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Case Docket No.

17-11888
Case Docket No. 17-12134
Case Docket No. 17-12376
_________________________________________________________

UNITED STATES COURT OF APPEALS FOR


THE ELEVENTH CIRCUIT
_______________________________________________________

NAUSHEEN ZAINULABEDDIN
APPELLANT

v.

UNIVERSITY OF SOUTH FLORIDA, BOARD OF TRUSTEES


APPELLEE

________________________________________________________
TIME-SENSITIVE

MOTION FOR MANDATORY PERMANENT INJUNCTION

PENDING APPEAL

APPELLANT
Nausheen Zainulabeddin
4409 West Varn Avenue
Tampa, FL 33616
nausheenkhawaja@gmail.com

Pro Se

May 1, 2018
Nausheen Zainulabeddin v. University of South Florida Board of Trustees,
Appeal No. 17-11888, Appeal No. 17-12134 and Appeal no. 17-12376

CERTIFICATE OF INTERESTED PARTIES AND


CORPORATE DISCLOSURE

In compliance with Fed. R. App. P. 26.1 and Eleventh Circuit Rule

26.1, Appellant, Pro Se hereby certifies that following persons and entities

have or may have an interest in the outcome of the case:

Judge:

Moody, James- Trial Judge

Wilson, Thomas- Magistrate Trial Judge

Plaintiff/Appellant:

Zainulabeddin, Nausheen- Pro Se

Defendant/Appellee:

University of South Florida, Morsani College of Medicine Board of

Trustees

Adamchak, Joanne

Bognar, Bryan, MD, MPH

Burford, Roberta

C-1 of 5
Cook, Marissa

Brownlee, James, Jr., MD

Deschenes, Robert, PhD

Estevez, Michelle, MD

Klasko, Stephen, MD, MBA

Kumar, Ambuj, MD

Kumar, Mudra, MD

Liggett, Stephen, MD

Lockwood, Charles, MD

Loveren, Harry Van, MD

Lynch, Catherine, MD

Marty, Phillip, PhD

Monroe, Alicia, MD

Roth, Debohrah, MD

Schultz, Daniel

Sinnott, John, MD

C-2 of 5
Skalkos, Olga, PhD

Specter, Steven, PhD

Stevenson, Frazier, MD

Stock, Sandra, MD

Valeriano, Joanne, MD

Zwygart, Kira, MD

USF Counseling Center

University of South Florida Morsani College of Medicine

Attorneys and Law Firms Representing Defendant/Appelle:

Constangy Brooks Smith & Prophete, LLP

Dickinson, John. — Attorney representing Defendant/Appellee

Mans, Lori. Attorney representing Defendant/Appellee

Financial Interest
Aga Khan Education Board: Tuition Reimbursement

Khawaja, Jalalluddin- Plaintiff’s Parent- Debt repayment + collateral

damages

C-3 of 5
U.S. Department of Education, Federal Student Loan Servicing

Zainulabeddin, Anushah- Plaintiff’s sibling: collateral damages

Zainulabeddin, Mohammed- Plaintiff’s sibling: collateral damages

Zainulabeddin Yasmin-Plaintiff’s Parent—Debt repayment +

collateral damages

Other Interest:

United States Court of Appeals of Federal Circuit

Office of Civil Rights, U.S. Department of Education, Atlanta, GA

Office.

Calloway-Spenser, Ebony- OCR Compliance Team Leader

Chen, Martin- OCR Investigator

Manigault, Arthur: OCR Compliance Team Leader

Pessin, Stephanie: OCR Investigator

Pierre, Cynthia: OCR office Director

Sausser, Scott, OCR Compliance Team Leader

Shields, Dorris: OCR Assistant Director

C-4 of 5
Velez, Melanie: OCR office Director

Washington, Brandon: OCR Investigator

________________________________

Nausheen Zainulabeddin

Nausheen Zainulabeddin
4409 West Varn Avenue
Tampa, FL 33616
nausheenkhawaja@gmail.com

C-5 of 5
ABBREVIATIONS

ABBREVIATIONS MEANING
USF MCOM University of South Florida Morsani
College of Medicine
US DOE OCR United States Department of
Education, Office of Civil Rights
APRC Academic Performance Review
Committee
ADAAA Title II of Americans Disabilities
Act 2008 Amendment Act
EBCR II Course Evidence Based Clinical Reasoning
II Course
CBSE Comprehensive Basic Science
Exam
NBME DS National Board Medical Examiners
Disability Services
USMLE United States Medical Licensing
Exam
ECFMG Education Commission for Foreign
Medical Graduates
AY Academic Year
RY Repeat Year
MPN Federal Loan Servicing Master
Promissory Note
BALS Tampa Bay Area Legal Assistance
HEA Higher Education Act of 1965
FR Federal Register
TIME-SENSITIVE

MOTION FOR MANDATORY PERMANENT INJUNCTION

PENDING APPEAL

COMES NOW, Appellant, Nausheen Zainulabeddin, pro se,

respectfully moves the court pursuant to Federal Rules of Appellate

Procedure, Rule 8 for a permanent injunction pending appeal. Appellant

moves the court for reinstatement to USF MCOM as a rising third-year

medical student and granted to take USMLE Step 1.

RELEVANT PROCEDURAL HISTORY

The relief sought in original complaint sought equitable relief of

injunction. Appellant was represented by her former counsel, Mr. Apps prior

to April 20, 2017 and proceeded pro se for her appeals.

1. Appellant was dismissed from USF MCOM on March 14, 2013. And

underwent two appeals on April 4, 2013 and May 3, 2013 (A1-1442

to 1454).


1
“A” refers to pages of Appendices of Appellant’s Initial brief.

