Petition for Writ of Certiorari — Hilao v. Revelstoke Investment Investment Investment Corp., Inc. (No. 08-1019)

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In apprFice OF THE CLERK

Supreme Court of the United States

CELSA HILAO, DANILO DE LA FUENTE,

RENATO PINEDA, ADORA DEVERA, RODOLFO

BENOSA, JOSE DURAN, JOSEFINA FORCADILLA,

ARTURA REVILLA AND CHRISTOPHER SORIA,

Petitioners,

REVELSTOKE INVESTMENT CORPORATION, INC.,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT A. SWIFT

Counsel of Record

CRAIG W. HILLWIG

KOHN, SWIFT & GRAF, P.C.

One South Broad Street

Suite 2100

Philadelphia, PA 19107

(215) 238-1700

SHERRY P. BRODER

JON M. VAN DYKE

841 Bishop Street

Suite 800

Honolulu, HI 96813

(808) 531-8411

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether federal law, not state law, deter-

mines when a federal judgment on a federal cause of

action accrues so as to commence the running of a

state law limitations period for enforcement where:

(a) the court of appeals’ interpretation is

directly contrary to this Court’s opinion in Borer v.

Chapman, 119 U.S. 587 (1887); and

(b) the court of appeals’ interpretation

directly conflicts with rulings of two other circuits?

2. Whether, since the question of the proper

interpretation of the Hawai'i statute has now been

certified to and accepted for decision by the Hawai'i

Supreme Court (and briefing is almost complete), this

Court should defer or hold consideration of this

Petition until the Hawai'i Supreme Court issues its

opinion on that critical question of law?

3. Whether this Court should vacate and re-

mand this action to the court of appeals since that

Court plainly erred in not finding that the Class’s

final judgment was not entered in the district court

pursuant to FRCP 58 until December 6, 1995, less

than ten years before the judgment was transferred

to Texas?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................0ccsecceseoess i

TABLAS, OF Cre iit iae cescivessccesscccosescesss il

TABLE OF Be Tire le oon ccscoccsccccescescesces cesses iv

OPIN EQS Be ii eastedissccessece.cesse. a

STATEMENT OF JURISDICTION ................. a |

RELEVANT PROVISIONS INVOLVED.............. 1

TN FRO oe iiss nsec s- 000000. 3

RELEVANCE Taree ttaiee dasesenecsesccecssccseees. 5

STATEMENT OF THE CASE..................cceeceeeeees 6

REASONS FOR GRANTING THE PETITION ..... 11

I. Federal Law, Not State Law, Determines

When a Federal Judgment Accrues for

SSUNTR TERN By ieas sc escccesescscccecceses 11

II. This Court Should Defer or Hold Decision

on this Petition Until the Supreme Court

of Hawai'i Answers the Question of State

Feuer Ce iste nksseciesee ces... 19

Ill. The Ninth Circuit Committed a

Fundamental Error of law in Assuming

the District Court’s February 3, 1995

Order was the Final Judgment for the

Class and Premising Intervention on that

COR sic EEN sino seccccccceee 23

ill

TABLE OF CONTENTS — Continued

Page

APPENDIX

A. Opinion of the U.S. Court of Appeals for

the Ninth Circuit, filed July 31, 2008................. la

B. Order of the U.S. District Court for the

District of Hawai'i Extending the Judg-

ment, GIO Fisted BT, QOOG wie ceisscccecsscssetgescosesevcees 22a

C. Minutes of the U.S. District Court for the

District of Hawai'i Denying Intervention,

OTAGO Frutee BS, BGS ...cevcecnecccscacssconcrsvesvosccssees 25a

D. Order of the U.S. District Court for the

District of Hawaii Denying Intervention,

ee Ie ey Se savccitieserccaladsidcussansicnieipeeennias 27a

E. Certified Question of the U.S. District

Court For the District of Hawai'i to the

Supreme Court of Hawai’i, filed September

A oxicinkixcseuvtsonments sikh sets ts caeaiidids actitoan bas 28a

F. Order of the Supreme Court of Hawai'i

Accepting Certified Question, filed October

G Order of the U.S. Court of Appeals for the

Ninth Circuit, Denying the Petition for

Rehearing and Rehearing En Banc, filed

GEE Sh, TP cabin tans icedeaccngdindnlccadnnanacuaaaes 34a

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Amis v. Smith, 41 U.S. 303 (1842) .............cccoveccscveoese 11

Arizonans for Official English v. Arizona, 520

Re. en Ris iscoaasciasoanhaner Denia citucieakaion 20, 21, 23

Borer v. Chapman, 119 U.S. 587 (1887)............. passim

Brockett v. Spokane Arcades, Inc., 472 U.S. 491

Ps ikea dcckesascaihicadictsiwallartacle uadpaietehaahassntiteseGeiciaanie 20

Burdick v. Takushi, 504 U.S. 428 (1992)......0........... 20

Byrd v. BlueRidge Rural Electric Cooperative,

Bee FS hr ee ee a vind is vkcninbedcn yo sedonderscacccdvaces 18

Caldwell v. Puget Sound Electrical Apprentice-

ship and Training Trust, 824 F.2d 765 (9th

A) 3 ERE R ESR ODN: AONE Paty SMROAPROI TS ed SARC AOR RONER 15 3

Clearfield Trust Co. v. United States, 318 U.S.

I csiisrusscsevitcncesanaserusretnresarddmhiaaceaarhtateks 15

Cunningham v. Hamilton County, Ohio, 527

id ee ik chs eas nancies ocke sncaliesanaiaden 11

Custer v. McCutcheon, 283 U.S. 514 (1931)............... 14

Elkins v. Moreno, 435 U.S. 647 (1978)............ce cece eee 21

Empire Healthchoice Assurance, Ince. v.

MeWigkh, GAT US. S77 (S0GG) onc scsccecccncsevscnsvessccesees 18

Herd v. Pitcairn, 324 U.S. 117 (1946) ..............0......... 22

Hilao v. Estate of Marcos, 103 F.3d 762 (9th

2 ER SNE <daety a MNE SBR ENR CR Oe een ar kes RoE 7

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

Se I eakicsstenisinsiansnscatoeeneni rem 5, 6,7

TABLE OF AUTHORITIES — Continued

Page

Home Port Rentals, Inc. v. International

Yachting Group, Inc., 252 F.3d 399 (5th Cir.

