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

17-38-cv
Wniteb ~tates <!Court of ppeals
jfor tbe
~econb <!Circuit

Jeffrey Malkan,
Plaintiff-Appellant
v.
Makan W. Mutua,
Defendant-Appellee
Charles P. Ewing
'
(/)
. '-.-,J

Defendant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF NEW YORK

REPLY BRIEF FOR PLAINTIFF-APPELLANT

Jeffrey Malkan
Plaintiff-Appellant, prose
12 Valleywood Ct. W,
St. James, N.Y. 11780
(631) 862-6668
Case 17-38, Document 44, 05/16/2017, 2038386, Page2 of 34

TABLE OF CONTENTS

I. THE LAW SCHOOL'S DUE PROCESS RULES ARE BASED ON THE ABA-
MANDA TED PRINCIPLES OF FACULTY GOVERNANCE AND ARE LEGALLY
BINDING ON THE DEAN AND THE UNIVERSITY .......................................... 2

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

B. The Promotion and Tenure Committee does not issue advisory opinions ................ 8

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


the same as a continuing faculty appointment ................................................... 12

D. The University's repeated pledges to the ABA that its Law School is in compliance
with Standard 405(c) is evidence of its true policy on presumptively renewable term
contracts ............................................................................................................ 15

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


THE BOARD OF TRUSTEES AS STATED IN ITS LONG-STANDING RULES AND
PROCEDURES ...................................................................................... 17

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


conditional, not an unconditional, prohibition on presumptive renewability ................ 18

B. The detrimental impact of the District Court's ruling on job security for clinical
faculty is not limited to the SUNY Buffalo Law School.. ..................................... 22

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


JUSTICE AND PROFESSIONAL RESPONSIBILITY ISSUES RAISED BY THIS
APPEAL ............................................................................................... 23

A. The Attorney General violated Rule 11 by filing a false statement of undisputed facts
under Rule 56.1 ...................................................................................... 24

B. The Attorney General falsely maintained that the record reflected nothing more than
"a sharp difference of opinion." ................................................................... 24

C. The evidence of former Dean-Mutua's calculation and premeditation could not have
escaped the Attorney General's notice ........................................................... 25

D. The Solicitor General cannot raise a qualified immunity defense for former-Dean
Mutua while maintaining that his perjury is not a material fact .............................. 27

E. The Solicitor General failed to acknowledge the statutory constraints on the Attorney
General's power to represent former-Dean Mutua in this matter ............................. 28

CONCLUSION ............................................................................................... 28

1
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I. THE LAW SCHOOL'S DUE PROCESS RULES ARE BASED ON THE


ABA-MANDATED PRINCIPLES OF FACULTY GOVERNANCE AND
ARE LEGALLY BINDING ON THE DEAN AND THE UNIVERSITY.

Every member of the voting faculty at SUNY Buffalo was recruited to join

the Law School under the rules and procedures enacted in the Law School Faculty

Bylaws. They were updated by the faculty in March 2009, while Professor Malkan

was still employed by the Law School, and again in March 2016- both updates in

anticipation of ABA Site Visits - to conform to the ABA Standards and Rules of

Procedure for the Approval ofLaw Schools. In procedure and substance, they

confer upon clinical professors at the SUNY Buffalo Law School a right to due

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

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

The first error in the Solicitor General's response to this appeal is his failure

to distinguish between a faculty appointment and a decanal appointment.

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

Dean of the Law School has the authority to make administrative appointments

without faculty review or approval. The positions that lie within his or her decanal

discretion include such job titles as the Vice-Dean for Records and Registration,

the Vice-Dean for Business Administration, the Vice-Dean for Student Services,

the Vice-Dean of Admissions and Financial Aid, and the Vice-Dean for Career

Services. In addition, the Dean of the Law School may appoint short-term visitors

2
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to the faculty and fill non-voting positions on the instructional staff with adjunct

professors and lecturers. Finally, the Dean of the Law School has the authority to

staff administrative positions that require academic expertise with tenured and

clinical law professors such as the Vice-Dean for Faculty Affairs, the Vice-Dean

for Faculty Development, the Vice-Dean for Clinical Programs, and the Director of

the Law Library.

On the other hand, only the faculty itself can make full-time appointments to

the voting Law School faculty. The rationale for this allocation of authority, which

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

modem American research university are members of a collegial body who have

the chief competence for judging the work of their colleagues. "In such

competence it is implicit that responsibility exists for both adverse and favorable

judgments."

Likewise, there is the more general competence of experienced


faculty personnel committees having a broader charge.
Determinations in these matters should first be by faculty action
through established procedures, reviewed by the chief academic
officers with the concurrence of the board. The governing board
and president should, on questions of faculty status, as in other
matters where the faculty has primary responsibility, concur with
the faculty judgment except in rare instances and for compelling
reasons which should be stated in detail.

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

line at https://www.aaup.org/report/statement-govemment-colleges-and-

3
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universities (last visited May 15, 2017). 1 The faculty's authority over faculty

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

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

39. The Faculty Bylaws are binding on the Dean, and its procedures were put into

place as much to protect the University from liability for civil rights violations as

to protect the faculty itself from those violations.

