Professional Documents
Culture Documents
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
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
i\rgument. ....................................................................................................... 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
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
Conclusion .. 0
2
Case 17-38, Document 28, 02/17/2017, 1975441, Page3 of 57
TABLE OF AUTHORITIES
Constitutional Provisions
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
Statutes
Regulations
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
"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
"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
"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
Case 17-38, Document 28, 02/17/2017, 1975441, Page5 of 57
Jurisdictional Statement
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.
1. Did the District Court commit an error of law by ruling that an ABA-
the Policies of the SUNY Board of Trustees, from complying with a mandatory
2. Did the District Court abuse its discretion by declining to impose sanctions
contains unrefuted testimony and documentary evidence from every tenured and
emeritus law professor whose testimony has been heard of his client's multiple
5
Case 17-38, Document 28, 02/17/2017, 1975441, Page6 of 57
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
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. #
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.
6
Case 17-38, Document 28, 02/17/2017, 1975441, Page7 of 57
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
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
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
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
Between October 14, 2014 and Febmary 2015 the parties exchanged
messages regarding the Rule 11 motion. (A2. 354.) Mr. Ostrove informed the
undisputed fact. The Attorney General responded by serving notice that he intended
On April 14, 2015, Mr. Ostrove filed his Rule 11 motion on behalf of
" On July 15, 2015, Mr. Ostrove moved to withdraw from the case.
(Dkt. #80.)
defendant's anticipated motion for sanctions to the extent that such motion
"' On July 23, 2015, the Attorney General filed his Rule 11 cross-motion
Malkan, (ii) that Rule 1 l monetary sanctions of $10,000 should be imposed on Mr.
#96, 97) (SP-A. 11 ). Although he stated that respect the integrity of the judicial
8
Case 17-38, Document 28, 02/17/2017, 1975441, Page9 of 57
he issued concurrently.
Upon the objections of Professor Malkan and Mr. Ostrove to the Report and
of briefs and declarations. On November 11, 2016, Judge Arcara transferred the
summary judgment motion, and found Mr. Ostrove responsible for professional
misconduct, retaining the verbal sanctions, but declining to impose the $10,000
.l{elated Litigation
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
November 13, 2009, which was within six months after the date the contract expired.
challenged the first on the grounds that an anticipatory breach of contract could not
9
Case 17-38, Document 28, 02/17/2017, 1975441, Page10 of 57
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
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
10
Case 17-38, Document 28, 02/17/2017, 1975441, Page11 of 57
State of New York, No. U-288236 (N.Y. Pub. Emp. Rel. Bd., November
the Taylor Law, N.Y. Civ. Serv. Law, 200-214, at the Public
faculty and staff stating that he had sought protection from the State
The courts in both these matters, as they have done so far in Court
11
Case 17-38, Document 28, 02/17/2017, 1975441, Page12 of 57
Report and Recommendation in this case as well as the ruling of the Erie County
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
State. "While the legislature may elect not to confer a property interest in [public]
available on-line at
201
12
Case 17-38, Document 28, 02/17/2017, 1975441, Page13 of 57
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
process was due before the plaintiff could be deprived of that " Green
On the first element, the property interest may be based either on express
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
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}
a must be a
some
13
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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).
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
They further provide that an attorney practicing in federal court must certify that all
" on
so arc on or a
reviewed nova. See Sheppardv. Beerman, 317 F.3d 351, 354 Cir. 2003).
Whoever--
14
Case 17-38, Document 28, 02/17/2017, 1975441, Page15 of 57
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
Statement of Facts
Faculty members at the rank and title of clinical professor are initially
appointed
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
University, who has the sole authority under the SUNY Trustees' Policies to
make faculty appointments. It states the term of the appointment, the title
(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
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.
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
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.)
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,
Nils Jr., and four of the tenured faculty members who had been present and
Robert Steinfeld) testified the Promotion and Tenure Committee had voted
to approve Professor Malkan's reappointment to the rank and title of full clinical
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
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
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
18
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(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
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
19
Case 17-38, Document 28, 02/17/2017, 1975441, Page20 of 57
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
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
20
Case 17-38, Document 28, 02/17/2017, 1975441, Page21 of 57
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
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
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
(CCPR), which is a committee of the whole tenured faculty at the rank of full
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.
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
Professor Ewing informed Professor I\rfalkan that the grievance could not
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
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
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.)
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
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
On March 31, 2010, Dean Mutu a, on direct examination, testified that the
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
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
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
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
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
25
Case 17-38, Document 28, 02/17/2017, 1975441, Page26 of 57
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
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
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
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
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
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.
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
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
SUNY Buffalo, for whom ABA Standard 405(c) mandates security of employment
issue requires the Court to determine the meaning of the clause "of itself" in the
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
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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
fails to maintain its accreditation, it will be unable to certify its graduates to sit for
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
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,
The Magistrate, for his part, (i) reported that he did not find basis an
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
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
"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
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
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
clinical professors in the Law School. These rules, procedures, and commitments,
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
The District Court ruled that the following provision of the Policies of the
Id., Art. XI, Title D, 4 (emphasis added). (A2. 487-488.) This interpretation is
The District Court understood the last sentence to mean that presumptively
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
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
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.
This expectation of renewal is lawful for the additional reason that the SUNY
Trustees' Policies confer discretion upon the chief administrative officers of the
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
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
least five years in length. The phrase emphasized in italics, "a form of security of
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.
Policies of the SUNY Board of Trustees, Art. X, 5(b). (A2. 480.) The chief
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.
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
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.
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
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,
Professor Tony Szczygiel, who made the referral on behalf of the candidates,
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
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
The ABA's Findings of Fact were based on the Law School's Self Study
The Promotion and Tenure (P&T) Committee is convened as the Committee on Clinical
17
(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."
Appointment and Retention of Legal Writing Faculty" with the following provision:
"Reappointment to subsequent three year contracts shall proceed in the same manner
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.
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
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
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
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
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.
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
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
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
make a motion for summary judgment based on a client's false testimony. "These
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
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
however, would have foreclosed that possibility. The injustice would then have
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
The motion for Rule 11 sanctions against the Attorney General was based on
(A2. 412-413.) (emphasis added). This Statement would have been truthful only if
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
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.
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.
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.
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
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
(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
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
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
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
The mandate ofN.Y. Public Officers Law 17-19 did not authorize the
this appeal. The public policy represented by that statute is based on the practical
The mandate conferred by the statute on the Attorney General was enacted in the
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
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
In addition, Rule 1.13 specifies a multi-factor test for lawyers who are
These factors include "the seriousness of the violation and consequences[,] the
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
Attorney General that he was dealing with a conflict of interest of the highest order
of magnitude.
978 N.Y.S.2d 101 (2013), the Court of Appeals recognized that the Attorney
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
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
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
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.
the ethical consideration that must be taken into account when the state is engaged in
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.
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
provide such other and further relief as the Court deems just and proper.
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
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.
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
56
Case 17-38, Document 28, 02/17/2017, 1975441, Page57 of 57
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 ~AU~<
A
Plaintiff-Appellant prose
12 Valleywood W
Saint James, N.Y. 11780
(631) 862-6668
jeffrey.malkan@outlook.com