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Case: 19-1958 Document: 12 RESTRICTED Filed: 07/15/2019 Pages: 21

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

________________________________________________

REPLY BRIEF OF
PLAINTIFF-APPELLANT, JEFFREY MALKAN
_________________________________________________

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

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

Oral Argument Request...............................................................................................................iii

I. The District Court erred by deliberating upon a cause of action that the Plaintiff did not
plead and a theory of the case that he did not allege……….………...................…..……1

A. The complaint is based on an underlying due process violation......................2

B. The complaint stated a cause of action for promissory fraud.....……........……3

C. The complaint satisfied the causation requirement of Article III standing


………………….................................................................................................……5

II. The District Court erred in its application of the Article III “fairly traceable” standard....7

A. The ABA was complicit in a fraud against its own accreditation process........8

B. The ABA’s responses are evasive, misleading, untimely, or false..................11

III. The District Court abused its discretion by dismissing the complaint with prejudice......13

Conclusion………........…….…….......………………………………………………………….16

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TABLE OF AUTHORITIES

Malkan v. Mutua, No. 12-CV-0236A (SR), 2015 WL 13746778 (W.D.N.Y. Dec. 1, 2015).........4

Malkan v. Mutua, 699 Fed. Appx. 81 (2d Cir. 2017)......................................................................4

Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 714 (6th Cir. 2015)...........................................7-8

Dep’t of Commerce v. New York, 588 U.S. ___, No. 18-966, slip op. at 10 (U.S. June 27,
2019)...............................................................................................................................................8

Banks v. Sec’y of Indiana Family and Soc. Serv., 997 F.2d 231 (7th Cir. 1993).......................9-10

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-62 (1992)..............................................9-10, 13

Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).....................................................................13

Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011)........................................................14

Phillips v. Prudential Ins. Co. of America, 714 F.3d 1017, 1020 (7th Cir. 2013).........................14

Culver Franchising System, Inc. v. Steak N Shake, Inc., No. 16C 72, slip. op. at 1 (N.D. Ill. Aug.
5, 2016)..........................................................................................................................................14

Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008)...................................................................15

Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010).........................................................15

Runnion v. Girl Scouts of Greater Chicago, 786 F.3d 510, 518 (7th Cir. 2015)...........................15

Conley v. Gibson, 355 U.S. 41, 48 (1957).....................................................................................15

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ORAL ARGUMENT REQUEST

This request for oral argument is made pursuant to Circuit Rule 34(f). The ABA has

countered that the Plaintiff should be denied oral argument, an outcome that would leverage the

reputation of its well-known law firm to the detriment of a pro se litigant for whom being seen

means being heard as well. The rules for allocating oral argument are prescribed by statute:

Oral argument must be allowed in every case unless a panel of three judges
who have examined the briefs and record unanimously agrees that oral
argument is unnecessary for any of the following reasons:
(A) the appeal is frivolous;
(B) the dispositive issue or issues have been authoritatively decided; or
(C) the facts and legal arguments are adequately presented in the briefs and
record, and the decisional process would not be significantly aided by oral
argument.

Fed. R. App. P. 34(a)(2). Two of these three factors weigh decisively in favor of oral argument

and it is doubtful that the decisional process would not be significant aided by oral argument.

The ABA’s opposition to this request omits to mention that this lawsuit is seeking

restitution in a legal claim that alleges an underlying violation of the right to due process. The

procedural posture in which this appeal comes before the Court, moreover, is the District Court’s

dismissal the complaint with prejudice. As a consequence, the ABA has been absolved of even

the fundamental obligation of admitting or denying the allegations of the complaint, which is

contrary to the principle of due process and the interests of justice.

The Court should also take into account the seriousness of issues raised on this appeal,

their legal complexity as reflected in the pleadings and the arguments briefed on this appeal, and

the public interest in any matters involving the American Bar Association. These are compelling

reasons to provide the Plaintiff with access to the Court in the form of an oral presentation.

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I. THE DISTRICT COURT ERRED BY DELIBERATING UPON A


CAUSE OF ACTION THAT THE PLAINTIFF DID NOT PLEAD
AND A THEORY OF THE CASE THAT HE DID NOT ALLEGE.

The sole issue on this appeal is whether the ABA caused the damages

claimed by the Plaintiff for the divestment of his contractual and due process rights

in violation of a core academic freedom standard at an ABA-accredited law school.

The complaint alleges that his exposure to these damages resulted from his

reliance on the ABA to enforce Standard 405(c), the clinical faculty standard, in its

role as the DOE-approved agency for the accreditation of American law schools.

