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

17-38-CV
United States Court of Appeals
For the Second Circuit
JEFFREY MALKAN,
Plaintiff-Appellant,
-against-

MAKAU W. MUTUA,
Defendant-Appellee,

CHARLES P. EWING,

Defendant.

On Appeal from the United States District Court


for the Western District of New York

BRIEF OF DEFENDANT-APPELLEE MAKUA W. MUTUA

ERIC T. SCHNEIDERMAN
Attorney General
of the State of New York
BARBARA D. UNDERWOOD Attorney for Defendant-Appellee
Solicitor General The Capitol
VICTOR PALADINO Albany, New York 12224-0341
JEFFREY W. LANG (518) 776-2027
Assistant Solicitors General
of Counsel Dated: May 3, 2017
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TABLE OF CONTENTS

PAGE

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


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

i
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TABLE OF CONTENTS (cont'd)

PAGE

4. The Magistrates Recommendations on


Summary Judgment and Sanctions ................... 22
5. The District Courts Judgment ........................... 25
STANDARD OF REVIEW....................................................................... 26
SUMMARY OF THE ARGUMENT ........................................................ 27
ARGUMENT
POINT I
MALKANS DUE PROCESS CLAIM FAILS FOR LACK OF A
PROPERTY INTEREST IN A RENEWED TERM APPOINTMENT ................ 29

A. Dean Olsens Letter Could Not Supersede the


Trustees Disclaimer of any Right, Interest or
Expectancy in the Renewal of a Term
Appointment................................................................. 31

B. The Trustees Have Not Acquiesced in any Law


School Policy or Custom of Granting
Presumptively Renewable Term Appointments ......... 34

POINT II
ALTERNATIVELY, MUTUA HAS QUALIFIED IMMUNITY ....................... 40

POINT III
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
DECLINING TO SANCTION MUTUA AND HIS ATTORNEY, AND IN
ADOPTING THE MAGISTRATES VERBAL SANCTIONS AGAINST
MALKAN AND HIS FORMER ATTORNEY ............................................. 42

CONCLUSION ...................................................................................... 47

ii
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TABLE OF AUTHORITIES

CASES PAGE
Baden v. Koch,
638 F.2d 486 (2d Cir. 1980) ...................................................... 32, 35
Board of Regents of State Colleges v. Roth,
408 U.S. 564 (1972) ........................................................................ 29
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) ........................................................................ 26
Chu v. Schweiker,
690 F.2d 330 (2d Cir. 1982) ............................................................ 32
Dube, Matter of v. State University of New York,
900 F.2d 587 (2d Cir. 1990) ............................................................ 30
F.D.I.C. v. Great American Ins. Co.,
607 F.3d 288 (2d Cir. 2010) ............................................................ 26
Gaines v. N.Y.S. Div. of Housing and Community Renewal,
90 N.Y.2d 545 (1997) ...................................................................... 34
Gonzalez v. City of Schenectady,
728 F.3d 149 (2d Cir. 2013) ............................................................ 41
Grain Traders v. Citibank, N.A.,
160 F.3d 97 (2d Cir. 1998) .............................................................. 26
Hawkins v. Steingut,
829 F.2d 317 (2d Cir. 1987) ................................................. 32-33, 35
McMenemy v. City of Rochester,
241 F.3d 279 (2d Cir. 2001) ................................................ 29, 33, 37
Pearson v. Callahan,
555 U.S. 223 (2009) .................................................................. 40, 41
Okin v. Village of Cornwall-On-Hudson Police Dept.,
577 F.3d 415 (2d Cir. 2009) ............................................................ 26

iii
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TABLE OF AUTHORITIES (contd)

CASES(contd) PAGE
Spavone v. New York State Dept of Corr. Servs.,
719 F.3d 127 (2d Cir. 2013) ............................................................ 40
Star Mark Management, Inc. v.
Koon Chun Hing Kee Soy & Sauce Factory Ltd.,
682 F.3d 170 (2d Cir. 2012) ............................................................ 27
Suarez, Matter of v. Williams,
26 N.Y.3d 440 (2015) ...................................................................... 33
United States v. Sanchez,
969 F.2d 1409 (2d Cir. 1992) .......................................................... 43
FEDERAL STATUTES
28 U.S.C.
1291................................................................................................ 3
1331................................................................................................ 3
1343................................................................................................ 3
42 U.S.C.
1983................................................................................................ 1
FEDERAL RULES AND REGULATIONS
Fed. R. Civ. Pr.
11 ............................................................................................... 45
56 ............................................................................................... 26
56(a) ............................................................................................... 26
W.D.N.Y. Civ. R.
56.1(a)(2) ...................................................................................... 38
STATE RULES AND REGULATIONS
N.Y.C.R.R.
Title 8, Parts 325-343, 400 ............................................................... 3

iv
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PRELIMINARY STATEMENT

Plaintiff-appellant Jeffrey Malkan, a former Clinical Professor of

Law at the State University of New York at Buffalo School of Law (the

Law School), brought this action in the United States District Court for

the Western District of New York under 42 U.S.C. 1983 alleging that

former Dean of the Law School Makau W. Mutua violated his due process

rights when Malkans term appointment was not renewed. Malkan also

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

Faculty Grievance Committee, who handled a grievance that Malkan

filed concerning Mutua.1 Malkan sought compensatory and punitive

damages, the clearing of his personnel file, and reinstatement by the Law

School.

After discovery, Mutua moved for summary judgment on the due

process claim against him, and the parties cross-moved for Rule 11

sanctions. On the magistrate judges recommendation, the district court

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

1 Malkan voluntarily dismissed Ewing before the court rendered a final


judgment. (Special Appendix [S.A.] 16.)
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Malkans motion for sanctions, and granted Mutuas motion for

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

sanction against Malkans former attorney recommended by the

magistrate, it emphasized that the reasons supporting the award were

well-supported by the record and the conduct of Malkan and his former

attorney merited the magistrates verbal sanctions. Malkan now

appeals the district courts final judgment. This Court should affirm.

ISSUES PRESENTED

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

interest in a renewed term appointment at the Law School?

2. Alternatively, does qualified immunity shield Mutua from

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

believe that his actions did not violate Malkans constitutional rights?

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

sanction Mutua and his attorney, and in adopting the magistrates

verbal sanctions against Malkan and his former attorney?

2
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JURISDICTIONAL STATEMENT

The district court had jurisdiction over this action under 28 U.S.C.

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

dismissing Malkans complaint in its entirety, this Court has jurisdiction

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

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

STATEMENT OF THE CASE

A. Facts

1. The Trustees Policies Governing Term


Appointments at SUNY

The following facts are undisputed unless otherwise noted. The

State University of New York (SUNY) and its member institutions are

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

the administration of SUNY and its members, including the Law School.

