Anthony Givens v. Muriel Bowser

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 13, 2024              Decided August 6, 2024

                        No. 23-7042

                ANTHONY D. GIVENS, ET AL.,
                      APPELLANTS

                             v.

  MURIEL BOWSER, IN HER OFFICIAL CAPACITY AS MAYOR,
             WASHINGTON, D.C., ET AL.,
                     APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:20-cv-00307)



    Aytan Y. Bellin argued the cause and filed the briefs for
appellants.

     Russell C. Bogue, Appellate Litigation Fellow, Assistant
Attorney General, Office of the Attorney General for the
District of Columbia, argued the cause for appellees. On the
brief were Brian L. Schwalb, Attorney General, Caroline S.
Van Zile, Solicitor General, Ashwin P. Phatak, Principal
Deputy Solicitor General, and Thais-Lyn Trayer, Deputy
Solicitor General.
                               2
    Before: MILLETT and WALKER, Circuit Judges, and
GINSBURG, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge WALKER.

    WALKER, Circuit Judge: Eva Mae Givens applied for
Medicaid assistance. The District of Columbia erroneously
calculated her copay. It also failed to provide her with a fair
hearing in a timely manner.

    Givens sued, alleging a violation of her federal rights.
Before the suit ended, D.C. held a hearing and corrected its
miscalculation. Shortly after that, Givens passed away.

     The district court then dismissed the case with prejudice.
It held that the case was moot. In the alternative, it held that
Givens failed to state a claim for relief.

    We affirm in part and vacate in part.

    Givens’ fair-hearing claims are moot — though their
dismissal should have been without prejudice.

    Her calculation claim is not moot because, after D.C.
corrected its miscalculation, it sent back-payments only to the
nursing homes, not to Givens. But the calculation claim fails
to plausibly allege a federal-rights violation. So it was still
proper to dismiss that claim. On remand, the district court
should dismiss the calculation claim without prejudice if the
defects in the complaint could plausibly be cured by additional
pleading.
                               3
                        I. Background

     Eva Mae Givens asked the District of Columbia for
Medicaid funding to help cover her nursing-home costs. But
D.C. miscalculated her copay.                See 

(c)(4)(ii). As a result of that miscalculation, Givens
was erroneously required to contribute about $2,000 a month
to the cost of her own care.

    Four months later, Givens requested an administrative
hearing to contest the miscalculation. But D.C. did not provide
a hearing within ninety days, as required by federal law. See

(f).

     Givens later sued in federal district court under 

 for a violation of her federal rights. She raised two
types of individual claims: (1) requests for injunctive and
declaratory relief to obtain a fair hearing on her Medicaid
claim, and (2) a request for monetary damages for the amount
she was required to overpay her nursing homes after the
miscalculation of her copay.         Givens also (3) sought
certification of a class of D.C. Medicaid recipients denied
timely hearings and requested injunctive and declaratory relief
on their behalf. 1

     While the district court case was pending, D.C. finally
provided Givens with an administrative hearing. During the
hearing, D.C. conceded that it had miscalculated her copay. It
recalculated her copay and sent back-payments to Givens’
nursing homes — the payments that it should have made all
along. But D.C. did not send payments to Givens to

1
   Givens also sought certification of a separate class of D.C.
Medicaid recipients whose copays had been miscalculated, but that
issue is not presented on appeal.
                               4
compensate her for the $2,000 per month that she had wrongly
been required to pay the nursing homes prior to D.C.’s
recalculation. See JA 59, 66, 67.

     Givens passed away nine days after the administrative
hearing. The district court case was still pending, and her
attorneys notified the court of her death. They said they would
move to substitute her adult children as plaintiffs.

     But months passed and the motion never arrived. So a
magistrate judge recommended that the district court dismiss
the case.

     Givens’ children then moved to be substituted as plaintiffs
in place of their mother. They also asked for permission to
amend the complaint. And they filed objections to the
magistrate judge’s recommendation of dismissal.

     The magistrate judge allowed the children to be listed as
parties only “for the limited purpose of objecting to the”
recommendation. JA 7. He expressed no view on whether they
could be substituted as full parties. And he declined to consider
the proposed amended complaint until the district court ruled
on the recommended dismissal.

     The district court overruled the objections, adopted the
magistrate judge’s recommendation, and dismissed the case
with prejudice. See Givens v. Bowser, 

, at
*1 (D.D.C. Sept. 30, 2022). It held that all of Givens’ claims
were moot. In the alternative, it held that Givens had failed to
state any valid claim.

