Malkan v. Mutua Defendant-Appellee's Brief, Filed 5-3-2017

Case 17-38, Document 39, 05/03/2017, 2025707, Page1 of 54
17-38-CV
United States Court of Appeals
For the Second Circuit
JEFFREY MALKAN,
Plaintiff-Appellant,
-against-
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 OF DEFENDANT-APPELLEE MAKUA W. MUTUA
ERIC T. SCHNEIDERMAN
Attorney General
of the State of New York
BARBARA D. UNDERWOOD Attorney for Defendant-Appellee
Solicitor General The Capitol
VICTOR PALADINO Albany, New York 12224-0341
JEFFREY W. LANG (518) 776-2027
Assistant Solicitors General
of Counsel Dated: May 3, 2017
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES .....................................................................iii

PRELIMINARY STATEMENT ................................................................. 1
ISSUES PRESENTED .............................................................................. 2
JURISDICTIONAL STATEMENT ........................................................... 3
STATEMENT OF THE CASE .................................................................. 3
A. Facts ........................................................................................ 3
1. The Trustees Policies Governing Term
Appointments at SUNY ........................................ 3
2. Procedures for the Promotion and
Termination of Clinical Professors at the
Law School ............................................................ 5
3. Malkan is Appointed to a Three-Year Term,
and His Term is Renewed ..................................... 7
4. Malkan is Promoted and Reappointed to a
Third Term ............................................................ 8
5. Mutua Decides Not to Renew Malkans
Appointment to a Fourth Term .......................... 14
6. Malkan Pursues Challenges to His Non-
Renewal in Several Forums ................................ 16
B. Proceedings Below................................................................. 18
1. Malkans Complaint ............................................ 18
2. The District Courts Preliminary Rulings .......... 19
3. Mutua Moves for Summary Judgment, and
the Parties Cross-Move for Rule 11
Sanctions ............................................................. 19
i
TABLE OF CONTENTS (cont'd)
PAGE
4. The Magistrates Recommendations on

Summary Judgment and Sanctions ................... 22
5. The District Courts Judgment ........................... 25
STANDARD OF REVIEW....................................................................... 26
SUMMARY OF THE ARGUMENT ........................................................ 27
ARGUMENT
POINT I
MALKANS DUE PROCESS CLAIM FAILS FOR LACK OF A
PROPERTY INTEREST IN A RENEWED TERM APPOINTMENT ................ 29
A. Dean Olsens Letter Could Not Supersede the

Trustees Disclaimer of any Right, Interest or
Expectancy in the Renewal of a Term
Appointment................................................................. 31
B. The Trustees Have Not Acquiesced in any Law

School Policy or Custom of Granting
Presumptively Renewable Term Appointments ......... 34
POINT II
ALTERNATIVELY, MUTUA HAS QUALIFIED IMMUNITY ....................... 40
POINT III
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
DECLINING TO SANCTION MUTUA AND HIS ATTORNEY, AND IN
ADOPTING THE MAGISTRATES VERBAL SANCTIONS AGAINST
MALKAN AND HIS FORMER ATTORNEY ............................................. 42
CONCLUSION ...................................................................................... 47
ii
TABLE OF AUTHORITIES
CASES PAGE
Baden v. Koch,
638 F.2d 486 (2d Cir. 1980) ...................................................... 32, 35
Board of Regents of State Colleges v. Roth,
408 U.S. 564 (1972) ........................................................................ 29
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) ........................................................................ 26
Chu v. Schweiker,
690 F.2d 330 (2d Cir. 1982) ............................................................ 32
Dube, Matter of v. State University of New York,
900 F.2d 587 (2d Cir. 1990) ............................................................ 30
F.D.I.C. v. Great American Ins. Co.,
607 F.3d 288 (2d Cir. 2010) ............................................................ 26
Gaines v. N.Y.S. Div. of Housing and Community Renewal,
90 N.Y.2d 545 (1997) ...................................................................... 34
Gonzalez v. City of Schenectady,
728 F.3d 149 (2d Cir. 2013) ............................................................ 41
Grain Traders v. Citibank, N.A.,
160 F.3d 97 (2d Cir. 1998) .............................................................. 26
Hawkins v. Steingut,
829 F.2d 317 (2d Cir. 1987) ................................................. 32-33, 35
McMenemy v. City of Rochester,
241 F.3d 279 (2d Cir. 2001) ................................................ 29, 33, 37
Pearson v. Callahan,
555 U.S. 223 (2009) .................................................................. 40, 41
Okin v. Village of Cornwall-On-Hudson Police Dept.,
577 F.3d 415 (2d Cir. 2009) ............................................................ 26
iii
TABLE OF AUTHORITIES (contd)
CASES(contd) PAGE
Spavone v. New York State Dept of Corr. Servs.,
719 F.3d 127 (2d Cir. 2013) ............................................................ 40
Star Mark Management, Inc. v.
Koon Chun Hing Kee Soy & Sauce Factory Ltd.,
682 F.3d 170 (2d Cir. 2012) ............................................................ 27
Suarez, Matter of v. Williams,
26 N.Y.3d 440 (2015) ...................................................................... 33
United States v. Sanchez,
969 F.2d 1409 (2d Cir. 1992) .......................................................... 43
FEDERAL STATUTES
28 U.S.C.
1291................................................................................................ 3
1331................................................................................................ 3
1343................................................................................................ 3
42 U.S.C.
1983................................................................................................ 1
FEDERAL RULES AND REGULATIONS
Fed. R. Civ. Pr.
11 ............................................................................................... 45
56 ............................................................................................... 26
56(a) ............................................................................................... 26
W.D.N.Y. Civ. R.
56.1(a)(2) ...................................................................................... 38
STATE RULES AND REGULATIONS
N.Y.C.R.R.
Title 8, Parts 325-343, 400 ............................................................... 3
iv
PRELIMINARY STATEMENT
Plaintiff-appellant Jeffrey Malkan, a former Clinical Professor of
Law at the State University of New York at Buffalo School of Law (the
Law School), brought this action in the United States District Court for
the Western District of New York under 42 U.S.C. 1983 alleging that
former Dean of the Law School Makau W. Mutua violated his due process
rights when Malkans term appointment was not renewed. Malkan also
named as a defendant Charles P. Ewing, Chair of the Law Schools
Faculty Grievance Committee, who handled a grievance that Malkan
filed concerning Mutua.1 Malkan sought compensatory and punitive
damages, the clearing of his personnel file, and reinstatement by the Law
School.
After discovery, Mutua moved for summary judgment on the due
process claim against him, and the parties cross-moved for Rule 11
sanctions. On the magistrate judges recommendation, the district court
(Telesca, J.) granted Mutuas motion for summary judgment, denied
1 Malkan voluntarily dismissed Ewing before the court rendered a final

judgment. (Special Appendix [S.A.] 16.)
Malkans motion for sanctions, and granted Mutuas motion for
sanctions. Although the court declined to adopt the $10,000 monetary
sanction against Malkans former attorney recommended by the
magistrate, it emphasized that the reasons supporting the award were
well-supported by the record and the conduct of Malkan and his former
attorney merited the magistrates verbal sanctions. Malkan now
appeals the district courts final judgment. This Court should affirm.
ISSUES PRESENTED
1. Does Malkans due process claim fail for lack of a property
interest in a renewed term appointment at the Law School?
2. Alternatively, does qualified immunity shield Mutua from
liability on the ground that it was objectively reasonable for Mutua to
believe that his actions did not violate Malkans constitutional rights?
3. Did the district court act within its discretion in declining to
sanction Mutua and his attorney, and in adopting the magistrates
verbal sanctions against Malkan and his former attorney?
2
JURISDICTIONAL STATEMENT
The district court had jurisdiction over this action under 28 U.S.C.
1331 and 1343. Because this appeal is from a final judgment
dismissing Malkans complaint in its entirety, this Court has jurisdiction
pursuant to 28 U.S.C. 1291. The notice of appeal was filed on January
3, 2017, within 30 days of the entry of judgment on December 20, 2016.
STATEMENT OF THE CASE
A. Facts
1. The Trustees Policies Governing Term

Appointments at SUNY
The following facts are undisputed unless otherwise noted. The
State University of New York (SUNY) and its member institutions are
overseen by a Board of Trustees, which has established policies to govern
the administration of SUNY and its members, including the Law School.
(Plaintiffs Appendix Volume II [A.2.] 474; ECF No. 562 at 2.) The
Trustees Policies have been enacted as state regulations. See New York
Codes, Rules and Regulations, Title 8, Parts 325-343, 400. Among other
2 All references to the docket are to 1:12-cv-00236-RJA-HKS.

