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17-11888
Case Docket No. 17-12134
Case Docket No. 17-12376
_________________________________________________________
NAUSHEEN ZAINULABEDDIN
APPELLANT
v.
________________________________________________________
TIME-SENSITIVE
PENDING APPEAL
APPELLANT
Nausheen Zainulabeddin
4409 West Varn Avenue
Tampa, FL 33616
nausheenkhawaja@gmail.com
Pro Se
May 1, 2018
Nausheen Zainulabeddin v. University of South Florida Board of Trustees,
Appeal No. 17-11888, Appeal No. 17-12134 and Appeal no. 17-12376
26.1, Appellant, Pro Se hereby certifies that following persons and entities
Judge:
Plaintiff/Appellant:
Defendant/Appellee:
Trustees
Adamchak, Joanne
Burford, Roberta
C-1 of 5
Cook, Marissa
Estevez, Michelle, MD
Kumar, Ambuj, MD
Kumar, Mudra, MD
Liggett, Stephen, MD
Lockwood, Charles, MD
Lynch, Catherine, MD
Monroe, Alicia, MD
Roth, Debohrah, MD
Schultz, Daniel
Sinnott, John, MD
C-2 of 5
Skalkos, Olga, PhD
Stevenson, Frazier, MD
Stock, Sandra, MD
Valeriano, Joanne, MD
Zwygart, Kira, MD
Financial Interest
Aga Khan Education Board: Tuition Reimbursement
damages
C-3 of 5
U.S. Department of Education, Federal Student Loan Servicing
collateral damages
Other Interest:
Office.
C-4 of 5
Velez, Melanie: OCR office Director
________________________________
Nausheen Zainulabeddin
Nausheen Zainulabeddin
4409 West Varn Avenue
Tampa, FL 33616
nausheenkhawaja@gmail.com
C-5 of 5
ABBREVIATIONS
ABBREVIATIONS MEANING
USF MCOM University of South Florida Morsani
College of Medicine
US DOE OCR United States Department of
Education, Office of Civil Rights
APRC Academic Performance Review
Committee
ADAAA Title II of Americans Disabilities
Act 2008 Amendment Act
EBCR II Course Evidence Based Clinical Reasoning
II Course
CBSE Comprehensive Basic Science
Exam
NBME DS National Board Medical Examiners
Disability Services
USMLE United States Medical Licensing
Exam
ECFMG Education Commission for Foreign
Medical Graduates
AY Academic Year
RY Repeat Year
MPN Federal Loan Servicing Master
Promissory Note
BALS Tampa Bay Area Legal Assistance
HEA Higher Education Act of 1965
FR Federal Register
TIME-SENSITIVE
PENDING APPEAL
injunction. Appellant was represented by her former counsel, Mr. Apps prior
1. Appellant was dismissed from USF MCOM on March 14, 2013. And
to 1454).
1
“A” refers to pages of Appendices of Appellant’s Initial brief.
2
2. She pleaded with former and new Vice Dean of USF MCOM that
1774).
4. Before filing the lawsuit on 1/22/16, her former counsel sent two
3
5. Her complaint was transferred Florida Middle District on 3/17/16;
this court. On 10/31/17, the court granted her amended brief seeking
Fallback statute. Her motion to file reply brief out of time was
granted on 3/1/18.
4
7. Appellant filed a complaint to FCC on 12/13/17 against US DOE
court. Her extension to file a motion was accepted at FCC for this
instant motion.
pauperis application.
2) USCA for the Federal Circuit: The court ruled on the merits of the
2).
2
I.B refers to Appellant’s Amended Initial Brief filed on October 31, 2017.
5
ARGUMENT
legal issues, in this case, is self-evident from the extensive briefs and
pleadings filed and careful deliberation and time were taken by this court.