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

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

to the ethical rules and standards of that profession in the same manner and to the

same extent as those who are non-academic practitioners in the field. That

includes the obligation to abide by Rule 11 of the Federal Rules of Civil Procedure.

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

students, the alumni, and the legal community to act in the best interests of the

profession and the institution. They can dissent from the Dean's edicts without

fearing that they will be sanctioned for insubordination. That is why law schools

in many universities are still called colleges, and why the norm of collegiality,

1
The dictionary definition of a "faculty" is a "power, authority, or prerogative given or
confen-ed" or "the teaching and administrative staff and those members of the administration
having academic rank in an educational institution." See "Faculty," Merriam-Webster.com, at
https://www.merriam-webster.com/dictionary/faculty (last visited May 15, 2017). These two
definitions are congruent with the concept of a faculty as body of scholars and educators that has
the power, authority and prerogative to confer academic rank on its own membership.
4
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regardless of adverse or favorable judgments upon each other, is commonly

applied to describe collaboration between faculty colleagues.

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

a faculty at the Law School, in accord with the Faculty Bylaws, begins in the

Faculty Appointments Committee. That Committee screens job applicants through

the AALS Faculty Recruitment Register.

After receiving a recommendation from the Faculty Appointments

Committee, the entire Law School faculty interviews the candidate on-campus and

must then approve the appointment by a two-thirds majority. Only then does the

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

Professor Malkan was hired through this process in the spring semester of2000,

and the faculty approved his promotion to 405( c)-protected rank as a full clinical

professor in the spring semester of 2006.

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

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

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

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

permission. When the administrative appointment ends, the faculty member

returns to the faculty at the same rank and status as before. The Dean of the Law

School himself is in this position. When former-Dean Mutua resigned from the

5
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deanship effective on December 20, 2014, he returned to the faculty at the same

rank and status he had held before accepting the deanship.

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

distinction. -The same was true when Professor Malkan completed his service as

director of the legal writing program. To make this distinction clear to future

deans, former-Dean Olsen drafted Professor Malkan's contract with two signature

lines. One line signified that Professor Malkan accepted his faculty appointment at

the rank and title of Clinical Professor of Law. The other signified that he

accepted his administrative appointment as Director of the Research and Writing

Program.

The contract stated that if Professor Malkan stepped down from his duties in

the R& W program for any reason he would return to full-time teaching with the

full course load of whatever skills, doctrinal, and interdisciplinary subjects he was

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

professor in the Law School. In addition, his contract expressly stated that a

change in the structure or staffing model of the legal writing program could not

represent good cause for terminating his faculty appointment. Finally, ABA

Standard 405( c) was annexed as an exhibit to the contract to establish for future

deans the accreditation requirement which the agreement was intended to satisfy.

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That is why former-Dean Mutua did not have the unilateral authority to

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

faculty appointment without proceeding through the Faculty Appointments

Committee, he cannot terminate a faculty appointment without proceeding through

the Promotion and Tenure Committee or the Committee on Clinical Promotion and

Renewal. 2

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

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

is front and center before this Court. The gist of the perjury was that Professor

Malkan never had a legitimate faculty appointment because the P&T Committee

never voted on a recommendation, either pro or con, for his reappointment and

promotion. He used this falsehood to argue in his testimony before the Public

Employment Relations Board that his predecessor, former-Dean R. Nils Olsen, Jr.,

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

full clinical professor.

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

Olsen to either endorse or reject, and that he therefore had no power to do anything

except allow Professor Malkan's contract to expire. The term of art that former-

2
As noted in the Appellant's Brief, the "P&T Committee," subsequent to the March 25, 2009
update to the Faculty Bylaws, is called the "Committee on Clinical Promotion and Renewal" or
"CCPR" when it is convened for consideration of promotions and reappointments to 405(c)-
protected rank.
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Dean Mutua used to accuse his predecessor of exceeding his authority in this

manner was "ultra vires." What was so hypocritical about his argument was that

he was in court trying to defend exactly the same thing that he falsely accused

former-Dean Olsen of doing - violating the faculty's due process rules by taking

an "ultra vires" action on a faculty appointment.

B. The Promotion and Tenure Committee does not issue advisory opinions.

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

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

already made up his mind to fire a clinical professor.

Malkan misinterprets the By-Laws to require a Committee vote


before the Dean of the Law School may decline to recommend to
the chief administrative officer that a candidate's term appointment
be renewed. Such a vote is not required. Rather, the By-Laws
authorize the Committee to make a recommendation to the Dean,
but they do not require the Dean to seek that recommendation
where he or she has already decided not to renew a term
appointment .... For this reason, even if Malkan were correct in
claiming a cognizable property interest in reappointment (which he
was not), he would not have been entitled to the specific process (a
Committee vote) of which he claims to have been deprived.

Appellee's Br. at 37-38.3 This argument assumes that the Dean is a "boss" who

hires and fires professors, unconstrained by the Faculty Bylaws.

