14-904

Souratgar v. Fair

UNITED STATES COURT OF APPEALS

F OR THE S ECOND C IRCUIT

_______________

August Term, 2014

(Argued: January 16, 2015 Decided: March 25, 2016)

Docket No. 14

‐ 904

_______________

A BDOLLAH N AGHASH S OURATGAR

,

Petitioner

‐ Appellee

,

—v.—

L EE J EN F AIR

,

Respondent

‐ Appellant.

_______________

B e f o r e: K ATZMANN

, Chief Judge

, L OHIER and D RONEY

, Circuit Judges

.

_______________

Respondent

‐ Appellant Lee Jen Fair appeals from a judgment ordering her

to pay to the prevailing petitioner

‐ appellee, Abdollah Naghash Souratgar,

$283,066.62 in expenses under the International Child Abduction Remedies Act,

which directs district courts to issue such an order “unless the respondent

establishes that such order would be clearly inappropriate.” 22 U.S.C. §

9007(b)(3). That determination requires district courts to weigh relevant equitable

factors, including intimate partner violence. Having reviewed all relevant2 equitable factors, we conclude that, because the respondent showed that the

petitioner engaged in multiple, unilateral acts of intimate partner violence against

her and that her removal of the child from the habitual country was related to that

violence, and because there are no countervailing factors in the record in favor of

the petitioner, such an award would be “clearly inappropriate.” Accordingly,

although the district court correctly considered intimate partner violence in its

equitable analysis, it exceeded its discretion in its assessment of the evidence at

issue and, in turn, in the weighing of equitable factors. For these reasons, we

REVERSE the order and VACATE the judgment.

Judge Lohier concurs in a separate opinion.

_______________

R OBERT D. A RENSTEIN

, New York, New York, for Petitioner

‐ Appellee

.

G ARY S ERBIN (Jordan L. Estes and Nicole E. Schiavo, on the brief ),

Hogan Lovells US LLP, New York, New York, for Respondent

‐ Appellant

.

_______________

K ATZMANN

, Chief Judge :

The International Child Abduction Remedies Act (“ICARA”) provides that

the prevailing petitioner in a child abduction case shall be awarded expenses

incurred in connection with the petition “unless the respondent establishes that

such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). That

determination requires district courts to weigh relevant equitable factors,

including intimate partner violence.3 Respondent

‐ appellant Lee Jen Fair (“Lee”) appeals from a February 27,

2014 judgment following a February 20, 2014 order of the United States District

Court for the Southern District of New York (Castel, J. ), which awarded

$283,066.62 in expenses to Petitioner

‐ Appellee Abdollah Naghash Souratgar

(“Souratgar”). Previously, Souratgar had petitioned for the return of Shayan, the

son whose custody he and Lee shared in Singapore, under the Hague Convention

on the Civil Aspects of International Child Abduction (“Hague Convention”),

Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10494

(Mar. 26, 1986), and its domestic implementing legislation, ICARA, 22 U.S.C. §§

9001–9011. 1 The district court granted that petition, and a panel of our Court

affirmed. See Souratgar v. Fair ( Souratgar I ), No. 12

‐ cv

‐ 7797, 2012 WL 6700214

(S.D.N.Y. Dec. 26, 2012), aff’d sub nom.

, Souratgar v. Lee ( Souratgar II ), 720 F.3d 96

(2d Cir. 2013). Souratgar then sought an order directing Lee to pay the “necessary

expenses” related to his successful petition pursuant to 22 U.S.C. § 9007(b)(3).

Notwithstanding Lee’s arguments that her indigence and Souratgar’s acts of

1 ICARA was formerly classified at 42 U.S.C. §§ 11601–11610, but has since been

transferred to 22 U.S.C. §§ 9001–9011. We cite the current location throughout this

opinion.4 violence against her rendered the requested award clearly inappropriate, the

district court ordered Lee to pay Souratgar $283,066.62. See Souratgar v. Lee

( Souratgar III ), No. 12

‐ cv

‐ 7797, 2014 WL 704037, at *9–12 (S.D.N.Y. Feb. 20, 2014).

In resolving whether it was clearly inappropriate to order Lee to pay

expenses to Souratgar, our consideration is grounded in the record, which reveals

that Souratgar committed intimate partner violence against Lee but Lee did not

commit any violence against Souratgar. The district court was correct in

considering this unilateral intimate partner violence as a relevant equitable factor,

but, after reviewing the record, we find that the district court erred in its

assessment of the relationship between the intimate partner violence and Lee’s

decision to remove Shayan from the country of habitual residence and thus erred

in its weighing of the equitable factors. Because Lee established that Souratgar

had committed multiple, unilateral acts of intimate partner violence against her,

and that her removal of the child from the habitual country was related to that

violence, an award of expenses to Souratgar, given the absence of countervailing

equitable factors, is clearly inappropriate. Accordingly, we REVERSE the order

and VACATE the judgment.5 BACKGROUND

Lee, a Malaysian national, and Souratgar, an Iranian national, married in

2007 and resided in Singapore. In 2008, Lee became pregnant, which is when, on

her account, Souratgar began abusing her. Lee gave birth to their son, Shayan, in

January 2009. After several years of marital discord, Lee eventually departed the

marital home with Shayan in May 2011 and left Singapore with Shayan one year

later.

