Petition for Writ of Certiorari — Matthew Stanek, et al., Petitioners v. St. Charles Community Unit School District No. 303 Board of Education, et al.

Supreme Court briefJun 15, 2022

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FILED

MATTHEW STANEK, SANDRA STANEK,

AND BOGDAN STANEK,

Petitioners,

ST. CHARLES COMMUNITY UNIT

SCHOOL DISTRICT NO. 303, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Matthew Stanek

Sandra Stanek

Bogdan Stanek

Petitioners Pro Se

4115 Prairie Crossing Dr.

St. Charles, IL 60175

(630) 400-0071

CASTLERENTALS@COMCAST.NET

August 22,2022

SUPREME COURT PRESS

♦

(888) 958-5705

♦

Boston, Massachusetts

QUESTIONS PRESENTED

Title III of the Americans with Disabilities Act

prohibits public accommodations from discriminating

against individuals on the basis of disability. § 12182

(a). This appeal arose from the District Court’s grant of

sanctions and dismissal of the entire suit with prejudice.

However, the epicenter is concerning the due process

right of the disabled to accessible depositions, their

right to equal access to the court and equal protections

of laws. Unlike the Tenth and Third Circuit, the Seventh

and Fifth Circuits added a limitation to the plain

meaning of “service establishment” that appears

nowhere in ADA. On appeal, petitioners challenged

the denial of a protective order that was essential to

preserve asserted privileges under the First and Fifth

Amendments, but the Seventh Circuit applied the

collateral bar rule holding that a party who disobeys

a judicial order may not challenge the validity of the

original order. Here, however, there was no citation of

contempt under either Federal Rule 37 or 42 and the

due process concerns and safeguards associated with

criminal contempt were not met. Petitioners are calling

into question the jurisdiction of the courts below to

issue such orders, and the constitutionality of Federal

Rules and ADA as they came in direct conflict with the

U.S. Constitution and with decisions of the Supreme

Court. The Questions Presented Are:

1. Whether a law office is subject to the non-dis

crimination requirements of the Title III of the

Americans with Disabilities Act, 42 U.S.C. §§ 12181

et seq., (the “ADA”) when it conducts a deposition of

“any” qualified individual with a disability under the

statute;

2. Whether the earlier statute, Federal Rule 26

that covers a more generalized spectrum and broad

universe of potential litigants, trumps a later statute

of Title III of ADA that covers a narrow, precise, and

specific subject and protects a particularized group of

litigants.

3. Whether appellate courts can impose the

collateral bar rule on appeal from the sanction with

dismissal under Federal Rule 3 7(b)(2) (A) (v) without

an order of civil or criminal contempt and prohibit a

party from challenging the validity of the discovery

order and whether such order could withstand con

stitutional challenges of the First, Fifth, Seventh, and

Eighth Amendment rights;

4. Whether Magistrate’s discovery order was

transparently invalid and whether petitioners should

be permitted to defend the Rule 37 sanction on these

and other grounds stated in this petition.

Ill

PARTIES TO THE PROCEEDINGS

Petitioners

•

Petitioner Matthew Stanek was the plaintiff in

the United States District Court for the Northern

District of Illinois Eastern District (the “District

Court”) and appellant in the Seventh Circuit

Court of Appeals.

•

Petitioners Bogdan and Sandra Stanek are

Matthew’s parents, and they were the plaintiffs

in the District Court and appellants in the court of

appeals proceedings. In this petition, Sandra

and Bogdan Stanek will address themselves as

‘Parents” and Matthew Stanek will address

himself as a ‘Matthew” and all three together

will be addressed as “Petitioners.”

Respondents

•

Board of Education of St. Charles Community Unit

School District No. 303, St. Charles Community

Unit School District No. 303, Dr. Donald Schlomann, Kimberly Zupec, Dr. John Knewitz, Beth

Jones, Korie Bowers, Dr. Kathryn Zimmer, Shannon

Von Essen, Justin Dohm, Bethany Herrera, and

Cyndi Sulak were the defendants in the district

court proceedings and appellees in the court of

appeals proceedings.

LIST OF PROCEEDINGS

Direct Case History

United States Court of Appeals, Seventh Circuit\

No. 20-3513

Stanek v. St. Charles Community Unit School District

No. 303, et al.

Judgment entered: February 14, 2022 (affirming

sanctions and dismissal of plaintiffs’ claims)

Rehearing en banc denied: March 17, 2022

U.S. District Court, Northern District of Illinois

No. 13-cv-01031

Stanek v. St. Charles Community Unit School District

No. 303, et al.

Judgment entered: Nov. 24, 2021 (order granting a

motion for sanctions and dismissing the case with

prejudice)

Related Case History

United States Court of Appeals, Seventh Circuit

783 F.3d 634 (7th Cir. 2015)

No. 20-3513

Stanek v. St. Charles Cmty. Unit Sch. Dist.

Judgment entered: April 9, 2015 (vacated the

dismissal and remanded for further proceedings)

U.S. District Court, Northern District of Illinois

No. l:20-cv-03535

State of Illinois v. CSL Plasma, Inc., and CSL

Behring, LLC

Case filed June 17, 2020, related to this case within

the meaning of this Court’s Rule 14.1(b)(iii)

Case outcome pending, no final judgment entered

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..........................

PARTIES TO THE PROCEEDINGS...........

LIST OF PROCEEDINGS.............................

TABLE OF AUTHORITIES..........................

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW......................................

JURISDICTION..............................................

STATUTORY PROVISIONS INVOLVED....

INTRODUCTION AND STATEMENT

OF THE CASE.........................................

1. Factual Background and Proceedings Below.... 4

A. Matthew’s First Request for

Accommodations and Appointment of

Counsel Under the Title III of ADA and

Rehabilitation Act....................................

B. First Motion for a Protective Order Under

the Rule 26(C)(1)......................................

C. Matthew’s Second Motion for a Protective

Order [Docket 423, 424]...........................

REASONS FOR GRANTING THE PETITION...... 10

The Decision Below Creates Both an

Intra-Circuit and Intercircuit Split....... 10

A. There Is a Circuit Split Among the Third,

Tenth, and the Fifth and Seventh Circuit

Courts of Appeals

Vll

TABLE OF CONTENTS - Continued

Page

II. The Decisions of the Seventh and the

Fifth Circuit Conflict with This Court’s

on Point Precedent-PGA Tour v. Martin

(2001).............................................................. 12

A. Title III of ADA Equally Protects

Disabled Clients and Adversaries of

the Law Office-Plaintiff Is a Member of

the Class Protected Under the Title III... 12

HI. Both, the Law Offices and Plasma Centers

Operate a ‘Place of Public Accommodation”

and Therefore Are Subject to Title III

OF ADA............................................................ 15

A. Deposition Is Out of a Court Proceeding,

Service or Activity, Benefit or Privilege,

Which Falls Within the Plain Statutory

Language of ADA..................................... 15

B. The Fifth and the Seventh Circuit’s

Decision is Wrong, the Third and Tenth

Circuits Got It Right................................ 16

C. Interpretation of Title III of ADA by the

Seventh and Fifth Circuit Renders the

Title III of ADA Unconstitutional on Its

Face........................................................... 18

D. Providing Written Question Does Not .

Fundamentally Change Oral Deposition.. 19

Vlll

TABLE OF CONTENTS - Continued

Page

IV. Federal Rules May Not Be Employed to

Trump Ada...................................................... 22

A. Federal Rule 26’s Qualification Standard

Imposed by the District Court Denies

Matthew and the Disabled Due Process

and Equal Protections of Law................ 23

V. The Court Erred When It Precluded

the Plaintiffs from Challenging the

Validity of the Magistrate’s and the

District Court’s Orders Underlying the

Sanction......................................................... 25

A. Seventh Circuit Had No Jurisdiction to

Apply Collateral Bar Rule Because

There Was no Order of Contempt Either

Under Federal Rule 37 or 42................... 25

B. Petitioners Were Denied Procedural Due

Process and Equal Protections of Law.... 25

C. Obeying The Magistrate’s Order Required

the Irretrievable Surrender of the

Constitutional Rights................................ 27

D. The Courts Below Failed to Comply with

the Federal Rule 5.1................................ 28

E. Matthew Stanek Was Unable to Attend

His Deposition Due to His Severe

Depressive Episode and Panic Attacks.... 30

F. Magistrate Had No Jurisdiction to

Invalidate the Federal Statute-An Article

III Judge Has to Make Final Decisions

on Questions of Constitutional Proportions... 30

TABLE OF CONTENTS - Continued

Page

VI. Rule 37 Is Unconstitutional on Its Face

and as Applied to Petitioners and Offends

the First, Fifth, Seventh, and the Eighth

Amendment of U.S. Constitution............. 31

A. Bogdan and Sandra Stanek Never

Violated an Order “to Provide or Permit

Discovery” Within the Meaning of Rule

37(B)(2), and the District Court Lacked

Authority to Dismiss the Action as to

Them......................................... ................ 31

VII. Magistrate’s Order Was Transparently

Invalid and Unconstitutional Prior

Restraint on Pure Speech......................... 33

A. Petitioners Were Prevented from

Engaging in Petitioning Activity and in

Exercising Their First Amendment

Right to Free Speech and Assembly....... 33

B. The Constitutional Right of Due Process

Entitles a Litigant an Opportunity to Be

Heard at A Meaningful Time and in a

Meaningful Manner................................. 35

CONCLUSION

TABLE OF CONTENTS - Continued

Page

APPENDIX TABLE OF CONTENTS

Opinions and Orders

Opinion of the United States Court of Appeals

for the Seventh Circuit (February 14, 2022).... la

Order of the United States District Court for the

Northern District of Illinois Eastern Division

(November 24, 2020)

