“One of the liberty interests protected by the Fifth Amendment is the right to follow a chosen profession free from unreasonable governmental interference.”
How later courts described this case
- “One of the liberty interests protected by the Fifth Amendment is the right to follow a chosen profession free from unreasonable governmental interference.”
- Arguments raised for the first time on appeal are forfeited, absent “exceptional circumstances[.]”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 18, 2025 Decided July 8, 2025
No. 24-7027
DARIAN MCKINNEY,
APPELLANT
v.
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-02137)
Leslie McAdoo Gordon argued the cause and filed the
briefs for appellant.
Holly M. Johnson, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellee. With her on the brief were Brian
L. Schwalb, Attorney General, Caroline S. Van Zile, Solicitor
General, Ashwin P. Phatak, Principal Deputy Solicitor
General, and Thais-Lyn Trayer, Deputy Solicitor General.
Before: PILLARD and PAN, Circuit Judges, and EDWARDS,
Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge PAN.
Opinion concurring in part and dissenting in part filed by
Circuit Judge PILLARD.
PAN, Circuit Judge: Appellant Darian McKinney was
employed by the District of Columbia Public Schools
(“DCPS”) as a health and physical-education teacher for four
years. During his tenure, DCPS investigated him for sexual
harassment, and he filed a grievance against DCPS. The parties
resolved both disputes by entering a Settlement Agreement. As
part of the deal, McKinney resigned from DCPS, with the
understanding that he was eligible to reapply for teaching
positions in the D.C. public school system. When McKinney
reapplied, however, DCPS blocked him from returning because
he allegedly failed a background check.
McKinney sued the District of Columbia, alleging that
DCPS breached the Settlement Agreement by not fairly
considering his employment applications. He further claimed
that DCPS deprived him of property and liberty without due
process of law. The district court dismissed his Complaint for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). We affirm.
I.
A. Factual Background1
McKinney is certified to teach health and physical
education in D.C. and in Maryland. When DCPS hired him in
1
“Because this case comes to us at the pleading stage, we assume
the truth of the facts alleged in the operative complaint.” DeVillier
v. Texas, 144 S. Ct. 938, 941 n.1 (2024).
3
2015, he initially failed a background check. But he appealed
that decision and prevailed. He then taught in D.C. public
schools without incident for three years, from fall 2015 to
spring 2018.
During the 2018 school year, DCPS conducted a new
background check on McKinney. The background check was
prompted by an “event” that the Complaint does not describe
in any detail. Compl. ¶ 16. Around the same time, “a separate
dispute” arose between McKinney and DCPS, which
McKinney litigated administratively. Id. ¶ 17.
In the summer of 2019, McKinney interviewed for a
teaching job at Kelly Miller Middle School, a DCPS school.
He received and accepted an offer. But then, the Career Office
advised McKinney that he had failed a background check and
thus was ineligible to be hired. Once again, McKinney
successfully appealed the background-check determination.
By the time the issue was resolved, however, the position at
Kelly Miller was no longer available.
McKinney and DCPS then entered a Settlement
Agreement in the fall of 2019, under which McKinney agreed
to resign from DCPS and DCPS agreed to remove any
reference to a “substantiated sexual harassment allegation”
from his personnel folder. The Settlement Agreement resolved
“any and all claims which may arise or have arisen from
[McKinney’s] separation of employment from DCPS . . .
including, but not limited to, all claims in Mr. McKinney’s
grievance . . . related to Mr. McKinney’s separation from
4
DCPS and any related substantiated sexual harassment
allegations.” Settlement Agreement 1 (J.A. 24).2
Under the Settlement Agreement, McKinney was deemed
“excessed” pursuant to his union’s Collective Bargaining
Agreement, meaning that DCPS eliminated his position.3 A
teacher who is “excessed” before qualifying for retirement
benefits normally has two options: (1) He may take a $25,000
buyout and surrender his eligibility for reemployment with
DCPS for three years; or (2) he may remain employed for an
additional year, during which time he may seek to secure
reemployment by DCPS that would allow him to incur no break
in service for pension purposes. McKinney, however,
negotiated favorable terms that got him the best of both worlds:
He received a $25,000 buyout without foregoing eligibility for
reemployment for three years. Instead, he was “allowed to
apply for teaching positions at DCPS starting the 2020–2021
school year.” Settlement Agreement 1 (J.A. 24). If he were
rehired within a year of signing the Agreement, McKinney
would be treated as having no break in service for purposes of
his pension benefits, salary eligibility, and forfeited sick leave.
In July 2020, McKinney interviewed for a new teaching
position at Kelly Miller, and received an offer, which he
accepted. But the Career Office informed McKinney that he
was ineligible to be hired because he had failed the background
check. McKinney alleges that no background check actually
2
The Settlement Agreement is before us because it was
“incorporated in the complaint.” N. Am. Butterfly Ass’n v. Wolf, 977
F.3d 1244, 1249 (D.C. Cir. 2020).
3
The parties agree that the court may properly consider the
Collective Bargaining Agreement as a matter of public record. See
Kaspersky Lab, Inc. v. Dep’t of Homeland Sec., 909 F.3d 446, 464
(D.C. Cir. 2018).
5
took place at that time, and that “no legitimate basis” existed
for him to fail one. Compl. ¶ 36. McKinney “attempted to
appeal the alleged August 2020 ‘failed’ background check in
the same manner as he had appealed the earlier background
check determinations.” Id. ¶ 37. But, unlike before, he did not
receive a written notice about the failed background check,
with instructions about his appellate rights and how to appeal.
Although he “repeatedly contacted DCPS requesting to
appeal,” “DCPS never responded.” Id. ¶¶ 48–49.
In early 2021, McKinney applied for additional DCPS
teaching positions for the 2021 school year. He did not receive
an interview, let alone an offer. But the Career Office
nevertheless informed him that he was ineligible for
employment due to a failed background check. Again, he
received no mailed written communication. McKinney
contacted DCPS to appeal the allegedly failed background
check but was ignored.
In the spring of 2021, McKinney applied for yet another
teaching position with DCPS, this time at Eliot Hine Middle
School. He interviewed for the job, received an offer, and
accepted. But once more, the Career Office informed him that
he had failed the background check. He attempted to appeal
“by requesting that DCPS provide him with the appropriate
materials to appeal” but received no response. Compl. ¶¶ 69–
70.