After Lee departed Singapore, Souratgar filed a petition in the Southern

District of New York seeking the return of Shayan to Singapore as provided by

the Hague Convention and ICARA. In considering the petition, the district court

conducted a nine

‐ day evidentiary hearing at which both Lee and Souratgar

testified. The district court ultimately granted the petition after concluding that

Souratgar had established a prima facie case under the Hague Convention and

that Lee had failed to prove either of her two asserted affirmative defenses. See

Souratgar I

, 2012 WL 6700214, at *4–17. Lee appealed, and a panel of this Court

affirmed the judgment. Souratgar II

, 720 F.3d at 100.6 Souratgar then moved in the district court for an order directing Lee to pay

his expenses related to Shayan’s return to Singapore. ICARA provides that, if the

petitioner succeeds, a district court “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.” 22 U.S.C. §

9007(b)(3). The district court, in a finding not challenged by Souratgar,

determined that only $283,066.62 of his requested $618,059.61 constituted

necessary expenses related to the return of Shayan. See Souratgar III

, 2014 WL

704037, at *2–8, *12. Lee argued that an order directing her to pay Souratgar’s

expenses would be clearly inappropriate for two reasons: (1) “Souratgar’s past

abusive behavior” against Lee and (2) Lee’s “inability to pay.” Id. at *9. The

district court determined that neither argument was persuasive.

As to Lee’s first argument, the district court acknowledged that it had, in

considering the merits of Souratgar’s petition for the return of Shayan, made

detailed factual findings “that Souratgar engaged in abusive conduct” against7 Lee. Id. The district court made those findings in the course of evaluating Lee’s

affirmative defense under Article 13(b) of the Hague Convention. Under that

provision, a signatory state need not order the return of the child if the

respondent establishes that “there is a grave risk that his or her return would

expose the child to physical or psychological harm or otherwise place the child in

an intolerable situation.” Hague Convention art. 13(b), 1343 U.N.T.S. at 101.

Lee had argued that Article 13(b) should apply because, if returned to

Singapore, Shayan would face a grave risk of physical and psychological harm

due to Souratgar’s violence. The district court ultimately disagreed, finding no

risk of physical harm to Shayan because “there is no credible evidence that

petitioner physically abused the child.” Souratgar I

, 2012 WL 6700214, at *11. The

district court also found psychological harm unlikely because Souratgar and Lee

would probably never live together again, diminishing the prospect that Shayan

would “bear witness to petitioner’s abuse of respondent.” Id. The district court

further found that there was no evidence that Shayan “himself suffers from [post

‐

traumatic stress disorder] or will have a negative reaction to being repatriated to8 Singapore” and “that Singapore is well

‐ equipped to mitigate any risk of harm to

the child pending a final custody determination.” Id.

In coming to this conclusion, the district court considered and made

numerous factual findings about each party’s allegations of abuse at the hands of

the other. The district court was generally skeptical of many of the allegations, but

was most inclined to credit those that were contemporaneously documented,

explaining:

Based upon an assessment of credibility and available corroboration

or lack thereof, the Court finds that both parties have exaggerated

their claims. The Court recognizes that victims of spousal abuse often

do not come forward to report instances of domestic violence for

many reasons and, therefore, a lack of near

‐ contemporaneous

documentation does not necessarily render a victim ʹ s claims

unbelievable. In this particular case, however, the respondent did

report instances of domestic abuse to the police or to the court. But

these police and medical reports do not identify the most severe acts

of violence claimed before this Court.

Id. at *7.

Specifically, the district court considered Lee’s allegations that Souratgar:

(1) on May 31, 2008, when Lee was pregnant, “hit and kicked her on her head and

body,” id. ; (2) in March 2009, “struck her multiple times on her right shoulder

while the child was breastfeeding in her arms,” id. at *8; (3) during an argument9 in late 2009 or early 2010, “took the child out of her arms and started to beat her

on the head and back,” id. ; (4) on January 5, 2010, followed Lee to a neighbor’s

house and pulled her back into the marital home, where Souratgar “continued to

beat her” causing “scratches and redness on her arms where he had grabbed her,”

id. (internal quotation marks and alterations omitted); (5) on August 15, 2011,

when Lee met Souratgar at his office to pick up packages that belonged to her,

“pulled [Lee’s] hands and also pushed” her, from which she “suffered some

bruises and scratches on” her chest and hands, id. at *9 (internal quotation marks

omitted); (6) on November 22, 2011, chased Lee by car, attempting to overtake her

vehicle “in a reckless and dangerous manner,” id. (internal quotation marks

omitted); and (7) “forced [Lee] to engage in certain sexual acts,” id. at *10. The

district court discredited some of these allegations, including the allegation of

sexual assault, but found most of them to be credible. In short, the district court

made a factual finding that Souratgar perpetrated repeated acts of intimate

partner violence against Lee.

