Jeffrey Malkan v. American Bar Association ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 13, 2019
Decided December 10, 2019
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19‐1958
JEFFREY MALKAN, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v. No. 18 CV 7810
AMERICAN BAR ASSOCIATION, et al., John Robert Blakey,
Defendants‐Appellees. Judge.
ORDER
After his contract as a clinical law professor was not renewed, Jeffrey Malkan
brought, and lost, a federal suit for wrongful termination against the law school dean
who fired him. Malkan then brought this suit against the American Bar Association,
arguing the ABA had failed to enforce its own accreditation standards, which amounted
to fraud and negligent misrepresentation against him. The district court concluded that
Malkan lacked standing to sue under Article III of the U.S. Constitution because he did
not allege an injury traceable to an action of the ABA. We agree and affirm the
judgment, with one minor modification.
No. 19‐1958 Page 2
Background
In 2000, Jeffrey Malkan accepted a position as Clinical Associate Professor of Law
at the State University of New York at Buffalo School of Law, with a separate
appointment as Director of the Legal Research and Writing Program. Six years later, the
Law School recommended his reappointment and promotion to Clinical Professor of
Law.
Malkan was offered a three‐year term contract by the law school’s then‐dean,
who represented that the contract was intended to comply with the ABA’s rules,
including Accreditation Standard 405(c). Standard 405(c) requires law schools to afford
full‐time clinical faculty a “form of security of position reasonably similar to tenure.”
ABA STANDARDS AND RULES OF PROCEDURE FOR APPROVAL OF LAW SCHOOLS, at 29
(2016–2017). Several interpretations accompany Standard 405. Id. at 29–30.
Interpretation 405‐6 explains that a law school can satisfy Standard 405(c) by providing
a separate tenure track or a program of renewable long‐term contracts. Id. A “long‐term
contract,” according to this interpretation, is either a presumptively renewable five‐year
contract or some “other arrangement sufficient to ensure academic freedom.” Id. at 30.
Malkan accepted the contract, assuming its compliance with Standard 405(c)
meant it was presumptively renewable, and that he could not be terminated without
cause and due‐process protections in the form of a vote by tenured faculty.
Two years later, the Law School’s interim dean Makau Mutua—without faculty
input or recommendation—issued a notice of non‐renewal that terminated Malkan’s
employment at the end of his contract, in August 2009. Malkan says he is not alone, and
that at the law school between 2009 and 2016 Mutua terminated every single 405(c)‐
protected clinical professor.
Malkan sued Mutua in the U.S. District Court for the Western District of New
York, alleging that Mutua violated Malkan’s due process rights by unilaterally declining
to renew his contract. See Malkan v. Mutua, No. 1:12‐CV‐00236 (MAT), 2016 WL 7335574
(W.D.N.Y. Dec. 18, 2016). The district judge, adopting a magistrate judge’s
recommendation, entered summary judgment for Mutua. Malkan, 2016 WL 7335574, at
*2. As the court explained, state regulations governing appointments in SUNY schools
limit a term appointment to no longer than three years, so Malkan had no “legal right,
No. 19‐1958 Page 3
interest, or expectancy” in a renewed appointment. Id.; 8 N.Y.C.R.R. §§ 338.2, 335.10.
The Second Circuit affirmed, agreeing that the state regulations prevented the law
school from providing presumptively renewable contracts and, therefore, Malkan was
not entitled to have his contract renewed. Malkan v. Mutua, 699 Fed. Appx. 81, 82–83 (2d
Cir. 2017). Those state regulations, the appeals court concluded, could not be
overridden by the “[law school’s] by‐laws, customs, accreditation reports, the [ABA’s]
standards, [or] his contract.” Id. at 83.
Meanwhile, in 2016 Malkan had contacted the ABA’s Accreditation Committee
and stated that the law school had repudiated Standard 405(c) because, as the
magistrate judge’s recommendation found, New York regulations prevented the law
school from granting term appointments greater than three‐years. Those state
regulations, Malkan argued, made compliance with Standard 405(c) impossible because
they prevented the law school from honoring his presumptively renewable contract.
The Committee took no enforcement action against the law school. After the Second
Circuit affirmed the district court’s judgment, Malkan provided the Committee with a
copy of that decision as conclusive proof that the law school had repudiated Standard
405(c). Again, he urged that because the law school could not legally honor his
presumptively renewable contract, the law school could not possibly comply with
Standard 405(c). The Accreditation Committee’s Counsel responded that Malkan had
failed to allege the law school had violated the ABA Standards.
Malkan then brought this diversity action against the American Bar Association,
its Council of the Section of Legal Education and Admissions to the Bar, and its
Accreditation Committee (collectively “the ABA”). He sought damages, alleging that
the ABA’s continued accreditation of the law school, despite evidence that the school
had repudiated Standard 405(c), constituted common law fraud and negligent
misrepresentation under Illinois law. This fraud, Malkan asserted, enabled the Attorney
General of New York to persuade the Second Circuit that the law school could not
legally comply with Standard 405(c). He also sought a declaratory judgment that the
law school was not in compliance with Standard 405(c).
