Malkan V Mutua Plaintiff-Appellant's Reply Brief, Second Circuit, Filed 5-15-2017

Case 17-38, Document 44, 05/16/2017, 2038386, Page1 of 34
17-38-cv
Wniteb ~tates <!Court of ppeals
jfor tbe
~econb <!Circuit
Jeffrey Malkan,
Plaintiff-Appellant
v.
Makan W. Mutua,
Defendant-Appellee
Charles P. Ewing
'
(/)
. '-.-,J
Defendant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK
REPLY BRIEF FOR PLAINTIFF-APPELLANT
Jeffrey Malkan
Plaintiff-Appellant, prose
12 Valleywood Ct. W,
St. James, N.Y. 11780
(631) 862-6668
TABLE OF CONTENTS
I. THE LAW SCHOOL'S DUE PROCESS RULES ARE BASED ON THE ABA-
MANDA TED PRINCIPLES OF FACULTY GOVERNANCE AND ARE LEGALLY
BINDING ON THE DEAN AND THE UNIVERSITY .......................................... 2
A. Professor Malkan held a faculty, not a decanal appointment ............................... 2
B. The Promotion and Tenure Committee does not issue advisory opinions ................ 8
C. A qualified faculty appointment with a presumptively renewable term contract is not

the same as a continuing faculty appointment ................................................... 12
D. The University's repeated pledges to the ABA that its Law School is in compliance
with Standard 405(c) is evidence of its true policy on presumptively renewable term
contracts ............................................................................................................ 15
II. THE UNIVERSITY IS BOUND BY ITS INTERPRETATION OF THE POLICIES OF

THE BOARD OF TRUSTEES AS STATED IN ITS LONG-STANDING RULES AND
PROCEDURES ...................................................................................... 17
A. The "renewal of term" provision in the Policies of the Board of Trustees is a

conditional, not an unconditional, prohibition on presumptive renewability ................ 18
B. The detrimental impact of the District Court's ruling on job security for clinical
faculty is not limited to the SUNY Buffalo Law School.. ..................................... 22
III. THE SOLICITOR GENERAL HAS FAILED TO RESPOND TO THE CRIMINAL

JUSTICE AND PROFESSIONAL RESPONSIBILITY ISSUES RAISED BY THIS
APPEAL ............................................................................................... 23
A. The Attorney General violated Rule 11 by filing a false statement of undisputed facts
under Rule 56.1 ...................................................................................... 24
B. The Attorney General falsely maintained that the record reflected nothing more than
"a sharp difference of opinion." ................................................................... 24
C. The evidence of former Dean-Mutua's calculation and premeditation could not have
escaped the Attorney General's notice ........................................................... 25
D. The Solicitor General cannot raise a qualified immunity defense for former-Dean
Mutua while maintaining that his perjury is not a material fact .............................. 27
E. The Solicitor General failed to acknowledge the statutory constraints on the Attorney
General's power to represent former-Dean Mutua in this matter ............................. 28
CONCLUSION ............................................................................................... 28
1
I. THE LAW SCHOOL'S DUE PROCESS RULES ARE BASED ON THE

ABA-MANDATED PRINCIPLES OF FACULTY GOVERNANCE AND
ARE LEGALLY BINDING ON THE DEAN AND THE UNIVERSITY.
Every member of the voting faculty at SUNY Buffalo was recruited to join
the Law School under the rules and procedures enacted in the Law School Faculty
Bylaws. They were updated by the faculty in March 2009, while Professor Malkan
was still employed by the Law School, and again in March 2016- both updates in
anticipation of ABA Site Visits - to conform to the ABA Standards and Rules of
Procedure for the Approval ofLaw Schools. In procedure and substance, they
confer upon clinical professors at the SUNY Buffalo Law School a right to due
process based on a federally protected property interest in state employment.
A. Professor Malkan held a faculty, not a decanal appointment.
The first error in the Solicitor General's response to this appeal is his failure
to distinguish between a faculty appointment and a decanal appointment.
1. The Dean's authority to make appointments. - It is undisputed that the
Dean of the Law School has the authority to make administrative appointments
without faculty review or approval. The positions that lie within his or her decanal
discretion include such job titles as the Vice-Dean for Records and Registration,
the Vice-Dean for Business Administration, the Vice-Dean for Student Services,
the Vice-Dean of Admissions and Financial Aid, and the Vice-Dean for Career
Services. In addition, the Dean of the Law School may appoint short-term visitors
2
to the faculty and fill non-voting positions on the instructional staff with adjunct
professors and lecturers. Finally, the Dean of the Law School has the authority to
staff administrative positions that require academic expertise with tenured and
clinical law professors such as the Vice-Dean for Faculty Affairs, the Vice-Dean
for Faculty Development, the Vice-Dean for Clinical Programs, and the Director of
the Law Library.
On the other hand, only the faculty itself can make full-time appointments to
the voting Law School faculty. The rationale for this allocation of authority, which
is mandated by the ABA accreditation standards, is that faculty members in a
modem American research university are members of a collegial body who have
the chief competence for judging the work of their colleagues. "In such
competence it is implicit that responsibility exists for both adverse and favorable
judgments."
Likewise, there is the more general competence of experienced

