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
_______________________________
________________________________________________
REPLY BRIEF OF
PLAINTIFF-APPELLANT, JEFFREY MALKAN
_________________________________________________
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
I. The District Court erred by deliberating upon a cause of action that the Plaintiff did not
plead and a theory of the case that he did not allege……….………...................…..……1
II. The District Court erred in its application of the Article III “fairly traceable” standard....7
A. The ABA was complicit in a fraud against its own accreditation process........8
III. The District Court abused its discretion by dismissing the complaint with prejudice......13
Conclusion………........…….…….......………………………………………………………….16
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TABLE OF AUTHORITIES
Malkan v. Mutua, No. 12-CV-0236A (SR), 2015 WL 13746778 (W.D.N.Y. Dec. 1, 2015).........4
Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 714 (6th Cir. 2015)...........................................7-8
Dep’t of Commerce v. New York, 588 U.S. ___, No. 18-966, slip op. at 10 (U.S. June 27,
2019)...............................................................................................................................................8
Banks v. Sec’y of Indiana Family and Soc. Serv., 997 F.2d 231 (7th Cir. 1993).......................9-10
Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011)........................................................14
Phillips v. Prudential Ins. Co. of America, 714 F.3d 1017, 1020 (7th Cir. 2013).........................14
Culver Franchising System, Inc. v. Steak N Shake, Inc., No. 16C 72, slip. op. at 1 (N.D. Ill. Aug.
5, 2016)..........................................................................................................................................14
Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010).........................................................15
Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510, 518 (7th Cir. 2015)...........................15
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This request for oral argument is made pursuant to Circuit Rule 34(f). The ABA has
countered that the Plaintiff should be denied oral argument, an outcome that would leverage the
reputation of its well-known law firm to the detriment of a pro se litigant for whom being seen
means being heard as well. The rules for allocating oral argument are prescribed by statute:
Oral argument must be allowed in every case unless a panel of three judges
who have examined the briefs and record unanimously agrees that oral
argument is unnecessary for any of the following reasons:
(A) the appeal is frivolous;
(B) the dispositive issue or issues have been authoritatively decided; or
(C) the facts and legal arguments are adequately presented in the briefs and
record, and the decisional process would not be significantly aided by oral
argument.
Fed. R. App. P. 34(a)(2). Two of these three factors weigh decisively in favor of oral argument
and it is doubtful that the decisional process would not be significant aided by oral argument.
The ABA’s opposition to this request omits to mention that this lawsuit is seeking
restitution in a legal claim that alleges an underlying violation of the right to due process. The
procedural posture in which this appeal comes before the Court, moreover, is the District Court’s
dismissal the complaint with prejudice. As a consequence, the ABA has been absolved of even
the fundamental obligation of admitting or denying the allegations of the complaint, which is
The Court should also take into account the seriousness of issues raised on this appeal,
their legal complexity as reflected in the pleadings and the arguments briefed on this appeal, and
the public interest in any matters involving the American Bar Association. These are compelling
reasons to provide the Plaintiff with access to the Court in the form of an oral presentation.
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The sole issue on this appeal is whether the ABA caused the damages
claimed by the Plaintiff for the divestment of his contractual and due process rights
The complaint alleges that his exposure to these damages resulted from his
reliance on the ABA to enforce Standard 405(c), the clinical faculty standard, in its
role as the DOE-approved agency for the accreditation of American law schools.
It further alleges that his reliance on the ABA was justified because the U.S.
405(c) at all of its accredited law schools was the decisive factor in his assessment
of the risks and benefits of accepting a clinical faculty appointment at the SUNY
Buffalo Law School.1 That is because Standard 405(c) was the legal framework
upon which all of his academic and legal rights at that institution would be based.2
1
Compl. ¶¶ 18-23, 80.
2
His contract expressly conferred 405(c)-due process rights: “[Y]our appointment is covered by
the ABA rules and is intended to fully comply with those rules, particularly standard 405(c), and
all accompanying interpretations.... Now that you have successfully been appointed following a
full review, future reviews will have the ‘for cause only’ removal standard set forth in the ABA
standards. Under ABA policies, this standard is meant to be similar to that term as applied when
dealing with tenured faculty and is intended to protect academic freedom.” Id. ¶ 39-40.
