Winder v. Erste

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 6, 2009 Decided May 15, 2009

No. 08-7068

ALFRED WINDER,
APPELLANT

v.

LOUIS ERSTE, INDIVIDUALLY, AND AS CHIEF OPERATING
OFFICER OF THE DIVISION OF TRANSPORTATION,
DISTRICT OF COLUMBIA PUBLIC SCHOOLS, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cv-02623)

John F. Karl Jr. argued the cause and filed the briefs for
appellant.

Richard S. Love, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellees. With him on the brief were
Peter J. Nickles, Attorney General, Todd S. Kim, Solicitor
General, and Donna M. Murasky, Deputy Solicitor General.

Before: HENDERSON, BROWN, and GRIFFITH, Circuit
Judges.
 2
Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Alfred Winder managed the
transportation division of the District of Columbia Public
Schools (DCPS) from 1999 until he was fired in 2003. He
brought suit against the District of Columbia, DCPS, and
several DCPS officials, claiming, among other things, that his
firing not only was a breach of contract but also violated his
constitutional and statutory rights to report supervisors’
misconduct without fear of retaliation. The district court ruled
against Winder on every contested issue. We affirm its
decision, with one exception. Because there is a genuine issue
whether Winder was an at-will employee who served at the
pleasure of his employer or had a contractually protected term
of employment, we reverse the grant of summary judgment
against his claims of premature termination and violation of
procedural due process.

I.

A.

In 1999, DCPS hired Winder as General Manager of its
transportation division. Winder was responsible for the
management, administration, and operation of transportation
services for special education students. His duties primarily
consisted of helping DCPS comply with court orders issued in
Petties v. District of Columbia, No. 95-0148 (D.D.C.), a class
action brought by parents of special education students
frustrated with the District’s failure to provide their children
with adequate transportation. The Petties orders mandated
specific standards and procedures for DCPS’s transportation
of special education students. The court appointed a Special
Master and a Transportation Administrator to oversee
 3
implementation of the orders. Winder’s job included regular
communication with these officials.

From 1999 to 2002, Winder was employed under a series
of one-year contracts. In a 2002 reorganization, DCPS
abolished the positions of all its managers and created new
managerial jobs. Managers who wanted to stay with DCPS
had to apply for these jobs. DCPS posted a vacancy
announcement for the “new” job of General Manager of the
transportation division (which had the same duties and
responsibilities as the position Winder had held). The
announcement described the position as “Senior Executive”
and stated that “Appointees to this position serve at the
pleasure of the appointing authority.” Supp. App. at 1. Winder
applied for and received the job. A letter summarizing the
terms of his employment stated that it would commence on
July 22, 2002, and that “[t]he tenure of this contract is one
year from the commencement date.” Letter from Louis J.
Erste, Chief Operating Officer, D.C. Pub. Sch. Transp. Div.,
to Alfred Winder, Gen. Manager of Transp., D.C. Pub. Sch.
(July 17, 2002). The letter also explained that Winder was
entitled to a range of benefits, including an employer-paid
pension plan as well as sick and annual leave.

Despite the contract’s one-year term, DCPS terminated
Winder on April 3, 2003. His firing followed years of tension
between Winder and his supervisors, stemming from
Winder’s belief that they were resisting or interfering with
efforts to comply with the Petties orders. Tensions peaked
during Winder’s 2002–2003 contract term. First, in late 2002,
Winder placed nearly fifty phone calls to the Special Master
reporting problems with his supervisors. According to
Winder, they began to retaliate against him as a result. They
pressured him to resign, encouraged parents and school board
 4
members to file complaints against him, and falsely told his
staff that he planned to resign.

The hostilities escalated after December 2002, when
DCPS bus drivers walked off the job to protest a new policy
that deprived them of earned benefits. Two of Winder’s
supervisors, Louis Erste and Kennedy Khabo, testified about
the driver walkout at a January 2003 meeting of the D.C.
Council Committee on Education, Libraries, and Recreation.
Winder attended the meeting but did not sit with his
supervisors at the witness table. When Erste and Khabo failed
to provide answers to the satisfaction of a councilman, he
summoned Winder to the table. According to Winder, Erste
was angered by the answers he gave and expressed hostility
toward him after the meeting.

