     Case: 13-20234         Document: 00512611327         Page: 1     Date Filed: 04/29/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit

                                                                                        FILED
                                        No. 13-20234                                  April 29, 2014
                                                                                      Lyle W. Cayce
                                                                                           Clerk
ROSSY BELLORIN SALAZAR,

                                                    Plaintiff–Appellee
v.

JOSE ZAGHLOUL MAIMON,

                                                    Defendant–Appellant



                     Appeal from the United States District Court
                          for the Southern District of Texas


Before STEWART, Chief Judge, and DENNIS, Circuit Judge, and
GILSTRAP, District Judge *.


JAMES RODNEY GILSTRAP, District Judge:
      Plaintiff–Appellee Ms. Rossy Bellorin Salazar (“Salazar”) filed suit
under the International Child Abduction Remedies Act (“ICARA”) against
Defendant–Appellant Mr. Jose Zaghloul Maimon (“Maimon”) for the return of
their child. The parties voluntarily settled their dispute and the district court
entered a settlement order memorializing the terms of their agreement.
Subsequently, Salazar brought a motion for attorneys’ fees and necessary
expenses pursuant to the fee-shifting provision of the ICARA. Maimon


      *   District Judge for the Eastern District of Texas, sitting by designation.
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opposed the motion and asked for an evidentiary hearing. Without
conducting an evidentiary hearing, the district court granted-in-part the
motion for attorneys’ fees and awarded Salazar $39,079.13. Maimon appeals
the award of attorneys’ fees as well as the failure of the trial court to hold an
evidentiary hearing. We affirm.
                            I.    BACKGROUND
      Salazar (the mother) and Maimon (the father) are the divorced parents
of a minor child. A Pennsylvania family court entered a decree in 2007
naming the parents joint legal custodians. The mother was awarded primary
custody of the child and was permitted to relocate the child to Anaco,
Venezuela. The father, who resides in Houston, Texas with his wife, was
granted visitation custody of the child for summer and winter holidays. To
facilitate transporting the child between the parents, the custody order
provides that the parent gaining custody of the child is to make
arrangements to travel with the child or make arrangements for a direct
family member to travel with the child.
      Over the next four years following the custody order, the child attended
school in Venezuela and the father exercised his periods of summer and
winter visitation in the United States. The custom and practice between the
parties on each of the visits was for the father to make the travel
arrangements and to return with the child to Venezuela, even though the
mother was the parent gaining custody.
      On July 10, 2011, the child traveled to Katy, Texas for a summer visit
that was scheduled to last until September 12, 2011. The father informed the
mother on August 22, 2011 that he could not accompany the child on the
return trip to Venezuela so she should make arrangements to pick the child
up in Houston. At that point, he reminded her that the custody order requires
her to travel with the child or make arrangements for a family member to do
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so. The mother responded that she did not have a visa to enter the United
States and could not obtain one on such short notice. September 12, 2011
passed and the child remained in the United States.
      On September 15, 2011, the father filed a custody suit in Fort Bend
County, Texas and obtained a default order granting him the exclusive right
to designate the child’s primary residence and granting Salazar supervised
visitation only. The mother received her visa to travel to the United States on
November 8, 2011 and she contacted the father to retrieve the child.
However, the father informed her that he could not release the child because
of the intervening order signed by the Fort Bend County Court.
      The mother then filed the present suit on December 2, 2011 seeking the
return of her child pursuant to ICARA. A bench trial was set for March 20,
2012. On the morning of trial, the parties reached a settlement whereby the
father agreed to voluntarily return the child. The Court incorporated the
terms of the parties’ settlement agreement into an order stating that (1)
Maimon agreed to voluntarily surrender the child into the custody of her
mother, and (2) authorizing Salazar to return to Venezuela with the child.
      Shortly after the settlement, Salazar filed a motion for attorneys’ fees
and costs, seeking to recoup all the expenses she incurred in connection with
her ICARA Petition. Maimon opposed the motion, arguing that since the
parties settled without a trial, he did not have an opportunity to present
evidence on the merits of this case; therefore there was no basis to impose
fees against him. The district court entered a written opinion awarding
Salazar $39,079.13 in necessary expenses, and holding that ICARA only
requires the plaintiff to obtain the primary relief sought, whether by court-
approved settlements or a judgment on the merits, to entitle her to a fee
award under § 11607(b)(3). Maimon timely appealed.


