Professional Documents
Culture Documents
No. 19-1958
____________________________________________________
Jeffrey Malkan,
Plaintiff-Appellant,
v.
American Bar Association, and
Council of the Section on Legal Education
and Admissions to the Bar,
American Bar Association,
Defendant-Appellee
_______________________________
________________________________________________
Jeffrey Malkan,
Plaintiff-Appellant, pro se
12 Valleywood Ct. W
Saint James, New York 11780
(631) 862-6668
jeffrey.malkan@outlook.com
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TABLE OF CONTENTS
Table of Authorities……………………….………………………………………………………ii
Jurisdictional Statement…………………………………………………………………………. iv
Argument
I. The District Court erred by basing its decision on a theory of the case that the Plaintiff has
never maintained. ……………………………………………………………………………..…. 2
II. The District Court erred by misconstruing the time frame of the promissory fraud claim…... 6
III. The District Court erred by drawing every possible unfavorable inference from the
allegations of the complaint. …………………………………………………………………….10
IV. The District Court erred by failing to give any weight to the public interest in protecting the
integrity of the accreditation process. ………………………………………………………….. 20
Conclusion ….…………………………………………………………………………………...23
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TABLE OF AUTHORITIES
Cases
Kaplan v. Shure Bros., Inc., 153 F.3d 413, 417 (7th Cir. 1998) ……….………….……………xv
Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429 (7th Cir. 1996)
……………………………………………………………………………………...…….……..xv
Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 1990) …………….2
Berger v. Nat'l Collegiate Athletic Ass'n, 843 F.3d 285, 289 (7th Cir. 2016) .…………………...2
Steinberg v. Chicago Med. School, 371 N.E.2d 634, 69 Ill.2d 320, 333-34 (1977) ……………...6
Soules v. Gen. Motors Corp., 402 N.E.2d 599, 79 Ill. 2d 282, 286 (1980)…………………..…...7
HPI Healthcare v. Mt. Vernon Hosp., 545 N.E.2d 672, 131 Ill. 2d 145, 186 (1980)…..…………7
Stamatakis Indus., Inc. v. King, 520 N.E.2d 770, 772, 165 Ill. App. 3d 879, 881-82 (1987) …….7
Bower v. Jones, 978 F.2d 1004, 1011 (7th Cir. 1992) ……………………………………………7
Dressler v. Old Oak Dev. Corp., 548 N.E.2d 1343, 192 Ill. App. 3d 577, 585 (1989) …………..7
Duhl v. Nash Realty, Inc., 429 N.E.2d 1267, 102 Ill. App. 3d 483, 490-91 (1981) ……………...7
Willis v. Atkins, 106 N.E.2d 370, 412 Ill. 2d 245 (1952) ………………………………………....8
Apostol v. Landau, 957 F.2d 339, 343 (7th Cir. 1992) ………………………………………….10
Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985)………………………………... 10
ii
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Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir. 2008) …………………………………..10
AnchorBank FSB v. Hofer, 649 F.3d 610, 624 (7th Cir. 2011) …………………………………11
Beckman v. Chi. Bears Football Club, Inc., No. 17 C 4551, 2018 WL 1561719, at *1 (N.D. Ill.
March 30, 2018) …………………………………………………………………………………12
DH2, Inc. v. SEC, 422 F.3d 591, 597 (7th Cir. 2005) …………………………………………...12
Segovia v. United States, 880 F.3d 384, 389 (7th Cir. 2018)…………………………………… 12
Ass’n of Am. Physicians & Surgeons, Inc. v. Koskinen, 68 F.3d 640, 642 (7th Cir. 2014)…..….20
Other Authorities
Department of Education, Required Standards and their Application, 34 CFR Part 602, Subpart
B…………………………………………………………………………………………………..4
Policies of the Board of Trustees of the State University of New York ………………………..18
Peter A. Joy and Robert R. Kuehn, The Evolution of ABA Standards for Clinical Faculty, 75
Tenn. L. Rev. 183, 206-213 (2008) ……………………………………………………………..21
Peter A. Joy, ABA Standard 405(c): Two Steps Forward and One Step Back for Legal Education,
66 J. Legal Ed. 606, 618-626 (2017) ……………………………………………………………21
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JURISDICTIONAL STATEMENT
The district court had jurisdiction over this case as a civil action arising
under the laws of the United States based on diversity of citizenship pursuant to 28
U.S.C. § 1332. This appeal is taken from the final order of the U.S. District Court
for the Northern District of Illinois, dismissing the complaint, entered on May 8,
2019, by the Honorable John Robert Blakey. The dismissal, with prejudice, is
final. The Notice of Appeal was filed on May 17, 2019. The United States Court
Standard 405(c) in its entirety, and the ABA’s false assertion of fact that the
University at all relevant times has been in full compliance with Standard 405(c)?
This is an action against the American Bar Association and the ABA
Council of the Section on Legal Education, filed by the Plaintiff on November 27,
2018. [Dkt. #1, 3.] The complaint alleges both negligent and fraudulent
SUNY Buffalo Law School. It also seeks a declaratory judgment [Count II] in the
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form of a ruling that the SUNY Buffalo Law School is not in compliance with
Specifically, the complaint alleges that the Plaintiff was deprived of his right
405(c) at all times relevant to the complaint when it knows that University, on
October 30, 2017, successfully argued to the U.S. Court of Appeals that it cannot
comply with that standard, and never has, due to self-imposed legal constraints that
The ABA responded by filing this motion to dismiss on February 18, 2019,
alleging that the District Court did not have subject matter jurisdiction and also
alleging that the Plaintiff failed to state a claim upon which relief can be based.
[Dkt. #23.] The motion was presented to the District Court on March 5, 2019.
[Dkt. #27.] On May 8, 2019, the District Court issued an order granting the ABA’s
motion to dismiss on the basis of Article III standing, and dismissing Counts I and
II with prejudice. [Dkt. #29.] In its opinion, the District Court limited its ruling to
Mem. Op. at 8-9. [Dkt. #30.] The Plaintiff filed his Notice of Appeal on May 17,
2019 [Dkt. #33-35], and the appeal before this Court ensued.
STATEMENT OF FACTS
On July 25, 2000, the Plaintiff was offered a faculty appointment as Clinical
Associate Professor of Law at the State University of New York at Buffalo, with a
Program. He accepted this offer on August 7, 2000, and subsequently served for
On April 28, 2006, the Law School’s Promotion and Tenure Committee
approved his reappointment and promotion to the title and rank of full Clinical
former-Dean R. Nils Olsen, Jr. on October 19, 2006, and accepted by the Plaintiff
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stating that the intention of the parties was to formalize the requirements of
Standard 405(c).
any future dean to non-renew the contract would have to be confirmed during the
committee of the entire tenured faculty at his current rank or higher. Id.
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ABA-accredited law school, led the Plaintiff to believe that he had a permanent
faculty appointment as a clinical professor of law and that his renewal in that
position would be mandatory, in the absence of good cause, upon the expiration of
good cause. – Two years later, on August 28, 2008, the new interim dean of the
Law School, Makau W. Mutua, issued a notice of non-renewal that terminated the
When the faculty convened at the end of the spring 2009 semester to
consider clinical promotions and renewals, former-Dean Mutua refused to place his
name on the agenda, thereby blocking the faculty from providing him with due
process. On the day that his contract expired, the Plaintiff’s employment at the
University came to an end. Id. From that day forward, the stigma of a “for cause”
damages by resuming his career in legal education at any other law school. Id. ¶ 9.
decade before the state and federal courts of the State of New York, the Attorney
General of New York took the position that the Policies of the Board of Trustees,
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which are regulations of the New York State Department of Education, prevent any
SUNY campus from granting presumptively renewable term contracts to full time
School. Id. ¶¶ 2-3, ¶¶ 43-44. That legal restriction retroactively abrogated all of
the Law School’s certifications of compliance with ABA Standard 405(c) and any
interpretation of the Policies of the Board of Trustees was not only textually
inaccurate and factually unprecedented, but also practically impossible because the
repudiation of any ABA standard would cause the Law School to forfeit its
operating license. Id. ¶ 59, 62. He further maintained that the Policies of the
Board of Trustees are simply the University’s own enabling rules, promulgated in
the form of Department of Education regulations, which the Trustees could amend
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E. The decision of the U.S. Court of Appeals for the Second Circuit. – The
University’s defense succeeded in the federal district court in Buffalo and was
affirmed by a panel of the Second Circuit on October 30, 2017. The panel opinion
in Malkan v. Mutua, 699 Fed. Appx. 81 (2d Cir. 2017), adopted the district court’s
finding of fact that the Plaintiff had received a fraudulent contract from the
University that provided no basis for a federal right to due process based on a
Id. ¶ 55 (emphasis added). The panel’s conclusion was that the ABA’s Standards
for the Accreditation of Law Schools and the contracts and personnel rules issued
by the Law School in compliance with Standard 405(c) over the past two decades
March 17, 2016. He filed his complaint after he received the ruling from the U.S.
