IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20037

MICHELLE GOMEZ BEREZOWSKY, 

 Plaintiff - Appellee

v.

PABLO ANGEL RENDON OJEDA, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:12-CV-3496

Before HIGGINBOTHAM, OWEN, and ELROD, Circuit Judges.

PER CURIAM:*

Michelle Gomez Berezowsky and Pablo Angel Rendon Ojeda, Mexican 

nationals, are locked in a custody dispute over their six-year-old son, “PARB.” 

Berezowsky filed a Hague Convention petition in the Southern District of 

Texas, arguing that Rendon had wrongfully removed PARB from his habitual 

residence (purportedly Mexico). The district court ruled in her favor, and 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 13, 2016

Lyle W. Cayce

Clerk

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Rendon appealed. We vacated and remanded with instructions to dismiss.1

After the district court dismissed the suit without further comment, Rendon

moved to amend the judgment and ultimately appealed once more to this court, 

arguing that the district court should have ordered Berezowsky to return 

PARB to him. Finding no reversible error in the judgment below, we AFFIRM.

I

Since shortly after PARB’s birth in May 2009, Berezowsky and Rendon

have been fighting over the child in state, federal, and foreign courts.2 The 

events underlying the present appeal began in fall 2012, when, amidst 

conflicting rulings from a Texas state district court and several Mexican courts, 

Rendon took PARB from his school in Mexico and brought him to Texas. 

Berezowsky then filed a Hague Convention petition in the Southern District of 

Texas, alleging that Rendon had illegally removed PARB from his habitual 

residence.3 The district court agreed and ordered PARB returned to 

Berezowsky.4 Rendon complied, and Berezowsky, with the district court’s 

permission, left for Mexico with PARB.

In the meantime, Rendon appealed, asking that PARB be returned to 

him. In an August 2014 decision (hereinafter Ojeda I), we overturned the 

district court’s judgment, finding that “Berezowsky failed to meet her burden 

 

1 Berezowsky v. Ojeda, 765 F.3d 456 (5th Cir. 2014) [hereinafter Ojeda I], cert. denied, 

135 S. Ct. 1531 (2015).

2 See id. at 459-65.

3 Id. at 463-64. “The Hague Convention was adopted to address the problem of 

international child abductions during domestic disputes.” Id. at 465. “The Convention’s 

central operating feature is the return remedy. When a child under the age of 16 has been 

wrongfully removed or retained, the country to which the child has been brought must ‘order 

the return of the child forthwith,’ unless certain exceptions apply. . . . A return remedy does 

not alter the pre-abduction allocation of custody rights but leaves custodial decisions to the 

courts of the country of habitual residence.” Abbott v. Abbott, 560 U.S. 1, 9 (2010) (citations 

omitted).

4 See Berezowsky v. Ojeda, No. 4:12-CV-03496, 2013 WL 150714 (S.D. Tex., Jan. 14, 

2013).

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of establishing that Mexico was PARB’s place of habitual residence.”5 We

concluded, in relevant part, that “[f]or the reasons stated in this opinion we 

VACATE the district court’s order and REMAND with instructions to 

dismiss.”6 The accompanying mandate stated that “[i]t is ordered and adjudged 

that the judgment of the District Court is vacated, and the cause is remanded 

to the District Court for further proceedings in accordance with the opinion of 

this Court.”

On remand, the district court succinctly “ORDERED THAT the [District] 

Court’s Order for the return of the child [to Berezowsky] . . . is VACATED and 

this action is DISMISSED.” Rendon timely filed a Rule 59(e) motion to amend 

the judgment, asking the court to order Berezowsky to return PARB to him in 

light of the dismissal. The district court denied the motion, and Rendon again 

appealed.

II

We review the denial of a Rule 59(e) motion for abuse of discretion.7

“Under Rule 59(e), amending a judgment is appropriate (1) where there has 

been an intervening change in the controlling law; (2) where the movant 

presents newly discovered evidence that was previously unavailable; or (3) to 

correct a manifest error of law or fact.”8 “‘Manifest error’ is one that ‘is plain 

and indisputable, and that amounts to a complete disregard of the controlling 

law’” or “an obvious mistake or departure from the truth.”9

 

5 Ojeda I, 765 F.3d at 459. Judge Haynes dissented. Id. at 476 (Haynes, J., dissenting). 

We did not determine where PARB’s habitual residence actually was, nor did we take a 

position on the underlying custody dispute.

