IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________________________________________________

APPEAL NO. 17-11888

APPEAL NO. 17-12134
APPEAL NO. 17-12376
_________________________________________________________

NAUSHEEN ZAINULABEDDIN
PLAINTIFF-APPELLANT

v.

UNIVERSITY OF SOUTH FLORIDA, BOARD OF TRUSTEES

DEFENDANT-APPELLEE

_________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA
_______________________________________________________

REPLY BRIEF

APPELLANT

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

Pro Se
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

 TABLE OF CONTENTS

Page

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT............C-1

I. SUMMARY OF ARGUMENT............................................................1

II. ARGUMENT....................................................................................2

A. Wrong Standard Title II not Title I of ADA...............................2

B. Equitable Tolling: ADAAA and Fallback Stat. of

Limitations..................................................................................3

C. Congress abrogated the state’s sovereign immunity by enacting

section 5 of fourteenth amendment to claims under Title
II................................................................................................16

D. Abandoned Claims.................................................................17

E. Count V has not been abandoned: Similar Statutes:

Rehabilitation Act and Title II of ADA ...................................19

F. Errors in Appellee’s section of Statement of Facts..................20

G. Appeal 17-12134 Motion for Recusal and Motion for

Reconsideration........................................................................29

H. Appeal 17-12376: Motion of Opposition for Bill of Costs......29

III. NOTICE OF DIRECTLY RELATED CASE............................................33

IV. CONCLUSION.................................................................................33

i
CERTIFICATE OF COMPLIANCE............................................................35

CERTIFICATE OF SERVICE......................................................................36

ii
 TABLE OF AUTHORITIES

CASES PAGE

Amstar Corp v. Envirotech Corp.,

730 F. 2d 1476, 1486 (Fed. Cir. 1984)..............................................20

Bragdon v. Abbot.,
524 U.S. 624, 631-32, 118 S. Ct. 2196, 141 L.Ed.23 540 (1998).......19

Brokaw v. Mercer County.,

235 F. 3d 1000, 1025 (7th Cir. 2000)...................................................31

Carter v. City of Melbourne Fla.,

731 F. 3d 1161 (11th Cir. 2013)...........................................................31

Cada v. Baxter Healthcare Corp.,

920 F. 2d 446, 450 (7th Cir. 1990).......................................................16

Carrion v. Coca-Cola Bottling Co. of New England.,

2006 WL 35267488 (D. Conn. 2006).................................................13

Connors v. Hallmark & Son Coal Co.,

935 F 2d. 336 (D.C. Cir. 1991) ........................................................11

Cort v. Ash.,
422 U.S. 66, 78 (1975). ...................................................................16

Dilman v. Combustion Engineering Inc.,

784 F. 2d 57, 60 (2nd Cir. 1986). ......................................................14

Ealy v. GEO Grp, Inc.,

Fed. Appx. 739 (11th Cir. 2016).......................................................4

iii
Frame v. City of Arlington.,
575 F. 3d 432, 433 (5th Cir. 2009). .................................................5

Garg v. Potter.,
521 F. 3d 731, 736 (7th Cir. 2008) ...................................................19

Gracia v. Hilton Int’l.,

97 F. Supp. 5, 7 (D.P.R. 1951)..........................................................18

Guiltburt v. Gardner.,
480 F. 3d 140, 149 (2nd Cir. 2007)....................................................10

Hartnett v. Fielding Graduate Institute.,

33 NDLR 130 (2nd Cir. 2006)............................................................25

Havs v. Johnson.,
566 S. 3d 260, 261 (Fla. Dist. App. 5th 1990) ....................................20

Hartnett v. Fielding Graduate Institute.,

33 NDLR 130 (2nd Cir. 2006)............................................................25

Heins v. Potter.,
271, F. Supp. 2d 545 (SDNY 2003)....................................................14

HIP v. Port Authority of New York and New Jersey.,

No. 07-2982, 2008 WL 852445............................................................5

Hook v. McDade.,
89 F. 3d 350, 355 (7th Cir. 1996).........................................................30

Horsley v. The University of Alabama.,

et al, No. 13-13279 (11th Cir. 2014)....................................................11

Hutchins v. Hutchins.,
501 S. 2d. 722, 723 (Fla. Dist. App. 5th 1987)....................................20

iv
Lee v. Trustees of Dartmouth College.,
958 F. Supp. 37 (D.N.H. 1997) ..........................................................29

Levine v. Dade Cnty. Sch. Bd.,

442 So. 23 210, 212 (Fla. 1983)............................................................7

Mann v. Taser Int’l , Inc.,

588 F. 3d 1291, 1302 (11th Cir. 2009)................................................32

Ormiston v. Nelson.,
117 F. 3d. 69, 71 (2nd Cir. 1997).........................................................10

Randall v. Scott.,
610 F. 3d 71, 705 (11th Cir. 2010).....................................................32

Rennie & Laughlin Inc. v. Chrysler Corp.,

42 F. 3d 208, 213 (9th Cir. 1957)........................................................8

Rotella v. Wood.,
528 U.S. 555 (2000) .........................................................................13

Sapuppo v. Allstate Floridian Ins. Co.,

No. 13-11558, 2014 WL 43895 (11th Cir. 2014)...............................18

S.E.C. v. Elliott.,
953 F. 2d. 1560, 1582 (11th Cir. 1992)................................................8

St. Lucie Harvesting & Caretaking Corp. v. Cervantes.,

639 S. 2d 37, 39 n. 1 (Fla. Dist App. 4th 1994) ..................................20

Tennessee v. Lane.,
124 S. Ct. 1978 (2004)......................................................................16