1
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He proceeded upon the reasonable belief that it would be impossible for the
University to revoke his property interest in state employment and rescind his right
to any form of due process, including due process in federal court, because defying
the ABA’s accreditation standards and subverting the ABA’s accreditation process
What he did in response to the divestment of his legal rights is exactly what
any member of the clinical faculty at any state-sponsored and ABA-accredited law
school would have to do. Upon his summary termination from a 405(c)-protected
faculty appointment, he filed a breach of contract claim in the New York Court of
Claims in Buffalo and a due process claim, based on 42 U.S.C. § 1983, in the U.S.
fide employment contract and bona fide due process rights. This contract and
these due process rights were both contingent upon the Law School’s continuing
compliance with Standard 405(c).5 That standard requires law schools under the
3
Id. ¶ 80.
4
Id. ¶ 43.
5
Id. ¶ 41.
2
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presumptively renewable contracts, with due process rights, of five years or more.6
The chart below summarizes the allegations and theory of the case as they
1. The ABA’s primary function under its license from the U.S. Department of Education is to
keep its accreditation standards in place for the benefit of the legal education community.
2. This includes its duty to ensure that ABA-accredited law schools protect the academic
freedom and educational integrity of their clinical faculties by maintaining 405(c)-compliant
contracts, procedures, and personnel policies.
4. The University defended these cases by repudiating Standard 405(c) in its entirety and
retroactively converting all of its clinical professors to the status of at-will employees who
could be summarily fired by the Dean at the end of any contract term.
5. The ABA responded by denying that any violation of its accreditation standards had taken
place.
6. The ABA damaged the Plaintiff by inducing him to entrust his career and livelihood to a
non-functional and inoperative accreditation standard, i.e., an accreditation fraud, which had
the effect of divesting him of his property interest in state employment and his right to due
process in federal court.
6
See Compl. ¶¶ 24-30.
3
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The ABA replies that even if all of these allegations are true, it has no
liability in this matter because (i) former-Dean Mutua’s malicious misconduct and
abuse of power was done in the exercise of his independent and lawful discretion,
and (ii) the University’s withdrawal of all legal protections extended to its clinical
faculty did not violate any of the ABA Standards. The ABA also argues that its
endorsement of a policy that demoted every member of the clinical faculty to the
status of at-will employment could have no possible bearing on the stigma of a “for
The ABA persists in these obvious falsehoods even though SUNY Buffalo
expressly declared its repudiation of Standard 405(c) in the U.S. District Court for
the Western District of New York and the U.S. Court of Appeals for the Second
Circuit.7 The ABA also knows that the University’s fortuitous discovery of a
“conflict” between the Policies of the Board of Trustees and the ABA Standards
was absolutely fraudulent unless one believes that its own enabling rules
compelled it to rescind all of its clinical faculty contracts and then file false
7
The successful repudiation of Standard 405(c) was judicially confirmed in the Western District
of New York on December 1, 2015, id. ¶¶ 46-47, and in the Second Circuit on October 30, 2017.
Id. at ¶ 55. See Malkan v. Mutua, No. 12-CV-0236A (SR), 2015 WL 13746778 (W.D.N.Y. Dec.
1, 2015); Malkan v. Mutua, 699 F. App’x 81 (2d Cir. 2017).
4
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SUNY Buffalo, at all times relevant to this matter, has been in full compliance
The chart below compares the complaint that was filed in the District Court
with the complaint as it was characterized to the District Court by the ABA.
theory of liability The ABA exposed the Plaintiff to a The ABA is liable for the Plaintiff’s
scheme to defraud by knowingly and damages because it failed to prevent
willfully protecting an accreditation SUNY Buffalo from breaking his
fraud and endorsing the subversion contract and terminating his faculty
of its own accreditation process. appointment.
When the deceptive arguments and false assertions of fact presented to the
District Court are set to one side, the allegations of the complaint are more than
sufficient to meet the fairly traceable standard and justify the exercise of subject
8
Id. ¶ 58 (quoting June 4, 2018 letter of Accreditation Counsel).