6 Id. at 475-76.

7 Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 181 (5th Cir. 2012).

8 Id. at 182.

9 Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) (quoting Venegas–

Hernandez v. Sonolux Records, 370 F.3d 183, 195 (1st Cir. 2004) and Bank One, Texas, N.A. 

v. F.D.I.C., 16 F. Supp. 2d 698, 713 (N.D. Tex. 1998)).

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The same abuse of discretion standard and three-prong test govern a 

district court’s decision to deviate (or not) from a mandate.10 “We review de 

novo whether a district court accurately interpreted and applied the directives 

of an appellate court's mandate.”11

III

Rendon and Berezowsky offer starkly different readings of our Ojeda I 

mandate. Rendon claims that the mandate unambiguously required the 

district court to order PARB’s return to him. On this reading, the district court 

“manifestly err[ed]” in refusing to enter such an order, rendering its denial of 

Rendon’s 59(e) motion an abuse of discretion. Rendon plausibly claims that any 

other reading would allow his victory on appeal to become a de facto defeat, 

impermissibly violating the spirit (if not the letter) of our mandate;12 as he 

points out, “[t]he current reality on the ground is Berezowsky retains 

possession of [PARB] solely by virtue of a Return Order which has been vacated 

by this Court.”13

 

10 Demahy, 702 F.3d at 182 n.3; see United States v. Matthews, 312 F.3d 652, 657 (5th 

Cir. 2002) (“[L]aw of the case is not a jurisdictional rule, but a discretionary practice. . . . 

[T]he so-called mandate rule . . . is but a specific application of the general doctrine of law of 

the case.”); Tollett v. City of Kemah, 285 F.3d 357, 365 (5th Cir. 2002) (“A prior decision of 

this court will be followed without re-examination . . . unless [among other things] the 

decision was clearly erroneous and would work a manifest injustice.”) (quoting United States 

v. Becerra, 155 F.3d 740, 752-53 (5th Cir. 1998)).

11 Demahy, 702 F.3d at 181.

12 See Tollett, 285 F.3d at 364 (a district court must “implement both the letter and 

the spirit of the mandate, taking into account the appellate court's opinion and the 

circumstances it embraces”) (quoting United States v. Kikumura, 947 F.2d 72, 76 (3d Cir. 

1991)); see also United States v. Bell Petroleum Servs., Inc., 64 F.3d 202, 204 (5th Cir. 1995)

(“On a second appeal following a remand, this Court must interpret its earlier mandate 

‘reasonably and not in a manner to do injustice.’”) (quoting Mobil Oil Corp. v. Dep’t of Energy, 

647 F.2d 142, 145 (Temp. Emer. Ct. App. 1981)); United States v. Kellington, 217 F.3d 1084, 

1095 n.12 (9th Cir. 2000) (“[A] district court is not required to woodenly follow a mandate's 

strict terms where patent injustice or absurdity would result. . . . [T]he rule of mandate is 

designed to permit flexibility where necessary, not to prohibit it.”).

13 Rendon also makes a textual argument, claiming that the definition of “vacate,” i.e., 

“to nullify or cancel; make void; invalidate,” requires undoing all practical effects of the 

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Berezowsky claims that the Ojeda I mandate forbade the district court 

from issuing a re-return order. She offers three substantive rejoinders to 

Rendon’s arguments.14 First, she argues that both we and the district court 

were powerless to order a re-return, because the Hague Convention does not 

contemplate such a remedy. It is true that neither the Convention nor its 

implementing legislation, the International Child Abduction Remedies Act,15

articulates a re-return right, or, indeed, appellate remedies or procedures of 

any sort.16 But the federal courts do not need the Convention’s permission to 

issue a re-return order. As the Supreme Court recognized in Chafin v. Chafin, 

a re-return order is “typical appellate relief,” as it simply requires “that the 

Court of Appeals reverse the District Court and that the District Court undo 

what it has done.”17 The federal courts have inherent equitable power to order 

such relief.18

 

vacated decision. But the sources he cites simply state that a vacated decision can be of no 

legal effect going forward, not that that decision’s real-world effects must be unwound. See

BLACK’S LAW DICTIONARY 1782 (10th ed. 2014); Falcon v. Gen. Tel. Co., 815 F.2d 317, 320 

(5th Cir. 1987).

