No.

October 2017

IN THE

SUPREME COURT OF THE UNITED STATES

Nausheen Zainulabeddin
— PETITIONER
(Your Name)

VS.

University of South Florida — RESPONDENT(S)

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner asks leave to file the attached petition for a writ of certiorari
without prepayment of costs and to proceed in forma pauperis.

Please check the appropriate boxes:

! Petitioner has previously been granted leave to proceed in forma pauperis in

the following court(s):
United States Courts of Appeals for the Eleventh Circuit and
United States Courts of appeals for the Federal Circuit

! Petitioner has not previously been granted leave to proceed in forma

pauperis in any other court.

! Petitioner’s affidavit or declaration in support of this motion is attached hereto.

! Petitioner’s affidavit or declaration is not attached because the court below

appointed counsel in the current proceeding, and:

! The appointment was made under the following provision of law:

, or

! a copy of the order of appointment is appended.

(Signature)
 AFFIDAVIT OR DECLARATION
IN SUPPORT OF MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

I, Nausheen Zainulabeddin , am the petitioner in the above-entitled case. In support of

my motion to proceed in forma pauperis, I state that because of my poverty I am unable to pay
the costs of this case or to give security therefor; and I believe I am entitled to redress.

1. For both you and your spouse estimate the average amount of money received from each of
the following sources during the past 12 months. Adjust any amount that was received
weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross
amounts, that is, amounts before any deductions for taxes or otherwise.

Income source Average monthly amount during Amount expected

the past 12 months next month

You Spouse You Spouse

Employment $ N/A $ N/A $ N/A $ N/A

Self-employment $ N/A $ N/A $ N/A $ N/A

Income from real property $ N/A $ N/A $ N/A $ N/A

(such as rental income)

Interest and dividends $ N/A $ N/A $ N/A $ N/A

Gifts $ N/A $ N/A $ N/A $ N/A

Alimony $ N/A $ N/A $ N/A $ N/A

Child Support $ N/A $ N/A $ N/A $ N/A

Retirement (such as social $ N/A $ N/A $ N/A $ N/A

security, pensions,
annuities, insurance)

Disability (such as social $ N/A $ N/A $ N/A $ N/A

security, insurance payments)

Unemployment payments $ N/A $ N/A $ N/A $ N/A

Public-assistance $ N/A $ N/A $ N/A $ N/A

(such as welfare)

Other (specify):Federal Student $ $2,166 $ N/A $ 2166 $ N/A

Loans

Total monthly income: $ $2,166 $ N/A $ 2,166 $ N/A

2. List your employment history for the past two years, most recent first. (Gross monthly pay
is before taxes or other deductions.)

Employer Address Dates of Gross monthly pay

Employment
N/A N/A N/A $ N/A
$
$

3. List your spouse’s employment history for the past two years, most recent employer first.
(Gross monthly pay is before taxes or other deductions.)

Employer Address Dates of Gross monthly pay

Employment
N/A N/A N/A $ N/A
$
$

4. How much cash do you and your spouse have? $ $5.00

Below, state any money you or your spouse have in bank accounts or in any other financial
institution.

Financial institution Type of account Amount you have Amount your spouse has
Bank of America Student Checking $ $261 $ N/A
Davenport Univ. Financial Aid $ $3500 $
$ $

5. List the assets, and their values, which you own or your spouse owns. Do not list clothing
and ordinary household furnishings.

! Home ! Other real estate

Value N/A Value N/A

! Motor Vehicle #1 ! Motor Vehicle #2

Year, make & model N/A Year, make & model N/A
Value Value

! Other assets
Description N/A
Value
6. State every person, business, or organization owing you or your spouse money, and the
amount owed.
Person owing you or Amount owed to you Amount owed to your spouse
your spouse money
N/A $ N/A $ N/A

$ $

$ $

7. State the persons who rely on you or your spouse for support.
Name Relationship Age
N/A N/A N/A

8. Estimate the average monthly expenses of you and your family. Show separately the amounts
paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, or
annually to show the monthly rate.

You Your spouse

Rent or home-mortgage payment

(include lot rented for mobile home) $ $810 $ N/A
Are real estate taxes included? ! Yes ! No
Is property insurance included? ! Yes ! No

Utilities (electricity, heating fuel,

water, sewer, and telephone) $ $120 $ N/A

Home maintenance (repairs and upkeep) $ $100 $ N/A

Food $ $500 $ N/A

Clothing $0 $ N/A

Laundry and dry-cleaning $ $65 $ N/A

Medical and dental expenses $ 100 $ N/A

 You Your spouse

Transportation (not including motor vehicle payments) $ 40 $ N/A

Recreation, entertainment, newspapers, magazines, etc. $ 30 $ N/A

Insurance (not deducted from wages or included in mortgage payments)

Homeowner’s or renter’s $ 28 $ N/A

Life $0 $ N/A

Health $0 $ N/A

Motor Vehicle $0 $ N/A

Other: $ $ N/A

Taxes (not deducted from wages or included in mortgage payments)

(specify): $0 $ N/A

Installment payments

Motor Vehicle $ $300 $ N/A

Credit card(s) $$500 $ N/A

Department store(s) $ $200 $ N/A

Other: $ $ N/A

Alimony, maintenance, and support paid to others $ N/A $ N/A

Regular expenses for operation of business, profession,

or farm (attach detailed statement) $ N/A $ N/A

Other (specify): school expenses, textbook $ 100 $ N/A

Total monthly expenses: $ 2893 $ N/A

Please note: that I am unable to pay for limited credit card monthly payment nor
department store debt based on limited student financial aid funds. I will be
working with a credit card consolidation advisor or will have to file bankruptcy.
 9. Do you expect any major changes to your monthly income or expenses or in your assets or
liabilities during the next 12 months?

! Yes ! No If yes, describe on an attached sheet.

Yes, I am in my last year in an online graduate program. Hence, I will
not have financial aid after this year. Additionally, there is no guarantee of financial security of income. I
also have $300,000 of federal student loan debt, $25,000 of credit card debt and now with poor credit due
to collateral damages associated with this suit.
10. Have you paid – or will you be paying – an attorney any money for services in connection
with this case, including the completion of this form? ! Yes ! No

If yes, how much? $10,000

If yes, state the attorney’s name, address, and telephone number:

Stanley R. Apps
1950 Elkhorn Court, Unit #147
San Mateo, CA 94403
(310) 709-3966
11. Have you paid—or will you be paying—anyone other than an attorney (such as a paralegal or
a typist) any money for services in connection with this case, including the completion of this
form?

! Yes ! No

If yes, how much?

If yes, state the person’s name, address, and telephone number:

N/A

12. Provide any other information that will help explain why you cannot pay the costs of this case.
I am federal loan student financial aid recipient on a limited budget, with accrued debt of
about $300,000 from collateral damages associated with this suit. Recently, my transfer offshore
medical school lost its accreditation and also deceived me, in which they stole nearly $20,000 + collateral damages.
I have also a lot of credit card debt of nearly $20,000 associated with damages to this suit, which I am unable to
pay. My family is also financially struggling, and my father underwent emergency heart surgery two weeks this
suit was filed. I cannot strain my father or family, for the risk associated with his health and financial situation.
I declare under penalty of perjury that the foregoing is true and correct.

Executed on: , 20

(Signature)
 No. _______________

In the Supreme Court of the United States

October Term, 2017

NAUSHEEN 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 FEDERAL CIRCUIT
______________________________

NAUSHEEN ZAINULABEDDIN
4730 South Woodlawn Ave. Apt 3D
Chicago, IL 60615
nausheenkhawaja@gmail.com
(773) 675-8974
 ii

QUESTION PRESENTED FOR REVIEW

Contrary to decision of the district court; the United States Court of

Appeals for the Federal Circuit reached the merits of the case, but denied
rehearing for lack of jurisdiction. In Bowen v. Massachusetts, “claim splitting”
is determined by plaintiff’s prime objective in which an injunctive relief is
available under Administrative Procedure Act (APA) and “monetary
damages” [reimbursement] under the Tucker Act. 108 S. Ct 2722 (1988).

In Bowen v. Massachusetts, the Supreme Court concluded that the case was
wrongly filed in District Court and should be transferred to Court of Federal
Claims in which the real goal was for monetary damages under the Tucker
Act. id. The unprecedented question is: if Article III court reached merits of
the case; does it have jurisdiction over an interlocutory appeal and Petition of
Review for retrospective relief under the Tucker Act that is compulsory for
time-sensitive prospective injunctive relief; without depriving APA
jurisdiction?
 iii

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
Federal Circuit.

