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Case: 1:18-cv-07810 Document #: 39 Filed: 05/28/19 Page 1 of 82 PageID #:149

No. 19-1958

____________________________________________________

United States Court of Appeals


for the Seventh Circuit
___________________________________

Jeffrey Malkan,
Plaintiff-Appellant,
v.
American Bar Association, and
Council of the Section on Legal Education
and Admissions to the Bar,
American Bar Association,
Defendant-Appellee
_______________________________

Appeal from the United States District Court


for the Northern District of Illinois
Case No. 18-cv-7810
The Honorable Judge John Robert Blakey

________________________________________________

BRIEF AND REQUIRED SHORT APPENDIX OF


PLAINTIFF-APPELLANT, JEFFREY MALKAN
_________________________________________________

Jeffrey Malkan,
Plaintiff-Appellant, pro se
12 Valleywood Ct. W
Saint James, New York 11780
(631) 862-6668
jeffrey.malkan@outlook.com
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TABLE OF CONTENTS

Table of Authorities……………………….………………………………………………………ii

Jurisdictional Statement…………………………………………………………………………. iv

Statement of Issues on Appeal …………………………………………………………………...iv

Statement of the Case ……………………………………………………………………………iv

Statement of Facts ………………………………………………………………………………..vi

Standard of Review ………………………………………………………………………....…...xv

Summary of the Argument ………………………………………………………………………. 1

Argument

I. The District Court erred by basing its decision on a theory of the case that the Plaintiff has
never maintained. ……………………………………………………………………………..…. 2

II. The District Court erred by misconstruing the time frame of the promissory fraud claim…... 6

III. The District Court erred by drawing every possible unfavorable inference from the
allegations of the complaint. …………………………………………………………………….10

IV. The District Court erred by failing to give any weight to the public interest in protecting the
integrity of the accreditation process. ………………………………………………………….. 20

Conclusion ….…………………………………………………………………………………...23

Certificate of Compliance with FRAP Rule 32(g) and CR Rule(c)……………………………..24

Circuit Rule 32(d) Statement ……………………………………………………………………24

Proof of Service …………………………………………………………………………………25

Attached Required Short Appendix ……………………………………………………………..26

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TABLE OF AUTHORITIES

Cases

Malkan v. Mutua, 699 Fed. Appx. 81 (2d Cir. 2017) …………….………………….………… x

Kaplan v. Shure Bros., Inc., 153 F.3d 413, 417 (7th Cir. 1998) ……….………….……………xv

Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996) …………………………….……………xv

Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429 (7th Cir. 1996)
……………………………………………………………………………………...…….……..xv

Gossmeyer v. McDonald, 128 F.3d 481, 489 (7th Cir.1997) …………………………….……..xv

Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir.1997) ………………………………….……..xv

Lashbrook v. Oerkfitz, 65 F.3d 1339, 1343 (7th Cir. 1995) ………………...……….…………xv

Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 1990) …………….2

Spokeo, Inc. v Robins, 136 S. Ct. 1540, 1547 (2016) ……………………………………………2

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) ……………………………………2

Berger v. Nat'l Collegiate Athletic Ass'n, 843 F.3d 285, 289 (7th Cir. 2016) .…………………...2

Steinberg v. Chicago Med. School, 371 N.E.2d 634, 69 Ill.2d 320, 333-34 (1977) ……………...6

Soules v. Gen. Motors Corp., 402 N.E.2d 599, 79 Ill. 2d 282, 286 (1980)…………………..…...7

HPI Healthcare v. Mt. Vernon Hosp., 545 N.E.2d 672, 131 Ill. 2d 145, 186 (1980)…..…………7

Stamatakis Indus., Inc. v. King, 520 N.E.2d 770, 772, 165 Ill. App. 3d 879, 881-82 (1987) …….7

Bower v. Jones, 978 F.2d 1004, 1011 (7th Cir. 1992) ……………………………………………7

Dressler v. Old Oak Dev. Corp., 548 N.E.2d 1343, 192 Ill. App. 3d 577, 585 (1989) …………..7

Duhl v. Nash Realty, Inc., 429 N.E.2d 1267, 102 Ill. App. 3d 483, 490-91 (1981) ……………...7

Willis v. Atkins, 106 N.E.2d 370, 412 Ill. 2d 245 (1952) ………………………………………....8

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) …………………………………………………..10

Apostol v. Landau, 957 F.2d 339, 343 (7th Cir. 1992) ………………………………………….10

Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985)………………………………... 10

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Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir. 2008) …………………………………..10

AnchorBank FSB v. Hofer, 649 F.3d 610, 624 (7th Cir. 2011) …………………………………11

Beckman v. Chi. Bears Football Club, Inc., No. 17 C 4551, 2018 WL 1561719, at *1 (N.D. Ill.
March 30, 2018) …………………………………………………………………………………12

DH2, Inc. v. SEC, 422 F.3d 591, 597 (7th Cir. 2005) …………………………………………...12

Segovia v. United States, 880 F.3d 384, 389 (7th Cir. 2018)…………………………………… 12

Ass’n of Am. Physicians & Surgeons, Inc. v. Koskinen, 68 F.3d 640, 642 (7th Cir. 2014)…..….20

Other Authorities

ABA Standards for the Accreditation of Law Schools………………………….……………….vii

Department of Education, Required Standards and their Application, 34 CFR Part 602, Subpart
B…………………………………………………………………………………………………..4

Association of American University Professors (AAUP), 1940 Statement of Principles on


Academic Freedom and Tenure …………………………………………………………………14

ABA Rules of Procedure for the Accreditation of Law Schools ………………………………..17

Policies of the Board of Trustees of the State University of New York ………………………..18

Peter A. Joy and Robert R. Kuehn, The Evolution of ABA Standards for Clinical Faculty, 75
Tenn. L. Rev. 183, 206-213 (2008) ……………………………………………………………..21

Peter A. Joy, ABA Standard 405(c): Two Steps Forward and One Step Back for Legal Education,
66 J. Legal Ed. 606, 618-626 (2017) ……………………………………………………………21

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JURISDICTIONAL STATEMENT

The district court had jurisdiction over this case as a civil action arising

under the laws of the United States based on diversity of citizenship pursuant to 28

U.S.C. § 1332. This appeal is taken from the final order of the U.S. District Court

for the Northern District of Illinois, dismissing the complaint, entered on May 8,

2019, by the Honorable John Robert Blakey. The dismissal, with prejudice, is

final. The Notice of Appeal was filed on May 17, 2019. The United States Court

of Appeals has jurisdiction to decide this case pursuant to 28 U.S.C § 1291.

STATEMENT OF ISSUE ON APPEAL

Do the allegations of the complaint present a direct and continuous line of

causation between the summary termination of the Plaintiff’s 405(c)-protected

faculty appointment, the University’s defense of this termination by repudiating

Standard 405(c) in its entirety, and the ABA’s false assertion of fact that the

University at all relevant times has been in full compliance with Standard 405(c)?

STATEMENT OF THE CASE

This is an action against the American Bar Association and the ABA

Council of the Section on Legal Education, filed by the Plaintiff on November 27,

2018. [Dkt. #1, 3.] The complaint alleges both negligent and fraudulent

misrepresentation [Count I] in connection with the ABA’s accreditation of the

SUNY Buffalo Law School. It also seeks a declaratory judgment [Count II] in the

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form of a ruling that the SUNY Buffalo Law School is not in compliance with

Standard 405(c). Id.

Specifically, the complaint alleges that the Plaintiff was deprived of his right

to postdeprivation due process in federal court because of the ABA’s fraudulent

misrepresentation that SUNY Buffalo has been in compliance with Standard

405(c) at all times relevant to the complaint when it knows that University, on

October 30, 2017, successfully argued to the U.S. Court of Appeals that it cannot

comply with that standard, and never has, due to self-imposed legal constraints that

prevent it from issuing presumptively renewable contracts to its clinical faculty.

The ABA responded by filing this motion to dismiss on February 18, 2019,

alleging that the District Court did not have subject matter jurisdiction and also

alleging that the Plaintiff failed to state a claim upon which relief can be based.

[Dkt. #23.] The motion was presented to the District Court on March 5, 2019.

[Dkt. #27.] On May 8, 2019, the District Court issued an order granting the ABA’s

motion to dismiss on the basis of Article III standing, and dismissing Counts I and

II with prejudice. [Dkt. #29.] In its opinion, the District Court limited its ruling to

the element of causation in the Article III standing issue.

Plaintiff fails to establish Article III standing for the simple


reason that this lengthy causal chain offers no connection
between his injury – the alleged stigma following his 2008
termination – and the Defendants’ Standard 405(c)
enforcement power…. Simply put, [his] allegations provide
zero connection between Defendants’ Standard 405(c)
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enforcement power and Matua’s [sic] decision to terminate


the Plaintiff.

Mem. Op. at 8-9. [Dkt. #30.] The Plaintiff filed his Notice of Appeal on May 17,

2019 [Dkt. #33-35], and the appeal before this Court ensued.

STATEMENT OF FACTS

A. Plaintiff accepts a faculty appointment at SUNY Buffalo Law School. –

On July 25, 2000, the Plaintiff was offered a faculty appointment as Clinical

Associate Professor of Law at the State University of New York at Buffalo, with a

separate administrative appointment as Director of the Legal Research and Writing

Program. He accepted this offer on August 7, 2000, and subsequently served for

two three-year contract terms. See Compl. ¶ 37.

On April 28, 2006, the Law School’s Promotion and Tenure Committee

approved his reappointment and promotion to the title and rank of full Clinical

Professor of Law, which took the form of a 405(c)-protected contract, signed by

former-Dean R. Nils Olsen, Jr. on October 19, 2006, and accepted by the Plaintiff

on November 16, 2006. Id. ¶ 38.

Standard 405(c) provides that –

A law school shall afford to full-time clinical faculty members a


form of security of position reasonably similar to tenure, and non-
compensatory perquisites reasonably similar to those provided
other full-time faculty members.

Interpretation 405-6 of that Standard further provides that –

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A form of security of position reasonably similar to tenure


includes a separate tenure track or a program of renewable
long-term contracts.... For the purposes of this
Interpretation, “long-term contract” means at least a five-
year contract that is presumptively renewable or other
arrangement sufficient to ensure academic freedom. During
the initial long-term contract or any renewal period, the
contract may be terminated for good cause, including
termination or material modification of the entire clinical
program.

ABA Standards for the Accreditation of Law Schools. Id., at ¶¶ 29-30

B. The 405(c)-protected contract. – Dean Olsen introduced the contract by

stating that the intention of the parties was to formalize the requirements of

Standard 405(c).

As we have discussed throughout your service to UB Law,


your appointment is covered by the ABA rules and is
intended to fully comply with those rules, particularly
standard 405(c) and all accompanying interpretations,
especially interpretations 405-6 and 405-8. Now that you
have been successfully appointed following a full review,
future reviews will have the “for cause only” removal
standard set forth in the ABA Standards. Under ABA
policies, this standard is meant to be similar to that term as
applied when dealing with tenured faculty and is intended
to ensure academic freedom.

Id. ¶ 39. He proceeded to promise on the University’s behalf that a decision by

any future dean to non-renew the contract would have to be confirmed during the

contract’s terminal year in the form of a recommendation voted upon by a

committee of the entire tenured faculty at his current rank or higher. Id.

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This 405(c)-protected contract, together with the Law School’s status as an

ABA-accredited law school, led the Plaintiff to believe that he had a permanent

faculty appointment as a clinical professor of law and that his renewal in that

position would be mandatory, in the absence of good cause, upon the expiration of

each term of service. Id. ¶ 41.

C. Former-Dean Mutua terminates the Plaintiff without due process or

good cause. – Two years later, on August 28, 2008, the new interim dean of the

Law School, Makau W. Mutua, issued a notice of non-renewal that terminated the

Plaintiff’s employment as of August 31, 2009, without any consultation,

deliberation, or recommendation by the faculty. Id. ¶ 42.

When the faculty convened at the end of the spring 2009 semester to

consider clinical promotions and renewals, former-Dean Mutua refused to place his

name on the agenda, thereby blocking the faculty from providing him with due

process. On the day that his contract expired, the Plaintiff’s employment at the

University came to an end. Id. From that day forward, the stigma of a “for cause”

termination from a 405(c)-protected position precluded him from mitigating his

damages by resuming his career in legal education at any other law school. Id. ¶ 9.

D. Litigation against the University ensues. – In proceedings over the next

decade before the state and federal courts of the State of New York, the Attorney

General of New York took the position that the Policies of the Board of Trustees,

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which are regulations of the New York State Department of Education, prevent any

SUNY campus from granting presumptively renewable term contracts to full time

faculty members of any college or academic department, including the Law

School. Id. ¶¶ 2-3, ¶¶ 43-44. That legal restriction retroactively abrogated all of

the Law School’s certifications of compliance with ABA Standard 405(c) and any

institutional rules or contractual commitments that 405(c)-compliance entailed. Id.

The Plaintiff responded in all of these venues that the University’s

interpretation of the Policies of the Board of Trustees was not only textually

inaccurate and factually unprecedented, but also practically impossible because the

repudiation of any ABA standard would cause the Law School to forfeit its

operating license. Id. ¶ 59, 62. He further maintained that the Policies of the

Board of Trustees are simply the University’s own enabling rules, promulgated in

the form of Department of Education regulations, which the Trustees could amend

at any time. As he explained to the District Court on this motion:

If the Trustees found that a deficiency in their Policies stood


in the way of operating an ABA-accredited law school, they
could simply have amended their Policies to enable the Law
School to return to compliance with its accreditation
standards. The only reason the University was in court
attacking its own contracts, bylaws, and personnel rules was
that it wanted to keep its clinical professors in an ongoing
state of insecurity and fear by subjecting them to the
unremitting threat of summary dismissal.

See Pls’ Mem. in Opp. at 10. [Dkt. # 25].

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E. The decision of the U.S. Court of Appeals for the Second Circuit. – The

University’s defense succeeded in the federal district court in Buffalo and was

affirmed by a panel of the Second Circuit on October 30, 2017. The panel opinion

in Malkan v. Mutua, 699 Fed. Appx. 81 (2d Cir. 2017), adopted the district court’s

finding of fact that the Plaintiff had received a fraudulent contract from the

University that provided no basis for a federal right to due process based on a

property interest in state employment.