14 Berezowsky also claims that Rendon’s claims on appeal are procedurally defaulted

because he failed to timely challenge or seek clarification of our mandate. This begs the 

question. Rendon only would have had to challenge the mandate if it forbade the relief he 

now seeks. If it required that relief (as he contends) or even permitted it, then there was no 

need to challenge the mandate.

15 22 U.S.C. § 9001 et seq.

16 See Chafin v. Chafin, 133 S. Ct. 1017, 1028 (2013) (Ginsburg, J., concurring).

17 Id. at 1024.

18 In re A.L.C., 607 F. App’x 658, 663 (9th Cir. 2015) (an appellate court has the 

inherent power to issue a re-return order); see Chafin, 133 S. Ct. at 1024 (“Jurisdiction to 

correct what had been wrongfully done must remain with the court so long as the parties and 

the case are properly before it, either in the first instance or when remanded to it by an 

appellate tribunal.”) (quoting Nw. Fuel Co. v. Brock, 139 U.S. 216, 219 (1891)); Burns v. Bines, 

57 A.2d 188 (Md. 1948) (applying Brock in the child custody context); Arkadelphia Milling 

Co. v. St. Louis Sw. Ry. Co., 249 U.S. 134, 145-46 (1919) (“It is one of the equitable powers, 

inherent in every court of justice so long as it retains control of the subject-matter and of the 

parties, to correct that which has been wrongfully done by virtue of its process.”).

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Second, Berezowsky argues that the Ojeda I court’s failure to explicitly 

order a re-return, despite Rendon’s request for one, should be interpreted as 

an implicit decision not to allow a re-return order, which in turn prevented the 

district court from ordering that relief. We find this interpretation plausible, 

but note that only “matters which were ‘decided by necessary implication [or]

explicitly’” are off-limits on remand.19 Rendon’s request demonstrates at a 

minimum that our silence as to a re-return order was deliberate, since the 

request alerted us to the possibility of such an order. But even if our silence 

was deliberate, it does not necessarily follow that our silence implied rejection 

of Rendon’s request and foreclosed the district court from granting it.

Third, and relatedly, Berezowsky argues that the text of our mandate 

must be construed strictly; because the text does not expressly contemplate a 

re-return order, she claims, no such order may issue. Berezowsky points to the 

principle that “[t]he mandate rule requires a district court on remand to effect 

[the] mandate and to do nothing else,”20 and argues that the order to “dismiss” 

precluded further action by definition. But her definitional argument is 

questionable,21 and the notion that the district court could “do nothing else” 

adds little, since our mandate could plausibly be interpreted to implicitly 

require or permit a re-return order (as discussed above).

 

19 Browning v. Navarro, 887 F.2d 553, 556 (5th Cir. 1989) (emphasis added) (quoting 

Morrow v. Dillard, 580 F.2d 1284, 1290 (5th Cir. 1978)); see Laitram Corp. v. NEC Corp., 115 

F.3d 947, 952 (Fed. Cir. 1997) (“Although the district court cites much authority for the 

proposition that issues decided implicitly by courts of appeals may not be reexamined by the 

district court, the rule is actually applicable only to those issues decided by necessary

implication.”).

20 Art Midwest Inc. v. Atl. Ltd. P’ship XII, 742 F.3d 206, 213 (5th Cir. 2014) (emphasis 

added) (quoting Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir. 2007)).

21 Quoting Black’s Law Dictionary, Berezowsky explains that “[b]y definition, to 

‘dismiss’ is to ‘send something away; specifically, to terminate (an action or claim) without 

further hearing, esp. before the trial of the issues involved.’” This is unilluminating, 

especially as Rendon did not seek another hearing.

