*

The Honorable Danny C. Reeves, United States District Judge for the Eastern District of

Kentucky, sitting by designation. 

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0205p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

THE CHILDREN’S CENTER FOR

DEVELOPMENTAL ENRICHMENT, 

Plaintiff-Appellant,

v.

KATHI JEAN MACHLE,

Defendant-Appellee.

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No. 09-3382

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 08-00817—Gregory L. Frost, District Judge.

Argued: June 16, 2010

Decided and Filed: July 16, 2010 

Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.*

_________________

COUNSEL

ARGUED: S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio,

for Appellant. Kathi J. Machle, R. J. DONOVAN CO., LPA, Columbus, Ohio, for

Appellee. ON BRIEF: S. Adele Shank, LAW OFFICE OF S. ADELE SHANK,

Columbus, Ohio, for Appellant. Kathi J. Machle, Richard J. Donovan, R. J. DONOVAN

CO., LPA, Columbus, Ohio, for Appellee. 

_________________

OPINION

_________________

SILER, Circuit Judge. Courtland and Michelle Bishop and their minor disabled

son CB brought suit against the private school to which CB had been assigned after the

1
No. 09-3382 Children’s Center for Developmental

Enrichment v. Machle

Page 2

school expelled CB. The district court dismissed the claims, and the Bishops initiated

administrative proceedings. The administrator entered a final decision dismissing the

school as an improper party to the action; the administrator later issued two additional

final decisions reiterating that the school was dismissed as an improper party. The

school filed this action as an appeal of the administrator’s decision and to assert separate

claims for legal fees. The district court reasoned that the appeal was untimely and

attorney’s fees were not authorized and dismissed the case. For the reasons discussed

herein, we affirm the decision of the district court. 

FACTUAL AND PROCEDURAL BACKGROUND

The Bishops reside with their minor son CB in the Worthington, Ohio School

District. Because of a disability, Oakstone Academy (“Oakstone”), part of the

Children’s Center for Developmental Enrichment’s (“CCDE”) non-profit business,

provided educational services to CB pursuant to his Individualized Education Plan

(“IEP”). In August 2005, after a dispute over the school’s implementation of CB’s IEP,

the director of Oakstone informed the Bishops that CB no longer had a place at

Oakstone. 

On May 20, 2006, the Bishops, on behalf of themselves and CB, filed suit in U.S.

District Court, alleging that they were injured as a result of CB’s expulsion. They

sought relief under § 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29

U.S.C. § 794, the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, et seq.,

the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C.

§ 1400, and 42 U.S.C. § 1983. In 2007, the district court dismissed for failure to exhaust

administrative remedies under the IDEIA. In doing so, it reasoned that Plaintiffs could

not circumvent the exhaustion requirements of the IDEIA by also bringing claims under

the Rehabilitation Act, the ADA, or § 1983. 

The Bishops then sought to exhaust their administrative remedies by filing an

administrative due process complaint against Worthington Schools, the Ohio Department

of Education, and CCDE. CCDE challenged the sufficiency of the complaint against it,
No. 09-3382 Children’s Center for Developmental

Enrichment v. Machle

Page 3

but the administrator deemed the complaint to be sufficient. Then, on November 8,

2007, the hearing officer granted CCDE’s motion to dismiss on the basis that it was not

a proper party to the action. The Bishops appealed this dismissal, and the State Level

Appeals Officer (“SLO”) denied the appeal by a “Final Decision and Entry” on January

28, 2008. On March 11, 2008, the SLO issued a second “Final Decision and Entry” in

which it denied as moot CCDE’s appeal of its decision that CCDE had been properly

served, because CCDE had already been dismissed as an improper party. Meanwhile,

the administrative action proceeded on the Bishops’ claims against the other defendants.

The SLO entered a “Final Decision and Entry” on those claims on July 11, 2008. With

each of these decisions, the SLO included a notice regarding the rights of the parties to

appeal the decision in a civil action. 