University of South Florida Board of Trustees (Notice of Appeal dated May

22, 2017)
And

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

(Petition of Review dated May 22, 2017, Joinder requested at USCA FC).
 iv

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDING....................................................................ii

TABLE OF CONTENTS.....................................................................................iii

TABLE OF APPENDICES.................................................................................vi

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

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

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

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

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

A. Preliminary statement.............................................................................2

1. Inter-jurisdictional conflict.................................................................2

2. Collateral Order Doctrine....................................................................3

3. Big Tucker Act and FTCA....................................................................3

4. “Claim Splitting” .................................................................................4

5. District (APA) and Federal Circuit (Tucker Act) ...............................5

6. Common-nucleus-of-operative facts....................................................7
 v

B. Statement.................................................................................................8

1. Taking Clause.....................................................................................8

2. University Administrative Error......................................................18

3. Congress Intent.................................................................................27

4. Interlocutory Appeal..........................................................................30

REASONS FOR GRANTING THE PETITION................................................31

A. Inconsistency of prior court’s rulings......................................................32

B. Jurisdiction..............................................................................................32

C. Special Public Interest............................................................................34

1. Enforcing the U.S. Department of Education Regulatory Reform

Agenda.........................................................................................34

2. Medical Students with Disabilities.............................................36

D. Pre and Post-ADA Amendments Act of 2008........................................37

CONCLUSION..................................................................................................40
 vi

TABLE OF APPENDICES

APPENDIX A— DECISION OF THE UNITED STATES COURT OF

APPEALS FOR THE FEDERAL CIRCUIT, DENYING PETITION
FOR PANEL REHEARING
DATED JULY 27, 2017.........................................................................1a

APPENDIX B— DECISION OF THE UNITED STATES DISTRICT COURT

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

APPENDIX C— DECISION OF FEDERAL AGENCY OF THE UNITED

STATES DEPARTMENT OF EDUCATION, OFFICE OF CIVIL
RIGHTS OF ATLANTA
DATED FEBRUARY 9, 2015..................................................................6a

APPENDIX D— DECISION OF AGENCY APPEAL OF THE UNITED

STATES DEPARTMENT OF EDUCATION, OFFICE OF CIVIL
RIGHTS OF ATLANTA
DATED DECEMBER 16, 2015.............................................................12a

APPENDIX E—DECISION OF COMPLAINT FILED AT

UNITED STATES DEPARTMENT OF EDUCATION, OFFICE OF
CIVIL RIGHTS OF ATLANTA
DATED SEPTEMBER 25, 2014...........................................................13a

APPENDIX F—DECISION OF FOIA REQUEST FROM THE UNITED

STATES DEPARTMENT OF EDUCATION,
DATED AUGUST 30, 2017...................................................................17a

APPENDIX G— DECISION OF FOIA WAIVER FROM THE UNITED

STATES DEPARTMENT OF EDUCATION,
DATED AUGUST 11, 2017...................................................................20a
 vii

TABLE OF CITED AUTHORITIES

Page
CASES:

Arbaugh v. Y. & H Corp,

126 S. Ct. 1235, 1238 (2006) .....................................................................2

Armstrong v. United States,

364 U.S. 40, 49 (1960).........................................................................10,11

Ballard v. Rubin, 284 F. 3d 957, 960

(8th Cir. 2002)..........................................................................................21

Blonder-Tongue Laboratories, Inc. v. University of Ill. Found.,

402 U.S. 313, 329 (1971).........................................................................15

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

Campbell v. State Farm,

539 U.S. 408 (2003)..................................................................................25

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

467 U.S. 837, 842-44 (1984)..............................................................13, 14

City of Monterey v. Del Monte Dunes,

526 U.S. 687, 702 (1999)..........................................................................28

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

103 S. Ct. 1234 (1983).............................................................................15

Dean Witter Reynolds, Inc. v. Fernandez,

741 F.2d 355, 361 (11th Cir. 1984)...........................................................37

Digital Equip. Corp. v. Desktop Direct, Inc.,

114 S. Ct. 1992 (1994) ...............................................................................2
 viii

Enters v. Apfel,
524 U.S. 498, 528-29 (1998)....................................................................28

Federal Deposit Ins. Corp. v. Meyer

510 U.S. 471, 478 (1994)............................................................................3

Guckenberger v. Boston Univ.,

8 F. Supp. 2d 82, (D. Mass. 1998)...........................................................19

Haneke v. Mid– Atl. Capital Mgmt.,

131 Fed.Appx. 399, 400 (4th Cir. 2005).................................................21

Hanna v. Plumer,
380 U.S. 460, 471-72 (1965)..........................................................34

Howard v. Heckler,
782 F. 2d 1484, 1487 9th Cir. (1986)........................................................11

Jacobs v. United States,

13, 16-17 (1933)..........................................................................................3

Kappos v. Hyatt,
132 S. Ct. 1690, 1694(2012).....................................................................11

Keystone Bituminous Coal Ass’n v. Debenedictis,

480 U.S. 470, 497 (1987)..........................................................................13

Kidwell v. Department of the Army,

56 F. 3d 279, 284-85(D.C. Cir. 1995)........................................................5

Liljeberg v. Health Servs Acquisition Corp.,

486 U.S. 847, 861 (1988)..........................................................................28

Louisville & Nashville R.R. v. Mottley,

211 U.S. 149, 152 (1908)............................................................................8

Lurk v. United States.,

366, U.S. 712 (1961).................................................................................29
 ix

Mayes v. Massanari,
276 F. 3d 453, 458-59 (9th Cir. 2001)......................................................11

Mine Workers v. Gibbs,

383, U.S. 715 (U.S. 1966)..........................................................................7

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

37 N.Y. 2d 211, 33 (1927)........................................................................10

Pa Coal Co. v. Mahon.,

260 U.S. 393, 415 (1992)..........................................................................28

Parkley Hosiery Co. v. Shore,

439 U.S. 322, 333 (1979)..........................................................................15

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

371 F. 3d 701, 706 (9th Cir. 2004)............................................................14

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

65 F. 3d 1472, 1480 (9th Cir. 1995)..........................................................14

Retlaw Broad. Co. v. RLRB,

53 F.3d 1002, 1005 (9th Cir. 1995).....................................................11, 27

Ridge Line, Inc. v. United states.,

356 F. 3d 1346 (Fed. Cir. 2003)...............................................................32

Royal Floods Co. v. RJR Holdings Inc.,

252 F.3d 1102, 1106 (9th Cir. 2000).........................................................13

Simanonok v. Simanonok,
918 F. 2d 947, 950-951 (Fed Cir. 1990).....................................................4

Solida v. United States,

778 F. 3d 1351, 1351, 1357, 1360-62 (Fed. Cir. 2015)..............................4

Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998)....................................................................................33
 x

Stone v. United States,

683 F.2d 449, 451 (D.C. Cir. 1982)............................................................4

Sutton v. United Airlines, Inc.,

527 U.S. 471, 475 (1999). ........................................................................38

Taylor v. Phoenixville Sch. Dist.,

184 F. 3d 296, 317– 18 (3d Cir. 1999).....................................................21

Thomason v. Norman E. Lehrer,

P.C., 182 F.R.D. 121, 128 (D.N.J. 1998).................................................33

Timber Co. v. United States,

333 F. 3d 1358, 1365 (Fed. Cir. 2003).....................................................11

United Mine Workers v. Gibbs

383 U.S. 715, 725 (1966)............................................................................9

United States v. Bormes,

133 S. Ct. 12, 16 (2012)..............................................................................7

United States v. Hohri,

107 C. Ct. 2246 (1987) ..............................................................................6

U.S. v. MacDonald,
435 U.S. 850, 860 n.7 (1978).....................................................................3

Wood v. Milyard,
132 S. Ct. 1826, 1835 (2012)... ..................................................................9

Statutes
5 U.S.C. § 701.......................................................................................................5

8 U.S.C. § 2072...................................................................................................34

18 U.S.C. § 1503................................................................................................10

27 U.S.C. § 19.......................................................................................................9
 xi

27 U.S.C. § 1356
“Federal Torts Claims Act”.................................................................5, 30

28 U.S.C. § 149
“Tucker Act”.........................................................................................3, 29

28 U.S.C. § 455...................................................................................................28

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

28 U.S.C. §1292............................................................................................30, 31

28 U.S.C. § 1295...........................................................................................30, 31

28 U.S.C. § 1331.........................................................................................1, 2, 33

28 U.S.C. § 1332...........................................................................................1, 2, 8

28 U.S.C. § 1346.......................................................................4, 9,10, 30, 31, 33

28 U.S.C. §1367............................................................................................7, 8, 9

28 U.S.C. § 1441...............................................................................................1, 2

28 U.S.C. § 1491...............................................................................................3, 4

28 U.S.C. § 1500..................................................................................................4

28 U.S.C. § 1631..................................................................................1, 8, 30, 31

28 U.S.C. § 2674................................................................................................10

42 U.S.C. § 12101
Americans with Disabilities Act Amendments Act of 2008 ................16

Code of Federal Regulations

28 C.F.R. 35........................................................................................................27
 xii

34 C.F.R. 104................................................................................................18, 21

34 C.F.R. 103................................................................................................18, 21

Federal Rules of Civil Procedure 12(b) ..............................................................8

