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Case 17-38, Document 28, 02/17/2017, 1975441, Page1 of 57

17-38-cv
Wniteb ~tate~ ~ourt of ~ppeal~
jfor tbe
~etonb <!Circuit
Jeffrey Malkan,
Plaintiff-Appellant
v.
Makau W. Mutua,
Defendant-Appellee
Charles P. Ewing
Defendant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF NEW YORK

BRIEF FOR PLAINTIFF-APPELL~"~~T

Jeffrey Malkan
Plaintiff-Appellant, pro se
12 Valleywood Ct. W,
St. James, N.Y. 11780
(631) 862-6668
Case 17-38, Document 28, 02/17/2017, 1975441, Page2 of 57

TABLE 011' CONTENTS

Jurisdictional Statement ..................................................................................... 5

Statement of issues on AppeaL. ............................................................................. 5

Statement of the Case ......................................................................................... 5

Constitutional Provisions ..................................................................................... l 2

Statutory and Regulatory Provisions ....................................................................... 13

Staten1ent of Facts ............................................................................................ 15

Summary of Argument ..................................................................................... 28

i\rgument. ....................................................................................................... 32

L THE POLICIES OF THE SUNY BOARD OF TRUSTEES DO NOT PROHIBIT THE


STATE UNIVERSITY OF NEW YORK AT BUFFALO FROM COMPLYING WITH
ABA STANDARD 405(c) ....................................................................... .32

A. The District Court's reading of the SUNY Trustees' Policies was erroneous as a
matter of statutory construction .. 0 0 0 0. 0 0 ..... 0 0. 0.33... 0 ... 0 0 .................. 0 00 .... 0

B. The SUNY Buffalo Law School enacted its Faculty Bylaws to implement
accreditation standards that are mandatory for its continuing operation ............. 34

C. The State University of New York at Buffalo has never taken the position that the
SUNY Trustees' Policies prohibit its compliance with ABA Standard 405(c) .... o.37

II. THE DISTRICT COURT ABUSED rrs DISCRETION BY GRANTING THE


ATTORNEY GENERAL'S CROSS-MOTION FOR RULE 11 SANCTlONS ............. .40

A. The District Court failed to apply the objective standard to the issue of whether the
Attorney General had knowledge of his client's multiple perjuries .................... .41

R The District Court's assessment of the evidence was clearly erroneous ............. .45

C. The District Court's assessment of materiality of former-Dean Mutua's false


testimony was clearly erroneous ................................................... " ... .48

D. Court failed to assess the Attorney General's defense of


former-Dean Mutua is in violation ofN.Y. Officers Law 17-19 .... 0 ...... 50

Conclusion .. 0

2
Case 17-38, Document 28, 02/17/2017, 1975441, Page3 of 57

TABLE OF AUTHORITIES

Constitutional Provisions

LJ.S. Const. an1end. XIV, 1................................................................................ 12

Cases

Business Guides, Inc. v. Chromatic Comm. Ent., 498 U.S. 533, 549-551 (1991) ............... 43
California Pub. Employee's Ret. Sys. v. WorldCom, Inc., 368 F. 3d 86, 106 (2d Cir. 2004) ........ .33
Cleveland Bd. ofEduc. v. Loudermill, 470 U.S. 532, 540 (1985) ........................................ 12
Doe v. Federal Grievance 847 F.2d 57, 63 (2d Cir. J 998) .... ,. .......................... .42
Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995) ......................................................... 12
In re c\'nyder, 472 U.S. 634, 648 (1985) .................................................................... .40
Jn re Pennie & Edmond~ LLP, 323 F.3d 86, 91 (2d Cir. 2003) ..................................... .41, 43
Lancasterv. Inc. Village ofFreeport, 22 N.Y.3d 30, 38, 978 N.Y.S.2d 101 (2013) .................. 52
Mathews v. Eldridge, 424 lJ.S. 319, 335 (1976) ........................................................... 13
Moffitt v. Town of Broolifield, 950 F.2d 880, 885 (2d Cir. 1991 ) ........................................ 13
v. Sindermann, 408 U.S. 593, 601-603 (1972) ...................................................... 13

Scott v. 344 F 282, 289 (2d Cir. 2003) ...................................................... .43


Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir. 2003) ................................................ 14
Zimmer v. Town of Brookhaven, 247 A.D.2d 109, 110-112, 678 N.Y.S.2d 377 (2d Dep't 1998) ... 50

Statutes

Civil Rights Act of 1871, 42 U.S.C. 1983 ........................................................... ! 4


Crimes and Criminal Procedure, 18 U.S.C. 1621 ................................................. 14, 15
Federal Rules of Civil Procedure, Fed. R. Civ. Pro. R. 11 ........................... ,. ........... 14, 40, 42
ofCivil Procedure, Fed. R. Civ. Pro. R. 56 ........................ ,. ................ 14, 55
N.Y. Officers' Law, 17-19 .................................... ,. .............. ., ......... 52

Regulations

New York Rules of Professional Conduct, R. 1 R. 1.13 ........................................... .41, 51


New York EC7-14 ................... , .. '.,.54

3
Case 17-38, Document 28, 02/17/2017, 1975441, Page4 of 57

Policies of the Board of Trustees, N.Y. Comp. Codes R. & Regs. tit. 8, 335, et seq .......... passim

News and Media Reports

"William Greiner Dies," UB Press Release, December 21, 2009, available on-line at
http://www.buffalo.edu/news/releases/2009/12/ I 0771.html... .............................................................. 19

"Statement about Dismissal of Malkan Lawsuit," UB Press Release, December 2, 2015, available
on-line at http://www.buffalo.edu/news/releases/2015/12/004.html ............................................... 20

"Former UB Law Professor Proceeds with Federal Suit against UB Law School," VB Spectrum,
April 28, 2013, available on-line at http://www.ubspectrum.com/article/2013/04/former-ub-law-
professor-proceeds-with-federal-su it-against-ub-law-schoo L...............................................................2 8

"Law School Dean Makau Mutua Resigns," UB Spectrum, September 24, 2015, available on-line
at http://www.ubspectrum.com/article/2014/09/law-school-dean-makau-mutua-resigns ................. 28

"Mutua's Unsettling Tenure," UB Spectrum, September 26, 2015, available on-line at


!Jttp://www.ubspectrum.com/article/2014/09/mutua.............................................................................. 28

"Deep Rift Exposed as UB Law's Dean Resigns," Buffalo News, September 27, 2014, available
on-line at http://buffalonews.com/2014/09/27 /deep-rift-exposed-as-uh-laws-dean-resigns ............ 28

"A Fuli House for Desmond Moot Court," VB Law Website, The Buffalo Law Experience,
avai !ab le on-line at htt_Qjfwww.law.buffalo.edu/features/experience/desmond-dec l S_JitmJ .......... .31

"SUN Y Buffalo Job Posting" at http://www.thefacultylounge.org/20 l 7/Q l/suny-buffalo_-lecturer-


in-Iaw-job-posting.htm !#more .................................................................................................................. 39

"VB Still Paying Former Law School Dean Makau Mutua Full Salary Despite New Job," UB
Spectrum, March 9, 2016, available on-line at http:/fwww.ubspectrum.com/article/2016/03/ub:
stil l-payinz-former-law-schoo!-dean-rnakau-mutua-full-sala_ry-despite-his-new-job ..................... 53

4
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Jurisdictional Statement

The Court has jurisdiction over this appeal pursuant to 28 U.S.C.


- - - -
~ 1291.

Finaljudgment was entered in the court below on December 19, 201 Timely

notices of appeal were filed on January 3, 2017 (No. 17-38-cv) by Jeffrey Malkan,

and on January 13, 2017 (No. 17-228-cv) by Frederic Ostrove, Esq. The appeal is

from a final judgment that disposes of all claims in this matter against the defendant.

Statement of Issues on Appeal

1. Did the District Court commit an error of law by ruling that an ABA-

accredited, state-sponsored law school, SUNY Buffalo, is prohibited by state law,

the Policies of the SUNY Board of Trustees, from complying with a mandatory

accreditation standard, ABA Standard 405(c )?

2. Did the District Court abuse its discretion by declining to impose sanctions

on the Attorney General for proceeding to summary judgment on a record that

contains unrefuted testimony and documentary evidence from every tenured and

emeritus law professor whose testimony has been heard of his client's multiple

pei:juries in this case and related state court litigation?

Statement of the Case

complaint v. ] -1 . filed March

, 201 was commenced pursuant to 42 lJ .S.C l then-Dean Makau

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W. Mutua and then-Vice-Dean Charles P. Ewing, in their personal capacities, for

violation of the Fourteenth Amendment right to due process. (Dkt. #1) (SP-A. 20). 1

Professor Malkan was represented until July 16, 2015, by Frederic D. Ostrove, Esq.,

a member of the firm Leeds Brown Law in Carle Place, New York. A motion to

dismiss in lieu of an answer, on May 8, 2012, together with a motion for a stay

pending a final decision in the Court of Claims litigation, was filed by Assistant

Attorney General David J. Sleight, Esq., on behalf of both defendants. (Dkt. #6.)

Proceedings Below

These motions were denied by Hon. Richard J. Arcara, dated October 3,

2012. Judge Arcara ruled (i) that the allegations of the complaint stated a cause of

action under 1983 and (ii) that federal issues in this case and the state issues in the

Court of Claims case were too dissimilar to warrant the issuance of a stay. (Dkt. #

20) (SP-A. 94).

October 23, 2012, the Attorney General answered the complaint for Dean

Mutua and Vice-Dean Ewing. (Dkt. #24.) The case was assigned to Hon. H.