3
things, the Trustees Policies govern the appointment of employees
within the SUNY system and provide for three types of appointments:
continuing, permanent, andat issue hereterm. (A.2. 480-88.)
Apart from exceptions not relevant here, a term appointment shall be
an appointment for a specified period of not more than three years which
shall automatically expire at the end of that period unless terminated
earlier because of resignation, retirement or termination. (A.2. 487.)
Moreover, term appointments may be renewed by the chief
administrative officer of the college for successive periods of not more
than three years each[.] (A.2. 487.)
The chief administrative officer is defined in the Trustees Policies
as the head of a college. A college is a State-operated institution of
State University of New York. (A.2. 474.) The Law School is not itself a
college, but part of the college of SUNY Buffalo. See ECF 56-1 at 48-49
(listing SUNY member institutions). Thus, the chief administrative
officer of the Law School is the President of SUNY Buffalo (rather than
the Dean of the Law School).
As a general matter, No term appointment, of itself, shall be
deemed to create any manner of legal right, interest or expectancy in any
4
other appointment or renewal. (A.2 488.) If a term appointment is not
renewed upon expiration, an appointee who has served two or more years
must be given 12-months notice before the term expires. (A.2. 488.) Once
notice is given, no further administrative action is required to terminate
the services of term employees, rather, the services of academic and
professional employees having term appointments shall cease
automatically at the end of their specified terms. There shall be no right
to appeal from a nonrenewal of a term appointment. (A.2. 491.)
2. Procedures for the Promotion and Termination

of Clinical Professors at the Law School
The Trustees Policies mandate that the faculty of each college
adopt by-laws, which shall be consistent with and subject to the Policies
of the Board of Trustees of State University of New York[...] (A.2. 480.)
The Law School has adopted by-laws that, among other things, govern
the appointment, promotion and termination of faculty members at the
School. To this end, the Law School By-Laws established a Committee on
Clinical Promotion and Renewal having the power to make
recommendations to the Dean of the Law School concerning faculty
5
members appointed under indefinitely renewable long-term contracts.3
(A.2. 421.) Under the By-Laws, the promotion, grant of tenure, dismissal
or termination of a faculty member appointed under an indefinitely
renewable long-term contract shall be recommended by a majority vote
of the Committee on Clinical Promotion and Renewal assembled in
person. (A.2. 420-21.)
As former Dean Mutua explained, however, the Committee on
Clinical Promotion and Renewal simply had the power to make
recommendations on personnel matters to the Dean of the Law School.
(ECF No. 56-6 at 35.) In those cases where the Dean had already decided
not to renew a term appointee, nothing in the By-Laws required the Dean
to go through the process of seeking the recommendation of the
Committee concerning the appointment.4 (ECF No. 56-6 at 97-98.)
3 Prior to April 2008, such faculty were under the jurisdiction of the
Committee on Promotion and Tenure, which continues to have
jurisdiction over tenured and tenure-track faculty. (ECF 56-7 at 7.)
4Although in his brief (at 21-22), Malkan contends that the Dean of the
Law School may not decide to non-renew a term appointment without
obtaining the recommendation of the Committee on Clinical Promotion
and Renewalthat is the process of which he claims to have been
deprivedin his Rule 56.1 Counterstatement of Material Facts, Malkan
6
As noted above, under the Trustees Policies, if the Dean of the Law
School decides not to renew a term appointment, it expires automatically
upon the expiration of the term. (A.2. 491.) If the Dean recommends
renewal of the term to the President of SUNY Buffalothe chief
administrative officer who makes the final decisionthe Dean forwards
the recommendation to the SUNY Buffalo Provost. (ECF No. 56-6 at 54.)
3. Malkan is Appointed to a Three-Year Term, and

His Term is Renewed
In July 2000, then-Dean of the Law School R. Nils Olsen hired
Malkan as Clinical Associate Professor of Law and Director of Research
and Writing for the 2000-2001 academic year. (ECF No. 63-8 at 10; A.2.
384.) Malkans initial appointment, consistent with the Trustees
Policies, was for three years. (A.2. 384.) Dean Olsens appointment letter
explained that Malkan would have an opportunity for additional three-
year terms. (A.2. 384.) Malkans position as Clinical Associate Professor
was a faculty appointment subject to the rules governing such
appointments, whereas his position as Director of Research and Writing
did not dispute Mutuas statement that such recommendation was not
required. See ECF No. 63-8 at 9-10.
7
was a decanal appointment subject to termination at the Deans
discretion. (ECF No. 63-8 at 10.)
In 2003, Malkans appointment was renewed for a second three-
year term. (ECF No. 56 at 8.)
4. Malkan is Promoted and Reappointed to a Third

Term
A little over a year before Malkans second term was due to expire,
in October 2005, Susan Mangold, Vice Dean for Academics at the Law
School, sought clarification from the SUNY Buffalo Provosts Office
regarding how a change in American Bar Association (ABA) standards
regarding full-time clinical faculty would affect clinical appointments at
the Law School.
The issue concerned a potential conflict between the Trustees
Policies governing term appointments and revised ABA standard 405(c).
On the one hand, ABA standard 405(c) required that law schools afford
full-time clinical faculty a form of security of position reasonably similar
to tenure, which the standard interpreted to mean a separate tenure
track or a program of renewable long-term contracts. (A.2. 380.) A long-
term contract in turn meant at least a five-year contract that is
8
presumptively renewable or other arrangement sufficient to ensure
academic freedom. (A.2. 381.) On the other hand, as already noted, the
Trustees Policies limited term appointments to three years, with no
legal right, interest or expectancy in renewal.
Mangold raised this issue with Lucinda Finley, Vice Provost of
Faculty Affairs at SUNY Buffalo, who conferred with James Jarvis, then
Director of Human Resources at SUNY Buffalo. Jarvis confirmed that the
Trustees limit of three-year terms applied to academic rank faculty
appointments. (ECF No. 56-18 at 2.) After further consultation, Jarvis
concluded that he and the other person with whom he had consulted
couldnt find a resolution to the conflict with the ABA standard because
creating an expectation of a term appointment beyond the three years
would be impermissible under the [Trustees] policies. (ECF No. 56-2 at
43-44.) He relayed his conclusion to Finley. (ECF No. 56-2 at 13.)
Mangold recalls learning at some point that the Trustees Policies limited
term appointments to three years. (ECF 56-13 at 8.)
The following year, on April 28, 2006, Vice Dean Mangold convened
a meeting of the Committee on Clinical Promotion and Renewal to
consider Malkans reappointment and promotion from Clinical Associate
9
Professor to full Clinical Professor.5 Prior to the meeting, certain faculty
members had expressed strong opposition to Malkans continued
directorship of the Legal Research and Writing Program based on what
they viewed as the poor state of the program. (ECF No. 56-14.)
Although all present at the April 28, 2006 Committee meeting who
have been asked for their recollections have said that it was highly
contentious, that the Research and Writing Program was discussed, that
a vote was taken, and that it favored Malkan, there is a difference
concerning the precise nature of the vote. Most of the participants at the
meeting recall that the vote concerned whether Malkan should be
reappointed for a successive term and promoted from Clinical Associate
Professor to full Clinical Professor. (Appendix Volume I [A.1.] 212, 225,
234-54.) Mutua, by contrast, who had not yet been appointed Dean and
attended the meeting as a faculty member, recalls that the vote
concerned whether Malkan should be given a terminal one-year
appointment to serve for an additional year as Director of the Research
and Writing Program. (ECF No. 56-6 at 15-16, 22.)
5 Mangold presided over the meeting because then-Dean Olsen was out
of town. (ECF No. 56 at 9.)
10
Although Malkan makes much of the fact that Dean Mutua is an
outlier on the subject of the votebaselessly accusing him of perjury
the difference is immaterial: it is undisputed that following the vote,
Dean Olsen recommended that Malkan be reappointed to a third three-
year term and promoted to full Clinical Professor, and that these
recommendations were accepted. Mutua does not contend otherwise.
On August 7, 2006, the President of SUNY Buffalo sent Malkan a
letter offering him an appointment in accordance with the Trustees
Policies governing faculty appointments. (ECF No. 56-15.) The attached
data sheet described his title as Clinical Associate Professor6 and the
term as a three-year term extending from September 1, 2006, to
August 31, 2009. (ECF No. 54-11 at 66.) Malkan countersigned the
appointment letter. (ECF No. 54-11 at 66.)
On October 19, 2006, Dean Olsen sent Malkan a letter that
purported to define your contract with the law school. (A.2. 375.) It
stated that his term appointment was intended to comply with ABA
standard 405(c) and that future non-renewals of his term would be
6A second appointment letter was sent in September 2007 reflecting