2
2. She pleaded with former and new Vice Dean of USF MCOM that

her Appeals in 2013 was a “sham” due to conflict of interest

situation (5/2013 to 6/2014). Thus, she filed a Petition for

Readmission in 5/28/14, which included her EBCR II and Doctoring

II Appeals. She was given assurance that Dr. Steven Specter

“(Specter”) will not have any involvement in her Petition

proceedings. The Petition hearing was on 6/25/14; and the decision

was rendered on 8/22/14 (A-1556-1948).

3. She filed a second complaint to US DOE OCR in August 2014. USF

Board of Trustees denied Early Case Resolution offered by assigned

investigator, for OCR Case no. 04-14-2487. The final agency

decision was rendered on 12/16/15, after the investigation (A-1751-

1774).

4. Before filing the lawsuit on 1/22/16, her former counsel sent two

demand letter dated 5/12/15 and 6/26/15, to opposing counsel

seeking injunctive relief, expunge of records and refund of tuition

(A-60-64 and A-1788-1792).

3
5. Her complaint was transferred Florida Middle District on 3/17/16;

under Federal Question Jurisdiction, 28 USC 1331 and diversity

jurisdiction 28 USC 1332. Appellant complaint alleges six counts:

Count I: breach of fiduciary duty; Count II: Negligent

Misrepresentation; Count III: Breach of Contract; Count IV: Unjust

Enrichment; Count V: Disability Discrimination; Count VI:

Retaliation on the Basis of Disability in violation of Section 504 of

the Federal Rehabilitation Act of 1973, codified as amended at 29

USC 794 (A-1-186).

6. Her case was dismissed on 4/20/17, in summary of judgment.

Appellant filed three notices of appeals for district court’s judgment

(17-11888), motion for reconsideration (17-12134) and opposition to

the motion of bill of tax costs (17-12376) and were consolidated by

this court. On 10/31/17, the court granted her amended brief seeking

de novo review containing six statement of issues including

constitutional provision of ADAAA of 2008 and application of

Fallback statute. Her motion to file reply brief out of time was

granted on 3/1/18.

4
7. Appellant filed a complaint to FCC on 12/13/17 against US DOE

and copy of Notice of Directly Related case was provided to this

court. Her extension to file a motion was accepted at FCC for this

instant motion.

At pertinent court proceedings “serious questions” have been raised as

to the merits of the case:

1) District Court: Presence of conflict between the ruling of the case by

District judge and Magistrate judge granting all three in forma

pauperis application.

2) USCA for the Federal Circuit: The court ruled on the merits of the

case in Petition for Panel Rehearing, but denied jurisdiction (I.B2 p.

2).

3) Federal Court of Claims: In a recent pleading, United States, stated

the “loss of property [spot in medical school], ‘is directly and

substantially traceable to the acts of the University of South Florida.’

(Disputed) (Exhibit 5).


2
I.B refers to Appellant’s Amended Initial Brief filed on October 31, 2017.

5
ARGUMENT

This motion of injunctive relief is ripe for review and Appellant

submits factors for affirmative relief pending appeal. The seriousness of

legal issues, in this case, is self-evident from the extensive briefs and

pleadings filed and careful deliberation and time were taken by this court.

LEGAL STANDARD

An injunction is an “extraordinary and drastic remedy” and bears

“burden of persuasion,” and it must establish four factors to grant an

injunction pending appeal. See McDonald’s Corp. v. Robertson, 147 F.3d

1301, 1306 (11th Cir. 1998). In Siegel v. LePore, the court stated it must

make the following four showings.”

(1) it has substantial likelihood of success on the merits; (2)


irreparable injury will be suffered unless the injunction issues; (3)
the threatened injury to the movant outweighs whatever damage
the proposed injunction may cause the opposing party; and (4) if
issued, the injunction would not be adverse to the public interest.
234 F.3d 1163, 1176 (11th Cir. 2000)

Recent court rulings have adjudged that eBay’s four favors as the

“traditional equity test” in seeking a permanent injunction under American

with Disabilities Act or Rehabilitation Act. see Antoninetti v. Chipotle

6
Mexican Grill, Inc. 131 S. Ct. 2013 (2011). The eBay test omits success as a

factor and instead doubles up on irreparable injury, in which two

requirements as set forth: requires proof that plaintiff “has suffered”

irreparable injury to which an injunction would prevent future infringing

behavior (continuing violation)3. eBay Inc. v. MercExchange, L.L.C., 547

U.S. 388, 391 (2006).

I. Actual Success on Merits

A. De Novo Review Federal Preemption: Judicial Estoppel

Defendant has provided two conflicting testimonies in two different

legal proceedings with the intent to play “fast and loose with the court.”

Middleton v. Caterpillar Indus, Inc., 979 So. 2d 53, 60 (Ala. 2007). In such

circumstances as set forth, the constitutional provision of Congress has

expressed conditioned receipt of Eleventh Amendment immunity to private

suits to enforce Section 504 of the Rehabilitation Act of 1973, 28 U.S.C 295


3
Gergen, Mark P. and Golden, John M. and Smith, Henry E., The Supreme Court's
Accidental Revolution? The Test for Permanent Injunctions (March 2012). Columbia
Law Review, Vol. 112, No. 2, 2012; U of Texas Law, Public Law Research Paper No.
220. Available at SSRN: https://ssrn.com/abstract=2046149.
***Henceforth, referred as “Accidental Revolution?”

7
at the Federal Court. Title II of ADA may also be enforced through private

suits against public entities. 42 USC 12133. Congress has abrogated the

State’s Eleventh Amendment immunity to private suites in federal court. 42

USC 12202. To enforce fourteenth amendment Section 5; the Congress may

abrogate a state’s sovereign immunity pursuant to a valid exercise of its

power. Tennessee v. Lane, 124 S. Ct. 1978 (2004) (I.B p. 46 to 49).