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                            II.   DISCUSSION
      First, we address the district court’s interpretation and application of
the fee-shifting provision of 42 U.S.C. § 11607(b)(3). Second, we address the
Court’s decision to award necessary expenses without conducting an
evidentiary hearing.
A. The District Court’s Interpretation and Application of 42 U.S.C. §
   11607(b)(3)
      “A district court’s costs award under [§ 11607(b)(3)] is reviewed for
abuse of discretion.” Ozaltin v. Ozaltin, 708 F.3d 355, 374-75 (2d Cir. 2013).
“To constitute an abuse of discretion, the district court’s decision must be
either premised on an application of the law that is erroneous, or on an
assessment of the evidence that is clearly erroneous.” Noble Drilling Servs.,
Inc. v. Certex USA, Inc., 620 F.3d 469, 473 (5th Cir. 2010). However, the
district court’s interpretation of the § 11607(b)(3) statute, the primary issue
in this case, is subject to de novo review. Sample v. Morrison, 406 F.3d 310,
312 (5th Cir. 2005). “The appropriate starting point when interpreting any
statute is its plain meaning.” Id. (citing United States v. Ron Pair Enters.,
Inc., 489 U.S. 235, 242 (1989)). “In ascertaining the plain meaning of the
statute, the court must look to the particular statutory language at issue, as
well as the language and design of the statute as a whole.” Id. (citing K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)).
      Our first task “is to determine whether the language at issue has a
plain and unambiguous meaning with regard to the particular dispute in the
case.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002) (citing
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). The inquiry ceases “if
the statutory language is unambiguous and the statutory scheme is coherent
and consistent.” Id. (internal quotation marks omitted).
      Section 11607(b)(3) provides:
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      Any court ordering the return of a child pursuant to an action
      brought under section 11603 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.

      With respect to this appeal, the language in section 11607(b)(3) is
unambiguous. The statute plainly states on its face that “[a]ny court ordering
the return of a child pursuant to an action brought under section 11603 . . .
shall order the respondent to pay necessary expenses.” (emphasis added).
Nothing in the language requires a finding of wrongful removal or retention
of a child, or an adjudication on the merits, as a prerequisite for an award
under this provision. Rather, the plain reading of this statute simply requires
that the action be brought pursuant to section 11603 and that the court enter
an order directing the return of the child.
      To determine what constitutes an action brought under section 11603,
we refer to the language of the relevant parts of the referenced statutory
provision:
      (b) Any person seeking to initiate judicial proceedings under the
      Convention for the return of a child or for arrangements for
      organizing or securing the effective exercise of rights of access to
      a child may do so by commencing a civil action by filing a petition
      for the relief sought in any court which has jurisdiction of such
      action and which is authorized to exercise its jurisdiction in the
      place where the child is located at the time the petition is filed.

      ....

      (e)(1) A petitioner in an action brought under subsection (b) of
      this section shall establish by a preponderance of the evidence—
          (A) in the case of an action for the return of a child, that the
          child has been wrongfully removed or retained within the
          meaning of the Convention; and
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         (B) in the case of an action for arrangements for organizing or
         securing the effective exercise of rights of access, that the petitioner
         has such rights.

      When the two sections of the Code are read in tandem, the disputed
statute can be interpreted in one of two ways. One interpretation emphasizes
subsection (b): “any court ordering the return of a child pursuant to an action
brought under the Convention shall order the respondent to pay necessary
expenses.” The other narrower interpretation emphasizes subsection (e): “any
court ordering the return of a child who has been adjudicated wrongfully
removed or retained within the meaning of the Convention shall order the
respondent to pay necessary fees.”
      When a statute is subject to differing interpretations, the court must
“examine its legislative history, predecessor statutes, pertinent court
decisions, and post-enactment administrative interpretations.” Rogers v. San
Antonio, 392 F.3d 758, 761 (5th Cir. 2004).
  1. ICARA and the Hague Convention
      The ICARA was passed on April 29, 1988 to “ensure greater uniformity
in the Convention’s implementation and interpretation in the United States,”
and to “shorten the running-in period for effective U.S. implementation.” See
H.R. Rep. 100-528, at 17 – 18 (1987). ICARA “establish[es] procedures for the
implementation of the Convention in the United States” and thereby, creates
a private right of action to enforce rights under the Hague Convention. 42
U.S.C. § 11601(b)(1); 11603(b).
      The objectives of the Hague Convention on the Civil Aspects of
International Child Abduction, as set forth in Article I, are simply “to secure
the prompt return of children wrongfully removed to or retained in any
Contracting State” and “to ensure that rights of custody and of access under
the law of one Contracting State are effectively respected in the other

