certiorari

a. A United States court of appeals has entered

a decision in conflict with the decision of

another United States court of appeals on

the same important matter; ... or has so far

departed from the accepted and usual

course

of judicial

proceedings,

sanctioned such a departure by a lower

court, as to call for an exercise of this Court’s

supervisory power;

Here the Second Circuit splits from the Ninth

Circuit and Eight Circuit;

“In Reynaga Hernandez v. Skinner, 969 F.3d 930,

941-42 (9th Cir. 2020), the Ninth Circuit discussed, for

the first time, the minimum level of involvement

needed for. § 1983 liability under the integral

participant doctrine. An actor may be deemed to have

caused a constitutional violation under the “integral

participant doctrine,” “only if (1) the defendant knew

about and acquiesced in the constitutionally defective

conduct as part of a common plan with those whose

conduct constituted the violation, or (2) the defendant

set in motion a series of acts by others which the

defendant knew or reasonably should have known

would cause others to inflict the constitutional

injury.” Peck v. Montoya, 51 F.4th 877, 891 (9th Cir.

2022); .

“Nominal damages must be awarded if the plaintiff

proves that his or her constitutional rights have been

violated, see Cummings v. Connell, 402 F.3d 936, 94246 (9th Cir. 2005); Schneider v. County of San Diego,

285 F.3d 784, 794-95 (9th Cir. 2002); Trevino v. Gates,

99 F.3d 911, 922 (9th Cir. 1996); Wilks v. Reyes, 5 F.3d

412, 416 (9th Cir. 1993); Draper v. Coombs, 792 F.2d

915, 921-22 (9th Cir. 1986). See also Guy v. City of San

Diego, 608 F.3d 582, 587 (9th Cir. 2010); MahachWatkins v. Depee, 593 F.3d 1054,1059 (9th Cir. 2010);

Carey v. Piphus, 435 U.S. 247, 266- 67 (1978)

Presumed damages are appropriate when there is a

great likelihood of injury coupled with great difficulty

in proving damages.” Trevino v. Gates, 99 F.3d 911,

921 (9th Cir. 1996) (citing Carey v. Piphus, 435 U.S.

247, 263 (1978)).” Section 1983 Outline: United States

Court of Appeals for the Ninth Circuit Office of Staff

Attorneys by: Kent Brintnall

“In order to fully vindicate the challenged

guarantees and deter future conduct that threaten

their practical significance, full compensation is

necessary. To secure complete satisfaction, damage

awards must take account of the intrinsic dimension

that envelopes each substantive constitutional right.

This concept is not a novel one. For example, the

federal courts have traditionally compensated the

intangible constitutional loss that results when a

party's voting rights are infringed. See generally Lane

v. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L. Ed. 1281

(1939); Nixon v. Condon, 286 U.S. 73 (1932); Nixon v.

Herndon, 273 U.S. 536, 47 S. Ct. 446, 71 L. Ed. 759

(1927); Wayne v. Venable, 260 F. 64 (8th Cir. 1919).

“Joann Yellow Bird v. Clifford Valentine 653 F.2d

1220 (8th Cir. 1981)

an important question of federal law ... that

conflicts with relevant decisions of this Court.

The Second Circuit misapplies Bab b v. Wilke

(2020) and Texas v. Lesage, 528 U.S. 18 (1999)

The phrase “free from” means “untainted,” and

“any” underscores that phrase’s scope. As for “discrim

ination,” its “normal definition” is “differential

treatment.” Jackson v. Birmingham Bd. of Ed., 544

U.S. 167, 174. And “[i]n common talk, the phrase

*based on’ ■ indicates a but-for causal relation

ship,” Safeco Ins. Co. of America v. Burr, 551 U.S. 47,

63, thus indicating that [a protected trait] must be a

but-for cause of the discrimination alleged. The

remaining phrase—“shall be made”—denotes a duty,

emphasizing the importance of avoiding the taint.

Pp. 4-5.... Thus, [a protected trait] must be a but-for

cause of discrimination but not the personnel action

itself. Second, “free from any discrimination” is an

adverbial phrase that modifies the verb “made” and

describes how a personnel action must be “made,”

namely, in a way that is not tainted by differential

treatment based on [a protected trait]. Thus, the

straightforward meaning of [] terms is that the statute

does not require proof that an employment decision

would have turned out differently if [a protected trait]

not been taken into account. Instead, if [a protected

trait] is a factor in an employment decision, the

statute has been violated.” Babb v. Wilkie, 589 U.S.

(2020) “a plaintiff challenging an ongoing race

conscious program and seeking forward-looking relief

need only show "the inability to compete on an equal

footing." Texas v. Lesage, 528 U.S. 18 (1999)

Although unrelated in reasoning, The Second

Circuit’s Summary Judgment (Dkt. 45.1) reaffirms

the District Court’s view that the term ‘compensatory

relief excludes the equitable redress allowed under Ex

Parte Young.

Lujan clarifies that at the pleading stage, the

Petitioner is required to “adduce facts” that “permit

redressability,” but “the nature and extent” of these

facts must only be “averred (at the summary stage),”

while later “proven (at the trial stage).” Lujan, 504 U.