The testimony provided to US DOE OCR conflicted with the sworn

oath depositions at the district court (A-1963). Judicial estoppel is an

equitable, court-created, discretionary doctrine that may be invoked by either

a party or the court sua sponte. Davis v. Wakelee, 156 U.S. 680, 689 (1895).

The doctrine prevents a party from taking a contradictory position which it

had adopted previously. The circuit court may apply judicial estoppel when

two elements are satisfied: (1) the litigant took a position under oath in the

proceeding that was inconsistent with a pursuit of the civil lawsuit, and (2)

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

The Circuit Court also looks at litigant’s “level of sophistication”, any

explanation for the omissions.

8
1. APRC and Dean’s Appeal in 2013 was a “sham”

Appellant was retaliated in RY2012-2013, for discovering their gross

negligence from AY2010-2012 and requesting protected rights that the

University had withheld. Specter e-mailed Registrar, commenting that the

errors were substantial enough that could lead to impeachment (A-2283).

The Doctoring II Course Director was also concerned of potential litigation

and told faculty to withhold giving plaintiff her past doctoring evaluations

(A-2368). Various faculty members e-mailed each other in that RY2012-

2013, to find any reason to fail her; even if they had to change their standard

policy and create a new one (Figure 3-6, 10, 11). Her ultimate course grades

for EBCR II and Doctoring II were determined by Specter and not the course

directors (A-842; A-736; A-737). He also manipulated plaintiff and

controlled the content of her written Appeals and discussions during APRC

and Dean’s Appeal hearing in 2013 (A-1442 toA-1454). He influenced her

NBME DS Statement, which was denied to their satisfaction and included as

evidence in Def. Pre-trial conference documents (A-1628 and Copy of pre-

trial conference documents Exhibit 1). After she transferred to another

9
medical school and without his influence; her request to NBME DS was

granted (A-1634; Exhibit 2 & 7).

2. Forced Remediation for “passed classes” and orchestrated

violation of due process.

Appellant passed EBCR II and Doctoring II; but was forced to

remediate, unnecessarily [discovered in pre-trial proceedings] (Figure 3-6,

14).

10
11
\

12
13
She was dissuaded from pursuing her internal grievance process after

dismissal and retaliated for exercising her right (Exhibit 15). She was given

unreasonable remediation plan; which she passed. After dismissal, she

sought tutoring for the first time as a mandatory requirement from Specter

for remediation in AY2012-2013 (A-1721(a)). The tutor was shocked that

the remediation required her to buy new third-year textbooks and tested

content from the third year (A-1632, Exhibit 15). For EBCR II remediation,

she was tested differently from her peers; i.e., tested in both EBCR I and II,

versus solely EBCR II (Exhibit 3).

Specter controlled her appeals and threatened that she would not be

able to appeal; if the appeal included contents that would expose his gross

negligence (A-1628; -1442-1454). Appellant raised this as a concern to

former Dean and Vice Dean. Neither addressed her complaint and, resigned

shortly after (A-1727-1734, Exhibit 2).

3. Mockery of Justice

Appellant appeals in 2013 were a sham due to conflict of interest

situation. Thus, pursued last administrative remedy in 2014 (A-1735, A-

1736). The counsels omitted relevant proceedings, i.e. petition in 2014 and

14
US DOE OCR investigation from the district court and put forth “sham

pleadings” (Exhibit 3, 5, 7, 15).

USF MCOM Handbook Section IV. E. 6. (1) states that a dismissed

medical student can file Petition for Readmission after one year of their

original dismissal. Before filing the petition, she received assurance from the

new Vice Dean, Dr. Bognar that Specter will have no involvement in her

Petition, and requested permission to include course appeals for EBCR II

and Doctoring II. After consultation with Gen. Counsel; Dr. Bognar granted

her request to the course appeals in her Petition (I.B. p. 34-40, Exhibit 2, 3,

5, 15, 16).

4. Preemption of First proceeding: Federal Agency Investigation

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

proceeding, the first proceeding may need not have been a complete case

and can be a sworn statement made to an administrative agency. DeRosa v.

Nat’l Envelope Corp., 395 F. 3d 99, 103 (2d Cir. 2010) (noting that

[j]udicial estoppel applies to sworn statements made to administrative

agencies....”).

15
An omission of civil claims [i.e., acts from 2013-2015] in court

proceedings would “thwart judicial process.” Burnes v. Pemco Aeroplex,

Inc. 291 F. 3d 1282 (11th Cir. 2002). Department of Education has

participation rules under HEA enforced under Fedloan Servicing MPN

stated in the section of Borrower’s Rights and Responsibilities Statement

(R.B4, p. 6-19; I.B. p. 23-26; Exhibit 17, 5):

require students to exhaust their internal administrative remedies,


pursue school’s internal complaint process and dispute process before
contacting accrediting and governmental agencies about the
complaint.

34 C.F.R. Section 685.300

Thus, Appellant filed an internal complaint to former Vice Dean on

7/2/13. Filed an OCR complaint on March 20, 2014 when the complaint was

not addressed. Pending appeal; she also consulted US DOE OCR regarding

filing her petition and was given affirmation (Figure 7). After the

unsuccessful petition, she filed her second complaint which was opened for

investigation US DOE on August 2014; final decision rendered on 12/16/15

(A-1751-1786; Exhibit 5).


4
R.B refers to Appellant’s Reply Brief filed on 12/28/17.

16
5. Suppressed evidence

There is reasonable suspicion that defendant’s motive was to suppress

her rights and forgo statute of limitation. In Mount Healthy City Sch. Dist.