The next month, Winder filed a complaint with the D.C.
Inspector General against Erste and Khabo. The complaint
recited the difficulties Winder was experiencing in carrying
out his job duties because of them. It also charged both with
filing false affidavits in the Petties litigation, blocking
compliance with court orders, and harassing Winder and
others.

Winder left work for an extended, pre-approved medical
leave in March 2003. During this leave he received a letter
from DCPS telling him he was being discharged. Although he
has since found new employment, Winder alleges that his
former supervisors made it hard for him to do so. For
example, when Winder asked a friend in the D.C. government
about an open transportation position, he was told that Deputy
Mayor Herb Tillery considered him “persona non grata”
based on information from DCPS officials.
 5
B.

Winder filed this action in the district court in December
2003, asserting constitutional, statutory, and common law
claims. The district court resolved almost all of these claims
in favor of the defendants.1 We discuss only those claims
relevant to this appeal.

In a March 2005 order, the court dismissed several of
Winder’s claims under FED. R. CIV. P. 12(b)(6) for failure to
state a claim. The court dismissed Winder’s common-law tort
claims for unliquidated damages and his claims under the
D.C. Whistleblower Act because he failed to provide the pre-
suit notice required by statute. The court also dismissed
Winder’s other common-law tort claims and his breach of
contract claims, holding that they were preempted by the D.C.
Comprehensive Merit Personnel Act (CMPA), which governs
grievances of District employees. Winder sought
reconsideration of the dismissal of his breach of contract
claims. For the first time, Winder informed the court that he
had already pursued relief under the CMPA. In December
2004, the District agency charged with enforcing that statute
held that it lacked jurisdiction over his claims. The court
therefore reinstated the claims that it had earlier held were
preempted by the CMPA. It did not reinstate the preempted
tort claims because Winder failed to seek their
reconsideration.

In September 2007, the court granted summary judgment
in favor of the District and several individual defendants on
Winder’s First Amendment claims. It held that under Garcetti

1
The court ruled in Winder’s favor on his uncontested claim that
the District owed him compensation for 176 hours of sick leave.
 6
v. Ceballos, 547 U.S. 410 (2006), Winder’s speech was not
protected because he spoke pursuant to his official duties
when he complained to DCPS officials, reported problems to
the Petties Special Master, testified before the D.C. Council,
and filed a complaint with the D.C. Inspector General. The
court also granted summary judgment against Winder’s
claims that the defendants breached his written contract and
violated his procedural due process rights when they fired him
before the end of his one-year term. The court found that
Winder was a member of the Executive Service and thus,
under D.C. law, an at-will employee who served at the
pleasure of the mayor.

The district court issued its final ruling on May 20, 2008,
disposing of Winder’s claims that the District breached his
contract by denying him certain benefits. As to unpaid
compensatory time, the court held that the 2002 contract did
not provide for such payment, that regulations requiring
payment did not apply to Winder, that an alleged pre-contract
promise by a former supervisor was not incorporated into the
contract, and that Winder had not pleaded breach of any pre-
2002 contract. As to pension benefits, the court held that
Winder had not met the minimum vesting period under D.C.
regulations and federal law.

II.

On appeal, Winder challenges the district court’s Rule
12(b)(6) dismissal of his D.C. Whistleblower Act claims and
its summary judgment rulings against his First Amendment
claim, his breach of contract claims, and his procedural due
process claim. We review these dispositions de novo. See
Gilvin v. Fire, 259 F.3d 749, 756 (D.C. Cir. 2001). A court
may dismiss under Rule 12(b)(6) if, accepting the allegations
in the complaint as true, the plaintiff has nonetheless failed to
 7
state plausible grounds for relief. See Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955, 1965 (2007). Summary judgment
is appropriate if, drawing all reasonable inferences in the
nonmovant’s favor, there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of
law. See Gilvin, 259 F.3d at 756.

A.