By contrast, the district court considered Souratgar’s allegation that Lee

“had tried to attack him with a knife and chopper a few times,” but found10 Souratgar’s “account to be exaggerated and not credible.” Id. at *8. Nowhere in

the district court’s decision is there any other suggestion that Lee had committed

any violence, nor have we found any in our independent review of the record.

Despite these findings that Souratgar had committed violence but that Lee

had not, the district court ordered Lee to pay Souratgar for his expenses because

she “has not established that the past abuse in this case makes an award of fees

clearly inappropriate.” Souratgar III

, 2014 WL 704037, at *9. In so doing, the

district court acknowledged that other district courts had found awards of

expenses to perpetrators of intimate partner violence to be clearly inappropriate,

but nevertheless found Lee’s case distinguishable. See id. Reasoning that Lee’s

departure from the marital home in May 2011 eliminated the dilemma faced by

other victims who continued to reside with their abusers, the district court

concluded that Lee “has not established that the past abuse of her was causally

related to her decision to leave Singapore with her son.” Id.

As to Lee’s second argument against an order awarding expenses—that her

indigence rendered such an order clearly inappropriate—the district court was

likewise unpersuaded, because Lee had “not provided the Court with any11 documentation of her assets or income beyond the [pension] account and the

deed of her interest in her family’s home.” Id. at *11. The district court found that

these documents undermined Lee’s assertion of indigence, noting that she had

approximately $150,000 in a Singaporean pension account that she may be able to

access in the future and concluding that she would probably be able to sell her

one

‐ third interest in a family home to satisfy the judgment. Id. at *10.

Notwithstanding Lee’s sworn affidavit that she had been unemployed for five

years and earned money by selling cakes “for $10 or $20, primarily to her

friends,” the district court expressed disappointment that Lee had “not provided

the Court with any other information regarding her current income.” Id. It

concluded that an award “reduction in this case would neither remedy [Lee’s]

inability to pay nor serve the purposes of” ICARA. Id. at *12.

Accordingly, by Memorandum and Order of February 20, 2014, the district

court ordered Lee to pay Souratgar $283,066.62 in expenses. Id. The Clerk of Court

entered judgment on February 27, 2014, and Lee filed notice of this appeal on

March 26, 2014.12 DISCUSSION

I. Jurisdictional Challenge to Timeliness of Notice of Appeal

At the outset, we address Souratgar’s contention that we lack jurisdiction to

consider Lee’s appeal. Rule 4 of the Federal Rules of Appellate Procedure requires

that a notice of appeal be filed “within 30 days after entry of the judgment or

order appealed from.” Fed. R. App. P. 4(a)(1)(A). This requirement is

“jurisdictional in civil cases.” M.E.S., Inc. v. Snell

, 712 F.3d 666, 668 (2d Cir. 2013).

Lee filed her notice of appeal on March 26, 2014, more than thirty days after the

entry of the district court’s February 20 Memorandum and Order but within

thirty days of the entry of the February 27 judgment. As such, we must determine

which date is the relevant one from which we should measure the timeliness of

Lee’s notice of appeal.

Souratgar contends that the relevant date from which we should measure

the thirty

‐ day period is February 20, the date of the order’s entry, placing heavy

reliance on Perez v. AC Roosevelt Food Corporation (“ AC Roosevelt ”), 744 F.3d 39 (2d

Cir. 2013). There, the district court’s order granting attorney’s fees to the plaintiff

was not appealed by the defendants within thirty days, but months later on a date13 that was within thirty days of the date on which the attorney’s fees award was

memorialized in a judgment. See id. at 40–42. Pointing to Rule 58(a)(3) of the

Federal Rules of Civil Procedure, which provides, in relevant part, that “a

separate document [setting out the judgment] is not required for an order

disposing of a motion

. . . for attorney’s fees under Rule 54,” we held that the

defendants’ appeal was untimely. AC Roosevelt

, 744 F.3d at 42. Because, in

Souratgar’s view, the motion on which he prevailed was one for attorney’s fees

under Rule 54, he argues that no separate document was required, and the thirty

‐

day clock to file an appeal began to run against Lee on February 20, 2014.