Bd. Of Educ. v. Doyle, the court held that if the plaintiff can establish that his

17
protected conduct was motivating factor behind his dismissal, the burden

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

sham appeals in 2013 to the court and strategically omitted and suppressed

acts from 2014-2015 from the court, i.e. petition and USE DOE OCR

investigation and proceedings (R.B, p. 6-13; I.B. p. 33-38). USF gave

inconsistent testimony to US DOE OCR investigation, omitting relevant acts

from 2009-2012 (neuropsych eval misrepresented), falsifying the reason for

extensions (deaths in the family not because of a disability) and used

fabricated evidence in support (A-1771-1778; Exhibit 2, 5, 17).

6. Abuse of due process and legal procedures

There is reasonable suspicion that the following tactics by the

defendant were with the intent to abuse due processes:

(1) She was quickly reinstated after discovering the error in 2/8/12 that

her diagnosis was misrepresented from AY2010-2012. She instructed

by Specter to work with new USF MCOM counselor, Dr. Skalkos

who “conveniently had a policy” to not have anything on record5 (A-


5
Appellant has provided the court with records from USF Counseling Center and HELPS
Counseling and surmountable traces of e-mails supporting the presence of error A-1984
to 1998; I.B. p. 8-23).

18
1698-1707). Appellant has provided other relevant records from USF

Counseling Center regarding the error (Figure 8, A-1976, 1977, 1984-

1998).

(2) She was stated she was passing and participated in third-year

commencement ceremony on 3/1/13 (A-1795 to A-1796, Exhibit 4).

The dismissal was inflammatory on 3/14/13; after she refused to take

CBSE without accommodations in 3/12/13 in AM; thus, received an

e-mail that she failed Doctoring II on 3/12/13 PM, and failed EBCR II

3/13/13; hence dismissed 3/14/13 (Exhibit 3, 15). She was not

19
afforded opportunity to appeal her EBCR II and Doctoring II grades

and was forced to undergo remediation while undergoing internal

grievance process (A-2000; Exhibit 2, 3, 5, 7, 15).

(3) In 2014, there was an unusual six-month delay in her petition

proceedings and rendering the decision for her Petition [standard 7-10

days] (A-1748, A-1798-1805; A-1818 to A-1822; A-1615). The

Petition filing date was changed arbitrarily that was burdensome and

caused undue hardship (A-1589- 1626; Exhibit 5, 17).

(4) Defendant denied Early Case Resolution offered by US DOE OCR for

OCR Case no. 04-14-2487 for dilatory motive (i.e., standard six-

month investigation would be near the end of the statute of

limitations) (Exhibit 17).

(5) Defendant withheld from the court of relevant acts from June 2013 to

Dec. 2015, i.e., internal complaint, Petition for Readmission and OCR

Investigation (even though Appeals in 2013 was a sham) (A-1591,

1594-1612; 1833-1935; A-1736-1737; A-1748-1791; Exhibit 17).

Judicial estoppel is intended to ensure that a litigant “cannot have

its cake and eat it too”. Duplan Corp. v. Deering Miliken, Inc., 397 F.

20
Supp. 1146, 1177 (D.S.C. 1974). Judicial estoppel protects the sanctity of

oaths by strongly deterring lying, intentional misrepresentation, and

knowing omissions. The deterrence is rooted in the idea that if the party

realizes that he will not be liable for his wrongful acts in later proceedings

(i.e., whole truth), if he manipulates the first proceeding by omission,

misrepresentation and, lie. Thus, he will most likely not state the whole truth

in the first proceeding. In judicial estoppel, the protection of the sanctity of

oaths begins in the first proceeding (Exhibit17).

B. Civil Gideon and rights of ADA

Few acts (whether lie, misrepresentation or omission) are more unfair

than denying the appointment of counsel of civil litigant. Pritchard v.

Southern County Servs, 92 F. 3d 1130, 1132 (11th Cir. 1996). A litigant

cannot be denied access to the system of justice, who cannot meaningfully

participate in the proceedings, that is exacerbated by their mental [or

physical] disabilities and indigent status that impair their understanding.

Without accommodations, including human accommodations, civil litigants

with disabling conditions would lose their day in court because they would

not be able to communicate with the court or to understand fully the case

21
and its consequences. Title II prohibits discrimination against disabled

individuals in public services. The Federal Courts must also meet the same

standard under Section 504 and Rehabilitation Act. In Tennessee v. Lane.,

the paraplegic on a wheel chair, could not access court system since there

were no elevators. 541 U.S. 509 (2004). In this case, Appellant was denied

equal justice and fair treatment when her mental disability was exacerbated

and indigent status prevented her from mounting the case itself, besides

mounting the stairs. The reasonable accommodations would be an attorney

besides elevator access to access court. In Lassiter v. Dept. of Soc. Servs. Of

Durham County, the Court stated in a proposal of full civil Gideon,

As every trial judge knows, the task of determining the correct legal
outcome is rendered almost impossible without effective counsel.
Courts have neither the time nor the capacity to be both litigants and
impartial judges on any issue of genuine complexity. As recognized
by the Lassiter dissent, “By intimidation, inarticulateness or
confusion, a [litigant] can lose forever” the right she sought to protect.

Shortly before her suit was filed; an unfortunate situation6 occurred in

which she bestowed her trust to her counsel to pursue her cause of action.


6
Appellant’s father had an emergency heart surgery a week before her case was filed on
1/22/16. In such stressful circumstances, she relied on her counsel to pursue her action.

22
After court ruled in favor of Plaintiff in Motion to Dismiss; plaintiff asked

her counsel if there was a court remedy in which she can be reinstated while

her case is pending. Her counsel replied, “there is no such thing like that in

U.S. courts.” Appellant did not have experience in law; unfortunately, she

believed him (Figure 25; Exhibit 14).