Malkans promotion to full Clinical Professor.
11
subject to the for cause only removal standard, so that he could only be
denied reappointment for cause such as dishonesty, failure to report to
work or some other equally egregious action.7 This standard was meant
to replicate the terms applied when dealing with tenured faculty and is
intended to ensure academic freedom. (A.2. 375.)
Dean Olsens letter described Malkans appointment as a 5-year
contract. (A.2. 375.) Although the letter recognized that current SUNY
policies only provide for 3-year contract terms, it nonetheless provided
that, until such time as the three-year limit is lifted, the Dean would
provide a two-year administrative extension at the end of every three-
year period; such two-year extensions would be granted routinely. (A.2.
375.)
Mangold and Olsen, who negotiated the contract with Malkan, both
recalled that the three years plus two years structure of the contract
was intended as a work-around to render Malkans appointment
7 The letter also specified that a change in structure or staffing of the

law schools research and writing program would not qualify as good
cause justifying a non-renewal of Malkans appointment. In the event
that Malkans directorship of the program were terminated, he would be
expected to assume a normal teaching load. (A.2. 376.)
12
consistent with ABA standard 405(c). (ECF No. 56-13 at 8-11; ECF No.
56-9 at 6-7.) Malkan similarly described the contract as a way to finesse
the difference between the Trustees Policies and the ABA standard; he
believed that it achieved the same result as a five-year contract. (ECF
No. 56-12 at 20; ECF No. 63-8 at 21.) Dean Olsen recalled that his
proposed work-around was acceptable to the SUNY Buffalo Provosts
Office. (ECF No. 56-9 at 7-8.) The Provost of SUNY Buffalo at the time,
however, denied involvement in any conversations regarding the terms
of Malkans employment. (A.2. 400.)
Dean Olsen nonetheless conceded that he was without power to
supersede the Trustees Policies and that he did not receive an opinion
from SUNY counsel on the legality of his attempted work-around. (ECF
No. 68-2 at 6-7.) Neither Malkan nor Olsen was aware of any other Law
School faculty that had been given a contract with a similar three-year-
two-year structure. (ECF No. 56-12 at 24-25; ECF No. 56-9 at 16.)
On October 16, 2007, the President of SUNY Buffalo sent Malkan
a second appointment letter with the same end date as the Presidents
prior appointment letter (i.e., August 31, 2009), but reflecting his
promotion to full Clinical Professor at a higher salary. (ECF No. 54-11 at
13
69.) The letter stated that Malkans appointment was in accordance with
the Trustees Policies and did not purport to confer any additional rights.
Malkan countersigned the letter. (ECF No. 56-16.)
5. Mutua Decides Not to Renew Malkans

Appointment to a Fourth Term
In 2007, Mutua was appointed Interim Dean of the Law School.
Shortly after his appointment, Mutua reviewed Dean Olsens October 19,
2006 letter to Malkan. He believed that it violated the Trustees three-
year limit on term contracts because the concept of a term contract that
was presumptively renewable upon expiration amounted to extending
the term indefinitely, and was thus an illegitimate grant of tenure by
other means. (ECF No. 56-6 at 38-39.)
On March 12, 2008, Mutua directed Malkan to resign as Director of
the Legal Research and Writing Program. (ECF No. 56-6 at 23-24.)
Because the directorship was a decanal appointment, Mutua was not
required to provide Malkan with any reason for his discharge, and
Malkan continued to teach at the Law School. (ECF No. 56 at 14.) After
Malkan was terminated as director, Mutua asked a faculty member to
reevaluate the Research and Writing Program. Mutua ultimately decided
14
to dismantle the current program and replace it with a new one, and
issued letters of non-renewal to Malkan and the other instructors in the
program. (ECF No. 56 at 14.)
Accordingly, on August 28, 2008, just over a year before the
expiration of Malkans current term, Mutua wrote to inform Malkan that
his three-year term as Clinical Professor ending on August 31, 2009
would not be renewed. (A.2. 383.) Mutua noted that he had considered
the October 19, 2006 letter issued by former Dean Olsen, and concluded
that its description of Malkans appointment as a five-year contract
conflicted with the Trustees Policies. (A.2. 383.) Mutua nonetheless
observed that Dean Olsens letter permitted non-renewal of Malkans
term for cause, and under ABA Rule 405 good cause may include, with
respect to clinical professors, termination or material modification of the
entire clinical program. (A.2. 383.) The letter stated that the termination
of the current Research and Writing Program met this requirement. (A.2.
383.)
15
6. Malkan Pursues Challenges to His Non-Renewal

