No.

February Term, 2019

IN THE

SUPREME COURT OF THE UNITED STATES

ALIA MERCHANT
— PETITIONER
(Your Name)

vs.

UNIVERSITY OF SOUTH FLORIDA — RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

ALIA MERCHANT
(Your Name)

4409 WEST VARN AVENUE

(Address)

TAMPA, FL 33616
(City, State, Zip Code)

813-605-9012
(Phone Number)
 No. _______________

In the Supreme Court of the United States

February Term, 2019

ZAINULABEDDIN, PETITIONER

V.

UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES- RESPONDENT(S)

_____________________________

PETITION FOR A WRIT OF CERTIORARI

TO THE
UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
17-11888, 17-12134, 17-12376
______________________________

Alia Merchant, Pro Se

4409 West Varn Avenue
Tampa, FL 33616
[email protected]
 ii

QUESTION PRESENTED FOR REVIEW

The Supremacy Clause of the United States Constitution (Article VI, Clause 2)
establishes that the Constitution, federal laws made pursuant to it.....constitute the
supreme law of the land. It prohibits states from interfering with the federal government’s
exercise of its constitutional powers, and from assuming any functions that are
exclusively entrusted to the federal government.

Under Ex Part Young, the dichotomous strain of jurisdiction-stripping law and sovereign
immunity jurisprudence tempered to uphold Supremacy Clause of the Constitution as an
exception. 209 U.S. 123 (1908). In Ex Part Young, the state laws were deemed
unconstitutional for violating due process clause of the fourteenth amendment and
dormant commerce clause. Pursuant to court of appeals authority under federal question
jurisdiction for this case; the court negated federal preemption for substantive issues that
constitutional rights and congress intent for federal laws enacted to protect those rights.

1) Did the lower court violate Commerce Clause of the constitution of

Article 1, section 8, Clause 3; when it denied principal’s interest to
maintain uniformity of state laws for Direct Fed Loans funded by
taxpayers which impact interstate commerce and violated the intent of
diversity jurisdiction? U.S. v. Deveaux 9 U.S. (5 Cranch) 61, 67 (1809).
2) Did the quasi-judicial court violate the fourteenth amendment of the
constitution to plaintiff’s property rights when denying federal
preemption under judicial estoppel and denial of waiving state’s
sovereign immunity under the Eleventh Amendment pursuant to
collateral estoppel doctrine defense: when the initial federal proceeding
as per contractual duties of the principal, United States Department of
Education, Office of Civil Rights for regulatory taking plaintiff’s patent
property right under Title II of American Disability Act during
investigation; which was tainted by perjured testimony, abusive dilatory
tactics and conflict of interest that impacted the jurisdiction of this case?
White v. Ragan, 324 U.S. (1945).
3) Did the district and appellant court exceeded its jurisdictional authority
when it entered court orders without the presence of necessary
interpleader party; United States Department of Education to this suit to
which more than $200,000 of United States Department of Education Fed
loan Servicing funds and federal interests as per Master of Promissory
Note contract are in stake? Treines v. Sunshine Mining Co., 308 U.S. 66,
74 (1939).
4) Did the Appellant court violate plaintiff’s fourteenth amendment right
when it denied writ of injunction based on weighing eBay four factor test
when plaintiff’s patent utility right under ADA Amendment Act
 iii

(ADAAA) was infringed due to misrepresentation from 2009 to 2012 as a

result of defendant’s pre-textual discrimination under Title VII [Asian
race: a matter public interest]; and retaliatory dismissal in 2013? eBay
Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
5) Did the appellant court violate plaintiff’s fourteenth amendment right
when disavowing Congress intent for ADAAA 2008 and Catchall statute
of limitation for her claims, I-VI. 42 U.S.C 12101; 154 CONG. REC
S8841 (daily ed. Sept. 16, 2008).
6) Did the appellant court violated constitutional rights for not abrogating
state’s eleventh amendment immunity under its powers granted by
section 5 of the fourteenth amendment?
 iv

PARTIES TO THE PROCEEDING

Pursuant to the Rule 14.1(b), the following list identifies all of the parties
appearing here and before the United States Courts of Appeals for the Eleventh Circuit.

University of South Florida Board of Trustees (Notice of Appeal dated May 22, 2017)

And parties that do not appear in the caption of the case on the cover page. A list of
parties to the proceedings in the court whose judgement is the subject of petition is as
follows:

Secretary of United States Department of Education, Mrs. Devos

&
United States Department of Education, Office of Civil Rights of Atlanta
 v

TABLE OF CONTENTS

Page

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

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

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

TABLE OF APPENDICES..............................................................................................viii

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

OPNIONS BELOW.............................................................................................................1

JURISDICTION..................................................................................................................1

STATUTORY AND REGULATORY PROVISIONS INVOLVED..................................1

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

A. Preliminary Statement..............................................................................................3

1. Court proceedings........................................................................................3

2. Abrogation of state’s sovereign immunity...................................................5

3. Commerce clause and Diversity jurisdiction.............................................11

a. “sham mediation”: abrogating state immunity...........................11

b. Misappropriation of “Interpleaded funds”..................................13

c. No disclosure of mediation to United States Dept. of Ed...........14

d. No jurisdiction to conduct a mediation.......................................14

4. Evoking Federal jurisdiction under common nucleus of operative

fact.............................................................................................................16
 vi

a. Regulatory Taking Clause...........................................................17

B. STATEMENT OF THE CASE.............................................................................20

1. Quasi-judicial court and Judicial estoppel.................................................20

a. Mockery of Justice......................................................................21

b. Suppressed evidence...................................................................22

c. Abuse of due process and legal procedures................................23

2. Federal Supremacy Interests: Contractual Federal right of action under

Higher Education Act (“HEA”) 1965........................................................24

3. Title II of Amendment Act of American Disability Act (“ADAAA”)

2008...........................................................................................................27

a. eBay test and ADA....................................................................28

b. University’s infringement of petitioner’s patent right under

ADA............................................................................................29

4. Judicial backlash to “medicalized approach” to ADAAA........................32

C. REASONS FOR GRANTING THE PETITION...................................................35

1. National issue: Student loan crisis.............................................................35

2. Pre-textual mixed motive: Title VII discrimination against Asians..........36

3. National epidemic: Physicians are at risk to toxic culture of

abuse..........................................................................................................39

4. Injunction and enforcement to preserve jurisprudence..............................39

CONCLUSION..................................................................................................................40
 vii

TABLE OF APPENDICES

APPENDIX A— DECISION OF THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT, DENYING PETITION FOR
PANEL REHEARING
DATED NOVEMBER 19, 2018..............................................................1a

APPENDIX B— DECISION OF THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT, DENYING CONSOLIDATED
APPEAL
DATED SEPTEMBER 5, 2018................................................................3a

APPENDIX C— DECISION OF THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA, DENYING MOTION FOR
RECONISDERATION,
DATED MAY 3, 2017..............................................................................28a

APPENDIX D— DECISION OF THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA, GRANTING SUMMARY OF
JUDGEMENT,
DATED APRIL 19, 2017........................................................................31a

APPENDIX E— DECISION OF FEDERAL AGENCY OF THE UNITED

STATES DEPARTMENT OF EDUCATION, OFFICE OF CIVIL RIGHTS OF
ATLANTA
DATED FEBRUARY 9, 2015..................................................................61a

APPENDIX F— DECISION OF AGENCY APPEAL OF THE UNITED

STATES DEPARTMENT OF EDUCATION, OFFICE OF CIVIL RIGHTS OF
ATLANTA
DATED DECEMBER 16, 2015.............................................................67a

APPENDIX G—DECISION OF COMPLAINT FILED AT

UNITED STATES DEPARTMENT OF EDUCATION, OFFICE OF CIVIL
RIGHTS OF ATLANTA
DATED SEPTEMBER 25, 2014...........................................................68a
 viii

TABLE OF CITED AUTHORITIES

Page
CASES:

Adams v. City of Indianapolis.,

742 F.3d 720, 730 (7th Cir. 2014)........................................................................17

Alden v. Maine.,
527 U.S. 706, 715 (1999).......................................................................................8

Antoninetti v. Chipotle Mexical Grill, Inc.,

131 S. Ct. 2113 (2011)...........................................................................................28

Armstrong v. United States,

364 U.S. 40, 49 (1960)...........................................................................................19

Auer v. Robbins.,
519 U.S. 452 S. Ct. 904 (1997)............................................................................26

Bartels v. Ala. Commercial Coll., Inc.,

189 F.3d 483 (11th Cir. 1999)...............................................................................26

Bogart v. Neb. Student Loan Program.,

858 S.W.2d 78 (Ark. 1993)....................................................................................26

Bowen v. Massachusetts.,
108 S. Ct 2722 (1988)..............................................................................................4

Buck v. Bell.,
274 U.S. 200, 207 (1927).........................................................................................6

Burnes v. Pemco Aeroplex, Inc.,

291 F. 3d 1282 (11th Cir. 2002) ............................................................................19

Cassel v. Superior Court.,

51 Cal. 4th. 113, 119 (2011)...................................................................................13

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842-44 (1984).................................................................................23

City of Canton v. Harris.,

 ix

489 U.S. 378, 391-92 (1989)...................................................................................9

Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc.,

103 S. Ct. 1234 (1983)..........................................................................................24

Cort v. Ash.,
422 U.S. 66 S. Ct. 2080 (1975).............................................................................24

Craig Milhouse and Pamela Milhouse v. Travelers Commercial Insurance Company.,

No. 13-56959 (9th Cir. 2016).................................................................................13

Davis v. Wakelee.,
156 U.S. 680, 689 (1895).......................................................................................21

Desert Palace, Inc. v. Costa.,

539 U.S. 90, 93 (2003)...........................................................................................36

DeRosa v. Nat’l Envelope Corp.,

395 F. 3d 99, 103 (2d Cir. 2010)............................................................................19

Duplan Corp. v. Deering Miliken, Inc.,

397 F. Supp. 1146, 1177 (D.S.C. 1974).................................................................23

eBay Inc. v. MercExchange,

L.L.C., 547 U.S. 388, 391 (2006)...................................................................28, 29

Elliott v. Jones.,
U.S. Dist. LEXIS 91125 (N.D. Fla. Sept. 1, 2009) .............................................10

Ex Parte Young.,
209 U.S. 123 (1908)............................................................................................8, 9

Farmer v. Brennan.,
511 U.S. 825 (1994)...............................................................................................10

Fisk Electric Co. v. Solo Constr. Corp.,

417 F. App’x 898, 902 (11th Cir. 2011)................................................................14

Green v. Mansour.,
474 U.S. 64, 68 (1985)............................................................................................9
 x

Howard v. Heckler.,
782 F. 2d 1484, 1487 9th Cir. (1986)....................................................................20

Howlett v. Rose.,
496 U.S. 356, 372-73 (1990)...................................................................................8

In re. Addison.,
240 B.R. 47 (C.D. Cal. 1999)................................................................................12

In re Employment Discrimination Litig. Against Ala.,

198 F.3d 1305, 1321-22 (11th Cir. 1999).................................................................7

In re First Capital Holdings Corp. Financial Products Securities Litigation.,

33 F.3d 29, 30 (9th Cir. 1994)................................................................................37

Jacobsen v. Filler.,
790 F. 3d 1362, 1365 (9th Cir. 1986).....................................................................37

Kappos v. Hyatt.,
132 S. Ct. 1690, 1694(2012) .................................................................................20

Louisville & Nashville R.R. v. Mottley.,

211 U.S. 149, 152 (1908).........................................................................................2

Mayes v. Massanari.,
276 F. 3d 453, 458-59 (9th Cir. 2001)....................................................................20

Middleton v. Caterpillar Indus, Inc.,

979 So. 2d 53, 60 (Ala. 2007)................................................................................20

Miller v. King.,
384 F. 3d 1248, 1270-1272 (11 Cir. 2004) ............................................................6

Mine Workers v. Gibbs.,

383, U.S. 715 (U.S. 1966).....................................................................................16

Morgan v. Markerdowne Corp.,

976 F. Supp. 301 (D.N.J. 1997).............................................................................26

Mount Healthy City Sch. Dist. Bd. Of Educ. v. Doyle.,

429 U.S. 274 (1977)...............................................................................................22
 xi

Nelson v. Diversified Collection serv. Inc.

861 F. Supp. 863 (D. Md. 1997)...........................................................................27

N. Ins. Co. of N.Y. v. Chatham County.,

547 U.S. at 193 (2006).............................................................................................9

Nevada Dept. of Human Res. v. Hibbs,

538 U.S. 721, 737 (2003)........................................................................................6

New Hampshire v. Maine,

532 U.S. at 751 (2001)...........................................................................................40

Newin Corp. v. Hartford Accident and Indeminity Co.,

37 N.Y. 2d 211, 33 (1927).....................................................................................18

Owen v. City of Independence.,

445 U.S. 622, 647-48 (1980)...................................................................................9

Parks Sch. of Business, Inc. v. Symington.,

51 F. 3d 1480 (9th Cir. 1995).................................................................................25

Penn Cent. Transp. Co. v. City of New York.,

438 U.S. 104, 124 (1978).......................................................................................17

Personnel Adm’r v. Feeney.,

442 U.S. 256, 278 (1979)........................................................................................7

Pitts v. Francis.,
N. 5:07CV169-RS-EMT, 2007 WL 4482168 at 13
(N.D. Fla. Dec. 19, 2007).......................................................................................16

Price Waterhouse v. Hopkins.,

490 U.S. § 288 (1989)............................................................................................36

Public Until. Dist. No. 1 v. Federal Emergency Mgmt. Agency.,

371 F. 3d 701, 706 (9th Cir. 2004).........................................................................23

Queen of Angels/Hollywood Presbyterian Med. Ctr. v. Shalala.,

65 F. 3d 1472, 1480 (9th Cir. 1995).......................................................................23
 xii

Raytheon Co. v. Hernandez.,

540 U.S. 44 (2003).................................................................................................36

Retlaw Broad. Co. v. RLRB.,

53 F.3d 1002, 1005 (9th Cir. 1995) .......................................................................20

Royal Floods Co. v. RJR Holdings Inc.

252 F.3d 1102, 1106 (9th Cir. 2000) .....................................................................23

Shields v. Ill Dep’t of Corr.,

746 F. 3d 782, 796 (7th Cir. 2014).........................................................................10

Street v. Corp. of Am.,

102 F.3d 810, 814 (6th Cir. 1996).........................................................................10

Students for Fair Admissions, Inc., v. President and Fellows of Harvard College.,
ECF. No. 1:14-cv-14176 (filed Nov. 17, 2014)....................................................34

Student Loan Fund of Idaho, Inc. v. Riley.,

123 S. Ct. 411 (2002)...........................................................................................26

Tennessee v. Lane,
124 S. Ct. 1978 (2004)...................................................................................5, 6, 21

Timber Co. v. United States.,

333 F. 3d 1358, 1365 (Fed. Cir. 2003)...................................................................20

Thompson v. Connick.,
553 F. 3d 386, 846 (5th Cir. 2008)...........................................................................9

Thomas v. Cook Cnty. Sheriff’s Dep’t.,

605 F. 3d 293, 303 (7th Cir. 2010)........................................................................10

Ungerleider v. Gordon.,
214 F. 3d 1279, 1282 (11th Cir. 2000)...................................................................14

United Mine Workers v. Gibbs.,

383 U.S. 715, 725 (1966)....................................................................................18

United States v. Virginia,

518 U.S. 515, 547 (1996)........................................................................................7
 xiii

Washington v. Davis.,
426 U.S. 229, 239 (1976).........................................................................................7

West v. Atkins.,
487 U.S. 42, 48 (1998)...........................................................................................10

Wood v. Milyard.,
132 S. Ct. 1826, 1835 (2012).................................................................................18

Wilson v. Seiter.,
501 U.S. 294, 298 (1991)......................................................................................10

Wyle v. R.J. Reynolds Indus., Inc.,

709 F. 2d. 585 (9th Cir. 1983)................................................................................16

Statutes

5 U.S.C. § 706...................................................................................................................24

27 U.S.C. § 19...................................................................................................................18

28 U.S.C. § 1254................................................................................................................1

28 U.S.C. § 295............................................................................................................5, 21

28 U.S.C. § 1331....................................................................................................1, 16, 18

28 U.S.C. § 1332..........................................................................................................1, 2, 3

28 U.S.C. § 1346................................................................................................................18

28 U.S.C. §1367......................................................................................................1, 16, 18

28 U.S.C. § 1441...........................................................................................................1, 16

28 U.S.C. § 1500..................................................................................................................5

42 U.S.C. § 2000e..............................................................................................................36

42 U.S.C. § 12101
 xiv

Americans with Disabilities Act Amendments Act of 2008 ..............1, 2, 4, 18, 24, 27, 35

42 U.S.C. § 12102..............................................................................................................27

42 U.S.C § 12131................................................................................................................3

42 U.S.C § 12133...............................................................................................................21

42 U.S.C. § 12202..............................................................................................................21

FLA STAT. 44.05(1) ........................................................................................................15

FLA. STAT. 44.405(6) .....................................................................................................16

Code of Federal Regulations

34 C.F.R. 685.300............................................................................................................19

34 C.F.R. 104...................................................................................................................31

Other Authorities

Federal Register Vol. 81, No. 211..................................................................................16

Federal Register Vol. 83, No. 211...................................................................................12

U.S. CONST. art. III, Clause 2. .......................................................................................8

Higher Education Act (“HEA”) Section 437...................................................................25

Higher Education Act (“HEA”) Section 455....................................................................25

H.R. Rep. No. 110-730, at 16 (2008). ..............................................................................27

Andrew Burrows, Remedies for Torts and Breach of Contract 514 (3d ed. 2004)...........29

Calbrook, C., Fessler, D., Navarrete, C. (2016). Looming large in others eyes: racial
stereotypes illuminate dual adaptations for representing threat versus prestige
as physical size. Evolution and Human Behavior, 37 (2016), pp. 67-78. DOI:
10.1016/j.evolhumbehav.2015.08.004...................................................................38
 xv

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure Section 2948, at 131 (2d ed. 1995)...................................................29

Dan B. Dobbs, Dobbs Law of Remedies: Damages-Equity Restitution Section 2.5at 123
(2d ed. 1993).........................................................................................................29

David Bean & Isabel Parry, Injunctions 2.11 at 18 (10th ed. 2010)..................................29

Editors Rule Against Civil Actions for Perjury in Administrative Agency Proceedings:
A Hobgoblin of Little Minds, 131 U. PA. L. REV. 1209 (1983).............................18

Fran L. Tetunic. (2011). ACT DEUX. Confidentiality after the Florida Medication
Confidentiality and Privilege Act. Nova Law Review, Vol. 36(1), Art. 4...........15

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............................................................28

John D. Echeverria, Is the Penn Central Three-Factor Test Ready for History’s Dustbin?,
52 LAND USE L. & ZONING DIG., Jan. 2000....................................................17

Maureen A. Weston, Checks on Participant Conduct in Compulsory ADR: Reconciling

the Tension in the Need for Good-Faith Participation, Autonomy, and
Confidentiality, 76 IND. L.J. 591, 592 (2001).......................................................13

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...........................................................................40

Smith, Fred. (2016). Local Sovereign Immunity. Columbia Law Review, 116..............10

Univ. of Chicago, June 9, 2011; OCR case no. 05-10-2189.............................................35

 1

In the Supreme Court of the United States

PETITION FOR WRIT OF CERTORARI

Petitioner respectfully prays that a writ of certiorari issues to review the judgement

below.

OPINIONS BELOW

The decision of the United States Courts of Appeals for the Eleventh Circuit for

petition for panel rehearing appears at Appendix A, 1a to the petition and is unpublished.

