Malkan v. Am. Bar Ass'n - ABA's Appellee's Brief

Case: 19-1958 Document: 9 RESTRICTED Filed: 07/08/2019 Pages: 27
No. 19-1958
UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT
_______________________
JEFFREY MALKAN,
Plaintiff-Appellant
v.
AMERICAN BAR ASSOCIATION, COUNSEL OF THE SECTION OF LEGAL

EDUCATION AND ADMISSIONS TO THE BAR, and ACCREDITATION COMMITTEE
OF THE SECTION OF LEGAL EDUCATION AND ADMISSIONS TO THE BAR,
Defendants-Appellees
_______________________
Appeal from the U.S. District Court for the

Northern District of Illinois, Hon. John R. Blakey
Case No. 18 C 07810
_______________________
APPELLEES’ RESPONSE BRIEF

_______________________
TACY F. FLINT
STEVEN J. HOROWITZ
BENJAMIN I. FRIEDMAN
SIDLEY AUSTIN LLP
One South Dearborn
Chicago, IL 60603
(312) 853-7000
Counsel for Defendants-Appellees

$33($5$1&( CIRCUIT RULE 26.DISCLOSURE STATEMENT
Appellate Court No: 19-01958
Short Caption: Jeffrey Malkan v. American Bar Association, 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):
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 Admission to the Bar,
American Bar Association
(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:
Sidley Austin LLP
(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and
N/A
ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:
N/A
Attorney's Signature: s/ Tacy F. Flint Date: 7/8/2019

Attorney's Printed Name: Tacy F. Flint
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No
Address: 1 S. Dearborn, Chicago, IL 60603
Phone Number: (312) 853-7875 Fax Number: (312) 853-7036
E-Mail Address: tflint@sidley.com
rev. 01/ *$
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ...................................................... 1
JURISDICTIONAL STATEMENT ............................................................................... 1
ISSUE PRESENTED ..................................................................................................... 2
INTRODUCTION .......................................................................................................... 2
STATEMENT OF THE CASE ....................................................................................... 4
A. The ABA’s Role as Accreditor .................................................................. 4
B. Malkan’s Employment at SUNY-Buffalo ................................................ 5
C. SUNY-Buffalo’s Decision Not to Renew Malkan’s Contract .................. 6
D. This Litigation .......................................................................................... 6
SUMMARY OF ARGUMENT ....................................................................................... 8
STANDARD OF REVIEW ........................................................................................... 10
ARGUMENT ................................................................................................................ 10
I. Malkan Lacks Standing to Sue the ABA. .............................................. 10
A. Malkan’s Termination Is Not Fairly Traceable to the ABA. ..... 11
B. The Prior Federal Decision Rejecting Malkan’s Due-Process

Claim Cannot Confer Standing to Sue the ABA. ....................... 14
II. Any Asserted “Public Interest” Cannot Create an Article III Case or
Controversy. ........................................................................................... 19
CONCLUSION............................................................................................................. 20
–i–
TABLE OF AUTHORITIES
Page(s)
Cases
Colyer v. Smith,
50 F. Supp. 2d 966 (C.D. Cal. 1999)....................................................................... 15
DH2, Inc. v. SEC,

422 F.3d 591 (7th Cir. 2005) ............................................................................ 10, 11
Easter House v. Felder,

910 F.2d 1387 (7th Cir. 1990) ................................................................................ 14
Linda R.S. v. Richard D.,

410 U.S. 614 (1973) .......................................................................................... 12, 13
Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ............................................................................................ 9, 18
Malkan v. Mutua,
699 F. App’x 81 (2d Cir. 2017)............................................................................ 6, 17
Malkan v. Mutua,
No. 12-CV-0236A(SR), 2015 WL 13746778 (W.D.N.Y. Dec. 1, 2015) ..................... 6
Orgone Capital III, LLC v. Daubenspeck,

912 F.3d 1039 (7th Cir. 2019) .................................................................................. 4
Reichenberger v. Pritchard,
660 F.2d 280 (7th Cir. 1981) .................................................................................. 14
Reid L. v. Illinois State Bd. of Educ.,

289 F.3d 1009 (7th Cir. 2002) ................................................................................ 14
Remijas v. Neiman Marcus Grp.,

LLC, 794 F.3d 688 (7th Cir. 2015) ........................................................................... 9
Segovia v. United States,

880 F.3d 384 (7th Cir. 2018) ............................................................................ 10, 16
Silha v. ACT, Inc.,

807 F.3d 169 (7th Cir. 2015) .............................................................................. 9, 18
Simon v. E. Ky. Welfare Rights Org.,