     The Givens children sought reconsideration. They argued
that the dismissal should have been without prejudice. But the
                                5
district court denied reconsideration. See Givens v. Bowser,

, at *1, *4 (D.D.C. Mar. 26, 2023).

    The Givens children appealed.

           II. The Fair-Hearing Claims Are Moot

     The Givens children concede that the claim for injunctive
and declaratory relief to obtain a fair hearing is moot because
D.C. eventually provided Givens a fair hearing. Oral Arg. Tr.
at 17-18. They have not argued that an exception to mootness
applies to that claim. Nevertheless, they argue that the fair-
hearing claims of the proposed class are not moot and that they
can still serve as representatives for this class.

    We disagree.

     A proposed class representative “must keep her individual
dispute live until certification, or else the class action based on
that claim generally becomes moot.” J.D. v. Azar, 

 (D.C. Cir. 2019). So here, unless an exception
applies, the proposed class’s fair-hearing claims became moot
when Givens’ individual fair-hearing claim became moot. See
United States v. Sanchez-Gomez, 

 (2018).

     No exception to that rule fits this case. The Givens
children note that when “a named plaintiff’s claim is inherently
transitory, and becomes moot prior to certification, a motion
for certification may relate back to the filing of the complaint.”
Genesis Healthcare Corp. v. Symczyk, 

, 71 n.2
(2013) (cleaned up). But the “inherently transitory” exception
applies only when “the record . . . assure[s] us that some class
members will retain a live claim throughout the proceedings.”
J.D., 

.
                                6
      Here, nothing in the record assures us that the alleged
violations are pervasive and ongoing. The complaint says D.C.
miscalculated the copays of forty D.C. residents and then
denied them timely hearings. JA 16-17. Even assuming there
is a factual basis for that number, that is a small fraction of the
residents in D.C. covered by Medicaid — too small to
demonstrate that the alleged violations will recur often enough
for members of the proposed class to retain live claims
throughout the litigation.

          III. The Calculation Claim Is Not Moot

     Givens sought damages to compensate her for D.C.’s
miscalculation of her copay. The Givens children argue that
this calculation claim is not moot. We agree.

    A case becomes moot when “it is impossible for a court to
grant any effectual relief whatever to the prevailing party.”
Decker v. Northwest Environmental Defense Center, 

 (2013) (cleaned up). Here, Givens’ complaint sought
compensation for a pocketbook injury — the extra money that
D.C.’s miscalculation forced her to pay nursing homes. And
she has not received that compensation. So it is possible to
grant her relief that she has not yet received.

     D.C. notes that it made back-payments to Givens’ nursing
homes. And it argues that federal regulations require payments
only to a healthcare provider, not an individual patient. But
Givens sought damages under § 1983 to be measured by the
amount of money she had wrongly been forced to pay out of
pocket — not just corrected payments to the nursing homes.
And even were D.C. correct that § 1983 does not allow
payments directly to her, that is a merits question, not a
jurisdictional question. See Mendoza v. Perez, 

 (D.C. Cir. 2014).
                                7

        IV. The Calculation Claim Is Not Plausible

    Even though Givens’ calculation claim is not moot, it does
not plausibly state a claim upon which relief can be granted.
See Fed. R. Civ. P. 12(b)(6).

     As a municipality, D.C. is not liable under § 1983 for
injuries “inflicted solely by its employees or agents.” Monell
v. Department of Social Services, 

 (1978).
Rather, D.C. is liable only if a city policy or practice causes an
injury. See 

. So to state a valid claim, Givens
needed to plausibly allege that the government itself, as an
institution, was “the moving force behind the violation” of her
federal rights. Frederick Douglass Foundation, Inc. v. District
of Columbia, 

 (D.C. Cir. 2023) (cleaned
up).

     That means Givens had to identify (1) an official policy
explicitly adopted by D.C., (2) actions by a D.C. policymaker
with final decision-making authority, (3) repeated behavior by
D.C. municipal employees that have reached the level of a
custom, or (4) a failure to act by D.C. that shows deliberate
indifference to the potential for such violations. See Baker v.
District of Columbia, 

 (D.C. Cir. 2003).

    With that rule comes two related requirements. First,
Givens needed to plead facts that plausibly support one of those
four types of municipal policies. See Ashcroft v. Iqbal, 

 (2009); Bell Atlantic Corp. v. Twombly, 

 (2007). Second, Givens needed to plead “the
elements of the relevant type of municipal policy.” See Blue v.
District of Columbia, 

 (D.C. Cir. 2015). That’s
because we are “unable to determine” whether a plaintiff has
“provided plausible support for her claim” when she does not
                                  8
plead those elements. 