Magistrate in Buffalo, and prior to the Law School’s upcoming site evaluation in
April of 2016. Id. ¶ 45-47. The Accreditation Counsel responded that she would
refer his complaint to the Site Visit Team. Id. ¶ 48. He received no further
information from the ABA. The Law School’s reaccreditation was approved by
the Accreditation Committee at its April 20-21, 2017 meeting. Id. at ¶ 51.
On January 29, 2018, the Plaintiff filed a second complaint with the ABA,
this time enclosing a copy of the Second Circuit’s decision, providing final and
conclusive proof that SUNY Buffalo had repudiated Standard 405(c). Id. ¶ 56. On
Counsel:
Id. ¶ 58. After this final – “not subject to appeal” – decision by the ABA, the
that he would forward his information to the Accreditation Counsel. Id. at ¶¶ 50-
51. When that approach failed, the Plaintiff wrote directly to the Managing
Director, Barry Currier, once again providing his evidence of the violation. Id. ¶
62. His letter to the Managing Director also included a front page article from the
Id. ¶ 65. The Managing Director ignored this submission as well. In total, six
months passed from June 4, 2018, the day of the ABA’s final decision, and
December 5, 2018, the day that the complaint was served on the ABA in Chicago
and this action commenced in the District Court. For the Court’s convenience, a
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The Promotion and Tenure Committee recommends that the Plaintiff be promoted to full clinical
professor and that his appointment should be renewed with a 405(c)-protected, long-term contract.
Plaintiff signs a long-term, 405(c)-protected contract with the SUNY Buffalo Law School.
Former-Dean Mutua notifies the Plaintiff that he will not sign his contract renewal and that his removal
from the faculty will be effective when his contract expires of the end of the academic year.
The ABA visits SUNY Buffalo for its sabbatical site evaluation; reaccreditation is approved.
Plaintiff files for breach of contract in the New York Court of Claims; the Notice of Claim is dismissed as
untimely. In a second ruling, the claim is dismissed again on the grounds that the University cannot
legally comply with Standard 405(c). See Malkan v. SUNY Buffalo, Nos. 116355, 117676 (Sept. 6, 2013).
Plaintiff files a due process lawsuit, pursuant to 42 U.S.C. § 1983, in federal district court in Buffalo.
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December 2, 2015
After two and a half years of pretrial proceedings, the U.S. Magistrate for the Western District of New
York recommends that summary judgment be granted to the University based on its assertion that it
cannot legally award long-term contracts and due process rights, notwithstanding ABA Standard 405(c).
March 4, 2016
The Plaintiff files a complaint with the ABA, reporting the University’s repudiation of Standard 405(c).
The ABA states that it will review his evidence as part of its upcoming April 23, 2016 Site Evaluation Visit.
He receives no further response. The Law School’s reaccreditation is approved as of April 20, 2017.
The U.S. Court of Appeals for the Second Circuit rules that the University has retroactively revoked all of
its clinical faculty contracts and due process rules; in the absence of a federally protected property
interest in state employment, the Plaintiff had no right to due process; summary judgment is affirmed.
The Plaintiff provides the Second Circuit’s decision to the ABA as conclusive proof that the University has
repudiated Standard 405(c), and revoked all of its clinical faculty contracts and due process rules.
June 4, 2018
The ABA informs him that it finds no violation of any of its standards and closes his complaint.
Plaintiff commences this action in federal district court in Chicago for negligent and fraudulent
misrepresentation, based on the ABA’s endorsement of SUNY Buffalo’s accreditation fraud.
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STANDARD OF REVIEW
The Court of Appeals will review de novo a dismissal with prejudice and
accept all well-pleaded allegations as true. Kaplan v. Shure Bros., Inc., 153 F.3d
413, 417 (7th Cir. 1998). See also Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir.
1996); Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423,
1429 (7th Cir. 1996). It will also draw all reasonable inferences in the plaintiff’s
favor, and affirm only if “it is clear that no relief could be granted under any set of
McDonald, 128 F.3d 481, 489 (7th Cir.1997) (quoting Ledford v. Sullivan, 105
F.3d 354, 356 (7th Cir.1997)); see also Lashbrook v. Oerkfitz, 65 F.3d 1339, 1343
xv
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because it was based on an error of fact. That error was its finding that the Dean of
the Law School was exercising his independent and lawful discretion when he
summarily terminated the Plaintiff’s employment. The District Court found that
this was an intervening and superseding cause that absolves the ABA of all liability
for the violation of his right to due process. The flaw in this logic is that its
The legal authority of the Dean is limited by the faculty’s due process rules.
These rules, in turn, were enacted for the purpose of keeping the Law School in
compliance with the ABA Standards. The District Court erred by failing to
recognize that former-Dean Mutua’s violation of the Plaintiff’s right to due process
and his refusal to comply with Standard 405(c) were one and the same. Once the
factual premise of the District Court’s decision is rejected, the rationale behind its
standard cannot be the chain-breaking event that absolves the ABA from liability
for refusing to enforce that very same standard. To the contrary, it was the initial
event in a chain of causation that led directly to the ABA. The ABA would not
have been called upon to enforce Standard 405(c) had former-Dean Mutua not
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violated it in the first place and had the University not then defended his violation
accrediting agency that tainted the judicial process and deprived the Plaintiff of a
fair hearing in any court. That was the chain of causation between the ABA’s false
standing, limited here to the issue of causation. Cf. Apex Digital, Inc. v. Sears,
Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 1990). To establish Article III
standing, he must credibly allege that he has “(1) suffered an injury in fact, (2) that
is fairly traceable to the challenged conduct of the defendant, and (3) that is likely
1540, 1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-
61); see also Berger v. Nat'l Collegiate Athletic Ass'n, 843 F.3d 285, 289 (7th Cir.
2016). The sole issue the appeal raises is whether the causal connection between
the Law School’s violation of his right to due process and the ABA’s refusal to
order it back into compliance with Standard 405(c) was sufficient to satisfy the
The District Court ruled that the chain of causation between his wrongful
termination and the ABA’s authority over the Law School was too attenuated to
support a wrongful termination claim. That ruling, however, was based on the
mistaken belief that he was blaming the ABA for his wrongful termination. To the
contrary, he does not allege that the ABA was a party to his contract, breached his
2008-09 academic year. What he does allege is a violation of his right to due
alleges that he was initially denied his right to predeprivation due process in the
Law School. That occurred during the 2008-09 academic term. He does not lay
the blame for that denial on the ABA’s doorstep. He does, however, seek to hold
October 30, 2017, successfully obtained a ruling from the U.S. Court of Appeals
for the Second Circuit that its Law School is not now, and never has been, in
compliance with Standard 405(c), with the result that all of its clinical contracts
and due process rules are retroactively null and void. See Compl. ¶¶ 2, 81. The
complaint alleges that the University subverted the accreditation process by lying
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to the ABA about its 405(c)-compliance on both its 2002 and 2009 Self-Study
Reports. Id. ¶¶ 2, 81. The University knew that it could make that devastating
admission because the ABA had already refused to take any action against it for
revoking all of its clinical contracts and due process rules one year earlier on the
On the day that the Attorney General of New York asserted the University’s
repudiation of Standard 405(c) to the U.S. Court of Appeals, the ABA already
knew that SUNY Buffalo had repudiated Standard 405(c) to the U.S. Magistrate
Judge of the Western District of New York and in the New York Court of Claims
in Buffalo. It also knew that the University’s employment counsel had testified
that the University has never had the legal capacity to honor the long-term
contracts and protected property rights that it was awarding to its clinical faculty
members after their elevation to the rank and title of clinical professor. Id. ¶ 47.
When the ABA became aware that an ABA-accredited law school had
4
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Required Standards and their Application, 34 CFR Part 602, Subpart B; see Compl.
¶ 22. The Plaintiff’s reliance on the ABA to prevent the University from
It must be noted that the Plaintiff has never argued that the ABA was
he was entitled to rely on the efficacy and viability of Standard 405(c) as long as
that standard remains in effect. See Compl. ¶ ¶ 41, 79-80. What happened here
was the opposite of standards enforcement. The ABA not only turned a blind eye
it held of the University’s defiance, but, on June 4, 2018, expressly informed the
5
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In Steinberg v. Chicago Med. School, 371 N.E.2d 634, 69 Ill. 2d 320, 333-34
(1977), the Supreme Court of Illinois held that the false assertion of a merit-based
admissions policy in a medical school bulletin, upon which it knew that the
that school’s applicant pool. Likewise here, the ABA’s false assertion of a law
school’s compliance with an accreditation standard, upon which it knows that the
law school’s clinical faculty will rely, amounts to a promissory fraud aimed at that
To conclude, all of the damage in this matter was caused by the ABA’s
to block the Plaintiff from receiving due process in the Law School, in
defiance of Standard 405(c), and the damages the Plaintiff seeks to recover.