After proceeding Pro Se, and taking some required legal courses in

her current program; she found out that her counsel withheld important court

proceedings that caused her case to be dismissed. Counsels may have

capitalized on her lack of litigation experience. When defendant’s fraudulent

actions were halting her medical education in transfer institution; he also

withheld court procedure that would have fixed the issue (See Exhibit 2,

complaint to DOJ, 10/2016 & Letter to Congress, 2/2017).

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

remedies are presumptively inadequate for legally protected interests7.

[I]f plaintiff demonstrates that effective legal relief can be secured


only by a multiplicity of actions, as, for example, when the injury is of
a continuing nature, so that plaintiff would be required to pursue
damages each time he was injured, equitable relief will be deemed


7
Dan B. Dobbs, Dobbs Law of Remedies: Damages-Equity Restitution Section 2.5at 123
(2d ed. 1993).

23
appropriate8. [w]here the defendant has wrongfully interfered with the
claimant’s rights as an owner of property, and intends to continue that
interference, the claimant is prima facie entitled to an injunction9....[a]
prohibitory injunction is the appropriate remedy to prevent the
continuation or repetition of a tort”10.
-

She was denied legal assistance from BALS from 2013 to 2015 (A-

1739- 1746; Exhibit 13). Her former counsel accepted to represent based on

a nominal-monthly payment plan, however, suddenly changed the plan to

something she could not afford after the case was dismissed. Thus, she

proceeded pro se for her appeals. She also received an e-mail from ECFMG

that her school lost eligibility to practice in USA and Canada., which will be

effective 1/1/18 (A-1830-1831; Exhibit 9). She was advised to seek transfer

in an alternative school immediately from ECFMG Investigator, Dana

Adamow. Thus, since filing appeals to this court were time sensitive; she

requested her school for an extension to take USMLE Step 1, for the

purposes similar to transfer, however she stated if it is not approved, she will


8
11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure Section 2948, at 131 (2d ed. 1995).
9
David Bean & Isabel Parry, Injunctions 2.11 at 18 (10th ed. 2010
10
Andrew Burrows, Remedies for Torts and Breach of Contract 514 (3d ed. 2004).
Foot notes 3, 4, 5 and 6; cited from Accidental Revolution?

24
take exam and ask the court for an extension. In response, she was dismissed

without a reason (Exhibit 9). Her registration fees for classes and USMLE

Step 1 were not refunded, this also led to collateral damages in which her

Financial Credit is completely ruined.

C. De Novo Review Federal Preemption: Federal Loans Servicing.

In Nelson v. Great Lakes Education Loan Services, Inc., the court

concluded that Congress intended for federal student loan disclosure

required dictated by HEA to preempt any made at the state law. The

Department of Education has stated,

Some State servicing laws purport to impose regulatory requirements


on servicing that create additional conflicts with Federal law...11 The
federal government—not the states or services—sets the...criteria. The
government hires contractors to serve federal student loans following
extensive rules. The loan servicers are acting pursuant to a contract
with the Federal government, and the servicers stand in the shoes of
the Federal government in performing required actions under the
Direct Loan program”12.


11
18 FR 10619
12
83 FR 10619

25
Appellant has a contractual relationship with U.S. Fed loan Servicing

for her medical education since AY2009. USF MCOM has a fiduciary duty

to comply with federal regulations and procedures (Exhibit 5).

II. Plaintiff has suffered continual Irreparable Injury

The court considers whether the movant is likely to suffer irreparable

harm in the absence of preliminary relief (economic loss does not constitute

irreparable harm). Winter v. Natural Resources Defense Council, Inc. 555

U.S. 7 (2008); State of Ohio ex. rel. Celebrezze v. Nuclear Regulatory

Comm’n. 812 F. 2d 288, 290 (6th Cir. 1987). In order to satisfy the second

factor, the movant requires a showing of “’actual and imminent harm’ rather

than harm that is speculative and unsubstantiated” and protects property

rights against injuries otherwise irremediable. Cavanaugh c. Looney, 248

U.S. 453, 456 (1919).

A. Legally cognizable Injury

In Baer v. National Bd. of Medical Examiners, the court stated in the

context of education opportunity that inability to continue as a medical

student without interruption is desirable, is not harm that is irreparable to

Baer’s potential medical career. 392 F. Supp. 2d. 42, (D. Mass. 2005). In

26
Baer’s case, waiting until trial would not cause an indefinite harm to his

career, since he was not near time limit for degree and course expirations.

Whereas, for Appellant, if this injunction is not granted, her chance to

pursue her chosen profession is lost indefinitely (Figure 9, Exhibit 6).

1. Time limit to for course credits & degree verification is 10-years

The MD program at USF MCOM is professional degree program that

adheres to policies set by Office of USF Graduate studies. The courses have

a time limit expiration and degree verification time policy is ten years.

Appellant first-year medical school courses were completed in RY2010-

2011. Appellant has two years remaining to complete her third and fourth

years of medical school. Thus, her injunction is time-sensitive, otherwise she

will not be able to complete her education as per school policy (Figure 9 &

Exhibit 6).

27
B. Irreparable Harm: Psych Harm

In Maczaczyj. C. State of N.Y, found that a disabled student’s

exclusion will likely cause additional psychic harm because that would most

likely affect the plaintiff ability to engage in future employment of his

choice. 956 F. Supp. 403, 408 (W.D.N.Y. 1997). In City of Los Angeles v.

Lyons, the court stated to obtain injunctive relief; a plaintiff must “likely to

suffer future injury” 461 U.S. 95, 105, 103 S. Ct. 1660, 75 L.Ed.2d 675

28
(1983). The categorical and general rule applicability with respect to

preformed presumptions of irreparable injury was addressed in eBay, stating,

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

violations of actions from constitutional challenges, actions under federal

regulatory or antidiscrimination statute, to diversity actions centered on

state tort, contract or statutory law] have been adjudged as valid”13. eBay,

401 F.3d at 1338). Appellant’s briefs and reply briefs support that her rights

have been continually violated (Exhibit 5).

