OPINION
The Tennessee Commissioner of Finance and Administration (“the state” or “Tennessee”) appeals from two orders of the district court issued as part of an ongoing suit challenging the administration of Tennessee’s TennCare program. The first order, issued on September 14, 2001 (“the September order”), required the state to take various steps to comply with
I
The TennCare program is a demonstration project under which the federal Center for Medicare and Medicaid Services (“CMS”) (formerly the Health Care Financing Administration, or “HCFA”) waived certain sections of the Social Security Act and the state, effective January 1, 1994, replaced its traditional Medicaid program with one that serves expanded classes of individuals. As authorized by CMS, TennCare served: (1) individuals who would have qualified to participate in Tennessee’s traditional Medicaid program; (2) individuals who are “uninsured,” or those without government or employer-sponsored insurance;
A. Case Background
The suit forming the basis for the court’s orders was filed in July 1998 by ten current and former enrollees in TennCare, representing a class consisting of “present and future TennCare applicants and beneficiaries who are eligible for TennCare coverage under the federal waiver, rather than under traditional Medicaid eligibility rules” (uninsured and uninsurable individuals), who alleged that the notice and hearing procedurеs used by the state in making TennCare eligibility determinations failed to comply with due process of law. Rather than litigate the issues, the state entered into negotiation with the plaintiffs; this has resulted in the district court entering several agreed orders.
Early on in the litigation, the plaintiffs applied for, and the district court granted, a preliminary injunction ordering the state to reinstate all members of the plaintiff class who had been denied TennCare coverage without receiving due process of law. The state sought to comply with that injunction and in an agreed order entered on September 13, 1999, the court approved the procedures for a reinstatement scheme agreed to by the parties. The state agreed to identify all uninsureds and unin-surables who had been terminated and send them notices offеring re-enrollment to those who replied. Those who did not respond were to receive a second notice.
In April 2000, the plaintiffs filed a renewed motion for injunctive relief, again arguing that the state’s procedures for terminating individuals from TennCare did not comply with due process requirements. The district court entered a temporary restraining order prohibiting the state from terminating the coverage of any member of the plaintiff class without first providing notice and a hearing. The tem
The parties finally reached a settlement agreement, which came to be embodied in an agreed order entered by the district court on March 12, 2001 (the “agreed order”). The agreed order provides that the state is to follow the Medicaid notice and hearing procedures set out in 42 C.F.R. Part 431, Subpart E when terminating or denying applications for enrollment in TennCare. Further, the state agreed to offer an opportunity to reapply or appeal for reinstatement in TennCare
B. The September Order
In July 2001, the plaintiffs filed a motion to enforce the agreed order, arguing that the state was violating it in two respects. First, the plaintiffs argued that the state was violating the agreed order by applying a TennCare rule providing that individuals who were terminated for failure to pay their premiums must pay all past due premiums in full before they can be reinstated. Second, the plaintiffs alleged that the state continued to deny due process to members of the plaintiff class who were uninsurable by virtue of being severely and persistently mentally ill (SPMI) adults or severely emotionally disturbed (SED) children by failing to ensure that local mental health facilities were able to provide guidance to these individuals on how to apply for TennCare and by utilizing applications and denial letters that provided inadequаte notice of TennCare coverage for the mentally ill and the reasons for denial.
After an evidentiary hearing, the district court entered an order awarding the plaintiffs relief on both of these grounds. In its order dated September 14, 2001, the court required the state (a) to permit members of the plaintiff class to re-enroll in Tenn-Care without paying past due premiums in advance, and (b) to devise proper notices and ensure that local mental health centers are able to provide guidance on how to apply to TennCare. In the first of the appeals before us, the state argues that neither of these actions are required by the parties’ agreed order, and that the court’s order requiring them therefore erroneously expands the agreed order.
C. The October Order
At a chambers cоnference on September 27, 2001, the state informed the court and counsel for the plaintiffs that the next day it would issue a rule making changes in the TennCare program that would take effect October 1, 2001 (the “October 1 rule”).
The state had requested and received from CMS an amendment to the federal waiver controlling the TennCare program that would permit the state to close Tenn-Care to adult uninsurables.