The principal cause of action alleged by the complaint is a claim for what is
6
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Soules v. Gen. Motors Corp., 402 N.E.2d 599, 79 Ill. 2d 282, 286 (1980).
Although the general rule in Illinois is that false promises alone do not give
rise to a claim for fraud, the exception to the rule – known as the “scheme to
defraud” theory – is well established here. See, e.g., HPI Healthcare v. Mt. Vernon
Hosp., 545 N.E.2d 672, 131 Ill. 2d 145, 186 (1980); Stamatakis Indus., Inc. v.
King, 520 N.E.2d 770, 772, 165 Ill. App. 3d 879, 881-82 (1987). In a promissory
fraud claim, the false statement of fact will be a promise that lures the plaintiff into
Bower v. Jones, 978 F.2d 1004, 1011 (7th Cir. 1992). “While misrepresentations
Corp., 548 N.E.2d 1343, 192 Ill. App. 3d 577, 585 (1989); see also Duhl v. Nash
Realty, Inc., 429 N.E.2d 1267, 102 Ill. App. 3d 483, 490-91 (1981) (same).
In the present case, the promise of “something to be done in the future” was
the enforcement by the ABA of its Standards for the Accreditation of Law Schools
upon conclusive evidence that a law school has dropped out of compliance with an
7
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accreditation standard, in this case, Standard 405(c). A finding of fact by the ABA
is a false assertion of fact upon which that law school’s clinical professors will
foreseeably rely to make a commitment that may cost them their reputations,
careers, and livelihoods. It supports a cause of action for promissory fraud, which
by which the Plaintiff was damaged in a direct line of cause and effect. He did not
know that he had fallen prey to a scheme to defraud until the Attorney General of
New York, years later, asserted in court that his contract had been rendered null
and void by the University’s repudiation of Standard 405(c), which it had done
In Willis v. Atkins, 106 N.E.2d 370, 412 Ill. 2d 245 (1952), one of the two
seminal cases in Illinois, the Supreme Court accepted a claim for promissory fraud
in a lawsuit that alleged that a false promise to marry, i.e., a promise of future
plaintiff’s assets. The victim of the fraud in Willis did not know that she had been
defrauded until her fiancée’s promise to marry came due and he refused to do so.
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He first made the promise to marry her in June of 1936. See 412 Ill. 2d at
249. She did not discover that he had married someone else until January of 1947.
Id. at 252. In the interim he had “conceived and executed a fraudulent scheme to
secure her money and property by false, deceitful and fraudulent words and
conduct designed to gain her confidence and trust for the sole purpose of inducing
her to part with her real estate and personal property.” Id. at 255. In other words,
there was a time lag of eleven years between the fiancée’s promise to marry and
November 16, 2006. He did so in the belief that Standard 405(c) was a legal
commitment that SUNY Buffalo could only repudiate at the cost of forfeiting its
license to operate. His contract was terminated as of August 30, 2009, and a
litigation against the University of nearly a decade ensued, but throughout that
entire period of time he had no reason to blame the ABA for SUNY Buffalo’s
accreditation fraud. In fact, he believed that the University was telling one story to
the courts and the opposite story to the ABA on its annual reports and sabbatical
site evaluations. In other words, he believed that the ABA was a fellow victim of
It was not until June 4, 2018 that the ABA informed him that it had reviewed
the evidence in the matter, in particular, the October 30, 2017 ruling of the U.S.
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Court of Appeals for the Second Circuit, and found that the University was not in
violation of any of its accreditation standards. That was twelve years after he had
Law School.1 The District Court seized on that interval to find that causation was
too attenuated to satisfy the standing requirement of Article III. That finding,
however, was based on an error of law. Under Illinois law, the fact that it took
twelve years for the ABA’s role in the accreditation fraud to manifest itself to the
victim of the fraud should not in any way detract from the element of causation as
Rhodes, 416 U.S. 232, 236 (1974). See also Apostol v. Landau, 957 F.2d 339, 343
(7th Cir. 1992); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985).
That includes the benefit of “all possible inferences” that can be drawn in the
Plaintiff’s favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir. 2008).
1
The District Court called it a ten year interval, measuring it from August 28, 2008, the date that
former-Dean Mutua delivered notification that he intended to terminate the contract upon its
expiration one year hence. See Mem. Op. at 10.
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“The issue is not whether a plaintiff will ultimately prevail but whether the
The District Court, contrary to this advice, withheld the benefit to which the
Plaintiff was entitled by drawing the most unfavorable inferences that it could
possibly draw from his allegations in order to reach the mistaken conclusion that
no further proceedings could ever establish that he had reached the threshold of
Article III standing. It then compounded that error by dismissing the complaint
Mem. Op. at 10. This ruling was based on three separate inferences from the facts
alleged in the complaint. All three inferences were not only construed in the
manner most damaging to the Plaintiff, but were also exactly the opposite of what
he alleged.
terminate the Plaintiff’s employment in the Law School for good cause.
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The District Court concluded that the chain of Article III causation was
discretion when he decided that he had good cause to terminate the Plaintiff’s
contract, and proceeded to do so. It supported this conclusion with a string citation
to a series of cases in which the decisions and actions of third parties, taken
The most recent case cited by the District Court, Beckman v. Chi. Bears
Football Club, Inc., No. 17 C 4551, slip op., at 1 (N.D. Ill. March 30, 2018),
illustrates just how wrong this analysis was. The plaintiff in Beckman sued the
NFL because the Chicago Bears would not allow him to wear his Green Bay
relief, he argued that the NFL was responsible for his disappointment because the
The district court, however, found that Beckman had “failed to identify any
NFL rule, policy, or anything else that required, or even encouraged, the Bears to
2
See DH2, Inc. v. SEC, 422 F.3d 591, 597 (7th Cir. 2005) (“[m]utual funds have the discretion to
use fair value pricing in lieu of market quotations when circumstances warrant the conclusion
that market quotations are no longer current”); Segovia v. United States, 880 F.3d 384, 389 (7th
Cir. 2018) (“Illinois has discretion to determine eligibility for overseas absentee ballots under its
election laws”). The Beckman case is discussed in the text, supra.
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Id. at 12-13. In contrast to the Beckman case, the Plaintiff’s claim against the ABA
checks all the boxes that Beckman failed to check. Unlike the NFL, the ABA has
rules in place with which accredited law schools are required to comply. The
decision of whether to comply is not one that is left to the discretion of individual
Mutua had no discretion to bypass the ABA accreditation standards and summarily
SUNY Buffalo had no discretion that would allow it to repudiate Standard 405(c)
The District Court appeared to draw its erroneous inference from the
have the lawful discretion to terminate clinical professors “for good cause,
Compl. ¶¶ 29, 30. The problem is that this truncated version of the standard would
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turn all clinical professors into at-will employees who could be terminated at any
time at the unfettered discretion of the dean. That is precisely the opposite of what
Standard 405(c) requires, which is that clinical professors must be protected from
the arbitrary power of the dean and his administration through in-house due
process, provided by the faculty itself, that is based on the standard of good cause.
employment in the absence of good cause for termination, which is usually defined
process. That is why the crucial right conferred by Standard 405(c) is the right to
in-house due process in accord with the legal norms of fairness and justice. This is
how the AAUP in its 1940 Statement of Principles on Academic Freedom and
law school does not have the independent authority to declare a finding of good
exercise of lawful discretion. What the dean has the authority to do is to bring his
or her allegations of good cause before a quasi-judicial body at which time the
Plaintiff are still unknown because he never brought his charges of good cause
before the faculty. The only inference that should be drawn from his choice to
Compl. ¶ 42, is that he had no good cause in the first place. In addition to acting
summarily, unilaterally, and evidently without good cause, he was exceeding and
abusing his discretion by violating the faculty’s due process rules as enacted in its
Faculty Bylaws. Finally, he was defying the mandate of Standard 405(c) because
3
The 1940 Statement of Principles on Academic Freedom and Tenure, is available on-line at
https://www.aaup.org/report/1940-statement-principles-academic-freedom-and-tenure (last
visited May 17, 2019).