It further alleges that his reliance on the ABA was justified because the U.S.

Department of Education requires it to monitor and verify compliance with its

standards by means of sabbatical site evaluations, annual self-study reports, and a

mandatory complaint procedure. The ABA’s obligation to maintain Standard

405(c) at all of its accredited law schools was the decisive factor in his assessment

of the risks and benefits of accepting a clinical faculty appointment at the SUNY

Buffalo Law School.1 That is because Standard 405(c) was the legal framework

upon which all of his academic and legal rights at that institution would be based.2

1
Compl. ¶¶ 18-23, 80.
2
His contract expressly conferred 405(c)-due process rights: “[Y]our appointment is covered by
the ABA rules and is intended to fully comply with those rules, particularly standard 405(c), and
all accompanying interpretations.... Now that you have successfully been appointed following a
full review, future reviews will have the ‘for cause only’ removal standard set forth in the ABA
standards. Under ABA policies, this standard is meant to be similar to that term as applied when
dealing with tenured faculty and is intended to protect academic freedom.” Id. ¶ 39-40.
1
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He proceeded upon the reasonable belief that it would be impossible for the

University to revoke his property interest in state employment and rescind his right

to any form of due process, including due process in federal court, because defying

the ABA’s accreditation standards and subverting the ABA’s accreditation process

would cause it to forfeit its ABA-issued operating license.3

A. The complaint is based on an underlying due process violation.

What he did in response to the divestment of his legal rights is exactly what

any member of the clinical faculty at any state-sponsored and ABA-accredited law

school would have to do. Upon his summary termination from a 405(c)-protected

faculty appointment, he filed a breach of contract claim in the New York Court of

Claims in Buffalo and a due process claim, based on 42 U.S.C. § 1983, in the U.S.

District Court for the Western District of New York.4

He commenced these legal actions in complete certainty that he had a bona

fide employment contract and bona fide due process rights. This contract and

these due process rights were both contingent upon the Law School’s continuing

compliance with Standard 405(c).5 That standard requires law schools under the

ABA’s supervision to protect the academic freedom and educational integrity of

their clinical faculties by providing them with “security of employment reasonably

3
Id. ¶ 80.
4
Id. ¶ 43.
5
Id. ¶ 41.
2
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similar to tenure” either in the form of a clinical tenure track or by means of

presumptively renewable contracts, with due process rights, of five years or more.6

B. The complaint stated a cause of action for promissory fraud.

The chart below summarizes the allegations and theory of the case as they

were stated in the complaint.

Plaintiff’s theory of the case

1. The ABA’s primary function under its license from the U.S. Department of Education is to
keep its accreditation standards in place for the benefit of the legal education community.

2. This includes its duty to ensure that ABA-accredited law schools protect the academic
freedom and educational integrity of their clinical faculties by maintaining 405(c)-compliant
contracts, procedures, and personnel policies.

3. Upon his summary termination from a 405(c)-protected clinical professorship at SUNY


Buffalo Law School, the Plaintiff filed a breach of contract claim in the New York Court of
Claims in Buffalo and a due process claim in the U.S. District Court for the Western District of
New York.

4. The University defended these cases by repudiating Standard 405(c) in its entirety and
retroactively converting all of its clinical professors to the status of at-will employees who
could be summarily fired by the Dean at the end of any contract term.

5. The ABA responded by denying that any violation of its accreditation standards had taken
place.

6. The ABA damaged the Plaintiff by inducing him to entrust his career and livelihood to a
non-functional and inoperative accreditation standard, i.e., an accreditation fraud, which had
the effect of divesting him of his property interest in state employment and his right to due
process in federal court.

6
See Compl. ¶¶ 24-30.
3
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The ABA replies that even if all of these allegations are true, it has no

liability in this matter because (i) former-Dean Mutua’s malicious misconduct and

abuse of power was done in the exercise of his independent and lawful discretion,

and (ii) the University’s withdrawal of all legal protections extended to its clinical

faculty did not violate any of the ABA Standards. The ABA also argues that its

endorsement of a policy that demoted every member of the clinical faculty to the

status of at-will employment could have no possible bearing on the stigma of a “for

cause” termination from a 405(c)-protected clinical faculty appointment, which it

falsely claims is the only injury alleged in the complaint.