faculty personnel committees having a broader charge.
Determinations in these matters should first be by faculty action
through established procedures, reviewed by the chief academic
officers with the concurrence of the board. The governing board
and president should, on questions of faculty status, as in other
matters where the faculty has primary responsibility, concur with
the faculty judgment except in rare instances and for compelling
reasons which should be stated in detail.
AA UP Statement on Government of Colleges and Universities (1966), available on-
line at https://www.aaup.org/report/statement-govemment-colleges-and-
3
universities (last visited May 15, 2017). 1 The faculty's authority over faculty
appointments, promotions, tenure, and clinical contract renewals is therefore not
"merely an aspiration," as the Solicitor General contends. See Appellee's Br. at
39. The Faculty Bylaws are binding on the Dean, and its procedures were put into
place as much to protect the University from liability for civil rights violations as
to protect the faculty itself from those violations.
In a law school, moreover, every faculty member is also a member of a
learned profession who is responsible, beyond any contractual duty to an employer,
to the ethical rules and standards of that profession in the same manner and to the
same extent as those who are non-academic practitioners in the field. That
includes the obligation to abide by Rule 11 of the Federal Rules of Civil Procedure.
Finally, members of a law school faculty have a fiduciary duty to the
students, the alumni, and the legal community to act in the best interests of the
profession and the institution. They can dissent from the Dean's edicts without
fearing that they will be sanctioned for insubordination. That is why law schools
in many universities are still called colleges, and why the norm of collegiality,
1
The dictionary definition of a "faculty" is a "power, authority, or prerogative given or
confen-ed" or "the teaching and administrative staff and those members of the administration
having academic rank in an educational institution." See "Faculty," Merriam-Webster.com, at
https://www.merriam-webster.com/dictionary/faculty (last visited May 15, 2017). These two
definitions are congruent with the concept of a faculty as body of scholars and educators that has
the power, authority and prerogative to confer academic rank on its own membership.
4
regardless of adverse or favorable judgments upon each other, is commonly
applied to describe collaboration between faculty colleagues.
2. The faculty's role in the appointments process. - The process of selecting
a faculty at the Law School, in accord with the Faculty Bylaws, begins in the
Faculty Appointments Committee. That Committee screens job applicants through
the AALS Faculty Recruitment Register.
After receiving a recommendation from the Faculty Appointments
Committee, the entire Law School faculty interviews the candidate on-campus and
must then approve the appointment by a two-thirds majority. Only then does the
Dean have the discretion to endorse or reject the faculty's recommendation.
Professor Malkan was hired through this process in the spring semester of2000,
and the faculty approved his promotion to 405( c)-protected rank as a full clinical
professor in the spring semester of 2006.
When a member of the faculty holds an administrative appointment, that
faculty member has both an administrative and a faculty appointment. The
administrative appointment may be made or revoked by the Dean without faculty
consultation, or may be resigned by the faculty member without the Dean's
permission. When the administrative appointment ends, the faculty member
returns to the faculty at the same rank and status as before. The Dean of the Law
School himself is in this position. When former-Dean Mutua resigned from the
5
deanship effective on December 20, 2014, he returned to the faculty at the same
rank and status he had held before accepting the deanship.
3. Professor Malkan 's contract reflected the decanal/faculty appointment
distinction. -The same was true when Professor Malkan completed his service as
director of the legal writing program. To make this distinction clear to future
deans, former-Dean Olsen drafted Professor Malkan's contract with two signature
lines. One line signified that Professor Malkan accepted his faculty appointment at
the rank and title of Clinical Professor of Law. The other signified that he
accepted his administrative appointment as Director of the Research and Writing
Program.
The contract stated that if Professor Malkan stepped down from his duties in
the R& W program for any reason he would return to full-time teaching with the
full course load of whatever skills, doctrinal, and interdisciplinary subjects he was
qualified to teach, as well as the usual service responsibilities of a clinical
professor in the Law School. In addition, his contract expressly stated that a
change in the structure or staffing model of the legal writing program could not
represent good cause for terminating his faculty appointment. Finally, ABA
Standard 405( c) was annexed as an exhibit to the contract to establish for future
deans the accreditation requirement which the agreement was intended to satisfy.
6
That is why former-Dean Mutua did not have the unilateral authority to
terminate Professor Malkan's faculty appointment. Just as a Dean cannot make a
faculty appointment without proceeding through the Faculty Appointments
Committee, he cannot terminate a faculty appointment without proceeding through
the Promotion and Tenure Committee or the Committee on Clinical Promotion and
Renewal. 2
4. Former-Dean Mutua 's perjured testimony. - What makes the Solicitor
General's position so disingenuous is that he fails to acknowledge the scandal that
is front and center before this Court. The gist of the perjury was that Professor
Malkan never had a legitimate faculty appointment because the P&T Committee
never voted on a recommendation, either pro or con, for his reappointment and
promotion. He used this falsehood to argue in his testimony before the Public
Employment Relations Board that his predecessor, former-Dean R. Nils Olsen, Jr.,
had no authority to take action on Professor Malkan's candidacy for promotion to
full clinical professor.
He testified that no faculty recommendation was on the table for then-Dean
Olsen to either endorse or reject, and that he therefore had no power to do anything
except allow Professor Malkan's contract to expire. The term of art that former-
2
As noted in the Appellant's Brief, the "P&T Committee," subsequent to the March 25, 2009
update to the Faculty Bylaws, is called the "Committee on Clinical Promotion and Renewal" or
"CCPR" when it is convened for consideration of promotions and reappointments to 405(c)-
protected rank.
7
Dean Mutua used to accuse his predecessor of exceeding his authority in this
manner was "ultra vires." What was so hypocritical about his argument was that
he was in court trying to defend exactly the same thing that he falsely accused
former-Dean Olsen of doing - violating the faculty's due process rules by taking
an "ultra vires" action on a faculty appointment.
B. The Promotion and Tenure Committee does not issue advisory opinions.
The Solicitor General's second error is to argue that the faculty's
deliberation on the termination of a faculty appointment is optional if the Dean has
already made up his mind to fire a clinical professor.
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 candidate's term 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 .... 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.
Appellee's Br. at 37-38.3 This argument assumes that the Dean is a "boss" who
hires and fires professors, unconstrained by the Faculty Bylaws.
That is untrue. The Faculty Bylaws give the Promotion and Tenure
Committee (and the hived-off Committee on Clinical Promotion and Renewal)