Torres v. Superintendent of Police of Puerto Rico.,

893 F. 2d 404, 405 (1st Cir. 1990).......................................................11

v
United States v. DeTemple.,
162 F. 3d 279 (4th Cir. 1998) .............................................................30

Winchester v. Jackson.,
7 U.S. (3 Cranch) 515 (1806).............................................................32

Statutes

28 U.S.C. 144..............................................................................................30

28 U.S.C. 455...............................................................................................30

28 U.S.C. 1658.........................................................................................2, 16,

29 USC 295.................................................................................................19

42 U.S.C 12102.......................................................................................3, 15,

42 U.S.C.A. 12131......................................................................................2

Fla. Stat. 95.11...........................................................................................4, 8,

Fla Stat. 768.28...........................................................................................7, 8.

Code of Federal Regulations

28 C.F.R. 35.105............................................................................................3

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

Federal Rules of Civil Procedure 8(a)..........................................................17

Section 313 of the Judicial Improvements Act of 1990................................16

vi
Other Authorities

Hill, E. & Blank, P. (2009). Future of Disability Rights: Part Three—

Statutes of Limitations in Americans with Disabilities Act, “Design
and Construct” Cases, Syracuse Law Review, 60, 125-
159.........................................................................................................5

Erik K. Yamamoto, Efficiency’s Threat to the Value of Accessible Courts for

Minorities, 25 HARV. C.R.-C.L. L. REV. 341 (1990)........................8

Laura Rothstein, Disability Discrimination Statutes or Tort Law: Which

Provides the Best Means to Ensure an Accessible Environment? 75
Ohio State Law Journal. 6 (2014).........................................................3

vii
 I. SUMMARY OF ARGUMENT

The defendant cited the wrong standard for her civil claims, i.e. Title I of

ADA. The University is a financial aid recipient and U.S. Department of

Education enforces regulations governing federal laws such as Title II of

ADA and Section 504. The district court should have applied Title II of

ADA since she was a medical student receiving federal student loans. She is

not an employee. Appellee brief had several issues including legal errors,

citing inapplicable authorities, misstatements and mischaracterization of

actual set of events, using self-serving depositions when sufficient evidence

indicate that the defendant committed penalty of perjury (A-1 to 180; 303-

326; 874-1287; 1442-1454; 1556-2404). Furthermore, Appellee incorrectly

states she abandoned her claims on appeal. The individualized issues

predominant to all of her civil claims). Furthermore, Appellant request for

de novo review of legal and factual question with well-pleading of her

claims indicate the intention to sustain her claims. Appellee fail to state

relevant facts and address one of the critical issues in her appeal, i.e. de novo

review under Title II of ADA Amendment Act (ADAAA) 2008 and

1
application of Fallback Statute of Limitations 1658 based on context of the

case.

II. ARGUMENT

A. Wrong Standard

The standards for Title I (employment) and Title II (public service) is

different. Title I is specific to employment and under ADA, an “employee”.

A student is not an employer under ADA. She was a student receiving

financial aid by U.S. Department of Education, Fed Loan Servicing

(Appellant’s Initial Brief, Pages 44-46)1. Though Title I is for an employer

to provide reasonable accommodations whereas Title II requires an official

to provide reasonable modifications to regulations to meet the essential

eligibility requirement or receipt of services or the participation in programs

or activities provided by a public entity. 42 U.S.C.A. 12131(2). Title II

requires all events or activities at the public school be fully accessible and

provides for equality of opportunity. Department of Justice, Title II

Technical Assistance Manual Section II-3.3000. Public entities are

1
Designation for “I.B”. “I.B” refers to page numbers for Appellant’s Initial Brief.

2
precluded under Title II from making unnecessary inquiries into the

existence of a disability. Id. Section II-3.5300. Additionally, under ADA

there must be one designee to coordinate compliance efforts 28 C.F.R.

35.105.

In NCD 2000 Report, one of the concerns raised was that:

federal courts have been dismantling the law’s protections and

routinely disregarding the positions of the federal agencies on critical
issues such as the definition of the protected class, the appropriate
analysis for determining the reasonableness of a particular
accommodation, and the constitutionality of Title II of ADA2.

Hence, to maintain consistency among agencies enforcing Title II of ADA;

the issue was address by the 2008 ADA Amendments which changed and

boarded the definition of coverage. 42 U.S.C 12102 (2012)3.

B. Equitable Tolling: ADAAA 2008 and Fallback Statute of

Limitations 1658.

At the district court, Appellant was not afforded with the opportunity

to fully brief issues of equitable tolling. In Motion for Reconsideration, she

2
NCD 2000 Report, supra note 109, at 7.
3
Laura Rothstein, Disability Discrimination Statutes or Tort Law: Which Provides the
Best Means to Ensure an Accessible Environment? 75 Ohio State Law Journal. 6 (2014)

3
brought forth issues in which her cause of action that were time-barred

would be sustained. This cause of action begins to run under the (1)

discovery rule when one learns of the injury (2) good faith negotiations to

resolve the disputes4 (I.B- 33 to 39).

1. Rules governing Equitable Tolling for Title II of ADA cases

In situation where federal statute borrows state limitation period, the

state law governs the length of the limitation period, but federal law governs

the accrual of the limitation period. Appellee incorrectly states that the state

four-year statute of limitation is analogous to Federal statute of limitation

Defendant’s Brief, page 225). The authority cited, Ealy v. GEO Grp, Inc. is

inapplicable in this situation. Fed. Appx. 739 (11th Cir. 2016). Under Fla.