IN A sis ccsaire Csaba cbudiniacscieceeae el acenueaueauane 8, 18, 29

In re Estate of Ferdinand E. Marcos Human

Rights Litigation, 25 F.3d 1467 (9th Cir.

NN obs Si ae diss, daiigslas vin cidade eapaaeaiacied aekamentialnct dines 25

In re Estate of Ferdinand E. Marcos Human

Rights Litigation, 910 F. Supp. 1460 (D. Haw.

1995), aff'd, 103 F.3d 767 (9th Cir. 1996)....... 5, 6, 25

Jalapeno Property Management, LLC v. Dukas,

265 F.3d 506 (6th Cir. 2001) ..............0040 3, 13, 14, 29

Lynum uv. Illinois, 368 U.S. 908 (1961) ............... eee 22

Reiter v. Cooper, 507 U.S. 258 (1993).....................000 28

Republic Natural Gas Co. v. Oklahoma, 334

a a asc dled cen andltaoace’ 17

Republic of the Philippines v. Pimentel, 128

S.Ct. 2180, 171 L.Ed.2d 131 (2008)................ 3, 8, 17

Richmark Corp. v. Timber Falling Consultants, |

959 F.2d 1668 (Sth Cir. 1992) .............cccccssccssscesvcoes 16

Riggs v. Johnson County, 73 U.S. 166 (1867) ........... 16

Romero v. Allstate Corp., 404 F.3d 212 (3d Cir.

RIVET nett cre annie pene e ae nee Or APRN ects gee 11

Romero v. United States, 28 F.3d 267 (2d Cir.

NIE Sissi: inn Sco cadandimstnes seubedeagiekproaadda dessin nbaliaconcagiioe 17

TABLE OF AUTHORITIES — Continued

Page

Taylor v. Sturgell, 128 S.Ct. 2161, 171 L. Ed. 2d

LEER R SRD EDR RE EE OE 11

Tolle v. Carroll Touch, Inc., 977 F.2d 1129 (7th

I a a is aelae rate anadensiekes 11

TRW Inc. v. Andrews, 534 U.S. 19 (2001).................. 15

United States v. Indrelunas, 411 U.S. 216

RSE ear Pn oN Cee me One 4, 27

United States v. Kingston, 875 F.2d 1091 (5th

ec seulb rename neuedes 17

United States v. Wurts, 303 U.S. 414 (19388).............. 12

Wallace v. Kato, 549 U.S. 384 (2007) .............. ewes 11

STATE CASES

Beecher Ltd. v. Alvarez & Marsal North Amer-

ica, LLC, 187 P.3d 593 (Haw. App. 2008)............... 22

International Savings & Loan Association v.

Wiig, 921.P.2d 117 (Haw. 1996)...................c0000 21, 24

Leslie v. Estate of Tavares, 109 Haw. 8, 122

ee i. ncsiccdeeevatuapsesweseveysnocessse@van 28

DOCKETED CASES

Del Prado v. BN Development Company, Inc.,

ne TBs vv scuwnnsatbagsiannsnacestaasennsenecsas 7

Republic of the Philippines v. Marcos, No. 86-

IE NN ocd cc kcacankcdeinacccdench casei zenateesocycoinpe satin’ 8

TABLE OF AUTHORITIES — Continued

Page

FEDERAL STATUTES AND RULES

ee es Oe rinse la ede iasttsvareuaens 1

Es Ag) AURORE SRE arr enee Ry Pe oreo NEE Te rn 6

28 U.S.C. § 1968 .......... pace hanaabineaaaradewpnbaendenontesmiana passim

ae cence sera 28, 29

RE NE EY PS Mia chiiehchins cdsscndassscasicidoesocussseumenens passim

SPs Mk: GMM Be IIs iesccids Sdccccadoadaundsddatinvniuccesbackeiantane 2,18

STATE STATUTES AND RULES

Haw. Rev. Stat. § 657-5.................cccceseee pee ebart passim

MISCELLANEOUS

Ralph Steinhardt, Fulfilling the Promise of

Filartiga: Litigating Human Rights Claims

Against the Estate of Ferdinand Marcos, 20

Yale J. Int'l L. 65, 92 (Winter 1995) ...........000000000... 25

U.N. Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or

Punishment, art. 14 Dec. 10, 1884, 1465

Rr I IE tact ici ta hcakiessei eens eens coisa natn dav ekasasio'es 16

Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, FEDERAL PRACTICE &

PROCEDURE § 4519 (2d ed. 1996).......00.0.. cece eee. 12

RESTATEMENT (FIRST) OF RESTITUTION § 74

5 MADD ARSE ROESE PCa aera mee Wyma aike Stam Cs PI ee ere 15

OPINIONS BELOW

The opinion of the United States Court of Ap-

peals for the Ninth Circuit is reported at 536 F.3d 980

(9th Cir. 2008). Pet.App.la. The order of the United

States District Court for the District of Hawai'i

entered June 27, 2006 is unreported. Pet.App.22a.

STATEMENT OF JURISDICTION

The decision of the United States Court of

Appeals for the Ninth Circuit reversing the district

court’s order was entered on July 31, 2008.

Pet.App.la. A timely petition for rehearing and

rehearing en banc was denied on September 11, 2008.

Pet.App.34a. This Court extended the time for filing

this Petition to February 9, 2009. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

RELEVANT PROVISIONS INVOLVED

Hawai'i Revised Statutes, § 657-5:

Unless an extension is granted, every judg-

ment and decree of any court of the State

s all be presumed to be paid and discharged

al ‘he expiration of ten years after the judg-

ment or decree was rendered. No action shall

be commenced after the expiration of ten

years from the date a judgment or decree

was rendered or extended. No extension of a

judgment or decree shall be granted unless

the extension is sought within ten years of

the date the original judgment or decree was

rendered. A court shall not extend any judg-

ment or decree beyond twenty years from the

date of the original judgment or decree. No

extension shall be granted without notice

and the filing of a non-hearing motion or a

hearing motion to extend the life of the

judgment or decree.

Federal Rule of Civil Procedure 58(b)(2):

Subject to Rule 54(b), the Court must

promptly approve the fervm of judgment,

which the clerk must promptly enter, when:

(A) the jury returns a special verdict or

a general verdict with answers to

specific questions; or

(B) the court grants other relief not de-

scribed in this subdivision (b).