(Plaintiffs Appendix Volume II [A.2.] 474; ECF No. 562 at 2.) The

Trustees Policies have been enacted as state regulations. See New York

Codes, Rules and Regulations, Title 8, Parts 325-343, 400. Among other

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


3
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things, the Trustees Policies govern the appointment of employees

within the SUNY system and provide for three types of appointments:

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

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

an appointment for a specified period of not more than three years which

shall automatically expire at the end of that period unless terminated

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

Moreover, term appointments may be renewed by the chief

administrative officer of the college for successive periods of not more

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

The chief administrative officer is defined in the Trustees Policies

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

State University of New York. (A.2. 474.) The Law School is not itself a

college, but part of the college of SUNY Buffalo. See ECF 56-1 at 48-49

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

officer of the Law School is the President of SUNY Buffalo (rather than

the Dean of the Law School).

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

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

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

renewed upon expiration, an appointee who has served two or more years

must be given 12-months notice before the term expires. (A.2. 488.) Once

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

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

professional employees having term appointments shall cease

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

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

2. Procedures for the Promotion and Termination


of Clinical Professors at the Law School

The Trustees Policies mandate that the faculty of each college

adopt by-laws, which shall be consistent with and subject to the Policies

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

The Law School has adopted by-laws that, among other things, govern

the appointment, promotion and termination of faculty members at the

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

Clinical Promotion and Renewal having the power to make

recommendations to the Dean of the Law School concerning faculty

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members appointed under indefinitely renewable long-term contracts.3

(A.2. 421.) Under the By-Laws, the promotion, grant of tenure, dismissal

or termination of a faculty member appointed under an indefinitely

renewable long-term contract shall be recommended by a majority vote

of the Committee on Clinical Promotion and Renewal assembled in

person. (A.2. 420-21.)

As former Dean Mutua explained, however, the Committee on

Clinical Promotion and Renewal simply had the power to make

recommendations on personnel matters to the Dean of the Law School.

(ECF No. 56-6 at 35.) In those cases where the Dean had already decided

not to renew a term appointee, nothing in the By-Laws required the Dean

to go through the process of seeking the recommendation of the

Committee concerning the appointment.4 (ECF No. 56-6 at 97-98.)

3 Prior to April 2008, such faculty were under the jurisdiction of the
Committee on Promotion and Tenure, which continues to have
jurisdiction over tenured and tenure-track faculty. (ECF 56-7 at 7.)
4Although in his brief (at 21-22), Malkan contends that the Dean of the
Law School may not decide to non-renew a term appointment without
obtaining the recommendation of the Committee on Clinical Promotion
and Renewalthat is the process of which he claims to have been
deprivedin his Rule 56.1 Counterstatement of Material Facts, Malkan
6
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As noted above, under the Trustees Policies, if the Dean of the Law

School decides not to renew a term appointment, it expires automatically

upon the expiration of the term. (A.2. 491.) If the Dean recommends

renewal of the term to the President of SUNY Buffalothe chief

administrative officer who makes the final decisionthe Dean forwards

the recommendation to the SUNY Buffalo Provost. (ECF No. 56-6 at 54.)

3. Malkan is Appointed to a Three-Year Term, and


His Term is Renewed

In July 2000, then-Dean of the Law School R. Nils Olsen hired

Malkan as Clinical Associate Professor of Law and Director of Research

and Writing for the 2000-2001 academic year. (ECF No. 63-8 at 10; A.2.

384.) Malkans initial appointment, consistent with the Trustees

Policies, was for three years. (A.2. 384.) Dean Olsens appointment letter

explained that Malkan would have an opportunity for additional three-

year terms. (A.2. 384.) Malkans position as Clinical Associate Professor

was a faculty appointment subject to the rules governing such

appointments, whereas his position as Director of Research and Writing

did not dispute Mutuas statement that such recommendation was not
required. See ECF No. 63-8 at 9-10.
7
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was a decanal appointment subject to termination at the Deans

discretion. (ECF No. 63-8 at 10.)

In 2003, Malkans appointment was renewed for a second three-

year term. (ECF No. 56 at 8.)

4. Malkan is Promoted and Reappointed to a Third


Term

A little over a year before Malkans second term was due to expire,

in October 2005, Susan Mangold, Vice Dean for Academics at the Law

School, sought clarification from the SUNY Buffalo Provosts Office

regarding how a change in American Bar Association (ABA) standards

regarding full-time clinical faculty would affect clinical appointments at

the Law School.

The issue concerned a potential conflict between the Trustees

Policies governing term appointments and revised ABA standard 405(c).

On the one hand, ABA standard 405(c) required that law schools afford

full-time clinical faculty a form of security of position reasonably similar

to tenure, which the standard interpreted to mean a separate tenure

track or a program of renewable long-term contracts. (A.2. 380.) A long-

term contract in turn meant at least a five-year contract that is

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presumptively renewable or other arrangement sufficient to ensure

academic freedom. (A.2. 381.) On the other hand, as already noted, the

Trustees Policies limited term appointments to three years, with no

legal right, interest or expectancy in renewal.

Mangold raised this issue with Lucinda Finley, Vice Provost of

Faculty Affairs at SUNY Buffalo, who conferred with James Jarvis, then

Director of Human Resources at SUNY Buffalo. Jarvis confirmed that the

Trustees limit of three-year terms applied to academic rank faculty

appointments. (ECF No. 56-18 at 2.) After further consultation, Jarvis

concluded that he and the other person with whom he had consulted

couldnt find a resolution to the conflict with the ABA standard because

creating an expectation of a term appointment beyond the three years

would be impermissible under the [Trustees] policies. (ECF No. 56-2 at

43-44.) He relayed his conclusion to Finley. (ECF No. 56-2 at 13.)

Mangold recalls learning at some point that the Trustees Policies limited

term appointments to three years. (ECF 56-13 at 8.)

The following year, on April 28, 2006, Vice Dean Mangold convened

a meeting of the Committee on Clinical Promotion and Renewal to

consider Malkans reappointment and promotion from Clinical Associate

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Professor to full Clinical Professor.5 Prior to the meeting, certain faculty

members had expressed strong opposition to Malkans continued

directorship of the Legal Research and Writing Program based on what

they viewed as the poor state of the program. (ECF No. 56-14.)

Although all present at the April 28, 2006 Committee meeting who

have been asked for their recollections have said that it was highly

contentious, that the Research and Writing Program was discussed, that

a vote was taken, and that it favored Malkan, there is a difference

concerning the precise nature of the vote. Most of the participants at the

meeting recall that the vote concerned whether Malkan should be

reappointed for a successive term and promoted from Clinical Associate

Professor to full Clinical Professor. (Appendix Volume I [A.1.] 212, 225,

234-54.) Mutua, by contrast, who had not yet been appointed Dean and

attended the meeting as a faculty member, recalls that the vote

concerned whether Malkan should be given a terminal one-year

appointment to serve for an additional year as Director of the Research

and Writing Program. (ECF No. 56-6 at 15-16, 22.)

