Michael Matthews, et al., Plaintiffs,anddon E. Wagner, Individually and on Behalf of All Personssimilarly Situated, Plaintiff-appellant, v. Gary K. Weeks, Individually and in His Official Capacity Asdirector of the Oregon Department of Human Resources;hersch Crawford, Individually and in His Official Capacityas Acting Director of the Oregon Office of Medicalassistance Programs, Defendants-appellees, 113 F.3d 1241 (9th Cir. 1997)

MEMORANDUM^** 

Having read the briefs and reviewed the record, we conclude that Wagner lacks standing to sue. Wagner has failed to show that a favorable decision on any of his discrimination claims is likely to redress his injury. See Beno v. Shalala, 30 F.3d 1057, 1065 (9th Cir. 1994); see also Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 43 (1976).

It is undisputed that Oregon excludes recipients of Medicare and Medicaid benefits (both of which Wagner receives) from Oregon Health Plan (OHP) participation. Even if the Medicare exclusion was invalidated, Wagner would still be excluded from participation in the OHP under the Medicaid exclusion. Accordingly, resolution of Wagner's claim "would be gratuitous and thus inconsistent with the Art. III limitation." Simon, 426 U.S. at 38.

Wagner attempts to save his challenge to the Medicare exclusion by arguing that if he does not "spend down," he will not be eligible for Medicaid benefits, in which case that exclusion will not apply. The record reflects that Wagner received Medicaid benefits during the two years prior to filing this action. Nothing but "pure speculation" can support Wagner's argument that he will not be eligible for such benefits in the future. See Simon, 426 U.S. at 42-43. Plaintiff therefore lacks standing to sue.

AFFIRMED.