Other Authorities

154 CONG. REC. S8344 (Daily ed. Sept. 11, 2008)........................................37

Americans with Disabilities Act Amendments Act of 2008,

Pub. L. No. 110-325, 2(b)(2), 122 Stat. at 3554. .....................................38

Children and Adults with Attention-Deficit/Hyperactivity Disorder (CHADD),
Section on Public Policy Committee, The U.S. Department of Education
Requests Comments Before it Removes Regulations and Guidance.
(2017), http://chaddleadershipblog.blogspot.com/2017/09/help-prevent-removal-
of-critical-adhd.html?m=1 (last visited October 26, 2017).....................................
35

DePaul Univ. of Law, OCR Complaint no. 05-89-2029..............................17, 18

Editors Rule Against Civil Actions for Perjury in Administrative

Agency Proceedings: A Hobgoblin of Little Minds, 131 U. PA. L.
REV. 1209 (1983)................................................................................10, 16

Frank I. Michelman, Property, Utility, and Fairness: Comments on the

Ethical Foundations of “Just Compensation” Law, 80 HARV. L. REV.
1165, 1192(1967)......................................................................................13

Gregory Sisk, “Litigation with the Federal Government” (2016). Hornbook

Series..........................................................................................................6

Howard M. Wasserman, Jurisdiction, Merits, and Substantiality, 42 Tulsa L.

Rev. 579 (2013)...........................................................................................2
 xiii

Lisa M. Meeks & Herzer R. Kurt., Prevalence of Self-Disclosed Disability

Among Medical Students in US Allopathic Medical Schools. JOURNAL
OF AMERICAN MEDICAL ASSOCIATION, 316, 21 (2016)................36

S. REP No. 275, 97th Cong., 1st Sess. 3 (1981). reprinted in 1982 U.S. Code
Cong. & AD. News 11, 13.........................................................................5

Stephen F. Befort, An Empirical Examination of Case Outcomes Under the

ADA Amendments Act, 70 Wash. & Lee L. Rev. 2027 (2013)............... 38

Stephan B. Burbank, Procedure, Politics and Power: The Role of Congress, 79

NOTRE DAME L. REV. 1677, 1681-82 (2004)......................................34

Todd David Peterson, Protecting the Appropriations Power: Why Congress

Should Care About Settlements at the Department of Justice, 2009
B.Y.U. L. REV. 327, 349..........................................................................23

Univ. of Chicago, OCR Complaint No. 05-10-2189...........................................22

U.S. Department of Education Office for Civil Rights, Dear Colleague Letter
and Resource Guide on Students with ADHD. July 26, 2016................35

The White House. Memorandum: Implementing Executive Order 13771,

Titled “Reducing Regulation and Controlling Regulatory Costs”,
https://www.whitehouse.gov/the-press-office/2017/04/05/memorandum-
implementing-executive-order-13771-titled-reducing-regulation. (last
retrieved on October 26, 2017)..............................................................34
 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.

OPNIONS BELOW

The decision of the court of appeals for the federal circuit for petition

for panel rehearing appears at Appendix 1a to the petition and is

unpublished. The opinion of the district court for motion for reconsideration

appears at Appendix 3a to the petition and is unpublished.

JURISDICTION

The date on which the United States Courts of Appeals for the Federal

Circuit decided my case was on June 20, 2017, and a timely filed petition for

panel rehearing was denied on July 27, 2017. The jurisdiction of this court is

invoked under 28 U.S.C. 1254(1)

STATUTORY AND REGULATORY PROVISIONS INVOLVED

Sections 1331, 1332, 1441, 1367, 1346, 1292 1295 of Title 28 of the

United States Code. And ADA Amendments Act of 2008.

 2

STATEMENT OF CASE

A. PRELIMINARY STATEMENT

In this case, USCA for the Federal Circuit reached the merits of the

case, but denied a timely Petition for Panel Rehearing due to lack of

jurisdiction. In Arbaugh v. Y. & H Corp, the Supreme Court clarified the line

between jurisdiction and merits 126 S. Ct. 1235, 1238 (2006). The “formalist

differences from the way Congress defines jurisdiction and the merits asks

different questions, with the former focusing on whether the court has power

and latter focusing on who should win”1.

1. Inter-jurisdictional conflict

The jurisprudential evolution of interlocutory appeal preserves the

merits of the case and litigant’s “right to stand trial”. Digital Equip. Corp. v.

Desktop Direct, Inc. 114 S. Ct. 1992 (1994). The inter-jurisdictional conflict of

claims filed in the state court and the transfer to federal court under Federal

question are weighed in a balance scale of Congress intent for the federal and

state. 28 USC 1331 and 1441.

1
Howard M. Wasserman, Jurisdiction, Merits, and Substantiality, 42 Tulsa L. Rev. 579
(2013).

 3

2. Collateral Order Doctrine

An interlocutory appeal of an order denying certain immunities

preserves the litigant’s ‘right to stand trial’ which would otherwise be

irretrievably lost altogether. Id. There is a value in “triumphing before trial,

rather than after it, regardless of the substance of winning the claim”. U.S. v.

MacDonald, 435 U.S. 850, 860 n.7 (1978).

3. Big Tucker Act and FTCA

The district court has jurisdiction to consider in a sua sponte motion;

raising a collateral issue for qualified immunity for state time-barred claims

under “Big Tucker Act” and Federal Tort Claims Act (“FTCA”). The court

held in Jacobs v. United States, that by constitutional command, the interest

running from the time of taking is paid as an element of just compensation

under the Fifth Amendment when property is taken by the Government

under the Tucker Act. 290 U.S. 13, 16-17 (1933).

In regards to FTCA, Supreme Court has ruled that for a general

waiver of sovereign immunity; plaintiff must state a cause of action arising

under the state law and should not be premised for constitutional violation.

Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 478 (1994). For standard

review of final agency decision, the Court of Federal Claims under 28 USC

1491 have exclusive jurisdiction for claims seeking more than $10,000.
 4

Simanonok v. Simanonok, 918 F. 2d 947, 950-951 (Fed Cir. 1990). The

district court has jurisdiction under the Little Tucker Act even if his damages

exceed $10,000 if he waives all recovery in excess of $10,000. Stone v. United

States, 683 F.2d 449, 451 (D.C. Cir. 1982).

The Court of Federal Claims has jurisdiction for a case requesting

monetary damages that is disguised as “Big Tucker Act” case. Bowen v.

Massachusetts, 108 S. Ct 2722 (1988). In a sua sponte motion the district

court can transfer case under 28 U.S.C 1631 to Federal Court of Claims for

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

4. “Claim Splitting”

In Bowen v. Massachusetts, the Supreme Court stated that Congress

did not intend to have duplicative procedures to review agency action. 487

U.S. 879, 903 (1988). The Section 1500 prohibits the Court of Federal Claims

from exercising jurisdiction “of any claims for or in respect to which the

plaintiff...has pending in any other court”. Solida v. United States, 778 F. 3d

1351, 1351, 1357, 1360-62 (Fed. Cir. 2015) (Taranto, J. concurring) (stating

that section 1500 decision is based on “substantial constitutional question” if

just compensation is available in Court of Federal Claims that was properly

filed in the District Court). Furthermore, the Tucker Act provides remedy for

cases not sounding in tort. 28 U.S.C 1346(a)(2) and 1491(a)(1).

 5

The difficult assessment by the regional circuit is determining the

intention of the case if it is seeking monetary claim cognizable under the

Tucker Act in which the amount exceeds $10,000 to mandate the claim to be

pursued in Court of Federal Claims. The question that is yet to be resolved is

which court has jurisdiction for claims that seeks injunctive relief and

monetary damages that exceeds $10,000 for the purposes of injunctive relief.

5. District Court (APA) & Federal Circuit (Tucker Act)

The Federal Courts Improvement Act (FCIA) of 1982 created the

United States Courts of Appeals for the Federal Circuit in which the congress

intended to “provide reasonably quick and definitive answers to legal

questions of nationwide significance”. S. REP No. 275, 97th Cong., 1st Sess. 3

(1981). reprinted in 1982 U.S. Code Cong. & AD. News 11, 13. Under 28 USC

1346; the Federal Circuit has been granted exclusive jurisdiction if the

district court itself had proper trial jurisdiction under the Little Tucker Act

for claims less than $10,000. However, in Kidwell v. Department of the Army,

the district court was divided when a claim seeks specific relief and monetary

components for separate adjudication in different courts. 56 F. 3d 279, 284-85

(D.C. Cir. 1995). The District of Columbia Circuit weighed the significance of

non-monetary relief as “considerable value” independent of any future

potential for monetary relief. The Kidwell Court stated,

 6

“even where a monetary claim may be waiting on the sidelines, as long

as the plaintiff’s complaint only requests non-monetary relief that has
“considerable value” independent of of any future potential for
monetary relief—that is, as long as the sole remedy requested is
declaratory or injunctive relief that is not “negligible in comparison”
with potential monetary recovery—we respect the plaintiff’s choice of
remedies and treat the complaint as something more than an artfully
drafted effort to circumvent the jurisdiction of the Court of Federal
Claims”2. Id.

