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Case number 24-1727, Darian McKinney at balance versus District of Columbia.

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Ms.

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McAdoo-Gordon for the balance, Ms.

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Johnson for the appellee.

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Good morning, Your Honors.

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Leslie McAdoo-Gordon on behalf of Mr. McKinney.

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Hopefully that's enough.

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Procedurally, this case is here on de novo review as to whether the complaint states claims for breach of contract and due process violations.

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The factual basis big picture is that Darian McKinney, a government employee, a teacher, was blackballed by the DC public schools and then stonewalled when he tried to contest that misbehavior.

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The central focus of much of the legal analysis is a settlement agreement entered into by the parties in 2019.

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At that time, Mr. McKinney was a full employee of the department.

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He was in the process of grieving a prior adverse adjudication in 2018 before the Office of Labor Relations and Employee Management.

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Prior to that, he had contested two cases successfully before the DC Commission on Human Rights in 2015 and 2019, where the department had claimed that he had failed background checks.

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Mr. McKinney

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was given formal notifications of those allegedly failed background checks.

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He was given formal paperwork with appellate rights.

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He pursued those rights to the DC Commission on Human Rights and prevailed in both of those cases.

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In the summer of 2019, Mr. McKinney and the department were in ongoing litigation in front of the Office of Labor Relations and Employee Management on this non-background check issue.

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and they entered into a settlement agreement.

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The settlement agreement is dated November 2019, but it was made retroactive to August of 2019.

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On that date, I believe it's August 26th, Mr. McKinney ceased to be an employee of the department and he had contractual rights from that point going forward.

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So what he gave up in the settlement agreement was his status as a full-time employee.

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He was fully covered, tenured.

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He had four years into his service.

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He needed only one more year in order to be eligible for retirement annuity.

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And he was fully covered by the union contract.

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Going back, you mentioned the emails that Mr. McKinney received from the DC career office.

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Did those emails attach or include a copy of a suitability determination?

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The original ones prior to 2019 did.

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That he successfully appealed, but the ones from jobs thereafter.

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Correct.

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After the settlement agreement, he received email communications from the Office of Security, not the

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human relations, there's a lot of sub departments in this case.

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So the office of security sent him emails allegedly saying that he had failed the background investigations.

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An interesting point on that is that he had never filled after 2019, after the settlement agreement, he never filled out the paperwork to submit any background investigation.

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background investigation, what's the scope?

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Is it limited to criminal background or does it include disciplinary or other conduct?

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I would have to look at the regs, which I cite, to see if it goes beyond criminal background, criminal checks.

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It is primarily, of course, we're dealing with teachers, dealing with children, so it is primarily geared toward

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criminal conduct, but it's not limited to that, I don't believe.

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So as I understand your argument is, there is a provision in the settlement agreement that says he shall be allowed to apply for teaching positions at DCPS starting the 2020 to 2021 school year.

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And you want to interpret the covenant of good faith and fair dealing to require

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DCPS to, I guess, properly process any new job that he might get with DCPS.

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Genuinely do the process.

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Right, because it seems to me that he was allowed to apply, and he otherwise would have been ineligible because he got a buyout.

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Because normally if you get a buyout, you're not eligible to apply for three years.

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Correct.

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So he did get something out of this provision.

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But you want to read into this something in addition, which is that they had to, in good faith, process his application.

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Because they did consider his application.

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He got two job offers.

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But then where things fell apart was at the background check.

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At the ministerial stage after the offer and acceptance.

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Correct.

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For two of the counts.

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And so I guess my question is,

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That's reading a lot into the words shall be allowed to apply and why wasn't Washington have had to negotiate better language here if he wanted it to extend all the way through the process because correct me if I'm wrong.

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My understanding is if anybody just applies for a job with DCPS, there are no obligations to properly process background checks or anything like that.

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So he's asking for something in addition.

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Why does that need to be spelled out?

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Unfortunately, it is the state of the law that if a mere applicant comes to the district as a government entity and applies for a position, that the district does not have to afford them any due process.

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Some people would argue that that is not appropriate because the city is a government entity.

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But the state of the law is, as you've stated it.

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Well, you don't have an interest to be protected at that point.

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Correct.

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But basically, being allowed to apply doesn't confer any obligations

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but on the part of the district to do anything with your application.

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If you were a mere applicant, correct?

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I concede that point.

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But Mr. McKinney was not.

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Settlement agreement allowed to apply.

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He's asking for status to be an applicant.

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He wouldn't normally be allowed to be because he took a buyout.

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He wouldn't be eligible for three years.

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So he got something out of this provision.

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And then all he negotiated for was shall be allowed to apply.

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Why didn't he negotiate for something more if he wanted something more?

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He had union representation with him and I think it's very unlikely that the union on the one side and the city's lawyers on the other thought that his ability to reapply meant that he could simply put in some paperwork and that was going to be it.

[00:07:03] Speaker 02:
But if that's the default, why not?

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That's the default.

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Being allowed to apply means you put in your application and the context is the district doesn't have to do anything with that if they don't.

[00:07:13] Speaker 01:
Indeed, it is perfectly plausible because in some situations like that, the opposite might be true.

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Parties might agree, you will not be allowed to apply anymore.

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With signing off, that's our deal.

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Whereas this deal is,

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You can apply.

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We're not going to block that.

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But when you apply, you're in no different situation than anyone else who applies, unless there's something in the contract that says that.

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But he is in a different situation.

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No, in the contract.

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I'm looking at your contract argument.

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Because unlike a mere applicant, he came into the settlement agreement as a fully vested employee.

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He, in consideration, gave up that status in exchange for the right to reapply.

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And as a part of a contract, he has the right.

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In exchange for the right to apply, as opposed to not giving you the right to apply.

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That's really what was going on then.

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They were disagreeing.

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And there was a negotiation.

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How are we going to end it?

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We'll give you a payment.

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You can apply if you want to, but as opposed to we're not going to even let you apply in the future.

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You have the right to apply.

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And any person in a right to apply, I just want to make sure you're understanding what's bothering me.

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In a right to apply situation, certainly it's not guaranteed a position.

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They just have an opportunity to apply to be considered.

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That interpretation would render the covenant to act in good faith completely illusory.

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He would have gotten nothing back.

[00:08:41] Speaker 03:
I thought your position was not that every time he submits an application he gets better or different treatment, but that when he's offered a job and accepts the offer,

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then just like anyone else in that situation, he's entitled to a full and fair background investigation.

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Right.

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He was entitled to the normal process.

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He got less than the normal process is what he got.

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And the way he got less than the normal process, because he happened to have failed a background check in the past, he knew that he would get a, at least as alleged, a determination of an eligibility or whatever

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the document from the security office and an opportunity to appeal that to what?

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Is it internal administrative and then to the Human Rights Commission or just directly to the Human Rights Commission?

[00:09:32] Speaker 04:
I think it's directly to the Commission.

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So he was confident of what the process was going to be, but he didn't get it.

[00:09:37] Speaker 03:
The reason I asked about whether it only covers criminal or whether it also covers other misconduct is one way to read the record in this case is that the settlement itself

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the letter, the notice of settlement, refers to substantiated sexual harassment allegations.

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And if there are substantiated sexual harassment allegations going forward from 2019, and if a background investigation takes note of those, then maybe anybody who has a substantiated, even if non-criminal,

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background facts is going to be treated the way Mr. McKinney was.

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We don't have information about that.

[00:10:24] Speaker 04:
But paragraph three of the agreement says that the city agreed to remove any investigation and notice of the substantial... From his official personnel file.

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Right.

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But as every employment lawyer knows, an official personnel file is only one source of information.

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People conduct background check, if they call prior employers, if

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you know, that there are other ways to get information.

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So, presumably, they didn't get it from his official personnel folder.

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I don't know.

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I don't know enough about the process for conducting a background investigation, but that seemed to me to be one explanation.

[00:11:00] Speaker 01:
What process do you think is due as a matter of remedy here that was not given by the district court?

[00:11:08] Speaker 04:
You mean process going forward on ongoing basis?

[00:11:10] Speaker 01:
Oh, I mean, it's a due process case.

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You're claiming, I mean, at bottom, you claim,

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has to be.

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He was denied some proper process and we want it.

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I don't know what else your claim can be.

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He's certainly not guaranteed a job.

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Correct.

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We concede at that point.

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You can't be asking for that.

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Right.

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That's what I wanted to know if you wanted to know what ongoing forward looking relief would.

[00:11:32] Speaker 01:
I want to know what you think the relief is on a due process claim if, for example, some of us don't buy your contract argument that he's in

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this unique contractual position, let's assume there is a. I think it's damages for violation of his due process rights, his liberty interest and his property interest.

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I don't expect the judge or the jury to award him the right to again reapply to the District of Columbia.

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What we're seeking is monetary damages because the failure to respect his due process rights deprived him of the final year that he needed for his retirement annuity.

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It deprived him of the employment

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income going forward.

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That income in the district is higher than what he's being paid in Prince George's County.

[00:12:14] Speaker 02:
But doesn't that assume he would have gotten the job?