3
The last sentence raises the question - if Professor Malkan had a "cognizable property interest
in reappointment," and he wasn't entitled by the Bylaws to the process of a Committee vote,
what was the process to which he was entitled?
8
jurisdiction, in identical language, over promotion to University tenure or 405(c )-
protected status ("clinical tenure") as signified by the mandatory word "shall."
a. This Committee shall be composed of the Dean, who shall be

Chair, and all Faculty Members who are tenured or on an indefinitely
renewable long-term contract.
b. This Committee shall have jurisdiction over and the power to

make recommendations with respect to promotion, including the
granting of an indefinitely renewable long-term contract, renewal,
dismissal, or termination of the appointment of a Faculty Member who
is on an indefinitely renewable long-term contract or on track for an
indefinitely renewable long-term contract. All determinations of these
matters shall be made as follows:
(1) Promotion to the rank of Clinical Professor shall be

recommended by a majority of those members having tenure or
having an indefinitely renewable long-term contract and the rank
of Clinical Professor voting in person at a meeting.
(2) Promotion to the rank of Clinical Associate Professor shall

be recommended by a majority of those members having tenure
or having an indefinitely renewable long-term contract and the
rank of Clinical Professor or Clinical Associate Professor voting
in person at a meeting.
(3) The granting of an indefinitely renewable long-term contract

shall be recommended by a majority of the Committee voting in
person at a meeting.
(4) Renewal, dismissal, or termination of the appointment of a

Faculty Member who is on an indefmitely renewable long-term
contract or on track for an indefmitely renewable long-term
contract shall be recommended by a majority of the Committee
voting in person at a meeting.
9
(5) Two-thirds of the members of the Committee eligible to vote

shall constitute a quorum for the consideration of any matter
coming before the Committee. With respect to any specific
matter to come before the Committee, the necessity for a quorum
may be waived by unanimous prior consent of the members of
the Committee. Each member shall be notified by appropriate
means three days before any meeting of the Committee.
(6) Determinations on recommendations with respect to

promotion, including the granting of an indefinitely renewable
long-term contract, renewal, dismissal, or termination of
appointment of a Faculty Member who is on an indefinitely
renewable long-term contract or on track for an indefinitely
renewable long-term contract shall be taken by secret ballot.
Bylaws and Standing Orders of the University at Buffalo, School ofLaw, State
University ofNew York, III (E) (4) (emphasis added).
The Faculty Bylaws are also clear that authority in the promotion and tenure
process is allocated to the Dean through his chairmanship of the Committee. "The
Dean shall be the Faculty's chief administrative officer and generally performs the
functions of a dean.... These functions shall include the following specified
powers and duties ... chairing the Committee on Promotion and Tenure and the
Committee on Clinical Promotion and Renewal. Id. at II (A) (f) (emphasis added).
To say that the Committee is rendered powerless ifthe Chair of the Committee
refuses to convene it is to make a travesty out of the Faculty Bylaws.
The reality is that the Dean is the Chair of the Committee and his views and
intentions are stated within the Committee. Ifhe is strongly opposed to a
10
promotion or reappointment, he is heard then and there. He can write a
memorandum and take the floor to explain his opinion in the meeting before the
Committee deliberates and votes. At the end of this process, in the exercise of
their collective judgment, either he persuades his colleagues, or they persuade him.
The Solicitor General's argument, moreover, is false as a description of how
due process works in any judicial or quasi-judicial deliberation. The
recommendation of the P&T Committee in the Law School is the decision of the
faculty on an issue over which it has jurisdiction. That a decision by the faculty is
subject to review by the Dean does not make it into an advisory opinion, any more
than a decision by the District Court, which is subject to review by the Court of
Appeals, is an advisory opinion. The decision must be made before it can be
reviewed. Even when a ruling is appealed, the appeal takes place within the
standard of review for that type of decision and the record that was put into
evidence in the prior proceedings.
To repeat, this is the AAUP principle by which the Dean is bound in the
matter of promotion and tenure. "[O]n questions of faculty status, as in other
matters where the faculty has primary responsibility, [the administration should]
concur with the faculty judgment except in rare instances and for compelling
reasons which should be stated in detail." There can be no statement of
"compelling reasons" by the Dean for disagreement with the faculty ifthe faculty
11
has not been allowed to make a recommendation. The concept of a legal process
implies a series of reviews and a narrowing of issues until the fullest and fairest
possible decision is reached.
Finally, former-Dean Mutua's claim that he had already determined to fire
Professor Malkan, regardless of what the faculty recommended, is irrelevant to the
legality of what he did. A judge's assertion that he had no intention of allowing
the defendant to receive a fair hearing does not have any relevance to a due process
claim except to prove that the violation of due process was knowing and willful.
C. A qualified faculty appointment with a presumptively renewable term
contract is not the same as a continuing or tenure-trackfaculty appointment.
The Solicitor General's third error is to argue that ABA Standard 405(c) is
unenforceable at SUNY Buffalo Law School because it would elide the difference
between qualified and continuing faculty appointments under the Policies of the
Board of Trustees.
If this qualifier ["of itself'] were read to permit SUNY colleges to