We first address the dismissal of Winder’s D.C.
Whistleblower Act claims for lack of pre-suit notice. The Act
provides that supervisors of District employees “shall not
threaten to take or take a prohibited personnel action or
otherwise retaliate against an employee because of the
employee’s protected disclosure.” D.C. CODE § 1-615.53
(2006). Aggrieved employees may bring a civil action seeking
reinstatement, back pay, restoration of lost benefits,
compensatory damages, and other relief. Id. § 1-615.54(a).
But the Act imposes a notice obligation on plaintiff
employees: “A civil action brought pursuant to this section
shall comply with the notice requirements of § 12-309.” Id.
Section 12-309 of the D.C. Code is a general notice provision
applicable to all tort claims against the District: “An action
may not be maintained against the District of Columbia for
unliquidated damages . . . unless, within six months after the
injury . . . the claimant . . . has given notice in writing to the
Mayor of the District of Columbia of the approximate time,
place, cause, and circumstances of the injury or damage.”

The question for us is whether, as the district court held,
the Whistleblower Act requires the written notice described in
section 12-309 for all claims. Section 12-309 itself imposes
this obligation only on plaintiffs seeking unliquidated
damages. But the district court dismissed all of Winder’s
Whistleblower Act claims for lack of notice, holding that “the
 8
Act . . . specifies that compliance with § 12-309 is required
before bringing a civil action for any of the remedies
authorized thereunder.” Winder v. Erste, No. 03-2623, slip op.
at 19 n.11 (D.D.C. Mar. 31, 2005). Winder does not dispute
that he failed to provide pre-suit notice to the District, but he
challenges the dismissal of his Whistleblower Act claims for
injunctive relief and back pay. He argues that because section
12-309 only requires notice for unliquidated damages claims,
the Act’s incorporation of section 12-309 must include that
limitation as well.

We disagree. The district court’s reading of the
Whistleblower Act is faithful to the plain language of the
statute. The Act incorporates only “the notice requirements of
§ 12-309,” D.C. CODE § 1-615.54(a), which call for written
notice to the D.C. Mayor within six months after the injury is
sustained, see id. § 12-309. Unlike section 12-309, the
Whistleblower Act does not limit the application of those
requirements to specific claims for relief. Rather it mandates
compliance in “[a] civil action brought pursuant to this
section.” Id. § 1.615.54(a). Our reading of the statute is
reinforced by the “cardinal rule of statutory interpretation that
no provision should be construed to be entirely redundant,”
Kungys v. United States, 485 U.S. 759, 778 (1988) (plurality
opinion of Scalia, J.). Winder’s interpretation of section
1.615.54(a) would render it redundant with section 12-309,
which already applies its notice requirements to any claim for
unliquidated damages against the District. The district court
properly rejected this interpretation and dismissed all of
Winder’s Whistleblower Act claims for failure to comply with
the pre-suit notice requirements.
 9
B.

We next address the district court’s conclusion that
Winder’s various complaints about his DCPS supervisors are
not protected by the First Amendment. On appeal, Winder
limits his challenge to his testimony before the D.C. Council,
his reports to the Petties Special Master, and his complaint to
the D.C. Inspector General. He argues that the defendants
violated his First Amendment rights by firing him in
retaliation for these actions.

A public employee like Winder “does not relinquish First
Amendment rights to comment on matters of public interest
by virtue of government employment,” Connick v. Myers, 461
U.S. 138, 140 (1983). At the same time, the government as
employer must be able to prevent employees’ speech from
interfering with the “efficient provision of public services.”
Garcetti, 547 U.S. at 418. The threshold question for a public
employee’s First Amendment claim is “whether the employee
spoke as a citizen on a matter of public concern.” Id. If so, his
speech is protected unless the government can justify treating
its employees differently from other citizens. But if the
employee spoke “pursuant to” his official duties, he cannot
claim constitutional protection. Id. at 421.

Winder argues that he spoke as a citizen because his
statements were made publicly, voluntarily, and outside his
chain of command. But by his own description, Winder’s
responsibilities with DCPS included implementing the Petties
court orders and reporting regularly to the Special Master.
J.A. at 120 ¶ 29, 183 ¶ 44 (Amended Complaint). Winder was
hired to help DCPS comply with the Petties court orders. And
in each communication at issue on appeal he acted in
furtherance of that duty by exposing the efforts of DCPS
officials to block compliance.
 10