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Like if his damages are all of the retirement benefits he would have gotten if he had worked another year, you're assuming and I think I thought you conceded he wasn't entitled to get the job.

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Right.

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He didn't have a contractual right to be hired.

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He had a contractual.

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And he also didn't have a due process right to be hired.

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Correct.

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He had a due process and a contractual right.

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So I don't understand how the damage can rely on him being hired.

[00:12:41] Speaker 03:
So as I take it, I just try to, what I glean from your briefing and the complaint is that Mr. McKinney is not claiming a right to a job.

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He's claiming a right to a fair process, including the right to apply and including if he is deemed ineligible based on a background check, a right to know the content of the background check and which he's had in the past and successfully

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appealed from so that he could actually get some of the jobs he's held in the past and that going forward, he thinks if they're still relying on that same misinformation, I need to go through the extra hoop.

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But I'm not even now after the settlement, I'm not even getting that same standard process from the DC, whatever it is, Office of Security that I used to get so I can clear this up.

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That's your position.

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So it's not asking for anything special.

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Stonewalled him after.

[00:13:37] Speaker 01:
but they stonewalled the due process their own process make sure I understand when you say like I used to get when did he used to get this in the two previous times when he was told that he failed the background check right he but not based on any city rule that required it and not based on

[00:13:57] Speaker 01:
the settlement agreement that he had with the city.

[00:14:00] Speaker 04:
They just did.

[00:14:02] Speaker 04:
No, at that time it was based not on the contract because it didn't exist yet, but it was based on the ordinary regulations that give employees a right to appeal such a determination to the DC Human Rights Commission.

[00:14:13] Speaker 01:
All employees who applied for teaching position in DC and were denied were guaranteed a right to a background check?

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That can't be right.

[00:14:22] Speaker 04:
The statute requires the city to perform the background check

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The statute requires the city to perform the background check.

[00:14:28] Speaker 01:
Any employee who applies.

[00:14:30] Speaker 04:
For teaching positions, yes.

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If they hire that person.

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If they make an offer.

[00:14:34] Speaker 01:
They make an offer, yeah, not as a general matter.

[00:14:36] Speaker 03:
This is a little confusing.

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When you say apply, you're assuming in your mind the acceptance.

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Right.

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But here, I mean, isn't there a regulation?

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I thought that the regulation says that if an applicant is denied,

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The mayor shall, the mayor's designee shall inform the applicant in writing and the applicant may appeal the denial to the Commission on Human Rights.

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Correct.

[00:15:00] Speaker 02:
So if there is, I'm sorry, it seems to me that where we're all getting confused here is that somebody gets an offer from DC

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They will conduct a background check in the normal course, and then they have a right to appeal that if they fail the background check.

[00:15:17] Speaker 02:
But nowhere in this scenario is there a regulation or a rule or anything that says you're entitled to a background check if you get an offer.

[00:15:26] Speaker 02:
No, but the city is required to conduct a check.

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If you become a teacher, you have to have had a background check.

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It's part of their process.

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But I think what's important here is that what he is asserting is that in the past, I got background checks and got to appeal them.

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This time, I didn't get background checks and didn't get to appeal it.

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But underlying that is a claim that I had a right to a background check.

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and there is no such right to a background check because the city, for any general applicant, could just decide, eh, we're not gonna do the background check and that person doesn't get hired.

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And there's no claim of action.

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There's no right that's been violated because they can hire or not hire you at their will.

[00:16:10] Speaker 01:
Yeah, I really need for you to hear what my colleague's asking, because that is what's bothering me.

[00:16:16] Speaker 01:
You as well.

[00:16:16] Speaker 01:
I am not aware of any such requirement when someone comes in and wants a job,

[00:16:22] Speaker 01:
this Department of Revenue, there must be a background check.

[00:16:26] Speaker 01:
That never rang true to me, and you're not citing me to anything, certainly not the contract here, and there's no regulation that says it.

[00:16:33] Speaker 01:
If you get an offer, yes, they routinely will do a background check.

[00:16:39] Speaker 01:
But he had two offers.

[00:16:41] Speaker 01:
That's beyond, that's past us.

[00:16:43] Speaker 01:
He got the background check there.

[00:16:45] Speaker 04:
with your no he did it no no sir no he had two offers of employment after the settlement agreement there's two background checks before the settlement agreement and then there's two offers after the settlement agreement where the city claims they did background checks and claimed that he failed them and then for those two post settlement background checks

[00:17:04] Speaker 04:
He didn't get any process.

[00:17:06] Speaker 01:
Your limited claim is there are two situations in which we think the law required a background check and he didn't get it.

[00:17:12] Speaker 01:
That's it.

[00:17:12] Speaker 01:
Just two.

[00:17:13] Speaker 01:
There are no others that I can see.

[00:17:15] Speaker 04:
I have three counts, but one relates to the, both relate to post settlement agreement, offers and acceptances, and then allegedly a failure of a background check.

[00:17:28] Speaker 04:
That's counts one and three.

[00:17:32] Speaker 04:
Count two is in the interim between those two offers and acceptances, he applied for jobs.

[00:17:39] Speaker 04:
And even before he was told he got an offer, the city sent him something saying you failed the background check.

[00:17:46] Speaker 04:
So he didn't even get to that step.

[00:17:48] Speaker 01:
OK, so he got the background check.

[00:17:50] Speaker 01:
Now, what's your claim?

[00:17:51] Speaker 01:
I'm just trying to make sure I understand.

[00:17:53] Speaker 01:
He was told he had a background.

[00:17:55] Speaker 04:
He was told he had a background check and then he failed it.

[00:17:59] Speaker 01:
Now, what's your remedy?

[00:18:01] Speaker 01:
What are you saying was the city's failure in that situation?

[00:18:05] Speaker 04:
I'm saying they are falsely telling him he failed the background check.

[00:18:08] Speaker 01:
What's your remedy?

[00:18:10] Speaker 04:
Money.

[00:18:10] Speaker 04:
Money damages.

[00:18:11] Speaker 04:
He wants money damages.

[00:18:12] Speaker 01:
Because he was falsely told that he had a background check?

[00:18:16] Speaker 04:
Because his right to due process was violated.

[00:18:19] Speaker 04:
His liberty right to due process, his property right to due process.

[00:18:23] Speaker 01:
Wouldn't a remedy be background check?

[00:18:29] Speaker 04:
If he were still wanting to get a job with the city, I suppose it would be to put him back to where he was and reapply again, possibly, but that's not what we're suing for.

[00:18:39] Speaker 04:
We're suing for money because his rights were violated.

[00:18:41] Speaker 01:
And your evidence to support your belief that he really didn't have a background check, are you assuming something standard about a background check?

[00:18:53] Speaker 01:
Well, I'm... Let me just see what's going through my head.

[00:18:59] Speaker 01:
You've had a couple of background checks in the past.

[00:19:02] Speaker 01:
You're not unknown to an employer.

[00:19:05] Speaker 01:
There's clearly a record.

[00:19:08] Speaker 01:
And it's not going to be unknown to those who are in the business of hiring people.

[00:19:14] Speaker 01:
Put a background check B, your name comes up, and they say, oh, there's a file there.

[00:19:19] Speaker 01:
No.

[00:19:21] Speaker 01:
We looked at it.

[00:19:22] Speaker 01:
There's nothing different in what he's given us.

[00:19:24] Speaker 01:
Now, that's our background check.

[00:19:26] Speaker 01:
We don't have to do anything more.

[00:19:27] Speaker 01:
We're done.

[00:19:28] Speaker 04:
Previously, though, whenever he'd had the background check, he had had to submit paperwork each time.

[00:19:33] Speaker 04:
That's precisely my point.

[00:19:35] Speaker 01:
There is nothing in the regulation that says a background check must be done in this way.

[00:19:42] Speaker 01:
Can a background check occur if someone already has had background checks and they've been negative and he is a known quantity in this employing situation?

[00:19:52] Speaker 01:
He comes in again.

[00:19:53] Speaker 01:
This known quantity is known.

[00:19:56] Speaker 01:
They look at his file and they say, no, we don't want to go with that person.

[00:20:00] Speaker 01:
Is that a background check?

[00:20:02] Speaker 01:
Why not?

[00:20:03] Speaker 04:
If it's not, maybe, but it's a deviation from their procedure.

[00:20:06] Speaker 03:
I thought your position was that he had not had ultimately a prior negative background check because when he appealed, he won every time.

[00:20:18] Speaker 03:
Every time he went to an independent agency, he wins his case.

[00:20:24] Speaker 03:
DCPS is relying, we know already we've been here before, it's relying in error.

[00:20:31] Speaker 04:
Correct.

[00:20:31] Speaker 04:
They can't be relying on the priors.

[00:20:34] Speaker 04:
The decision by the DC Human Rights Commission.

[00:20:38] Speaker 03:
Either his right to good faith and fair dealing, standard practice that everyone else would get, and or his due process rights.

[00:20:47] Speaker 03:
Is that your position?