The opinion of the district court for the case appears at Appendix D, 31a to the petition

and is unpublished. The decision of the court of appeals for the eleventh circuit for the

consolidated appeal appears at Appendix B, 3a to the petition and is unpublished. The

decision of the final agency decision from United States Department of Education, Office

of Civil Rights of Atlanta appears at Appendix E, 5a

JURISDICTION

The date on which the United States Courts of Appeals for the Eleventh Circuit decided

on petitioner’s case was on September 5, 2018, and a timely filed petition for panel

rehearing was denied on November, 19 2018. The jurisdiction of this court is invoked

under 28 U.S.C. § 1254(1)

STATUTORY AND REGULATORY PROVISIONS INVOLVED

Sections 1331, 1332, 1441, 1367, of Title 28 of the United States Code. And

ADA Amendments Act of 2008.

 2

STATEMENT OF CASE

A. Preliminary Statement

This suit is brought forth for claims under Section 504 for breach of fiduciary

duties (Count I), negligent misrepresentation (Count II), breach of contract (Count III),

unjust enrichment (IV), disability discrimination (Count V) and retaliation on the basis of

disability (Count VI) against Univ. of South Florida. The University is a public state

agency that is receives federal financial assistance. U.S. Department of Education is the

federal agency that establishes policies on federal financial aid for education, and

distributing as well as monitoring those funds and prohibits discrimination, including

against violations of Title II and section 504 and ensures equal access to education.

The jurisdictional question was raised at the time of filing the complaint at the

state court in Thirteenth Judicial Circuit. The defendant transferred the case to the Federal

District Court under federal question jurisdiction 28 U.S.C § 1331 and diversity of

citizenship, 28 U.S.C § 1332 on March 17, 2016. The judicial interpretation of 28 U.S.C

§ 1331 requires that “federal issues can be ascertained from plaintiff’s well-pleaded

complaint”. Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908). on April

13, 2016, well-pleaded complaint survived motion to dismiss under Rule 12(b); in which

a legal determination was made that the court had jurisdiction to grant relief.

Petitioner sought de novo review of her case based on federal preemption of

Amendment Act of 2008 of the American Disabilities Act of 1990 (ADAAA) and

Section 313 for four-year statute of limitation from the date of accrual of the claims.
 3

Petitioner set forth reasons that the defendant’s eleventh immunity is waived; abrogated

by the congress under section 5 of the fourteenth amendment.

1. Court proceedings

Plaintiff’s complaint alleges violations of Title II of the American with

Disabilities Act, 42 U.S.C. § 12131 et seq. The district court had Jurisdiction pursuant to

28 U.S.C. § 1331. On April 19, 2017; the district court granted a final order of summary

of judgement in favor of defendant based on her claims that were barred by state’s

sovereign immunity. The Eleventh Circuit had jurisdiction under 28 U.S.C. § 1291 for

final order and 28 U.S.C. § 1331 for federal question jurisdiction and diversity

jurisdiction for 28 U.S.C. § 1332.

Three notices of appeal were consolidated at the district court. First, notice of

appeal was for the order granting defendant’s summary of judgement was filed on April

26, 2017, Case No. 17-11888 (A-1487)1. The second notice of appeal was filed on order

denying motion for reconsideration on May 10, 2017 which was submitted on May 1,

2017 under 60(b); Case no. 17-12134 (A-2178). The third notice of appeal was filed on

order denying opposition of billing tax costs on May 22, 2017; Case no. 17-12376 (A-

2431).

1
Designation for “A”. “A” refers to the page number for Appellant’s Appendix filed at
the USCA Eleventh Cir. on September 05, 2017.

 4

The notice of appeal for motion for reconsideration for collateral claims for Count

I-VI (Dkt. 54) to USCA Federal Circuit. Bowen v. Massachusetts, 108 S. Ct 2722 (1988).

USCA Federal Circuit Per Curiam final order and mandate of her Petition for Panel

Rehearing dated July 20, 2017, stated in the footnote,

“because the court lacks jurisdiction over her appeal, Ms. Zainulabeddin’s
pending motions as to the merits of her case are denied as moot”.

Subsequently, Petition for Writ Certiorari for the federal circuit was filed at the

US Supreme Court on October 26, 2017 that was due on October 25, 2017. The

accompanied motion to file Petition out of time was denied on December 2017. Thus,

with respect to argument stated in her pleadings at the US Supreme Court, No. 17M65;

she filed a new lawsuit at the Federal Court of Claims, 17-1955 against United States

Department of Education for collateral claims that would aid the Eleventh Cir. in

adjudicating the appeal; pursuant to this case to which more than $250,000 of Federal

loan servicing funds. The funds at dispute for Claims I-VI with respect to contractual

obligations between the plaintiff, defendant and the United States as per Master

Promissory Note for enrollment at USF MCOM from 2009-2013. Pursuant to FCC local

circuit rule, 40.2; a notice of directly related case was filed at the Eleventh Cir2. On

December 12, 2017 and a request for motion to stay pending Federal Court of Claims

ruling on the collateral issue was stated in her reply brief to the Eleven Cir, including a

2
Dispute based on premises of Statutory provision that created a new constitutional right
due to enactment of ADAAA 2008.
 5

copy of the complaint and relevant documents. The Judge at the Federal Court of Claims

granted defendant’s motion to dismiss pursuant to ripeness of jurisdiction, 28 U.S.C §

1500 in March 2018. A notice of appeal was filed at the USCA for the Federal Circuit.

Defendant’s motion to dismiss the notice of appeal at the Federal Circuit was denied.

Appellant withdrew her notice of appeal at the Federal Cir. with respect to vexatious

costs and burdensome harm for pursuing two suits simultaneously; and the case was

closed on November 20, 2018; pursuant to 28 U.S.C § 1500. The Petition for Panel

Rehearing at the Eleventh Cir. was denied on November 19, 2018.

2. Abrogation of state’s sovereign immunity

The district and eleventh Cir. denied abrogating and waiving state immunity for her

claims. Congress has expressly conditioned receipt of federal funds on waiver of the

States’ Eleventh Amendment immunity to private suits to enforce Section 504 of the

Rehabilitation Act of 1973, 28 U.S.C § 295 at the Federal Court. Congress expressly

abrogated the States Eleventh Amendment immunity to private suites in federal court 42

U.S.C. § 12202. Congress may abrogate a State’s sovereign immunity pursuant to valid

exercise of its power to enforce the Fourteenth Amendment, Section 5. See Tennessee v.

Lane, 124 S. Ct. 1978 (2004). Congress’s prophylactic congruent and proportionate

response is appropriate for public interest.

Fourteenth Amendment legislation is applied to cases implicating institutionalization

under the Title II of the ADA.

 6

In Lane, it was determined that based on the element of “access to courts”; the

institutions decisions to deny accommodations cannot be based on justification of

“ordinary cost considerations and convenience alone”. See Lane, 124 S. Ct. at 1994. The

court remarked on the “sheer volume of evidence demonstrating the nature and extent of

unconstitutional discrimination against persons with disabilities in the provisions of

public services”. Id at 1991.

The congress determined that a necessary prophylactic legislative was necessary

based on historical predicate for systemic deprivation of fundamental right and it is no

longer a dispute. See Miller v. King, 384 F. 3d 1248, 1270-1272 (11 Cir. 2004). In Buck

v. Bell; the compulsory sterilization law was upheld; “in order to prevent our being

swamped with incompetence”; it is better for all the world; if instead of waiting to

execute degenerate offspring for crime, or to starve for their imbecility, society can

prevent those who are manifestly unfit from continuing their kind “three generations of

imbeciles are enough”. 274 U.S. 200, 207 (1927). Congress has also heard unjustified

institutionalization and unconstitutional treatment of persons with disabilities in state

facilities which included seclusion in rooms, restraints and neglectful, abusive and willful

indifference that was an “difficult and intractable problem” that warranted added

prophylactic measures in response”. See Nevada Dept. of Human Res. v. Hibbs, 538 U.S.

721, 737 (2003). Title II provides proportionate response to history and also congruent

response with the requirement of the Due process and Equal Protection Clauses. The

congress requires the state to treat people with disabilities in accordance with their
 7

individual needs and capabilities. The congress also concluded there was a need to

balance the risks exists when some state officials many continue to make placement

decisions based on hidden invidious class-based stereotypes or animus that would be

difficult to detect or prove and State’s legitimate interests. See Hibbs, 538 U.S. at 732-

733, 735-736.

Congress determined that Title II prophylactic response was necessary when the

state persistently refuses to follow the advice of its own professionals and is unable to

justify that its decisions was based on administrative or financial considerations that there

was a risk of unconstitutional treatment. See Hibbs 538, U.S. at 736-737. The Title II also

resolves the unconstitutional exclusion of people with disabilities from their

communities, schools and other governmental services. The proper remedy under Title II

accomplished integration. See United States v. Virginia, 518 U.S. 515, 547 (1996).

In re Employment Discrimination Litig. Against Ala., an Eleventh Amendment challenge

to disparate impact claims was raised, because they were congruent to the reach of

Article 5 of the Fourteenth Amendment by virtue of of their functional equivalence to

disparate treatment claims. 198 F.3d 1305, 1321-22 (11th Cir. 1999). In Washington v.

Davis, the court held that violation of Equal Protection Clause of the Fourteenth

Amendment requires proof of discriminatory propose to which the decision maker chose

the course of action “because of”, not merely “in spite of”, that affects the protected class.

426 U.S. 229, 239 (1976); Personnel Adm’r v. Feeney, 442 U.S. 256, 278 (1979).
 8

The state has substantial authority in determining the last word over constitutional issues.

However, jurisdiction-stripping proposals have enabled Supreme Court to review

particular substantive area of the law.

The powers of the congress is broad in justifying checks in the tripartite system of

protecting the constitutional rights. The state protects the interests of is sovereign

immunity, whereas the federal protects the people. In Alden v. Maine, the court

recognized constitutionally protected sovereign immunity for state based on principles of

federalism and state dignity. 527 U.S. 706, 715 (1999). Whereas, in Ex parte Young, the

court recognized that certain exceptional cases against state officials to uphold the

Supremacy Clause of the Constitution. 209 U.S. 123. The majoritarian check is needed,

when state’s sovereign immunity violates constitutional rights of humanity. The supreme

court has consistently held that the principles out of “system of federalism” is one in

which the state courts share the responsibility for the application and enforcement of

federal law. Howlett v. Rose, 496 U.S. 356, 372-73 (1990).

The Supreme Court appellate jurisdiction grants jurisdiction to the court “with

such Exceptions, and under such Regulations as the Congress shall make.” U.S. CONST.

art. III, cl. 2. The supreme court shall also have appellate jurisdiction, both as to law and

fact, with such Exceptions, and under such Regulations as the Congress shall make.” Id. 2

cl. 2. The 1789 Judiciary Act, the Supreme Court’s appellate jurisdiction over state cases

“was limited to cases in which a state court rejected claim of federal right”.
 9

In Green v. Mansour, the court highlighted prospective relief of Ex Parte Young as

“giving life to the Supremacy Clause” because “remedies designed to end a continuing

violation of federal law are necessary to vindicate the federal interest in assuring the

supremacy of that law”. 474 U.S. 64, 68 (1985).

The Eleventh Cir. Ruling reaffirmed that state agency is immune from federal

constitutional violations. In Owen v. City of Independence, the Supreme Court held that

congress abrogated or dissolved any claim a municipality that could have to the principle

of sovereign immunity. 445 U.S. 622, 647-48 (1980). Whereas in N. Ins. Co. of N.Y v.

Chatham County., it rejected a county’s claim of sovereign immunity, that “only States

and arms of the State possess immunity from suits authorized by federal law. 547 U.S. at

193 (2006). To abrogate state sovereign immunity, the court has held that there is a

higher standard of fault than negligence for municipal liability.

In City of Canton v. Harris, the court held that a standard less than deliberate

indifference is necessary. 489 U.S. 378, 391-92 (1989). In Thompson v. Connick, the

court held that state claims that exercise the its immunity to the degree that leads to

malicious prosecution was not viable for it was counteracted with absolute prosecutorial

immunity. 553 F. 3d 386, 846 (5th Cir. 2008). The federal doctrine inoculates local

government and their agents from constitutional accountability, when constitutional

violation have taken place. Suing the state agency for constitutional violation requires it

to meet a unique causation requirement, to which the plaintiff must demonstrate, at a

minimum, that a “final policymaker” exhibited deliberate indifference to constitutional

 10

rights or exhibited deliberate indifference to known or probable violations3. In Elliott v.

Jones, the court held that deliberate indifference is defined as requiring (1) an "awareness

of facts from which the inference could be drawn that a substantial risk of serious harm

exists" and (2) the actual "drawing of the inference." U.S. Dist. LEXIS 91125 (N.D. Fla.

Sept. 1, 2009)

Plaintiff alleging unconstitutional act must also show that “his injury was caused

by a ... policy, custom or practice of deliberate indifference to medical needs, or series of

bad acts that together raise the inference of such a policy. Shields v. Ill Dep’t of Corr.,

746 F. 3d 782, 796 (7th Cir. 2014). In Thomas v. Cook Cnty. Sheriff’s Dep’t., the court

held that plaintiff asserting a policy or practice claim must demonstrate that there is a

policy at issue than a random event. 605 F. 3d 293, 303 (7th Cir. 2010). In Farmer v.

Brennan, the could held that intentionally delaying medical care for a known injury (i.e. a

broken wrist) has been held to constitute deliberate indifference. 511 U.S. 825 (1994). A

constitutional violation occurs only where the deprivation alleged is, objectively,

"sufficiently serious," and the official has acted with "deliberate indifference" to inmate

health or safety. Wilson v. Seiter, 501 U.S. 294, 298 (1991). In West v. Atkins, the court

held that a plaintiff must allege the violation of a right secured by the federal constitution

or laws and must show that the deprivation was committed by a person acting under color

of state law (or federal law). 487 U.S. 42, 48 (1998); Street v. Corp. of Am., 102 F.3d

3
Smith, Fred. (2016). Local Sovereign Immunity. Columbia Law Review, 116.
 11

810, 814 (6th Cir. 1996). To succeed on a claim of deliberate indifference, plaintiff must

satisfy two elements, an objective one and a subjective one. The objective element is

satisfied by showing that plaintiff had a serious medical need. To satisfy the subject

component the plaintiff must allege facts which, if true, would show that the official

being sued subjectively perceived facts from which to infer substantial risk to the [ ], that

he did in fact draw the inference, and that he then disregarded that risk. Farmer v.

Brenman, 511 U.S. 825 (1994).

On appeal, plaintiff set forth to make a claim for medical malpractice. For she was

misrepresented the results of her neuropsychological evaluation from 2010 to 2012, thus

could not be on medications, that are only prescribed by a physician if one has an

confirmed ADHD diagnosis in the report. The subject element was shown when Dr.

Specter stated during depositions that he knew the contents of the report including that

she had a previous ADHD diagnosis, that it stated that she would benefit from

accommodations for her disability. However, he continued to misrepresent the report,

despite the fact she was failing and led to dismissal from the program. Additionally, he

violated the federal regulations set in place by US DOE OIG, that states to have a

Satisfactory Appeal Process to fully document and report to US DOE, that if the student

has a disability; it is an obligation of the financial aid officer to ensue corrective steps are

taken so the student can benefit from the course of study.

3. Commerce clause and Diversity jurisdiction

a. “sham mediation”: abrogating state immunity

 12

In re. Addison, the court stated that debtors whose obligations that are large

enough to invoke Federal diversity jurisdiction to challenge state agency’s actions, based

on undue hardship grounds. 240 B.R. 47 (C.D. Cal. 1999). The borrower defense was

raised in her complaint, prejudicial administrative proceedings and application to Fed

loan. The case required oversight of Secretary of Education for reimbursement of federal

loans preempt state’s substantive law under respondent superior to which University as

an agent is required to disclose pertinent facts that raise borrower defense.

Eleventh Cir. denial of preempting federal law and granting defendant’s motion to

strike petitioner’s affidavit disclosing contents discussed during mediation. The act raises

concern that negate U.S. Department of Education’s declaration in Federal Registrar,

Vol. 83, No. 211, regarding students becoming victims of “cottage industry” of

opportunistic attorneys and agents who unnecessarily prolong lawsuits, playing the game

of federal-state jurisdiction, by suppressing evidence, omitting facts, cut corners via

procedural tactics when in fact, the merits of the case have long been decided. One

litigator would describe this problem as:

[I]f.....I act for the Big Bad Wolf against Little Red Riding Hood and I
don’t want this dispute resolved, I want to tie it up as long as I possible can, and
mandatory mediation is custom made. I can waste more time, I can string it along,
I can make sure this never gets resolved......because I know the language. I know
how to make it look like I’m heading in the that direction. I make it look like I can
make all the right noses in the world, like this is the most wonderful thing
involved in which I have no intentions of ever resolving this. I have intention of
making this the most expensive, longest process but is it going to feel good. It’s
 13

going to feel so nice, we’re going to here and we’re going to talk the talk but
we’re not going to walk the walk4.

The Defendant has yet to inform as per their contractual obligation of the

presence of the lawsuit proceedings to Secretary of Education. Additionally, it has an

obligation to inform the conversations that took place pertaining to federal funds in

dispute during mediation of more than $250,000 federal loan. The conversations involved

reimbursement of Federal funds that are financed by tax payer’s money and is of public

interest, interest to US DOE Fed loan Servicing and also the United States. As a public

institution, and a federal financial aid recipient; Defendant is well aware that Federal

jurisdiction would governs the rules for the Mediation. The defendant filed a motion to

strike affidavit stating statutory defense under the state law, when the governing factor is

the intent of the jurisdiction [diversity jurisdiction, for petitioner was residing out of state

for school and accrued collateral damages]5.

b. Misappropriation of Interpleaded funds

In Craig Milhouse and Pamela Milhouse v. Travelers Commercial Insurance

Company, the court ruled that to exclude crucial evidence would deny Travelers of its

due process right to present a defense. No. 13-56959 (9th Cir. 2016). The Cassel v.

4
Maureen A. Weston, Checks on Participant Conduct in Compulsory ADR: Reconciling
the Tension in the Need for Good-Faith Participation, Autonomy, and Confidentiality, 76
IND. L.J. 591, 592 (2001).
5
Note: Defendant also acknowledges in its reply brief that her appeal seeks de novo
review under the federal presumption.
 14

Superior Court judicially crafted a due process exception to the mediation

confidentiality:

We must apply the plain terms of the mediation confidentiality statutes to

the facts of this case unless such result would violate due process, or would
absurd the results that clearly undermine the statutory purpose. 51 Cal. 4th. 113,
119 (2011).

The mediation conducted on March 22, 2017, was a “sham” since the Defendant

did not uphold its end of contractual obligation under respondent superior for the

“interpleaded funds” that it offered. F.R. Vol. 83 No. 211. The defendant, as per

principal-agent Fed loan agreement is required to inform the Secretary of US Department

of Education, the oversight authority for matters related to federal student funds and to

federal interest that align to the objectives of Federal Direct Loan Program.

c. No jurisdiction to conduct a mediation

Both the Federal and state law are in favor to Petitioner’s position for disclosure

of contents of the mediation that would have abrogated state immunity. The mediation

fees that are not paid raises an affirmative defense and opens the door to admission of

evidence showing the mediation resulted in payment. Fisk Electric Co. v. Solo Constr.

Corp., 417 F. App’x 898, 902 (11th Cir. 2011). The FLA. STAT. 44.405(6) stated that the

Act specifically provides that a party who “makes a representation about privileged

mediation communication waives the privilege....to the extent [needed] for the other party

to respond” properly. The appellate court affirmed. Id. In Ungerleider v. Gordon, the

court held that state substantive law provides additional protection for evidence beyond
 15

what the federal evidentiary rules provide, when it confirmed that the district court did

not error in the application of the Act. 214 F. 3d 1279, 1282 (11th Cir. 2000)6.