in Several Forums
Following his notice of non-renewal, Malkan pursued several
avenues of redress. First, he contacted his union about his options under
his collective bargaining agreement, and at his request, the union filed
an improper practice charge with the New York State Public
Employment Relation Board (PERB) alleging that the non-renewal of
Malkans term was in retaliation for his having invoked union protection
after he had been earlier removed as Director of Legal Research and
Writing. (ECF No. 54-2 at 14.) Malkan and Mutua both testified before
an administrative law judge, who dismissed the charge based on
insufficient evidence that Mutua was aware that Malkan had sought
union assistance at the time of Mutuas decision not to renew his term.
(S.A. 153-175.) PERB upheld the decision on appeal. (S.A. 140-152.)
Second, Malkan filed a faculty grievance against Mutua, which was
handled by Charles Ewing, Chair of the Grievance Committee. Ewing did
not believe that Malkans initial grievance was within the Committees
jurisdiction because it implicated legal matters (such as what process, if
any, was owed to Malkan). (ECF No. 54-2 at 16.) Ewing viewed a revised
grievance, however, as concerned with more the way Mutua treated
16
Malkan, and he attempted to speak with Mutua. Because Malkan had
initiated and threatened litigation against Mutua, other university
officials, and SUNY, Mutua, on the advice of counsel, declined to speak
with Ewing concerning the grievance. (ECF No. 54-2 at 16-17.)
Accordingly, Ewing determined that he could not continue to investigate
it. (ECF No. 54-2 at 17.)
Third, Malkan filed two successive claims in the New York Court of
Claims alleging that the non-renewal of his term breached the terms of
Dean Olsens October 19, 2006 letter contract. The first was dismissed
because Malkan failed to state the damages that he was seeking; the
second was dismissed as untimely. (S.A. 130-38.) Malkan then sought
leave to file a late claim, which the Court of Claims denied on the ground
that Malkan had failed to demonstrate any merit to his proposed claim.
(S.A. 125.) Specifically, the court found that Malkan lacked a claim for
breach of contract because his appointment-related rights were subject
to the Trustees Policies. And under these policies, the Dean of the Law
School lacked the power to make term appointments, such terms were
limited to three years, and any effort at using the term renewal process
to create any manner of legal right, interest or expectancy to any other
17
appointment or renewal was prohibited. (S.A. 125.) The Appellate
Division, Fourth Department, affirmed on the same ground. (S.A. 119.)8
B. Proceedings Below
1. Malkans Complaint
In October 2012, Malkan, represented by counsel, filed the current
complaint in the United States District Court for the Western District of
New York, naming Mutua and Ewing as defendants. (S.A. 20-34.) The
complaint alleged that Malkan had a 405(c)-qualified, presumptively
renewable contract and university title/rank of full clinical professor
which gave him a property interest in continued employment. (S.A. 28.)
It further claimed that Mutua deprived him of this interest without due
process by terminating Plaintiffs employment without the CCPR review
and by refusing to cooperate with the Grievance Committee and failing
to place Plaintiff on the agenda for a vote on the date he should have been
reviewed[.] (S.A. 29.) The complaint sought compensatory and punitive
8Malkan also filed a defamation and libel action in Supreme Court, Erie
County, against Law School Professor James A. Gardner based on
statements Gardner made concerning Malkan. (A.2. 440-453.) That case
has been dismissed.
18
damages, and injunctive relief in the form of reinstatement and the
clearing of Malkans personnel file of any wrongful disciplinary actions.
(S.A. 30.)
2. The District Courts Preliminary Rulings
Mutua and Ewing moved for a stay of the federal court action
pending resolution of Malkans Court of Claims litigation, and to preclude
certain remedies sought in the complaint. The district court (Arcara, J.)
denied the motion for a stay (S.A. 100-104), and ruled that Malkan had
sufficiently pled a claim for punitive damages (S.A. 113-114). The court
also concluded that while New Yorks sovereign immunity did not bar
Malkans claims for reinstatement or the clearing of his personnel file
(S.A. 107-110), it barred his requests for back and front pay. (S.A. 110-
111.) Malkan has not contested those rulings.
3. Mutua Moves for Summary Judgment, and the

Parties Cross-Move for Rule 11 Sanctions
Mutua answered the complaint, and the parties conducted
discovery. (ECF No. 24.) After discovery, Mutua and Ewing (represented
by separate counsel) moved for summary judgment dismissing the
19
complaint (ECF No. 54-55), which motions Malkan opposed (ECF No. 61-
62).9
Malkan also moved for Rule 11 sanctions against Mutua and his
counsel, Assistant Attorney General David Sleight, based on the theory
that, at Mutuas deposition in this case and in the PERB proceeding,
Mutua committed perjury by testifying that at the April 28, 2006 meeting
of the Committee of Clinical Promotion and Renewal, there was no vote
on whether to promote Malkan to full clinical professorship. (ECF No. 70-
7.) Malkan contended that counsel for Mutua had an obligation to take
steps to correct the perjury, but had instead had utilized the allegedly
perjurious testimony in his Rule 56 Statement of Facts and other
pleadings. (ECF No. 70-7 at 5.)10 Mutua opposed the motion for sanctions,
affirming that on all occasions he had testified truthfully and to the best
of his recollection. (ECF Nos. 74-75.)
9After the motions for summary judgment were fully submitted, Malkan
and Ewing stipulated to Ewings dismissal. (ECF No. 65.)
10 In fact, Mutuas Rule 56 Statement simply noted that the precise
nature of the vote at the April 28, 2006 meeting was the subject of sharp
disagreement, described Mutuas differing recollection, and declined to
take a position on what actually occurred, which is immaterial for the
reasons noted above. (A.2. 412-13.)
20
Just after Malkans attorney, Frederick Ostrove, filed the Rule 11
motion on behalf of Malkan against AAG Sleight, Ostrove moved to
withdraw as Malkans attorney and asked that the motion be deemed
filed nunc pro tunc by Malkan alone. (ECF No. 80.) The court permitted
Ostrove to withdraw as Malkans attorney, but denied his request to be
absolved of responsibility for the Rule 11 motion. (ECF No. 81.)
Mutua subsequently moved for sanctions against Malkan, his
former attorney Ostrove, and Ostroves law firm, under Rule 11 and the
courts inherent power. (ECF 83.) Mutuas motion rested on three
grounds. First, Mutua documented a history of abusive behavior by
Malkan against Mutua, AAG Sleight, and other members of the SUNY
legal community. (ECF Nos. 74-75.) Such conduct included baseless
accusations of lying, unethical conduct, and threats to have criminal
charges brought against Mutua and others. (ECF No. 84.) Second,
Malkan violated the courts standing order by circulating confidential
information about the mediation that the parties had conducted; when
confronted with his actions, Malkan declared that he would defy any
civil contempt citation entered against me. (ECF No. 84.) Third,
21
Malkans own motion for Rule 11 sanctions was frivolous, and itself
merited sanctions. (ECF No. 75; 83-1 at 6-9.)
4. The Magistrates Recommendations on Summary

