Grant v. Gilbert, et al

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 01-51120
_______________
ERNEST GRANT,
BY HIS GUARDIAN, FAMILY ELDERCARE,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Plaintiff-Appellant,
VERSUS
DON R. GILBERT,
IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER
OF THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION;
KAREN HALE,
IN HER OFFICIAL CAPACITY AS THE COMMISSIONER
OF THE TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION;
AND
ERIC M. BOST,
IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER
OF THE TEXAS DEPARTMENT OF HUMAN SERVICES,
Defendants-Appellees.
_________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________
March 24, 2003

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Before GARWOOD, SMITH, and BARKSDALE,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ernest Grant, a mentally retarded nursing
home resident, sued three Texas state officers
in their official capacities for failing to provide
him with adequate information about com-
munity-based placement alternatives to nursing
home care. Grant claims that without this
information, he and others similarly situated
are unable to make fully informed decisions
regarding their living options. Before con-
sidering Grant’s motion for class certification,
the district court found that Grant lacked
standing. Because Grant since has applied for,
and is now receiving, community-based care,
we dismiss the appeal as moot, concluding that
Grant likewise is ineligible to proceed as class
representative.
I.
Congress passed the Nursing Home Reform
Amendments to “quell overutilization of nurs-
ing home care for those who are not in need of
institutionalization.” Rolland v. Cellucci, 52
F. Supp. 2d 231, 234 (D. Mass. 1999). The
NHRA creates a “Preadmission Screening and
Annual Resident Review” (“PASARR”) pro-
cess by which an appropriate state agency,
following federal statutes and regulations,
assesses the level of care required by “mentally
ill and retarded individuals . . . who are admit-
ted to nursing facilities . . . .” 42 U.S.C. §
1396r(e)(7)(A)(i). The statute also requires
that the state “inform the resident of the insti-
tutional and noninstitutional alternatives cov-
ered under the State plan for the resident.” 42
U.S.C. § 1396r(e)(7)(C)(i)(I).
The state’s annual reviews in 1991, 1992,
and 1993 revealed that Grant did not need
nursing home care, that he did need “special-
ized services,” and that he was not competent.
Because Grant was a “long-term resident,”
these findings entitled him to choose whether
to remain in the nursing facility or to opt for an
alternative placement. 42 U.S.C. § 1396r(e)-
(7)(C)(i). Grant claims that, in each of those
years, the state failed in its statutory obligation
to provide him with sufficient information
about the placement options available to him,
and therefore prevented him from making a
reasoned choice. In particular, he claims that
the state should have provided him with more
information about its Home and Community
Services-OBRA (HCS-O) waiver program,
through which it provides community-based
alternatives to nursing home care for develop-
mentally disabled individuals.
The state provided Grant with a letter,
called a “CHO-1” letter, informing him that he
had a choice to (1) remain in the nursing home
or (2) select a community-based placement.
Grant, who claims to have an IQ of about 24,
did not have a legal guardian at the time. The
state sent the letter directly to him, containing
a three-page attachment explaining commun-
ity-based placements, including the HCS-O
waiver program, informing Grant that the
“1915(c) Medicaid waiver for mentally retard-
ed clients provides in-home and out-of-home
services for a limited number of SSI eligible
mentally retarded clients who qualify for
ICF/MR institutional care. Available in 15 lo-
cations.”
Grant claims this language is too vague and
legalistic to satisfy the state’s obligation, under
the statue and federal regulations, to provide
him with information about his alternatives to
remaining in a nursing home. He also alleges
that a separate federal statute, 42 U.S.C. §
1396n(c)(2)(C), required the state, when it
initially found him eligible for nursing home