Furthermore, Florida Stat. 44.05(1) provides exception to allow litigant to disclose

ongoing criminal wrong doings and abuse. In Pitts v. Francis, the judge held that since

the mediation was a “sham”; there could be no protected communication and was not

entitled to confidentiality. N. 5:07CV169-RS-EMT, 2007 WL 4482168 at 13 (N.D. Fla.

Dec. 19, 2007). The Judge in the same case stated that the mediation technically did not

occur since no confined parameters existed that was aligned to the governing rules,

statutes and relevant law that is a prerequisite of a jurisdiction.

d. No jurisdiction to conduct a mediation

The court overreached its authority without the necessary party, to which this case

and interpleader funds are in dispute. United States. Department of Education states in

Federal Register Vol. 81, No. 211 that if the litigation requests stipulated demand to

which involves Federal Funds; it is deemed as an “triggering event7;” it is fiduciary duty

of the University to inform the Department so that it can carry out its “prophylactic and

preventative measures” to protect other students, public interests, tax payers money, and

prevent further collateral damages in which expedited resolution to the dispute is

6
Fran L. Tetunic. (2011). ACT DEUX. Confidentiality after the Florida Medication
Confidentiality and Privilege Act. Nova Law Review, Vol. 36(1), Art. 4.
7
Borrower defense claims; a copy of the Fed loan Discharge Form was provided to USF
Health General Counsel, Mrs. Roberta Burford and appropriate officials in support of her
Petition for Readmission in 2014.
 16

necessary. The department further confirmed in a statement FR Vol. 81 No. 211 to not

hold arbitration (mediation) that involve federal funds without informing principal

superior. The intent of the statement was to discourage a venue of gamesmanship of

procedural tactics against students to compel the student to settle to which it had no

authority. The university’s motion to strike is primarily a defense to conceal their

“standard procedures” of unauthorized use of settlement procedures for funds that

involve direct loan program. Furthermore, the Fla. Stat. 44.405(4)(a)(2) states that

mediation confidentiality is waived if it willfully used to commit crime, commit or

attempt to commit a crime, conceal ongoing criminal activity. To exclude crucial

evidence would deny due process right to present a defense and undermine statutory

purpose. In Wyle v. R.J. Reynolds Indus., Inc. states that it has inherent power to dismiss

action when a party has willfully deceived the court and engaged in conduct utterly

inconsistent with orderly administration of justice. 709 F. 2d. 585 (9th Cir. 1983).

4. Evoking Federal jurisdiction under common nucleus of operative fact

In Mine Workers v. Gibbs, court held that based on Common-nucleus-of-operative

fact test, a federal court will have jurisdiction over state law claims. 383, U.S. 715 (U.S.

1966). The federal court can exercise supplemental jurisdiction under 28 U.S.C § 1367;

for those state law claims that that arise from the same facts as the federal claims with

common nucleus of operative facts. Id and 28 U.S.C § 1441(c)(1) and 28 U.S.C § 1367

and 28 U.S.C § 1331. The collateral issue for time barred state claims for regulatory

taking and governed under judicial estoppel by a Federal Agency in quasi-judicial form;
 17

for investigation of her allegations filed on September 2014, after exhausting

administrative remedies under continuing violation that were the also Count I to VI. In

Adams v. City of Indianapolis, the court held that each discrete act “starts a new clock for

filing charges.” 742 F.3d 720, 730 (7th Cir. 2014).

a. Regulatory Taking Clause

Plaintiff’s complaint states the necessary elements under the determinative,

freestanding test for the question under collateral estoppel defense as per compliance to

the Master Promissory Note that constitute regulatory taking8. The court of Penn Central

identified discrete factors:

(1) impact of challenged regulation on the claimant, viewed in the light of the
claimant’s investment-backed expectations and
(2) character of governmental action, viewed in light of the principle that actions
that closely resemble direct exercises of eminent domain are more likely to be
compensable takings than are garden-variety land use regulations.

Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).

Plaintiff’s complaint states these necessary elements. (1) Impact of challenged

regulation: dismissal of her complaint at the district court, loss of her property interest to

continue her medical education, and aggrieved collateral damages (Complaint Dkt. 1, p.

10.; No. 16). (2) Character of governmental action: ignoring preponderance of evidence

before the agency, relying only on University’s penalty of perjury testimony that is not

supported by evidence that was before the agency, omitting core elements of her

8
John D. Echeverria, Is the Penn Central Three-Factor Test Ready for History’s
Dustbin?, 52 LAND USE L. & ZONING DIG., Jan. 2000.
 18

discrimination as stated in Petition for Readmission Letter and decision; abuse of

discretion in changing its course of investigation proceedings to not investigate her

Course Appeals for EBCR II and Doctoring II, lack of policy consideration that govern

her complaint that is enforced by Dept. of Ed., i.e. ADAAA , Section 504 and Title VI

and contested conducted as stated in her complaint (Complaint Dkt. 1, p. 16-40, Count II:

Regulatory Taking Case, p. 16-23).

A de rigueur decision making by court of appeals have reversed sua sponte

dismissals for expiration of applicable statute of limitations. Wood v. Milyard, 132 S. Ct.

1826, 1835 (2012). The Article III court, has supplemental jurisdiction under Section

1367(a) of Title 28 of the United States Code, over a constitutional case for claims based

on federal question jurisdiction, 28 U.S.C § 1331 to involve required joinder parties

under 27 U.S.C. § 19 (a) and 28 U.S.C § 1346(b)(1); who have liability for claims that

have a “common nucleus of operative fact”. United Mine Workers v. Gibbs, 383 U.S.

715, 725 (1966). In Newin Corp. v. Hartford Accident and Indeminity Co., the court

ruled against civil actions for perjury based on the policy that to permit a judgement to be

later challenged because it was allegedly tainted with perjury “would be productive of

endless litigation”. 37 N.Y. 2d 211, 33 (1927). The exception to this rule, however9,

is based on the principle that fraudulent scheme which is greater in scope than
issues that were determined in the action or proceeding may become the basis of
action. This is so, although some of the issues had been determined adversely to

9
Editors Rule Against Civil Actions for Perjury in Administrative Agency
Proceedings: A Hobgoblin of Little Minds, 131 U. PA. L. REV. 1209 (1983).

 19

the plaintiff in a prior action or proceeding to which, normally, the doctrine of res
judicata would apply. Id.

The court has held that for estoppel to be considered in a second proceeding, the

first proceeding may need not have been a complete case and can be a sworn statement

made to an administrative agency. DeRosa v. Nat’l Envelope Corp., 395 F. 3d 99, 103

(2d Cir. 2010) (noting that [j]udicial estoppel applies to sworn statements made to

administrative agencies....”).

An omission of civil claims [i.e., acts from 2013-2015] in court proceedings

would “thwart judicial process.” Burnes v. Pemco Aeroplex, Inc. 291 F. 3d 1282 (11th

Cir. 2002). Department of Education has participation rules under HEA enforced under

Fed loan Servicing MPN stated in the section of Borrower’s Rights and Responsibilities

Statement:

require students to exhaust their internal administrative remedies, pursue school’s

internal complaint process and dispute process before contacting accrediting and
governmental agencies about the complaint.

34 C.F.R. Section 685.300

In summary of judgement, her claims were dismissed because they were time

barred by state’s statute of limitation under the tort law. The master promissory note

states The “Armstrong Principle” holds that Taking Clause was “designed to bar

Government forcing some people alone to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole” Armstrong v. United States, 364 U.S.

40, 49 (1960).
 20

In Timber Co. v. United States, the court concluded that after federal

investigation; the agency decision is final and conclusive, unless the “question of fact is

fraudulent, arbitrary, or capricious, so grossly erroneous as to necessarily imply bad faith;

or not supported by substantial evidence”. 333 F. 3d 1358, 1365 (Fed. Cir. 2003). At the

district and federal circuit; Petitioner provided the judge(s) the final agency decision and

all documents that was before the agency before rendering their decision (Appendix C, D

and E). In Kappos v. Hyatt, the court held that “agency’s factual findings are reviewed

under the substantial evidence standard”. 132 S. Ct. 1690, 1694(2012). The substantial

evidence standard requires the court to review the administrative record as a whole,

weighing both evidence that supports the agency’s determination as well as the evidence

that detracts from it. Mayes v. Massanari, 276 F. 3d 453, 458-59 (9th Cir. 2001).

Furthermore, and applicable to this case; when the agency rejects the hearings officer’s

credibility findings, however, it must state its reasons and those reasons must be based on

substantial evidence. Howard v. Heckler, 782 F. 2d 1484, 1487 9th Cir. (1986). The court

held in Retlaw Broad. Co. v. RLRB, that credibility determinations must be upheld unless

they are “inherently or patently unreasonable”. 53 F.3d 1002, 1005 (9th Cir. 1995).

B. STATEMENT

1. Quasi-judicial court and Judicial estoppel

Defendant has provided two conflicting testimonies in two different 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 circumstances as set forth,
 21

the constitutional provision of Congress has expressed conditioned receipt of Eleventh

Amendment immunity to private suits to enforce Section 504 of the Rehabilitation Act of

1973, 28 U.S.C § 295 at the Federal Court. Title II of ADA may also be enforced through

private suits against public entities. 42 U.S.C § 12133. Congress has abrogated the State’s

Eleventh Amendment immunity to private suites in federal court. 42 U.S.C § 12202. To

enforce fourteenth amendment Section 5; the Congress may abrogate a state’s sovereign

immunity pursuant to a valid exercise of its power. Tennessee v. Lane, 124 S. Ct. 1978

(2004).

The testimony provided to US DOE OCR conflicted with the sworn oath

depositions at the district court (A-1963). Judicial estoppel is an equitable, court-created,

discretionary doctrine that may be invoked by either a party or the court sua sponte.

Davis v. Wakelee, 156 U.S. 680, 689 (1895). The doctrine prevents a party from taking a

contradictory position which it 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)

there was a foreseeable intention to make a mockery of the judicial system. The Circuit

Court also looks at litigant’s “level of sophistication”, any explanation for the omissions.

a. Mockery of Justice

The internal administrative appeals at USF MCOM in 2013 were a sham for she

was coerced into writing what Dr. Specter stated should be written; he was also present

during the APRC hearing. He silenced her when she raised the issue of administrative
 22

error from 2010 to 2012 for unjust enrichment. She pursued last administrative remedy in

2014 after she was given confirmation that Dr. Specter will not play a role in her petition

proceedings. Nevertheless, the administrators forwarded all emails she sent to USF

MCOM staff to Dr. Specter. The counsels omitted relevant proceedings, i.e. petition in

2014 and US DOE OCR investigation from the district court to escape the statute of

limitation defense under continuing violation theory.

USF MCOM Handbook Section IV. E. 6. (1) states that a dismissed 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 Petition, and requested permission to include

course appeals for EBCR II and Doctoring II. After consultation with Gen. Counsel; Dr.

Bognar granted her request to the course appeals in her Petition.

b. Suppressed evidence

Defendant’s motive was to suppress 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 protected conduct was motivating factor behind his dismissal, the

burden shifts to Defendants. 429 U.S. 274 (1977). Defendant only disclosed

administrative proceedings that they had controlled by threat and force to “steal facts” up

to May 2013, but strategically omitted and suppressed all administrative proceedings that

serve as a defense for collateral estoppel doctrine from May 2013 to December 2015

from the court, i.e. petition for readmission and USE DOE OCR investigation and
 23

proceedings. Furthermore, USF has failed to disclose that there was an US DOE OCR

investigation from 2014 to 2015; and why it gave inconsistent testimonies during court

depositions versus perjury testimony given to US DOE OCR investigator, omitted

relevant facts and misrepresenting facts.

c. Abuse of due process and legal procedures

Judicial estoppel is intended to ensure that a litigant “cannot have its cake and eat

it too”. Duplan Corp. v. Deering Miliken, Inc., 397 F. Supp. 1146, 1177 (D.S.C. 1974).

Judicial estoppel protects the sanctity of oaths by strongly deterring lying, intentional

misrepresentation, and 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 (i.e.,

whole truth), if he manipulates the first proceeding by omission, misrepresentation and,

lie. Thus, he will most likely not state the whole truth in the first proceeding. In judicial

estoppel, the protection of the sanctity of oaths begins in the first proceeding. Royal

Floods Co. v. RJR Holdings Inc., 252 F.3d 1102, 1106 (9th Cir. 2000) (Describing two-

step Chevron review, and noting when Congress leaves a statutory gap for the agency to

fill, any administrative regulations must be upheld unless they are arbitrary, capricious, or

manifestly contrary to the statute). In Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc., the court stated no deference is owed to an agency when “Congress has directly

spoken to the precise question at issue”. 467 U.S. 837, 842-44 (1984).

In Public Until. Dist. No. 1 v. Federal Emergency Mgmt. Agency, the court stated

that it generally defers to an agency’s interpretation of its own regulations. 371 F. 3d 701,
 24

706 (9th Cir. 2004) (noting “substantial deference”). Though the court has held in Queen

of Angels/Hollywood Presbyterian Med. Ctr. v. Shalala, that agency is “not disqualified

from changing its mind”. 65 F. 3d 1472, 1480 (9th Cir. 1995). However, U.S DOE FOIA

Response for that investigation indicated that the investigator relied solely on perjured

testimony by USF official that was inconsistent to the official records that were before

the agency. The agency was provided with more than 2000 pages of evidence, including

medical records, transcripts, copy of the petition. Nevertheless, the facts determined by

the agency did not reflect the factual record. It only reflected what USF stated in their

perjured testimony. Under federal antitrust laws, the courts have permitted plaintiffs to

maintain causes of action for damages caused by alleged misrepresentations made to

administrative agencies. Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc.,

103 S. Ct. 1234 (1983).

2. Federal Supremacy Interests: Contractual Federal right of action under

Higher Education Act (“HEA”) 1965.

Appellant’s opening brief discussed four factors evaluating the existence of

private right of action under HEA evoking federal jurisdiction: (1) a federal right was

created (2) legislative intent: implicit and explicit (3) whether it meets the objective of the

legislative agenda (4) whether federal preemption is underlying congressional intent.

Cort v. Ash, 422 U.S. 66 S. Ct. 2080 (1975).

The Cort test is met here in this case, in which HEA provisions to which it created

a new private right of action and congress intent in enacting Amendment Act of Title II
 25

of American Disability Act (ADAAA). Based on contextual circumstances, and the

Administrative Procedure Act, 5 U.S.C. § 706(1); borrower defense for violations of Fed

loan Master Promissory Notes (“MPN”), creates a new right of actions for undue

hardship imposed due to allege actions of misrepresentation and breach of contract.

Ultimately, the private right of action that “significantly advances the goal of the statue

enacted” is taken under consideration. Parks Sch. of Business, Inc. v. Symington, 51 F. 3d

1480 (9th Cir. 1995).

The Section 437(c)(1) of the HEA of 1965, as amended as HEA provides

discharge of borrower’s loan obligation under section 455(a)(1) of the William D. Ford

Federal Direct Loan Program, if the student’s eligibility, in accordance to school’s

defective determination of student’s ability-to- benefit (ATB) from the funds were falsely

certified by the school.

The MPN contractual relationship, enforcing HEA 1965 that protects special

classes, under the Federal law, i.e. in this case, Title II of ADA and Section 504. Such

cases, based on provisions of HEA 1965 governed by new MPN signed each academic

year, reflects congress intent and expectations that the agency, i.e. University office

representing the Department under respondent superior will fulfill the provisions of HEA

1965. The lender liability for school-related claims is that the lender has appointed the

school its agent for certain functions and that, under respondent superior, the principal is

liable for actions of its agent within the actual or apparent scope of the agent’s authority.

At USF MCOM, the financial aid office acts as the lender’s agent in giving the loan
 26

papers and providing guidance to complete electronic version to the student, in which the

lender’s portion of the paperwork, and assists student in completing its portion and

forwards the paperwork to the lender. The principal, is liable for acts within the actual or

apparent authority of the agent, which relates to the student’s enrollment in the school, in

which misrepresentations made by the agent affects enrollment. Morgan v. Markerdowne

Corp., 976 F. Supp. 301 (D.N.J. 1997).

The strength of the agency approach, lies in the misrepresentation, in which if the

school makes misrepresentation that induces the student to enroll and sign the loan forms,

those misrepresentations can be raised against the lender if the school had actual or

apparent authority to make such representations. Bartels v. Ala. Commercial Coll., Inc.

189 F.3d 483 (11th Cir. 1999). The agent is responsible for administering the HEA,

requiring agency relationship; state claim is preempted, especially if the state law

conflicts with the objectives of HEA. 72 Fed. Reg. 32, 410. Bogart v. Neb. Student Loan

Program, 858 S.W.2d 78 (Ark. 1993) (finding that federal law preempts state law claim

based on agency).

HEA gives Secretary “broad enforcement authority to implement provisions of

the HEA; including express authority to promulgate regulations to carry out the purposes

of the Federal Loan Program. Student Loan Fund of Idaho, Inc. v. Riley, 123 S. Ct. 411

(2002). A federal agency interpretation of its own regulations is not controlling if it is

“erroneous and inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452 S. Ct.

904 (1997). In this instant case, the borrower has raised a defense, challenging the
 27

constitutionality of the procedures used by the US DOE OCR under HEA, evoking

federal question jurisdiction. Nelson v. Diversified Collection serv. Inc. 861 F. Supp. 863

(D. Md. 1997). Furthermore, pursuing the right of action under HEA for federal judicial

review of agency’s action under standard of review embodied in Administrative

Procedure Act (“APA”), for challenging its decision that is erroneous or unreasonable

based on preponderance of evidence considered by agency during its investigation for

OCR Case no. 04-14-2487.

3. Title II of ADAAA 2008

Pursuant to congress intent and the purposes for enacting the amendment to Title

II of ADA; ADAAA created a new right for the petitioner to which prospective relief is

available under the Federal Catchall Statute of Limitations. The Congress added specific

rules of constructions regarding the definition of disability, which provide:

(C) An impairment that substantially limits one major life activity need not limit
other major life activity when active.
(D) (i) The determination of whether an impairment substantially limits a major
activity shall be made without regard to the ameliorative effects of mitigating
measures.

42 U.S.C. § 12102(4).

The objective of Congress to enact ADAAA in 2009 was that it wanted to prohibit

discrimination by aligning the ADA with other civil right laws. It accomplished that by

eliminating the language in the ADA that had prohibited discrimination of an individual

“with a disability because of a disability” and replaced it with a simple prohibition on

“discrimination on the basis of disability” [distinguishing that discrimination was on the

 28

basis of the personal characteristics of the disability in ADAAA and not whether that

characteristic exists]. H.R. Rep. No. 110-730, at 16 (2008). Hence the language in

ADAAA shifted away from the “proving issues that there is a disability” to

“discrimination” itself (A-1858; A-1692-1696).

a. eBay test and ADA

The eleventh circuit denied petitioner’s constitutional rights under due process

clause when it infringed on her right to pursue medical education and further

compounded irreparable injury. In Antoninetti v. Chipotle Mexical Grill, Inc., the court

applied patent right pursuant to eBay four factor test for permanent injunction with

respect to American with Disabilities Act or Rehabilitation Act. 131 S. Ct. 2113 (2011).

