FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEYDA SANTALIBRADA CUELLAR, 

No. 09-35068 Petitioner-Appellant,

D.C. No.

v.  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, Montana 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
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 Convention.” 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 purpose of delay.” Id. at 512. That delay proved expensive, both

for Joyce and for the law firm that represented Cuellar. Having 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 discourage pro bono representation and undermine the Conven6808 CUELLAR v. JOYCE
tion’s policy of effective and speedy return of abducted

children. See Hague Convention on the Civil Aspects of International Child Abduction art. 1, Oct. 25, 1980, T.I.A.S. No.

11670, 1343 U.N.T.S. 89 (“The objects of the present Convention 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 impecunious 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 postargument 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 purposes 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. 

CUELLAR v. JOYCE 6809