circumvent the Trustees' disclaimer of any rights to renewal by
agreement of the parties, such authority would render meaningless
the Trustees' distinctions between 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.
See Appellee's Br. at 33-34.
12
There is no dispute that Standard 405( c) requires that clinical professors be
provided with security of employment that is "reasonably similar to tenure" and
that the Law School has certified its compliance over and over again with that
accreditation standard.
What is disputed is the Solicitor General's argument that 405(c)-compliance
equates to automatic renewal and guaranteed lifetime employment. Presumptive
renewability is not the same as automatic renewal. No faculty member at SUNY
Buffalo has a guarantee of lifetime employment, whether he or she has a
continuing appointment or a qualified appointment. What tenure requires is that
the faculty member be provided with predeprivation due process before his or her
employment is terminated, and that the mandatory process must be based upon the
standard of good cause, which is generally defined as a failure of job performance,
personal misconduct, or financial exigency. Only in this respect is a 405( c)-
protected faculty appointment the same as a continuing or tenured faculty
appointment.
The difference is that a continuing appointment does not come back to the
faculty unless charges are proffered against the tenured professor by the
administration or by another faculty member of equal rank. In contrast, a qualified
appointment at the rank of full clinical professor automatically comes back to the
faculty every three years. The question here is not whether a clinical appointment
13
comes back to the faculty- both parties agree that it does - but what issue
regarding that appointment comes back. The concept of presumptive renewability
answers that question.
In the law of evidence, a presumption shifts or assigns a

burden of proof by presuming a conclusion of law. If a
teacher has a Standard 405( c) presumptively renewable
contract, the teacher has a contractual right, when that
contract ends, to a new (renewed) contract of the same
length unless the school has admissible evidence sufficient
to overcome the presumption that the teacher satisfies the
school's renewal criteria, which the ABA requires every
school to establish. The teacher is not required to prove that
she satisfies the criteria. That is presumed. Instead the
school must prove that she does not satisfy them. For
example, ifthe school's written policy requires
"excellence" in teaching, and if that is the issue, the school
must prove that the teacher's teaching is not "excellent." If
the school cannot prove that but nevertheless fails to renew
the contract, the school, as a matter of contract law, is liable
for breach of the expiring presumptively renewable
contract.
Richard K. Neumann, Jr., Academic Freedom, Job Security, and Costs, 66 Journal
ofLegal Education 595, 603 (2017). That is what presumptively renewability
means in the context of due process, and that is why former-Dean Mutua exceeded
his authority when he blocked the faculty from making a recommendation on
whether good cause had been stated for Professor Malkan's termination.
D. The University's repeated pledges to the ABA over the past two decades
that its Law School is in compliance with Standard 405(c) is compelling evidence
of its true policy on presumptively renewable term contracts.
14
The Solicitor General argues that Professor Malkan is trying to obtain a
retroactive benefit from rules that were not in effect on the date of his termination.
He also argues that the Law School is still in the process of trying to determine its
obligations to its accrediting body under Standard 405(c). Finally, he argues that
the Law School's certifications to the ABA do not represent rules or policies that
legally bind the institution. Those arguments are not just incorrect, but impossible,
except for the last, which is irrelevant.
First, the 2009 ABA Site Visit Team reported that the Law School was in
compliance with Standard 405( c) based on the evidence, provided by the Law
School itself, of its Faculty Bylaws and Clinical Faculty Appointments Policy.
Both of those policies had been updated in the month prior to the Site Visit, during
the month of March 2009. Subsequent to the Site Visit, the faculty applied those
rules to review and renew the appointments of the two clinical professors whose
contracts were slated to expire on the exact same day as Professor Malkan's -
August 31, 2009. He alone was singled out by former-Dean Mutua for denial of
due process. 4
4
The date on the notice of non-renewal, August 28, 2008, is not the date of termination. That is
because the Policies of the Board of Trustees authorize the Dean to issue that notice before he or
she consults the faculty, which is a necessary step in the non-renewal process. See id., at A1t. XI,
Tit. A, 1 ("nothing contained herein [i.e., the provision for faculty consultation] shall prevent
the chief administrative officer of a college from taking such actions as he or she may deem
necessary to meet notice requirements in the event ofnonrenewal of term appointments.")
15
Second, the clinical faculty standard, Standard 405( c), has been in effect for
ABA-accredited law schools since 1993. Thus the Law School has certified its
compliance to the ABA Section on Legal Education four times so far, in 1995,
2002, 2009, and, most recently, in 2016. The Law School has never before
claimed to the ABA or to anyone else before this litigation that the Policies of the
Board of Trustees make compliance with the ABA clinical faculty standard legally
impossible. In fact, the due process rules that are the subject of this case are still in
effect in exactly the same form to the present day.
Finally, Professor Malkan does not claim that the Self-Study Report
submitted to the ABA for its April 2009 Site Visit is itself a Law School policy
upon which a due process claim may be based. His argument is that the Self-Study
is compelling evidence of the Law School's policies. The policies themselves are
stated in the Faculty Bylaws, which were enacted under the authority of the
President, and the Clinical Faculty Appointments Policy. The District Court
should have found that these due process rules are valid and enforceable, then as
now, and that their violation is actionable under 42 U.S.C. 1983.
II. TIIB UNIVERSITY IS BOUND BY ITS INTERPRETATION OF TIIB