The ABA persists in these obvious falsehoods even though SUNY Buffalo

expressly declared its repudiation of Standard 405(c) in the U.S. District Court for

the Western District of New York and the U.S. Court of Appeals for the Second

Circuit.7 The ABA also knows that the University’s fortuitous discovery of a

“conflict” between the Policies of the Board of Trustees and the ABA Standards

was absolutely fraudulent unless one believes that its own enabling rules

compelled it to rescind all of its clinical faculty contracts and then file false

accreditation reports through at least two accreditation cycles. Despite this

conclusive evidence of accreditation fraud, the ABA continues to maintain that

7
The successful repudiation of Standard 405(c) was judicially confirmed in the Western District
of New York on December 1, 2015, id. ¶¶ 46-47, and in the Second Circuit on October 30, 2017.
Id. at ¶ 55. See Malkan v. Mutua, No. 12-CV-0236A (SR), 2015 WL 13746778 (W.D.N.Y. Dec.
1, 2015); Malkan v. Mutua, 699 F. App’x 81 (2d Cir. 2017).

4
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SUNY Buffalo, at all times relevant to this matter, has been in full compliance

with all of its accreditation standards, including Standard 405(c).8

The chart below compares the complaint that was filed in the District Court

with the complaint as it was characterized to the District Court by the ABA.

The allegations of the complaint The ABA’s version of these


allegations

cause of action promissory fraud, negligent and wrongful termination/breach of


fraudulent misrepresentation contract

damages loss of property interest in state stigma of a “for cause” termination


employment/divestment of due
process rights in federal court.

theory of liability The ABA exposed the Plaintiff to a The ABA is liable for the Plaintiff’s
scheme to defraud by knowingly and damages because it failed to prevent
willfully protecting an accreditation SUNY Buffalo from breaking his
fraud and endorsing the subversion contract and terminating his faculty
of its own accreditation process. appointment.

C. The complaint satisfied the causation requirement of Article III standing.

When the deceptive arguments and false assertions of fact presented to the

District Court are set to one side, the allegations of the complaint are more than

sufficient to meet the fairly traceable standard and justify the exercise of subject

8
Id. ¶ 58 (quoting June 4, 2018 letter of Accreditation Counsel).
5
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matter jurisdiction. This chart below paraphrases on the left the allegations of the

complaint, and cites on the right the paragraphs where those allegations are made.

The causation allegations The textual statement of these allegations

Allegation #1 ¶ 41. This 405(c)-compliant contract,


together with the Law School's status as an
The Dean of the SUNY Buffalo Law ABA accredited law school, was the basis of
School violated Standard 405(c) by summarily the Plaintiff s expectation that his contract
and unlawfully terminating the Plaintiff’s renewal would be mandatory, in the absence of
faculty appointment without faculty approval good cause, upon the expiration of each term
or any adjudication of good cause. 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.

Allegation #2 ¶ 43. In subsequent proceedings before the


federal district court of the Western
The University defended former-Dean District of New York and the New York State
Mutua’s violation of Standard 405(c) by Court of Claims, the Attorney General of New
repudiating that standard in its entirety. This York presented the argument that the Policies
defense required the Attorney General to admit of the Board of Trustees, which are regulations
that the University had lied to the ABA on all of the New York State Department of
of its certifications of compliance with Education, prevent any SUNY campus from
Standard 405(c) over the previous two decades. 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
all of the Law School's certifications of
compliance with ABA Standard 405(c) and
any institutional rules and procedures or
contractual commitments that 405(c)-
compliance entailed.

6
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Allegation #3 ¶ 8. The ABA's 2016 reaccreditation of a Law


School that it knew had repudiated
The ABA issued a final ruling that the Standard 405(c) enabled SUNY Buffalo to
SUNY Buffalo Law School has been in full obtain a legal outcome that exonerated its Law
compliance with Standard 405(c) at all relevant School of any legal liability for the ongoing
times in this matter. This endorsement of a fraud that it was perpetrating on its clinical
self-avowed accreditation fraud divested the faculty.
Plaintiff of his property interest in state
employment and enabled the University to ¶ 54. In knowing and willful disregard of its
obtain a legal outcome that exonerated it of any duty to communicate truthfully about the
liability for its violation of his contractual and compliance status of accredited law schools
due process rights. This fraud is still in place and to retract misinformation that it previously
and continues to the present day. published by reason of negligence or fraud, the
ABA continues to communicate false
assurances of SUNY Buffalo's compliance
with Standard 405(c).

II. THE DISTRICT COURT ERRED IN ITS APPLICATION OF


THE ARTICLE III “FAIRLY TRACEABLE” STANDARD.