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the Faculty Bylaws were drafted for the purpose of keeping the Law School in
not an intervening and superseding cause in the chain of causation, but rather a
knowing and willful violation of Standard 405(c), and one that the ABA, as alleged
405(c), and the ABA’s endorsement of the University’s accreditation fraud, were
all sequential aspects of a single unlawful event, which was intended to prevent the
victim of the fraud from ever receiving due process, either predeprivation due
process in the Law School, or postdeprivation due process in federal court. That is
the only conclusion that a fair reading of the complaint and the favorable
inferences that may be reasonably drawn from its allegations would yield.
required to allege that the ABA failed to discipline the University for “this specific
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unaware that the ABA disclaims any legal obligation to serve as a mediator or
confer standing on him to file a complaint through the ABA’s reporting process.
relief, but rather an order to the law school to remedy the rules, procedures, or
This caveat, however, does not mean that the ABA is immune from civil
fraud. Although the ABA has wide discretion in determining when a standard has
been violated, the allegations here are based on a final decision by the U.S. Court
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of Appeals. That decision, in turn, was made in reliance upon the University’s
Therefore, the only question before this District Court was whether the
ABA’s refusal to discipline SUNY Buffalo for its rescission of all of its clinical
faculty contracts, i.e., its repudiation of Standard 405(c), could serve as the factual
basis for a claim of promissory fraud. The Plaintiff reported the facts underlying
that question to the ABA at his earliest opportunity, that is, after the U.S.
Magistrate Judge for the Western District of New York issued his finding of fact
that SUNY Buffalo has never had the legal capacity to provide long-term contracts
and due process rights as a consequence of the constraints the University has
erroneous inference from the Plaintiff’s lawful adherence to the ABA’s Rules of
Procedure at every stage in his dealings with the Accreditation Counsel and the
he could not trace his alleged injury—the stigma of a “for cause” termination—
The District Court repeatedly maintained that the Plaintiff’s injury was
based on “the stigma of a ‘for cause’ termination,” which he could not trace
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directly to the ABA’s actions. In fact, however, the stigma of a “for cause”
termination was not the predicate of his damages as alleged in the complaint. The
predicate of his damages is the violation of his right to due process. The paragraph
from which the District Court derived its erroneous inference alleged as follows:
Compl. ¶ 9. This allegation was intended to explain why he had failed to mitigate
his damages, that is, why he had any damages in the first place. Only the most
hostile of inferences could have led the District Court to conclude that the stigma
of termination was the sole basis of his claim for damages against the ABA.
A fair reading of the complaint would have focused on his allegation that his
fraud, which tainted the judicial process in the federal and state courts of New
York and deprived him of his right to a fair hearing in any court. This allegation
has two aspects, both of which were expressly stated in the complaint.
First, the complaint alleged that he could not possibly have accepted a
clinical faculty appointment at SUNY Buffalo if he had any reason to believe that
the ABA's imprimatur on that law school's compliance with Standard 405(c) was
fraudulently applied. Id. ¶ 80. Second, the complaint alleged that the University
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could not have maintained its accreditation fraud in federal court if the ABA had
not refused in the previous accreditation cycle to order it back into compliance
with Standard 405(c). Id. ¶ 81-82. That was the cause and effect alleged in the
complaint and, viewed in the light most favorable to the Plaintiff, it was more than
Finally, the District Court drew yet another hostile inference, this time from
his suggestion that the ABA could implead the University under Rule 14 if it
believed that the University was jointly responsible for the damages he alleged in
the complaint. See Mem. Op. at 11. The District Court jumped to the conclusion
that he was trying to circumvent the requirements of Article III standing. “Rule 14
cannot relieve the Plaintiff of his Article III burden.” See Mem. Op. at 11.
However, he was suggesting no such thing. He was simply pointing out that the
ABA need not bear the entire expense of compensating him for a fraud in which
The Plaintiff is not seeking to represent the interests of third parties with
whom he has generalized grievances in common, but whose own injury “depends
on the reactions of many intermediate actors.” Cf. Ass’n of Am. Physicians &
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Surgeons, Inc. v. Koskinen, 768 F.3d 640, 642 (7th Cir. 2014) (denying taxpayer
It is true, however, that the complaint implicates the interest of the clinical
after many years of consideration and debate, the ABA House of Delegates took
clinical legal education under its purview when it enacted Standard 405(c). See
Peter A. Joy and Robert R. Kuehn, The Evolution of ABA Standards for Clinical
Faculty, 75 Tenn. L. Rev. 183, 206-213 (2008). The ABA reaffirmed its
commitment to clinical legal education nine years later with the requirements of
presumptively renewable contracts of at least five years in length and due process
rights with a good cause standard of review. See id., at 213-223 (legislative history
of Interpretation 405-6).4
The complaint alleges that the Managing Director has, in effect, nullified the
functional accreditation standard. See Compl. ¶ 10. That is a proper matter for
judicial review. Indeed that is all the more reason why a declaratory judgment
4
It should be noted that Professor Joy, in his 2017 follow-up article, examined the resistance to
Standard 405(c) by the Association of Law School Deans (ALDA), and the unrelenting pressure
that ALDA has placed on the ABA Accreditation Committee to eliminate protections for clinical
professors based on security of employment. See Peter A. Joy, ABA Standard 405(c): Two Steps
Forward and One Step Back for Legal Education, 66 J. Legal Ed. 606, 618-626 (2017).
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Plaintiff from ever discovering what justification was submitted by SUNY Buffalo
for repudiating Standard 405(c). That justification was stated both in the Law
School’s submissions to the ABA at the time of its 2016 Site Evaluation, and in the
rebuttal that the University submitted in response to his January 29, 2018
the ABA contended in the District Court that the University has put into place
Interpretation 405-6, which is why the Managing Director found no violation. See
Defs’ Mem. in Supp at 10. [Dkt. #22] To the contrary, the complaint alleges that
where clinical professors have no legal rights that continue from one contract term
to the next. See Compl. ¶ 73. If there is such a hitherto unknown method of
the public interest for the ABA to be required to disclose what that is.
Finally, the question that is most urgently presented by the allegations of the
core academic freedom standard –is not a violation of the Standards for the
Accreditation of Law Schools, than what is? This question is not only crucial and
possibly dispositive to the present case, but is also of the highest concern to the
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hundreds of clinical and legal writing professors throughout the United States who
have entrusted their careers to the integrity of the ABA’s accreditation process.
CONCLUSION
For the foregoing reasons, the decision and order of the District Court should
Respectfully submitted,
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CERTIFICATE OF COMPLIANCE
WITH F.R.A.P. RULE 32(a)(7), F.R.A.P. 32(g), CR 32(c)
The undersigned, Plaintiff-Appellant, pro se, Jeffrey Malkan, furnishes the following in
compliance with F.R.A.P Rule 32(a)(7):
I hereby certify that this brief conforms to the rules contained in F.R.A.P Rule 32(a)(7)
for a brief produced with a proportionally spaced font. The length of this brief is 9,806 words.
Pursuant to Circuit Rule 30(d), counsel certifies that all material required by Circuit Rule
30(a) and (b) are included in the appendix. See also: Circuit Rule 30(a) Circuit Rule 30(b)
United States v. Rogers, 270 F.3d 1076, 1084 (7th Cir. 2001); In re Mix, Disciplinary Case D-
134, 901 F.2d 143 (7th Cir. 1990); Mortell v. Mortell, 887 F.2d 1322 (7th Cir. 1989)
24
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PROOF OF SERVICE
The undersigned certifies that he filed Brief of Plaintiff-Appellant and Required Short
Appendix on CM/ECF which will send electronic notification to all attorneys registered for
CM/ECF filing.
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Disclosure Statement
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FIIJTD
UNITED STATES DISTRICT COURT
9-Nov z 7 zoll
NORTHERN DISTRICT OF ILLINOIS
^ -T}IOIT,IASG
ctERl(
BRUTON
u.s DtsrRtcrcouRT
CTVI ACTION NO.
JEFFREY MALKAN,
Plaintiff, COMPLAINT
Plaintiff, Jeffrey Malkan, proceeding pro se, brings this civil action against the
Admissions to the Bar, American Bar Association; and Accreditation Committee of the Section
of Legal Education and Admissions to the Bar, American Bar Association (collectively,
l. This is a civil action for declaratory relief and monetary damages to remedy the
ABA's knowing and willful protection of, and complicity in, an accreditation fraud at the Law
2. The dispositive fact before this Court is the ruling by the U.S. Court of Appeals,
dated October 30, 2017, that it is legally impossible for the State University of New York at
Buffalo to comply with ABA Standard 405(c), which is the core academic freedom standard that
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has protected the mission and the integrity of clinical faculties throughout the United States,
3. The University sought and obtained a judicial decision that reduces all clinical
professors in the sixty-four campus SLrNY system, including the SUNY Buffalo Law School, to
the status of "at will" employees at the end of every three-year term, without regard to any
contractual promises, faculty policies and bylaws, university rules and procedures, or ABA
4. One and a half years prior to the Second Circuit's ruling, SUNY Buffalo received
an ABA sabbatical site evaluation visit, after which the ABA approved the Law School for
5. At that point, the ABA was in possession of conclusive evidence that the Law
School's compliance with Standard 405(c) was based entirely on false documentation -
unenforceable contracts, non-functional due process procedures, and sham faculty appointments
- all of which the University had disavowed in both state and federal courts.
