A law professor challenging his ouster from University at Buffalo Law School can pursue simultaneous actions in federal court and the state Court of Claims, a Western District judge has held.

Judge Richard Arcara (See Profile) found no reason to stay Professor Jeffrey Malkan’s federal action, which alleges that officials at Buffalo Law deprived him of a property right without due process, while an overlapping breach of contract action continues in the Court of Claims.

Arcara said in Malkan v. Mutua, 12-cv-236, that the two cases are not “entirely duplicative” or “genuinely parallel,” and held the defendants to a considerably higher “exceptional circumstances” standard than the one applicable when parallel actions are pending in state court. He said the defendants “fail even to make the preliminary, threshold showing that is necessary to warrant the Court’s consideration of defendants’ exceptional circumstances motion for a stay.”

Malkan was hired as a clinical associate professor and director of legal research and writing program in 2000. He was promoted to professor in 2006. At that time, he entered into a three-year employment contract under state university policy. However, since American Bar Association accreditation standards call for five-year contracts for full professors, Malkan’s contract included an automatic two-year extension.

According to the decision, Makau Mutua, shortly after becoming interim dean in 2008, removed Malkan as director of the legal research and writing program. Six months later, Mutua notified Malkan that his contract as a clinical professor would expire at the end of the 2008-09 academic year and would not be renewed. Malkan contends Mutua refused to discuss the matter with him or the faculty grievance committee, and that the committee chairman, defendant Charles Ewing, refused to take the matter before the faculty, as required.

Malkan responded with several actions: a civil rights claim in federal court, a breach of contract action in state court and an administrative matter before the Public Employment Relations Board in Albany.

In the Court of Claims case, the state university system claims that, ABA standards notwithstanding, the former dean had no right to promise Malkan an automatic two-year extension to the three-year contract, in violation of state policy.

The federal case before Ancara is a Fourteenth Amendment claim alleging that the employment contract gave Malkan a property right that could only be rescinded with due process. The defendants moved to stay the federal matter until the state case was resolved.

Arcara, however, refused.

He found that a ruling against Malkan in the Court of Claims “would not necessarily preclude a finding by this Court of a viable property interest in the plaintiff’s continued employment with the State.” He also said that federal courts are justified in staying an action within its subject matter jurisdiction in deference to a state court action “only in truly exceptional circumstances” that do not exist here.

“The Second Circuit has held that the existence of related and overlapping subject matter with a state proceeding is insufficient to permit entry of a stay,” Arcara wrote, citing Alliance of American Insurers v. Cuomo, 854 F.2d 591 (1988).

Arcara also said the defendants in the two actions are different, with the Court of Claims action targeting the State University of New York (SUNY) system and the federal claim naming Mutua and Ewing as defendants.

“While the defendants are in privity with SUNY for some purposes, and may have some interests aligned with those of SUNY in the Court of Claims proceeding, the university is distinct from the defendants, who are sued here in their individual capacities and face personal liability without the protection of the State’s sovereign immunity,” Arcara wrote.

The judge rejected most of the defendants’ motions to dismiss various elements of the claim, generally on Eleventh Amendment immunity grounds.

For instance, the court said there is no Eleventh Amendment bar to Malkan’s claim for reinstatement to the position of clinical professor or demand for expungement of any derogatory information in his personnel file. However, Arcara did hold that the federal court cannot award Malkan back pay or front pay in equitable relief.

“Because these forms of relief would impose a monetary liability directly on the state treasury, they are barred by the doctrine of sovereign immunity and the Eleventh Amendment to the United States Constitution,” Arcara wrote.

He noted that the Second Circuit has specifically found that a demand for back pay is barred by the Eleventh Amendment (see Dwyer v. Regan, 777 F.2d 825, 1985). The circuit apparently has not directly addressed front pay, Arcara noted, but the issue is the same.

“Although the Second Circuit does not seem to have ruled on this specific issue, the Court finds that front pay is unavailable as an alternative to reinstatement in an official-capacity suit against a state official where it will be paid from a state treasury,” Arcara said.

In an interview, Malkan said he is seeking punitive damages and relief for emotional harm in the federal action, $1.3 million in back and front pay in the Court of Claims and reinstatement plus back pay from the public employment board.

“The decision means we go forward and they will have to answer the complaint,” Malkan said. “I think the judge signaled pretty strongly that if the facts as alleged prove true, there has been some serious wrongdoing by the dean and vice dean.”

Malkan, who lives in Suffolk County, said he has no intention of returning to Buffalo, regardless of the action for reinstatement.

“I have no real desire to stay someplace if the dean doesn’t like me and I am not appreciated,” he said.

Malkan is represented in the federal action by Frederic Ostrove of Leeds Brown Law in Nassau County.

Ostrove said the decision “certainly broadens the available forums of relief and opens the possibility of going to federal court” and eliminating the “home field advantage” of the attorney general.

“This decision ensures that professors can exercise their constitutional right to have their dispute heard by a jury as opposed to one Court of Claims judge,” Ostrove said.

The defendants were represented by Assistant Attorney General David Sleight. The attorney general’s office declined to comment.