Federal Rule of Civil Procedure 69(a)(1):

A money judgment is enforced by a writ of

execution unless the court directs otherwise.

The procedure on execution — and in proceed-

ings supplementary and in aid of judgment

or execution — must accord with the proce-

dure of the state where the court is located,

but a federal statute governs to the extent it

applies.

INTRODUCTION

The court of appeals ruled that a $2 billion

federal court judgment in favor of a Class of 9,539

human rights victims against the Estate of Ferdinand

E. Marcos could not be extended to allow further

collection efforts, basing its ruling entirely on a

Hawai'i statute that had never before been inter-

preted and applied in the context of an appealed

judgment. The court of appeals reached this ruling

despite the fact that the appellate process was com-

pleted less than ten years before the judgment had

been extended by the federal district court and de-

spite the very active and continuing efforts of the

Class of Human Rights Victims to collect the judg-

ment, as exemplified by a case recently before this

Honorable Court. Republic of the Philippines v. Pi-

mentel, 128 S.Ct. 2180, 171 L.Ed.2d 131 (2008). Even

though the Class’s federal judgment was based on a

federal cause of action, the court of appeals applied

state law — not federal law — to determine when the

judgment accrued for sunsetting purposes, i.e., to

commence the ten year state limitations period for

enforcing the judgment. This conclusion of the court

of appeals is directly contrary to this Court’s decision

in Borer v. Chapman, 119 U.S. 587, 602 (1887), which

held that a state sunsetting statute does not begin to

run on a federal judgment until all appeals are final.

The court of appeals’ decision is also in conflict with

decisions in the Fifth Circuit, Home Port Rentals, Inc.

v. International Yachting Group, Inc., 252 F.3d 399

(5th Cir. 2001), and in the Sixth Circuit, Jalapeno

Property Management, LLC v. Dukas, 265 F.3d 506

(6th Cir. 2001), which applied a federal law accrual

rule to state sunsetting statutes, and properly ruled

that the limitations period does not begin until the

appellate process is completed.

The court of appeals’ interpretation and applica-

tion of the Hawai'i statute, Section 657-5 of the

Hawaii Revised Statutes (H.R.S.), was based on its

prediction of how the Supreme Court of Hawai’

might rule, not on any decision of that state court.

The Class of Victims, in the motion for rehearing,

asked the court of appeals to certify the question of

the proper interpretation of the statute to the Hawai’i

Supreme Court, but the court of appeals declined to

do so. After the court of appeals’ ruling, the Supreme

Court of Hawai’i has agreed, in a case consolidated

with the Class’s case, to decide a certified question on

when an appealed judgment accrues under the Ha-

waii sunsetting law. Pet.App.3la. The briefing on

this matter is almost complete, and because the

Hawai'i Supreme Court may adopt a rule identical to

the federal rule, this Court should defer decision on

this Petition until the Hawai'i Supreme Court has

ruled.

Certiorari is also appropriate in this case because

the court of appeals failed to follow this Court’s

decision in United States v. Indrelunas, 411 U.S. 216

(1973). The court of appeals fundamentally erred in

permitting Revelstoke’s intervention in the Hawai'i

proceeding based on its failure to consider that a Rule

58 judgment was not signed and entered by the clerk

of court in the consolidated cases until December 6,

1995 — less than ten years before the judgment was

transferred to Hawai'i.

RELEVANT DATES

February 3, 1995

November 30, 1995

December 6, 1995

December 17, 1996

January 8, 1997

April 4, 2005

June 27, 2006

A judgment order is signed by

district court judge in the Class

case only

District court issues opinion,

910 F.Supp. 1460 (D. Haw.

1995)

Clerk of court signs and enters

Rule 58 judgment for all cases

in MDL 840

Court of appeals affirms Class’s

judgment, 103 F.3d 767 (9th

Cir. 1996)

Mandate of court of appeals

affirming Class judgment is.

entered in district court

The Class registers its judg-

ment in Texas federal court

Hawai'i federal court extends

Class judgment per H.R:S.

§ 657-5

STATEMENT OF THE CASE

This Petition is brought by the Class of Human

Rights Victims who won a judgment against Ferdi-

nand E. Marcos,’ the former president of the Philip-

pines, compensating them (and family members) for

suffering resulting from torture, summary executions,

and disappearances, based on rulings of a federal jury

in Hawai'i which evaluated their claims in a trifur-

cated proceeding between 1992 and 1995. On Febru-

ary 3, 1995, the district judge signed an order titled

“Final Judgment” for almost $2 billion in favor of this

Class of 9,539 individual Filipinos who had been

subjected to gross human rights abuses during the

1972-86 period of martial law in the Philippines.

Pet.App.3a. The Class’s judgment included a perma-

nent decree enjoining the transfer or disposal of the

Estate’s assets. During the next ten months, judg-

ments were entered by the district court in the other

MDL No. 840 consolidated cases brought by individ-

ual plaintiffs. On November 30, 1995, the district

court issued a written opinion addressing the legal

issues raised during the litigation and directed the

clerk to enter judgment. In re Estate of Ferdinand E.

Marcos Human Rights Litig., 910 F. Supp. 1460, 1469

(D. Haw. 1995), aff'd, 103 F.3d 767 (9th Cir. 1996).

’ After Marcos’s death in 1989, his Estate was substituted

as the defendant. The federal causes of action were based on the

Alien Tort Statute and the Torture Victim Protection Act, 28

U.S.C. § 1350 and Note. Jn re Ferdinand E. Marcos Human

Rights Litig., 910 F. Supp. 1460, 1462, 1469 (D. Haw. 1995).

Pursuant to Rule 58(b) of the Federal Rules of Civil

Procedure, a final judgment in all the consolidated

cases was signed and entered by the clerk of the

district court on December 6, 1995 against the Mar-

cos Estate. The Class’s judgment was appealed to the

court of appeals and affirmed on December 17, 1996.

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

1996). The mandate was returned by the court of

appeals to the district court on January 8, 1997.

Collection of the judgment proved exceedingly

difficult. The Marcos heirs refused to pay the judgment

or give depositions in aid of execution and continued “a

pattern and practice to fraudulently secrete [the Es-

tate’s] assets and use off-shore corporations and cronies

to hold title to property.” Pet.App.24a. The Marcos heirs

were held in civil contempt for transferring assets of the

Estate in violation of the permanent injunction, Hilao v.