POLICIES OF THE BOARD OF TRUSTEES AS STATED IN ITS LONG-
STANDING RULES AND PROCEDURES.
The University's prior argument that presumptively renewable term
contracts are unconditionally prohibited under the Policies of the Board of
16
Tiustees, as the Solicitor General now concedes, cannot possibly be true. That is
because every tenure-track professor in the Law School receives an initial three-
year term contract, with the expectation that this "visiting" appointment will be
renewed for at least another contract term if satisfactory progress is made towards
tenure. In the last year of the second contract, that is the sixth year of
employment, the faculty member goes before the P&T Committee. See Faculty-
Staff Handbook, II.B.2, Term Appointments in Tenure-Track Positions,
http://www.business.buffalo.edu/ubbcontent/hrs/facultyhandbook/III.htm (last
visited May 15, 2017). The candidate expects to receive a fair hearing. That is an
expectation of renewal.
In light of this now undisputed fact, however, the Solicitor General
speculates that the "renewal of term" provision in the Policies of the Board of
Trustees must be conditional with respect to continuing (tenure-track) and
permanent (professional staff) appointments, but unconditional with respect to
qualified (clinical) appointments. "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." See Appellee's Br. at 33.
The problem is that all of the evidence before this Court and in the
University's publicly accessible documents shows that the "renewal of term"
17
provision is conditional across the board, not least because the Board of Trustees
could not possibly have intended to prevent its professional schools throughout the
State of New York from complying with their accreditation standards or from
recruiting a competent and dedicated clinical faculty.
A. The "renewal of term" provision in the Policies of the Board of Trustees
is a conditional, not an unconditional, prohibition on presumptive renewability.
The only document we have located that might shed light on the "renewal of
term" provision of the Policies of the Board of Trustees is a memorandum written
on July 18, 1972, "Non-Renewal of Term Contracts," by Walter J. Relihan, Jr.,
Esq., who at that time was the Vice-Chancellor for Legal Affairs. The Relihan
memorandum was not disclosed to the plaintiff in the District Court, but it is
posted for the general public on the website of SUNY General Counsel, the State
University of New York, at http://system.suny.edu/media/suny/content-
assets/documents/academic-affairs/mtp/mtp77-1 O.pdf (last visited May 15, 201 7)
(copy annexed to this brieJ).
Mr. Relihan's purpose was to advise the University Presidents about the
effect on their campuses of the recent Supreme Court decisions in Board of
Regents v. Roth, 408 U.S. 564 (1972), andPeny v. Sindermann, 408 U.S. 593
(1972), which had been decided three weeks earlier. The issue in both cases was
whether an institution of higher education could be held liable under federal law
18
for failing to provide predeprivation due process to a full-time faculty member
before non-renewing his term appointment. Mr. Relihan briefed these cases as
follows:
The Supreme Court [in Roth] observed that weighing

equities had nothing to do with the threshold question of
whether or not a "property" right is involved. In Roth, the
contract had expired of its own terms at the end of the academic
year. The professor's unilateral and subjective expectation that
his employment would continue absent some intervening good
cause to the contrary was held insufficient to bind the college.
This, of course, is basic contract law and one wonders that the
question ever assumed constitutional dimensions.
In Sindermann, the court found a further question of fact
and law which it returned to the lower court for determination.
There, Sindermann will be permitted to offer evidence that a
quasi-contract for continued employment may have existed.
That is, under the circumstances obtaining at his college, a
tenured appointment status may have been implied in fact,
arising out of custom, usage, and the express language of
certain of its regulations.
No such quasi-contract could be inferred under the Policy
governing the State University of New York which (Art. IX,
Title C, Sec. 4) explicitly covers the point and leaves no room
for implication.
Finally, it should be noted, a non-renewal for the kind of
"cause" which would justify a misconduct proceeding under
Article XIV, Title D might require a notice and hearing if the
effect of such a decision adversely affected the individual's
good name and reputation or foreclosed his freedom to take
advantage of other available academic employment.
The take-away points of Mr. Relihan's memo were, first, that the "renewal
of term" provision in the Policies of the Board of Trustees will likely have the
19
effect of protecting the University from any due process claims based on "custom
and usage" or "quasi-contract," and, second, that if a qualified appointment is non-
renewed for the type of cause that would damage the professor's "good name and
reputation" to the point that it foreclosed other employment opportunities, then due
process procedures might nevertheless be required to avoid liability.
The Relihan memorandum confirms that the "of itself'' clause in the
"renewal of term" provision was intended to enforce the distinction between
express and implied presumptions of renewal. The contract that Professor Malkan
received from former-Dean Olsen, in accord with the Faculty Bylaws and ABA
Standard 405(c), is an express presumption of renewal, subject to the faculty's due
process protections and a good cause standard of review.
Mr. Relihan further cautioned that even in the situation of a quasi-contract,
the University might be liable for a violating the Fourteenth Amendment right to
due process if the non-renewal of a term contract has the effect of disqualifying the
non-renewed faculty member from further academic employment. That is exactly
what happened to Professor Malkan.
Every AALS law school hiring committee in the United States knows that a
full clinical professorship at an ABA-accredited law school carries with it the
protections of Standard 405( c), which meant that the only reason Professor Malkan
could have found himself on the job market in the fall semester of2009 without a
20
current job was that he had been terminated for good cause. His instrnctional
position in the Law School could not have been eliminated for financial exigency
for the simple reason that first year legal writing is an ABA requirement.
As a result, Professor Malkan, after his removal from the faculty, had no
way of avoiding the inference that he had been fired for a failure of job
performance or for personal misconduct. Nothing he could say or do at that point
could mitigate that damage to his reputation. The foreseeable consequence was
that he was precluded from further employment in the field of legal education.
B. The detrimental impact of the District Court's ruling on job security for
clinical faculty is not limited to the SUNY Buffalo Law School.
In addition to the SUNY Buffalo Law School, the SUNY system maintains
four medical schools (SUNY Buffalo, SUNY Stony Brook, Downstate Medical
Center in Brooklyn, and Upstate Medical University in Syracuse) as well as two
dental schools (SUNY Buffalo, SUNY Stony Brook) and a veterinary school
(Cmnell University). All of these health sciences schools rely on a full-time
clinical faculty to deliver instrnction in their specialties to future practitioners.
These clinical faculties undergo a rigorous review process before they are
promoted to full professorships. See, e.g., UB Jacobs School of Medicine,
Policies, Procedures and Criteria for Faculty Promotions (revised August 2016), at
http://www.smbs.buffalo.edu/FACULTY/FacultyCouncil/docs/Med School Polici
21
es/Policies,%20Procedures,%20Criteria%20for%20Faculty%20Promotions%2020
16.pdf (last visited May 15, 2017). Any contracts awarded by these institutions for
the purpose of securing the best possible clinical faculty, committed in the long-run
to their institutions and communities, would be voided by the District Court's
ruling in the present case. There is no evidence that the Board of Trustees could
possibly have intended to put these institutions in a position that would impair their
efficiency and excellence in this manner.
III. THE SOLICITOR GENERAL HAS NOT EVEN ATTEMPTED TO