Stat. 95.11(3)(1), the claim arose in Fall of 2010 when Dr. Specter made

false representation of the neuropsychological evaluation, and Plaintiff relied

on it (A-1455-1484). There are several possible dates in which statute of

limitation begins to run under ADA cases (1) encounter or discovery rule (2)

5
Designation for “D.B”. “D.B” refers to page numbers for Defendant’s Brief.

4
date when the constructions are completed (3) date when the defendant

corrects the violation under continuing violation6.

a. Discovery Rule

Federal Courts have applied an “encounter” or “discovery” rule to

statute of limitation questions under ADA. The application of the discovery

rule, the court determined that the cause of action is not complete, and the

limitations period does not begin, “until the plaintiff—a qualified individual

with a disability—is denied access by due to some sort of defect. Frame v.

City of Arlington., 575 F. 3d 432, 433 (5th Cir. 2009). The court applied

continuing violation rule to statute of limitations under ADA in HIP v. Port

Authority of New York and New Jersey. No. 07-2982, 2008 WL 852445. The

HIP court ruled that the discrimination was “continuing and the cause of

action was not complete until the plaintiffs were excluded by the

inaccessible element”. Id.

The principle governing the three rules at the court have applied to

Title II cases, is based on the tort principle, i.e. the cause of action for

6
Hill, E. & Blank, P. (2009). Future of Disability Rights: Part Three—Statutes of Limitations in
Americans with Disabilities Act, “Design and Construct” Cases, Syracuse Law Review, 60, 125-
159.

5
personal injury is not complete until an injury occurs. This is also consistent

to the principle of suffering an “injury in fact”, where there has been a

violation of a legal right that is (a) concrete and particularized (b) actual or

imminent (I.B. 20-21). However, ADA does not have an accrual date for a

tort and due to that it relies on the state tort statutes of limitations. Thus,

application of encounter or discovery rule is appropriate under ADA, when a

plaintiff discovers a violation. The application of encounter rule to the ADA

case, the date is when the defective public services providing

accommodations have been corrected as the discriminatory act (I.B. 13 to

40). Hence, the triggering date of statute of limitations is the date when the

entity provides the public services to people with disabilities that abide by

the Federal Agency guidelines and policies that enforce Title II and Section

504.

b. Cause of Action sustained

The district court held that plaintiff should have filed her claim by Fall

2014 pursuant to the state statute of limitations of four years. At that time,

she had filed her claims with U.S. Department of Education, Office of Civil

Rights on August 29, 2014 (I.B. 34-39). As a Fed loan financial aid

6
recipient, the appropriate agency to file her claim, prior to filing a lawsuit is

U.S. Department of Education, Office of Civil Rights. At the district court,

the Defendant stated in Motion to Dismiss her complaint, that:

Count I and II of her complaint plaintiff claims that University

breached its fiduciary duty and negligently misrepresented facts to her
in October 2010, but that she did not learned of these misdeeds until
February 6, 2012..... Plaintiff written notice of May 2015 [to
Department of Financial Services] was served more than three months
beyond the three-year notice period. Counts I and II of Plaintiff’s
Complaint therefore should be dismissed with prejudice. (A-2027).

The Florida Supreme Court has made it clear that the statutory requirement

under Fla Stat. 768.28 (6)(a) of written notice is within three years of accrual

of the claim. Levine v. Dade Cnty. Sch. Bd. 442 So. 23 210, 212 (Fla. 1983).

However, Fla Stat. 768.28 (6)(a) states that:

An action may not be instituted on a claim against the state or one of

its agencies or subdivisions unless the claimant presents the claim in
writing to the appropriate agency..within 3 years after such claim
accrues and the Department of Financial Services or the appropriate
agency denies the claim in writing. Fla Stat. 768.28 (6)(a)

Fla Stat. 768.28 (6)(b) states:

For the purposes of this section, the requirements of notice to the

agency and denial of the claim pursuant to paragraph (a) are
conditions precedent to maintaining an action but shall not be deemed

7
Designation for “A”. “A” refers to the page number for Appellant’s Appendix

7
 to be elements of the cause of action and shall not affect the date on
which the cause of action accrues.

Additionally, Fla Stat. 768.28 (6)(d) and Fla Stat. 95.11 (4)(b) is

appropriate for her state claims of negligence and breach of Fiduciary duty

based on cause of action for the two claims and not Fla Stat. 95.11 3(a)

based on facts and cause of action as stated in her brief. In Rennie &

Laughlin Inc. v. Chrysler Corp., the court stated in reference to Federal Rule

12(b)(6) that the “primarily objective of the law is to obtain a decision on

merits of any claim; and that a case should be tried substantially on the

merits rather than technically on the pleading. 242 F. 3d 208, 213 (9th Cir.

1957). This court in S.E.C. v. Elliott, stated that court provides pro se parties

wide latitude when construing their pleadings and papers. 953 F. 2d. 1560,

1582 (11th Cir. 1992). The colorable standards seem to allow procedural

manipulation by lawyers for using technicality as the basis for manipulation

and not the argument and well pleaded based on merits of the claim.8

8
Erik K. Yamamoto, Efficiency’s Threat to the Value of Accessible Courts
for Minorities, 25 HARV. C.R.-C.L. L. REV. 341 (1990).