[00:20:48] Speaker 02:
Yes.

[00:20:49] Speaker 02:
But now there are substantiated sexual harassment charges.

[00:20:52] Speaker 02:
They're not in the file, but people know about them.

[00:20:56] Speaker 02:
So that's the difference between this background check and the ones he had before.

[00:20:59] Speaker 02:
Now there are substantiated sexual harassment allegations.

[00:21:03] Speaker 04:
That's what the settlement agreement says.

[00:21:05] Speaker 04:
And so in that situation, then even if you could say, well, that's all we need in order to say that he failed the follow on background investigations, but he never received from the city, they're claiming that he failed, but then he's never received from the city, the actual notice and the actual appellate rights.

[00:21:23] Speaker 04:
So they're again, they're deviating from their prior procedure for how the background check is conducted.

[00:21:27] Speaker 01:
No, no, no, no, no, no, no.

[00:21:29] Speaker 01:
In my head, what I want to ask you is,

[00:21:32] Speaker 01:
What reg says they have to do that, or what agreement says they have to do it, if they looked and saw the reasons for the prior experiences they've had, what more do they have to say?

[00:21:43] Speaker 04:
Well, I cited the reg, Judge Ballard mentioned it, where if he did, in fact, fail the background check, he was entitled to appeal it to the DC Human Rights Commission.

[00:21:53] Speaker 01:
Did he try and appeal in the later times?

[00:21:56] Speaker 04:
Yes, this is what I'm talking about.

[00:21:57] Speaker 01:
So in the prior times... No, get me up to date.

[00:22:02] Speaker 04:
later times which we've been focused in the later times he was notified by email not the official notification that he received in the past he was notified by email that he failed he then repeatedly contacted the department to say well i got this notice over here from security you guys are then supposed to send me the official notice which has all of my appellate rights and the official written determination because in order to invoke the dc human rights commission's process

[00:22:30] Speaker 04:
He has to submit that to the commission so they know what the case is about.

[00:22:34] Speaker 04:
It's like when the lower clerk here forwards the record to this court.

[00:22:37] Speaker 04:
So he needed the city to do all of that, but they just stonewalled him.

[00:22:41] Speaker 04:
They just refused to answer any of his emails or even communicate with him at all.

[00:22:44] Speaker 01:
Well, part of your case on the due process violation, so I make sure I understand, is each time he was told that there was a background check, he had guaranteed right under city regs

[00:22:58] Speaker 04:
say I want to appeal that and he should have been given the process right and that process did happen before the settlement agreement and it did not happen after the settlement agreement because these folks decided they weren't going to hire him no matter what and we alleged that in our complaint paragraph 76 there is a witness who had told Mr McKinney that

[00:23:17] Speaker 04:
Higher up personal and department said they were not going to process him for employment, no matter what, no matter what he did in total violation of his contractual rights and civil rights.

[00:23:28] Speaker 02:
So at bottom, at least your contract claim hinders on shall be allowed means.

[00:23:34] Speaker 02:
we will process you and give you a background.

[00:23:36] Speaker 02:
In a normal way.

[00:23:37] Speaker 02:
Right.

[00:23:37] Speaker 02:
Exactly.

[00:23:38] Speaker 02:
Even though normal people who are allowed to apply don't have that right.

[00:23:42] Speaker 02:
Your contract claim depends upon him having rights beyond what other people who are allowed to apply have.

[00:23:49] Speaker 04:
Yes.

[00:23:50] Speaker 04:
A small fraction.

[00:23:51] Speaker 04:
Because a mere applicant, you don't have any of those rights.

[00:23:54] Speaker 04:
But Mr. McKinney is not a mere applicant.

[00:23:56] Speaker 04:
No, I understand that.

[00:23:57] Speaker 02:
But it's just not written to the contract.

[00:23:59] Speaker 02:
then you should have rights above and beyond what other applicants have.

[00:24:03] Speaker 02:
And on your due process right, then your claims depend upon, he has to have a due process right in getting a background check and appealing the background check.

[00:24:13] Speaker 02:
That's what he was entitled to.

[00:24:14] Speaker 04:
I don't know if I would articulate it that way, that he had a due process right in the background check.

[00:24:18] Speaker 04:
The background check is a mandate of the city's obligations for the hiring of teachers.

[00:24:25] Speaker 04:
He doesn't have to have a right to that.

[00:24:26] Speaker 04:
That's a normal part of the process.

[00:24:28] Speaker 04:
But what you're saying he was deprived of was the background check.

[00:24:31] Speaker 04:
The normal part of the process, yes.

[00:24:34] Speaker 04:
In this instance, it is the background.

[00:24:36] Speaker 03:
And I mean, you're saying he didn't get the background check, but more than that, the regulations talk about the ability to seek review

[00:24:52] Speaker 03:
And they say that the petitioner, in this case, Mr. McKinney, shall file a notice of appeal along with a copy of the suitability determination being appealed.

[00:24:59] Speaker 03:
And as I read your complaint in your briefing, a central part of Mr. McKinney's argument is that he's entitled to a suitability determination, and he never got one.

[00:25:13] Speaker 04:
The last two times.

[00:25:14] Speaker 04:
The first two times he did.

[00:25:15] Speaker 03:
The last two times he didn't.

[00:25:17] Speaker 03:
Right.

[00:25:18] Speaker 03:
And I mean, setting aside the applications where he got the sort

[00:25:23] Speaker 03:
What you characterize as like a premature suitability determination.

[00:25:27] Speaker 03:
Right.

[00:25:28] Speaker 03:
If you have a suitability determination and it's in.

[00:25:34] Speaker 03:
the situation of a school, in other words, a safety sensitive position, child or youth services, the determination is essentially establishing that the person presents a danger.

[00:25:45] Speaker 03:
That's what the reg says.

[00:25:47] Speaker 03:
That's what the reg says.

[00:25:48] Speaker 03:
Yes.

[00:25:48] Speaker 03:
So that's the liberty interest is that somebody who has been deemed.

[00:25:53] Speaker 03:
Officially to be a danger to children.

[00:25:55] Speaker 03:
To be a danger to children or youth.

[00:25:58] Speaker 03:
Right.

[00:25:58] Speaker 03:
And has no determination so safe.

[00:26:03] Speaker 03:
and has no ability to appeal it to the DC Commission on Human Rights.

[00:26:08] Speaker 03:
And I guess my question is, this isn't briefed.

[00:26:14] Speaker 03:
And I'm puzzled by why it wasn't briefed.

[00:26:17] Speaker 03:
But assuming that the background check looks into more than just criminal background, there's a settlement that says there's substantiated sexual harassment.

[00:26:26] Speaker 03:
against this individual.

[00:26:27] Speaker 03:
If that's part of a settlement, I'm not sure there's a need for an appeal.

[00:26:34] Speaker 03:
I mean, this will be a question for the government.

[00:26:37] Speaker 03:
But if there's substantial sexual harassment allegations, typically an appeal is needed to say, no, no, that's not the case.

[00:26:44] Speaker 03:
But in a settlement to which Mr. McKinney agreed, it says it is the case.

[00:26:53] Speaker 03:
I'm looking at paragraph two on page JA-24.

[00:26:55] Speaker 03:
I'm looking at it as well.

[00:26:56] Speaker 01:
You're glossing over there was a settlement here.

[00:26:59] Speaker 01:
Certain things were assumed and I don't see anything in that settlement saying you're entitled to the kind of process you're now claiming and I certainly don't see it in the regs.

[00:27:11] Speaker 01:
Normal person coming in the door.

[00:27:13] Speaker 01:
doesn't come in with this kind of paperwork.

[00:27:16] Speaker 03:
And I guess, I mean, I guess what I understand your position in light of the settlement is that he's entitled in light of whatever that was to a suitability determination, something that actually looks at that and says, oh, how much weight to give it because this settlement was before the Labor and Relations Board.

[00:27:35] Speaker 04:
He was entitled to another determination by the Human Rights Commission.

[00:27:39] Speaker 04:
If the city was going to rely on the settlement and say, well, we have these substantiated sexual harassment thing, he was entitled to at least argue that doesn't justify you denying my background.

[00:27:48] Speaker 03:
And just for clarity, the acts that are referenced in the substantiated sexual harassment, that's distinct from the acts that were the subject of his two prior disqualifications and appeals.

[00:28:02] Speaker 03:
Correct.

[00:28:02] Speaker 03:
This is new material.

[00:28:03] Speaker 03:
New material.

[00:28:09] Speaker 04:
Any other questions?

[00:28:11] Speaker 04:
At least we didn't have to parse through the fam in my case.

[00:28:30] Speaker 05:
Mr Johnson.

[00:28:31] Speaker 05:
Good morning.

[00:28:31] Speaker 05:
May I please the court.

[00:28:33] Speaker 05:
The allowed to apply language in the settlement agreement was not crafted out of whole cloth for the settlement agreement.

[00:28:40] Speaker 05:
That comes directly from the collective bargaining agreement.

[00:28:44] Speaker 05:
And unfortunately, there's no page numbers, so I'm going to give you the article numbers where you can look those up.