5 Mangold presided over the meeting because then-Dean Olsen was out
of town. (ECF No. 56 at 9.)
10
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Although Malkan makes much of the fact that Dean Mutua is an

outlier on the subject of the votebaselessly accusing him of perjury

the difference is immaterial: it is undisputed that following the vote,

Dean Olsen recommended that Malkan be reappointed to a third three-

year term and promoted to full Clinical Professor, and that these

recommendations were accepted. Mutua does not contend otherwise.

On August 7, 2006, the President of SUNY Buffalo sent Malkan a

letter offering him an appointment in accordance with the Trustees

Policies governing faculty appointments. (ECF No. 56-15.) The attached

data sheet described his title as Clinical Associate Professor6 and the

term as a three-year term extending from September 1, 2006, to

August 31, 2009. (ECF No. 54-11 at 66.) Malkan countersigned the

appointment letter. (ECF No. 54-11 at 66.)

On October 19, 2006, Dean Olsen sent Malkan a letter that

purported to define your contract with the law school. (A.2. 375.) It

stated that his term appointment was intended to comply with ABA

standard 405(c) and that future non-renewals of his term would be

6A second appointment letter was sent in September 2007 reflecting


Malkans promotion to full Clinical Professor.
11
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subject to the for cause only removal standard, so that he could only be

denied reappointment for cause such as dishonesty, failure to report to

work or some other equally egregious action.7 This standard was meant

to replicate the terms applied when dealing with tenured faculty and is

intended to ensure academic freedom. (A.2. 375.)

Dean Olsens letter described Malkans appointment as a 5-year

contract. (A.2. 375.) Although the letter recognized that current SUNY

policies only provide for 3-year contract terms, it nonetheless provided

that, until such time as the three-year limit is lifted, the Dean would

provide a two-year administrative extension at the end of every three-

year period; such two-year extensions would be granted routinely. (A.2.

375.)

Mangold and Olsen, who negotiated the contract with Malkan, both

recalled that the three years plus two years structure of the contract

was intended as a work-around to render Malkans appointment

7 The letter also specified that a change in structure or staffing of the


law schools research and writing program would not qualify as good
cause justifying a non-renewal of Malkans appointment. In the event
that Malkans directorship of the program were terminated, he would be
expected to assume a normal teaching load. (A.2. 376.)
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consistent with ABA standard 405(c). (ECF No. 56-13 at 8-11; ECF No.

56-9 at 6-7.) Malkan similarly described the contract as a way to finesse

the difference between the Trustees Policies and the ABA standard; he

believed that it achieved the same result as a five-year contract. (ECF

No. 56-12 at 20; ECF No. 63-8 at 21.) Dean Olsen recalled that his

proposed work-around was acceptable to the SUNY Buffalo Provosts

Office. (ECF No. 56-9 at 7-8.) The Provost of SUNY Buffalo at the time,

however, denied involvement in any conversations regarding the terms

of Malkans employment. (A.2. 400.)

Dean Olsen nonetheless conceded that he was without power to

supersede the Trustees Policies and that he did not receive an opinion

from SUNY counsel on the legality of his attempted work-around. (ECF

No. 68-2 at 6-7.) Neither Malkan nor Olsen was aware of any other Law

School faculty that had been given a contract with a similar three-year-

two-year structure. (ECF No. 56-12 at 24-25; ECF No. 56-9 at 16.)

On October 16, 2007, the President of SUNY Buffalo sent Malkan

a second appointment letter with the same end date as the Presidents

prior appointment letter (i.e., August 31, 2009), but reflecting his

promotion to full Clinical Professor at a higher salary. (ECF No. 54-11 at

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69.) The letter stated that Malkans appointment was in accordance with

the Trustees Policies and did not purport to confer any additional rights.

Malkan countersigned the letter. (ECF No. 56-16.)

5. Mutua Decides Not to Renew Malkans


Appointment to a Fourth Term

In 2007, Mutua was appointed Interim Dean of the Law School.

Shortly after his appointment, Mutua reviewed Dean Olsens October 19,

2006 letter to Malkan. He believed that it violated the Trustees three-

year limit on term contracts because the concept of a term contract that

was presumptively renewable upon expiration amounted to extending

the term indefinitely, and was thus an illegitimate grant of tenure by

other means. (ECF No. 56-6 at 38-39.)

On March 12, 2008, Mutua directed Malkan to resign as Director of

the Legal Research and Writing Program. (ECF No. 56-6 at 23-24.)

Because the directorship was a decanal appointment, Mutua was not

required to provide Malkan with any reason for his discharge, and

Malkan continued to teach at the Law School. (ECF No. 56 at 14.) After

Malkan was terminated as director, Mutua asked a faculty member to

reevaluate the Research and Writing Program. Mutua ultimately decided

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to dismantle the current program and replace it with a new one, and

issued letters of non-renewal to Malkan and the other instructors in the

program. (ECF No. 56 at 14.)

Accordingly, on August 28, 2008, just over a year before the

expiration of Malkans current term, Mutua wrote to inform Malkan that

his three-year term as Clinical Professor ending on August 31, 2009

would not be renewed. (A.2. 383.) Mutua noted that he had considered

the October 19, 2006 letter issued by former Dean Olsen, and concluded

that its description of Malkans appointment as a five-year contract

conflicted with the Trustees Policies. (A.2. 383.) Mutua nonetheless

observed that Dean Olsens letter permitted non-renewal of Malkans

term for cause, and under ABA Rule 405 good cause may include, with

respect to clinical professors, termination or material modification of the

entire clinical program. (A.2. 383.) The letter stated that the termination

of the current Research and Writing Program met this requirement. (A.2.

383.)

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6. Malkan Pursues Challenges to His Non-Renewal


in Several Forums

Following his notice of non-renewal, Malkan pursued several

avenues of redress. First, he contacted his union about his options under

his collective bargaining agreement, and at his request, the union filed

an improper practice charge with the New York State Public

Employment Relation Board (PERB) alleging that the non-renewal of

Malkans term was in retaliation for his having invoked union protection

after he had been earlier removed as Director of Legal Research and

Writing. (ECF No. 54-2 at 14.) Malkan and Mutua both testified before

an administrative law judge, who dismissed the charge based on

insufficient evidence that Mutua was aware that Malkan had sought

union assistance at the time of Mutuas decision not to renew his term.

(S.A. 153-175.) PERB upheld the decision on appeal. (S.A. 140-152.)

Second, Malkan filed a faculty grievance against Mutua, which was

handled by Charles Ewing, Chair of the Grievance Committee. Ewing did

not believe that Malkans initial grievance was within the Committees

jurisdiction because it implicated legal matters (such as what process, if

any, was owed to Malkan). (ECF No. 54-2 at 16.) Ewing viewed a revised

grievance, however, as concerned with more the way Mutua treated

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Malkan, and he attempted to speak with Mutua. Because Malkan had

initiated and threatened litigation against Mutua, other university

officials, and SUNY, Mutua, on the advice of counsel, declined to speak

with Ewing concerning the grievance. (ECF No. 54-2 at 16-17.)