That is untrue. The Faculty Bylaws give the Promotion and Tenure

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


3
The last sentence raises the question - if Professor Malkan had a "cognizable property interest
in reappointment," and he wasn't entitled by the Bylaws to the process of a Committee vote,
what was the process to which he was entitled?
8
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jurisdiction, in identical language, over promotion to University tenure or 405(c )-

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

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


Chair, and all Faculty Members who are tenured or on an indefinitely
renewable long-term contract.

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


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

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


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

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


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

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


shall be recommended by a majority of the Committee voting in
person at a meeting.

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


Faculty Member who is on an indefmitely renewable long-term
contract or on track for an indefmitely renewable long-term
contract shall be recommended by a majority of the Committee
voting in person at a meeting.

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(5) Two-thirds of the members of the Committee eligible to vote


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

(6) Determinations on recommendations with respect to


promotion, including the granting of an indefinitely renewable
long-term contract, renewal, dismissal, or termination of
appointment of a Faculty Member who is on an indefinitely
renewable long-term contract or on track for an indefinitely
renewable long-term contract shall be taken by secret ballot.

Bylaws and Standing Orders of the University at Buffalo, School ofLaw, State

University ofNew York, III (E) (4) (emphasis added).

The Faculty Bylaws are also clear that authority in the promotion and tenure

process is allocated to the Dean through his chairmanship of the Committee. "The

Dean shall be the Faculty's chief administrative officer and generally performs the

functions of a dean.... These functions shall include the following specified

powers and duties ... chairing the Committee on Promotion and Tenure and the

Committee on Clinical Promotion and Renewal. Id. at II (A) (f) (emphasis added).

To say that the Committee is rendered powerless ifthe Chair of the Committee

refuses to convene it is to make a travesty out of the Faculty Bylaws.

The reality is that the Dean is the Chair of the Committee and his views and

intentions are stated within the Committee. Ifhe is strongly opposed to a

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promotion or reappointment, he is heard then and there. He can write a

memorandum and take the floor to explain his opinion in the meeting before the

Committee deliberates and votes. At the end of this process, in the exercise of

their collective judgment, either he persuades his colleagues, or they persuade him.

The Solicitor General's argument, moreover, is false as a description of how

due process works in any judicial or quasi-judicial deliberation. The

recommendation of the P&T Committee in the Law School is the decision of the

faculty on an issue over which it has jurisdiction. That a decision by the faculty is

subject to review by the Dean does not make it into an advisory opinion, any more

than a decision by the District Court, which is subject to review by the Court of

Appeals, is an advisory opinion. The decision must be made before it can be

reviewed. Even when a ruling is appealed, the appeal takes place within the

standard of review for that type of decision and the record that was put into

evidence in the prior proceedings.

To repeat, this is the AAUP principle by which the Dean is bound in the

matter of promotion and tenure. "[O]n questions of faculty status, as in other

matters where the faculty has primary responsibility, [the administration should]

concur with the faculty judgment except in rare instances and for compelling

reasons which should be stated in detail." There can be no statement of

"compelling reasons" by the Dean for disagreement with the faculty ifthe faculty

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has not been allowed to make a recommendation. The concept of a legal process

implies a series of reviews and a narrowing of issues until the fullest and fairest

possible decision is reached.

Finally, former-Dean Mutua's claim that he had already determined to fire

Professor Malkan, regardless of what the faculty recommended, is irrelevant to the

legality of what he did. A judge's assertion that he had no intention of allowing

the defendant to receive a fair hearing does not have any relevance to a due process

claim except to prove that the violation of due process was knowing and willful.

C. A qualified faculty appointment with a presumptively renewable term

contract is not the same as a continuing or tenure-trackfaculty appointment.

The Solicitor General's third error is to argue that ABA Standard 405(c) is

unenforceable at SUNY Buffalo Law School because it would elide the difference

between qualified and continuing faculty appointments under the Policies of the

Board of Trustees.

If this qualifier ["of itself'] were read to permit SUNY colleges to


circumvent the Trustees' disclaimer of any rights to renewal by
agreement of the parties, such authority would render meaningless
the Trustees' distinctions between different types of appointments
and the limits on term appointments. For instance, under this
interpretation of the Policies, a college could extend tenure to a
faculty member hired under the guise of a term appointment
merely by making it presumptively renewable.

See Appellee's Br. at 33-34.

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There is no dispute that Standard 405( c) requires that clinical professors be

provided with security of employment that is "reasonably similar to tenure" and

that the Law School has certified its compliance over and over again with that

accreditation standard.

What is disputed is the Solicitor General's argument that 405(c)-compliance

equates to automatic renewal and guaranteed lifetime employment. Presumptive

renewability is not the same as automatic renewal. No faculty member at SUNY

Buffalo has a guarantee of lifetime employment, whether he or she has a

continuing appointment or a qualified appointment. What tenure requires is that

the faculty member be provided with predeprivation due process before his or her

employment is terminated, and that the mandatory process must be based upon the

standard of good cause, which is generally defined as a failure of job performance,

personal misconduct, or financial exigency. Only in this respect is a 405( c)-

protected faculty appointment the same as a continuing or tenured faculty

appointment.