The plaintiffs sought and obtained a temporary restraining order barring implementation of the rule. Then, after a two-day evidentiary hearing, thе district court on October 25, 2001 issued a preliminary injunction against the October 1 rule. In addition to enjoining implementation of the rule, the district court ordered that the state undertake changes in its reverification process, the process by which the state verifies that TennCare enrollees continue to meet the program’s eligibility requirements. Specifically, the court ordered that the state adopt an expedited reverification process in order to alleviate the spending and enrollment cap pressures the state was experiencing. To ensure compliance with its order, the court decided to appoint a special master to oversee the reverification process. In the second and third appeals consolidated by this court, the statе challenges the district court’s preliminary injunction of the October 1 rule, its ordered changes to the state’s reverification process and its appointment of a special master to oversee the process.
II
With respect to the district court’s September order, Tennessee argues that the court impermissibly expanded the scope of the parties’ agreed order in deciding each of the issues before it. We disagree and uphold the district court’s September order on both issues.
A. The court’s order that the state permit members of the plaintiff class to re-enroll in TennCare without paying past due premiums in advance
As discussed above, the plaintiffs instituted the action that gave rise to the presently disputed orders in order to challenge the procedural sufficiеncy of the notice and hearing procedures utilized by the state to terminate, reduce, or suspend TennCare coverage and to deny initial applications for coverage. As also discussed above, the parties eventually reached a settlement that disposed of the plaintiffs’ claims and was embodied in the agreed order entered by the district court in March 2001.
In relevant part, the state agreed to use federal Medicaid notice and hearing procedures when terminating or denying applications for enrollment in TennCare,. and it agreed to offer an opportunity to reapply or appeal for reinstatement to TennCare to class members whose coverage was terminated on or after July 11,1998. However, the order makes clear that, with the exception that uninsured adults will be eligible for enrollment,
In instituting the agreed-to reapplieation scheme, the state applied a TennCare rule
A TennCare enrollee who is not eligible for Medicaid and who is disenrolled due to failure to pay the required premiums shall be required to pay all unpaid premiums in order to be re-enrolled in TennCare.
Tenn. Rules 1200-13-12-.03(3)(a). As the parties stipulated to the district court, this rule operates to draw a distinction between enrolleеs who are in arrears in paying their premiums and those who have been disenrolled because of non-payment. As long as the individual is still enrolled in TennCare, he or she may arrange an installment plan to pay the arrears, while still retaining TennCare coverage. However, once a person’s coverage is terminated for failure to pay, he or she must pay the entire arrearage before he or she is eligible for reinstatement into the program. As the district court pointed out, since premiums are set on a sliding scale corresponding with an enrollee’s income, the requirement that a former enrollee pay in one lump sum several times the monthly premium amount that is set according to their monthly income poses a significant barrier to re-enrollment.
The plaintiffs, in their motion tо enforce the agreed order, contended that the state’s application of this rule operated to foreclose completely any meaningful remedy to class members who the plaintiffs allege were originally disenrolled in violation of their due process rights. In other words, but for the due process violations the plaintiffs allege, the former enrollees would still be enrolled in TennCare and therefore would have the opportunity to pay their arrearage on a pro rata basis. Therefore, the plaintiffs argued that the class members should be given the opportunity to reapply and pay their arrearage in this way, rather than having to pay the sum in advance.