The District Court permitted judicial review and changed the

injunctive status and due to the effect of the change. He ultimately received

retroactive benefits exceeding $50,000 due to injunctive status change. The

Kidwell court determined that obtaining “a direct non-monetary benefit”

would lift some shame associated with failing to receive an honorable

discharge. Id.

At the appellant level; the court in United States v. Hohri, held that

Federal Circuit has the appellate jurisdiction for a mixed case that is raising

both nontax Little Tucker Act claim and Federal Tort Claims Act Claim;

notwithstanding the issue of joinder parties. 107 C. Ct. 2246 (1987). However,

the unprecedented question with respect to statutory provisions: if the

Federal Circuit has jurisdiction over appeal and Petition of Review of Final

2 Gregory Sisk, “Litigation with the Federal Government” (2016). Hornbook
Series.
 7

Agency decision under the “Big Tucker Act” and Federal Tort Claims Act for

monetary damages that is more than $10,000 without divesting regional

circuit jurisdiction for injunctive relief under the APA. In United States v.

Bormes, the court said that the party is not required to find a separate waiver

of sovereign immunity elsewhere for threshold determination based on

substantive law that the Government has waived immunity. 133 S. Ct. 12, 16

(2012). The discretion of interpretation of congress intent for state-federal

statutory provisions based on context of substantive law practices is a

question of jurisdiction and controlling law as deemed fit to reduce undue

harm in prospective causes of action that impact our society.

6. 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 USC 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 USC 1441(c)(1) and 28 USC 1367 and 28 USC

1331. The collateral issue for time barred state claims for regulatory taking

by a Federal Agency for investigation and rendering final agency decision

that took two years for the same allegations reviewed at the court is
 8

appropriate in a sua sponte interlocutory motion(s) requesting qualified

immunity under Tucker Act and FTCA. Thus, a denial of right to stand a

trial for a collateral issue raising jurisdictional issue is also a denial of

transfer under 28 USC 1631; which is yet to be resolved for petitioner seeking

relief under Tucker Act and injunctive relief under the APA.

B. STATEMENT

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 USC 1331 and diversity of citizenship, 28 USC 1332 on March

17, 2016. The judicial interpretation of 28 USC 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.

1. Taking Clause

The second jurisdictional question was raised in motion for

reconsideration at the district court for collateral issue that requested

honorable judge to exercise supplemental jurisdiction under 28 USC 1367; for

judicial review of U.S. Department of Education, Office of Civil Rights

 9

Decision for a case that was accepted for investigation on September 25, 2014

and final agency decision rendered on December 16, 2015 (Appendix C and

E). Petitioner’s former counsel filed her complaint on January 22, 2016 at the

court within 60 days of agency final decision of the same allegations that

were investigated by the federal agency. Few days before pretrial conference;

the district judge dismissed the case on summary of judgement. Petitioner,

requested removal of her counsel for financial reasons and proceeded Pro Se,

henceforth.

On May 1, 2017, she filed motion for reconsideration and requested

federal sovereign immunity under collateral estoppel doctrine. 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 USC 1331 to involve

required joinder parties under 27 USC 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).

Petitioner stated the collateral issue of liability of the U.S. Department

of Education, Office of Civil Rights of Atlanta and constitutional violation of

 10

the fifth amendment claims that were dismissed because they were time

barred by state’s statute of limitation under the tort law (Appendix A and B).

The evidence during discovery in pre-trial court proceedings and US DOE

FOIA response demonstrated that defendant abused the legal process (initial

letter, 17a). 28 U.S.C. 2674; 28 U.S.C. 1346; 18 U.S.C 1503. 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, however3,

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

In summary of judgement, her claims were dismissed because they

were time barred by state’s statute of limitation under the tort law. The

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

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

3
Editors Rule Against Civil Actions for Perjury in Administrative Agency
Proceedings: A Hobgoblin of Little Minds, 131 U. PA. L. REV. 1209 (1983).

 11

fairness and justice, should be borne by the public as a whole” Armstrong v.

United States, 364 U.S. 40, 49 (1960).

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
 12

must be upheld unless they are “inherently or patently unreasonable”. 53

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

Petitioner’s was informed via a telephone conversation on September

25, 2014 from 4-5 p.m. EST that her complaint was accepted for

investigation. In her telephone conversation, she was stated that her

Allegation #12, was accepted, “The University discriminated against you on

the basis of disability when, on, or about August 22, 2014, it upheld your

dismissal from the University’s medical program”. The reference to the event

on August 22, 2014 was denial of University South Florida Morsani College of

Medicine Petition for Readmission. In support of her last opportunity for

reinstatement, Petitioner submitted nine booklets that included Petition for

Readmission Letter to the Dean and Appendices in support of her

readmission (Appendix E and F).

In that same telephone conversation, on September 25, 2014;

Petitioner raised a concern about about the allegation 1-11 that were

dismissed due to timeliness; but were the same allegations included in her

Petition for Readmission Letter and Appendices and that was the allegation

#12 that was accepted for investigation. The two-part Chevron analysis is

based on deference to the agency’s interpretation of a statute unless plain

language is unambiguous “with regard to the precise matter at issue”.

 13

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). Furthermore, 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).

Petitioner was given an affirmation from the investigator that the

allegation #12 which was accepted, was so broad that all of her allegations

will be investigated (Appendix E). In Keystone Bituminous Coal Ass’n v.

Debenedictis, courts have come to use the term “denominator” to describe the

property that will be considered the whole parcel. 480 U.S. 470, 497 (1987).

The court’s task is to analyze a regulation’s economic impact on property as

being based, in part, on looking at a fraction, with numerator being the value

with regulation’s restriction and the denominator being the value absent

those restrictions4. Id.

4 Frank I. Michelman, Property, Utility, and Fairness: Comments on the

Ethical Foundations of “Just Compensation” Law, 80 HARV. L. REV. 1165,

1192(1967).
 14

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

stated that in reviewing an agency’s construction of a statute, the court must

reject those constructions that are contrary to clear congressional intent or

frustrate the policy that Congress sought to implement. 467 U.S. 837, 842-44

(1984). Petitioner trusted the investigator that her allegations 1-11 will be

investigated with good faith and trusted investigator’s interpretation of the

allegation that was accepted for investigation. Thus, did not submit an

appeal for dismissal of allegations 1-11 for untimeliness. 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, 706 (9th Cir. 2004) (noting “substantial deference”).

On the day last day of US DOE OCR investigation; Appellant spoke on

a telephone conversation with the same investigator on Feb 9, 2015 around 1-

2 p.m. EST. She was stated that her complaint was closed and the

department did not find any violations. Appellant asked if allegations 1-11

were investigated and she was stated that no formal investigation was made

for those allegations (Appendix C). 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
 15

investigator relied its final decision solely on perjured testimony that was

inconsistent to the official records that were before the agency. 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). The Supreme Court has held and

inapplicable to this case due to prejudicial procedural error5; is regarding

collateral estoppel that the party estopped must have had a “fair and full

opportunity to litigate” the issue in the prior action. Parkley Hosiery Co. v.

Shore, 439 U.S. 322, 333 (1979) (quoting Blonder-Tongue Laboratories, Inc. v.

University of Ill. Found., 402 U.S. 313, 329 (1971).

Furthermore, the FOIA response indicated that the agency only

“reviewed” University’s standard policies and did not review medical school’s

policies and procedures. The agencies that seek to lower the cost of

conducting an investigation, could become even more expensive at the

expense of risks associated with errors in investigation when the stakes

5 Few days after receiving final agency decision on December 16, 2015;

Petitioner’s father underwent emergency heart surgery on January 11, 2016

and she bestowed trust to her counsel to legal matters relevant to her case.
Her counsel filed the suit on January 22, 2016. Former Counsel
representation ended on May 5, 2017.
 16

against the student who filed a complaint are really high6. The

administrative agency that lack procedural safeguards such as cross-

examination and discovery render the government agencies to intentional

misrepresentation7. The complaint was against the discriminatory practices

against medical students with disabilities. And the agency was aware as per

substantial evidence provided to the agency that University’s medical

program internal policies are discriminatory (Appendix E). The Federal

agency has stated that in enacting the ADA, Congress “ensures that the

Federal Government plays a central role in enforcing standards established

[in the Act] on behalf of individuals with disabilities.....” 42 U.S.C.

12101(b)(3). The 42 U.S.C.12101(a)(7)-(8) states that:

The ADA rest on the Congress’s determination that “the Nation’s

proper goals” regarding individuals with disabilities include “equal of
opportunity” and “full participation” for such individuals, and that “the
continuing existence of unfair and unnecessary discrimination and
prejudice denies people with disabilities the opportunity to compete on
an equal basis and pursue those opportunities for which our free
society is justifiably famous.