Accordingly, Ewing determined that he could not continue to investigate

it. (ECF No. 54-2 at 17.)

Third, Malkan filed two successive claims in the New York Court of

Claims alleging that the non-renewal of his term breached the terms of

Dean Olsens October 19, 2006 letter contract. The first was dismissed

because Malkan failed to state the damages that he was seeking; the

second was dismissed as untimely. (S.A. 130-38.) Malkan then sought

leave to file a late claim, which the Court of Claims denied on the ground

that Malkan had failed to demonstrate any merit to his proposed claim.

(S.A. 125.) Specifically, the court found that Malkan lacked a claim for

breach of contract because his appointment-related rights were subject

to the Trustees Policies. And under these policies, the Dean of the Law

School lacked the power to make term appointments, such terms were

limited to three years, and any effort at using the term renewal process

to create any manner of legal right, interest or expectancy to any other

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appointment or renewal was prohibited. (S.A. 125.) The Appellate

Division, Fourth Department, affirmed on the same ground. (S.A. 119.)8

B. Proceedings Below

1. Malkans Complaint

In October 2012, Malkan, represented by counsel, filed the current

complaint in the United States District Court for the Western District of

New York, naming Mutua and Ewing as defendants. (S.A. 20-34.) The

complaint alleged that Malkan had a 405(c)-qualified, presumptively

renewable contract and university title/rank of full clinical professor

which gave him a property interest in continued employment. (S.A. 28.)

It further claimed that Mutua deprived him of this interest without due

process by terminating Plaintiffs employment without the CCPR review

and by refusing to cooperate with the Grievance Committee and failing

to place Plaintiff on the agenda for a vote on the date he should have been

reviewed[.] (S.A. 29.) The complaint sought compensatory and punitive

8Malkan also filed a defamation and libel action in Supreme Court, Erie
County, against Law School Professor James A. Gardner based on
statements Gardner made concerning Malkan. (A.2. 440-453.) That case
has been dismissed.
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damages, and injunctive relief in the form of reinstatement and the

clearing of Malkans personnel file of any wrongful disciplinary actions.

(S.A. 30.)

2. The District Courts Preliminary Rulings

Mutua and Ewing moved for a stay of the federal court action

pending resolution of Malkans Court of Claims litigation, and to preclude

certain remedies sought in the complaint. The district court (Arcara, J.)

denied the motion for a stay (S.A. 100-104), and ruled that Malkan had

sufficiently pled a claim for punitive damages (S.A. 113-114). The court

also concluded that while New Yorks sovereign immunity did not bar

Malkans claims for reinstatement or the clearing of his personnel file

(S.A. 107-110), it barred his requests for back and front pay. (S.A. 110-

111.) Malkan has not contested those rulings.

3. Mutua Moves for Summary Judgment, and the


Parties Cross-Move for Rule 11 Sanctions

Mutua answered the complaint, and the parties conducted

discovery. (ECF No. 24.) After discovery, Mutua and Ewing (represented

by separate counsel) moved for summary judgment dismissing the

19
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complaint (ECF No. 54-55), which motions Malkan opposed (ECF No. 61-

62).9

Malkan also moved for Rule 11 sanctions against Mutua and his

counsel, Assistant Attorney General David Sleight, based on the theory

that, at Mutuas deposition in this case and in the PERB proceeding,

Mutua committed perjury by testifying that at the April 28, 2006 meeting

of the Committee of Clinical Promotion and Renewal, there was no vote

on whether to promote Malkan to full clinical professorship. (ECF No. 70-

7.) Malkan contended that counsel for Mutua had an obligation to take

steps to correct the perjury, but had instead had utilized the allegedly

perjurious testimony in his Rule 56 Statement of Facts and other

pleadings. (ECF No. 70-7 at 5.)10 Mutua opposed the motion for sanctions,

affirming that on all occasions he had testified truthfully and to the best

of his recollection. (ECF Nos. 74-75.)

9After the motions for summary judgment were fully submitted, Malkan
and Ewing stipulated to Ewings dismissal. (ECF No. 65.)
10 In fact, Mutuas Rule 56 Statement simply noted that the precise
nature of the vote at the April 28, 2006 meeting was the subject of sharp
disagreement, described Mutuas differing recollection, and declined to
take a position on what actually occurred, which is immaterial for the
reasons noted above. (A.2. 412-13.)
20
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Just after Malkans attorney, Frederick Ostrove, filed the Rule 11

motion on behalf of Malkan against AAG Sleight, Ostrove moved to

withdraw as Malkans attorney and asked that the motion be deemed

filed nunc pro tunc by Malkan alone. (ECF No. 80.) The court permitted

Ostrove to withdraw as Malkans attorney, but denied his request to be

absolved of responsibility for the Rule 11 motion. (ECF No. 81.)

Mutua subsequently moved for sanctions against Malkan, his

former attorney Ostrove, and Ostroves law firm, under Rule 11 and the

courts inherent power. (ECF 83.) Mutuas motion rested on three

grounds. First, Mutua documented a history of abusive behavior by

Malkan against Mutua, AAG Sleight, and other members of the SUNY

legal community. (ECF Nos. 74-75.) Such conduct included baseless

accusations of lying, unethical conduct, and threats to have criminal

charges brought against Mutua and others. (ECF No. 84.) Second,

Malkan violated the courts standing order by circulating confidential

information about the mediation that the parties had conducted; when

confronted with his actions, Malkan declared that he would defy any

civil contempt citation entered against me. (ECF No. 84.) Third,

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Malkans own motion for Rule 11 sanctions was frivolous, and itself

merited sanctions. (ECF No. 75; 83-1 at 6-9.)

4. The Magistrates Recommendations on Summary


Judgment and Sanctions

On the summary judgment motion, the magistrate recommended

that Malkans due process claim be dismissed because Malkan could not

demonstrate a property interest in continued employment. (S.A. 42-53.)

The magistrate noted that the Trustees Policies limited term

appointments to three years and provided that no term appointment, of

itself, shall be deemed to create any manner of legal right, interest or

expectancy in any other appointment or renewal. (S.A. 50.) The

magistrate rejected Malkans argument that the phrase of itself allowed

other agreements to confer a property interest in continued

employment, reasoning that whatever the intent of the agreement

between Dean Olsen and Mr. Malkan, the Court cannot permit the

parties to circumvent the rule and regulations applicable to term

appointments in an attempt to afford plaintiff the protected property

interest of a continuing appointment under the label of a term

appointment. (S.A. 50-51.)

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On the cross-motions for sanctions, the magistrate first

recommended that Malkans motion for sanctions against Mutua and

AAG Sleight be denied. (S.A. 54-93.) Having described in detail Malkans

pattern of abusive and threatening conduct and AAG Sleights attempt

to caution Ostrove concerning the baselessness of his proposed Rule 11

motion (S.A. 61-71), the magistrate recommended that Malkans motion

be denied because there is no evidence before the Court to suggest

anything other than differing recollections of a meeting of tenured faculty

on April 28, 2006, and thus, no basis for the accusation of perjury

against Dean Mutua. (S.A. 79.) Accordingly, AAG Sleight should not be

maligned for accurately depicting witnesses differing recollections of the

meeting in his Statement of Undisputed Facts. (S.A. 80.) And the

magistrate observed that even if Mutua had committed perjury, there

was no evidence that AAG Sleight had actual knowledge of such perjury

so as to require him to take corrective action before the court. (S.A. 82.)