Kenneth Schroeder, Jr. for pre-trial proceedings (Dkt. #22.) Hugh M. Russ, Esq.

mediated the mandatory ADR Rules of the Western District

on March 1, 13, with Vice-Dean Ewing now represented private counscL

1 References to the Appendix Vol. l, Appendix Vol. 2, and Special Appendix of


Appellant are (Al. or Docket in the District Court is cited as

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Dean Mutua and Professor Malkan had jointly asked to be excused from attending

the mediation and Judge Arcara had denied their requests, ordering both parties to

appear. (Dkt. #28.)

On May 23, 2014, Vice-Dean Ewing, now represented by private counsel,

filed a motion for summary judgment, pursuant to Federal Rules of Civil Procedure,

Fed. R. Civ. P. 56. (Dkt. #54.) The Attorney General moved for summary

judgment on Dean Mutua's behalf on June 6, 2014. (Dkt. #55.)

On August 13, 2014, Vice-Dean Ewing filed a motion for separate trials,

alleging that his status as co-defendant created the risk that he would be tainted by

the evidence-backed allegations before the District Court of Dean Mutua's criminal

claims, with prejudice, against Vice-Dean Ewing. (Dkt. #64.)

On October 16, 2014, the Attorney General filed his Statement of Undisputed

Facts, pursuant to Local Rule 56.l. (Dkt. #68) (A2. 411-413). That document is the

subject of the Rule 11 motion under review on this appeal.

The Rule 11 motion and cross-motion ensued.

Between October 14, 2014 and Febmary 2015 the parties exchanged

messages regarding the Rule 11 motion. (A2. 354.) Mr. Ostrove informed the

Attorney General that he intended to file a Rule 11 not take

remedial measures to vote P&T Committee was mi


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undisputed fact. The Attorney General responded by serving notice that he intended

to file a Rule 11 cross-motion if Mr. Ostrove proceeded with his motion.

On April 14, 2015, Mr. Ostrove filed his Rule 11 motion on behalf of

Professor Malkan. (Dkt. #70.)

" On July 15, 2015, Mr. Ostrove moved to withdraw from the case.

(Dkt. #80.)

" On July 16, 2015, the Magistrate terminated Mr. Ostrove's

representation of Professor Malkan, but required him to "respond to

defendant's anticipated motion for sanctions to the extent that such motion

may challenge Mr. Ostrove's conduct as counsel on behalf of plaintiff prior

"' On July 23, 2015, the Attorney General filed his Rule 11 cross-motion

on behalf of former-Dean Mutua. (Dkt. #83.)

On December 2, 2015, Magistrate Judge H. Kenneth Schroeder recommended

(i) that summary judgment be granted to former-Dean Mutua against Professor

Malkan, (ii) that Rule 1 l monetary sanctions of $10,000 should be imposed on Mr.

Ostrove5 Professor I\1alkan should be held in contempt of court. (Dkt

#96, 97) (SP-A. 11 ). Although he stated that respect the integrity of the judicial

process counseled against dismissing the case as a sanction

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Malkan, he found him equally culpable and recommended dismissal in an opinion

he issued concurrently.

Upon the objections of Professor Malkan and Mr. Ostrove to the Report and

Recommendations, Judge Richard J. Arcara received written arguments in the form

of briefs and declarations. On November 11, 2016, Judge Arcara transferred the

case to Judge Michael A. Telesca. (Dkt. #99-109, #] 11).

On December 19, 2016, Judge Telesca endorsed the lvfagistrate on the

summary judgment motion, and found Mr. Ostrove responsible for professional

misconduct, retaining the verbal sanctions, but declining to impose the $10,000

monetary sanction recommended by the Magistrate. (Dkt. #113-114.)

.l{elated Litigation

In Malkan v. State University of New York (SUNY Buffalo), Nos. 116355,

117676 (N.Y. Ct. of Claims, September 6, 2013), Professor Malkan filed a Notice of

Claim for breach of contract on January 28, 2009, which was within six months after

the service of the notice of non-renewal. He filed a second Notice of Claim on

November 13, 2009, which was within six months after the date the contract expired.

.1 .) The second claim was filed the Attorney had

challenged the first on the grounds that an anticipatory breach of contract could not

the subject of a Notice Claim.

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The Court of Claims dismissed both claims with the following rulings: (i) the

January 28, 2009 Notice of Claim had failed to state damages in the form of an exact

dollar amount, and (ii) the November 6, 2009 Notice of Claim missed the statute of

limitations, which it deemed to have begun to run with service of the notice of non-

renewal. (SP-A. 130-139.) The court refused to allow the caption of the first claim

to be amended with four words to "Notice of Intent to File a Claim," which would

have extended the statute oflimitations from six months to two years. (SP-A. 138.)

Professor Malkan filed a motion for leave to file a late claim, which was

denied by the Court of Claims, without any pretrial discovery. l'he Appellate

Division, Fourth Department, in a memorandum opinion, affirmed the Court of

Claims, finding that the claimant "failed to demonstrate an adequate excuse for the

delay, that the proposed claim lacks merit, and that claimant had and/or has

alternative remedies." Malkan v. State ofNew York (SUNY Buffalo), No. CA-16-00-

538 (N.Y. App. Div., 4th Dep't, December 23, 2016). (SP-A. 119.) None of the

evidence before this Court regarding the Law School's representations to the ABA

about its compliance with Standard 405(c) is in the record of that case, which is

on a for to appeal before New York Court of Appeals.

Two further cases, both related to Professor Malkan's unsuccessful attempts

to a matter, and both defended by SUNY Counsel the

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Attorney General or Governor's Office of Employment Relations, were resolved in

state court in favor of the University.

(i) United University Professions/New York State United Teachers v.

State of New York, No. U-288236 (N.Y. Pub. Emp. Rel. Bd., November

20, 2012). The UUP/NYSUT filed an improper practice charge, under

the Taylor Law, N.Y. Civ. Serv. Law, 200-214, at the Public

Employment Relations Board (PERE) against SUNY Buffalo, alleging

retaliation based on anti-union animus. (SP-A. 140-175.)

(ii) Malkan v. Gardner, No. 812516/2015 (N.Y. Sup. Ct., December

2, 2015). Professor Malkan commenced a defamation action in Erie

County Supreme Court against Interim Dean James A. Gardner after he

(a) obtained a persona non gratis letter from President Satish K.

Tripathi banning Professor Malkan from campus on penalty of criminal

trespass, and (b) proceeded to publish a message to the Law School

faculty and staff stating that he had sought protection from the State

University Police in the interests of public safety. (SP-A.. 438-460.)

The courts in both these matters, as they have done so far in Court

litigation, accepted and defamatory

Interim Dean Gardner, and as credible true.

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University issued a news release on December 2, 2015, announcing the Magistrate's

Report and Recommendation in this case as well as the ruling of the Erie County

Supreme Court in the defamation case.

Reached for comment, Mutua said, "I am very pleased with the
magistrate's decision, which affirms the falsity and malice of
the charges brought by l\1r. Malkan. I am glad that the court
not only affirmed the falsity of the charges, but has also
sanctioned Mr. Malkan and his lawyer for their reckless
behavior." "[W[ e could not be happier with these results," said
Gardner. "It is no surprise that Mr. Malkan, having filed three
different losing lawsuits against the former dean, finally went
ahead and filed a losing suit against me. I am gratified that the
court recognized that this action, like its predecessors, is
completely devoid of merit."2

Constitutional Provisions

any State deprive any person oflife, liberty, or property, without due process of

law." U.S. Const. amend. XIV, L In its application, the procedures set into place

by the State to protect substantive constitutional rights must be observed by the

State. "While the legislature may elect not to confer a property interest in [public]

employment, it may not constitutionally authorize the deprivation of such an

interest, once conferred, without appropriate procedural safeguards." Bd

v. Loudermill, 470 U.S. 532, 540 985).

available on-line at
201

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The essential requirements of due process are "notice and an opportunity to

respond." Id. at 546. Jn applying these requirements to a 1983 claim, "[t]he two

threshold questions ... are whether the plaintiff possessed a liberty or property

protected by United States Constitution or federal statutes if so,

process was due before the plaintiff could be deprived of that " Green

v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995).

On the first element, the property interest may be based either on express

contractual agreements or on the unwritten "common law" of an institution of

higher learning. Perry v. Sindermann, 408 U.S. 593, 601-603 (1972). "A person's

interest in a benefit is a 'property' interest for due process purposes if there are such

rules or mutually explicit understandings that support his claim of entitlement to the

benefit and that he may invoke at a hearing." Id at 601.

On the second element, the process that is due must be determined by

balancing the employer's interest in minimizing administrative burdens, the

employee's interest in retaining his or her livelihood, and the risk of injustice

through wrongful termination. See Mathews v. Eldridge, 424 U.S 319, 335 (1976}

test ordinarily requires predeprivation a lS

a must be a

some

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is at stake that justifies postponing the hearing until after the event."' A1offitt v.

Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991) (citation omitted).

Statutory and Regulatory Provisions

The Civil Rights Act of 1871 provides that a state official, acting under color

of state law to deprive a United States citizen of his or her constitutional right to due

process, may be sued in his or her official or personal capacity and be held liable for

damages. See 42 U.S.C. 1983.

The Federal Rules of Civil Procedure provide that summary judgment is

appropriate where "there is no genuine issue as to any fact and ...

moving party is entitled to a judgment as a matter of law." Fed. R. P. 56(c).