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care and placed him in the nursing facility, to
provide him with information abo ut
community-based alternatives.
Grant seeks, for himself and others similarly
situated, information regarding community-
based placements, a declaration of retroactive
eligibility, and an injunction requiring the state
to provide access to waiver services. Fol-
lowing Grant’s motion for class certification,
the court, sua sponte, became concerned that
Grant lacked standing, because he never had
applied to the HCS-O program. Grant’s suit
ultimately was dismissed without prejudice,
with the provision that he could re-file his
complaint later if he applied for the waiver
program and was denied. The court also de-
nied his class certification motion without
reaching the merits.1 Grant appeals the deci-
sion that he lacks standing.
Before oral argument in this appeal, Grant
applied for, and began receiving, waiver ser-
vices.2 He concedes that his claims are moot
as to his own asserted injury, but he contends
he still may pursue the claims on behalf of the
proposed class. He argues that should we
conclude, contrary to the decision of the dis-
trict court, that he had standing when he sued
and that, under United States Parole Comm’n
v. Geraghty, 445 U.S. 388 (1980), we should
remand for reconsideration of his class certifi-
cation motion. Although we agree with Grant
that the district court erred in stating that he
lacks standing to pursue one of his informa-
tional claims, we nevertheless dismiss the ap-
peal as moot, finding Geraghty inapposite.
II.
Standing, as “an essential and unchanging
part of the case-or-controversy requirement of
Article III,” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992), determines the
courts’ “fundamental power even to hear the
suit.” Ford v. NYLCare Health Plans, Inc.,
301 F.3d 329, 333 (5th Cir. 2002) (citation
omitted), petition for cert. filed, 71 U.S.L.W.
3489 (Nov. 22, 2002) (No. 02-1042). If Grant
did not have standing when he sued, whether
the expiration of his claims makes him ineligi-
ble to proceed as class representative becomes,
for lack of better description, a moot issue.
Regarding Grant’s standing as to his infor-
mational claims, the district court stated that
“[b]ased on the record and the pleadings on
file, the Court cannot agree with plaintiff’s
contention that he has not received adequate
notice and information from the defendants
regarding the HCS-O waiver program.” The
court then determined that Grant lacked stand-
ing to seek eligibility and waiver services re-
lief, because he had never applied for HCS-O
services. The court dismissed the case, stating
that Grant could refile his complaint if he ap-
plied for waiver services and was rejected.
A.
The court erred in holding Grant lacked
standing to bring his § 1396r(e)(7)(C)(i)(I) in-
formational claim. The adequacy of the infor-
mation provided by the CHO-1 letter relates to
the merits of Grant’s suit, not his standing, so
the decision to address the merits as part of the
1 The order states that the district court “ex-
pressly declines addressing the issue of whether
class certification is proper,” noting that it “simply
cannot intervene in the absence of actionable injury
and standing to sue.”
2 Grant’s enrollment in the Mental Retardation
Local Authority (MLRA) program, an HCS-O
program, was approved December 31, 2002.