Estate of Marcos, 103 F.3d 762, 767 (9th Cir. 1996), but

refused to purge their contempt.

Based on newly discovered evidence regarding

the Marcos assets, the Class transferred its Hawai’i

judgment to the Northern District of Texas in April

2005 and initiated a diversity action against seven

corporations, including Respondent Revelstoke In-

vestment Corporation, Inc., for declaratory judgment

and forfeiture.” The complaint explained that the real

* Del Prado v. BN Dev. Co., No. 05-234 (N.D. Tex.). On

January 9, 2009 the Texas district court dismissed the complaint

based on the Ninth Circuit ruling at issue here.

estate held by the seven corporations had been paid

for and beneficially owned by Ferdinand Marcos (and

now by the Marcos Estate) and sought foreclosure on

those properties. Between 1979 and 1986, Jose Y.

Campos, a confidante of Ferdinand Marcos, pur-

chased over 4,000 acres of real property in Texas for

Marcos’s using Marcos money’ but titled the parcels

of land in the names of seven Netherlands Antilles

corporations which Campos controlled. This action

followed a pattern Marcos employed to conceal his

investments. Shortly after Marcos fled the Philip-

pines in February 1986, Campos was sued by the

Republic of the Philippines in Texas in a racketeering

action to recover Marcos’s properties which were

under Campos’s control.’ That action was dismissed

two months later — with no discovery taken — based

on a settlement with the Republic in which Campos

returned over 200 corporations and pieces of real

estate beneficially owned by Marcos as well as $12

million. In return for a $10 million bribe paid to a

high Philippine official,” Campos and his family

° Jose Y. Campos was also instrumental in setting up

Arelma Inc., a Panamanian corporation, which held $35 million

of Marcos assets in a Merrill Lynch account for 28 years. See

Republic of the Philippines, v. Pimentel, 128 S.Ct. 2180, 171

L.Ed.2d 131 (2008).

* Declaration of Imelda Marcos dated January 21, 2005.

* Republic of the Philippines v. Marcos, No. 86-1184 (S.D.

Tex.).

* Deposition testimony of Ferdinand R. Marcos, Jr. on June

20, 2007.

received immunity from prosecution in the Philip-

pines and were permitted to retain a dozen Nether-

lands Antilles corporations, including Revelstoke,

which Campos then claimed as his own. Campos

subsequently formed seven United States corpora-

tions that became the successors to the Netherlands

Antilles corporations, and which currently hold title

to the real estate at issue. The seven corporations are,

in turn, owned by Panamanian corporations that are

owned by Hong Kong Trusts. The Class values the

real estate at more than $100 million.

In the action brought by the Class in Texas, the

seven corporations, including Revelstoke, contended

that the Class’s Hawai'i judgment was unenforceable

under Hawai'i law at the time it was transferred to

Texas in April 2005 because more than ten years had

passed since a judgment order in favor of the Class

was signed by the district judge on February 3, 1995.

After the Class filed a motion in the Hawai’i federal

court to extend its judgment, Revelstoke’s attempt

to intervene in the Hawai'i action was denied,

Pet.App.25a-27a, and the district court entered an .

order on June 27, 2006 extending the Class’s judg-

ment for ten years. Pet.App.22a. In this ruling, the

district court explained that the extension was gov-

erned by federal law because it was based on a fed-

eral cause of action and because “Congress created a

statutory regime for entry of and transfer of federal

court judgments which would be impeded by” strict

adherence to the state statute. Pet.App.23a. The

court also stated that good cause existed for the

extension because of the efforts by the Marcoses to

hide assets and their failure to comply with court

orders, as well as because of the “due diligence and

exceptional efforts” of the Class to collect its judg-

ment. Pet.App.24a.

The district court also ruled, in the alternative,

that if the Hawai'i sunsetting statute applied, the

extension was still proper because the ten-year period

under H.R.S. § 657-5 did not begin “until issuance

of the mandate of the Ninth Circuit was spread on

the record of this Courc on January 8, 1997.”

Pet.App.23a. Neither the Marcos Estate nor Rev-

elstoke contested the existence of good cause to

extend the judgment.

Revelstoke appealed to the court of appeals

which reversed and held the Hawai'i judgment was

unenforceable in Hawai'i. Pet.App.20a. It held that a

federal judgment on a federal cause of action is

subject to state sunsetting laws and that a judgment

is “rendered” under H.R.S. § 657-5 when a final

judgment is entered in the trial court even though the

judgment is appealed. Pet.App.18a-19a.

The Class moved for rehearing raising several

issues, including that the final judgment for the Class

was not entered pursuant to Rule 58 of the Federal

Rules of Civil Procedure until December 6, 1995 and

requested the court of appeals to certify to the Ha-

waii Supreme Court the question of when an ap-

pealed judgment is “rendered” under H.R.S. § 657-5

since no Hawai'i decision had ever interpreted that

term in connection with an appealed judgment. The

court of appeals denied rehearing without comment.

Pet.App.34a. On January 9, 2009, the Texas district

court dismissed the Texas action based on the deci-

sion of the Ninth Circuit.

REASONS FOR GRANTING THE PETITION

I. Federal Law, Not State Law, Determines

When a Federal Judgment Accrues for

Sunsetting Purposes.

Federal statutory or common law determines the

finality of judgments for all purposes, including when

a federal judgment on a federal cause of action ac-

crues for enforcement and sunsetting purposes.

Federal law has always controlled when a federal

judgment is deemed “final” for purposes of appeal, see

Cunningham v. Hamilton County, Ohio, 527 U.S. 198,

203 (1999), and this Court has long rejected the

assertion that state law determines when a federal

judgment is final. Amis v. Smith, 41 U.S. 303, 313-14

(1842). As regards res judicata, this Court has held

that “(t]he preclusive effect of a federal-court judg-

ment is determined by federal common law.” Taylor v.