6. That evidence took the form of two judicial decisions, one from the New York
Court of Claims and the other from the federalmagistrate's court of the Western District of New
York, both holding that any long-term contracts and due process rules that promised to protect
the academic freedom of the clinical faculty were ultra vires, unlawful, null and void.
7. After the 2016 reaccreditation was approved by the ABA, the State University of
New York at Buffalo proceeded to plead exactly the same defense to the U.S. Court of Appeals
8. T'he ABA's 2016 reaccreditation of a Law School that it knew had repudiated
Standard a05(c) enabled SUNY Buffalo to obtain a legal outcome that exonerated its Law
School of any legal liability for the ongoing fraud that it was perpetrating on its clinical faculty.
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9. The ABA also knows that its continuing accreditation of a Law School that has
repudiated Standard 405(c) imposed the stigma of a "for cause" termination on the Plaintiff that
made it impossible for him to resume his career at any other accredited law school.
10. This Court should hold the ABA accountable for perpetrating a fraud on the legal
non-functional standard that it has never treated as anything but an empty formality.
PARTIES
11. Plaintiff Jeffrey Malkan (the "Plaintiff') was employed as a member of the full
time faculty at the SUNY Buffalo Law School from 2000 through2009, with the expectation of
a pernanent faculty appointment with presumptively renewable contracts, in-house due process
rights, and a good cause standard of review, at the title and rank of Clinical Professor of Law.
12. Defendant American Bar Association is a corporate entity organized into various
components, including the "Council" and the "Accreditation Committee," as described below.
13. Defendant Council of the Section of Legal Education and Admissions to the Bar,
Pursuant to 34 C.F.R.Part 602, the U.S. Department of Education ("DOE"), since 1952, has
recognized the Council as the authorized agency for accrediting programs in legal education
that lead to a professional degree in law and the law schools offering such programs.
accrediting agency extends to the Committee for decisions involving continued accreditation of
law schools.
15. The American Bar Association, the Council, and the Accreditation Committee
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16. This Court has diversity jurisdiction under 28 U.S.C. $ 1332(a)(1). The Plaintiff
and the Defendants are citizens of different States. The Plaintiff is a citizen of New York. The
ABA is incorporated in Illinois, where it also has its principal place of business. The Council
and the Committee are components of the American Bar Association and are not separately
incorporated. The matter in controversy exceeds the sum or value of $75,000, exclusive of
17. Venue is proper in this district pursuant to 28 U.S.C. $ l39l(b). The Committee
and Council corresponded with the Plaintiff from the ABA's address in Chicago, Illinois, and
the SUNY Buffalo Law School made its submissions to the ABA to the same address.
18. Pursuant to 34 C.F.R. Part 602, the U.S. Department of Education ("DOE") has
recognized the ABA Council as the agency for accrediting programs in legal education that
lead to a professional degree in law and the law schools offering such programs.
19. The DOE's recognition of the ABA Council extends to the Committee for
20. The DOE requires accrediting agencies to follow uniform procedures in the
21. The DOE requires accrediting agencies to take remedial and punitive
measures, including withdrawal of accreditation, against institutions that fail to comply with
mandatory accreditation standards. See "Required Standards and their Application," 34 CFR
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22. Under DOE rules, the application of the agency's enforcement powers to a
standards violation is mandatory and the time frame for taking adverse action against a non-
(a) Ifthe agency's review ofan institution or program under any standard
indicates that the institution or program is not in compliance with that
standard, the agency must-
(l)Immediately initiate adverse action against the institution or
program;or
(2) Require the institution or program to take appropriate action to
bring itself into compliance with the agency's standards....
(b) If the institutionor program does not bring itself into compliance
within the specified period, the agency must take immediate adverse action
unless the agency, for good cause, extends the period for achieving
compliance.
23. The DOE also requires the agency to provide accurate information to the
general public about its accreditation procedures and outcomes, as well as the opportunity for
the public to file complaints against institutions that are violating its accreditation standards.
These complaints must be promptly and impartially reviewed by the agency and followed-up
by enforcement action as warranted by the facts. See "Operating Procedures all agencies
must have," 34 CFR Part 602.23, Subparts B and C. In addition, the agency is required to
review in a timely, fair, and equitable manner, and apply unbiased judgment to, any
standards and monitor compliance by means of periodic site visits and self-study reports.
25. The ABA has promulgated Standards for Approval of Law Schools.
27. The policy underlying Standard a05(c) is the protection of academic freedom,
which is extended to clinical faculties for the same reasons and to the same extent that it is
28. Under Standard 405(c), the Accreditation Committee is charged to protect the
clinical professors of every ABA-accredited law school from intimidation, abuse, coercion, or
(Emphasis added.)
31. In addition to the ABA Standards, the Accreditation Committee is bound by its
33. Under Rule 16, a law school may be sanctioned for, among other things,
consideration of the law school's status by the Committee or the Council, or in public
34. Sanctions may include "(1) A monetary payment... (3) Public censure; (4)
Private censure; (5) Publication or distribution of an apology or corrective statement by the law
school; (6) Probation for a specific period or until specific conditions are fulfilled...; or (8)
Withdrawal of provisional or full approval." The latter sanction would disqualify the graduates
of the Law School from sitting for the bar examination and effectively put it out of business.
35. In addition, "[a]ny sanction... may be imposed, even if the law school has, at the
time of the decision or recommendation, ceased the actions that are the basis for sanctions or
FACTUAL ALLEGATIONS
rank and title of Clinical Associate Professor of Law at the State University of New York
and Writing Program. He accepted the offer on August 7,2000, and subsequently served
the Law School for six years, or two three-year contract terms.
38. On April 28,2006, the Promotion and Tenure (P&T) Committee of the
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SI-INY Buffalo Law School recommended his reappointment and promotion to the title
and rank of full Clinical Professor of Law, which took the form of a 405(c)-protected
contract, signed and dated by former-Dean R. Nils Olsen, Jr., on October 19, 2006, and
39. Dean Olsen introduced the contract by stating that the intention of the
40. He proceeded to promise on the University's behalf that a decision by any future
Dean to non-renew the contract would have to be confirmed during the contract's terminal year,
in accord with the Faculty Bylaws, in the form of a recommendation voted upon by a committee
41. This 405(c)-compliant contract, together with the Law School's status as an
ABA accredited law school, was the basis of the Plaintiff s expectation that his contract renewal
would be mandatory, in the absence of good cause, upon the expiration of each term of service.
42. Two years later, on August 28,2008, the new interim dean of the Law School,
Makau W. Mutua, issued a notice of non-renewal that terminated the Plaintiff s employment as
of August 31, 2009, without any consultation, deliberation, or recommendation by the faculty.
43. In subsequent proceedings before the federal district court of the Western
District of New York and the New York State Court of Claims, the Attorney General of New
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York presented the argument that the Policies of the Board of Trustees, which are regulations of
the New York State Department of Education, prevent any SUNY campus from granting
44. That legal restriction, according to the Attorney General, retroactively abrogated
allof the Law School's certifications of compliance with ABA Standard a05(c) and any
45. The Plaintiff first attempted to notify the Accreditation Committee of the
University's repudiation of Standard 405(c) in a third party comment on the Law School's
pending application for reaccreditation, dated March 17 , 2016, that he filed in accord with the
The University has represented to the U.S. District Court of the Western
District of New York that it is not able to comply with ABA Standard
a05(c) because presumptively renewable term contracts are prohibited by
the SUNY Trustees' Policies. This contradicts the representations made to
the ABA in the Self-Study Report of April 2009. It also contradicts the
Faculty Bylaws and the Clinical Faculty Appointments Policy.
47. The comment enclosed a copy of the Magistrate's Report and Recommendations,
dated October 1,2015, as well as excerpts from the deposition of STINY Buffalo's employment
counsel, James L. Jarvis, Jr., Esq., dated December 20,2013, in which he testified that the
University has never had the legal capacity to honor any of its 405(c)-protected contracts.
responded that "[s]ince the law school is due to receive a site evaluation within a few weeks,
this matter will be referred to the site team and handled as part of the sabbatical site evaluation."