McKinney never secured a new job with DCPS. He
alleges that no background check was ever conducted after his
separation from DCPS and that his failure to be rehired
therefore cannot be attributed to failing any background check.
Instead, he claims, “DCPS personnel were instructed by DCPS
personnel with authority over them not to effectuate the hiring
of Mr. McKinney.” Compl. ¶ 76. He asserts that, absent the
6
“bad-faith run-around from DCPS,” he “would have been hired
in 2020 and 2021 by DCPS” and would have taught in the D.C.
public school system for the rest of his career. Id. ¶¶ 74–75,
84–85.
Today, McKinney teaches and coaches at a public school
in Prince George’s County, Maryland. But he believes that
DCPS unlawfully deprived him of the higher salary and other
perks that he would have received as a DCPS teacher. Another
year as a DCPS teacher would have entitled him to a pension,
retirement eligibility, forfeited sick leave, and other benefits.
B. Procedural History
McKinney filed suit against the District of Columbia.
First, he alleged breach of contract, claiming that DCPS
violated the Settlement Agreement’s “implied covenant of
good faith and fair dealing, by falsely claiming that Mr.
McKinney ‘failed’ the DCPS background check, and by not
permitting him to appeal that alleged failure.” Compl. ¶¶ 102–
07. Second, McKinney asserted that DCPS’s fabrications
about the background check deprived him of property without
due process of law. Third, he contended that DCPS deprived
him of liberty without due process “by falsely labeling him as
someone who presents a danger to children and youth, and who
is ineligible to teach in D.C.” Id. ¶¶ 114–15.
The district court granted the government’s Motion to
Dismiss under Federal Rule of Civil Procedure 12(b)(6). The
district court ruled that McKinney failed to state a claim for
breach of contract because “the plain terms of the parties’
Settlement Agreement do not create any obligation or duty for
the District to rehire the plaintiff.” McKinney v. District of
Columbia, No. 22-cv-2137, 2024 WL 358229, at *4 (D.D.C.
Jan. 31, 2024). The district court also held that McKinney had
7
not stated a due process claim, based on either a property
interest or a liberty interest. Id. at *5–6.
McKinney timely appealed. We have jurisdiction under
28 U.S.C. § 1291.
II.
A. Standard of Review
We review the district court’s dismissal of the complaint de
novo. Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir.
2012). “To survive a [Rule 12(b)(6)] motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up).
B. Breach of Contract
McKinney contends that DCPS breached the Settlement
Agreement’s implied covenant of good faith and fair dealing,
and that his Complaint properly stated that claim. According
to McKinney, DCPS had an obligation to consider his
employment applications fairly and in good faith, based on the
Agreement’s provision that he would “be allowed to apply for
teaching positions at DCPS starting the 2020–2021 school
year.” Settlement Agreement 1 (J.A. 24). We agree with the
district court that McKinney misinterprets what was required
under the Settlement Agreement.
“Settlement agreements and releases are contractual in
nature and are interpreted under the same rules as contracts.”
Grand Hyatt Wash. v. D.C. Dep’t of Emp. Servs., 963 A.2d 142,
146 (D.C. 2008). The parties do not dispute that the contract
at issue here is governed by D.C. law. The D.C. Court of
Appeals follows “the ‘objective law’ of contract
8
interpretation,” according to which “the written language of a
contract governs the parties’ rights unless it is not susceptible
of clear meaning.” Patterson v. District of Columbia, 795 A.2d
681, 683 (D.C. 2002). “[I]n deciding whether the contract
language is susceptible of clear meaning,” the court has
explained, “we look to the contract language itself, and ask
ourselves generally what a reasonable person in the position of
the parties would have thought the disputed language meant.”
Id. (cleaned up). A reasonable person “is presumed to know
all the circumstances before and contemporaneous with the
making of the agreement.” Id. (cleaned up).
Under D.C. law, “[e]very contract contains an implied
covenant of good faith and fair dealing.” Sundberg v. TTR
Realty, LLC, 109 A.3d 1123, 1133 (D.C. 2015). This covenant
“precludes any party from doing anything which will have the
effect of destroying or injuring the right of the other party to
receive the fruits of the contract.” Id. (cleaned up). When
determining whether the covenant has been breached, “[a]s an
initial matter, [the court] must review the terms of the contract
at issue.” Id. “The implied duty of good faith imposes an
obligation on a contracting party not to evade the spirit of the
contract, willfully render imperfect performance, or interfere
with performance by the other party, but it does not require a
party to waive or rewrite the terms of the contract.” Sibley v.
St. Albans Sch., 134 A.3d 789, 806 (D.C. 2016) (cleaned up).
The covenant of good faith and fair dealing encompasses
only the parties’ reasonable and justified expectations. See
Allworth v. Howard Univ., 890 A.2d 194, 201–02 (D.C. 2006)
(“Good faith performance or enforcement of a contract
emphasizes faithfulness to an agreed common purpose and
consistency with the justified expectations of the other party[.]”
(quoting Restatement (Second) of Contracts § 205 cmt. a (Am.
L. Inst. 1981))). Thus, courts look to whether “reasonable
9
persons in the parties’ shoes would have expected the contract
to be performed as it was.” Adler v. Abramson, 728 A.2d 86,
90–91 (D.C. 1999). Whether an expectation is reasonable or
justified may be informed by institutional “custom and
practice.” Cf. Howard Univ. v. Roberts-Williams, 37 A.3d 896,
906 (D.C. 2012) (“The objective view of contract interpretation
adopted in this jurisdiction requires, in the context of
University employment contracts, that the custom and practice
of the University be taken into account in determining what
were the reasonable expectations of persons in the position of
the contracting parties.” (cleaned up)); see also Greene v.
Howard Univ., 412 F.2d 1128, 1135 (D.C. Cir. 1969)
(“Contracts are written, and are to be read, by reference to the
norms of conduct and expectations founded upon them.”).
McKinney argues that DCPS breached the implied
covenant of good faith and fair dealing because the Settlement
Agreement’s provision that “allowed” him to “apply for
teaching positions” necessarily obligated DCPS to fairly
consider any employment applications that he submitted.
Settlement Agreement 1 (J.A. 24). Any contrary reading, he
contends, would preclude him from enjoying the “fruits” of the
contract. Sundberg, 109 A.3d at 1133. He alleges that DCPS
blocked his rehiring in bad faith and falsely claimed that he
failed the background check. But McKinney’s demand for
“fair consideration” of his employment applications has no
basis in the contract’s language or in the law.