Judgment and Sanctions
On the summary judgment motion, the magistrate recommended
that Malkans due process claim be dismissed because Malkan could not
demonstrate a property interest in continued employment. (S.A. 42-53.)
The magistrate noted that the Trustees Policies limited term
appointments to three years and provided that no term appointment, of
itself, shall be deemed to create any manner of legal right, interest or
expectancy in any other appointment or renewal. (S.A. 50.) The
magistrate rejected Malkans argument that the phrase of itself allowed
other agreements to confer a property interest in continued
employment, reasoning that whatever the intent of the agreement
between Dean Olsen and Mr. Malkan, the Court cannot permit the
parties to circumvent the rule and regulations applicable to term
appointments in an attempt to afford plaintiff the protected property
interest of a continuing appointment under the label of a term
appointment. (S.A. 50-51.)
22
On the cross-motions for sanctions, the magistrate first
recommended that Malkans motion for sanctions against Mutua and
AAG Sleight be denied. (S.A. 54-93.) Having described in detail Malkans
pattern of abusive and threatening conduct and AAG Sleights attempt
to caution Ostrove concerning the baselessness of his proposed Rule 11
motion (S.A. 61-71), the magistrate recommended that Malkans motion
be denied because there is no evidence before the Court to suggest
anything other than differing recollections of a meeting of tenured faculty
on April 28, 2006, and thus, no basis for the accusation of perjury
against Dean Mutua. (S.A. 79.) Accordingly, AAG Sleight should not be
maligned for accurately depicting witnesses differing recollections of the
meeting in his Statement of Undisputed Facts. (S.A. 80.) And the
magistrate observed that even if Mutua had committed perjury, there
was no evidence that AAG Sleight had actual knowledge of such perjury
so as to require him to take corrective action before the court. (S.A. 82.)
And the magistrate noted that Mutuas testimony could not rise to the
level of perjury for the additional reason that the events of April 28, 2006
are immaterial because there was no dispute that Malkan was
23
subsequently promoted to full Clinical Professor after the meeting. (S.A.
80.)
Conversely, the magistrate recommended that Mutuas motion for
sanctions against Malkan and Ostrove be granted. The magistrate found
that Malkans own motion for sanctions was frivolous because while
Mutuas differing recollection may suggest a faulty memory, there was
no evidence that his testimony was intentionally false. (S.A. 88.)
Moreover, given the immateriality of the issue, the Court can fathom no
reason to fixate on Professor Mutuas recollection of this meeting other
than to harass Professor Mutua, needlessly increase the costs of this
litigation and unduly burden the Court. (S.A. 88.) The magistrate also
found Malkan in contempt for having violated local court rules by
publicly disclosing his mediation statement. (S.A. 90.)
By way of sanction, the magistrate recommended that Ostrove and
his firm pay $10,000 to the Clerk of the Court, a sufficient sum to
demonstrate the Courts displeasure with counsels conduct and to deter
such conduct in the future. (S.A. 91.) The magistrate declined to
recommend a monetary sanction against Malkan in light of his financial
circumstances and also declined to recommend dismissal of the action on
24
the basis of Malkans conduct alone even though Mr. Malkans conduct
during the course of this litigation would easily warrant even such a
severe sanction. (S.A. 91.)
5. The District Courts Judgment
Malkan, now acting pro se, filed objections to the magistrates
report and recommendation on summary judgment (ECF Nos. 99, 100);
and Malkan and Ostrove separately filed objections to the magistrates
report and recommendation on sanctions (ECF Nos. 98; 99-101).
The district court (Telesca, J.) adopted the magistrates
recommendation concerning summary judgment in its entirety, agreeing
that Malkan had no property interest in his position as clinical professor
at the Law School for the reasons stated by the magistrate. (S.A. 39.) And
although the court declined to adopt the recommended sanction of
$10,000 against Ostrove, it upheld the sanctions against Malkan and
Ostrove in all other respects (S.A. 13), emphasizing that the reasons
Judge Schroeder gave for imposing such a monetary sanction are well-
supported by this record. Counsels actions and unduly contentious
behavior, as described in extensive detail in the second R&R, are worthy
25
of verbal sanctions as stated by Judge Schroeder. (S.A. 40.) Accordingly,
the court entered a final judgment dismissing the complaint. (S.A. 13.)
STANDARD OF REVIEW
This Court reviews a grant of summary judgment de novo.
Okin v. Village of Cornwall-On-Hudson Police Dept., 577 F.3d 415, 427
(2d Cir. 2009). Summary judgment is proper when the evidence
demonstrates that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. Pr. 56(a). A genuine issue of fact is not created by
conclusory allegations or unsubstantiated speculation by the
opposing party. F.D.I.C. v. Great American Ins. Co., 607 F.3d 288, 292 (2d
Cir. 2010). Instead, the opposing party may only defeat summary
judgment by coming forward with evidence that would be sufficient, if
all reasonable inferences were drawn in [its] favor, to establish the
existence of that element at trial. Grain Traders v. Citibank, N.A.,
160 F.3d 97, 100 (2d Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Fed. R. Civ. Pr. 56).
26
This Court reviews Rule 11 sanctions for abuse of discretion, which
occurs when a court bases its ruling on an erroneous view of the law,
clearly erroneous assessment of the evidence, or renders a decision that
cannot be located within the range of permissible decisions. Star Mark
Management, Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., 682
F.3d 170, 175 (2d Cir. 2012).
SUMMARY OF THE ARGUMENT
This Court should affirm the district courts judgment. Malkans
due process claim fails for lack of a property interest in continued
employment at the Law School. Under the Trustees Policies, term
appointments are limited to three years, and create no legal right,
interest or expectancy in renewal. Malkan thus had no property interest
in the renewal of his term appointment upon expiration. Although former
Dean Olsens October 19, 2006 letter purported to give Malkan a
presumptively renewable term contract, only non-renewable for good
cause, this arrangement contravened the Trustees strict limits on term
appointments, and could not convey a property interest that the Policies
precluded. Malkans arguments to the contrary are without merit.
27
Alternatively, Mutua is entitled to qualified immunity because it was
objectively reasonable for him to believe that his actions did not violate
Malkans constitutional rights.
This Court should also affirm the district courts decision on
sanctions. The district court did not abuse its discretion in refusing to
sanction Mutua and in endorsing the magistrates verbal sanctions of
Malkan and his former attorney. Malkans arguments in support of
reversal of these rulings are predicated on his erroneous claims that
Mutua committed perjury and that a reasonable inquiry would have
apprised AAG Sleight of the same. But the simple fact that Mutuas
recollection concerning the nature of the vote taken at the April 28, 2006
meeting of the Committee on Clinical Promotion and Renewal differs
from others does not indicate perjury. Even if Mutuas recollection was in
error, that error is consistent with either a faulty memory or his
contemporaneous misunderstanding of what was being put to a vote.
AAG Sleight was not compelled to leap to the conclusion that his client
was lying, and so had no obligation take corrective action before the court.
And regardless, the issue is immaterial in light of Malkans subsequent
promotion, which Mutua does not dispute. Accordingly, for the reasons
28
stated in the magistrates report and adopted by the district court,
Malkans motion for sanctions was properly denied, and his own conduct
fully merited the magistrates verbal sanctions.
ARGUMENT
POINT I
MALKANS DUE PROCESS CLAIM FAILS FOR LACK OF A

PROPERTY INTEREST IN A RENEWED TERM APPOINTMENT
The district court correctly concluded that Malkan failed to
establish a due process claim because he did not have a property interest
in continued employment at the Law School after his term appointment
expired. To prevail on a due process claim, a plaintiff must establish the
deprivation of a property interest without due process. McMenemy v. City
of Rochester, 241 F.3d 279, 286 (2d Cir. 2001). As the Supreme Court has
explained, property interests are created and their dimensions defined
by existing rules or understandings that stem from an independent
source such as state lawrules or understandings that secure certain
benefits and that support claims of entitlement to those benefits. Board
of Regents of State Colleges v. Roth, 408 U.S. 564, 576-77 (1972). For
instance, in Board of Regents, the Court concluded that a professor under
29
a one-year term contract had no property interest in the renewal of his
term because the terms of his employment secured absolutely no
interest in re-employment for the next year. Id. at 578; see also Dube v.
State University of New York, 900 F.2d 587, 599 (2d Cir. 1990) (plaintiffs
due process claim failed because under the SUNY Trustees Policies, he
lacked a property interest in obtaining tenure).
So too here, once Malkans three-year term lapsed, he had no right
to reappointment under the Trustees Policies. The Policies limit term
appointments to three years and provide that No term appointment, of
itself, shall be deemed to create any manner of legal right, interest or
expectancy in any other appointment or renewal. (A.2 488.) The
President of SUNY Buffalo is the chief administrative officer of the Law
School with sole authority to renew term appointments (A.2. 487), and he
appointed Malkan to a third term in accordance with the Trustees
Policies (ECF Nos. 56-15; 54-11 at 66; 54-11 at 69; 56-16).
Malkan nonetheless argues (Br. at 32-39) that both Dean Olsens
October 19, 2006 letter and the Law Schools alleged policy and custom
of providing clinical professors with presumptively renewable term
30
appointments, non-renewable only for good cause, created a property
interest in continued employment. As detailed below, he is mistaken.11
A. Dean Olsens Letter Could Not Supersede the Trustees