They further provide that an attorney practicing in federal court must certify that all

representations and arguments were an

" on

so arc on or a

" Fed. R. Civ. P. 1 l(b) (l), (4). A grant of summary judgment is

reviewed nova. See Sheppardv. Beerman, 317 F.3d 351, 354 Cir. 2003).

18 the United States Code, Crimes and Criminal Procedure, l l,

"Perjury generally," provides that -

Whoever--

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(1) having taken an oath before a competent tribunal, officer, or


person, in any case in which a law of the United States authorizes an
oath to be administered, that he will testify, declare, depose, or
certify truly, or that any written testimony, declaration, deposition,
or certificate by him subscribed, is true, willfully and contrary to
such oath states or subscribes any material matter which he does not
believe to be true; or

(2) in any declaration, certificate, verification, or statement under


penalty of perjury as permitted under section 1746 of title 28, United
States Code, willfully subscribes as true any material matter which
he does not believe to be true;

is guilty of perjury and shall, except as otherwise expressly provided


by law, be fined under this title or imprisoned not more than five
years, or both. This section is applicable whether the statement or
subscription is made within or without the United States.

18 U.S.C. 1621, available on-line at]Jttp://uscode.housc.gov/browse.xhtml (current

through Public l, December 16, 2016).

The Policies of the SUNY Board of Trustees provide that "[n]o tenn

appointment, of itself, shall be deemed to create any manner of legal right, interest

or expectancy in any other appointment or renewal." Id. at Article IX, Title D, 4,

N.Y. Comp. Codes R. & Regs. tit. 8, 335, et seq. (2016).

Statement of Facts

Faculty members at the rank and title of clinical professor are initially

appointed

must the Appointments by a


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endorsed by the Dean. (A2. 416.) The terms and conditions of employment are

formalized by two distinct documents, the letter of appointment and the contract. 3

(i) The letter of appointment is an executive act by the President of the

University, who has the sole authority under the SUNY Trustees' Policies to

make faculty appointments. It states the term of the appointment, the title

and rank, and the initial base salary. (A2. 385.)

(ii) The contract is an agreement negotiated between the Dean and the

faculty member after the faculty approves the initial appointment, or the P&T

Committee approves the promotion. It specifies the specific terms and

conditions of that particular appointment. (A2. 375.)

Clinical professors initially receive two term contracts and, in the sixth year,

are reviewed by the Promotion and Tenure (P&T) Committee. (A2. 417.) That

review in the Law School is based on a dossier, in a format specified by the Vice-

Provost's Office, that documents the candidate's teaching, scholarship, and service. 4

3The collective bargaining agreement (CBA) is not a faculty contract, but rather a contract
between the University and the UUP-NYSUT that provides the framework that is applied to
foundation of the CBA is consistency with the N,Y. Civil Service
200-214, (the Law") and the SUNY Trustees' Policies, which are regulations promulgated
under N.Y.Education Art.8, et seq.

4 See ''Checklist for Promotion Dossiers After 2000, Vice-Provost Faculty at


W:11Q/www.l;iuffalo.eQ_u/content/da1nL~rovostJfiles/FacultyAffairs/Ch~cklist(edited annotateq
).gdf (last visited January 20 l
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1. Professor lvfalkan 's faculty appointment

Before hiring Professor Malkan, the Law School engaged in a search for a

Director of its Research and Writing program. The position was posted on the

AALS Faculty Recruitment Register and in various education publications.

Professor Malkan was interviewed on campus on June 28-29, 2000. (A2. 398.) The

faculty voted to make him an offer at the title and rank of Clinical Associate

Professor, which was conveyed by letter dated July 25, and he accepted. (A2. 384.)

Professor Malkan's first three-year term contract was renewed by then-Dean

R. Nils Olsen, Jr. at the end of the spring 2003 semester after an administrative

finding that he was making substantial progress towards tenure. In the sixth year of

his appointment, Professor l\falkan applied for promotion to full clinical professor.

The Dean convened a meeting of the Promotion and Tenure Committee on April 28,

2006 to review his dossier and vote on a recommendation.

2. The decision of the P&T Committee on Professor Malkan 's promotion

At their depositions in November and December of2013, former-Dean R.

Nils Jr., and four of the tenured faculty members who had been present and

voting at the meeting (Professors Dianne Rebecca

Robert Steinfeld) testified the Promotion and Tenure Committee had voted

to approve Professor Malkan's reappointment to the rank and title of full clinical

a 405(c)-protected contract. (Al. 176-299.)


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Avery, both former Vice-Deans, supplemented their deposition testimony with their

contemporaneous handwritten notes and tally sheets of the vote count, which

reflected a vote of nine to seven with three abstentions. (Al. 217, 222.) On August

13, 2014, eight professors (Professors Susan Mangold, Dianne Avery, Rebecca

French, Shubha Ghosh, Alfred Konefsky, Lynn ]\;father, Robert Steinfeld, and

Charles Ewing) submitted sworn declarations to the District Court attesting to their

knowledge of the perjury. Later that month, Professors John Henry Schlegel and

Martha McCluskey joined their faculty colleagues in a petition to the Grievance

Committee of the Eighth Judicial Department seeking sanctions against former-Dean

Mutua for his violations of law and professional ethics. (A2. 351.)5

testified at his deposition on December 19, 2013 that the faculty did not consider

Professor Malkan's reappointment, but instead passed a resolution recommending

his termination on one-year's notice with an administrative rather than a faculty

appointment for the tenninal year. On September 17, 2014, he reiterated:

I recall, and repeat here for clarity, that the [faculty] only
voted to authorize the Dean of the Law School to offer
Malkan a one-year terminal contract as Director of the
Research and Writing Program because he was universa11y
viewed as incompetent [T]he meeting was heated and

does not the depositions of Malkan


statement of Professor Markus Dubber of the University of Toronto.

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rancorous and broke up after the vote to grant Malkan a


terminal one-year contract. These are the facts as I
remember them and have truthfully testified in several legal
proceedings.

(A2. 350.)6 He further testified in the District Court that he could not produce

Professor Malkan's P&T dossier, which had been subpoenaed, because it had

"apparently disappeared into thin " (A2. 321.) The only person whose name he

could provide to corroborate his account of these events was that of retired

University President and Emeritus Professor of Law, \Villiam Greiner. (A2. 312,

314.) President Greiner had passed away on December 19, 2009. 7 This was

essentially the same story he had told on March 31 and April 1, 2010 at the hearing

of the PERB (Al. 264, A.2 344), and once again repeated in a Declaration submitted

to the District Court on June 26, 2015. (A2. 332-337.) He added that the evidence

against him was contrived by faculty adversaries who opposed his "initiatives" and

"have a bilious personal vendetta against me." (A2. 351.)

3. Professor Malkan 's employment contract

contract signed by Dean Olsen on Oct. l 2006, and countersigned by

GThe to the Grievance Committee, dated September 17, 2014, was attached as Exhibit C
(Doc. to his Declaration of June 2015 in support of his Rule 1 l cross-motion. (A2.
Dies," UB News Release, December 21, 2009, on-line at
visited 201

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ABA Standard 405(c), which was annexed to the contract as an Exhibit, by

providing security of employment "reasonably similar to tenure." (A2. 375-381.)

It specified (i) the relationship between Professor Ma1kan's administrative

appointment as Director of the Research and Writing Program and his faculty

appointment as clinical professor oflaw, (ii) his required teaching load and how his

teaching assignments were to be distributed between first-year legal writing and

upper division intellectual property and writing courses, and (iii) how the general

language of ABA Standard 405(c), the clinical faculty standard, would apply to

unique position in the Law School as the only professor with both a commitment to

teaching first-year legal writing and membership on the voting faculty. Id.

Finally, it provided that its term \Vas three years vvith a t\vo-year mandatory

extension for a total of five years. Id. This "3+2" model was intended by former-

Dean Olsen to harmonize the standard contract term with the mandate of Standard

405(c). (A2. 392.) The Provost's Office did not, in any document that has been

disclosed in this litigation, make any objection to any of its terms and conditions.

On April l, 2010, Dean I\1utua testified that he had at that point negotiated "more

than faculty contracts contracts in every case were followed by a

of appointment from the President. (A2. 340.)

20
Case 17-38, Document 28, 02/17/2017, 1975441, Page21 of 57

4. Dean Mutua terminates Professor Afalkan 's faculty appointment

On August 28, 2008, Dean Mutua served notice on Professor Malkan by

certified mail informing him that his contract would not be renewed at the expiration

of its present term, twelve-months hence. (A2. 383.) This notice was timed in

accord with the requirements of the SlJNY Trustees' Policies. Id. He stated that the

faculty had terminated the "Research & Writing" program and was replacing it with

a new "Skills" program. This, he concluded, had eliminated Professor Malkan's

instructional position and was good cause for dismissing him under ABA Standard

405( c ). Id. There is no dispute that the Law School is required by ABA Standard

302(a) to provide a first-year legal writing course; that it has been in compliance at

and Research" or "LA WR." He further stated that the "3+2" term of the contract

was not valid under the SUNY Trustees' Policies. Id.

He did not inform Professor Malkan of his present legal position, which is the

subject of this appeal, that aH clinical professors in the Law School become

employees-at-will who may be dismissed at the discretion of the Dean at the end of
. 8
every three-year term. addition, no mention of the

Faculty Bylaws that the Committee on Clinical Promotions and

was not pleaded in the answer (SP-A. 31 and was the to


that preceded it. See Answer to Comp'!, iriJ 10-21, October 23, 2012 (affirmative
defenses). There is no evidence that it has ever been anything but a post hoc rationalization.
21
Case 17-38, Document 28, 02/17/2017, 1975441, Page22 of 57

(CCPR), which is a committee of the whole tenured faculty at the rank of full

clinical professor or higher, must make a recommendation to the Dean regarding

non-renewals of clinical professors prior to a final decision. Id.