Rehearing Order

Order of the United States Court of Appeals for

the Seventh Circuit Denying Petition for

Rehearing En Banc (March 17, 2022)..........

25a

Statutory Provisions

Constitutional, Statutory Provisions

and Judicial Rules Involved...........

27a

TABLE OF AUTHORITIES

Page

CASES

Alboniga v. Sch. Bd. of Broward Cty.,

87 F.Supp.3d 1319 (S.D. Fla. 2015)........

Alexander v. Choate,

469 U.S. 287, 105 S.Ct. 712,

83 L.Ed.2d 661 (1985)..............................

Ashby v. Warrick Cnty. Sch. Corp.,

908 F.3d 225 (7th Cir. 2018).......................

Bank of Nova Scotia v. United States,

487 U.S. 250 (1988)..................................

Barbier v. Connolly,

113 U.S. 27 (1885)....................................

Boddie v. Connecticut,

401 U.S. 371, 91 S.Ct. 780,

28 L.Ed.2d 113 (1971)...............................

18, 35

Borough of Duryea v. Guarnieri,

564 U.S. 379 (2011)............................. .....

Calloway v. Boro of Glassboro Department of

Police, 89 F.Supp.2d 543 (D.N.J. 2000)...

Church of Scientology v. United States,

506 U.S. 9, 113 S.Ct. 447,

121 L.Ed.2d 313 (1992)............................

City and County of San Francisco v. Sheehan,

575 U.S. (2015)..........................................

Cox v. Louisiana,

379 U.S. 536 (1965)..................................

Xll

TABLE OF AUTHORITIES - Continued

Page

Crowell v. Benson,

285 U.S. 22 (1932).................................

Doe v. Mutual of Omaha Ins. Co.,

179 F.3d 557 (7th Cir. 1999).................

Goldberg v. Kelly,

397 U.S. 268 (1970)...............................

Hanley v. James McHugh Construction

Company, 419 F.2d 955 (7th Cir. 1969)

Holt v. Virginia,

381 U.S. 131 (1965)...............................

In re Grand Jury Proceedings,

142 F.3d 1416 (11th Cir. 1998)............

International Union, United Mine Workers

v. Bagwell, 512 U.S. 821 (1994)............

25, 26

Joint Anti-Fascist Committee v. McGrath,

341 U.S. 123 (1951)................................

Jones v. Barnes,

463 U.S. 745 (1983)................................

Kallis v. Colgate-Palmolive,

231 F.3d 1049 (7th Cir. 2000)...............

Levorsen v. Octapharma Plasma, Inc.,

828 F.3d 1231 (10th Cir. 2016)............ 11, 12, 18

LLC v. BPP Retail Props., LLC,

951 F.3d 41 (1st Cir. 2020)....................

Logan v. Zimmerman Brush Co.,

455 U.S. 422 (1982)................................

24, 36

Maness v. Meyers,

419 U.S. 449 (1975).............................

Xlll

TABLE OF AUTHORITIES - Continued

Page

Marrese v. American Academy of Orthopedic

Surgeons, 726 F.2d 1150 (7th Cir. 1984),

rev’d on other grounds, 470 U.S. 373

(1985)..... ...............................................

Martin v. PGA Tour, Inc.,

204 F.3d 994 (9th Cir. 2000),

aff’d, 543 U.S. 661 (2001)....................

Martin v. Wilks,

490 U.S. 755 (1989)..............................

Matheis v. CSL Plasma, Inc.,

936 F.3d 171 (3d Cir. 2019).................

11, 17

Matter of Providence Journal Co.,

820 F.2d 1342 (1st Cir. 1986)..............

Morton v. Mancari,

417 U.S. 535, 94 S.Ct. 2474, '

41 L.Ed.2d 290 (1974).........................

Nebraska Press Association v. Stuart,

427 U.S. 539 (1976)..............................

Pennsylvania. Dep’t of Corr. v. Yeskey,

524 U.S. 206 (1998).............................. 15, 16, 18

PGA Tour v. Martin,

121 S.Ct. 1879 (2001).......... ................

3, 12

PGA Tour, Inc. v. Martin,

No. 00-24, 2001 WL 41011 (2001).......

Seremeth v. Bd. of Cty. Comm’rs Frederick

Cty., 673 F.3d 333 (4th Cir. 2012).......

Shillitani v. United States,

384 U.S. 364, 86 S.Ct. 1531,

16 L.Ed.2d 622 (1966).......................

XIV

TABLE OF AUTHORITIES - Continued

Page

Shott v. Vedder Price, P.C.,

527 Fed. Appx. 562 (7th Cir. 2013)....... 6, 10, 12

Silguero v. CSLPlasma, Inc.,

907 F.3d 323 (5th Cir. 2018)..................

11, 12

Smith v. Christian,

763 F.2d 1322 (11th Cir. 1985)..............

Societe Internationale Pour Participations

Industrielles Et Commerciales, S.A. v.

Rogers, 357 U.S. 197, 78 S.Ct. 1087,

2 L.Ed.2d 1255 (1958)..........................

Spector v. Norwegian Cruise Line Ltd.,

545 U.S. 119(2005).................................

16, 17

Tennessee v. Lane,

541 U.S. 532, 124 S.Ct. 1978,

158 L.Ed.2d 820 (2004)...........................

Thomas v. Am,

474 U.S. 141 (1985)..................................

Union Tool Co. v. Wilson,

259 U.S. 107, 42 S.Ct. 427,

66 L.Ed. 848 (1922).................................

United States v. Borden Co.,

308 U.S. 188, 60 S.Ct.182,

84 L.Ed. 181 (1930)..................................

United States v. Kras,

409 U.S. 434 (1973).................................

United States v. Mine Workers,

330 U.S. 258, 67 S.Ct. 677,

91 L.Ed. 884 (1947).................................

26, 30

TABLE OF AUTHORITIES - Continued

Page

United States v. Ryan,

402 U.S. 530, 91 S.Ct. 1580,

29 L.Ed.2d 85 (1971)........................

US Airways, Inc. v. Barnett,

535 U.S. 397, 122 S.Ct. 1516 (2002)

Walker v. City of Birmingham,

388 U.S. 307 (1967)..........................

Wood v. Georgia,

370 U.S. 389 (1962)..........................

CONSTITUTIONAL PROVISIONS

U.S. Const, amend. I............................

passim

U.S. Const, amend. V.........................

.. passim

U.S. Const, amend. VII........................

..... ii, 26

U.S. Const, amend. VIII......................

ii, 26, 31

STATUTES

28 U.S.C. § 636(b).................

28 U.S.C. § 1254(1)...............

28 U.S.C. § 2072(c)................

42 U.S.C. § 12102..................

42 U.S.C. § 12181 et seq.......

42 U.S.C. § 12181(7)(F)........

15, 22

42 U.S.C. § 12182(a)..............

i, 20

42 U.S.C. § 12182(b)(l)(A)(i).

42 U.S.C. § 12182(b)(l)(A)(ii)

XVI

TABLE OF AUTHORITIES - Continued

Page

42 U.S.C. § 12182(b)(1)(A)(iii)

42 U.S.C. § 12182(b)(2)(A)(i)...

42 U.S.C. § 12182(b)(2)(A)(ii),

42 U.S.C. § 12182(b)(2)(A)(iii)

42 U.S.C. §§ 12186(b)-(c)........

42 U.S.C. § 12188(b)..............

JUDICIAL RULES

Fed. R. Civ. P. 1...................