LEGAL STANDARD
1301, 1306 (11th Cir. 1998). In Siegel v. LePore, the court stated it must
Recent court rulings have adjudged that eBay’s four favors as the
6
Mexican Grill, Inc. 131 S. Ct. 2013 (2011). The eBay test omits success as a
legal proceedings with the intent to play “fast and loose with the court.”
Middleton v. Caterpillar Indus, Inc., 979 So. 2d 53, 60 (Ala. 2007). In such
suits to enforce Section 504 of the Rehabilitation Act of 1973, 28 U.S.C 295
3
Gergen, Mark P. and Golden, John M. and Smith, Henry E., The Supreme Court's
Accidental Revolution? The Test for Permanent Injunctions (March 2012). Columbia
Law Review, Vol. 112, No. 2, 2012; U of Texas Law, Public Law Research Paper No.
220. Available at SSRN: https://ssrn.com/abstract=2046149.
***Henceforth, referred as “Accidental Revolution?”
7
at the Federal Court. Title II of ADA may also be enforced through private
suits against public entities. 42 USC 12133. Congress has abrogated the
a party or the court sua sponte. Davis v. Wakelee, 156 U.S. 680, 689 (1895).
had adopted previously. The circuit court may apply judicial estoppel when
two elements are satisfied: (1) the litigant took a position under oath in the
proceeding that was inconsistent with a pursuit of the civil lawsuit, and (2)
8
1. APRC and Dean’s Appeal in 2013 was a “sham”
and told faculty to withhold giving plaintiff her past doctoring evaluations
2013, to find any reason to fail her; even if they had to change their standard
policy and create a new one (Figure 3-6, 10, 11). Her ultimate course grades
for EBCR II and Doctoring II were determined by Specter and not the course
controlled the content of her written Appeals and discussions during APRC
9
medical school and without his influence; her request to NBME DS was
14).
10
11
\
12
13
She was dissuaded from pursuing her internal grievance process after
dismissal and retaliated for exercising her right (Exhibit 15). She was given
sought tutoring for the first time as a mandatory requirement from Specter
the remediation required her to buy new third-year textbooks and tested
content from the third year (A-1632, Exhibit 15). For EBCR II remediation,
she was tested differently from her peers; i.e., tested in both EBCR I and II,
Specter controlled her appeals and threatened that she would not be
able to appeal; if the appeal included contents that would expose his gross
former Dean and Vice Dean. Neither addressed her complaint and, resigned
3. Mockery of Justice
1736). The counsels omitted relevant proceedings, i.e. petition in 2014 and
14
US DOE OCR investigation from the district court and put forth “sham
medical student can file Petition for Readmission after one year of their
original dismissal. Before filing the petition, she received assurance from the
new Vice Dean, Dr. Bognar that Specter will have no involvement in her
and Doctoring II. After consultation with Gen. Counsel; Dr. Bognar granted
her request to the course appeals in her Petition (I.B. p. 34-40, Exhibit 2, 3,
5, 15, 16).
proceeding, the first proceeding may need not have been a complete case
Nat’l Envelope Corp., 395 F. 3d 99, 103 (2d Cir. 2010) (noting that
agencies....”).
15
An omission of civil claims [i.e., acts from 2013-2015] in court
7/2/13. Filed an OCR complaint on March 20, 2014 when the complaint was
not addressed. Pending appeal; she also consulted US DOE OCR regarding
filing her petition and was given affirmation (Figure 7). After the
unsuccessful petition, she filed her second complaint which was opened for
4
R.B refers to Appellant’s Reply Brief filed on 12/28/17.
16
5. Suppressed evidence
her rights and forgo statute of limitation. In Mount Healthy City Sch. Dist.