We disagree for two independent reasons. First, the district court ordered

Lee to pay not only attorney’s fees but also Souratgar’s expenses of transcription,

lodging, travel, a fact witness, an expert witness, and the investigation he

undertook to find Shayan, all expenses that ICARA specifies as presumptively

reimbursable. See Souratgar III

, 2014 WL 704037, at *12. The scope of the order

underscores that the February 20 Memorandum and Order was disposing not

simply of a motion for attorney’s fees but of a broader motion seeking “necessary

expenses incurred by or on behalf of the petitioner” under ICARA, which14 includes but is not limited to attorney’s fees and court costs. 42 U.S.C.

§ 11607(b)(3). Accordingly, it was not “a final order solely on the issue of

attorney[’s] fees” as in AC Roosevelt

. 744 F.3d at 40 (emphasis added).

Quite apart from the proper taxonomy of the February 20 Memorandum

and Order within the Rules, Lee’s appeal was timely for a second reason: The

order expressly directed the clerk to enter judgment, which the clerk did one

week later. In such a circumstance, an appeal may always be taken from the

judgment. Rule 4(a) is not a trap to lure prospective appellants into filing

untimely notices of appeal where a district court’s order—even one that does not

require a separate document under Rule 58(a)—expressly directs entry of a

judgment by separate document. The order providing for attorney’s fees in AC

Roosevelt did so in light of a settlement on all issues other than attorney’s fees. The

order also directed the clerk to close the case, but did not direct the clerk to enter

judgment by separate document, as Souratgar III did. Compare Order, Perez v. AC

Roosevelt Food Corp.

, No. 10

‐ cv

‐ 4824 (E.D.N.Y. Aug. 13, 2012) (“The Clerk of Court

is respectfully directed to close the case.”), with Souratgar III

, 2014 WL 704037, at

*12 (“The Clerk shall enter judgment in favor of Souratgar

. . . .”).15 Souratgar’s reliance on S.L. ex rel. Loof v. Upland Unified School District

, 747

F.3d 1155 (9th Cir. 2014), fares no better because that case differs from this one in

the same two important ways—there, the order appealed from resolved a motion

seeking only attorney’s fees and did not direct entry of a judgment by separate

document. See Order, S.L. v. Upland Unified Sch. Dist.

, No. 11

‐ cv

‐ 4187 (C.D. Cal.

Aug. 27, 2012), ECF No. 50.

Accordingly, we have jurisdiction to consider the merits of Lee’s appeal, to

which we now turn.

II. ICARA’s “Clearly Inappropriate” Standard

We review for abuse of discretion a district court’s award of expenses

under the Hague Convention. See Ozaltin v. Ozaltin

, 708 F.3d 355, 374–75 (2d Cir.

2013). A district court abuses its discretion “if it base[s] its ruling on an erroneous

view of the law or on a clearly erroneous assessment of the evidence, or render[s]

a decision that cannot be located within the range of permissible decisions.” Id. at

375 (quoting In re Sims

, 534 F.3d 117, 132 (2d Cir. 2008)).

ICARA’s presumption of an award of expenses to a prevailing petitioner is

“subject to a broad caveat denoted by the words, ‘clearly inappropriate.’” Whallon16 v. Lynn

, 356 F.3d 138, 140 (1st Cir. 2004). This caveat retains “the equitable nature

of cost awards,” so that a prevailing petitioner’s presumptive entitlement to an

award of expenses is “subject to the application of equitable principles by the

district court.” Ozaltin

, 708 F.3d at 375 (quoting Moore v. Cnty. of Delaware

, 586

F.3d 219, 221 (2d Cir. 2009)). “Absent any statutory guidance to the contrary, the

appropriateness of such costs depends on the same general standards that apply

when ‘attorney’s fees are to be awarded to prevailing parties only as a matter of

the court’s discretion.’” Id. (quoting Fogerty v. Fantasy, Inc.

, 510 U.S. 517, 534

(1994)).

Generally, in determining whether expenses are “clearly inappropriate,”

courts have considered the degree to which the petitioner bears responsibility for

the circumstances giving rise to the fees and costs associated with a petition. See,

e.g.

, Whallon v. Lynn

, No. Civ.A. 00

‐ 11009

‐ RWZ, 2003 WL 1906174, at *4 (D. Mass.

Apr. 18, 2003) (reducing fees, among other reasons, “because both parties bear

responsibility for the degree of enmity between them”), aff’d

, 356 F.3d 138; Aly v.

Aden

, No. 12

‐ 1960, 2013 WL 593420, at *20 (D. Minn. Feb. 14, 2013); Silverman v.