Fed. R. Civ. P. 26.................

passim

Fed. R. Civ. P. 26(c)(1).........

5, 6, 19, 22

Fed. R. Civ. P 30(b)(6).........

Fed. R. Civ. P. 31(a)(l)(2)...

Fed. R. Civ. P. 37.............. .

passim

Fed. R. Civ. P. 37(b)(2)(A)(v)

passim

Fed. R. Civ. P. 72(a)............

Fed. R. Crim. P. 42(b).........

Fed. R. Evid. 613(b)............

XVII

TABLE OF AUTHORITIES - Continued

Page

REGULATIONS

28 C.F.R. § 36.105....

28 C.F.R. § 36.202(a)

28 C.F.R. § 36.202(b)

28 C.F.R. § 36.302....

28 C.F.R. § 36.303 ....

28 C.F.R. § 36.303(a)

PETITION FOR A WRIT OF CERTIORARI

Matthew Stanek, Sandra Stanek, and Bogdan

Stanek petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Seventh Circuit in this case.

OPINIONS BELOW

The Seventh Circuit’s opinion is unreported, but

reproduced at App.la. The Seventh Circuit’s denial of

petitioner’s motion for reconsideration and rehearing

en banc is reproduced at App.25a. The opinion of the

District Court for the Northern District of Illinois is

reproduced at App.9a.

JURISDICTION

The Court of Appeals entered judgment on Febru

ary 14, 2022. App.la. The court denied a timely petition

for rehearing en banc on March 17, 2022. App.25a. On

June 22, 2022, this Court extended the time for filing

this petition to August 22, 2022 in order to comply

with the rules of court. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This case involves interpretation of Title III of

ADA and several statutory and constitutional provi

sions. See App.27a.

INTRODUCTION AND

STATEMENT OF THE CASE

The two federal statutes have lived quite peacefully

next to each other for over thirty years, until the

courts below needlessly disrupted this harmony and

declared war on ADA Without any attempt to reconcile

the statutory scheme, the Courts below have held that

Federal Rules trump Title III of ADA in the context

of a deposition. Accordingly, they ruled that a deposi

tion is not a service or a benefit of any sort and a plain

tiffs request for an auxiliary aid in connection with

his oral deposition “is a discovery dispute”

unrelated to a law office or any services connected

with that facility. Consequently, the court refused to

adopt a qualification standard of ADA for accommo

dations, requiring disabled litigants to demonstrate

that a deposition is dangerous to their health.

Petitioners believe that such a meaningless criterion

deprives all litigants with disabilities from eligibility

for protections under the Rule 26, resulting in

irrational classification and exclusion of disabled people

from minimal benefits, serving no Government interest.

Twenty years after this Court resolved a circuit

split between the Seventh and Ninth circuit in PGA

Tour v. Martin, 121 S.Ct. 1879, 1889 (2001) two new

teams have formed creating another circuit split: On

one side, there is the Fifth and Seventh Circuit who

held that service establishments such as law offices

and plasma donation centers are not public accommo

dations because they don’t receive compensation from

the disabled in exchange for services that they furnish

and on the other side is the Third and Tenth Circuit

who held that payment or direction of payment is

irrelevant because plasma donation centers “assist or

benefit” disabled individuals. Thus, this petition

presents a clear and acknowledged conflict among the

federal courts of appeals that is significant and

substantially important because the Courts determined

the qualification standard for the request for accommo

dations by disabled at places of public accommodations

such as the law office.

The Petitioners are civil rights activists, members

of a nonprofit organization “Autism Movement”

established in 2011 in the State of Illinois, who have

used litigations for the past ten years to enforce antidiscrimination statutes and advocate for the rights of

disabled. Thus, this Court is also presented with civil

libertarians’ nightmare, a classic confrontation between

three of the most cherished policies of our civilization—

freedom of speech, the right to petition the Government

for a redress of grievances, and equal access to court

encased in the armor of the First and Fifth Amend

ments, pitted against the right of the defendants to

discovery and reinforced in this case by a denial of pro

tective order, which is the real cause of the battle.

Petitioners allege that the denial of the protective

order was completely groundless, and the sanction

with dismissal was intended solely and exclusively to

suppress petitioners’ exercise of the First and Fifth

Amendment rights.

Factual Background and Proceedings Below

Petitioner Matthew Stanek is an individual with

Autism which substantially impacts his verbal and

nonverbal communication and social interaction.

Dockets 235 at 5-6; 444, Exh.l at 1. Sandra and Bogdan

are his parents, Docket 235 at 3. The Defendants and

the courts below concede that Matthew has a disability

within the meaning of ADA. 42 U.S.C. § 12102 and 28

C.F.R. § 36.105. Docket 447 at 4.

In 2013, Matthew and his parents, sued Defend

ants alleging that defendants denied Matthew equal

access to Honors and Advanced Placement classes

and failed to provide accommodations listed in his

IEP in these classes in violation of the IDEA, ADA,

Rehabilitation Act, and various constitutional pro

visions. Docket 235 at 19-28. In reversing the district

court’s dismissal of plaintiffs’ original amended com

plaint, the Seventh Circuit ruled that Matthew had

properly stated claims for discrimination and allowed

Sandra and Bogdan to proceed with most of their claims

under those statutes including retaliation. Stanek I,

783 F.3d at 640-44.

On August 13, 2019, the district court referred the

matter to a magistrate for the purpose of supervising

discovery proceedings. Doc. 275, 276, 277; 28 U.S.C.

§ 636(b).

A. Matthew’s First Request for Accommo

dations and Appointment of Counsel Under

the Title III of ADA and Rehabilitation

Act

Matthew made the first unsuccessful request for

modification of his oral deposition to the district court

on January 15, 2020. Docket 328. The district court

denied the motion because Title II of ADA and Rehab

ilitation Act do not apply to the federal courts but

instructed that Matthew could move for a protective

order under the Federal Rules 26 regarding his depo

sition. Docket 331 at 1-2.

B. First Motion for a Protective Order Under

the Rule 26(C)(1)

a). Request for a Deposition by a Written

Question Under Federal Rule 31

On January 21, 2020, Matthew filed his motion

for a protective order to have his deposition taken by

written questions under Federal Rule 31. Dockets 332,

332. Matthew argued that his autism and depressive

disorder hindered his communication abilities and

that he established a good cause under Rule 26(c)(1)

to preclude his oral deposition because it would result

in psychological harm, humiliation, and prejudice due

to his disabilities.

b). Request for Modification of Oral

Deposition under Title III of ADA 42

2 U.S.C. § 12182(b)(2)(A)(ii)

Also, in his First Motion for a Protective Order

Matthew requested for a modification of his oral depo

sition under Title III of ADA, asking not to be excused

from an oral deposition but to be accommodated by

“written material” specifically, by written questions in

order to ensure effective communication, both

receptively and expressively as required by Title III.”

Docket 332 at 9, 11, footnote 15. He argued that

without modifications of his oral deposition, he is

being discriminated and defendants are “compromising

his ability to provide competent testimony” Id at

11,12. Defendants made various arguments in opposing

the motion. They argued that Title III of ADA does not

apply to depositions, it does not protect the adversary,

that Matthew is not deaf, that ADA does not require

accommodations and deposition is governed by the

Federal Rules, that any modification is a fundamental

alteration of a deposition. Docket 342 at 3-6,10-11. The

Magistrate agreed in every aspect with defendants and

ruled that Matthew’s request for accommodations is a

discovery dispute governed by standards of Federal

Rules 26, not Title HI of ADA, citing the Seventh Circuit

in Shott, 527 Fed. Appx. at 564. Id at 4,5. Accordingly,

he ruled that Title III does not apply to depositions,

that Matthew failed to show that a deposition would

be “dangerous to his health,” and the evidence he

provided was “stale and outdated” to demonstrate the

“good cause” requirement under Rule 26(c)(1). Docket

376 at 9. However, the Magistrate imposed several

conditions on his deposition, including; splitting it into

two 3.5-hour sessions over two days, and allowing

Matthew to bring his emotional support dog as an

accommodation for his anxiety. Id at 9.

On March 29, 2020, Matthew moved for reconsid

eration [377] which was denied [382]. Matthew filed

objections [383-1], and on May 26, 2020, the district

court overruled his objections. Docket 395.

From at least March 16, 2020, to June 16, 2020,

the whole Country was on a lockdown due to the

pandemic and during this time no civil case depositions

were held in person.

On June 10, 2020, defendants served a notice of

deposition to take a place on June 24, 25, 2020 and

on June 15, plaintiffs notified them that Sandra was

attending her mother’s funeral out of the Country.