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Contracting States.” Stated another way, “[t]he Convention is designed to
promptly restore the factual situation that existed prior to a child’s removal
or retention.” See H.R. Rep. 100-525, at 5 – 6 (1988).
      To facilitate these objectives, Article 26 of the Hague Convention
provides the judiciary with the discretionary authority to direct an award of
fees and costs upon ordering the return of the child. The counterpart to
Article 26 within the ICARA is 42 U.S.C. § 11607(b)(3). However, the ICARA
goes beyond the discretion bestowed by the Hague Convention and includes a
mandatory obligation to impose necessary expenses, unless the respondent
establishes that to do so would be clearly inappropriate. This reflects an
affirmative intention on the part of Congress to impose fees in favor of the
petitioner and against the respondent in return actions filed under this
statute. Accordingly, the prevailing petitioner is presumptively entitled to
necessary costs and the statute shifts the burden of proof onto a losing
respondent to show why an award of necessary expenses would be “clearly
inappropriate.” Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 346 (5th
Cir. 2004).
      Further, the purpose of section 11607(b)(3), and Article 26 upon which
it is based, intended not only intended to compensate the bearers of the
expenses incurred but also “to provide an additional deterrent to wrongful
international child removals and retention.” Saldivar v. Rodela, 894 F. Supp.
2d 916, 926 (W.D. Tex. 2012) (emphasis added) (internal quotation marks
omitted); see H.R. Rep. 100-525, at 14 (1988). Mandatory fee shifting
discourages manipulation of the judicial process for purposes of delay and
encourages the prompt return of the child.
      The noticeable absence of the type of language within the statute that
Maimon seeks to impose—that the court order must be based upon an
adjudication of wrongful removal or retention—is a meaningful omission that
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cannot be read into the statute. Congress could have included a clause such
as “pursuant to a finding of wrongful removal or retention of a child in an
action brought under section 11603,” but it did not do so.
      Indeed, Appellant’s position should be viewed in the same vein as a
similarly disfavored argument that the petitioner is not entitled to an award
when represented for free by a publicly funded legal aid entity. 1 See Saldivar,
894 F. Supp. 2d at 928 (section 11607(b)(3) does not preclude legal aid
entitles from recovering expenses because the statute provides for “necessary
expenses incurred by or on behalf of the petitioner” and the absence of
exclusionary language is a meaningful omission); Cuellar v. Joyce, 603 F.3d
1142, 1143 (9th Cir. 2010) (withholding fees from pro bono counsel would
undermine the Convention’s policy of effective and speedy return of abducted
children). Similarly, the text of section 11607(b)(3) does not specify the type of
court order that obliges the court to impose necessary fees, so long as it
“order[s] the return of a child pursuant to an action brought under
section 11603.” The rationale in Saldivar therefore applies with equal force to
the issue considered here.
      In sum, neither the language of the statute nor its legislative history
provides any basis for imposing the substantive modifications that Maimon
seeks. Nothing in the statute conditions the court’s obligation to award fees
on a trial on the merits or upon a judicial determination that Maimon
wrongfully retained the child within the United States. See Maher v. Gagne,
448 U.S. 122 (1980) (prevailing through settlement rather than through
litigation on the merits does not preclude a claim of attorneys’ fees). We find
that the district court correctly interpreted “[a]ny court ordering the return of