Silverman

, No. 00

‐ cv

‐ 2274, 2004 WL 2066778, at *4 (D. Minn. Aug. 26, 2004).17 Where, as here, the respondent’s removal of the child from the habitual country is

related to intimate partner violence perpetrated by the petitioner against the

respondent, the petitioner bears some responsibility for the circumstances giving

rise to the petition. In line with this reasoning, district courts in other circuits have

concluded that “family violence perpetrated by a parent is an appropriate

consideration in assessing fees in a Hague case.” Guaragno v. Guaragno

, No. 09

‐ cv

‐

187, 2010 WL 5564628, at *2 (N.D. Tex. Oct. 19, 2010) (finding that a prevailing

petitioner’s physical abuse of the respondent “is a significant factor in the

determination of the assessment of fees and expenses”), adopted by 2011 WL

108946 (N.D. Tex. Jan. 11, 2011); see also Aly

, 2013 WL 593420, at *20 (finding any

award of expenses to the prevailing petitioner clearly inappropriate in part

because the petitioner “was physically and verbally abusive toward respondent”);

Silverman

, 2004 WL 2066778, at *4 (“[That the petitioner] had been physically and

mentally abusive toward respondent

. . . is appropriately considered in

determining fees.”).

This concept is analogous to the equitable doctrine of unclean hands. The

American legal system rightfully “closes the doors of a court of equity to one18 tainted with inequitableness or bad faith relative to the matter in which he seeks

relief.” Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co.

, 324 U.S. 806, 814

(1945); see also Moore v. Cnty. of Delaware

, 586 F.3d 219, 221 (2d Cir. 2009) (per

curiam) (holding that under Rule 39 of the Federal Rules of Appellate Procedure,

the denial of otherwise properly taxable costs “may be appropriate where a losing

party can demonstrate misconduct by a prevailing party”).

Furthermore, considering intimate partner violence as an equitable factor in

the determination of whether an award of expenses is “clearly inappropriate” is

not contrary to the legislative purpose of ICARA’s fee

‐ shifting provision. The

sparse legislative history of the provision reveals that it was “intended to provide

an additional deterrent to wrongful international child removals and retentions.”

H.R. Rep. No. 100

‐ 525, at 14 (1988), as reprinted in 1988 U.S.C.C.A.N. 386, 395. In

general, treating the fee

‐ shifting provision as an additional deterrent furthers

ICARA’s overall purpose of discouraging parents from taking their custody

battles across international borders. See id. at 5. But Congress did not provide that

the provision’s added deterrence was so overriding that courts must award fees

regardless of the circumstances of a particular case. Rather, a common sense19 interpretation of the text indicates that, even if an award of fees would serve a

deterrent purpose, that purpose must give way if awarding fees would be

“clearly inappropriate.” This is in contrast to a determination of the merits of an

ICARA petition, where courts may only consider intimate partner violence

between a respondent and petitioner if it relates to the potential for grave risk of

physical or psychological harm to the child or would otherwise place the child in

an intolerable situation. Hague Convention art. 13(b), 1343 U.N.T.S. at 101. In the

fee

‐ shifting context, Congress built a safety valve directly into the statute, leaving

it to courts to determine when an award of expenses would be clearly

inappropriate, notwithstanding the additional deterrence value such expenses

might provide.

The district court was therefore correct to consider Souratgar’s unilateral

violence in its determination of whether to order Lee to pay expenses under

ICARA. See Souratgar III

, 2014 WL 704037, at *9. However, we respectfully

conclude that the able district court exceeded its discretion in awarding expenses

to Souratgar in light of its fact

‐ finding and its related analysis of the relevant

equitable factors. In the course of reviewing the petition, the district court made20 explicit factual findings that Lee had not committed the violent acts alleged by

Souratgar but that Souratgar had repeatedly perpetrated violence against her.

Souratgar I

, 2012 WL 6700214, at *11. But because Lee had fled the marital home to

her sister’s home within Singapore before fleeing the country, the district court

found that she “ha[d] not established that the past abuse of her was causally

related to her decision to leave Singapore.” Souratgar III

, 2014 WL 704037, at *9.

We differ with the district court’s conclusion on this point. First, this finding is

belied by the record: The district court found that Souratgar’s violence toward Lee

did not stop when she left their home. See Souratgar I

, 2012 WL 6700214, at *9, *11

(discussing violent incidents in August 2011 and November 2011, after her May

2011 departure from the marital home). Second, we find that Lee’s testimony

shows, and Souratgar does not genuinely dispute, that her departure was related

to Souratgar’s history of intimate partner violence. Therefore, we find that

Souratgar bears some responsibility for the circumstances giving rise to the

petition.

Accordingly, having reviewed all relevant equitable factors, because the

respondent has shown that the petitioner engaged in multiple, unilateral acts of21 intimate partner violence against her and that her removal of the child from the

habitual country was related to that violence, and because there are no

countervailing factors in the record in favor of the petitioner, an award of

expenses would be “clearly inappropriate.”