And the magistrate noted that Mutuas testimony could not rise to the

level of perjury for the additional reason that the events of April 28, 2006

are immaterial because there was no dispute that Malkan was

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subsequently promoted to full Clinical Professor after the meeting. (S.A.

80.)

Conversely, the magistrate recommended that Mutuas motion for

sanctions against Malkan and Ostrove be granted. The magistrate found

that Malkans own motion for sanctions was frivolous because while

Mutuas differing recollection may suggest a faulty memory, there was

no evidence that his testimony was intentionally false. (S.A. 88.)

Moreover, given the immateriality of the issue, the Court can fathom no

reason to fixate on Professor Mutuas recollection of this meeting other

than to harass Professor Mutua, needlessly increase the costs of this

litigation and unduly burden the Court. (S.A. 88.) The magistrate also

found Malkan in contempt for having violated local court rules by

publicly disclosing his mediation statement. (S.A. 90.)

By way of sanction, the magistrate recommended that Ostrove and

his firm pay $10,000 to the Clerk of the Court, a sufficient sum to

demonstrate the Courts displeasure with counsels conduct and to deter

such conduct in the future. (S.A. 91.) The magistrate declined to

recommend a monetary sanction against Malkan in light of his financial

circumstances and also declined to recommend dismissal of the action on

24
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the basis of Malkans conduct alone even though Mr. Malkans conduct

during the course of this litigation would easily warrant even such a

severe sanction. (S.A. 91.)

5. The District Courts Judgment

Malkan, now acting pro se, filed objections to the magistrates

report and recommendation on summary judgment (ECF Nos. 99, 100);

and Malkan and Ostrove separately filed objections to the magistrates

report and recommendation on sanctions (ECF Nos. 98; 99-101).

The district court (Telesca, J.) adopted the magistrates

recommendation concerning summary judgment in its entirety, agreeing

that Malkan had no property interest in his position as clinical professor

at the Law School for the reasons stated by the magistrate. (S.A. 39.) And

although the court declined to adopt the recommended sanction of

$10,000 against Ostrove, it upheld the sanctions against Malkan and

Ostrove in all other respects (S.A. 13), emphasizing that the reasons

Judge Schroeder gave for imposing such a monetary sanction are well-

supported by this record. Counsels actions and unduly contentious

behavior, as described in extensive detail in the second R&R, are worthy

25
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of verbal sanctions as stated by Judge Schroeder. (S.A. 40.) Accordingly,

the court entered a final judgment dismissing the complaint. (S.A. 13.)

STANDARD OF REVIEW

This Court reviews a grant of summary judgment de novo.

Okin v. Village of Cornwall-On-Hudson Police Dept., 577 F.3d 415, 427

(2d Cir. 2009). Summary judgment is proper when the evidence

demonstrates that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.

Fed. R. Civ. Pr. 56(a). A genuine issue of fact is not created by

conclusory allegations or unsubstantiated speculation by the

opposing party. F.D.I.C. v. Great American Ins. Co., 607 F.3d 288, 292 (2d

Cir. 2010). Instead, the opposing party may only defeat summary

judgment by coming forward with evidence that would be sufficient, if

all reasonable inferences were drawn in [its] favor, to establish the

existence of that element at trial. Grain Traders v. Citibank, N.A.,

160 F.3d 97, 100 (2d Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986); Fed. R. Civ. Pr. 56).

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This Court reviews Rule 11 sanctions for abuse of discretion, which

occurs when a court bases its ruling on an erroneous view of the law,

clearly erroneous assessment of the evidence, or renders a decision that

cannot be located within the range of permissible decisions. Star Mark

Management, Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., 682

F.3d 170, 175 (2d Cir. 2012).

SUMMARY OF THE ARGUMENT

This Court should affirm the district courts judgment. Malkans

due process claim fails for lack of a property interest in continued

employment at the Law School. Under the Trustees Policies, term

appointments are limited to three years, and create no legal right,

interest or expectancy in renewal. Malkan thus had no property interest

in the renewal of his term appointment upon expiration. Although former

Dean Olsens October 19, 2006 letter purported to give Malkan a

presumptively renewable term contract, only non-renewable for good

cause, this arrangement contravened the Trustees strict limits on term

appointments, and could not convey a property interest that the Policies

precluded. Malkans arguments to the contrary are without merit.

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Alternatively, Mutua is entitled to qualified immunity because it was

objectively reasonable for him to believe that his actions did not violate

Malkans constitutional rights.

This Court should also affirm the district courts decision on

sanctions. The district court did not abuse its discretion in refusing to

sanction Mutua and in endorsing the magistrates verbal sanctions of

Malkan and his former attorney. Malkans arguments in support of

reversal of these rulings are predicated on his erroneous claims that

Mutua committed perjury and that a reasonable inquiry would have

apprised AAG Sleight of the same. But the simple fact that Mutuas

recollection concerning the nature of the vote taken at the April 28, 2006

meeting of the Committee on Clinical Promotion and Renewal differs

from others does not indicate perjury. Even if Mutuas recollection was in

error, that error is consistent with either a faulty memory or his

contemporaneous misunderstanding of what was being put to a vote.

AAG Sleight was not compelled to leap to the conclusion that his client

was lying, and so had no obligation take corrective action before the court.

And regardless, the issue is immaterial in light of Malkans subsequent

promotion, which Mutua does not dispute. Accordingly, for the reasons

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stated in the magistrates report and adopted by the district court,

Malkans motion for sanctions was properly denied, and his own conduct

fully merited the magistrates verbal sanctions.

ARGUMENT

POINT I

MALKANS DUE PROCESS CLAIM FAILS FOR LACK OF A


PROPERTY INTEREST IN A RENEWED TERM APPOINTMENT

The district court correctly concluded that Malkan failed to

establish a due process claim because he did not have a property interest

in continued employment at the Law School after his term appointment

expired. To prevail on a due process claim, a plaintiff must establish the

deprivation of a property interest without due process. McMenemy v. City

of Rochester, 241 F.3d 279, 286 (2d Cir. 2001). As the Supreme Court has

explained, property interests are created and their dimensions defined

by existing rules or understandings that stem from an independent

source such as state lawrules or understandings that secure certain

benefits and that support claims of entitlement to those benefits. Board

of Regents of State Colleges v. Roth, 408 U.S. 564, 576-77 (1972). For

instance, in Board of Regents, the Court concluded that a professor under

29
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a one-year term contract had no property interest in the renewal of his

term because the terms of his employment secured absolutely no

interest in re-employment for the next year. Id. at 578; see also Dube v.