In pre-trial discovery; it was found that the defendant provided the US

DOE OCR investigator a sheet with all students who had requested for

6
Editors Rule Against Civil Actions for Perjury in Administrative Agency
Proceedings: A Hobgoblin of Little Minds, 131 U. PA. L. REV. 1209 (1983).

7 Id.
 17

readmission in the past five years. In that sheet with the name of students;

another student was also denied petition by the Dean’s assigned committee

who had a disability due to medical school’s discriminatory procedures and

policies against medical students with disabilities. In a complaint filed by

Student A against DePaul Univ. of Law; the complaint had similar elements

of issue in controversy to this case; the student was denied readmission to

Law school because of discrimination against his or her disability. The OCR

of Midwestern region took corrective measures:

OCR interviewed all members of the August 1988 Readmission

Committee. The Readmissions Committee members informed OCR
that they received no training prior to sitting on the committee. They
received no instructions about how to handle a petition which could
raise an issue under Section 504; other than one committee who had
done some legal work in the elementary and secondary area of the
Section 504 regulations, the members had no prior background or
training in the application of Section 504. (DePaul Univ. of Law, OCR
Complaint no. 05-89-2029).

Furthermore, the OCR investigator’s finding of facts for the same

investigation stated, “No member of the committee spoke to any experts in

the field of learning disabilities or a contacted any representative of DePaul’s

learning strategies clinic. Id. The analysis of that investigation stated that

“comparison of the committee’s decision regarding complaint to the

committee decision regarding non-handicapped students demonstrates that

the committee applied the readmission criteria with greater leniency to non-
 18

handicapped petitioners”. Id. The OCR findings also included foreseeability

element and determining if they took a physician’s note under consideration

since they did not have any expertise for dealing with a petition under

Section 504. The analysis of the OCR’s findings determined that committee

members determined that despite the fact the student was dyslexic: but,

since there were no symptoms that were severe enough during

undergraduate or LSAT, that it did not impact her learning and ‘now’ just an

excuse for her poor grades.’ The OCR stated in response that,

“This position is based on a stereotypical perception that all

handicapped persons should have realized the extent of their
handicaps before beginning a graduate level education or they are not
really handicapped........Based upon the weight of the evidence OCR
funds that the University discriminated against the complainant on
the basis of her handicap. The Readmission Committee improperly
considered her handicap and failed to assess her individual ability to
succeed in the program through the nondiscriminatory application of
the readmission criteria. The University actions violated 34 C.F.R. ss
104.4(a), and (b), 103.43(a) and (c). Id.

2. University Administrative Error

In regards to Petitioner case; she requested accommodations in March

2010; however, was denied due to unreasonable standards as per USF

MCOM policies to have a neuropsychological evaluation. She was stated that

a letter from a current psychiatrist from USF counseling center was not

sufficient. This ultimately, led her to fail the academic year I in 2009-2010.
 19

The court held in Guckenberger v. Boston Univ. held that BU to adopt a policy

for students with ADHD and ADD that a current evaluation by trained

professionals with master’s degree and sufficient experience completely

retested by professionals who have medical degrees, or doctorate degrees, or

licensed clinical psychologist in order to be eligible for reasonable

accommodations. 8 F. Supp. 2d 82, (D. Mass. 1998). The court stated that

ADHD and ADD are “conditions are primarily identified through clinical

evaluations rather than through standardized testing, and a well-trained eye

is essential for proper diagnosis”. The court held that the University breached

its contract and ordered judgement of tuition refund of $29,000 for students

“by failing to honor the express representations of its representatives about

the student’s ability to document their disabilities and receive

accommodations from the university”. Id.

After failing the first year of medical school in May 2010. Petitioner

was required to complete a neuropsychological evaluation as per university’s

policy for all students who fail the academic year. The university contacted

the evaluator and also paid for the neuropsychological evaluation as per USF

MCOM Academic Performance Review Committee Letter dated June 7, 2010,

 20

Stipulation #3 (Dkt. 29-3, p. 18). After she took the examination; the

neuropsychological evaluation was forwarded to the Associate Dean of

Student of Affairs, Dr. Specter. However, Dr. Specter misrepresented the

contents of the neuropsychological evaluation from October 2010-Feb 2012

(Dkt. 29-1, p. 20, 24, 26, 46, 48, 85, 86, 91); (Dkt. 29-3, p. 1). Dr. 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

8
“Dkt No._” refers to docket number record at the district level.
 21

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); Haneke v.

Mid– Atl. Capital Mgmt., 131 Fed.Appx. 399, 400 (4th Cir. 2005) (per

curiam); Taylor v. Phoenixville Sch. Dist., 184 F. 3d 296, 317– 18 (3d Cir.

1999).

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). After reinstatement she was

placed in severe hostile conditions (Dkt. 23-6, p. 8). She was 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 public University is a recipient of Federal financial

assistance from the Department; that is subject to laws that prohibits

discrimination on the basis of disability by recipients of Federal financial

assistance.

In alternative complaint filed at the U.S. Department of Education,

OCR of Midwestern Division against Univ. of Chicago; OCR Case 05-10-2189.

The OCR took corrective steps when a student “A” who was not provided with
 22

accommodations; and was incorrectly was placed on academic probation and

ultimately dismissed. The OCR of Midwestern enforced policies pursuant to

APA for students with disabilities and requested that the University re-enroll

the student and place the student in “academic warning” (Univ. of Chicago,

OCR Complaint No. 05-10-2189.)

In this case, Petitioner provided to the agency substantial evidence

that she was incorrectly placed on academic probation standing on Feb 21,

2012 and all her past failures when she was not on accommodations or

medications were held against her in her Readmission (Allegation #5).

In pre-trial discovery phase, this was further confirmed when Dr.

Specter was requested to give a deposition on December 8, 2016 (a year after

final agency decision on December 16, 2015). The deposition transcript

indicated that the discriminatory practices are a “standard” that violate the

policies enforced by US DOE OCR. Allegation #5 in September 25, 2014 letter

stating that the complaint is opened for investigation, “The University

discriminated against you on the basis of disability when you were incorrectly

placed on academic probation upon reinstatement on February 16, 2012”

(Appendix E). Though the letter dated September 25, 2014 states this

allegation is technically “untimely”; but it was later confirmed by the

assigned investigator that since the allegation was included in the Petition
 23

for Readmission Letter; the basis for acceptance of Allegation #12 for

investigation due to University’s ongoing discriminatory practices. The

statutory mandate that is enforced by the government attorney is that of the

Congress. The investigation proceedings should be based on “fairness and

equity in the individual base that balances the public concerns, taxpayer’s

money involved, uphold administrative rules, consistency in treatment of all

similarly-situated claimants9”.

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.

9 Todd David Peterson, Protecting the Appropriations Power: Why Congress
Should Care About Settlements at the Department of Justice, 2009 B.Y.U. L.
REV. 327, 349.
 24

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).

The medical school also has “higher standards” for students disabled

students than average students since they are given “accommodations”. 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). The e-mail stated,

Faculty,

cut points were

MD students—all proficiencies
<70 needs improvement
70-74 marginal
>74 Satisfactory
MD students—all proficiencies. (Dkt. 48-2, p. 71).

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 passed the

final comprehensive basic science exam (USF National Board of Medical

Examination). The basis was that she was held in a “repeating student
 25

standard” and “subjective clinical evaluations” which she had already passed

in 2011-2012. Petitioner was not on medications nor provided

accommodations in her first attempt of second year, due to University’s error

of interpreting her neuropsychological report that they had paid and

arranged. Hence, without knowledge of her condition, she was not on

medications or could request accommodations in 2011-2012. She failed that

year due to barriers and unequal opportunity to learn and perform. However,

APRC held “arbitrary and capricious standard” than the one set by the pre-

clerkship director on record and discriminated against her disability.

Q. Okay. And so the average would be something in the range of 80

percent?
A. More like 82 to 85 is typical, although I don’t know for that
particular year, that particular course.
Q. Okay. So the APRC expected to see—wanted to see better than—
wanted to see at least average performance from repeat students like
relative to peers?
A. The APRC, I don’t think had a specific standard in mind, but they
would like to have a good sense that a student had more than minimal
knowledge having taken the material twice.

In Campbell v. State Farm, the Utah Supreme Court cited evidence

that State Farm for more than 20 years had engaged in nationwide

misconduct that included fraud, lies, document destruction and “mad-dog

defense tactics” to hassle opponents”. 539 U.S. 408 (2003). Similarly, the

University intentionally failed her in subjective clinical evaluations that

 26

year, when she has no record of failures in doctoring clinical evaluations from

2009-2012. In fact, in second year in the first attempt in 2010-2011; she

passed the same midterm clinical evaluation, history and physicals, however,

“failed” in the year of 2012-2013 (Dkt. 48-1, p.58-60). She was forced to take

exams on the spot when the University had full knowledge she was

unprepared due to a recent death in the family or threatened to get an “0”.