Sturgell, 128 S.Ct. 2161, 2171, 171 L.Ed.2d 155

(2008). Federal courts have always applied federal

common law to determine when a cause of action on a

federal statute accrues even while borrowing state

limitations periods. See, e.g., Wallace v. Kato, 549

U.S. 384, 388 (2007); Romero v. Allstate Corp., 404

F.3d 212, 221 (3d Cir. 2005); Tolle v. Carroll Touch,

Inc., 977 F.2d 1129, 1138 (7th Cir. 1992); Charles Alan

Wright, Arthur R. Miller & Edward H. Cooper, FED-

ERAL PRACTICE & PROCEDURE § 4519 (2d ed. 1996). In

Borer v. Chapman, 119 U.S. 587, 602 (1887), this

Court ruled that the state time period to enforce a

federal judgment did not begin to run until all ap-

peals were completed.

This Honorable Court addressed the same issue

presented in this case more than a century ago in

Borer v. Chapman, 119 U.S. 587, 602 (1887), and this

Court reached a conclusion opposite to the conclusion

of the court of appeals, holding that the state time

period to enforce a federal judgment did not begin to

run until all appeals were completed. “It cannot be

that the statute of limitations [state sunsetting law]

will be allowed to commence to run against a right

until that right has accrued in a shape to be effec-

tually enforced.” Jd. at 602. This Court explained that

until final judgment was “actually entered” after

appeal, “the right of the complainant ... to enforce

that [federal] judgment” “was in abeyance” because

“the litigation had, until then ended, been continu-

ously in progress.” Jd. This Court has endorsed the

principle set forth in the Borer decision in other cases.

For example, in United States v. Wurts, 303 U.S. 414,

418 n.10 (1938), this Court cited Borer for the propo-

sition that a statute of limitations does not begin to run

until a judgment is in a position to be enforced. The

district court followed this Court’s precedent when it

ruled that the Class’s federal judgment did not accrue

for sunsetting purposes “until issuance of the mandate

of the Ninth Circuit was spread on the record of this

Court on January 8, 1997.” Pet.App.23a.

The court of appeals’ conclusion that the time

period for the running of a sunsetting statute begins

with the district court’s entry of final judgment is

inconsistent not only with this Court’s holding in

Borer but also with the holdings of the only two other

circuits that have considered this question. The court

of appeals applied the Hawai'i statutory accrual date

to the Class’s federal judgment, not the federal! ac-

crual date. Pet.App.18a. In direct contrast, the Fifth

Circuit has ruled, relying on 28 U.S.C. § 1963, that

the accrual date for federal judgments is after all

appeals are completed or the time for appeal has

expired, characterizing any contrary view “clearly

specious.” Home Portal, 252 F.3d at 406, 409 n.29.

The Fifth Circuit specifically quoted and applied

§ 1963’s language, “when the judgment has become

final by appeal or expiration of the time for appeal,”

in ruling that the federal judgment had not lapsed

under the state sunsetting law.

The Sixth Circuit, applying federal common law,

has also ruled that time limits for the sunsetting of

federal judgments do not begin until after the man-

date issues following an appeal. Jalapeno Prop.

Mgmt., LLC v. Dukas, 265 F.3d 506 (6th Cir. 2001).

The facts in Jalapeno are very similar to those in the

present action. There, the district court denied a

motion to extend enforcement of a federal judgment,

ruling that the motion was made more than ten years

after the entry of judgment in the district court.

Relying on federal common law, the Sixth Circuit

reversed stating that the “district court improperly

calculated the running” of the state sunsetting stat-

ute because the ten-year period did not begin until

the date of the appellate court’s issuance of its man-

date affirming the federal judgment. Jd. at 514.

These Fifth and Sixth Circuit cases thus make it

clear that although state sunsetting laws have been

applied to the enforcement of federal judgments

pursuant to Federal Rule of Civil Procedure 69(a),

Custer v. McCutcheon, 283 U.S. 514, 519 (1931),’

federal common law determines the accrual date for

when a federal judgment on a federal cause of action

is ripe for enforcement and sunsetting purposes.

Congress has never placed limits on how long a

federal judgment on a federal cause of action may be

enforced, but it did set the federal standard for final-

ity of a judgment for enforcement purposes in the

comparable situation governing registration of judg-

ments in sister districts in 28 U.S.C. § 1963 and made

it clear in that context that finality for registration

was when “the judgment has become final by appeal

or expiration of the time for appeal.” By implication,

this same moment — when the appellate process has

been completed — must be the accrual standard

" This Court has never held directly that federal judgments

on federal causes of action are subject to state sunsetting laws.

In Custer, this Court stated that state time periods for enforce-

ment of judgments are not statutes of limitation. 283 U.S. at

519.

applicable via federal common law to the sunsetting

of federal judgments on federal causes of action. Cf.

TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) (the

federal Jaw accrual date may be derived “by implica-

tion from the structure and text of the statute”).

Until a judgment is final after appeal, anything a

judgment creditor collects is in jeopardy, and en-

forcement may be prohibited or stayed. See, e.g.,

Caldwell v. Puget Sound Elec. Apprenticeship and

Training Trust, 824 F.2d 765 (9th Cir. 1987) (ordering

the return of money collected on judgment reversed

on appeal); RESTATEMENT (FIRST) OF RESTITUTION § 74

(1937). So that all federal judgments on federal

causes of action will have a period of enforcement

equal to the enforcement period prescribed by state

sunsetting laws, federal common law must provide a

uniform accrual date. See Clearfield Trust Co. uv.

United States, 318 U.S. 363, 367 (1943) (applying

federal common law because application of state law

creates “exceptional uncertainty” and “would lead to

great diversity in results by making identical trans-

actions subject to the vagaries of the laws of the

several states,” and therefore “[t]he desirability of a

uniform rule is plain”). Applying § 1963’s*standard as

the federal law accrual date for sunsetting purposes

continues the borrowing of state law time periods for

enforcement but sets a uniform standard for calculat-

ing the periods. This Court reached this conclusion

long ago in Borer, and the Fifth and Sixth Circuits

have followed that approach. Consequently, the

decision of the court of appeals in the present case

must be reversed because, as a matter of federal

common law, a federal judgment on a federal cause of

action does not accrue for sunsetting purposes until

all appeals are complete or the time for appeal has

expired.

Determining when a federal judgment on a

federal cause of action is “final” and “rendered” for

enforcement purposes is quintessentially a matter of

federal law, not state law. The United States has a

“vital” interest in the enforcement of its judgments.

