Saldivar v. Rodela, EP–12–CV–00076–DCG.

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Citation894 F.Supp.2d 916
Docket NumberNo. EP–12–CV–00076–DCG.,EP–12–CV–00076–DCG.
PartiesSonia Eladia Acosta SALDIVAR, Petitioner, v. Erick RODELA, Respondent.
Decision Date01 October 2012

894 F.Supp.2d 916

Sonia Eladia Acosta SALDIVAR, Petitioner,
Erick RODELA, Respondent.

No. EP–12–CV–00076–DCG.

United States District Court,
W.D. Texas,
El Paso Division.

Oct. 1, 2012.

[894 F.Supp.2d 921]

Pamela M. Brown, Texas RioGrande Legal Aid, Inc., Weslaco, TX, for Petitioner.

James Darrell Lucas, Attorney at Law, Marlene Gonzalez, Law Office of Marlene Gonzalez, PLLC, El Paso, TX, for Respondent.

[894 F.Supp.2d 922]

DAVID C. GUADERRAMA, District Judge.

On this day, the Court considered Petitioner Sonia Eledia Acosta Saldivar's “Application for Reasonable Attorneys' Fees and Costs and Brief in Support” (ECF No. 35), filed in the above-captioned action brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 25 Oct. 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501 (“Hague Convention” or “Convention”), implemented in the United States by the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601–11 (“ICARA”). Having prevailed on the merits of the underlying action, Petitioner moves for award of expenses, including legal fees and costs, pursuant to 42 U.S.C. § 11607(b)(3), the fee-shifting provision of ICARA. After careful consideration, the Court, for the reasons that follow, GRANTS IN PART and DENIES IN PART Petitioner's fee application.


On June 22, 2012, the Court entered judgment in favor of Petitioner, in accordance with its opinion issued on the same day. Saldivar v. Rodela, 879 F.Supp.2d 610 (W.D.Tex.2012) (Guaderrama, J.). The Court determined that Respondent Erick Rodela wrongfully retained the parties' seven-year-old son, D.I.R.A., in El Paso, Texas, and ordered him to surrender the child to the custody and possession of Petitioner for the purpose of returning D.I.R.A. to Chihuahua, Mexico, the child's habitual residence. Id. at 630–31, 632–33. Further, the Court ordered Petitioner to file an itemization of fees, costs, and other expenses she seeks to recover pursuant to § 11607(b)(3). Id. at 632–33. Observing that at trial and in his answer to Petitioner's complaint, Respondent argued that an award would be inappropriate because Petitioner is represented for free by counsels from a publicly funded legal aid entity, the Court instructed the parties to submit briefs on this argument. Id. at 631–33.

On July 7, 2012, Petitioner filed her fee application along with a supporting brief, seeking attorneys' fees in the amount of $60,022.00, litigation costs in the amount of $11,718.16, and out-of-pocket expenses in the amount of $1,398.38. Pet'r's Appl. for Reasonable Att'ys' Fees & Costs and Br. in Supp. 14 [hereinafter Pet'r's Fee Appl.], ECF No. 35; Reply Supporting Pet'r's Appl. for Att'y Fees & Cost 5 [hereinafter Pet'r's Reply], Attach. 1, at 8, ECF No. 39. Respondent filed a responsive brief on July 16, Resp't Rodela's Resp. to Pet'r's Appl. for Att'ys' Fees 5 [Resp't's Resp.], ECF No. 38, and Petitioner followed with a reply on July 19. On July 20, Respondent filed a notice of appeal from the Court's judgment entered in this case.

Because in his responsive brief, Respondent asserts that he is financially unable to pay any award of fees and costs, the Court issued an order on August 3, 2012, instructing Respondent to file a supplemental brief and submit evidence in support of his assertion. Order to File Suppl. Br., ECF No. 42. On August 7, Respondent complied with that order, Suppl. Br. of Erick Rodela [hereinafter Resp't's Suppl. Br.], ECF No. 43, and on August 13, Petitioner responded by filing her supplemental brief and an affidavit, Pet'r's Suppl. Br. in Resp. to Resp't's Suppl. Br. on Ability

[894 F.Supp.2d 923]

to Pay Att'ys Fees & Cost 2 [hereinafter Pet'r's Suppl. Br.], ECF No. 44.

Having retained jurisdiction over Petitioner's fee application, the Court will now address its merits. See Procter & Gamble Co. v. Amway Corp., 280 F.3d 519, 524–25 (5th Cir.2002) (“The district court ... retains jurisdiction to resolve motions for ... attorneys' fees while a judgment on the merits is pending on appeal. Such motions are collateral to the merits, so the appeal does not divest the district court of jurisdiction.” (citation omitted)).


