Opposition Brief — Estate of Roger Roxas v. Pimentel (Nos. 06-1039, 06-1204)

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Nos. 06-1039 & 06-1204 op | > orgy

In The |

Supreme Court of the United States

ESTATE OF ROGER ROXAS, ef a/..

Petitioners

MARIANO J. PIMENTEL,

Respondent.

REPUBLIC OF THE PHILIPPINES, et a/..

Petitioners,

MARIANO J. PIMENTEL, e@ a/.,

Respondents.

On Petitions For Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION

ROBERT A. SWIET® JON M. VAN DYKE

ALLAN M. HOFFMAN 2515 Dole Street

KOUN, SWIFT, & GRAF, B.C. Honolulu. HI 96822

One South Broad Street, (808) 956-8509

Suite 2100

Philadelphia, PA 19107

(215) 238-1700

SHERRY PL BRODER

$41 Bishop Street, Suite 800

Honolulu, HI 96813

(S808) 531-8411

Counsel for Respondent Mariano J. Pimentel

‘Counsel of Record

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QUESTION PRESENTED

Whether the lower courts followed the test set out in

Rule 19(b) of the Federal Rules of Civil Procedure and in

Provident Tradesmens Bank & Trust Co. v. Patterson in

concluding that the Republic of the Philippines and its

PCGG were not indispensable parties to this interpleader

litigation.

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Two petitions for writ of certiorari were filed in this

matter, No. 06-1039 and No. 06-1204. Respondents to both

petitions are Mariano J. Pimentel and a Class of 9,539

Filipino Human Rights Victims. Petitioners are Republic

of the Philippines, Philippine Presidential Commission on

Good Government, Philippine National Bank, and Arelma,

Inc. (No. 06-1204), and The Estate of Roger Roxas and the

Golden Budha Corporation (No. 06-1039). Petition No. 06-

1204 identifies The Estate of Roger Roxas and the Golden

Budha Corporation as additional Respondents.

Petitioner, Republic of the Philippines (“Republic”),

owns 16% of the outstanding stock of Petitioaer, Philippine

National Bank (“PNB”), and elects 4 of its 11 directors.

Rogel Zenorosa Dep. at 9-12. The Republic is party to an

escrow agreement with PNB whereby PNB acts on behalf

of the Republic, at the Republic’s expense and at the

Republic’s instructions regarding Arelma. Jd. All the

outstanding shares of Arelma, a Panamanian corporation,

are currently held by PNB pursuant to the escrow agree-

ment’ and the directors of Arelma are elected either

directly or indirectly by the Republic and its agency, the

Presidential Commission on Good Government. Id. at 25-

36.

TABLE OF CONTENTS

Page

UTIs CIEE FARIA ED vncvacvonsacsasescacscovecoeesnssasinsan i

PARTIES TO THE PROCEEDING AND RULE 29.6

SSN NEE Te ieee sida cs sdacaecsesseddesnecdivexeccinecssyessanses ii

TARE ITE RU es bic snes Geencssedecistenasecscedacetarses ili

Ee Oe Fa EO i psvtcicactesescsccecsesscccesscecesas Vv

STATEMENT OF THE CASB. ................cssscssecssceneeees 1

REASONS FOR DENYING THE PETITION...... Pe

I. THE NINTH CIRCUIT CORRECTLY AP-

PLIED WELL-SETTLED LAW IN REACH-

ING THE DETERMINATION THAT THE

REPUBLIC OF THE PHILIPPINES WAS

NOT AN INDISPENSABLE PARTY UNDER

FRR T AM oD saan ss Zawnenasuabesbsnaiigncdaneweahd quasincgeots 6

A. The Ninth Circuit Properly Engaged in a

de novo Balancing Pursuant to Rule

19(b); and the Provident Tradesmens

Bank & Trust Co. Decision ..............c.00s008 6

B. Foreign Sovereigns Are Not Entitled to

Privileged Status Under Rule 19............. 11

C. Evaluating the Claim of the Party Seek-

ing “Indispensability” Status Is Neces-

sarily a Part of the Rule 19(b) Balancing

IE ib Asi icsss chnsapn bcnkcidi tak bociuntancs snnctes 14

D. Many Courts Have Allowed Actions to

Proceed Even in the Absence of an Im-

portant Party If Equity and Justice So

III saci Saeiacxedintnlcdasycddgiisvesapenseasdathive’s 16

Il.

III.

TABLE OF CONTENTS — Continued

Page

THE NINTH CIRCUITS RULING DOES

NOT UNDERCUT ANY OF THE REASONS

_ UNDERLYING THE DOCTRINE OF FOR-

EIGN SOVEREIGN IMMUNITY ...................

THE NINTH CIRCUIT'S RULING IS NOT

IN CONFLICT WITH DECISIONS FROM

PERE REE whasececesdaiatesodisicstiakaishiseseess

IV. THE NINTH CIRCUIT PROPERLY DENIED

THE CLAIMS RAISED BY THE GOLDEN

BUDHA AND ROXAS PETITIONERS ...........

A. The Probate Doctrine Does Not Bar Fed-

eral Jurisdiction to the Assets .................

B. The Estate of Marcos Is Not an Indis-

pensable Party To This Action.................

C. The Claims of Pimentel and the Class of

Human Rights Victims Were Cognizable

in an Interpleader Action.................:ccseeee

D. The Ninth Circuit’s Opinion Did Not Ef-

fectively Deny The Golden Budha/Roxas

Petitioners’ Right To Appeal ....................

CAEP NT bokibccuaniansonindehcxasansukibesiviciarpacaeitotinceinn

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Airborne Freight Corp. v. United States, 195 F.3d

FI ihc acca kianetihisnsopoopnnanvacncesineccaees 29

Alaska v. United States, 545 U.S. 75 (2005).................000 30

American Greyhound Racing, Inc. v. Hull, 305 F.3d

EE I Nhe can kssicnancdiassviveaivabhotssinivasarassecers 15

Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405

i el cacdngneigumiitunbanssayececs 15

Artichoke Joe’s v. Norton, 216 F.Supp. 2d 1084

(E.D. Cal. 2002), aff’d on other grounds, 353 F.3d

Be NG IN a ass acne csgnssascadeiacecisycecenissasecacsacsevcece 11

Bourdieu v. Pacific Western Oil Co., 299 U.S. 65

Ne cscs dcuilieesbeinepnaanense 16

Choctaw and Chickasaw Nations v. Seitz, 193 F.2d

456 (10th Cir. 1951), cert. denied, 343 U.S. 919

Neen en ace Lancet chunanbdinctoones 16

Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) ............ 18

Davis v. United States, 192 F.3d 951 (10th Cir.

a a cl i hssldbb La umsenenuanece 16

Dawavendewa v. Salt River Project Agric. Im-

provement and Power Dist., 276 F.3d 1150 (9th

RRS ESRD Epi Ce ee ee 12

Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) .......... 4,5

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) ...13, 20

Gardiner v. Virgin Islands Water & Power Auth.,

BGS FG GSB (Fe Cie, BOOS) oacvevccccccccccredbsccsccccsccssssescscess 27

Heath v. Aspen Skiing Corp., 325 F. Supp. 223 (D.

Cee daca ucdalnenmmeninnmanbeiminenahie 16

TABLE OF AUTHORITIES — Continued

Page

Hecht Co. v. Bowles, 321 U.S. 321 (1944) .0.......cccsssesesseeees 8

Hilao v. Estate of Ferdinand Marcos, 103 F.3d 762

2 | RRR SESE ae eee ONT OO 1,2

Hilao v. Estate of Ferdinand Marcos, 103 F.3d 767

I chs ki oc occ acehaahhcpiadndacbavanbapinignnoionanosoens 3

Imperial Appliance Corp. v. Hamilton Mfg. Co., 263

cS BPA CE. UI, BOOED ovcscksiccssaceccncnsenciseresessones 18

In re Estate of Ferdinand E. Marcos Human Rights

Litig., 910 F. Supp. 1460 (D. Hi. 1995)... eee eee 1

In re Estate of Ferdinand Marcos, Human Rights

Litig., 25 F.3d 1467 (9th Cir. 1994) ..... 13, 20, 21

In re Republic of the Philippines, 309 F.3d 1143 (9th

CRS FIED cccirescveigssess S aapagielbakanbidelaiatudiacebicbladuedatscndnbebinionionss 5

Kansas v. United States, 249 F.3d 1213 (10th Cir.

NN Rice ds casctncn etc dliiadtectbiesedcasdnciresnkinentincecomsenainte 19

Karcher v.. May, 484 US. 72 (1987])...........ccceccsscsncssosscescecees 4

Lord Day & Lord v. Socialist Republic of Vietnam,

134 F. Supp. 2d 549 (S.D.N.Y. 2001)....... itch aiabiiseneawitiln 12

Makah Indian Tribe v. Verity, 910 F.2d 555 (9th Cir.

I ic ninchidadnchictbLcasij icaalihideanetbladineiadieabdenibekailushetindinakesatinsincginntione 15

Markham uv. Allen, 326 U.S. 490 (1946)....... enbiikttl 15, 22, 23

Marshall v. Marshall, 547 U.S. 293, 126 S. Ct. 1735

iii ised chsh iach leacecidi oictcnbiibaiiscLanasabinaieissnnnsanetanainn 7, 23

Merrill Lynch, Pierce, Fenner and Smith, Ine. v.