In so holding, we express no opinion about circumstances beyond the facts

of this appeal, particularly where countervailing equitable factors are present. 2

We also do not attempt to catalog the possible countervailing equitable factors

that a district court may properly weigh. This task is better left to the district

courts to develop on a case

‐ by

‐ case basis so that they retain “broad discretion” in

applying equitable principles to implement “the Hague Convention consistently

with our own laws and standards.” Whallon

, 356 F.3d at 140. Here, the district

court assessed two potential countervailing equitable factors—psychological

2 As emphasized by the concurrence, we recognize that we lack authority, in the

absence of legislative directive, to create a bright

‐ line rule that an award of

expenses would be clearly inappropriate whenever the district court makes a

finding of unilateral intimate partner violence by the petitioner against the

respondent. The district court must still assess all relevant equitable factors. We

use the term “countervailing equitable factors” to focus the district court’s

attention, after it has identified that the petitioner has committed unilateral acts of

intimate partner violence against the respondent, on equitable factors that would

counterbalance its consideration of that violence. Here, there were no such

equitable factors in the record.22 abuse and abuse of the child—but neither was present in this case. See Souratgar I

,

2012 WL 6700214, at *11 (discussing Souratgar’s “abusive conduct

. . . [that]

included shouting and offensive name

‐ calling”); id. at *7 (“The Court finds that

both parties have deep love for Shayan and care greatly about his wellbeing.”).

As a matter of clarification, we agree with the district court that a

respondent’s inability to pay an award is a relevant equitable factor for courts to

consider in awarding expenses under ICARA. 3 See, e.g.

, Rydder v. Rydder

, 49 F.3d

369, 373–74 (8th Cir. 1995) (reducing an ICARA award to a “more equitable”

amount in light of the respondent’s “straitened financial circumstances”).

However, this relevant equitable factor can never be a countervailing factor to

intimate partner violence in a case like the one before us—it would remain clearly

3 Although we agree that inability to pay is a relevant equitable consideration, we

note our reservations about the district court’s treatment of Lee’s argument that

she was unable to pay the requested award. Here, the district court pointed to

Lee’s Singaporean pension and her interest in her family home, notwithstanding

her testimony that she could reach neither. See Souratgar III

, 2014 WL 704037, at

*9–12. Even assuming that it was not clearly erroneous to credit those assets to

Lee’s ability to pay, it appears that the award ordered may have been larger than

those assets combined. Despite discussing these assets at some length, the district

court never compared their sum with the contemplated award. We express no

view on the appropriateness of an expenses award that is greater than a

respondent’s total assets, but such an award would, at a minimum, require a

reasoned explanation.23 inappropriate to order a victim of intimate partner violence to pay an expenses

award to the perpetrator, absent countervailing equitable factors, even where the

victim is wealthy.

Finally, we note that intimate partner violence in any form is deplorable. It

can include a range of behaviors, from a single slap to a lethal blow. However, we

need not determine in the matter at hand what quantum of violence must have

occurred to warrant a finding that fees are “clearly inappropriate,” given the

repeated violence established in the record here. Those determinations we leave

to be resolved as they arise in future cases. 4

Here, after assessing all relevant equitable factors, because of the clarity of

the factual record, the nature of the multiple, unilateral acts of violence, and the

absence of countervailing equitable factors in favor of petitioner, we conclude that

4 The concurrence poses a hypothetical in which a wife slaps a husband and the

husband then abducts their child and invokes the slap to avoid paying for his

wife’s expenses in the event she successfully petitions for return of the child. See

Concurrence at 6–7. We do not express an opinion about whether a single slap in

every instance amounts to the level of intimate partner violence that would

render an award clearly inappropriate, though clearly in some cases it may. In

this hypothetical, the fact

‐ finder would be charged with determining whether the

slap was genuinely related to the abduction of the child and, if so, whether there

are any countervailing equitable factors that would need to be considered. In

short, this is a fact

‐ intensive inquiry about which we do not opine.24 an award of expenses to Souratgar is clearly inappropriate. In the ordinary

course, we would remand the case to the district court to assess the petitioner’s

request for fees and costs consistent with our opinion. However, given the record

in this case, we cannot envision any scenario where an award of expenses would

not be clearly inappropriate. Accordingly, a remand would serve no useful

purpose. Cf. Rydder

, 49 F.3d at 373–74 (reducing fee award without remanding for

consideration by the district court).