In our cases applying Garcetti, we have consistently held
that a public employee speaks without First Amendment
protection when he reports conduct that interferes with his job
responsibilities, even if the report is made outside his chain of
command. See Thompson v. District of Columbia, 530 F.3d
914, 917–18 (D.C. Cir. 2008) (Chief of Security for D.C.
Lottery Board spoke pursuant to duty to maintain Board’s
financial integrity when he reported Board members’
financial misconduct); Wilburn v. Robinson, 480 F.3d 1140,
1151 (D.C. Cir. 2007) (employee hired “to root out
discrimination in the District government” did not speak as
citizen when reporting discriminatory hiring practices); cf.
Tao v. Freeh, 27 F.3d 635, 640 (D.C. Cir. 1994) (FBI
translator spoke as citizen when reporting racial
discrimination because her job duties did not include exposing
or preventing discrimination). In reporting his supervisors’
alleged obstruction of the Petties orders to the Special Master,
Winder was fulfilling his undisputed duty to see that those
orders were implemented. Likewise, his complaint to the D.C.
Inspector General requested a formal inquiry into Erste and
Khabo’s efforts to block implementation of the orders.

Finally, Winder’s testimony to the D.C. Council
committee about the DCPS bus driver walkout was also
pursuant to his duty to implement the orders. The Petties
orders required DCPS to transport students in a punctual
manner using qualified, properly trained drivers. See, e.g., No.
95-0148 (D.D.C. July 9, 1999) (order summarizing DCPS
obligations). The drivers’ walkout prevented that from
happening. And although, as Winder points out, ordinary
citizens often speak at city council meetings, Winder was not
merely speaking as a citizen when he answered the
councilman’s questions. In testifying, he was promoting
DCPS’s compliance with the Petties orders—a duty he was
 11
being “paid to perform,” Garcetti, 547 U.S. at 422. If the facts
before us were different—if Winder was not hired to enforce
the Petties orders but to perform some other function within
DCPS—his testimony before the committee might fall within
the protection of the First Amendment. But by Winder’s own
description, it was his job to implement the Petties court
orders. His testimony was an attempt to ensure proper
implementation of those orders and was therefore offered
pursuant to his job duties.

Winder argues that his complaints could not be part of his
official duties because his supervisors at DCPS did not want
him to speak candidly to officials who were reviewing the
system’s compliance with the Petties orders. Wilburn
forecloses this argument. In that case, the employee
complained of discriminatory hiring practices and the
supervisor did not approve of the speech at issue. See 480
F.3d at 1142–43, 1151. But we held the speech unprotected
because the employee’s specific duties included “root[ing] out
discrimination in the District government,” id. at 1151, and
the government as employer is free to control the content of
“speech that owes its existence to a public employee’s
professional responsibilities,” Garcetti, 547 U.S. at 421.
Although some complaints of hiring discrimination might
receive First Amendment protection, they are not covered
when made by an employee whose job duties involve exactly
such complaints. So too here, although testimony before a city
council might otherwise be just the sort of citizen speech
protected by the First Amendment, the uncommonly close
relationship between Winder’s duties and his advocacy before
the council precludes protection. Thus as in Wilburn, the
disapproval of Winder’s supervisors does not bring his
comments within the scope of the First Amendment.
 12
Finally, Winder argues that the district court improperly
broadened the Garcetti test by holding unprotected any
speech that “concerns” an employee’s job duties. Had the
district court so held, we agree that it would be in error.
Speech can be covered by the First Amendment even if it is
related to one’s job function. See, e.g., Pickering v. Bd. of
Educ., 391 U.S. 563, 568 (1968) (holding that the First
Amendment protects a school teacher’s speech about the
school district’s use of taxpayer revenue). But Winder
mischaracterizes the district court’s holding. The court
observed that all of the speech Winder cited “concerned” his
official duties. Winder v. Erste, 511 F. Supp. 2d 160, 173
(D.D.C. 2007). But it did not rest its conclusion on that fact.
Rather it explained, as we have, how in each instance
Winder’s speech was an attempt to implement the Petties
orders and was therefore “pursuant to” his official duties. Id.
at 173–75.2

Some remedy, such as a properly preserved claim under
the whistleblower protection laws, may have been available to
Winder. But the district court correctly held that the First
Amendment does not provide that remedy.

2
By contrast, the district court held that Winder’s complaints to
Erste and Khabo were unprotected because they were made to his
supervisors and concerned “the precise subject matter of his
employment.” Winder, 511 F. Supp. 2d at 173. This holding could
be read as broader than the “pursuant to” standard. But the court
only applied this reasoning to the complaints to Erste and Khabo,
and Winder does not challenge the First Amendment status of those
complaints on appeal. Accordingly, we need not decide whether
this arguable gloss on Garcetti for speech to supervisors is correct.
 13
C.