For injunctive relief; eBay test omits success as a factor and instead doubles up on

irreparable injury. The two requirement requires proof that plaintiff “has suffered”

irreparable injury to which an injunction would prevent future infringing behavior

(continuing violation)10. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

The courts have articulated regarding presumption irreparable injury in eBay test,

stating, “‘general rule’ to which permanent injunction will issue once [continual

violations of actions from constitutional challenges, actions under federal regulatory or

10
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, the article is referred as “Accidental Revolution?”
 29

antidiscrimination statute, to diversity actions centered on state tort, contract or statutory

law] have been adjudged as valid”11. eBay, 401 F.3d at 1338.

In cases of continuing injury, pre-eBay law has recognized that legal remedies are

presumptively inadequate for legally protected interests12. [I]f plaintiff demonstrates that

effective legal relief can be secured only by a multiplicity of actions, as, for example,

when the injury is of a continuing nature, so that plaintiff would be required to pursue

damages each time he was injured, equitable relief will be deemed appropriate13. [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 injunction14....[a] prohibitory injunction is the appropriate remedy to prevent the

continuation or repetition of a tort”15.

b. University’s infringement of petitioner’s patent right under ADA

After discovery of university’s grave error for misplacing her neuropsychological

evaluation and misrepresenting the contents of the neuropsychological evaluation from

2010 to 2012. Petitioner without knowledge of her accurate diagnosis nor disability,

could not be on medications nor request accommodations. Former USF Associate Dean

11
Accidental Revolution?
12
Dan B. Dobbs, Dobbs Law of Remedies: Damages-Equity Restitution Section 2.5at
123 (2d ed. 1993).
13
11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure Section 2948, at 131 (2d ed. 1995).
14
David Bean & Isabel Parry, Injunctions 2.11 at 18 (10th ed. 2010)
15
Andrew Burrows, Remedies for Torts and Breach of Contract 514 (3d ed. 2004).
Foot notes 3, 4, 5 and 6; cited from Accidental Revolution?
 30

of Student Affairs, Dr. Steven Specter admits in the deposition that he had knowledge of

the report; though not provided to the Petitioner until after she was dismissed in

February, 2012. He had “interpreted” report without consulting University’s disability

office, neuropsychological evaluator, medical school counseling center (HELPS), nor

requesting to consult with the assigned psychiatrist at the University’s Counseling Center

and determined that the results was “equivocal” despite the fact the report stated the

student qualifies for accommodations under Section 504 and Title II of ADA. Hence, the

Associate Dean failed to participate in interactive process and deceived Petitioner of the

true contents of the report from October 2010 to Feb 2012 and determined that the

accommodations were unnecessary. The court has held that although no regulation

pertaining to students requires an “interactive process,” institutions that fail to engage in

it are unlikely to prevail on a motion for summary judgment and may face burdens of

proof they would not otherwise have to bear. Ballard v. Rubin, 284 F. 3d 957, 960 (8th

Cir. 2002).

Hence, Appellant without the knowledge of the true contents of the report could

not request accommodations from USF Disability Services from 2010-2012 and could

not be on ADHD medications since Neuropsych evaluation was considered a “definitive

diagnostic criteria” as per USF Counseling Center policies (Dkt. 29-1, p. 117). The

student was reinstated, however, as per University protocol; was automatically placed on

Academic Probation standing on the basis of the disability. The past academic failures
 31

due to “unknown legal disability” were held against the student and contributed to her

dismissal the following year for academic and professional reasons.

After reinstatement she was placed in severe hostile conditions (Dkt. 23-6, p. 8).

She was automatically placed in academic probation standing which is against the US

DOE’s policies that Congress enforces for individuals with disabilities under Section 504

(34 C.F.R. Part 104). The “F” s in her transcripts remained due to University error, and

would be used against her for future employment and residency applications.

The former Associate Dean of Student Affairs of USF MCOM was asked during

pre-trial proceedings in deposition; for reason the Petitioner was placed in academic

probation standing. The reason was because she had a disability and which is “some sort

of deficit” (Dkt. 29, pp. 57-58).

Q. So, here, number eight, this readmission places Zainulabeddin on

academic probation again?
A. Correct
Q. Would that be standard when a student’s readmitted?
A. It is—yes, it is standard because obviously that student had left with
some deficit, so it is really more standard because of the deficit rather than just
readmission, but it’s in direct reference to why she would have initially been
placed on academic probation.
Q. And there’s no---there’s no direct reference here to disability or
ADHD.
A. There was not. Well, there is---there’s an obtuse reference. Where it
says that due to new information made available to the committee, that is the new
information.
Q. Okay, So is there a particular reason that you’re aware of why the issue
of disability wouldn’t be raised directly in this sort of document?
A. I can’t answer that since I didn’t craft the language and I’m not sure
why if somebody was being coy or just chose to be general. It could be any
reason. (Dkt. 29, Dr. Specter Deposition Transcript, p. 56-58).
 32

The school had adopted pass and fail system; and passing grade was set by

medical school, as stated by the Pre-Clerkship Curriculum Director in an e-mail dated

October 12, 2012 to all course directors in medical school that passing grade was above

74 (i.e. Satisfactory). In Dr. Spector’s Deposition, he was asked why Petitioner was failed

despite the fact that she had above 74% in the core courses and successfully passed the

final comprehensive basic science exam above the benchmark on her first attempt (USF

National Board of Medical Examination). The basis was that she was held to a higher

standard, i.e. “repeating student standard” because the medications and accommodations

are supposed to give undue advantage to students.

4. Judicial backlash to “medicalized approach” to ADAAA.

The panel’s medicalized approach reverting to judicial backlash sets a dangerous

precedent by negating social disability reform. The panel did not take into account of

administrative barriers that prevented her from access to services under Title II and

section 504 services (i.e. knowledge of her definite diagnosis). ADHD medications are

controlled II substances that are prescribed by a physician. The physician requires a

definite diagnosis. She was suggested by medical school’s contracting services, HELPS

Counseling Ctr to get off medications in Summer 2010, until a definite diagnosis is

determined after neuropsychological evaluation. According to USF Handbook, providing

a copy of the neuropsychological evaluation is a form of a request. The University paid

and arranged for the examination and was faxed to him by the provider. Dr. Specter’s

next step after receiving the report was to inform her of the results, if he had; she would
 33

not have a two-year lapse of ADHD medications as indicated in her medical records. He

should have also contacted USF Disability Services. Dr. Specter did not do that. His

intention was to conceal his error in March 2010 which led to her failure in first year of

medical school. Appellant had requested accommodations upon recommendation from

her physician in March 2010. He refused to provide accommodations stating that a letter

from a physician USF Counseling Center is insufficient, the medical school requires a

report of 8-hour neuropsychological exam. The medical records indicate that this

recommendation was made by USF in March 2010. After failing the first year, she took

the 8-hour exam, as required by stipulation stated in her APRC letter. The results came

to contrary of his bias. Thus, Dr. Specter resorted to withholding the contents of the

report from her. Dr. Specter only revealed the contents of the report after she had already

been dismissed in February 2012.

Based preponderance of evidence, it has become apparent that the pretext of

discriminatory act against Petitioner in March 2010; for denial of accommodations was

because of her race, i.e. Asian. There is a misconception that Asians are “immune to any

disabilities”. Asian American students are expected to work even harder, sacrifice more

than normal population to which their disabilities can go undetected. It is apparent that

the “Asian culture” was insufficient to “save her” in Year II of medical school; as she

was dismissed.

From the documents that the opposing counsel withheld; and was accidently

mailed to her former counsel when she requested a copy of her email account that the
 34

defendant abruptly closed during sensitive discovery period. The defendant’s counsel

work product revealed that numerous students specific to even one race [Asian

Americans16] were singled out to fail courses, exams, and recommended to repeat the

academic year. Such unusual number of deficiencies for one course [Doctoring] was even

raised as a major concern in in an Academic Performance Review Committee meeting,

when 35 students in doctoring course were put on the list to remediate. The reduction of

the number of students to remediate was rooted from an racial standpoint; i.e. bias of

whose names were “Asian” sounding versus non-Asian. This supports the systemic bias

in which seven out of eight second-year repeating students for AY2012-2013; were of

Asian origin. Thus, Appellant was retaliated and pretext of discrimination against her

disability due to her race. Dr. Specter stated during deposition that she was expected

perform at a higher standard than “normal students”. Students for Fair Admissions, Inc.,

v. President and Fellows of Harvard College. ECF. No. 1:14-cv-14176 (filed Nov. 17,

2014).

US DOE regulations that enforces ADAAA 2008 and Title VI; in which it is a

discrimination against someone with a disability to render them “non-disabled” because it

may have been silent due to other neurobehavioral accommodations (i.e. in this instance

“cultural accommodation”). In Students for Fair Admissions v. Harvard Corp., the

16
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”.
 35

complaint stated that Asian students are discriminated against their culture, i.e. held to a

higher standard. 2014 WL 6241935 (D. Mass.) (No. 1:14-cv-14176-DJC). Thus, as

evident in this case; the bar is raised even higher of what constitutes as a “white right”

[accommodations and treatment for ADHD].

C. REASONS FOR GRANTING THE PETITION

The public interest is served to have a constitutional provision of a federal statute,

Title II of ADA Amendment Act of 2008 and antidiscrimination statutes enforced. The

discriminatory practice toward students with a disability is still a “standard” at USF

MCOM; i.e., placing them in academic probation standing if they were reinstated due to

undetected diagnosis and disability and lack of interactive process for students with a

disability (US DOE Regulations, A-1911; Univ. of Chicago, June 9, 2011; OCR case no.

05-10-2189).

1. National issue: Student loan Crisis

One of the contributing causes of national student loan crisis is lack of regulatory

oversight; where students are manipulated. The medical school has no Satisfactory

Academic Performance Appeals (SAP) process as required under contractual relationship

as a state agency that is participating under the federal loan program pursuant to Higher

Education Act of 1965. Appellant did not have to undergo any SAP appeal process when

she failed 1st year and 2nd year. The university’s errors that came to light during

depositions were never reported to Department of Education for her loans. Without

regulations in place, the policies are abused.

 36

2. Pre-textual mixed motive: Title VII discrimination against Asians

In Raytheon Co. v. Hernandez, the supreme court endorsed the use of pretext

proof model in ADA, similar to the one used for Title VII. 540 U.S. 44 (2003). Thus,

based on the premises that Title VII and ADA have similar main proof models; courts

have recognized disparate treatment and disparate impact. The disparate treatment theory

requires proof of motive, whereas, disparate impact theory do not. The mixed-motive

model, under the disparate treatment proof model, plaintiff requires one to prove by

preponderance that the employer took the plaintiff’s protected characteristic into account

when making the adverse employment decision. Desert Palace, Inc. v. Costa, 539 U.S.

90, 93 (2003). In the mixed-motive model framework, the plaintiff requires one to show

that the motivating factor in employer’s decision-making process was race, sex, religion,

color, national origin, or religion. 42 U.S.C. § 2000e-2(a)(1). In Price Waterhouse v.

Hopkins, the employer is required to show under the framework of intentional causation

based on protected class and show based on burden of persuasion, and not mere

production; that it would have made the same adverse decision, despite the fact it had not

considered the protected characteristic. 490 U.S. § 288 (1989); 42 U.S.C. § 2000e-2(m).

Plaintiff requires by the usage of more than mere circumstantial proof of intentional

discrimination that unlawful motivation, caused defendant to take adverse action against

him.

The court has inherent power to allow Appellant to raise a new issue on appeal

that has congruent and proportional impact; waiving the state’s sovereign immunity
 37

under Title VII (pre-textual mix-model motive for disparate treatment). In Jacobsen v.

Filler, the court stated new issue may be introduced by a litigant, or, less often by the

appellate court sua sponte. 790 F. 3d 1362, 1365 (9th Cir. 1986). The successful new

issues concern either court’s own power and protection or protection absent or

incompetent persons. In civil cases, litigants are bound by the errors and omissions those

attorneys make. Absent compelling circumstances, trial and appellate courts normally

should come to aid of litigants. In re First Capital Holdings Corp. Financial Products

Securities Litigation, the court stated “It is elementary that a plaintiff who lacks standing

cannot state a valid cause of action; therefore, a contention based on plaintiff’s lack of

standing cannot be waived under Code of Civil Procedure section 430.80 and may be

raised at any time in the proceeding”. 33 F.3d 29, 30 (9th Cir. 1994).

The preponderance of evidence that raises a new issue and also pretext of

discrimination against her disability is that University has inherent cognitive bias to

which numerous student specific to one race [Asian] are repeatedly singled out, which

includes Appellant. In the academic year of 2012-2013; nine out of fifteen students

failed EBCR were of Asian origin. In Doctoring Final exam, four out of five students of

Asian origin failed two or more stations. Doctoring Course Directors, Dr. Valeriano and

Dr. Stock reviewed final exams on video to check for errors. The course director

exempted all of the non-Asian students on the list, but not the Asian students; and three

out of four students who were confirmed to fail both stations in the final exam were of

Asian origin. Eleven students were required to remediate Final Exam, in which eight out
 38

of eleven were of Asian origin (73%). After review of the overall performance in

doctoring II course; four students were recommended for failure, i.e. Unsatisfactory “U”

grade. All four of those students were of Asian origin. Two out of four students were

given “U” grade; in which Appellant (with disability) was the only one who was

dismissed. Furthermore, from the records that the opposing counsel withheld and from

Appellant’s personal knowledge; from Academic Years 2004-2012; 60% of students who

have failed the year were of Asian origin.

Appellant further analyzed the issue by following similar research protocol of

cohort study conducted in AAMC Reports. From the discovery documents that defendant

withheld, contained the roster of students for five years, that were enrolled at USF

MCOM Class of 2012 to 2016. She compared the students that were initially admitted in

the freshman year versus the list of students in the Residency Match List posted at USF

MCOM’s website. A study by Calbrook, Fessler & Navarete (2016); indicated a strong

correlation between origin of names indicating belonging to certain race and evaluator’s

perceptual bias17. Thus, student’s name were analyzed with respect to belonging to three

races; (1) Caucasian American (2) Asian American (3) other Underrepresented Minority

(UIM). Multiple regression analysis was conducted by STAT DISK 12.0.2 regarding the

relationship between attrition and retention rate for three respective races. The results and

17
Calbrook, C., Fessler, D., Navarrete, C. (2016). Looming large in others eyes: racial
stereotypes illuminate dual adaptations for representing threat versus prestige
as physical size. Evolution and Human Behavior, 37 (2016), pp. 67-78. DOI:
10.1016/j.evolhumbehav.2015.08.004.
 39

AAMC report confirmed the initial contention stated in the motion that attrition and

retention rates for Asian students at USF MCOM is substantially lower than other

students and national average.

The AAMC report indicated that the percentage of minorities representing a

medical school class is rising. The sensitivity and norms toward minority students

requires a cultural change in a highly closed-knit profession. Several reports have

indicated that among the classes of minority based on race; Asian Americans experience

the greatest discrimination in medicine.

3. National epidemic: Physicians are at risk due to toxic culture of abuse.

Furthermore, poor treatment of medical students and physicians in training puts

the public at risk. It is a national epidemic, known as “Do No Harm” led by Dr. Wible,

that “physicians and trainees live in a [toxic] culture of abuse....”. The number of suicide

rate of physicians and trainees is the highest among all professions and has recently

garnered national attention18.

4. Injunction and enforcement to preserve jurisprudence.

The public interest is served with this injunction because it enforces the integrity

of federal judicial process and promotion of public’s faith in the judicial system as a

whole by protecting the reputation of all courts. Granting injunction forbids the use of

18
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.
 40

intentional self-contradiction...as a means of obtaining an unfair advantage. New

Hampshire v. Maine, 532 U.S. at 751 (2001). It is a matter of public interest to ensure

that justice is served and protects our constitutional rights.

CONCLUSION

FOR THESE REASONS, Alia Merchant respectfully requests that this Honorable

Court grant a writ of certiorari, vacate the opinion of the court of appeals, and remand the

case for further review.

Respectfully submitted.

____________________________

Date: February 19, 2019

Alia Merchant
4409 West Varn Avenue
Tampa, FL 33616
[email protected]
APPENDIX
 1a
Appendix A
Case: 17-11888 Date Filed:
(1 of 2)
11/19/2018 Page: 1 of 1
APPENDIX A— DECISION DENYING PETITION FOR PANEL REHEARING,
DATED NOVEMBER 19, 2018
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303

David J. Smith For rules and forms visit

Clerk of Court www.ca11.uscourts.gov

November 19, 2018

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 17-11888-GG

Case Style: Nausheen Zainulabeddin v. University of South Florida
District Court Docket No: 8:16-cv-00637-JSM-TGW

The enclosed order has been entered on petition(s) for rehearing.

See Rule 41, Federal Rules of Appellate Procedure, and Eleventh Circuit Rule 41-1 for
information regarding issuance and stay of mandate.

Sincerely,

DAVID J. SMITH, Clerk of Court

Reply to: Joe Caruso, GG/lt

Phone #: (404) 335-6177

REHG-1 Ltr Order Petition Rehearing

 Case: 17-11888 Date Filed:
(2 of 2)
11/19/2018 Page: 1 of 1
2a
Appendix A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. I7-II888-GG

NAUSHEEN ZAINULABEDDIN,

Plaintiff - Appellant,

versus

UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES,

Defendant - Appellee.

Appeal from the United States District Court

for the Middle District of Florida

BEFORE: ROSENBAUM,BRANCH,and FAY,Circuit Judges.

PER CURIAM:

The petition(s) for panel rehearing filed by the Appellant is DENIED.

ENTERED FOR THE COURT:

i|TED STATES!CIRCUIT JUDGE

ORD-41
 Case: 17-11888 Date Filed: 09/05/2018 Page: 1 of 24
3a
Appendix B
APPENDIX B— DECISION DENYING CONSOLIDATED APPEAL
[DO NOT PUBLISH]
FOR THE 11TH CIR.
DATED SEPTEMBER 5, 2018
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

Nos. 17-11888, 17-12134, 17-12376

Non-Argument Calendar
________________________

D.C. Docket No. 8:16-cv-00637-JSM-TGW

NAUSHEEN ZAINULABEDDIN,

Plaintiff-Appellant,

versus

UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES,

Defendant-Appellee.
________________________

Appeals from the United States District Court

for the Middle District of Florida
________________________
(September 5, 2018)

Before ROSENBAUM, BRANCH, and FAY, Circuit Judges.

PER CURIAM:

Nausheen Zainulabeddin, proceeding pro se on appeal, is a former medical

student at the University of South Florida’s Morsani College of Medicine (the

“medical school”). After her dismissal from the medical school in May 2013,
 Case: 17-11888 Date Filed: 09/05/2018 Page: 2 of 24
4a
Appendix B

Zainulabeddin, who has attention deficit hyperactivity disorder (“ADHD”), sued

the University of South Florida Board of Trustees (“USF”), contending that she

was discriminated against due to that disability and that USF otherwise breached

its obligations to her. She brought discrimination and retaliation claims under the

Rehabilitation Act, 29 U.S.C. § 794, and claims of breach of fiduciary duty and

negligent misrepresentation under Florida law. The district court granted summary

judgment to USF, denied her post-judgment motions for reconsideration of that

ruling and recusal of the district judge, and granted USF’s motion to tax costs.

Zainulabeddin appeals all of these rulings, which we have consolidated. After

careful review, we affirm the district court in all respects.

I. Factual Background 1

In 2008, Zainulabeddin was “informally” diagnosed with ADHD or

generalized anxiety disorder, or both, and she began taking ADHD medication.

The following year, in August of 2009, she began classes at the medical school.

The medical-doctor program has four academic years, which must be completed

within a total of six years. Zainulabeddin completed two academic years in a total

of four years. She was dismissed from the program in March 2013.