The difference is that a continuing appointment does not come back to the

faculty unless charges are proffered against the tenured professor by the

administration or by another faculty member of equal rank. In contrast, a qualified

appointment at the rank of full clinical professor automatically comes back to the

faculty every three years. The question here is not whether a clinical appointment

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comes back to the faculty- both parties agree that it does - but what issue

regarding that appointment comes back. The concept of presumptive renewability

answers that question.

In the law of evidence, a presumption shifts or assigns a


burden of proof by presuming a conclusion of law. If a
teacher has a Standard 405( c) presumptively renewable
contract, the teacher has a contractual right, when that
contract ends, to a new (renewed) contract of the same
length unless the school has admissible evidence sufficient
to overcome the presumption that the teacher satisfies the
school's renewal criteria, which the ABA requires every
school to establish. The teacher is not required to prove that
she satisfies the criteria. That is presumed. Instead the
school must prove that she does not satisfy them. For
example, ifthe school's written policy requires
"excellence" in teaching, and if that is the issue, the school
must prove that the teacher's teaching is not "excellent." If
the school cannot prove that but nevertheless fails to renew
the contract, the school, as a matter of contract law, is liable
for breach of the expiring presumptively renewable
contract.

Richard K. Neumann, Jr., Academic Freedom, Job Security, and Costs, 66 Journal

ofLegal Education 595, 603 (2017). That is what presumptively renewability

means in the context of due process, and that is why former-Dean Mutua exceeded

his authority when he blocked the faculty from making a recommendation on

whether good cause had been stated for Professor Malkan's termination.

D. The University's repeated pledges to the ABA over the past two decades

that its Law School is in compliance with Standard 405(c) is compelling evidence

of its true policy on presumptively renewable term contracts.

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The Solicitor General argues that Professor Malkan is trying to obtain a

retroactive benefit from rules that were not in effect on the date of his termination.

He also argues that the Law School is still in the process of trying to determine its

obligations to its accrediting body under Standard 405(c). Finally, he argues that

the Law School's certifications to the ABA do not represent rules or policies that

legally bind the institution. Those arguments are not just incorrect, but impossible,

except for the last, which is irrelevant.

First, the 2009 ABA Site Visit Team reported that the Law School was in

compliance with Standard 405( c) based on the evidence, provided by the Law

School itself, of its Faculty Bylaws and Clinical Faculty Appointments Policy.

Both of those policies had been updated in the month prior to the Site Visit, during

the month of March 2009. Subsequent to the Site Visit, the faculty applied those

rules to review and renew the appointments of the two clinical professors whose

contracts were slated to expire on the exact same day as Professor Malkan's -

August 31, 2009. He alone was singled out by former-Dean Mutua for denial of

due process. 4

4
The date on the notice of non-renewal, August 28, 2008, is not the date of termination. That is
because the Policies of the Board of Trustees authorize the Dean to issue that notice before he or
she consults the faculty, which is a necessary step in the non-renewal process. See id., at A1t. XI,
Tit. A, 1 ("nothing contained herein [i.e., the provision for faculty consultation] shall prevent
the chief administrative officer of a college from taking such actions as he or she may deem
necessary to meet notice requirements in the event ofnonrenewal of term appointments.")
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Second, the clinical faculty standard, Standard 405( c), has been in effect for

ABA-accredited law schools since 1993. Thus the Law School has certified its

compliance to the ABA Section on Legal Education four times so far, in 1995,

2002, 2009, and, most recently, in 2016. The Law School has never before

claimed to the ABA or to anyone else before this litigation that the Policies of the

Board of Trustees make compliance with the ABA clinical faculty standard legally

impossible. In fact, the due process rules that are the subject of this case are still in

effect in exactly the same form to the present day.

Finally, Professor Malkan does not claim that the Self-Study Report

submitted to the ABA for its April 2009 Site Visit is itself a Law School policy

upon which a due process claim may be based. His argument is that the Self-Study

is compelling evidence of the Law School's policies. The policies themselves are

stated in the Faculty Bylaws, which were enacted under the authority of the

President, and the Clinical Faculty Appointments Policy. The District Court

should have found that these due process rules are valid and enforceable, then as

now, and that their violation is actionable under 42 U.S.C. 1983.

II. TIIB UNIVERSITY IS BOUND BY ITS INTERPRETATION OF TIIB


POLICIES OF THE BOARD OF TRUSTEES AS STATED IN ITS LONG-
STANDING RULES AND PROCEDURES.

The University's prior argument that presumptively renewable term

contracts are unconditionally prohibited under the Policies of the Board of

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Tiustees, as the Solicitor General now concedes, cannot possibly be true. That is

because every tenure-track professor in the Law School receives an initial three-

year term contract, with the expectation that this "visiting" appointment will be

renewed for at least another contract term if satisfactory progress is made towards

tenure. In the last year of the second contract, that is the sixth year of

employment, the faculty member goes before the P&T Committee. See Faculty-

Staff Handbook, II.B.2, Term Appointments in Tenure-Track Positions,

http://www.business.buffalo.edu/ubbcontent/hrs/facultyhandbook/III.htm (last

visited May 15, 2017). The candidate expects to receive a fair hearing. That is an

expectation of renewal.