426 U.S. 26 (1976) ........................................................................................ 8, 10, 16
– ii –
Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016) ........................................................................................ 9, 14
Warth v. Seldin,
422 U.S. 490 (1975) ................................................................................................ 18
Statutes
28 U.S.C. § 1291 ................................................................................................... 2, 3, 15
28 U.S.C. § 1254 ....................................................................................................... 3, 15
28 U.S.C. § 1332(a)(1) .................................................................................................... 1
Other Authorities
59 Fed. Reg. 22250 (Apr. 29, 1994) ............................................................................... 4
– iii –
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Federal Rule of Appellate Procedure 34(a) and Circuit Rule 34(f),
Appellees respectfully state that oral argument is not appropriate in this case. This
appeal calls for the straightforward application of established standing principles to
Appellant’s complaint. Oral argument is unlikely to significantly aid the Court’s
resolution of the appeal.
JURISDICTIONAL STATEMENT
Pursuant to Circuit Rule 28(b), Appellees state that Appellant Jeffrey
Malkan’s jurisdictional statement is neither complete nor correct. The district court
held that Malkan lacked Article III standing and dismissed the complaint for lack of
subject matter jurisdiction. As explained herein, the district court’s conclusion was
correct and dismissal was proper.
Standing aside, the district court had subject matter jurisdiction over this
diversity suit under 28 U.S.C. § 1332(a)(1). Malkan is a citizen of New York.
Appellee American Bar Association (“ABA”) is an Illinois not-for-profit corporation
and has its principal place of business in Chicago. Appellee Council of the Section of
Legal Education and Admissions to the Bar (“Council”) is a component of the ABA
and not separately incorporated. Appellee Accreditation Committee of the Section of
Legal Education and Admissions to the Bar (“Committee”)1 was a component of the
Council and was not separately incorporated, but the ABA House of Delegates
disbanded the Committee in August 2018. Am. Bar Ass’n, Resolutions with Reports
1 For convenience, this brief will refer to the ABA, Council, and Committee collectively as
the “ABA.”
–1–
to the House of Delegates, Items No. 111A-E, https://www.americanbar.org
/content/dam/aba/administrative/house_of_delegates/ebook-of-resolutions-with-repor
ts/2018_annual_electronic_resolution_book.pdf (last visited July 8, 2019). The
complaint alleged that the amount in controversy exceeds $75,000, exclusive of
interest and costs.
This Court has appellate jurisdiction under 28 U.S.C. § 1291. On May 8,
2019, the district court dismissed the complaint in its entirety and set out its
judgment in a separate document under Rule 58(a). (Dkt. 30 & 31.) Malkan timely
filed a notice of appeal on May 17, 2019. (Dkt. 32.)
ISSUE PRESENTED
Whether a professor has Article III standing to sue an accreditor for injuries
arising from (1) a school’s independent decision to terminate his employment or
(2) any deprivation of due process in proceedings challenging that termination.
INTRODUCTION
Appellant Jeffrey Malkan brought this case against the ABA after an earlier
suit against his former boss, the dean of SUNY-Buffalo School of Law, failed. His
complaint here asserts injuries associated with his termination from the Law
School, which include an alleged “stigma” that made it impossible for Malkan to
resume his career at another accredited law school. (Br. 19.) But Malkan cannot
justify the exercise of the federal judicial power over this case unless he identifies
an injury that is fairly traceable to the ABA. As the district court correctly held,
–2–
there is “zero connection” between Malkan’s termination-related injuries and the
ABA’s decision to accredit SUNY-Buffalo. (Op. 9.2)
Malkan’s opening brief concedes that any harm from his termination cannot
fairly be traced to the ABA. Indeed, he emphatically denies that he is “blaming the
ABA for his wrongful termination,” and he acknowledges that the ABA was not
“responsible in any way for ordering, influencing, or approving” that termination.
(Br. 3.) This welcome concession eliminates the primary theory of harm outlined in
Malkan’s complaint and confirms that dismissal was appropriate.
Malkan thus pivots to a new theory. He now says that what he really alleges
“is a violation of his right to due process in federal court,” which in his view is
traceable to the ABA. (Br. 3.) Putting aside that any deprivation of due process in a
lower federal court is properly addressed through an appeal rather than a collateral
attack in a suit against a non-party, see 28 U.S.C. §§ 1291, 1254, the ABA had no
control over the Second Circuit’s decision to reject Malkan’s claim against the Law
School dean, or the Law School’s earlier decision not to provide Malkan a hearing on
his termination. The New York Attorney General adopted its own (successful)
litigation strategy in a lawsuit that did not involve the ABA, and the federal courts
accepted the Attorney General’s arguments without any influence from the ABA.
Indeed, by Malkan’s own account, the Second Circuit’s decision was based in part on
the irrelevance of the ABA’s Standards. (Br. x–xi.)
2 “Op.” refers to the district court’s Memorandum Opinion and Order dismissing the