ENC Corp., 464 F.3d 885 (9th Cir. 2006).................... 7,9

Merrill Lynch, Pierce, Fenner and Smith, Inc. v.

ENC Corp., 467 F.3d 1205 (9th Cir. 2006)...................... 8

TABLE OF AUTHORITIES — Continued

Page

Mescalero Apache Tribe v. State of New Mexico, 131

oR Rar EE Se ROT Fiesiniccsnckincektncuniasessssensnatonsacns 18

Narragansett Tribe of Indians v. Southern Rhode

Island Land Dev. Corp., 418 F. Supp. 798 (D.R.I.

I iia aavisdina nisin atindsanscedtajibbiatidnebeineedovhinsvenstve 16,17

Peacock v. Thomas, 516 U.S. 349 (1996) ................22cecenees 25

Pennoyer v. Neff, 95 U.S. 714 (1877)............0.-sssessssesnsserecees 9

Provident Tradesmens Bank & Trust Co. v. Patter-

OG, Te Se Be i iiaisnwincidsncsincscesnaasenskiecs 7, 8, 12, 15

Republic of Austria v. Altmann, 541 U.S. 677 (2004)....... 19

S.E.C. v. Sloan, 436 U.S. 103 (1978) ............c0.sscccecosssseceee 30

Sac and Fox Nation of Missouri v. Norton, 240 F.3d

NS I Bea ecigsasicacnentisdetntackeunntescnpesssentacersone 19

Sokaogon Chippewa Community v. State of Wiscon-

sin, Oneida County, 879 F.2d 300 (7th Cir. 1989)......... 27

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)......13, 20, 21

Texaco, Inc. v. Ponsoldt, 118 F.3d 1367 (9th Cir.

MINIT Pik pitinsscihs hdlp once eeteicaehkicaidnsahglcahoedbaanclicedetiepipaiaeininibaciaenis sie 2

U.S. ex rel. Steele v. Turn Key Gaming, Inc., 135

Be Re ee Ge BE i virceecinctcnccaddssectarectinennsiccbenes 19

United States v. $119,000 in U.S. Currency, 793

ee Gis BR RPO icittnecennienincnisintecstianuninymorcvcosnss 24

United States v. McDermott, 507 U.S. 447 (1993)............ 29

Virginia Electric & Power Co. v. Westinghouse

Electric Corp., 485 F.2d 78 (4th Cir. 1973), cert.

OEE, BE UF. DO LID esciisrciscsickcsceccicaiecsonvecessvecsoces 15

Wyandotte Nation v. City of Kansas City, Kansas,

200 F. Supp. 2d 1279 (D. Kan. 2002) ..............ccccseseseeees 18

eee

TABLE OF AUTHORITIES — Continued

Page

Young v. United Steelworkers of America, 49 F.R.D.

1 A FO RI vaiccleicoiicicioctasideamminnsiabaaaninn 15

STATE CASES

Dairyland Greyhound Park, Inc. v. McCallum, 258

Wis. 2d 210, 655 N.W.2d 474 (Wis. 2002) ............:cc0e0eee 19

Matter of Estate of Marcos, 88 Haw. 148, 963 P.2d

REE a Boia kspchceredaiacsesarindscssmiabicamutaades 23, 24

Saratoga County Chamber of Commerce, Inc. v.

Pataki, 100 N.Y.2d 801, 798 N.E.2d 1047 (N.Y.

DIED snicsstiscsijrswiibasiphnSatsasriseamsboniladia hu niciedegiataagiaband salencbiaibiesaiaks 11

DOCKETED CASES

Merrill Lynch, Pierce, Fenner & Smith, Inc. v.

Arelma Inc., et al., No. 00-595 (D. Hi. 2000)................... 1

Pimentel v. Merrill Lynch, No. 00-580 (D. Hi. 2000)........ 28

Republic of the Philippines v. Christie's, No. 98-

SBT1 DANY: TOOB) . caisccccsiesiccsasconciatss ehiakis sib aketbaslshonicn 3

FEDERAL STATUTES AND RULES

Torture Victim Protections Act, Pub. L. No. 102-

FE FE iiivihenknetihnsitatndsstsinsintncicandieenvepee 20

te We re acces cd ncciiicecevipisoschicctnicneedanneipbennadiaaines 5

I Fee ee I initietnsnccxovinantncavaieisatnniphasdnasaiomibeatalct passim

FE. Bhs GAR Be ND ons csesnonsivaianpeononapstansssninmocibohenranioaplaa 5

4 ee Re Be Gye ae Oe, Pe

> <

TABLE OF AUTHORITIES ~— Continued

Page

FOREIGN CASES

In re Fed. Office of Police Matters, No. 1A.87/1997

(Switz. Sup. Ct. Dec. 10, 1997).........sccrccsessessssssescssseeeees 17

Republic of the Phil. v. Hon. Sandiganbayan, G.R.

FiO. LEBISSE (PRL. NO’. 18, BOOB) ...ccccccesccoscccccocccccscccccccees rs)

The Velasquez Rodriguez Case, 4 Inter-Am. C.H.R.

(ser. C) (1988), reprinted in 28 I.L.M. 291 (1989)......... 18

INTERNATIONAL MATERIALS

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punish-

ment, Dec. 10, 1984, art. 14, 23 LL.M. 1027

(1984), modified, 24 I.L.M. 535 (1985)...............0.L.c.000- 17

Int'l Covenant on Civil and Political Rights, Dec.

16, 1966, art. 2(3)(a), 999 U.N.T.S. 179 .............cceeseeeees 17

JOVITO SALONGA, PRIVATE INTERNATIONAL LAW 38

I alkali oc cinetcdgcebendinenidewnenneneens q

Palace Unfazed by US Hearing on Extrajudicial

Killings,” Philippine Daily Inquirer March 11,

2007, http://newsinfo.inquirer.net ..............ccccceeseeeseneees 20

TABLE OF AUTHORITIES — Continued

MISCELLANEOUS

13 CHARLES ALAN WRIGHT, ARTHUR R. MILLER &

EDWARD H. COOPER, FEDERAL PRACTICE AND PRO-

CEDURE § 3523 (2d ed. 1984) ...........ccecsccsscccccssseeeeseeenees 25

Jean F. Rydstrom, Validity, Construction, and

Application of Rule 19(b) of Federal Rules of Civil

- Procedure, as Amended in 1966, Providing for

Determination to Be Made by Court to Proceed

with or Dismiss Action When Joinder of Person

Needed for Just Adjudication Is Not Feasible, 21

PE REE TRIER RAPD BN i So 10

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS

LAW OF THE UNITED STATES, § 482(2)(a) (1987) ............. 9

STATEMENT OF THE CASE

The judgment in this statutory interpleader action

awarded approximately $35 million in an account at

Merrill Lynch, Pierce, Fenner & Smith, Inc., to the Class

of 9,539 victims of grave human rights abuses during the

1972-86 martial-law regime of Ferdinand E. Marcos in the

Republic of the Philippines (“Republic”). The Class mem-

bers were seeking to collect on their judgment of almost $2

billion rendered in an historic human rights action, Hilao

v. Estate of Ferdinand Marcos, 103 F.3d 767 (9th Cir.

1996); ROP App. 49a, 53a." The Class members, including

heirs of victims, represented in this action by Mariano

Pimentel, are those who were “subjected to hideous tor-

tures,” “summarily executed” or “simply disappeared.”

ROP App. 45a; In re Estate of Ferdinand E. Marcos Hu-

man Rights Litig., 910 F.Supp. 1460, 1462-63 (D. Hi.

1995) (listing specific forms of torture used). They were

victims of “massive jus cogens human rights abuses for

which Marcos was responsible.” ROP App. 53a. But for the

filing of the petitions for certiorari in this Court, the Class

members, most of whom live in poverty, would have already

received a court-ordered first installment of $2,000 each from

the assets at issue.Order of 6/27/2006 at 3 (Dkt. No. 409).

While Marcos was concealing and investing his own

assets during martial law, he orchestrated and directed

massive human rights abuses. ROP App. 53a. Marcos

directly controlled all military and para-military groups in

the Philippines. ROP App. 44a-45a. “By his Order, tens of

thousands of persons were arrested and detained without

charges and without the right of habeas corpus. Thou-

sands were subjected to hideous tortures. Thousands more

* Citations to the record, where relevant, are preceded by the

abbreviation of each petitioner’s name: ROP for the Republic and GBR

for Golden Budha/Roxas. “Dkt. No.” refers to the corresponding official

docket entry numbers in the interpleader action filed in the District

Court of Hawaii, Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Arelma

Inc., et al., No. 00-595 (D. Hi. 2000).

were summarily executed and others simply ‘disap-

peared.” ROP App. 45a. As the District Court found:

The abuse committed against Plaintiff Pimentel

by the Philippine military is illustrative of the

claims.of the class he represents. Pimentel was

arrested two weeks after the declaration of mar-

tial law. During the next six years he was held in

detention centers for four years with no charges

against him. On his trip home from his final de-

tention, the military kidnapped him. They beat

him with rifles breaking his teeth, an arm and a

leg, and dislocating ribs. They then took him to a

remote sugar cane fieid, buried him up to his

neck and left him for dead.

ROP App. 48a.

Merrill Lynch brought this interpleader action on

September 14, 2000’ to determine the entitlement to Merrill

Lynch securities account No. 165-07312 established by

Ferdinand E. Marcos in 1972 in the name of Arelma Inc.