State University of New York, 900 F.2d 587, 599 (2d Cir. 1990) (plaintiffs

due process claim failed because under the SUNY Trustees Policies, he

lacked a property interest in obtaining tenure).

So too here, once Malkans three-year term lapsed, he had no right

to reappointment under the Trustees Policies. The Policies limit term

appointments to three years and provide that No term appointment, of

itself, shall be deemed to create any manner of legal right, interest or

expectancy in any other appointment or renewal. (A.2 488.) The

President of SUNY Buffalo is the chief administrative officer of the Law

School with sole authority to renew term appointments (A.2. 487), and he

appointed Malkan to a third term in accordance with the Trustees

Policies (ECF Nos. 56-15; 54-11 at 66; 54-11 at 69; 56-16).

Malkan nonetheless argues (Br. at 32-39) that both Dean Olsens

October 19, 2006 letter and the Law Schools alleged policy and custom

of providing clinical professors with presumptively renewable term

30
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appointments, non-renewable only for good cause, created a property

interest in continued employment. As detailed below, he is mistaken.11

A. Dean Olsens Letter Could Not Supersede the Trustees


Disclaimer of any Right, Interest or Expectancy in the
Renewal of a Term Appointment

Dean Olsens October 19, 2006 letter to Malkan could not confer a

property interest in continued employment because it violated the

Trustees Policies, which are controlling. More specifically, the letter

purported to create a structure whereby Malkans term appointment

would be presumptively and routinely renewed upon expiration after

three years, with non-renewal only for good cause. (A.2. 376-76.) The

letter described the for cause standard for non-renewal as similar to

the standard applicable to the removal of tenured faculty. (A.2. 375.)

The effect of this arrangement would have been to extend a term

appointment indefinitely. For this reason, Mutua deemed it an

illegitimate grant of tenure by other means. (ECF No. 56-6 at 38-39.)

11 Although in Malkans complaint, he asserted that Mutuas failure to


speak with the Grievance Committee Chairman about Malkans
grievance deprived him of due process, he does not pursue that argument
in his brief. He thus abandons it on appeal. The argument in any event
presupposes the existence of a property interest, which Malkan lacked.
31
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And Malkan himself agreed that it achieved the same result as a single

five-year contract. (ECF No. 63-8 at 21.) By placing a strict three-year

limit on term appointments and disclaiming any right, interest or

expectancy in renewal, however, the Trustees Policies forbid such

arrangements.

The Trustees Policies govern term appointments within SUNY,

and thus no agreement between Dean Olsen and Malkan could create a

property interest in derogation of the Policies. See ECF No. 68-2 at 6-7

(Dean Olsen conceding that he could not supersede the Policies). This

result follows from a well-established line of cases holding that mutual

understandings and customs could not create a property interest for

purposes of due process when they are contrary to the express provisions

of regulations and statutes. Baden v. Koch, 638 F.2d 486, 492

(2d Cir. 1980) (city official lacked property interest in continued

employment under state law notwithstanding any mutual

understanding between official and city); see also Chu v. Schweiker, 690

F.2d 330, 334 (2d Cir. 1982) (where federal law provided for at-will

employment, federal employees could not base property interests on the

mutual understandings in their appointment letters); Hawkins v.

32
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Steingut, 829 F.2d 317, 321-22 (2d Cir. 1987) (custom and assurances of

reappointment could not create a property interest in reappointment

where controlling state law provided for fixed terms); McMenemy, 241

F.3d at 286 (state law prevented promise of promotion from ripening into

an entitlement).

Seizing on the qualifier of itself in the sentence No term

appointment, of itself, shall be deemed to create..., Malkan argues (Br.

at 33-34) that this phrase implies that the Policies permit term

appointments to be supplemented by mutual understandings that a term

appointment will be renewed. Not so.

SUNY does not interpret the of itself language in the manner that

Malkan advocates because it would essentially nullify the Trustees

limits on term appointments. See Matter of Suarez v. Williams, 26 N.Y.3d

440, 451 (2015) (courts should not interpret a statute so as to render it

meaningless). The qualifier of itself merely emphasizes that while some

other types of appointments, such as continuing or permanent

appointments, may confer rights to continued employment, term

appointments do not. If this qualifier were read to permit SUNY colleges

to circumvent the Trustees disclaimer of any rights to renewal by

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agreement of the parties, such authority would render meaningless the

Trustees distinctions among the different types of appointments and the

limits on term appointments. For instance, under this interpretation of

the Policies, a college could extend tenure to a faculty member hired

under the guise of a term appointment merely by making it

presumptively renewable. Because SUNYs interpretation gives effect to

the plain meaning of its governing regulations, this Court should defer to

it and reject Malkans contrary reading. See Gaines v. N.Y.S. Div. of

Housing and Community Renewal, 90 N.Y.2d 545, 549 (1997) (agency

interpretation of own regulations is entitled to deference).

Accordingly, Dean Olsens October 19, 2006 letter did not bestow

upon Malkan a property interest in continued employment.

B. The Trustees Have Not Acquiesced in any Law School


Policy or Custom of Granting Presumptively
Renewable Term Appointments

Malkan also argues (Br. at 32) that SUNY has a policy, maintained

since the mid-1990s, of requiring due process protections for clinical

professors at the Law School notwithstanding the Trustees Policies. By

due process protections, he means presumptively renewable term

appointments, non-renewable only for good cause. (Br. at 34.)

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Malkans argument is meritless because even if such a policy or

custom existed, it could not, as a matter of law, create property interests

in violation of the plain language of the Trustees Policies. Although

Malkan contends that the Law School offered presumptively renewable

contracts to clinical professors, he provides no evidence that the Trustees

or the President of SUNY Buffalo acquiesced in such a practice. Because

any such Law School policy or custom would violate the Trustees

Policies, it could not give rise to a property interest in continued

employment. See Baden, 638 F.2d at 492 (2d Cir. 1980) (customs in

violation of state laws and regulations do not create a property interest

in continued employment); Hawkins, 829 F.2d at 321-22 (custom of

reappointment did not create a property interest in reappointment where

such interest was precluded by state law).

In any event, Malkan has provided no evidence that, at the time he

was given notice of non-renewal, the Law School followed a policy or

custom of giving clinical professors presumptively renewable term

appointments. He cites no instance of any actual faculty being hired

under such terms, but points to three pieces of circumstantial evidence

that purport to evidence such a practice. None prove his contention.