complaint. (Dkt. 30.) The opinion is included in Appellant’s required short appendix. (See
7th Cir. Dkt. 3 at 63–74.)
–3–
The district court correctly held that Malkan lacked Article III standing to
bring claims against the ABA because the only injuries actually alleged in the
complaint—those stemming from the “stigma” of a for-cause termination—have
“zero connection” to the ABA’s decision to accredit SUNY-Buffalo. (Op. 9.) This
Court should affirm.
STATEMENT OF THE CASE
A. The ABA’s Role as Accreditor
The ABA is a not-for-profit voluntary professional association. Since 1952,
the U.S. Department of Education has designated the ABA’s Council as the national
accreditor for programs leading to the J.D. degree. (Compl. ¶ 13.) In that role, the
Council is responsible for determining whether law schools “provide students with
quality education or training worth the time, energy, and money they invest in it.”
Secretary’s Procedures and Criteria for Recognition of Accrediting Agencies, 59 Fed.
Reg. 22250-01 (Apr. 29, 1994). The Council adopts Standards for Approval of Law
Schools (the “Standards”), which set out criteria for ABA accreditation, as well as
Interpretations and Rules of Procedure that govern the accreditation process.
(Compl. ¶¶ 24–25; see also ABA Standards and Rules of Procedure for Approval of
Law Schools 2016-2017, at 51 (“ABA Rules”).3) The ABA regularly monitors ABA-
3 The 2016-2017 ABA rules that were in effect when Malkan submitted his third-party
comment to the ABA, Compl. ¶ 45, are available at https://www.americanbar.org/
content/dam/aba/publications/misc/legal_education/Standards/2016_2017_aba_standards_a
nd_rules_of_procedure.pdf. The Court may consider the 2016-2017 ABA Rules because they
are incorporated by reference in the complaint. See Orgone Capital III, LLC v.
Daubenspeck, 912 F.3d 1039, 1044 (7th Cir. 2019) (citing Milwaukee Police Ass’n v. Flynn,
863 F.3d 636, 640 (7th Cir. 2017)).
–4–
approved law schools’ compliance with the Standards (ABA Rules at 53–54), and
conducts a periodic comprehensive review (referred to as a site evaluation) of each
law school, (id. at 52–53). In addition, anyone can file a written complaint alleging
that a given school is not compliant with the Standards, and such complaints are
then investigated by the Managing Director. (Id. at 73–75.)
B. Malkan’s Employment at SUNY-Buffalo
Malkan began working at SUNY-Buffalo in 2000, when the school offered
him a job as a Clinical Associate Professor of Law and Director of the Legal
Research and Writing Program. (Compl. ¶ 37.) In 2006, the Promotion and Tenure
Committee recommended Malkan’s promotion to full Clinical Professor of Law (id.
¶ 38), and the then-dean offered him a contract that reflected the promotion. The
letter accompanying the contract explained that it was “intended to fully comply”
with ABA rules, “particularly [S]tandard 405(c) and all accompanying
interpretations, especially interpretations 405-6 and 405-8.” (Id. ¶ 39.)
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.” (ABA
Rules at 29.) Interpretation 405-6 explains that a “program of renewable long-term
contracts” satisfies Standard 405(c), and defines “long-term contract” to mean “at
least a five-year contract that is presumptively renewable or other arrangement
sufficient to ensure academic freedom.” (Id. at 29–30.) Malkan alleges that the
contract offered to him in 2006 was “405(c)-compliant,” and that based on the
“405(c)-compliant contract, together with the Law School’s status as an ABA
accredited law school,” he “expect[ed] that his contract renewal would be
–5–
mandatory, in the absence of good cause, upon the expiration of each term of
service.” (Compl. ¶ 41.)
C. SUNY-Buffalo’s Decision Not to Renew Malkan’s Contract
Two years later, then-Dean Makau Mutua notified Malkan that the Law
School would not renew his contract following its expiration in 2009. (Compl. ¶ 42.)
In 2012, Malkan filed suit against the dean, alleging that Mutua had deprived him
of a “property interest in a 405(c)-qualified, presumptively renewable contract and
university title/rank of full clinical professor” without due process. See Malkan v.
Mutua, No. 12-CV-0236A(SR), 2015 WL 13746778, at *3 (W.D.N.Y. Dec. 1, 2015)
(internal quotation marks omitted), report and recommendation adopted, No. 1:12-
CV-00236 (MAT), 2016 WL 7335574 (W.D.N.Y. Dec. 18, 2016). (See also Compl.
¶¶ 42, 55.) The district court granted the dean summary judgment on Malkan’s
claim, holding that Malkan had no protected property interest in a renewed
appointment because state regulations governing term appointments in SUNY
schools did not create any legal right in a renewed appointment. Malkan, 2016 WL
7335574, at *2. The Second Circuit affirmed on the same grounds. Malkan v.
Mutua, 699 F. App’x 81, 83 (2d Cir. 2017) (unpublished). (See also Compl. ¶ 55.)
D. This Litigation
After his unsuccessful suit against the Law School’s dean, Malkan filed his
two-count complaint against the ABA. In Count I, Malkan advances claims for fraud
and negligent misrepresentation based on the ABA’s accreditation of SUNY-Buffalo.
Malkan alleges that the ABA “certified [SUNY Buffalo] to be in compliance with all
ABA accreditation standards, including Standard 405(c)”; that the New York
–6–
Attorney General “successfully argued before the U.S. Court of Appeals” that the
Law School “is not now, and never has been, in compliance with Standard 405(c)”;
and that Malkan “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.” (Compl.
¶¶ 78, 80–81.) Count II seeks a declaratory judgment 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),” which
Malkan contends “would benefit the legal education community” and “restor[e]