The District Court accepted the ABA’s argument that the damages alleged in

the complaint were not fairly traceable to the ABA because former-Dean Mutua,

not the ABA, rescinded his contract and blocked him from receiving due process in

the Law School. That, however, is not how the Article III standard of fairly

traceable should be applied at the pleading stage of an otherwise viable lawsuit.

The fact that a defendant was one of multiple contributors to


a plaintiff’s injuries does not defeat causation…. In the
nebulous land of ‘fairly traceable,’ where causation means
more than speculative but less than but-for, the allegation that
a defendant’s conduct was a motivating factor in the third
party’s injurious actions satisfies the requisite standard.

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Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 714 (6th Cir. 2015) (citations

omitted). In its most recent ruling on the Article III causation requirement, the

Supreme Court held that the independent decisions of third parties to evade the

decennial census, even if unlawful, are fairly traceable to the Secretary of

Commerce as long as their evasions are predictable. See Dep’t of Commerce v.

New York, 588 U.S. ___, No. 18-966, slip op. at 10 (U.S. June 27, 2019).

A. The ABA was complicit in a fraud against its own accreditation process.

As in Parsons, the complaint alleges that the ABA’s tacit approval of the

University’s repudiation of Standard 405(c) was the “motivating factor” in the

decision of a third party, the Attorney General of New York, to proceed with

impunity and press the accreditation fraud to its unjust conclusion.

81. The Attorney General on October 14, 2017


successfully argued before the 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.”

8
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The complaint further alleges that the ABA’s tacit approval turned into express

endorsement on June 4, 2018 when the Accreditation Counsel reviewed the

decision of the U.S. Court of Appeals for the Second Circuit and pronounced that

SUNY Buffalo is in full compliance with all accreditation standards, including

Standard 405(c).9 Despite this conclusive evidence of its complicity in a fraud

against its own accreditation standards, the ABA still maintains that it can never be

held liable for the accreditation fraud of a third party. That argument is incorrect.

In Banks v. Sec’y of Indiana Family and Soc. Serv., 997 F.2d 231 (7th Cir.

1993), a panel of this court applied the “fairly traceable” standard to a claim

against the U.S. Department of Health and Human Services [HHS] based on its

failure to order a state Medicaid provider to enact mandatory due process rules.

The lead plaintiff in Banks was a Medicaid recipient who had been denied a notice

and hearing after the insurer refused to pay her late husband’s radiology bill. Id. at

238. HHS persuaded the district court that its failure to enforce its own regulations

was too attenuated to give her standing to sue HHS – in other words that the due

process violation of a Medicaid provider operating under its supervision and

authority was not “fairly traceable” to the agency itself. Id. The Banks court

rejected this argument, ruling that Banks and her fellow plaintiffs had alleged “a

concrete injury to a particularized interest,” see Lujan v. Defenders of Wildlife, 504

9
See Compl. ¶ 58.
9
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U.S. 555, 560-61 (1992), as well as a sufficient causal connection between these

injuries and the challenged conduct of the federal defendant.

For the purposes of our standing inquiry, we conclude that


the plaintiffs have established that their injury arises from the
government's allegedly unlawful lack of regulation of someone
else. Under the Medicaid Act, the Secretary of Health and
Human Services is charged with approving only those state
Medicaid plans that conform to federal law. One of the
requirements of federal law is that state plans “provide for
granting an opportunity for a fair hearing before the State
agency to any individual whose claim for medical assistance
under the plan is denied or is not acted upon with reasonable
promptness.”
Pursuant to this provision, the Secretary promulgated the
Medicaid due process regulations. These regulations… require
states to provide the hearing and notice they seek. Putting to one
side, as we must in a standing inquiry, the merits of the
plaintiffs’ contention, we find that [they] as intended
beneficiaries of these regulations have adequately demonstrated
that they were adversely affected by the Secretary’s alleged
failure to require state compliance with the regulations…. For
these reasons, the plaintiffs have established a sufficient causal
connection between a perceptible injury to their interests and the
challenged conduct of the federal defendant.

Banks, 997 F.2d at 240 (citations omitted). Likewise here, the ABA’s refusal to

take enforcement action upon receiving evidence of SUNY Buffalo’s repudiation

of a core academic freedom standard, Standard 405(c), satisfied the Article III

requirement of causation. As in Banks, the ABA may be held liable to the

“intended beneficiaries of these regulations” – here, the clinical faculty of SUNY

Buffalo Law School – for its “unlawful lack of regulation of someone else.” Id.