* The Republic’s assertion of “manufactured” jurisdiction is bogus.

Pimentel and the Class of Human Rights Victims sued Merrill Lynch in

federal court in Hawaii on September 6, 2000 regarding the assets in

Arelma’s securities trading account. Order of 3/22/2001 at 6 (Dkt. No.

56). Merrill Lynch then filed the present interpleader complaint on

September 14, 2000 in the federal court in Hawaii as a result of an

agreement reached with Pimentel’s counsel to interplead the assets into

that court in return for dismissal of the September 6 lawsuit without

prejudice. Compl. for Interpleader (Dkt. No. 1), At a conference in the

MDL action on September 11, 2000, the judge encouraged this solution in

the presence of counsel for the Republic. Judges often urge such solutions.

See Texaco, Inc. v. Ponsoldt, 118 F.3d 1367, 1368 (9th Cir. 1997) (as part of a

settlement agreement the District Court urged the filing of an inter-

pleader). Merrill Lynch sought the District Court’s advice to avoid any issue

of whether a transfer of the assets would violate the permanent injunction

contained in the Class’ 1995 Judgment. See Hilao v. Estate of Ferdinand

Marcos, 103 F.3d 762 (9th Cir. 1996) (affirming contempt citation for

violating permanent injunction). A separate federal judge in Hawaii, ruling

on the Republic’s recusal motion, found “the court did not direct, order, or

require Merrill Lynch to file the instant action” and noted that “(t/he Court

concurred with Plaintiffs’ Class that the action should be filed in the

District of Hawaii.” Dkt. No. 56 at 5-6.

(“Arelma”), a sham corporation incorporated in Panama

for the purpose of hiding actual ownership of these assets.

ROP App. 46a-47a. The account was begun with

$2,000,000 provided by Marcos, and in the intervening

years grew to about $35,000,000. ROP App. 45a-46a. The

assets were deposited in the U.S. District Court of Hawaii

for the purpose of this litigation. ROP App. 46a.

The record in this case, developed through four years of

protracted and contentious litigation, contains undisputed

evidence that the Merrill Lynch account was established at

the explicit direction of Marcos with funds he provided.

“Arelma is a shell corporation” (ROP App. 10a); “[Ferdinand

E.] Marcos controlled Arelma during his lifetime” (ROP App.

48a); “Arelma was incorporated to receive funds owned by

Ferdinand Marcos” (ROP App. 48a); and, “[tlhe source of

those funds [in the Merrill Lynch account] was Ferdinand E.

Marcos.” ROP App. 45a. “The purpose of incorporating

Arelma was to receive funds owned by Ferdinand E. Marcos,

and there is no evidence the funds deposited in the Arelma

account at Merrill Lynch were not the property of Ferdinand

E. Marcos.” ROP App. 53a.

As the District Court found, the Republic knew about

the securities trading account at the Merrill Lynch account

since at least 1986. In 1987 the Republic obtained an

injunction from a federal court in New York freezing the

account. ROP App. 47a; Order of 8/14/2003 (ROP App.

56a). Although the Republic filed a dozen or more lawsuits

in courts throughout the United States seeking to recover

various Marcos assets, it never filed a lawsuit to recover

the Merrill Lynch account. ROP App. 58a. The Republic

participated in at least one other interpleader proceeding

in the United States involving a Picasso painting allegedly

owned by Marcos. Republic of the Philippines v. Christie’s,

No. 98-3871 (S.D.N.Y. 1998). The Republic never asserted

its sovereign immunity in any of those proceedings. See,

e.g., ROP App. 47a.

There was no evidence in discovery or at trial that

supported the Republic’s position that the monies were

“misappropriated” or “stolen” as alleged in the Republic’s

Petition. At no time has the Republic ever come forth with

evidence that the money at issue belonged to it. Although

the Republic did not participate directly in the inter-

pleader after the Republic’s dismissal from the litigation,

it participated indirectly since (a) after 2000, it controlled

Arelma, worked with Arelma’s counsel, and paid for

Arelma’s prosecution of the litigation, and (b) it controlled

the escrow agent, Philippine National Bank (“PNB”),

owned 16% of PNB’s stock, and elected 4 of its 11 directors.

Rogel Zenarosa Dep. at 9-12. Neither Arelma nor PNB

ever garnered evidence supporting the Republic’s allega-

tion that the Merrill Lynch account derived from the

Republic’s assets.’ ROP App. 53a.

The Republic moved to dismiss itself on sovereign

immunity grounds in this litigation only after losing a

motion to recuse the judge assigned to the case. See Dkt.

No. 56. After being dismissed as a party, the Republic, as a

nonparty, persisted in delaying and staying the litigation

by filing numerous motions, mandamuses and appeals.‘

The Republic’s persistent refrain — that Philippine courts

would soon rule on entitlement to the interpleaded assets

— resulted in stays of proceedings totaling 17 months. One

stay was terminated by the District Court when Pimentel

conclusively showed the Court that there was no case

pending in the Philippines seeking determination of the

ownership of the Merrill Lynch account. ROP App. 56a-

57a. Four days after entry of the July 12, 2004 judgment

herein, the Republic filed new motions in the Philippines

to reopen long closed litigation there to have a Philippine

court countermand the District Court’s award of the assets

* The Republics representation that the dssets in the Arelma

account were a “subset” (ROP Pet. at 4) of the two stock certificates

controlled by Swiss authorities is legally and factually wrong. The

Swiss government never had possession or control of the assets in the

Merrill Lynch account. ROP App. 46a. As a legal matter, a stockholder

does not own or control the assets of the corporation. Dole Food Co. v.

Patrickson, 538 U.S. 468 (2003); ROP App. 52a.

* This Court held in Karcher v. May, 484 U.S. 72, 77 (1987), that a

nonparty has no standing to appeal.

at issue to the Class of Filipino victims. After almost three

years, the Philippine court still has not ruled on the motion.

In an earlier appeal, Jn re Republic of the Philippines,

309 F.3d 1143 (9th Cir. 2002), the Ninth Circuit agreed

that the Republic was entitled to dismissal on sovereign

immunity grounds, and even held the Republic was a

necessary party pursuant to Rule 19(a) of the Federal

Rules of Civil Procedure. However, it declined to accept the

Republic’s argument that it was an indispensable party to

this litigation pursuant to Rule 19(b). Jd. at 1153. On

remand, the District Court made detailed findings and

conclusions hojding the Republic was not an indispensable

party. ROP App. 58a-60a. An interlocutory appeal on that

issue was denied by the Ninth Circuit on February 20,

2004 (Dkt. No. 375), clearing the way for a trial.

At trial, Pimentel and the Class prevailed in proving

that Arelma was an alter ego of Ferdinand Marcos and

that their claim, based on their 1995 judgment against the

Marcos Estate, had priority to the interpleaded assets.

ROP App. 53a-54a. PNB’s claim, based on ownership of the

Arelma stock certificates, was denied based on this Court’s

decision in Dole Food Co., 538 U.S. 468 (2003), that an

individual shareholder does not own a corporation’s assets.

ROP App. 52a. The claims of the Roxas Estate and the

Golden Budha Corporation were denied since (a) their

prior judgments were not against Ferdinand Marcos or his

Estate, and (b) they failed to prove the assets in the

Merrill Lynch account derived from property stolen from

them. ROP App. 53a-54a. The Roxas Estate and the

Golden Budha Corporation took virtually no discovery

during the litigation and attempted at trial to use deposi-

tion transcripts from a separate state court action in

violation of FRE 804(b)(1), and expert testimony without

complying with Rule 26(a)(2). ROP App. 10a-1la.

The Ninth Circuit affirmed the judgment in favor of

Pimentel and the Class. ROP App. lla. Addressing the

issue of whether the Republic was an indispensable party,

the Ninth Circuit engaged in a de novo balancing of the

factors set forth in Rule 19(b). ROP App. 4a-10a. Balancing

those factors and applying equity and good conscience, as

mandated by the Rule, the Ninth Circuit concluded the

Republic was not an indispensable party. ROP App. 10a.

The overriding consideration in that Court’s opinion was

that the Republic had no likelihood of recovering the

assets since (a) its claim in the United States would be

barred by the applicable statute of limitations and (b) a

decision of a Philippine court would not be enforced in a

United States court because of a prior decision by a United

States court which possessed in rem jurisdiction over the

interpleaded assets. ROP App. 8a-10a.

The Ninth Circuit rejected the arguments of the Roxas

Estate and the Golden Budha Corporation finding the

District Court had properly excluded proffered evidence for

failure to comply with the Federal Rules of Procedure and

the Federal Rules of Evidence. ROP App. 10a-1la. Their remain-

ing arguments were deemed specious by the Ninth Circuit.

The Republic further protracted this litigation and a

distribution of $2,000 to thousands of its citizens by filing

two motions for reconsideration and en banc review. ROP

App. la. Now, after failing to persuade any of the 27

jurists who have examined its position, the Republic has

filed a petition for certiorari with this Honorable Court.