      1 Maimon also made this argument regarding Salazar’s pro bono representation in
making his opposition before the district court but chose not to pursue this position on
appeal.
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                                 No. 13-20234
a child pursuant to an action brought under section 11603” to mean “any
court ordering the return of a child pursuant to an action brought under the
Convention.” This interpretation is consistent with the plain meaning of the
statute as well as the policy of the effective and speedy return of abducted
children under ICARA and the Hague Convention.
   2. Prevailing Party Status
        We now consider Appellant’s argument that an award of necessary
expenses is inappropriate when the parties have settled the case. For all
practical purposes, this issue is subsumed in the prior discussion of statutory
interpretation. Nevertheless, a short discussion of pertinent decisions
addressing the scope and effect of prevailing party status not only provides
additional context but it reinforces our conclusion.
        The general practice in the United States, known as the “American
Rule,” is that parties are ordinarily required to bear their own attorneys’ fees
and the winner is not entitled to collect from the loser, absent explicit
statutory authority. Buckhannon Bd. & Care Home, Inc. v. West Virginia
Dept. of Health and Human Resources, 532 U.S. 598, 602 (2001) (citing Key
Tronic Corp. v. United States, 511 U.S. 809, 819 (1994)). Congress, however,
has authorized the award of attorneys’ fees to the “prevailing party” in
numerous statutes, including the ICARA. Accordingly, this inquiry reviews
the term of art “the prevailing party” in the context of awarding attorneys’
fees.
        The Supreme Court has identified the prevailing party as “one who has
been awarded some relief by a court,” such that, in addition to judgments on
the merits, settlement agreements enforced through a consent decree may
serve as the basis for an award of attorneys’ fees. Buckhannon, 532 U.S. at
604 (citing Maher, 228 U.S. 122). “Although a consent decree does not always
include an admission of liability by the defendant, it nonetheless is a court-
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                                 No. 13-20234
ordered ‘chang[e] [in] the legal relationship between [the plaintiff] and the
defendant.’” Id. (citing Texas State Teachers Assn. v. Garland Independent
School Dist., 489 U.S. 782, 792 (1989)). The alteration in legal relationship is
distinguished from private settlements that do not entail the judicial
approval and oversight involved in consent decrees. Id. “A defendant's
voluntary change in conduct, although perhaps accomplishing what the
plaintiff sought to achieve by the lawsuit, lacks the necessary judicial
imprimatur on the change.” Id. at 605.
      Here, the district court explained the difference effectively by
contrasting a private settlement and a resulting dismissal of the action under
Rule 41 with the present situation, where the parties chose to invoke the
injunctive powers of a federal court. Where a petitioner initiated an action to
return the child, the court’s consent decree does more than merely validate a
compromise between the parties. “It is a judicial act.” League of United Latin
Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 845 (5th Cir. 1993)
(internal quotation marks omitted). An affirmative action by the judiciary
reaches into the future and has continuing injunctive effects. Id. The
settlement order here arises from the pleaded case, furthers the objectives of
the law upon which the complaint is based, and was sanctioned by the
district court after careful scrutiny. Under these facts, the settlement order
was an adjudication by the district court that authorized an award of
attorneys’ fees.
      Consistent with the high court, this Circuit has previously held that for
a party to qualify as a prevailing party it “must (1) ‘obtain actual relief, such
as an enforceable judgment or a consent decree; (2) that materially alters the
legal relationship between the parties; and (3) modifies the defendant's
behavior in a way that directly benefits the plaintiff at the time of the
judgment or settlement.’ ” Walker v. City of Mesquite, TX, 313 F.3d 246, 249
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                                 No. 13-20234
(5th Cir. 2002) (citing Farrar v. Hobby, 506 U.S. 103, 111 – 12 (1992))
(emphasis added). Therefore, the precedent is clear that both judgments on
the merits and settlement agreements enforced through consent decrees are
sufficient to create prevailing party status for purposes of authorizing an
award of attorneys’ fees. Id. at 249 (citing Buckhannon, 532 U.S. at 604); see
also Distler v. Distler, 26 F. Supp. 2d 723 (D.N.J. 1998) (awarded attorneys’
fees under ICARA after entering a consent order).
      Between the parents in the present action, Salazar is the prevailing
party. Applying the three-factor test of this Circuit, Salazar was successful in
obtaining the relief she initially sought. The legal relationship between the
parties was materially altered when the court ordered the child returned to
Salazar and authorized the child to travel back to Venezuela with her on the
next available flight. The settlement order effectively accomplished the
Convention’s objective of promptly returning the child to the country of her
habitual residence. Although Maimon’s relinquishment was voluntary, the
court order accepting the parties’ agreement was a judicial act that modified
Maimon’s behavior to confer a direct benefit upon Salazar.
      Accordingly, we find the settlement order was sufficient to create a
duty on the district court to order an award of necessary fees and expenses
under section 11607(b)(3).
B. No Abuse Of Discretion By Declining To Conduct An Evidentiary
   Hearing
      The district court’s decision not to hold an evidentiary hearing was
within its broad discretionary powers. Maimon sought an evidentiary hearing
to dispute the merits of the underlying action rather than to dispute the
propriety of Salazar’s claimed expenses. In addressing his request, the
district court properly held that “to the extent that Respondent did not have
an opportunity to present evidence on the lawfulness of his retention of the
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child, that has no bearing on his obligation to present evidence on the
question of attorney’s fees.” Order at 723 (citing Budinich v. Becton Dickinson
and Co., 486 U.S. 196, 200 (1988) (It is “indisputable that a claim for
attorney’s fees is not part of the merits of the action to which the fees pertain,
[for] [s]uch an award does not remedy the injury giving rise to the action.”)).
      Maimon did not raise an adequate factual dispute in responding to
Salazar’s motion for attorneys’ fees to warrant an evidentiary hearing. Once
the district court ordered the child returned to Salazar, section 11607(b)(3)
shifted the burden of proof onto Maimon to establish that an award of the
requested necessary expenses would be “clearly inappropriate.” Sealed
Appellant, 394 F.3d at 346. Maimon had a statutory obligation to come
forward with evidence to show the claimed fees were clearly inappropriate,
yet he produced nothing. Salazar’s motion for fees had attached to it
affidavits, invoices, receipts, attorney fee summaries, billing reports, and
other such documents. By contrast, Maimon’s response was composed
entirely of attorney arguments attempting to set forth his version of the
underlying facts relating to the child’s retention. It contained no exhibits,
affidavits, or any evidence to dispute the necessity or propriety of the claimed
expenses. Absent an actual dispute over whether the expenses were
necessary, the district court had no reason to conduct an evidentiary hearing
on petitioner’s motion for attorneys’ fees. 2
      During oral argument, counsel for Maimon argued that the fee-shifting
provision in the ICARA statute requires a different evidentiary assessment
than the traditional analysis of attorneys’ fees. He asserted that a proper
evaluation touches upon the merits of the case. However, the record shows
that the parties and their counsel spent approximately three-fourths of an