Bd. Of Educ. v. Doyle, the court held that if the plaintiff can establish that his
17
protected conduct was motivating factor behind his dismissal, the burden
shifts to Defendants. 429 U.S. 274 (1977). Defendant only disclosed the
sham appeals in 2013 to the court and strategically omitted and suppressed
acts from 2014-2015 from the court, i.e. petition and USE DOE OCR
(1) She was quickly reinstated after discovering the error in 2/8/12 that
5
Appellant has provided the court with records from USF Counseling Center and HELPS
Counseling and surmountable traces of e-mails supporting the presence of error A-1984
to 1998; I.B. p. 8-23).
18
1698-1707). Appellant has provided other relevant records from USF
1998).
(2) She was stated she was passing and participated in third-year
e-mail that she failed Doctoring II on 3/12/13 PM, and failed EBCR II
19
afforded opportunity to appeal her EBCR II and Doctoring II grades
proceedings and rendering the decision for her Petition [standard 7-10
Petition filing date was changed arbitrarily that was burdensome and
(4) Defendant denied Early Case Resolution offered by US DOE OCR for
OCR Case no. 04-14-2487 for dilatory motive (i.e., standard six-
(5) Defendant withheld from the court of relevant acts from June 2013 to
Dec. 2015, i.e., internal complaint, Petition for Readmission and OCR
its cake and eat it too”. Duplan Corp. v. Deering Miliken, Inc., 397 F.
20
Supp. 1146, 1177 (D.S.C. 1974). Judicial estoppel protects the sanctity of
knowing omissions. The deterrence is rooted in the idea that if the party
realizes that he will not be liable for his wrongful acts in later proceedings
misrepresentation and, lie. Thus, he will most likely not state the whole truth
with disabling conditions would lose their day in court because they would
not be able to communicate with the court or to understand fully the case
21
and its consequences. Title II prohibits discrimination against disabled
individuals in public services. The Federal Courts must also meet the same
the paraplegic on a wheel chair, could not access court system since there
were no elevators. 541 U.S. 509 (2004). In this case, Appellant was denied
equal justice and fair treatment when her mental disability was exacerbated
and indigent status prevented her from mounting the case itself, besides
As every trial judge knows, the task of determining the correct legal
outcome is rendered almost impossible without effective counsel.
Courts have neither the time nor the capacity to be both litigants and
impartial judges on any issue of genuine complexity. As recognized
by the Lassiter dissent, “By intimidation, inarticulateness or
confusion, a [litigant] can lose forever” the right she sought to protect.
which she bestowed her trust to her counsel to pursue her cause of action.
6
Appellant’s father had an emergency heart surgery a week before her case was filed on
1/22/16. In such stressful circumstances, she relied on her counsel to pursue her action.
22
After court ruled in favor of Plaintiff in Motion to Dismiss; plaintiff asked
her counsel if there was a court remedy in which she can be reinstated while
her case is pending. Her counsel replied, “there is no such thing like that in
U.S. courts.” Appellant did not have experience in law; unfortunately, she
After proceeding Pro Se, and taking some required legal courses in
her current program; she found out that her counsel withheld important court
withheld court procedure that would have fixed the issue (See Exhibit 2,
7
Dan B. Dobbs, Dobbs Law of Remedies: Damages-Equity Restitution Section 2.5at 123
(2d ed. 1993).
23
appropriate8. [w]here the defendant has wrongfully interfered with the
claimant’s rights as an owner of property, and intends to continue that
interference, the claimant is prima facie entitled to an injunction9....[a]
prohibitory injunction is the appropriate remedy to prevent the
continuation or repetition of a tort”10.
-
She was denied legal assistance from BALS from 2013 to 2015 (A-
1739- 1746; Exhibit 13). Her former counsel accepted to represent based on
something she could not afford after the case was dismissed. Thus, she
proceeded pro se for her appeals. She also received an e-mail from ECFMG
that her school lost eligibility to practice in USA and Canada., which will be
effective 1/1/18 (A-1830-1831; Exhibit 9). She was advised to seek transfer
Adamow. Thus, since filing appeals to this court were time sensitive; she
requested her school for an extension to take USMLE Step 1, for the
purposes similar to transfer, however she stated if it is not approved, she will
8
11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure Section 2948, at 131 (2d ed. 1995).
