MEMORANDUM OPINION
This International Child Abduction Remedies Act (“ICARA”)
I.
Petitioner Malcolm White, a citizen of the United Kingdom, married Rеspondent
In April 2011, Respondent left Switzerland with her child and entered the United States, both to visit her sister in the United States and to seek expert medical care for her child. Thе parties agree that at the time Respondent removed the child to the United States, Switzerland was the child’s habitual residence. Since leaving Switzerland, Respondent and her child have lived continuously in the United States, save a single trip to Canada.
In Switzerland, physicians had diagnosed the child as suffering from autism and had also tentatively concluded that Respondent had psychiatric problems that exacerbated her child’s condition. Respondent, dissatisfied with this diagnosis, and understandably concerned for her child’s well-being, determined to seek an expert second opinion in the United States. Once there, she took her child to Children’s National Medical Center in Washington, D.C., where expert specialists in feeding disorders concluded that the child did not suffer from autism, that treatment for autism was not indicated, but that the child suffered from a feeding disorder, which required a new course of treatment. Respondent testified that her child is responding positively to this new treatment regimen.
In September 2011, long after Resрondent and her child had left Switzerland, Petitioner obtained an order from a Swiss court prohibiting the removal of the child from Switzerland. But soon thereafter, the Swiss Court of First Instance issued a ruling stating that because Switzerland was no longer the usual place of residence and no longer the domicile of Respondent, or the child, the cоurt prohibiting removal of the child from Switzerland lacked jurisdiction to do so. The following February, yet another Swiss court confirmed that Respondent had sole physical custody of the child and further stated that as the holder of sole physical custody, she could remove her child from Switzerland without judicial authorization and over Petitioner’s objections. That court then determined that it too lacked further jurisdiction. Petitioner then filed this petition in April 2012.
Under the Convention, as implemented by ICARA, a court must order the return of a child to the place of habitual residence if a petitioner establishes “by a preponderance of the evidence ... that the child has been wrongfully'removed or retained within the meaning of the Convention.” 42 U.S.C. § 11603(e)(1)(A). In order to prevail on his ICARA claim, Petitioner is required to prove by a preponderance of the evidence: (i) that the child was a habitual resident of Switzerland at the time of removal to the United States, (ii) that the removal was in breach of Petitioner’s custоdy rights or parental authority rights under Swiss Law, and (iii) that Petitioner had been exercising those rights at the time of removal. See Miller v. Miller,
At the promptly-held bench trial, Petitioner argued that the child was wrongfully removed from Switzerland and therefore that an order should issue requiring the return of the child to Switzerland. Specifically, Petitioner argued that although Respondent had the right of custody, she forfeited that right because her removal of the child from Switzerland was unreasonable in the circumstances and hence wrongful. Respondent countered by arguing that the removal was not in breach of any rights under Swiss law and was reasonable in the circumstances. Alternatively, she argued that return of the child to Switzerland would еxpose the child to a grave risk of harm in view of the importance of the child’s continuing medical treatment in the United States.
It is clear that under Swiss law the parent with the right of sole physical custody can remove the child from Switzerland without judicial authorization and over the objection of the other parent. In other words, there is no right of ne exeat
Following trial, a bench ruling issued finding that Petitioner failed to prove by a preponderance of the evidence that the removal of the child was in violation of Swiss law or for the purpose of frustrating Petitioner’s right of access.
II.
Analysis of the fee question properly begins with recognition of the governing, well established general principle that “the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” Alyeska Pipeline Svc. Co. v. Wilderness Soc’y,
These principles, applied here, point persuasively to the conclusion that Respondent is not entitled to an award of fees under ICARA. This is so because ICARA, in § 11607, provides for fees only to a prevailing petitioner;
Despite the presence of the one-way fee shifting provision in (b)(3), Respondent nonetheless argues that § 11607(b)(1) and (b)(2) should be construed to permit two-way fee shifting. This argument misconstrues these subsections. Instead of providing an additional basis for fee shifting, (b)(1) and (b)(2) are designed to save the United States from having to bear the costs associated with these provisions. Under Article 26 of the Convention, a member State “may not require any payment from the applicant towards the costs and expenses of the proceedings or ... those arising from the participation of legal counsel or advisors” unless the member State makes a “reservation” under Article 42, declaring that it “shall not be bound to assume any costs ... resulting from the participation of legal counsel ... from court proceedings, except insofar as those costs may be covered by its system of legal aid[.]” Convention, art. 26. When the President submitted the treaty to the Senate for ratification, he did so with a reservation to Article 26, declaring that the United States would not bear the costs of petitioners. See 99 S. Treaty Doc. No. 11 at 2. In sum, subsections (b)(1) and (b)(2) do not pertain to fee shifting, but instead make clear that a petitioner, not the government, must bear the costs associated with petitions under ICARA unless that petitioner prevails, in which event fee shifting is triggered.