The district court correctly granted summary judgment to


Mutua. Due process can only be violated if a protected
property interest is at issue. White Plains Towing Corp. v.
Patterson, 991 F.2d 1049, 1061-62 (2d Cir. 1993). “A person's
interest in a benefit is a ‘property’ interest for due process
purposes if there are such rules or mutually explicit
understandings that support his claim of entitlement to the
benefit and that he may invoke at a hearing.” Perry v.
Sindermann, 408 U.S. 593, 601 (1972) (citing Bd. of Regents
of State Colleges v. Roth, 408 U.S. 564, 577 36 (1972)).
“Mutually explicit understandings” may include a “written
contract with an explicit tenure provision” between a professor
and state university. Id. But “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). SUNY regulations cap term appointments at
three years and do not “create any manner of legal right,
interest or expectancy in any other appointment or renewal.” 8
N.Y.C.R.R. $ 335.13. None of what Malkan cites – UB School
of Law's bylaws, customs, accreditation reports, the American
Bar Association's standards, and his contract – overrides that
regulatory term.... As for whether UB School of Law is
misrepresenting the employment status of its clinical
professors to the American Bar Association, Malkan offers no
estoppel argument, and we decline to consider one.
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Id. ¶ 55 (emphasis added). The panel’s conclusion was that the ABA’s Standards

for the Accreditation of Law Schools and the contracts and personnel rules issued

by the Law School in compliance with Standard 405(c) over the past two decades

had no legal effect whatsoever. Id.

F. The Plaintiff attempts to report the University’s violation to the ABA. –

He initially tried to report the University’s repudiation of Standard 405(c) on

March 17, 2016. He filed his complaint after he received the ruling from the U.S.

Magistrate in Buffalo, and prior to the Law School’s upcoming site evaluation in

April of 2016. Id. ¶ 45-47. The Accreditation Counsel responded that she would

refer his complaint to the Site Visit Team. Id. ¶ 48. He received no further

information from the ABA. The Law School’s reaccreditation was approved by

the Accreditation Committee at its April 20-21, 2017 meeting. Id. at ¶ 51.

On January 29, 2018, the Plaintiff filed a second complaint with the ABA,

this time enclosing a copy of the Second Circuit’s decision, providing final and

conclusive proof that SUNY Buffalo had repudiated Standard 405(c). Id. ¶ 56. On

June 4, 2018, he received the following notification from the Accreditation

Counsel:

After a thorough review of your complaint and the Law


School's response, I have concluded that the facts you set
forth fail to allege a violation by the Law School of the ABA
Standards for Approval of Law Schools. Specifically, as
specified in Rule 44, upon such a determination the matter is
closed. As provided in Rule 46, this matter is not subject to
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appeal to the Council or to the Accreditation Committee, or


elsewhere in the American Bar Association.

Id. ¶ 58. After this final – “not subject to appeal” – decision by the ABA, the

Plaintiff made two further attempts to report the violation.

He first wrote to a member of the Accreditation Committee who told him

that he would forward his information to the Accreditation Counsel. Id. at ¶¶ 50-

51. When that approach failed, the Plaintiff wrote directly to the Managing

Director, Barry Currier, once again providing his evidence of the violation. Id. ¶

62. His letter to the Managing Director also included a front page article from the

Buffalo News, entitled “Deep Rift Exposed as UB Law's Dean Resigns.”

The Buffalo News recounted former-Dean Mutua's attack on


the academic freedom of the Law School faculty over the
previous seven years, which focused on his repression of the
clinical faculty. The article also reported allegations of
former-Dean Mutua's repression of women's rights within
the faculty, as well as his repression of faculty self-
governance, which included the University's refusal to allow
it to nominate its own dean in 2008-2009, and its
intervention to suspend a no-confidence vote against former-
Dean Mutua in September of 2010.

Id. ¶ 65. The Managing Director ignored this submission as well. In total, six

months passed from June 4, 2018, the day of the ABA’s final decision, and

December 5, 2018, the day that the complaint was served on the ABA in Chicago

and this action commenced in the District Court. For the Court’s convenience, a

time line of these events is attached below.

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Time Line of the Factual Allegations in the Complaint

April 28, 2006

The Promotion and Tenure Committee recommends that the Plaintiff be promoted to full clinical
professor and that his appointment should be renewed with a 405(c)-protected, long-term contract.

November 16, 2006

Plaintiff signs a long-term, 405(c)-protected contract with the SUNY Buffalo Law School.

August 28, 2008

Former-Dean Mutua notifies the Plaintiff that he will not sign his contract renewal and that his removal
from the faculty will be effective when his contract expires of the end of the academic year.

April 7-8, 2009

The ABA visits SUNY Buffalo for its sabbatical site evaluation; reaccreditation is approved.

August 31, 2009

The Plaintiff’s 405(c)-protected contract expires.

November 13, 2009

Plaintiff files for breach of contract in the New York Court of Claims; the Notice of Claim is dismissed as
untimely. In a second ruling, the claim is dismissed again on the grounds that the University cannot
legally comply with Standard 405(c). See Malkan v. SUNY Buffalo, Nos. 116355, 117676 (Sept. 6, 2013).

March 23, 2012

Plaintiff files a due process lawsuit, pursuant to 42 U.S.C. § 1983, in federal district court in Buffalo.

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December 2, 2015

After two and a half years of pretrial proceedings, the U.S. Magistrate for the Western District of New
York recommends that summary judgment be granted to the University based on its assertion that it
cannot legally award long-term contracts and due process rights, notwithstanding ABA Standard 405(c).

March 4, 2016

The Plaintiff files a complaint with the ABA, reporting the University’s repudiation of Standard 405(c).
The ABA states that it will review his evidence as part of its upcoming April 23, 2016 Site Evaluation Visit.
He receives no further response. The Law School’s reaccreditation is approved as of April 20, 2017.

October 30, 2017

The U.S. Court of Appeals for the Second Circuit rules that the University has retroactively revoked all of
its clinical faculty contracts and due process rules; in the absence of a federally protected property
interest in state employment, the Plaintiff had no right to due process; summary judgment is affirmed.

January 29, 2018

The Plaintiff provides the Second Circuit’s decision to the ABA as conclusive proof that the University has
repudiated Standard 405(c), and revoked all of its clinical faculty contracts and due process rules.

June 4, 2018

The ABA informs him that it finds no violation of any of its standards and closes his complaint.

November 27, 2018

Plaintiff commences this action in federal district court in Chicago for negligent and fraudulent
misrepresentation, based on the ABA’s endorsement of SUNY Buffalo’s accreditation fraud.

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STANDARD OF REVIEW

The Court of Appeals will review de novo a dismissal with prejudice and

accept all well-pleaded allegations as true. Kaplan v. Shure Bros., Inc., 153 F.3d

413, 417 (7th Cir. 1998). See also Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir.

1996); Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423,

1429 (7th Cir. 1996). It will also draw all reasonable inferences in the plaintiff’s

favor, and affirm only if “it is clear that no relief could be granted under any set of

facts that could be proved consistent with the allegations.” Gossmeyer v.

McDonald, 128 F.3d 481, 489 (7th Cir.1997) (quoting Ledford v. Sullivan, 105

F.3d 354, 356 (7th Cir.1997)); see also Lashbrook v. Oerkfitz, 65 F.3d 1339, 1343

(7th Cir. 1995).

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SUMMARY OF THE ARGUMENT

The District Court’s order to dismiss the complaint should be reversed

because it was based on an error of fact. That error was its finding that the Dean of

the Law School was exercising his independent and lawful discretion when he

summarily terminated the Plaintiff’s employment. The District Court found that

this was an intervening and superseding cause that absolves the ABA of all liability

for the violation of his right to due process. The flaw in this logic is that its

underlying factual premise is incorrect.

The legal authority of the Dean is limited by the faculty’s due process rules.

These rules, in turn, were enacted for the purpose of keeping the Law School in

compliance with the ABA Standards. The District Court erred by failing to

recognize that former-Dean Mutua’s violation of the Plaintiff’s right to due process

and his refusal to comply with Standard 405(c) were one and the same. Once the

factual premise of the District Court’s decision is rejected, the rationale behind its

order to dismiss the complaint must be rejected as well.

An abuse of discretion that amounts to the violation of an accreditation

standard cannot be the chain-breaking event that absolves the ABA from liability

for refusing to enforce that very same standard. To the contrary, it was the initial

event in a chain of causation that led directly to the ABA. The ABA would not

have been called upon to enforce Standard 405(c) had former-Dean Mutua not

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violated it in the first place and had the University not then defended his violation

by repudiating the standard in its entirety. The ABA’s acquiescence to this

impermissible defense was a deliberate abuse of its authority as a DOE-approved

accrediting agency that tainted the judicial process and deprived the Plaintiff of a

fair hearing in any court. That was the chain of causation between the ABA’s false

assertion of fact and the damage it inflicted on the Plaintiff.

I. THE DISTRICT COURT ERRED BY BASING ITS DECISION


ON A THEORY OF THE CASE THAT THE PLAINTIFF HAS
NEVER MAINTAINED.

This appeal responds to a facial challenge by the ABA to the Plaintiff’s

standing, limited here to the issue of causation. Cf. Apex Digital, Inc. v. Sears,

Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 1990). To establish Article III

standing, he must credibly allege that he has “(1) suffered an injury in fact, (2) that

is fairly traceable to the challenged conduct of the defendant, and (3) that is likely

to be redressed by a favorable judicial decision.” Spokeo, Inc. v Robins, 136 S. Ct.

1540, 1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

61); see also Berger v. Nat'l Collegiate Athletic Ass'n, 843 F.3d 285, 289 (7th Cir.

2016). The sole issue the appeal raises is whether the causal connection between

the Law School’s violation of his right to due process and the ABA’s refusal to

order it back into compliance with Standard 405(c) was sufficient to satisfy the

requirements of Article III standing.


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The District Court ruled that the chain of causation between his wrongful

termination and the ABA’s authority over the Law School was too attenuated to

support a wrongful termination claim. That ruling, however, was based on the

mistaken belief that he was blaming the ABA for his wrongful termination. To the

contrary, he does not allege that the ABA was a party to his contract, breached his

contract, or was responsible in any way for ordering, influencing, or approving

former-Dean Mutua’s termination of his faculty appointment at the end of the

2008-09 academic year. What he does allege is a violation of his right to due

process in federal court based on a property interest in state employment.

To rephrase these allegations in the relevant time frame of the complaint, he

alleges that he was initially denied his right to predeprivation due process in the

Law School. That occurred during the 2008-09 academic term. He does not lay

the blame for that denial on the ABA’s doorstep. He does, however, seek to hold

the ABA accountable for the University’s accreditation fraud.

As recited in the complaint, the dispositive fact is that the University, on

October 30, 2017, successfully obtained a ruling from the U.S. Court of Appeals

for the Second Circuit that its Law School is not now, and never has been, in

compliance with Standard 405(c), with the result that all of its clinical contracts

and due process rules are retroactively null and void. See Compl. ¶¶ 2, 81. The

complaint alleges that the University subverted the accreditation process by lying

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to the ABA about its 405(c)-compliance on both its 2002 and 2009 Self-Study

Reports. Id. ¶¶ 2, 81. The University knew that it could make that devastating

admission because the ABA had already refused to take any action against it for

revoking all of its clinical contracts and due process rules one year earlier on the

occasion of its 2016 Site Evaluation. Id. ¶ 82.

On the day that the Attorney General of New York asserted the University’s

repudiation of Standard 405(c) to the U.S. Court of Appeals, the ABA already

knew that SUNY Buffalo had repudiated Standard 405(c) to the U.S. Magistrate

Judge of the Western District of New York and in the New York Court of Claims

in Buffalo. It also knew that the University’s employment counsel had testified

that the University has never had the legal capacity to honor the long-term

contracts and protected property rights that it was awarding to its clinical faculty

members after their elevation to the rank and title of clinical professor. Id. ¶ 47.

When the ABA became aware that an ABA-accredited law school had

repudiated a mandatory accreditation standard in federal district court, it was

required by the U.S. Department of Education, by which it is licensed to accredit

law schools, to bring that law school back into compliance.

602.20 Enforcement of standards.

(a) If the agency’s review of an institution or program under


any standard indicates that the institution or program is not in
compliance with that standard, the agency must-

4
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(1) Immediately initiate adverse action against the


institution or program; or
(2) Require the institution or program to take
appropriate action to bring itself into compliance with
the agency’s standards….
(b) If the institution or program does not bring itself into
compliance within the specified period, the agency must take
immediate adverse action unless the agency, for good cause,
extends the period for achieving compliance.

Required Standards and their Application, 34 CFR Part 602, Subpart B; see Compl.

¶ 22. The Plaintiff’s reliance on the ABA to prevent the University from

repudiating Standard 405(c) was foreseeable and justified because a DOE-licensed

accrediting agency has no lawful discretion to excuse or ignore a self-avowed

violation of its accreditation standards.

It must be noted that the Plaintiff has never argued that the ABA was

required to spring into action to protect him, personally, against a rogue

administrator at his place of employment. What he alleged in the complaint is that

he was entitled to rely on the efficacy and viability of Standard 405(c) as long as

that standard remains in effect. See Compl. ¶ ¶ 41, 79-80. What happened here

was the opposite of standards enforcement. The ABA not only turned a blind eye

to the University’s repudiation of Standard 405(c), despite the conclusive evidence

it held of the University’s defiance, but, on June 4, 2018, expressly informed the

Plaintiff that it found no violation whatsoever. Id. ¶ 58.

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In Steinberg v. Chicago Med. School, 371 N.E.2d 634, 69 Ill. 2d 320, 333-34

(1977), the Supreme Court of Illinois held that the false assertion of a merit-based

admissions policy in a medical school bulletin, upon which it knew that the

medical school’s applicants would rely, amounted to a promissory fraud aimed at

that school’s applicant pool. Likewise here, the ABA’s false assertion of a law

school’s compliance with an accreditation standard, upon which it knows that the

law school’s clinical faculty will rely, amounts to a promissory fraud aimed at that

school’s clinical faculty.