The ABA moved to dismiss the complaint for lack of standing. The ABA argued
it had nothing to do with the decision to terminate Malkan’s contract, so Malkan had
not alleged any injury traceable to the ABA. The district court agreed, finding “zero
No. 19‐1958 Page 4
connection” between Malkan’s termination‐related injuries and the ABA’s decision to
accredit the law school.
Analysis
On appeal, Malkan challenges the district court’s standing decision. He argues
the district court misunderstood the injury he attributes to the ABA: He seeks redress
not for the stigma caused by his wrongful discharge, but rather for the violation of his
due‐process right to a fair hearing in his suit against former‐Dean Mutua, an injury
Malkan traces to the ABA’s refusal to bring the law school into compliance with
Standard 405(c). By Malkan’s account, the ABA failed to take enforcement action
against the law school for repudiating Standard 405(c), despite having conclusive proof
as early as 2016—when Malkan filed his first complaint—that state regulations
prevented the law school from granting presumptively renewable contracts.
To establish Article III standing, Malkan must show that he has suffered a
concrete and particularized injury that is fairly traceable to the challenged conduct of
the ABA, and which is likely to be redressed by a favorable decision. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560‐61 (1992). But Malkan’s attempt to connect the ABA to his
due‐process right to a fair hearing in his case against Mutua fails because the final
decision in that case resulted from the independent action of third parties (e.g., former‐
Dean Mutua, the attorney general of New York, the Western District of New York
district court, and the Second Circuit appellate court). A plaintiff does not have Article
III standing where the alleged 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);
see Segovia v. United States, 880 F.3d 384, 388–89 (7th Cir. 2018). The ABA had nothing to
do with Malkan’s termination, and it was not a party to his suit against former‐Dean
Mutua. The ABA was not even aware of the law school’s supposed repudiation of
Standard 405(c) until 2016, after the law school had already raised its defenses to
Malkan’s termination in federal court. Further, the Second Circuit expressly declined to
consider any potential argument regarding the law school’s alleged accreditation fraud
and the ABA, and instead based its decision solely on the New York regulations that
precluded SUNY schools from providing presumptively renewable contracts. Malkan,
699 Fed. Appx. at 83.
No. 19‐1958 Page 5
In his reply brief, Malkan argues the district court erred by dismissing his
complaint with prejudice without giving him an opportunity to amend. We conclude
the district court did not abuse its discretion. As an initial matter, arguments raised for
the first time in a reply brief are waived. See United States ex rel. Berkowitz v. Automation
Aids, Inc., 896 F.3d 834, 843 (7th Cir. 2018). Waiver to the side, it is true that a district
court should grant a plaintiff at least one opportunity to amend the complaint before
dismissing the action under Rule 12(b)(6), but only if doing so would not be futile. See
Runnion v. Girl Scouts, 786 F.3d 510, 519–20 (7th Cir. 2015). Malkan has presented
nothing that suggests amendment would not be futile. He does not contest that he
represented to the district court that his complaint did not require any amendments.1
Further, his reply brief does not hint at any argument as to how he could amend his
complaint to avoid dismissal. At oral argument, we inquired what a post‐remand
amendment would include, and Malkan asserted standing would have been obvious if
the district court had properly understood his theory of the case. We have already
rejected that argument.
One modification to the district court’s judgment is required, however. “When a
district court dismisses an action for lack of jurisdiction, the dismissal must be without
prejudice.” Lennon v. City of Caramel, Ind., 865 F.3d 503, 509 (7th Cir. 2017) (modifying
dismissal for lack of jurisdiction to be “without prejudice” and affirming without
remand); Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (dismissing a
suit for lack of jurisdiction cannot be with prejudice, a merits disposition that only a
court with jurisdiction can render). The district judge’s case procedure on a motion to
dismiss, with its notable and important goal of efficiency, very well may lead to
dismissal of the case. See supra note 1. But here that dismissal must be without prejudice
because Malkan’s suit was dismissed for want of subject matter jurisdiction.
Because Malkan’s purported due‐process injury is not traceable to the ABA’s
enforcement actions, the judgment in this case—as modified to be without prejudice—is
AFFIRMED. Notwithstanding this modification, should Malkan sue the ABA again, he
1
“If the non‐moving party elects not to amend its pleading to address the purported deficiencies
raised by [a] motion [to dismiss],” according to a case procedure adopted by Judge Blakey, “the Court
may dismiss the case with prejudice and not provide further opportunity to amend the pleading absent
extraordinary circumstances.” See N.D. ILL., JUDGE JOHN ROBERT BLAKEY, CASE PROCEDURES: MOT. TO
DISMISS.
No. 19‐1958 Page 6
does so at his own peril, given the presumed futility of amending his claims and his
inability to offer anything new before the district court as well as in this appeal.