S., at 560

“At the pleading stage, general factual allegations

of injury resulting from the defendant's conduct may

suffice, for on a motion to dismiss we "presum [e] that

general allegations embrace those specific facts that

are necessary to support the claim." National Wildlife

Federation, supra, at 889... When the suit is one

challenging the legality of government action or

inaction, the nature and extent of facts that must be

averred (at the summary judgment stage) but proved

(at the trial stage) in order to establish standing

depends considerably upon whether the plaintiff is

himself an object of the action (or forgone action) at

issue (Lujan' v. Defenders of Wildlife, 504 U.S. 561

(1992) ... one or more of the essential elements of

standing "depends on the unfettered choices made by

independent actors not before the courts and whose

exercise of broad and legitimate discretion the courts

cannot presume either to control or to predict,"

ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989)

(opinion of KENNEDY, J.);

“We hold only that, for the purpose of Article III

standing, nominal damages provide the necessary

redress for a completed violation of a legal right.”

Because, “every violation [of a right] imports

damage,” Webb, 29 F. Cas., at 509, nominal damages

can redress 0 injury even if he cannot or chooses not

to quantify that harm in economic terms.”

Uzuegbunam v. Preczewski, 592 U.S.

(2021)

2. National Importance

“A central purpose of the Fourteenth Amendment

is to further the national goal of equal opportunity for

all our citizens. In order to achieve that goal we must

learn from our past mistakes, but I believe the

Constitution requires us to evaluate our policy

decisions—including those that govern the relation

ships among different racial and ethnic groups—

primarily by studying their probable impact on the

future.” City of Richmond v. J. A. Croson Co., 488 U.S.

469 (1989)

“Eliminating racial discrimination means elimina

ting all of it. And the Equal Protection Clause, we

have accordingly held, applies “without regard to any

differences of race, of color, or of nationality”—it is

“universal in [its] application.” Yick Wo, 118 U.S., at

369. For “[t]he guarantee of equal protection cannot

mean one thing when applied to one individual and

something else when applied to a person of another

color.” Regents of Univ, of Cal. v. Bakke, 438 U.S. 265,

289-290 (1978) (opinion of Powell, J.). “If both are not

accorded the same protection, then it is not equal.” Id.,

at 290.

... Any exception to the Constitution ’s demand for

equal protection must survive a daunting two-step

examination known in our cases as “strict

scrutiny.” Adarand Constructors, Inc. v. Pena, 515

U.S. 200, 227 (1995). Under that standard we ask,

first, whether the racial classification is used to

“further compelling governmental interests.” Grutter

v. Bollinger, 539 U.S. 306, 326 (2003). Second, if so, we

ask whether the government’s use of race is “narrowly

tailored”—meaning “necessary”—to achieve that

interest. Fisher v. University of Tex. at Austin, 570

U.S. 297, 311—312 (2013) (Fisher I).” Students for Fair

Admissions, Inc. v. President and Fellows of Harvard

College, 600 U.S.

(2023)

VI. CONCLUSION

This Court should grant certiorari.

The relevant dispositive decision in Summary

Order (Dkt 45.1) is unaligned with this Court’s

precedent in Babb v. Wilkie, 589 U.S.

(2020), as

well as incongruent with; Northeastern Fla. Chapter

of the Associated Gen. Contractors of America v.

Jacksonville, 508 U.S. 656 (1993), Texas v. Lesage, 528

U.S. 18 (1999); Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995); Students for Fair Admissions,

Inc. v. President and Fellows of Harvard College, 600

U.S.

(2023), Village of Arlington Heights v.

Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977),

Carey v. Piphus, 435 U.S. 247 (1978); Hishon v. King

& Spalding, 467 U. S. 69, 73 (1984), City of Richmond

v. J. A. Croson Co., 488 U.S. 469 (1989); Uzuegbunam

v. Preczewski, 592 U.S.

(2021); Regents of Univ, of

Cal. v. Bakke, 438 U. S. 265 (1978) and Trans Union

LLC v. Ramirez, 594 U.S.

(2021).

Specifically, the Second Circuit misapplies the

‘traceability’ elements of Babb v Wilke (2020) (see

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), as

it pertains to the Petitioner’s §1983 claim. Instead of

proving discrimination caused a ‘loss of contract,’ “a

plaintiff challenging an ongoing race-conscious

program and seeking forward-looking relief need only

show "the inability to compete on an equal footing."

see Northeastern Fla. Chapter, Associated Gen.

Contractors of America v. Jacksonville, 508 U. S. 656,

666. (1993); Texas v. Lesage, 528 U.S. 18 (1999); City

of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989);

Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 174

(2005)

“[Plaintiffs ... if they show that [ a protected trait]

was a but-for cause of differential treatment, ...

plaintiffs can seek Q forward-looking relief. Determ

ining what ‘ relief, if any, is appropriate... [is

discerned] in the first instance if [ the Petitioner]

succeeds, in-showing that [ a law] was violated. Babb

v. Wilkie, 589 U.S.

(2020)

“A court may dismiss a complaint only if it is clear

that no relief could be granted under any set of facts

that could be proved consistent with the allegations.”

Conley v. Gibson, 355 U.S. 45-46 (1957) (see also

Hishon v. King & Spalding, 467 U. S. 69, 73 (1984))

VII: PRAYER FOR RELIEF

The Petitioner, Joseph W. Wade, reverentially

requests the Court bestow the following relief;

1. Grant Certiorari,

2. Vacate and Reverse Summary Order (Dkt.

45.1) from the Second Circuit,

3. Remand this case back to the Second Circuit

with an Order to

(a) Vacate and Reverse the District Court’s

Opinion and Order (ECF 92) and Clerk’s

Judgment (ECF 93) and

(b) Remand this case back to the Southern

District of New York with an Order to

(i) Grant the Petitioner Leave to

Amend his complaint.

Respectfully Submitted

August 20, 2025

-....

Joseph W. Wade

Pro se Petitioner

9 Pinehurst Ave. Suite 2c

New York, NY 10033

Phone: (201) 983-3009

owlcontract@gmail.com

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.