Docket 419 at 4,5.

On July 17, 2020, Matthew filed the Petition for

Writ of Mandamus, which was summarily denied on

August 5, 2020. Docket 408.

C. Matthew’s Second Motion for a Protective

Order [Docket 423, 424]

On September 10, 2020, Matthew requested from

the defense counsel an auxiliary aid, written material,

under the Title III of ADA and Defendants refused.

Matthew stated that he would be filing a protective

order, and on September 18, District defendants filed

an emergency motion to compel Matthew to appear for

his September 21-22 deposition. Docket 418. On Sep

tember 19, 2020, the Magistrate granted the motion

stating that there is “no meaningful difference” from

his prior requests. Docket 422 at 3 & n. 5).

On the same day, Matthew filed his Second Motion

for a Protective Order under the Rule 26 asking to

protect him from undue burden, the embarrassment

and oppression. Dockets 423, 424 at 4. He explained

that this time he was not asking to be excused from

an oral deposition, rather he was requesting an

Auxiliary Aid, Written Material under the Title III of

ADA. Also, he asked to suspend his deposition for the

time necessary to obtain an order and until he is

evaluated by a psychiatrist scheduled on September

28, 2020, because his symptoms of both disorders had

worsened. Id at 5,6. Yet, the Seventh Circuit in its

opinion stated: “Matthew also argues on appeal that a

medical condition, anxiety, prevented him from attend

ing the final scheduled deposition. But he gave this

excuse for the first time only after the District defend

ants moved for sanctions.” App.7a. Matthew also

invoked the privilege of the First Amendment and

stated that he is protecting his and public interest,

and defense counsel is threatening him with the

dismissal of the case and using intimidation to prevent

him from speaking freely about his and the rights

of disabled under ADA. Docket 424 at 6. Furthermore,

Matthew stated, that there is good cause to grant the

motion because he is acting as a private attorney

general, and he has undisputable right to protect the

ADA and to enforce the statute at the place of public

accommodation such as a law office. Id.

Finally, Matthew stated that he was entitled to

be protected because there was an undue burden since

defendants already admitted to existence of discrim

inatory policy and treatment of him in their Motion

for Summary Judgment where they made the official

pronouncements of such a discriminatory policy stating:

“Those statutes do not afford a student the right

to participate in AP or honors course or to have extended

time on assessments. Such accommodations would

fundamentally alter the nature of the educational

program, something not required under 504 or the ADA.”

Docket 249, at 9.

On September 21, all three petitioners filed an

emergency motion to quash the deposition notice,

arguing that defendants provided insufficient two

business days’ deposition notice. Docket 425 atl.

At 8:23 am, and at 9:54 am, the magistrate judge

denied plaintiffs’ motions. (Dockets 426-428).

Petitioners had 3 hours to preserve their right to

appeal, and at 12:49 pm, just 11 minutes prior to the

start of the deposition, the Petitioners collectively

filed objections to the Magistrate’s orders and findings

based on the ground that Matthew’s deposition is

being conducted in bad faith and in a manner that

unreasonably annoys, embarrasses, and oppresses him.

Docket 429 at 4-8.

On September 23, 2020, the district court overruled

plaintiffs’ objections for reasons set forth in its prior

orders. Docket 430 and on November 24, 2020, after

briefing, it granted the school defendants’ motion for

discovery sanctions under Federal Rule of Civil Proce

dure 3 7(b)(2) (A)(v) and dismissed plaintiffs’ case with

prejudice and denied all pending motions as moot.

App.9a.

On December 23, 2020, all three Petitioners filed

a timely pro se notice of appeal. Dockets 448, 449.

They argued in the separate briefs that the District

Court abused its discretion by dismissing plaintiffs’

case with prejudice because Matthew’s failure to comply

with the magistrate’s order was not willful or in bad

faith, but due to his inability. Matthew App. Br. at 38,

39. Parents also stated that they did not refuse to

comply with any court orders, are not responsible for

Matthew’s failure to attend, and are therefore not

properly subject to discovery sanctions. Sandra App.

Br. At 8. Also, petitioners contended that the Rule

37 sanction with dismissal was infringing on plain

tiffs’ constitutional rights. Id at 27-38.

On February 14, 2022, the Seventh Circuit

ignored constitutional issues and affirmed the district

court’s ruling and held the district court did not abuse

its discretion in imposing the sanction with dismissal

with respect to all three plaintiffs and that sanction

under rule 37 for disobedience of the Magistrate order

rendered their challenges to discovery orders unappeal

able. App.2a, 6a-7a.

On February 28, 2022, Petitioners timely filed

Petition for Rehearing en banc and the petition was

denied on March 17, 2022. App.25a.

REASONS FOR GRANTING THE PETITION

The Decision Below Creates Both an Intra-

Circuit and Intercircuit Split

A. There Is a Circuit Split Among the Third,

Tenth, and the Fifth and Seventh Circuit

Courts of Appeals

Relying on the Shott v. Vedder Price, P.C., 527

Fed. Appx. 562, 563 (7th Cir. 2013) the district court

in the instant case, ruled that the deposition is not

a service, benefit, privilege, or advantage. App.l8a.

Instead, the Court concluded that a plaintiffs request

for accommodations in connection with a deposition

“is a discovery dispute.” unrelated to [law] office or to

any services connected with that facility properly

resolved under the standards of the Federal Rule 26(c)

and not through a claim under the ADA. Id.

Citing Doe v. Mutual of Omaha Ins. Co., 179

F.3d 557 (7th Cir. 1999), the courts below agree that

“a Title III would forbid a legal office from excluding

disabled persons from entering the facility and, once

in, from using the facility in the same way that the

nondisabled do,” yet in their view, disabled litigant is

not treated differently than nondisabled when the law

office denies him effective communication in a deposi

tion proceeding conducted at the law office. Docket

375 at 4,5. This raises serious constitutional concerns,

and it splits the Seventh Circuit internally, another

factor that counsels in favor of certiorari review.

Similarly, the Fifth Circuit held that plasma

donation centers are not public accommodations subject

to the non-discrimination requirements of Title III of

ADA and “CSL Plasma does not provide any “service”

to customers” because individuals do not pay the

center for its services and “does not provide any

detectable benefit for donors.” Silguero v. CSL Plasma,

Inc., 907 F.3d 323, 325 (5th Cir. 2018) This difference

in direction of payment, it reasoned, “bars them from

qualifying as service establishments.” Id.

Contrary to the Fifth Circuit in Silguero, the

Tenth Circuit in Levorsen v. Octapharma Plasma,

Inc., 828 F.3d at 1231-34. 828 F.3d and the Third

Circuit in Matheis v. CSL Plasma, Inc., 936 F.3d 171,

176-78 (3d Cir. 2019) held that plasma centers are

service establishments covered by the ADA because

they “assist or benefit those who wish to provide

plasma for medical use—whether for altruistic reasons

or for pecuniary gain—by supplying the trained

personnel and medical equipment necessary to

accomplish that goal.” Levorsen, 828 F.3d 1227, 1234

(10th Cir. 2016) They concluded that a service is

provided “regardless of whether [establishments] pro

vide or accept compensation as part of that process.” Id

at 1233-34.

II. The Decisions of the Seventh and the Fifth

Circuit Conflict with This Court’s on Point

Precedent-PGA Tour v. Martin (2001)

A. Title III of ADA Equally Protects Disabled

Clients and Adversaries of the Law

Office-Plaintiff Is a Member of the Class

Protected Under the Title III

Both, the Seventh Circuit in Shott, 527 Fed. Appx.

562, 563 (7th Cir. 2013) and the Fifth Circuit in

Silguero, 907 F.3d 323, 325 (5th Cir. 2018) held that

Title III cannot be read to include any “individual”

denied a privilege or benefit offered by a place of

public accommodation. However, the courts were not

faced with a statutory puzzle. Most of these issues

were argued and settled in 2001 by this court in

Martin when it decided that Title III protects not

simply “clients” or “customers,” but all disabled indi

viduals See PGA Tour v. Martin, (2001) 532 U.S. 661,

678-79 [121 S.Ct. 1879, 149 L.Ed.2d 904]. (Title Ill’s

broad general rule contains no express clients or

customers’ limitation).

In addressing whether Title III applies to the law

office when it conducts depositions, the courts below

adopted defendants’ argument that places of public

accommodation can be bifurcated into public and

private zones, one where ADA applies and the other

where it does not.