REASONS FOR DENYING THE PETITION

I. THE NINTH CIRCUIT CORRECTLY APPLIED

WELL-SETTLED LAW IN REACHING THE

DETERMINATION THAT THE REPUBLIC OF

THE PHILIPPINES WAS NOT AN INDISPEN-

SABLE PARTY UNDER RULE 19(b)

A. Tae Ninth Circuit Properly Engaged in a

de novo Balancing Pursuant to Rule 19(b)

and the Provident Tradesmens Bank &

Trust Co. Decision

The courts below followed Rule 19(b) of the Federal

Rules of Civil Procedure in determining whether the

Republic of the Philippines was an indispensable party to

the interpleader action:

Rule 19(b). Determination by Court When-

ever Joinder not Feasible. If a person as de-

scribed in subdivision (a)(1)-(2) hereof cannot be

made a party, the court shall determine whether in

equity and good conscience the action should pro-

ceed among the parties before it, or should be dis-

missed, the absent person being thus regarded as

indispensable. The factors to be considered by the

court include: first, to what extent a judgment ren-

dered in the person’s absence might be prejudicial

to the person or those already parties; second, the

extent to which, by protective provisions in the

judgment, by the shaping of relief, or other

measures, the prejudice can be lessened or

avoided; third, whether a judgment, rendered in

the person’s absence will be adequa‘e; fourth,

whether the plaintiff will have an adequate rem-

edy if the action is dismissed for nonjoinder.

Fed. R. Civ. P. 19(b). The language of this rule explicitly

requires a court to makes its decision “in equity and good

conscience” by balancing a series of factors in the context

of the dispute needing resolution. Id.

In affirming the District Court’s ruling, the Ninth

Circuit followed this Honorable Court’s decision in Provi-

dent Tradesmens Bank & Trust Co. v. Patterson, 390 U.S.

102, 109, 118 (1968),° which instructed courts to look

through “the lens of ‘equity and good conscience’” and thus

to determine indispensability “‘in the context of [this]

particular litigation.’” Merrill Lynch, Pierce, Fenner and

Smith, Inc. v. ENC Corp., 464 F.3d 885, 891 (9th Cir.

2006); ROP App. 4a-5a. This Court explained in Provident

Tradesmens Bank that a decision on whether a party is

“indispensable” “must be based on factors varying with the

different cases. some such factors being substantive, some

procedural, some compelling by themselves, and some

* The Republic has acknowledged that Justice Harlan’s opinion for

a unanimous court in Provident Tradesmens Bank is the “leading

decision on Rule 19(b).” ROP Pet. at 12.

subject to balancing against opposing interests.” 390 U.S.

at 118-19 (emphasis added). The Provident Tradesmens

Bank decision notably explained that “[a]fter trial, consid-

erations of efficiency” such as “the time and expense”

involved in the trial militate in favor of denying a Rule

19(b) motion. Jd. at 111. The Ninth Circuit quoted from

Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944), for the

proposition that the “equity” called for in Rule 19(b)

requires courts to exercise “flexibility ... marked by

‘mercy and practicality.’” ROP App. 6a.

The Ninth Circuit thus examined the “circumstances

and practicalities of the Republic’s claim” to determine

whether the judgment rendered in its absence “‘might be

prejudicial to [it] or those already parties.’” ROP App. 4a

(quoting Rule 19(b)). It then examined two specific scenar-

ios that could follow if the Republic were deemed indis-

pensable, and concluded that “it is doubtful that the

Republic has any likelihood of recovering the Arelma

assets” because “[t]he res is in the United States” and “[i]t

cannot be finally disposed of except by the judgment of a

court in the United States.” ROP App. 7a-8a. This conclu-

sion was reinforced by the Ninth Circuit’s recognition that

any effort by the Republic to pursue the Arelma assets in

an action against Merrill Lynch in New York would be

barred by New York’s six-year statute of limitations.

ROP App. 8a (citing N.Y. C.P.L.R. § 213, and also citing

Provident Tradesmens Bank, 390 U.S. at 115, for the

proposition that the Republic’s “failure to secure a judg-

ment affecting these assets is a factor to be taken into

account”). The Ninth Circuit explained that any judgment

the Republic might obtain in the Philippines would be

unenforceable, because the Philippine court would have no

jurisdiction over the res — the Arelma assets — and if a

Philippine court were to issue a ruling regarding these

assets “a court of this country would not be bound to give

it effect.” ROP App. 8a.° See also Merrill Lynch, Pierce,

* The conclusion that only a U.S. court can adjudicate claims to

assets held in the United States flows from the most basic principles of

(Continued on following page)

Fenner and Smith, Inc. v. ENC Corp., 467 F.3d 1205, 1207

(9th Cir. 2006), where the Ninth Circuit noted that the

Philippine Supreme Court had previously “categorically

declared” that its forfeiture proceeding regarding Marcos

assets “is in rem,” citing Republic of the Phil. v. Hon.

Sandiganbayan, G.R. No. 152154 (Phil. Nov. 18, 2003) and

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF

THE UNITED STATES, § 482(2)(a) (1987) for the proposition

that “any judgment made without proper jurisdiction is

unenforceable in the United States.”’ The Ninth Circuit

due process recognized in all legal systems. As a prominent Philippine

writer has explained, Philippine law agrees with these concepts of due

process:

... authority to hear and decide cases may be based on a

number of factors: the presence, submission, or appearance

of the parties or one of them; the doing of certain acts within

the State; the fact that the property involved in the litigation

is in the forum; or the fact that the parties are either citi-

zens or residents of the State. In the absence of such mini-

mum contacts, a judgment rendered by the court of one State

may be refused recognition by other States.

JOVITO SALONGA, PRIVATE INTERNATIONAL LAW 38 (1979, reprinted 1981)

(emphasis added). See also id. at 40 (explaining that in an in rem action

“the State may render through its courts a valid judgment, as long as it has

jurisdiction over the thing even though it may not have personal jurisdic-

tion over the persons whose interests are affected”), and at 41-47 (explain-

ing that Philippine jurisdictional principles have evolved from the concepts

laid down in Pennoyer v. Neff, 95 U.S. 714 (1877), and its progeny).

"The Republic's Petition acknowledges that the Philippine

Supreme Court has previously declined to render any ruling regarding

the Arelma assets (ROP Pet. at 4), but nonetheless contends that this

matter “is now pending before the Sandiganbayan and will be resolved

by that court or the Philippine Supreme Court.” ROP Pet. at 5. The

Philippine courts surely understand, however, that they do not have

jurisdiction to render a ruling regarding the Arelma assets, and they

are unlikely to issue a ruling that would so flagrantly violate recognized

standards of due process and jurisdiction.

The District Court explicitly found as a factual matter that the

Republic made no claim for relief regarding the Arelma assets in the

1991 petition filed by the Republic that led te the 2003 decision of the

Philippine Supreme Court: “There is no claim in that lawsuit seeking

forfeiture of the assets in the Arelma account at Merrill Lynch.” ROP

(Continued on following page)

also noted that the Republic is not bound by the present

proceeding, “because it is not a party to the action,” and

that it is not formally prejudiced, because it remains free

to pursue a claim against Merrill Lynch in the United

States (although its odds of success are extremely low

because of New York’s six-year statute of limitations). ROP

App. 8a-9a.

The Ninth Circuit completed the balancing process

required by Rule 19(b) by concluding that “[blecause the

Republic has little practical likelihood of obtaining the

Arelma assets, there is no need to lessen prejudice to it”

(ROP App. 9a); that although the Arelma assets are not

adequate to satisfy the Human Rights Victims $2 billion

award, nonetheless “the symbolic significance of some

tangible recovery is not to be disregarded, and if the

recovery is distributed pro rata among the individuals, it

will have monetary meaning for the poor among them”

(ROP App. 9a); that if this interpleader were to have been

dismissed on the basis of indispensability, the Human

Rights Victims would have no forum open to them in the

Philippines’ (ROP App. 9a); and that they could sue in New

App. 56a. The Republic’s failure to claim these assets likely resulted

from its recognition that no Philippine court could exercise jurisdiction

over assets that were in the custody of the United States District Court

for the District of Hawaii.

* The existence of an adequate alternative remedy for the litigants

if an action were to be dismissed is “[p]erhaps the factor most important

to a court in determining whether to proceed or dismiss, in the absence of

a person who should be joined but cannot be made a party.” Jean F.

Rydstrom, Validity, Construction, and Application of Rule 19(b) of Federal

Rules of Civil Procedure, as Amended in 1966, Providing for Determina-

tion to Be Made by Court to Proceed with or Dismiss Action When Joinder

of Person Needed for Just Adjudication Is Not Feasible, 21 A.L.R. Fed. 12

(1974) § 12(a). The Human Rights Victims are barred from the forfeiture

litigation in the Philippines. The District Court specifically found that

other parties have no standing to participate in Philippine court

forfeiture proceedings between the Republic and the Marcoses (ROP

App. 59a), and the Republic has acknowledged this. ROP Pet. at 24

n.10. Due process and equity require that an alternative forum be one

in which all parties can participate, not one where just two parties

decide how to slice up the money to the exclusion of other claimants.

York but that would impose “a needless repetition that will

not benefit the Republic.” ROP App. 9a. The Ninth Circuit

noted that it would be unrealistic to direct the Human

Rights Victims to “find redress from their own govern-

ment” because — despite the passage of 21 years since

Marcos was forced out of office — “the Republic has not

taken steps to compensate these persons who suffered

outrage from the extra-legal acts of a man who was the

president of the Republic.” ROP App. 9a-10a. The Ninth

Circuit then concluded that “[nJo injustice is done [to the

Republic] if it now loses what it can never effectually

possess.” ROP App. 9a.

