                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                              SEPTEMBER 4, 2009
                                 No. 08-15710                 THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                           ________________________

                       D. C. Docket No. 06-61897-CV-KAM

L.M.P.,
on behalf of, E.P., D.P. and K.P., minors,

                                                               Plaintiff-Appellant,

                                       versus

THE FLORIDA DEPARTMENT OF EDUCATION,
COMMISSIONER OF THE FLORIDA DEPARTMENT OF
EDUCATION,
John Winn,


                                                            Defendants-Appellees.


                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________
                                (September 4, 2009)

                   ON PETITION FOR PANEL REHEARING

Before BARKETT, HULL and FAY, Circuit Judges.
PER CURIAM:

      The previous non-published opinion issued in this case, L.M.P. v. Fla. Dept.

of Educ., — Fed. Appx. —, 2009 WL 1754638 (11th Cir., June 23, 2009), is

hereby VACATED. In its place, on petition for panel rehearing or rehearing en

banc, we file this revised opinion. The petition for panel rehearing and rehearing en

banc are otherwise DENIED.

      L.M.P., on behalf of her autistic triplets, E.P., D.P. and K.P. (“Triplets”),

appeals from a final judgment dismissing her complaint which sought a declaration

that the Triplets’ right to a due process hearing under the Individuals with

Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.,was violated

because Administrative Law Judges (“ALJ”) in Florida do not have authority to

grant equitable relief. In dismissing L.M.P.’s complaint, the district court

concluded that it lacked authority over this matter as L.M.P. had not presented a

“case” or “controversy” as required by Article III of the United States Constitution.

                                    I. Background

      This is L.M.P.’s second appeal before this Court. In her prior appeal, D.P.

ex. rel. E.P. v. Sch. Bd. of Broward County, 483 F.3d 725 (11th Cir. 2007), L.M.P.

challenged the local school district’s denial of her request to continue services that

the Triplets received pursuant to Individualized Family Service Plans (“IFSPs”)



                                           2
under the Early Intervention Program administered under Part C of the IDEA.1

Upon turning three years of age, the Triplets aged out of the Part C program and

became eligible for services under Part B of the IDEA, which guarantees that

disabled children, three years and older, receive a free appropriate public education

(“FAPE”), see 20 U.S.C. § 1400(d)(1)(a), and attempts to do so through the

provision of services that have been identified in a child’s Individualized

Education Program (“IEP”). See 20 U.S.C. § 1414. This Court concluded that the

plain language of the IDEA did not entitle the Triplets to ongoing services under

their IFSPs even though the local school district and the parents had not agreed on

a valid IEP upon the Triplets’s third birthdays. D.P., 483 F.3d at 730.

         In a separate administrative proceeding, L.M.P. also raised claims that the

local school district had denied the Triplets their substantive and procedural rights

to a FAPE under Part B of the IDEA. The ALJ dismissed the case, but without

making a determination whether the Triplets had been denied a FAPE. That case,

L.M.P. on behalf of E.P., D.P., and K.P., minors v. Sch. Bd. of Broward County,

Fla., Case No. 05-60845-Civ-Marra, is presently being litigated in the district

court.


         1
         “Pursuant to IFSPs, disabled infants and toddlers may be provided with developmental
services such as speech, occupational, and physical therapy services; medical services for
diagnosis and evaluation purposes; and social work services.” D.P. ex. rel. E.P. v. Sch. Bd. of
Broward County, 483 F.3d 725, 726 (11th Cir. 2007).