RESPOND TO THE CRIMINAL JUSTICE AND PROFESSIONAL
RESPONSIBILITY ISSUES RAISED BY THIS APPEAL.
The problem with the District Court's decision on the Rule 11 motion is not
just that the Attorney General failed to make any inquiry into whether his client
was attempting to perpetrate a fraud on the court. The problem is that the only
inference that could possibly be drawn from these facts and circumstances is that
the Attorney General already knew about the fraud. It was impossible that he did
not know that his client's testimony was both material and false.
AAG Christopher Boyd, who is AAG David Sleight's co-counsel, defended
Interim Dean James A. Gardner in the state court defamation action brought
against him by Professor Malkan. Interim Dean Gardner was a voting participant
in the P&T Committee meeting of April 28, 2006 who wrote a five-page
22
memorandum opposing Professor Malkan's reappointment and challenged the vote
count to former-Dean Olsen after the meeting concluded.
There is no possibility that Messrs. Sleight and Boyd could have avoided
knowing the truth about what had happened at that meeting. In other words, they
both know that former-Dean Mutua's testimony could not possibly have been
anything but false and that he had already subverted the integrity of the judicial
process with those lies at the Public Employment Relations Board.
A. The Attorney General violated Rule 11 by filing a false statement of
undisputed facts under Local Rule 56.1.
AAG Sleight signed his name to a motion for summary judgment in full
knowledge that former-Dean Mutua had given the same false testimony three years
earlier at the Public Employment Relations Board. Had the Hearing Officer at
PERB known that former-Dean Mutua's testimony was inaccurate and almost
certainly perjured, he could not have found that testimony to be credible on any
issue in the case, including his denial that he did not know about the UUP's
advocacy for Professor Malkan. The "make whole" remedy at PERB would have
resulted in reinstatement with back pay for Professor Malkan and protected him
from any further retaliation. Everything that has happened in this litigation, from
its inception to the present day, is the result of former-Dean Mutua's false
23
testimony at PERB and his persistence in repeating and embellishing it with
additional fake facts.
B. The District Court could not have awarded summary judgment to the
former-Dean if the Attorney General had not falsely maintained that the record in
the District Court reflected nothing more than "a sharp difference of opinion. "
The Attorney General was required by Rule 11 to concede the undisputed
fact that his client's testimony about Professor Malkan's faculty appointment was
erroneous, and that his client was knowingly and willfully maintaining his "error,"
despite the unrefuted evidence to the contrary. That former-Dean Mutua himself
advanced the ludicrous excuse that he was the victim of a conspiracy by a sinister
cabal "colloquially known as 'the Tea Party,"' and that this bizarre plot involved
perjury and the forgery of documents by eleven tenured and emeritus professors,
makes the Attorney General's continued advocacy on his behalf even more
damaging to the integrity of his Office.
C. The evidence offormer Dean-Mutua's calculation and premeditation
could not have escaped the Attorney General's notice.
The false testimony given by former Dean-Mutua at PERB was not elicited
from him as the result of a surprise question under cross-examination. He gave
that prepared testimony with four months' advance notice on direct examination,
and repeated it the next day on cross-examination. He then repeated it with
24
embellishments at a deposition in federal court three years later. He repeated it yet
again in a sworn declaration to the District Court the following year.
Throughout all of this time he was the Dean of the Law School with
unfettered access to any documents or advice that he might have needed to refresh
or correct his recollections. He spoke, moreover, not as a layperson, or even as an
attorney, but with the credibility of the esteemed office he held, which meant that
his testimony must be held on review to the highest standards of honesty and
honor.
Without further belaboring the point, suffice it to say that the facts and
circumstances in the record of this case provide compelling and likely conclusive
evidence that the "sharp difference of opinion" between former-Dean Mutua and
every other witness was anything but the result of an innocent mistake.
The former-Dean's lies were premeditated and calculated.
They were unequivocally maintained over a period of five years.
They were leveraged by the credibility of the Dean's Office.
They were provocative and defamatory.
They described events that were notorious and momentous.
The evidence of his perjury that has emerged over the course of these
proceedings, and in the prior proceedings in state court, would have compelled any
ethical attorney to make an inquiry into the veracity of his client's testimony before
proceeding to file a motion to conclude this case summarily.

25
The testimony was unanimous, except for the perjurer himself.
This unanimous testimony was supported up by contemporaneous,