1
When reviewing a decision on summary judgment, we view all the evidence and draw
all reasonable inferences in favor of the non-moving party—in this case, Zainulabeddin. Vessels
v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005).
2
 Case: 17-11888 Date Filed: 09/05/2018 Page: 3 of 24
5a
Appendix B
Zainulabeddin began having academic difficulties in her first year in the

program (academic year 2009–10). After doing poorly on a cardiology exam in

March 2010, she contacted Dr. Steven Specter, the Associate Dean for Student

Affairs at the medical school. Concerned about failing out of school, she disclosed

the informal ADHD diagnosis to Dr. Specter, who suggested she see a psychiatrist

for her anxiety. She did so. The school psychiatrist told her that disability

accommodations would be the next step if her medications were not working. But

before she could be accommodated, the psychiatrist explained, she would have to

receive a formal diagnosis.

Zainulabeddin met with Dr. Specter again and asked whether she should

take a leave of absence from the program. Dr. Specter advised against it,

suggesting that she try to finish the remaining month and a half of the academic

year. She testified that she likewise felt at that time that she did not need a leave of

absence. Zainulabeddin finished the academic year, but she failed all but one

class. She stopped taking her ADHD medication once the academic year ended.

Because Zainulabeddin failed her first year of the medical-doctor program,

the medical school’s Academic Performance Review Committee (the

“Committee”)—composed of the medical school’s course directors—required her

to obtain a “comprehensive assessment of [her] learning style,” at the school’s

expense. Dr. Mike Schoenberg, a psychologist employed by USF, conducted the

3
 Case: 17-11888 Date Filed: 09/05/2018 Page: 4 of 24
6a
Appendix B
assessment and then prepared a written report, which he submitted to Dr. Specter.

Zainulabeddin refers to this assessment as a “neuropsychological evaluation,” so

we do, too.

Zainulabeddin met with Dr. Specter in October 2010 to go over the results of

her neuropsychological evaluation. Dr. Specter stated that, based on his review of

Dr. Schoenberg’s report, there was “nothing to worry about” and she should

continue studying hard. At that time, Zainulabeddin was unsure whether she had

ADHD or whether she qualified for accommodations, and she did not request any

accommodations. She believed at the time that her attention difficulties may have

been caused by challenging life circumstances rather than ADHD.

For academic year 2010–11, her second year, the Committee permitted

Zainulabeddin to repeat her first-year curriculum while on academic probation.

She completed the repeat first year after being allowed to remediate one class.

Zainulabeddin was taken off probation for her second-year coursework

during academic year 2011–12, her third year. She failed two courses in her first

semester, however, and the Committee dismissed her from the medical school in

January 2012 and denied her first appeal of the dismissal. Zainulabeddin had not

been taking ADHD medication since April 2010.

After her appeal was denied, Zainulabeddin requested and obtained a copy

of her neuropsychological evaluation from Dr. Specter. Contrary to Dr. Specter’s

4
 Case: 17-11888 Date Filed: 09/05/2018 Page: 5 of 24
7a
Appendix B
earlier statements that the evaluation revealed “nothing to worry about,” the

evaluation actually indicated diagnostic impressions of ADHD, and it said that she

qualified for accommodations—testing in a distraction-free environment—based

on having attention difficulties or ADHD, or both. Dr. Specter apologized for his

earlier misrepresentation and said he would correct his mistake by arranging a

meeting with Committee.2 The Committee then reversed its decision, citing “new

information” not previously available, and reinstated her on academic probation.

Because the reinstatement decision occurred midway through the semester, the

Committee put her on a leave of absence for the rest of the 2011–12 academic

year. Meanwhile, Zainulabeddin resumed taking ADHD medication in February

2012, once she received a copy of the neuropsychological evaluation.

Zainulabeddin returned in the fall for academic year 2012–13, her fourth

year in the program, to repeat the second-year curriculum. That year, she took all

exams with accommodations, including increased time and a distraction-free

environment. Her instructors also permitted her to view lectures online from her

home rather than attending class. Nevertheless, she still failed two courses:

Doctoring II and Evidence Based Clinical Reasoning II (“EBCR II”).

Zainulabeddin believes she was singled out to fail these courses because,

among other things, she received “U” or “unsatisfactory” grades, rather than the

2
Dr. Specter disputed Zainulabeddin’s testimony on this fact, but we resolve this dispute
in her favor.
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“T” or “temporary” grades that, according to her, other failing students received.

Testimony and documents reflect that T grades are not reported on a student’s

transcript and are used to designate the need to correct a minor or narrow issue.

Once corrected, the T grade is converted to a passing grade. U grades, by contrast,

are reported on transcripts and used to designate more global deficiencies.

In light of her two failed courses and her prior academic difficulties, the

Committee decided to dismiss Zainulabeddin from the medical school on March

14, 2013. She appealed. While her appeal was pending, she was allowed to

remediate the two courses she had failed, and she ultimately passed both courses,

thereby completing the second-year curriculum. Nevertheless, despite her

remediation, the medical school refused to reconsider its dismissal decision and

denied her appeal in May 2013.

Meanwhile, on March 12, 2013, two days before the Committee dismissed

her from the program, Zainulabeddin contacted Dr. Frazier Stevenson about

obtaining accommodations for an upcoming test called the Comprehensive Basic

Science Exam (“CBSE”). Because the test was administered by the National

Board of Medical Examiners (“NBME”), her accommodations had to be arranged

with that organization. The medical school contacted the NBME to arrange

disability accommodations for Zainulabeddin, though, ultimately, she did not take

the exam that year because she was dismissed from the medical school.

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II. Procedural History

Zainulabeddin filed this case with the assistance of counsel on January 22,

2016. She claimed that USF violated the Rehabilitation Act of 1973, 29 U.S.C.

§ 794, by dismissing her from the medical school on the basis of disability and

retaliating against her for requesting disability accommodations for the CBSE. She

alleged state-law claims of breach of fiduciary duty and negligent representation

against Dr. Specter, relating to his failure to accurately convey to her the results of

the neuropsychological evaluation in October 2010. 3

After removing the case to federal court, USF moved for summary

judgment, contending that Zainulabeddin’s Rehabilitation Act claims failed on the

merits and that her state-law claims were barred either by the statute of limitations

or by sovereign immunity. In response, Zainulabeddin (1) argued that sufficient

evidence of discrimination and retaliation existed; (2) conceded that her breach-of-

fiduciary-duty claim was “facially barred by the applicable statute of limitations”

but asserted that USF was equitably estopped from asserting that defense because

its “affirmative misconduct” caused her to forgo bringing suit at an earlier time;

and (3) disputed that USF was entitled to sovereign immunity against the state-law

claims.

3
Zainulabeddin conceded at summary judgment that her remaining state-law claims—for
breach of contract and unjust enrichment—were barred by sovereign immunity, and she does not
address these claims directly on appeal. We therefore deem them abandoned.
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The district court granted summary judgment to USF. The court found

insufficient evidence of discrimination or retaliation. As for Zainulabeddin’s state-

law claims, the court concluded that her breach-of-fiduciary-duty claim was time

barred and that her negligent-representation claim failed either because it was time

barred or because USF was protected by sovereign immunity.

Post-judgment, Zainulabeddin filed a motion seeking reconsideration of the

summary-judgment ruling and recusal of the district judge. In support of her

recusal request, she claimed that the judge had a “potentially significant conflict of

interest” because he was a member of the USF Economic Development Board and

Chair of the USF School of Psychology Advisory Committee. The district judge

denied the motion, stating that he had not served on any board or committee for

USF since the late 1990s and that he had no involvement with the medical school.

Meanwhile, USF moved to tax certain costs of litigation against

Zainulabeddin. USF sought a total of $5,802.15 for the costs of the removal fee,

service of subpoenas, deposition transcripts, witness fees, and copying fees. Over

Zainulabeddin’s opposition, the district court determined that USF was entitled to

recover a total of $5,382.15 in costs and then declined to exercise its discretion to

reduce the costs award. The court explained that Zainulabeddin had not provided

sufficient documentation of her inability to pay the costs award and that USF

should not be penalized through the denial of its costs.

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Zainulabeddin timely appealed the grant of summary judgment against her

(No. 17-11888), the denial of her motion for reconsideration/recusal (No. 17-

12134), and the order awarding costs to USF (No. 17-12376). We granted her

motion to consolidate these appeals. We address each ruling in turn.

III. Summary Judgment (No. 17-11888)

We review de novo a district court’s grant of summary judgment, construing

all facts and drawing all reasonable inferences in favor of the non-moving party.

Jefferson v. Sewon Am., Inc., 891 F.3d 911, 919 (11th Cir. 2018). Summary

judgment is proper if “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

central inquiry at summary judgment is whether the evidence, construed in the

light most favorable to the non-moving party, would permit a reasonable jury to

return a verdict in her favor. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,

742–43 (11th Cir. 1996).

We liberally construe briefs filed by pro se parties. Timson v. Sampson, 518

F.3d 870, 874 (11th Cir. 2008). Even so, “issues not briefed on appeal by a pro se

litigant are deemed abandoned.” Id.

A. Rehabilitation Act

The Rehabilitation Act prohibits any program or activity that receives

federal financial assistance, which includes the medical school here, from

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discriminating against any “otherwise qualified individual with a disability . . .

solely by reason of her or his disability.” 29 U.S.C. § 794(a). In the context of

postsecondary education, an otherwise qualified individual is a person who is able

to meet the academic and technical standards requisite to admission or

participation in the education program or activity. See Onishea v. Hopper, 171

F.3d 1289, 1300 (11th Cir. 1999) (en banc); 34 C.F.R. § 104.3(l)(3). The district

court found that Zainulabeddin was not an “otherwise qualified” individual, but we

do not reach that issue.4 No reasonable jury could conclude that she was

discriminated against solely by reason of her disability.

Discrimination claims under the Rehabilitation Act are governed by the

same standards used in cases brought under the Americans with Disabilities Act

(“ADA”). 5 Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000). When a plaintiff

offers circumstantial evidence to prove a discrimination claim, courts analyze the

claim using the burden-shifting framework outlined in McDonnell Douglas Corp.

4
Because the district court’s analysis on this issue was bound up with the inquiry into
whether USF’s proffered reason was pretextual, we consider whether Zainulabeddin met the
medical school’s academic standards at the pretext stage of the analysis. Cf. Alvarez v. Royal
Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010) (stating that issues “bound up in the
inquiry into whether [the employer’s] proffered reason . . . was a pretext for discrimination”
should be considered “at the pretext stage of the analysis”).
5
Zainulabeddin asserts that the district court incorrectly applied Title I of the ADA to her
Rehabilitation Act claims, when Title II of the ADA provided the proper standards. She does not
explain in clear terms what she means by this, however. And under our precedent, the district
court properly applied the analysis for disability-discrimination claims under the ADA to her
discrimination claim under the Rehabilitation Act, which required her to prove discrimination
“solely by reason of her . . . disability.”
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v. Green, 411 U.S. 792 (1973). See Durley v. APAC, Inc., 236 F.3d 651, 657 (11th

Cir. 2000). Under this framework, if a plaintiff establishes a prima facie case of

discrimination and the employer proffers a legitimate, non-discriminatory reason

for its adverse action against the plaintiff, then the plaintiff must show that the

employer’s proffered reason was a pretext for discrimination. E.E.O.C. v. Joe’s

Stone Crabs, Inc., 296 F.3d 1265, 1272–73 (11th Cir. 2002).

In certain circumstances, an educational institution’s refusal to accommodate

the needs of a disabled person amounts to discrimination against that person

because of her disability. See Se. Cmty. Coll. v. Davis, 442 U.S. 397, 412–13

(1979). However, the Rehabilitation Act does not require an educational

institution to lower or effect substantial modifications of standards to

accommodate a student’s disability. Id. at 413. Where the purpose of an

educational program is to train persons to serve their profession in customary

ways, an institution’s refusal to make “major adjustments” to its program does not

amount to disability-based discrimination. Id.

The Rehabilitation Act also incorporates the anti-retaliation provision from

the ADA. See 29 U.S.C. §§ 791(f), 793(d), 794(d). Under the ADA’s anti-

retaliation provision, “[n]o person shall discriminate against an individual because

such individual has opposed any act or practice made unlawful by this chapter.”

42 U.S.C. § 12203(a). This anti-retaliation provision is similar to Title VII's

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prohibition on retaliation. See Stewart v. Happy Herman’s Cheshire Bridge, Inc.,

117 F.3d 1278, 1287 (11th Cir. 1997). Accordingly, we assess retaliation claims

pursuant to the Rehabilitation Act under the framework used for Title VII

retaliation claims. See id.

Here, the district court properly granted summary judgment to USF.

Construing the evidence and drawing all reasonable inferences in her favor, no

reasonable jury could conclude that USF discriminated against Zainulabeddin

because of her disability, refused to provide reasonable accommodations, or

retaliated against her for requesting accommodations. Rather, the record makes

clear that Zainulabeddin was dismissed from the program for poor academic

performance.

USF produced ample and largely uncontroverted evidence of

Zainulabeddin’s academic difficulties throughout her four years of study at the

medical school. She was initially dismissed from the program in January 2012

after taking two years to complete the first-year curriculum and failing two second-

year courses in the first semester of her third year. Eventually, the Committee

reinstated her and allowed her to repeat the second-year curriculum with

accommodations for her ADHD, including increased time for exams and a

distraction-free environment. She also received numerous extensions to complete

assignments and exams. But she continued to struggle nonetheless, failing two

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courses, Doctoring II and EBCR II, which she then had to remediate to earn

passing grades. In short, Zainulabeddin finished two years of coursework in four

years and was still struggling to pass even with disability accommodations.

Because the medical school required all of its students to finish the four-year

medical-doctor program in six years, the Committee had substantial reason to

doubt that Zainulabeddin could successfully complete the remaining two years of

the program in the maximum time allotted. Moreover, its decision to dismiss her

from the program was consistent with its policies as reflected in the student

handbook. According to the student handbook, a student was subject to dismissal

from the program at any time if she had more than one failing grade at a time or

failed any course while on academic probation. Additionally, the handbook

provided that a student was subject to dismissal even if she had passing

performance where her record consisted of multiple deficiencies or failures with

subsequent remediation. All of these deficiencies are reflected in Zainulabeddin’s

academic record, including, most notably, that of her fourth and final year, when

she failed two courses while on probation and then passed only with subsequent

remediation. Thus, the Committee’s decision to dismiss Zainulabeddin from the

program was fully supported by her academic record and the medical school’s

policies.

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Zainulabeddin has not shown that USF’s legitimate, non-discriminatory and

non-retaliatory reason for her dismissal—poor academic performance—was

actually a smokescreen for disability discrimination or retaliation. Liberally

construed on appeal, Zainulabeddin’s briefing claims that USF refused to

accommodate her ADHD and held her to a different academic standard than other,

non-disabled students. 6 The record does not support these contentions, however.

USF did not fail to provide reasonable accommodations. Zainulabeddin did

not request accommodations until after January 2012 and, in fact, did not believe

that she needed any before that time. 7 USF was not obligated to accommodate her

before she requested accommodations. See Gaston v. Bellingrath Gardens &

Home, Inc., 167 F.3d 1361, 1363 (11th Cir. 1999) (“[A] plaintiff cannot establish a

claim under the Rehabilitation Act alleging that the defendant discriminated

against him by failing to provide a reasonable accommodation unless he demanded

such an accommodation.”). Then, once Zainulabeddin requested accommodations,

6
In addition, Zainulabeddin asserts that Congress abrogated state sovereign immunity for
claims brought under the ADA and that her federal claims were not time barred because the
federal fallback statute, 28 U.S.C. § 1658, applies. These arguments appear to be responding,
albeit in misguided fashion, to the court’s resolution of her state-law claims. Therefore, we
address them, to the extent relevant, below. To the extent she intends these arguments to relate
to her Rehabilitation Act claims, they provide no basis for relief because the court did not find
that USF was entitled to sovereign immunity against her federal-law claims or conclude that
these claims were untimely.
7
Zainulabeddin’s earlier question to Dr. Specter about taking a leave of absence cannot
reasonably be construed as a request for an accommodation because she did not clearly request a
leave of absence and did not feel that she needed a leave of absence at that time. Nor did she
attribute her academic difficulties at that time to her ADHD.
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USF reinstated her and permitted her to repeat her second-year coursework with

accommodations, and she does not clearly identify any deficiency in the

accommodations she received after February 2012.

Further, the record does not support Zainulabeddin’s claim that USF held

her to a different standard than other students because of her disability. There is no

evidence that she was held to a different standard than any other repeating student,

whether disabled or not. In fact, she conceded that USF had a standard that

repeating students “should not fail any classes, period.”

Nor can Zainulabeddin rely on her status as a repeating student on probation

as evidence of disability discrimination in this case. While the medical school may

have had reason to suspect that her poor academic performance in previous years

was due to her unaccommodated disability, that recognition was embodied in the

decision to allow her to repeat the second-year curriculum with accommodations.

In other words, the Committee’s decision indicates its judgment that her

unaccommodated ADHD may have inhibited her academic performance, so it gave

her a chance to prove otherwise. Despite that recognition, however, USF was not

required to make “major adjustments” to its medical-doctor program to

accommodate her, by, for example, extending its normal maximum time limit to

complete the program or altering its rules for students who fail an academic year.

See Davis, 442 U.S. at 413. Because she ultimately failed two courses even after

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receiving disability accommodations, the Committee’s subsequent dismissal

decision cannot reasonably be attributed to discrimination. Nor is there any

evidence of retaliation, since Dr. Stevenson was not part of the Committee and did

not have any clear input into that decision.

Zainulabeddin also takes issue with her grades in the two courses she failed

in her fourth year. But she has not rebutted the ample record evidence from

multiple sources, recounted by the court in its thorough summary-judgment ruling,

showing that she had significant and wide-ranging difficulties in her EBCR II and

Doctoring II courses, despite her instructors’ efforts to ensure she passed. As the

district court explained, she failed the final exam in Evidence-Based Medicine

portion of EBCR II. 8 With regard to the Doctoring II course, Zainulabeddin

received negative evaluations from multiple sources throughout the course,

including a negative midterm evaluation and a “below expectations” rating on two

of the three stations of her final exam from two evaluators who had no prior

experience with her. Finally, like the district court, we can see nothing

discriminatory in Zainulabeddin’s receipt of “U” grades rather than “T” grades,

even if the grading system is otherwise subject to criticism.

8
Zainulabeddin claims that she should have received a passing grade in the Evidence-
Based Medicine portion of EBCR II because she received a 67.5 grade on the final, which,
combined with her presentation score, amounted to a passing grade. However, we disregard this
contention because, at her deposition, she testified that she received a 65 on the final the first
time she took it. She also prepared a summary of her grades in EBCR II that listed her final
exam score as 65. And as the district court explained, because the exam constituted 90% of her
grade, she could not have passed the course with a 65 on the final exam.
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For all of these reasons, no reasonable jury could conclude that USF was

motivated by discriminatory or retaliatory animus in dismissing Zainulabeddin

from the medical doctor program. We therefore affirm the district court’s grant of

summary judgment to USF on her claims under the Rehabilitation Act.

B. State-Law Claims

Zainulabeddin’s claims for breach of fiduciary duty and negligent

misrepresentation arise out of Dr. Specter’s failure to inform her that she qualified

for disability accommodations in October 2010. The court concluded that the

breach-of-fiduciary claim was time barred and that the negligent-misrepresentation

claim either was time barred or barred by sovereign immunity.

Taking the timeliness issue first, Zainulabeddin offers two reasons why, in

her view, her claims were improperly dismissed as untimely. First, she asserts, the

limitations period did not begin to run until she discovered the contents of her

neuropsychological evaluation in February 2012. Second, she argues, USF is

equitably estopped from asserting a statute-of-limitations defense. Neither

contention is availing.

Under Florida law, a four-year limitations period applies to claims for

negligence, including breach of fiduciary duty. See Fla. Stat. § 95.11(3); Patten v.