The same bifurcation arguments were presented

by PGA and rejected by this Court in Martin which

noted that no statutory basis exists for such discrimi

nation. “Title III does not restrict its coverage to mem

bers of the public; it provides that ‘[n]o individual shall

be discriminated against’ and “[t]he fact that entry to

a part of a public accommodation may be limited” or

that “users of a facility are highly selected does not

mean that the facility cannot be a public accom

modation.” Martin v. PGA Tour, Inc., 204 F.3d 994,

997-998 (9th Cir. 2000), aff’d, 543 U.S. 661 (2001).

The courts below posit that members of the public

attending an opera or symphony are protected, but

individuals such as blind tenor Andrea Bocelli and

violinist Itzhak Perlman—both disabled who excel in

their professions—can be discriminated against on the

basis of disability at auditions or performances because

they need accommodations to access the performance

area.

In alternative, according to the Seventh Circuit’s

reasoning, the members of the public who come to the

law office seeking legal service would be protected, but

if they invited Mr. Bocelli or Mr. Perlman for a depo

sition proceeding to their office for a deposition, they

would permit the law office to discriminate and

withhold anti-discrimination protection from these

individuals with a disability who want to participate

and benefit from their deposition.

Likewise, the Seventh and the Fifth Circuit

would withhold anti-discrimination protection from

Mr. Bocelli if he was their adversary but not from Mr.

Perlman if he was their client. One can assume that

in 2022 this kind of scenario is implausible. Or should

we say at least impossible for Mr. Bocelli, Mr. Perlman,

and Mr. Martin, but not for an average disabled

American like Mr. Stanek.

In a way, there is not much of a difference between

Casey Martin and Matthew Stanek; one is a profes

sional golfer and celebrity, and the other just an average

American citizen; however, they are both disabled

under ADA; and they both asked for modifications, not

to change the fundamental rules of the game; but only

to be allowed to participate in the game.

However, there is one crucial difference between

the two. While Casey Martin was afforded a fair trial

where he could make an argument before an impartial

tribunal, Matthew was denied that fundamental right

from the start. As a self-represented party, he struggled

in finding the right legal theory to protect him at the

law office against discrimination. When he got it right

on the third strike, he was told it is “too little, too late”

to get into the game.

Thus, this time it is not a game of golf that is in

jeopardy. It is the constitutional right of fifty million

average disabled Americans: their right not only to be

heard at a meaningful time and in a meaningful

manner, but to be heard at all and their right of equal

access to the court.

III. Both, the Law Offices and Plasma Centers

Operate a “Place of Public Accommodation”

and Therefore Are Subject to Title III of

ADA

A. Deposition Is Out of a Court Proceeding,

Service or Activity, Benefit or Privilege,

Which Falls Within the Plain Statutory

Language of ADA

There can be little question that participation in

the deposition is a “privilege” or “service” offered at a

law office. 42 U.S.C. § 12181(7)(F). The district court

stated that “Matthew would lose the benefit of an oral

examination, during which a witness can, for example,

ask for clarification of a question.” See Docket 447 at 4

but held that Title III does not apply to depositions.

Perhaps, one may not ordinarily think of a depo

sition or plasma donation as “activity’ in which

disabled participate or from which they may benefit.

Neither may one ordinarily think of an arrest as an

“activity” in which the arrestee “participat[es]” or from

which the arrestee may “benefi[t]” yet the Supreme

Court in Sheehan held that it was. City and County of

San Francisco v. Sheehan, 575 U.S. (2015). See Yeskey,

524 U.S. at 210. (prisons 0 “theoretically ‘benefit’

prisoners”).

Indeed, deposition questioning at a law office is

very much like an interrogation at a police station.

Seremeth v. Bd. of Cty. Comm’rs Frederick Cty., 673

F.3d 333, 335 (4th Cir. 2012). Deposition “provides a

clear benefit of an opportunity” “to provide informa

tion” that can be used to prove a party’s case, Calloway

v. Boro ofGlassboro Department of Police, 89 F.Supp.2d

543, 555-6 (D.N.J. 2000), even though their partici-

pation is often mandatory. Pennsylvania. Dep’t of Corr.

v. Yeskey, 524 U.S. 206, 211 (1998).

In the analogous context from the Spector v.

Norwegian Cruise Line Ltd., 545 U.S. 119, 132 (2005)

(“apply to every facet of the business and operations

and Title II of ADA in Ashby v. Warrick Cnty. Sch.

Corp., 908 F.3d 225, 231-2 (7th Cir. 2018), “the question

whether a particular event is a service, program, or

activity of public [accommodation] turns on what the

public [accommodation] itself is doing, providing, or

making available.”

The law office scheduled Matthew’s deposition at

their establishment by sending him a notice of depo

sition to appear on the certain day and time. “All

[the] matters, such as planning, notification, [arranging

court reporter and videographer] were handled by

the [law office]” Id. It had complete control over the

particular “activity” or “event” Id at 229-30. Deposi

tion was law office’s “own” activity. Id. Thus, the law

office was “the sponsor and host of the [deposition]

events” Id at 234. Providing the opportunity to be

deposed in person is unquestionably something the

law office does and makes available to both clients and

adversaries.

B. The Fifth and the Seventh Circuit’s

Decision is Wrong, the Third and Tenth

Circuits Got It Right.

Accordingly, the proper inquiry is not whether a

plaintiff is paying for a service, or being paid for a

service, rather it is whether a person receives some

type of benefit or privilege or participates in activity.

The relevant “privilege” may relate to a deposition

proceeding, donation of plasma, or any other activity

offered by establishment within the twelve categories.

As the Third Circuit correctly put it, the constant that

unifies service establishments is not direction or type

of payment, nor the receipt of a non-monetary ulti

mate benefit. . . Matheis, 936 F.3d at 177-78.

The bottom line is that customer payment to the

establishment (or existence of payment at all) is not a

necessary feature of the examples listed in the

statute. A legal establishment can accept payment for

service from its clients; can be paid by others (as are

legal-aid lawyers); can be not paid at all (as in pro

bono work); or can be paid on contingency, with the

rest of the proceeds paid out to its client. A bank can

accept payment for its services; can offer banking for

no charge (because it profits in other ways from the

money invested); or can pay its customers for depositing

their money. Those differences in payment arrange

ments do not affect the character of the service offered.

See Id at 177.

The Seventh and Fifth Circuits added a limita

tion to the plain meaning of “service establishment”

that appears nowhere in ADA. Such scenarios create

a loophole for evading Title Ill’s protections and

amounts to “a harsh and unexpected interpretation of

a statute designed to provide broad protection for the

disabled.” Spector v. Norwegian Cruise Line Ltd., 545

U.S. 119, 132 (2005)

This Court rejected PGA’s argument and the

Seventh Circuit’s argument in Olinger for a good

reason. Accepting their argument that Title III does

not apply in some areas of public accommodation

while it does in others, and not to “all” individuals

with disabilities who qualify would grant it free rein

to discriminate inside the public accommodation not

only on the basis of any disability, but also on the

basis of race or religion. This Court simply cannot

allow this, not after Martin, Spector, and Yeskey, not

after thirty years of ADA. Courts should not “bend over

backwards” to find reasons not to call an establishment

that serves the public a “service establishment.” Levorsen,

828 F.3d at 1231-2.

Without a clear guidance from this Court,

establishments will engage in precisely the discrimi

nation based on overbroad stereotypes and prejudice

that led Congress to enact ADA in the first place.

This case presents an ideal vehicle for resolving

these important statutory and constitutional questions

because fifty million disabled Americans cannot wait

for another Mr. Martin or Mr. Bocelli for this court to

grant a writ of certiorari. Disabled Americans need

this Honorary Court’s attention urgently to protect

them from invidious discrimination and to reset the

Seventh and the Fifth Circuit’s course on this important

question.

C. Interpretation of Title III of ADA by the

Seventh and Fifth Circuit Renders the

Title III of ADA Unconstitutional on Its

Face

First, there was no reasonable ground for purpose

of Title III accommodations for separating disabled

litigants into two classes, the paying client and non

paying adversary, or treat them differently as the Dis

trict Court did. App.l8a. The right which is fundamen

tal to due process must be accorded irrespective of

ability to pay. Such is the teaching of Boddie v.

Connecticut, (1971) 401 U.S. 371, 377 [91 S.Ct. 780,

28 L.Ed.2d 113]. Also, there was no rational reason for

separating litigants with communication impairment

into a disabled with hearing impairment and one with

Autism with a communication impairment for the

purpose of effective communication. Docket 382 at 10.

“Equal protection of the laws requires equal operation

of the laws upon all persons in like circumstances.”

Also, while nondisabled have to show undue

burden or inconvenience to be excused from an oral

deposition and deposed by a written question under

the Rule 31, Matthew and disabled have to show much

greater burden-demonstrate that deposition is danger

ous to their health. Docket 447 at 5. [“N]o greater

burdens should be laid upon one than are laid upon

others in the same calling and condition.” Barbier v.