She was dismissed few days after she requested accommodations in final

comprehensive basic science; which the medical school did not want to

provide to her. She was forced to do unreasonable and time consuming

“special assignment” and “extra additions to the curriculum” which was

discrimination against her disability, and abruptly dismissed with a

“Unsatisfactory”; which the pre-trial discovery evidence showed that those

grades were determined by Associate Dean, Dr. Specter and not the course

directors; when she had yet to complete her coursework and should have been

given an “I”10. She was denied due process to appeal her course grades and

10 Petitioner had arranged with course directors to complete the extra work that
were “new additions to the curriculum” during spring break. Petitioner’s 29-year old
first cousin who had ADHD diagnosis passed away. In May 2010 she was contesting
her status in nursing school in May 2010. If USF MCOM followed the university’s
policies; Petitioner cold have known about her disability and shared with her cousin
who could have benefited from this knowledge. Her cousin was unsuccessful in her
personal attempt to contest her nursing school status. And that ultimately led to
negative downturn of her life; she committed suicide in December 7, 2012 [second
 27

given only option to remediate which was “mad dog defense tactics” by the

university to “create evidence”.

3. Congress Intent

As pursuant to Title II of the ADA, 28 C.F.R. pt. 35; The federal agency

of US DOE role is enforcing the Congress retrospective and prospective goals

for ADA. It is charged with implementing regulation, ending disability

discrimination, remedying past discrimination, preventing future

discrimination, and ensuring that the proper interpretation and application

of Title II of the ADA. The agency was provided with substantial evidence for

discriminatory practices against students with disabilities in the University’s

medical program. However, the agency failed to investigate and take

corrective measures that endangers the students and public as a whole. In

Retlaw Broad. Co. v. RLRB, the court stated in regards to agency; that

credibility determinations must be upheld unless they are “inherently or

patently unreasonable”. 53 F.3d 1002, 1005 (9th Cir. 1995).

The district court denied to take procedural steps that would maintain

the integrity of judicial system and protect from public harm. In motion for

reconsideration, when collateral issue regarding agency gross negligence that

year of medical school when Appellant had “asked for extensions” that were officially
approved by the University so she attend funeral ceremonies.
 28

prevented her from filing her suit. He denied her request for immunity

waiver for claims that were time barred by statute of limitations under

Florida’s tort law. In Pa Coal Co. v. Mahon, the court held that unjust state

action ruling under the Taking Clause is an “intrusive regulation that “goes

too far”, “regulatory taking in which the retroactive burden was substantially

disproportionate to the parties’ experience” and in which its “effects lacks

proportionality to the public needs”. 260 U.S. 393, 415 (1992); City of

Monterey v. Del Monte Dunes, 526 U.S. 687, 702 (1999); Enters v. Apfel, 524

U.S. 498, 528-29 (1998).

A motion for recusal was filed with motion for reconsideration for

honorable judge for denial of due process clause under the fourteenth

amendment for actual bias, conflict of interest with the defendant and

appearance of partiality11. In Liljeberg v. Health Servs Acquisition Corp., the

court held that “[judge] was required to take the steps necessary to maintain

public confidence in the judiciary”. 486 U.S. 847, 861 (1988).

The Disqualification of Judge under 28 U.S.C 455(a), 455(b)(1), 455(c)

states:

11 Honorable Judge’s judicial website states his service to the community

includes serving as a “member of the USF Economic Development Board,

Chair of USF of School of Psychology Advisory Committee”.

 29

(a) Any justice, judge, or magistrate judge of the United States shall

disqualify himself in any proceedings in which his impartiality

might reasonably questioned. [28 USC 455 (a)]

(b) (1) Where he has a personal bias or prejudice concerning a party, or

personal knowledge of disputed evidentiary facts concerning the

proceeding. [28 USC 455 (b)]

(c) “A judge should inform himself about his personal personal and

fiduciary financial interests, and make a reasonable effort to

inform himself about the personal financial interests...”. [28 USC

455 (c)].

The fact-based analysis of partiality of honorable judge was stated in

motion for recusal, however, it was denied and all subsequent motions.

In contrast, the Magistrate judge at the district court ruled in favor of

the merits of the case in Petitioner’s in forma pauperis application to the

court of appeals. In Lurk v. United States, the case argues that for an in

forma pauperis application, “the preliminary screening procedure was itself

the equivalent of an affirmance on the merits. 366, U.S. 712 (1961).

The appellant court for the Federal Circuit also decided on the merits

of the case, but denied review of timely filed Petition for Panel Rehearing due

to lack of jurisdiction.
 30

4. Interlocutory Appeal

After denial of raising a jurisdictional question in motion for

reconsideration and subsequent motions for transfer of case to the Court of

Federal Claims under the Tucker Act, 28 U.S.C 149. The coding to file a

transfer as stated in the in forma pauperis application stated that it would be

the following:

Tucker Act, 28 U.S.C. 149

Federal Torts Claims Act, 27 U.S.C. 1356(b)(1), 2671-80
The Nature of the Suit Code: 510 (Taking-Personality)
Agency Identification Code: ED (Department of Education).

This question was brought in the in forma pauperis application to the

Magistrate Judge and also in Motion to Supplement Record on Appeal to

Honorable Judge. The in forma pauperis application to transfer appeal to

USCA Federal Circuit was granted on May 26, 2017. And in the denial to

supplement record on appeal of documents that was before the agency; the

honorable judge recommended to file the pleading to the USCA 11th circuit

and USCA for the Federal Circuit. Hence, the Federal Circuit had appellant

jurisdiction of interlocutory decision requesting de novo Petition of Review of

final agency decision under 28 USC 1295(a)(2), 28 USC 1346(b)(1), and 28

USC 1292(d)(4)(a) for “denial” of 28 U.S.C 1631.

The applicable subsection of 28 USC 1295(a)(2) states:

 31

“Federal Circuit has appellant jurisdiction of an appeal

from final decision of district court when a claim has jurisdiction
under the exception clause brought under 1346(b) when a claim
is found upon an act of congress or regulation of an executive
department in which it is governed by sections 1291, 1292 and
1294”.

The pertinent section of 28 USC 1346(b)(1) states district court:

“shall have exclusive jurisdiction of civil actions on claims

against United States, for monetary damages, accruing on and
after January 1, 1945, for injury or loss of property, or personal
injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within
the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to
the claimant in accordance with the law of place where act or
omission occurred”.

The relevant USC Section 1292(d)(4)(a) states that USCA for the

Federal Circuit:

“shall have exclusive jurisdiction from an interlocutory

order of a district court denying a motion to transfer an action to
the U.S. Court of Federal Claims under 1631”.

REASONS FOR GRANTING THE WRIT

The court should grand writ because the there is need to rule on the (1)

inconsistency of prior court’s ruling, (2) jurisdictional efficiency and

regulation in regards to unique “mixed cases” under federal question is of

national importance. The jurisdictional question of Federal Circuit may open

or close doors to hundreds or thousands of litigants who seek judicial

 32

remedies Furthermore, subject matter of federal agency’s enforcement of

Congress’s goals for students and public as a whole with disabilities under

Title II of ADA and Section 504 is of (3) special public interest. There is also a

(4) need to correct error of agency and judicial proceedings and departure

from standards is a matter of public interest, economic efficiency and rights

our free society.

A. Inconsistency of prior court’s ruling

USCA for the Federal Circuit ruled on the merits of the case, whereas,

the district court dismissed the case in summary of judgement. The denial of

review of the USCA for the Federal Circuit was because it lacked jurisdiction

to review agency’s final decision under the Tucker Act and FTCA. The

efficiency of the judicial system to resolve on legal and factual issues in time-

sensitive mixed cases with substantial stakes on line is yet to be resolved.

Several years are wasted in “jurisdictional collision” that is inefficient with

respect to litigant and nation’s interests.

B. Jurisdiction

In Ridge Line, Inc. v. United states, the court held that Article I court

had subject matter jurisdiction for the “determination whether a taking

compensable under Fifth Amendment has occurred is a question of law based

on factual underpinnings” initially evaluated by the Court of Federal

 33

Claims”. 356 F. 3d 1346 (Fed. Cir. 2003). The court further explained that the

Article III court, Federal Circuit “review[s] the trial court’s legal analysis and

conclusion de novo and its fact-finding for clear error”. Id. In Steel Co. v.

Citizens for a Better Environment, the court held that, “as a matter of

constitutional structure, a federal court lacked the power to consider or

resolve substantive merits unless and until it had established its jurisdiction.

523 U.S. 83 (1998). Hence, the federal circuit undertook “a thorough

assessment of the merits and a ruling based on that assessment” without a

conclusive resolution of jurisdiction. Thomason v. Norman E. Lehrer,

P.C., 182 F.R.D. 121, 128 (D.N.J. 1998).