To conclude, all of the damage in this matter was caused by the ABA’s

acquiescence to SUNY Buffalo’s repudiation of Standard 405(c), and the

fraudulent misrepresentations that the ABA made – and continues to make –

on the University’s behalf. These allegations state a straight, clear, and

continuous line of causation between former-Dean Mutua’s unlawful decision

to block the Plaintiff from receiving due process in the Law School, in

defiance of Standard 405(c), and the damages the Plaintiff seeks to recover.

II. THE DISTRICT COURT ERRED BY MISCONSTRUING THE


TIME FRAME OF THE PROMISSORY FRAUD CLAIM.

The principal cause of action alleged by the complaint is a claim for what is

variously called “fraudulent misrepresentation,” “fraud in the inducement” or

“promissory fraud.” As stated by the Illinois Supreme Court,

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the elements of a cause of action for fraudulent


misrepresentation are: (1) false statement of material fact;
(2) known or believed to be false by the party making it; (3)
intent to induce the other party to act; (4) action by the
other party in reliance on the truth of the statement; and (5)
damage to the other party resulting from such reliance.

Soules v. Gen. Motors Corp., 402 N.E.2d 599, 79 Ill. 2d 282, 286 (1980).

Although the general rule in Illinois is that false promises alone do not give

rise to a claim for fraud, the exception to the rule – known as the “scheme to

defraud” theory – is well established here. See, e.g., HPI Healthcare v. Mt. Vernon

Hosp., 545 N.E.2d 672, 131 Ill. 2d 145, 186 (1980); Stamatakis Indus., Inc. v.

King, 520 N.E.2d 770, 772, 165 Ill. App. 3d 879, 881-82 (1987). In a promissory

fraud claim, the false statement of fact will be a promise that lures the plaintiff into

a defenseless position where he or she is then victimized by the defendant. See

Bower v. Jones, 978 F.2d 1004, 1011 (7th Cir. 1992). “While misrepresentations

as to something to be done in the future generally do not constitute fraud, a

statement of matters in the future, if affirmed as a fact, may amount to a fraudulent

misrepresentation if it amounts to an assertion of fact.” Dressler v. Old Oak Dev.

Corp., 548 N.E.2d 1343, 192 Ill. App. 3d 577, 585 (1989); see also Duhl v. Nash

Realty, Inc., 429 N.E.2d 1267, 102 Ill. App. 3d 483, 490-91 (1981) (same).

In the present case, the promise of “something to be done in the future” was

the enforcement by the ABA of its Standards for the Accreditation of Law Schools

upon conclusive evidence that a law school has dropped out of compliance with an
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accreditation standard, in this case, Standard 405(c). A finding of fact by the ABA

that a law school is in compliance with Standard 405(c), if it is demonstrably false,

is a false assertion of fact upon which that law school’s clinical professors will

foreseeably rely to make a commitment that may cost them their reputations,

careers, and livelihoods. It supports a cause of action for promissory fraud, which

is the legal claim that is presently before this Court.

The core allegation of the complaint is that the ABA’s federally-mandated

commitment to enforce its accreditation standards is a false promise of future

performance, amounting to a fraudulent misrepresentation or a scheme to defraud,

by which the Plaintiff was damaged in a direct line of cause and effect. He did not

know that he had fallen prey to a scheme to defraud until the Attorney General of

New York, years later, asserted in court that his contract had been rendered null

and void by the University’s repudiation of Standard 405(c), which it had done

with the knowledge and acquiescence of the ABA.

In Willis v. Atkins, 106 N.E.2d 370, 412 Ill. 2d 245 (1952), one of the two

seminal cases in Illinois, the Supreme Court accepted a claim for promissory fraud

in a lawsuit that alleged that a false promise to marry, i.e., a promise of future

performance, was the culmination of a fraudulent scheme to abscond with the

plaintiff’s assets. The victim of the fraud in Willis did not know that she had been

defrauded until her fiancée’s promise to marry came due and he refused to do so.

8
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He first made the promise to marry her in June of 1936. See 412 Ill. 2d at

249. She did not discover that he had married someone else until January of 1947.

Id. at 252. In the interim he had “conceived and executed a fraudulent scheme to

secure her money and property by false, deceitful and fraudulent words and

conduct designed to gain her confidence and trust for the sole purpose of inducing

her to part with her real estate and personal property.” Id. at 255. In other words,

there was a time lag of eleven years between the fiancée’s promise to marry and

the victim’s discovery of his scheme to defraud.

In the present case, the Plaintiff accepted a 405(c)-protected contract on

November 16, 2006. He did so in the belief that Standard 405(c) was a legal

commitment that SUNY Buffalo could only repudiate at the cost of forfeiting its

license to operate. His contract was terminated as of August 30, 2009, and a

litigation against the University of nearly a decade ensued, but throughout that

entire period of time he had no reason to blame the ABA for SUNY Buffalo’s

accreditation fraud. In fact, he believed that the University was telling one story to

the courts and the opposite story to the ABA on its annual reports and sabbatical

site evaluations. In other words, he believed that the ABA was a fellow victim of

the fraud rather than its author.

It was not until June 4, 2018 that the ABA informed him that it had reviewed

the evidence in the matter, in particular, the October 30, 2017 ruling of the U.S.

9
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Court of Appeals for the Second Circuit, and found that the University was not in

violation of any of its accreditation standards. That was twelve years after he had

made his commitment to a permanent faculty appointment at the SUNY Buffalo

Law School.1 The District Court seized on that interval to find that causation was

too attenuated to satisfy the standing requirement of Article III. That finding,

however, was based on an error of law. Under Illinois law, the fact that it took

twelve years for the ABA’s role in the accreditation fraud to manifest itself to the

victim of the fraud should not in any way detract from the element of causation as

it is alleged in the complaint.

III. THE DISTRICT COURT ERRED BY DRAWING EVERY


POSSIBLE UNFAVORABLE INFERENCE FROM THE
ALLEGATIONS OF THE COMPLAINT.

The allegations of the complaint in an initial pleading must be construed

favorably to the pleader, regardless of whether the motion is based on a lack of

subject matter jurisdiction or a failure to state a cause of action. Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974). See also Apostol v. Landau, 957 F.2d 339, 343

(7th Cir. 1992); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985).

That includes the benefit of “all possible inferences” that can be drawn in the

Plaintiff’s favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir. 2008).

1
The District Court called it a ten year interval, measuring it from August 28, 2008, the date that
former-Dean Mutua delivered notification that he intended to terminate the contract upon its
expiration one year hence. See Mem. Op. at 10.
10
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“The issue is not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claims.” AnchorBank FSB v.

Hofer, 649 F.3d 610, 624 (7th Cir. 2011).

The District Court, contrary to this advice, withheld the benefit to which the

Plaintiff was entitled by drawing the most unfavorable inferences that it could

possibly draw from his allegations in order to reach the mistaken conclusion that

no further proceedings could ever establish that he had reached the threshold of

Article III standing. It then compounded that error by dismissing the complaint

with prejudice. It summarized its ruling as follows:

Thus, absent any allegation that: (1) Matua [sic] acted


beyond his discretion in terminating the Plaintiff without good
cause, in violation of Standard 405(c); and (2) Defendants
failed to discipline or sanction the Law School for this
specific violation, the Complaint demonstrates that Matua
made an independent, discretionary decision to terminate the
Plaintiff. Thus, this Court cannot fairly trace the Plaintiff’s
alleged injury—the stigma of a “for cause” termination—to
Defendants.

Mem. Op. at 10. This ruling was based on three separate inferences from the facts

alleged in the complaint. All three inferences were not only construed in the

manner most damaging to the Plaintiff, but were also exactly the opposite of what

he alleged.

Inference #1 – Former-Dean Mutua acted within his lawful discretion to

terminate the Plaintiff’s employment in the Law School for good cause.

11
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The District Court concluded that the chain of Article III causation was

broken because former-Dean Mutua exercised his independent and lawful

discretion when he decided that he had good cause to terminate the Plaintiff’s

contract, and proceeded to do so. It supported this conclusion with a string citation

to a series of cases in which the decisions and actions of third parties, taken

pursuant to their unfettered discretion, were the immediate and chain-breaking

causes of his damages. See Mem. Op. at 10.2

The most recent case cited by the District Court, Beckman v. Chi. Bears

Football Club, Inc., No. 17 C 4551, slip op., at 1 (N.D. Ill. March 30, 2018),

illustrates just how wrong this analysis was. The plaintiff in Beckman sued the

NFL because the Chicago Bears would not allow him to wear his Green Bay

Packers “gear” to a promotional event at Soldier Field. In a claim for injunctive

relief, he argued that the NFL was responsible for his disappointment because the

Bears are required to conform to the NFL’s rules and policies.

The district court, however, found that Beckman had “failed to identify any

NFL rule, policy, or anything else that required, or even encouraged, the Bears to

adopt the policy he challenges.”

2
See DH2, Inc. v. SEC, 422 F.3d 591, 597 (7th Cir. 2005) (“[m]utual funds have the discretion to
use fair value pricing in lieu of market quotations when circumstances warrant the conclusion
that market quotations are no longer current”); Segovia v. United States, 880 F.3d 384, 389 (7th
Cir. 2018) (“Illinois has discretion to determine eligibility for overseas absentee ballots under its
election laws”). The Beckman case is discussed in the text, supra.
12
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Beckman must instead show a more direct connection to the


NFL—that the NFL “play[s] some role in enforcing” the
challenged policy. [citation omitted] Beckman's letter to the
NFL's commissioner… certainly demonstrates that Beckman
thinks the NFL could play a role, but the letter, the complaint,
and Beckman's response do not give the court any reason to
think that it has played a role in the policy's enforcement or that
the NFL is likely to do so in the future. The Bears’ policy
therefore appears to be a matter left by the NFL to the Bears’
discretion on the present record. Because the Bears’ discretion
appears to be unfettered, it breaks the chain of causation from
Beckman's injury to the NFL.

Id. at 12-13. In contrast to the Beckman case, the Plaintiff’s claim against the ABA

checks all the boxes that Beckman failed to check. Unlike the NFL, the ABA has

rules in place with which accredited law schools are required to comply. The

decision of whether to comply is not one that is left to the discretion of individual

institutions and their administrators, but is mandated by the ABA. Former-Dean

Mutua had no discretion to bypass the ABA accreditation standards and summarily

terminate the employment of a 405(c)-protected clinical professor. Likewise,

SUNY Buffalo had no discretion that would allow it to repudiate Standard 405(c)

and then continue to operate as an ABA-accredited law school.

The District Court appeared to draw its erroneous inference from the

language of Interpretation 405-6, which provides that ABA-accredited law schools

have the lawful discretion to terminate clinical professors “for good cause,

including termination or material modification of the entire clinical program.”

Compl. ¶¶ 29, 30. The problem is that this truncated version of the standard would
13
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turn all clinical professors into at-will employees who could be terminated at any

time at the unfettered discretion of the dean. That is precisely the opposite of what

Standard 405(c) requires, which is that clinical professors must be protected from

the arbitrary power of the dean and his administration through in-house due

process, provided by the faculty itself, that is based on the standard of good cause.

In American law schools, as in other university departments, tenure is not a

guarantee of lifelong employment, but rather an expectation of continuing

employment in the absence of good cause for termination, which is usually defined

as a failure of job performance, misconduct, or a reduction in the workforce. Good

cause, however, provides no protection unless it is based on the principle of due

process. That is why the crucial right conferred by Standard 405(c) is the right to

in-house due process in accord with the legal norms of fairness and justice. This is

how the AAUP in its 1940 Statement of Principles on Academic Freedom and

Tenure, described the essential elements of due process in an American university:

Termination for cause of a continuous appointment, or the


dismissal for cause of a teacher previous to the expiration of
a term appointment, should, if possible, be considered by
both a faculty committee and the governing board of the
institution. In all cases where the facts are in dispute, the
accused teacher should be informed before the hearing in
writing of the charges and should have the opportunity to be
heard in his or her own defense by all bodies that pass
judgment upon the case. The teacher should be permitted to
be accompanied by an advisor of his or her own choosing
who may act as counsel. There should be a full
stenographic record of the hearing available to the parties
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concerned. In the hearing of charges of incompetence the


testimony should include that of teachers and other
scholars, either from the teacher’s own or from other
institutions.3

Because he is constrained by due process, the dean of an ABA-accredited

law school does not have the independent authority to declare a finding of good

cause and then to terminate a 405(c)-protected clinical professor based on an

exercise of lawful discretion. What the dean has the authority to do is to bring his

or her allegations of good cause before a quasi-judicial body at which time the

issue is adjudicated, with the 405(c)-protected professor allowed the opportunity to

dispute the allegations and present evidence in defense.

In fact, the grounds for former-Dean Mutua’s decision to terminate the

Plaintiff are still unknown because he never brought his charges of good cause

before the faculty. The only inference that should be drawn from his choice to

forgo “any consultation, deliberation, or recommendation by the faculty,” see

Compl. ¶ 42, is that he had no good cause in the first place. In addition to acting

summarily, unilaterally, and evidently without good cause, he was exceeding and

abusing his discretion by violating the faculty’s due process rules as enacted in its

Faculty Bylaws. Finally, he was defying the mandate of Standard 405(c) because

3
The 1940 Statement of Principles on Academic Freedom and Tenure, is available on-line at
https://www.aaup.org/report/1940-statement-principles-academic-freedom-and-tenure (last
visited May 17, 2019).

15
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the Faculty Bylaws were drafted for the purpose of keeping the Law School in

compliance with the ABA’s accreditation standards.

As a result of these erroneous inferences, the District Court dismissed the

complaint. This dismissal, however, was based on an interpretation of the

complaint that was completely unwarranted. Former-Dean Mutua’s decisions were

not an intervening and superseding cause in the chain of causation, but rather a

knowing and willful violation of Standard 405(c), and one that the ABA, as alleged

in the complaint, unlawfully protected and endorsed. See Compl. ¶¶ 81-82.

Former-Dean Mutua’s abuse of power, the University’s repudiation of Standard

405(c), and the ABA’s endorsement of the University’s accreditation fraud, were

all sequential aspects of a single unlawful event, which was intended to prevent the

victim of the fraud from ever receiving due process, either predeprivation due

process in the Law School, or postdeprivation due process in federal court. That is

the only conclusion that a fair reading of the complaint and the favorable

inferences that may be reasonably drawn from its allegations would yield.