Connolly, 113 U.S. 27 (1885).

D. Providing Written Question Does Not

Fundamentally Change Oral Deposition

One of the auxiliary aids and services listed

under ADA includes “written material and exchange

of written notes and other effective methods, service

and actions.” 28 C.F.R. § 36.303. Written questions are

written material. Also, the Fed. R. of Civ. Proc. 26(c)

explicitly allow deposition procedures to be modified.

Contrary to the Defendants’ arguments, providing

written questions ahead of the Plaintiffs oral examin

ation would not fundamentally alter the oral deposi

tion because this accommodation allows Matthew to

participate in both auditory and oral part of his depo

sition.

“As the Magistrate Judge acknowledged, “a depo

sition on written questions is not like a take-home

exam: it would still require Matthew to listen to

the written questions be read to him by an officer and

would still require Matthew to provide oral answers.’”

[447-5].

Even more, the defense attorney would still be

the one asking verbal questions, Matthew would still

be responding orally, deposition’s officer would still

swear him in, record his oral testimony under oath;

and prepare, certify, and deliver the deposition

transcript in accordance with the Federal Rules 30.

Moreover, the counsel would still be able to personally

follow up with his cross examination because the

Court already accommodated Matthew with breaking

up the seven hours of a deposition over two days.

Finally, defendants would still be able to test his

credibility and impeach him like any other witness

if he provided an inconsistent statement during the

trial. Fed. R. Evid. 613(b). The only difference is that

he would be provided with effective communication

and equal opportunity to participate in or benefit from

a deposition. Alexander v. Choate, 469 U.S. 287, 301,

105 S.Ct. 712, 83 L.Ed.2d 661 (1985) (handicapped

individual must be provided with meaningful access

to the benefit that the grantee offers). 42 U.S.C.

§ 12182(a). 42 U.S.C. § 12182(b)(2)(A)(iii), (ii) (i) and

28 C.F.R. § 36.303(a); 42 U.S.C. §§ 12182(b)(l)(A)(i)

and (ii) (iii); 28 C.F.R. §§ 36.202(a) and (b); 36.302. It

would also ensure that Matthew’s constitutional rights

are not violated.

As the Martin Court concluded, the purpose of

any rule cannot be mere tradition. Supreme Court

Official Transcript, PGA Tour, Inc. v. Martin, No. GO24, 2001 WL 41011, at *20 (2001). If no rule of deposi

tion, regardless of its purpose, can be modified to

permit participation by people with disabilities, then—

ironically—the law office becomes the only establish-

ment in America permitted to construct barriers to

access that are unrelated to performance.

Moreover, the operative principle, is that an

accommodation does not fundamentally alter the

activity if the alteration comports with how the same

activity is conducted in other contexts. See Id; Alboniga

v. Sch. Bd. of Broward Cty., 87 F.Supp.3d 1319, 1338

(S.D. Fla. 2015) (reasoning that a school board could

not claim that allowing a service animal in the

building fundamentally altered its activities when it

had previously allowed a service animal on site without

significant disruption)”

Likewise, providing written material such as a

written question ahead of an oral deposition can

hardly be considered modification for a person with

disability where the Court prescribes a discovery

method of deposition by a Written Question to non

disabled litigants when there is a good cause. See Fed.

R. Civ. P. 31(a)(l)(2). Also, see Fed. R. Civ. P 30(b)(6)

notice must among others set forth with reasonable

particularity the matters for examination. Kallis v.

Colgate-Palmolive, 231 F.3d 1049,1057 (7th Cir. 2000).

Defendants argued that written questions will somehow

provide an unfair advantage to the disabled litigant,

but this Court rejected this anti-preference interpret

ation of ADA, noting that such argument “fails to

recognize what the Act specifies, namely, that prefer

ences will sometimes prove necessary to achieve the

Act’s basic equal opportunity goal.” US Airways, Inc.

v. Barnett, 535 U.S. at 397, 122 S.Ct. 1516.

IV. Federal Rules May Not Be Employed to

Trump Ada

Petitioners do no dispute that the Federal civil

litigation, including pretrial matters such as depositions

and other discovery, are governed by the Federal

Rules of Civil Procedure. Fed. R. Civ. P. 1.

Rather, petitioners believe that Title III protects

the disabled at places of public accommodations such

as the law office in the context of a deposition, and there

is a good cause to protect a litigant with a communi

cation impairment like Matthew in his oral deposition

from annoyance, embarrassment, oppression, or undue

burden Fed. R. Civ. P. 26(c)(1).

“Under the applicable rules of statutory con

struction, “when two statutes are capable of co-exis

tence, it is the duty of the courts, absent a clearly

expressed congressional intention to the contrary, to

regard each as effective.” United States v. Borden Co.,

308U.S. 188,198, 60 S.Ct.182,188, 84 L.Ed.181 (1930).

The courts below ignored this guidance and

employed the federal rules to violate or diminish the

rights under Title III of ADA and invalidated the fed

eral statute, declaring that Federal Rules trump ADA

in the establishment that is specifically listed as one

of the 12 places of public accommodations. 42 U.S.C.

§ 12181(7)(F))

Furthermore, “where there is no clear intention

otherwise, a specific statute will not be controlled or

nullified by a general one, regardless of the priority of

an enactment.” Morton v. Mancari, 417 U.S. 535, 55051, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974). The

District Court’s narrow interpretation of ADA and

application of the Federal Rules violate or diminish sub-

stantive rights of all disabled including Matthew’s.

Such enlargement of the rights of the federal statute

that Congress enacted only to regulate procedure is

unconstitutional because the right to be heard meaning

fully, equal access to court and to petition government

for grievances are constitutional rights protected by

the Fifth and the First Amendment, existing prior to

the adoption of the Federal Rules of Civil Procedure

and rights beyond the congressional mandate of

the Rules Enabling Act, which provides that the fed

eral rules are only to regulate procedure and “shall not

abridge, enlarge, or modify any substantive rights” 28

U.S.C. § 2072(c). See Smith v. Christian, 763 F.2d

1322 (11th Cir. 1985)

A. Federal Rule 26’s Qualification Standard

Imposed by the District Court Denies

Matthew and the Disabled Due Process

and Equal Protections of Law

Federal Rule 26 itself has one main and express

purpose: to protect litigants from prejudice, harass

ment or undue burden, however neither of these objec

tives is advanced by the qualification standard imposed

by the Court. The question whether a deposition is

dangerous to one’s health is entirely unrelated to

whether a disabled litigant is entitled to accommodations

or court’s protections in a deposition. When such a

qualification standard is applied to disabled litigants

as Matthew it becomes obvious that the disabled are

automatically deprived of protections because even a

completely blind or deaf litigant cannot demonstrate

that deposition is dangerous to their health to be

adequately accommodated and protected from prejudice

or discrimination. The criteria are being implemented

in a way that tends to screen out all or most individ-

uals with disabilities from the protections of the Fed

eral Rule 26. As the district court interpreted the

statute, Rule 26 unambiguously divides litigants into

two discrete groups that are accorded radically disparate

treatment; thus, this Court should determine whether

the classification drawn by the statute is consistent

with the Fifth Amendment.

Accordingly, the Courts below have imposed eli

gibility criteria under the Rule 26 that denies Matthew

and the disabled due process, equal protections of law

and equal access to court based on disability. Giving

preference to a nondisabled class “while denying the

same protections to disabled litigants, is to make the

very kind of arbitrary legislative choice forbidden by

the Equal Protection Clause” See Logan v. Zimmerman

Brush Co., 455 U.S. 422, 442-43 (1982). Moreover, a

federal law that impinges upon a substantive right or

liberty created or conferred by the Constitution is, of

course, presumptively invalid, whether or not the law’s

purpose or effect is to create any classifications. Id.

Thus, Rules 26, 30, 31 are invalid simply because they

abridge Matthew’s right to be heard meaningfully,

equal access to court and a fair trial.

The Court Erred When It Precluded the

Plaintiffs from Challenging the Validity of

the Magistrate’s and the District Court’s

Orders Underlying the Sanction.

A. Seventh Circuit Had No Jurisdiction to

Apply Collateral Bar Rule Because There

Was no Order of Contempt Either Under

Federal Rule 37 or 42.

Seventh Circuit cited Maness v. Meyers, 419 U.S.