9
David Bean & Isabel Parry, Injunctions 2.11 at 18 (10th ed. 2010
10
Andrew Burrows, Remedies for Torts and Breach of Contract 514 (3d ed. 2004).
Foot notes 3, 4, 5 and 6; cited from Accidental Revolution?
24
take exam and ask the court for an extension. In response, she was dismissed
without a reason (Exhibit 9). Her registration fees for classes and USMLE
Step 1 were not refunded, this also led to collateral damages in which her
required dictated by HEA to preempt any made at the state law. The
11
18 FR 10619
12
83 FR 10619
25
Appellant has a contractual relationship with U.S. Fed loan Servicing
for her medical education since AY2009. USF MCOM has a fiduciary duty
harm in the absence of preliminary relief (economic loss does not constitute
Comm’n. 812 F. 2d 288, 290 (6th Cir. 1987). In order to satisfy the second
factor, the movant requires a showing of “’actual and imminent harm’ rather
Baer’s potential medical career. 392 F. Supp. 2d. 42, (D. Mass. 2005). In
26
Baer’s case, waiting until trial would not cause an indefinite harm to his
career, since he was not near time limit for degree and course expirations.
adheres to policies set by Office of USF Graduate studies. The courses have
a time limit expiration and degree verification time policy is ten years.
2011. Appellant has two years remaining to complete her third and fourth
will not be able to complete her education as per school policy (Figure 9 &
Exhibit 6).
27
B. Irreparable Harm: Psych Harm
exclusion will likely cause additional psychic harm because that would most
choice. 956 F. Supp. 403, 408 (W.D.N.Y. 1997). In City of Los Angeles v.
Lyons, the court stated to obtain injunctive relief; a plaintiff must “likely to
suffer future injury” 461 U.S. 95, 105, 103 S. Ct. 1660, 75 L.Ed.2d 675
28
(1983). The categorical and general rule applicability with respect to
state tort, contract or statutory law] have been adjudged as valid”13. eBay,
401 F.3d at 1338). Appellant’s briefs and reply briefs support that her rights
Appellant and her family have invested their entire life to pursue her
Appellant has lost years of training in the MD program, contacts with peers
13
Accidental Revolution?
29
environmental stressors14 since her dismissal in 2013 have exacerbated her
medical condition (Exhibit 7 and 8). It has been severe enough that it is
causing bodily harm in which she suffers from insomnia and dysmenorrhea
the court reversed its earlier decision concluding that even if Petitioner were
likely to succeed on the merits and had shown irreparable harm, the public
outweighed” by the balance of equities and the public interest”. Winter, 555
U.S. at 23. The balance of hardships tips in favor of the plaintiff, because
student, passed her courses well above the pass line, and has pursued
medical training, jobs, and volunteer work since her dismissal (Exhibit 4, 18;
14
The DSM, Axis IV is at the far end of the spectrum; i.e., moderate to severe
30
3, 9, 15). The state of Florida also has interest in continual enrollment of
[neutral requirement]15 (Figure 10 & 11). She also scored the highest among
her peers in her first attempt in the CBSE, among the first time takers in
15
As per ADAAA 2008; Appellant’s condition has substantial limitation on major life
activity, i.e., learning. Appellant was subjected to “non-neutral standard” vs. “best ensure
standard”; requires an entity to set standards as to “best ensure” that accurately reflects
individual’s aptitude or achievement level rather than his impairment, is neither
arbitrarily nor capricious, nor manifestly contrary to statute it implements. 42 U.S.C.A
12189; 28 C.F.R. 36.309(b)(1)(i) (Exhibit 7).
31
32
33
She also earned superior clinical evaluations from 2009-2012, not
(implied contract between students and school required the university to act
in good faith and students to satisfy academic requirements and comply with
school procedures).