See Richmark Corp. v. Timber Falling Consultants,

959 F.2d 1468, 1477 (9th Cir. 1992); see also Riggs v.

Johnson County, 73 U.S. 166, 187 (1867) (execution

on a judgment is “essential” to the judicial power of

the federal courts). That interest is no more evident

than in the enforcement of the judgment in the in-

stant case for massive human rights violations. The

United States has committed itself to providing a

remedy for victims of human rights abuses. See U.N.

Convention Against Torture and Other Cruel, Inhu-

man or Degrading Treatment or Punishment, art. 14,

Dec. 10, 1884, 1465 U.N.T:S. 85. The remedies under

the Alien Tort Statute and the Torture Victims Pro-

tection Act, supra, rely on private enforcement. Appli-

cation of state law to prevent enforcement of a federal

judgment for human rights violations would eviscer-

ate the private enforcement of compensation for

human rights violations.

The doctrine of finality of judgments is well

understood under federal law. Finality requires that

all appeals be completed or the time for appeal has

run. Litigants and practitioners understand this. It

would be illogical and unfair to litigants to have “the

clock start running” on federal judgments at one time

for enforcement purposes under § 1963 and at an-

other time for sunsetting. The federal interest in

having federal judgments construed uniformly is

paramount. In Republic Natural Gas Co. v. Ohkla-

homa, 334 U.S. 62, 69 (1948), this Court stated:

The considerations that determine finality

are not abstractions but have reference to

very real interests — not merely those of the

immediate parties but, more particularly,

those that pertain to the smooth functioning

of our judicial system.

Congruency and consistency require a uniform start

date for when a federal judgment is final for sunset-

ting purposes. The federal interest outweighs any

interest individual states may have. Consistency

would also promote fairness and remove a minefield

for the unwary. Appeals to successive courts can take

years before there is finality. The recent appeal

involving the Class’s judgment on a collection matter

took more than four years. Republic of the Philippines

v. Pimentel, 128 S.Ct. 2180 (2008). Other appeals of

* In the criminal context, the federal circuits uniformly hold

that an appealed conviction is final upon issuance of the appel-

late court mandate. See, e.g., Romero v. United States, 28 F.3d

267, 268 (2d Cir. 1994) (construing Fed. R. Crim. P. 33); United

States v. Kingston, 875 F.2d 1091, 1109 (5th Cir. 1989) (Speedy

Trial Act).

federal judgments have taken longer and can even

exceed the enforcement time period in some states. It

would be a cruel irony if an unappealed federal

judgment would have a longer enforcement period

than one contested on appeal for years.

Rule 69(a) of the Federal Rules of Civil Procedure

is not inconsistent with application of a uniform

federal accrual rule. Rule 69(a) looks to state proce-

dural law but does not require application of state

procedural law when “a federal statute governs.” The

uniform accrual date identified in 28 U.S.C. § 1963

(the end of the appellate process) or the application of

this same uniform accrual date via federal common

law governs the accrual date for federal judgments.

Cf. Empire Healthchoice Assur. Inc. v. McVeigh, 547

U.S. 677, 706 (2006) (stating that federal common law

is equivalent to a federal statute). This approach is

consistent with this Court’s ruling in Byrd v. Blue-

Ridge Rural Electric Cooperative, Inc., 356 U.S. 525,

537 (1958) that, even in diversity cases, federal courts

must identify “affirmative countervailing” federal

interests raised by clairns in federal courts and bal-

ance them against state procedural rules because

“(tlhe federal system is an independent system for

administering justice to litigants who properly invoke

its jurisdiction.”

The proper accrual date in the present case was

thus when the appellate process was completed and

the mandate of the court of appeals was returned to

the district court - on January 8, 1997 — and there-

fore the extension of the Class’s judgment on June 27,

2006 was well within the ten year period of H.R.S.

§ 657-5. Accordingly, because the decision of the ccurt

of appeals conflicts with this Court’s decision in Borer

and with other decisions in the Fifth and Sixth Cir-

cuits, this Court should grant certiorari to review the

issue,

Il. This Court Should Defer or Hold Decision

on this Petition Until the Supreme Court of

Hawai’i Answers the Question of State Law

Certified to It.

In a case consolidated at trial with the present

action, the Hawai'i Supreme Court has agreed to

decide when an appealed judgment is “rendered” for

purposes of Hawai’i’s sunsetting statute, H.R.S.

§ 657-5. Pet.App.3la-32a. On September 12, 2008, a

motion to extend the judgment under H.R.S. § 657-5

was heard by the Hawai'i district court in a case

consolidated with the Class case in MDL 840. In that

case, three human rights victims with separate

judgments against the Marcos Estate sought to

extend their judgment under H.R.S. § 657-5. By order

dated September 26, 2008, the Hawai'i district court

certified the following question to the Hawai'i Su-

preme Court:

With regard to the time period for executing

a judgment in H.R.S. § 657-5, does the time

period begin after the appellate process is

completed (because the appeal may provide

relief in the form of damages not provided for

in the original judgment and because the

completion of the appellate process allows

the judgment creditor to proceed without

limitation to collect the judgment), or, in the

alternative, given that an amended judg-

ment establishes the relationship between

judgment creditor and debtor, does an

amendment or modification of the original

judgment (including an amended judgment

providing for additional relief) start the time

period anew?

Pet.App.28a-29a. The certified question would have

been fully briefed by February 2, 2009 but for a 30-

day extension of the briefing schedule obtained by the

Marcos Estate. Both the Class and Respondent

Revelstoke have filed amicus briefs in that proceed-

ing.

This Court has commented favorably on the

advantage of obtaining an answer to a certified

question about the interpretation of a state statute

from the Supreme Court of Hawai'i. See Burdick v.

Takushi, 504 U.S. 428, 431-32 (1992). This Court has

adopted the approach that:

Speculation by a federal court about the

meaning of a state statute in the absence of

prior state court adjudication is particularly

gratuitous when ... the state courts stand

willing to address questions of state law on

certification from a federal court.

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 510

(1985) (O’Connor, J., concurring) (quoted in Arizo-

nians for Official English v. Arizona, 520 U.S. 43, 77

(1997)). “Through certification of novel or unsettled

questions of state law for authoritative answers by a

State’s highest court, a federal court may save ‘time,

energy, and resources and hel[p] build a cooperative

judicial federalism.’” Arizonians for Official English

v. Arizona, id. (quoting Lehman Bros. v. Schein, 416

U.S. 386, 391 (1974)). In Elkins v. Moreno, 435 U.S.