The next question for us is whether the district court
correctly held that Winder was an at-will employee without
the protection of a contract. Two of Winder’s claims—breach
of the 2002 contract through premature termination and
violation of procedural due process—turn on this question. If
the 2002 contract did not guarantee Winder a one-year term,
then DCPS did not breach that contract by firing him within a
year. Similarly, if the contract did not give Winder a property
interest in an employment term of one year, DCPS could not
have violated his due process rights by depriving him of that
interest.

The district court acknowledged that the plain language
of the July 2002 employment contract, which provides for a
one-year term, suggests that Winder was not an at-will
employee. But the court found two reasons to look past the
written contract. Most important, the court relied on the
District’s contention—and Winder’s apparent agreement—
that Winder was employed in the Executive Service. By
statute, “[p]ersons serving in the Executive Service . . . shall
serve at the pleasure of the Mayor.” D.C. CODE § 1-610.51(b).
Thus the court held that DCPS had no authority to hire
Winder for a fixed term. The court also looked to the vacancy
announcement for Winder’s position: “Appointees to this
position serve at the pleasure of the appointing authority.”
Supp. App. at 1.

The district court’s reliance on section 1-610.51(b) was
misplaced, because Winder could not have been a member of
the Executive Service. DCPS lacked authority to classify him
as such. The Executive Service consists of “any subordinate
agency head whom the Mayor is authorized to appoint in
accordance with subchapter X-A of this chapter.” D.C. CODE
 14
§ 1-603.01(9). A “subordinate agency” is “any agency under
the direct administrative control of the Mayor.” Id. § 1-
603.01(17). At the time Winder worked for DCPS, the agency
was under the control of the Board of Education. See id. § 38-
102. The Board of Education was expressly excluded from the
definition of “subordinate agency,” id. § 1-603.01(17), and
was instead included in the definition of an “independent
agency” not subject to the administrative control of the
Mayor, id. § 1-603.01(13). And Winder was not even the
“head” of the transportation division, let alone DCPS or the
Board of Education.

Moreover, appellees make no argument that Winder was
“appointed in accordance with subchapter X-A,” id. § 1-
603.01(9). That subchapter requires the Mayor to nominate
and the D.C. Council to confirm members of the Executive
Service. See id. § 1-610.51(b) (directing the Mayor to
nominate subordinate agency heads to the Executive Service
using the process described in section 1-523.01); id. § 1-
523.01(a) (requiring confirmation by the D.C. Council of all
Executive Service nominees). Winder was neither nominated
by the Mayor nor confirmed by the Council.

The district court’s mistaken conclusion that Winder was
part of the Executive Service may have resulted from
personnel records listing Winder’s job class and pay plan as
“EX” and a representation by DCPS that these records
“indicate that Mr. Winder was employed in the ‘executive
service.’” Supp. App. at 6, 8. The meaning of Winder’s
classification is unclear. There is nothing in the statute or
regulations to support such a classification. According to the
statute, Executive Service members are classified as “DX,”
not “EX.” Id. § 1-610.52(a). And the regulations provide that
employees under the control of the Board of Education (like
Winder) were classified as “EA” (Board members), “EB”
 15
(Excepted Service), “ET” (Former Teachers’ Salary Act),
“EG” (Former General Schedule), or “DS” (Career Service).
See D.C. MUN. REGS. tit. 5, § 1102.3–.4. There was no
category identified as “EX.”

Without a finding that Winder was in the Executive
Service and served at the pleasure of the Mayor, the sole
remaining support for the district court’s conclusion that he
was an at-will employee is the statement in the vacancy
announcement that appointees would serve at the pleasure of
the appointing authority. But as Winder points out, the plain
language of the contract negotiated between the parties
suggests that they intended to guarantee Winder a one-year
term. A contract that specifies a duration of time is not a
contract for at-will employment. See, e.g., Reaves-Bey v.
Karr, 840 A.2d 701, 704 (D.C. 2004) (“Absent ‘expression of
a specific term of duration’ in an employment relationship,
there is a presumption that the employment is ‘terminable at
will by any party at any time.’”); see also 19 WILLISTON ON
CONTRACTS § 54:39 (4th ed. 1993) (“There are two basic
forms of employment: employment for a definite or
ascertainable term and employment at will.”).