Winderman, 965 So. 2d 1222, 1224 (Fla. Dist. Ct. App. 2007). In general, “a cause

of action accrues or begins to run when the last element of the cause of action

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occurs.” Davis v. Monahan, 832 So.2d 708, 709 (Fla. 2002). This rule is subject

to an exception. Under the “delayed discovery” doctrine, “a cause of action does

not accrue until the plaintiff either knows or reasonably should know of the

tortious act giving rise to the cause of action.” Hearndon v. Graham, 767 So.2d

1179, 1184 (Fla. 2000). The Florida Supreme Court has made clear, however, that

this doctrine does not apply unless the Florida legislature has incorporated it into

the relevant statute of limitations. See Davis, 832 So.2d at 701–11.

Here, the delayed discovery doctrine does not apply to Zainulabeddin’s

claims because the relevant statute of limitations does not incorporate that doctrine.

See Patten, 965 So.2d at 1224 (“[T]he trial court properly determined that the

delayed discovery doctrine does not apply to Patten’s breach of fiduciary duty

count.”). And she does not otherwise dispute the district court’s finding that her

claims accrued in October 2010. Because she did not file this action until January

2016, well after the four-year limitations period ran, the court properly concluded

that her claims were untimely.

Furthermore, the district court properly concluded that equitable estoppel did

not apply. “Equitable estoppel presupposes a legal shortcoming in a party’s case

that is directly attributable to the opposing party’s misconduct.” Major League

Baseball v. Morsani, 790 So.2d 1071, 1077 (Fla. 2001). Florida courts apply

equitable estoppel to prevent a defendant from asserting the statute of limitations

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as a defense when the defendant’s misconduct induced the plaintiff to forbear

bringing suit within the applicable limitations period. See id. at 1078–79.

Here, however, USF’s actions did not prevent her from filing suit within the

limitations period. By February 2012, she knew that Dr. Specter had

misrepresented the contents of her neuropsychological evaluation, and by May

2013, she knew that her appeal of her second dismissal from the program had been

denied, leaving her with well over a year in which to file suit. Because USF’s

conduct did not prevent her from filing on time, we conclude that equitable

estoppel does not apply.

On the issue of sovereign immunity, Zainulabeddin fails to address the

district court’s conclusion that sovereign immunity applies to her negligent-

misrepresentation claim to the extent it was based on bad faith rather than

negligence. While she makes reference to Congress’s abrogation of state

immunity through the ADA or the Rehabilitation Act, these issues of federal law

are not relevant to her state-law claims. We conclude, therefore, that she has

abandoned any challenge on this issue. See Timson, 518 F.3d at 874.

In any case, we cannot say that the district court erred. Under Florida law,

the state and its agencies have sovereign immunity and cannot be sued unless the

Florida legislature has waived that privilege. See Pan-Am Tobacco Corp. v. Dep’t

of Corr., 471 So.2d 4, 5 (Fla. 1984). State agencies sharing in that immunity

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include “state university boards of trustees,” like the defendant here. See Fla. Stat.

§ 768.28(2). Although Florida has generally waived immunity for torts, it has

retained immunity for torts committed in bad faith by its employees. Fla. Stat.

§ 768.28(9). Zainulabeddin’s negligent-misrepresentation claim, if based on a

theory of bad faith, was barred by sovereign immunity because Florida has not

waived immunity for torts involving fraud. And if based on a negligence theory, it

was time barred for the reasons explained above. Accordingly, we affirm the grant

of summary judgment on her state-law claims.

IV. Reconsideration/Recusal (No. 17-12134)

Zainulabeddin contends that Judge Moody, the district judge who handled

her case, should have recused himself because he previously served as a member

of the USF Economic Development Board and the Chair of the USF School of

Psychology Advisory Committee.

We review a judge’s decision not to recuse for abuse of discretion. Murray

v. Scott, 253 F.3d 1308, 1310 (11th Cir. 2001). Recusal is required in any

proceeding in which the judge’s impartiality might reasonably be questioned—that

is, where an objective, fully informed lay observer would entertain significant

doubt about the judge’s impartiality. 28 U.S.C. § 455(a); Curves, LLC v. Spalding

County, Ga., 685 F.3d 1284, 1287 (11th Cir. 2012). A judge must also disqualify

himself where he has a personal bias concerning a party. 28 U.S.C. § 455(b)(1).

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Section § 455(b)(1) requires that the judge actually have a personal bias or

prejudice concerning a party and is narrower than § 455(a). Curves, LLC, 685 F.3d

at 1288.

Here, the district judge did not abuse his discretion by denying

Zainulabeddin’s motion for recusal and declining to recuse himself. Under the

narrower standard of § 455(b)(1), Zainulabeddin presented no evidence of actual

bias, so Judge Moody was not required to recuse himself under that section. See

Curves, LLC, 685 F.3d at 1288. Nor was Judge Moody required to recuse under

the broader standard of § 455(a). A fully informed lay observer would not

entertain significant doubt about Judge Moody’s impartiality. See id. at 1287. As

Judge Moody stated, he had no involvement with the medical school and had not

served on the two committees since the late 1990s. Zainulabeddin has not raised

any argument or presented any evidence refuting these statements. Accordingly,

Judge Moody did not abuse his discretion by denying Zainulabeddin’s motion for

recusal and declining to recuse himself.

As for the district court’s denial of Zainulabeddin’s motion for

reconsideration, she does not directly address that decision, so we conclude that

she has abandoned her challenge to that ruling. See Timson, 518 F.3d at 874. In

any event, having reviewed her motion and the supporting documentation, we

cannot say that the district court abused its discretion in denying the motion on the

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ground that it did not call into doubt the correctness of the summary-judgment

ruling.

V. Costs (No. 17-12376)

We review costs awards for an abuse of discretion. Yellow Pages Photos,

Inc. v. Ziplocal, LP, 846 F.3d 1159, 1163 (11th Cir. 2017). “Under the abuse of

discretion standard, the proper inquiry is not how the reviewing court would have

ruled if it had been considering the case in the first place, but whether the premise

upon which the district court exercised its discretion was correct.” Manor

Healthcare Corp. v. Lomelo, 929 F.2d 633, 639 (11th Cir. 1991).

Costs other than attorney’s fees should be allowed to the prevailing party.

Fed. R. Civ. P. 54(d)(1). However, courts may only tax costs authorized by statute.

U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 620 (11th Cir. 2000). Courts may tax

costs including fees for service, witnesses, and depositions necessarily obtained for

use in the case. See id.; 28 U.S.C. § 1920. The party seeking an award of costs

must submit a request that enables the court to determine the party’s entitlement to

those costs. Loranger v. Stierham, 10 F.3d 776, 784 (11th Cir. 1994). Even where

the non-prevailing party is indigent, the district court needs a sound basis to

overcome the strong presumption that a prevailing party is entitled to costs. See

Mathews v. Crosby, 480 F.3d 1265, 1276–77 (11th Cir. 2007).

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Here, the district court did not abuse its discretion by awarding costs to USF.

The court awarded costs for filing fees, service, transcripts and copies necessarily

obtained for use in the case, and witnesses, all of which are statutorily accepted

costs. See 28 U.S.C. § 1920. The court specifically discussed each cost requested

by USF and reduced the cost award to the extent the expenses were unnecessary.

As in Mathews, Zainulabeddin primarily argues that she is indigent and

should not have to pay USF’s costs. See 480 F.3d at 1276–77. But even where the

non-prevailing party is indigent, there must be a sound basis to overcome the

presumption that the prevailing party is entitled to costs, and Zainulabeddin has not

provided one. See id. Accordingly, the district court did not abuse its discretion

when it awarded costs to USF.

VI. Outstanding Motions

Finally, we address several outstanding motions. Zainulabeddin has filed

motions (1) to exceed the type-volume limitation for a motion for an injunction

pending appeal; (2) for a “permanent” injunction pending appeal; (3) to file

redacted exhibits in support of her injunction motion; and (4) to expedite ruling on

the motion for an injunction. Because we have resolved her appeals and concluded

that she is not entitled to relief on the merits of her claims, we DENY AS MOOT

these motions.

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Zainulabeddin has also filed a motion for sanctions against USF, and USF

has responded in kind. We DENY both motions. Sanctions against USF are not

warranted because Zainulabeddin’s numerous allegations of unethical conduct on

the part of USF and its counsel are not supported by any evidence in the record,

and its challenged response to one of her motions on appeal was not unreasonable

or vexatious. At the same time, we cannot conclude that these same allegations,

though inflammatory and unsupported, warrant the imposition of sanctions against

Zainulabeddin, particularly in light of her pro se status and the stress of this saga,

which should now come to a close.

VII.

This case is unfortunate. We acknowledge Zainulabeddin’s desire to

become a medical doctor and her belief that she can realize that goal, but the

record is clear that the medical school did not discriminate or retaliate against her

when it dismissed her from the medical-doctor program for poor academic

performance. We therefore affirm the district court’s grant of summary judgment

to USF under the Rehabilitation Act, and we affirm the court’s other rulings for the

reasons previously stated.

AFFIRMED.

24
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27a
Appendix B
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.
Atlanta, Georgia 30303

David J. Smith For rules and forms visit

Clerk of Court www.ca11.uscourts.gov

September 05, 2018

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 17-11888-GG ; 17-12134 -GG ; 17-12376 -GG

Case Style: Nausheen Zainulabeddin v. University of South Florida
District Court Docket No: 8:16-cv-00637-JSM-TGW

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system,
unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this
day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing
en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for
rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules.
Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and
an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.

Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all
persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In
addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing
en banc. See 11th Cir. R. 35-5(k) and 40-1 .

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on
the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for
writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or
[email protected] for questions regarding CJA vouchers or the eVoucher system.

Pursuant to Fed.R.App.P. 39, costs taxed against the appellant.

Please use the most recent version of the Bill of Costs form available on the court's website at www.ca11.uscourts.gov.

For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block
below. For all other questions, please call Joe Caruso, GG at (404) 335-6177.

Sincerely,

DAVID J. SMITH, Clerk of Court

Reply to: Djuanna Clark

Phone #: 404-335-6161

PS order enclosed.

OPIN-1A Issuance of Opinion With Costs

 Case 8:16-cv-00637-JSM-TGW Document 54 Filed 05/03/17 Page 1 of 3 PageID 2331
28a
Appendix C: DECISION OF THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT
OF FLORIDA, DENYING MOTION FOR RECONISDERATION, DATED MAY 3, 2017
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff,

v. Case No: 8:16-cv-637-T-30TGW

UNIVERSITY OF SOUTH FLORIDA

BOARD OF TRUSTEES,

Defendant.

ORDER

THIS CAUSE comes before the Court upon Plaintiff’s Motion for Reconsideration

(Doc. 48) and Motion for Recusal (Doc. 50). Upon review, the Court denies both motions.

Motion for Recusal

28 U.S.C. section 455(a) requires a judge to disqualify himself in any proceeding in

which his impartiality might reasonably be questioned. “This inquiry is an objective one,

made from the perspective of a reasonable observer who is informed of all the surrounding

facts and circumstances.” Microsoft Corp. v. United States, 530 U.S. 1301, 1302 (2000).

Plaintiff argues that the Court should recuse itself because Judge James S. Moody,

Jr.’s role as a member of the USF Economic Development Board and Chair of the USF

School of Psychology Advisory Committee create a potentially significant conflict of

interest for him. Judge Moody has not served on any board or committee for USF since the

late 1990s, over seventeen years ago. In addition, he had no involvement with USF’s

Morsani College of Medicine (“USF MCOM”). Thus, no reasonable observer would

Case 8:16-cv-00637-JSM-TGW Document 54 Filed 05/03/17 Page 2 of 3 PageID 2332
29a
Appendix C
question his impartiality in this case, and the Court will deny Plaintiff’s Motion for

Recusal.

Motion for Reconsideration

Motions for reconsideration of orders are permitted when there is (1) an intervening

change in controlling law, (2) newly discovered evidence, or (3) the need to correct clear

error or manifest injustice. Tristar Lodging, Inc. v. Arch Speciality Ins. Co., 434 F. Supp.

2d 1286, 1301 (M. D. Fla. 2006), aff'd sub nom. Tristar Lodging, Inc. v. Arch Specialty

Ins. Co., 215 Fed. App'x. 879 (11th Cir. 2007). A motion for reconsideration must

demonstrate why the court should reconsider its prior decision and “set forth facts or law

of a strongly convincing nature to induce the court to reverse its prior decision.” Id. A

motion for reconsideration cannot be used to re-litigate old matters, raise arguments, or

present evidence that could have been raised prior to the entry of judgment. See Parker v.

Midland Credit Management, Inc., 874 F. Supp. 2d 1353, 1359 (M. D. Fla. 2012); see also

Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). “The decision to alter or amend a

judgment is an ‘extraordinary remedy.’” Tristar Lodging, Inc., 434 F. Supp. 2d at 1301.

Plaintiff seeks reconsideration of the Court’s April 19, 2017 order granting

summary judgment in favor of Defendant. Plaintiff reargues many of the points made

during the summary judgment proceedings. Although she attached over 350 pages of new

documents as exhibits to her motion, none of these documents constitute newly discovered

evidence. Some of the documents appear to have been in Plaintiff’s possession since the

initiation of her lawsuit, and others were provided to Plaintiff by Defendant during the

2
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30a
Appendix C
discovery period. Moreover, none of these documents persuade the Court that its prior

order was clearly in error or manifestly unjust. 1

The Court sympathizes with Plaintiff but is constrained to apply the law as it sees

it. It must deny Plaintiff’s Motion for Reconsideration.

It is therefore ORDERED AND ADJUDGED that:

1. Plaintiff’s Motion for Reconsideration (Doc. 48) is denied.

2. Plaintiff’s Motion for Recusal is denied. (Doc. 50)

DONE and ORDERED in Tampa, Florida, on May 3, 2017.

Copies furnished to:

Counsel/Parties of Record

1
If anything, Plaintiff’s documents lend further support for the Court’s legal conclusions
in its April 19 order. Of note, Plaintiff attached documents indicating the U.S. Department of
Education, Office for Civil Rights (“OCR”) conducted an investigation to determine whether USF
MCOM discriminated against Plaintiff on the basis of her disability when it denied her request to
be readmitted to its program, and OCR concluded that there was insufficient evidence to establish
a violation of the Rehabilitation Act.

3
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Appendix D
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NAUSHEEN ZAINULABEDDIN,

Plaintiff,

v. Case No: 8:16-cv-637-T-30TGW

UNIVERSITY OF SOUTH FLORIDA

BOARD OF TRUSTEES,

Defendant.

ORDER

THIS CAUSE comes before the Court upon Defendant's Motion for Summary

Judgment (Doc. 22), Plaintiff’s Response in Opposition (Doc. 27), Defendant’s Reply

(Doc. 37), and Plaintiff’s Surreply (Doc. 41). Having reviewed the Parties’ submissions

and the record evidence, the Court concludes Defendant’s motion should be granted.

BACKGROUND

Plaintiff Nausheen Zainulabeddin filed this action on January 22, 2016, asserting

six claims against her former medical school, the University of South Florida’s Morsani

College of Medicine (“USF MCOM”). Plaintiff attended the medical school from August

2009 to May 2013, at which point she was dismissed from the program. Plaintiff alleges

that USF MCOM violated Section 504 of the Rehabilitation Act because its decision to

dismiss her constituted (1) discrimination on the basis of her disability and/or (2)

retaliation in response to her requesting accommodations on the National Board of

Medical Examiners’ Comprehensive Basic Science Examination (“CSBE”). In addition,

Case 8:16-cv-00637-JSM-TGW Document 42 Filed 04/19/17 Page 2 of 30 PageID 1666
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Appendix D
Plaintiff alleges that (3) USF MCOM’s Vice Dean of Educational Affairs, Dr. Specter,

breached his fiduciary duty to her, (4) Dr. Specter negligently misrepresented to her that

she did not have a disability or need accommodations for her disability, (5) USF MCOM

breached its contractual relationship with her by refusing to reimburse some of her

tuition, and (6) USF MCOM was unjustly enriched by keeping her tuition.

In its Motion for Summary Judgment, USF argues that the Court should enter

judgment for USF on all six of Plaintiff’s claims. Plaintiff concedes that her claims for

breach of contract and unjust enrichment are barred by sovereign immunity because USF

is a state agency. (Pl.’s Resp. 2.) Because Plaintiff has abandoned those two claims, the

Court will grant summary judgment on those claims without further discussion. The

Court will now outline the facts relevant to the other four claims.

RELEVANT FACTS

Before attending medical school, Plaintiff completed a Master’s degree in Medical

Sciences at USF. Midway through her Master’s program, she began to have difficulties

with her studies, particularly in preparing for the MCAT. As a result, Plaintiff sought

medical treatment. In July 2008, a psychiatrist “informally” diagnosed her with Attention

Deficit Hyperactivity Disorder (“ADHD”) and prescribed her medication for ADHD. 1

Plaintiff’s psychologist thought her difficulties were due to anxiety. (Pl. Aff. Ex. E, at 3.)

1
Plaintiff describes the diagnosis as informal because the psychiatrist made it based on
Plaintiff’s self-reported history, consultation with her psychologist, and a standardized
examination, as opposed to a neuropsychological evaluation. (Zainulabeddin Dep. 60:7-20, 65:11-
18, 67:3-14.)

2
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Appendix D
Nevertheless, Plaintiff took Adderall on and off from July 2008 to July 2009, and her

academic performance improved.

In August 2009, Plaintiff enrolled in USF’s Morsani College of Medicine (“USF

MCOM”). Plaintiff did not tell anyone at the school about her ADHD or anxiety or request

any accommodations. She took Adderall consistently that year. Despite this fact, she began

to have academic difficulties in her first semester. In March 2010, after thinking she had

failed a cardiology examination, she met with Dr. Specter. They discussed whether she

should take a leave of absence from school. Ultimately, Plaintiff finished out the year, and

she failed all but one of her final examinations. As a result, she did not pass her first year

of medical school.

USF MCOM has an Academic Performance Review Committee (“APRC”) that

discusses students with deficiencies in their academic performance or professional

behavior and determines what kind of corrective action to take. The APRC consists of the

medical school’s course directors. After Plaintiff failed the first year, the APRC decided

that she could repeat it subject to certain conditions. It placed her on academic probation,

required her to meet with an academic advisor monthly, and required her to obtain “a

comprehensive assessment of [her] learning style” (Pl. Aff. Ex. B), i.e., a

neuropsychological evaluation.

USF MCOM helped students obtain these evaluations because the Vice Dean of

Education recognized that students who struggled academically for no apparent reason

might have “some kind of neuropsychological deficit.” (Specter Dep. 24:16-25.) Pursuant

to USF policy, students needed a neuropsychological evaluation in order to obtain

3
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34a
Appendix D
disability accommodations. Obtaining the evaluations “was a way of trying to make certain

that [USF MCOM] could provide all the help necessary to a student who needed help.” (Id.

at 25:3-5.)

USF MCOM referred Plaintiff for the neuropsychological evaluation and paid for

it. Plaintiff met with the evaluator, Dr. Schoenberg, on August 5, August 12, and September

2, 2010. Dr. Schoenberg issued his report on December 17, 2010. He diagnosed Plaintiff

with ADHD and moderate to severe anxiety. He recommended that Plaintiff engage in

cognitive-behavioral therapy and consider initiation of medication for her anxiety

symptoms. He also stated that she should qualify for special education services due to her

“neuropsychological deficits with primarily attention difficulties,” and he indicated that

she was likely to benefit from tutoring and taking tests in a distraction-free environment.

Dr. Schoenberg provided a copy of his report to Dr. Specter.