Inference #2 – In order to establish Article III standing, the Plaintiff was

required to allege that the ABA failed to discipline the University for “this specific

violation,” i.e., his own wrongful termination in violation of Standard 405(c).

16
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The District Court drew this erroneous inference because it is apparently

unaware that the ABA disclaims any legal obligation to serve as a mediator or

adjudicator of individual employment matters within its law schools.

This process is not available to serve as a mediating or


dispute-resolving process for persons with complaints about
the policies or actions of an approved law school. The
Council, the Committee and the Managing Director will not
intervene with an approved law school on behalf of an
individual with a complaint against or concern about action
taken by a law school that adversely affects that individual.
The outcome of this process will not be the ordering of any
individual relief for any person or specific action by a law
school with respect to any individual.
See ABA Rules of Procedure, Rule 42(c). That is why, under the ABA’s own

rules, the termination of the Plaintiff’s 405(c)-protected contract – i.e., the

application of Standard 405(c) to a particular employment decision – did not

confer standing on him to file a complaint through the ABA’s reporting process.

The remedy for a violation of an ABA Standard is not an order for

reinstatement or restitution to the complainant, or any other form of individual

relief, but rather an order to the law school to remedy the rules, procedures, or

practices that gave rise to the violation.

This caveat, however, does not mean that the ABA is immune from civil

liability when a mandatory accreditation standard is proven to be a promissory

fraud. Although the ABA has wide discretion in determining when a standard has

been violated, the allegations here are based on a final decision by the U.S. Court

17
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of Appeals. That decision, in turn, was made in reliance upon the University’s

own arguments and pleadings in the federal district court in Buffalo.

Therefore, the only question before this District Court was whether the

ABA’s refusal to discipline SUNY Buffalo for its rescission of all of its clinical

faculty contracts, i.e., its repudiation of Standard 405(c), could serve as the factual

basis for a claim of promissory fraud. The Plaintiff reported the facts underlying

that question to the ABA at his earliest opportunity, that is, after the U.S.

Magistrate Judge for the Western District of New York issued his finding of fact

that SUNY Buffalo has never had the legal capacity to provide long-term contracts

and due process rights as a consequence of the constraints the University has

imposed on itself through the Policies of the Board of Trustees.

For these reasons, the District Court in Chicago erred by drawing an

erroneous inference from the Plaintiff’s lawful adherence to the ABA’s Rules of

Procedure at every stage in his dealings with the Accreditation Counsel and the

Managing Director of the Section on Legal Education.

Inference #3 – The Plaintiff failed to establish Article III standing because

he could not trace his alleged injury—the stigma of a “for cause” termination—

directly to the ABA.

The District Court repeatedly maintained that the Plaintiff’s injury was

based on “the stigma of a ‘for cause’ termination,” which he could not trace

18
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directly to the ABA’s actions. In fact, however, the stigma of a “for cause”

termination was not the predicate of his damages as alleged in the complaint. The

predicate of his damages is the violation of his right to due process. The paragraph

from which the District Court derived its erroneous inference alleged as follows:

The ABA also knows that its continuing accreditation of a Law


School that has repudiated Standard 405(c) imposed the stigma
of a “for cause” termination on the Plaintiff that made it
impossible for him to resume his career at any other accredited
law school.

Compl. ¶ 9. This allegation was intended to explain why he had failed to mitigate

his damages, that is, why he had any damages in the first place. Only the most

hostile of inferences could have led the District Court to conclude that the stigma

of termination was the sole basis of his claim for damages against the ABA.

A fair reading of the complaint would have focused on his allegation that his

damages were caused by the ABA’s acquiescence to the University’s accreditation

fraud, which tainted the judicial process in the federal and state courts of New

York and deprived him of his right to a fair hearing in any court. This allegation

has two aspects, both of which were expressly stated in the complaint.

First, the complaint alleged that he could not possibly have accepted a

clinical faculty appointment at SUNY Buffalo if he had any reason to believe that

the ABA's imprimatur on that law school's compliance with Standard 405(c) was

fraudulently applied. Id. ¶ 80. Second, the complaint alleged that the University

19
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could not have maintained its accreditation fraud in federal court if the ABA had

not refused in the previous accreditation cycle to order it back into compliance

with Standard 405(c). Id. ¶ 81-82. That was the cause and effect alleged in the

complaint and, viewed in the light most favorable to the Plaintiff, it was more than

sufficient to satisfy the standing requirement of Article III.

Finally, the District Court drew yet another hostile inference, this time from

his suggestion that the ABA could implead the University under Rule 14 if it

believed that the University was jointly responsible for the damages he alleged in

the complaint. See Mem. Op. at 11. The District Court jumped to the conclusion

that he was trying to circumvent the requirements of Article III standing. “Rule 14

cannot relieve the Plaintiff of his Article III burden.” See Mem. Op. at 11.

However, he was suggesting no such thing. He was simply pointing out that the

ABA need not bear the entire expense of compensating him for a fraud in which

there might be an additional and equally culpable party.

IV. THE DISTRICT COURT ERRED BY FAILING TO GIVE ANY


WEIGHT TO THE PUBLIC INTEREST IN PROTECTING THE
INTEGRITY OF THE ACCREDITATION PROCESS.

The Plaintiff is not seeking to represent the interests of third parties with

whom he has generalized grievances in common, but whose own injury “depends

on the reactions of many intermediate actors.” Cf. Ass’n of Am. Physicians &

20
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Surgeons, Inc. v. Koskinen, 768 F.3d 640, 642 (7th Cir. 2014) (denying taxpayer

standing to physician’s group seeking to challenge the Affordable Care Act).

It is true, however, that the complaint implicates the interest of the clinical

legal education community in the integrity of the accreditation process. In 1996,

after many years of consideration and debate, the ABA House of Delegates took

clinical legal education under its purview when it enacted Standard 405(c). See

Peter A. Joy and Robert R. Kuehn, The Evolution of ABA Standards for Clinical

Faculty, 75 Tenn. L. Rev. 183, 206-213 (2008). The ABA reaffirmed its

commitment to clinical legal education nine years later with the requirements of

presumptively renewable contracts of at least five years in length and due process

rights with a good cause standard of review. See id., at 213-223 (legislative history

of Interpretation 405-6).4

The complaint alleges that the Managing Director has, in effect, nullified the

mandate of the House of Delegates by rendering Standard 405(c) inoperative as a

functional accreditation standard. See Compl. ¶ 10. That is a proper matter for

judicial review. Indeed that is all the more reason why a declaratory judgment

would be warranted here. See id. ¶¶ 83-89.

4
It should be noted that Professor Joy, in his 2017 follow-up article, examined the resistance to
Standard 405(c) by the Association of Law School Deans (ALDA), and the unrelenting pressure
that ALDA has placed on the ABA Accreditation Committee to eliminate protections for clinical
professors based on security of employment. See Peter A. Joy, ABA Standard 405(c): Two Steps
Forward and One Step Back for Legal Education, 66 J. Legal Ed. 606, 618-626 (2017).
21
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To be specific, the District Court’s dismissal of the complaint forecloses the

Plaintiff from ever discovering what justification was submitted by SUNY Buffalo

for repudiating Standard 405(c). That justification was stated both in the Law

School’s submissions to the ABA at the time of its 2016 Site Evaluation, and in the

rebuttal that the University submitted in response to his January 29, 2018

complaint to the Managing Director. The latter is especially significant because

the ABA contended in the District Court that the University has put into place

some “other arrangement sufficient to ensure academic freedom,” see

Interpretation 405-6, which is why the Managing Director found no violation. See

Defs’ Mem. in Supp at 10. [Dkt. #22] To the contrary, the complaint alleges that

no “other arrangement” for protecting academic freedom is possible in a University

where clinical professors have no legal rights that continue from one contract term

to the next. See Compl. ¶ 73. If there is such a hitherto unknown method of

protecting academic freedom outside the traditional method of job security, it is in

the public interest for the ABA to be required to disclose what that is.

Finally, the question that is most urgently presented by the allegations of the

complaint is simply this. If the repudiation in its entirety of Standard 405(c) – a

core academic freedom standard –is not a violation of the Standards for the

Accreditation of Law Schools, than what is? This question is not only crucial and

possibly dispositive to the present case, but is also of the highest concern to the

22
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hundreds of clinical and legal writing professors throughout the United States who

have entrusted their careers to the integrity of the ABA’s accreditation process.

CONCLUSION

For the foregoing reasons, the decision and order of the District Court should

be reversed and remanded with instructions to reinstate the complaint.

Dated: May 28, 2019

Respectfully submitted,

/s/ Jeffrey Malkan


Plaintiff-Appellant, pro se
12 Valleywood Ct. W
Saint James, New York 11780
(631) 862-6668
jeffrey.malkan@outlook.com

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CERTIFICATE OF COMPLIANCE
WITH F.R.A.P. RULE 32(a)(7), F.R.A.P. 32(g), CR 32(c)

The undersigned, Plaintiff-Appellant, pro se, Jeffrey Malkan, furnishes the following in
compliance with F.R.A.P Rule 32(a)(7):

I hereby certify that this brief conforms to the rules contained in F.R.A.P Rule 32(a)(7)
for a brief produced with a proportionally spaced font. The length of this brief is 9,806 words.

Dated: May 28, 2019

/s/ Jeffrey Malkan


Jeffrey Malkan
Plaintiff-Appellant, pro se
12 Valleywood Ct. W
Saint James, New York 11780
(631) 862-6668

CIRCUIT RULE 30(d) STATEMENT

Pursuant to Circuit Rule 30(d), counsel certifies that all material required by Circuit Rule
30(a) and (b) are included in the appendix. See also: Circuit Rule 30(a) Circuit Rule 30(b)
United States v. Rogers, 270 F.3d 1076, 1084 (7th Cir. 2001); In re Mix, Disciplinary Case D-
134, 901 F.2d 143 (7th Cir. 1990); Mortell v. Mortell, 887 F.2d 1322 (7th Cir. 1989)

Dated: May 28, 2019

/s/ Jeffrey Malkan


Jeffrey Malkan
Plaintiff-Appellant, pro se
12 Valleywood Ct. W
Saint James, New York 11780
(631) 862-6668

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PROOF OF SERVICE

The undersigned certifies that he filed Brief of Plaintiff-Appellant and Required Short

Appendix on CM/ECF which will send electronic notification to all attorneys registered for

CM/ECF filing.

Dated: May 28, 2019

/s/ Jeffrey Malkan


Jeffrey Malkan
Plaintiff-Appellant, pro se
12 Valleywood Ct. W
Saint James, New York 11780
(631) 862-6668

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Required Short Appendix

Complaint, dated November 27, 2018

Short Record on Appeal

Decision of the District Court, dated May 8, 2018

Disclosure Statement

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FIIJTD
UNITED STATES DISTRICT COURT
9-Nov z 7 zoll
NORTHERN DISTRICT OF ILLINOIS
^ -T}IOIT,IASG
ctERl(
BRUTON
u.s DtsrRtcrcouRT
CTVI ACTION NO.

JEFFREY MALKAN,

Plaintiff, COMPLAINT

v. DEMAND FOR JURY TRIAL

AMERICAN BAR ASSOCIATION; COTINCIL


OF THE SECTION OF LEGAL EDUCATION
AND ADMISSIONS TO THE BAR, AMERICAN
BAR ASSOCIATION; and ACCREDITATION 1:18-cv{r78r0
COMMITTEE OF THE SECTION OF LEGAL Judge Sara L Elti's
EDUCATION AND ADMISSIONS TO THE
BAR, AMERICAN BAR ASSOCIATION,
tagisffie Judge Susan E Cox
Defendants.

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff, Jeffrey Malkan, proceeding pro se, brings this civil action against the

Det'endants-American Bar Association; Council of the Section of Legal Education and

Admissions to the Bar, American Bar Association; and Accreditation Committee of the Section

of Legal Education and Admissions to the Bar, American Bar Association (collectively,

"ABA";-und alleges as follows:

NATURE OF THE ACTION

l. This is a civil action for declaratory relief and monetary damages to remedy the

ABA's knowing and willful protection of, and complicity in, an accreditation fraud at the Law

School of the State University of New York at Buffalo.

2. The dispositive fact before this Court is the ruling by the U.S. Court of Appeals,

dated October 30, 2017, that it is legally impossible for the State University of New York at

Buffalo to comply with ABA Standard 405(c), which is the core academic freedom standard that
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has protected the mission and the integrity of clinical faculties throughout the United States,

including the SUNY Buffalo Law School, since 1996.

3. The University sought and obtained a judicial decision that reduces all clinical

professors in the sixty-four campus SLrNY system, including the SUNY Buffalo Law School, to

the status of "at will" employees at the end of every three-year term, without regard to any

contractual promises, faculty policies and bylaws, university rules and procedures, or ABA

accreditation standards to the contrary.

4. One and a half years prior to the Second Circuit's ruling, SUNY Buffalo received

an ABA sabbatical site evaluation visit, after which the ABA approved the Law School for

another seven year cycle ofoperation as an accredited law school.

5. At that point, the ABA was in possession of conclusive evidence that the Law

School's compliance with Standard 405(c) was based entirely on false documentation -
unenforceable contracts, non-functional due process procedures, and sham faculty appointments

- all of which the University had disavowed in both state and federal courts.

6. That evidence took the form of two judicial decisions, one from the New York

Court of Claims and the other from the federalmagistrate's court of the Western District of New

York, both holding that any long-term contracts and due process rules that promised to protect

the academic freedom of the clinical faculty were ultra vires, unlawful, null and void.

7. After the 2016 reaccreditation was approved by the ABA, the State University of

New York at Buffalo proceeded to plead exactly the same defense to the U.S. Court of Appeals

for the Second Circuit. That defense was, again, successful.

8. T'he ABA's 2016 reaccreditation of a Law School that it knew had repudiated

Standard a05(c) enabled SUNY Buffalo to obtain a legal outcome that exonerated its Law

School of any legal liability for the ongoing fraud that it was perpetrating on its clinical faculty.
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9. The ABA also knows that its continuing accreditation of a Law School that has

repudiated Standard 405(c) imposed the stigma of a "for cause" termination on the Plaintiff that

made it impossible for him to resume his career at any other accredited law school.

10. This Court should hold the ABA accountable for perpetrating a fraud on the legal

education community by promulgating, in the form of a mandatory accreditation requirement, a

non-functional standard that it has never treated as anything but an empty formality.