On April 22, 2009, Dean Mutua convened the CCPR for its only meeting of

the year to vote on the contract renewals of the other two clinical professors whose

contracts expired on August 31, 2009, the same day as Professor Malkan's. (A2.

426.) Dean Mutua did not put Professor Malkan's non-renewal on the agenda and it

was not considered at that meeting or any other before the end of the academic year.

5. The right to due process before the Grievance Committee

On January 7, 2009, Professor Malkan filed a petition with the faculty's

Gricvai'lce Cmn'TI.ittee. (Al. 206.) That Committee is charged under the Faculty

Bylaws with investigating and reporting grievances by "any Faculty Member who

feels aggrieved by any matter relating to his rights and privileges as a Faculty

Member, including but not limited to, terms and conditions of his or her

employment." (A2. 423.) It was addressed to the Chair, Professor Charles P.

Ewing. Professor Ewing approached Dean Mutua an attempt to adjust the

but I\t1utua refused to speak to 267.)

Professor Ewing informed Professor I\rfalkan that the grievance could not

move forward under these Professor Malkan responded

22
Case 17-38, Document 28, 02/17/2017, 1975441, Page23 of 57

grievance pertained to his due process rights and would be moot if not reported to

the faculty in a timely manner. Professor Ewing gave no further response. 9

6. The UUP 's intervention on Professor Malkan 's behalf

In March of 2008, Professor Malkan met with Tara-Singer Blumberg, the

UUP Labor Relations Specialist, because Interim Dean Mutua's hostility and

abusive behavior was making it difficult for him to function in his job. She advised

him that she would try to arrange a meeting with Interim Dean Mutua so they could

discuss the legal writing program in a polite and collegial manner. She would also

ask Interim Dean Mutua to send a name-clearing message to the faculty to clear up

any rumors about why Professor Malkan had been abruptly removed as Director of

R&W program in the middle of spring break. (SP-A. 163.)

Dean Mutua later denied that he knew the UUP was involved and that he had

ever spoken to any University official about the matter. (SP-A. 172.)

On November 19, 2008, the UUP/NYSUT filed an improper practice charge

with the Public Employment Relations Board (PERB), alleging that the termination

Professor Malkan's faculty appointment was an act of retaliation for the UUP's

on Professor Malkan's The PERB hearing was held on

9Professor (then-Vice was named as co-defendant in the complaint because he had


as of the Committee during the academic semesters of fall 2008 and
2009. The complaint alleged that failure to report Malkan's
to the faculty was a further denial his right to due process,

23
Case 17-38, Document 28, 02/17/2017, 1975441, Page24 of 57

17, 2009, and continued on March 3 l~April 1, 2010. (SP-A. 153.) PERB did not

issue its ruling until November 8, 2012. The Hearing Officer, an administrative law

judge, dismissed the charge with two holdings: (i) Dean Mutua never knew about the

UUP's involvement in the matter and therefore could not have been motivated by

anti-union animus, and (ii) Dean Mutua had legitimate business reasons for

terminating Professor Malkan's employment. (SP-A. 171-175.) This decision was

affirmed by the Board on August 23, 2013. (SP-A. 140.)

7. Dean Mutua 's perjury at the Public Employment Relations Board

On March 31, 2010, Dean Mutu a, on direct examination, testified that the

faculty had never voted on whether to recommend Professor Malkan's

former-Dean Olsen had no authority to proceed with a faculty appointment without

first obtaining a faculty recommendation. The next day, on cross-examination, he

was asked the same question and gave the same response. (Al. 263.)

After the testimony had been transcribed, Professor Malkan sent copies to

Professor Markus Dubber (now at the University of Toronto) and former-Dean Nils

Olsen. both confirmed that had been told by the

P&T Committee meeting was true (A2. 387-399)--that reappointment and

promotion been approved. (Al. 280--285.) Professor Malkan requested the

to ask the Hearing Officer to reopen the record to


24
Case 17-38, Document 28, 02/17/2017, 1975441, Page25 of 57

testimony on this issue, but the UUP declined, pointing out that Professor Malkan

had agreed at the time that the hearing could be adjourned because a winning case

had already been presented.

On November 11, 2011, Professor Malkan contacted the attorney from the

Governor's Office of Employee Relations who had represented SlTt'\fY, Lynn Vance,

Esq., by letter dated November 11, 2011, to inform her that she had put on perjured

testimony and asking her to take remedial measures. (Al. 278.) He copied

President Tripathi on this letter. Id. He received no response. President Tripathi

and AAG David Sleight have, to the present day, refused to investigate the evidence

of former-Dean Mutua's perjury, and President Tripathi has failed to take any

8. The ABA Site Evaluation Visit ofApril 2009

On April 8 through April 11, 2009, the ABA Site Evaluation Team visited the

campus for the sabbatical reaccreditation of the Law School. In preparation for this

visit, the Law School prepared a Self Study Report, dated January 21, 2009, which

certified that the Law School was in compliance with Standard 405(c). (A2. 407.)

Simpson and then-Dean Mutua that the ABA had approved the Law School's

including its compliance with Standard (A2. 406.)

25
Case 17-38, Document 28, 02/17/2017, 1975441, Page26 of 57

The following additional developments relevant to Standard 405( c) occurred

while the present motions were pending in the District Court. On April 10, 2016, the

Law School was once again visited by the ABA for its sabbatical reaccreditation.

On August 1, 2016, the Law School welcomed three new clinical professors of law,

who were hired on the clinical tenure track the previous spring. The record in this

case does not reveal (i) what SUNY Buffalo most recently told the ABA about the

Law School's compliance with Standard 405(c); or (ii) what expectations of renewal

were presented to SUNY Buffalo's three newly hired clinical professors. 10

9. The University's misconduct in pretrial proceedings

Dean Mutua did not appear for the mandatory ADR held at the offices of

Hugh :M. Russ, Esq. on l\1arch 1, 2013. The Attorney General informed Mr. Russ

that Dean Mutua had committed to another engagement and had chosen to honor his

other engagement. In the Report and Recommendations adopted by the District

Court and now under appeal, Magistrate H. Kenneth Schroeder held Professor

Malkan in contempt of court for disclosing to the UB Spectrum that Dean Mutua had

not participated in the mediation. (SP-A. 89-90.)

10See Schedule of Law School Site Visits, ABA Section on Legal Education, available at
http://www.americanbar.org/groups/legal education/accreditation/law school site visits.html;
"Meet our New Clinical Faculty," Law Links Newsletter, August 2016, available on-line at
http://web2.law.buffalo.edu/links/08-2016/default.html (last visited January 25, 2017).

26
Case 17-38, Document 28, 02/17/2017, 1975441, Page27 of 57

Depositions were taken in November and December of 2013. On December

19, 2013, Dean Mutua repeated the same statements about Professor Malkan's

faculty appointment, embellishing his testimony by adding a specific vote count and

the name of President Greiner. (A2. 312, 314.) He once again repeated these

statements in a Declaration in support of his cross-motion for sanctions, on June 26,

2015. (A2. 333.)

President Tripathi declined to sit for a deposition, instead submitting a

Declaration, dated December 12, 2013, denying that he had any prior knowledge of

the allegations in this matter, particularly the charge that former-Dean Mutua had

perjured himself at the PERB proceedings. (i\8) (A2. 399-404.) He admitted that he

had received the PERB decision in his personal e-mail from Dear1 :Mutua, and had

responded by congratulating him, but claimed that he had not opened the PDF

document that contained the decision and knew nothing about the issues in the case.

(~ 15) (A2. 402.)

He also claimed (i) that his legal staff had intercepted the dozen letters and e-

that his Office had received from Professor Malkan over the preceding year,

that does not read the UB Spectrum, which had reported the perjury

27
Case 17-38, Document 28, 02/17/2017, 1975441, Page28 of 57

allegations against former-Dean Mutua on April 28, 2013, in a front page story, 11

and (iii) that he had no knowledge of Professor Malkan's faculty appointment and

no responsibility in general for reviewing or approving clinical appointments and

promotions. (Tripathi Deel., iii! 5, 17-20) (A2. 400-402.)

Makau Mutua resigned as Dean on September 24, 2014, effective at the end of

that semester, exactly one month after Vice Dean Ewing filed evidence in the

District Court of the perjury allegations made by members of the senior faculty. 12

Summary of Argument

The principal issue on this appeal is whether clinical professors of law at

SUNY Buffalo, for whom ABA Standard 405(c) mandates security of employment

"reasonably similar to tenure," have a property interest in state employment

sufficient to support a Fourteenth Amendment right to due process. This

issue requires the Court to determine the meaning of the clause "of itself" in the

"Renewal of Term" provision of the Policies of the SUNY Board of Trustees.

11"Former UB Law Professor Proceeds with Federal Suit against UB Law School," UB Spectrum,
April 28, 2013, available on-line at http://www.ubspectrum.com/article/2013/04/former-ub-law-
professor-proceeds-with-federal-suit-against-ub-law-school (last visited January 25, 2017).

12"Law School Dean Makau Mutua Resigns," UB Spectrum, September 24, 2014, available on-
line at http://www.ubspectrum.com/article/2014/09/law-school-dean-makau-mutua-resigns;
"Mutua's Unsettling Tenure," UB Spectrum, September 26, 2014, available on-line at
http://www.ubspectrum.com/article/2014/09/mutua; see also "Deep Rift Exposed as UB Law's
Dean Resigns," Buffalo News, September 27, 2014, at http://buffalonews.com/2014/09/27/deep-
rift-exposed-as-ub-laws-dean-resigns/ (last visited January 25, 2017).