[00:28:48] Speaker 05:
At the collective bargaining agreement, 4.5.7, and again at 39.8.

[00:28:54] Speaker 05:
The first that I cited has to deal with teachers who are excessed, and the second has to deal with teachers who are rift.

[00:29:01] Speaker 05:
but both involve separations due to an excess or a rift.

[00:29:03] Speaker 05:
And they have the same language.

[00:29:05] Speaker 05:
And they say separated teachers shall have the right to reapply at any time.

[00:29:11] Speaker 05:
If rehired, they'll start at the next salary step.

[00:29:14] Speaker 05:
And if rehired within one year, there's no break in service for pension purposes.

[00:29:19] Speaker 05:
I want to be clear.

[00:29:20] Speaker 05:
That's the only purpose for which there's no break in service.

[00:29:23] Speaker 03:
So for probationary purposes, there is a break in service.

[00:29:26] Speaker 05:
That's yeah that's absolutely correct and that's why I wanted to emphasize that even though that's not part of the contractual that's more the property interest side but I want to make sure that's emphasized while we're talking about this.

[00:29:35] Speaker 05:
So the collective bargaining agreement, I mean, the settlement agreement, once it's read in context with the collective bargaining agreement, the only thing it promises is that despite taking the buyout, Mr. McKinney is going to be allowed to apply the next year instead of having to wait for three years.

[00:29:51] Speaker 05:
And that promise wasn't anything special.

[00:29:54] Speaker 05:
That is the same right that anybody gets under the collective bargaining agreement if they're separated.

[00:29:59] Speaker 05:
It just allowed him to take the buyout even though the time for doing so had passed.

[00:30:04] Speaker 05:
He then released all of his challenges against the administrative actions being taken, the employment actions being taken against him.

[00:30:11] Speaker 05:
And they settled for that.

[00:30:13] Speaker 05:
Nowhere in there is there some right to a predetermination background check.

[00:30:18] Speaker 03:
No, no, no, no.

[00:30:19] Speaker 03:
But what about the jobs?

[00:30:20] Speaker 03:
You get a right to apply, presumably, in something.

[00:30:24] Speaker 03:
It's not an empty phrase.

[00:30:26] Speaker 03:
So he applies, gets offered the job.

[00:30:30] Speaker 03:
Typically, in the private sector, done deal.

[00:30:34] Speaker 03:
You know, but schools, so the government has an obligation and does a background check.

[00:30:41] Speaker 03:
And his claim is, but you're not doing the background check the way you do it for everybody else.

[00:30:48] Speaker 03:
You're giving me a ding before I even get a suitability determination.

[00:30:53] Speaker 03:
You're treating me as unsuitable.

[00:30:55] Speaker 03:
upfront.

[00:30:56] Speaker 03:
I mean, that's alleged.

[00:30:57] Speaker 03:
I don't know whether that's what happened, but that's alleged.

[00:30:59] Speaker 03:
And that seems like that does stay.

[00:31:01] Speaker 03:
Or why doesn't that state a violation of good faith and fair dealing?

[00:31:04] Speaker 03:
And why doesn't that impinge a liberty interest in a reputation when it's saying you're danger to children?

[00:31:11] Speaker 05:
So there's a lot to unpack there, and I want to take it in a few different pieces.

[00:31:15] Speaker 05:
I will.

[00:31:15] Speaker 05:
I will.

[00:31:16] Speaker 05:
I assure you.

[00:31:17] Speaker 05:
So let's start with just the factual allegation that he was offered jobs.

[00:31:22] Speaker 05:
He says he was offered jobs by principals.

[00:31:25] Speaker 05:
Now, a principal might say, I like you, and I'm going to recommend that you get offered the job, but

[00:31:30] Speaker 05:
By law, the chancellor is the one with the final discretion to say yes or no.

[00:31:35] Speaker 05:
So he didn't have binding job offers from DCPS.

[00:31:38] Speaker 03:
But you're not telling him that every person hired in DCPS actually goes and gets checked off by the chancellor.

[00:31:45] Speaker 03:
That's sort of a legal background.

[00:31:47] Speaker 03:
If there's a problem, I presume that is a way of effectuating the background check requirement.

[00:31:52] Speaker 03:
Well, if his background check came through flying colors, he still would have had to get a chancellor sign off.

[00:31:57] Speaker 05:
I think that the chancellor would have had the discretion to say no, absolutely.

[00:32:01] Speaker 05:
Absolutely.

[00:32:02] Speaker 05:
But I think that matters for purposes of the contract.

[00:32:04] Speaker 03:
It may matter for purposes of due process.

[00:32:06] Speaker 05:
I'm not sure it matters for purposes of the contract.

[00:32:09] Speaker 05:
So let's move forward on that in the contract and let's assume that.

[00:32:13] Speaker 05:
Well, he's still, nothing under the contract gives him any right to, uh, to, to, to,

[00:32:21] Speaker 05:
Sorry, I'm reframing this in my head because to me, he didn't have a job offer.

[00:32:26] Speaker 05:
I don't see how he could possibly claim to have a job offer when his job was being submitted to headquarters to see whether they would hire him.

[00:32:34] Speaker 03:
How would you put that?

[00:32:34] Speaker 03:
He had a principal that wanted to hire him, subject to approval downtown.

[00:32:42] Speaker 05:
So I think that any teacher who has been previously employed and they're reapplying and it's subject to approval downtown downtown gets a chance to consider whether that's the person they want to hire and nothing is saying part of that background check part of that is a background check.

[00:33:00] Speaker 05:
a background check looks at your background and makes a determination about it tells you what it was and if it's wrong you get to appeal it you don't deny any of that do you but you don't get any i don't i don't deny that but you don't get that until you've been given an official job offer a formal job offer from dcps not from the principal they did

[00:33:23] Speaker 03:
background checks, they claim they did them.

[00:33:24] Speaker 03:
In fact, it's the plaintiff that's saying you didn't really do it.

[00:33:27] Speaker 03:
So the position of DCPS has to be, we proceeded into the background check stage, not that the chancellor didn't even allow that to happen.

[00:33:35] Speaker 05:
Right now, the position of DCPS is that we're looking at the four corners of the complaint, and the four corners of the complaint, to be fair, say, we don't think a background check was conducted.

[00:33:44] Speaker 05:
It's not saying for sure there wasn't, so you have to look at it both ways.

[00:33:48] Speaker 05:
We're not at a place in litigation yet for DCPS to be saying what happened.

[00:33:51] Speaker 05:
There's been no discovery.

[00:33:52] Speaker 05:
What we're saying is if you look at the four corners of this contract, it would be astonishing and implausible that DCPS would have agreed that a jury gets to decide whether this this individual was given fair consideration and that the jury would get to decide whether any person who was separated and reapplies back.

[00:34:10] Speaker 03:
If you went back to the district court, there would be summary judgment proceedings.

[00:34:15] Speaker 03:
You would say, you don't deny this document, this document, this document.

[00:34:19] Speaker 03:
The chancellor sent you a letter saying, sorry, we're actually not interested, so we're not going to do a background check.

[00:34:25] Speaker 03:
OK.

[00:34:26] Speaker 03:
Or we did one, and here's the notice of determination we sent you.

[00:34:31] Speaker 03:
Whatever.

[00:34:32] Speaker 03:
I mean, but so you know you wouldn't go to a jury necessarily, but we're looking at allegations.

[00:34:38] Speaker 03:
And the question is, do these allegations state a claim that even though this person was had a protected right to apply.

[00:34:47] Speaker 03:
He was not treated in the regular course of application that would apply to anyone else.

[00:34:56] Speaker 03:
He was dinged in a way that's contrary to the regulations and that's contrary to the usual process.

[00:35:02] Speaker 05:
That's his claim.

[00:35:03] Speaker 05:
I mean, I see that that's his claim.

[00:35:05] Speaker 05:
And we think that the contract is so clear.

[00:35:08] Speaker 05:
that there'd be no need to go beyond the four corners and go into what the parties intended or what happened.

[00:35:13] Speaker 03:
Can I ask a question?

[00:35:15] Speaker 03:
Wait, let me just get an answer to this.

[00:35:17] Speaker 05:
What is it clear about?

[00:35:18] Speaker 05:
It's clear that the only thing that was promised was that he would not be precluded from applying because he took the buyout.

[00:35:28] Speaker 05:
He was not precluded from applying because he took the pie out.

[00:35:31] Speaker 05:
That's the only thing that I think that the contract can be read to provide.

[00:35:34] Speaker 05:
It's very careful language, right to apply.

[00:35:36] Speaker 05:
And I just, I want to point out, and I do want to have time to get to the constitutional claim.

[00:35:42] Speaker 05:
So I understand where the court comes from this, but I want to point out that the only hiring case, I mean, hiring decisions are very discretionary.

[00:35:49] Speaker 05:
There's a lot of judgment involved in the only hiring case.

[00:35:52] Speaker 05:
that Mr McKinney has come up with is from a district court in Oregon where somebody had a right to apply for a vacancy.