handwritten documentary evidence from former-Dean Mutua's faculty
colleagues.
The Attorney General had direct access to all of the possible witnesses
in the case, all tenured or emeritus law professors, including the perjurer's
successor in the Dean's Office.
What makes it worse is that AAG Sleight knew that a grant of summary
judgment to his client would preclude any opportunity by the court to make an
assessment based on live testimony of whether his client was lying. No ethical
attorney in these circumstances could possibly argue that the "sharp difference of
opinion" between former-Dean Mutua and every other law professor who has
spoken in this matter is the product of an innocent mistake. The only inference
that could possibly be drawn from these circumstances is that former-Dean Mutua
fabricated his story with premeditation for the purpose of providing a factual basis
for his legal argument that Professor Malkan never had a legitimate faculty
appointment and therefore no right to due process in the Law School. 5
5
What makes this professional misconduct even more alarming from the perspective of public
integrity is that the President of the University, Satish K. Tripathi, in a sworn declaration to the
District Court dated December 12, 2013, denied that he had any prior knowledge of the
allegations against his law school dean. After those allegations were published on the front page
of the Buffalo News in the third week on September 27, 2014, then-Dean Mutua suddenly
announced his resignation from the deanship. President Tripathi, instead of investigating the
evidence at that point, which had been filed in federal court on August 25, 2014, made a
statement honoring the accomplishments of now former-Dean Mutua. See UB News Release,
available on-line at http://www.buffalo.edu/news/releases/2014/09/037.html (September 22,
26
D. The Solicitor General cannot raise a qualified immunity defense for
former-Dean Mutua while maintaining that his perjury is not a material fact.
It should be sufficient to say that there is no decisional authority in any
federal court that would support a defense of qualified immunity in a matter where
the public official has committed perjury and destroyed subpoenaed evidence. By
reiterating the qualified immunity defense (upon which the District Court made no
ruling and did not even mention), the Solicitor General is effectively conceding
that the veracity of former-Dean Mutua's testimony is a material fact.
E. The Solicitor General failed to address the statutory constraints on the
Attorney General's power to represent former-Dean Mutua in these proceedings.
The Attorney General has no statutory authority to defend the criminal
misconduct of a state official, but on this most basic conflict of interest the
Solicitor General remains silent. Whether or not that is a deliberate concession, the
point remains that New York law required former-Dean Mutua to retain private
counsel in this matter once there was credible evidence that his abuse of power in
the Law School rose to the level of criminal misconduct. His recourse under New
York Public Officers Law 17-19 was to submit a claim for reimbursement from
the State in the event that he is found non-liable and non-culpable for the
criminality alleged and supported by credible evidence in this matter.
2014). To the present day, President Tripathi has blocked any University investigation of the
evidence against his fotmer-Dean.
27
CONCLUSION
For the foregoing reasons, the Plaintiff-Appellant again 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 (),to Jeffrey Malkan on the issue of liability, (2) to lift the verbal
sanctions imposed on Frederic D. Ostrove, Esq. and the contempt of court citation
imposed on Jeffrey Malkan, (3) to impose appropriate sanctions and contempt of
court citations pursuant to Fed. R. Civ. Pro. R. 11 and R. 56 (h) on AAG David J.
Sleight, Esq., AAG Christopher L. Boyd, Esq., and Defendant-Appellee Makau W.
Mutua, and (4) to provide such other and further relief as the Court deems just and
proper.
Dated: May 15, 2017

Saint James, New York
Respectfully submitted,
Jeffrey alkan
Plainti -Appellant pro se
12 Valleywood Ct. W.
Saint James, NY 11 780
(631) 662-6668
jeffrey.malkan@outlook.com
28
/.
State University of New York ATTACHMENT #l
~J9 W.1..,hin~ton Avenue
AIU.iny, New York 12210
OHice of the University Coun'tel

dnd Vice Chancellor for Legal Affairs
~ E M0 R A N D U M
July 18, 1972
TO: Presidents, State University of. NewYork

FROM: Walter J. Relihan, Jr,
SUBJECT: Non-Renewal of Term Appointments 1'
In companion cases*, the Supreme Court has rendered
important opinions regarding the non-renewal of term appoint-
ments.. The present rules and practices of State University
are not affected.
In both, faculty members had argued that the failure
or refusal by a college to renew a term appointment without. a
statement of reasons or an opportunity for a hearing had denied
rights protected by the lst and 14th Amendments.
FIRST AMENDMENT
We're well familiar with the doctrine that a faculty
member may lawfully criticize the administration of his college.
or university <:m a matter of public concern. A termination or
failure to renew on this basis, obviously, would violate a
protected interest in free speech and press under the First
Amendment. This would be so even though the faculty member
enjoyed no vested interest or property right to continued em~
ployment under the terms of his appointment.
Nevertheless, the Supreme Court disagreed with the
lower court's view that a prior statement of reasons for non-
retention was required in order to prevent the occurrence of
impermissible non-renewal decisions bas\'ld, for example, upon
the lawful exercise of the right of free speech.
*Board of Regents of-State Colleges v. Roth

(Sup. Ct. June 29, 1972)
Perry v. Sindermann (Ibid.)
Attachl)J.!-nt #1 - .Page 2
Presidents c - 2 - \ . July 18, 1972
Following notification of non-renewal, of course, a

faculty member might contend that the unfavorable decision
represents an unlawful act of retaliation .and not a judgment
of academic qualifications. In that event, a statement of
reasons for non-renewal may be appropriate, together with an
opportunity for rebuttal, This could be done informally and,
ordinarily, without the necessity of full scale adversary
procedures. The proper handling of each such case would largely
depend upon its own facts. In certain instances, the case might
fall within the SPA contract and be treated under its grievance
procedures. We invite your further inquiry if such a situation
presents itself.
FOURTEENTH AMENDMENT
Procedural due process (notice and hearing) may be
required in the event of a State deprivation of valued
interests which, in constitutional contemplation, amount to
"liberty" or "property".
The lower court in Roth erroneously a'ssuined that its
duty involved balancing the professor's legal intere.st in
continued employment against the college's interest in perpetu-
ating its right of summary and unexplained termination. On
that basis, the trial judge ordered the college to provide the
professor with reasons and a hearing.
r;
'-. ,
The Supreme Court observed that weighing.equities had
nothing to do with the threshold question of whether or not a
"property'' right is involved. In Roth, the contract had
expired of its terms at the end of"tlle academic year. The
professor's unilateral and subjective expectation that his em-
ployment would continue absent some intervening good cause to
the contrary was held insufficient to bind the college. This,
of course, is basic contract law and one wonders that the
question ever assumed constitutional dimensions.
In Sindermann, the court found a further question of
fact and law which it returned to the lower court for determina-
tion. There, Sindermann will be permitted to offer evidence
that a quasi-contract for continued employment may have existed.
That is, under the circumstances obtaining at his college, a
tenured appointment status may have been implied in fact,
arising out of custom, usage, and the express language of
certain of its regulations.
No such quasi-contract could be inferred under the
Policy governing the State University of New York which ( Art. XI,
Title c, sec. 4) explicitly covers the point and leaves no room
for implication.
Presidents
c - 3 -
A(tachment #1 - Page 3
July 18, 1972
Finally, it should be noted, a non-renewal for the

kind of "cause" which would justify a misqonduct proceeding
under Article XIV, Title D might require a notice and hearing
if the effect of such a decision adversely affected the indi-
vidual's good name and reputation or foreclosed his freedom
to take advantage of other available academic employment.
Certificate of Compliance with Type-Volume Limit, Typeface Requirements,

and Type-Style Requirements
1. This document contains 6,638 words, excluding the parts of the document
exempted by Fed. R. App. P. 32(f). It complies with the word limit of Fed. R
App. P. 6.
2. This document has been prepared in a proportionally spaced typeface using