B. Foreign Sovereigns Are Not Entitled to

Privileged Status Under Rule 19

The Republic’s contention that an assertion of sover-

eign immunity requires a finding of indispensability is not

supported by case law. ROP Pet. at 13. In fact, the Repub-

lic does not cite to a single instance in which a case was

dismissed on the basis of a foreign government’s assertion

of both sovereign immunity and indispensability.

Numerous cases can be cited where litigation has

continued despite assertions of immunity by sovereign

parties, including, e.g., Saratoga County Chamber of

Commerce, Inc. v. Pataki, 100 N.Y.2d 801, 798 N.E.2d

1047, 1058 (N.Y. 2003) (ruling that although a tribe

protected by sovereign immunity had interests that would

be affected by the litigation, the tribe should not be

deemed an indispensable party because that would leave

the public with no effective remedy against constitutional

violations and other abuses by the executive branch),’ and

Artichoke Joe’s v. Norton, 216 F. Supp. 2d 1084, 1118-20

(E.D. Cal. 2002), aff’d on other grounds, 353 F.3d 712 (9th

* The court explained: “While we fully respect the sovereign

prerogatives of the Indian tribes, we will not permit the Tribe’s volun-

tary absence to deprive these plaintiffs (and in turn any member of the

public) of their day in court.” Jd. at 1058-59.

Cir. 2003) (ruling that although the immune tribes “can

claim a legal interest in this lawsuit,” the claim could

proceed without them because their interest would be

represented by another party). This Court explained in

Provident Tradesmens Bank why the “deemed conclusive

of indispensability” approach advocated by the Republic is

misguided, explaining that a court does not know whether

a particular party is indispensable until it has examined

the situation to determine whether it can proceed without

the party: “a court does not know whether a particular

person is ‘indispensable’ until it had examined the situa-

tion to determine whether it can proceed without him.”

390 U.S. at 119.”

The cases involving the immunity of the United

States, the 50 states, and Indian tribes cited by the Repub-

lic are not analogous to the present situation, because

Indian tribes, the 50 states, and the federal government

operate within the jurisdiction of the United States and, if

a case is dismissed after an assertion of sovereign immu-

nity, other means exist to address and resolve the dispute.

In Dawavendewa v. Salt River Project Agric. Improvement

* A fact situation somewhat analogous to the present matter is

found in Lord Day & Lord v. Socialist Republic of Vietnam, 134 F. Supp.

2d 549 (S.D.N.Y. 2001), which illustrates the pragmatic approach that

courts have taken in interpleader actions. The plaintiff law firm

brought an interpleader action to determine the proper recipient of

settlement funds that had previously been transferred to the firm from

the Panama Canal Company after a 1971 collision in the Panama

Canal led to the loss of a cargo of rice. The plaintiff law firm named the

Socialist Republic of Vietnam along with three foreign corporations as

defendant-claimants in the interpleader action. Vietnam asserted its

rights to funds, but alsc asserted its right to immunity as a foreign

sovereign under the Foreign Sovereign Immunities Act. Id. at 555-56.

The court rejected Vietnam’s claim of immunity, under the counterclaim

and waiver exceptions to sovereign immunity, but also went on to

explain that because the court had in rem jurisdiction, it would have

proceeded with the interpleader, even in Vietnam’s absence, and would

have been “enabled to determine title under 28 U.S.C. § 1655 and would

necessarily award the funds to the Reinsurers, the only parties appear-

ing.” Id. at 558. This court also ruled that “there is no political question

raised in addressing the conflict between the parties.” Id. at 568.

and Power Dist., 276 F.3d 1150, 1162-63 (9th Cir. 2002),

which the Republic cites, the court dismissed the claim

only after determining that three potential “viable alter-

native forum|s}” existed — a suit on behalf of the plaintiff

brought by the United States, a suit brought on behalf of the

plaintiff by the Equal Employment Opportunity Commis-

sion, and a suit by the plaintiff in tribal court. (As explained

in Section D below, courts have frequently ruled against an

indispensability claim in cases involving claims of immunity

by the United States, the 50 states, and Indian tribes, and

such evaluations are always fact-specific.) Jd.

When the litigant is a foreign government outside the

jurisdiction of U.S. courts, however, such alternative

means to address and resolve the dispute do not exist, and

a dismissal of the claim would leave the dispute unre-

solved. Thus, the fourth Rule 19(b) factor — “whether the

plaintiff will have an adequate remedy if the action is

dismissed for nonjoinder” — becomes crucial. The Human

Rights Victims would not have had an adequate remedy if

the present interpleader action had been dismissed, and,

hence, the lower courts ruled correctly in deciding that the

Rule 19%b) factors, taken together, required a conclusion

- that the Republic was not an indispensable party and that

the interpleader should not be dismissed.

The approach sought by the Republic would permit

any miscreant foreign sovereign to claim an interest -

with little or no evidentiary basis — in a particular litiga-

tion in the United States but successively assert sovereign

immunity and indispensability to preclude adjudication. In

this case, such an approach would further require a

federal court with in rem jurisdiction over specific assets

to abdicate jurisdiction to a foreign court. Such an ap-

proach would be inconsistent with the commitment to the

rule of law approved by this Honorable Court in Sosa v.

Alvarez-Machain, 542 U.S. 692, 731, 732 (2004) (indicating

approval of the approach and analysis found in Filartiga v.

Pena-Irala, 630 F.2d 876 (2d Cir. 1980), and in Jn re Estate

of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467

(9th Cir. 1994)).

C. Evaluating the Claim of the Party Seeking

“Indispensability” Status Is Necessarily a

Part of the Rule 19(b) Balancing Process

The Republic contends that the Ninth Circuit erred in

“assessing the strength of the sovereign’s claim in the

sovereign’s absence and making the outcome turn on

whether, in the court’s view, the sovereign is entitled to

prevail on the merits.” ROP Pet. at 17. The Ninth Circuit

did not, however, inquire into the merits of the Republic’s

asserted claim, but instead assumed the validity of the

claim and determined that even if it is valid it could not be

invoked by the Republic to gain the interpleaded assets

because the Republic was barred by the statute of limita-

tions from pursuing this claim. ROP App. 8a. The District

Court made the factual finding that the Republic was

aware of the Arelma account established at Merrill Lynch

since 1986: “The Republic has been aware of the deposit

since 1986 when the government of Corazon Aquino was

installed,” and even had a U.S. court freeze the account at

Merrill Lynch in 1987." ROP App. 47a, 56a. At pages 3-4 of

its petition, the Republic acknowledges that it was aware

of the Arelma assets, but has taken no steps to recover

them in the United States, even though it has filed more

than a dozen lawsuits regarding other Marcos assets in

this country. ROP Pet. at 3-4.

Rule 19(b), the predicate for dismissal, asks whether a

necessary party’s claim would be “impaired” if the dispute

is adjudicated without the “necessary” party. This Court

has made it clear that lower courts must evaluate the

status of the claim presented by a party as part of its Rule

19(b) balancing process:

To say that a court “must” dismiss in the absence of an

indispensable party and that it “cannot proceed” without

him puts the matter the wrong way around: a court does

" Obviously, the Republic made no assertion of sovereign immunity

when it requested a U.S. Court to freeze the Arelma account at Merrill

Lynch. See ROP App. 47a.

not know whether a particular person is “indispensable”

until it has examined the situation to determine whether

it can proceed without him.

Provident Tradesmens Bank, 390 U.S. at 119. This Court

has emphasized that no “litmus test” formula can be applied

to the variety of situations controlled by Rule 19(b), and that

no test or “generalization” can serve as “a substitute for the

analysis required by that Rule.” Jd. at 124.

In order for a party’s claim to be “impaired,” it must

be shown that a “necessary” party has a “legally protect-

ible claim,” not merely a potential claim. American Grey-

hound Racing, Inc. v. Hull, 305 F.3d 1015, 1023 (9th Cir. 2002)

(finding that the Indian tribe had a “substantial” interest that

“arises from terms in bargained contracts”); Makah Indian

Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990).

The expiration of the statute of limitations on the

Republic’s misappropriation claim is a valid basis for

concluding the Republic is not an indispensable party. See

Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1408

(11th Cir. 1998) (“... the provisions for joinder of parties

under Rules 19 and 21 are not immune from statutes of

limitations.”); Young v. United Steelworkers of America, 49

F.R.D. 74, 75-76 (E.D. Pa. 1969) (allowing a claim to

proceed without a potential defendant who could not be

sued because the statute of limitations had run against

this defendant, noting that dismissal would leave plaintiff

“with no remedy, let alone an adequate remedy” (emphasis

in original) and that no potential prejudice against the

absent party had been identified). See also, Virginia Elec.

& Power Co. v. Westinghouse Elec. Corp., 485 F.2d 78, 86

(4th Cir. 1973), cert. denied, 415 U.S. 935 (1974).

The Ninth Circuit could also have found that the

Republic had an adequate alternate remedy. The Republic

could pursue its forfeiture claim on the Merrill Lynch

account against the Marcoses in the Philippines and, if

successful, satisfy its money judgment by execution on the

large number of valuable Marcos real properties in the

Philippines which have been sequestered by the government

for the past 20 years. Pls’ Reply Mem. at 6 (Dkt. No. 312).

