FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEYDA SANTALIBRADA CUELLAR, No. 09-35068
Petitioner-Appellant,
v. D.C. No.
2:08-cv-00084-RFC
RICHARD CECIL JOYCE,
ORDER
Respondent-Appellee.
Filed May 7, 2010
Before: Alex Kozinski, Chief Judge, Raymond C. Fisher and
Richard A. Paez, Circuit Judges.
COUNSEL
Sander Bak, Kevin M. Ashby and Robert R. Miller, Milbank,
Tweed, Hadley & McCoy LLP, New York, New York;
Michael Anderson, Anderson & Liechty, P.C., Billings, Mon-
tana for the petitioner-appellant.
Martha A. Chapman, Martha A. Chapman, P.A., Orlando,
Florida for the respondent-appellee.
ORDER
After Richard Joyce abducted his and Leyda Cuellar’s child
from Panama, by way of Australia, Cuellar tracked him down
in America and petitioned for the return of the child pursuant
to the Hague Convention on the Civil Aspects of International
Child Abduction. See Cuellar v. Joyce, 596 F.3d 505, 508
(9th Cir. 2010). We ordered the child returned, and Cuellar
6807
6808 CUELLAR v. JOYCE
now petitions for an award of attorneys’ fees and other costs
incurred on appeal.
Congress has provided that a court “ordering the return of
a child” under the Hague Convention shall award “necessary
expenses incurred by or on behalf of the petitioner . . . unless
the respondent establishes that such order would be clearly
inappropriate.” 42 U.S.C. § 11607(b)(3). Joyce suggests that
an award of fees would be clearly inappropriate in this case
because Cuellar’s lawyers provided their services pro bono,
and because Joyce already owes a substantial amount of
money to his own lawyers.
As we noted in our opinion, this is not a difficult case; it
“falls squarely within the heartland of the Hague Conven-
tion.” Cuellar, 596 F.3d at 511. The only reason the case took
as long as it did, and consumed so many valuable resources,
was Joyce’s dogged refusal to give up custody of the child as
required by the Hague Convention. Joyce’s litigation tactics
were largely intended to “manipulate judicial process for pur-
pose of delay.” Id. at 512. That delay proved expensive, both
for Joyce and for the law firm that represented Cuellar. Hav-
ing caused that expense, Joyce may not turn it to his own
advantage to avoid the mandatory fee-shifting provision of
section 11607(b)(3). If Joyce didn’t want to bear the cost of
delay, he shouldn’t have caused it. Better yet, he shouldn’t
have abducted the child in the first place.
The fact that Cuellar’s lawyers provided their services pro
bono does not make a fee award inappropriate. Fee awards
serve in part to deter frivolous litigation, and denying fees in
this case would encourage abducting parents to engage in
improper delaying tactics whenever the petitioning parent is
represented by pro bono counsel. Cf. Morrison v. CIR, 565
F.3d 658, 664 (9th Cir. 2009). We see no reason to give
abducting parents such a perverse incentive.
Withholding fees from pro bono counsel would also dis-
courage pro bono representation and undermine the Conven-
CUELLAR v. JOYCE 6809
tion’s policy of effective and speedy return of abducted
children. See Hague Convention on the Civil Aspects of Inter-
national Child Abduction art. 1, Oct. 25, 1980, T.I.A.S. No.
11670, 1343 U.N.T.S. 89 (“The objects of the present Con-
vention are . . . to secure the prompt return of children . . . and
. . . to ensure that rights of custody . . . are effectively
respected . . . .”). As Joyce repeatedly emphasized to this
court, Cuellar lives in poverty in Panama, Cuellar, 596 F.3d
at 509, and Joyce may well have hoped that Cuellar would not
have the means to hold him to account for his abduction of the
child. If not for Cuellar’s pro bono counsel, Joyce most likely
would have succeeded. An award of fees in this case will
encourage other lawyers to advance legal services to impecu-
nious clients in the expectation that they will be compensated
if successful. This will help ensure that the Convention not go
unenforced merely because a parent whose child is abducted
lacks the resources to pay for counsel.
We also agree with Cuellar that reasonable transportation
and lodging for her attorney to attend oral argument and post-
argument mediation, as well as the cost of shipping briefs and
other filings to this court, are “necessary expenses incurred by
or on behalf of the petitioner.” 42 U.S.C. § 11607(b)(3); cf.
Koch v. Koch, 450 F.3d 703, 719 (7th Cir. 2006) (awarding
“transportation costs” under section 11607(b)(3)); Michigan
v. EPA, 254 F.3d 1087, 1096 (D.C. Cir. 2001) (awarding
costs incurred during settlement negotiations under statute
authorizing award of “costs of litigation”). Withholding costs
or fees incurred during mediation would encourage abducting
parents to engage in bad-faith settlement negotiations for pur-
poses of delay and would undermine the Convention’s interest
in prompt resolution of disputes.
We therefore grant Cuellar’s motion and refer this matter
to the appellate commissioner for a determination of the
proper amount of the award.