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standing inquiry was premature.3 “This rea-
soning misconstrues the purpose and elements
of standing. ‘In essence the question of stand-
ing is whether the litigant is entitled to have
the court decide the merits of the dispute or of
particular issues.’ Warth v. Seldin, 422 U.S.
490, 498 (1975). It is inappropriate for the
court to focus on the merits of the case when
considering the issue of standing.” Hanson v.
Veterans Admin., 800 F.2d 1381, 1385 (5th
Cir. 1986) 4
Grant, as the party invoking federal
jurisdiction, bears the burden of establishing
the three elements of Article III standing.
Lujan, 504 U.S. at 561. First, he must show
that he has “suffered an ‘injury in fact’SSan
invasion of a legally protected interest which is
(a) concrete and particularized . . . and (b)
actual or imminent not conjectural or
hypothetical.” Id. at 560. He also must
demonstrate a causal connection between his
injury and defendants’ conduct, and a “likely”
probability that his injury will be redressed by
a favorable decision. Id. at 560-61.
Grant has sufficiently alleged an injury-in-
fact under § 1396r(e)(7)(C)(i)(I), which
requires the state to inform residents no longer
in need of nursing facility services of the in-
stitutional and noninstitutional living
alternatives covered under the state waiver
plan.5 The state sent Grant a CHO-1 letter in
1991, 1992, and 1993, after he was
determined to have met the requirements of §
1396r(e)(7)(B). The state was not required to
provide Grant a letter in 1994 and 1995 after
he was deemed to require nursing facility care.
In 1996, the NHRA’s requirement for annual
assessments of residents was repealed.6 So far
as we can tell, the state has not been obligated
to provide Grant information since 1993.
The “inability to obtain information”
required to be disclosed by statute constitutes
a sufficiently concrete and palpable injury to
qualify as an Article III injury-in-fact. Fed.
Election Comm’n v. Atkins, 524 U.S. 11, 21
(1998). Section § 1396r(e)(7)(C)(i)(I),
however, entitles only those nursing care
residents satisfying the conditions of
subparagraph B to the information Grant
claims he has been denied.7 Grant has shown
3 The district court did not address whether the
information (or lack thereof) given to Grant during
his admittance to the nursing facility satisfied the
requirements of § 1396n(c)(2)(C).
4 After reviewing the pleadings and the remain-
der of the record, the district court found the CHO-
1 letters provided “adequate” information. Be-
cause, however, the entire case, including the
informational claims, was dismissed without pre-
judice, we do not construe the disposition of
Grant’s informational claims as a decision on the
merits.
5 Defendants do not dispute that Grant has a
private right of action under § 1396r(e)(7)(C)(i)(I)
of the NHRA. Therefore, we assume, without
deciding, that Grant has stated a claim. Roscello
v. Southwest Airlines Co., 726 F.2d 217, 220 (5th
Cir. 1984). At least two courts have determined
that § 1396r(e)(7)(C) creates a private right of ac-
tion. Rolland v. Romney, 318 F.3d 42, 51-56 (1st
Cir. 2003); Martin v. Voinovich, 840 F. Supp.
1175, 1197-1201 (S.D. Ohio 1993).
6 Change in Medicaid Nursing Facility Resident
Review Requirements, Pub. L. No. 104-315, 110
Stat. 3824 (1996).
7 See Selden, 422 U.S. at 500 (“The standing
question in such cases is whether the constitutional
or statutory provision on which the claim rests
properly can be understood as granting persons in
(continued...)

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that he was entitled to state-provided
information from 1991 to 1993. But because
he seeks only declaratory and injunctive relief,
he must “demonstrate either continuing harm
or a real and immediate threat of repeated in-
jury in the future.” Soc’y of Separationists,
Inc. v. Herman, 959 F.2d 1283, 1285 (5th Cir.
1992) (citation omitted). His failure to allege
that he currently meets the requirements of
subparagraph B suggests that any abstract
informational injury as contemplated by Atkins
is not continuous.
Nevertheless, Grant alleges that the state’s
failure to provide adequate information from
1991 to 1993 has inhibited him from making
an informed decision regarding whether to ap-
ply for waiver services. Indeed, an affidavit
by a supervisor of state employees who make
eligibility determinations confirms that Grant
was eligible to apply for waiver services when
he sued. Though his right to information al-
legedly was infringed by the state only from
1991 to 1993, the injury is accompanied by
“continuing, present adverse effects.” City of
Los Angeles v. Lyons, 461 U.S. 95, 102
(1983). To decide that Grant lacks
informational standing would require others in
his position to apply for services before
obtaining information, a result that, in his
words, puts the cart before the horse.
Grant raises a second informational injury
claim under § 1396n(c)(2)(C), contending that,
during his admittance to the nursing care
facility in 1989, the state failed to provide him
sufficient information regarding alternative res-
idential placements. A Medicaid waiver shall
not be granted unless the States provides
assurances that
such individuals who are determined to
be likely to require the level of care pro-
vided in a hospital, nursing facility, or
intermediate care facility for the
mentally retarded are informed of the
feasible alternatives, if available under
the waiver, at the choice of such
individuals, to the provision of inpatient
hospital services, nursing facility
services, or services in an intermediate
care facility for the mentally retarded.
42 U.S.C. § 1396n(c)(2)(C).
We agree with defendants that, at most, the
plain language of § 1396n(c)(2)(C) affords a
right of information only for waiver applicants.
In Wood v. Tompkins, 33 F.3d 600, 608 (6th
Cir. 1994), the court noted that under
§ 1396n(c)(2), “states must provide the
various enumerated assurances in order to
obtain a home care waiver.” Id. (emphasis in
original). In 1989, Grant was admitted to the
nursing care facility; he has not alleged that he
applied for waiver services then or at any time
before the pendency of this appeal. This
deprives him of standing.
B.
Grant also lacks standing to seek
declaratory and injunctive relief for a
determination of eligibility and state-provided
waiver services. In his complaint, he appears
to assume that, because he did not exercise his
7(...continued)
the plaintiff’s position a right to judicial relief.”).
In other words, a claimed informational injury must
“arguably [falls] within the zone of interests to be
protected by the statute . . . in question.” Atkins,
524 U.S. at 20 (internal citations omitted). The
NHRA arguably is designed to provide people like
Grant and their guardians sufficient information to
make reasoned decisions about which alternative
form of care they should select.