[Malkan’s] reputation.” (Compl. ¶ 88–89.)
The ABA moved to dismiss the complaint on three grounds. (Dkt. 21 & 22.)
First, the ABA argued that Malkan did not have Article III standing to pursue
claims against the ABA because it played no part in the dean’s decision to terminate
Malkan’s employment. (Dkt. 22 at 5–7.) Second, the ABA argued that the complaint
failed to state a claim because there is no cause of action for fraudulent or negligent
accreditation. (Id. at 11–14); see, e.g., Ambrose v. New England Ass’n of Sch. &
Colleges, Inc., 252 F.3d 488, 499 (1st Cir. 2001) (“We are confident that Maine would
not blaze a new, unprecedented trail and hold an accreditor liable to a consumer of
the accredited service under a negligent accreditation theory.”). Lastly, the ABA
argued that Malkan’s claims were untimely because they accrued no later than
August 2008, at which time Malkan knew the facts purportedly relevant to his
–7–
claims against the ABA—i.e., that the Law School was declining to renew his
contract and that the Law School was accredited by the ABA. (Dkt. 22 at 14–15.)
The district court dismissed Malkan’s complaint, holding that Malkan lacked
Article III standing for the “simple reason” that Malkan’s injuries were not “fairly
traceable to any decision made by” the ABA. (Op. 8.) In the court’s view, the
complaint “provide[d] zero connection between [the ABA’s] Standard 405(c)
enforcement power and [the dean’s] decision to terminate” Malkan or “any stigma
resulting from that termination.” (Op. 8, 9.) To the contrary, the complaint’s
allegations about Malkan’s termination “state[d] that in 2008, [the dean] made an
independent decision to not renew [Malkan’s] contract without consulting the
faculty.” (Id. at 9 (citing Compl. ¶ 42).) And because the complaint demonstrated
that the dean “made an independent, discretionary decision to terminate” Malkan,
the district court held that Malkan could not satisfy Article III’s traceability
requirement and lacked standing. (Id. at 10.)
Having determined that Malkan failed to satisfy the requirements of Article
III, the district court did not reach the ABA’s alternative arguments that the
complaint failed to state a claim. In light of Malkan’s concession in open court that
“he did not require any further amendments” (id. at 11), the district court entered
judgment on the same day it issued its opinion. (Dkt. 31.) This appeal followed.
SUMMARY OF ARGUMENT
The district court correctly held that Malkan lacks standing to sue the ABA
for one “simple reason”—the Law School dean’s decision to terminate his
employment is not “fairly traceable” to the ABA’s conduct. (Op. 8.) As Malkan now
–8–
acknowledges, the ABA was not “responsible in any way for ordering, influencing, or
approving” that decision, and the ABA was not “required to spring into action to
protect him” from termination. (Br. 3, 5.) A plaintiff cannot invoke the jurisdiction
of an Article III court when his “injury results from the independent action of some
third party not before the court.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26,
41–42 (1976). That principle decides this case.
This result is no different if, as Malkan now urges, the Court focuses on the
alleged violation of Malkan’s “right to due process in federal court based on a
property interest in state employment.” (Br. 3, 19–20.) The remedy for a loss in
federal court is an appeal, not a collateral attack in a suit against a non-party, and
Malkan’s asserted deprivation of due process is no more “fairly traceable” to the
ABA than his termination is. The ABA has no control over the Second Circuit’s
decision-making process, and it was not a party to the case. Nor did the ABA have
any role in creating the regulations that prevented Malkan from claiming a
constitutionally protected property interest in a renewed contract.
Lastly, Malkan argues that the district court should have given some weight
to the “public interest in protecting the integrity of the accreditation process.” (Br.
20–22.) But the federal judicial power under Article III extends only to concrete
cases and controversies, and no amount of “public interest” can overcome the lack of
an injury-in-fact that is “fairly traceable” to the ABA’s conduct. The district court
was right to dismiss Malkan’s complaint.
–9–
STANDARD OF REVIEW
This Court reviews de novo dismissals for lack of Article III standing.
Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 691 (7th Cir. 2015).
ARGUMENT
I. Malkan Lacks Standing to Sue the ABA.
Any party who seeks relief in federal court must establish, as an “irreducible
constitutional minimum,” that he has Article III standing. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). To meet this requirement, Malkan “must show
(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.” Silha
v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015). As the party invoking federal
jurisdiction, Malkan “bears the burden of establishing these elements,” meaning
that he must “clearly . . . allege facts demonstrating each element.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016).
As far as the ABA can tell, Malkan asserts two potential injuries in this
appeal. First, he asserts an injury based on the Law School dean’s initial decision to
terminate his contract, which Malkan argues violated his due-process rights and
Standard 405(c). (See Br. 1–2.) Second, Malkan argues that the ABA was somehow
responsible for the decision to reject his due-process claim against SUNY-Buffalo’s
former dean—and he asserts that this decision, too, constituted a deprivation of due
– 10 –
process. (Br. 3, 19–20.) Neither of Malkan’s theories is based on an injury that is