We first consider the terms of the contract. The Settlement
Agreement says only that McKinney is “allowed to apply for
teaching positions” and is silent about how DCPS must handle
his applications. Settlement Agreement 1 (J.A. 24). The
provision’s evident purpose was to exempt McKinney from the
Collective Bargaining Agreement’s buyout disqualification,
which otherwise would have rendered McKinney ineligible for
10
employment with DCPS for three years because he had
accepted the $25,000 buyout. The plain words of the contract
are “susceptible of clear meaning”: They do not entitle
McKinney to “fair consideration” of subsequent applications
for teaching positions. Patterson, 795 A.2d at 683.
Nor do “custom and practice” support a reasonable and
justified expectation of “fair consideration.” Roberts-
Williams, 37 A.3d at 906. As McKinney’s counsel conceded
at oral argument, the District has no general duty to review
employment applications tendered by job-seekers, much less to
do so in a way that McKinney considers “fair.” Indeed, we
know of no precedent or norm that requires the D.C.
government to consider — fairly or not — the candidacies of
all would-be employees. It is thus unreasonable and unjustified
for McKinney to expect special treatment from the District in
its consideration of his post-settlement employment
applications, especially when his expectation is based solely on
a contract provision that facially gives him only a right to
apply. The District surely does not act in bad faith when it
adheres to the contract’s plain language and treats McKinney
no worse than it is allowed to treat other applicants. If
McKinney wanted DCPS to commit to giving his applications
“fair consideration,” he should have negotiated for that
additional benefit and memorialized it in the Settlement
Agreement.
In sum, context and custom confirm the plain meaning of
the Settlement Agreement’s provision that “allowed”
McKinney “to apply for teaching positions.” Settlement
Agreement 1 (J.A. 24). DCPS indisputably “allowed”
McKinney to submit applications for numerous teaching
positions after the settlement, and he even received job offers
from Kelly Miller and Eliot Hine. DCPS’s alleged failure to
fairly consider his applications in the later stages of the hiring
11
process was beyond the scope of the Agreement. McKinney
thus got the benefit of what he bargained for. DCPS “allowed”
him “to apply,” gave him a $25,000 buyout, and removed from
his employment record any reference to “substantiated sexual
harassment allegations.” Id. McKinney may not “rewrite the
terms of the contract” to also claim a right to “fair
consideration” of his employment applications, simply by
invoking the implied covenant of good faith and fair dealing.
Sibley, 134 A.3d at 806. Accordingly, McKinney’s factual
allegations fail to state a breach-of-contract claim.
We respectfully disagree with the analysis of our dissenting
colleague. See Dissent 2–6. Our colleague discusses several
provisions of the D.C. Code that require DCPS to conduct a
criminal background check before hiring an employee. See
Dissent 1–2. She would hold that those statutory provisions
“form a part of the contract as fully as if they had been
expressly referred to or incorporated in its terms.” Id. at 4
(quoting Washington v. District of Columbia, 137 A.3d 170,
177 (D.C. 2016) (cleaned up)). And she believes that
McKinney plausibly alleges that DCPS violated those
incorporated statutory requirements. We see three problems
with our colleague’s theory.
First, McKinney does not make the argument that our
colleague so skillfully explicates: He does not mention the
statutes that she relies upon, and his opening brief does not cite
the D.C. Code even once. Thus, a claim that the Settlement
Agreement incorporated D.C. Code provisions is not properly
before us. See Narragansett Indian Tribe v. Nat’l Indian
Gaming Comm’n, 158 F.3d 1335, 1338 (D.C. Cir. 1998)
(“[W]e ordinarily do not entertain arguments not raised by
parties[.]”).
12
Second, our colleague appears to misapprehend the purpose
of the cited statutory provisions: They do not confer judicially
enforceable “fair consideration” rights on job applicants.
Instead, they are intended to ensure the safety of children. The
statutes in question provide that the District must conduct a
background check before hiring a teacher. See D.C. Code §§ 4-
1501.03(a)(1) (requiring that “[a]n applicant who is under
consideration for paid employment by a covered child or youth
services provider” “shall apply for [a] criminal background
check[]”); 4-1501.02(3) (defining “covered child or youth
services provider”); 4-1501.03(e) (providing that “[a]n
applicant for a position at a covered child or youth services
provider may be offered employment contingent upon receipt
of a satisfactory background check”). The purpose of such a
background check is to ensure that the District does not hire a
teacher who is a danger to children. See id. § 4-1501.05a(a)
(“The information obtained from the criminal background
check shall not create a disqualification or presumption against
employment or volunteer status of the applicant unless the
Mayor determines that the applicant poses a present danger to
children or youth.”). Thus, the cited statutes do not entitle job-
seekers to demand background checks as part of a “fair
consideration” of their employment applications.4
Third, our task here is to interpret a contract term that
“allowed” McKinney “to apply” for teaching
positions. Settlement Agreement 1 (J.A. 24). In this context,
4
An applicant who “is denied [employment] because the
applicant presents a present danger to children or youth” is entitled
to appeal that outcome to the D.C. Commission on Human Rights.
D.C. Code § 4-1501.05a(c). But McKinney’s claim does not fall
under this provision: The dangerousness determination must be
based on information from a background check, id. § 4-1501.05a(a),
and McKinney claims that no background check was conducted at
all.
13
it is quite a leap to conclude that the contract not only
incorporated a statutory safety scheme that had nothing to do
with the settlement, but also refashioned the safety provisions
into a bestowal of fair-consideration rights on job-seekers. Our
colleague recognizes a newly created right for certain D.C.
employment applicants to demand a background check, and
then allows enforcement of that right through a contract
provision that says only that McKinney will “be allowed to
apply” for teaching positions. Id. Although our colleague
acknowledges that the Settlement Agreement “does not
guarantee McKinney more process . . . than any other
applicant,” Dissent 4, no precedent or authority suggests that
any other unsuccessful job applicant has ever sued the District
for an alleged failure to conduct a background check. In short,
we do not agree that our colleague’s theory is the best
interpretation of the contract before us.