On August 25, 2008, CCDE filed an appeal and action for attorney’s fees against

the Bishops and their counsel in the district court. Count I sought attorney’s fees from

counsel under IDEIA; Count II sought attorney’s fees from counsel under Ohio law;

Count III sought attorney’s fees from counsel under 42 U.S.C. § 1988 (arising from the

Bishops’ § 1983 claim); Count IV sought attorney’s fees from counsel under the

Rehabilitation Act; Count V sought attorney’s fees from the Bishops under IDEIA;

Count VI sought attorney’s fees from the Bishops under § 1988 (for their claims under

§ 1983); Count VII sought attorney’s fees from the Bishops under the Rehabilitation Act;

Count VIII sought attorney’s fees from the Bishops under Ohio law; Count IX sought

attorney’s fees recoverable under principles of equity; Count X alleged that the due

process complaint was insufficient in the underlying administrative claim; Count XI

alleged that the administrative due process complaint was improperly served upon

CCDE; and Count XII alleged that the administrative due process proceeding was

untimely initiated. 

The district court granted the Bishops’ motion to dismiss this action, reasoning

that CCDE’s claim was untimely and that it had failed to state a claim on which relief

could be granted. 
No. 09-3382 Children’s Center for Developmental

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STANDARD OF REVIEW

We review de novo a district court’s decision to dismiss a matter for untimeliness

or failure to state a claim on which relief could be granted. Lavado v. Keohane, 992 F.2d

601, 605 (6th Cir. 1993); see ITT Indus., Inc. v. BorgWarner, Inc., 506 F.3d 452, 457

(6th Cir. 2007). In reviewing a grant of a motion to dismiss, we take the factual

allegations pled in the complaint as true. Lavado, 992 F.2d at 605. 

DISCUSSION

I. Availability of Attorney’s Fees under the IDEIA

Counts I and V of CCDE’s complaint seek attorney’s fees under the IDEIA as

part of CCDE’s appeal from the SLO’s final decision. The district court dismissed each

of these claims as untimely. We do not address the timeliness of CCDE’s appeal,

however, because we can affirm the decision of the district court on any ground

supported by the record. Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc.,

280 F.3d 619, 629 (6th Cir. 2002); see Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.

2000) (en banc). We do so here because CCDE has failed to state a claim for attorney’s

fees under the IDEIA on which relief could be granted. 

The IDEIA authorizes an award of attorney’s fees for parents who successfully

bring claims under the IDEIA as well as for successful state or local educational

agencies when the parents’ claims were frivolous or unreasonable. The provision states:

(B) Award of attorney’s fees. 

(i) In general. In any action or proceeding brought under this

section, the court, in its discretion, may award reasonable attorneys’ fees

as part of the costs— 

(I) to a prevailing party who is the parent of a child with

a disability;

(II) to a prevailing party who is a State educational agency

or local educational agency against the attorney of a parent who files a

complaint or subsequent cause of action that is frivolous, unreasonable,

or without foundation, or against the attorney of a parent who continued

to litigate after the litigation clearly became frivolous, unreasonable, or

without foundation; or
No. 09-3382 Children’s Center for Developmental

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1

Although some courts have been willing to consider expanding the definition of “parents” in the

attorney’s fees portion of the statute to include other legal guardians consistent with the definition of parent

in the Code of Federal Regulations, see, e.g., Bowman v. Dist. of Columbia, 496 F. Supp. 2d 160, 164-65

(D.D.C. 2007); cf. Herbin v. Dist. of Columbia, 362 F. Supp. 2d 254 (D.D.C. 2005), no such situation is

present here. No statutory term could conceivably encompass a private school according to the IDEIA.

This expansion is irrelevant to the case at hand.

(III) to a prevailing State educational agency or local

educational agency against the attorney of a parent, or against the parent,

if the parent’s complaint or subsequent cause of action was presented for

any improper purpose, such as to harass, to cause unnecessary delay, or

to needlessly increase the cost of litigation.