[00:35:58] Speaker 05:
And the only reason there was any sort of hint of an implied covenant of good faith and fair dealing is because in that case, the school district privatized its janitorial service and got rid of the vacancies altogether.

[00:36:10] Speaker 05:
I think the implied covenant of good faith and fair dealing doesn't mean that your application is going to be given some sort of

[00:36:18] Speaker 05:
fair consideration or extra consideration.

[00:36:20] Speaker 05:
I don't know what that means.

[00:36:21] Speaker 05:
That's beyond the rights that someone else would have.

[00:36:24] Speaker 05:
And I don't think that this court, because of that, has any reason to get into whether or not there was a background check or anything like that.

[00:36:34] Speaker 05:
So that's where we think that the contract stands.

[00:36:36] Speaker 05:
I understand if this court thinks it needs factual development.

[00:36:39] Speaker 05:
We just think that that would be futile given the language of the complaint and how it connects to the collective bargaining agreement.

[00:36:45] Speaker 02:
So it seems to me that

[00:36:48] Speaker 02:
A lot of this colloquy stems or relies on the fact that he's being treated differently from other people and somehow that implicates good faith and fair dealing.

[00:36:59] Speaker 02:
I thought it was useful that you said that this term allows to apply comes from a CBI.

[00:37:05] Speaker 02:
Is that understood in the context of the CBI when you're allowed to apply that that means they're going to in good faith process applications and that kind of thing?

[00:37:14] Speaker 05:
All I think it means is that you're not precluded from applying because of something else in the collective bargaining group.

[00:37:20] Speaker 02:
Your answer is no.

[00:37:21] Speaker 02:
CBI allowed to apply doesn't mean you're entitled to a background check or any processing.

[00:37:28] Speaker 02:
I think that's right.

[00:37:28] Speaker 02:
And then average applicants, anybody

[00:37:31] Speaker 02:
who walks in off the street and applies for a job with DCPS, do they have a right to a background check if they're offered a job?

[00:37:38] Speaker 05:
No, they don't have a right to an offer.

[00:37:42] Speaker 05:
They don't have a right to any sort of process until they are formally hired, until they have signed the hiring documents.

[00:37:49] Speaker 02:
It could happen, just a hypothetical.

[00:37:51] Speaker 02:
Somebody gets offered a job to be a gym teacher at Elliott Middle School.

[00:37:56] Speaker 02:
And at that point, DCPS decides just not to do the background check.

[00:38:00] Speaker 02:
Do they have a right to that background check?

[00:38:02] Speaker 05:
No, they don't have a right to that background check.

[00:38:03] Speaker 02:
And I just wanted to be clear.

[00:38:04] Speaker 02:
So therefore, what is being asked for in interpreting just allowed to apply in this settlement is that somehow this Mr. McKinney was entitled to something above and beyond what

[00:38:20] Speaker 02:
other employees subject to the CBI get and what other applicants off the street get, but it's not written into the contract.

[00:38:29] Speaker 05:
That's correct.

[00:38:30] Speaker 05:
That's correct.

[00:38:30] Speaker 05:
And I want to explain my hesitation when we start talking about good faith.

[00:38:34] Speaker 05:
Obviously, we want our government officials to act in good faith.

[00:38:37] Speaker 05:
And obviously, it's best practices to do so.

[00:38:40] Speaker 05:
But when we're talking about the implied covenant of good faith and fair dealing, I'm talking about a specific covenant under the contract.

[00:38:47] Speaker 05:
And not every term of a contract is going to be susceptible to violations of that without some sort of absurd hypothetical.

[00:38:58] Speaker 05:
Anyway, with that in mind, I would like to turn to the constitutional claims that have much more far-reaching consequences.

[00:39:03] Speaker 03:
I just have one question about that.

[00:39:05] Speaker 03:
When Judge Pan asked you if, under the collective bargaining agreement, you're allowed to apply, let's say, after three years, or what's the standard term that this is modeled on?

[00:39:16] Speaker 03:
You said this is modeled on a standard term of a collective bargaining agreement?

[00:39:19] Speaker 05:
Yes, it's the collective bargaining agreement for the teachers union and the district.

[00:39:22] Speaker 05:
Where if you're laid off, you get to reapply after three years?

[00:39:25] Speaker 05:
No, no, no.

[00:39:26] Speaker 05:
If you are laid off, if you are separated and pursuant to that, you may reapply at any time.

[00:39:32] Speaker 05:
Right.

[00:39:33] Speaker 05:
Unless you took the buyout.

[00:39:34] Speaker 03:
Right.

[00:39:35] Speaker 03:
And this is giving him the you may reapply at any time, even though he took a buyout.

[00:39:40] Speaker 03:
Correct.

[00:39:40] Speaker 03:
So it's sort of melding two different statuses.

[00:39:42] Speaker 03:
But you're saying that under the collective bargaining agreement, a right to reapply

[00:39:46] Speaker 03:
doesn't mean a right to be treated as any other applicant?

[00:39:51] Speaker 03:
No, no, no, no, I apologize.

[00:39:52] Speaker 03:
I heard you say no in answer to her.

[00:39:55] Speaker 05:
I think I was confused by the phrasing of the question or it was maybe it's just my own problem.

[00:39:58] Speaker 05:
I apologize for that.

[00:40:00] Speaker 05:
It gives you the right to be treated exactly as any other applicant and other...

[00:40:04] Speaker 01:
Which is you don't have anything until someone ends you a piece of paper and says you're hired.

[00:40:08] Speaker 01:
That's exactly right.

[00:40:09] Speaker 01:
You have a right to go through the process as the school defines it and you wait and you hope for the best.

[00:40:14] Speaker 05:
And before and you don't have and this is what I think sort of segues into the property interest because I think this is important.

[00:40:21] Speaker 05:
You don't have a property interest to not be hired without cause before you're hired and then you have to serve and then you have to serve.

[00:40:29] Speaker 03:
I mean good faith and fair dealing is a different threshold.

[00:40:31] Speaker 05:
It is, I'm sorry, I was turning to that before, if that was before it was ready.

[00:40:35] Speaker 03:
It gives you the right to be treated as anyone else and DCPS, it's not that you have a right to a background check, it's that anybody who's...

[00:40:44] Speaker 03:
going to be hired that a principal wants to hire has to clear a background check, right?

[00:40:48] Speaker 03:
It's not that you sort of can say, oh, we're not even going to do that.

[00:40:52] Speaker 05:
No, anyone the chancellor wants to hire and is offered, formally offered a job by DCPS itself, then gets a background check.

[00:40:59] Speaker 05:
And they don't have a right to the background check.

[00:41:01] Speaker 05:
It's just that if they formally fail the background check, they can appeal that.

[00:41:06] Speaker 05:
Right.

[00:41:06] Speaker 03:
But if the principal wants you, and if it's fine with the chancellor to hire whoever the principal wants,

[00:41:15] Speaker 03:
then you still would have to have a background check.

[00:41:18] Speaker 03:
Yes.

[00:41:19] Speaker 03:
And there is an ordinary way that that happens.

[00:41:23] Speaker 03:
And if you fail it, you get a notice of determination, notice of ineligibility, right?

[00:41:31] Speaker 05:
I mean, that's, I think, it's alleged in the complaint to be standard practice.

[00:41:34] Speaker 05:
That's not in the law that you get a formal determination.

[00:41:37] Speaker 03:
Well, these regulations would say that in order to appeal,

[00:41:43] Speaker 03:
you need to bring your final suitability determination to the Human Rights Commission.

[00:41:53] Speaker 05:
Well, and I was, I apologize because I was jumping ahead from contract to Liberty Interest because yeah, the regulations do say you're supposed to get a formal determination.

[00:42:01] Speaker 05:
But I don't think that the denial of a formal determination means that somebody has not been given the process that they're due.

[00:42:08] Speaker 05:
Mr. McKinney knew he could go

[00:42:10] Speaker 05:
to the commission on mental health, on human rights.

[00:42:14] Speaker 05:
And there's no way that if he had gone, I know I'm jumping ahead, I apologize, but if he had gone to the commission on human rights and said, I have an email saying I failed a background check, but the agency won't tell me why, the commission wouldn't deny his appeal.

[00:42:25] Speaker 05:
The commission would have said, well, DCPS, why did he fail?

[00:42:28] Speaker 05:
And then DCPS would have said, oh, he didn't, or he did, and here's why.

[00:42:32] Speaker 05:
And they would have proceeded.

[00:42:33] Speaker 05:
And I want to point this court to McCormick on this point, because in McCormick, the plaintiff did not think he had a right to appeal.

[00:42:40] Speaker 05:
And the court said there's a provision in the CMPA that gives you a right to go to the Superior Court

[00:42:45] Speaker 05:
if you think that you were entitled to severance pay, and that would have given you the name clearing hearing.

[00:42:51] Speaker 05:
And again, I'm going out of order here, but I want to give this court one other site that's not in my brief because I think it's important to this point.