PARTIES

11. Plaintiff Jeffrey Malkan (the "Plaintiff') was employed as a member of the full

time faculty at the SUNY Buffalo Law School from 2000 through2009, with the expectation of

a pernanent faculty appointment with presumptively renewable contracts, in-house due process

rights, and a good cause standard of review, at the title and rank of Clinical Professor of Law.

12. Defendant American Bar Association is a corporate entity organized into various

components, including the "Council" and the "Accreditation Committee," as described below.

13. Defendant Council of the Section of Legal Education and Admissions to the Bar,

American Bar Association ("Council") is a component of the American Bar Association.

Pursuant to 34 C.F.R.Part 602, the U.S. Department of Education ("DOE"), since 1952, has

recognized the Council as the authorized agency for accrediting programs in legal education

that lead to a professional degree in law and the law schools offering such programs.

14. Defendant Accreditation Committee of the Section of Legal Education and

Admissions to the Bar, American Bar Association ("Committee" or "Accreditation Committee")

is a component of American Bar Association. The DOE's recognition of the Council as an

accrediting agency extends to the Committee for decisions involving continued accreditation of

law schools.

15. The American Bar Association, the Council, and the Accreditation Committee
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are collectively referred to herein as the "ABA."

JURISDICTION AND VENUE

16. This Court has diversity jurisdiction under 28 U.S.C. $ 1332(a)(1). The Plaintiff

and the Defendants are citizens of different States. The Plaintiff is a citizen of New York. The

ABA is incorporated in Illinois, where it also has its principal place of business. The Council

and the Committee are components of the American Bar Association and are not separately

incorporated. The matter in controversy exceeds the sum or value of $75,000, exclusive of

interest and costs.

17. Venue is proper in this district pursuant to 28 U.S.C. $ l39l(b). The Committee

and Council corresponded with the Plaintiff from the ABA's address in Chicago, Illinois, and

the SUNY Buffalo Law School made its submissions to the ABA to the same address.

REGULATORY FRAMEWORK FOR LAW SCHOOL ACCREDITATION

DOE Requirements for Accrediting Agencies

18. Pursuant to 34 C.F.R. Part 602, the U.S. Department of Education ("DOE") has

recognized the ABA Council as the agency for accrediting programs in legal education that

lead to a professional degree in law and the law schools offering such programs.

19. The DOE's recognition of the ABA Council extends to the Committee for

decisions involving continued accreditation of law schools.

20. The DOE requires accrediting agencies to follow uniform procedures in the

accreditation of institutions of higher education. These procedures apply to the ABA's

accreditation of American law schools.

21. The DOE requires accrediting agencies to take remedial and punitive

measures, including withdrawal of accreditation, against institutions that fail to comply with

mandatory accreditation standards. See "Required Standards and their Application," 34 CFR
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Part 602, Subpart B.

22. Under DOE rules, the application of the agency's enforcement powers to a

standards violation is mandatory and the time frame for taking adverse action against a non-

complying institution or program is immediate.

602.20 Enforcement of standards.

(a) Ifthe agency's review ofan institution or program under any standard
indicates that the institution or program is not in compliance with that
standard, the agency must-
(l)Immediately initiate adverse action against the institution or
program;or
(2) Require the institution or program to take appropriate action to
bring itself into compliance with the agency's standards....
(b) If the institutionor program does not bring itself into compliance
within the specified period, the agency must take immediate adverse action
unless the agency, for good cause, extends the period for achieving
compliance.

23. The DOE also requires the agency to provide accurate information to the

general public about its accreditation procedures and outcomes, as well as the opportunity for

the public to file complaints against institutions that are violating its accreditation standards.

These complaints must be promptly and impartially reviewed by the agency and followed-up

by enforcement action as warranted by the facts. See "Operating Procedures all agencies

must have," 34 CFR Part 602.23, Subparts B and C. In addition, the agency is required to

review in a timely, fair, and equitable manner, and apply unbiased judgment to, any

complaints against itself. 1d.

24,," ;::j:,:: ",:ffiH:":"il" ;::; is,. pr.mu,ga,e

standards and monitor compliance by means of periodic site visits and self-study reports.

25. The ABA has promulgated Standards for Approval of Law Schools.

26. Standard 405(c) is the clinical faculty standard.


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27. The policy underlying Standard a05(c) is the protection of academic freedom,

which is extended to clinical faculties for the same reasons and to the same extent that it is

provided to doctrinal faculties.

28. Under Standard 405(c), the Accreditation Committee is charged to protect the

clinical professors of every ABA-accredited law school from intimidation, abuse, coercion, or

harassment in the exercise of their legal, professional, and educational duties.

29. Standard 405(c) provides that -


A law school shall afford to full-time clinical faculty members a form of
security of position reasonably similar to tenure, and non-compensatory
perquisites reasonably similar to those provided other full-time faculty
members.

30. Interpretation 405-6 of that Standard provides that -


A form of security of position reasonably similar to tenure includes a
separate tenure track or a program ofrenewable long-term contracts....
For the purposes of this Interpretation, "long-term contract" meons at
least a five-year contract that is presumptively renewable or other
arrangement sfficient to ensure academic freedom. During the initial
long-term contract or any renewal period, the contract may be
terminated for good cause, including termination or material
modification of the entire clinical program.

(Emphasis added.)

ABA Rules of Procedure for the Accreditation of Law Schools

31. In addition to the ABA Standards, the Accreditation Committee is bound by its

own Rules of Procedure.

32. Rule l6 specifies "Sanctions for Noncompliance with a Standard."

33. Under Rule 16, a law school may be sanctioned for, among other things,

"[m]aking misrepresentations or engaging in misleading conduct in connection with

consideration of the law school's status by the Committee or the Council, or in public

statements conceming the law school's approval status."


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34. Sanctions may include "(1) A monetary payment... (3) Public censure; (4)

Private censure; (5) Publication or distribution of an apology or corrective statement by the law

school; (6) Probation for a specific period or until specific conditions are fulfilled...; or (8)

Withdrawal of provisional or full approval." The latter sanction would disqualify the graduates

of the Law School from sitting for the bar examination and effectively put it out of business.

35. In addition, "[a]ny sanction... may be imposed, even if the law school has, at the

time of the decision or recommendation, ceased the actions that are the basis for sanctions or

otherwise brought itself into compliance with the Standards."

36. Finally, Rule l6 specifies the following aggravating factors to be applied in

determining the appropriate sanction for a standards violation, including,

the degree of negligence, recklessness, or knowledge; effort to


conceal; dishonest or selfish motive; a pattern of misconduct; bad
faith obstruction of an investigation or sanction proceeding by failing
to comply with requests of the Managing Director's Office, a Fact
Finder, or rules of a sanction proceeding; submission of false or
misleading evidence, false or misleading statements, or other
deceptive practices during the investigation process or sanction
proceeding; refusal to acknowledge wrongful nature of conduct;
failure to have sufficient systems in place to ensure compliance,
including the law school dean's lack of oversight; institutional
incentive structures that may contribute to noncompliance; and
failure to enquire or investigate when circumstances warrant enquiry
or investigation. [Enumeration omitted.]

FACTUAL ALLEGATIONS

37 . On July 25,2000 the Plaintiff was offered a faculty appointment at the

rank and title of Clinical Associate Professor of Law at the State University of New York

at Buffalo, with a separate administrative appointment as Director of the Legal Research

and Writing Program. He accepted the offer on August 7,2000, and subsequently served

the Law School for six years, or two three-year contract terms.

38. On April 28,2006, the Promotion and Tenure (P&T) Committee of the
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SI-INY Buffalo Law School recommended his reappointment and promotion to the title

and rank of full Clinical Professor of Law, which took the form of a 405(c)-protected

contract, signed and dated by former-Dean R. Nils Olsen, Jr., on October 19, 2006, and

accepted by the Plaintiff on November 16,2006.

The Plaintiff s 405(c)-protected contract

39. Dean Olsen introduced the contract by stating that the intention of the

parties was to formalize the requirements of Standard 405(c).

As we have discussed throughout your service to UB Law School,


your appointment is covered by the ABA rules and is intended to
fully comply with those rules, particularly standard a05(c) and all
accompanying interpretations, especially interpretations 405-6 and
405-8. Now that you have successfully been appointed following a
full review, future reviews will have the "for cause only" removal
standard set forth in the ABA Standards. Under ABA policies, this
standard is meant to be similar to that term as applied when dealing
with tenured faculty and is intended to ensure academic freedom.

40. He proceeded to promise on the University's behalf that a decision by any future

Dean to non-renew the contract would have to be confirmed during the contract's terminal year,

in accord with the Faculty Bylaws, in the form of a recommendation voted upon by a committee

of the entire tenured faculty at his current rank or higher.

41. This 405(c)-compliant contract, together with the Law School's status as an

ABA accredited law school, was the basis of the Plaintiff s expectation that his contract renewal

would be mandatory, in the absence of good cause, upon the expiration of each term of service.

42. Two years later, on August 28,2008, the new interim dean of the Law School,

Makau W. Mutua, issued a notice of non-renewal that terminated the Plaintiff s employment as

of August 31, 2009, without any consultation, deliberation, or recommendation by the faculty.

43. In subsequent proceedings before the federal district court of the Western

District of New York and the New York State Court of Claims, the Attorney General of New
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York presented the argument that the Policies of the Board of Trustees, which are regulations of

the New York State Department of Education, prevent any SUNY campus from granting

presumptively renewable contracts to full-time faculty members of any college or academic

department, including the Law School.

44. That legal restriction, according to the Attorney General, retroactively abrogated

allof the Law School's certifications of compliance with ABA Standard a05(c) and any

institutional rules and procedures or contractual commitments that 405(c)-compliance entailed.

SUNY Buffalo's repudiation of Standard 405(c)

45. The Plaintiff first attempted to notify the Accreditation Committee of the

University's repudiation of Standard 405(c) in a third party comment on the Law School's

pending application for reaccreditation, dated March 17 , 2016, that he filed in accord with the

Rules of Procedure for the Accreditation of Law Schools.

46. The complaint stated as follows:

The University has represented to the U.S. District Court of the Western
District of New York that it is not able to comply with ABA Standard
a05(c) because presumptively renewable term contracts are prohibited by
the SUNY Trustees' Policies. This contradicts the representations made to
the ABA in the Self-Study Report of April 2009. It also contradicts the
Faculty Bylaws and the Clinical Faculty Appointments Policy.

47. The comment enclosed a copy of the Magistrate's Report and Recommendations,

dated October 1,2015, as well as excerpts from the deposition of STINY Buffalo's employment

counsel, James L. Jarvis, Jr., Esq., dated December 20,2013, in which he testified that the

University has never had the legal capacity to honor any of its 405(c)-protected contracts.

48. On April 12,2016, the Accreditation Counsel, Stephanie Giggetts, Esq.,

responded that "[s]ince the law school is due to receive a site evaluation within a few weeks,

this matter will be referred to the site team and handled as part of the sabbatical site evaluation."

49. The Office of the Managing Director provides a Site Visit Template to all site
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visit teams for the purpose of "giv[ing] the Council as much information relevant to the

Standards as possible, so it may take appropriate action based upon the team's report." The

Template requires the site visit team to report the following data pertaining to Standard 405(c):

Standard a05ft) and Interpretations 405-6 and 405-7.

(a) Describe the Law School's system of security of position for full-time
clinical faculty. (lndicate if there are no clinics.) (b) If the full-time
clinical faculty do not have a system of tenure, state the length of the
contracts for full-time clinical faculty and whether the contracts will be
renewed, including whether the contracts are presumptively renewable....
(c) If the contract system does not lead to a presumptively renewable
contract ofat least five years in length, describe how the Law School
ensures academic freedom and note whether it is the same academic
freedom as provided to tenure-track faculty.

50. The SUNY Buffalo sabbatical site evaluation was completed on or about April

23,2016.

51. At its April 20-21,2017 meetine, the Accreditation Committee considered the

status of the SUNY Buffalo Law School and found that it was not in compliance with Standards

202(a) and 502(d). In accord with DOE regulations, the Committee posted a public notice

requiring the Law School to submit a report setting forth its plan for rectifying its non-

compliance with the identified standards.

52. The Committee reported no compliance issue with Standard a05(c).

53. Between the ABA's 2009 and 2016 sabbatical site evaluations of SUNY Buffalo,

that is, in the time frame when the Plaintiff was challenging the Law School's repudiation of

Standard a05(c) in federal and state courts, every single 405(c)-protected clinical professor was

either terminated by the Dean or forced into early retirement. Four out of five of these clinical

professors were at least ten years younger than the Social Security retirement age of sixty-six.

54. In knowing and willful disregard of its duty to communicate truthfully about the

compliance status of accredited law schools and to retract misinformation that it previously
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published by reason of negligence or fraud, the ABA continues to communicate false assurances

of SLINY Buffalo's compliance with Standard 405(c).

The U.S. Court of Appeals confirms that SUNY Buffalo has repudiated Standard 405(c)

55. On October 30,2017, the U.S. Court of Appeals for the Second Circuit issued its

decision in the Plaintiff s due process lawsuit against former-Dean Makau W. Mutua.

The district court correctly granted summary judgment to Mutua. Due


process can only be violated ifa protected properfy interest is at issue.
White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1061-62 (2d Cir.
1993). "A person's interest in a benefit is a 'property' interest for due
process purposes if there are such rules or mutually explicit
understandings that support his claim of entitlement to the benefit and that
he may invoke at a hearing." Perry v. Sindermann, 408 U.S. 593, 601
(1972) (citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577
36 (1972)). "Mutually explicit understandings" may include a "written
contract with an explicit tenure provision" between a professor and state
university. Id. But "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. 40 1980). SUNY regulations cap term appointments at
three years and do not "create any manner of legal right, interest or
expectancy in any other appointment or renewal." 8 N.Y.C.R.R. $ 335.13.
None of what Malknn cites-UB School of Law's byJaws, customs,
accreditation reports, the American Bar Association's standards, and his
contract-overrides that regulatory term.... As for whether UB School of
Law is misrepresenting the employment status of its clinical professors to
the American Bar Association, Malkan offers no estoppel argument, and
we decline to consider one.