8
 In Appellant filed her claim to U.S. Department of Education, Office

of Civil Rights (“US DOE OCR”) that had same operative facts under the

common nucleus (I.B. 34-39). The federal agency accepted her claim to be

investigated on September 25, 2014 (I.B. 38). And notice of discriminatory

act of denial of her Petition for Readmission that contained all counts I to VI

were also sent to USF by the agency (I.B. 34, 37 and 39). Additionally, the

University was provided with her Petition for Readmission dated May 28,

2014 (which was the basis of her claim that was opened for investigation)

that contained claims all of her claims, including Count I and II (A-1832 to

A-1935 and I.B. 34, 35, 37)). The final agency decision by US DOE OCR

was rendered on December 16, 2015 (I.B. 38). The case was filed at the state

court on by her former counsel on Jan 22, 2016 (within 60 days after the

agency had made the final determination). (A-1-180).

c. Accrual date for Federal Case under Discovery Rule

The district court determined that the argument set forth under

equitable estoppel did not apply to her claims and denied motion for

9
reconsideration9. On the contrary, Federal Circuit reviewed her Petition and

ruled on the merits of the case, but denied jurisdiction on July 27, 201710

(USCA FC 17-2083).

The tolling of time in state is when the cause of action arose (I.B 20-

21). For a federal question case, the court must look to federal common law

to determine when the federal claim is considered to have accrued. Guiltburt

v. Gardner, 480 F. 3d 140, 149 (2nd Cir. 2007). Under federal law, the claim

does not accrue until plaintiff, “knows or has reason to know of injury which

is the basis for the action”. Ormiston v. Nelson, 117 F. 3d. 69, 71 (2nd Cir.

10
Appellant requested this court to allow her to brief her collateral issue in her initial
brief and provided FOIA response on September 5, 2017. The Appellee had agreed as
per e-mail exchange on August 22, 2017 that it was OK to include the FOIA response.
However, the Appellee moved to strike her Appeal that included the collateral issue
mentioned in her Motion for Reconsideration. Appellant did not want to be sanctioned
and lose her appeal at this court, hence, she filed a new brief without FOIA response
references on October 5, 2017 and the latter brief was approved as the initial brief and
Appellee’s motion for sanctions was denied on October 30, 2017. Appellant submitted a
Petition for Writ Certiorari for the Federal Circuit to the U.S. Supreme Court for her split
claims regarding the collateral issue of Tucker Act on October 26, 2017. This was one
day late, hence, she filed Motion to Direct the Clerk to File Petition out of Time, stating a
concern that her FTCA claim is near two-year expiration on December 15, 2017, yet
wanted to preserve judicial economy (final agency rendered on December 16, 2015 for
her OCR case no. 04-14-2487). The U.S. Supreme Court denied her motion on December
11, 2017 (17M65). Therefore, as stated in her Motion, she filed a complaint to U.S.
Federal Court of Claims on December 13, 2017.

10
1997). Federal Courts apply the discovery rule whenever statute is silent on

the issue of accrual. Connors v. Hallmark & Son Coal Co., 935 F 2d. 336

(D.C. Cir. 1991); Torres v. Superintendent of Police of Puerto Rico, 893 F.

2d 404, 405 (1st Cir. 1990).

In Horsley v. The University of Alabama, this court denied applying

catchall statute of limitations to her time-barred state claims, because it was

only after subsequent pleadings that her claim was not cognizable before the

enactment of the ADA Amendment Act of 2008. et al, No. 13-13279 (11th

Cir. 2014).

In Appellant’s initial complaint, the University discriminated against

her disability, and misperceived that she did not have a disability from

March 2010 to February 201211. Though without knowledge of her diagnosis

and presence of her disability, unknowingly; her disability was mitigated

since she was repeating the academic year in 2010-2011 (I.B. 15-20). Hence,

11
Defendant does not mention the pertinent facts and argument regarding ADAAA 2008
in their brief. Appellee states that since the Count I (breach of fiduciary duty) and II
(Negligence) was not technically mentioned in her brief; the claims abandoned. Though
the issues are broad and predominate all of her claims. Regardless, her initial complaint
states that Count III-VI, “paragraphs 1-125 of this complaint are hereby realleged as if
fully set forth herin”. Hence, the facts (not counts) in her complaint from number 1 to 125
are relevant.

11
Associate Dean of Student of Affairs, determined that the

neuropsychological evaluation which the university paid and received from

the evaluator was equivocal and the student did not have a disability since

she was currently doing well in her classes (I.B 20-23). She was stated

“nothing came out of the report” (I.B 21). Hence, she relied on Dr. Specter

and believed she did not have ADHD, there was no need to be on

medications and did not have a disability (references in her brief were

provided to all USF counseling medical records indicating that she was not

on ADHD medications from May 2010 to Feb 2012) (IB. 13-30). When her

disability manifested in Academic Year 2011-2012, causing her to fail block

1, she went to Dr. Specter in October 2011 and asked if anything came out

of the report that she should know. He stated nothing came out of the report.

She ultimately, failed the second block and was dismissed in December

2011. Dr. Specter discriminated against her since he thought that if a student

had done well before without medications and accommodations, they do not

have any condition and the neuropsychological evaluation was sham. He did

not take into account, that the condition may be “invisible” in first year

2010-2011, because she is sacrificing other aspects of life (major life

12
activities) (I.B. 57-67). However, in second year she was not able to

compensate and her ADHD (that she did not know she had) exacerbated and

ultimately led to her dismissal. Dr. Specter discriminated against her

disability on second year (2011-2012), by not participating in good faith

with disability services and her for accommodations nor did he inquire if she

was on ADHD medications. She failed the second block and ultimately

dismissed (I.B. 8-26; 57-67).

d. Awareness of Injury under Discovery Rule: February 8, 2012

Under discovery rule the courts have determined that is when the

plaintiff is awareness of the injury. Carrion v. Coca-Cola Bottling Co. of

New England, 2006 WL 35267488 (D. Conn. 2006). Additionally, under the

discovery rule, once the plaintiff discovers or should have discovered the

fact of the injury and its cause, the cause of action accrues, even if it would

have impossible for the plaintiff to know that the injury was the result of

discrimination. Id. The clock starts upon the discovery of the injury with

exercise of reasonable diligence that one should have discovered, the critical

facts of the injury and its cause and no other elements of the claim. Rotella v.