                                               3
      This appeal stems from L.M.P.’s fourth administrative action before the

Florida Division of Administrative Hearings (“DOAH”) in which she sought a

declaration that the Florida Department of Education violated the Triplets’s rights

under the IDEA to a final decision in a due process hearing because the DOAH

does not give its ALJs power to grant the equitable relief that L.M.P. had been

seeking in this and all prior administrative proceedings. The specific equitable

remedy that L.M.P. asserts that the ALJ should be authorized to provide in this

appeal as well as in all previous administrative proceedings is the reimbursement

of the costs incurred by the Triplets’s parents for all of the services that they have

provided to the children from the time of their third birthdays. The ALJ dismissed

the case finding he lacked subject matter jurisdiction because L.M.P. had not

claimed that the Triplets had been denied a FAPE due to the identification,

evaluation, or educational placement of the Triplets. L.M.P. sought review of the

unfavorable ALJ decision in district court as is provided for pursuant to § 1414 of

the IDEA.

      In denying L.M.P.’s motion for summary judgment, the district court

concluded that the fact that the IDEA may make more remedies available to state

or federal courts than it does to ALJs in administrative due process hearings does

not render the decisions of the ALJs in such hearings less than “final.” Later when



                                           4
dismissing the case, the district court found that the issue of whether the ALJs

should have the same equitable powers under the IDEA as the courts is speculative

because L.M.P. has not yet established that the Triplets’s rights to a FAPE under

the IDEA has been violated such that they potentially are entitled to an equitable

remedy. Specifically, the court noted that no determination has been made in an

administrative hearing or state or federal court that the Triplets’s IEPs are

inadequate or that they are entitled to any services that the local school district has

not provided and thus, the Triplets have not shown any injury that an ALJ or

district court is able to redress.

                                        II. Discussion

       Upon review of the parties’ briefs, the record and the district court’s orders

we find no reversible error. We agree the district court properly dismissed

L.M.P.’s complaint on the basis that it lacks authority to decide this matter under

Article III of the United States Constitution. Federal courts are empowered under

Article III to adjudicate only “cases” or “controversies.” Midrash Sephardi, Inc. v.

Town of Surfside, 366 F.3d 1214, 1223 (11th Cir. 2004). In order for there to be a

“case” or “controversy” that a federal court can adjudicate, a plaintiff must make a

sufficient showing of an injury that the court’s decision-making can redress.2


       2
        Courts have developed various doctrines to evaluate the case or controversy
requirement of Article III, including the doctrines of standing and ripeness. The ripeness

                                                5
       We agree with the district court’s determination that L.M.P.’s claim that her

Triplets have been denied a final decision in their due process hearing because the

ALJ lacks authority to grant the equitable relief she requested, i.e. reimbursement

for the costs of the services that she has been providing since the Triplets’s third

birthdays, is not justiciable. As an initial matter, the Supreme Court clarified in its

recent decision in Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2494, n.11

(June 22, 2009), that § 1415(i)(2)(C)(iii) of the IDEA authorizes hearing officers as

well as courts to order reimbursement for private-school tuition notwithstanding

this provision’s silence with regard to hearing officers. Moreover, such

reimbursement can be ordered upon a court or hearing officer concluding that a

child has been denied a FAPE. Id. at 2494, 2496.

       Thus, before an ALJ or a court can consider whether L.M.P. is eligible for

reimbursement for the costs of services that she has been providing for her children


doctrine “asks whether there is sufficient injury to meet Article III's requirement of a case or
controversy and, if so, whether the claim is sufficiently mature, and the issues sufficiently
defined and concrete, to permit effective decisionmaking by the court.” Cheffer v. Reno, 55
F.3d 1517, 1524 (11th Cir. 1995) (citation omitted). Standing is “a threshold jurisdictional
question which must be addressed prior to and independent of the merits of a party's claims.”
Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (citations omitted).
Standing requires the plaintiff to demonstrate: 1) an injury in fact or an invasion of a legally
protected interest; 2) a direct causal relationship between the injury and the challenged action;
and 3) a likelihood of redressability.” Midrash, 366 F.3d at 1223 (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)). We find that because both doctrines, in essence, require
a showing of an injury that this court’s decision-making on the particular claim raised will
resolve and because L.M.P. has not shown any such injury, her claim is non-justiciable under
Article III.