449, 458 (1975) for the proposition that petitioners

are prohibited from challenging discovery orders under

lying sanction. See App.6a-7a. However, Petitioners had

not been found guilty of contempt under Fed. Rule

Crim. Proc. 42(b) or under the Federal Rule of Civil

Procedure 37. See App.6a, 11a. One of the seven listed

consequences listed in 37(b)(2) is section “(vii) treating

as contempt of court the failure to obey any order.”

Despite these seven choices, the trial court dismissed

this case under the Federal Rule 37(b)(2)(A)(v) not

ever referring to section (vii). Id. The appellate court

on review had no authority to evaluate the substance

of the contempt when there is no charge of any con

tempt. “[JJudicial sanctions [under Rule 37] never

have been considered criminal” International Union,

United Mine Workers v. Bagwell, 512 U.S. 821, 833

(1994). Thus, applying collateral bar rule here was a

plain error by the Seventh Circuit because it had no

jurisdiction to do so.

B. Petitioners Were Denied Procedural Due

Process and Equal Protections of Law

Furthermore, if this Court finds that the Seventh

Circuit had jurisdiction to characterize the sanction

under the Rule 37(b)(2)(A)(v) as a criminal contempt,

the petitioners were denied constitutional due process

because [c]”riminal contempt is a crime in the ordinary

sense, and criminal penalties may not be imposed on

someone who has not been afforded the protections

that the Constitution requires of such criminal pro

ceedings.” Bagwell, 512 U.S. 821, 826 (1994)). Thus,

Petitioners were denied a mandatory notice of criminal

contempt, hearing, assistance of counsel, jury trial,

right to proof beyond a reasonable doubt as constitu

tionally required. United States v. Mine Workers, 330

U.S. 258, 297-98, 67 S.Ct. 677, 91 L.Ed. 884 (1947)

Also, the court failed to “exercise the least possible

power adequate to accomplish the desired end.” See

Shillitani v. United States, 384 U.S. 364, 368-70, 86

S.Ct. 1531,1534-35,16 L.Ed.2d 622 (1966) in violation

of the Eighth Amendment.

Moreover, the circumstances of this case fall

within several warranted exceptions to the collateral

bar rule. As in Manes, compliance with the Magistrate’s

order could cause irreparable injury because appellate

courts cannot always ‘unring the bell’ once the infor

mation has been released and the challenge may well

be moot because the harm Matthew sought to avoid—

violation of his Fifth, First and the Seventh Amend

ment right would have already occurred. Church of

Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct.

447, 449, 121 L.Ed.2d 313 (1992) Federal courts have

“no authority to give opinions upon moot questions.”

Id “Physical property can be retrieved; words, once

uttered, cannot.” In re Grand Jury Proceedings, 142

F.3d 1416, 1422 (11th Cir. 1998) “A party that seeks

to present an objection to a discovery order immedi

ately to a court of appeals must refuse compliance, be

held in contempt, and then appeal the contempt order.”

Id.

Also see Marrese v. American Academy of

Orthopedic Surgeons, 726 F.2d 1150, 1158 (7th Cir.

1984), rev’d on other grounds, 470 U.S. 373 (1985)

citing United States v. Ryan, 402 U.S. 530, 532-33, 91

S.Ct. 1580, 1581-82, 29 L.Ed.2d 85 (1971) and other

cases, Hanley v. James McHugh Construction Company,

419 F.2d 955, 957 (7th Cir. 1969) (“We hold that we

need not limit our review to the criminal contempt

order itself, but may test the validity of the underlying

discovery order.” citing Union Tool Co. v. Wilson, 259

U.S. 107, 111, 42 S.Ct. 427, 66 L.Ed. 848 (1922) (“ the

fact that a remedial order was entered in a contempt

proceeding is not in itself a reason why it should not

be subject to correction by an appellate court”)

C. Obeying The Magistrate’s Order Required

the Irretrievable Surrender of the

Constitutional Rights

The panel failed to disclose any circumstances

where the Petitioners could have done something that

would allow them to fulfil their obligations under Rule

37 without forfeiting their statutory and constitu

tional rights. First, objecting to Magistrate’s Orders

[423, 427,428] was the only possible way to respectfully

preserve a right and points for appeal. In their motion

to compel, Defendants wrote that “Matthew stated that

he would only be present for the deposition if th[e]

Court denies his motion for a protective order.” Docket

418 at 6. This shows that Matthew was never intending

to disobey the district’s court’s order, rather he was

trusting the District Judge’s “ultimate authority to

issue an appropriate order” and to make an informed,

final determination.” Thomas v. Am, 474 U.S. 141,

153 (1985). This Court in Thomas was clear that fail

ure to timely object deprives the party of an appeal.

Id. Fed. R. Civ. P. 72(a)

The right to be heard must necessarily embody a

right to file motions and pleadings essential to present

claims and raise relevant issues.

And since “[a] fair trial in a fair tribunal is a basic

requirement of due process,’. . .motions for [protective

orders and objections to Magistrate’s order] raise

constitutional issues both relevant and essential.” See

Holt v. Virginia, 381 U.S. 131, 136 (1965)

Petitioners were deprived of their rights under

the Due Process Clause of the Fifth Amendment for

doing no more than exercising the constitutional

right to escape the probability of a constitutionally

unfair trial. Id at 137. Unlike in Walker, petitioners

timely sought “orderly judicial review” of the Magistrate

order and thus consistently with due process could not

be sanctioned with dismissal for seeking review.

Walker v. City ofBirmingham, 388 U.S. 307, 318 (1967).

Also, the “right to defy an unconstitutional statute is

basic in our scheme.” Id at 336 citing cases. Clearly,

there were no adequate and effective remedies and the

timely access to the appellate court was not available

and a timely decision was not forthcoming prior to the

time for compliance. Id at 315 n. 6, 87 S.Ct. at 1829 n. 6.

D. The Courts Below Failed to Comply with

the Federal Rule 5.1

Congress with Rule 5.1 imposes on a federal court

obligation to certify a constitutional challenge to the

United States Attorney General and to ensure that

the Attorney General is notified of constitutional chal

lenges and has an opportunity to exercise the statu

tory right to intervene at the earliest possible point in

the litigation and before the court nullifies the statute.

However, the Courts below failed to comply with the

Federal Rule 5.1. Perhaps the Courts believe that no

harm was done since Matthew was given the oppor

tunity to defend the statute. However, the Congress

charged the Department of Justice with implementing

Title III of ADA by promulgating regulations, issuing

technical assistance, and bringing lawsuits in federal

court to enforce the statute. 42 U.S.C. §§ 12186(b)-(c),

12188(b), 12206. The U.S. Attorney General was not

given that opportunity.

It is not fair to the fifty million disabled to leave

the defense of the federal statute like ADA in the

hands of one pro se disabled litigant, and it is not fair

to leave such an important decision to one single district

judge as the Seventh Circuit permitted. Jones v. Barnes,

463 U.S. 745, 756 n.l (1983) (Brennan, J., dissenting)

(“There are few, if any, situations in our system of

justice in which a single judge is given unreviewable

discretion over matters concerning a person’s liberty

or property.)

“Courts have no more discretion to disregard the

Rule’s mandate through the exercise of supervisory

power than they do to disregard constitutional or stat

utory provisions through the exercise of such power.”

Bank of Nova Scotia v. United States, 487 U.S. 250

(1988).

E. Matthew Stanek Was Unable to Attend His

Deposition Due to His Severe Depressive

Episode and Panic Attacks

The record shows that objections to the Magistrate

findings were filed just a few minutes prior to the start

of the deposition. By this time, Matthew was mentally

and physically drained to the point of collapsing.

Petitioners offered competent, credible evidence of his

inability to attend his deposition. On September 18,

2020, Matthew was diagnosed with depressive episode

and panic attacks by his family doctor who referred

him for further evaluation and excused him from attend

ing on September 21 and 22, noticed deposition until he

sees the psychiatrist. Matthew was prescribed medica

tion which caused him severe side effects and caused

him to become more depressed. Matthew’s App. Br.

Ex. 5, 6. The courts below argue that Matthew knew

that he was going to be deposed for months and should

have asked for a note earlier. However disabled people

cannot predict six months earlier that they will have

another depressive episode or a nervous breakdown.

F. Magistrate Had No Jurisdiction to

Invalidate the Federal Statute-An Article

III Judge Has to Make Final Decisions on

Questions of Constitutional Proportions.

“The plaintiff[s] alternatively, might be able to

show that [they] were not bound to obey the [order]

because the court that entered it was without jurisdic

tion.” See United States v. Mine Workers, 330 U.S. 258,

291-294 (1947). Martin v. Wilks, 490 U.S. 755, 789-90

(1989).