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IV

Given the above, we find neither Berezowsky’s nor Rendon’s 

interpretation of our Ojeda I mandate entirely compelling. Moreover, we have 

found no binding precedent addressing how a mandate “vacat[ing] . . . and 

remand[ing] with instructions to dismiss” should be parsed.22 Given this, we 

conclude that Ojeda I neither required nor forbade a re-return order. Rather, 

we simply did not decide in that case whether or not a re-return order was 

warranted. Because a lower court “is free to decide matters which are left open 

by the mandate,” the decision to issue or deny a re-return order was therefore 

the district court’s.23

The district court decided not to issue a re-return order. As noted above, 

its subsequent refusal to amend the judgment (which provides the basis of the 

present appeal) is reviewed for abuse of discretion, and amendment is 

appropriate if the controlling law has changed, if new evidence is available, or 

 

22 Our sister circuits disagree as to whether a mandate to dismiss precludes any other 

action. Compare Stamper v. Baskerville, 724 F.2d 1106, 1108 (4th Cir. 1984) (“Compliance 

with an order to relinquish jurisdiction necessarily precludes the lower court from taking any 

further action other than dismissal, for to do so would involve retaining jurisdiction. . . . Once 

an order to dismiss is received, any action by the lower court other than immediate and 

complete dismissal is by definition inconsistent with—and therefore a violation of—the 

order.”), with United States v. Kellington, 217 F.3d 1084, 1095 n.12 (9th Cir. 2000) (criticizing 

Stamper and stating that “a district court is not required to woodenly follow a mandate's 

strict terms where patent injustice or absurdity would result. . . . [T]he rule of mandate is 

designed to permit flexibility where necessary, not to prohibit it.”).

Rendon points out that in a similar Hague Convention case, the Western District of 

Texas interpreted a comparably worded mandate to require a re-return order. In Larbie v. 

Larbie, we “vacat[ed] the district court’s order [returning a child to his mother in England] 

and render[ed] judgment in [the father’s] favor,” without saying more. 690 F.3d 295, 312 (5th 

Cir. 2012). On remand, the Western District of Texas ordered that “the parties must 

immediately comply with the Fifth Circuit’s judgment and mandate . . . [the mother] must 

return [the child] to the custody of the possessory parent, [the father] . . . .” Larbie v. Larbie, 

No. 5:11-cv-00160, Doc. 60 at 2 (W.D. Tex., Aug. 29, 2012). Larbie may be distinguishable, as 

our mandate in that case did not explicitly order dismissal. In any event, the Western 

District’s interpretation does not bind us. 23 Barrett v. Thomas, 809 F.2d 1151, 1154 (5th Cir. 1987).

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if the initial decision was manifestly erroneous as a matter of law or fact. But 

Rendon does not allege new evidence or a change in controlling law, and the 

district court’s decision was not legally or factually erroneous. The law of the 

case did not compel a re-return order, and the court reasonably could have 

concluded on these facts that the equities did not favor a re-return order. As 

three Justices noted in a concurrence in Chafin, re-return orders may prolong 

and fracture custody proceedings, and “‘shuttling children back and forth 

between parents and across international borders may be detrimental to those 

children’ whose welfare led [to] the [Hague] Convention.”24 Citing these 

concerns, the Ninth Circuit recently refused to issue a re-return order after 

overturning a district court’s Hague Convention decision, in what appears to 

be the only federal appellate case addressing the propriety of such an order.25

The district court did not abuse its discretion in refusing to issue a rereturn order. We therefore decline to disrupt the status quo.26 The judgment of 

the district court is AFFIRMED.

 

24 Chafin v. Chafin, 133 S. Ct. 1017, 1029 (2013) (Ginsburg, J., joined by Scalia and 

Breyer, JJ., concurring).