35
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First, Malkan attempts (Br. at 34, 36) to infer such a policy from

the Law Schools history of certification of compliance with ABA

standards on the theory that the Law School could not comply with ABA

standards unless its clinical professors were given presumptively

renewable contracts. Preliminarily, although Malkan relies heavily on

the Law Schools presumed compliance with ABA standards, it is not the

issue before the Court. Nor is there merit to Malkans argument (Br. at

35) that the Trustees Policies implicitly allowed the Law School to adopt

whatever policies were necessary to comply with ABA standards by

permitting it to adopt policies necessary to carry out the operating

requirements of the college. (See, e.g., A.2. 480.) This provision does not

permit colleges to adopt policies at odds with the Trustees Policies, even

if done to conform to ABA or other professional accreditation standards

Regardless, the Law Schools history of ABA certifications going

back decades before 2005 cannot establish a policy or custom of

compliance with an ABA standard that was first adopted in 2005. It was

not until then that the ABA made the revision that first created a

potential conflict with the Trustees Policies, i.e., defining a long-term

contract in standard 405(c) as at least a five-year contract. (ECF No. 56

36
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at11.) Indeed, in October 2005, Law School officials were first attempting

to understand whether and how the revised ABA standard could be

reconciled with the Trustees Policies. See supra at 8. Thus, the Law

Schools history of ABA certifications does not establish a policy or custom

of granting presumptively renewable term appointments.

Second, Malkan claims (Br. at 36) that the Law School By-Laws

created an expectation of renewal. On the contrary, the By-Laws nowhere

authorize presumptively renewable term appointments. (See A.2. 414-

24.) Malkan invokes the provisions of the By-Laws that gave the

Committee on Clinical Promotion and Renewal jurisdiction over the

reappointment of faculty on indefinitely renewable long-term contracts.

But while those provisions specify the procedures attendant upon

renewal, they do not create a property interest in such procedures, or in

renewal of the contract. See McMenemy, 241 F.3d at 287 (public employee

had no due process right to the use of a fair process to fill a position where

he lacked a property interest in the position).

In any event, Malkan misinterprets the By-Laws to require a

Committee vote before the Dean of the Law School may decline to

recommend to the chief administrative officer that a candidates term

37
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appointment be renewed. Such a vote is not required. Rather, the By-

Laws authorize the Committee to make a recommendation to the Dean,

but they do not require the Dean to seek that recommendation where he

or she has already decided not to renew a term appointment. See supra

at 6. And as noted above, Malkan did not specifically dispute this point

in his Rule 56.1 Counterstatement of Material Facts, see ECF No. 63-8 at

9-10, and it therefore is deemed admitted. See Western District Local

Civil Rule 56.1(a)(2). For this reason, even if Malkan were correct in

claiming a cognizable property interest in reappointment (which he was

not), he would not have been entitled to the specific process (a Committee

vote) of which he claims to have been deprived.

Third and finally, Malkan relies (Br. at 37-39) on a Law School

report and two policies enacted in 2009 which he claims gave him an

expectation of renewal: a January 21, 2009 Law School Self-Study (A.2.

407-410), a March 20, 2009 Clinical Faculty Appointments Policy (A.2.

433-37), and a December 10, 2009 Policy on Appointment and Retention

of Legal Research and Writing Faculty (A.2. 382). Focusing in particular

on a statement in the Clinical Faculty Appointments Policy that It is

expected that, absent unusual circumstances, the three-year contracts

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for Clinical Professors will be renewed (A.2. 435), he contends that this

and similar provisions in the other two documents created a property

interest in renewal.12

This argument should be rejected for two reasons. First, these Law

School policies all post-date Malkans notice of non-renewal, dated

August 28, 2008, and could not retroactively confer rights on him. Second,

even if the policies applied here, they would not confer the rights that

Malkan asks this Court to read into them. When the Clinical Faculty

Appointments Policy and the Policy on Appointment and Retention of

Legal Research and Writing Faculty are read in conjunction with the

Trustees express disclaimer of any legal right, interest or expectancy in

a renewed term, it is apparent that the policy statements at issue merely

an aspiration, and do not confer any legal entitlement to renewal. See

supra at 29-30. The policies merely express the Law Schools general

12 The Policy on Appointment and Retention of Legal Research and


Writing Faculty contains a similar statement, which Malkan misquotes
(Br. at 39), that if a candidate has demonstrated good teaching ability
and effective implementation of program objectives, absent unusual
circumstances, the appointment will be renewed for an additional three-
year term. (A.2. 382.)

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expectation that clinical appointments will be renewed so long the

appointees performance is satisfactory, with no intent to confer any legal

entitlement to renewal.

In short, Mutua was properly granted summary judgment because

Malkan failed to establish that he had a property interest in continued

employment at the Law School.

POINT II

ALTERNATIVELY, MUTUA HAS QUALIFIED IMMUNITY

Summary judgment can also be affirmed on the alternative ground,

asserted below but not reached by the district court, that Mutua is

entitled to qualified immunity because he was objectively reasonable in

believing that his actions did not violate Malkans constitutional rights.

Qualified immunity serve[s] the public good by shielding public

officials from potentially disabling threats of liability. Spavone v. New

York State Dept of Corr. Servs., 719 F.3d 127, 134 (2d Cir. 2013). It thus

protects officials from damages where their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known . . . regardless of whether

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the . . . error is a mistake of law, a mistake of fact, or a mistake based on

mixed questions of law and fact. Pearson v. Callahan, 555 U.S. 223, 231

(2009) (internal quotations omitted). Even if a plaintiff shows facts

making out a violation of a constitutional right, a defendant may

establish a defense of qualified immunity by demonstrating that the right

was not clearly established or, even if the right was clearly

established, it was objectively reasonable for the officer to believe the

conduct at issue was lawful. Gonzalez v. City of Schenectady, 728 F.3d

149, 154 (2d Cir. 2013). The Court need not determine whether the facts

alleged make out a violation of a constitutional right prior to determining

whether that right was clearly established. Id. at 160 (citing Pearson,

555 U.S. at 236).

Applying these principles here, Mutua did not violate any clearly

established constitutional right. For the reasons stated in Point I, Mutua

was objectively reasonable both in his belief that Malkan lacked a

property interest in a renewed term appointment and that Mutua did not

need to seek the recommendation of the Committee on Clinical Promotion

and Renewal on Malkans candidacy where he had already decided to

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dismantle the Research and Writing Program and not to recommend

Malkans renewal. The Court may thus affirm on this alternative ground.

POINT III

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN


DECLINING TO SANCTION MUTUA AND HIS ATTORNEY, AND IN
ADOPTING THE MAGISTRATES VERBAL SANCTIONS
AGAINST MALKAN AND HIS FORMER ATTORNEY

The district court did not abuse its discretion in refusing to sanction

Mutua and AAG Sleight and, to the contrary, affirming the magistrates

verbal sanctions against Malkan and his former attorney Ostrove. For

the reasons detailed in the magistrates report (S.A. 54-93) and adopted

by the district court (S.A. 36-41), this Court should affirm the district

courts rulings on sanctions. Indeed, the magistrate correctly noted that

Malkans conduct during the litigation was so egregious that it would

easily warrant even the severe sanction of dismissal of the action as

Mutua argued below. (S.A. 91.)

Malkans arguments in favor of reversal are all premised on his

erroneous claim that Mutua committed perjury and perpetrated a fraud

on the court in his testimony about the nature of the vote taken at the

April 19, 2006 meeting of the Committee on Clinical Promotion and

Renewal. According to Malkan, AAG Sleight then compounded Mutuas


42
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deception by relying on it in moving for summary judgment. These claims

rest on three errors, as follows.