647, 662 n.16 (1978), this Court stated that “liJn a

federal system, it is obviously desirable that ques-

tions of law which, like domicile, are both intensely

local and immensely important to a wide spectrum of

state government activities be decided in the first

instance by state courts.” “[W]Jhere as here there is en

efficient method for obtaining a ruling from the

highest court of a State we do not hesitate to avail

ourselves of it.” Jd. This Court has not infrequently

certified questions to state courts on its own. See, e.g.,

Stewart v. Smith, 534 U.S. 157 (2001). In this case,

the “efficient method” is to defer decision on the

instant Petition to allow the Hawai'i Supreme Court

to answer the certified question of unsettled state law

in MDL 840.

The court of appeals’ prediction of Hawai’i law on

what it described as a “novel” issue, Pet.App.2a, was

a critical underpinning to its ruling now under review

by this Court. The decision of the Supreme Court of

Hawai’i relied upon by the court of appeals’ did not

* International Savings & Loan Ass’n v. Wiig, 921 P.2d 117

(Haw. 1996), relied upon by the Ninth Circuit (Pet.App.14a), is

inapposite to the issue of when an appealed judgment is “rendered”

(Continued on following page)

involve an appealed judgment. Clearly, the Supreme

Court of Hawai'i would not have agreed to decide the

issue if earlier decisions of that Court had addressed

it or if that Court thought there was no merit to the

issue. If the Supreme Court of Hawai'i concludes that

the prediction of Hawaii law made by the court of

appeals was incorrect, and thus that the Hawai'i

statute should be interpreted in the same way that

comparable federal and state statutes have been

interpreted (to commence the sunsetting period when

the appellate process is completed), then the registra-

tion of the judgment in Texas and its extension by the

Hawai'i federal court would have been timely and

proper.

Deferral of action on this Petition until the

Supreme Court of Hawai’ rules could avoid a grave

injustice to the Class of human rights victims. A

positive ruling from the Supreme Court of Hawai'i

after a denial of certiorari would leave the Class

remediless. This Court regularly defers or holds

decision on certiorari petitions while awaiting the

position of a state’s highest court on specific issues.

See, e.g., Lynum uv. Illinois, 368 U.S. 908 (1961); Herb

v. Pitcairn, 324 U.S. 117 (1945). In the past, this

under H.R.S. § 657-5 because it did not involve an appealed

judgment. A recent decision of the Hawai'i intermediate appeals

court in Beecher Ltd. v. Alvarez & Marsal N.A., LLC, 187 P.3d

593 (Haw. App. 2008), Table, Text in 2008 WL 616289 at *4,

suggests that the an appealed judgment is “rendered” under

H.R.S. § 657-5 after all appeals are final.

Court has found “puzzling” the Ninth Circuit’s ten-

dency not to utilize the certified question method to

obtain an authcritative answer to an unsettled ques-

tion of state law. Arizonans for Official English, 520

U.S. at 77.

Since a decision by the Hawai'i Supreme Court

on this “novel” issue of state law is expected shortly,

this Court should defer or hold decision on the Peti-

tion until the Hawaii Supreme Court answers the

certified question.

III. By Ignoring Rule 58(b), the Court of Ap-

peals Committed a Fundamental Error of

law in Assuming the District Court’s Febru-

ary 3, 1995 Order was the Final Judgment

for the Class and Premising Intervention on

that Error.

The court of appeals erred in assuming the

February 3, 1995 Order was a final judgment

(Pet.App.14a), even though it is apparent from the

district court docket that a Rule 58(b) final judgment

was not entered by the clerk of the court until De-

cember 6, 1995. This error is significant because the

Class registered its judgment in the federal court for

the Northern District of Texas in April 2005, well

within ten years after the December 6, 1995 docket

entry. The registration in Texas was thus valid under

any possible interpretation of state and federal law,

and Revelstoke’s intervention in the Hawai'i federal

court was improper because it had no cognizable

interest that was impaired by that court’s extension

of the Class’s judgment. The Class’s motion to extend

its judgment in Hawai’i would not affect the status of

the Class’s judgment registered in Texas because,

once properly registered in Texas, that judgment

stood on its own under 28 U.S.C. § 1963. As the court

of appeals below readily acknowledged, the judgment

registered in Texas “is the functional equivalent of

obtaining a new judgment in the registration court.”

Pet.App.17a. Therefore, the critical issue under Texas

law was whether the Class’s judgment in Texas was

registered in Texas within ten years of the Hawai'i

district court’s Rule 58(b) final judgment. See Tex.

Civ. Prac. & Rem. Code § 16.066(a) (foreign judgment

must be registered within 10 years). If registration

occurred within ten years, then intervention under

Rule 24 was improper and the entire decision of the

court of appeals must be vacated.

The Hawai'i Supreme Court case relied upon in

the court of appeals’s opinion, Jnternational Savings

& Loan Ass’n v. Wiig, 921 P.2d 117 (Haw. 1996),

utilized the date final judgment was entered in the

Hawaii trial court as the “rendered” or accrual date

for H.R.S. § 657-5, because no appeal was taken in

that case. Assuming the applicability of H.R.S. § 657-

5 to the Class’s federal judgment (and assuming that

the time does not begin to run after exhaustion of

appeals), the applicable accrual date would be the

entry of a final judgment pursuant to Rule 58(b). The

court of appeals gave no consideration to whether the

February 3, 1995 order was a “final judgment” pursu-

ant to the requirements of Rule 58. In fact, no final

judgment was entered for the Class until December 6,

1995 when the clerk of the Hawai’ district court

signed and entered judgment in the consolidated

case." Moreover, the district court has ruled that final

judgment in MDL 840 was not entered until Decem-

ber 6, 1995, and that ruling is the law of the case. The

district court stated “[a] final judgment as to all

consolidated actions in MDL 840 pursuant to FRCP

58 was entered by the Clerk of the Court on Decem-

ber 6, 1995.” Pet.App.29a.

There could be no Rule 58(b) final judgment for

the Class until judgments were also entered in the

other cases consolidated for trial with the Class case.