28
Case 17-38, Document 28, 02/17/2017, 1975441, Page29 of 57

4. Renewal of Term. Except as provided in this Article,


term appointments may be renewed by the chief
administrative officer of the college for successive periods
of not more than three years each; such renewals shall be
reported to the Chancellor. No term appointment, of itself,'
shall be deemed to create any manner of legal right,
interest or expectancy in any other appointment or
renewal.

Id., Article IX, Title D (emphasis added). 13 The Attorney General maintains that the

words "of itself" are mere surplusage. The District Court agreed that the meaning of

this sentence would be exactly the same with or without these surplus words. That

was an error oflaw by the District Court and is subject to de novo review.

Professor Malkan has never contended that a letter of appointment from the

President of SUNY Buffalo to an individual faculty member at the rank and title of

clinical professor "of itself" implies any legal right, interest, or expectation upon

which a federal property right may be based. The SUNY Trustees' Policies,

however, do not prohibit the Law School from expressly providing due process

protections in the form of rules and procedures of general application, nor do they

prohibit its Dean from offering clinical faculty contracts that are consistent with

Faculty Bylaws. These protections are mandated by ABA Standard 405(c), an

freedom and core requirement If Law School

See State of New "Policies Board of Trustees 20 l "available on~


line at https://WVt'.w .suny .edu/media/suny/content-assets/doc uments/boardoftrustees/S UN_Y-J30T
Policie~-June201:.pdf (last visited January 2017) (relevant excerpts). 461.)
29
Case 17-38, Document 28, 02/17/2017, 1975441, Page30 of 57

fails to maintain its accreditation, it will be unable to certify its graduates to sit for

the bar examinations of New York State and other jurisdictions.

The second issue on appeal requires this Court to determine whether to

sustain the Rule 11 verbal sanctions levied on Professor Malkan's attorney for

placing the unrefuted evidence of former-Dean Mutua's multiple perjuries before the

District Court in the form of a Rule 11 motion against the Attorney General.

The former-Dean had testified twice in state court (March 31 and April 1,

2010) and twice in federal court (December 19, 2013 and June 26, 2015) that his

predecessor, former-Dean R. Nils Olsen, Jr., had promoted Professor Malkan to the

rank and title of full clinical professor without a recommendation from the

Promotion and Tenure Committee and that his faculty appointment vvas therefore

unlawful and ultra vires. (A2. 344.)

Despite the objections of Mr. Ostrove, the Attorney General (i) refused to

concede that his client was lying, (ii) contended that the "sharp difference of

opinion" between his client and every other witness was merely a factual dispute,

(iii) claimed that, even if his client's testimony was false, it may have been an honest

mistake,

not pertain to any material fact

The Magistrate, for his part, (i) reported that he did not find basis an

allegation of pe1jury sworn testimony of every


30
Case 17-38, Document 28, 02/17/2017, 1975441, Page31 of 57

whose testimony has been was heard, set against the testimony of the former-Dean,

who could not name a single witness to verify his testimony, (ii) failed to address the

question of whether these circumstances required the Attorney General to make an

inquiry into the reliability of his client's testimony, (iii) further reported that "respect

for the integrity of the judicial system" constrained him from sanctioning the

plaintiff with dismissal of the action "even though Mr. Malkan's conduct during the

course of this litigation would easily warrant even such a severe sanction," and (iv)

proceeded to recommend that the action be dismissed on its merits. 14 (SP-A. 74-92.)

The Attorney General, to the present day, has refused to admit what he

already knows or could have found out in less than an hour without leaving his desk.

harrowing litigation. The Magistrate, however, blamed the plaintiff for this delay

and reported that he deserved to be sanctioned for "harass[ing] Dean Mutua,"

"needlessly increas[ing] the costs of this litigation," and "unduly burden[ing] the

court." (SP-A. 88.) That report was not only contrary to common sense, but was

inconsistent with the standards of conduct prescribed for litigants in federal court by

14Mr. Ostrove and Professor were unaware when they filed their objections that Magistrate
had been in attendance as a judge at the final round of the Law School's intramural
moot court competition less than a month before he released his R&R See "A Full House for
Desmond Moot Court, at h!tp ://www. law. buffalo .edu/features/experience/ desm ond-dec l 5 .htrn l
(last visited January 25, 20 l 7). The Code of Conduct for United States Judges, Canon 4, available
on-line at http://www.uscourts.gov/judges-judgeships/code-conduct-u_nited-states-jyggs#~_,
encourages judges to participate in activities as moot courts), but
they should refrain if participation reflects adversely on the court's impartiality.
31
Case 17-38, Document 28, 02/17/2017, 1975441, Page32 of 57

Rule 11. This Court, under the de novo standard of review, should reverse the

District Court's erroneous legal rulings and correct its abuses of discretion.

ARGUMENT

I. THE POLICIES OF THE SUNY BOARD OF TRUSTEES DO NOT


PROHIBIT THE STATE UNIVERSITY OF NEW YORK AT
BUFFALO FROM COMPLYING WITH ABA STANDARD 405(c).

The due process claim in this case cannot be dismissed for failing to establish

the threshold element of a protected federal property interest. That interest is based

not only on Professor Malkan's individual employment contract, but also on the Law

School's rules of general application, which were enacted by a faculty oflaw

professors to comply with the institution's accreditation requirements.

The question before this Court is not simply how the SUNY Trustees' Policies

could be interpreted if the University were writing on a blank slate. It is also how

the University actually does interpret them and has interpreted them for the past

twenty some-odd years. The District Court disregarded the evidence in the record,

which is susceptible to only one meaning. It shows that the University has been

interpreting the SUNY Trustees' Policies since the mid-1990's in the form of

bylaws, policies, certifications, and contracts require due process protections

clinical professors in the Law School. These rules, procedures, and commitments,

American Bar Association, represent the agency's (SlJNY's) interpretation


32
Case 17-38, Document 28, 02/17/2017, 1975441, Page33 of 57

authority to take action under its enabling regulations (the Policies of the Board of

Trustees).

The evidence further shows that the University presented one interpretation of

the SUNY Trustees' Policies to the District Court for the purpose of winning this

lawsuit at the same time that it was presenting the opposite interpretation to the ABA

for the purpose of certifying its compliance with Standard 405(c).

A. The District Court's reading of the SUNY Trustees' Policies was


erroneous as a matter of statutory construction.

The District Court ruled that the following provision of the Policies of the

SUNY Board of Trustees prohibits presumptively renewable term contracts for

clinical professors in the SUNY Buffalo Law School.

4. Renewal ofterm. Except as provided in this Article, term


appointments may be renewed by the chief administrative officer of
the college for successive periods of not more than three years each;
such renewals shall be reported to the Chancellor. No term
appointment, of itself, shall be deemed to create any manner of legal
right, interest or expectancy in any other appointment or renewal.

Id., Art. XI, Title D, 4 (emphasis added). (A2. 487-488.) This interpretation is

erroneous as a matter of statutory construction.

The District Court understood the last sentence to mean that presumptively

renewable term contracts are unconditionally prohibited. It neglected, however, to

apply the maxim that "[ s]tatutes should be construed, if possible, to give effect to

every clause and word." See California Public Employees' Retirement Sys. v.
33
Case 17-38, Document 28, 02/17/2017, 1975441, Page34 of 57

WorldCom, Inc., 368 F. 3d 86, 106 (2d Cir. 2004) (citing Duncan v. Walker, 533

U.S. 167, 174 (2001); Babbitt v. Sweet Home Chapter of Communities for a Great

Or., 515 U.S. 687, 698 (1995)). An accurate reading of the last sentence would

have to give effect to the "of itself" clause. That clause is a condition that modifies

the meaning of the rest of the sentence. Its significance is apparent from the Law

School's rules of general application, particularly the Faculty Bylaws.

The Law School has maintained those rules at least since the enactment of

Standard 405(c) in 1995 in a form that mandates due process rights and a good

cause standard of review for members of its clinical faculty. They expect that the

University's legal commitments will be honored. That is an expectation of renewal.

No clinical professor could possibly expect, after accepting a 405(c)-protected

faculty appointment, that the University would someday be arguing in federal court

that it had approved the Faculty Bylaws in order to placate the Law School's

accrediting agency, but that those rules otherwise have no lawful effect.

B. The SUNY Buffalo Law School enacted its Faculty Bylaws to


implement accreditation standards that are mandatory for its
continuing operation.

This expectation of renewal is lawful for the additional reason that the SUNY

Trustees' Policies confer discretion upon the chief administrative officers of the

University's academic units to make decisions and approve policies in matters of

appointment, evaluation, and promotion that are necessary to satisfy "the operating
34
Case 17-38, Document 28, 02/17/2017, 1975441, Page35 of 57

requirements of the college." See id., Art XI, Title A, 1 (appointment); id., Art

XII, Title A, 2 (evaluation); id., Art. XII, Title B, I (promotion) (A2. 481, 489,

490).

The "operating requirements of the college," in this context, are the ABA

accreditation standards with which the Law School must comply in order to certify

its students for the bar examinations of New York and other jurisdictions. The

applicable ABA Standard, the clinical faculty standard, provides as follows:

A law school shall afford to full-time clinical faculty members a


form of security ofposition reasonably similar to tenure, and
non-compensatory perquisites reasonably similar to those
provided other full-time faculty members. A law school may
require these faculty members to meet standards and obligations
reasonably similar to those required of other full-time faculty
members.