Wood., 528 U.S. 555 (2000) (I.B. 8-26, 57-67). Appellant discovered that

13
Dr. Specter had discriminated against her from 2010-2012 on February 8,

2012 (when she requested a copy of her neuropsychological evaluation), by

continuously stating to her from 2010-2012 that she did not have a ADHD

diagnosis nor a disability (continual violation) (I.B. 20-23; 57-67). Under the

equitable tolling doctrine, the statute of limitations does not run against a

plaintiff who is unaware of his cause of action. Dilman v. Combustion

Engineering Inc., 784 F. 2d 57, 60 (2nd Cir. 1986).

In Heins v. Potter, the court held that

when a plaintiff knows or should have known of his injury—i.e. his

claim has accrued- but the defendant’s wrongful, affirmative acts
prevent him from learning about other facts that might support a cause
of action, then tolling may apply. 271, F. Supp. 2d 545 (SDNY 2003).

e. ADAAA 2008 and new right

ADAAA 2008, created a new right for Appellant. Congress added

specific rules of constructions regarding the definition of disability, which

provide:

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

14
42 U.S.C. 12102(4).

ADAAA predominant issues relating to all of her claims (I.B 57-67

and A-1 to 180). For Dr. Specter made a determination that she did not have

ADHD nor disability in December of 2010, when the neuropsychological

evaluation clearly stated she is eligible for services under ADA, Section 504.

He instead determined that since it was compensated, the report was sham,

equivocal and inconclusive. And when she did poorly in second year, he

discriminated against her and went against the counselors and physician

recommendations that accommodations would not benefit her (I.B. 8 to 24).

She followed the University guidelines and Dr. Specter’s referral to USF

MCOM Counseling Services as instructed. She followed all of Dr. Specter’s

instructions (I.B. 8-24). The Counseling Center, Woods Associates even

suggested to her to go to Dr. Specter and discuss about the

neuropsychological evaluation in October 2011(I.B. 13-16). She relied on

Dr. Specter’s continuous statement he stated continuously from 2010-2012

that, “nothing came out of the report”. And in February 8, 2012 in

preparation for her Dean’s Appeal; she discovered the truth (I.B 13- 23).

15
 In Cada v. Baxter Healthcare Corp., the court stated in regards to the

date a statute of limitation expires, i.e. the accrual of the claim. “Accrual is

the date on which the statute of limitation begins to run.” 920 F. 2d 446, 450

(7th Cir. 1990). In federal question case, and under the discovery rule, the

date that matters are “on which plaintiff discovered he has been in injured”

(I.B 13- 23 and 50-57).

The ADAAA created an implied cause of action under Federal Statute

Title II of ADA that underwent provision in 2008. The Section 313 of

Judicial Improvement Act of 1990, refers to civil actions that arise under the

acts of the Congress. 28 U.S.C 1658. The courts have recognized that when

an implied claim can arise under that statue due to acts of Congress; hence it

is the statutory language and the intent. Cort v. Ash, 422 U.S. 66, 78 (1975).

(I.B pages 50-57)

C. Congress abrogated the state’s sovereign immunity by enacting

section 5 of fourteenth amendment to claims
under Title II

Appellant referred her state sovereign immunity waiver for her civil claims

for Title II and not Rehabilitation Act. In Tennessee v. Lane, the congress

16
exercised power under section five of the 14th amendment to enforce the

substantive guarantees of that Amendment to enforce constitutional rights,

prophylactic remedy and congruence and proportionality 124 S. Ct. 1978

(2004). The intent for the two federal statutes Title II of ADA and Section

504 are the same (I.B. 46 to 50).

D. Appellant has not Abandoned Claims

Appellant’s Issue Statement contains six issues and drafted it broadly.

The issues on appeal with respect to six claims are fully briefed with general

structure of fact-pleading (I.B. 3-5). Due to substantive law or institutional

policies that might influence procedural laws. Appellant briefed her claims

in fact-pleading format for the court to determine the cause of action for her

civil claims. The Issue no. 2; in which Appellant stated if the Congress has

abrogated state sovereign immunity waiver for violation of due process and

equal protection clause to Title II claims for this case. The elements of

Count I, II and IV have the same operative facts from the common nucleus

of other claims in her complaint. The Title II of the ADA and 504 of the

Rehabilitation Act do not preempt state-law claims. Hence, for de novo

review, and pursuant to Fed. Civ. R. P 8(a), she provided an argument for

17
the claims in which they are entitled to relief. She also provided essential

elements of the claim and provided relevant facts that state cause of action.

Gracia v. Hilton Int’l, 97 F. Supp. 5, 7 (D.P.R. 1951). The essential

elements of the claim include operative or substantive elements. The

intention to review all claims is evident Statement of Facts and Argument

section and the issues in the Statement of Issue section, are broad. The

reference to claims in the Statement of Issue section is referred to as “the

claims in the suit” (Issue no. 3), “Title II claims” (Issue no. 2), “civil claims”

(Issue no. 4) (I.B. 3-4). Appellant Issue statement, in the form of a question

requested de novo review under federal preemption (federal question case).