(Emphasis added.) This decision adopts the interpretation of the Policies of the Board of

Trustees that was advocated by the Attorney General on the University's behalf.

56. The Plaintiff, on January 29,2018, provided the Accreditation Committee with a

copy of this decision as evidence of the Law School's repudiation of Standard 405(c).

57. At no point in this process did the Plaintiff ask the Accreditation Committee to

serve in a mediating or dispute-resolving capacity, intervene regarding any adverse action taken

against him or anyone else by the Law School, act in any way on his or anyone else's behalf, or

order any individual relief to anyone regarding any aspect of the facts that he was reporting.
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The ABA's refusal to take enforcement action

58. On June 4,2018, the Plaintiff received the following response from the

Accreditation Counsel :

After a thorough review of your complaint and the Law School's


response, I have concluded that the facts you set forth fail to allege
a violation by the Law School of the ABA Standards for Approval
of Law Schools. Specifically, as specified in Rule 44, upon such a
determination the matter is closed. As provided in Rule 46, this
matter is not subject to appeal to the Council or to the Accreditation
Committee, or elsewhere in the American Bar Association.

59. The Plaintiff sought clarification of this response from Professor Bradley Clary,

Clinical Professor of Law at the University of Minnesota and past president of the Association

of Legal Writing Directors, who is also a member of the Accreditation Committee.

As I tried to explain in my filing with the Managing Director, the


State University of New York at Buffalo, on October 30,2077,
sought and obtained a decision from the U.S. Court of Appeals for
the Second Circuit holding that it is legally impossible for the SUNY
Buffalo Law School to comply with Standard 405(c)....
In other words, SUNY Buffalo certified one set of facts to the ABA
in order to secure its reaccreditation and exactly the opposite set of
facts to the U.S. Court of Appeals in order to win a due process
lawsuit.... I cannot understand how these false certifications of
compliance, repeatedly made over a period of twenty some-odd
years, can be overlooked unless Standard 405(c) is nothing but an
empty formality.
I am not approaching you with the intent of circumventing the
Committee's Rules and Procedures. I simply hope that you may be
able to find out why the 405(c)-compliance issue I have raised with
the Managing Director does not merit a full review by the
Accreditation Committee.

60. Professor Clary responded that he could not comment on what action, if any, the

Accreditation Committee might take regarding the Second Circuit's ruling, but advised him that

he would submit the Plaintifls additional information to the Accreditation Counsel.

6r. The Accreditation Committee met on June 30, 2018, and took no action on the

evidence of SUNY Buffalo's repudiation of Standard a05(c).


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62. On September 7,2018, the Plaintiff filed an objection to the Managing Director,

Barry Currier, about the ABA's failure to give a reasoned response to any of his submissions:

SUNY Buffalo has knowingly and willfully subverted the integrity of


the accreditation process by making false certifications of compliance
with Standard 405(c) in both its 2009 and,2016 reaccreditations.
According to your own Rules of Procedure, those violations warrant the
most severe punitive measures against the offending law school. See
Rule l6 (a)-(e). Your accreditation counsel, however, has informed me
that you decline to find any violation at all....
Because you persist in your endorsement of SUNY Buffalo's
compliance with Standard 405(c), which you know is afraud,I believe
that the stigma I have suffered, along with my ensuing costs and
damages, may be found in a court of law to be the responsibility of your
Committee. I conclude by saying that I do not consider this matter
closed. I will leave it at that for now, except to express my hope that I
have persuaded you of the urgency and gravity of this situation and that
you will respond by informing me that you have taken action to deal
with SUNY Buffalo at the very next meeting of your Committee.

63. Attached to this submission was a front page article from the Buffalo News, dated

September 27,2014, and entitled "Deep Rift Exposed as UB Law's Dean Resigns."

&. The Buffalo News recounted former-Dean Mutua's attack on the academic

freedom of the Law School faculty over the previous seven years, which focused on his

repression of the clinical faculty.

65. The article also reported allegations of former-Dean Mutua's repression of

women's rights within the faculty, as well as his repression of faculty self-governance, which

included the University's refusal to allow it to nominate its own dean in 2008-2009, and its

intervention to suspend a no-confidence vote against former-Dean Mutua in September of 2010.

66. Professor Mutua was finally removed from the Dean's Office on September 24,

2014, three days prior to the publication of the Buffalo News article, which also reported, as the

centerpiece of its coverage, that the majority of the tenured faculty had submitted declarations

and deposition testimony to the federal district court and the Disciplinary Committee of the

Eighth Judicial Department accusing him of lying under oath in both state and federal courts
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about the vote of the P&T Committee on the Plaintiff s promotion to clinical professor.

67 . On September 15, 2018, the Accreditation Committee announced enforcement

actions against the University of Puerto Rico and the Arizona Summit Law School, but took no

action against SUNY Buffalo.

The ABA's duties and the limits of its discretion

68. The ABA does not have the discretion to ignore a standards violation of which it

has actual knowledge.

69. The ABA does not have the discretion to disregard a decision from the U.S.

Court of Appeals of which it has actual knowledge.

10. The ABA does not have the discretion to disregard a decision from the U.S.

Court of Appeals of which it should have been aware, even without a third party informant, in

the exercise of due diligence in its oversight duties.

71. The ABA does not have the discretion to ovemrle binding precedent from the

U.S. Court of Appeals regarding the knowing and willful violation of an accreditation standard.

72. The ABA does not have the discretion to allow SUNY Buffalo to reestablish

compliance with Standard 405(c) by exempting itself from a ruling of the U.S. Court of Appeals

that it successfully obtained for the express purpose of repudiating Standard 405(c).

73. The ABA does not have the discretion to approve any "alternative arrangement"

for the protection of academic freedom at an ABA accredited law school where 405(c)-protected

clinical professors have no legal rights that continue from one contract term to the next.

CAUSES OF ACTION

COUNT I
(FRAUD AND NEGLIGENT MISREPRESENTATION)

74. Plaintiff repeats and realleges the allegations of paragraphs 1-73 as if set forth

fully herein.
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75. In Illinois, a cause of action for common law fraud or fraud in the

inducement must allege the following elements: (1) a false statement of fact; (2) known

by the defendant to be false at the time it was made; (3) made for the purpose of inducing

the plaintiff to act in reliance thereon; (4) action by the plaintiff in reliance on the

correctness of the representation; and (5) resulting damage to the plaintiff.

76. In lllinois, a cause of action for negligent misrepresentation must allege

the following elements: (1) a false statement of a material fact;(2) carelessness or

negligence in ascertaining the truth of the statement by the party making it; (3) an

intention to induce the other party to act; (4) action by the other party in reliance on rhe

truth of the statement; and (5) damage to the other party resulting from reliance when the

party making the statement is under a duty to communicate accurate information.

77. The ABA maintains a list of ABA-accredited law schools on its website

and in its print publications, pursuant to its duties as a DOE-approved accrediting agency.

78. That list at all times relevant to this complaint included St rY Buffalo as

an ABA-accredited law school, which means that the ABA has certified it to be in

compliance with all ABA accreditation standards, including Standard 405(c).

79. The ABA knows that its certifications of 405(c)-compliance will be used

and relied upon by a small and finite group of legal professionals at any given time, that

is, those who are seeking clinical faculty appointments, those who are considering offers

of clinical faculty appointments, and those who are holding clinical faculty appointments.

80. The Plaintiff could not possibly have accepted a clinical faculty

appointment at SUNY Buffalo if he had any reason to believe that the ABA's imprimatur

on that law school's compliance with Standard a05(c) was fraudulently applied.

81. The Attorney General on October 14,2017 successfully argued before the
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U.S. Court of Appeals that SUNY Buffalo Law School is not now, and never has been, in

compliance with Standard 405(c), with the result that all clinical faculty contracts and due

process rules that are based on compliance with Standard 405(c) are null and void.

82. The University knew that it could make that meretricious argument with

impunity because the ABA had already refused to take enforcement action against the

Law School for expressly repudiating Standard 405(c), or to sanction it, under Rule 16,

for "[m]aking misrepresentations or engaging in misleading conduct in connection with

consideration of the law school's status by the Committee or the Council."

COUNT II
(DECLARATORY JUDGMENT)

83. Plaintiff repeats the allegations of paragraphs l-83 as if set forth fully herein.

84. The Declaratory Judgment Act provides: "In a case of actual controversy within

its jurisdiction, ... any court of the United States ... may declare the rights and other legal

relations of any interested party seeking such declaration, whether or not further relief is or could

be sought." 28 U.S.C. $ 2201(a).

85. There is an actual controversy between the parties of sufficient immediacy and

reality to warrant issuance of a declaratory judgment.

86. This Court possesses an independent basis for jurisdiction over the parties.

87. A declaratory judgment will serve a useful purpose in clarifying and settling the

legal relations in issue and will terminate and afford relief from the uncertainty, insecurity, and

controversy giving rise to the proceeding.

88. A judgment declaring that the ABA violated its legal duty to truthfully report

the compliance status of SUNY Buffalo, and to take mandatory enforcement action against

it for repudiating Standard 405(c), would benefit the legal education community by

providing accurate information to legal educators and discouraging any further attacks on
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the integrity and academic freedom of the clinical faculties throughout the United States.

89. A declaratory judgment would also serve the useful purpose of restoring the

Plaintiff s reputation, who was defamed as well as defrauded with a fraudulent 405(c)-

compliant contract, a fraud for which the University has argued that there is no legal remedy.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiff respectfully requests that the Court:

(a) Declare that SUNY Buffalo is in violation of Standard 405(c), and that the

ABA's certification of its compliance with that standard was arbitrary andcapricious,

fraudulent, an abuse of discretion, and an abuse of the public trust;

(b) Award damages to the Plaintiff for the ABA's accreditation fraud, in an

amount to be determined at trial, including compensation for the Plaintiff s compensatory,

emotional distress, reputational, and punitive damages; and

(c) Award pre- and post-judgment interest, attorney's fees, and such other and fuither

relief as the Court may deem just and proper.

DEMAND FOR TRIAL BY JURY

Plaintiff hereby demands trial by jury on all issues so triable.

Respect fully submitted,


I

I
l"
'i"l l"ffr",l Malkan
Plaintiff pro se
12 Valleywood Ct. W
Saint James, N.Y. 11780
(631) 862-6668
j effrey.malkan@outlook. com

Dated: November 19, 2018


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United States District Court for the Northern District Of Illinois


Case Number 18-cv-7810

Jeffrey Malkan, Plaintiff

v. Notice of Appeal

American Bar Assoc., and


Council of the Section on
Legal Education and
Admissions to the Bar,
American Bar Assoc.,
Defendants

Notice is hereby given that Jeffrey Malkan, the plaintiff in


the above named case, hereby appeals to the United States Court of
Appeals for the Seventh Circuit from a memorandum and order
dismissing the complaint with prejudice entered in this action on
the 8th day of May, 2019.

/s/ Jeffrey Malkan, plaintiff pro se


12 Valleywood Ct. W
Saint James, New York 11780
(631) 862-6668
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UNITED STATES COURT OF APPEALS


FOR THE SEVENTH CIRCUIT

Jeffrey Malkan, Plaintiff-Appellant


DOCKETING STATEMENT
v.
Case no. 18-cv-7810
American Bar Association, and
Council of the Section on Legal Education
and Admissions to the Bar, American
Bar Association, Defendants-Appellees

I. JURISDICTION OF THE DISTRICT COURT

The district court had jurisdiction as a civil action arising under the laws of
the United States based on diversity of citizenship pursuant to 28 U.S.C. § 1332.

II. JURISDICTION OF THE COURT OF APPEALS

This appeal is taken from the final decision of the U.S. District Court for the
Northern District of Illinois, entered on May 8, 2019, by the Honorable John
Robert Blakey. The United States Court of Appeals has jurisdiction to decide this
case pursuant to 28 U.S.C § 1291.

The Notice of Appeal was filed with the District Court on May 17, 2019.

Dated at Saint James, New York on this 17th day of May, 2019.

/s/ Jeffrey Malkan


Jeffrey Malkan
Plaintiff-Appellant pro se
12 Valleywood Ct. W.
Saint James, New York 11780
(631) 862-6668
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CERTIFICATE OF SERVICE

The undersigned certifies that he filed the foregoing Docketing Statement on

CM/ECF which will send electronic notification to all attorneys registered for

CM/ECF filing.

Dated: May 17, 2019

/s/ Jeffrey Malkan


Jeffrey Malkan
Plaintiff-Appellant, pro se
12 Valleywood Ct. W
Saint James, New York 11780
(631) 862-6668
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UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JEFFREY MALKAN,

Plaintiff, Case No. 18-cv-7810

v.

AMERICAN BAR
ASSOCIATION, et al., Judge John Robert Blakey

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Jeffrey Malkan, proceeding pro se, sues the American Bar Association

(ABA), the ABA’s Council of the Section of Legal Education and Admissions to the

Bar (Council), and the Council’s Accreditation Committee. Plaintiff’s complaint

alleges fraud and negligent misrepresentation under Illinois law (Count I) and seeks

declaratory judgment against the ABA (Count II). [1]. Defendants move to dismiss

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [21]. For the

reasons explained below, this Court grants Defendants’ motion and dismisses

Plaintiff’s complaint for lack of standing.

1
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I. Complaint’s Allegations 1

A. The ABA

The ABA exists as a corporate entity organized into various components,

including the Council and Accreditation Committee. [1] ¶ 12. The U.S. Department

of Education (DOE) recognizes the Council as the national accreditor for programs

leading to J.D. programs. Id. ¶ 13. The Council adopts Standards for Approval

(Standards), which set out criteria for ABA accreditation. Id. ¶¶ 24−25. The ABA

monitors law schools’ compliance with the Standards and periodically conducts

reviews of each law school, known as site evaluations. Id. ¶¶ 22, 53. Any individual

can file a written complaint alleging that a law school violated the Standards. Id. ¶

23.

B. Plaintiff’s Clinical Employment & Termination

In July 2000, Plaintiff began working for SUNY-Buffalo Law School (the Law

School) as a Clinical Associate Professor of Law, with a separate administrative

appointment as Director of the Legal Research and Writing Program. Id. ¶ 37. Six

years later, in April 2006, the Law School’s Promotion and Tenure Committee

recommended his reappointment and promotion to the title and rank of full Clinical

Professor of Law. Id. ¶ 38. In October 2006, the Law School’s then-dean, R. Nils

Olsen Jr., offered Plaintiff a contract reflecting the promotion. Id. ¶ 39. The contract

explained that Plaintiff’s appointment was “intended to fully comply” with ABA rules,

1 This Court takes the following facts from Plaintiff’s Complaint, [1], documents attached to the
Complaint, and documents central to the Complaint and to which the Complaint refers. Williamson
v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).