The district court agreed with the plaintiffs. It noted that the agreed order is essentially a consent decree and that consent decrees are subject to ongoing judicial review and “must be construed to preserve the position for which the parties bargained.” Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Dep’t of Natural Res.,
The court held that in order to preserve the positions bargained for by the parties, the state must be precluded from applying its full payment rule to class members seeking reenrollment who had been disen-rolled for failure to pay their premiums. The court noted that in a letter describing the State’s payment policy to an attorney representing affected individuals in applying for TennCare, the state assistant general counsel wrote that the rule applied “if an individual was previously terminated by TennCare for failure to pay premiums and was afforded due process regarding the termination.” (еmphasis added). The court went on to note that while it had not adjudicated the matter of whether the class members had in fact been denied due process, the purpose of the agreed order was clearly to provide for reinstatement to those who had allegedly been so mistreated. The policy, the court noted, was intended to apply to those who had been given due process. Accordingly, the court held that the policy should not be applied to class members, disenrolled for non-payment. The court went on to note that since the former enrollees are necessarily either those with limited or moderate means, the requirement that they pay in advance several times the monthly premium explicitly set to correspond with their monthly income would serve to render ineffective the remedy the plaintiffs bargained for. Further, finding that the state
The state’s argument that this holding was incorrect misses the mark. The state argues that the terms of the agreed order expressly state that former enrollees should be reenrolled only if they are “currently eligible,” with the one exception that uninsured individuals will be permitted to apply. According to the state, the court contravened the agreed order by effectively reinterpreting it to permit another exception — that class members who have been disenrolled for non-payment of premiums need not follow the usual rule for reapplication. In doing so, according to the state, the district court modified or impermissibly expanded the agreed order beyond its terms.
The state’s argument would be sound had the court ordered use of the pro rata payment rule in direct contravention of the terms of the agreed order. Case law makes clear that “the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.” Firefighters Local Union No. 1784 v. Stotts,
There is some language in the district court’s opinion that might support a view that the court had effected a sub silentio reformation of the agreed order in the interests of equity. However, the better reading is that the court held that the full payment rule did not apply to the former enrollees who were to be offered the chance to reapply for TennCare coverage by the agreed order. As mentioned above, the court cites (and the state does not contest the reference to) the letter written by the state assistant general counsel, to the effect that the full payment rule applies to former enrollees whose coverage was terminated for non-payment and who were “afforded due process regarding the termination.” (emphasis added). The court sensibly read this to mean that the full payment policy only applied to former enrollees who had been afforded due process.
Though noting that because of the parties’ settlement the court had not had the oрportunity to adjudicate on the merits whether the former enrollees in question had in fact been denied their due process rights, the court stated that the agreed order addressed those who had allegedly been denied such process. It was therefore far from clear that the enrollees in question had been afforded due process, and it was in this vein that the court wrote, “[t]hus, from the Court’s view, the policy should not apply to class members covered by the Agreed Order.” This statement suggests that — rather than impermissibly reforming or somehow expanding the agreed order — -what the district court did was issue an order declaring that the policy sought to be applied by the state was simply inapplicable. Given the plaintiffs’ contention that the affected individuals would have been current TennCare enroll-eеs and therefore eligible for pro rata ar-rearage payment but for the state’s violation of their due process rights, and the state’s decision to forgo judicial determination of that issue by entering into the agreed order, this is within the ambit of ongoing judicial enforcement of the agreed order.
B. The court’s order that the state create notices and written protocols for local mental health facilities
Agreeing with the plaintiffs’ arguments, the district court held in its Sep
Ordinarily, for an individual to apply for TennCare as uninsurable, he must provide a “turn-down letter,” a letter from a commercial insurance company denying his application for coverage because of a preexisting medical condition. However, due to the nature and effects of mental illness, the state has promulgated a special procedure for individuals who are certified as either an SPMI or an SED. These individuals need not submit a turn-down letter, but are instead presumed uninsurable once certified as being in one of these two groups.
In the state-designed process for SPMI/ SED applications, these individuals are often referred to community health centers that make the determination that an individual is either an SPMI or an SED. The centers use a standard diagnostic instrument and scoring algorithm to classify an individual into these groups and then report the results to the Tennessee Department of Mental Health and Developmental Disabilities, which certifies the results to the Tennessee TennCare Bureau, which in turn makes the final determination of eligibility. In their motion and at the eviden-tiary hearing on the motion, the plaintiffs sought to show that the state was referring people to apply through the community health centers but had not provided the centers with sufficient information about the program or their role in the application process. The effect, according to the plaintiffs, was that SPMI/SED individuals would go to the community health centers, receive incorrect information, and subsequently be denied TennCare coverage or not know to аpply. Though the court pointed out that the plaintiffs had not adduced evidence that this had actually happened in any cases, the court was concerned that it easily could happen and discussed the need for a written protocol to inform the centers and avoid this.