At some point during fall or winter of 2010, Plaintiff met with Dr. Specter, and they

discussed the report. Plaintiff did not ask Dr. Specter for a copy of the report, nor did he

give her one. The Parties dispute most other details about this meeting. Plaintiff claims that

she met with Dr. Specter in October 2010, and he told her that there was nothing wrong

with her and she did not need accommodations. According to Plaintiff, Dr. Schoenberg had

not gone over his findings with her, so she relied on what Dr. Specter said. She did not

realize that Dr. Schoenberg had not completed his report at that time. In contrast, Dr.

Specter claims that he met with Plaintiff after he received the report from Dr. Schoenberg.

He states that he reviewed the report with Plaintiff, but not in depth, because she was

already familiar with the contents of the report. According to Dr. Specter, Plaintiff did not

4
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Appendix D
think that she needed the accommodations because she was doing well in her second

attempt at the first-year curriculum.

That year (i.e., the 2010-2011 school year), Plaintiff passed the first-year

curriculum. The APRC took her off of academic probation, and she advanced to the second

year of medical school in fall 2011.

During the 2011-2012 school year, Plaintiff once again began to have academic

difficulties. In September 2011, she failed Medical Sciences 1. The APRC decided to let

Plaintiff remediate that course. Then, in December 2011, Plaintiff failed Medical Sciences

2.

On January 5, 2012, the APRC voted to dismiss Plaintiff from the medical school.

Plaintiff appealed the decision. Initially, on February 2, 2012, the APRC decided to sustain

the dismissal. However, on February 16, 2012, the APRC reconsidered its decision and

overturned the dismissal based on “new info which was not available at the previous

meeting.” (Pl. Aff. Ex. B.)

This new information appears to have been information that Plaintiff had been

diagnosed with ADHD and anxiety but had not previously received accommodations for

her disabilities. Dr. Specter explained in his deposition, “[The APRC] felt that [Plaintiff]

deserved the opportunity to be able to take her coursework with accommodations because

they had not been granted to her previously, not because anybody denied those, but because

. . . she had not applied for those accommodations.” (Specter Dep. 62:14-20.)

Ultimately, the APRC agreed that Plaintiff could repeat the second-year curriculum

in the 2012-2013 school year while on academic probation. It required her to continue to

5
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36a
Appendix D
meet with her academic advisor monthly, coordinate with her counselor and tutor to create

an organized approach to study for the next year, and continue her enrollment in the Kaplan

Classroom Anywhere course to develop successful strategies for “studying[,] developing

integrative habits[,] [and] addressing knowledge base gaps.”2 (Id.)

On March 7, 2012, Plaintiff met with Dr. Schoenberg. She provided him with

additional historical information about the extent of her attention problems, which she had

not previous disclosed to him “[d]ue to cultural and historical factors.” (Pl. Aff. Ex. E.)

This new information did not change Dr. Schoenberg’s diagnostic impressions, but he did

update his recommendations to note that Plaintiff would “benefit from extra time to

complete assignments/tests (time and one-half).” (Id.)

During the 2012-2013 school year, Plaintiff reattempted the second-year

curriculum. She requested disability accommodations from USF’s Students with

Disabilities Services Office, and the Office approved her to take tests in a distraction-free

environment and to receive extra time on tests. Her instructors provided her with these

accommodations as well as others. For example, Plaintiff’s instructors also provided her

with a number of extensions on both assignments and tests. In addition, instructors allowed

Plaintiff to view lectures online from home instead of attending class. (Zainulabeddin Dep.

191:24-192:10.)

2
The Court notes that, although Plaintiff had not requested disability accommodations as
of February 2012, USF MCOM had already connected her with resources to help her succeed in
medical school. Dr. Specter had obtained tutors for Plaintiff, and he had also connected her to a
counseling program. These resources appear to be the “counselor” and “tutor” referenced by the
APRC.

6
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Appendix D
Despite these accommodations, Plaintiff continued to have academic problems.

Plaintiff was deficient in her “ICM proficiency.”3 (Pl. Aff. Ex. B.) In addition, she received

failing grades in two of her first semester classes—Doctoring II and Evidence-Based

Clinical Reasoning II (“EBCR II”).

Plaintiff received notification that she failed Doctoring II on March 12, 2013.

Later on March 12, Plaintiff emailed Dr. Stevenson, an Associate Dean of USF

MCOM, to request an accommodation of double the time to take the National Board of

Medical Examiners’ Comprehensive Basic Science Exam (“CBSE”). Dr. Stevenson

responded, “I would STRONGLY advise you to take the CBSE under the same testing

conditions as you will use for Step 1. If that means no accommodations, then use no

accommodations. Please speak with Dr. Specter or me before requesting these

accommodations. We want you to succeed on Step one.” (Pl. Aff. Ex. L.) Plaintiff then

replied, explaining why she wanted the extra time. Dr. Specter was cc’d on all three of

these emails.

The next day, on March 13, Plaintiff took the final examination for the Evidence-

Based Medicine (“EBM”) portion of her EBCR II class. She failed the examination, which

comprised 90% of her final grade in EBM. Because she had to pass EBM to pass EBCR

II, she did not pass EBCR II.4

3
It is not clear from the record what “ICM” stands for or what “ICM proficiency” is.
4
Plaintiff now disputes whether she should have failed EBCR II. However, it is undisputed
that the course director assigned her a failing grade and she did not appeal the grade using USF
MCOM’s internal procedures.

7
Case 8:16-cv-00637-JSM-TGW Document 42 Filed 04/19/17 Page 8 of 30 PageID 1672
38a
Appendix D
Then, on March 14, the APRC had its meeting to discuss students who were

struggling academically. Plaintiff was on the APRC’s agenda because of her failing grades

in Doctoring II and EBCR II and her deficiency in ICM. The APRC voted to dismiss

Plaintiff from USF MCOM.

Plaintiff appealed the decision. In a letter dated April 5, 2013, the APRC notified

Plaintiff that it had sustained her dismissal. It explained that it was concerned about

“significant gaps in [her] knowledge, clinical performance, clinical reasoning, physical

exam skills, self-directed learning skills, data-gathering skills, and ability to logically

interpret steps and follow instructions.” (Specter Dep. Ex. 11.) It further noted that the

additional information presented in her appeal “did not convince the Committee of [her]

ability to successfully progress through the curriculum.” (Id.)

Dr. Specter attended the APRC meetings in his role as student advocate or liaison.

He was not a part of the APRC, however, and he did not vote in the meetings. In his

deposition, he explained that the APRC was also concerned that Plaintiff would not be able

to complete the four years of medical school curriculum within six years, the maximum

amount of time allowed. The third year of medical school is more challenging than the

second because students have significantly less time to study due to intensive clinical

responsibilities. The APRC did not think that Plaintiff would be able to complete the third-

year curriculum in one year and would therefore be unable to graduate from medical

school.

8
Case 8:16-cv-00637-JSM-TGW Document 42 Filed 04/19/17 Page 9 of 30 PageID 1673
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Appendix D
Plaintiff then appealed her dismissal to the Dean of USF MCOM, Dr. Klasko. On

May 28, 2013, after having met with Plaintiff and reviewed the APRC report, Dr. Klasko

sustained the APRC’s decision.

SUMMARY JUDGMENT STANDARD

Motions for summary judgment should be granted only when the pleadings,

depositions, answers to interrogatories, admissions, and affidavits show there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The

existence of some factual disputes between the litigants will not defeat an otherwise

properly supported summary judgment motion; “the requirement is that there be no genuine

issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)

(emphasis in original). The substantive law applicable to the claimed causes of action will

identify which facts are material. Id. Throughout this analysis, the court must examine the

evidence in the light most favorable to the nonmovant and draw all justifiable inferences

in its favor. Id. at 255.

Once a party properly makes a summary judgment motion by demonstrating the

absence of a genuine issue of material fact, the nonmoving party must go beyond the

pleadings through the use of affidavits, depositions, answers to interrogatories, and

admissions and designate specific facts showing that there is a genuine issue for trial.

Celotex, 477 U.S. at 324. The evidence must be significantly probative to support the

claims. Anderson, 477 U.S. at 248-49 (1986).

9
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Appendix D
This Court may not decide a genuine factual dispute at the summary judgment stage.

Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f factual

issues are present, the Court must deny the motion and proceed to trial.” Warrior

Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute

about a material fact is genuine and summary judgment is inappropriate if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477

U.S. at 248; Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990). However, there must

exist a conflict in substantial evidence to pose a jury question. Verbraeken v. Westinghouse

Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).

DISCUSSION

I. Plaintiff’s Disability Discrimination Claim

A. Legal Framework

Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”) prohibits

agencies that receive federal funding from discriminating against an “otherwise qualified

individual with a disability.” 29 U.S.C. § 794(a). Discrimination claims brought under the

Rehabilitation Act are governed by the same standards as claims brought under Title I of

the Americans with Disabilities Act of 1990 (“ADA”). Holbrook v. City of Alpharetta, 112

F.3d 1522, 1526 n.2 (11th Cir. 1997). When a plaintiff offers circumstantial evidence to

prove discrimination claims, courts analyze these claims using the burden-shifting

framework outlined by the Supreme Court in McDonnell Douglas. See Durley v. APAC,

Inc., 236 F.3d 651, 657 (11th Cir. 2000) (holding the McDonnell Douglas framework

applies to ADA disability discrimination claims).

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Appendix D
Under this framework, the plaintiff must first establish a prima facie case of

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the

plaintiff does so, the burden then shifts to the agency to articulate some legitimate,

nondiscriminatory reason for the adverse action. Id. If the agency meets this burden of

production, the presumption of discrimination raised by plaintiff’s prima facie case is

rebutted. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981). The

plaintiff then has an opportunity to show that the agency’s proffered nondiscriminatory

reason is pretextual. Id.

B. Plaintiff Has Not Proven Her Prima Facie Case.

In order to establish a prima facie case of disability discrimination under the

Rehabilitation Act, Plaintiff must demonstrate the following: (1) she is disabled, (2) she

is a qualified individual, and (3) she was subjected to unlawful discrimination because of

her disability. J.A.M. v. Nova Se. Univ., Inc., 646 F. App'x 921, 926 (11th Cir. 2016)

(citing Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000)).

An “otherwise qualified” individual is one who is able to meet all of a program’s

requirements in spite of her disability. Se. Cmty. Coll. v. Davis, 442 U.S. 397, 406 (U.S.

1979). In the context of postsecondary education, the individual must be able to meet the

academic and technical standards required by the program. J.A.M., 646 F. App'x at 926

(citing Onishea v. Hopper, 171 F.3d 1289, 1300 (11th Cir. 1999)).

In certain circumstances, an educational institution’s refusal to accommodate the

needs of a disabled individual amounts to discrimination against that individual because

of her disability. J.A.M., 646 F. App'x at 926 (citing Se. Cmty. Coll., 442 U.S. at 412-13).

11
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Appendix D
However, Plaintiff does not argue that USF MCOM discriminated against her by failing

to provide her reasonable accommodations, and in fact USF MCOM provided her

accommodations once she requested them in the 2012-2013 school year.

Instead, Plaintiff argues that USF MCOM discriminated against her on the basis of

her disability when it dismissed her from the program in spring of 2013. Plaintiff also

appears to argue that the course directors for Doctoring II and EBCR II discriminated

against her on the basis of her disability when they assigned her failing grades (i.e.,

grades of “U” for “Unsatisfactory”).5 Plaintiff has not established a prima facie case of

discrimination because she has not demonstrated that she was an “otherwise qualified”

individual or that these actions were taken “solely by reason of her . . . disability.” 29

U.S.C. § 794(a).

i. Plaintiff has not demonstrated that she is an “otherwise qualified”

individual.

Plaintiff failed her first year of medical school during the 2009-2010 school year.

She then failed the second-year curriculum during the 2011-2012 school year. And when

she repeated the second-year curriculum during the 2012-2013 school year, she continued

to have academic deficiencies. That year, Plaintiff received a number of accommodations,

like extra time on her examinations, the opportunity to take the examinations in a

5
It is not entirely clear whether Plaintiff is arguing that her Doctoring II course directors
gave her a failing grade due to her disability. She does not explicitly argue this in her Response,
nor does she dispute that she received or should have received a failing final grade in Doctoring II
in her Statement of Disputed Material Facts (Doc. 26). However, in her affidavit (Doc. 28), she
has a heading titled, “Evidence that I Was Singled out to Fail Two Courses in March 2013 Based
on My Disability . . .” The Court will address this argument out of an abundance of caution.

12
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Appendix D
distraction-free setting, and extensions on examinations and assignments, including a

three-month extension to take her Evidence-Based Medicine final examination. Despite

receiving these accommodations—and seeing the course material for the second time

around—Plaintiff did not pass ICM, Doctoring II, or EBCR II. She had to remediate these

courses.

In short, it took Plaintiff four years to complete two years of medical school, and at

the end of that four years she was still not performing satisfactorily. The APRC—the

committee of course directors tasked with reviewing students’ progress in the curriculum—

determined that Plaintiff was not performing up to USF MCOM’s standards. Even Plaintiff

herself acknowledged that she was not meeting school standards, explaining that “when

you are a repeating student there is a standard that you should not fail any classes, period.”

(Zainulabeddin Dep. 176:15-17.)

The standards USF MCOM sets for its students are entitled to deference, and USF

MCOM had no obligation to lower its standards to accommodate Plaintiff. See Wood v.

President & Trustees of Spring Hill Coll. in City of Mobile, 978 F.2d 1214, 1222-23 (11th

Cir. 1992) (citing Se. Cmty. Coll., 442 U.S. at 413). Plaintiff did not meet those standards.

Accordingly, she has not demonstrated that she was an “otherwise qualified” individual

within the meaning of the Rehabilitation Act.

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Appendix D
ii. Plaintiff has not demonstrated that Dr. Stock and Dr. Valeriano

discriminated against her when they assigned her a failing grade

in Doctoring II.

Plaintiff argues that she was singled out to fail Doctoring II due to her disability.

She points to one piece of evidence in support of this argument—that thirty-five other

students had some kind of deficiency in the final examination, but they all received a grade

of “T” for “Temporary” whereas she received a “U.”

This piece of evidence does not support Plaintiff’s argument that she was singled

out to fail because of her disability. Plaintiff has not established that the only difference

between her and the other students was that she had a disability. Instead, the undisputed

evidence indicates that Plaintiff received a “U” because of her inferior performance in the

class.

Neither “T” grades nor “U” grades are considered passing grades—the main

difference involves how much remediation will be required in order to convert the grade

into a passing grade and how quickly that remediation can be completed. In her deposition,

Dr. Stock explained that she assigned “T” grades when students had “a small[,] focal deficit

that results in a failure of a course because of something deemed to be a very small[,] easily

[or] quickly remediable deficit, not a more global knowledge or skills deficit.” (Stock Dep.

70:13-16.) For example, she would issue a “T” if the student had “performed poorly . . . on

one specific assessment,” but not if the student had “a global pattern of not doing well

throughout the course.” (Id., 70:18-24.)

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Plaintiff did not have difficulties on just one assessment like the final examination.

Instead, she had difficulties throughout the course.

Doctoring II is a skills-based course in which students learn how to interview

patients, take their histories, and conduct physical examinations. Faculty members and

senior medical students (referred to as preceptors) observe the students’ clinical

performance.

As one component of the course, students have to draft histories and physicals

(“H&Ps”), write-ups summarizing patients’ histories and physicals the student conducted

while in the clinical setting. Plaintiff’s faculty preceptor, Dr. Estevez, found Plaintiff’s

H&Ps “completely unacceptable.” (Stock Dep. Ex. 16.)

Dr. Estevez expressed additional concerns about Plaintiff’s performance at the

midpoint evaluation in November. She indicated that Plaintiff was “often unprepared” for

doctoring sessions, “need[ed] prompting through the physical examinations,” rarely spoke

up in class, and had not been keeping up with the assigned reading. (Stock Dep. Ex. 9.)

In December, Dr. Estevez emailed Dr. Stock and Dr. Valeriano, asking if students

ever failed Doctoring II. She stated that she had “serious concerns” that she had discussed

with Plaintiff, but Plaintiff had not shown much improvement. (Stock Dep. Ex. 16). She

elaborated that Plaintiff “consistently shows up unprepared, and she was embarrassingly

bad at the Male GU exam, not only displaying a lack of preparation but also a lack of

sensitivity toward the [patient].” (Id.) She further noted that Plaintiff had “lunged for [the

patient’s] private parts without introducing herself or telling him what she was about to

do.” (Id.)

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Appendix D
Plaintiff failed a quiz—the Course 5 quiz—when she first took it. In addition, she

did not pass the OSCE, an observed physical examination. Even though Plaintiff had been

allowed to defer the OSCE for a month, the observing physician, Dr. Slone, reported that

she was “totally unprepared,” “performed parts of the MSK station at an unacceptable

level,” and did not perform the neurology station. (Stock Dep. Ex. 21.)

Thereafter, Plaintiff failed the final clinical evaluation. The two preceptors

evaluating Plaintiff’s performance had no familiarity with her or her previous academic

performance. Dr. Stock and Dr. Valeriano rotated the preceptors for the final evaluations

“to try to give [students] a very objective grade.” Plaintiff’s preceptors rated her

performance as “below expectations without any hesitation.” (Stock Dep. Ex. 25.) In

addition, the patient Plaintiff examined “was furious with her regarding [her]

professionalism.” (Id.)

Lastly, at the end of the course, Dr. Estevez rated Plaintiff “as still [being] below

expected in some areas.” (Stock Dep. Ex. 24.)

Notably, throughout the Doctoring II course, Dr. Stock, Dr. Valeriano, and

Plaintiff’s preceptors worked with Plaintiff in an effort to help her pass the course. For

example, they gave her multiple opportunities to remediate deficiencies (e.g., by allowing

her to redo her H&Ps and retake both the Course 5 quiz and the OSCE). They provided

Plaintiff extensions on assignments and tests. When Plaintiff did not complete assignments

or tests within the extended time period granted, it does not appear that they penalized her.

In addition, Dr. Stock and Dr. Valeriano met with Plaintiff in January to discuss their

concerns, and they developed a plan intended to help her successfully pass the course.

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Despite this fact, Plaintiff did not pass Doctoring II. Dr. Stock and Dr. Valeriano

ultimately decided to assign Plaintiff a “U” grade due to her performance in Dr. Estevez’s

midpoint and final reviews, the OSCE, and the final examination.

Plaintiff has not provided evidence to suggest that Dr. Stock and Dr. Valeriano

assigned her a final grade of “U” based on her disability rather than perceived global

deficits in her skills and performance. During the course, multiple preceptors voiced that

Plaintiff was performing below expectation. Plaintiff exhibited difficulties toward the

beginning of the course and continued to exhibit difficulties throughout. Accordingly,

Plaintiff has not demonstrated that Dr. Stock and Dr. Valeriano failed her due to her

disability.

iii. Plaintiff has not demonstrated that Dr. Kumar and Dr. Roth

discriminated against her when they assigned her a failing grade

in EBCR II.

Plaintiff also argues that she was singled out to fail EBCR II due to her disability.

She points to a few pieces of evidence in support of this argument, including that (1) USF

MCOM has no record of her score on the Evidence-Based Medicine (“EBM”) final, (2)

based on the score Dr. Kumar orally reported to her, she should have passed EBM (and

therefore EBCR II), (3) the fourteen other students who did not pass the EBM portion of

EBCR II received a grade of “T” whereas she received a “U,” and (4) Dr. Kumar assigned

her a “U” instead of a “T” because he was told she had a global deficiency in multiple

classes and not just his.