20 U.S.C. § 1415(i)(3)(B). CCDE is neither a parent nor a state or local educational

agency. In fact, CCDE has argued throughout that it cannot be liable under the IDEIA

because it is a private school. We have found no other court that has specifically

addressed the availability of attorney’s fees to private schools under the IDEIA,1

 but we

need not look further than the language of the statute itself. The statute authorizes

attorney’s fees for parents and, in certain situations, state and local educational agencies.

It does not authorize attorney’s fees for private schools. Thus, CCDE has failed to state

a claim upon which relief could be granted under the IDEIA. 

II. Appeal of the SLO’s Decision under the IDEIA

In Counts X, XI, and XII of its complaint, CCDE appeals the hearing officer’s

decision under the IDEIA that the Bishops’ due process complaint was sufficient and

timely and the SLO’s decision that CCDE was properly served. The district court

dismissed each of these claims as untimely, but again we affirm on other grounds. See

Abercrombie & Fitch Stores, Inc., 280 F.3d at 629. CCDE failed to raise timeliness

(Count XII) or the sufficiency of the due process complaint (Count X) before the SLO,

and those claims are thus waived. See Mich. Dept. of Envtl. Quality v. Browner, 230

F.3d 181, 183 n.1 (6th Cir. 2000) (concluding that claims not raised during the

regulatory comment period were waived); Cellnett Commc’ns v. FCC, 149 F.3d 429, 442

(6th Cir. 1998) (holding that claims not raised before an administrative agency were

waived). The SLO correctly concluded that CCDE’s improper service claim (Count XI)

was moot because all substantive claims against it were dismissed. See Marzuola v.
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Cont’l Tire N. Am., 243 F. App’x 956, 960 (6th Cir. 2007) (“Because all of [Plaintiff]’s

substantive claims were properly dismissed by the district court, there are no remaining

claims against the [Defendant], and so the Rule 4(m) issue is moot.”). The district court

properly dismissed Counts X, XI, and XII.

III. Availability of Attorney’s Fees under § 1988 and the Rehabilitation Act

In addition to seeking attorney’s fees under the IDEIA, CCDE sought attorney’s

fees under § 1988 and the Rehabilitation Act in Counts III, IV, VI, and VII of its

complaint. The district court concluded that both § 1988 and the Rehabilitation Act

allow only the tribunal that hears the substantive claim to award attorney’s fees as part

of the costs. Because the substantive § 1983 and Rehabilitation Act claims were not

before the district court in this case, it concluded it was not authorized to award

attorney’s fees under either statute. The district court’s interpretation of the

Rehabilitation Act and § 1988 is correct. 

On this point, § 1988 states: “In any action or proceeding to enforce a provision

of [42 U.S.C. § 1983] . . . the court, in its discretion, may allow the prevailing party,

other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C.

§ 1988(b). In North Carolina DOT v. Crest Street Community Council, Inc., 479 U.S.

6 (1986), the Supreme Court held that attorney’s fees under § 1988 could not “be sought

in a court action other than litigation in which a party seeks to enforce the civil rights

laws listed in § 1988.” Id. at 12 (emphasis in original). It reasoned that 

[t]he plain language of § 1988 suggests the answer to the question

whether attorney’s fees may be awarded in an independent action which

is not to enforce any of the civil rights laws listed in § 1988. The section

states that in the action or proceeding to enforce the civil rights laws

listed—42 U. S. C. §§ 1981, 1982, 1983, 1985, 1986, Title IX, or Title

VI—the court may award attorney’s fees.

Id. (emphasis in original). The Court went on to say that “[o]n its face, §1988 does not

authorize a court to award attorney’s fees except in an action to enforce the listed civil
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2

The Bishops’ substantive claims under § 1983 and the Rehabilitation Act were brought in Bishop

v. Children’s Center for Developmental Enrichment, No. 09-3383, also pending before this court. It

appears that would have been the proper case in which to bring a claim for attorney’s fees under § 1988

and § 794a. This opinion does not address whether CCDE could amend its pleadings in that case to seek

attorney’s fees. 

rights laws,” id., and that the legislative history supported this reading of the statute, id.

at 12-13. 