34
In her transfer medical school, she earned above average on clinical
evaluations and passed the entrance exam (Exhibit 9). For the purposes of
maintaining her skills and knowledge in medical training when her transfer
school lost its eligibility to practice in USA. Thus, she pursued toward
USF MCOM and DOE. OIG stated “that distance education that has
contracted with an alternative online school to use their eligibility for Title
IV funding17,” “increases the risk of school noncompliance with the law and
16
Russ Sellers, Blackwell TH, Emergency Medical Technician Training During Medical
School: Benefits for the Hidden Curriculum. (2017). Acad Med, 92(7). doi:
10.10197/ACM.000000000001579.
17
Press Release, U.S. Attorney’s Office for the S. Dist. Of N.Y., Manhattan U.S.
Attorney Announces $4 Million Fraud Settlement with New York Institute of
Technology and Cardean Learning Group, L.L.C. (Dec. 27, 2012).
18
U.S. Dep’t of Educ., Office of Inspector Gen., Final Audit Report ED-OIG/A07L0001,
Title IV of the Higher Education Act Programs: Additional Safeguards Are Needed to
Help Mitigate the Risks That Are Unique to the Distance Education Environment 2 (Feb.
2014).
35
IV. Public Interest
diagnosis and disability and lack of interactive process for students with a
the integrity of federal judicial process and promotion of public’s faith in the
Harm” led by Dr. Wible, that “physicians and trainees live in a [toxic]
36
culture of abuse....”. The number of suicide rate of physicians and trainees is
the highest among all professions and has recently garnered national
attention19.
action relevant to her case (Motion for enlargement filed 2/23/18). Appellant
discovered this from the documents that the opposing counsel withheld; in
which numerous students specific to even one race [Asian Americans20] are
singled out to fail courses, exams, and recommended to repeat the academic
year (Exhibit 11). Such unusual number of deficiencies for one course was
this was a red flag, the doctoring professors had to reduce the number of
19
Shinnyi Chou. Do No Harm: The Story of the Epidemic of Physician and Trainee
Suicides. The American Journal of Psychiatry Residents Journal. (2017) doi:
10.1176/appi.ajp-rj.2017.120406.
20
For the purposes of Appellant’s motion and reply brief, Asian refers to Americans of
Asian descent as defined by U.S. Census Bureau: ancestral origins in East Asia and
Southeast Asia. This includes on the Census as “Asian” as “Asian Indian, Thai, Chinese,
Filipino, Korean, Pakistani, Japanese, Vietnamese, and Other Asian”.
37
exempted (Figure 16-18). This also supports the systemic bias in medical
repeated the year since 2004 (Figure 19, Exhibit 11). Thus, Appellant may
have also retaliated because of her race. Students for Fair Admissions, Inc.,
38
39
40
The document prepared by University officials for US DOE OCR
still in effect (Figure 20-24). The public interest is served to prevent future
41
US DOE OCR Investigator presumably asked further details of USF
document and listed the students who had petitioned in the last few years; in
also repeat Year 2 (because she had two WF, withdraw while failing), but in
her repeat year of the same year she had poor overall performance21 and
failed a course (Figure 20, Exhibit 12). Her appeal was accepted and she was
then “technically22 failed two courses in repeat year, and scored the highest
among the peers in the final exam, CBSE in her administration (A-1717,
21
It is in dispute what is considered poor overall performance for students with
disabilities who are graded based on non-neutral standard, and held to a higher bar
than normal students, see notes in supra 15.
22
Orchestration of USF MCOM Faculty to fail her as a retaliation for discovering their
error is in dispute [as stated in this motion and briefing].