“fairly traceable” to the ABA.
A. Malkan’s Termination Is Not Fairly Traceable to the ABA.
According to Malkan’s brief, the “sole issue” in this appeal is whether there is
a “causal connection between the Law School’s violation of his right to due process
and the ABA’s” conduct. (Br. 2.) The district court correctly answered that there is
“zero connection.”
As the Supreme Court has explained, an injury is not “fairly traceable” to a
defendant if the injury “results from the independent action of some third party not
before the court,” Simon, 426 U.S. at 41–42, especially when that third party has
broad discretion to act. See Segovia v. United States, 880 F.3d 384, 389 (7th Cir.
2018) (plaintiffs’ injury from not receiving absentee ballots could not be traced to
federal defendants, because the state of Illinois exercised independent “discretion to
determine eligibility for overseas absentee ballots”); DH2, Inc. v. SEC, 422 F.3d 591,
597 (7th Cir. 2005) (no standing where “the injury DH2 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”).
That principle is dispositive here. No injury associated with Malkan’s
termination can be fairly traced to the ABA or its decision to grant accreditation to
SUNY-Buffalo. Malkan does not and cannot allege that the ABA dictates
employment decisions for accredited law schools, or that the ABA played any part in
the dean’s independent decision not to renew his contract. To the contrary, the
complaint alleges that the dean made an independent decision to not renew
– 11 –
Malkan’s contract without consulting faculty. (Compl. ¶ 42.) That exercise of
discretion severs any link between injuries arising from Malkan’s termination and
the ABA’s conduct. See DH2, 422 F.3d at 596–97 (plaintiff lacked standing to
challenge SEC regulations that applied to third parties with whom plaintiff
contracted, because those third parties exercised independent discretion).
Malkan’s brief on appeal even acknowledges that the ABA had nothing to do
with his termination. The ABA, he now concedes, was not “responsible in any way
for ordering, influencing, or approving former-Dean Mutua’s termination of his
faculty appointment” (Br. 3), and he does not contend “that the ABA was required to
spring into action to protect him, personally, against a rogue administrator at his
place of employment” (id. at 5). Going one step further, Malkan even concedes that
the ABA has no power to order a law school to reinstate a professor, pay restitution,
or provide “any other form of individual relief.” (Id. at 17.)
In fact, the only alleged connection between the ABA and Malkan’s
employment dispute is through the ABA’s asserted failure to order the Law School
to comply with ABA Standard 405(c) as Malkan understands it. (See Br. 2 (alleging
that the Law School’s due process violations resulted from the “ABA’s refusal to
order [SUNY-Buffalo] back into compliance with Standard 405(c)”); id. at 6 (“all of
the damage in this matter was caused by the ABA’s acquiescence to SUNY Buffalo’s
repudiation of Standard 405(c)”).) In other words, although Malkan recognizes that
the ABA neither caused his termination nor has any power to reinstate him, he
nonetheless views the ABA as connected to his termination because the ABA should
– 12 –
have (in his view) concluded that the Law School’s decision reflects a failure to
comply with the ABA’s Standards. Even under this theory, Malkan’s alleged harm
is not fairly traceable to the ABA.
In challenging the ABA’s decision not to find a violation of its Standards,
Malkan runs headlong into the Supreme Court’s “decisions [that] consistently hold
that a citizen lacks standing to contest the policies of the prosecuting authority
when he himself is neither prosecuted nor threatened with prosecution.” Linda R.S.
v. Richard D., 410 U.S. 614, 619 (1973). In Linda R.S., for example, the plaintiff
complained that the local district attorney failed to prosecute the father of her child,
who had refused to provide child support. Notwithstanding the fact that the threat
of criminal prosecution might have made the father more likely to provide such
support, the Court held that the plaintiff lacked standing to challenge the decision
not to prosecute. See id. The connection between Malkan’s asserted injury and the
ABA’s accreditation decisions are, if anything, more tenuous. At least in Linda R.S.,
there was some prospect that prosecution would, “at least in the future, result in
payment of support” to the plaintiff. Id. at 618. Here, Malkan does not even allege
that a finding of noncompliance would give him his job back, now or ever.
Lastly, under Malkan’s theory—that SUNY-Buffalo violated the ABA’s
Standards when it decided not to renew his contract—the ABA did not cause
Malkan’s injury, but, if anything, sought to prevent it. That is why Malkan claims
his lawsuit “seek[s] to hold the ABA accountable for the University’s accreditation
fraud.” (Br. 3. (emphasis added); see also id. at 3–4 (“The complaint alleges that the
– 13 –
University subverted the accreditation process by lying to the ABA about its 405(c)-
compliance on both its 2002 and 2009 Self-Study Reports.” (emphasis added)); id. at
16 (noting the “ABA’s endorsement of the University’s accreditation fraud”).) In
Malkan’s own view, the ABA is a fellow victim of the alleged fraud; the Law School’s
dean is the source of any alleged injury Malkan has suffered. That Malkan could not
get relief from the Law School’s dean in court, however, does not give him standing
to “hold the ABA accountable” for the dean’s alleged misconduct. (Br. 3.)
B. The Prior Federal Decision Rejecting Malkan’s Due-Process