Appellant and her family have invested their entire life to pursue her

chosen profession. There is no price that can replace the insurmountable

investment in time, emotions, sacrifice dedicated to complete rigorous

premedical and master’s program requirements, MCAT, and she even

repeated two years of medical school due to USF MCOM negligence.

Appellant has lost years of training in the MD program, contacts with peers

and the psychological repercussions from being wronged repeatedly and

having one’s life halted due forgoing action. Appellant’s neuropsychological

evaluation, physician letters, and current symptoms indicate that attributed


13
Accidental Revolution?

29
environmental stressors14 since her dismissal in 2013 have exacerbated her

medical condition (Exhibit 7 and 8). It has been severe enough that it is

causing bodily harm in which she suffers from insomnia and dysmenorrhea

which can lead to infertility (Exhibit 8, A-997-1005; Exhibit 7, 8).

III. Balance of Equities

The third factor for injunctive relief, is balancing equities. In Winter,

the court reversed its earlier decision concluding that even if Petitioner were

likely to succeed on the merits and had shown irreparable harm, the public

interest and balance of equities weighed decisively against injunctive relief.

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). An

injunction is inappropriate if the plaintiff’s irreparable injury “is

outweighed” by the balance of equities and the public interest”. Winter, 555

U.S. at 23. The balance of hardships tips in favor of the plaintiff, because

USF MCOM will not be harmed by reinstating Appellant. She is competent

student, passed her courses well above the pass line, and has pursued

medical training, jobs, and volunteer work since her dismissal (Exhibit 4, 18;


14
The DSM, Axis IV is at the far end of the spectrum; i.e., moderate to severe

30
3, 9, 15). The state of Florida also has interest in continual enrollment of

students in public institutions.

Appellant successfully passed her courses well-above the pass line

[neutral requirement]15 (Figure 10 & 11). She also scored the highest among

her peers in her first attempt in the CBSE, among the first time takers in

same academic year (Figure 12 & 13, A-1717).


15
As per ADAAA 2008; Appellant’s condition has substantial limitation on major life
activity, i.e., learning. Appellant was subjected to “non-neutral standard” vs. “best ensure
standard”; requires an entity to set standards as to “best ensure” that accurately reflects
individual’s aptitude or achievement level rather than his impairment, is neither
arbitrarily nor capricious, nor manifestly contrary to statute it implements. 42 U.S.C.A
12189; 28 C.F.R. 36.309(b)(1)(i) (Exhibit 7).

31
32
33
She also earned superior clinical evaluations from 2009-2012, not

accounting for retaliatory and fabricated evaluations in 2013 (Figure14; A-

1638-1662). Gally v. Columbia Univ., 22 F. Supp. 2d 199 (S.D.N.Y. 1998)

(implied contract between students and school required the university to act

in good faith and students to satisfy academic requirements and comply with

school procedures).

34
In her transfer medical school, she earned above average on clinical

evaluations and passed the entrance exam (Exhibit 9). For the purposes of

maintaining her skills and knowledge in medical training when her transfer

school lost its eligibility to practice in USA. Thus, she pursued toward

obtaining Emergency Medical Technician16 certification (Exhibit 10).

In her transfer school, Appellant had to be full-time student in two

programs at AUSOM simultaneously. This situation is against the rules of

USF MCOM and DOE. OIG stated “that distance education that has

contracted with an alternative online school to use their eligibility for Title

IV funding17,” “increases the risk of school noncompliance with the law and

regulations18.” The balance of hardships tips in the favor of Appellant and

defendant will not be harmed if the injunction is granted (Exhibit 9)


16
Russ Sellers, Blackwell TH, Emergency Medical Technician Training During Medical
School: Benefits for the Hidden Curriculum. (2017). Acad Med, 92(7). doi:
10.10197/ACM.000000000001579.
17
Press Release, U.S. Attorney’s Office for the S. Dist. Of N.Y., Manhattan U.S.
Attorney Announces $4 Million Fraud Settlement with New York Institute of
Technology and Cardean Learning Group, L.L.C. (Dec. 27, 2012).
18
U.S. Dep’t of Educ., Office of Inspector Gen., Final Audit Report ED-OIG/A07L0001,
Title IV of the Higher Education Act Programs: Additional Safeguards Are Needed to
Help Mitigate the Risks That Are Unique to the Distance Education Environment 2 (Feb.
2014).

35
IV. Public Interest

The public interest is served to have a constitutional provision of a

federal statute, Title II of ADA Amendment Act of 2008 and

antidiscrimination statutes enforced, that can have negative impact on the

community (I.B. p. 50-66). The discriminatory practice toward students with

a disability is still a “standard” at USF MCOM; i.e., placing them in

academic probation standing if they were reinstated due to undetected

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

disability (US DOE Regulations, A-1911; Univ. of Chicago, June 9, 2011;

OCR case no. 05-10-2189).

The public interest is served with this injunction because it enforces

the integrity of federal judicial process and promotion of public’s faith in the

judicial system as a whole by protecting the reputation of all courts.

Granting injunction forbids the use of intentional self-contradiction...as a

means of obtaining an unfair advantage. New Hampshire v. Maine, 532 U.S.

at 751. Furthermore, poor treatment of medical students and physicians in

training puts the public at risk. It is a national epidemic, known as “Do No

Harm” led by Dr. Wible, that “physicians and trainees live in a [toxic]

36
culture of abuse....”. The number of suicide rate of physicians and trainees is

the highest among all professions and has recently garnered national

attention19.