42
Figure 1-6). Yet, her appeal was not accepted? The question is if the
MCOM that the student had to restart the Year 2 due withdrawal in two
the repeat year as per University’s policy that is in dispute. Dr. Specter who
was the designated speaker for USF Board of Trustees in deposition stated
“that the policy to place students in academic probation standing [even after
43
44
45
Such policy is discriminatory because it is automatically measuring a
addition to the hostile atmosphere that faculty create for students in similar
student,
[T]he harm to the student may be far greater than that resulting
from the prison sentence given to a professional criminal. A student
thus dismissed from a medical school not only is defamed without the
opportunity to demonstrate his innocence but is probably barred from
becoming a physician. A law-school dismissed for cheating will not
be admitted to practice even if he is able to complete his legal
education24.
policies that have a severe impact on medical students and in the community
23
Non-neutral standard that deviate from the Best Ensure standard, see supra 15.
24
Warren A. Seavey, Dismissal of Students: “Due Process,” 70 HARV. L. EV. 1406,
1407 (1957).
46
Appellant’s statutory right of academic freedom under the first
24). In that e-mail, she stated her belief that the only way the student will the
47
second year pass is by “wings and a prayer.” When Appellant’s performance
did not fit with her preformed bias; doctoring evaluations were fabricated in
1030-31 (1902) (held that plaintiff’s statutory rights were violated when
faculty based their action on a belief that plaintiff would never succeed...
their false depositions was given greater weight and credibility than
to question the intent counsel’s judicial mockery (Figure 25, Exhibit 14).
48
49
Defendant’s conducts have imposed psych harm and legally
prevent further harm and injury25 and respect dignity of a human life. Bryon
v. Clay, 867 F. 2d 1049, 1051 (7th Cir. 1989) (“The doctrine of unclean
the fact that equitable decrees may have effects on third parties---persons
who are not parties to a lawsuit, including taxpayers and members of the
CONCLUSION
For the forgoing reasons and those set forth in Appellant’s briefings
and pleadings, this court should grant motion for permanent injunction.
25
Appellant’s 29-year old first cousin, former nursing student with ADHD diagnosis
committed suicide in 12/07/12; she could have benefited from Appellant’s diagnosis &
knowledge of her disability in 2010, when she was contesting her nursing school status
(A-1723).
50
I declare under penalty of perjury that the forgoing statements is true and
correct
________________________
_____________________ _______________________
Nausheen Zainulabeddin
Tampa, FL 33616
nausheenkhawaja@gmail.com
51
CERTIFICATE OF COMPLIANCE
_____________________________
Nausheen Zainulabeddin
Nausheen Zainulabeddin
4409 West Varn Avenue
Tampa, FL 33616
nausheenkhawaja@gmail.com
52
CERTIFICATE OF SERVICE
I hereby certify that on May 1, 2018, a true and correct copy of the forgoing
motion and exhibits, with first class postage prepaid has been deposited in
the U.S. Mail and filed with the Clerk of the Court for the U.S. Court of
Appeals for the Eleventh Circuit and counsel for the defendant-appellee.
Defendant-Appellee(s)
Ms. Lori Mans and Mr. John Dickinson
200 West Forsyth Street
Suit 1700
Jacksonville, FL 32202-4317
________________________ __________________
Plaintiff Date
53
MOTION FOR PERMANENT INJUNCTIVE RELIEF
EXHIBITS 1-18
NUMBERS
EVIDENCE
CONGRESS 2/1/17
DETERMINATION, APPEAL
CHANGES BY INSTRUCTORS
OF AY2012-2013 COURSE
GRADES
54
5 FEDERAL COURT OF CLAIMS 212-277
RESPONSE, EXTENSION
FOR INJUNCTION
2017-2018
2017
SCHOOL OF MEDICINE
TECHNICIAN ENROLLMENT
55
11 TITLE VI NEW CAUSE OF 455-462
ACTION
DOCUMENT PREPARED BY
DEFENDANT
CORRESPONDENCE
COUNSEL REGARDING
MEDIATION, SUMMARY OF
56
17 JUDICIAL ESTOPPEL AND 578-580
INCONSISTENT STATEMENTS
57