The state’s argument is that by ordering it to provide a protocol to the community health centers to inform them about the SPMI/SED application process, the court improperly expanded the parties’ agreed order, because the agreed order only discusses providing procedural due process in the TennCare eligibility process (the process by which applicants are either admitted or denied). The community health centers, on the other hand, merely facilitate individuals’ apрlications to TennCare. The facilitation of applications, the state argues, is not covered by the agreed order.
We reject the state’s argument on this issue. It was the state itself that designed the application process — referring potentially mentally ill individuals to community health centers for assessment by standard test and having those centers forward the
Ill
In the second and third appeals before us, Tennessee challenges the district court’s October order, in which the court enjoined implementation of the October 1 rule closing TennCare enrollment to future uninsurable applicants and ordered the state to revamp its reverification process— under the oversight of a special master — in order to alleviate the enrollment and expenditure cap pressure that the state contended made the rule necessary.
A. Standing
Before this court can reach the merits of the court’s October order, we must first address the threshold question — raised by the state both in the district court and on appeal — of whether the plaintiffs in this case have standing to challenge the implementation of the October 1 rule. We hold that they do not.
The state argued before the district court that none of the named plaintiffs had the required personal stake in litigation against the October 1 rule, because the rule would only affect adult uninsurables who apply for TennCare after October 1, 2001. None of the named plaintiffs applied after that date оr alleged that they would. Further, the state argued that the named plaintiffs can not sue on behalf of unnamed class members if they lack standing on their own.
The district court rejected the state’s arguments and held that the class had standing to challenge the October 1 rule because the rule would affect future applicants who were members of the class. Further, the court held that the class representatives had an independent basis for standing to enforce and secure the settlement agreement they had negotiated and agreed to.
The Supreme Court has set up three requirements for standing:
First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent .... Second, there must be a causal connection between the injury and the conduct complained of .... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife,
The named plaintiffs first argue that they need not assert that the October 1 rule will injure any of them personally, as they represent a class of “present and future TennCare applicants and beneficiaries” and they have asserted — indeed the state has freely admitted — that it will directly affect future uninsurable TennCare applicants. However, the plaintiffs are incorrect in this regard.
It is well settled that, at the outset of litigation, class representatives without personal standing cannot predicate standing on injuries suffered by members of the class but which they themselves have not or will not suffer. Warth v. Seldin,
The plaintiffs assert that this situation is different, because the class has already been certified by the court and found to have standing. The plaintiffs argue that because of this, they can reprеsent the interests of other members of the class on an issue in which they might not otherwise have the requisite personal stake.
This contention is certainly true with respect to claims originally part of the action. If a class is certified (requiring of course a finding that the named plaintiffs did have a stake), then a loss of personal stake by the named plaintiffs down the road does not necessarily lead to loss of the ability to prosecute the suit on behalf of unnamed plaintiffs who continue to have such a stake. See Sosna v. Iowa,
However, in the present case, the October 1 rule was not a part of the initial lawsuit. The plaintiffs sought leave to amend their complaint on September 28, 2001 to add a claim challenging the October 1 rule. It is black-letter law that standing is a claim-by-claim issue. See, e.g., Lewis v. Casey,
Indeed, the Supreme Court case that the plaintiffs cite to support their position does not do so. In County of Riverside v. McLaughlin,
The plaintiffs attempt to do so by arguing that, although they are not currently uninsurables seeking TennCare coverage after October 1, they easily could become so if their coverage lapses in the future. The named plaintiffs point out that they are all individuals with chronic illnesses, and they allege that they have shown throughout the course of the district court proceedings that lapses in coverage frequently occur for various reasons under TennCare. Since they allege that they will potentially be affected by the October 1 rule in the future, the named plaintiffs argue that they have the requisite personal stake in its implementation now. The district court agreed that this was a sufficient basis for standing to challenge the October 1 rule; however, the district court erred in this regard.