25 In re A.L.C., 607 F. App’x 658, 663 (9th Cir. 2015).

26 We note, however, that our Ojeda I ruling has equipped Rendon to avoid paying 

Berezowsky’s considerable costs and fees below, as the district court had ordered. See 

Berezowsky v. Ojeda, No. 4:12-CV-03496, 2013 WL 150714, at *8 (S.D. Tex., Jan. 14, 2013) 

(awarding Berezowsky “reasonable expenses . . . including court costs, legal fees, and the 

transportation costs related to the return of the child to Mexico”). Because the judgment 

underlying the order to pay Berezowsky has been vacated, Rendon can now move for relief 

from the order under Rule 60. See Am. Realty Trust, Inc. v. Matisse Partners, L.L.C., 2003 

WL 23175440, at *3 n.5 (N.D. Tex. Dec. 15, 2003) (collecting cases).

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JENNIFER WALKER ELROD, Circuit Judge, concurring in the judgment:

This Hague Convention1 proceeding is but the latest chapter in a multivolume cross-border custody dispute spanning the courts of Texas, the United 

States, and Mexico. See Berezowsky v. Ojeda (Ojeda I), 765 F.3d 456, 459–65 

(5th Cir. 2014) (recounting the involvement of “at least 12 different courts”). 

Deploying the Hague Convention’s “return” remedy, the district court ordered 

respondent Pablo Angel Rendon Ojeda to return his then-three-year-old son 

PARB to PARB’s mother, petitioner Michelle Gomez Berezowsky, in Mexico. 

The district court denied the father’s stay motion and PARB was returned 

immediately, even as the father appealed the return order to our court. We 

ultimately vacated the return order, holding that a prerequisite to the Hague 

Convention return remedy was absent because Mexico was not PARB’s place 

of habitual residence. Id. at 459; see Convention art. 3(a). But vacating the 

order did not undo its practical effect, which by then was already complete: 

PARB remained—and, as far as we know, remains now—in Mexico with his 

mother as a result of the order that we held was erroneous.

Out of concern that children “would lose precious months when [they] 

could have been readjusting to life in [their] country of habitual residence,” the 

Supreme Court has discouraged courts from routinely staying return orders 

pending their final resolution on appeal. Chafin v. Chafin, 133 S. Ct. 1017, 

1027 (2013); accord id. at 1029–30 (Ginsburg, J., concurring). Denying a stay, 

however, entrenches the return order while it may yet be vacated. See, e.g., 

Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013) (reversing alreadyexecuted return order where stay had been denied); Larbie v. Larbie, 690 F.3d 

 

1 Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 

1980, T.I.A.S. No. 11,670; 22 U.S.C. §§ 9001–11. 

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295 (5th Cir. 2012) (reversing already-executed return order where no stay had 

been sought). “Where no stay is ordered, the risk of a two-front battle over 

custody will remain real.” Chafin, 133 S. Ct. at 1030 & n.4 (Ginsburg, J., 

concurring) (citing the rival custody proceedings in Larbie). Cases like this one 

illustrate the truth of this statement.

With PARB already returned to Mexico, Rendon’s appeal continued to 

present a live controversy because of the possibility that we might “reverse the 

District Court and that the District Court [might] undo what it ha[d] done”—

that is, order that PARB be “re-returned” to the United States. Chafin, 133 S. 

at 1024; see Ojeda I, 765 F.3d at 464 n.4. Under Chafin, once we did reverse 

the district court, it would have been appropriate for the district court to 

consider PARB’s re-return. Nevertheless, as the majority opinion explains, 

because our mandate did not discuss the issue and because the district court 

may have considered and rejected re-return, the district court did not abuse its 

discretion in denying Rendon’s Rule 59(e) motion for re-return. I consequently 

concur in the judgment. 

This case provides yet another example of the problems that can occur 

when federal courts address Hague Convention return petitions. The Hague 

Convention’s role within the broader context of cross-border custody disputes 

is to undo an abduction so as to “facilitate custody adjudications, promptly and 

exclusively, in the place where the child habitually resides.” Chafin, 133 S. Ct. 

at 1028 (Ginsburg, J., concurring) (citing Convention arts. 1, 3). But time and 

again federal courts have struggled in that task, likely because of both the 

substantive law involved and the procedural strictures of federal court 

litigation. Cf. Redmond, 724 F.3d at 749 (Easterbrook, J., dubitante) (“It is 

time for this federal overlay to end and the subject be returned to the domestic-

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relations apparatus of Illinois and Ireland, where it should have been all 

along.”). 