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Finally, a defendant who wishes to disclaim liability by pointing the finger

of blame at a third party should be advised to implead that third party under Rule

14, which is exactly what the Plaintiff told the ABA in the District Court. See

Mem. Op. at 11. The ABA is not obliged to exercise that option, but it cannot hide

behind the malicious misconduct of administrators at an ABA-accredited law

school to evade its own responsibility for protecting their accreditation fraud.

B. The ABA’s responses are evasive, misleading, untimely, or false.

(i) Throughout its response to this appeal, the ABA has never once denied

that it protected the accreditation fraud that is the basis of the complaint.

(ii) The ABA repeatedly argues that the Plaintiff is “pivoting” to a new

theory of damages on this appeal.10 This is completely untrue. The complaint

alleges one count of negligent and fraudulent misrepresentation, based on its

factual allegations of the ABA’s complicity in a self-avowed accreditation fraud.

That is the one and only theory of damages in this case.

(iii) The ABA continues to argue that the Plaintiff’s standing is based on his

advocacy for third parties when it knows that he affirmed to the District Court’s

satisfaction that he represents no one in this matter but himself.11

(iv) The ABA maintains here for the first time that this lawsuit is a

collateral attack on a final judgment of the U.S. Court of Appeals for the Second

10
See Def.’s-Appellee’s Br. at 3, 9, 12, 14.
11
Id. at 19.
11
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Circuit. On October 30, 2017, that court ruled that the Plaintiff had no property

interest in state employment, and hence no right to due process, because he was

relying on a fraudulent contract, fraudulent personnel rules, and a fraudulent

accreditation standard. That judgment was final and he is not attacking it.12

(v) The ABA tries to justify its protection of SUNY Buffalo’s accreditation

fraud by arguing that “Malkan had no right to litigate his claims without having to

contend with SUNY-Buffalo’s meritorious due-process arguments.”13 It is true

that the University was entitled to mount a legal defense based on its repudiation of

Standard 405(c), if it saw fit to do so. The caveat is that this defense exposed the

ABA to liability for all of the damages that ensued from its sponsorship of a

scheme to defraud in the form of a fraudulent accreditation standard. What makes

the ABA’s argument so unseemly is its use of the phrase “meritorious due-process

arguments” to describe an accreditation fraud that divested an entire clinical

faculty of the due process rights that were guaranteed by the ABA itself.

(vi) The ABA makes one more pass at the Second Circuit by arguing that

“[t]he Law School’s supposed accreditation fraud was legally irrelevant because...

the ABA’s Standards could not ‘override[]’ state regulations.’”14 To the contrary,

12
Id. at 16. If the ABA is claiming that this lawsuit is precluded by the doctrine of res judicata it
should have cited that doctrine and made a res judicata argument.
13
Id. at 15. (citations omitted).
14
Id. at 18. The language marked by internal quotation marks is directly quoted from the
Second Circuit.

12
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an accreditation fraud can never be legally irrelevant to an accrediting agency.

The only reason SUNY Buffalo could base a legal defense on an accreditation

fraud was that the ABA protected that fraud. If SUNY Buffalo was finding it

difficult to harmonize state regulations with the ABA Standards, it was required to

remove that legal impediment or else return its operating license to the ABA.

(vii) Finally, the ABA attempts to raise the issues of injury-in-fact and

redressability, neither of which is properly before the Court on this appeal. As for

the first, it is black letter law that injury-in-fact can be presumed in a diversity case

based on a common law tort or a breach of contract.15 As for the second, it is true

that “a finding of noncompliance would not give [Malkan] his job back, now or

ever.”16 The complaint, however, does not seek redress in the form of

reinstatement. It asks for damages in a monetary amount to be determined at trial.

III. THE DISTRICT COURT ABUSED ITS DISCRETION BY


DISMISSING THE COMPLAINT WITH PREJUDICE.

On May 8, 2019, the District Court dismissed the complaint with prejudice,

denying in advance any motion to replead. See Mem. Op. at 11-12. This dismissal

15
Id. at 19-20. Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992) (“if the plaintiff
himself is an object of the action (or foregone action) at issue” then “there is ordinarily little
question that the action or inaction caused him injury”).
16
Id. at 13. In support of this unwarranted digression, the ABA argues that a citizen who is not
under prosecution lacks standing to challenge the exercise of prosecutorial discretion. See Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973). Id. This is completely irrelevant because the ABA
is not a prosecutor, its standards are not criminal laws and the DOE-regulations for accrediting
agencies give it no discretion to excuse a self-avowed accreditation fraud. See Compl. ¶ 22.
13
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was both clearly erroneous and an abuse of discretion. It was clearly erroneous

because it was based on the mistaken premise that additional and unattainable facts

would be needed to establish Article III causation. Id. To the contrary, the District

Court was presented with the following theory of damages.