In Sapuppo v. Allstate Floridian Ins. Co. this court held that plaintiff

had abandoned arguments on appeal because it had listed only two issues.

No. 13-11558, 2014 WL 43895 (11th Cir. 2014). Additionally, the Sapuppo

court held that plaintiff abandoned challenges to district court’s alternative

grounds when it only made passing references in their brief. The plaintiff

drafted a specific statement of issues on appeal and were only challenging

some of the grounds. If the plaintiff had stated a broad issue statement, the

Eleventh Circuit would not have concluded that they had abandoned any

18
argument based on their issue statement. and did not mention issues that

could also be attributed to district court’s alternative reasons for dismissal.

E. Count V has not been abandoned: Similar Statutes:

Rehabilitation Act and Title II of ADA

Federal Courts have applied discovery rule for Title II of ADA claims.

Since same set of facts bring her claims pursuant to Section 504 of the

Rehabilitation Act. 29 USC 295(a). The court has held that since both

statutes are similar, hence, the courts have used the same precedent under

ADA to analyze Section 504 claims. Garg v. Potter., 521 F. 3d 731, 736 (7th

Cir. 2008) (“the elements of claims under the two provisions are nearly

identical, and precedent under one statute typically applies to the other.”). In

Bragdon v. Abbot, the court held that sustaining ADA claims is providing as

much protection to the regulations that implement required to construe the

Rehabilitation Act, since the elements of the claims under the two provisions

are nearly identical. 524 U.S. 624, 631-32, 118 S. Ct. 2196, 141 L.Ed.23 540

(1998). Hence, Appellant has not abandoned her claims under Section 504.

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 F. ERRORS in APPELLE’S STATEMENT OF FACTS

The Statement of Fact section completely contradicts Appellant’s

opening brief. The argumentative statement of facts is not supported by

official records such as transcripts, medical reports and counseling reports,

but self-serving depositions in which her former counsel requested the court

to penalize defendant for perjury. Appellant courts have criticized counsel

for deleting critical language form the record, omitting material facts and

mischaracterizing the appeal decision (Amstar Corp v. Envirotech Corp.,

730 F. 2d 1476, 1486 (Fed. Cir. 1984) (the court assessed costs against the

counsel for deleting “critical language in quoting from the record”) (Havs v.

Johnson., 566 S. 3d 260, 261 (Fla. Dist. App. 5th 1990)(assessing counsel

fees for failing to include material facts) ( St. Lucie Harvesting &

Caretaking Corp. v. Cervantes, 639 S. 2d 37, 39 n. 1 (Fla. Dist App. 4th

1994) (criticizing counsel for misrepresenting facts that was a critical issue

on appeal). In Hutchins v. Hutchins, the court sanctions the counsel for

misstating facts “who acknowledged the misleading nature of the language

quoted” in a brief. 501 S. 2d. 722, 723 (Fla. Dist. App. 5th 1987).

20
Following are the incorrect statements in Appellee’s statement of Facts

section:

1. USF: It is true, however, Appellee should have included relevant

fact that the University is a public university that receives federal

financial aid. Hence, based on privity contract, U.S. Department of

Education, Office of Civil Rights is a third party that would have

interest in this case (D.B. 5; I.B. 23-24, 43-50).

2. Prior to Medical school: The statements in this subsections are

blandly false, in which the only support that the Appelle provides

is hearsay, speculative and conclusory depositions that “were

testified”. There is no support of those statements in transcripts,

medical records or counseling records. Defendant states that she

“sought treatment because she was doing poorly in her classes and

was having difficulty in her studies” (D.B. 5). This statement is

inaccurate. Appellant had a Grade Point Average of 3.73 out of 4.0

near the end of the Master’s program in July 2008 (I.B. 10).

Appellant had taken the MCAT twice and was repeatedly

unsuccessful in the Verbal Reasoning Section (I.B. 9-11). She

21
 sought help and was recommended to be tested for ADHD. She

went to USF Counseling Center in the Summer of 2008 and was

diagnosed with ADHD (though informal) (I.B. 8-11).

3. Plaintiff’s Academic Difficulties (Count I to VI): Appellee stated

in their brief, “she did not tell anyone at MCOM about her

“informal” ADHD diagnosis, and she did not indicate that she

needed any accommodations. As stated in her brief, she did not

disclose her informal diagnosis to USF MCOM during application

process, because USF Counseling Center stated to her the

diagnosis was informal and the tests conducted by the center were

not definitive (D.B. 5-6). The school still had knowledge of her

diagnosis since they had diagnosed her and also were treating her

(I.B. 10-11). However, doing poorly in standardized exams (i.e.

MCAT) when she had done well in the master’s program and

improved her science GPA with 3.73 was not the sole basis for

having ADHD (I.B. 9-11).

First Semester of Medical School: Appellant did not fail first

semester of medical school as defendant has misrepresented the

22
 facts in their brief (D.B. 5-7). In first semester of medical school,

i.e. molecular medicine block she passed above average and at that

time she was on medications. Hence, her ADHD was mitigated

with medications (I.B. 11-13).

March 2010: Appellant disclosed her informal diagnosis to

Associate Dean of Student of Affairs in March 2010 when she had

done poorly in a cardiology exam (I.B. 13 to 14). This was the first

time she had failed an exam in first year of medical school. This

was in March 2010, however, prior to that, she was passing above

average (I.B. 11-13). the counsel stated that Dr. Specter had no

obligation to provide Appellant accommodations for her disability

when she had disclosed her disability and met the appropriate

requirements for accommodations as per Dr. Specter’s deposition

(D.B. 6-7). This is against the the and policies enforced by U.S.