[00:42:57] Speaker 05:
It's Johnson, Sally Johnson versus District of Columbia.

[00:43:00] Speaker 05:
The citation is 552 Federal Third 806.

[00:43:05] Speaker 05:
And at footnote eight, this is an employee who was claiming that the district refused to proceed with arbitration when it was supposed to.

[00:43:14] Speaker 05:
And what the court said was that she had all the process that she was due because the law gave her an administrative remedy to go to perp and force DC to arbitrate.

[00:43:25] Speaker 05:
That goes much further into Liberty interest than I think is necessary.

[00:43:28] Speaker 05:
I think there's other ways to deal with the Liberty interest claim.

[00:43:31] Speaker 05:
But I find it astonishing that Mr. McCormick doesn't think he had a right to appeal when the law gave him a right to appeal and he did not attempt to do so.

[00:43:39] Speaker 03:
In fact, he could probably now bring a Section 1983 Liberty claim in Superior Court or in the District Court if he wanted to.

[00:43:48] Speaker 05:
Well, this is a Section 1983 Liberty interest claim.

[00:43:50] Speaker 05:
I mean, that's the claim he's bringing.

[00:43:53] Speaker 05:
We don't think that he states a claim.

[00:43:55] Speaker 05:
And I'm happy to turn to liberty interest.

[00:43:56] Speaker 05:
I think that that's important to do so.

[00:43:59] Speaker 05:
I have a couple layers.

[00:44:00] Speaker 05:
So with the court's indulgence, the first thing I really want to point out is he's forfeited his debarment claim.

[00:44:06] Speaker 05:
He did not make a debarment claim in the Superior Court.

[00:44:09] Speaker 05:
If you look at Record Document 8, that's his opposition to the motion to dismiss, at pages 8 to 11, all he talks about is an injury to his reputation if DCPS

[00:44:19] Speaker 05:
published their determination that he failed a background check.

[00:44:22] Speaker 05:
That's all he says.

[00:44:23] Speaker 05:
He never says that he was formally debarred.

[00:44:27] Speaker 05:
And even his last paragraph, there's a fragment of a sentence that says that he was completely precluded from obtaining any teaching position in any public school in the district.

[00:44:36] Speaker 05:
And the sentence goes on to say, and would be as well from any other school in the district, as a result, he's foreclosed from entering the field.

[00:44:44] Speaker 05:
So I just want to lay that out there that we think that's forfeited.

[00:44:46] Speaker 05:
But even beyond that, if you look at the Liberty interest, there's sort of two different sides of looking at it.

[00:44:52] Speaker 05:
Either there was a formal determination or there wasn't.

[00:44:56] Speaker 05:
And if there was a formal determination that he failed a background check, even if

[00:45:02] Speaker 05:
even if that could be relied on by even if that was binding, which we don't think it was because it's discretionary for future job offers, one year debarment from one agency cannot rise to the level of liberty interest deprivation.

[00:45:16] Speaker 05:
And we know that from this court's Langman decision two years ago, where this court said that even if someone was automatically formally precluded, a special agent from ever working for the FBI again, that doesn't rise to the level of a liberty interest deprivation.

[00:45:31] Speaker 05:
And

[00:45:32] Speaker 05:
So given the high bar that you have to clear to show that you've been denied of not a property interest, but a liberty interest in following your chosen occupation, there's just no way to square Langman where somebody couldn't work in his field for the FBI ever again.

[00:45:50] Speaker 05:
And somebody where the District of Columbia, DCPS just didn't want him, didn't want to hire him.

[00:45:58] Speaker 05:
That's if it was formal.

[00:46:00] Speaker 05:
If it was informal.

[00:46:01] Speaker 05:
I mean, Mr. McKinney is trying to argue that you can be informally debarred, but not have to satisfy the broad preclusion standards that are required for that standard of the stigma plus test.

[00:46:16] Speaker 05:
And it's one or the other.

[00:46:18] Speaker 05:
Either it was formal, automatic, binding exclusion.

[00:46:21] Speaker 05:
I believe Crooks uses the word change in legal status.

[00:46:25] Speaker 05:
Either it was that and it was formal, or if it was de facto debarment, he has to show that this would preclude him from obtaining other work in his chosen field.

[00:46:33] Speaker 05:
He clearly can't do so.

[00:46:34] Speaker 05:
He's abandoned that claim and is now only pursuing the debarment claim.

[00:46:39] Speaker 05:
So I want to make sure, I know my time has run out, and there's a few things that I just want to make sure I cover that came from the reply brief.

[00:46:48] Speaker 05:
Mr. McKinney, in support of his claim that he can pursue a debarment claim as opposed to the broad foreclosure claim, says,

[00:46:55] Speaker 05:
that in Campbell, this court said that that was a jury question.

[00:46:58] Speaker 05:
But Campbell was not a formal debarment claim.

[00:47:01] Speaker 05:
It was a broad foreclosure claim.

[00:47:03] Speaker 05:
And that would be a much, I mean, we don't think it's a close question here.

[00:47:07] Speaker 05:
And he's abandoned that claim here.

[00:47:09] Speaker 05:
But that could go to a jury.

[00:47:10] Speaker 03:
But under Cartseva, there's the binding disqualification.

[00:47:12] Speaker 03:
And he relies on Cartseva.

[00:47:14] Speaker 03:
And he says that this is a legal conclusion by DCPS that he presents present danger.

[00:47:21] Speaker 03:
And so even though he can work in Maryland,

[00:47:23] Speaker 03:
He's debarred in DC.

[00:47:25] Speaker 03:
I'm not sure I'm seeing the, I know you're making a forfeiture argument, but when I look at the District Court document that you're citing to, it doesn't seem to me that clear, that it's limiting itself to the broad preclusion as opposed to the formal, but perhaps

[00:47:46] Speaker 03:
you know, more limited debarment claim.

[00:47:48] Speaker 03:
It seems like they're both in there.

[00:47:49] Speaker 05:
I mean, this court can consider the claim even if he did forfeit.

[00:47:52] Speaker 05:
So what I'm pointing out is that the point of issue preservation is to put people on notice of the argument that you're making.

[00:47:58] Speaker 05:
And nobody thought he was making that argument until appeal.

[00:48:01] Speaker 05:
The district court didn't think so.

[00:48:02] Speaker 05:
The District of Columbia didn't think so.

[00:48:04] Speaker 05:
So that's all I'm saying.

[00:48:06] Speaker ?:
But

[00:48:06] Speaker 05:
If we're dealing with the formal binding debarment, there's so many layers by which he doesn't state a claim.

[00:48:13] Speaker 05:
First of all, he says that there was no formal determination.

[00:48:16] Speaker 05:
But even if there was a formal determination, it wasn't binding because at 6B DCMR 406.9, as cited in my brief,

[00:48:25] Speaker 05:
It says that an adverse suitability determination may be relied on in future job applications at the discretion of the personnel authority.

[00:48:35] Speaker 05:
And I would contest that discretion means that it's not automatic or binding.

[00:48:39] Speaker 05:
So there's that layer in which we think that claim fails.

[00:48:42] Speaker 05:
But even if this court says, well, we think that that's binding enough, then we come down to the fact that it can only be relied on for one year and only for DCPS, not for other schools.

[00:48:53] Speaker 05:
There are more than 200 non-DCPS schools

[00:48:58] Speaker 05:
I apologize, I'm winding up.

[00:49:01] Speaker 05:
There are more than 200, I mean, I just looked it up on Google.

[00:49:04] Speaker 05:
So there are more than 200 non-DCPS public schools in the district alone.

[00:49:09] Speaker 05:
If in Langman, a special agent with highest skills in investigation

[00:49:16] Speaker 05:
If his permanent debarment from working for the FBI ever again can't rise to the level of a liberty interest, then what is at most a one-year debarment from working for DCPS cannot either.

[00:49:29] Speaker 05:
And then, of course, there's our final argument, which is that he had the process he was due, even if this had turned into that sort of a deprivation.

[00:49:40] Speaker 05:
Thank you.

[00:49:46] Speaker 04:
So some interesting points here.

[00:49:49] Speaker 04:
My friend adverts to where we are in the litigation, not at this place in the litigation.

[00:49:55] Speaker 04:
So there's been no discovery, I would note.

[00:49:57] Speaker 04:
We're very, very early in this case, this motion to dismiss.

[00:50:01] Speaker 04:
And I think that contrary to what's asserted here, what the discovery will show is further proof of what we've alleged.

[00:50:08] Speaker 04:
The really bad acts in this case are behind the scenes, all of those facts

[00:50:13] Speaker 04:
would have to come out and discovery because they're purely within the purview of the defendant in this case.

[00:50:19] Speaker 04:
I also understood the argument from the city to be that somehow the covenant of good faith and fair dealing doesn't apply to the collective bargaining agreement.

[00:50:29] Speaker 04:
And I think the Washington teachers union would be shocked to know that the city is taking that position.

[00:50:35] Speaker 04:
I think that's clearly not correct.

[00:50:37] Speaker 03:
I think she disavowed that.