Claim Cannot Confer Standing to Sue the ABA.
Having conceded that he cannot “blam[e] the ABA for his wrongful
termination” (Br. 3), Malkan pivots to a new theory on appeal. He now asserts that
he “was deprived of his right to postdeprivation due process in federal court,” and
that that denial is traceable to the ABA. (Br. v.; see also id. at 3–4.) Malkan’s theory
appears to be that he was harmed when, in Malkan’s prior lawsuit, the Attorney
General of New York successfully advanced arguments on behalf of SUNY-Buffalo’s
dean that were inconsistent with the Law School’s compliance with ABA Standard
405(c). (Id. at 3 (“As recited in the complaint, the dispositive fact is that the
University . . . 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) . . . . ”).) He further claims that this purported injury is
traceable to the ABA because the ABA was somehow required to take action against
the Law School when the ABA “became aware that an ABA-accredited law school
had repudiated a mandatory accreditation standard in federal district court.” (Id. at
– 14 –
4.) But neither Malkan’s loss in his federal suit against the dean, nor any
arguments advanced in that suit—which did not involve the ABA—can establish
standing for Malkan’s claims against the ABA.
Malkan’s Loss in His Prior Federal Suit Is Not An Injury

In Fact.
Malkan’s new theory does not satisfy the “first and foremost” element of
standing—an “injury in fact.” Spokeo, 136 S. Ct. at 1547. To meet this requirement,
Malkan must allege that he “suffered ‘an invasion of a legally protected interest.’”
Id. at 1548. But Malkan plainly has no legally protected interest in preventing a
litigation adversary from making a successful argument in defense against his
claim.
Just as Malkan did not have a right to be unopposed in his lawsuit against
SUNY-Buffalo’s dean, Reichenberger v. Pritchard, 660 F.2d 280, 285 (7th Cir. 1981),
he had no right to litigate his claims without having to contend with SUNY-
Buffalo’s meritorious due-process arguments. Cf. Easter House v. Felder, 910 F.2d
1387, 1407 (7th Cir. 1990) (holding that the costs of answering investigator’s
questions and making files available are not constitutional injuries); Reid L. v.
Illinois State Bd. of Educ., 289 F.3d 1009, 1022 (7th Cir. 2002) (teachers had “no
legally protectable interest in taking easy classes rather than hard ones”). That
principle applies with special force here, where the Second Circuit accepted the very
argument that Malkan contends the ABA should somehow have prevented SUNY-
Buffalo from making—that New York regulations governing term appointments did
not create any legal right in a renewed appointment. Simply put, Malkan had no
– 15 –
legally protected interest in stopping the dean from demonstrating to the federal
courts that his claim lacked merit.
Neither the Prior Federal Decision Against Malkan, Nor