D. Many Courts Have Allowed Actions to Pro-

ceed Even in the Absence of an Important

Party If Equity and Justice So Require

Many courts, in many circumstances, have allowed

civil actions to proceed even when important parties are

missing. Indeed, it has been noted numerous times that

“(ijn general, ‘the philosophy of present Rule 19 is to avoid

dismissal wherever possible.” Narragansett Tribe of

Indians v. Southern Rhode Isiand Land Dev. Corp., 418

F. Supp. 798, 813 n.5 (D.R.1. 1976) (quoting Heath v. Aspen

Skiing Corp., 325 F. Supp. 223, 229 (D. Colo. 1971)). This

Court has explained that “[a] court of equity will strain

hard” to avoid dismissal. Bourdieu v. Pacific Western Oil

Co., 299 U.S. 65, 70 (1936).

Many of the cases raising Rule 19(b) issues involve

claims brought by Indian tribes, where the United States

Government is the missing party, because its sovereign

immunity protects it from being brought into the lawsuit

against its will. Many courts have allowed such claims to

proceed without the United States, and the courts have

been particularly influenced by the potential consequence

of a contrary ruling — i.e., that the lawsuit could not be

pursued, and thus, that the underlying dispute would

continue to fester.

In Davis v. United States, 192 F.3d 951 (10th Cir.

1999), the Tenth Circuit, reversing the dismissal of a case

involving an Indian tribe, held that tribal sovereign

immunity did not necessarily make the Tribe indispensa-

ble. That court stated that sovereign immunity does “not

abrogate the application of Rule 19(b), whose factors this

court has applied to Indian tribes in several cases. (cita-

tions omitted.)” Jd. at 960. Years earlier in Choctaw and

Chickasaw Nations v. Seitz, 193 F.2d 456, 460-61 (10th

Cir. 1951), cert. denied, 343 U.S. 919 (1952), the Tenth

Circuit noted that “[mJore than twenty years have elapsed

and the United States has failed to bring an action, in

behalf of the Nations,” and that “[i]Jf we hold that the

United States is an indispensable party, the Nations will

be unable to prosecute a suit to establish their title to, and

recover the possession and use of, their lands predicated

upon an alleged cause of action which arose more than

twenty years ago.” Id. Even though proceeding with the

suit might well require the defendants to undertake “the

burden and expense of defending two lawsuits” (i.e., a

second one brought by the United States), the court ruled

that “the equities presented by the situation and the

inconveniences that will result ... weigh heavily in favor

of the Nations.” Jd. Similarly, in Narragansett Tribe of

Indians, supra, the court allowed an action brought by the

tribe against the State of Rhode Island and other defen-

dants to proceed even in the absence of the United States,

which could not be sued because of its sovereign immunity.

The court concluded that because the “likely consequence

that a finding of indispensability herein would effectively

deny plaintiff any remedy,” it would be improper to find

that the United States was an indispensable party and

thus exclude the tribe from trying to vindicate its rights.

Id. at 812-13.

These Indian cases rest to some extent “on the unique

protection to be accorded Indian wards,” id. at 813 (D.R.I.

1976), but it should be noted that Human Rights Victims

are also subjects of unique protection under international

law because of their well-established right to obtain compen-

sation for their suffering.” Indeed, enabling victims of jus

” As the Swiss Federal Supreme Court recognized in its 1997-98

decisions transferring Marcos assets to an escrow account controlled by

PNB, the duty of a successor government to provide compensation to

those whose human rights have been abused by a previous government

is firmly established in international law. Jn re Federal Office of Police

Matters, No. 1A.87/1997 (Switz. Sup. Ct. Dec. 10, 1997) at 36-39; see

also, Int] Covenant on Civil and Political Rights, Dec. 16, 1966, art.

2(3a), 999 U.N.T.S. 171 (which has been ratified by more than 140

countries including the Philippines and the United States) which says

that “[eJach State Party to the present Covenant undertakes: (a) To

ensure that any person whose rights or freedoms as herein recognized

are violated shall have an effective remedy, notwithstanding that the

violation has been committed by persons acting in an official capac-

ity....”; Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, Dec. 10, 1984, art. 14, 23 I.L.M.

(Continued on following page)

cogens violations of fundamental human rights to receive

compensation for their suffering and loss, as required by

international law, could well be characterized as serving a

public good and falling within the “public rights” exception to

the indispensable party requirements. See Conner v. Burford,

848 F.2d 1441 (9th Cir. 1988) (weighing the claim of indispen-

sability in light of the “public rights” exception and the fact

that the interests of the parties claiming to be indispensable

had been protected by other parties in the litigation).

Courts have refrained from dismissing actions even

when important parties are missing in many non-Indian

cases. In Imperial Appliance Corp. v. Hamilton Mfg. Co.,

263 F. Supp. 1015 (E.D. Wis. 1967), for instance, the court

allowed the action to proceed after determining that

joinder was not feasible because there was no alternative

forum in which plaintiffs could maintain the action

against all interested parties. Among the many other cases

that have held similarly include Mescalero Apache Tribe v.

State of New Mexico,131 F.3d 1379, 1384 (10th Cir. 1997)

(ruling that the United States was not an indispensable

party after engaging in a weighing process and emphasiz-

ing that “the interests of judicial efficiency counsel

strongly against dismissing this action at this point”);

Wyandotte Nation v. City of Kansas City, Kansas, 200

F. Supp. 2d 1279, 1297-98 (D. Kan. 2002) (ruling that the

United States was not an indispensable party after weigh-

ing relevant factors, and emphasizing the lack of an

1027 (1984), modified, 24 1.L.M. 535 (1985), stating that “[elach State

Party shall ensure in its legal system that the victim of an act of torture

obtains redress and has an enforceable right to fair and adequate

compensation”; see also, e.g., The Velasquez Rodriguez Case, 4 Inter-Am.

C.H.R. (ser. C) (1988), reprinted in 28 1.L.M. 291 (1989) (holding that

the American Convention on Human Rights imposes on each state

party a “legal duty to ... ensure the victim adequate compensation”).

The Republic’s violation of its obligations under international law to

provide remedies to human rights victims must be part of the equation

guiding this Honorable Court as it weighs the factors governing

applicability of Rule 19(b) of the Federal Rules of Civil Procedure.

alternative remedy for the plaintiff); Kansas v. United

States, 249 F.3d 1213 (10th‘ Cir. 2001) (holding that the

tribe was not an indispensable party); Sac and Fox Nation

of Missouri v. Norton, 240 F.3d 1250 (10th Cir. 2001)

(same); U.S. ex rel. Steele v. Turn Key Gaming, Inc., 135

F.3d 1249 (8th Cir. 1998) (same); Dairyland Greyhound

Park, Inc. v. McCallum, 258 Wis.2d 210, 655 N.W.2d 474

(Wis. 2002) (same).

II, THE NINTH CIRCUIT’S RULING DOES NOT

UNDERCUT ANY OF THE REASONS UNDER-

LYING THE DOCTRINE OF FOREIGN SOV-

EREIGN IMMUNITY

The Republic presents a “parade of horribles” argu-

ment — contending that relations between the United

States and the Philippines will deteriorate and that

Philippine courts will be reluctant to enforce U.S. court

orders if this Honorable Court does not reverse the deci-

sion below. ROP Pet. at 11, 25-30. As this Court explained

in Republic of Austria v. Altmann, 541 U.S. 677 (2004),

however, Congress enacted the Foreign Sovereign Immu-

nities Act in 1976 for the purpose of taking the determina-

tion of immunity out of the realm of politics and

establishing a “comprehensive” “‘set of legal standards’”

that “‘codifies ... the restrictive theory of sovereign

immunity’” and “transfers the primary responsibility for

immunity determinations from the Executive to the

Judicial Branch.” Jd. at 691 (quoting Verlinden B.V. v.

Central Bank of Nigeria, 461 U.S. 480 (1983)). This statute

was passed for the purpose of “clarifying the rules that

judges should apply in resolving sovereign immunity

claims and eliminating political participation in the

resolution of such claims.” Id. at 699 (emphasis added).

The determination of immunity, and the implementa-

tion of such a decision in conjunction with other applicable

judicial principles, is thus the responsibility of the judici-

ary, and the judiciary has fulfilled its responsibility care-

fully and appropriately in this situation. The U.S. courts

have expended substantial resources to the important

claims presented by the Filipino Human Rights Victims

during the past 21 years of litigation, including numerous

appeals to the Ninth Circuit and applications for certiorari

to this Honorable Court during that period.

Earlier in the human rights litigation, the Philippine

gowernment submitted an amicus curiae brief urging that

thee “U.S. courts should adjudicate the Human Rights

Vicctims’ claim against Marcos” and stating clearly that

“fooreign relations with the United States will not be

adiversely affected if these human rights claims against

Feerdinand Marcos are heard in U.S. courts.” In re Estate of

Fezrdinand Marcos, Human Rights Litig., 25 F.3d at 1472

(gtuoting the Republic’s amicus curiae brief; emphasis in

thte original brief). The U.S. courts acted in conformity

Wlith that request, and, after contentious adjudication, the

descision below provides the opportunity to provide modest

coimpensation to the Victims who have suffered so much,

anid their heirs. This distribution will vindicate transcen-

desnt values shared by the United States and the Philip-

Pilnes and, indeed, the entire world community. See Sosa v.

Alivarez-Machain, 542 U.S. 692, 731, 732 (2004) (indicating

&P»proval of the approach and analysis found in Filartiga v.

Peona-Irala, 630 F.2d 876 (2d Cir. 1980), and in In re Estate

of ‘Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467);

anid id. at 728 (recognizing that the Torture Victim Protec-

tions Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992),

hays provided “authority that ‘establish[es] and unambigu-

OUis and modern basis for’ federal claims of torture and

€Xttrajudicial killing”).