In Steel Co., the court stated that

“the statutory and constitutional elements of jurisdiction are an

essential ingredient of separation and equilibrium of powers,
restraining the courts from acting at certain times, and even
restraining them from acting permanently regarding certain times,
and even retraining them from acting permanently regarding certain
subjects”. 523 U.S. at 1001 (1998).

The Federal Circuit ruled on the merits on the federal causes of actions

of the claims under 28 USC 1331 jurisdiction for constitutional violations

premised under the state’s tort law. However, the relief of reimbursement for

monetary damages for medical school tuition and accrual of interest for

academic years of 2009-2010 and 2011-2012 was larger than than $10,000
 34

and did not fall under the Little Tucker Act. This is a jurisdictional question

that is yet to be resolved for seeking prospective relief (i.e. injunction of

reinstatement into medical school) and retrospective relief of monetary

remedy under the Tucker Act for reimbursement of medical tuition for the

intent to have financial aid to complete medical education. In Hanna v.

Plumer, the court stated that “there has been generally far less debate over

congressional power over judicial procedure; courts and commenters long

have accepted that Congress can dictate federal procedure through

prospective rules, whether by delegating the power to the judiciary, as under

the Rules Enabling Act, or by making procedural rules itself”12. 380 U.S. 460,

471-72 (1965).

C. Special Public Interest

1. Enforcing the U.S. Department of Education Regulatory Reform

Agenda

The Executive Order 13777; the U.S. Department of Education issued

a list of regulations and guidance to eliminate in which one of them is

“Enforcing the Regulatory Reform Agenda”13. The ADHD Guidance issued

12 Stephan B. Burbank, Procedure, Politics and Power: The Role of Congress, 79
NOTRE DAME L. REV. 1677, 1681-82 (2004).
13 The White House. Memorandum: Implementing Executive Order 13771, Titled

“Reducing Regulation and Controlling Regulatory Costs”,

https://www.whitehouse.gov/the-press-office/2017/04/05/memorandum-
 35

by US DOE Office of Civil Rights of the on July 26, 2016 for providing

issued guidance to every public school district in the country about

implementation of Section 504 for students with ADHD14. The Guidance

has been substantial support for school district in determining certain

behaviors that a student has ADHD and if the school district should

consider evaluation. Protecting the civil rights with students with ADHD

from preschool through high school and postsecondary education is

important. Many students untreated and unaccommodated have low self-

esteem, perform poorly in school, impacts their social and wellbeing. Early

detection can have substantial long term impact on the student. Enforcing

the Guidance is efficient usage of tax payer money, educational resources

and time. Lack of appropriate protocol and screening measures such as in

this case; can have substantial impact and that also includes negative

turn of events in one’s life15.

Additionally, the Guidance indicated:

implementing-executive-order-13771-titled-reducing-regulation. (last retrieved on
October 26, 2017).
14 Children and Adults with Attention-Deficit/Hyperactivity Disorder (CHADD),

Section on Public Policy Committee, The U.S. Department of Education Requests

Comments Before it Removes Regulations and Guidance. (2017),
http://chaddleadershipblog.blogspot.com/2017/09/help-prevent-removal-of-critical-
adhd.html?m=1 (last visited October 26, 2017).
15
U.S. Department of Education Office for Civil Rights, Dear Colleague Letter
and Resource Guide on Students with ADHD. July 26, 2016.
 36

that in the past fiscal years (2011-2015), the Department’s Office of Civil
Rights (OCR) has received more than 16,000 complaints alleging
discrimination on the basis of disability. Approximately, 2,000, or one in
nine of these complaints involved allegations of discrimination against a
student with ADHD16.

2. Medical Students with Disabilities

According to research by American Medical Association (AMA); the study

from December 2014 through February 2016; it identified that there was

higher prevalence of disability among students in the US allopathic medical

schools—2.7% than prior studies (0.3% to 0.6%)17. In that same study, ADHD

was the most common disability (33.7%) of identified students, learning

disabilities (21.5%) and psychological disabilities (20%). The stigma

surrounding psychological disabilities as was the issue in this case; is one of

the reasons that students with disabilities are underrepresented and

marginalized. However, a medical student should not be burden with more

than $250,000 debt and loss of their career and aspirations, because of stigma

in which they encounter roadblocks through training and their careers.

Under ADAAA; the perspectives on the meaning of “disability” changes based

16
Id.
17
Lisa M. Meeks & Herzer R. Kurt., Prevalence of Self-Disclosed Disability
Among Medical Students in US Allopathic Medical Schools. JOURNAL OF
AMERICAN MEDICAL ASSOCIATION, 316, 21 (2016).

 37

on public policy and hence, protecting students and public as a whole is of

national interest. The costs of untreated, unaccommodated and culture with

stigma can have substantial financial impact on the medical professionals

and their families, but also patient care.

D. Pre and Post-ADA Amendments Act of 2008

It is an “interest of substantial justice at stake” when there is departure of

judicial and agency conduct that is not aligned to Congress’s intent. Dean

Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 361 (11th Cir. 1984). The

enforcement of ADA Amendments Act of 2008 made significant changes to

the definition of “disability” under the ADA. After disavows of reasoning of

four earlier Supreme Court decisions; the congress enacted ADAAA which

was signed into a law on September 25, 2008 and went into effect on January

1, 2009. The principal objective of Congress in enacting the ADAAA was to

refocus on the issues of discrimination rather than on issues of standing 18 .

The ADAAA have been praised as a landmark legislature that will

ultimately eliminate prospective discrimination and empower employees to

18 154 CONG. REC. S8344 (Daily ed. Sept. 11, 2008) (stating that the ADAAA

would refocus emphasis on whether discrimination occurred rather than

whether an impairment qualifies as a disability).
 38

assert discrimination claims19. ADAAA rejects “that whether an impairment

substantially limits a major activity is to be determined with reference to the

ameliorative effects of mitigating measures”20. Sutton v. United Airlines, Inc.,

527 U.S. 471, 475 (1999). In a recent research study that compared pre-

ADAAA and post-ADAAA decisions from federal court summary of judgement

decisions arising under Title I of the ADA for a forty-month period extending

from January 1, 2010 to April 30, 2013 suggested results that revisiting the

intent of Congress for eliminating discrimination against disability. In

enacting the ADAAA there have been three assumptions:

(1) That the ADAAA will result in fewer summary judgement rulings
finding that plaintiffs lack standing as covered individuals with a
disability;
(2) That the amendments will result in more cases being decided on
the basis of whether the plaintiff is a qualified individual with or
without a reasonable accommodation, and
(3) That the amendments will results in higher overall win rates for
ADA plaintiffs21.

Employment discrimination claim against disability may only succeed if

the plaintiff is “disabled”, yet “qualified”22. The data from the study indicated

19 Stephen F. Befort, An Empirical Examination of Case Outcomes Under the

ADA Amendments Act, 70 Wash. & Lee L. Rev. 2027 (2013).

20 Americans with Disabilities Act Amendments Act of 2008, Pub. L. No. 110-

325, 2(b)(2), 122 Stat. at 3554.

21
Stephen F. Befort, An Empirical Examination of Case Outcomes Under the ADA
Amendments Act, 70 Wash. & Lee L. Rev. 2027 (2013).
22
Id.
 39

that there has been increase in win rates to only 7.7% after the enactment of

ADAAA. Furthermore, the study demonstrated that though there has been

substantial improvement in courts deciding the disability status issue; the

employer win rate from pre-amendment rulings to post-amendment rulings

has dropped: 74.4% to 45.9% (improvement by 28.5%). However, this

significant improvement in rulings would also suggest a substantial

improvement based on the second assumption of “qualified status”. The

survival based on “qualified status issue” in summary of judgement has only

improved by 18.9% (pre-amendment claims 28.2% to post-amendment to

47.1%). The overall case outcome in which the overall improvement of 7.7% in

surviving summary of judgement motions as indicated in the table from

32.3% to 40%. Thus, since post-amendment of ADAAA; 66.3% of the 7.7% was

based on survival of summary of judgement due to “disability status issue”;

not “qualified status issue”. Hence, data suggests there has been decline in

plaintiff win rates in post-amendment decisions based on qualified status

summary judgement rulings. Furthermore, based on culture of the medical

profession; it is fair to assume that medical professionals with mental

impairments fare substantially worse in litigation (and training) under the

ADA than do plaintiffs with physical impairments. The subjective nature of

grading such as clinical evaluations and “arbitrary and capricious” grading

 40

standards can be engendering more reactions tainted by bias and stigma23.

The study also indicated favorable rulings since post-amendment of ADAAA;

is higher for physical impairment versus mental impairment.

It is a matter of public interest to ensure that justice is served and

protects our constitutional rights.

