            Case: 18-10403   Date Filed: 08/10/2018   Page: 1 of 14




                                                                      [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       __________________________

                              No. 18-10403
                       __________________________

                 D.C. Docket No. 8:16-cv-02016-SDM-AEP


JAN RATH,
Father,

                                               Petitioner – Appellee,

versus


VERONIKA MARCOSKI,
Mother,

                                                  Respondent – Appellant.

                       __________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      __________________________

                              (August 10, 2018)
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Before MARCUS and WILSON, Circuit Judges, and GRAHAM, * District Judge.

GRAHAM, District Judge:

       This appeal concerns the standard for awarding attorney’s fees and costs to a

successful petitioner in an action for the return of a child under the Hague

Convention. The International Child Abduction Remedies Act (“ICARA”), which

implements the Hague Convention, directs that a district court “shall order the

respondent to pay necessary expenses . . . unless the respondent establishes that

such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). The district

court held that respondent failed to meet her burden under ICARA and awarded

fees and costs to petitioner. We affirm.

                                              I.

       Petitioner Jan Rath, a citizen of the Czech Republic, initiated this suit under

the Hague Convention on the Civil Aspects of International Child Abduction,

T.I.A.S. No. 11670, 1343 U.N.T.S. 89, and the private right of action provided by

ICARA, 22 U.S.C. § 9003(b). Rath petitioned the district court for the return of

his child, L.N.R., after the child’s mother, Veronika Marcoski, removed him from

the Czech Republic to Florida in April 2016.

       The district court, adopting an extensive report and recommendation by the

magistrate judge, found that the Czech Republic was the place of L.N.R.’s habitual

*
 Honorable James L. Graham, Senior United States District Judge for the Southern District of
Ohio, sitting by designation.
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residence at the time of removal. See Hague Convention, art 3. The court made its

finding after weighing conflicting witness testimony and determining that Rath

was credible and Marcoski was not. The district court held that Marcoski had

wrongfully removed L.N.R. from the Czech Republic and ordered that L.N.R. be

returned.

      Marcoski appealed the district court’s decision. This Court affirmed,

holding that the district court’s assessment of the credibility of the witnesses was

entitled to “great deference.” Marcoski v. Rath, 718 F. App’x 910, 912 (11th Cir.

2017) (per curiam). The Court found that the district court had properly

considered all of the evidence in determining the place of L.N.R.’s habitual

residence and did not err in concluding that it was the Czech Republic. Id. at 913.

      Rath moved for an award of attorney’s fees and costs in the district court.

The magistrate judge issued a report and recommendation concluding that Rath

was entitled to an award of attorney’s fees, taxable costs and expenses under

ICARA. Marcoski objected, arguing that an award would be clearly inappropriate

because she acted in good faith when she removed L.N.R. to the United States.

The district court rejected this argument: “[T]he record belies Marcoski’s ‘good-

faith’ defense. For example, the last-minute, circuitous nature of Marcoski’s return

to the United States suggests an intent to abscond with L.N.R. . . . And several of

Marcoski’s statements confirm that she attempted to seek a more favorable


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resolution in a Florida state court after the couple’s relations ended.” Rath v.

Marcoski, No. 8:16-cv-2016, 2018 WL 446651, at *1 (M.D. Fla. Jan. 17, 2018)

(internal quotation marks and alterations omitted). The district court thus found

that Marcoski had not established that a fee award would be clearly inappropriate.

The court awarded to Rath $73,219.50 in attorney’s fees, $5421.00 in taxable costs

and $10,849.76 in expenses, for a total award of $89,490.26. Id. at *3–4.

      On appeal, Marcoski challenges only the district court’s determination that

Rath is entitled to a fee award. She does not appeal the award amount.

                                          II.

      “‘This court reviews an award of attorney’s fees for abuse of discretion;

nevertheless, that standard of review still allows us to closely scrutinize questions

of law decided by the district court in reaching a fee award.’” Villano v. City of

Boynton Beach, 254 F.3d 1302, 1304 (11th Cir. 2001) (quoting Clark v. Hous.

Auth. of Alma, 971 F.2d 723, 728 (11th Cir. 1992)).

      An abuse of discretion occurs if the court “‘fails to apply the proper legal

standard or to follow proper procedures in making the determination, or bases an

award upon findings of fact that are clearly erroneous.’” Gray ex rel. Alexander v.

Bostic, 613 F.3d 1035, 1039 (11th Cir. 2010) (quoting ACLU v. Barnes, 168 F.3d

423, 427 (11th Cir. 1999)). “An abuse of discretion also occurs when a district

court commits a clear error of judgment.” Id.