2
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“particularly standard 405(c) and all accompanying interpretations, especially

interpretations 405-6 and 405-8.” Id.

ABA Standard 405(c) requires law schools to “afford to full-time clinical faculty

members a form of security of position reasonably similar to tenure.” Id. ¶ 29.

Interpretation 405-6 explains that:

A form of security of position reasonably similar to tenure includes a


separate tenure track or a program of renewable long-term contracts. . .
. For the purposes of this Interpretation, “long-term contract” means at
least a five-year contract that is presumptively renewable or other
arrangement sufficient to ensure academic freedom. During the initial
long-term contract or renewal period, the contract may be terminated
for good cause, including termination or material modification of the
entire clinical program.

Id. ¶ 30. According to Plaintiff, this “405(c)-compliant contract, together with the

Law School’s status as an ABA accredited law school,” formed the basis for his

expectation that absent good cause, “his contract renewal would be mandatory.” Id.

¶ 41.

Two years later, on August 28, 2008, the Law School’s then-dean, Makau W.

Mutua, issued a notice of non-renewal that terminated Plaintiff’s employment as of

August 31, 2009. Id. ¶ 42. According to Plaintiff, this occurred without any

consultation, deliberation, or recommendation by the faculty. Id.

C. Subsequent Litigation

Plaintiff subsequently filed a due process suit against Dean Mutua, claiming

that he held a protected property interest in his 405(c)-qualified contract. Id. ¶ 55;

3
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Malkan v. Mutua, 699 Fed. Appx. 81 (2d Cir. 2017). 2 The lower court granted

summary judgment in favor of Mutua; the Second Circuit affirmed in 2017, rejecting

Plaintiff’s due process claim because New York State Department of Education

regulations “cap term appointments at three years and do not create any manner of

legal right, interest or expectancy in any other appointment or renewal.” 699 Fed.

Appx. at 82−83. The Second Circuit also found that none of what Plaintiff cited in

support of his protected property interest, such as the Law School’s “by-laws, customs,

accreditation reports, the American Bar Association’s standards, and his contract—

over[ode] that regulatory term.” Id.

D. Plaintiff’s Efforts to Inform the ABA

In March 2016—after the lower court’s ruling—Plaintiff attempted to notify

the Accreditation Committee that the Law School, in its arguments before the lower

court, admitted it violated Standard 405(c). Id. ¶ 46. Specifically, he alleged the

405(c) violation through a third party comment, which stated:

The University has represented to the U.S. District Court of the Western
District of New York that it is not able to comply with ABA Standard
405(c) because presumptively renewable term contracts are prohibited
by the SUNY Trustees’ Policies. This contradicts the representations
made to the ABA in the Self-Study Report of April 2009. It also
contradicts the Faculty Bylaws and the Clinical Faculty Appointments
Policy.

Id. ¶ 46. In April 2016, the Accreditation Committee’s Counsel, Stephanie Giggetts,

responded that because SUNY had a site evaluation scheduled within a few weeks, it

2 Plaintiff also refers to a judicial decision from the New York Court of Claims. [1] ¶ 6. Plaintiff does
not provide a citation to, or procedural history for, this case, but states that the court found “any long-
term contracts and due process rules that promised to protect the academic freedom of the clinical
faculty were ultra vires, unlawful, null and void.” Id.

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would refer the matter to the site team and handle it as part of the “sabbatical site

evaluation.” Id. ¶ 48. Plaintiff does not clarify what, if anything, happened as a

result of the site evaluation, but notes that Defendants approved the Law School’s

reaccreditation at some point in 2016. Id. ¶ 7. According to Plaintiff, in April 2017

the Accreditation Committee again reported no compliance issues with Section 405(c).

Id. ¶ 52.

Later, in January 2018, Plaintiff submitted to the Committee a copy of the

Second Circuit’s decision in Malkan v. Matua as evidence of the Law School’s non-

compliance with Standard 405(c). Id. ¶ 56. In June 2018, the Accreditation

Committee’s Counsel responded to Plaintiff, writing that after a thorough review of

his “complaint and the Law School’s response, I have concluded that the facts you set

forth fail to allege a violation by the Law School of the ABA Standards for Approval

of Law Schools.” Id. ¶ 58. Plaintiff sought clarification of this response from

Accreditation Committee member Bradley Clary, who responded that he would

submit Plaintiff’s additional information to the Committee’s Counsel. Id. ¶ 60. The

Accreditation Committee met on June 30, 2018 and took no action based upon

Plaintiff’s purported evidence of the Law School’s 405(c) violation. Id. ¶ 61.

In September 2018, Plaintiff filed another complaint with the ABA about its

failure “to give a reasoned response” to any of his submissions, attaching a news

article titled “Deep Rift Exposed as UB Law’s Dean Resigns.” Id. ¶¶ 62−63. The ABA

again declined to take any action against the Law School. Id. ¶ 67.

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II. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide

a “short and plain statement of the claim” showing that the pleader merits relief, Fed.

R. Civ. P. 8(a)(2), so the defendant has “fair notice” of the claim “and the grounds

upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting

Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint must also contain “sufficient

factual matter” to state a facially plausible claim to relief—one that “allows the court

to draw the reasonable inference” that the defendant committed the alleged

misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.

at 570). This plausibility standard “asks for more than a sheer possibility” that a

defendant acted unlawfully. Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).

When evaluating a complaint, this Court accepts all well-pled allegations as true and

draws all reasonable inferences in the plaintiff’s favor. Iqbal, 556 U.S. at 678. This

Court does not, however, accept a complaint’s legal conclusions as true. Brooks v.

Ross, 578 F.3d 574, 581 (7th Cir. 2009).

Like Rule 12(b)(6), Rule 12(b)(1) requires this Court to construe Plaintiff’s

complaint in the light most favorable to Plaintiff, accept as true all well-pleaded facts,

and draw reasonable inferences in his favor. Silha v. ACT, Inc., 807 F.3d 169, 173

(7th Cir. 2015); Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999).

Courts evaluating Rule 12(b)(1) motions may look beyond the complaint to consider

whatever evidence has been submitted on the issue to determine whether subject

matter jurisdiction exists. Silha, 807 F.3d at 173 (When reviewing a challenge that

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there is in fact no subject matter jurisdiction, even if the pleadings are formally

sufficient, “the court may look beyond the pleadings and view any evidence

submitted”).

III. Analysis

Defendants seek dismissal of both counts under Rule 12(b)(1) for lack of Article

III standing and under Rule 12(b)(6) for failure to state a claim. Because standing is

jurisdictional, this Court must consider that issue before reaching the merits. Ortiz

v. Fibreboard Corp., 527 U.S. 815, 831 (1999); Hinrichs v. Speaker of House of

Representatives of Ind. Gen. Assembly, 506 F.3d 584, 590 (7th Cir. 2007); Halperin v.

Intern. Web Servs., LLC, 70 F. Supp. 3d 893, 897 (N.D. Ill. 2014).

A. Plaintiff Fails To Establish Article III Standing

Article III of the Constitution limits “federal judicial power to certain ‘cases’

and ‘controversies.’” Silha, 807 F.3d at 172−73 (quoting Lujan v. Defs. of Wildlife,

504 U.S. 555, 559−60 (1992)). To establish Article III standing, Plaintiff must show

that: (1) he has suffered an “injury in fact” that is (a) concrete and particularized and

(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly

traceable to the challenged action of the defendant; and (3) it is likely, as opposed to

merely speculative, that the injury will be redressed by a favorable decision. Id. at

173 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.

167, 180−81 (2000); Lujan, 504 U.S. at 560−61). The party invoking federal

jurisdiction bears the burden of establishing the elements of Article III standing.

Lujan, 504 U.S. at 561. Defendants argue that Plaintiff fails to establish both the

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“fairly traceable” and “redressability” prongs. [22] at 6−7. Because this Court finds

that Plaintiff fails to show his injury is fairly traceable to any decision made by

Defendants, it need not consider Defendants’ redressability argument.

Plaintiff’s theory of injury proceeds as follows. First, New York State

regulations cap term appointments at three years and “do not create any manner of

legal right, interest or expectancy in any other appointment or renewal.” [1] ¶¶

43−44. As a result, these regulations “retroactively abrogated” all of the Law School’s

certifications of compliance with Standard 405(c) and its presumptively renewable

contract provision, requiring Defendants to sanction or otherwise discipline the Law

School. Id. ¶¶ 2, 43−44. Therefore, when Defendants failed to do so, they

“fraudulently applied its “imprimatur” on the Law School’s Standard 405(c)

compliance. Id. ¶ 80. Finally, according to Plaintiff, when Defendants continued to

accredit a Law School in violation of Standard 405(c), they imposed the “stigma of a

‘for cause’ termination on the Plaintiff, which made it “impossible for him to resume

his career at any other accredited law school.” Id. ¶ 9. 3

Plaintiff fails to establish Article III standing for the simple reason that this

lengthy causal chain offers no connection between his injury—the alleged stigma

following his 2008 termination—and Defendants’ Standard 405(c) enforcement

power. See Doe v. Holcomb, 883 F.3d 971, 975−76 (7th Cir. 2018) (in cases alleging

defendants failed to properly enforce a policy, a plaintiff must “establish that his

3Although Plaintiff’s Complaint alleges that declaratory judgment would “benefit the legal education
community” as a whole, [1] ¶ 88, Plaintiff’s response memorandum concedes that for purposes of this
suit, his Article III standing relies solely upon his own injuries-in-fact. [25] at 12.

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injury is causally connected to [defendants’] enforcement”); see also Ass’n of Am.

Physicians & Surgeons, Inc. v. Koskinen, 768 F.3d 640, 642 (7th Cir. 2014) (“The

longer the causal chain, the less appropriate it is to entertain standing . . . . To allow

a long, intermediated chain of effects to establish standing is to abolish the standing

requirement as a practical matter . . . .”).

Notably, Plaintiff fails to allege that the stigma arose because Matua

terminated him without good cause, in violation of Standard 405(c), and Defendants

failed to investigate and/or discipline this violation. See generally id. In fact, Plaintiff

concedes that Defendants “had nothing to do with breaching his contract.” [25] at 11.

Rather, Plaintiff appears to allege that because New York State’s regulations and

Standard 405(c) conflict, the Law School’s resulting Standard 405(c) violation, and

Defendants failure to respond, cast a “stigma” over his unrelated termination. Id; [1]

¶¶ 2, 9, 42−44.

Simply put, these allegations provide zero connection between Defendants’

Standard 405(c) enforcement power and Matua’s decision to terminate Plaintiff, and

any stigma resulting from that termination. The Complaint’s sole allegation

regarding Plaintiff’s termination states that in 2008, Matua made an independent

decision to not renew Plaintiff’s contract without consulting the faculty. Id. ¶ 42. But

terminating Plaintiff, by itself, does not necessarily constitute a Standard 405(c)

violation; Interpretation 405-6 expressly gives schools discretion to terminate clinical

professors for good cause, including termination or material modification of the entire

clinical program. Id. ¶ 30. In fact, the Complaint indicates that this was the case, as

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Plaintiff notes that the Law School terminated every clinical professor between 2009

and 2016. Id. ¶ 53. And Plaintiff offers no allegation to clarify how Defendants’

decision to continue certifying the law school would otherwise cast a stigma over his

termination in his subsequent employment efforts, particularly since Defendants

issued their final decision on the Law School’s Standard 405(c) compliance in 2018—

ten years after his termination. [1] ¶ 67; [25] at 13.

Thus, absent any allegation that: (1) Matua acted beyond his discretion in

terminating Plaintiff without good cause, in violation of Standard 405(c); and (2)

Defendants failed to discipline or sanction the Law School for this specific violation,

the Complaint demonstrates that Matua made an independent, discretionary

decision to terminate Plaintiff. Thus, this Court cannot fairly trace Plaintiff’s alleged

injury—the stigma of a “for cause” termination—to Defendants. See DH2, Inc. v.

SEC, 422 F.3d 591, 597 (7th Cir. 2005) (holding alleged injury not fairly traceable to

SEC rules because “to a significant degree, the injury [plaintiff] complains of hinges

on the decisions of independent actors whose discretion—though subject to securities

laws and regulation by the SEC—is nonetheless quite broad.”); Segovia v. United

States, 880 F.3d 384, 389 (7th Cir. 2018) (holding injuries inflicted by voting law were

not fairly traceable to defendants enforcing federal law given the “unfettered

discretion” federal law left to Illinois); Beckman v. Chi. Bear Football Club, Inc., No.

17 C 4551, 2018 WL 1561719, at *5 (N.D. Ill. Mar. 30, 2018) (holding that the Bears’

“unfettered” discretion to enforce a policy “breaks the chain of causation from

[plaintiff’s] injury to the NFL.”).

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Plaintiff counters that if the ABA believes the Law School, rather than itself,

should face liability for his damages, “its recourse is to implead the responsible

University officials” under Fed. R. Civ. P. 14(a). [25] at 12. Not so. Rule 14

“presupposes liability on the part of the original defendant.” Parr v. Great Lakes

Express Co., 484 F.2d 767, 769 (7th Cir. 1973). In other words, Rule 14 cannot relieve

Plaintiff of his Article III burden, which requires an injury fairly traceable to “the

challenged action of the defendant, and not the result of the independent action of

some third party not before the court.” Lujan, 504 U.S. at 560 (citing Simon v. E. Ky.

Welfare Rights Org., 426 U.S. 26, 41−42 (1976))

In short, the conflict between New York State’s regulations and Section 405(c)

cannot (absent additional facts not present here) establish a sufficient connection

between Defendants and any stigma resulting from Plaintiff’s 2008 termination. As

such, this Court grants Defendants’ motion to dismiss [21] for lack of subject matter

jurisdiction, and thus need not address Defendants’ 12(b)(6) arguments.