This is not an action to enforce § 1983 or another listed civil rights law. Instead,

it is simply an appeal of the administrator’s determination of the sufficiency of the

IDEIA due process complaint and a stand-alone claim for attorney’s fees under state and

federal law and principles of equity.2 Since none of these claims seek to enforce a listed

civil rights statute, the district court correctly concluded that it could not award

attorney’s fees under § 1988. 

Similarly, § 794a of the Rehabilitation Act provides as follows: “In any action

or proceeding to enforce or charge a violation of a provision of this subchapter [29

U.S.C. §§ 790, et seq.], the court, in its discretion, may allow the prevailing party, other

than the United States, a reasonable attorney’s fee as part of the costs.” 29 U.S.C.

§ 794a(b). Like § 1988, this provision refers only to the court hearing the action or

proceeding when it authorizes attorney’s fees as part of costs. Thus, it too contemplates

a single action involving both the substantive claims and the attorney’s fees. Cf. Crest

St. Cmty. Council, Inc., 479 U.S. at 12. But see Eggers v. Bullitt County Sch. Dist., 854

F.2d 892, 897 (6th Cir. 1988) (concluding that similar language in the IDEIA permits

a parent who has prevailed on the administrative level to file a separate action in federal

court to recover attorneys’ fees). The district court correctly concluded that it was not

authorized to award attorney’s fees in this instance.
No. 09-3382 Children’s Center for Developmental

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3

At the district court, CCDE also argued that it was entitled to attorney’s fees under various

unnamed provisions of Ohio law. Because CCDE failed to specify which Ohio laws provided for

attorney’s fees, the district court considered several likely candidates before concluding that none provided

it with authority to award attorney’s fees in this situation. CCDE has waived this argument by failing to

raise it on appeal. See Langley v. DaimlerChrysler Corp., 502 F.3d 475, 483 (6th Cir. 2007); Brindley v.

McCullen, 61 F.3d 507, 509 (6th Cir. 1995) (“We consider issues not fully developed and argued to be

waived.”).

IV. Availability of Attorney’s Fees under Principles of Equity

Finally, CCDE argues that the district court erred by concluding that it did not

have the authority to award attorney’s fees under general principles of equity.3 In

general, “the prevailing litigant is ordinarily not entitled to collect a reasonable

attorneys’ fee from the loser.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S.

240, 247 (1975). Congress, not the judiciary, may create exceptions to this “American

Rule.” See id. at 249-50. Thus, “absent statute or enforceable contract, litigants pay

their own attorneys’ fees.” Id. at 257. 

Despite this rule, federal courts have inherent power to manage their cases, which

includes the power to sanction conduct that abuses the judicial process. Chambers v.

NASCO, Inc., 501 U.S. 32, 44-45 (1991); see id. at 43-46 (discussing the inherent powers

of federal courts). Consequently, “‘in narrowly defined circumstances federal courts

have inherent power to assess attorney’s fees against counsel,’ even though the so-called

‘American Rule’ prohibits fee shifting in most cases.” Id. at 45 (quoting Roadway

Express, Inc. v. Piper, 447 U.S. 752, 765 (1980)). This inherent power to assess

attorney’s fees, however, arises from the court’s authority “‘to manage [its] own affairs

so as to achieve the orderly and expeditious disposition of cases.’” Id. at 49 (emphasis

added) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)). This rationale

does not extend to cases in other courts. The inherent power of a court to manage its

own affairs by assessing attorney’s fees does not also empower it to assess fees in cases

litigated in other venues. In fact, such a conclusion would infringe on the inherent

power of other judges to manage their own affairs. Thus, the district court was right to

conclude that even though it has inherent authority to award attorney’s fees in
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exceptional cases before it, the “inherent authority of a court to award attorney fees

applies only to those matters originally heard by that court.” 

AFFIRMED.