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                                         III.

      The Hague Convention permits judicial or administrative authorities to order

“the person who removed or retained the child . . . to pay necessary expenses

incurred by or on behalf of the applicant, including travel expenses, any costs

incurred or payments made for locating the child, the costs of legal representation

of the applicant, and those of returning the child.” Hague Convention, art. 26.

      ICARA, however, displaces the permissive standard of the Convention with

the following directive:

      Any court ordering the return of a child pursuant to an action brought
      under section 9003 of this title shall order the respondent to pay
      necessary expenses incurred by or on behalf of the petitioner,
      including court costs, legal fees, foster home or other care during the
      course of proceedings in the action, and transportation costs related to
      the return of the child, unless the respondent establishes that such
      order would be clearly inappropriate.

22 U.S.C. § 9007(b)(3) (emphasis added). The Fifth Circuit Court of Appeals has

aptly described this fee provision of ICARA as imposing “a mandatory obligation”

on courts to award necessary expenses to a successful petitioner, except when the

respondent demonstrates that an award would be clearly inappropriate. Salazar v.

Maimon, 750 F.3d 514, 519 (5th Cir. 2014); see also Whallon v. Lynn, 356 F.3d

138, 140 (1st Cir. 2004) (stating that a district court has “the duty” to award

necessary expenses, subject to the “clearly inappropriate” exception).




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      The specific language Congress used in ICARA’s fee-shifting provision

should not be overlooked. A Congressional Research Service Report in 2008

estimated there to be two hundred federal statutory exceptions to the American rule

that each party bears its own litigation costs. Henry Cohen, Cong. Research Serv.,

Awards of Attorneys’ Fees by Federal Courts and Federal Agencies, at Summary,

¶ 2 (2008); accord Alan Hirsch & Diane Sheehey, Fed. Jud. Ctr., Awarding

Attorneys’ Fees and Managing Fee Litigation, at 1 (2005). Typical fee-shifting

statutes commit to the district court broad discretion to award fees to a prevailing

party. For instance, Title VII of the Civil Rights Act of 1964 provides that “the

court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s

fee.” 42 U.S.C. § 2000e-5(k). See also Americans with Disabilities Act of 1990,

42 U.S.C. § 12205; Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C.

§ 1988(b); Fair Housing Act, 42 U.S.C. § 3613(c)(2); Rehabilitation Act of 1973,

29 U.S.C. § 794a(b); Voting Rights Act of 1965, 52 U.S.C. § 10310(e). Generally,

the prevailing party “bears the burden of establishing entitlement” to a fee award

and proving the reasonableness of the requested fees. Hensley v. Eckerhart, 461

U.S. 424, 437, 103 S. Ct. 1933, 1941, 76 L. Ed. 2d 40, 53 (1983); Norman v. Hous.

Auth. Of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988).

      Certain other fee-shifting statutes eliminate the district court’s discretion to

make a fee award. Several, for example, direct that a district court “shall” award


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reasonable attorney’s fees to a prevailing plaintiff. See Age Discrimination Act of

1975, 42 U.S.C. § 6104(e)(1); Equal Credit Opportunity Act, 15 U.S.C.

§ 1691e(d); Fair Labor Standards Act, 29 U.S.C. § 216(b).

       In contrast, ICARA’s fee-shifting provision creates a rebuttable presumption

in favor of a fee award. 1 Again, it provides that a court “shall” award necessary

expenses “unless” respondent establishes that an award would be “clearly

inappropriate.” We read the statutory text as creating a strong presumption in

favor of fee-shifting, rebuttable only by a showing from the losing respondent that

an award of attorney’s fees, costs and expenses would be clearly inappropriate.

See Salazar, 750 F.3d at 520 (stating that “the prevailing petitioner is

presumptively entitled to necessary costs”); cf. Mathews v. Crosby, 480 F.3d 1265,

1276 (11th Cir. 2007) (finding a “strong presumption” that the prevailing party

would be awarded costs under a prior version of Fed. R. Civ. P. 54(d)(1), which

provided that costs “shall be allowed . . . unless the court otherwise directs”).

       The term “clearly inappropriate” is not used in any other fee-shifting statute.