Disclaimer of any Right, Interest or Expectancy in the
Renewal of a Term Appointment
Dean Olsens October 19, 2006 letter to Malkan could not confer a
property interest in continued employment because it violated the
Trustees Policies, which are controlling. More specifically, the letter
purported to create a structure whereby Malkans term appointment
would be presumptively and routinely renewed upon expiration after
three years, with non-renewal only for good cause. (A.2. 376-76.) The
letter described the for cause standard for non-renewal as similar to
the standard applicable to the removal of tenured faculty. (A.2. 375.)
The effect of this arrangement would have been to extend a term
appointment indefinitely. For this reason, Mutua deemed it an
illegitimate grant of tenure by other means. (ECF No. 56-6 at 38-39.)
11 Although in Malkans complaint, he asserted that Mutuas failure to

speak with the Grievance Committee Chairman about Malkans
grievance deprived him of due process, he does not pursue that argument
in his brief. He thus abandons it on appeal. The argument in any event
presupposes the existence of a property interest, which Malkan lacked.
31
And Malkan himself agreed that it achieved the same result as a single
five-year contract. (ECF No. 63-8 at 21.) By placing a strict three-year
limit on term appointments and disclaiming any right, interest or
expectancy in renewal, however, the Trustees Policies forbid such
arrangements.
The Trustees Policies govern term appointments within SUNY,
and thus no agreement between Dean Olsen and Malkan could create a
property interest in derogation of the Policies. See ECF No. 68-2 at 6-7
(Dean Olsen conceding that he could not supersede the Policies). This
result follows from a well-established line of cases holding that mutual
understandings and customs could not create a property interest for
purposes of due process when they are contrary to the express provisions
of regulations and statutes. Baden v. Koch, 638 F.2d 486, 492
(2d Cir. 1980) (city official lacked property interest in continued
employment under state law notwithstanding any mutual
understanding between official and city); see also Chu v. Schweiker, 690
F.2d 330, 334 (2d Cir. 1982) (where federal law provided for at-will
employment, federal employees could not base property interests on the
mutual understandings in their appointment letters); Hawkins v.
32
Steingut, 829 F.2d 317, 321-22 (2d Cir. 1987) (custom and assurances of
reappointment could not create a property interest in reappointment
where controlling state law provided for fixed terms); McMenemy, 241
F.3d at 286 (state law prevented promise of promotion from ripening into
an entitlement).
Seizing on the qualifier of itself in the sentence No term
appointment, of itself, shall be deemed to create..., Malkan argues (Br.
at 33-34) that this phrase implies that the Policies permit term
appointments to be supplemented by mutual understandings that a term
appointment will be renewed. Not so.
SUNY does not interpret the of itself language in the manner that
Malkan advocates because it would essentially nullify the Trustees
limits on term appointments. See Matter of Suarez v. Williams, 26 N.Y.3d
440, 451 (2015) (courts should not interpret a statute so as to render it
meaningless). The qualifier of itself merely emphasizes that while some
other types of appointments, such as continuing or permanent
appointments, may confer rights to continued employment, term
appointments do not. If this qualifier were read to permit SUNY colleges
to circumvent the Trustees disclaimer of any rights to renewal by
33
agreement of the parties, such authority would render meaningless the
Trustees distinctions among the different types of appointments and the
limits on term appointments. For instance, under this interpretation of
the Policies, a college could extend tenure to a faculty member hired
under the guise of a term appointment merely by making it
presumptively renewable. Because SUNYs interpretation gives effect to
the plain meaning of its governing regulations, this Court should defer to
it and reject Malkans contrary reading. See Gaines v. N.Y.S. Div. of
Housing and Community Renewal, 90 N.Y.2d 545, 549 (1997) (agency
interpretation of own regulations is entitled to deference).
Accordingly, Dean Olsens October 19, 2006 letter did not bestow
upon Malkan a property interest in continued employment.
B. The Trustees Have Not Acquiesced in any Law School

Policy or Custom of Granting Presumptively
Renewable Term Appointments
Malkan also argues (Br. at 32) that SUNY has a policy, maintained
since the mid-1990s, of requiring due process protections for clinical
professors at the Law School notwithstanding the Trustees Policies. By
due process protections, he means presumptively renewable term
appointments, non-renewable only for good cause. (Br. at 34.)
34
Malkans argument is meritless because even if such a policy or
custom existed, it could not, as a matter of law, create property interests
in violation of the plain language of the Trustees Policies. Although
Malkan contends that the Law School offered presumptively renewable
contracts to clinical professors, he provides no evidence that the Trustees
or the President of SUNY Buffalo acquiesced in such a practice. Because
any such Law School policy or custom would violate the Trustees
Policies, it could not give rise to a property interest in continued
employment. See Baden, 638 F.2d at 492 (2d Cir. 1980) (customs in
violation of state laws and regulations do not create a property interest
in continued employment); Hawkins, 829 F.2d at 321-22 (custom of
reappointment did not create a property interest in reappointment where
such interest was precluded by state law).
In any event, Malkan has provided no evidence that, at the time he
was given notice of non-renewal, the Law School followed a policy or
custom of giving clinical professors presumptively renewable term
appointments. He cites no instance of any actual faculty being hired
under such terms, but points to three pieces of circumstantial evidence
that purport to evidence such a practice. None prove his contention.
35
First, Malkan attempts (Br. at 34, 36) to infer such a policy from
the Law Schools history of certification of compliance with ABA
standards on the theory that the Law School could not comply with ABA
standards unless its clinical professors were given presumptively
renewable contracts. Preliminarily, although Malkan relies heavily on
the Law Schools presumed compliance with ABA standards, it is not the
issue before the Court. Nor is there merit to Malkans argument (Br. at
35) that the Trustees Policies implicitly allowed the Law School to adopt
whatever policies were necessary to comply with ABA standards by
permitting it to adopt policies necessary to carry out the operating
requirements of the college. (See, e.g., A.2. 480.) This provision does not
permit colleges to adopt policies at odds with the Trustees Policies, even
if done to conform to ABA or other professional accreditation standards
Regardless, the Law Schools history of ABA certifications going
back decades before 2005 cannot establish a policy or custom of
compliance with an ABA standard that was first adopted in 2005. It was
not until then that the ABA made the revision that first created a
potential conflict with the Trustees Policies, i.e., defining a long-term
contract in standard 405(c) as at least a five-year contract. (ECF No. 56
36
at11.) Indeed, in October 2005, Law School officials were first attempting
to understand whether and how the revised ABA standard could be
reconciled with the Trustees Policies. See supra at 8. Thus, the Law
Schools history of ABA certifications does not establish a policy or custom
of granting presumptively renewable term appointments.
Second, Malkan claims (Br. at 36) that the Law School By-Laws
created an expectation of renewal. On the contrary, the By-Laws nowhere
authorize presumptively renewable term appointments. (See A.2. 414-
24.) Malkan invokes the provisions of the By-Laws that gave the
Committee on Clinical Promotion and Renewal jurisdiction over the
reappointment of faculty on indefinitely renewable long-term contracts.
But while those provisions specify the procedures attendant upon
renewal, they do not create a property interest in such procedures, or in
renewal of the contract. See McMenemy, 241 F.3d at 287 (public employee
had no due process right to the use of a fair process to fill a position where
he lacked a property interest in the position).
In any event, Malkan misinterprets the By-Laws to require a
Committee vote before the Dean of the Law School may decline to
recommend to the chief administrative officer that a candidates term
37
appointment be renewed. Such a vote is not required. Rather, the By-
Laws authorize the Committee to make a recommendation to the Dean,
but they do not require the Dean to seek that recommendation where he
or she has already decided not to renew a term appointment. See supra
at 6. And as noted above, Malkan did not specifically dispute this point
in his Rule 56.1 Counterstatement of Material Facts, see ECF No. 63-8 at
9-10, and it therefore is deemed admitted. See Western District Local
Civil Rule 56.1(a)(2). For this reason, even if Malkan were correct in
claiming a cognizable property interest in reappointment (which he was
not), he would not have been entitled to the specific process (a Committee
vote) of which he claims to have been deprived.
Third and finally, Malkan relies (Br. at 37-39) on a Law School
report and two policies enacted in 2009 which he claims gave him an
expectation of renewal: a January 21, 2009 Law School Self-Study (A.2.
407-410), a March 20, 2009 Clinical Faculty Appointments Policy (A.2.
433-37), and a December 10, 2009 Policy on Appointment and Retention
of Legal Research and Writing Faculty (A.2. 382). Focusing in particular
on a statement in the Clinical Faculty Appointments Policy that It is
expected that, absent unusual circumstances, the three-year contracts
38
for Clinical Professors will be renewed (A.2. 435), he contends that this
and similar provisions in the other two documents created a property
interest in renewal.12
This argument should be rejected for two reasons. First, these Law
School policies all post-date Malkans notice of non-renewal, dated
August 28, 2008, and could not retroactively confer rights on him. Second,
even if the policies applied here, they would not confer the rights that
Malkan asks this Court to read into them. When the Clinical Faculty
Appointments Policy and the Policy on Appointment and Retention of
Legal Research and Writing Faculty are read in conjunction with the
Trustees express disclaimer of any legal right, interest or expectancy in
a renewed term, it is apparent that the policy statements at issue merely
an aspiration, and do not confer any legal entitlement to renewal. See
supra at 29-30. The policies merely express the Law Schools general
12 The Policy on Appointment and Retention of Legal Research and