The complaint is based on the allegation that the plaintiff


was injured because “the ABA’s imprimatur on that law
school’s compliance with Standard 405(c) was fraudulently
applied.” See Compl. ¶ 80. It further alleges that in April of
2016 the ABA was in possession of conclusive evidence that
SUNY Buffalo had repudiated Standard 405(c) and all of its
clinical faculty contracts in the New York Court of Claims
and the U.S. District Court. See Compl. ¶ 81. Even though
it was in the midst of a sabbatical site evaluation, see Compl.
¶ 21-22, the ABA refused to respond in any manner to
SUNY Buffalo’s open defiance of the ABA Standards. See
Compl. ¶¶ 6, 7. The ABA thereby gave the Attorney
General the green light to once again argue the “ultra vires
contract” defense before the U.S. Court of Appeals, with
devastating consequences for the plaintiff. See Compl. ¶¶ 6-
7, 82. In other words, far from failing to allege the element
of causation, the complaint alleges that the ABA is one-
hundred percent responsible for any and all injuries suffered
by the plaintiff.

Pl.’s Mem. in Opp. at 11. [Dkt. 25] That is the theory of damages in a nutshell and

it was more than sufficient to stave off a dismissal with prejudice.17

In addition, the District Court abused its discretion by withholding at least

one opportunity to amend the complaint. See, e.g., Alioto v. Town of Lisbon, 651

17
See Phillips v. Prudential Ins. Co. of America, 714 F.3d 1017, 1020 (7th Cir. 2013) (“we must
consider not only the complaint itself, but also additional facts set forth in Phillips’s district court
brief… so long as those facts are consistent with the pleadings”); Culver Franchising System,
Inc. v. Steak N Shake, Inc., No. 16C 72, slip. op. at 1 (N.D. Ill. Aug. 5, 2016) (same).
14
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F.3d 715, 721 (7th Cir. 2011) (“a plaintiff ordinarily retains the ability to amend

his complaint once as a matter of right, even after a court grants a motion to

dismiss”); Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008) (“an order

dismissing the original complaint normally does not eliminate the plaintiff's right

to amend once as a matter of right”); Bausch v. Stryker Corp., 630 F.3d 546, 562

(7th Cir. 2010) (“a court should ‘freely give leave [to file an amended complaint]

when justice so requires’”); Runnion v. Girl Scouts of Greater Chicago, 786 F.3d

510, 518 (7th Cir. 2015) (“[i]n light of the presumption in favor of giving plaintiffs

at least one opportunity to amend, denying a plaintiff that opportunity carries a

high risk of being deemed an abuse of discretion”).

Even if the District Court believed that the complaint did not satisfy an

element of Article III standing in its present form, the proper response would have

been to order dismissal with leave to replead those allegations. “The Federal Rules

reject the approach that pleading is a game of skill in which one misstep by counsel

may be decisive to the outcome, and accept the principle that the purpose of

pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355

U.S. 41, 48 (1957). In short, the District Court lacked any basis for ruling that no

possible amendment could bring the complaint to the point where it could be

considered on its merits. In a case whose underlying facts demonstrate repeated

denials of the right to due process, and which alleges that the ABA protected and

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Case: 19-1958 Document: 12 RESTRICTED Filed: 07/15/2019 Pages: 21

endorsed the accreditation fraud that made those injustices possible, allowing it to

walk away from the complaint without even denying its allegations, much less

disclosing any reason for why it endorsed SUNY Buffalo’s repudiation of a core

academic freedom standard, would be the ultimate injustice.

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: July 15, 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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Case: 19-1958 Document: 12 RESTRICTED Filed: 07/15/2019 Pages: 21

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

statement 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 typeface is Times New Roman, 14-

point in the principal text. It contains 4,755 words, excluding items not counted by the rule.

Dated: July 15, 2019

/s/ Jeffrey Malkan


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

PROOF OF SERVICE

The undersigned certifies that he filed the Reply Brief of Plaintiff-Appellant on CM/ECF

which will send electronic notification to the attorneys for the American Bar Association, all of

whom are registered for CM/ECF filing.

Dated: July 15, 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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