According to some courts, this exception “provides the district court ‘broad

discretion in its effort to comply with the Hague Convention consistently with our

own laws and standards.’” West v. Dobrev, 735 F.3d 921, 932 (10th Cir. 2013)

1
  ICARA is not alone in creating a rebuttable presumption. The Equal Access to Justice Act, for
instance, provides that a court “shall award” fees and other expenses to a prevailing party “unless
the court finds that the position of the United States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A).
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(quoting Whallon, 356 F.3d at 140); see also Ozaltin v. Ozaltin, 708 F.3d 355, 375

(2d Cir. 2013). We offer this clarification and limiting principal: ICARA does not

afford courts broad discretion on the issue of whether prevailing petitioners are

entitled to an award—the statute dictates that they presumptively are—and the

exception cannot be drawn so broadly as to make the analysis indistinguishable

from what courts employ under a typical fee-shifting statute. See Chafin v. Chafin,

568 U.S. 165, 169, 133 S. Ct. 1017, 1022, 185 L. Ed. 2d 1, 9 (2013) (“ICARA also

provides that courts ordering children returned generally must require defendants

to pay various expenses incurred by plaintiffs . . . .”). Unless the exception is

carefully circumscribed, the statute will fail to serve its function of compensating

successful petitioners and providing “an additional deterrent to wrongful

international child removals and retentions.” H.R. Rep. 100-525, at 14 (1988),

1988 U.S.C.C.A.N. 386, 395; see Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir.

2010) (awarding fees to petitioner’s pro bono counsel, so as to deter wrongful

removals and improper litigation tactics).

      We recognize that the “clearly inappropriate” language comes without a

statutory definition. See Ozaltin, 708 F.3d at 375 (noting the absence of “any

statutory guidance”). In that regard, Congress did grant courts limited equitable

discretion to determine when to allow an exception. It may well be that courts

making this determination will look to factors that are familiar in the fee award


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context. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19, 114 S. Ct. 1023,

1033 n.19, 127 L. Ed. 2d 455, 471 n.19 (1994); MiTek Holdings, Inc. v. Arce

Eng’g Co., 198 F.3d 840, 842 (11th Cir. 1999). But in doing so, courts must place

on the losing respondent the substantial burden of establishing that a fee award is

clearly inappropriate. See Salazar, 750 F.3d at 522 (emphasizing respondent’s

“statutory obligation to come forward with evidence” to establish that a fee award

was clearly inappropriate).

                                         IV.

      Though the “clearly inappropriate” inquiry is fact-dependent, two

considerations have arisen with some frequency in the case law. One is whether a

fee award would impose such a financial hardship that it would significantly

impair the respondent’s ability to care for the child. See Whallon, 356 F.3d at 139–

40 (citing cases); Norinder v. Fuentes, 657 F.3d 526, 536–37 (7th Cir. 2011);

Mendoza v. Silva, 987 F. Supp. 2d 910, 917 (N.D. Iowa 2014). A second is

whether a respondent had a good faith belief that her actions in removing or

retaining a child were legal or justified. See Ozaltin, 708 F.3d at 375–76;

Mendoza, 987 F. Supp. 2d at 916–17.

      Marcoski relies solely on the argument that a fee award is clearly

inappropriate because she acted in good faith in removing L.N.R. to the United

States. We agree that the basis for a losing respondent’s course of conduct can be


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a relevant consideration in deciding if a fee award is clearly inappropriate. See

Ozaltin, 708 F.3d at 375 (“Although mistake of law is not a defense to the return

action itself, it is a relevant equitable factor when considering whether a costs

award is appropriate.”). However, we find that Marcoski has fallen well short of

her burden of establishing the “clearly inappropriate” exception.

        The district court found that the record belied Marcoski’s claim of good

faith. Marcoski contends that the district court erred by taking too limited of a

view of the record and confining its analysis to two factors—the “last-minute,

circuitous nature” of her removal of L.N.R. to the United States and her tactic of

immediately filing suit in Florida to determine child custody and support.

According to Marcoski, the district court ignored evidence showing that she had a

longstanding plan to raise L.N.R. in Florida and that Rath had consented to her

plan.

        We disagree and find that the district court did not abuse its discretion in

denying Marcoski’s good faith argument. Though the district court did not engage

in a lengthy analysis, it cited its review of the record in rejecting her claim, much

as the magistrate judge cited his comprehensive report and recommendation on the

merits in refuting her claim of good faith. The reason is simple: the record

developed on the merits of the wrongful removal petition is replete with evidence

contradicting Marcoski’s good faith argument, and the district court’s factual


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determinations on the merits were affirmed on appeal and now constitute the law

of the case. See Lebron v. Sec’y of Fla. Dep’t of Children & Families, 772 F.3d

1352, 1360 (11th Cir. 2014) (“Under the ‘law of the case’ doctrine, the findings of

fact and conclusions of law by an appellate court are generally binding in all

subsequent proceedings in the same case in the trial court or on a later appeal.”)

(internal quotation marks omitted).