5
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matter jurisdiction. This chart below paraphrases on the left the allegations of the
complaint, and cites on the right the paragraphs where those allegations are made.
6
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The District Court accepted the ABA’s argument that the damages alleged in
the complaint were not fairly traceable to the ABA because former-Dean Mutua,
not the ABA, rescinded his contract and blocked him from receiving due process in
the Law School. That, however, is not how the Article III standard of fairly
7
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Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 714 (6th Cir. 2015) (citations
omitted). In its most recent ruling on the Article III causation requirement, the
Supreme Court held that the independent decisions of third parties to evade the
New York, 588 U.S. ___, No. 18-966, slip op. at 10 (U.S. June 27, 2019).
A. The ABA was complicit in a fraud against its own accreditation process.
As in Parsons, the complaint alleges that the ABA’s tacit approval of the
decision of a third party, the Attorney General of New York, to proceed with
8
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The complaint further alleges that the ABA’s tacit approval turned into express
decision of the U.S. Court of Appeals for the Second Circuit and pronounced that
against its own accreditation standards, the ABA still maintains that it can never be
held liable for the accreditation fraud of a third party. That argument is incorrect.
In Banks v. Sec’y of Indiana Family and Soc. Serv., 997 F.2d 231 (7th Cir.
1993), a panel of this court applied the “fairly traceable” standard to a claim
against the U.S. Department of Health and Human Services [HHS] based on its
failure to order a state Medicaid provider to enact mandatory due process rules.
The lead plaintiff in Banks was a Medicaid recipient who had been denied a notice
and hearing after the insurer refused to pay her late husband’s radiology bill. Id. at
238. HHS persuaded the district court that its failure to enforce its own regulations
was too attenuated to give her standing to sue HHS – in other words that the due
authority was not “fairly traceable” to the agency itself. Id. The Banks court
rejected this argument, ruling that Banks and her fellow plaintiffs had alleged “a
9
See Compl. ¶ 58.
9
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U.S. 555, 560-61 (1992), as well as a sufficient causal connection between these
Banks, 997 F.2d at 240 (citations omitted). Likewise here, the ABA’s refusal to
of a core academic freedom standard, Standard 405(c), satisfied the Article III
Buffalo Law School – for its “unlawful lack of regulation of someone else.” Id.
10
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of blame at a third party should be advised to implead that third party under Rule
14, which is exactly what the Plaintiff told the ABA in the District Court. See
Mem. Op. at 11. The ABA is not obliged to exercise that option, but it cannot hide
school to evade its own responsibility for protecting their accreditation fraud.
(i) Throughout its response to this appeal, the ABA has never once denied
that it protected the accreditation fraud that is the basis of the complaint.
(ii) The ABA repeatedly argues that the Plaintiff is “pivoting” to a new
(iii) The ABA continues to argue that the Plaintiff’s standing is based on his
advocacy for third parties when it knows that he affirmed to the District Court’s
(iv) The ABA maintains here for the first time that this lawsuit is a
collateral attack on a final judgment of the U.S. Court of Appeals for the Second
10
See Def.’s-Appellee’s Br. at 3, 9, 12, 14.
11
Id. at 19.
11
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Circuit. On October 30, 2017, that court ruled that the Plaintiff had no property
interest in state employment, and hence no right to due process, because he was
accreditation standard. That judgment was final and he is not attacking it.12
(v) The ABA tries to justify its protection of SUNY Buffalo’s accreditation
fraud by arguing that “Malkan had no right to litigate his claims without having to
that the University was entitled to mount a legal defense based on its repudiation of
Standard 405(c), if it saw fit to do so. The caveat is that this defense exposed the
ABA to liability for all of the damages that ensued from its sponsorship of a
the ABA’s argument so unseemly is its use of the phrase “meritorious due-process
faculty of the due process rights that were guaranteed by the ABA itself.
(vi) The ABA makes one more pass at the Second Circuit by arguing that
“[t]he Law School’s supposed accreditation fraud was legally irrelevant because...
the ABA’s Standards could not ‘override[]’ state regulations.’”14 To the contrary,
12
Id. at 16. If the ABA is claiming that this lawsuit is precluded by the doctrine of res judicata it
should have cited that doctrine and made a res judicata argument.