49. The Office of the Managing Director provides a Site Visit Template to all site
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visit teams for the purpose of "giv[ing] the Council as much information relevant to the
Standards as possible, so it may take appropriate action based upon the team's report." The
Template requires the site visit team to report the following data pertaining to Standard 405(c):
(a) Describe the Law School's system of security of position for full-time
clinical faculty. (lndicate if there are no clinics.) (b) If the full-time
clinical faculty do not have a system of tenure, state the length of the
contracts for full-time clinical faculty and whether the contracts will be
renewed, including whether the contracts are presumptively renewable....
(c) If the contract system does not lead to a presumptively renewable
contract ofat least five years in length, describe how the Law School
ensures academic freedom and note whether it is the same academic
freedom as provided to tenure-track faculty.
50. The SUNY Buffalo sabbatical site evaluation was completed on or about April
23,2016.
51. At its April 20-21,2017 meetine, the Accreditation Committee considered the
status of the SUNY Buffalo Law School and found that it was not in compliance with Standards
202(a) and 502(d). In accord with DOE regulations, the Committee posted a public notice
requiring the Law School to submit a report setting forth its plan for rectifying its non-
53. Between the ABA's 2009 and 2016 sabbatical site evaluations of SUNY Buffalo,
that is, in the time frame when the Plaintiff was challenging the Law School's repudiation of
Standard a05(c) in federal and state courts, every single 405(c)-protected clinical professor was
either terminated by the Dean or forced into early retirement. Four out of five of these clinical
professors were at least ten years younger than the Social Security retirement age of sixty-six.
54. In knowing and willful disregard of its duty to communicate truthfully about the
compliance status of accredited law schools and to retract misinformation that it previously
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published by reason of negligence or fraud, the ABA continues to communicate false assurances
The U.S. Court of Appeals confirms that SUNY Buffalo has repudiated Standard 405(c)
55. On October 30,2017, the U.S. Court of Appeals for the Second Circuit issued its
decision in the Plaintiff s due process lawsuit against former-Dean Makau W. Mutua.
(Emphasis added.) This decision adopts the interpretation of the Policies of the Board of
Trustees that was advocated by the Attorney General on the University's behalf.
56. The Plaintiff, on January 29,2018, provided the Accreditation Committee with a
copy of this decision as evidence of the Law School's repudiation of Standard 405(c).
57. At no point in this process did the Plaintiff ask the Accreditation Committee to
serve in a mediating or dispute-resolving capacity, intervene regarding any adverse action taken
against him or anyone else by the Law School, act in any way on his or anyone else's behalf, or
order any individual relief to anyone regarding any aspect of the facts that he was reporting.
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58. On June 4,2018, the Plaintiff received the following response from the
Accreditation Counsel :
59. The Plaintiff sought clarification of this response from Professor Bradley Clary,
Clinical Professor of Law at the University of Minnesota and past president of the Association
60. Professor Clary responded that he could not comment on what action, if any, the
Accreditation Committee might take regarding the Second Circuit's ruling, but advised him that
6r. The Accreditation Committee met on June 30, 2018, and took no action on the
62. On September 7,2018, the Plaintiff filed an objection to the Managing Director,
Barry Currier, about the ABA's failure to give a reasoned response to any of his submissions:
63. Attached to this submission was a front page article from the Buffalo News, dated
September 27,2014, and entitled "Deep Rift Exposed as UB Law's Dean Resigns."
&. The Buffalo News recounted former-Dean Mutua's attack on the academic
freedom of the Law School faculty over the previous seven years, which focused on his
women's rights within the faculty, as well as his repression of faculty self-governance, which
included the University's refusal to allow it to nominate its own dean in 2008-2009, and its
66. Professor Mutua was finally removed from the Dean's Office on September 24,
2014, three days prior to the publication of the Buffalo News article, which also reported, as the
centerpiece of its coverage, that the majority of the tenured faculty had submitted declarations
and deposition testimony to the federal district court and the Disciplinary Committee of the
Eighth Judicial Department accusing him of lying under oath in both state and federal courts
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about the vote of the P&T Committee on the Plaintiff s promotion to clinical professor.
actions against the University of Puerto Rico and the Arizona Summit Law School, but took no
68. The ABA does not have the discretion to ignore a standards violation of which it
69. The ABA does not have the discretion to disregard a decision from the U.S.
10. The ABA does not have the discretion to disregard a decision from the U.S.
Court of Appeals of which it should have been aware, even without a third party informant, in
71. The ABA does not have the discretion to ovemrle binding precedent from the
U.S. Court of Appeals regarding the knowing and willful violation of an accreditation standard.
72. The ABA does not have the discretion to allow SUNY Buffalo to reestablish
compliance with Standard 405(c) by exempting itself from a ruling of the U.S. Court of Appeals
that it successfully obtained for the express purpose of repudiating Standard 405(c).
73. The ABA does not have the discretion to approve any "alternative arrangement"
for the protection of academic freedom at an ABA accredited law school where 405(c)-protected
clinical professors have no legal rights that continue from one contract term to the next.
CAUSES OF ACTION
COUNT I
(FRAUD AND NEGLIGENT MISREPRESENTATION)
74. Plaintiff repeats and realleges the allegations of paragraphs 1-73 as if set forth
fully herein.
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75. In Illinois, a cause of action for common law fraud or fraud in the
inducement must allege the following elements: (1) a false statement of fact; (2) known
by the defendant to be false at the time it was made; (3) made for the purpose of inducing
the plaintiff to act in reliance thereon; (4) action by the plaintiff in reliance on the
negligence in ascertaining the truth of the statement by the party making it; (3) an
intention to induce the other party to act; (4) action by the other party in reliance on rhe
truth of the statement; and (5) damage to the other party resulting from reliance when the
77. The ABA maintains a list of ABA-accredited law schools on its website
and in its print publications, pursuant to its duties as a DOE-approved accrediting agency.
78. That list at all times relevant to this complaint included St rY Buffalo as
an ABA-accredited law school, which means that the ABA has certified it to be in
79. The ABA knows that its certifications of 405(c)-compliance will be used
and relied upon by a small and finite group of legal professionals at any given time, that
is, those who are seeking clinical faculty appointments, those who are considering offers
of clinical faculty appointments, and those who are holding clinical faculty appointments.
80. The Plaintiff could not possibly have accepted a clinical faculty
appointment at SUNY Buffalo if he had any reason to believe that the ABA's imprimatur
on that law school's compliance with Standard a05(c) was fraudulently applied.
81. The Attorney General on October 14,2017 successfully argued before the
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U.S. Court of Appeals that SUNY Buffalo Law School is not now, and never has been, in
compliance with Standard 405(c), with the result that all clinical faculty contracts and due
process rules that are based on compliance with Standard 405(c) are null and void.
82. The University knew that it could make that meretricious argument with
impunity because the ABA had already refused to take enforcement action against the
Law School for expressly repudiating Standard 405(c), or to sanction it, under Rule 16,
COUNT II
(DECLARATORY JUDGMENT)
83. Plaintiff repeats the allegations of paragraphs l-83 as if set forth fully herein.
84. The Declaratory Judgment Act provides: "In a case of actual controversy within
its jurisdiction, ... any court of the United States ... may declare the rights and other legal
relations of any interested party seeking such declaration, whether or not further relief is or could
85. There is an actual controversy between the parties of sufficient immediacy and
86. This Court possesses an independent basis for jurisdiction over the parties.
87. A declaratory judgment will serve a useful purpose in clarifying and settling the
legal relations in issue and will terminate and afford relief from the uncertainty, insecurity, and
88. A judgment declaring that the ABA violated its legal duty to truthfully report
the compliance status of SUNY Buffalo, and to take mandatory enforcement action against
it for repudiating Standard 405(c), would benefit the legal education community by
providing accurate information to legal educators and discouraging any further attacks on
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the integrity and academic freedom of the clinical faculties throughout the United States.
89. A declaratory judgment would also serve the useful purpose of restoring the
Plaintiff s reputation, who was defamed as well as defrauded with a fraudulent 405(c)-
compliant contract, a fraud for which the University has argued that there is no legal remedy.
(a) Declare that SUNY Buffalo is in violation of Standard 405(c), and that the
ABA's certification of its compliance with that standard was arbitrary andcapricious,
(b) Award damages to the Plaintiff for the ABA's accreditation fraud, in an
(c) Award pre- and post-judgment interest, attorney's fees, and such other and fuither
I
l"
'i"l l"ffr",l Malkan
Plaintiff pro se
12 Valleywood Ct. W
Saint James, N.Y. 11780
(631) 862-6668
j effrey.malkan@outlook. com
v. Notice of Appeal
The district court had jurisdiction as a civil action arising under the laws of
the United States based on diversity of citizenship pursuant to 28 U.S.C. § 1332.