ABA Standards for the Accreditation of Law Schools, Standard 405(c) (emphasis

added). 15 The ABA adopted Standard 405( c) in 1995 to mandate voting rights and

security of employment for clinical professors. In 2005, the ABA added

Interpretation 405(6), which requires presumptively renewable contracts that are at

least five years in length. The phrase emphasized in italics, "a form of security of

reasonably similar to tenure, " is source of the

provided by the Faculty Bylaws and Clinical Faculty Appointments Policy. There is

See Peter A.
15 and Robert R. Kuehn, The Clinical 75
Tenn. L Rev. l 210--223 (2008).
35
Case 17-38, Document 28, 02/17/2017, 1975441, Page36 of 57

no dispute that the Law School's personnel policies for clinical professors were in

compliance with Standard 405(c) throughout the entire term of Professor Malkan's

employment.

In addition, it is mandatory for "the faculty of each college" to prepare and

adopt bylaws, and for these bylaws to be

consistent with and subject to the Policies of the Board of


Trustees ofthe State University ofNew York, the laws of the
State of New York, and the provisions of agreements between
the State of New York, and the certified employee organization
established pursuant to Article 14 of the Civil Service Law.

Policies of the SUNY Board of Trustees, Art. X, 5(b). (A2. 480.) The chief

administrative officer at SUNY Buffalo who is responsible for monitoring the

consistency of the Faculty B)rlavvs vvith the S-U:i'JY rfrustees' Policies is none other

than the state official to whom former-Dean Mutua reported, President Satish K.

Tripathi. See id., Art. IX, Title A, 3. (A2. 477.)

The Faculty Bylaws provide that before a clinical professor may be dismissed,

the entire faculty shall deliberate and vote on a recommendation to the Dean. Id. at

III.E.4. 16 (A2. 421-422.) The Clinical Faculty Appointments Policy, which was

enacted form on l\tlarch 20, 2009, implements process faculty

15The Bylaws the Faculty the SUNY Buffalo Law School are posted on-line at
http://www.law.buffalo.edu/infoStaff/faculty_Bylaws.html (last amended on March
visited 25, 2017). The regarding due process procedures clinical nrcffe,:sor
are exactly the same, as they were during the 2008-2009 academic year.
36
Case 17-38, Document 28, 02/17/2017, 1975441, Page37 of 57

review that prescribed by the Faculty Bylaws. (A2. 433-437.) This process is

mandatory.

Former-Dean Mutua served the notice of non-renewal on August 28, 2008,

and then proceeded to ignore the mandate of the Faculty Bylaws throughout the

entire 2008-2009 academic year. He kne\v that Professor Malkan was demanding

his right to due process, but he biocked the Grievance Committee from reporting to

the faculty. He never relented and Professor Malkan's tenn appointment expired of

its own accord on August 3 1, 2009.

C. The State University of New York at Buffalo has never taken the
position that the SUNY Trustees' Policies prohibit its compliance
with ABA Standard 405( c).
A ~ ,"1 ~ 1"' , i1 , 11 T 'l 1 1 1 1 AA!""/ '._ 1" ,
f\gam, mere 1s no mspme mm me Law ~cnoo1 naa "+UJlCJ-compnam

procedures in place for clinical renewals throughout the relevant time frame, that

academic year of 2008-2009. The other two clinical professors whose contracts

were scheduled to expire on the same day as Professor Malkan's, August 31, 2009,

were reviewed by the faculty in a meeting called by former-Dean Mutua in accord

on April 2009. (A2. 426.)

Professor Tony Szczygiel, who made the referral on behalf of the candidates,

"[t]he wiU asking for you of

37
Case 17-38, Document 28, 02/17/2017, 1975441, Page38 of 57

your committee before the Dean decides on such renewals. "17 (A2. 425.) Former-

Dean Mutua reported to then-Provost Tripathi that the vote had been taken under the

Law School's regularized process for clinical renewals, and asked for his

endorsement. (A2. 427, 428.) This was exactly the process that was due Professor

Malkan before the end of his contract term and the process that then-Dean l\!Iutua

prevented him from receiving.

During that same semester, former-Provost Tripathi and then-Dean Mutua

certified to the ABA Section on Legal Education that the Law School was in

compliance with Standard 405(c). This certification took the fonn of the Self Study

Report, approved by the faculty on January 21, 2009 and revised on March 2, 2009.

Section on Legal Education issued its Findings of Fact and voted to approve the

SUNY Buffalo Law School's application for reaccreditation. (A2. 405.)

The ABA's Findings of Fact were based on the Law School's Self Study

Report and included the following paragraphs:

(48) The Law School recently adopted a new Clinical Faculty


Appointment Policy. The policy provides for the initial appointment
of non-tenure-track clinical faculty who are eligible
renewable appointments, as well as for the promotion of
associate and full clinical professor and for a presumption of

The Promotion and Tenure (P&T) Committee is convened as the Committee on Clinical
17

and Renewal when it is considering the reappointments


This name-change was adopted in a revision to the Faculty Bylaws in the spring of 2009.
38
Case 17-38, Document 28, 02/17/2017, 1975441, Page39 of 57

renewability once a person achieves the rank offull clinical


professor.

(49) The Policy also states that the Clinical Director will make
recommendations for reappointment to the Committee on Clinical
Promotion and Renewal which, in tum, will make recommendations
to the Dean.

(50) The Policy expressly provides that: "[i]n cases where the
issue is the performance of the Clinical Professor, the Dean shall
base a decision not to renew on clear evidence of a failure to
maintain the demonstrated ability established in the prior reviews and
recommendations in the promotion and renewal process."

(A2. 406.) (emphasis added).

Finally, on December 10, 2009, the Law School enacted a "Policy on

Appointment and Retention of Legal Writing Faculty" with the following provision:

"Reappointment to subsequent three year contracts shall proceed in the same manner

as the first reappointment. It is expected that, absent unusual circumstances, the

appointment will be renewed for an additional three year term." (A2. 382.)

(emphasis added). That is an expectation of renewal, put into place by the Law

School the semester after Professor Malkan's departure. 18 These documents support

only one conclusion - that the Attorney General's interpretation of the SUNY

Trustees' Policies, which is the subject of this appeal, was an academic exercise

18On January 20 l 7, the Law School posted openings teaching positions in the "LA WR"
program with "an assumption that at least one subsequent three-year appointment will follow. The
possibility of renewing these appointments after the initial five-year period also is assumed." See
"SUNY Buffalo Job Posting" at http://www.thefacultylounge.org/20 l 7/0 I/~!m.Y-buffalo-lecturer-
:.c."-'-"'"'-'-"~=-"="'-=""""'""~'~=-"- (emphasis added). That is an

39
Case 17-38, Document 28, 02/17/2017, 1975441, Page40 of 57

conceived for the one-time purpose of providing a defense for the University and

former-Dean Mutua.

II. THE DISTRICT COURT ABUSED ITS DISCRETION BY


GRANTING THE ATTORNEY GENERAL'S CROSS-MOTION FOR
RULE 11 SANCTIONS.

The Attorney General was required by Rule 1 l(b) of the Federal Rules of

Civil Procedure to inquire into the allegations of his client's perjury in a manner that

was "reasonable under the circumstances." 19 At the time the Attorney General made

his motion for summary judgment in this case, he k.'1ew or should have known that

his client, former-Dean Mutua, had twice falsely testified for the purpose of

perpetrating a fraud on the court. When he gave his false testimony for the first

time, at a hearing of the Public Employment Relations Board (PERB), he intended to

establish that he had a legitimate business reason for removing Professor Malkan

from the faculty and terminating his employment with the University. When he

gave his false testimony for the second time, at his deposition in the District Court,

19 In addition, the Rules of Professional Conduct provide that an attorney must reasonable
remedial measures upon learning of a client's false testimony.
If a lawyer, a lawyer's client, or a witness has offered material evidence and the
lawyer comes to know of its falsity, the lawyer shall take reasonable remediai
measures, including, if necessary, disclosure to the tribunal. The lawyer may
refuse to offer evidence, other than the testimony of a defendant in a criminal
that the lawyer reasonably is false,
ld at R. 3 inherent powers of the federal courts authorize to
before them in order to redress violations of the ethical
their respective state jurisdictions. See In re Snyder, 472 U.S. 634, 648 n.6

40
Case 17-38, Document 28, 02/17/2017, 1975441, Page41 of 57

he intended to establish that Professor Malkan had already received whatever

process he was due when the P&T Committee voted to recommend his dismissal.

The only conclusion that the Attorney General could have drawn from the

evidence available to him on June 7, 2014, the day he moved for summary

judgment, was that his client was determined never to allow Professor 1\falkan to

receive a fair hearing, either predeprivation or postdeprivation. Instead of taking

reasonable remedial measures to protect the integrity of the judicial process, as

required by the Rules of Professional Conduct, he made a dispositive motion to end

the case before his client could be called to testify again.

A. The District Court failed to apply the objective standard of Rule


11 to the issue of whether the Attorney General had knowledge

1. The Rule 11 definition of knowledge. - Knowledge is determined, for the

purposes of applying Rule 11, by the objective standard of what a competent and

prudent attorney must be presumed to know about the facts and circumstances of his

pleadings and arguments. "The mental state applicable liability for Rule 11

sanctions initiated by motion is objective unreasonableness." In re Pennie &

323 F. 3d 86, 91 (2d Cir. 2003). the

's argument that the

by one v.

l he that or
Case 17-38, Document 28, 02/17/2017, 1975441, Page42 of 57

suspicions that a \Vitness is lying are insufficient to meet the actual knowledge

standard." (SP-A. 81.) That case dealt with perjury by a third that was

reported by the client to his attorney .2 The Magistrate extended Doe to mean that

even if an attorney subjectively believes that his own client has been lying, he no

duty to do anything other than waiting to see whether client will confess to him.