        The district court did not, as Marcoski argues, confine its analysis to two

factors. Rather, it selected the two examples most damaging to her claim. We

review the district court’s factual finding that Marcoski acted in bad faith for clear

error and find none. See In re Porto, 645 F.3d 1294, 1304 (11th Cir. 2011).

Marcoski’s furtive removal of L.N.R. to the United States and her litigation tactics

upon her arrival, the district court reasonably found, suggested an “intent to

abscond with L.N.R.” and to “seek a more favorable resolution in a Florida state

court.” Underpinning this conclusion were the factual determinations made earlier

that Rath was completely unaware of Marcoski’s plans to remove L.N.R. to the

United States and that she devised her litigation strategy out of a concern over

what legal measures Rath might pursue upon becoming aware she had left the

Czech Republic with L.N.R.

      Even if the district court had considered only these two factors, we would

find no error, for they alone suffice to support a reasonable conclusion that


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Marcoski failed to establish that a fee award would be clearly inappropriate.

Marcoski’s argument about evidence being ignored amounts to no more than her

disagreement with the district court’s prior credibility determinations. That is not

to say that a losing respondent can never demonstrate that she acted in good faith

in removing or retaining a child. But Marcoski, who argued unsuccessfully on the

merits that Rath had consented to her removal of L.N.R., has chosen to support her

good faith claim by attempting to re-litigate the factual determinations already

made and affirmed in this case. This she cannot do outside of her showing clear

error in the prior decision, which she has not done. See id.

      The evidence to which Marcoski cites does not support her good faith claim

in any event. She points to a Declaration of Intent signed by Rath stating that he

believed it would be in his son’s best interest to be a United States citizen. Rath

also accompanied Marcoski to the United States Embassy to obtain a Consular

Report of Birth Abroad and a United States passport for L.N.R. And he signed an

immunization waiver form, which Marcoski asserts was done so L.N.R. could be

vaccinated in the United States.

      At best this evidence shows that Rath was aware of Marcoski’s belief that

their son would benefit from American citizenship and that she might want to

travel with him to the United States someday. Marcoski did not submit credible

evidence establishing that she had a concrete plan or time frame, known to Rath,


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for leaving the Czech Republic with L.N.R. Nor did she demonstrate that Rath

knew of, let alone consented to, the time and manner in which she removed L.N.R.

Indeed, she staged the removal to occur while Rath was in England on business.

When he returned home and unwittingly emailed Marcoski about arranging to

spend time with L.N.R., he received an email from her attorney advising him that

Marcoski and his son were now “permanently residing” in Florida and that he

should direct all further communications to legal counsel.

      Finally, Marcoski does make one argument that does not implicate prior

factual determinations, but it fares no better. Marcoski contends that she removed

L.N.R. in good faith because she relied on a legal opinion letter from a Czech

attorney. The letter, she says, expressed the opinion that an individual in her

position had the right to decide where her child should live. Marcoski cites the

Second Circuit’s decision in Ozaltin, in which the court held that a full fee award

would be clearly inappropriate because the removing parent had a good faith belief

that she could remove the children.

      Ozaltin is plainly distinguishable. There, Turkish courts supervising the

parents’ divorce and child custody proceedings “repeatedly implied prior to the

Mother’s removal of the children from Turkey . . . that the children could live with

the Mother in the United States.” Ozaltin, 708 F.3d at 376. The Second Circuit

found that the mother’s reliance on the orders of the Turkish courts formed a


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reasonable basis for her to believe “at the time of removing the children to the

United States in 2011 that her actions were consistent with Turkish law.” Id. at

375 (emphasis added).

      Unlike the Turkish court orders in Ozaltin, the legal opinion letter received

by Marcoski was prepared post-removal and had no foundation in the factual

circumstances of the parties. The opinion letter, dated May 19, 2016, is an after-

the-fact justification for her April 21, 2016 removal of L.N.R. And it is premised

on an inapplicable scenario—“where [the] parents do not live together since the

birth of the child [and] the child is in fact in sole custody of one parent.” Rath and

Marcoski were in a committed relationship and cohabited well before L.N.R.’s

birth and throughout the first six months of his life. Marcoski, an attorney herself,

cannot credibly argue that the opinion letter—premised on a fact pattern not her

own and written one month after she left the Czech Republic—formed the basis of

a good faith belief that she had a right to remove L.N.R.

                                          V.

      The district court did not abuse its discretion in finding that Marcoski failed

to establish under ICARA that an award of necessary expenses would be clearly

inappropriate. Accordingly, the district court’s award to Rath of attorney’s fees,

costs and expenses in the total amount of $89,490.26 is AFFIRMED.




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