      2  During oral argument, Maimon admitted that he did not file a motion under Rule
59 or otherwise move to contest the district court’s fee award.
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hour with the district court in chambers prior to agreeing on a settlement. It
is hard to imagine that each parent’s version of the underlying facts was not
fully developed in such a candid in-chambers conference. It is our opinion
that the district court took this information, as well as the four months of
records before it, into account in rendering its decision on fees and expenses.
C. $39,079.13 Award Is Not Clearly Inappropriate
      Maimon contends that the district court’s imposition of fees was clearly
inappropriate. However, the district court did not grant Salazar carte blanche
reimbursement for all expenses incurred. To the contrary, it conducted a two-
step inquiry and considered twelve factors under the lodestar method to
arrive at an attorneys’ fee award that it considered reasonable. After careful
analysis, the district court determined the billing rates to be reasonable but
found the time and labor expended as excessive and therefore, unreasonable.
As a result, the expenses the district court deemed necessary were reduced by
almost fifty percent from the requested $75,149.91 to $39,079.13.
      We find that the district court functioned within its broad discretionary
powers in declining to conduct an evidentiary hearing and we defer to the
district court’s determination of $39,079.13 as a reasonable award for the
necessary expenses incurred by Salazar in obtaining the return of her child.
Appellant has presented no basis for us to conclude that the district court
clearly abused its discretion.
                           III.   CONCLUSION
      For the foregoing reasons, the district court’s grant of $39,079.13 in
necessary expenses pursuant to 42 U.S.C. § 11607(b)(3) is AFFIRMED.




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