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choice in 1991, 1992, or 1993, he and the
other putative class members became ineligible
for the HCS-O waiver program. As we have
said, he remained eligible to apply for waiver
services after 1993, an option he exercised fol-
lowing the district court’s dismissal. Given
that he could have been admitted to a waiver
program at the time he sued, he did not suffer
an injury redressable by a judicial de-
termination of eligibility or an injunction re-
quiring the state to provide him access to the
HCS-O program. Lujan, 504 U.S. at 563.
III.
Grant concedes that his move to a com-
munity-based waiver program renders his
claims moot. We turn to whether he
nevertheless maintains a case in controversy in
his right to represent the proposed class on the
§ 1396r(e)(7)(C)(i)(I) claim, the only cause of
action as to which he originally had standing.
As a general rule, “a purported class action be-
comes moot when the personal claims of all
named plaintiffs are satisfied and no class has
been properly certified.” Zeidman v. J. Ray
McDermott & Co., 651 F.2d 1030, 1045 (5th
Cir. Unit A July 1981). If this rule applies,
Grant’s motion for class certification, which
the district court denied after it partially erred
in determining that he lacked standing, is moot
in light of the expiration of his informational
claim.
Grant argues that Geraghty establishes a
bright-line exception that permits a named
plaintiff whose claims have expired to continue
litigating class certification issues if the denial
of his certification motion was presented while
his claims were still live. Assuming arguendo
that Grant reads Geraghty correctly, we
conclude that, at the time he presented his
motion for class certification, Grant had
standing only as to his § 1396r(e)(7)(C)(i)(I)
informational claim. Therefore, even if the
Geraghty exception permits a reconsideration
of certification, Grant cannot seek relief for the
proposed class.
In Geraghty, the representative plaintiff, a
federal prisoner, brought a proposed class ac-
tion challenging parole guidelines. The district
court denied class certification, and Geraghty
appealed that decision as class representative.
While the appeal was pending, Geraghty was
released from prison, and defendants sought to
dismiss the appeal as moot. The Court held
that, despite the expiration of Geraghty’s
claim, the class’s claim remained live.
A plaintiff bringing a class action presents
two claims for reviewSSone on the merits and
one that he is entitled to represent a class.
Geraghty, 445 U.S. at 402. In Zeidman, we
explained that Geraghty established that “the
mootness doctrine has two aspects: a
justiciable case must continue at each stage of
the litigation (1) to present a ‘live
controversy,’ and (2) to be urged before the
court by parties who have a ‘personal stake’ in
that controversy.” Zeidman, 651 F.2d at
1042. Despite the mootness of the
representative plaintiff’s claims in Geraghty
and Zeidman, both reviewing courts found that
a live controversy existed for at least some
class members. The Geraghty Court observed
this was demonstrated by the fact that other
prisoners affected by the guidelines had moved
to substitute, or intervene, as class
representatives. 445 U.S. at 396. In Zeidman,
651 F.2d at 1042, we observed that the
controversy was “undoubtedly still live,”
because the proposed classes “contain at least
some number of persons who sold B&W
securities during the periods at issue.”
Though no parties have sought to intervene