In light of this now undisputed fact, however, the Solicitor General

speculates that the "renewal of term" provision in the Policies of the Board of

Trustees must be conditional with respect to continuing (tenure-track) and

permanent (professional staff) appointments, but unconditional with respect to

qualified (clinical) appointments. "The qualifier 'of itself' merely emphasizes that

while some other types of appointments, such as continuing or permanent

appointments, may confer rights to continued employment, term appointments do

not." See Appellee's Br. at 33.

The problem is that all of the evidence before this Court and in the

University's publicly accessible documents shows that the "renewal of term"

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provision is conditional across the board, not least because the Board of Trustees

could not possibly have intended to prevent its professional schools throughout the

State of New York from complying with their accreditation standards or from

recruiting a competent and dedicated clinical faculty.

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

is a conditional, not an unconditional, prohibition on presumptive renewability.

The only document we have located that might shed light on the "renewal of

term" provision of the Policies of the Board of Trustees is a memorandum written

on July 18, 1972, "Non-Renewal of Term Contracts," by Walter J. Relihan, Jr.,

Esq., who at that time was the Vice-Chancellor for Legal Affairs. The Relihan

memorandum was not disclosed to the plaintiff in the District Court, but it is

posted for the general public on the website of SUNY General Counsel, the State

University of New York, at http://system.suny.edu/media/suny/content-

assets/documents/academic-affairs/mtp/mtp77-1 O.pdf (last visited May 15, 201 7)

(copy annexed to this brieJ).

Mr. Relihan's purpose was to advise the University Presidents about the

effect on their campuses of the recent Supreme Court decisions in Board of

Regents v. Roth, 408 U.S. 564 (1972), andPeny v. Sindermann, 408 U.S. 593

(1972), which had been decided three weeks earlier. The issue in both cases was

whether an institution of higher education could be held liable under federal law

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for failing to provide predeprivation due process to a full-time faculty member

before non-renewing his term appointment. Mr. Relihan briefed these cases as

follows:

The Supreme Court [in Roth] observed that weighing


equities had nothing to do with the threshold question of
whether or not a "property" right is involved. In Roth, the
contract had expired of its own terms at the end of the academic
year. The professor's unilateral and subjective expectation that
his employment would continue absent some intervening good
cause to the contrary was held insufficient to bind the college.
This, of course, is basic contract law and one wonders that the
question ever assumed constitutional dimensions.
In Sindermann, the court found a further question of fact
and law which it returned to the lower court for determination.
There, Sindermann will be permitted to offer evidence that a
quasi-contract for continued employment may have existed.
That is, under the circumstances obtaining at his college, a
tenured appointment status may have been implied in fact,
arising out of custom, usage, and the express language of
certain of its regulations.
No such quasi-contract could be inferred under the Policy
governing the State University of New York which (Art. IX,
Title C, Sec. 4) explicitly covers the point and leaves no room
for implication.
Finally, it should be noted, a non-renewal for the kind of
"cause" which would justify a misconduct proceeding under
Article XIV, Title D might require a notice and hearing if the
effect of such a decision adversely affected the individual's
good name and reputation or foreclosed his freedom to take
advantage of other available academic employment.

The take-away points of Mr. Relihan's memo were, first, that the "renewal

of term" provision in the Policies of the Board of Trustees will likely have the

19
Case 17-38, Document 44, 05/16/2017, 2038386, Page21 of 34

effect of protecting the University from any due process claims based on "custom

and usage" or "quasi-contract," and, second, that if a qualified appointment is non-

renewed for the type of cause that would damage the professor's "good name and

reputation" to the point that it foreclosed other employment opportunities, then due

process procedures might nevertheless be required to avoid liability.

The Relihan memorandum confirms that the "of itself'' clause in the

"renewal of term" provision was intended to enforce the distinction between

express and implied presumptions of renewal. The contract that Professor Malkan

received from former-Dean Olsen, in accord with the Faculty Bylaws and ABA

Standard 405(c), is an express presumption of renewal, subject to the faculty's due

process protections and a good cause standard of review.

Mr. Relihan further cautioned that even in the situation of a quasi-contract,

the University might be liable for a violating the Fourteenth Amendment right to

due process if the non-renewal of a term contract has the effect of disqualifying the

non-renewed faculty member from further academic employment. That is exactly

what happened to Professor Malkan.

Every AALS law school hiring committee in the United States knows that a

full clinical professorship at an ABA-accredited law school carries with it the

protections of Standard 405( c), which meant that the only reason Professor Malkan

could have found himself on the job market in the fall semester of2009 without a

20
Case 17-38, Document 44, 05/16/2017, 2038386, Page22 of 34

current job was that he had been terminated for good cause. His instrnctional

position in the Law School could not have been eliminated for financial exigency

for the simple reason that first year legal writing is an ABA requirement.

As a result, Professor Malkan, after his removal from the faculty, had no

way of avoiding the inference that he had been fired for a failure of job

performance or for personal misconduct. Nothing he could say or do at that point

could mitigate that damage to his reputation. The foreseeable consequence was

that he was precluded from further employment in the field of legal education.