Belying the Republic’s arguments and*recent diplo-

Méatic note (ROP App. 65a) regarding the sensitivity of this

Caise are hearings held by the U.S. Congress on March 14,

20)07, investigating 295 “extrajudicial” killings~in the

Philippines, which the U.S. Department of State says are

atttributable to the Philippine military under the Arroyo

adjministration. In an interview on March 11, 2007, the

Philippines National Security Adviser, Norberto Gonzales,

Sajid “the inquiry was neither an affront to the country’s

SO\vereignty nor a breach of courtesy among nations.” See

“Palace Unfazed by US Hearing on Extrajudicial Killings,”

Philippine Daily Inquirer March 11, 2007, http://newsinfo.

inquirer.net (and related articles on March 15 and 16).

Surely a country unfazed by U.S. Congressional hearings

tying its leadership to mass killings cannot be overly

sensitive to a judicial interpleader proceeding determining

entitlement to assets of a former president that have been

in the United States since 1972. The U.S. Executive

Branch has not intervened with its views on this litigation

despite being solicited to do so by the Republic, and the

Republic’s request to have this Court formally seek that

Branch’s views comes much too late in this litigation and

would be unproductive.

III. THE NINTH CIRCUIT’S RULING IS NOT IN

CONFLICT WITH DECISIONS FROM OTHER

CIRCUITS

The Republic does not cite one single decision from

another circuit dismissing a claim involving a foreign

government on the ground that the foreign government is

both immune and indispensable. Disputes involving the

United States government, the governments of the 50

states, and Indian tribes are different, because if a claim

against one of those governments is dismissed, the matter

can be resolved within the U.S. political system by other

means. But, when a foreign government is involved, a

dismissal would mean that the matter would escape

resolution.

For 21 years this case has been before the U.S. courts,

which carried forth the adjudication of the claims with the

express approval of the Philippine government. Jn re

Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d

at 1472 (quoting the Republic’s amicus curiae brief).

Earlier decisions of the Ninth Circuit have been cited with

approval by this Court. See Sosa v. Alvarez-Machain, 542

U.S. 692, 731, 732 (2004) (indicating approval of the

approach and analysis found in In re Estate of Ferdinand

Marcos, Human Rights Litig., 25 F.3d 1467). The present

decision was handled carefully by the Ninth Circuit, it is

not inconsistent with the decisions of any other circuits,

and the fact-specific resolution of this matter presents no

issue of national importance.

IV. THE NINTH CIRCUIT PROPERLY DENIED

THE CLAIMS RAISED BY THE GOLDEN

BUDHA AND ROXAS PETITIONERS

Other petitioners, the Estate of Roger Roxas and the

Golden Budha Corporation (the “Golden Budha/Roxas

petitioners”), primarily argue that the district court lacked

jurisdiction or otherwise erred in distributing the assets to

the Class for three independent reasons. The Ninth

Circuit fully considered and correctly decided that the

petitioners have no claim to the assets at issue (ROP App.

10a-11a).

A. The Probate Doctrine Does Not Bar Federal

Jurisdiction to the Assets

The Golden Budha/Roxas petitioners first contend

that the district court lacked jurisdiction to distribute the

assets because the probate exception to federal jurisdiction

reserves such action exclusively to state probate courts.

GBR Pet. at 10-17. Indeed, for nine years, the Golden

Budha/Roxas petitioners have argued to various courts

that the probate exception applies to these proceedings

and every court has rejected the argument.

Jurisdiction in this statutory interpleader action was

not foreclosed by the probate exception, which prohibits

federal courts from probating a will or administering an

estate. Markham v. Allen, 326 U.S. 490, 494 (1946). This

Court has ruled that the probate exception to federal

jurisdiction is to be construed narrowly, recognizing that

federal courts of equity have jurisdiction to entertain suits

“‘in favor of creditors, legatees, and heris’ [sic] and other

claimants against a decedent’s estate ‘to establish their

claims’ so long as the federal court does not interfere with

the probate proceedings or assume general jurisdiction

of the probate or control of the property in the custody of

the state court.” Id. at 494 (quoting Waterman uv.

Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 43

(1909)). Recently, this Court, in Marshall v. Marshall, 547

U.S. 293, 126 S. Ct. 1735 (2006), further clarified the

narrow scope of the probate exception as articulated in

Markham, explaining that “the probate exception reserves

to state probate courts the probate or annulment of a will

and the administration of a decedent’s estate; it also

precludes federal courts from endeavoring to dispose of

property that is in the custody of a state probate court. But

it does not bar federal courts from adjudicating matters

outside those confines and otherwise within federal juris-

diction.” Id. at 1748 (emphasis added) (finding that “the

instant case does not fall within the ambit of the narrow

exception recognized by our decisions.”)

Here, the probate exception does not apply to the

Class claims for several] reasons. First, the Class claims do

not involve purely probate functions, such as the admini-

stration of an estate or the probate of a will. Second, the

res at issue is not in the custody of another state or foreign

court. In fact, no competing court in the United States or

Philippines has ever sought to claim exclusive jurisdiction

over the assets in the account. This is particularly compel-

ling because even though Merrill Lynch specifically named

Imelda Marcos and several Marcos family members as

“defendants” in the interpleader action, none of those

individuals ever appeared to claim the assets, and they

thus suffered the entry of a default judgment in this

matter. Nor did any of the Marcos family members take

any subsequent action to have a probate court assert

jurisdiction over the assets.

State courts have rejected opening a probate proceed-

ing despite the zealous efforts of the Golden Budha/Roxas

petitioners to do so. In Matter of Estate of Marcos, 88 Haw.

148, 963 P.2d 1124 THaw. 1998), the Hawaii Supreme

Court expressly rejected the multiple attempts by Irene L.

Silverman and the Golden Budha/Roxas claimants to open

probate proceedings for the Estate of Ferdinand E. Marcos

in Hawai'i following Marcos’s death on September 29,

7 iia |

1989.” The court highlighted the circuit [probate] court’s

finding that: “‘[T]he property that is the subject of the

inquiry in the present petition for reconsideration is not,

though it may be in the territorial bounds of the State of

Hawai[‘i, is not in the Court’s opinion, within the state

because it is still being held by the United States govern-

ment.’” 88 Haw. at 151, 963 P.2d at 1127.

Significantly, the Hawaii Supreme Court also exam-

ined the successful efforts of the Human Rights Victims to

secure assets in proceedings in the District Court for the

District of Hawaii such as the recovery of $1,000,000 for

the house that Marcos resided in while in Hawaii and the

sale at auction of his bullet proof Mercedes. Jd. at 1128.

The Hawaii Supreme Court found that “federal case law

dictates that the circuit [probate] court does not have

jurisdiction over property in the custody of the federal

government.” Jd. at 1132. The Hawaii Supreme Court

relied upon United States v. $119,000 in U.S. Currency,

793 F.Supp. 246, 250 (D. Hi. 1992), where the federal

district court held that the circuit court could not exercise

in rem jurisdiction over property that was in federal

custody at the time of the circuit court proceeding.

We agree with the federal district court and hold

that property in the custody of the federal gov-

ernment is not subject to Hawai'i state courts’ ju-

risdiction where the property was in custody at

the time of the Hawai'i state court proceeding.

Therefore, inasmuch as the property held by US.

Customs was in federal custody at the time of all

of the circuit court proceedings, it may not serve

as the jurisdictional basis for a Hawai'i probate

proceeding pursuant to HRS § 560:1-301(2).

88 Haw. at 156; 963 P.2d at 1132. Similarly, the assets at

issue in Arelma are in the custody of the District Court for

* Silverman and Golden Budha/Roxas also tried to open Marcos

probate proceedings in California. The California Court of Appeal ruled

there was no evidence that Marcos owned any property in California.

See Matter of Estate of Marcos, 88 Haw. at 153, 963 P.2d at 1129.

the District of Hawaii, and the Hawaii Supreme Court has

already made it very clear that the courts of Hawaii do not

have any interest in such assets. Thus, the Hawaii Su-

preme Court ruled that the District Court for the District

of Hawaii is the proper forum for the Class of Human

Rights victims to pursue recovery of its judgment against

Ferdinand Marcos and his Estate. Golden Budha/Roxas’

assertion that a New York court could adjudicate this

matter is also baseless. GBR Pet. at 15-16. No New York

probate was ever opened nor was one attempted.

It is well established that once a federal court has

entered judgment, it has ancillary jurisdiction over subse-

quent proceedings necessary to “vindicate its authority,

and effectuate its decrees.” Peacock v. Thomas, 516 U.S.

349, 354 (1996) (internal quotations omitted). This author-

ity extends to proceedings to enforce the judgment. See 13

CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H.

COOPER, FEDERAL PRACTICE AND PROCEDURE § 3523, at 89

(2d ed. 1984) (Ancillary jurisdiction “include[s] those acts

that the federal court must take in order properly to carry

out its judgment on a matter as to which it has jurisdic-

tion”). Without ancillary jurisdiction to enforce judgments,

‘the judicial power would be incomplete and entirely

inadequate to the purposes for which it was conferred by

the Constitution.” Peacock, 516 U.S. at 356 (internal

quotations omitted). As a result of its entry of judgment for

the Class of Human Rights Victims, the U.S. District

Court for the District of Hawaii possessed ancillary juris-

diction to enforce the judgment through supplementary

proceedings within federal jurisdiction.