B. Leave to Replead

At the parties’ motion hearing on March 5, 2019, Plaintiff conceded that he did

not require any further amendments to his complaint. Based upon this

representation in open court, this Court dismisses Plaintiff’s complaint with

prejudice.

11
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IV. Conclusion

For the reasons explained above, this Court grants Defendants’ motion to

dismiss with prejudice. [21]. All dates and deadlines are stricken. Civil case

terminated.

Dated: May 8, 2019

Entered:

____________________________
John Robert Blakey
United States District Judge

12
ILND 450 (Rev.Case: 1:18-cv-07810
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IN THE UNITED STATES DISTRICT COURT


FOR THE
NORTHERN DISTRICT OF ILLINOIS

Jeffrey Malkan,

Plaintiff(s),
Case No. 18 CV 7810
v. Judge John Robert Blakey

American Bar Association, et al,

Defendant(s).

JUDGMENT IN A CIVIL CASE

Judgment is hereby entered (check appropriate box):

in favor of plaintiff(s)
and against defendant(s)
in the amount of $ ,

which includes pre–judgment interest.


does not include pre–judgment interest.

Post-judgment interest accrues on that amount at the rate provided by law from the date of this judgment.

Plaintiff(s) shall recover costs from defendant(s).

in favor of defendant(s)
and against plaintiff(s)
.
Defendant(s) shall recover costs from plaintiff(s).

other: This case is dismissed.

This action was (check one):

tried by a jury with Judge presiding, and the jury has rendered a verdict.
tried by Judge without a jury and the above decision was reached.
decided by Judge John Robert Blakey.

Date: 5/8/2019 Thomas G. Bruton, Clerk of Court

G. Lewis , Deputy Clerk


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APPEAL,COX,MIDP,TERMED

United States District Court


Northern District of Illinois - CM/ECF LIVE, Ver 6.2.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:18-cv-07810
Internal Use Only

Malkan v. American Bar Association et al Date Filed: 11/27/2018


Assigned to: Honorable John Robert Blakey Date Terminated: 05/08/2019
Cause: 28:1332 Diversity-Fraud Jury Demand: Plaintiff
Nature of Suit: 370 Other Fraud
Jurisdiction: Diversity
Plaintiff
Jeffrey Malkan represented by Jeffrey Malkan
12 Valleywood Ct. W.
Saint James, NY 11780
(631) 862-6668
Email: jeffrey.malkan@outlook.com
PRO SE

V.
Defendant
American Bar Association represented by Tacy Fletcher Flint
Sidley Austin Llp
One South Dearborn
Chicago, IL 60603
(312) 853-7875
Email: tflint@sidley.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Benjamin Isaac Friedman


Sidley Austin LLP
One South Dearborn
Chicago, IL 60603
(312) 853-7841
Email: benjamin.friedman@sidley.com
ATTORNEY TO BE NOTICED

Steven Joseph Horowitz


Sidley Austin LLP
One South Dearborn
Chicago, IL 60603

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(312) 853-7143
Email: shorowitz@sidley.com
ATTORNEY TO BE NOTICED

Defendant
Council of the Section of Legal represented by Tacy Fletcher Flint
Education and Admissions to the Bar, (See above for address)
American Bar Assocciation LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Benjamin Isaac Friedman


(See above for address)
ATTORNEY TO BE NOTICED

Steven Joseph Horowitz


(See above for address)
ATTORNEY TO BE NOTICED

Defendant
Accreditation Committee of the Section represented by Tacy Fletcher Flint
of Legal Education and the Admissions (See above for address)
to the Bar, American Bar Association LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Benjamin Isaac Friedman


(See above for address)
ATTORNEY TO BE NOTICED

Steven Joseph Horowitz


(See above for address)
ATTORNEY TO BE NOTICED

Select
Date Filed # all / clear
Docket Text

11/27/2018 1 COMPLAINT filed by Jeffrey Malkan; Jury Demand. (aee, ) (Entered:


11/27/2018)
11/27/2018 2 CIVIL Cover Sheet. (aee, ) (Entered: 11/27/2018)
11/27/2018 3 PRO SE Appearance by Plaintiff Jeffrey Malkan. (aee, ) (Entered:
11/27/2018)
11/27/2018 4 NOTICE TO THE PARTIES - The Court is participating in the Mandatory
Initial Discovery Pilot (MIDP). The key features and deadlines are set forth
in this Notice which includes a link to the (MIDP) Standing Order and a
Checklist for use by the parties. In cases subject to the pilot, all parties must
respond to the mandatory initial discovery requests set forth in the Standing

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Order before initiating any further discovery in this case. Please note: The
discovery obligations in the Standing Order supersede the disclosures
required by Rule 26(a)(1). Any party seeking affirmative relief must serve a
copy of the following documents (Notice of Mandatory Initial Discovery
and the Standing Order) on each new party when the Complaint,
Counterclaim, Crossclaim, or Third-Party Complaint is served. (aee, )
(Entered: 11/27/2018)
11/27/2018 5 (Court only) RECEIPT regarding payment of filing fee paid on 11/27/2018
in the amount of $400.00, receipt number 4624214255. (aee, ) (Entered:
11/27/2018)
11/27/2018 6 SUMMONS Issued as to Defendant American Bar Association. (aee, )
(Entered: 11/27/2018)
12/10/2018 7 EXECUTIVE COMMITTEE ORDER: Case reassigned to the Honorable
Gary Feinerman for all further proceedings pursuant to IOP 13(f)(1).
Signed by Executive Committee on 12/10/18. (aee, ) (Entered: 12/10/2018)
12/12/2018 8 MINUTE entry before the Honorable Gary Feinerman: Plaintiff has until
1/11/2019 to comply with Local Rule 83.15. Status hearing set for
1/16/2019 at 9:00 a.m. Mailed notice (mw, ) (Entered: 12/12/2018)
01/02/2019 9 ATTORNEY Appearance for Defendants Accreditation Committee of the
Section of Legal Education and the Admissions to the Bar, American Bar
Association, American Bar Association, Council of the Section of Legal
Education and Admissions to the Bar, American Bar Assocciation by Tacy
Fletcher Flint (Flint, Tacy) (Entered: 01/02/2019)
01/02/2019 10 ATTORNEY Appearance for Defendants Accreditation Committee of the
Section of Legal Education and the Admissions to the Bar, American Bar
Association, American Bar Association, Council of the Section of Legal
Education and Admissions to the Bar, American Bar Assocciation by
Steven Joseph Horowitz (Horowitz, Steven) (Entered: 01/02/2019)
01/02/2019 11 ATTORNEY Appearance for Defendants Accreditation Committee of the
Section of Legal Education and the Admissions to the Bar, American Bar
Association, American Bar Association, Council of the Section of Legal
Education and Admissions to the Bar, American Bar Assocciation by
Benjamin Isaac Friedman (Friedman, Benjamin) (Entered: 01/02/2019)
01/02/2019 12 NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by Accreditation
Committee of the Section of Legal Education and the Admissions to the
Bar, American Bar Association, American Bar Association, Council of the
Section of Legal Education and Admissions to the Bar, American Bar
Assocciation (Friedman, Benjamin) (Entered: 01/02/2019)
01/02/2019 13 MOTION by Defendants Accreditation Committee of the Section of Legal
Education and the Admissions to the Bar, American Bar Association,
American Bar Association, Council of the Section of Legal Education and
Admissions to the Bar, American Bar Assocciation for extension of time to

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file answer regarding complaint 1 (Friedman, Benjamin) (Entered:


01/02/2019)
01/02/2019 14 NOTICE of Motion by Benjamin Isaac Friedman for presentment of motion
for extension of time to file answer, 13 before Honorable Gary Feinerman
on 1/7/2019 at 09:00 AM. (Friedman, Benjamin) (Entered: 01/02/2019)
01/03/2019 15 SUPPLEMENT to motion for extension of time to file answer, 13
(Friedman, Benjamin) (Entered: 01/03/2019)
01/03/2019 16 MINUTE entry before the Honorable Gary Feinerman: The 1/7/2019
motion hearing 14 is stricken. This case will be forwarded to the Executive
Committee for reassignment to another District Judge. Mailed notice. (jjr, )
(Entered: 01/03/2019)
01/07/2019 17 EXECUTIVE COMMITTEE ORDER: Case reassigned to the Honorable
John Robert Blakey for all further proceedings pursuant to IOP 13(f)(2)(a).
Signed by Executive Committee on 1/7/19. (aee, ) (Entered: 01/07/2019)
01/08/2019 18 NOTICE of Motion by Benjamin Isaac Friedman for presentment of motion
for extension of time to file answer, 13 before Honorable John Robert
Blakey on 1/15/2019 at 09:45 AM. (Friedman, Benjamin) (Entered:
01/08/2019)
01/11/2019 19 MINUTE entry before the Honorable Gary Feinerman: Given the
reassignment 17 , the status hearing set for 1/16/2019 8 is stricken. Mailed
notice. (jlj, ) (Entered: 01/11/2019)
01/14/2019 20 MINUTE entry before the Honorable John Robert Blakey: Defendants'
motion to extend the time to answer or otherwise plead 13 is granted, and
Defendants shall respond to the complaint by 2/18/19. The 1/15/19 Notice
of Motion date is stricken, and the parties need not appear. Mailed notice
(gel, ) (Entered: 01/14/2019)
02/18/2019 21 MOTION by Defendants Accreditation Committee of the Section of Legal
Education and the Admissions to the Bar, American Bar Association,
Council of the Section of Legal Education and Admissions to the Bar,
American Bar Assocciation, American Bar Association to dismiss
(Friedman, Benjamin) (Entered: 02/18/2019)
02/18/2019 22 MEMORANDUM by Accreditation Committee of the Section of Legal
Education and the Admissions to the Bar, American Bar Association,
American Bar Association, Council of the Section of Legal Education and
Admissions to the Bar, American Bar Assocciation in support of motion to
dismiss, 21 (Friedman, Benjamin) (Entered: 02/18/2019)
02/18/2019 23 NOTICE of Motion by Benjamin Isaac Friedman for presentment of motion
to dismiss, 21 before Honorable John Robert Blakey on 3/5/2019 at 09:45
AM. (Friedman, Benjamin) (Entered: 02/18/2019)
02/20/2019 24 MINUTE entry before the Honorable John Robert Blakey: The Court is in
receipt of Defendants' motion to dismiss 21 which is noticed for

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presentment on 3/5/19. Plaintiff is advised to review the Courts standing


order on Motions to Dismiss, which is available on the Courts homepage at
www.ilnd.uscourts.gov. The Court's Order requires Plaintiff to make an
election as to whether he will amend his complaint or stand on the current
complaint and proceed with briefing on the motion to dismiss. Plaintiff
shall be prepared to make an election regarding Defendants' motion to
dismiss at the motion hearing on 3/5/19. Mailed notice (gel, ) (Entered:
02/20/2019)
02/26/2019 25 RESPONSE by Jeffrey Malkanin Opposition to MOTION by Defendants
Accreditation Committee of the Section of Legal Education and the
Admissions to the Bar, American Bar Association, Council of the Section
of Legal Education and Admissions to the Bar, American Bar Assocciation,
American Bar Associat 21 (Malkan, Jeffrey) (Entered: 02/26/2019)
03/04/2019 26 REPLY by Accreditation Committee of the Section of Legal Education and
the Admissions to the Bar, American Bar Association, American Bar
Association, Council of the Section of Legal Education and Admissions to
the Bar, American Bar Assocciation to response in opposition to motion, 25
(Friedman, Benjamin) (Entered: 03/04/2019)
03/05/2019 27 MINUTE entry before the Honorable John Robert Blakey: Motion hearing
held on 3/5/2019. Defendant's motion to dismiss 21 is taken under
advisement and the Court will rule by separate order. Status hearing set for
5/7/2019 at 9:45 a.m in Courtroom 1203. Mailed notice (gel, ) (Entered:
03/05/2019)
05/02/2019 28 MINUTE entry before the Honorable John Robert Blakey: On the Court's
own motion, the status hearing previously set for 5/7/19 is stricken and
reset for 5/28/19 at 9:45 a.m. in Courtroom 1203. Mailed notice (gel, )
(Entered: 05/02/2019)
05/08/2019 29 MINUTE entry before the Honorable John Robert Blakey: For the reasons
explained in the accompanying memorandum and opinion order, this Court
grants Defendants' motion to dismiss 21 for lack of Article III standing.
Counts I and II are dismissed with prejudice. All dates and deadlines are
stricken. Civil case terminated. Mailed notice (gel, ) (Entered: 05/08/2019)
05/08/2019 30 MEMORANDUM Opinion and Order Signed by the Honorable John
Robert Blakey on 5/8/2019. Mailed notice(gel, ) (Entered: 05/08/2019)
05/08/2019 31 ENTERED JUDGMENT Mailed notice(gel, ) (Entered: 05/08/2019)
05/17/2019 32 NOTICE of appeal by Jeffrey Malkan regarding orders 31 Filing fee $ 505.
(Malkan, Jeffrey) (Entered: 05/17/2019)
05/17/2019 33 DOCKETING Statement by Jeffrey Malkan regarding notice of appeal 32
(Malkan, Jeffrey) (Entered: 05/17/2019)
05/17/2019 34 SEVENTH CIRCUIT transcript information sheet by Jeffrey Malkan
(Malkan, Jeffrey) (Entered: 05/17/2019)

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05/17/2019 35 PAYMENT by Jeffrey Malkan of Filing fee $ 505. (Malkan, Jeffrey)


(Entered: 05/17/2019)
05/20/2019 36 NOTICE of Appeal Due letter sent to counsel of record regarding notice of
appeal 32 . (aee, ) (Entered: 05/20/2019)

or

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APPEARANCE & CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Appellate Court No:

Short Caption: Malkan v. Amer. Bar Assoc., et. al

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED


AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
The Plaintiff is proceeding pro se.

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
N/A

(3) If the party or amicus is a corporation:


i) Identify all its parent corporations, if any; and

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:

Attorney's Signature: s/ Jeffrey Malkan Date: May 17, 2019


Attorney's Printed Name: Jeffrey Malkan (plaintiff-appellant pro se)

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No

Address: 12 Valleywood Ct. W


Saint James, New York 11780

Phone Number: (631) 862-6668 Fax Number:

E-Mail Address: jeffrey.malkan@outlook.com

rev. 01/15 GA