For example, we have struggled to heed our own admonition that, in light 

of the Hague Convention’s limited purview, courts “must not cross the line into 

a consideration of the underlying custody dispute.” Sealed Appellant v. Sealed 

Appellee, 394 F.3d 338, 344 (5th Cir. 2004); see 22 U.S.C. § 9001(b)(4) (“The 

Convention and this chapter empower courts in the United States to determine 

only rights under the Convention and not the merits of any underlying child 

custody claims.”). In spite of that straightforward directive, we recently gave 

one of the Hague Convention exceptions an interpretation that we 

acknowledged could “embroil the state of refuge in the underlying custody 

dispute.” Rodriguez v. Yanez, 817 F.3d 466, 475 & n.33 (5th Cir. 2016) 

(interpreting the exception for when “the child objects to being returned”); see 

Convention art. 13. We likewise recently joined the Second and Ninth Circuits 

in adopting a multi-factor test for the Convention’s “well-settled” defense that 

requires courts to weigh custody-type considerations, including “the stability 

and duration of the child’s residence in the new environment,” “whether the 

child attends school or day care consistently,” “the child’s participation in 

community or extracurricular activities,” and the respondent parent’s 

“employment and financial stability.” Hernandez v. Garcia Pena, No. 15-

30993, 2016 WL 1719955, at *4 (5th Cir. Apr. 28, 2016); see John DeWitt 

Gregory, Peter Nash Swisher & Robin Fretwell Wilson, Understanding Family 

Law 522–23 (4th ed. 2013) (listing factors state courts typically consider when 

adjudicating child custody). These are complicated and wrenching areas of 

substantive law with which we have little expertise. 

Nor are we well-suited to the prompt resolution that the Hague 

Convention envisions we will achieve. The Convention sets six weeks as the 

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target time for judicial disposition of a petition, see Convention art. 11, but in 

2008, from the filing of a Hague Convention petition in the United States, “the 

average time taken to reach a first instance decision was 209 days compared 

with 441 days to finalise a case that was appealed.” Nigel Lowe, A Statistical 

Analysis of Applications Made in 2008 Under the Hague Convention of 25 

October 1980 on the Civil Aspects of International Child Abduction—Part III, 

National Reports 207 (2011). In one prominent and particularly unfortunate 

example, after the Supreme Court held that the petitioning parent could seek 

a return order in Abbott v. Abbott, 560 U.S. 1 (2010), the district court had to 

dismiss the petition on remand because, during the nearly-six-year course of 

the litigation, the child had turned sixteen—at which point the Convention 

ceased to apply. Gregory, Swisher & Wilson, supra, at 515 n.117. 

Justice Ginsburg has suggested a legislative fix by which district court 

return orders could be appealed only with leave from the court of appeals, with 

the return order routinely stayed if leave is granted. Chafin, 133 S. Ct. at 1030 

(Ginsburg, J., concurring). In the meantime, any parent with a foreign custody 

judgment can keep federal courts out of the equation altogether by seeking the 

enforcement of that judgment in the courts of any of the fifty states, all of which 

have adopted either the Uniform Child Custody Jurisdiction and Enforcement 

Act (UCCJEA) or its predecessor statute. Gregory, Swisher & Wilson, supra, 

at 501. See generally Robert G. Spector, International Abduction of Children: 

Why the UCCJEA Is Usually a Better Remedy than the Abduction Convention, 

49 Fam. L.Q. 385 (2015) (contrasting the Hague Convention and UCCJEA 

regimes). As for the parties here, I am reminding of my colleague’s admonition 

in our previous encounter with this case: “‘You owe your child better than this’ 

and [we] urge both parents to make a concerted effort to settle this matter in 

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PARB’s, not their own, best interests.” Ojeda I, 765 F.3d at 476 (Haynes, J., 

dissenting).

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