13
Id. at 15. (citations omitted).
14
Id. at 18. The language marked by internal quotation marks is directly quoted from the
Second Circuit.
12
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The only reason SUNY Buffalo could base a legal defense on an accreditation
fraud was that the ABA protected that fraud. If SUNY Buffalo was finding it
difficult to harmonize state regulations with the ABA Standards, it was required to
remove that legal impediment or else return its operating license to the ABA.
(vii) Finally, the ABA attempts to raise the issues of injury-in-fact and
redressability, neither of which is properly before the Court on this appeal. As for
the first, it is black letter law that injury-in-fact can be presumed in a diversity case
based on a common law tort or a breach of contract.15 As for the second, it is true
that “a finding of noncompliance would not give [Malkan] his job back, now or
ever.”16 The complaint, however, does not seek redress in the form of
On May 8, 2019, the District Court dismissed the complaint with prejudice,
denying in advance any motion to replead. See Mem. Op. at 11-12. This dismissal
15
Id. at 19-20. Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992) (“if the plaintiff
himself is an object of the action (or foregone action) at issue” then “there is ordinarily little
question that the action or inaction caused him injury”).
16
Id. at 13. In support of this unwarranted digression, the ABA argues that a citizen who is not
under prosecution lacks standing to challenge the exercise of prosecutorial discretion. See Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973). Id. This is completely irrelevant because the ABA
is not a prosecutor, its standards are not criminal laws and the DOE-regulations for accrediting
agencies give it no discretion to excuse a self-avowed accreditation fraud. See Compl. ¶ 22.
13
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was both clearly erroneous and an abuse of discretion. It was clearly erroneous
because it was based on the mistaken premise that additional and unattainable facts
would be needed to establish Article III causation. Id. To the contrary, the District
Pl.’s Mem. in Opp. at 11. [Dkt. 25] That is the theory of damages in a nutshell and
one opportunity to amend the complaint. See, e.g., Alioto v. Town of Lisbon, 651
17
See Phillips v. Prudential Ins. Co. of America, 714 F.3d 1017, 1020 (7th Cir. 2013) (“we must
consider not only the complaint itself, but also additional facts set forth in Phillips’s district court
brief… so long as those facts are consistent with the pleadings”); Culver Franchising System,
Inc. v. Steak N Shake, Inc., No. 16C 72, slip. op. at 1 (N.D. Ill. Aug. 5, 2016) (same).
14
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F.3d 715, 721 (7th Cir. 2011) (“a plaintiff ordinarily retains the ability to amend
his complaint once as a matter of right, even after a court grants a motion to
dismiss”); Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008) (“an order
dismissing the original complaint normally does not eliminate the plaintiff's right
to amend once as a matter of right”); Bausch v. Stryker Corp., 630 F.3d 546, 562
(7th Cir. 2010) (“a court should ‘freely give leave [to file an amended complaint]
when justice so requires’”); Runnion v. Girl Scouts of Greater Chicago, 786 F.3d
510, 518 (7th Cir. 2015) (“[i]n light of the presumption in favor of giving plaintiffs
Even if the District Court believed that the complaint did not satisfy an
element of Article III standing in its present form, the proper response would have
been to order dismissal with leave to replead those allegations. “The Federal Rules
reject the approach that pleading is a game of skill in which one misstep by counsel
may be decisive to the outcome, and accept the principle that the purpose of
U.S. 41, 48 (1957). In short, the District Court lacked any basis for ruling that no
possible amendment could bring the complaint to the point where it could be
denials of the right to due process, and which alleges that the ABA protected and
15
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endorsed the accreditation fraud that made those injustices possible, allowing it to
walk away from the complaint without even denying its allegations, much less
disclosing any reason for why it endorsed SUNY Buffalo’s repudiation of a core
CONCLUSION
For the foregoing reasons, the decision and order of the District Court should
Respectfully submitted,
16
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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
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 typeface is Times New Roman, 14-
point in the principal text. It contains 4,755 words, excluding items not counted by the rule.
PROOF OF SERVICE
The undersigned certifies that he filed the Reply Brief of Plaintiff-Appellant on CM/ECF
which will send electronic notification to the attorneys for the American Bar Association, all of
17