This interpretation turned the objective standard of Rule 11 upside-down.

The fundamental premise of Rule 11 is that attorneys must verify their facts in
,,
statements to the Court, or

in a manner that is "reasonable under the circumstances." See Fed. R. Civ. P. l l(b).

Only after they have followed the directive of Rule 11 may they conclude that they

amended the Federal Rules of Civil Procedure to mandate that the standard of

objective reasonableness must henceforth be applied by the district court to Rule 11

motions. The Supreme Court, in 1991, held that the objective standard must be

applied to both the attorney and the client for papers they sign in support of a motion

for summary judgment.

As originally drafted, Rule 11 set out a subjective


standard, the Advisory Committee determined that this

20The Attorney in error, maintained that Doe is authority the


"Doe does not support the proposition that a lawyer's 'actual knowledge' of a client'
false is by an objective rn fact, to the it supports the
proposition that it is judged by a subjective standard, that 'actual knowledge."'
42
Case 17-38, Document 28, 02/17/2017, 1975441, Page43 of 57

standard was not working. See Cooter & Gell, 496 U.S., at
392-393. Accordingly, the Committee deleted the subjective
standard at the same time that it expanded the rule to cover
parties. See Wright & Miller 1335, at 58-60. That the
Advisory Committee did not also amend Rule 56(g) hardly
matters. Rather than fashion a standard specific to summary
judgment proceedings, the Committee chose to amend Rule
11, thereby establishing a more stringent standard for all
affidavits and other papers. Even if we were convinced that a
subjective bad faith standard would more effectively promote
the goals of Rule 11, we would not be free to implement this
standard outside of the rulemaking process ....
Giving the text its plain meaning, we hold that it imposes
on any party who signs a pleading, motion, or other paper-
whether the party's signature is required by the Rule or is
provided voluntarily-an affirmative duty to conduct a
reasonable inquiry into the facts and the law before filing, and
that the applicable standard is one of reasonableness under the
circumstances.

549-551 (1991) (O'Connor, J.). Cf In re Pennie & Edmonds LLP, 323 F.3d at 9L

2. Rule 11 as applied to summary judgment motions. -An attorney may not

make a motion for summary judgment based on a client's false testimony. "These

sworn statements are more than mere condusory allegations subject

as evidence in deciding a summary judgment motion.'' v.

F.3d 289 2003).

anything other than differing recollections a meeting of tenured faculty on


43
Case 17-38, Document 28, 02/17/2017, 1975441, Page44 of 57

28, 2006, [and therefore] no basis for the accusation of perjury against Dean Mutua."

(SP-A. 79.) The issue before the Court, however, was not whether the evidence

could sustain a conviction for perjury under the standard of guilt beyond a

reasonable doubt. It was whether that evidence required the Attorney General, under

Rule 11, to conduct an inquiry into the reliability of his client's testimony before

filing a Statement of Undisputed Facts based on that testimony.

The Attorney General knew that every witness with personal knowledge of

the facts was a member of the faculty who would have been obliged to answer him

promptly and truthfully. That includes the former-Vice Provost Lucinda M. Finley,

across whose desk Professor Malkan's reappointment had passed, and the present-

Interim Dean James ,A. Gardner, \Vho \Vas the Attorney General's client in the

defamation case in Erie County Supreme Court. (A2. 438-460.) Neither of them

has ever stated in any proceeding that former-Dean Mutua has been telling the truth.

In addition, the Magistrate reported that "the proper forum for challenging

Professor Mutua's credibility and resolving questions regarding the accuracy of

Professor l\1:utua's recollection is not a collateral proceeding for sanctions against

counsel, but a trial." (SP-A. 83 .) A successful motion for

however, would have foreclosed that possibility. The injustice would then have

been irreversible. That is why it was a further violation of Rule 11 the

44
Case 17-38, Document 28, 02/17/2017, 1975441, Page45 of 57

General to attempt to put his client's false testimony beyond the reach of any further

judicial scrutiny with a retaliatory Rule 11 cross-motion.

B. The District Court's assessment of the evidence was clearly


erroneous.

The motion for Rule 11 sanctions against the Attorney General was based on

the following assertion in paragraph 29 of his Statement of Undisputed Facts:

There is sharp disagreement regarding what occurred at the


[P&T] meeting and what exactly the Committee voted on.
Malka.11 and several third party witnesses deposed in this
action claim that a vote was taken on whether the
Committee should recommend to the Dean that he be
promoted to full Clinical Professor, and that the vote was in
his favor. Defendant Matua [sic], on the other, recalls that
the meeting quickly devolved to a discussion of whether
Malkan should continue as Director of the Research and
Writing Program, and that a vote was eventually taken on
whether the Committee should recommend that the Dean
offer Malkan a terminal one year appointment, and that vote
came out in Malkan 's favor.

(A2. 412-413.) (emphasis added). This Statement would have been truthful only if

Professor Malkan had applied to be terminated on one-year's notice.

The truth, which was affirmed by every witness except former-Dean Mutua,

is that Professor Malkan had applied for reappointment and that the vote

recommending his promotion and tenure "came out in Malkan 's favor. " The

violated Rule I 1 by a Statement of Undisputed

the whole truth with a half-truth that was calculated to

45
Case 17-38, Document 28, 02/17/2017, 1975441, Page46 of 57

He did this despite the evidence provided by the two former-Vice Deans,

Susan Mangold and Dianne Avery, who submitted their handwritten notes of the

vote count as Exhibits 1and17 at their depositions on November 20 and 21, 2013.

-~-~ ~---~--~k--n--------~~-~n--ft!!"""'m!!!'i!"'"""'llli

-------w---------------~-----------:-------------------1! - Jr-i
I TTi10

46
Case 17-38, Document 28, 02/17/2017, 1975441, Page47 of 57

Excerpt from Record, notes of Professors Mangold and Avery, Al. 217, 222.

One witness alone, former-Dean Mutua, came with a completely different story

which he repeated false testimony at PERB three and a half years earlier.

The was names

witnesses might be capable of his He

47
Case 17-38, Document 28, 02/17/2017, 1975441, Page48 of 57

claiming that this interrogatory was "not reasonably calculated to lead to the

discovery of admissible evidence." (A2. 390.) He knew then and knows now that

there is no evidence anywhere in existence that could support a finding that former-

Dean Mutua has ever told the truth about Professor Malkan's faculty appointment.

That is not a "sharp disagreement" between witnesses. It is a unanimous

consensus with one person lying. The only conclusion that the District Court could

have drawn from these facts and circumstances was that the Attorney General

moved for summary judgment on a Statement of Undisputed Facts that he could not

possibly have failed to know had been corrupted by his client's perjury.

C. The District Court's assessment of the materiality of former-


Dean Mutua's false testimony was clearly erroneous.

The Magistrate reported to the District Court that Professor Malkan had no

basis for complaint because, regardless of whether former-Dean Mutua lied under

oath about the vote of the P&T Committee, he had received the full term of

employment conferred by the President's letter of appointment.

Given that there was never any dispute that Mr. Malkan was
promoted to the position of Clinical Professor, the Court can
fathom no reason to fixate on Professor Mutua's recollection of
this meeting other than to harass Professor Mutua, needlessly
the costs of this litigation and unduly burden the
Neither plaintiff nor his attorney has ever articulated how
plaintiffs claim would be strengthened Professor Mutua's
recollection aligned with the recollection of the other faculty
at on nor

48
Case 17-38, Document 28, 02/17/2017, 1975441, Page49 of 57

have they articulated how Professor Mutua's differing


recollection compromises plaintiff's claim.

(SP-A. 88.) This interpretation of the facts was clearly erroneous. The question

before the District Court was not whether Professor Malkan had received a faculty

appointment from the President, but whether he had received a legitimate faculty

appointment from the President. The gist of the perjury was that Professor Malkan

had no right to due process in the Law School because his faculty appointment had

been fraudulently obtained. The fact to which former-Dean Mutua falsely attested

was not only material, but could have been dispositive.

The false testimony was also defamatory and would likely prejudice any

finder of fact against Professor Malkan.2 1 The former-Dean did not simply testify

about the vote count, but also described the P&T Committee meeting in dramatic

detail. He claimed that the faculty was filled with "angst" about the terrible state of

the legal writing program, and that "I have not been in many faculty meetings where

emotions ran so high." (A2. 340.) He further recalled that "the discussion ... sucked

the oxygen out of any other issue that could have been discussed," and that "people

talked about it for days." (A2. 3 I 5-316.)

21The Public Employment Relations Board denied the UUP's request that it strike of
Mutua's testimony concerning Malkan's job performance as prejudicial and defamatory.
"Regardless of hmv UUP characterizes that testimony, it is relevant to the AL.r's alternative
determination the motivation for the adverse action taken
141.)
49
Case 17-38, Document 28, 02/17/2017, 1975441, Page50 of 57

Finally, these vivid recollections of a faculty meeting at a distance of seven

and a half years are compelling evidence that former-Dean Mutua's false testimony

was anything but an honest mistake. His intention was to avail himself of the

credibility of the Dean's Office for the purpose of perpetrating a fraud on the District

Court, just as he had already done in the hearing of the Public Employment

Relations Board three and a half years earlier.