the Dean’s Successful Arguments in That Lawsuit, Are
“Fairly Traceable” to the ABA.
Even if Malkan could somehow claim a legally cognizable injury in fact
resulting from his prior lawsuit, that purported injury would not be fairly traceable
to the ABA.
First, Malkan’s assertion that he “was deprived of his postdeprivation due
process in federal court” (Br. v.) is an attempt to bring a collateral attack on the
decision in his prior lawsuit against the Law School’s dean. But that attempt cannot
get off the ground. The proper remedy for a disappointed litigant in a lower federal
court proceeding is to appeal. See 28 U.S.C. §§ 1291, 1254. Malkan took that route
when he appealed the district court’s decision in his suit against the Law School’s
dean, and he could have sought certiorari in the Supreme Court if he thought the
Second Circuit’s decision was wrong or unfair. Moreover, his attempt to suggest in
this separate proceeding that the ABA is somehow responsible for his asserted
deprivation of due process in the prior federal lawsuit reflects a fundamental
misunderstanding of the role of litigants—let alone non-parties—in judicial
proceedings. Litigants can and do try to persuade courts to issue decisions in their
favor, but the ultimate decision is the court’s alone. That a court may accept a
party’s argument does not make the decision “fairly traceable” to an unrelated non-
party.
– 16 –
Even if a judicial decision could be attributed to a litigant, that principle
would not justify attributing the decision in Malkan’s prior lawsuit to the ABA,
which was not a party and had nothing to do with Malkan’s suit against the Law
School’s dean. Malkan does not allege that the ABA contributed to the New York
Attorney General’s legal strategy or consulted with the state about which
arguments to make. To the contrary, under Malkan’s own theory, the ABA was not
aware of the case until after a federal magistrate judge issued an adverse decision.
(Br. xi.) At that point, the New York Attorney General had already made the
(ultimately successful) argument that Malkan lacked a constitutionally protected
interest in a renewed contract. (Id. at xiv.) The final decision, like Malkan’s
termination, therefore resulted from the independent action of third parties not
before the Court—namely, the Western District of New York and the Second
Circuit, relying on the arguments advanced by the New York Attorney General.
Simon, 426 U.S. at 41–42; Segovia, 880 F.3d at 389.
Malkan’s new standing theory also does not account for the actual reason
why his due-process claim was rejected, which the Second Circuit made clear had
nothing to do with whether the Law School complied with the ABA’s Standards. The
court of appeals addressed the question whether Malkan had a constitutionally
protected property interest in a renewed contract. That question, according to the
Second Circuit, depended on whether there were “mutually explicit understandings
that support his claim” to a constitutionally protected property interest, and
whether his claimed interest is “contrary to the express provisions of regulations
– 17 –
and statutes.” Malkan, 699 F. App’x at 83. The relevant New York regulations
expressly prohibit term appointments from “creat[ing] any manner of legal right,
interest or expectancy in any other appointment or renewal.” Id. (quoting 8
N.Y.C.R.R. § 335.13). For that reason, the Second Circuit rejected Malkan’s due-
process claim—and explicitly declined to decide “whether [SUNY-Buffalo] is
misrepresenting the employment of its clinical professors to the American Bar
Association.” Id. The Law School’s supposed accreditation fraud was legally
irrelevant because the school’s “accreditation reports” and the ABA’s Standards
could not “override[]” state regulations. Id.
In sum, as the Second Circuit explained, Malkan’s due process claim against
Dean Mutua failed because it lacked merit under governing New York law. 699 F.
App’x at 83. Nothing in the ABA Standards or in the ABA’s enforcement of its own
Standards determined that outcome. Thus, even if the ABA had enforced Standard
405(c) according to Malkan’s preference, and declared that the Law School was not
in compliance with that Standard, the Second Circuit’s analysis of New York law
would have precluded any victory for Malkan regardless. In light of the Second
Circuit’s analysis, the outcome of Malkan’s prior lawsuit is neither a legally
cognizable injury in fact nor “fairly traceable” to the ABA. And because Malkan has
failed to identify any injury in fact traceable to the ABA, his complaint was properly
dismissed for lack of standing.
– 18 –
II. Any Asserted “Public Interest” Cannot Create an Article III Case or
Controversy.
Hoping to establish some basis for standing, Malkan lastly faults the district
court for not giving any weight to the “interest of the clinical legal education
community in the integrity of the accreditation process.” (Br. 21.) Malkan contends
that this interest is best served by a federal lawsuit allowing him to probe “what
justification was submitted by SUNY Buffalo for repudiating Standard 405(c)” and
forcing SUNY-Buffalo to disclose what policies it has in place for protecting the
academic freedom of its clinical faculty. (Id. at 22.) But “[t]his mere desire for
information is not cognizable without a corresponding injury-in-fact.” Milwaukee
Police Ass’n v. Bd. of Fire & Police Comm’ rs of City of Milwaukee, 708 F.3d 921, 928
(7th Cir. 2013).
Standing requires an “‘injury in fact’ that is [] concrete and particularized,”
Silha, 807 F.3d at 173 (citation omitted), meaning that the injury “must affect
[Malkan] in a personal and individual way.” Lujan, 504 U.S. at 560 n.1. Harms that
are “shared in substantially equal measure by . . . a large class of citizens . . . do[]
not warrant exercise of jurisdiction.” Warth v. Seldin, 422 U.S. 490, 499 (1975).
Examples of such “generalized grievance[s]” include an injury to the interest in
seeing that the law is obeyed or procedures are followed. See Lujan, 504 U.S. at 576.
Malkan cannot claim that any supposed harm to the legal education community is
“concrete and particularized” to him. The district court therefore was correct to give
no weight to the asserted public interests that Malkan claims to champion. Because
– 19 –
he alleges no injury in fact to himself that is fairly traceable to the ABA, he has no
standing to invoke the jurisdiction of a federal court.
CONCLUSION
For these reasons, the ABA respectfully requests that this Court affirm the
district court’s dismissal.
Dated: July 8, 2019 Respectfully submitted,
/s/ Tacy F. Flint