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None of this evidence indicates that Dr. Kumar and/or Dr. Roth singled Plaintiff out

to fail based on her disability. For example, there is an obvious, non-discriminatory reason

why the EBM grading spreadsheet referenced by Plaintiff does not reflect Plaintiff’s grade

on the final examination—Dr. Kumar granted her a three-month extension to take her final,

and he drafted the spreadsheet well before she had taken it.

Although Plaintiff argues in her affidavit that she should have passed EBM based

on her score on the final, this portion of the affidavit should be disregarded as a sham.

Plaintiff’s EBM grade was based on two scores—her score on the final accounted for 90%

of her grade, and her score on the presentation accounted for 10% of her grade. In her

affidavit, Plaintiff states that Dr. Kumar told her she received a 67.5 on the final. (Pl. Aff.

¶ 65.) She argues that, when considered along with her score of 80 on the presentation, she

should have passed EBM. (Id. at ¶¶ 66-68.) However, Plaintiff’s affidavit is directly

contradicted by (1) her previous deposition testimony, in which she stated that she received

a 65 on the final (Zainulabeddin Dep. 150:20-21, 151:3, 158:12-13) and (2) her written

summary of her performance in EBCR II, in which she noted that she received a 65 (Kumar

Dep. Ex. 13; Roth Dep. Ex. 6). Plaintiff’s affidavit does not attempt to explain this

discrepancy, so the Court need not consider it. See Rollins v. TechSouth, Inc., 833 F.2d

1525, 1530 (11th Cir. 1987). If Plaintiff did indeed receive a 65 on her final, she would

have failed the class regardless of what score she received on her presentation. (See Kumar

Dep. 45:6-13, 52:12-14.)

Lastly, the fact that Dr. Kumar gave other students who failed “T’s” but Plaintiff a

“U” does not support Plaintiff’s argument that he singled her out to fail because of her

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disability. Dr. Kumar testified that he assigned “U” grades when students had more global

deficiencies and were doing poorly in other classes as well. (Kumar Dep. 59:1-25.)

Although the Court agrees that the fairness of this grading practice might be open to

question, it does not indicate that Dr. Kumar treated Plaintiff differently than similarly

situated students without disabilities. There is no evidence that other students with global

deficits but without disabilities received a “T.” The evidence indicates simply that Dr.

Kumar applied this same, possibly unfair grading practice to all of his students, not that he

singled Plaintiff out to fail because of her disability.

iv. Plaintiff has not demonstrated that the APRC or Dr. Kloski

discriminated against her when they decided to dismiss her from

USF MCOM in spring of 2013.

Plaintiff also argues that she was dismissed from USF MCOM due to discriminatory

animus. According to Plaintiff, her Doctoring II and EBCR II course directors singled her

out to fail. Therefore, she contends, the Court can infer that USF MCOM made the decision

to dismiss her based on disability discrimination. The Court disagrees.

As discussed in sections I(B)(ii) and I(B)(iii), supra, Plaintiff has not demonstrated

that her course directors assigned her “U” grades due to her disability or that they harbored

any discriminatory animus toward her. However, even if Plaintiff had proven this, it would

not demonstrate that the APRC and/or Dr. Klasko decided to dismiss her based on her

disability.

As a preliminary matter, Plaintiff has not pointed to any evidence that the APRC or

Dr. Klasko had any bias against students with disabilities. In fact, when Plaintiff failed her

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Appendix D
first year of medical school in 2010, the APRC decided to fund an expensive

neuropsychological evaluation so that Plaintiff could better understand her learning style

and whether she needed disability accommodations. And when the APRC first learned of

Plaintiff’s disability—after she had failed the second year of medical school and was

appealing the initial decision to dismiss her—the APRC voted to reverse her dismissal to

see if she could successfully complete the second-year curriculum with disability

accommodations.

Second, even if Plaintiff were correct that her Doctoring II and EBCR II course

directors had discriminatory animus toward her, they did not get a vote in whether she

should be dismissed. Although course directors were on the APRC, they recused

themselves from votes regarding their own students.

Likewise, even if Plaintiff had proven that her Doctoring II and/or EBCR II course

directors assigned her “U” grades because of her disability, there is no evidence that the

APRC or Dr. Klasko knew that. The APRC voted to dismiss Plaintiff because it believed

she had deficiencies in ICM, Doctoring II, and EBCR II while repeating the second-year

curriculum, and even one deficiency was grounds for dismissal. While there is no evidence

regarding why Dr. Klasko decided to sustain Plaintiff’s dismissal, there is also no evidence

that he did so because she had a disability.

For these reasons, Plaintiff has not demonstrated that USF MCOM dismissed her

due to her disability.

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C. Plaintiff Has Not Proven that USF MCOM’s Legitimate, Non-

Discriminatory Reason for her Dismissal was Pretextual.

Lastly, the Court notes that even if Plaintiff had proven her prima facie case, her

discrimination claim would still fail. USF MCOM offered a legitimate, non-discriminatory

reason for dismissing her from its program—her poor academic performance. Plaintiff

failed two years of medical school, she continued to experience academic difficulties while

repeating the curriculum with disability accommodations, and the APRC did not believe

she would be able to successfully complete the third-year and fourth-year curriculum in the

maximum time allotted.

Plaintiff may show pretext by pointing to “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions” in USF MCOM’s proffered reason.

Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006) (internal

quotation marks omitted). She has not done so. The APRC’s decision to dismiss Plaintiff

comported with USF MCOM’s policy, as described by both Plaintiff and Dr. Specter.

(Zainulabeddin Dep. 176:15-17; Specter Dep. 72:19-73:9.) In addition, Plaintiff has not

demonstrated that the APRC and/or Dr. Klasko treated her differently than a similarly-

situated student without a disability. See Walker v. St. Joseph’s/Candler Health Sys., Inc.,

506 F. App’x 886, 889 (11th Cir. 2013) (internal citations omitted) (“A typical means of

establishing pretext is through comparator evidence.”).

Plaintiff provides nothing more than speculation that USF MCOM dismissed her

due to her disability, as opposed to her academic performance. This is insufficient as a

matter of law.

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Appendix D
II. Plaintiff’s Retaliation Claim

The Rehabilitation Act includes an anti-retaliation provision that prohibits agencies

from discriminating against an individual because he or she has opposed an action that is

unlawful under the Act. Burgos-Stefanelli v. Sec'y, U.S. Dep't of Homeland Sec., 410 F.

App'x 243, 245 (11th Cir. 2011) (internal citations omitted). When plaintiffs offer

circumstantial evidence to prove a retaliation claim, courts analyze these claims using the

same burden-shifting framework outlined in section I(A), supra. Id. at 245-46 (internal

citation omitted).

To establish a prima facie case of retaliation, a plaintiff must show that (1) she

engaged in statutorily protected expression, (2) she suffered a materially adverse action,

and (3) there was some causal relationship between the two events. Simpson v. State of

Alabama Dep't of Human Res., 501 F. App'x 951, 954 (11th Cir. 2012) (citing Holifield v.

Reno, 115 F.3d 1555, 1566 (11th Cir. 1997)). In order to demonstrate a causal relationship,

the plaintiff must, at a minimum, establish that the decision-maker was actually aware of

the protected expression at the time it took the adverse action against the plaintiff. Holifield,

115 F.3d at 1566.

Plaintiff argues that she was dismissed from USF MCOM because she emailed Dr.

Stevenson on March 12, 2013 to ask for an accommodation of double the time on the

National Board of Medical Examiners’ Comprehensive Basic Science Examination

(“CBSE”), and Dr. Stevenson opposed this, so he had the APRC vote to dismiss Plaintiff

from USF MCOM two days later.

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To begin with, it is not clear that Dr. Stevenson actually opposed Plaintiff receiving

accommodations. He recommended that she take the CSBE under the same conditions that

she would take Step 1 (i.e., the Boards) because he “want[ed] [her] to succeed on Step [1].”

(Pl. Aff. Ex. L.)

In any event, there is no evidence that the APRC voted to dismiss Plaintiff due to

her email exchange with Dr. Stevenson, in large part because there is no evidence that

anyone on the APRC knew about it. It is undisputed that Dr. Stevenson was not on the

APRC, and there is no evidence that he told members of the APRC about it.

Plaintiff points out that Dr. Specter was cc’d on the email exchange and attended

the APRC meetings, so he could have influenced the APRC to retaliate against her. Again,

there is no evidence the Dr. Specter told anybody on the APRC about the emails, or that he

had even read the emails before the March 14, 2013 APRC meeting. Furthermore, although

Dr. Specter was cc’d on the email chain, he did not discourage Plaintiff from seeking an

accommodation. In fact, he wrote a letter to the National Board of Medical Examiners a

few weeks later, encouraging the agency to grant Plaintiff’s request for accommodations

on Step 1. (Specter Dep. Ex. 19.)

Under ordinary circumstances, the short amount of time between Plaintiff’s request

for accommodations and her dismissal might indicate foul play. However, the unique

circumstances in this case negate this inference. The APRC had regularly scheduled

meetings; it did not convene on March 14 specifically to discuss Plaintiff. In addition, the

APRC would have discussed Plaintiff at the March 14 meeting regardless of her emails to

Dr. Stevenson. Plaintiff was on the APRC’s agenda for that meeting because she had failed

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Appendix D
Doctoring II and ECBR II and had a deficiency in ICM. For reasons similar to those

outlined in sections I(B)(ii) and (iii), supra, Plaintiff has not demonstrated that she received

these grades in retaliation for requesting accommodations on the CBSE.

III. Plaintiff’s Breach of Fiduciary Duty Claim

In addition to her claims under the Rehabilitation Act, Plaintiff contends that Dr.

Specter breached his fiduciary duty to her when he allegedly (1) advised her not to take a

leave of absence from medical school in spring of 2010 and (2) told her that she did not

have a disability in fall of 2010.

Under Florida law, there is a four-year statute of limitations for breach of fiduciary

duty claims. Fla. Stat. § 95.11(3); Patten v. Winderman, 965 So. 2d 1222, 1224 (Fla. Dist.

Ct. App. 2007). The cause of action accrues when the last element of the cause of action

occurs, and the “delayed discovery” doctrine does not toll the running of the statute of

limitations for these claims. Davis v. Monahan, 832 So. 2d 708, 709 (Fla. 2002).

The elements of a cause of action for breach of fiduciary duty are (1) the existence

of a fiduciary duty, (2) a breach of that duty, and (3) damages that are proximately caused

by the breach. Thus, Plaintiff’s breach of fiduciary duty claim arose in 2010, when the

alleged breach and resulting damages occurred.

Plaintiff did not file this case until January 22, 2016, well after the four-year

limitations period. Plaintiff concedes that her claim is facially time-barred but argues that

USF should be equitably estopped from asserting the statute of limitations because its

actions prompted Plaintiff to delay filing her claim.

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Appendix D
Courts apply equitable estoppel to prevent a defendant from asserting the statute of

limitations as a defense when the defendant’s misconduct has induced the plaintiff to

forbear bringing suit within the applicable limitations period. Major League Baseball v.

Morsani, 790 So. 2d 1071, 1079 (Fla. 2001) (internal citation omitted). “Stated another

way, ‘[e]quitable estoppel arises where the parties recognize the basis for suit, but the

wrongdoer prevails upon the other to forego enforcing his right until the statutory time has

lapsed.’” Black Diamond Properties, Inc. v. Haines, 69 So. 3d 1090, 1093 (Fla. Dist. Ct.

App. 2011) (internal citations omitted); see also Fox v. City of Pompano Beach, 984 So.

2d 664, 667 (Fla. Dist. Ct. App. 2008) (internal citations omitted) (plaintiff can raise

equitable estoppel when defendant willfully induced plaintiff to forego suit until after the

limitations period has ended). “Equitable estoppel presupposes a legal shortcoming in a

party’s case that is directly attributable to the opposing party’s misconduct.” Major League

Baseball, 790 So. 2d at 1077. The doctrine is based on the equitable principle that a party

should not be permitted to profit from its own wrongdoing. Id. at 1079.

Plaintiff argues equitable estoppel applies in this case because Dr. Specter caused

her to forego bringing legal suit when he helped her get readmitted to the medical school

in 2012 and pretended to act as her advocate when appealing her second dismissal in 2013.

Even if the Court assumed that these actions constituted misconduct intended to discourage

Plaintiff from filing suit, this conduct ended when USF MCOM dismissed Plaintiff in May

2013, leaving Plaintiff with about one to one-and-a-half years to file suit. USF did not

induce Plaintiff to forbear bringing suit until after the limitations period had ended. Thus,

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Appendix D
Plaintiff’s failure to file suit is not directly attributable to USF’s conduct, and equitable

estoppel does not apply.

Plaintiff also argues that the Court should apply equitable estoppel because USF has

allegedly engaged in affirmative misconduct in order to conceal its wrongdoing. She relies

on a Florida Supreme Court case, S.A.P., for this proposition. S.A.P. involved unique

circumstances, in which a young foster child was sexually abused by her foster parents,

and the Department of Health and Rehabilitative Services actively concealed the abuse by

falsifying records and hindering the police investigation into the abuse. Florida Dep't of

Health & Rehab. Servs. v. S.A.P, 835 So. 2d 1091 (Fla. 2002). The foster parents and the

Department were the only possible plaintiffs who could bring suit on the child’s behalf.

The child had no memory of the abuse until her late teenage years, when an internal

investigation of the Department released records documenting the abuse. Id. Shortly

thereafter, she sued the Department for its negligence during her foster care placement, and

the court held that the Department could not assert the statute of limitations as a defense to

her untimely suit. Id.

Since S.A.P. was decided, a few courts have cautioned that the decision was

unique to the extraordinary facts of that case and was not intended to extend the law of

equitable estoppel beyond its historical use. See Ryan v. Lobo De Gonzalez, 921 So. 2d

572, 577 (Fla. 2005) (Cantero, J., dissenting); Rubio v. Archdiocese of Miami, Inc., 114

So. 3d 279, 283 (Fla. Dist. Ct. App. 2013). Moreover, this case is factually dissimilar.

Plaintiff was not a minor dependent on USF MCOM to bring suit on her behalf during the

limitations period; she was an adult who understood the basis for her cause of action at

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Appendix D
the time it accrued. Plaintiff has not demonstrated that USF MCOM actively concealed

Dr. Specter’s alleged breaches of fiduciary duty from her during the limitations period.

Indeed, she admitted that she contemplated taking legal action due to Dr. Specter’s

conduct as far back as 2012 (Pl. Aff. ¶¶ 41-42).

For these reasons, the doctrine of equitable estoppel is not applicable to this case.

Plaintiff’s claim for breach of fiduciary duty is time-barred.

IV. Plaintiff’s Negligent Misrepresentation Claim

Lastly, Plaintiff alleges that Dr. Specter negligently misrepresented to her that she

did not have a disability or need accommodations for her disability when they discussed

the results of her neuropsychological evaluation in fall of 2010.

USF argues that this claim is also time-barred by the four-year statute of limitations.

In addition, it argues that Plaintiff cannot sue USF for Dr. Specter’s alleged negligent

misrepresentation because it has sovereign immunity.

The State of Florida and its agencies have sovereign immunity and cannot be sued

unless the Florida Legislature has waived that privilege. See Pan-Am Tobacco Corp. v.

Dep't of Corr., 471 So. 2d 4, 5 (Fla. 1984) (citing Fla. Const. art. X, § 13). Although the

State has generally waived its immunity for torts, Fla. Stat. § 768.28, it has retained

immunity for torts committed in bad faith by its employees, Fla. Stat. § 768.28(9). USF

argues that bad faith is a necessary element of a negligent misrepresentation claim because

negligent misrepresentation sounds in fraud and bad faith is a necessary element of a fraud

claim. Therefore, it argues, sovereign immunity bars Plaintiff’s negligent

misrepresentation claim against it.

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Appendix D
Historically, in Florida, a claim for negligent misrepresentation has sounded in

fraud. Souran v. Travelers Ins. Co., 982 F.2d 1497, 1511 (11th Cir. 1993) (Cox, J.,

concurring in part and dissenting in part) (citing Watson v. Jones, 25 So. 678, 683

(1899); Ostreyko v. B.C. Morton Org., Inc., 310 So. 2d 316, 318 (Fla. Dist. Ct. App.1975)).

Take, for example, the elements of a negligent misrepresentation claim described in

Atlantic Nat. Bank of Florida v. Vest—an actionable suit requires (1) misrepresentation of

a material fact, (2) the representor must either know of the misrepresentation, make the

representation without knowledge as to its truth or falsity, or make the representation under

circumstances in which he ought to have known of its falsity, (3) the representor must

intend that the representation induce another to act on it, and (4) injury must result to the

party acting in justifiable reliance on the misrepresentation. 480 So. 2d 1328, 1331-32 (Fla.

Dist. Ct. App. 1985). The legal scienter articulated in the second element is the same as

that to establish fraud. See Parker v. State of Florida Bd. of Regents ex rel. Florida State

Univ., 724 So. 2d 163, 168 (Fla. Dist. Ct. App. 1998) (internal citations omitted). As a

result, courts have applied the heightened pleading standard and the statute of limitations

for fraud to negligent misrepresentation claims. E.g., McGee v. JP Morgan Chase Bank,

NA, 520 F. App'x 829, 831 (11th Cir. 2013) (applying Rule 9(b) pleading standard);

Ostreyko, 310 So. 2d at 318 (applying statute of limitations for fraud because “negligent

misrepresentation is considered tantamount to actionable fraud”).

Florida state courts have stated that intentional misconduct or bad faith is a

necessary element of fraud. First Interstate Dev. Corp. v. Ablanedo, 511 So. 2d 536, 539

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Appendix D
(Fla. 1987) (intentional misconduct); Parker, 724 So. 2d at 169 (bad faith). This supports

USF’s argument that it has sovereign immunity in regard to Plaintiff’s claim.

That said, it appears that today a litigant may have a cause of action for negligent

misrepresentation without proving fraud or that the person who made the representation

did so in bad faith. See Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334 (Fla.

1997) (adopting the Restatement (Second) of Torts’ position on negligent

misrepresentation and explaining that comparative negligence principles should apply to

negligent misrepresentation because a negligent misrepresenter who has “no intent to

deceive but only good faith coupled with negligence” is less culpable than a fraudulent

misrepresenter); Fla. Std. Jury Instr. (Civ.) 409.8 (requiring a plaintiff to prove just that the

representer made a statement that he believed to be true but was in fact false and that he

was negligent in making the statement because he should have known it was false).

It is not clear from Plaintiff’s Response under what theory of liability she is

proceeding. She did not list the elements of her negligent misrepresentation claim, and the

Court cannot discern whether she intends to argue that Dr. Specter knew he was telling her

a false statement or instead believed he was telling her the truth.

Ultimately, however, it does not matter. If Plaintiff intends to proceed on a theory

of liability for negligent misrepresentation that sounds in fraud, she must necessarily prove

that Dr. Specter acted in bad faith, so USF would be immune from suit. If Plaintiff instead

intends to proceed on a theory of liability that arises out of negligence, her claim is barred

by the four-year statute of limitations. Fla. Stat. § 95.11(3)(a). Her claim arose in fall of

2010, when Dr. Specter allegedly made the false representation and Plaintiff relied on it,

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Appendix D
yet Plaintiff did not file suit until 2016. Equitable estoppel does not apply for the reasons

discussed in section III, supra.

For the foregoing reasons, it is ORDERED AND ADJUDGED that:

1. Defendant’s Motion for Summary Judgment (Doc. 22) is granted.

2. The Clerk of Court is directed to enter final judgment in favor of Defendant

and against Plaintiff.

3. After entry of final judgment, the Clerk of Court is directed to close this case

and terminate any pending motions as moot.

DONE and ORDERED in Tampa, Florida, on April 19, 2017.

Copies furnished to:

Counsel/Parties of Record

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US DOE OCR AGENCY DECISION
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Appendix E