                                                6
and to order such relief in accordance with § 1415(i)(2)(C)(iii), L.M.P. must first

establish that the Triplets’s rights under the IDEA have been violated, i.e. that they

have been denied their guaranteed right to a FAPE. See e.g., Forest Grove, 129

S.Ct. at 2494 (“When a court or hearing officer concludes that a school district

failed to provide a FAPE and the private placement was suitable, it must consider

all relevant factors, . . . , in determining whether reimbursement for some or all of

the cost of the child’s private education is warranted.”); Burlington v. Dept. of

Educ., 471 U.S. 359, 369-70 (1985) (holding that § 1415(i)(2)(C)(iii) includes the

power to order public school authorities to reimburse parents for private-school

expenditures if it is ultimately determined that such placement, rather than the IEP,

is proper); M.M. ex rel. C.M. v. Sch. Bd. of Miami-Dade County, 437 F.3d 1085,

1098 (11th Cir. 2006). This she has not done (although perhaps her pending

federal court complaint against the local school district will ultimately result in

such a finding and open the door to appropriate reimbursement). In dismissing the

Triplet’s case, the ALJ explained that L.M.P. had not claimed that the Triplets had

been denied a FAPE due to their identification, evaluation, or educational

placement. Here, it is merely speculative whether the ALJ would order

reimbursement to the Triplets’s parents for the costs of the services they have been

providing on their own because it has not yet been determined whether the local



                                           7
school district has violated the Triplets’s rights under the IDEA, i.e. has denied

them a FAPE. Without such an injury, there is no trigger of relief under §

1415(i)(2)(C)(iii) and hence, it would be speculative on our part to discuss whether

the ALJ or court would exercise their remedial powers to order reimbursement.

      L.M.P. argues, however, that her asserted injury is not that the Triplets have

been denied a FAPE but that they have been denied a final due process hearing and

that as a result the Triplets’s parents have incurred unnecessary litigation expenses.

L.M.P. claims that because the ALJ in the various administrative proceedings has

either not awarded the Triplets the relief they requested or has concluded that he

was without jurisdiction to decide certain of L.M.P.’s claims, these administrative

decisions are not “final.”

       The determination by the ALJ that he was without jurisdiction to render a

decision on L.M.P.’s claims as presented in this case does not make that decision

less than final. The relevant provisions of the IDEA statute explicitly state that the

decisions at both the initial due process hearing and at the administrative review

level are considered final and are capable of being reviewed by a state or federal

court if the aggrieved party so chooses, which L.M.P. has done. See 20 U.S.C. §

1415(i)(1). Thus, we do not agree with the Triplets’s assertion that the ALJ’s

failure to order the relief that they were seeking denied them a final decision in



                                           8
their administrative proceeding, thereby causing them a redressable injury. As

noted earlier, the only claim in this proceeding is that the Triplets have been denied

a final decision at their administrative hearing; arguing that it is not final, because

in their view, the ALJ did not believe it had the authority to grant equitable relief

when warranted. Because in this case, the Triplets have not established the basis

upon which it could be determined whether equitable relief would be warranted,3

the district court did not err in its determination that the Triplets’s claims in this

proceeding are not justiciable.

       Accordingly, the district court’s dismissal of L.M.P.’s complaint is hereby

AFFIRMED.




       3
           As also noted earlier, the Triplets raised claims, in a separate administrative proceeding
that is currently pending in the district court, that the local school board had denied them a
FAPE. In light of the Supreme Court’s decision in Forest Grove, it is clear that the district court
has the authority to order reimbursement to the Triplets’s parents for some or all of the cost of
the Triplets’s private education in the event that the court determines that the school district
failed to provide the Triplets a FAPE. 129 S. Ct. at 2496. Forest Grove also makes it clear that
had the ALJ in this separate proceeding found that the Triplets had been denied a FAPE, he, too,
had authority to order appropriate reimbursement.


                                                  9