B. The detrimental impact of the District Court's ruling on job security for

clinical faculty is not limited to the SUNY Buffalo Law School.

In addition to the SUNY Buffalo Law School, the SUNY system maintains

four medical schools (SUNY Buffalo, SUNY Stony Brook, Downstate Medical

Center in Brooklyn, and Upstate Medical University in Syracuse) as well as two

dental schools (SUNY Buffalo, SUNY Stony Brook) and a veterinary school

(Cmnell University). All of these health sciences schools rely on a full-time

clinical faculty to deliver instrnction in their specialties to future practitioners.

These clinical faculties undergo a rigorous review process before they are

promoted to full professorships. See, e.g., UB Jacobs School of Medicine,

Policies, Procedures and Criteria for Faculty Promotions (revised August 2016), at

http://www.smbs.buffalo.edu/FACULTY/FacultyCouncil/docs/Med School Polici

21
Case 17-38, Document 44, 05/16/2017, 2038386, Page23 of 34

es/Policies,%20Procedures,%20Criteria%20for%20Faculty%20Promotions%2020

16.pdf (last visited May 15, 2017). Any contracts awarded by these institutions for

the purpose of securing the best possible clinical faculty, committed in the long-run

to their institutions and communities, would be voided by the District Court's

ruling in the present case. There is no evidence that the Board of Trustees could

possibly have intended to put these institutions in a position that would impair their

efficiency and excellence in this manner.

III. THE SOLICITOR GENERAL HAS NOT EVEN ATTEMPTED TO


RESPOND TO THE CRIMINAL JUSTICE AND PROFESSIONAL
RESPONSIBILITY ISSUES RAISED BY THIS APPEAL.

The problem with the District Court's decision on the Rule 11 motion is not

just that the Attorney General failed to make any inquiry into whether his client

was attempting to perpetrate a fraud on the court. The problem is that the only

inference that could possibly be drawn from these facts and circumstances is that

the Attorney General already knew about the fraud. It was impossible that he did

not know that his client's testimony was both material and false.

AAG Christopher Boyd, who is AAG David Sleight's co-counsel, defended

Interim Dean James A. Gardner in the state court defamation action brought

against him by Professor Malkan. Interim Dean Gardner was a voting participant

in the P&T Committee meeting of April 28, 2006 who wrote a five-page

22
Case 17-38, Document 44, 05/16/2017, 2038386, Page24 of 34

memorandum opposing Professor Malkan's reappointment and challenged the vote

count to former-Dean Olsen after the meeting concluded.

There is no possibility that Messrs. Sleight and Boyd could have avoided

knowing the truth about what had happened at that meeting. In other words, they

both know that former-Dean Mutua's testimony could not possibly have been

anything but false and that he had already subverted the integrity of the judicial

process with those lies at the Public Employment Relations Board.

A. The Attorney General violated Rule 11 by filing a false statement of

undisputed facts under Local Rule 56.1.

AAG Sleight signed his name to a motion for summary judgment in full

knowledge that former-Dean Mutua had given the same false testimony three years

earlier at the Public Employment Relations Board. Had the Hearing Officer at

PERB known that former-Dean Mutua's testimony was inaccurate and almost

certainly perjured, he could not have found that testimony to be credible on any

issue in the case, including his denial that he did not know about the UUP's

advocacy for Professor Malkan. The "make whole" remedy at PERB would have

resulted in reinstatement with back pay for Professor Malkan and protected him

from any further retaliation. Everything that has happened in this litigation, from

its inception to the present day, is the result of former-Dean Mutua's false

23
Case 17-38, Document 44, 05/16/2017, 2038386, Page25 of 34

testimony at PERB and his persistence in repeating and embellishing it with

additional fake facts.

B. The District Court could not have awarded summary judgment to the

former-Dean if the Attorney General had not falsely maintained that the record in
the District Court reflected nothing more than "a sharp difference of opinion. "

The Attorney General was required by Rule 11 to concede the undisputed

fact that his client's testimony about Professor Malkan's faculty appointment was

erroneous, and that his client was knowingly and willfully maintaining his "error,"

despite the unrefuted evidence to the contrary. That former-Dean Mutua himself

advanced the ludicrous excuse that he was the victim of a conspiracy by a sinister

cabal "colloquially known as 'the Tea Party,"' and that this bizarre plot involved

perjury and the forgery of documents by eleven tenured and emeritus professors,

makes the Attorney General's continued advocacy on his behalf even more

damaging to the integrity of his Office.

C. The evidence offormer Dean-Mutua's calculation and premeditation

could not have escaped the Attorney General's notice.

The false testimony given by former Dean-Mutua at PERB was not elicited

from him as the result of a surprise question under cross-examination. He gave

that prepared testimony with four months' advance notice on direct examination,

and repeated it the next day on cross-examination. He then repeated it with

24
Case 17-38, Document 44, 05/16/2017, 2038386, Page26 of 34

embellishments at a deposition in federal court three years later. He repeated it yet

again in a sworn declaration to the District Court the following year.