TACY F. FLINT
STEVEN J. HOROWITZ
BENJAMIN I. FRIEDMAN
SIDLEY AUSTIN LLP
One South Dearborn
Chicago, IL 60603
(312) 853-7000
– 20 –
CERTIFICATE OF COMPLIANCE WITH

FRAP 32(A) & CIRCUIT RULE 32-1
Pursuant to Fed. R. App. P. 32(g)(1) and Circuit Rule 32-1, the attached
answering brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type-style requirements of Fed. R. App. P. 32(a)(6) because this document
has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in
12-point Century Schoolbook font. In addition, the attached brief complies with Fed.
R. App. P. 32(a)(7) because, excluding the parts of the document exempted by Fed.
R. App. P. 32(f), this documents contains 5,101 words.
July 8, 2019 /s/Tacy F. Flint

Tacy F. Flint
CERTIFICATE OF SERVICE
I, Tacy F. Flint, a member of the Bar of this Court, hereby certify that on July
8, 2019, I electronically filed the foregoing brief with the Clerk of Court for the
United States Court of Appeals for the Seventh Circuit by using the appellate
CM/ECF system. I certify that all participants in the case are registered CM/ECF
users and that service will be accomplished by the appellate CM/ECF system.
July 8, 2019 /s/Tacy F. Flint

Tacy F. Flint

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Case: 19-1958 Document: 9 RESTRICTED Filed: 07/08/2019 Pages: 27

UNITED STATES COURT OF APPEALS

AMERICAN BAR ASSOCIATION, COUNSEL OF THE SECTION OF LEGAL

Appeal from the U.S. District Court for the

APPELLEES’ RESPONSE BRIEF

Counsel for Defendants-Appellees

Appellate Court No: 19-01958

Short Caption: Jeffrey Malkan v. American Bar Association, et al.

American Bar Association

(3) If the party or amicus is a corporation:

Attorney's Signature: s/ Tacy F. Flint Date: 7/8/2019

Address: 1 S. Dearborn, Chicago, IL 60603

Phone Number: (312) 853-7875 Fax Number: (312) 853-7036

E-Mail Address: tflint@sidley.com

STATEMENT REGARDING ORAL ARGUMENT ...................................................... 1

JURISDICTIONAL STATEMENT ............................................................................... 1

ISSUE PRESENTED ..................................................................................................... 2

STATEMENT OF THE CASE ....................................................................................... 4

A. The ABA’s Role as Accreditor .................................................................. 4

B. Malkan’s Employment at SUNY-Buffalo ................................................ 5

C. SUNY-Buffalo’s Decision Not to Renew Malkan’s Contract .................. 6

D. This Litigation .......................................................................................... 6

SUMMARY OF ARGUMENT ....................................................................................... 8

STANDARD OF REVIEW ........................................................................................... 10

I. Malkan Lacks Standing to Sue the ABA. .............................................. 10

A. Malkan’s Termination Is Not Fairly Traceable to the ABA. ..... 11

B. The Prior Federal Decision Rejecting Malkan’s Due-Process

DH2, Inc. v. SEC,

Easter House v. Felder,

Linda R.S. v. Richard D.,

Lujan v. Defenders of Wildlife,

Orgone Capital III, LLC v. Daubenspeck,

Reid L. v. Illinois State Bd. of Educ.,

Remijas v. Neiman Marcus Grp.,

Segovia v. United States,

Silha v. ACT, Inc.,

Simon v. E. Ky. Welfare Rights Org.,

Spokeo, Inc. v. Robins,

28 U.S.C. § 1291 ................................................................................................... 2, 3, 15

28 U.S.C. § 1254 ....................................................................................................... 3, 15

28 U.S.C. § 1332(a)(1) .................................................................................................... 1

59 Fed. Reg. 22250 (Apr. 29, 1994) ............................................................................... 4

STATEMENT REGARDING ORAL ARGUMENT

appeal calls for the straightforward application of established standing principles to

Appellant’s complaint. Oral argument is unlikely to significantly aid the Court’s

resolution of the appeal.

Pursuant to Circuit Rule 28(b), Appellees state that Appellant Jeffrey

correct and dismissal was proper.

diversity suit under 28 U.S.C. § 1332(a)(1). Malkan is a citizen of New York.

Appellee American Bar Association (“ABA”) is an Illinois not-for-profit corporation

and not separately incorporated. Appellee Accreditation Committee of the Section of

to the House of Delegates, Items No. 111A-E, https://www.americanbar.org

ts/2018_annual_electronic_resolution_book.pdf (last visited July 8, 2019). The

complaint alleged that the amount in controversy exceeds $75,000, exclusive of

interest and costs.

This Court has appellate jurisdiction under 28 U.S.C. § 1291. On May 8,

filed a notice of appeal on May 17, 2019. (Dkt. 32.)

arising from (1) a school’s independent decision to terminate his employment or

(2) any deprivation of due process in proceedings challenging that termination.

there is “zero connection” between Malkan’s termination-related injuries and the

ABA’s decision to accredit SUNY-Buffalo. (Op. 9.2)

“responsible in any way for ordering, influencing, or approving” that termination.

Malkan’s complaint and confirms that dismissal was appropriate.

the irrelevance of the ABA’s Standards. (Br. x–xi.)

Malkan v. Am. Bar Ass'n - ABA's Appellee's Brief

Malkan v. Am. Bar Ass'n - ABA's Appellee's Brief