Department of Education, Office of Civil Rights and also USF

MCOM Handbook 2009, Section IV. F. (1) on page 44, which

states that

23
 Associate Dean for Student Affairs will determine
reasonable course of action after consultation with
appropriate personnel. He will also work in association
with Student Disability Services to review the student’s
disability and recommend accommodations (A-109-110).

Due Diligence: As stated in Appellant’s brief; she had done what

Dr. Specter had instructed as USF MCOM’s policy and met with

the professional personnel that he had referred to as per his

deposition (I.B. 13-21). As per USF MCOM Counseling Report

from Dr. Woods Associates; she had given privileges to contact

Dr. Specter since the services were paid by medical school.

However, in March 2010; Dr. Specter stated that her ADHD

diagnosis was “informal” and she needed a neuropsychological

evaluation to be eligible for accommodations (I.B. 14-16). This is

inconsistent to his deposition, in which he stated that the criteria

for eligibility did not require unduly burdensome evaluation that

costed more than $2000. Appellant stated in her deposition that she

disclosed to Dr. Specter regarding the “possible suggestion” from

Woods Associates to take a leave of absence (I.B. pages 13-16).

24
 Appellant was not ill, she had done well prior to cardiology exam,

and she also did not want to waste a year of training and pay

another year of medical school tuition. Due to that, she requested

accommodations, but was denied. Hartnett v. Fielding Graduate

Institute, 33 NDLR 130 (2nd Cir. 2006). (unpublished opinion)

(Second Circuit remands case to lower court to determine whether

ADA requires an “interactive process” for student

accommodations; a reasonable jury could conclude that institution

failed to engage in good with the student that had a disability).

4. Accommodations (Count I to VI): The counsel stated that Dr.

Specter had no obligation to provide Appellant accommodations

for her disability when she had disclosed her disability and met the

appropriate requirements for accommodations as per Dr. Specter’s

deposition (D.B. pages 5-6).

Leave of Absence: Dr. Specter stated that her ADHD diagnosis

was “informal” and she needed a neuropsychological evaluation to

be eligible for accommodations (I.B. 13-16). In regards to the

Leave of Absence, that was not Appellant’s choice, but she was

25
 disclosing to Dr. Specter regarding the “possible suggestion” from

Woods Associates (I.B. 13-16). Appellant was not ill, she had done

well prior to cardiology exam, and she also did not want to waste a

year of training, pay another year of medical school tuition (I.B.

11-13). However, a LOA for documentation purposes, i.e.

neuropsychological evaluation paid by the University would have

been practical. Hartnett v. Fielding Graduate Institute, 33 NDLR

130 (2nd Cir. 2006). (Second Circuit remands case to lower court to

determine whether ADA requires an “interactive process” for

student accommodations; a reasonable jury could conclude that

institution failed to engage in good with the student that had a

disability).

Pediatric Rotation: Appellee misrepresents the actual facts and

uses opportunistic situation. For example, Appellant’s 29-year old,

first cousin passed away on 12/07/2012 (A-1723). Her cousin’s

funeral ceremony was 12/10/12, which was also the day of her

pediatric rotation. Appellant requested Doctoring II course director

if she could make up the pediatric rotation in an alternative day

26
 since she was attending the funeral ceremony. Appellee

fraudulently states in the appeal, “Zainulabeddin had difficulty in

Doctoring II course...she postponed the requirement to participate

in pediatric rounds” (D.B. 10).

Prima Facie: Despite the fact that Appellant has provided summary

of all of the clinical evaluations from Year 2009-2012 that

contradicted Appellant’s clinical evaluation in 2013. Appellee

continues to cite “subjective evaluations from 2013 in second

year” as the sole basis for their argument that Appellant is not

“otherwise qualified”. In fact, the second year midterm 2011

clinical evaluation was contradictory to the clinical evaluations

from the same midterm clinical evaluation in 2012; graded and

judged based on same criteria and standards for second year

students (I.B. 27-30, 37, 39). She forced her to take exams on the

spot; when they had knowledge she was not prepared to “create

evidence”. There is no evidence on record and also affirmed by Dr.

Specter that Appellant “failed to show up on exams”. In fact, when

27
 the extensions were not approved; Appellant took the exam on the

spot (I.B. 21-38).

CBSE (Count VI): She has not abandoned this claim (I.B. pages

22-28, 46-50, 65). Appellee states in this section that “no one had

informed APRC that she needed accommodations” (D.B. page 10-

11). The determination for eligibility of accommodated exams is

determined by the USF Associate Dean of Student Affairs who

works and informs the USF Main Campus Disability Services as

stated in the USF MCOM Student Handbook (A-109-110). It is a

standard as approved by USF Disability services to provide

services as per Institutional standard to give Appellant the exam

with the accommodations for her disability that she has been

approved (A-1 to 180). However, forcing Appellant to take the

final exam without accommodations, (i.e. major reason why she

failed first year in 2009-2010; note there was no final exam

administered in the repeat first year in 2010-2011) is setting up for

a student for failure. Appellant took the CBSE after her dismissal

on March 26, 2013 and passed above benchmark. Dr. Specter

28
 wrote the letter to NBME Disability Services dated March 28,

2013; after her dismissal (letter was fraudulent and would have led

to her being labeled as irregular behavior (I.B. 22-28, 46-50, 65).