Throughout all of this time he was the Dean of the Law School with

unfettered access to any documents or advice that he might have needed to refresh

or correct his recollections. He spoke, moreover, not as a layperson, or even as an

attorney, but with the credibility of the esteemed office he held, which meant that

his testimony must be held on review to the highest standards of honesty and

honor.

Without further belaboring the point, suffice it to say that the facts and

circumstances in the record of this case provide compelling and likely conclusive

evidence that the "sharp difference of opinion" between former-Dean Mutua and

every other witness was anything but the result of an innocent mistake.

The former-Dean's lies were premeditated and calculated.

They were unequivocally maintained over a period of five years.

They were leveraged by the credibility of the Dean's Office.

They were provocative and defamatory.

They described events that were notorious and momentous.

The evidence of his perjury that has emerged over the course of these

proceedings, and in the prior proceedings in state court, would have compelled any

ethical attorney to make an inquiry into the veracity of his client's testimony before

proceeding to file a motion to conclude this case summarily.


25
Case 17-38, Document 44, 05/16/2017, 2038386, Page27 of 34

The testimony was unanimous, except for the perjurer himself.

This unanimous testimony was supported up by contemporaneous,


handwritten documentary evidence from former-Dean Mutua's faculty
colleagues.

The Attorney General had direct access to all of the possible witnesses
in the case, all tenured or emeritus law professors, including the perjurer's
successor in the Dean's Office.

What makes it worse is that AAG Sleight knew that a grant of summary

judgment to his client would preclude any opportunity by the court to make an

assessment based on live testimony of whether his client was lying. No ethical

attorney in these circumstances could possibly argue that the "sharp difference of

opinion" between former-Dean Mutua and every other law professor who has

spoken in this matter is the product of an innocent mistake. The only inference

that could possibly be drawn from these circumstances is that former-Dean Mutua

fabricated his story with premeditation for the purpose of providing a factual basis

for his legal argument that Professor Malkan never had a legitimate faculty

appointment and therefore no right to due process in the Law School. 5

5
What makes this professional misconduct even more alarming from the perspective of public
integrity is that the President of the University, Satish K. Tripathi, in a sworn declaration to the
District Court dated December 12, 2013, denied that he had any prior knowledge of the
allegations against his law school dean. After those allegations were published on the front page
of the Buffalo News in the third week on September 27, 2014, then-Dean Mutua suddenly
announced his resignation from the deanship. President Tripathi, instead of investigating the
evidence at that point, which had been filed in federal court on August 25, 2014, made a
statement honoring the accomplishments of now former-Dean Mutua. See UB News Release,
available on-line at http://www.buffalo.edu/news/releases/2014/09/037.html (September 22,
26
Case 17-38, Document 44, 05/16/2017, 2038386, Page28 of 34

D. The Solicitor General cannot raise a qualified immunity defense for

former-Dean Mutua while maintaining that his perjury is not a material fact.

It should be sufficient to say that there is no decisional authority in any

federal court that would support a defense of qualified immunity in a matter where

the public official has committed perjury and destroyed subpoenaed evidence. By

reiterating the qualified immunity defense (upon which the District Court made no

ruling and did not even mention), the Solicitor General is effectively conceding

that the veracity of former-Dean Mutua's testimony is a material fact.

E. The Solicitor General failed to address the statutory constraints on the

Attorney General's power to represent former-Dean Mutua in these proceedings.

The Attorney General has no statutory authority to defend the criminal

misconduct of a state official, but on this most basic conflict of interest the

Solicitor General remains silent. Whether or not that is a deliberate concession, the

point remains that New York law required former-Dean Mutua to retain private

counsel in this matter once there was credible evidence that his abuse of power in

the Law School rose to the level of criminal misconduct. His recourse under New

York Public Officers Law 17-19 was to submit a claim for reimbursement from

the State in the event that he is found non-liable and non-culpable for the

criminality alleged and supported by credible evidence in this matter.

2014). To the present day, President Tripathi has blocked any University investigation of the
evidence against his fotmer-Dean.

27
Case 17-38, Document 44, 05/16/2017, 2038386, Page29 of 34

CONCLUSION

For the foregoing reasons, the Plaintiff-Appellant again requests this Court

to reverse the decision of the District Court in its entirety and remand with

instructions ( 1) to award summary judgment, sua sponte, pursuant to Fed. R. Civ.

Pro. R. 56 (),to Jeffrey Malkan on the issue of liability, (2) to lift the verbal

sanctions imposed on Frederic D. Ostrove, Esq. and the contempt of court citation

imposed on Jeffrey Malkan, (3) to impose appropriate sanctions and contempt of

court citations pursuant to Fed. R. Civ. Pro. R. 11 and R. 56 (h) on AAG David J.

Sleight, Esq., AAG Christopher L. Boyd, Esq., and Defendant-Appellee Makau W.

Mutua, and (4) to provide such other and further relief as the Court deems just and

proper.