[00:50:39] Speaker 04:
Perhaps later.

[00:50:41] Speaker 04:
In terms of what arguments were raised below, were not raised below, I would remind the court that we're on de novo review in this case of a 12b6 motion, and that consequently, this court's obligation is to examine the complaint independently to determine if the factual allegations could provide for relief under any viable legal theory, even one not mentioned therein.

[00:51:04] Speaker 04:
This is Edmonds v. U.S.

[00:51:05] Speaker 04:
Postal Service, a concurrence and dissent by Judge Silberman.

[00:51:10] Speaker 04:
What the court has to do here is determine whether the complaint states causes of action.

[00:51:14] Speaker 04:
You're redoing what the district court did.

[00:51:16] Speaker 04:
You're not deferring to that judgment.

[00:51:18] Speaker 02:
And on the Liberty claim, you're not asserting a reputation plus or stigma theory, right?

[00:51:22] Speaker 02:
That's what it says on page 23 of your report.

[00:51:25] Speaker 04:
Right.

[00:51:26] Speaker 04:
That's kind of gotten refined as we've gone.

[00:51:27] Speaker 04:
What we're asserting is most clearly stated in my reply brief, which is under CART SEVA.

[00:51:32] Speaker 04:
is sort of a sub part of the stigma plus.

[00:51:36] Speaker 04:
Yeah.

[00:51:37] Speaker 03:
So, um, she said you're not asserting a stigma plus theory.

[00:51:45] Speaker 03:
And you just said, yes, we are a sub part of the stigma plus theory in the reply.

[00:51:55] Speaker 03:
That's the last argument in the reply stigma theory.

[00:52:01] Speaker 03:
based on preclusion, stigma debarment, right?

[00:52:09] Speaker 03:
It's just a debarment theory.

[00:52:10] Speaker 03:
Correct.

[00:52:10] Speaker 03:
Which is a form of stigma plus theory.

[00:52:13] Speaker 04:
It is.

[00:52:13] Speaker 04:
It's one of the subparts.

[00:52:14] Speaker 04:
Cardiceva makes it clear that there's sort of two versions of that.

[00:52:17] Speaker 04:
We're under one.

[00:52:22] Speaker 04:
And it obviously is clear that Mr. McKinney is teaching in Maryland.

[00:52:27] Speaker 04:
But the fact that the district has effectively debarred him from any teaching position in the city is really the issue.

[00:52:35] Speaker 04:
So as I said in my papers below that he doesn't have to be debarred by the city from any teaching job in the entire universe of the planet.

[00:52:44] Speaker 04:
The problem is that he's debarred from teaching in both public and private schools because even the private schools in the district have to go through this background check because their positions are for teachers.

[00:52:55] Speaker 04:
There is also, and I cite this in the reply.

[00:52:57] Speaker 02:
But your complaint says he didn't get background checks for the two that he.

[00:53:04] Speaker 02:
Right, but they're claiming.

[00:53:05] Speaker 02:
I know, but I just want to understand, have you alleged in your complaint that he's forever barred and he'll never ever get a background check if he ever gets another employment opportunity?

[00:53:14] Speaker 02:
Because that seems to be required by this department theory, right?

[00:53:21] Speaker 04:
Well, if the city is going to maintain the position that it has, that he is the guard, the answer is yes.

[00:53:28] Speaker 02:
So your complaint has to allege that he will never ever, if he ever gets another offer, get a background check again, doesn't it?

[00:53:36] Speaker 02:
Because that's a different theory from, I was entitled and you already deprived me of the ones I got.

[00:53:42] Speaker 04:
I think only we would have to allege that he was precluded from any position in the district.

[00:53:51] Speaker 02:
In what time frame, though?

[00:53:53] Speaker 02:
I mean, just not getting two jobs doesn't mean that you're excluded from it.

[00:53:59] Speaker 04:
Well, I think the pattern is clear that it doesn't matter how many times he applies.

[00:54:02] Speaker 04:
He's never going to be.

[00:54:03] Speaker 04:
But you have to love that.

[00:54:08] Speaker 02:
To support this theory, you would have to allege more than he didn't get fact checks for two.

[00:54:12] Speaker 02:
You would have to say.

[00:54:13] Speaker 02:
And that precludes him from ever getting any job.

[00:54:24] Speaker 01:
what do you what so that i understand what do you think is the stigma that he's been here the mayor the mere failure to get a position no or some accusation about past active what is the stigma the fact that the claim by the city that he failed the background check right legally means pursuant to city's regs that he is a danger to children

[00:54:52] Speaker 04:
that the regulations say, if you fail the background check, that's what the determination concludes.

[00:54:57] Speaker 03:
And you're referring to the final suitability determination shall establish whether the appointee or employee presents a present danger to children, are you?

[00:55:06] Speaker 04:
Correct.

[00:55:06] Speaker 04:
He's a teacher and a coach, and he's been determined by the city to be a danger to children.

[00:55:10] Speaker 01:
This is absolutely- As if an applicant is denied because he presents.

[00:55:16] Speaker 01:
Can't you?

[00:55:16] Speaker 01:
That's what I'm looking at.

[00:55:20] Speaker 01:
If you know what it says, if an applicant is denied because the applicant presents a danger to children, can't you be denied a background check reasons other than that?

[00:55:31] Speaker 04:
Well, nobody knows what the city's reasons are in this case.

[00:55:34] Speaker 01:
Do we even know what he's been denied?

[00:55:36] Speaker 04:
Why he says the city won't say that's the whole point.

[00:55:39] Speaker 01:
That's exactly my point.

[00:55:40] Speaker 01:
What's the stigma?

[00:55:42] Speaker 01:
So in other words, there are plenty of people who can be in a situation with denied a background check.

[00:55:48] Speaker 01:
We don't assume that it has to do with this particular regulation.

[00:55:52] Speaker 04:
I think for teachers, yes, we do.

[00:55:54] Speaker 04:
We assume that it means that they're not safe to be around children.

[00:55:57] Speaker 01:
Why would we assume that if you denied a background check, the only reason?

[00:56:03] Speaker 04:
Because the reason they're being subjected to the background check is because they're around children.

[00:56:09] Speaker 04:
That's the purpose.

[00:56:11] Speaker 01:
No, it says, this reg says, because the applicant presents a danger to children.

[00:56:19] Speaker 01:
But there are other reasons a school might not want you working around children, not necessarily because you're a danger, but because in their view, they just don't want you in our school.

[00:56:30] Speaker 01:
You're not the model we want.

[00:56:33] Speaker 01:
You all have been equating this dangerousness thing as if it's a given.

[00:56:38] Speaker 01:
It's not in the record that that's what they ever said.

[00:56:41] Speaker 01:
Indeed, that's somehow strange, would be strange given that there was a settlement.

[00:56:46] Speaker 01:
He washed away.

[00:56:48] Speaker 01:
It's not making sense.

[00:56:49] Speaker 01:
He settled this case.

[00:56:51] Speaker 04:
No, he settled the case from 2018.

[00:56:52] Speaker 04:
That's right.

[00:56:54] Speaker 01:
Well, that's involves him and whatever it is that people think about him.

[00:57:00] Speaker 01:
And I'm not sure where the assumption about dangerousness comes up.

[00:57:04] Speaker 01:
It's not anywhere.

[00:57:06] Speaker 04:
It's because the purpose of the background check is to ensure the safety of children.

[00:57:11] Speaker 01:
Where does it say the only reason the city, the schools use a background check is if we're concerned?

[00:57:17] Speaker 01:
No, actually the way you're saying it, if you're denied a background check, it will only be because a determination has been made that you present a danger to children.

[00:57:28] Speaker 01:
I don't know where that's coming from.

[00:57:30] Speaker 04:
I don't have the regulation in front of me.

[00:57:32] Speaker 01:
I do.

[00:57:33] Speaker 01:
And that's not what it says.

[00:57:35] Speaker 04:
Not every job in the city is subjected to this background check.

[00:57:39] Speaker 04:
It has to do with safety considerations.

[00:57:41] Speaker 04:
The kinds of jobs that are... No, no, no.

[00:57:43] Speaker 01:
We're talking about a stigma.

[00:57:45] Speaker 01:
You've got to show in all this case law you've been pointing to, you're forgetting the stigma part.

[00:57:52] Speaker 01:
The mere fact that you denied a background check is not necessarily stigmatizing.

[00:58:00] Speaker 01:
When no one has said simultaneously to the world or anyone else,

[00:58:05] Speaker 01:
that this person is a danger to children.

[00:58:07] Speaker 01:
And there's nothing that says the only people who get denied a background check are those who are dangerous to children.

[00:58:14] Speaker 01:
That's not what the reg says.

[00:58:15] Speaker 04:
But for a teacher to be denied a background check carries that implication.

[00:58:20] Speaker 03:
So I'm really confused about this.

[00:58:21] Speaker 03:
And I actually meant to ask the government if the background check is more than a criminal background check.

[00:58:27] Speaker 03:
And maybe we can actually hear from, just do you have any legal site

[00:58:32] Speaker 03:
Sorry to call you up.