“An order entered by a court clearly without juris

diction over the contemnors or the subject matter is not

protected by the collateral bar rule. Matter of

Providence Journal Co., 820 F.2d 1342, 1347 (1st Cir.

1986)

The Magistrate judge had no authority to nullify

a statute enacted by Congress and to refuse to apply

the statute without a District Judge ruling on objections.

Also, Matthew argued in the courts below that he

was “just asking for an injunctive relief. Docket 377,

thus his Motions for Protective Orders should had

been treated as “dispositive” motion within the meaning

of Rule 72(b) invoking “Article IIP’ powers since it was

a type of injunctive relief. LLC v. BPP Retail Props.,

LLC, 951 F.3d 41, 43 (1st Cir. 2020)

VI. Rule 37 Is Unconstitutional on Its Face

and as Applied to Petitioners and Offends

the First, Fifth, Seventh, and the Eighth

Amendment of U.S. Constitution.

A. Bogdan and Sandra Stanek Never

Violated an Order “to Provide or Permit

Discovery” Within the Meaning of Rule

37(B)(2), and the District Court Lacked

Authority to Dismiss the Action as to

Them.

To justify a sanction of dismissal, Rule 37 requires:

“(1) an order compelling discovery, (2) a willful viola

tion of that order, and (3) prejudice to the other party.”

Schoffstall, 223 F.3d at 823. Also see Societe Inter

nationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 207-08, 78 S.Ct.

1087, 2 L.Ed.2d 1255 (1958) where this Court held

that ‘Rule 37 is the exclusive mechanism for dismissal

of complaint due to singular issue of noncompliance

with order requiring production of discovery.” These

requirements were not met as to Parents who were

neither managing agents nor a party under Rule 37

which failed to obey an order to provide or permit

discovery. Rather, Parents were sanctioned for being

closely associated with a person who failed to attend

his compelled deposition. See Joint Anti-Fascist

Committee v. McGrath, 341 U.S. 123, 178-79 (1951):

“Guilt under our system of government is

personal. When we make guilt vicarious we

borrow from systems alien to ours and ape

our enemies. Those short-cuts may at times

seem to serve noble aims; but we depreciate

ourselves by indulging in them. When we

deny even the most degraded person the

rudiments of a fair trial, we endanger the

liberties of everyone. We set a pattern of

conduct that is dangerously expansive and is

adaptable to the needs of any majority bent on

suppressing opposition or dissension.” Id.

Sandra stated in her Appellant brief at 9 and the

Plaintiffs’ response to the motion for sanctions that

Parents” could not force Matthew to attend his depo

sition” [444 at 15].

VII. Magistrate’s Order Was Transparently

Invalid and Unconstitutional Prior

Restraint on Pure Speech

A. Petitioners Were Prevented from

Engaging in Petitioning Activity and in

Exercising Their First Amendment Right

to Free Speech and Assembly

The Seventh Circuit cited Manes but overlooked

that the Fifth Amendment self-incrimination exception

is just one provision of the Constitution, and other

rights must also be strongly enforced. Petitioners are

civil rights activists who use litigation to advocate for

the rights of disabled. They were punished merely for

peacefully expressing unpopular views. As this Court

stated:

“It is clearly unconstitutional to enable a

public official to determine which expressions

of view will be permitted and which will not

or to engage in invidious discrimination

among persons or groups either by use of a

statute providing a system of broad discre

tionary licensing power.”

Cox v. Louisiana, 379 U.S. 536, 557 (1965)

“A statute which upon its face, and as

authoritatively construed, is so vague and indefinite

as to permit the punishment of the fair use of this

opportunity is repugnant to the guaranty of liberty

contained in the [First and Fifth] Amendment.” Id.

Petitioners’ freedoms of speech and assembly, secured

to them by the First Amendment, were denied because

the courts below used sanctions under the Rule 37 as

“a device for the suppression of the communication of

ideas and permit[tted] the (judge[to act as a censor.”

Id. Rule 37(b)(2) authorizes the district court to

impose such sanctions as are “just” . . . that makes,

Rule 37 unconstitutionally vague in its overly broad

scope.

This Court has “recognized this right to petition

as one of “the most precious of the liberties safeguarded

by the Bill of Rights” NLRB, 536 U.S., at 524, 122

S.Ct. 2390. It has “also considered the right to petition

when interpreting federal law.” Id at 525. These

“principles were then extended to situations where

groups “use courts to advocate their causes and points

of view” Id. This Court “made explicit that “the right

to petition extends to all departments of the Govern

ment,” and that “[t]he right of access to the courts

is . . . but one aspect of the right of petition.” Id

Clearly, the petitioners were communicating

ideas by pure speech and even if the District Judge’s

opinion is in conflict with these interests, or he

believes that Title III of ADA does not protect the

disabled in the context of a deposition, he should have

allowed motivated citizens “airing of disputed facts”

and to “promote evolution of the law by supporting the

development of legal theories.” Borough of Duryea v.

Guarnieri, 564 U.S. 379, 397-98 (2011). “These and

other benefits may not accrue if one class of know

ledgeable and motivated citizens is prevented from

engaging in petitioning activity. Id. The government

may not misuse its role with applying the law to

distort this deliberative process. When a disabled

litigant “seeks to participate, as a citizen, in the

process of deliberative democracy, either through

speech or petition, “it is necessary to regard [him] as

the member of the general public he seeks to be.” Id

citing Pickering, at 574, 88 S.Ct. 1731. Matthew clearly

invoked protections of the First and Fifth Amendment

in his motions for a protective order Docket 424 at 6,7.

Defendants filed emergency motion to compel when

there was no irreparable prejudice to them, the only

reason was to intimidate and prevent the petition. See

Sandra App. Br. at 13-15 citing cases.

Thus, the Magistrate’s order unduly restricted

valuable public information, having an impact anal

ogous to the judicial censorship order that had a

practical effect of prior restraint in violation of the

First Amendment. Restraints on First and Fifth

Amendment represent an unusual class of orders

because they are presumptively unconstitutional.

Nebraska Press Assoc., 427 U.S. at 558, 96 S.Ct. at

2802; Crowell v. Benson, 285 U.S. 22 (1932).

B. The Constitutional Right of Due Process

Entitles a Litigant an Opportunity to Be

Heard at A Meaningful Time and in a

Meaningful Manner

Furthermore, denying Matthew and disabled

litigants an auxiliary aid in their deposition, which

can be the only one means of expression of their

thoughts and ideas was denial of a free speech, due

process and equal protection of laws. Thus, the harm

posed by denial of the protective order was substantial

and serious and no alternative means of protecting

the countervailing interest that intrude less directly

on the First and Fifth amendment rights was available.

The only alternative was granting adequate accommo

dations that would permit a disabled petitioner not

only to be heard, but to be heard at a meaningful time

and in a meaningful manner. Boddie v. Connecticut,

(1971) 401 U.S. 371, 377 [91 S.Ct. 780, 28 L.Ed.2d

113]. That opportunity “must be tailored to the

capacities and circumstances of those who are to be

heard.” Goldberg v. Kelly, 397 U.S. at pp. 268-269.

Due Process Clause imposes a greater burden on

the government to justify its policies. Inaccessible

deposition proceeding is subject to stricter review.

Tennessee v. Lane, 541 U.S. at 532, 124 S.Ct. 1978,

158 L.Ed.2d 820. In Lane and United States v. Kras,

409 U.S. 434 (1973), this Court agreed that a due

process right of access to the courts exists when fun

damental interests are present. Id., at 445.

Petitioners were “entitled to speak as they please

on matters vital to them;. . . Under our system of

government, counterargument and education are

the weapons available to expose these matters, not

abridgment of the rights of free speech and assembly.

. . . ” Wood v. Georgia, 370 U.S. at 389, 82 S.Ct. at

1372.

Hence, the contempt power should not be permit

ted to silence the civil rights activists and each of the

factors above should lead to conclusion that Petitioners

are entitled to have the Court consider the merits

of the discovery order, before deciding whether to

terminate their claims.

“A system or procedure that deprives persons of

their claims in a random manner, as is apparently

true of [Rule 26 and 37], necessarily presents an

unjustifiably high risk that meritorious claims will be

terminated” Logan v. Zimmerman Brush Co., 455 U.S.

422, 434-35 (1982).

CONCLUSION

For the foregoing reasons, this Court should grant

a writ of certiorari.

Respectfully submitted,

Matthew Stanek

Sandra Stanek

Bogdan Stanek

Petitioners Pro Se

4115 Prairie Cros. Dr.

St. Charles, IL 60175

(630) 400-0071

CASTLERENTALS@ COMCAST.NET

August 22,2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.