This appeal is taken from the final decision of the U.S. District Court for the
Northern District of Illinois, entered on May 8, 2019, by the Honorable John
Robert Blakey. The United States Court of Appeals has jurisdiction to decide this
case pursuant to 28 U.S.C § 1291.
The Notice of Appeal was filed with the District Court on May 17, 2019.
Dated at Saint James, New York on this 17th day of May, 2019.
CERTIFICATE OF SERVICE
CM/ECF which will send electronic notification to all attorneys registered for
CM/ECF filing.
JEFFREY MALKAN,
v.
AMERICAN BAR
ASSOCIATION, et al., Judge John Robert Blakey
Defendants.
Plaintiff Jeffrey Malkan, proceeding pro se, sues the American Bar Association
(ABA), the ABA’s Council of the Section of Legal Education and Admissions to the
alleges fraud and negligent misrepresentation under Illinois law (Count I) and seeks
declaratory judgment against the ABA (Count II). [1]. Defendants move to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [21]. For the
reasons explained below, this Court grants Defendants’ motion and dismisses
1
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I. Complaint’s Allegations 1
A. The ABA
including the Council and Accreditation Committee. [1] ¶ 12. The U.S. Department
of Education (DOE) recognizes the Council as the national accreditor for programs
leading to J.D. programs. Id. ¶ 13. The Council adopts Standards for Approval
(Standards), which set out criteria for ABA accreditation. Id. ¶¶ 24−25. The ABA
monitors law schools’ compliance with the Standards and periodically conducts
reviews of each law school, known as site evaluations. Id. ¶¶ 22, 53. Any individual
can file a written complaint alleging that a law school violated the Standards. Id. ¶
23.
In July 2000, Plaintiff began working for SUNY-Buffalo Law School (the Law
appointment as Director of the Legal Research and Writing Program. Id. ¶ 37. Six
years later, in April 2006, the Law School’s Promotion and Tenure Committee
recommended his reappointment and promotion to the title and rank of full Clinical
Professor of Law. Id. ¶ 38. In October 2006, the Law School’s then-dean, R. Nils
Olsen Jr., offered Plaintiff a contract reflecting the promotion. Id. ¶ 39. The contract
explained that Plaintiff’s appointment was “intended to fully comply” with ABA rules,
1 This Court takes the following facts from Plaintiff’s Complaint, [1], documents attached to the
Complaint, and documents central to the Complaint and to which the Complaint refers. Williamson
v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).
2
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ABA Standard 405(c) requires law schools to “afford to full-time clinical faculty
Id. ¶ 30. According to Plaintiff, this “405(c)-compliant contract, together with the
Law School’s status as an ABA accredited law school,” formed the basis for his
expectation that absent good cause, “his contract renewal would be mandatory.” Id.
¶ 41.
Two years later, on August 28, 2008, the Law School’s then-dean, Makau W.
August 31, 2009. Id. ¶ 42. According to Plaintiff, this occurred without any
C. Subsequent Litigation
Plaintiff subsequently filed a due process suit against Dean Mutua, claiming
that he held a protected property interest in his 405(c)-qualified contract. Id. ¶ 55;
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Malkan v. Mutua, 699 Fed. Appx. 81 (2d Cir. 2017). 2 The lower court granted
summary judgment in favor of Mutua; the Second Circuit affirmed in 2017, rejecting
Plaintiff’s due process claim because New York State Department of Education
regulations “cap term appointments at three years and do not create any manner of
legal right, interest or expectancy in any other appointment or renewal.” 699 Fed.
Appx. at 82−83. The Second Circuit also found that none of what Plaintiff cited in
support of his protected property interest, such as the Law School’s “by-laws, customs,
accreditation reports, the American Bar Association’s standards, and his contract—
the Accreditation Committee that the Law School, in its arguments before the lower
court, admitted it violated Standard 405(c). Id. ¶ 46. Specifically, he alleged the
The University has represented to the U.S. District Court of the Western
District of New York that it is not able to comply with ABA Standard
405(c) because presumptively renewable term contracts are prohibited
by the SUNY Trustees’ Policies. This contradicts the representations
made to the ABA in the Self-Study Report of April 2009. It also
contradicts the Faculty Bylaws and the Clinical Faculty Appointments
Policy.
Id. ¶ 46. In April 2016, the Accreditation Committee’s Counsel, Stephanie Giggetts,
responded that because SUNY had a site evaluation scheduled within a few weeks, it
2 Plaintiff also refers to a judicial decision from the New York Court of Claims. [1] ¶ 6. Plaintiff does
not provide a citation to, or procedural history for, this case, but states that the court found “any long-
term contracts and due process rules that promised to protect the academic freedom of the clinical
faculty were ultra vires, unlawful, null and void.” Id.
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would refer the matter to the site team and handle it as part of the “sabbatical site
evaluation.” Id. ¶ 48. Plaintiff does not clarify what, if anything, happened as a
result of the site evaluation, but notes that Defendants approved the Law School’s
the Accreditation Committee again reported no compliance issues with Section 405(c).
Id. ¶ 52.
Second Circuit’s decision in Malkan v. Matua as evidence of the Law School’s non-
compliance with Standard 405(c). Id. ¶ 56. In June 2018, the Accreditation
his “complaint and the Law School’s response, I have concluded that the facts you set
forth fail to allege a violation by the Law School of the ABA Standards for Approval
of Law Schools.” Id. ¶ 58. Plaintiff sought clarification of this response from
submit Plaintiff’s additional information to the Committee’s Counsel. Id. ¶ 60. The
Accreditation Committee met on June 30, 2018 and took no action based upon
Plaintiff’s purported evidence of the Law School’s 405(c) violation. Id. ¶ 61.
In September 2018, Plaintiff filed another complaint with the ABA about its
failure “to give a reasoned response” to any of his submissions, attaching a news
article titled “Deep Rift Exposed as UB Law’s Dean Resigns.” Id. ¶¶ 62−63. The ABA
again declined to take any action against the Law School. Id. ¶ 67.
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a “short and plain statement of the claim” showing that the pleader merits relief, Fed.
R. Civ. P. 8(a)(2), so the defendant has “fair notice” of the claim “and the grounds
upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint must also contain “sufficient
factual matter” to state a facially plausible claim to relief—one that “allows the court
to draw the reasonable inference” that the defendant committed the alleged
misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). This plausibility standard “asks for more than a sheer possibility” that a
defendant acted unlawfully. Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).
When evaluating a complaint, this Court accepts all well-pled allegations as true and
draws all reasonable inferences in the plaintiff’s favor. Iqbal, 556 U.S. at 678. This
Court does not, however, accept a complaint’s legal conclusions as true. Brooks v.
Like Rule 12(b)(6), Rule 12(b)(1) requires this Court to construe Plaintiff’s
complaint in the light most favorable to Plaintiff, accept as true all well-pleaded facts,
and draw reasonable inferences in his favor. Silha v. ACT, Inc., 807 F.3d 169, 173
(7th Cir. 2015); Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999).
Courts evaluating Rule 12(b)(1) motions may look beyond the complaint to consider
whatever evidence has been submitted on the issue to determine whether subject
matter jurisdiction exists. Silha, 807 F.3d at 173 (When reviewing a challenge that
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there is in fact no subject matter jurisdiction, even if the pleadings are formally
sufficient, “the court may look beyond the pleadings and view any evidence
submitted”).
III. Analysis
Defendants seek dismissal of both counts under Rule 12(b)(1) for lack of Article
III standing and under Rule 12(b)(6) for failure to state a claim. Because standing is
jurisdictional, this Court must consider that issue before reaching the merits. Ortiz
v. Fibreboard Corp., 527 U.S. 815, 831 (1999); Hinrichs v. Speaker of House of
Representatives of Ind. Gen. Assembly, 506 F.3d 584, 590 (7th Cir. 2007); Halperin v.
Intern. Web Servs., LLC, 70 F. Supp. 3d 893, 897 (N.D. Ill. 2014).
Article III of the Constitution limits “federal judicial power to certain ‘cases’
and ‘controversies.’” Silha, 807 F.3d at 172−73 (quoting Lujan v. Defs. of Wildlife,
504 U.S. 555, 559−60 (1992)). To establish Article III standing, Plaintiff must show
that: (1) he has suffered an “injury in fact” that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision. Id. at
173 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 180−81 (2000); Lujan, 504 U.S. at 560−61). The party invoking federal
jurisdiction bears the burden of establishing the elements of Article III standing.