One of the pattern of abuse, came to Appellant’s recent attention to

which there is a reasonable suspicion of new and contributory cause of

action relevant to her case (Motion for enlargement filed 2/23/18). Appellant

discovered this from the documents that the opposing counsel withheld; in

which numerous students specific to even one race [Asian Americans20] are

singled out to fail courses, exams, and recommended to repeat the academic

year (Exhibit 11). Such unusual number of deficiencies for one course was

even raised as a major concern in in an APRC meeting, when 35 students in

doctoring were labeled as having to potentially remediate (Figure 15). Since

this was a red flag, the doctoring professors had to reduce the number of

students who had deficiencies, in which non-Asians versus Asians were


19
Shinnyi Chou. Do No Harm: The Story of the Epidemic of Physician and Trainee
Suicides. The American Journal of Psychiatry Residents Journal. (2017) doi:
10.1176/appi.ajp-rj.2017.120406.
20
For the purposes of Appellant’s motion and reply brief, Asian refers to Americans of
Asian descent as defined by U.S. Census Bureau: ancestral origins in East Asia and
Southeast Asia. This includes on the Census as “Asian” as “Asian Indian, Thai, Chinese,
Filipino, Korean, Pakistani, Japanese, Vietnamese, and Other Asian”.

37
exempted (Figure 16-18). This also supports the systemic bias in medical

school in which seven out of eight second-year repeating students for

AY2012-2013; were of Asian origin and approximately 62% of Asians have

repeated the year since 2004 (Figure 19, Exhibit 11). Thus, Appellant may

have also retaliated because of her race. Students for Fair Admissions, Inc.,

v. President and Fellows of Harvard College. ECF. No. 1:14-cv-14176

(filed Nov. 17, 2014).

38

39
40
The document prepared by University officials for US DOE OCR

investigation and depositions; reveal substantive discriminatory policies are

still in effect (Figure 20-24). The public interest is served to prevent future

discriminatory and retaliation toward students with disabilities (Exhibit 12).

41
US DOE OCR Investigator presumably asked further details of USF

MCOM handling of previous petitions. Thus, USF MCOM prepared a

document and listed the students who had petitioned in the last few years; in

which one student had similar circumstances as Appellant (Figure 20;

Exhibit 12). There is reasonable suspicion that same discriminatory policies

were applied to that student:

In Year 2: the former USF MCOM student with a disability had to

also repeat Year 2 (because she had two WF, withdraw while failing), but in

her repeat year of the same year she had poor overall performance21 and

failed a course (Figure 20, Exhibit 12). Her appeal was accepted and she was

reinstated to start third year.

Whereas, Appellant repeated Year 2 due to University’s gross

negligence (similar to Student in Figure 23; Figure 8, I.B. p. 11-22 ); and

then “technically22 failed two courses in repeat year, and scored the highest

among the peers in the final exam, CBSE in her administration (A-1717,


21
It is in dispute what is considered poor overall performance for students with
disabilities who are graded based on non-neutral standard, and held to a higher bar
than normal students, see notes in supra 15.
22
Orchestration of USF MCOM Faculty to fail her as a retaliation for discovering their
error is in dispute [as stated in this motion and briefing].

42
Figure 1-6). Yet, her appeal was not accepted? The question is if the

decision was a pretext, for discovering university’s gross negligence from

2010-2012; and further compounded because she was of Asian origin

(Exhibit 11, 16, 7).

There is a reasonable suspicion based document prepared by USF

MCOM that the student had to restart the Year 2 due withdrawal in two

courses [due to lack of knowledge of disability]. After seeking

accommodations, the student was placed in academic probation standing for

the repeat year as per University’s policy that is in dispute. Dr. Specter who

was the designated speaker for USF Board of Trustees in deposition stated

“that the policy to place students in academic probation standing [even after

discovering their status of medical condition or disability]; because a student

left with some sort of deficiency”. In Appellant case, even if it was

University’s deficiency (Dr. Specter’s) (A-1077, 1108).

43
44
45
Such policy is discriminatory because it is automatically measuring a

student status based on their impairment and such discriminatory policy is

subject to cause psych harm and exacerbate student’s medical condition, in

addition to the hostile atmosphere that faculty create for students in similar

situations [“repeating students23”]. Professor Seavey discussed the adverse

effect and psych harm of a dismissal would likely have on a professional

student,

[T]he harm to the student may be far greater than that resulting
from the prison sentence given to a professional criminal. A student
thus dismissed from a medical school not only is defamed without the
opportunity to demonstrate his innocence but is probably barred from
becoming a physician. A law-school dismissed for cheating will not
be admitted to practice even if he is able to complete his legal
education24.

The public interest would be served by promoting anti-discriminatory

policies that have a severe impact on medical students and in the community

at large (Exhibit 11, 12, 16, 17).


23
Non-neutral standard that deviate from the Best Ensure standard, see supra 15.
24
Warren A. Seavey, Dismissal of Students: “Due Process,” 70 HARV. L. EV. 1406,
1407 (1957).

46
Appellant’s statutory right of academic freedom under the first

amendment was violated when Doctoring II Couse Director, Dr. Stock e-

mailed her academic advisor before second year in RY2012-2013 (Figure

24). In that e-mail, she stated her belief that the only way the student will the

47
second year pass is by “wings and a prayer.” When Appellant’s performance

did not fit with her preformed bias; doctoring evaluations were fabricated in

AY2012-2013 (A-852). Miller v. Dailey, 136 Ca. 212, 218, 68 P. 1029,

1030-31 (1902) (held that plaintiff’s statutory rights were violated when

faculty based their action on a belief that plaintiff would never succeed...

writ of mandamus was affirmed). The Miller Court stated,

By reinstating the student, the court disregarded the teacher’s


judgement, stating it did not think it was within the power of teachers
to anticipate the result of the final examination, and to exclude a
student from the privileges of the school at their discretion simply
because, in teacher’s judgement, he would never make a successful
teacher. Id.