Microsoft Word in Times New Roman, fourteen point type. It complies with the
typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements
of Fed. R. App. P. 32(a)(6).
Jeffrey: Ma&an
Plainti -Appellant prose
12 Val ywood Ct. W.
Saint James, NY 11780
(631) 662-6668
Dated: May 15, 2017

29
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

CERTIFICATE OF SERVICE
Malkan v. Mutua, Docket Number 17-38-cv
I, Jeffrey Malkan, hereby certify under penalty of perjury that on May 15, 201 7, I
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 May 15, 2017, I filed with the
Clerk by United States Postal Service (i) six single-side copies of this Brief with
gray covers, and (ii) an unbound copy of each document for electronic filing or
office use. I also served bound copies of each document on the two parties listed
below.
Jeffrey W. Lang, Esq.

Office of the Solicitor General
120 Broadway
NewYork,N.Y.10271
Frederic D. Ostrove, Esq.

Leeds Brown Law, PC
One Old Country Road Suite 347
Carle Place, New York 11514
Jeffrey alkan
Plaintif -Appellant prose
12 Valleywood Ct. W
Saint James, N.Y. 11780
(631) 862-6668
Dated: May 15, 2017

30

Malkan V Mutua Plaintiff-Appellant's Reply Brief, Second Circuit, Filed 5-15-2017

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Malkan V Mutua Plaintiff-Appellant's Reply Brief, Second Circuit, Filed 5-15-2017

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Case 17-38, Document 44, 05/16/2017, 2038386, Page1 of 34

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

REPLY BRIEF FOR PLAINTIFF-APPELLANT

A. Professor Malkan held a faculty, not a decanal appointment ............................... 2

C. A qualified faculty appointment with a presumptively renewable term contract is not

II. THE UNIVERSITY IS BOUND BY ITS INTERPRETATION OF THE POLICIES OF

A. The "renewal of term" provision in the Policies of the Board of Trustees is a

III. THE SOLICITOR GENERAL HAS FAILED TO RESPOND TO THE CRIMINAL

I. THE LAW SCHOOL'S DUE PROCESS RULES ARE BASED ON THE

process based on a federally protected property interest in state employment.

A. Professor Malkan held a faculty, not a decanal appointment.

to distinguish between a faculty appointment and a decanal appointment.

1. The Dean's authority to make appointments. - It is undisputed that the

the Law Library.

is mandated by the ABA accreditation standards, is that faculty members in a

Likewise, there is the more general competence of experienced

AA UP Statement on Government of Colleges and Universities (1966), available on-

appointments, promotions, tenure, and clinical contract renewals is therefore not

"merely an aspiration," as the Solicitor General contends. See Appellee's Br. at

to protect the faculty itself from those violations.

In a law school, moreover, every faculty member is also a member of a

learned profession who is responsible, beyond any contractual duty to an employer,

Finally, members of a law school faculty have a fiduciary duty to the

regardless of adverse or favorable judgments upon each other, is commonly

applied to describe collaboration between faculty colleagues.

2. The faculty's role in the appointments process. - The process of selecting

Faculty Appointments Committee. That Committee screens job applicants through

the AALS Faculty Recruitment Register.

After receiving a recommendation from the Faculty Appointments

Dean have the discretion to endorse or reject the faculty's recommendation.

professor in the spring semester of 2006.

When a member of the faculty holds an administrative appointment, that

faculty member has both an administrative and a faculty appointment. The

administrative appointment may be made or revoked by the Dean without faculty

consultation, or may be resigned by the faculty member without the Dean's

permission. When the administrative appointment ends, the faculty member

rank and status he had held before accepting the deanship.

3. Professor Malkan 's contract reflected the decanal/faculty appointment

accepted his administrative appointment as Director of the Research and Writing

qualified to teach, as well as the usual service responsibilities of a clinical

terminate Professor Malkan's faculty appointment. Just as a Dean cannot make a

faculty appointment without proceeding through the Faculty Appointments

Committee, he cannot terminate a faculty appointment without proceeding through

4. Former-Dean Mutua 's perjured testimony. - What makes the Solicitor

General's position so disingenuous is that he fails to acknowledge the scandal that

had no authority to take action on Professor Malkan's candidacy for promotion to

full clinical professor.

He testified that no faculty recommendation was on the table for then-Dean

an "ultra vires" action on a faculty appointment.

The Solicitor General's second error is to argue that the faculty's

deliberation on the termination of a faculty appointment is optional if the Dean has

already made up his mind to fire a clinical professor.

Malkan misinterprets the By-Laws to require a Committee vote

hires and fires professors, unconstrained by the Faculty Bylaws.

Committee (and the hived-off Committee on Clinical Promotion and Renewal)

jurisdiction, in identical language, over promotion to University tenure or 405(c )-

protected status ("clinical tenure") as signified by the mandatory word "shall."

a. This Committee shall be composed of the Dean, who shall be

b. This Committee shall have jurisdiction over and the power to

(1) Promotion to the rank of Clinical Professor shall be

(2) Promotion to the rank of Clinical Associate Professor shall

(3) The granting of an indefinitely renewable long-term contract

(4) Renewal, dismissal, or termination of the appointment of a