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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

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

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

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

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

choice in 1991, 1992, or 1993, he and the
informational claim. Therefore, even if the
other putative class members became ineligible
Geraghty exception permits a reconsideration
for the HCS-O waiver program. As we have
of certification, Grant cannot seek relief for the
said, he remained eligible to apply for waiver
proposed class.
services after 1993, an option he exercised fol-
lowing the district court's dismissal. Given
In Geraghty, the representative plaintiff, a
that he could have been admitted to a waiver
federal prisoner, brought a proposed class ac-
program at the time he sued, he did not suffer
tion challenging parole guidelines. The district
an injury redressable by a judicial de-
court denied class certification, and Geraghty
termination of eligibility or an injunction re-
appealed that decision as class representative.
quiring the state to provide him access to the
While the appeal was pending, Geraghty was
HCS-O program. Lujan, 504 U.S. at 563.
released from prison, and defendants sought to
dismiss the appeal as moot. The Court held
III.
that, despite the expiration of Geraghty's
Grant concedes that his move to a com-
claim, the class's claim remained live.
munity-based waiver program renders his
claims moot. We turn to whether he
A plaintiff bringing a class action presents
nevertheless maintains a case in controversy in
two claims for reviewSSone on the merits and
his right to represent the proposed class on the
one that he is entitled to represent a class.
§ 1396r(e)(7)(C)(i)(I) claim, the only cause of
Geraghty, 445 U.S. at 402. In Zeidman, we
action as to which he originally had standing.
explained that Geraghty established that "the
As a general rule, "a purported class action be-
mootness doctrine has two aspects: a
comes moot when the personal claims of all
justiciable case must continue at each stage of
named plaintiffs are satisfied and no class has
the litigation (1) to present a `live
been properly certified." Zeidman v. J. Ray
controversy,' and (2) to be urged before the
McDermott & Co., 651 F.2d 1030, 1045 (5th
court by parties who have a `personal stake' in
Cir. Unit A July 1981). If this rule applies,
that controversy." Zeidman, 651 F.2d at
Grant's motion for class certification, which
1042. Despite the mootness of the
the district court denied after it partially erred
representative plaintiff's claims in Geraghty
in determining that he lacked standing, is moot
and Zeidman, both reviewing courts found that
in light of the expiration of his informational
a live controversy existed for at least some
claim.
class members. The Geraghty Court observed
this was demonstrated by the fact that other
Grant argues that Geraghty establishes a
prisoners affected by the guidelines had moved
bright-line exception that permits a named
to substitute, or intervene, as class
plaintiff whose claims have expired to continue
representatives. 445 U.S. at 396. In Zeidman,
litigating class certification issues if the denial
651 F.2d at 1042, we observed that the
of his certification motion was presented while
controversy was "undoubtedly still live,"
his claims were still live. Assuming arguendo
because the proposed classes "contain at least
that Grant reads Geraghty correctly, we
some number of persons who sold B&W
conclude that, at the time he presented his
securities during the periods at issue."
motion for class certification, Grant had
standing only as to his § 1396r(e)(7)(C)(i)(I)
Though no parties have sought to intervene
6

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

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.
8