For these reasons, we REVERSE the order and VACATE the judgment of

the district court.1 LOHIER, Circuit Judge, concurring: 1

I agree that it is within a district court’s discretion to consider intimate 2

partner violence in determining whether an amount of costs is clearly 3

inappropriate. I also agree with the majority that the District Court exceeded its 4

discretion in awarding litigation expenses to Abdollah Naghash Souratgar in 5

light of his appalling acts of violence and the other unique facts of this case. I 6

write separately to emphasize that the majority opinion is extremely narrow in 7

scope and confined to its particular facts, and to counsel district courts and 8

panels of our Court not to draw from it any rule or presumption against 9

awarding fees whenever a winning petitioner engages in acts of repeated 10

“unilateral violence” against the losing respondent. As my colleagues in the 11

majority recognize, such a presumption would conflict with traditional 12

principles of equity that already permit district courts to consider such 13

deplorable conduct in determining fee awards. Given the complicated nature of 14

domestic disputes

– where time, money, gender, power, psychological abuse, 15

and other family circumstances, known and unknown, can alter the significance 16

of an act of violence, or even repeated acts of violence

– it is easy to see why 17

Congress would conclude that the flexibility equity affords is better suited to 182 determining the propriety of a fee award than any bright

‐ line presumption. 1

Applying traditional principles of equity has the virtue of tracking the relevant 2

statutory provision in this case, § 9007(b) of the International Child Abduction 3

Remedies Act (“ICARA”), 22 U.S.C. § 9007(b), which creates a presumption in 4

favor of awarding litigation expenses to prevailing petitioners that is displaced 5

only when the award is “clearly inappropriate.” And nothing in the statute 6

suggests that courts should elevate any single equitable factor over another. 7

I 8

Although repeated unilateral acts of intimate partner violence represent 9

the kind of inequitable conduct that may reduce or even bar an award of 10

litigation expenses, the majority opinion wisely avoids creating a presumption 11

that such violence will always or even often be expected to result in a reduction 12

or bar. Confining its holding to the specific facts of this case, the majority 13

opinion makes clear that the violence in this case is an equal, not greater, 14

equitable factor to be considered along with several other factors, 15

“countervailing” or not. Treating it as a more significant factor would have 16

unduly limited the wide equitable discretion of the district courts in precisely the 17

circumstances where such discretion may be most important

– the messy and 183 complicated area of domestic relations

– and it would wrongly reverse a 1

statutory presumption even though neither ICARA nor its legislative history 2

provides a basis for doing so. Indeed, there is no evidence that Congress even 3

considered intimate partner violence when it enacted ICARA. To the contrary, 4

ICARA and the Convention have been criticized (rightly, in my view) for their 5

complete failure to consider intimate partner violence as a mitigating or 6

equitable factor in the removal of children from their countries of habitual 7

residence. 1 See Karen Brown Williams, Fleeing Domestic Violence: A Proposal to 8

Change the Inadequacies of the Hague Convention on the Civil Aspects of 9

International Child Abduction in Domestic Violence Cases, 4 J. Marshall L.J. 39, 10

42

‐ 44 (2011); Merle H. Weiner, International Child Abduction and the Escape 11

from Domestic Violence, 69 Fordham L. Rev. 593, 599, 602

‐ 03 (2000). The short of 12

it is that the statute helps parents whose custody rights are infringed, not victims 13

of violence who infringe custody rights. 14

II 15

I agree that the District Court erred when it concluded that Souratgar’s 16

history of abuse was irrelevant to its determination of the award

– a conclusion 17

1 Congress can and, I think, should act to amend ICARA to favor respondents

who are victims of intimate partner violence and who flee in part because of that

violence.4 driven by its mistaken factual finding that the abuse was unrelated to Lee’s 1

decision to flee Singapore. See Souratgar v. Lee, No. 12

‐ cv

‐ 7797, 2014 WL 704037, 2

at *9 (S.D.N.Y. Feb. 20, 2014) (“Souratgar III”). It also erred by overlooking or 3

misunderstanding relevant evidence that Lee could not pay the amount of the 4

award. 2 Id. at *10. The panel’s shared view of the District Court’s errors follows 5

from our previous guidance on the exercise of equitable discretion in the ICARA 6

context and elsewhere. See Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013) 7

(“Absent any statutory guidance to the contrary, the appropriateness of

. . . costs 8

[under § 9007(b)(3)] depends on the same general standards that apply when 9

attorney’s fees are to be awarded to prevailing parties only as a matter of the 10

court’s discretion. There is no precise rule or formula for making these 11

determinations, but instead equitable discretion should be exercised in light of 12

the relevant considerations.” (quotation marks omitted)); Moore v. Cty. of 13

Delaware, 586 F.3d 219, 221 (2d Cir. 2009) (under Rule 39 of the Federal Rules of 14

Appellate Procedure, which affords the Courts of Appeals “discretion to deny 15

[appellate] costs even if otherwise properly taxable,” “denial of costs may be 16

2 Despite these errors, the District Court appears to have understood that it had

the discretion to award less than what it calculated to be Souratgar’s necessary

expenses ($283,000) but it declined to do so.5 appropriate where a losing party can demonstrate,” among other things, 1