CONCLUSION

FOR THESE REASONS, Nausheen Zainulabeddin 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: October 26, 2017

NAUSHEEN ZAINULABEDDIN
4730 South Woodlawn Ave. Apt 3D
Chicago, IL 60615
nausheenkhawaja@gmail.com

23 Michelle Parikh, Burning the Candle at Both Ends, and There is Nothing
Left for Proof: The Americans with Disabilities Act’s Disservice to Persons
with Mental Illness, 89 CORNELL L. REV. 721, 745 (2004); Lisa M. Meeks &
Herzer R. Kurt., Prevalence of Self-Disclosed Disability Among Medical
Students in US Allopathic Medical Schools. JOURNAL OF AMERICAN
MEDICAL ASSOCIATION, 316, 21 (2016).
APPENDIX
 Case: 17-2083 Document: 34 Page: 1 Filed: 07/27/2017

1a

APPENDIX A— DECISION OF THE UNITED STATES COURT OF

APPEALS FOR THE FEDERAL CIRCUIT, DENYING PETITION
FOR PANEL REHEARING, DATED JULY 27, 2017
NOTE: This order is nonprecedential.

United States Court of Appeals

for the Federal Circuit
______________________

NAUSHEEN ZAINULABEDDIN,
Plaintiff-Appellant

v.

UNIVERSITY OF SOUTH FLORIDA BOARD OF

TRUSTEES,
Defendant-Appellee
______________________

2017-2083
______________________

Appeal from the United States District Court for the

Middle District of Florida in No. 8:16-cv-00637-JSM-
TGW, Judge James S. Moody, Jr.
______________________

ON PETITION
______________________

Before NEWMAN, WALLACH, and STOLL, Circuit Judges.

PER CURIAM.
ORDER
Nausheen Zainulabeddin moves for reconsideration of
the court’s June 20, 2017 order dismissing her appeal for
lack of jurisdiction (ECF No. 30), which the court con-
strues as a petition for panel rehearing. She also submits
Case: 17-2083 Document: 34 Page: 2 Filed: 07/27/2017
2a
Appendix A
2 ZAINULABEDDIN v. USF BOARD OF TRUSTEES

an “emergency motion for correction” of the docket (ECF

No. 32), a motion for the court to acknowledge that her
motion for reconsideration is timely (ECF No. 31), and a
motion to supplement the record on appeal (ECF No. 28).
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion to acknowledge Ms. Zainulabeddin’s
filing as timely (ECF No. 31) is granted.
(2) The petition for panel rehearing (ECF No. 30) is
denied.
(3) All other pending motions are denied as moot. *
(4) No further motions will be docketed or considered.
FOR THE COURT

/s/ Peter R. Marksteiner

Peter R. Marksteiner
Clerk of Court
s32

* Because the court lacks jurisdiction over her ap-

peal, Ms. Zainulabeddin’s pending motions as to the
merits of her case are denied as moot.
 Case 8:16-cv-00637-JSM-TGW Document 54 Filed 05/03/17 Page 1 of 3 PageID 2331
3a
Appendix B: 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
4a
Appendix B
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
Case 8:16-cv-00637-JSM-TGW Document 54 Filed 05/03/17 Page 3 of 3 PageID 2333
5a
Appendix B
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
Case 8:16-cv-00637-JSM-TGW Document 48-3 Filed 05/01/17 Page 48 of 89 PageID 2050
6a
APPENDIX C— DECISION
Case 8:16-cv-00637-JSM-TGW Document 48-3 Filed 05/01/17 Page 49 of 89 PageID 2051

7a
Appendix C
Case 8:16-cv-00637-JSM-TGW Document 48-3 Filed 05/01/17 Page 50 of 89 PageID 2052

8a
Appendix C
Case 8:16-cv-00637-JSM-TGW Document 48-3 Filed 05/01/17 Page 51 of 89 PageID 2053

9a
Appendix C
Case 8:16-cv-00637-JSM-TGW Document 48-3 Filed 05/01/17 Page 52 of 89 PageID 2054

10a
Appendix C
Case 8:16-cv-00637-JSM-TGW Document 48-3 Filed 05/01/17 Page 53 of 89 PageID 2055

11a
Appendix C
Case 8:16-cv-00637-JSM-TGW Document 48-3 Filed 05/01/17 Page 69 of 89 PageID 2071

12a
APPENDIX D— DECISION OF AGENCY APPEAL OF THE UNITED
STATES DEPARTMENT OF EDUCATION, OFFICE OF CIVIL RIGHTS OF ATLANTA
DATED DECEMBER 16, 2015
Case 8:16-cv-00637-JSM-TGW Document 48-3 Filed 05/01/17 Page 44 of 89 PageID 2046
13a
APPENDIX E—DECISION OF COMPLAINT FILED
DATED SEPTEMBER 25, 2014
Case 8:16-cv-00637-JSM-TGW Document 48-3 Filed 05/01/17 Page 45 of 89 PageID 2047
14a
Appendix E
Case 8:16-cv-00637-JSM-TGW Document 48-3 Filed 05/01/17 Page 46 of 89 PageID 2048

15a
Appendix E
Case 8:16-cv-00637-JSM-TGW Document 48-3 Filed 05/01/17 Page 47 of 89 PageID 2049
16a
Appendix E
 17a
APPENDIX F—DECISION OF FOIA REQUEST FROM THE UNITED
STATES DEPARTMENT OF EDUCATION,
DATED AUGUST 30, 2017
 18a
Appendix F
 19a
Appendix F
 20a
APPENDIX G— DECISION OF FOIA WAIVER
UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF MANAGEMENT

Office of the Chief Privacy Officer

August 11, 2017

Nausheen Zainulabeddin
4730 South Woollawn Ave, Apt 3D
Chicago, IL 60615

RE: FOIA Request No. 17-02164-F

Dear Ms. Zainulabeddin:

This letter is in response to your request dated July 11, 2017, requesting information pursuant to
the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Your request was received in this
office on
July 12, 2017. Your request was assigned to the Office for Civil Rights within the Department to
search for documents that may be responsive to your request.

You have asked for a waiver of all fees, including duplication fees, associated with processing
your request based on your requester category as an all other use requester and the information
requested will be disseminated to the public. That request is granted.

You have the right to seek further assistance from the Department’s FOIA Public Liaison, Robert
Wehausen. The Department’s FOIA Public Liaison can be reached by e-email at
robert.wehausen@ed.gov; by phone at 202-205-0733; by fax at 202-401-0920; or by mail at
Office of the Chief Privacy Officer, U.S. Department of Education, 400 Maryland Ave., SW,
LBJ 2W516-58,Washington, DC 20202-4536, Attn: FOIA Public Liaison.

You have the right to seek further assistance from the Department’s FOIA Public Liaison, Robert
Wehausen. The Department’s FOIA Public Liaison can be reached by:

Mail: FOIA Public Liaison

Office of the Chief Privacy Officer
U.S. Department of Education
400 Maryland Ave., SW, LBJ 2W516-58
Washington, DC 20202-4536
E-mail:Robert.Wehausen@ed.gov
Phone: 202-205-0733
Fax: 202-401-0920

400 MARYLAND AVE., S.W., WASHINGTON, DC 20202-4500

www.ed.gov
The Department of Education’s mission is to promote student achievement and preparation for global competitiveness by
fostering educational excellence and ensuring equal access.
 21a
Page 2 – Nausheen Zainulabeddin Appendix G
FOIA Request 17-2164-F

If you have any questions, please contact the FOIA Requester Service Center at (202) 401-
8365 or via e-mail at EDFOIAManager@ed.gov.

Sincerely,

Elise Cook
Government Information Specialist
FOIA Service Center

400 MARYLAND AVE., S.W., WASHINGTON, DC 20202-4500

www.ed.gov
The Department of Education’s mission is to promote student achievement and preparation for global competitiveness by
fostering educational excellence and ensuring equal access.
 No.

October 2017

IN THE

SUPREME COURT OF THE UNITED STATES

Nausheen Zainulabeddin
— PETITIONER
(Your Name)

VS.

University of South Florida

— RESPONDENT(S)

PROOF OF SERVICE

I, Nausheen Zainulabeddin , do swear or declare that on this date,

October 26 , 20 17 , as required by Supreme Court Rule 29 I have
served the enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
and PETITION FOR A WRIT OF CERTIORARI on each party to the above proceeding
or that party’s counsel, and on every other person required to be served, by depositing
an envelope containing the above documents in the United States mail properly addressed
to each of them and with first-class postage prepaid, or by delivery to a third-party
commercial carrier for delivery within 3 calendar days.

The names and addresses of those served are as follows:

University of South Florida Board of Trustees: Ms. Lori Mans and Mr. John Dickinson

200 West Forsyth Street Suite 1700 Jacksonville, FL 32202-4317

& Solicitor General of the United States, Room 5616, Department of Justice, 950 Pennsylvania Ave. N.W.
Washington, DC 20530-001
I declare under penalty of perjury that the foregoing is true and correct.

October 26,
Executed on , 20 17

(Signature)
 41