5. Dismissal: The reasons for dismissal is speculative. Appellant has

discussed that she is a prima facie, otherwise qualified individual

with a disability that was retaliated for discrimination (I.B. 8-50,

57-67). In Lee v. Trustees of Dartmouth College, the court held

that the residency student dismissed from program may proceed on

claim that medical school wrongfully perceived him as having

multiple sclerosis that would prevent him completing his residency

with or without reasonable accommodations. 958 F. Supp. 37

(D.N.H. 1997).

G. Appeal: Motion for Reconsideration and Motion for Recusal

(17-12376)

Appellant has not abandoned her appeals. She has provided references

to her Appendices in the initial brief of orders to be reviewed (I.B. 67-69).

Appellant stated to her former counsel prior to Summary of Judgement when

she discovered in District Judge’s judicial website that he has professional

29
ties to the USF in February 2017. Honorable Judge Moody’s judicial

website does not indicate that he had former professional association (I.B. 68

to 69). It states he is an “active member in the community and his service

includes serving as a member of USF Financial Advisory Board and

chairperson for USF Department of Psychology”. Though, in United States

v. DeTemple, the court held that recusal was unnecessary when the judge’s

prior professional association did not warrant recusal. 162 F. 3d 279 (4th Cir.

1998). However, in Hook v. McDade, the court held that recusal under

Section 455(b)(1) is required only if actual bias or prejudice is proved by

compelling evidence”. 89 F. 3d 350, 355 (7th Cir. 1996). Appellant’s Motion

for Recusal and Motion for Reconsideration, provided the judge with

substantial evidence from the record and additional to support the record that

he had overlooked to correct the ruling of facts that were material to legal

conclusion.

Appellant stated to her counsel regarding the professional association

of the judge in his judicial website since which one can assume is to

garnering trust in the community (I.B. pages 68-69). 28 U.S.C. 144 and 28

U.S.C. 455. (Section 455(a) and (b)(1) and b (4) of the Recusal Statute deals

30
with specific conflict of interest situation, appearance of partiality and

potential financial interest). Appellant’s former counsel did not address her

concern.

Since there was no actual bias, i.e. evidence on record as of date to

speculate that the Judge would not weigh the official student records,

medical records, counseling reports, cite “defendant’s depositions” with

respect to determining the relevant facts that are material to critical issues of

her claims (I.B. pages 67-69). Hence, she relied on her former counsel’s

judgement before summary of judgement. (Section 144 of Recusal Statutes

aims at actual bias or prejudice). In Brokaw v. Mercer County, the court

stated that the standard for determining disqualification is “whether a

reasonable person would be convinced the judge was biased” 235 F. 3d

1000, 1025 (7th Cir. 2000). The Brokaw court further stated that “reasonable

person would not be convinced of bias based solely on judicial rulings,

which didn’t demonstrate evidence of “personal animosity or malice, and

this recusal wasn’t required. Id. Therefore, Appellant requests this court for

de novo review of district court’s order of summary judgement. Carter v.

31
City of Melbourne Fla., 731 F. 3d 1161 (11th Cir. 2013). Randall v. Scott,

610 F. 3d 71, 705 (11th Cir. 2010).

H. Appeal: Motion to Oppose Bill of Tax Costs (17-12376)

Appellant has not abandoned her appeals and provided references in

her appeal to the appendices for her argument (I.B. 67-69). The honorable

Judge wrongly concluded that the defendant is deemed “prevailing parties”

entitled to tax costs. The district court should not have rendered the decision

based on speculative testimony. Winchester v. Jackson, 7 U.S. (3 Cranch)

515 (1806). Appellant stated to Judge Moody in her motion that she has no

financial means to even pay for her current living expenses. He stated in

response, that she should take more loans out from Student Fedloan

Servicing to pay the defendant. Judge’s abuse of discretion is clear error of

judgment (I.B. page 67- 69). Mann v. Taser Int’l , Inc., 588 F. 3d 1291, 1302

(11th Cir. 2009). Defendant cannot be the prevailing parties for abusive

litigation tactics, defamation and malicious prosecution12. The judge’s

decision also contradicted Magistrate Judge, and USCA for the Federal

12
Harper, Malicious Prosecution, False Imprisonment and Defamation, 15 TEX L. REV.
157 (1937).

32
Circuit who granted her in forma pauperis application based on genuine

financial need and merits of her case (I.B. 67- 69).

III. NOTICE OF DIRECTLY RELATED CASE

Appellant has filed a complaint to Federal Court of Claims for

sovereign immunity waiver under the Tucker Act and Federal Tort Claims

Act for her claims pending at this court for review. Her complaint at FCC

was reviewed on December 18, 2017 and she was granted expedited briefing

and bench trial. The court would benefit from FCC decision with respect to

equitable tolling of her claims.

IV. CONCLUSION

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

brief, the Court should reverse the District Court’s order.

33
Dated: December 28, 2017

_____________________ _______________________

(Date) (Signature of Appellant)

Nausheen Zainulabeddin

4409 West Varn Avenue

Tampa, FL 33616

nausheenkhawaja@gmail.com

34
 CERTIFICATE OF COMPLIANCE

I hereby certify that:

1. The foregoing Brief for Nausheen Zainulabeddin complies with

the volume limitation of Fed. R. App. P. 32(a)(7)(B) because the brief
contains ___6471___ words.

2. The brief 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

35
 CERTIFICATE OF SERVICE

I hereby certify that on December 28, 2017, a true and correct copy of the
forgoing brief and appendices, 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

36