It is clearly established that “[a]l~ legations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact.” Whitmore v. Arkansas,
Indeed, in a context very similar to the present case, the Seventh Circuit, in a challenge to the income eligibility standards of a welfare program, held that a named class plaintiffs assertion that her income — which qualified her for financial assistance at the time of the suit — might change and leave her no longer eligible was “insufficient to constitute an injury-in-fact, threatened or actual, within the meaning of Article III.” Foster v. Center Township of La Porte County,
This is not to say that plaintiffs facing very real and certain threat of future harm must wait for the realization of that harm to bring suit. Indeed, the Supreme Court has held explicitly that they need not. See Blum v. Yaretsky,
A review of the plaintiffs’ amended complaint challenging the October 1 rule and
We reject the plaintiffs’ final argument for standing for substantially the same reason. The Plaintiffs argue that having negotiated and agreed to the settlement agreement and agreed order, they have an independent basis for standing to challenge the October 1 rule as a breach of that agreement. On this theory, the “injury in fact” required to confer standing is not the effect the October 1 rule would have on future TennCare applicants, but the fact that the named plaintiffs allege that the rule violates the agreed order to which they are parties. The district court approved of this basis for standing; however, we hold that it erred in doing so.
We note that this argument has some appeal. After all, as both the plaintiffs and the district court pointed out, this court has repeatedly described a consent decree as “a contract founded on the agreement of the parties.” Vogel v. City of Cincinnati,
A decision of the Second Circuit can be read to support this proposition. In Berger v. Heckler,
Berger has not been cited by any circuit for the proposition that a breach of an agreement, without more, can serve to confer standing on a party to the agreement. However, to the extent that the Berger court held such, we disagree. The Supreme Court has repeatedly held that to have standing in federal court, a party “must assert his own legal interests, rather than those of third parties.” Gladstone Realtors v. Bellwood,
Berger can also be distinguished from the present case by the fact that the plaintiff in Berger appears to have shown that the government’s alleged violation of the consent decree posed an imminent threat of injury to him personally, whereas the plaintiffs in the present case have not. In both the plaintiffs’ amended complaint and the brief the plaintiffs filed in the district court supporting their motion for a temporary restraining order barring implementation of the rule, the plaintiffs made two claims about the rule. First, they claimed that by closing future enrollment to uninsurables, the state was violating the agreed order, which contemplated the state operating the TennCare program under the rules and terms as they existed at the time of the agreed order. Second, the plaintiffs claimed that the state’s promulgation of the rule violated a Medicaid regulation completely removed from the parties’ agreement, which requires that significant changes in state Medicaid programs be submitted to the non-binding review of a Medical Care Advisory Committee. Nowhere did the plaintiffs in the present case allege to the district court that they would be injured by the alleged breach of the agreed order. Neither of their claims are focused on the injury suffered by the named plaintiffs arising out of the state’s alleged breach of their agreement. Indeed, one of the challenges does not even allege a violation of the court’s orders in the case, and the challenge that does is solely focused on the effect the rule will have on future uninsured applicants. If the plaintiffs’ new claims challenging the October 1 rule fairly alleged injuries the named plaintiffs would experience as a result of an alleged breach of their agreed order, this court would have to consider the question of whether a breach that facially affects only other persons is sufficient to confer standing. However, in the present case, rather than asserting that they “personally ha[ve] suffered some actual or threatened injury as a result оf the putatively illegal conduct of the defendant,” Gladstone,
IV
For the foregoing reasons, we AFFIRM the district court’s September 14, 2001 order, but VACATE its October 25, 2001 order.
Notes
. Pursuant to permission granted by the CMS to amend the federal waiver governing Tenn-Care, the state ceased accepting applications from uninsured individuals in 1995. However, those individuals already enrolled in the program retained their coverage.
. The order states that the former enrollees may choose whether to reapply for prospective TennCare coverage or appeal for reinstatement retroactive to their date of termination, subject to the requirements for retroactive coverage that the former enroll-ee establish eligibility as of the earlier date and pay any premiums incurred between the earlier date and the end of the period for which coverage is sought.
. According to the state, it had to adopt the amendment because projected spending through the end of fiscal year 2001 (June
. As noted above, the state stopped accepting applications from uninsured individuals in 1995. However, that restriction was temporarily waived for class members, pursuant to the agreed order.