Writing Faculty contains a similar statement, which Malkan misquotes
(Br. at 39), that if a candidate has demonstrated good teaching ability
and effective implementation of program objectives, absent unusual
circumstances, the appointment will be renewed for an additional three-
year term. (A.2. 382.)
39
expectation that clinical appointments will be renewed so long the
appointees performance is satisfactory, with no intent to confer any legal
entitlement to renewal.
In short, Mutua was properly granted summary judgment because
Malkan failed to establish that he had a property interest in continued
employment at the Law School.
POINT II
ALTERNATIVELY, MUTUA HAS QUALIFIED IMMUNITY
Summary judgment can also be affirmed on the alternative ground,
asserted below but not reached by the district court, that Mutua is
entitled to qualified immunity because he was objectively reasonable in
believing that his actions did not violate Malkans constitutional rights.
Qualified immunity serve[s] the public good by shielding public
officials from potentially disabling threats of liability. Spavone v. New
York State Dept of Corr. Servs., 719 F.3d 127, 134 (2d Cir. 2013). It thus
protects officials from damages where their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known . . . regardless of whether
40
the . . . error is a mistake of law, a mistake of fact, or a mistake based on
mixed questions of law and fact. Pearson v. Callahan, 555 U.S. 223, 231
(2009) (internal quotations omitted). Even if a plaintiff shows facts
making out a violation of a constitutional right, a defendant may
establish a defense of qualified immunity by demonstrating that the right
was not clearly established or, even if the right was clearly
established, it was objectively reasonable for the officer to believe the
conduct at issue was lawful. Gonzalez v. City of Schenectady, 728 F.3d
149, 154 (2d Cir. 2013). The Court need not determine whether the facts
alleged make out a violation of a constitutional right prior to determining
whether that right was clearly established. Id. at 160 (citing Pearson,
555 U.S. at 236).
Applying these principles here, Mutua did not violate any clearly
established constitutional right. For the reasons stated in Point I, Mutua
was objectively reasonable both in his belief that Malkan lacked a
property interest in a renewed term appointment and that Mutua did not
need to seek the recommendation of the Committee on Clinical Promotion
and Renewal on Malkans candidacy where he had already decided to
41
dismantle the Research and Writing Program and not to recommend
Malkans renewal. The Court may thus affirm on this alternative ground.
POINT III
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN

DECLINING TO SANCTION MUTUA AND HIS ATTORNEY, AND IN
ADOPTING THE MAGISTRATES VERBAL SANCTIONS
AGAINST MALKAN AND HIS FORMER ATTORNEY
The district court did not abuse its discretion in refusing to sanction
Mutua and AAG Sleight and, to the contrary, affirming the magistrates
verbal sanctions against Malkan and his former attorney Ostrove. For
the reasons detailed in the magistrates report (S.A. 54-93) and adopted
by the district court (S.A. 36-41), this Court should affirm the district
courts rulings on sanctions. Indeed, the magistrate correctly noted that
Malkans conduct during the litigation was so egregious that it would
easily warrant even the severe sanction of dismissal of the action as
Mutua argued below. (S.A. 91.)
Malkans arguments in favor of reversal are all premised on his
erroneous claim that Mutua committed perjury and perpetrated a fraud
on the court in his testimony about the nature of the vote taken at the
April 19, 2006 meeting of the Committee on Clinical Promotion and
Renewal. According to Malkan, AAG Sleight then compounded Mutuas

42
deception by relying on it in moving for summary judgment. These claims
rest on three errors, as follows.
First, Malkan mistakenly leaps to the conclusion that Mutua
committed perjury just because his testimony concerning the nature of
the Committee vote differs from that of several others who were present
and have been asked for their recollections. (Br. at 48.) As the magistrate
judge noted (S.A. 79-80), even if the weight of the evidence suggests that
Mutua was wrong about the subject of the vote, there is no proof that his
testimony was intentionally false. The discrepancy could equally reflect
Mutuas faulty memory, or his contemporaneous misunderstanding of
precisely what was being put to a vote. See United States v. Sanchez,
969 F.2d 1409, 1415 (2d Cir. 1992) (Differences in recollection alone do
not add up to perjury). Thus, there is no basis for Malkans charge of
perjury by Mutua, let alone the claim that AAG Sleight should have
known of the commission of such perjury and disclosed it to the court.
Second, contrary to Malkans claim (Br. at 44, 45-49), AAG Sleight
did not base his summary judgment motion on Mutuas testimony, nor
did he assert as fact Mutuas version of the events. Rather, Mutuas Rule
56 Statement of Facts simply noted that there was sharp disagreement
43
regarding the nature of the vote taken at the Committee meeting, though
all agreed that a vote was taken and that it favored Malkan. (A.2. 412-
13.) Mutuas Rule 56 Statement went on to describe each sides
recollection of the events, but it did not take a position on what actually
occurred at the meeting. (A.2. 412-13.) It was unnecessary to do so
because, as addressed below, the dispute is not material to any issue in
the case. Accordingly, AAG Sleight could have had no obligation to take
corrective action before the court and accuse his own client of perjury, not
only because there was no compelling evidence of such perjury, but also
because AAG Sleight did not rely on the allegedly perjurious testimony.
Third, Malkans motion for sanctions against Mutua and AAG
Sleight was baseless because the testimony whose truthfulness he
disputes was immaterial. Whatever the nature of the vote taken at the
April 19, 2006 meeting of the Committee on Clinical Promotion and
Renewal, it is undisputed that the President of SUNY Buffalo
subsequently appointed Malkan to a third term, ending on August 31,
2009, and that he was promoted to full Clinical Professor at a higher
salary. (See ECF No. 54-11 at 66, 69.) Mutua does not dispute the
legitimacy of Malkans appointment to a third term, only whether he had
44
a property interest in the renewal of his appointment upon expiration.
Thus, contrary to Malkans assertions, Mutua does not claim that
Malkan had already received whatever process he was due when the
P&T Committee voted to recommend his dismissal (Br. at 41), or that
Professor Malkan had no right to due process in the Law School because
his faculty appointment had been fraudulently obtained (Br. at 49).
Malkans arguments for the materiality of Mutuas testimony depend
entirely on falsely ascribing to him theories which he has not advanced.
Malkans remaining argument in favor of reversal of the sanctions
rulings is that the magistrate judge misapplied the standard used under
Rule 11 to evaluate attorney conduct, substituting a subjective standard
for an objective one. This argument is also without merit.
The magistrate did not substitute a subjective standard in
considering whether AAG Sleights actions warranted Rule 11 sanctions.
Rule 11 requires that representations made by an attorney in court
papers must be well-grounded in fact or law, formed after an inquiry
reasonable under the circumstances. Fed. R. Civ. Pr. 11. The magistrate
applied this standard correctly, finding no evidence to suggest anything
other than differing recollections of the Committee meeting. Thus, the
45
magistrate found no basis to claim that AAG Sleight acted unreasonably
under the circumstances in accurately depicting witnesss differing
recollections of the meeting in his Statement of Undisputed Material
Facts. (S.A. 80.)
To be sure, in considering a different issue, namely, whether the
court should impose sanctions against AAG Sleight pursuant to its
inherent power based upon his alleged violation of Rule 3.3 of the New
York Rules of Professional Conduct, the magistrate appropriately
considered whether AAG Sleight had actual knowledge of false
testimony. The magistrate undertook this analysis because Rule 3.3 is
not implicated unless an attorney has actual knowledge that certain
evidence is false and attempts to use that evidence. (S.A. 81-82.) The
magistrate properly determined that AAG Sleight did not breach his
ethical responsibilities in this case because there was no evidence that he
had clear knowledge of false testimony. The magistrates analysis is
sound and does not warrant reversal. And Rule 3.3 is not implicated for
the additional reason that, as already noted, AAG Sleight did not use
Mutuas disputed testimony but simply noted that it was disputed.
46
Accordingly, this Court should affirm the district courts rulings on
sanctions.
CONCLUSION
The judgment below should be affirmed.
Dated: Albany, New York