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or substitute in Grant’s place, we assume a live
controversy still exists. The proposed class
definition refers to all nursing home residents
who, inter alia, “because of Defendants’
failure to provide them or their legally
authorized representatives with a clear
explanation about available community-based
Medicaid waiver placements, remain confined
in nursing facilities.” Grant’s counsel, a legal
service agency, assures us that it represents
other clients, with a continuing live interest in
the case, who can represent the class if
necessary. Reed v. Heckler, 756 F.2d 779,
786 n.9 (10th Cir. 1985). This is not a case in
which the entire class’s claims are mooted
because of the defendant’s general policy
change. See Singleton v. Apfel, 231 F.3d 853,
854-55 (11th Cir. 2000); Sze v. Immigration &
Naturalization Serv., 153 F.3d 1005, 1009-
1010 (9th Cir. 1998). In fact, defendants con-
tend the information provided in the CHO-1
letter is adequate.
Whether, in light of our finding that Grant
had standing to bring only one of his proposed
claims, he possesses a “personal stake” in cer-
tifying the class is a different matter. The
Geraghty Court relied on the “flexible
character of the Art. III mootness doctrine”
and the pragmatic justifications underlying the
class action device to find that the
representative plaintiff maintained a personal
stake in certifying the class. 445 U.S. at 400-
03.8 So long as there “are sharply presented
issues in a concrete factual setting and self-
interested parties vigorously advocating
opposing positions,” the representative’s
ongoing interest in certification creates an
Article III controversy. Id. at 403 (citations
omitted). It goes without saying that before
seeking certification, representative plaintiffs
still must establish standing.9
Given that Grant had standing to bring only
the § 1396r(e)(7)(C)(i)(I) informational claim,
he lacks a personal stake in certifying the pro-
posed class. That proposed class seeks a de-
claration of eligibility for waiver services and
injunctive relief forcing the state to provide
services, so Grant, as a party who never had
standing, cannot be said to be “self-interested”
or capable of presenting the claims as “sharply
presented issues.”10
It may be that the majority of class
members, like Grant, have never applied for
8 Consistent with this view is Sosna v. Iowa,
319 U.S. 393, 402 (1975), holding that a named
plaintiff whose claim on the merits expires after
class certification may still adequately represent the
class.
9 See Lewis v. Casey, 518 U.S. 343, 357 (1996)
(stating that “even named plaintiffs who represent
a class must allege and show that they personally
have been injured, not that the injury has been suf-
fered by other, unidentified members of the class to
which they belong and which they purport to
represent” (internal quotation marks omitted)); Ri-
vera v. Wyeth-Ayerst Labs., 283 F.3d 315, 319
(5th Cir. 2002) (stating that standing is an
“inherent prerequisite to the class certification
inquiry”).
10 Grant’s situation is analogous to that of a
plaintiff who never seeks class certification but ar-
gues his right to represent others following the
mooting of his claim. In Sannon v. United States,
631 F.2d 1247, 1251 (5th Cir. 1980), we found
Geraghty inapplicable to such a situation, because
the plaintiff “never moved the court for class cer-
tification and thus never solidified the requisite
Article III adverseness between members of the
would be class” and the defendants. Similarly,
Grant’s failure to establish standing as to his non-§
1396r(e)(7)(C)(i)(I) claims means he cannot
proceed with certification.

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waiver services and consequently lack standing
to bring the additional claims. If so, and class
members still wish to proceed with a § 1396r-
(e)(7)(C)(i)(I) informational claim, a class rep-
resentative not currently receiving waiver
services must file a new complaint. A plaintiff
who never had standing to pursue the full
claims of the class lacks a personal stake in
litigating certification; therefore, the class
claims are moot.11
The appeal is DISMISSED as moot.
11 This is not a case in which the relation back
doctrine favors Grant’s proceeding as class
representative. That doctrine is applied to
inherently transitory claims, Gerstein v. Pugh, 420
U.S. 103 (1975), and cases in which defendants
tender plaintiffs their personal claims, Zeidman,
651 F.2d at 1048. In both, the plaintiff’s claim is
prematurely mooted, thus justifying his
continuance as class representative. Grant
contends that defendants will “have the option of
providing information necessary for new plaintiffs
to make an informed choice, thereby preventing
this issue from ever reaching the certification
stage.” This point ignores the fact that Grant’s
own actions, not the state’s, mooted his claim, and
overlooks the ability of future class representatives
to invoke Geraghty should they have standing as to
all claims for which they seek certification.

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