“misconduct by a prevailing party

. . . or its own limited financial resources”). 2

In virtually every case, the consequence of these errors would be to 3

remand to the District Court to exercise its equitable discretion anew, consistent 4

with § 9007(b)(3) and precedent. For that reason, I might have preferred to 5

vacate the award and remand to the District Court to determine whether to 6

reduce or reject it based on some other part of the record that has not been 7

pointed out to us, or based on the parties’ further development of the record 8

with the benefit of our opinions in this case. As I’ve noted, district court judges 9

are invariably better positioned than we are to conduct the sort of fact

‐ bound 10

inquiry required here. But at this stage I’m satisfied with my colleagues’ 11

assurance that they do not mean to compel the rejection of an award whenever 12

there is evidence of multiple unilateral acts of intimate partner violence in the 13

absence of “countervailing factors,” a result that would inappropriately reverse 14

ICARA’s clear presumption that the respondent shall pay the petitioner’s 15

expenses. I am also persuaded that the case has gone on long enough that the 16

record is about as complete as it will be. Given the narrow scope of the majority 176 opinion, the difference between remand and reversal is too minor to warrant a 1

dissent in this particular case. 2

III 3

As the majority agrees, in the context of a statute like ICARA it is 4

important, first, that we not cherry

‐ pick national standards to determine that an 5

award of costs and fees is presumptively completely barred, and second, that we 6

recall that “[w]here statutes have regulated the conduct in question, the public 7

interest has been determined by the legislature,” not by the courts. 1 Dan B. 8

Dobbs, Law of Remedies § 2.4(5), at 112 (2d ed. 1993). This is not to say that we 9

can’t sometimes, as here, reconcile the general public interest in deterring 10

intimate partner violence with ICARA’s focus on facilitating the return of an 11

abducted child and deterring wrongful removals. See 22 U.S.C. § 9001. But there 12

are cases where emphasizing intimate partner violence at the expense of other 13

factors will clearly conflict with both the legislative purpose of ICARA and 14

common sense. 15

Consider the following example. An estranged husband and wife abroad 16

have a series of heated arguments over a brief time about their 3

‐ year

‐ old child, 17

who is almost exclusively cared for by the wife. In the course of the arguments, 187 the wife slaps or pushes the husband. Later one night, the husband abducts their 1

child and travels to New York City. After an arduous legal ordeal

– one that 2

saps most of her finances

– the wife prevails in an ICARA action and secures the 3

return of her child. The husband points to the wife’s past violence as one of 4

several genuine reasons for abducting their child and traveling to the United 5

States. This example has the sort of “countervailing” equitable factors that the 6

majority may have in mind and that a district court might find warrants allowing 7

the wife to recover some or all of her expenses. In fact, I would think it 8

inequitable to bar any award to the wife even under these circumstances as 9

“clearly inappropriate.” 10

One final observation. As the facts of this case demonstrate, the costs of 11

returning an abducted child can be prohibitive. Here they amounted to several 12

hundred thousand dollars. Nothing about today’s opinion should make a poor 13

or middle

‐ class (but perfectly fit) parent with any incident of intimate partner 14

violence hesitate more than they otherwise might to bring an action in our 15

Circuit or struggle to find quality counsel to do so. 3 16

3 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, 50 (1990) (suggesting that §

9007(b)(3) of ICARA “was intended to help foreign

‐ based left

‐ behind parents8 IV 1

To summarize, violence, when it exists, is a factor that district courts can 2

consider in determining the appropriateness and the size of a fee award in an 3

ICARA action. Still, no single factor, not even intimate partner violence, can 4

transform a strong statutory presumption in favor of fees into a presumption 5

against fees. It bears repeating that the District Court appears to have 6

understood these principles, but erred in finding that the abuse was not causally 7

related to Lee’s decision to flee Singapore and mistakenly considered assets that 8

were inaccessible to Lee. In the vast majority of cases the ultimate decision about 9

what constitutes a “clearly inappropriate” award of fees would remain with the 10

district court, where it belongs. Because this case is, as the majority points out, 11

unique in its facts and has a complete record, I can live with reversing the 12

judgment. 13

afford to file a well

‐ founded Convention return action with reduced risk that the

petitioner would ultimately be stuck with the bill for attorney’s fees” and “was

also intended to add to the deterrent effect of the Convention on would

‐ be

abductions or wrongfully retained persons”); see also 22 U.S.C. § 9007(b)(2)

(“Subject to [section 9007(b)(3), which presumptively requires the losing

respondent to pay all necessary expenses incurred by the petitioner], legal fees or

court costs incurred in connection with an action brought under [ICARA]

. . . shall be borne by the petitioner unless they are covered by payments from

Federal, State, or local legal assistance or other programs.”).