Finally, Respondent also argues that the award of attorney’s fees in this case is proper under the inherent powers of a district court. Although district courts have the inherеnt authority to award attorney’s fees, those courts should do so only “in the extraordinary circumstances where bad faith or abuse can form a basis for doing so.” Hensley v. Alcon Laboratories, Inc.,
III.
Analysis next turns to the question of costs. Rule 54(d)(1), Fed.R.Civ.P., provides that “[ujnless a federal statute ... provides otherwise, costs — other than attorney’s feеs — should be allowed to the prevailing party.” Because ICARA does not prohibit cost shifting, Rule 54(d)(1) gives rise to a “presumption that costs are to be awarded to the prevailing party.” See Cherry v. Champion Int’l Corp.,
(1) misconduct by the prevailing party; (2) the unsuccessful party’s inability to pay the costs; (3) the excessiveness of the costs in a particular case; (4) the limited value of the prevailing party’s victory; or (5) the closeness and difficulty of the issues decided.
Ellis,
(a) $823.00 for translations of documents from French to English;
(b) $764.25 for deposition transcripts;
(c) $750.00 in fees for the deposition of the child’s treating physician, Irene Chatoor;
(d) $189.06 for couriers; and
(e) $200.00 in administrative fees for copying, faxing, and scanning.
Significantly, three of the requested costs are not provided for by § 1920: (i) translation costs, (ii) courier costs, and (iii) administrative fees for copying, faxing, and scanning.
First, with respect to translation costs, the Supreme Court has recently held that “the category ‘compensation of interpreters’ in § 1920(6) does not include costs for document translation.” Taniguchi v. Kan Pacific Saipan, Ltd., — U.S. -,
IV.
In summary, Respondent’s motion for the award of fees and costs must be granted in part and denied in part. It must be granted insofar as some of the claimed court costs are properly awarded pursuant to Rule 54(d)(1) and § 1920. In all other respects, the motion must be denied. Neither ICARA nor any other federal statute permits the shifting of attorney’s fees to Respondent in this case and an award of attorney’s fees is not appropriate in the circumstances under the inherent powers of a district court. Likewise, costs not enumerated by § 1920 cannot be awarded.
An appropriate Order will issue.
Notes
. ICARA, 42 U.S.C. §§ 11601 et seq., implemented the Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670 (the "Convention”).
. Although this memorandum focuses chiefly on whether ICARA allows a prevailing respondent to recover fees, a brief recitation of the facts and proceedings in this cаse provides useful context.
. A ne exeat right requires one parent to obtain the consent of the other parent prior to removing the child. Abbott v. Abbott,
. If there were a ne exeat right in Swiss law, then return of the child would be appropriate unless a respondent proved by clear and convincing evidence that an exception to the Convention applies. See Abbott,
. The record reflects that this lawyer, an experienced practitioner, is the expert on whose advice Respondent relied on in departing Switzerland for the United States with her child.
. Indeed, Respondent and her counsel confirmed that Petitioner was provided the opportunity to visit and see his child in the United States. Petitioner made no claim that he was prevented from seeing his child in the United States.
.Section 11607(b) provides in pertinent part that:
(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 ....
(2) [L]egal 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 [legal assistance 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.
. See also Text and Legal Analysis, 51 Fed. Reg. 10494-01 (U.S. Dept. of State March 26, 1986).
. See, e.g., Thompson v. Gnirk, No. 12-cv-220-JL,
. C.f. Teague v. Bakker,