Dated: May 15, 2017


Saint James, New York

Respectfully submitted,

Jeffrey alkan
Plainti -Appellant pro se
12 Valleywood Ct. W.
Saint James, NY 11 780
(631) 662-6668
jeffrey.malkan@outlook.com

28
Case 17-38, Document 44, 05/16/2017, 2038386, Page30 of 34

/.
State University of New York ATTACHMENT #l
~J9 W.1..,hin~ton Avenue
AIU.iny, New York 12210

OHice of the University Coun'tel


dnd Vice Chancellor for Legal Affairs

~ E M0 R A N D U M

July 18, 1972

TO: Presidents, State University of. NewYork


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

*Board of Regents of-State Colleges v. Roth


(Sup. Ct. June 29, 1972)
Perry v. Sindermann (Ibid.)
Case 17-38, Document 44, 05/16/2017, 2038386, Page31 of 34

Attachl)J.!-nt #1 - .Page 2
Presidents c - 2 - \ . July 18, 1972

Following notification of non-renewal, of course, a


faculty member might contend that the unfavorable decision
represents an unlawful act of retaliation .and not a judgment
of academic qualifications. In that event, a statement of
reasons for non-renewal may be appropriate, together with an
opportunity for rebuttal, This could be done informally and,
ordinarily, without the necessity of full scale adversary
procedures. The proper handling of each such case would largely
depend upon its own facts. In certain instances, the case might
fall within the SPA contract and be treated under its grievance
procedures. We invite your further inquiry if such a situation
presents itself.
FOURTEENTH AMENDMENT
Procedural due process (notice and hearing) may be
required in the event of a State deprivation of valued
interests which, in constitutional contemplation, amount to
"liberty" or "property".
The lower court in Roth erroneously a'ssuined that its
duty involved balancing the professor's legal intere.st in
continued employment against the college's interest in perpetu-
ating its right of summary and unexplained termination. On
that basis, the trial judge ordered the college to provide the
professor with reasons and a hearing.
r;
'-. ,
The Supreme Court observed that weighing.equities had
nothing to do with the threshold question of whether or not a
"property'' right is involved. In Roth, the contract had
expired of its terms at the end of"tlle academic year. The
professor's unilateral and subjective expectation that his em-
ployment would continue absent some intervening good cause to
the contrary was held insufficient to bind the college. This,
of course, is basic contract law and one wonders that the
question ever assumed constitutional dimensions.
In Sindermann, the court found a further question of
fact and law which it returned to the lower court for determina-
tion. There, Sindermann will be permitted to offer evidence
that a quasi-contract for continued employment may have existed.
That is, under the circumstances obtaining at his college, a
tenured appointment status may have been implied in fact,
arising out of custom, usage, and the express language of
certain of its regulations.
No such quasi-contract could be inferred under the
Policy governing the State University of New York which ( Art. XI,
Title c, sec. 4) explicitly covers the point and leaves no room
for implication.
Case 17-38, Document 44, 05/16/2017, 2038386, Page32 of 34

Presidents
c - 3 -
A(tachment #1 - Page 3
July 18, 1972

Finally, it should be noted, a non-renewal for the


kind of "cause" which would justify a misqonduct proceeding
under Article XIV, Title D might require a notice and hearing
if the effect of such a decision adversely affected the indi-
vidual's good name and reputation or foreclosed his freedom
to take advantage of other available academic employment.
Case 17-38, Document 44, 05/16/2017, 2038386, Page33 of 34

Certificate of Compliance with Type-Volume Limit, Typeface Requirements,


and Type-Style Requirements

1. This document contains 6,638 words, excluding the parts of the document
exempted by Fed. R. App. P. 32(f). It complies with the word limit of Fed. R
App. P. 6.

2. This document has been prepared in a proportionally spaced typeface using


Microsoft Word in Times New Roman, fourteen point type. It complies with the
typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements
of Fed. R. App. P. 32(a)(6).

Jeffrey: Ma&an
Plainti -Appellant prose
12 Val ywood Ct. W.
Saint James, NY 11780
(631) 662-6668
jeffrey.malkan@outlook.com

Dated: May 15, 2017


Saint James, New York

29
Case 17-38, Document 44, 05/16/2017, 2038386, Page34 of 34

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


CERTIFICATE OF SERVICE

Malkan v. Mutua, Docket Number 17-38-cv

I, Jeffrey Malkan, hereby certify under penalty of perjury that on May 15, 201 7, I
filed a copy of Brief of Plaintiff-Appellant and Appendix of Plaintiff-Appellant by
United States Postal Service with the Clerk of the United States Court of Appeals
for the Second Circuit. I further certify that on May 15, 2017, I filed with the
Clerk by United States Postal Service (i) six single-side copies of this Brief with
gray covers, and (ii) an unbound copy of each document for electronic filing or
office use. I also served bound copies of each document on the two parties listed
below.

Jeffrey W. Lang, Esq.


Office of the Solicitor General
120 Broadway
NewYork,N.Y.10271

Frederic D. Ostrove, Esq.


Leeds Brown Law, PC
One Old Country Road Suite 347
Carle Place, New York 11514

Jeffrey alkan
Plaintif -Appellant prose
12 Valleywood Ct. W
Saint James, N.Y. 11780
(631) 862-6668
jeffrey.malkan@outlook.com

Dated: May 15, 2017


Saint James, New York

30