C. Procedural Due Process (Property Interest)
McKinney also claims that DCPS deprived him of three
property interests without due process of law: (1) his “interest
in his original DCPS job”; (2) his “interest in the jobs at Kelly
Miller and Eliot Hine,” which were offered to him before he
was stymied by the allegedly failed background checks; and (3)
his “interest in his eligibility for the DCPS positions for which
he applied.” McKinney Br. 18–24. Each theory fails.
In some circumstances, the Constitution protects a person’s
property interest in governmental employment. The Due
Process Clause of the Fifth Amendment guarantees that “[n]o
person shall . . . be deprived of life, liberty, or property, without
due process of law.” U.S. Const. amend. V. This clause
applies to the government of the District of Columbia. See
Wash. Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 36
(D.C. Cir. 1997). “But, to determine whether due process
14
requirements apply in the first place, we must look not to the
‘weight’ but to the nature of the interest at stake.” Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 570–71 (1972)
(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). For
a deprivation of property to be actionable, a person must have
a “constitutionally protected property interest.” Wash. Legal
Clinic, 107 F.3d at 36 (citing Brock v. Roadway Express, Inc.,
481 U.S. 252, 260 (1987), and Roth, 408 U.S. at 569).
“Property interests . . . are not created by the Constitution”
itself; “[r]ather, they are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law.” Roth, 408 U.S. at 577.
A property interest in a benefit, such as governmental
employment, is constitutionally protected only when a person
has “a legitimate claim of entitlement to it.” Roth, 408 U.S. at
577. An “abstract need or desire for it” or “a unilateral
expectation of it” does not suffice. Id. Thus, “[t]o determine
whether [a person] had a property interest in” governmental
employment, “we ask if he had a legitimate expectation, based
on rules (statutes or regulations) or understandings (contracts,
expressed or implied),” that he would receive or keep that
employment. Hall v. Ford, 856 F.2d 255, 265 (D.C. Cir. 1988);
see also Carducci v. Regan, 714 F.2d 171, 176 (D.C. Cir. 1983)
(noting that a due process claim may involve “the act of hiring
or the continuing employment relationship with the
government”).
1. McKinney’s Original Job with DCPS
McKinney asserts for the first time on appeal that DCPS
“inveigled [him] to resign by making contractual promises that
it then ignored.” McKinney Br. 18–19. Because McKinney
did not include that claim in his Complaint or in any of his
briefing before the district court, and because he identifies no
15
exceptional circumstances to excuse that failure, the claim is
forfeited. Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 179
(D.C. Cir. 2019) (“Absent exceptional circumstances, a party
forfeits an argument by failing to press it in district court.”).
We therefore decline to address it.
2. McKinney’s Contingent Job Offers
McKinney does not adequately allege a property interest in
the jobs that he was conditionally offered at Kelly Miller and
Eliot Hine Middle Schools.5 “[O]rdinarily there is of course no
‘legitimate claim of entitlement,’ . . . to be appointed to a
particular [governmental] job.” Molerio v. FBI, 749 F.2d 815,
823 (D.C. Cir. 1984) (quoting Roth, 408 U.S. at 577, and citing
MacFarlane v. Grasso, 696 F.2d 217, 221–22 (2d Cir. 1982)).
Although McKinney received offers to work at Kelly Miller
and Eliot Hine, he did not have a legitimate claim of
entitlement to those positions because the job offers were
contingent on the outcome of a statutorily required background
check. See D.C. Code §§ 4-1501.03(a)(3), 4-1501.02(3)
(making background checks mandatory for all DCPS teachers);
id. § 4-1501.03(e) (providing that “[a]n applicant for a position
at a covered child or youth services provider may be offered
5
We reject the District’s contention that McKinney has not
preserved an argument based on this purported property interest by
not discussing it in his Opposition to the Motion to Dismiss. In his
Complaint, he explicitly asserted a property interest in the offered
positions, and the district court thus addressed whether McKinney
had such an interest. See Bastani v. Am. Fed’n of Gov’t Emps., AFL-
CIO, 70 F.4th 563, 569 (D.C. Cir. 2023) (“To preserve a claim of
error on appeal, a party typically must raise the issue before the trial
court.”); Tanner-Brown v. Haaland, 105 F.4th 437, 444 (D.C. Cir.
2024) (noting that, even when a petitioner fails to raise a claim in the
district court, we generally do not deem the issue forfeited if the
district court actually considered it).
16
employment contingent upon receipt of a satisfactory
background check” (emphasis added)).
McKinney relies on a single, out-of-circuit,
nonprecedential summary order to contend that he had a
legitimate claim of entitlement to the jobs he was offered
because his acceptance was “subject only to the completion of
ministerial tasks prior to his start date,” namely the background
checks. See Cancel v. NYC Hum. Res. Admin./Dep’t of Soc.
Servs., 527 F. App’x 42, 45 (2d Cir. 2013). But even if we put
aside his failure to cite binding precedent, a background check
is not “ministerial.” Section 4-1501.05a of the D.C. Code
provides that “[t]he information obtained from the criminal
background check shall not create a disqualification or
presumption against employment or volunteer status of the
applicant unless the Mayor determines that the applicant poses
a present danger to children or youth.” D.C. Code § 4-
1501.05a(a) (emphasis added). The background-check process
thus involves not just “obedience to instructions or laws” but
also “discretion, judgment, or skill” — which means that the
process is not “ministerial.” Ministerial, Black’s Law
Dictionary (12th ed. 2024). Moreover, a satisfactory
background check is a substantive requirement that ensures the
security of schools and the safety of students. See D.C. Code
§§ 4-1501.03(a)(3), (e), 4-1501.02(3); cf. Beilan v. Bd. of Pub.
Educ., Sch. Dist. of Phila., 357 U.S. 399, 405 (1958) (“That the
school authorities have the right and the duty to screen the
officials, teachers, and employees as to their fitness to maintain
the integrity of the schools as a part of ordered society, cannot
be doubted.” (cleaned up)).
McKinney can claim no entitlement to employment when
he merely received offers that were contingent on clearing an
important, statutorily mandated hurdle. See Carducci, 714
F.2d at 176–77 (no “rules, understandings or circumstances”
17
that might otherwise give rise to a legitimate claim of
entitlement “can contravene the intent of the legislature
regarding the employment entitlements that can be conferred”).
The job offers that McKinney received did not — indeed, could
not — guarantee that he ultimately would be hired, and he
therefore had no claim of entitlement and no constitutionally
protected property interest.