First, Malkan mistakenly leaps to the conclusion that Mutua

committed perjury just because his testimony concerning the nature of

the Committee vote differs from that of several others who were present

and have been asked for their recollections. (Br. at 48.) As the magistrate

judge noted (S.A. 79-80), even if the weight of the evidence suggests that

Mutua was wrong about the subject of the vote, there is no proof that his

testimony was intentionally false. The discrepancy could equally reflect

Mutuas faulty memory, or his contemporaneous misunderstanding of

precisely what was being put to a vote. See United States v. Sanchez,

969 F.2d 1409, 1415 (2d Cir. 1992) (Differences in recollection alone do

not add up to perjury). Thus, there is no basis for Malkans charge of

perjury by Mutua, let alone the claim that AAG Sleight should have

known of the commission of such perjury and disclosed it to the court.

Second, contrary to Malkans claim (Br. at 44, 45-49), AAG Sleight

did not base his summary judgment motion on Mutuas testimony, nor

did he assert as fact Mutuas version of the events. Rather, Mutuas Rule

56 Statement of Facts simply noted that there was sharp disagreement

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regarding the nature of the vote taken at the Committee meeting, though

all agreed that a vote was taken and that it favored Malkan. (A.2. 412-

13.) Mutuas Rule 56 Statement went on to describe each sides

recollection of the events, but it did not take a position on what actually

occurred at the meeting. (A.2. 412-13.) It was unnecessary to do so

because, as addressed below, the dispute is not material to any issue in

the case. Accordingly, AAG Sleight could have had no obligation to take

corrective action before the court and accuse his own client of perjury, not

only because there was no compelling evidence of such perjury, but also

because AAG Sleight did not rely on the allegedly perjurious testimony.

Third, Malkans motion for sanctions against Mutua and AAG

Sleight was baseless because the testimony whose truthfulness he

disputes was immaterial. Whatever the nature of the vote taken at the

April 19, 2006 meeting of the Committee on Clinical Promotion and

Renewal, it is undisputed that the President of SUNY Buffalo

subsequently appointed Malkan to a third term, ending on August 31,

2009, and that he was promoted to full Clinical Professor at a higher

salary. (See ECF No. 54-11 at 66, 69.) Mutua does not dispute the

legitimacy of Malkans appointment to a third term, only whether he had

44
Case 17-38, Document 39, 05/03/2017, 2025707, Page50 of 54

a property interest in the renewal of his appointment upon expiration.

Thus, contrary to Malkans assertions, Mutua does not claim that

Malkan had already received whatever process he was due when the

P&T Committee voted to recommend his dismissal (Br. at 41), or that

Professor Malkan had no right to due process in the Law School because

his faculty appointment had been fraudulently obtained (Br. at 49).

Malkans arguments for the materiality of Mutuas testimony depend

entirely on falsely ascribing to him theories which he has not advanced.

Malkans remaining argument in favor of reversal of the sanctions

rulings is that the magistrate judge misapplied the standard used under

Rule 11 to evaluate attorney conduct, substituting a subjective standard

for an objective one. This argument is also without merit.

The magistrate did not substitute a subjective standard in

considering whether AAG Sleights actions warranted Rule 11 sanctions.

Rule 11 requires that representations made by an attorney in court

papers must be well-grounded in fact or law, formed after an inquiry

reasonable under the circumstances. Fed. R. Civ. Pr. 11. The magistrate

applied this standard correctly, finding no evidence to suggest anything

other than differing recollections of the Committee meeting. Thus, the

45
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magistrate found no basis to claim that AAG Sleight acted unreasonably

under the circumstances in accurately depicting witnesss differing

recollections of the meeting in his Statement of Undisputed Material

Facts. (S.A. 80.)

To be sure, in considering a different issue, namely, whether the

court should impose sanctions against AAG Sleight pursuant to its

inherent power based upon his alleged violation of Rule 3.3 of the New

York Rules of Professional Conduct, the magistrate appropriately

considered whether AAG Sleight had actual knowledge of false

testimony. The magistrate undertook this analysis because Rule 3.3 is

not implicated unless an attorney has actual knowledge that certain

evidence is false and attempts to use that evidence. (S.A. 81-82.) The

magistrate properly determined that AAG Sleight did not breach his

ethical responsibilities in this case because there was no evidence that he

had clear knowledge of false testimony. The magistrates analysis is

sound and does not warrant reversal. And Rule 3.3 is not implicated for

the additional reason that, as already noted, AAG Sleight did not use

Mutuas disputed testimony but simply noted that it was disputed.

46
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Accordingly, this Court should affirm the district courts rulings on

sanctions.

CONCLUSION

The judgment below should be affirmed.

Dated: Albany, New York


May 3, 2017

Respectfully submitted,

ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Defendant-Appellee

By: /s Jeffrey W. Lang


JEFFREY W. LANG
Assistant Solicitor General

Office of the Attorney General


The Capitol
Albany, New York 12224
Telephone (518) 776-2027
BARBARA D. UNDERWOOD
Solicitor General
VICTOR PALADINO
JEFFREY W. LANG
Assistant Solicitors General
of Counsel

47
17-38-CV
Case 17-38, Document 39, 05/03/2017, 2025707, Page53 of 54

United States Court of Appeals


for the Second Circuit
JEFFREY MALKAN,
Plaintiff-Appellant,
-against-

MAKAU W. MUTUA,
Defendant-Appellee,

CHARLES P. EWING,

Defendant.

On Appeal from the United States District Court


for the Western District of New York

_______________________________________________________________________
CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)

The undersigned attorney, Jeffrey W. Lang, hereby certifies that this brief

complies with the type-volume limitations of FRAP 32(a)(7). According to the word

processing system used by this office, this brief, exclusive of the title page, table of

contents, table of citations, statement with respect to oral argument, any addendum

containing statutes, rules or regulations, and any certificates of counsel, contains

8,965 words.

/s/ Jeffrey W. Lang

JEFFREY W. LANG
Assistant Solicitor General

ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Defendants-Appellees
The Capitol
Albany, New York 12224
(518) 776-2027
Case 17-38, Document 39, 05/03/2017, 2025707, Page54 of 54

STATE OF NEW YORK


OFFICE OF THE ATTORNEY GENERAL

ERIC T. SCHNEIDERMAN BARBARA D. UNDERWOOD


ATTORNEY GENERAL SOLICITOR GENERAL

CERTIFICATE OF SERVICE

I hereby certify that I have, on May 3, 2017, served or caused to be served


2 copies of the accompanying Brief by United States Postal Service first class mail
upon the following named persons at the address provided in the course of these
proceedings:

Jeffrey Malkan
12 Valleywood Ct. W
St. James, N.Y. 11780

_ /s/ Jeffrey W. Lang___________________


JEFFREY W. LANG
Assistant Solicitor General

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