[00:58:33] Speaker 03:
I know that's not.

[00:58:34] Speaker 05:
No, it's fine.

[00:58:36] Speaker 05:
I meant to address it.

[00:58:38] Speaker 05:
This is not something that was raised in briefing.

[00:58:39] Speaker 05:
I didn't bring the statute with me.

[00:58:41] Speaker 05:
I don't know the answer.

[00:58:43] Speaker 03:
So there is a statute about criminal background checks.

[00:58:49] Speaker 03:
And that is DC statute 4-1501.05a.

[00:58:58] Speaker 03:
And it says the information obtained from the criminal background check shall not create a disqualification or presumption against employment or volunteer status of the applicant.

[00:59:08] Speaker 03:
Unless the mayor determines that the applicant poses a present danger to children or youth.

[00:59:15] Speaker 03:
And then

[00:59:16] Speaker 03:
The regulation says for appointees to and employees in safety-sensitive positions at a covered child or youth provider, the final suitability determination shall establish whether the appointee or employee presents a present danger to children or youth.

[00:59:34] Speaker 03:
So if that's the background check we're talking about.

[00:59:37] Speaker 01:
Aren't you looking at it like the information obtained from the criminal background check shall not create disqualification?

[00:59:43] Speaker 01:
No, the one above, if an applicant is denied,

[00:59:46] Speaker 01:
Well, it doesn't tell.

[00:59:49] Speaker 03:
Because the applicant presents a present danger to children, youth may or shall inform them in writing and they may.

[00:59:54] Speaker 01:
Because the applicant presents.

[00:59:56] Speaker 03:
Right, but that the A, which that is a procedural concomitant to.

[01:00:02] Speaker 03:
says that it's not a disqualification unless there's a present danger and in making that determination.

[01:00:08] Speaker 03:
So to me, this does suggest that a denial is based on a determination that you're a danger to children or youth.

[01:00:18] Speaker 05:
I think, if I can proffer, that some of the disconnect is between what's being called a denial of a background check and what's being called a failed background check.

[01:00:31] Speaker 05:
The district's position is that Mr. McKinney was not entitled to any of this because headquarters did not offer him a job.

[01:00:40] Speaker 05:
His name was submitted by a principal who didn't know him, who didn't know anything about him, who didn't necessarily know.

[01:00:46] Speaker 05:
his background with DCPS, he gets submitted to headquarters.

[01:00:50] Speaker 05:
Headquarters decides they don't want to hire him.

[01:00:53] Speaker 05:
He's not entitled to anything else.

[01:00:54] Speaker 05:
I do not know what is involved in, I mean, first of all, I don't know what the email said that he purportedly got that said he failed at background check.

[01:01:03] Speaker 01:
Would you answer this question?

[01:01:04] Speaker 01:
Is it your position that a denied background check means that a determination has been made that you are a danger to children?

[01:01:12] Speaker 03:
No, no.

[01:01:14] Speaker 01:
That's what they're assuming and I don't see it.

[01:01:16] Speaker 01:
That's what my colleague and I, I've never seen that.

[01:01:19] Speaker 01:
I don't know.

[01:01:20] Speaker 01:
That's why I don't know where the stigma is coming from.

[01:01:23] Speaker 01:
Well, and there would be because you've been denied a background check.

[01:01:26] Speaker 05:
And I apologize because I know I'm up and we're in rebuttal and everything's gotten a little confusing here, but the stigma claim has been waived.

[01:01:32] Speaker 05:
She's not bringing a stigma claim.

[01:01:34] Speaker 05:
She's bringing a debarment claim because DCPS didn't tell anybody.

[01:01:37] Speaker 05:
The stigma comes from DCPS.

[01:01:39] Speaker 01:
I want to go beyond that.

[01:01:42] Speaker 01:
You may be wrong on the waiver of forfeiture.

[01:01:44] Speaker 01:
I wanted to understand, because I've never really understood this, and I'm sorry I waited as long as I did.

[01:01:50] Speaker 01:
Is it agreed between the parties that if a background check has been denied, the assumption is a determination has been made that you're dangerous to children?

[01:02:04] Speaker 01:
I have not seen where that is supported.

[01:02:06] Speaker 01:
It is stated, but I haven't seen words.

[01:02:09] Speaker 05:
Yeah, and I haven't seen that either.

[01:02:10] Speaker 05:
I don't know.

[01:02:11] Speaker 05:
I apologize that I can't give a better answer.

[01:02:13] Speaker 05:
This is not something that was raised in briefing.

[01:02:15] Speaker 03:
And I think it was.

[01:02:17] Speaker 03:
I mean, well, and to me, it's this A4-1501.05A.

[01:02:26] Speaker 03:
The information obtained from a criminal background check shall not create a disqualification or presumption against employment of volunteers to ask the applicant unless the mayor determines the applicant proposes a present danger to children and youth and the inference.

[01:02:38] Speaker 01:
It means you can still be denied for another reason.

[01:02:43] Speaker 01:
You can still be denied a background check for a different reason.

[01:02:47] Speaker 01:
But if you're gonna get into the dangerous to children, then we get the mayor involved.

[01:02:51] Speaker 01:
That's the point I'm trying to make.

[01:02:53] Speaker 01:
That's a limited category.

[01:02:55] Speaker 01:
I don't see anything anywhere in these papers that says that a denial of a background check means a determination has been made with or without the mayor that you're a danger to children.

[01:03:06] Speaker 01:
I just don't see it.

[01:03:07] Speaker 01:
Other than the brief assertion.

[01:03:09] Speaker 04:
If I can speak to that.

[01:03:10] Speaker 04:
I think the language means.

[01:03:12] Speaker 04:
Thank you.

[01:03:14] Speaker 04:
I think the language means, as Your Honor Judge Pollard is saying, is that it doesn't make you ineligible unless there's a determination that you're a danger.

[01:03:25] Speaker 04:
Ergo, if you've been denied, if you've failed in artful language that the email is using, that means, if so facto, you present a present danger.

[01:03:36] Speaker 04:
And I allege this in my complaints, paragraphs 90, 91, and 92.

[01:03:41] Speaker 04:
saying that being labeled in this way would subject anyone to embarrassment, humiliation, approbation, loss of reputation, stigma, and ridicule, that their actions unlawfully harmed his reputation, stigmatized him, subjected him to embarrassment.

[01:03:54] Speaker 04:
Also, as I argued in my reply, he's going to have to tell people when he applies for his recertification, he applies for other schools, that he was denied this background check on this basis.

[01:04:04] Speaker 04:
So he's going to have to self-report it.

[01:04:08] Speaker 04:
That's what the regulation says.

[01:04:10] Speaker 01:
Can he be denied because the city thinks he maybe drinks too much?

[01:04:16] Speaker 01:
The statute says... Can he be denied for that reason after a background check?

[01:04:20] Speaker 01:
Is that a possibility?

[01:04:23] Speaker 01:
Not under this particular reg.

[01:04:24] Speaker 01:
Can he be denied after a background check that they think he drinks too much?

[01:04:30] Speaker 01:
Not even in the classroom, they just think he drinks too much.

[01:04:33] Speaker 01:
After a background check.

[01:04:35] Speaker 01:
And if they asked and they were forced to tell, they say, yeah, we did a background check and we made that determination.

[01:04:40] Speaker 01:
We're not giving them the job.

[01:04:42] Speaker 04:
I don't think that would be consistent with this regulation.

[01:04:45] Speaker 01:
Would it be consistent with the law for them to do that?

[01:04:48] Speaker 01:
I don't think so, no.

[01:04:49] Speaker 03:
Really?

[01:04:49] Speaker 03:
Doesn't that pose a present danger to children?

[01:04:52] Speaker 01:
No, I wanted a hypothetical where he drinks only at home, he doesn't drink in the classroom.

[01:04:57] Speaker 01:
No, I mean, there's so many other examples.

[01:04:59] Speaker 04:
There may be a different basis for them not to hire him.

[01:05:02] Speaker 01:
After a background check.

[01:05:06] Speaker 01:
But they say we did a background check and now we have any of a number of bases that are not dangerous to children.

[01:05:14] Speaker 04:
But this is labeled specifically in the code as a criminal background check.

[01:05:18] Speaker 01:
I hear you.

[01:05:19] Speaker 01:
I will.

[01:05:20] Speaker 01:
I'll think about it.

[01:05:21] Speaker 04:
But the last point that I would like to make is that in terms of he could bring a claim under 1983 in the Superior Court, I would note that as counsel notes, that's what I'm doing.

[01:05:30] Speaker 04:
And I filed this case in the Superior Court and the city removed.

[01:05:34] Speaker 03:
Yeah.

[01:05:34] Speaker 04:
I don't think you said it, not Section 93, but you meant to.

[01:05:37] Speaker 04:
Making a due process, constitutional arguments, that's definitely what it is.

[01:05:41] Speaker 04:
Thank you.

[01:05:41] Speaker 03:
Thank you.

[01:05:42] Speaker 03:
The case is submitted.