 “Although the court could try to
surmise which theory of municipal liability has the strongest
support in the complaint, this is not our role.” 

     Givens’ calculation claim fails because she “never
indicated the contours of any type of municipal policy.” 

Instead, she makes conclusory assertions that D.C. has an
unspecified number of unidentified policies, which caused it to
miscalculate the copays of forty unnamed people. JA 16-17.
Those allegations are not specific enough to survive a motion
to dismiss. See Blue, 

.

    V. The District Court Abused Its Discretion When It
       Dismissed All Givens’ Claims With Prejudice

    Finally, we turn to whether Givens’ claims should have
been dismissed with prejudice or without prejudice.

     A dismissal for mootness is a dismissal for lack of
jurisdiction. See Conservation Force, Inc. v. Jewell, 

 (D.C. Cir. 2013). And as a general rule, claims
dismissed without “an adjudication on the merits” should be
dismissed “without prejudice,” rather than with prejudice.
Havens v. Mabus, 

 (D.C. Cir. 2014). So here,
Givens’ moot fair-hearing claims should have been dismissed
without prejudice. 2

    That leaves Givens’ non-moot calculation claim — for
which Givens failed to plausibly state a claim. When
dismissing a case for failure to state a claim, a district court
should not dismiss the case with prejudice unless it has

2
  The district court’s alternate reason for dismissing these moot
claims — for failure to state a claim — does not alter our conclusion.
If a claim is moot, then any merits determination is merely advisory.
                               9
determined that an amendment would be futile. See Couch v.
Verizon Communications Inc., 

 (D.C. Cir.
June 21, 2024); cf. Belizan v. Hershon, 

 (D.C.
Cir. 2006) (“dismissal with prejudice is warranted” only when
the district court determines that “the allegation of other facts
. . . could not possibly cure the deficiency”) (cleaned up);
Okusami v. Psychiatric Institute of Washington, Inc., 

 (D.C. Cir. 1992) (dismissal for failure to state a
claim “is a resolution on the merits and is ordinarily
prejudicial”).

     In this case, there is a wrinkle to the question whether an
amendment would be futile. Givens cannot amend the
complaint because she is now deceased. And even though the
Givens children filed an amended complaint, the district court
did not consider it because the Givens children had not been
substituted as full parties to the case. See Givens v. Bowser,

, at *4 (D.D.C. Mar. 26, 2023). After they
moved for substitution, that motion was granted “for the
limited purpose of objecting to” the magistrate judge’s
recommendation. JA 7. And it is not clear whether the district
court issued a final decision denying substitution for other
purposes. Rather, it is possible that the substitution motion
remained pending at the time the case was dismissed.

    Given this muddled procedural posture, the district court
should determine whether it already resolved the pending
motion to substitute the Givens children as full parties, whether
the motion should be granted, and whether it should have
accepted the amended complaint.

    To be sure, the district court suggested it already resolved
some of these questions in its order denying reconsideration.
See Givens, 

, at *4. But it did so under the
“clear error” standard of Rule 59(e) of the Federal Rules of
                              10
Civil Procedure, and only after having concluded that it did not
clearly err by dismissing the complaint with prejudice. See 

. And as we have explained, we disagree with that initial
decision — the jurisdiction-based dismissal should have been
without prejudice.       So any remaining questions about
substituting parties and amending the complaint should not be
considered under the clear error standards, but under normal
legal principles and in the first instance.

    With this in mind, “[w]e therefore vacate the order of
dismissal and remand the [calculation claim] for the district
court to enter a new order either dismissing without prejudice
or explaining its dismissal with prejudice in a manner
consistent with this opinion.” Belizan, 

.

                       *       *       *

     We affirm the dismissal of Givens’ fair-hearing claims as
moot. We affirm the dismissal of her calculation claim for
failure to properly state a claim.
                                   11
    We vacate the order dismissing this case with prejudice.
We remand for the district court to dismiss the moot fair-
hearing claims without prejudice and either to dismiss the
calculation claim without prejudice or to explain its dismissal
with prejudice. 3

                                                           So ordered.




3
  During our deliberations, the Givens children filed a motion asking
us to take judicial notice of records that they obtained from D.C.,
which they claim support their assertion that D.C. has a pattern of
not providing hearings in a timely fashion. Without expressing an
opinion on the merits of this motion or whether this court or the
district court can take judicial notice of this kind of information, we
leave it to the district court to assess in the first instance any effect
of these additional records. We therefore deny the motion for
judicial notice without prejudice to its renewal before the district
court.