Where, as here, a court has ordered the return of the child to his habitual residence, the court must order the respondent-abductor to pay “necessary expenses incurred by or on behalf of the petitioner,” unless to so order would be “clearly inappropriate.” 42 U.S.C. § 11607(b)(3); Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 346 (5th Cir.2004). The respondent has the burden to show that an award of fees or expenses would be “clearly inappropriate.” Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir.2004). Respondent advances two arguments why an award in this case would be so: (1) that Petitioner is represented for free by a publicly funded legal aid entity; and (2) that Petitioner comes to the Court with unclean hands. Resp't's Resp. 3–4, 6–7. The Court will address them in turn.2

1. Respondent's Argument That an Award Is Inappropriate Because Petitioner Is Represented by a Publicly Funded Legal Aid Services Entity

Respondent argues that Petitioner should be denied the statutory attorneys' fees and costs because her attorneys are employed by Texas RioGrande Legal Aid, Inc. (“TRLA”), a publicly funded legal aid entity.3 Further, Respondent maintains that because Petitioner or a relative of Petitioner on her behalf has not paid or agreed to pay any attorneys' fees or costs to TRLA, the requested fees and costs have not been incurred on her behalf. Awarding fees under such circumstances, Respondent contends, would reward legal aid societies, who are already funded by taxpayers, rather than compensating a petitioner for her legal fees and costs. In other words, Respondent invites the Court to interpret § 11607(b)(3) as precluding an award where the petitioner is represented for free by a publicly funded legal aid entity.4

“When interpreting statutes, we begin with the plain language used by the drafters. Furthermore, each part or section of a statute should be construed in connection with every other part or section to produce a harmonious whole.”

[894 F.Supp.2d 924]

United States v. Uvalle–Patricio, 478 F.3d 699, 703 (5th Cir.2007) (internal quotation marks and citation omitted). However, before engaging in the task of statutory interpretation, the Court pauses to sketch the background on how the various subsections of § 11607(b) correlate to several provisions of the Convention and what role, if any, legal aid entities were expected to play in effectuating the purposes of the Convention. See Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 89–90, 127 S.Ct. 1534, 167 L.Ed.2d 449 (2007) (departing from the normal order for statutory interpretation, i.e., an order that begins with the statutory language, and examining first the provision's background and basic purposes, because of the technical nature of the language in question).

Section 11607(b) reads in full:

(b) Costs incurred in civil actions

(1) Petitioners may be required to bear the costs of legal counsel or advisors, court costs incurred in connection with their petitions, and travel costs for the return of the child involved and any accompanying persons, except as provided in paragraphs (2) and (3).

(2) Subject to paragraph (3), legal fees or court costs incurred in connection with an action brought under section 11603 of this title shall be borne by the petitioner unless they are covered by payments from Federal, State, or local legal assistance or other programs.

(3) 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.

42 U.S.C. § 11607(b).

The first two paragraphs of § 11607(b) have their roots in a reservation the United States made at the time it ratified the Convention.5 The Senate gave its consent

[894 F.Supp.2d 925]

to the Convention subject to the following reservation:

Pursuant to the third paragraph of Article 26, the United States declares that it will not be bound to assume any costs or expenses resulting from the participation of legal counsel or advisers or from court and legal proceedings in connection with efforts to return children from the United States pursuant to the Convention except insofar as those costs or expenses are covered by a legal aid program.
132 Cong. Rec. S15767 (Oct. 9, 1986) (emphasis added). Consequently, “the United States is under no obligation itself to provide legal services or pay for private legal counsel hired by the petitioner, and the assumption of such costs is at least initially up to the foreign left-behind parent.” Peter H. Pfund, The Hague Convention on International Child Abduction, the International Child Abduction Remedies Act, and the Need for Availability of Counsel for All Petitioners, 24 Fam. L.Q. 35, 48 (1990); see also Dep't of State, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.Reg. 10494, 10508 (Mar. 26, 1986) [hereinafter Convention Analysis] (The effect of the reservation is to “place at least the initial burden of paying for counsel and legal proceedings on the applicant rather than on the federal government.”). Paragraph (1) and (2) codify the essence of the reservation by providing that a petitioner, and—if the petitioner is represented by a federal, state, or local legal assistance program—that program are initially responsible for the expenses incurred in a court action under the Convention.6

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