Paul L. Caron

Wednesday, December 18, 2019

7th Circuit Dismisses Fired SUNY-Buffalo LRW Prof's Fraud Claim Against The ABA

Following up on my prior posts (links below):  Malkan v. American Bar Association, No. 19‐1958 (7th Cir. Dec. 10, 2019):

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.

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. 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.” 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.

Prior TaxProf Blog coverage:

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