Accordingly, the probate exception does not apply to

the Class claims and the petition should be denied.

B. The Estate of Marcos Is Not an Indispensa-

ble Party To This Action

The Golden Budha/Roxas petitioners next argue that

the lower court lacked federal jurisdiction over the assets

because the Estate of Marcos is an indispensable party

that was absent from the proceedings. GBR Pet. at 17-18.

This argument is baseless.”

As an initial matter, contrary to the contention of the

Golden Budha/Roxas petitioners, the Estate was, in fact,

named as a defendant in the interpleader action. Para-

graph 5 of the Amended Complaint for Interpleader

alleges that “[u]pon information and belief, Imelda R.

Marcos and Ferdinand R. Marcos, Jr. are citizens of the

Republic of the Philippines . . . are legal representatives of

the Estate of Ferdinand E. Marcos (the “Estate”), and are

beneficiaries of the Estate.” Am. Compl. for Interpleader at

3 (Dkt. No. 102). Although named in the Amended Com-

plaint and served, neither Imelda nor Ferdinand R. Marcos

made an appearance in the proceedings and a default was

entered against them. The default has never been contested.

Thus, their failure to appear cannot be used as a sword to

argue a lack of jurisdiction under Rule 19(b).

These jurisdictional issues are irrelevant as they

apply to the Golden Budha/Roxas petitioners, which have

failed to prove to any court that they have any direct claim

to the assets at issue. The District Court denied their

claim to the Arelma/Merrill Lynch assets on the grounds

that the judgment that they based their claim upon was

solely against Imelda Marcos, in her personal capacity,

and not against the Estate of Ferdinand E. Marcos. ROP

App. 53a-54a. Because the disputed assets were those of

Ferdinand Marcos, and not Imelda, the District Judge

ruled that the claim of the Golden Budha/Roxas claimants,

“if any, is junior to the claim of the Filipino Judgment

Creditors in MDL No. 840.” ROP App. 49a. This ruling is

clearly correct. Although they had the opportunity to do so,

the Golden Budha/Roxas petitioners introduced no evi-

dence that their assets were stolen by Ferdinand Marcos

in 1971 or that the proceeds thereof are traceable to the

“In six years of the interpleader litigation, the Golden

Budha/Roxas petitioners have never raised this argument previously,

and should be precluded from raising it now, as the issue was not

preserved below.

Arelma account at Merrill Lynch. Thus, because they

failed to prove a direct claim to the assets at issue, they

should be precluded from raising jurisdictional issues.

Furthermore, contrary to petitioners’ contention, the

Estate is not an indispensable party under Rule 19(b) of

the Federal Rules of Civil Procedure. Applying the four

factor test, it is clear that a judgment rendered in favor of

the Class to recover all of the assets in the absence of the

Estate caused minimal prejudice, if any, to the Estate and

need not be lessened. Indeed, the non-prejudicial effect is

evidenced by the non-action of the members of the Marcos

Estate’s personal representatives, who despite being

named as defendants in the interpleader action, have

taken no steps to claim the assets or to bring a probate

action or to claim that the Estate is indispensable. See

Gardiner v. Virgin Islands Water & Power Auth., 145 F.3d

635, 641 (3d Cir. 1998)) (finding that the U.S. was not

indispensable and stating “the United States does not

want to become a party to the suit, strongly suggesting

that its interests will not be impeded if the suit goes

forward without it.”); Sokaogon Chippewa Community v.

State of Wisconsin, Oneida County, 879 F.2d 300, 304 (7th

Cir. 1989) (finding that the U.S. was not indispensable and

stating that the U.S.’s failure to take any position as to its

indispensability shows that “it must not fear the conse-

quences of a judgment in this suit.”). In fact, a default

judgment was entered against them in this action and

remains uncontested. Furthermore, petitioners’ contention

that the distribution of Estate assets in the absence of an

estate is per se prejudicial is incorrect. GBR Pet. at 18. The

judgment rendered in the absence of the Estate was

certainly adequate and fair. Even more compelling is the

fact that the Class claims could not be effectively litigated

in another court. Accordingly, the Estate of Marcos is not

an indispensable party and the petition should be denied.

C. The Claims of Pimentel and the Class of

Human Rights Victims Were Cognizable in

an Interpleader Action

The Golden Budha/Roxas petitioners’ third j

tional argument contends that Pimentel and the Class of

Human Rights Victims have no direct claim to the assets

at issue because they are not adverse to a specific identi-

fied fund or party. GBR Pet. at 18-23. This argument also

is meritless."

The record is clear that Pimentel and the Class filed a

timely action for these assets against Merrill Lynch and

Arelma on September 6, 2000 asserting (1) that Arelma

was the alter ego and instrumentality of Ferdinand E.

Marcos and his Estate, their judgment debtor, and (2)

demanding that the funds in Arelma’s account at Merrill

Lynch be paid over to Pimentel and the Class. See Pimen-

tel v. Merrill Lynch, No. 00-580 (D. Hi. 2000); Dkt. No. 56

at 6. Pimentel and the Class reiterated this claim in their

Amended Answer and Claim in Interpleader. Am. Answer

and Claim in Interpleader at 4 (Dkt. No. 117). Pimentel

and the Class withdrew the action after Merrill Lynch

agreed to deposit the assets with the U.S. District Court

for the District of Hawaii. Dkt. No. 56 at 5-6. These claims

establish the requisite adversity between Pimentel and

the Class, on one hand, and Merrill Lynch on the other

hand.

For centuries the law has recognized that judgment

debtors often try to evade payment of judgments by keeping

their assets with a third party. The law is fashioned to

“ Neither in their Answers to the Amended Complaint (Dkt. No. 8),

nor in the Joint Pretrial Memorandum (Dkt. No. 338), did Golden

Budha/Roxas assert that Pimentel and the Class lacked sufficient

adversity to Arelma and the fund. Moreover, Golden Budha/Roxas

admitted in their Answer that there are conflicting claims to the

ownership of the fund. See GBR Answer to Am. Compl. at 6 (Dkt. No.

113). The Golden Budha/Roxas petitioners improperly raised this issue

for the first time in their appeal to the Ninth Circuit and here, again,

even though the issue was not preserved below.

permit judgment creditors to pursue remedies against

third parties so that just debts, like the one owing to the

human rights victims, can be collected. The cases cited by

Golden Budha/Roxas have no bearing on the facts of this

case. For example, cass cited by the petitioners involve a

plaintiff debtor that requires its general judgment creditor

to collect on its judgment against a specific contested fund

in an interpleader. See, e.g., Airborne Freight Corp. uv.

United States, 195 F.3d 238, 241-42 (5th Cir. 1999). This

Court recognizes the standing of judgment creditors in

interpleader actions. See, e.g., United States v. McDermott,

507 U.S. 447, 455 (1993). No case holds that a judgment

creditor cannot be a proper claimant to an interpleaded

fund where that fund can partially or fully satisfy the

judgment.

D. The Ninth Circuit’s Opinion Did Not Effec-

tively Deny The Golden Budha/Roxas Peti-

tioners’ Right To Appeal

The Golden Budha/Roxas petitioners also contend that

their right to appeal was denied when the Ninth Circuit

failed to address their jurisdictional arguments in its

wr:tten opinion, thereby purportedly depriving them “of a

meaningful right of appeal.” GBR Pet. at 23-27. The

argument is disingenuous at best.

Even petitioners concede in their brief that the Ninth

Circuit did not ignore their submissions. GBR Pet. at 24-

26. Rather, in its opinion dated September, 12, 2006, the

Ninth Circuit provided a well-reasoned basis for denying

the claims of Roxas and Golden Budha, stating in perti-

nent part:

The district court, however, found that Roxas had

not proven that the assets in the Arelma account

derived from any treasure stolen from him.

Roxas contends that the district court erred in

excluding expert testimony regarding the source

of the funds and in excluding depositions of fact

witnesses from his earlier action against Marcos.

We do not believe that the district court abused

its discretion in either ruling.

* ~*~ *

As the district court held, Roxas’s tort judgment

is against Imelda Marcos personally. It does not

bind the Marcos estate. Roxas has no claim to be

satisfied here.

ROP App. 10a-lla. Having disposed of the Golden

Budha/Roxas petitioners’ claims on the grounds that they

had failed to prove a direct claim or even a factual basis to

any of the assets, the Ninth Circuit was not obligated as a

matter of law to address every argument that petitioners

raised in their brief. See, e.g., Alaska v. United States, 545

US. 75, 91 (2005); S.£.C. v. Sloan, 436 U.S. 103, 109 n.2, 3

(1978). Accordingly, the petitioners’ argument is without

merit and does not warrant review.

CONCLUSION

The Ninth Circuit followed the law in ruling that the

interpleaded assets should be distributed to the Class of

Filipino Human Rights Victims in partial satisfaction of

their judgment against the Estate of Ferdinand E. Marcos.

Accordingly, the petitions for a writ of certiorari should be

denied.

Respectfully submitted,

ROBERT A. SWIFT* JON M. VAN DYKE

ALLAN M. HOFFMAN 2515 Dole Street

KOHN, SwiFt, & GRAF, P.C. Honolulu, HI 96822

One South Broad Street, (808) 956-8509

Suite 2100

Philadelphia, PA 19107

(215) 238-1700

SHERRY P. BRODER

841 Bishop Street, Suite 800

Honolulu, HI 96813

(808) 531-8411

Counsel for Respondent

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.