3. McKinney’s Eligibility for DCPS Positions
McKinney erroneously asserts that he had a protected
interest in his eligibility for DCPS employment because the
Settlement Agreement “created and guaranteed” such an
interest. McKinney Br. 22. As already discussed, see supra
Part II.B, the Settlement Agreement did nothing more than
“allow[]” McKinney “to apply for teaching positions.”
Settlement Agreement 1 (J.A. 24). The Agreement’s plain
language and context conferred no entitlement to employment
eligibility. Moreover, DCPS could not have contractually
made such a guarantee. Without knowing whether McKinney
would pass the mandatory background check, DCPS could not
promise that McKinney would be eligible to be hired in the
future. See District of Columbia v. Greene, 806 A.2d 216, 222
(D.C. 2002) (“It is a basic principle of District law that a
contracting official cannot obligate the District to a contract in
excess of his or her actual authority.”). McKinney thus could
have no “legitimate claim of entitlement to” his eligibility for
DCPS positions. Roth, 408 U.S. at 577.
D. Procedural Due Process (Liberty Interest)
Finally, McKinney claims that DCPS deprived him of
liberty without due process of law by formally or automatically
excluding him from any teaching job with DCPS. That claim
is forfeited because he did not raise it before the district court.
18
To state a claim for deprivation of liberty without due
process, a plaintiff must allege a constitutionally protected
liberty interest. See Roth, 408 U.S. at 569. “One of the liberty
interests protected by the Fifth Amendment is the right to
‘follow a chosen profession free from unreasonable
governmental interference.’” Campbell v. District of
Columbia, 894 F.3d 281, 288 (D.C. Cir. 2018) (cleaned up)
(quoting Greene v. McElroy, 360 U.S. 474, 492 (1959)). But
loss of a specific public job, standing alone, does not implicate
a liberty interest. See Roth, 408 U.S. at 573, 575.
McKinney’s argument on appeal is that DCPS formally or
automatically excluded him from obtaining a teaching job with
DCPS. But before the district court, he made a different claim.
There, he argued that DCPS broadly precluded him from
pursuing his chosen career in the District of Columbia. As we
have explained, a “stigma or disability” claim is a challenge to
a governmental “adverse employment action” that is coupled
with “a stigma or other disability that foreclose[s] the
plaintiff’s freedom to take advantage of other employment
opportunities.” Langeman v. Garland, 88 F.4th 289, 297 (D.C.
Cir. 2023) (cleaned up). Such claims may rely upon different
theories of liability. In particular, we have distinguished
between (1) a claim that the government “‘formally or
automatically excluded [a] plaintiff from work on some
category of future agency contracts or from other government
employment opportunities’”; and (2) a claim that the
government’s actions “had the effect of broadly ‘precluding
plaintiff from pursuing [his] chosen career.’” Id. (cleaned up)
(quoting Kartseva v. Dep’t of State, 37 F.3d 1524, 1528 (D.C.
Cir. 1994)). The former type of claim, which McKinney
attempts to bring now, requires a change to the plaintiff’s “legal
status” that has the “binding effect” of “formally or
automatically” excluding the plaintiff from employment, such
as an adverse “determination of [the plaintiff’s] legal
19
eligibility.” Kartseva, 37 F.3d at 1528 (emphasis in original).
McKinney made no arguments to that effect before the district
court, and he therefore failed to preserve an automatic-
exclusion theory for appeal. See Bernhardt, 923 F.3d at 179
(“Absent exceptional circumstances, a party forfeits an
argument by failing to press it in district court.”). 6
In any event, McKinney’s Complaint fails to adequately
plead an automatic-exclusion claim. McKinney does not allege
facts that show his formal or automatic disqualification from
employment by DCPS due to a change in his legal status. See
Kartseva, 37 F.3d at 1527 (“[A] government action that
potentially constrains future employment opportunities must
involve a tangible change in status to be actionable under the
due process clause.”). Central to McKinney’s theory of the
case is his allegation that DCPS never actually conducted a
background check on him in 2020 or 2021. He thus never
claims he was actually disqualified. According to McKinney,
DCPS falsely asserted that he had failed his background check
as a “pretense” to reject his candidacy. See McKinney Reply
Br. 7–8; see also Compl. ¶ 76 (“Mr. McKinney has been
informed that DCPS personnel were instructed by DCPS
personnel with authority over them not to effectuate the hiring
of Mr. McKinney.”). At bottom, McKinney believes that
DCPS acted in bad faith and generally refused to “effectuate
6
Our dissenting colleague argues that McKinney preserved an
automatic exclusion claim based on his statement that “[h]e was
completely precluded from obtaining any teaching position in any
public school in the District.” Dissent 7 (quoting Opp’n to Mot. to
Dismiss 10). But in the very next sentence, McKinney made clear
that he was actually making a broad-preclusion argument: “As a
result of DCPS’s actions, Mr. McKinney is, in fact, as the D.C.
Circuit put it, ‘foreclosed from entering the field’ of education in the
entirety of the jurisdiction of the District of Columbia.” Opp’n to
Mot. to Dismiss at 10 (quoting Kartseva, 37 F.3d at 1529).
20
[his] hiring” after he entered the Settlement Agreement.
Compl. ¶ 76. But that does not amount to a “tangible change
in status” or “binding disqualification,” as required by case
law. See Kartseva, 37 F.3d at 1527–28; Abdelfattah v. Dep’t
of Homeland Sec., 787 F.3d 524, 539 (D.C. Cir. 2015).
Our dissenting colleague contends that McKinney pleaded
an automatic-exclusion claim by stating that “[t]he alleged
‘ineligible’ findings by the DCPS Office of Security constitute
determinations under D.C Code § 4-1501.05a that Mr.
McKinney ‘presents a present danger to children or youth,’”
which “preclude[s] him from obtaining employment in his
chosen field by educational institutions in D.C., whether public
or private.” Compl. ¶¶ 90, 93 (quoting D.C Code § 4-
1501.05a(a)); see Dissent 7–8. But the cited statement by
McKinney makes no sense because disqualification under
Section 4-1501.05a requires the existence of a background
check, which McKinney alleges never occurred. See D.C.