The faculty capitalized on their professional status of doctors in which

their false depositions was given greater weight and credibility than

Appellant’s student status. The counsels backed them by strategically

withholding evidence that would expose their sanctioning behavior and

hostility towards students of certain race (Figure 14-24). Again, it is subject

to question the intent counsel’s judicial mockery (Figure 25, Exhibit 14).

48
49
Defendant’s conducts have imposed psych harm and legally

cognizable injury to Appellant. The public interest is served by this

injunction because it prevents usage of taxpayers funds to carry out

discriminatory practices. It is of public interest to grant thus injunction to

prevent further harm and injury25 and respect dignity of a human life. Bryon

v. Clay, 867 F. 2d 1049, 1051 (7th Cir. 1989) (“The doctrine of unclean

hands, functionally rather than moralistically conceived gives recognition to

the fact that equitable decrees may have effects on third parties---persons

who are not parties to a lawsuit, including taxpayers and members of the

law-abiding public—and so should not be entered without consideration of

those effects.”) (J. Posner).

CONCLUSION

For the forgoing reasons and those set forth in Appellant’s briefings

and pleadings, this court should grant motion for permanent injunction.


25
Appellant’s 29-year old first cousin, former nursing student with ADHD diagnosis
committed suicide in 12/07/12; she could have benefited from Appellant’s diagnosis &
knowledge of her disability in 2010, when she was contesting her nursing school status
(A-1723).

50
I declare under penalty of perjury that the forgoing statements is true and

correct

Executed on May 1, 2018

________________________

Nausheen Zainulabeddin, Appellant

Dated: May 1, 2018

_____________________ _______________________

(Date) (Signature of Appellant)

Nausheen Zainulabeddin

4409 West Varn Avenue

Tampa, FL 33616

nausheenkhawaja@gmail.com

51
CERTIFICATE OF COMPLIANCE

I hereby certify that:

1. The foregoing Brief for Nausheen Zainulabeddin complies with


the volume limitation of Fed. R. App. P. 28(d)(2) and as requested to this
court in pursuant to FRAP 27(a)(1): Motion filed on 2/23/18: “Time-
sensitive motion for Type-volume enlargement for motion for injunctive
relief” requesting enlargement of 1000 words for stated reasons in this
motion and motions/subsequent pleadings for new cause of action, because
the brief contains less than 6200 words: _6198_____ words.

2. The motion complies with the typeface requirements of Fed. R.


App. P. 32(a)(5) and the type style requirements of Fed. R. App. 32(a)(6)
because it has been prepared in proportionally spaced font using Microsoft
Word Office 365 Version 15.21.1 in Times New Roman 14-point font.

_____________________________
Nausheen Zainulabeddin

Nausheen Zainulabeddin
4409 West Varn Avenue
Tampa, FL 33616
nausheenkhawaja@gmail.com

52
CERTIFICATE OF SERVICE

I hereby certify that on May 1, 2018, a true and correct copy of the forgoing
motion and exhibits, with first class postage prepaid has been deposited in
the U.S. Mail and filed with the Clerk of the Court for the U.S. Court of
Appeals for the Eleventh Circuit and counsel for the defendant-appellee.

Clerk of the Court for the


United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street N.W.
Atlanta, GA 30303

Defendant-Appellee(s)
Ms. Lori Mans and Mr. John Dickinson
200 West Forsyth Street
Suit 1700
Jacksonville, FL 32202-4317

________________________ __________________
Plaintiff Date

53

MOTION FOR PERMANENT INJUNCTIVE RELIEF

EXHIBITS 1-18

EXHIBIT DESCRIPTION PAGE

NUMBERS

1 PRETRIAL CONFERENCE 59-77

EVIDENCE

2 DEPT. OF JUSTICE COMPLAINT 78-132

10/31/2016, AND LETTER TO

CONGRESS 2/1/17

3 EBCR GRADE 133-196

DETERMINATION, APPEAL

FROM PETITION 2014 AND

CHANGES BY INSTRUCTORS

4 COMPETENCIES AND GRADES 197-211

OF AY2012-2013 COURSE

GRADES

54
5 FEDERAL COURT OF CLAIMS 212-277

MOTION TO DISMISS AND

RESPONSE, EXTENSION

GRANTED TO FILE MOTION

FOR INJUNCTION

6 USF GRADUATE CATALOG 278-283

2017-2018

7 NBME DISABILITY SERVICES 284-301

APPLICATION, AND RESPONSE

2017

8 PRESCRIPTION 2017-2018 302-303

9 TRANSFER MEDICAL SCHOOL 304-447

APPEAL ATLANTIC UNIV.

SCHOOL OF MEDICINE

10 EMERGENCY MEDICINE 448-454

TECHNICIAN ENROLLMENT

55
11 TITLE VI NEW CAUSE OF 455-462

ACTION

12 US DOE OCR INVESTIGATION, 463-464

DOCUMENT PREPARED BY

DEFENDANT

13 TAMPA BAY AREA LEGAL 465-467

SERVICES FINANCIAL APPEAL

CORRESPONDENCE

14 E-MAILS TO FORMER 468-494

COUNSEL REGARDING

MEDIATION, SUMMARY OF

JUDGEMENT AND ESTOPPEL

15 DOCTORING II APPEAL 495-574

ENCLOSED IN THE PETITION

FOR READMISSION 2014

16 ADHD + DISABILITY KNOWN 575-577

IN 2012-2013 VERSUS 2010-2012

56
17 JUDICIAL ESTOPPEL AND 578-580

INCONSISTENT STATEMENTS

18 SINCE DISMISSAL 2013: 581-603

MEDICALLY RELATED WORK,

TRAINING AND VOLUNTEER

57

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