D. The District Court failed to assess whether the Attorney General's


defense of former-Dean Mutua is in violation ofN.Y. Public
Officers Law 17-19

The mandate ofN.Y. Public Officers Law 17-19 did not authorize the

Attorney General to represent former-Dean Mutua either in the court below or on

this appeal. The public policy represented by that statute is based on the practical

consideration that exposure to litigation risk may be a disincentive to public service.

The mandate conferred by the statute on the Attorney General was enacted in the

public interest to neutralize this disincentive. See Zimmer v. Town of Brookhaven,

247 A.D.2d 109, 110-112, 678 N.Y.S.2d 377 (2d Dep't 1998).

serving the State that they serve. The caveat is that this presumption is subject to

of a the

thus between the "attorney" and "client," limits the mandate the

50
Case 17-38, Document 28, 02/17/2017, 1975441, Page51 of 57

statute. This limitation on the Attorney General's mandate is consistent with the

ethical consideration that organizations act through their agents who may lose sight

the distinction between their personal goals and the goals of their employers.

Rule l. l 3(b) of the Rules o.f Professional Conduct expressly states that when an

employee is engaged in action that

(i) is a violation of a legal obligation to the organization or a


violation of law that reasonably might be imputed to the
organization, and (ii) is likely to result in substantial injury
to the organization, then the lawyer shall proceed as is
reasonably necessary in the best interest of the organization.

These two elements of Rule 1.13 impose a heightened responsibility on attorneys in

government service because "in a matter involving the conduct of government

officials, a government la\\Jer may have greater authority under applicable la\x1 to

question such conduct than would a lawyer for a private organization in similar

circumstances." Id., Comment [9].

In addition, Rule 1.13 specifies a multi-factor test for lawyers who are

assessing a conflict of interest between an organization and a rogue employee.

These factors include "the seriousness of the violation and consequences[,] the

responsibility the organization and the apparent person

involved .... " Comment . Finally, "[u]nder Rule l .O(k), a lawyer's knowledge

can be inferred from circumstances, and a lawyer cannot the obvious." See

factors and this knowledge should have told


51
Case 17-38, Document 28, 02/17/2017, 1975441, Page52 of 57

Attorney General that he was dealing with a conflict of interest of the highest order

of magnitude.

Most recently in Lancaster v. Inc. Village of Freeport, 22 N.Y.3d 30, 38-39,

978 N.Y.S.2d 101 (2013), the Court of Appeals recognized that the Attorney

Generai's duty to defend state officials is premised on "[t]hefull cooperation of the

employee in the defense of such action or proceeding ... and in the prosecution of

any appeal. Id. at 35. (quoting N.Y. Pub. Off. Law 18 (5) (ii)) (emphasis in

original). In the Lancaster case, the duty to cooperate meant that the defendants had

a duty to sign off on a settlement offer that had been negotiated for them by the

Village. The Court of Appeals inferred their duty to agree to the settlement from the

In the present case, former-Dean Mutua has been frustrating the State's efforts

to defend this case in a lawful and ethical manner ever since it began. His attitude

since March 23, 2012, the day the complaint was filed, has been one of"willful and

avowed obstruction." Id. at 39. His refusal to comply with the Western District's

ADR plan, in defiance of Judge Arcara's order to appear on March 1, 2013, was just

one in a series of escalating acts disrespect to cooperate

ultimately took the form of his acts of perjury the District Court on December 19,

2013 and June 26, l and the disappearance thin air" Professor Malkan's

P&T after it been subpoenaed from the Dean's 1.) The


52
Case 17-38, Document 28, 02/17/2017, 1975441, Page53 of 57

Attorney General disregarded the unrefuted evidence that the Dean of the SUNY

Buffalo [,aw School, his client, had succeeded in subverting the judicial process at

the Public Employment Relations Board and was seeking to do so again, with his

assistance, in the District Court (A. I 176-299.)

Former-Dean Mutua has been protected throughout this litigation not only by

the Attorney General of New Yark, but also by the President of SUNY Buffalo, who

(i) declared to the District Court that he had never before heard of the perjury

allegations sworn to by every member of the tenured faculty who has spoken, (ii)

continued to block any internal investigation in the more than three years that have

passed since he signed that Declaration, (iii) released the former-Dean, while these

motion_s V"v'ere pending, from his duties in the Lavv School for a three-semester

sabbatical at full pay in Europe and Africa, 22 and (iv) authorized a persona non

gratis letter banning Professor Malkan from campus, which conveniently served the

purpose of discrediting the former-Dean's accuser. (A2. 443, iii! 14-15) (A.2 455-

22During the last ten months of paid leave, former-Dean Mutua was receiving a second foll-
time salary as a consultant for the World Bank in Washington, D.C. See "UB Still Paying Former
Law School Dean Makau Mutua Full Salary Despite New Job," UB Spectrum, March 9, 2016,
avai !able on-line at httpj/v.r:JY_>y. ubspectrym.com/article/2016/03/ub-stil l-riaying-former-la".Y.:.
school-de~J1-makau--mutua-ful1 .. sala1y-despite-his-new-job (last 25, 201 The
State of New York posts his annual salary (excluding any remuneration from the UB Foundation)
as in 20 I 5 and 164 in 2016. See "See Through " available on-line at
http://seethroughnj'..netfilmQ!l (search "name," "Mutua, Makau W.

53
Case 17-38, Document 28, 02/17/2017, 1975441, Page54 of 57

456). The Attorney General, after these scandalous and unlawful activities came to

his attention, had no legal basis for continuing with this defense.

Finally, in addition to the statutory limitations on the scope of the Attorney

General's mandate to defend, the former Code of Professional Responsibilit/3 stated

the ethical consideration that must be taken into account when the state is engaged in

civil litigation against a private individual.

EC 7-14. A government lawyer who has discretionary


power relative to litigation should refrain from instituting or
continuing litigation that is obviously unfair. A government
lawyer not having such discretionar; power who believes
there is lack of merit in a controversy submitted to the
lawyer should so advise his or her superiors and
recommend the avoidance of unfair litigation. A
government lawyer in a civil action or administrative
proceeding has the responsibility to seek justice and to
develop a full and fair record, and should not use his or her
position or the economic power of the government to harass
parties or to bring about unjust settlements or results.

This provision still speaks to a basic principle of justice as well as to the

fundamental duties of the Attorney General to the citizens of New York State. His

conduct of this litigation cannot be reconciled with his responsibility for preserving

the public's trust in the legal profession and the integrity of the judicial process.

was Rule,:; 011

54
Case 17-38, Document 28, 02/17/2017, 1975441, Page55 of 57

CONCLUSION

For the foregoing reasons, the Plaintiff Appellant requests this Court to

reverse the decision of the District Court in its entirety and remand with instructions

(1) to award summary judgment, sua sponte, pursuant to Fed. R. Civ. Pro. R. 56 (f),

to Jeffrey Malkan on the issue ofliability, (2) to lift the verbal sanctions imposed on

Frederic D. Ostrove, Esq. and the contempt of court citation imposed on Jeffrey

Malkan, (3) to impose appropriate sanctions and contempt of court citations pursuant

to Fed. R. Civ. Pro. R. 11 and R. 56 (h) on AAG David J. Sleight, Esq., AAG

Christopher L. Boyd, Esq., and Defendant-Appellee Makau W. Mutua, and (4) to

provide such other and further relief as the Court deems just and proper.

Dated: February 14, 2017


Saint James, New York

Respectfully submitted,

.~1 I
\'
Jeffrey Malkan
Plaintiff-Appellant pro se
12 Valleywood W.
Saint James, NY 11780
( 631) 662-6668
j effrey .rnalkan(~outlook.com

55
Case 17-38, Document 28, 02/17/2017, 1975441, Page56 of 57

Certificate of Compliance with Type-Volume Limit, Typeface Requirements,


and Type-Style Requirements

1. This document contains 13, 15 9 words, excluding the parts of the document
exempted by Fed. R. App. P. 32(f). It complies with the word limit of Fed. R. App.
P. 6.

2. This document has been prepared in a proportionally spaced typeface using


]\;ficrosoft Word in Times New Roman, fourteen point type. It complies with the
typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of
Fed. R. App. P. 32(a)(6).

I
I
I
!sl (/ I
Jeffrey M'alkan
Plaintiff-Appellant prose
12 Valleywood Ct. W.
Saint James, NY 11780
(631) 662-6668
jeffrey.malkan@outlook.com

Dated: February 14, 2017


Saint James, New York

56
Case 17-38, Document 28, 02/17/2017, 1975441, Page57 of 57

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


CERTIFICATE OF SERVICE

Malkan v. Mutua, Docket Number 17-38-cv

I, Jeffrey Malkan, hereby certify under penalty of perjury that on January 30, 2017,
1 filed a copy of Brief of Plaintiff-Appellant and Appendix of Plaintiff-Appellant by
United States Postal Service with the Clerk of the United States Court of Appeals for
the Second Circuit. I further certify that on February 14, 2017, I filed with the Clerk
by United States Postal Service (i) six single-side copies of this Brief with blue
covers, and (ii) three double-sided copies with white covers of the three-volume
Appendix, and (iii) an unbound copy of each document for electronic filing or office
use. I also served bound copies of each document on the two parties listed below.

Jeffrey W. Lang, Esq.


Office of the Solicitor General
120 Broadway
New York, N.Y. 10271

Frederic D. Ostrove, Esq.


Leeds Brown Law, PC
One Old Country Road Suite 347
Carle Place, New York 11514

Jeffrey ~AU~<
A

Plaintiff-Appellant prose
12 Valleywood W
Saint James, N.Y. 11780
(631) 862-6668
jeffrey.malkan@outlook.com

Febrnary 14, 2017


Saint James, New York
57