Lujan, 504 U.S. at 561. Defendants argue that Plaintiff fails to establish both the
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“fairly traceable” and “redressability” prongs. [22] at 6−7. Because this Court finds
that Plaintiff fails to show his injury is fairly traceable to any decision made by
regulations cap term appointments at three years and “do not create any manner of
43−44. As a result, these regulations “retroactively abrogated” all of the Law School’s
accredit a Law School in violation of Standard 405(c), they imposed the “stigma of a
‘for cause’ termination on the Plaintiff, which made it “impossible for him to resume
Plaintiff fails to establish Article III standing for the simple reason that this
lengthy causal chain offers no connection between his injury—the alleged stigma
power. See Doe v. Holcomb, 883 F.3d 971, 975−76 (7th Cir. 2018) (in cases alleging
defendants failed to properly enforce a policy, a plaintiff must “establish that his
3Although Plaintiff’s Complaint alleges that declaratory judgment would “benefit the legal education
community” as a whole, [1] ¶ 88, Plaintiff’s response memorandum concedes that for purposes of this
suit, his Article III standing relies solely upon his own injuries-in-fact. [25] at 12.
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Physicians & Surgeons, Inc. v. Koskinen, 768 F.3d 640, 642 (7th Cir. 2014) (“The
longer the causal chain, the less appropriate it is to entertain standing . . . . To allow
Notably, Plaintiff fails to allege that the stigma arose because Matua
terminated him without good cause, in violation of Standard 405(c), and Defendants
failed to investigate and/or discipline this violation. See generally id. In fact, Plaintiff
concedes that Defendants “had nothing to do with breaching his contract.” [25] at 11.
Rather, Plaintiff appears to allege that because New York State’s regulations and
Standard 405(c) conflict, the Law School’s resulting Standard 405(c) violation, and
Defendants failure to respond, cast a “stigma” over his unrelated termination. Id; [1]
¶¶ 2, 9, 42−44.
Standard 405(c) enforcement power and Matua’s decision to terminate Plaintiff, and
any stigma resulting from that termination. The Complaint’s sole allegation
decision to not renew Plaintiff’s contract without consulting the faculty. Id. ¶ 42. But
professors for good cause, including termination or material modification of the entire
clinical program. Id. ¶ 30. In fact, the Complaint indicates that this was the case, as
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Plaintiff notes that the Law School terminated every clinical professor between 2009
and 2016. Id. ¶ 53. And Plaintiff offers no allegation to clarify how Defendants’
decision to continue certifying the law school would otherwise cast a stigma over his
issued their final decision on the Law School’s Standard 405(c) compliance in 2018—
Thus, absent any allegation that: (1) Matua acted beyond his discretion in
terminating Plaintiff without good cause, in violation of Standard 405(c); and (2)
Defendants failed to discipline or sanction the Law School for this specific violation,
decision to terminate Plaintiff. Thus, this Court cannot fairly trace Plaintiff’s alleged
SEC, 422 F.3d 591, 597 (7th Cir. 2005) (holding alleged injury not fairly traceable to
SEC rules because “to a significant degree, the injury [plaintiff] complains of hinges
laws and regulation by the SEC—is nonetheless quite broad.”); Segovia v. United
States, 880 F.3d 384, 389 (7th Cir. 2018) (holding injuries inflicted by voting law were
not fairly traceable to defendants enforcing federal law given the “unfettered
discretion” federal law left to Illinois); Beckman v. Chi. Bear Football Club, Inc., No.
17 C 4551, 2018 WL 1561719, at *5 (N.D. Ill. Mar. 30, 2018) (holding that the Bears’
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Plaintiff counters that if the ABA believes the Law School, rather than itself,
should face liability for his damages, “its recourse is to implead the responsible
University officials” under Fed. R. Civ. P. 14(a). [25] at 12. Not so. Rule 14
“presupposes liability on the part of the original defendant.” Parr v. Great Lakes
Express Co., 484 F.2d 767, 769 (7th Cir. 1973). In other words, Rule 14 cannot relieve
Plaintiff of his Article III burden, which requires an injury fairly traceable to “the
challenged action of the defendant, and not the result of the independent action of
some third party not before the court.” Lujan, 504 U.S. at 560 (citing Simon v. E. Ky.
In short, the conflict between New York State’s regulations and Section 405(c)
cannot (absent additional facts not present here) establish a sufficient connection
between Defendants and any stigma resulting from Plaintiff’s 2008 termination. As
such, this Court grants Defendants’ motion to dismiss [21] for lack of subject matter
B. Leave to Replead
At the parties’ motion hearing on March 5, 2019, Plaintiff conceded that he did
not require any further amendments to his complaint. Based upon this
prejudice.
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IV. Conclusion
For the reasons explained above, this Court grants Defendants’ motion to
dismiss with prejudice. [21]. All dates and deadlines are stricken. Civil case
terminated.
Entered:
____________________________
John Robert Blakey
United States District Judge
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Jeffrey Malkan,
Plaintiff(s),
Case No. 18 CV 7810
v. Judge John Robert Blakey
Defendant(s).
in favor of plaintiff(s)
and against defendant(s)
in the amount of $ ,
Post-judgment interest accrues on that amount at the rate provided by law from the date of this judgment.
in favor of defendant(s)
and against plaintiff(s)
.
Defendant(s) shall recover costs from plaintiff(s).
tried by a jury with Judge presiding, and the jury has rendered a verdict.
tried by Judge without a jury and the above decision was reached.
decided by Judge John Robert Blakey.
V.
Defendant
American Bar Association represented by Tacy Fletcher Flint
Sidley Austin Llp
One South Dearborn
Chicago, IL 60603
(312) 853-7875
Email: tflint@sidley.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
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(312) 853-7143
Email: shorowitz@sidley.com
ATTORNEY TO BE NOTICED
Defendant
Council of the Section of Legal represented by Tacy Fletcher Flint
Education and Admissions to the Bar, (See above for address)
American Bar Assocciation LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
Accreditation Committee of the Section represented by Tacy Fletcher Flint
of Legal Education and the Admissions (See above for address)
to the Bar, American Bar Association LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Select
Date Filed # all / clear
Docket Text
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Order before initiating any further discovery in this case. Please note: The
discovery obligations in the Standing Order supersede the disclosures
required by Rule 26(a)(1). Any party seeking affirmative relief must serve a
copy of the following documents (Notice of Mandatory Initial Discovery
and the Standing Order) on each new party when the Complaint,
Counterclaim, Crossclaim, or Third-Party Complaint is served. (aee, )
(Entered: 11/27/2018)
11/27/2018 5 (Court only) RECEIPT regarding payment of filing fee paid on 11/27/2018
in the amount of $400.00, receipt number 4624214255. (aee, ) (Entered:
11/27/2018)
11/27/2018 6 SUMMONS Issued as to Defendant American Bar Association. (aee, )
(Entered: 11/27/2018)
12/10/2018 7 EXECUTIVE COMMITTEE ORDER: Case reassigned to the Honorable
Gary Feinerman for all further proceedings pursuant to IOP 13(f)(1).
Signed by Executive Committee on 12/10/18. (aee, ) (Entered: 12/10/2018)
12/12/2018 8 MINUTE entry before the Honorable Gary Feinerman: Plaintiff has until
1/11/2019 to comply with Local Rule 83.15. Status hearing set for
1/16/2019 at 9:00 a.m. Mailed notice (mw, ) (Entered: 12/12/2018)
01/02/2019 9 ATTORNEY Appearance for Defendants Accreditation Committee of the
Section of Legal Education and the Admissions to the Bar, American Bar
Association, American Bar Association, Council of the Section of Legal
Education and Admissions to the Bar, American Bar Assocciation by Tacy
Fletcher Flint (Flint, Tacy) (Entered: 01/02/2019)
01/02/2019 10 ATTORNEY Appearance for Defendants Accreditation Committee of the
Section of Legal Education and the Admissions to the Bar, American Bar
Association, American Bar Association, Council of the Section of Legal
Education and Admissions to the Bar, American Bar Assocciation by
Steven Joseph Horowitz (Horowitz, Steven) (Entered: 01/02/2019)
01/02/2019 11 ATTORNEY Appearance for Defendants Accreditation Committee of the
Section of Legal Education and the Admissions to the Bar, American Bar
Association, American Bar Association, Council of the Section of Legal
Education and Admissions to the Bar, American Bar Assocciation by
Benjamin Isaac Friedman (Friedman, Benjamin) (Entered: 01/02/2019)
01/02/2019 12 NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by Accreditation
Committee of the Section of Legal Education and the Admissions to the
Bar, American Bar Association, American Bar Association, Council of the
Section of Legal Education and Admissions to the Bar, American Bar
Assocciation (Friedman, Benjamin) (Entered: 01/02/2019)
01/02/2019 13 MOTION by Defendants Accreditation Committee of the Section of Legal
Education and the Admissions to the Bar, American Bar Association,
American Bar Association, Council of the Section of Legal Education and
Admissions to the Bar, American Bar Assocciation for extension of time to
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or
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APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
N/A
ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No
rev. 01/15 GA