May 3, 2017
Respectfully submitted,
Attorney General of the
State of New York
Attorney for Defendant-Appellee
By: /s Jeffrey W. Lang

JEFFREY W. LANG
Assistant Solicitor General
Office of the Attorney General

The Capitol
Albany, New York 12224
Telephone (518) 776-2027
BARBARA D. UNDERWOOD
Solicitor General
VICTOR PALADINO
JEFFREY W. LANG
Assistant Solicitors General
of Counsel
47
17-38-CV
United States Court of Appeals

for the Second Circuit
JEFFREY MALKAN,
Plaintiff-Appellant,
-against-
MAKAU W. MUTUA,
Defendant-Appellee,
CHARLES P. EWING,
Defendant.
On Appeal from the United States District Court

for the Western District of New York
_______________________________________________________________________
CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)
The undersigned attorney, Jeffrey W. Lang, hereby certifies that this brief
complies with the type-volume limitations of FRAP 32(a)(7). According to the word
processing system used by this office, this brief, exclusive of the title page, table of
contents, table of citations, statement with respect to oral argument, any addendum
containing statutes, rules or regulations, and any certificates of counsel, contains
8,965 words.
/s/ Jeffrey W. Lang
JEFFREY W. LANG
Attorney General of the State of New York
Attorney for Defendants-Appellees
The Capitol
Albany, New York 12224
(518) 776-2027
STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL
ERIC T. SCHNEIDERMAN BARBARA D. UNDERWOOD

ATTORNEY GENERAL SOLICITOR GENERAL
CERTIFICATE OF SERVICE
I hereby certify that I have, on May 3, 2017, served or caused to be served

2 copies of the accompanying Brief by United States Postal Service first class mail
upon the following named persons at the address provided in the course of these
proceedings:
Jeffrey Malkan
12 Valleywood Ct. W
St. James, N.Y. 11780
_ /s/ Jeffrey W. Lang___________________

JEFFREY W. LANG
THE CAPITOL, ALBANY, NEW YORK 12224-0341 PHONE (518) 776-2050 FAX (518) 915-7724 *NOT FOR SERVICE OF PAPERS
http://ag.ny.gov

Malkan v. Mutua Defendant-Appellee's Brief, Filed 5-3-2017

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Malkan v. Mutua Defendant-Appellee's Brief, Filed 5-3-2017

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Case 17-38, Document 39, 05/03/2017, 2025707, Page1 of 54

On Appeal from the United States District Court

BRIEF OF DEFENDANT-APPELLEE MAKUA W. MUTUA

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

TABLE OF CONTENTS (cont'd)

4. The Magistrates Recommendations on

A. Dean Olsens Letter Could Not Supersede the

B. The Trustees Have Not Acquiesced in any Law

TABLE OF AUTHORITIES (contd)

Plaintiff-appellant Jeffrey Malkan, a former Clinical Professor of

named as a defendant Charles P. Ewing, Chair of the Law Schools

Faculty Grievance Committee, who handled a grievance that Malkan

filed concerning Mutua.1 Malkan sought compensatory and punitive

After discovery, Mutua moved for summary judgment on the due

sanctions. On the magistrate judges recommendation, the district court

(Telesca, J.) granted Mutuas motion for summary judgment, denied

1 Malkan voluntarily dismissed Ewing before the court rendered a final

Malkans motion for sanctions, and granted Mutuas motion for

sanctions. Although the court declined to adopt the $10,000 monetary

sanction against Malkans former attorney recommended by the

magistrate, it emphasized that the reasons supporting the award were

attorney merited the magistrates verbal sanctions. Malkan now

1. Does Malkans due process claim fail for lack of a property

interest in a renewed term appointment at the Law School?

2. Alternatively, does qualified immunity shield Mutua from

liability on the ground that it was objectively reasonable for Mutua to

3. Did the district court act within its discretion in declining to

sanction Mutua and his attorney, and in adopting the magistrates

verbal sanctions against Malkan and his former attorney?

1331 and 1343. Because this appeal is from a final judgment

dismissing Malkans complaint in its entirety, this Court has jurisdiction

pursuant to 28 U.S.C. 1291. The notice of appeal was filed on January

3, 2017, within 30 days of the entry of judgment on December 20, 2016.

STATEMENT OF THE CASE

1. The Trustees Policies Governing Term

The following facts are undisputed unless otherwise noted. The

overseen by a Board of Trustees, which has established policies to govern

2 All references to the docket are to 1:12-cv-00236-RJA-HKS.

things, the Trustees Policies govern the appointment of employees

continuing, permanent, andat issue hereterm. (A.2. 480-88.)

Apart from exceptions not relevant here, a term appointment shall be

shall automatically expire at the end of that period unless terminated

earlier because of resignation, retirement or termination. (A.2. 487.)

Moreover, term appointments may be renewed by the chief

administrative officer of the college for successive periods of not more

than three years each[.] (A.2. 487.)

The chief administrative officer is defined in the Trustees Policies

as the head of a college. A college is a State-operated institution of

(listing SUNY member institutions). Thus, the chief administrative

the Dean of the Law School).

As a general matter, No term appointment, of itself, shall be

deemed to create any manner of legal right, interest or expectancy in any

other appointment or renewal. (A.2 488.) If a term appointment is not

notice is given, no further administrative action is required to terminate

the services of term employees, rather, the services of academic and

professional employees having term appointments shall cease

automatically at the end of their specified terms. There shall be no right

to appeal from a nonrenewal of a term appointment. (A.2. 491.)

2. Procedures for the Promotion and Termination

The Trustees Policies mandate that the faculty of each college

of the Board of Trustees of State University of New York[...] (A.2. 480.)

the appointment, promotion and termination of faculty members at the

School. To this end, the Law School By-Laws established a Committee on