Code § 4-1501.05a(a) (“The information obtained from the
criminal background check shall not create a disqualification
or presumption against employment or volunteer status of the
applicant unless the Mayor determines that the applicant poses
a present danger to children or youth.”). And in any event,
even if McKinney had alleged that he failed a background
check, that would not have changed his “formal legal status”
such that he would have been “formally or automatically”
disqualified from future employment. Kartseva, 37 F.3d at
1528 (emphasis omitted). As noted, McKinney’s employment
still would have been subject to the Mayor’s determination of
whether he posed a present danger to children or youth. See
D.C. Code § 4-1501.05a(a).
21
* * *
For the reasons discussed, we conclude that the district
court correctly dismissed McKinney’s Complaint for failure to
state a claim. We therefore affirm the judgment of the district
court.
So ordered.
PILLARD, Circuit Judge, concurring in part and dissenting
in part: I agree that Darian McKinney’s complaint fails to
identify a property interest, but I disagree with two other
holdings. First, McKinney’s allegations that the District of
Columbia Public Schools summarily rejected his applications
without following its own application-review process suffice to
state a claim of breach of the contractual duty of good faith and
fair dealing. Second, McKinney’s allegations that DCPS
automatically excluded him from teaching positions in the
District of Columbia public schools by baselessly designating
him a “present danger to children and youth” suffice to identify
a protected liberty interest within the meaning of Kartseva v.
Department of State, 37 F.3d 1524 (D.C. Cir. 1994). I would
reverse and remand to the district court on those counts.
I.
The D.C. Background Check Act (Act) requires every
“applicant who is under consideration for paid employment”
by the District of Columbia Public Schools (DCPS) system to
undergo a criminal background check. D.C. CODE § 4-
1501.03(a)(1). DCPS conducts the background check after an
applicant accepts a conditional offer of employment. D.C.
Mun. Regs. tit. 6B § 415.3(a). As relevant here, a background
check “shall not create a disqualification or presumption
against employment” unless the applicant “poses a present
danger to children or youth.” D.C. CODE § 4-1501.05a(a). The
Act directs DCPS to consider, in making any “present danger”
determination, several statutorily identified discretionary
factors. Id. § 4-1501.05a(a)(1)-(7). DCPS must then make a
“final suitability determination” that establishes whether the
applicant “poses a present danger to children or youth.” Id.
§ 4-1501.05a(a); D.C. Mun. Regs. tit. 6B § 436.5. If the
applicant is determined to pose such a danger, “any conditional
employment offer shall be withdrawn” and the applicant “shall
2
be notified of the final suitability determination.” D.C. Mun.
Regs. tit. 6B § 436.8.
The Act provides appeal rights to applicants under
consideration whom DCPS rejects as posing a present danger
to children or youth. DCPS must inform the applicant “in
writing” of the application denial and, “within 30 days of the
date of the written statement,” the applicant may appeal it to
the D.C. Commission on Human Rights. D.C. CODE § 4-
1501.05a(c). To do so, the applicant must file with the
Commission a “Notice of Appeal” and “a copy of the suitability
determination being appealed.” D.C. Mun. Regs. tit. 6B
§ 439.6.
II.
A.
The duty of good faith and fair dealing requires, at a
minimum, that when an applicant applies for a position at a
particular DCPS school during the term of a settlement
agreement inviting him to “apply” and identifying the benefits
he would enjoy if hired, the District must follow its own
statutorily required procedures during the hiring process.
Ordinarily, applications submitted through the DCPS
electronic hiring system may be accessed by schools with
available positions. And, if a school offers an applicant a
position, it submits the chosen applicant’s name to DCPS’s
Career Office for administrative processing, including
completion of a background check through the DCPS Office of
Security.
Before the events at issue here, McKinney had been a
DCPS teacher for four years when the parties settled a prior
dispute (not at issue here) and McKinney resigned his
3
employment, effective August 27, 2019. The terms of his
Settlement Agreement with DCPS bear on McKinney’s
contract claim.
The Settlement Agreement provided that “McKinney shall
be allowed to apply for teaching positions at DCPS starting the
2020-2021 school year.” Settlement Agreement 1 (J.A. 24).
He claims he accordingly had a “reasonable expectation[],”
consistent with the Settlement Agreement and applicable law,
custom, and practice, that DCPS would follow its ordinary
procedure in processing any applications for teaching positions
he submitted. See Howard Univ. v. Roberts-Williams, 37 A.3d
896, 906 (D.C. 2012). McKinney plausibly alleges that it did
not follow that procedure. That is enough to state a claim for
breach of contract.
I disagree with my colleagues that DCPS honored
McKinney’s right “to apply” merely by allowing him to go
through the motions of submitting job applications through
DCPS’s online portal. Majority Op. 10. In my view, the
Settlement Agreement requires that DCPS fairly evaluate those
applications. If a school wants to hire him but DCPS finds him
to be a danger to children, it may of course reject the
application; if it does so baselessly and McKinney so
establishes on appeal, however, it may not reject the
application on that ground. The Agreement cannot reasonably
be read to ensure a right to upload an application to the portal
but, when a school selects McKinney’s application and decides
to hire him, to allow DCPS to block his hiring for no reason at
all.
Consider that the Settlement Agreement provided that,
even though McKinney would be “[e]xcess[ed],” Settlement
Agreement 1 (J.A. 24), he would not be subject to the three-
year bar against applying that would ordinarily pertain to
4
persons in that status but instead could apply to DCPS for hire
the very next school year, see Majority Op. 4. That provision
would be nonsensical if the right “to apply” meant, as the
majority concludes, only the chance to submit applications that
DCPS had no obligation to fairly process. Indeed, reading the
Settlement Agreement as DCPS does puts McKinney on a par
with persons who are categorically barred from working for
DCPS due to their involvement in “any sexual offenses
involving a minor,” D.C. CODE § 4-1501.05a(b)—a category
that nobody contends applies to McKinney.
The right “to apply” under the Settlement Agreement
carries its ordinary meaning of affording him the standard
process by which DCPS reviews applications, starting with
their submission and ending with the applicant being hired or
turned down. It does not guarantee McKinney more process
nor does it allow DCPS to afford him less than any other
applicant. Other aspects of the Settlement Agreement
underscore that McKinney’s right “to apply” denotes not just a
hollow right to submit applications online, but one that could
lead to DCPS hiring him as a teacher: If McKinney were hired
within a year of the date of the settlement, the Settlement
Agreement provides that DCPS would treat him as having no
break in service for purposes of seniority, leave, and pension
benefits. Settlement Agreement 2 (J.A. 25); see Majority Op.