Because Winder’s employment classification is muddled
at best, there is a genuine question whether DCPS could
terminate him when it did. With that issue in dispute, the
district court lacked a basis to grant summary judgment
against Winder’s claims that he was fired prematurely and
that his procedural due process rights were violated.

D.

Finally, we decide whether the district court properly
disposed of Winder’s remaining contract claims.
 16
As explained above, the district court initially ruled that
many of Winder’s claims, including those for breach of
contract, were preempted by the CMPA. At Winder’s request,
the court later reinstated the claim for breach of the written
contract discussed in Part II.C, supra, after the District agency
charged with administering the CMPA ruled that he was not
covered by that statute. Winder argues that the court erred by
refusing to reinstate his “claims of breach of oral contract.”
Appellant’s Br. at 28. But Winder never asserted such a
claim. He relies on Count VII of the amended complaint but
never asked the district court to reinstate Count VII. He
sought reinstatement only of Count IX, which only alleged
breach of the written contract. See Plaintiff’s Motion for
Reconsideration at 2, Winder, No. 03-2623 (D.D.C. Nov. 15,
2006) (“This motion seeks reconsideration only of the
portions of the . . . Orders dismissing the claims for breach of
written employment contract.”); id. at 7 (“[W]e request the
court to reinstate Winder’s contract claims in Count IX.”).
Having failed to request reinstatement of Count VII, Winder
cannot challenge its dismissal on appeal. See Trout v. Sec’y of
Navy, 540 F.3d 442, 448 (D.C. Cir. 2008) (arguments not
raised before the district court are waived). Even if his
argument were properly raised, Count VII does not contain a
claim for breach of oral contract. Although that claim is
labeled “Breach of contract and tortious interference,” its
allegations refer only to his written contract (and are
duplicative of the written contract claim in Count IX) or relate
to tortious interference. See J.A. at 139. Winder cannot
ground his new arguments about oral contract on Count VII.

Winder next argues that the district court improperly
granted summary judgment on his contract claim for
compensatory time. Before the district court, Winder argued
that he was entitled to payment for compensatory time he
accumulated prior to and under the 2002 contract. His claim
 17
was based on an alleged pre-2002 oral promise from a DCPS
official, which Winder argued had become part of the 2002
contract. On appeal, however, Winder no longer relies on the
written contract to support his claim for compensatory time.
Instead he argues that the District’s failure to pay for this time
is a breach of the alleged oral contract. But again, Winder has
waived any claim for breach of oral contract by not raising it
before the district court, either in the complaint or in the
motion for reconsideration.

Finally, Winder argues that the district court should not
have granted summary judgment against his claim for pension
benefits. The 2002 contract entitled Winder to “an employer
paid pension benefit plan with a contribution by DCPS of 7%
of total compensation.” J.A. at 111. The District initially
agreed that Winder’s benefits had vested and directed him to
apply for a refund. But in its summary judgment reply brief,
the District changed positions, explaining that its regulations
and federal law imposed a minimum five-year vesting period.
Because Winder had not worked for the District for five
years, the court denied his pension benefits claim. Winder
does not dispute that, under federal law, a pension plan such
as the District’s must impose either a five-year minimum
vesting period before an employee has a right to 100% of
employer contributions or an alternative, graduated vesting
plan. See 26 U.S.C. § 411(a)(2)(A)(i) (2006). Nor does he
dispute that the District has chosen to comply with this
requirement by using the five-year, 100% vesting period. See
D.C. MUN. REGS. tit. 6, §§ 2602.3, 2605.10, 2606.1. Instead
he claims, without offering support, that these regulations do
not apply to him. But even if Winder could show that he was
within one of the exceptions to the regulations, federal law
also requires a five-year vesting period. The district court was
bound to apply that law regardless of the District’s initial
oversight.
 18

III.

Because there is a genuine issue whether DCPS could fire
Winder before the expiration of the one-year term specified in
his employment contract, we reverse the district court’s
summary judgment on the premature termination and
procedural due process claims and remand for further
proceedings. We affirm the district court in all other respects.

So ordered.