4. Again, McKinney does not contend that the Settlement
Agreement promised that he would be hired. He has plausibly
alleged that, once he accepted a conditional offer to teach at a
DCPS school, the Agreement required DCPS to process his
application as it would for any other applicant not subject to a
valid hiring bar.
The majority’s premise that the “Settlement Agreement
. . . is silent about how DCPS must handle his applications” is
mistaken. Majority Op. 9. The D.C. Background Check Act
5
and its implementing regulations were in effect when the
parties entered the Settlement Agreement and thus “form a part
of the contract as fully as if they had been expressly referred to
or incorporated in its terms.” Washington v. District of
Columbia, 137 A.3d 170, 177 (D.C. 2016) (internal quotation
marks omitted). As relevant here, the Act requires DCPS to:
(1) conduct criminal background checks on applicants, see
D.C. CODE § 4-1501.03(a)(1); (2) make a “present danger”
determination based on, inter alia, the results of the
background check, id. § 4-1501.05a(a); and (3) provide a copy
of a determination of unsuitability to enable an affected
applicant to appeal it, D.C. Mun. Regs. tit. 6B § 439.6.
McKinney plausibly alleges that DCPS violated those terms
here. Once he was offered teaching jobs at DCPS schools, the
school district failed to follow the requisite process when it: (1)
did not conduct a background check, Compl. ¶ 35 (J.A. 8); (2)
deemed him a “present danger” despite the absence of a
background check, id. ¶ 90 (J.A. 17); and (3) did not provide
him with the written unsuitability determination he needed to
initiate his appeal, id. ¶¶ 49, 73 (J.A. 10, 14).
Those provisions are not a freestanding entitlement for
everyone who merely uploads applications to the portal “to
demand background checks,” Majority Op. 12, but they apply
to McKinney as they would to anyone whose applications
proceeded as far as his did. Allegations that DCPS failed to
conduct background checks in connection with the post-
settlement job offers McKinney received and accepted, and
provided him no statement of grounds for the unfavorable
determinations from which he could appeal, plainly state a
claim of breach of the duty of good faith and fair dealing. If a
D.C. public employer “breached . . . the duty of good faith and
fair dealing . . . when it failed to follow its published hiring
procedures,” Martin v. Washington Metro. Area Transit Auth.,
273 F. Supp. 2d 114, 117 (D.D.C. 2003) (internal quotation
6
marks omitted), DCPS even more clearly did so here when it
failed to follow statutorily required hiring procedures.
Custom and practice point in the same direction. In the
years before the Settlement Agreement, McKinney had twice
been subjected to background checks—once for a job offer
from a DCPS school and once while teaching—and DCPS
twice deemed him ineligible as “a present danger to children or
youth.” Each time, DCPS provided McKinney the written
notice of determination and instructions for appeal to the D.C.
Commission on Human Rights, and each time he succeeded in
overturning the ineligibility determination. Compl. ¶¶ 14, 24,
46 (J.A. 5, 7, 10). When McKinney entered the Settlement
Agreement with DCPS, he had every reason to assume that, if
it were to similarly reject him for future positions, it would
again—as it had twice before—provide him the written adverse
determination he needed in order to appeal. Its unjustified
failure to do so precluded McKinney from enjoying the fruits
of the Settlement Agreement.
The majority errs in reasoning that DCPS “treat[ed]
McKinney no worse than it is allowed to treat other applicants”
and so concluding that he seeks not just fair consideration, but
“special treatment.” Majority Op. 10. That would be the case
if McKinney were, for example, claiming entitlement to
priority consideration for certain jobs or procedural safeguards
not available to other applicants. But he is not. All “fair
consideration” means here is treating McKinney’s applications
the same as DCPS would any other applicant’s pursuant to its
ordinary process, including the relevant statutory provisions
that bind it.
McKinney’s claim does not depend on any assertion that
DCPS has a “general duty to review employment applications
tendered by job-seekers” or is bound to “consider . . . the
7
candidacies of all would-be employees.” Majority Op. 10.
That analysis ignores key allegations that McKinney had been
offered jobs at specific D.C. schools in 2020 and 2021 when
DCPS summarily—and, he alleges, baselessly—deemed him
ineligible. My colleagues acknowledge that “an applicant who
‘is denied [employment] because the applicant presents a
present danger to children or youth’ is entitled to appeal that
outcome to the D.C. Commission on Human Rights.” Majority
Op. 12 n.4 (citing D.C. Code § 4-1501.05a(c)). As the Code
itself reflects, the appeal right coheres with the child-protective
purpose of the “present danger” hiring bar. Protection of
children is not served by denying applicants erroneously
determined to endanger children any chance to correct that
error on appeal.
The majority gains no ground by asserting that
“McKinney’s claim does not fall under this provision” because
“McKinney claims that no background check was conducted at
all.” Majority Op. 12 n.4. First, McKinney alleges that DCPS
in fact made a “present danger” ineligibility determination, see
Compl. ¶ 90 (J.A. 17), and we must “assume the truth of the
facts alleged in the operative complaint.” Majority Op. 2 n.1
(quoting DeVillier v. Texas, 144 S. Ct. 938, 941 n.1 (2024)).
Second, DCPS never disputes that it so determined—indeed, it
argues McKinney had all the process he was due in his effort
to administratively appeal it. See Appellee’s Br. 47-49.
Finally, as explained below in Section II.B, the majority cannot
logically avoid McKinney’s allegations that DCPS made a
baseless “present danger” determination by suggesting they are
somehow contradicted or waived by his allegations that DCPS
so determined without conducting the requisite background
check. Majority Op. 19.
DCPS does not deny that, when it disapproves the hire of
a job applicant with an accepted job offer in hand because it
8
has determined that applicant to be a “present danger,” it must
inform the applicant in writing of the reason for its decision so
he may appeal. See D.C. Code § 4-1501.05a(c). McKinney
plausibly alleges that DCPS did not provide any explanation
when it deemed him ineligible. He thereby states a claim that
DCPS breached its duty of good faith and fair dealing in
implementing the Settlement Agreement. I would reverse the
district court’s contrary holding.
B.
Turning to McKinney’s claim that DCPS deprived him of
liberty without due process, I would hold that he preserved that
claim on appeal. As to the merits of whether McKinney
plausibly pleaded a liberty interest, I would hold that, by
designating him a present danger to children and youth, DCPS
automatically excluded him from working as a teacher in the
D.C. public school system, which counts as “some category of
future . . . government employment opportunities.” Kartseva,
37 F.3d at 1528. Under Kartseva, that exclusion amounts to a
deprivation of McKinney’s liberty interest. Because he was not
afforded basic due process, I would reverse.
As a threshold matter, the complaint does not support the
majority’s holding that McKinney forfeited his automatic-
exclusion claim by failing to raise it below. See Majority Op.
19. McKinney alleges that DCPS’s findings that he is
“ineligible” for teaching positions in the District of Columbia
constitute legal “determinations” under D.C. Code § 4-
1501.05a that he “presents a present danger to children or
youth.” Compl. ¶ 90 (J.A. 17). He alleges those determinations
“preclude[d] him from obtaining employment in . . .
educational institutions in D.C.” and rendered him “ineligible
to teach in D.C.” Id. ¶¶ 93, 115 (J.A. 17, 21). He alerted DCPS
to the nature of that claim in his briefing below, where he
9
argued that such a “legally authorized conclusion by DCPS”
had the effect of “completely preclud[ing] [him] from
obtaining any teaching position in any public school in the
District.” Opp’n to Mot. to Dismiss at 10-11, McKinney v.
District of Columbia, No. 22-cv-2137 (D.D.C. Oct. 26, 2022),
Dkt. No. 8 (emphasis added). That was enough to put DCPS
and the district court on fair notice as to McKinney’s claim that
DCPS’s “present danger” determination automatically
excluded him from “some category” of government job—
namely, public school teaching in D.C.
On the merits, McKinney pleads facts sufficient to state a
claim of automatic exclusion. He alleges that DCPS invoked
the D.C. Code’s “present danger” provision so it could
automatically exclude him from any future DCPS teaching
position. That is a plausible inference from his allegations that
his 2020 and 2021 applications were never acknowledged or
rapidly rejected (often without interview), and that offers he
received and accepted were rescinded without any substantive
explanation. See Compl. ¶¶ 50-53 (J.A. 11). Indeed, his
situation is essentially the same as that of the plaintiff in Lea v.
District of Columbia, No. 22-cv-1396, 2022 WL 3153828
(D.D.C. Aug. 8, 2022). There, the district court denied the
District’s motion to dismiss because an applicant’s allegations
that she failed to receive any interviews after applying for many
legal positions in the D.C. government raised the plausible
inference that it had automatically excluded her from those
roles. Lea, 2022 WL 3153828, at *6. McKinney’s allegations
here are much stronger, as he also alleges that two schools
offered him positions from which DCPS summarily later
excluded him. The allegations, taken together, suffice to state
a claim for a deprivation of his liberty interest.
The majority treats as dispositive McKinney’s allegation
that DCPS never actually completed background checks in
10
connection with his DCPS job offers in 2020 or 2021. See
Majority Op. 19. It appears to reason that, because the law
requires a disqualification decision to rest on results of a
background investigation, alleging that no such investigation
was conducted amounts to conceding that no disqualification
decision could have been made. That reasoning is mistaken in
two independent ways.
First, the conclusion that McKinney “never claims he was
actually disqualified,” Majority Op. 19, because he alleges no
background checks occurred is unwarranted. There is nothing
illogical about alleging that DCPS both failed to conduct a
background check and made a baseless “present danger”
determination. After all, McKinney does not contend that
failed background checks automatically disqualified him from
teaching roles in D.C., but that DCPS’s groundless present
danger determination did so. See Compl. ¶¶ 90, 93 (J.A. 17).
Only DCPS’s factual position—not McKinney’s—rests on
DCPS having done a background check that turned up
information permitting it to conclude he posed a present
danger. McKinney’s allegations that DCPS told him by email
that it found him ineligible because of a failed background
check, e.g., id. ¶ 34 (J.A. 8), do not depend on DCPS having in
fact conducted any such check. To the contrary, McKinney
alleges that DCPS did not run the required criminal background
checks at all, but only cited the requirement to clear such a
check as pretext to (baselessly) designate McKinney as a
“present danger” and deny him any job with DCPS. See id. ¶¶
35, 76 (J.A. 8, 14). That is legally sufficient to state a claim for
the deprivation of a liberty interest. And, because McKinney
also plausibly alleges that he was denied the process he was
due based on DCPS’s failure to provide him with the materials
required to appeal, see supra Part II.A, I would reverse and
remand to the district court, as we did in Kartseva, for
11
discovery into the “extent of the . . . disqualification.” 37 F.3d
at 1528-29.
Second, McKinney pleads in the alternative that even if
DCPS in fact conducted background checks, it provided no
grounds to deem him ineligible as a present danger to children
or youth and, in any case, DCPS stymied the administrative
appeal process he was due. See Compl. ¶ 36 (J.A. 8) (“[T]here
was no legitimate basis on which Mr. McKinney could have
‘failed’ the background check if one had been conducted.”); id.
¶ 56 (J.A. 12) (same); id. ¶ 73 (J.A. 14) (“Alternatively, if
DCPS did conduct a background check on Mr. McKinney
which he ‘failed’ in these years, DCPS simply refused to
initiate or conduct its own appeals process.”). If DCPS had
information disqualifying McKinney from the teaching jobs at
Kelly Miller and Eliot Hine Middle Schools, it was obligated
to defend that determination before the D.C. Commission on
Human Rights in any appeal McKinney might have brought.
McKinney’s plausible allegations that it instead did an end-run
around that process suffice to state a due process claim.
***
Darian McKinney alleges that DCPS falsely asserted he
failed background checks as a pretext to exclude him from
teaching positions to which he was entitled to apply and,
indeed, had already been offered by two middle schools in the
District. He alleges that DCPS violated its own statutorily
required procedures by deeming McKinney ineligible for hire
and failing to provide him the written determination of
ineligibility that he needed to appeal. DCPS allegedly failed to
provide the requisite written decisions even though it had done
so twice before—and both prior times had had its designations
overturned on appeal. In my view, McKinney’s allegations
plainly state claims of breach of the duty of good faith and fair
12
dealing incorporated into the Settlement Agreement between
McKinney and DCPS and deprivation of a liberty interest in
pursuing public school teaching positions in D.C. without
constitutional due process. Accordingly, I join Part II.C. but
respectfully dissent from Parts II.B and II.D of the opinion of
the court.