That occurred after other orders, also denominated

“Final Judgments,” were entered in the consolidated

cases and after the district court stated formally that

“judgment shall be entered for plaintiffs.” In re Fer-

dinand E. Marcos Human Rights Litig., 910 F. Supp.

at 1469. The pertinent docket entries are conclusive

on this issue:

° The Judicial Panel on Multidistrict Litigation consoli-

dated five cases (both class and individual) against the Marcos

Estate by Order dated June 5, 1990 in MDL 840. The cases were

consolidated for trial by the trial judge, and the verdict for

punitive damages was common to all the cases. See In re Estate

of Ferdinand E. Marcos Human Rights Litig., 25 F.3d 1467, 1469

(9th Cir. 1994); Ralph Steinhardt, Fulfilling the Promise of

Filartiga: Litigating Human Rights Claims Against the Estate of

Ferdinand Marcos, 20 Yale J. Int’l L. 65, 92 (Winter 1995)

(detailing the consolidated cases).

1995

Jan. 18

Jan. 20

Feb. 3

Mar. 14

Aug. 11

Nov. 30

Dec. 6

Entry

“Verdict — Class Action — Cv.

Nos. 86-0390-R & 86-033-R...”

“Special Verdict — Cv. Nos. 90-

670-R, 90-671-R, 87-138-R, 86-

225-R...”

“Final Judgment — on behalf of

Plaintiffs” [for the Class]

“Final Judgment — Final Judg-

ment is entered in favor of 21

direct action pltfs...”

“Final Judgment — Nos. Cv. 86-

0225 and Cv. 87-0138 — Final

Judgment entered pursuant to

FRCP 58 in favor of plaintiffs

Jaime Piopongco and Estate of

Francisco Sison...”

“Opinion [Relates to All Ac-

tions] ... Judgment should be

entered for Plaintiffs ...”

“Judgment — entered pursuant

Signatory

Real

Chinn/

to the “Opinion and Order,” Nakamura”

filed on November 30, 1995 (cc:

all parties) [Relates to All

Actions]”

'' Mr. Chinn was the Clerk of the United States District

Court for the District of Hawai'i, and Mr. Nakamura was the

chief docketing clerk in the Clerk’s office.

Dec. 13 Order — severing claims of Real

Buncio, Socco and Fabic

Dec. 13 Final Judgment — [Re: Cv. 90- Real

670-R and Cv. 90-671-R] in favor

of Buncio, Socco and Fabic”™*

1996

Jan.8 “Final Judgment — in favor of Real

these 16 action plaintiffs ...”

The ruling of the court of appeals is directly

contrary to this Court’s decision in United States v.

Indrelunas, 411 U.S. 216 (1973). There, this Court

held that Rule 58 means what it says: “every judg-

ment shall be set forth on a separate document”

signed and entered by the clerk. Jd. at 222. The

purpose of Rule 58 was to make the date of entry of

judgment mechanical to avoid “uncertainties” and

“spawn[ ] protracted litigation.” Jd. Furthermore,

Rule 58 explicitly conditions entry of final judgment

on compliance with Rule 54(b) which provides in

pertinent part:

... any order ... that adjudicates fewer than

all the claims or the rights and liabilities of

fewer than all the parties does not end the

action as to any of the claims or parties and

may be revised at any time before the entry

” Although titled “Final Judgment,” the orders of Dec. 13

and Jan. 8 are amended judgments since the March 14 order for

21 plaintiffs included Buncio, Socco, Fabic and the “16 action

plaintiffs.”

of a judgment adjudicating all the claims and

all the parties rights and liabilities.

Fed. R. Civ. P. 54(b) (emphasis added). Rule 54(b)

further provides that:

... the court may direct entry of a final judg-

ment as to one or more, but fewer than all,

claims or parties only if the court expressly de-

termines that there ts no just reason for delay.

Id. (emphasis added). In the Hawai'i MDL litigation

there was no motion for a Rule 54(b) determination

and no such express determination by the court. In

the Ninth Circuit, compliance with Rule 54(b) is a

sine qua non for entry of final judgment under Rule

58. Huene v. United States, 743 F.2d 703, 705 (9th Cir.

1984) (“where an order disposes of only one of two or

more cases consolidated at the district court level, the

order is not appealable under 28 U.S.C. § 1291 absent

a Rule 54(b) certification”). The Supreme Court of

Hawai'i specifically adopted the rule in Huene. See

Leslie v. Estate of Tavares, 122 P.3d 803, 808 (Haw.

2005). In Reiter v. Cooper, 507 U.S. 258, 270 (1993),

this Court vacated a judgment because the lower

court failed to make the “express determination”

required by Rule 54(b) for entry of judgment.

Therefore, consistent with Rules 54(b) and 58(b),

the separate document titled “Judgment” signed, filed

and entered by the Clerk on December 6, 1995 is the

operative document finalizing the jury verdict in

favor of the Class as well as finalizing the jury ver-

dicts as to all other parties and claims. See also

Jalapeno Prop. Mgmt., LLC v. Dukas, supra. (compli-

ance with Rule 54(b) is a prerequisite to the running

of a state sunsetting period). To put it in the language

of this Court’s Borer decision, the judgment was not

in a form to be enforced until December 6, 1995.

The Class registered its judgment in the Northern

District of Texas on April 4, 2005 pursuant to 28

U.S.C. § 1963, well within ten years of the December

6, 1995 “Judgment” signed and entered by the Clerk

of Court in Hawai'i in MDL 840. Registration imme-

diately rendered it a judgment of the Texas district

court. Home Portal Rentals, Inc., 252 F.3d at 4085.

Therefore, Revelstoke lacked “a significant protect-

able property interest” in the Hawai'i judgment

within the meaning of Rule 24 because its property

rights were solely impacted by the Texas judgment,

not the Hawai’i judgment. Because the court of ap-

peals’ error is apparent on the record, this Court

should simply vacate that court’s opinion and remand

the case with instructions to affirm the decision of the

district court in lieu of granting certiorari.

CONCLUSION

For all the foregoing reasons Petitioners respect-

fully urge this Court (1) to defer consideration of this

Petition until the Hawai’i Supreme Court has ruled

on the certified question of state law central to this

appeal, and (2) then grant certiorari to review the

issues presented. In the alternative, this Court

should vacate the court of appeals opinion and re-

mand the case with instructions to affirm the decision

of the district court.

Respectfully submitted,

RoBErT A. SwIFT

Counsel of Record

CRAIG W. HILLWIG

KOHN, SwIFrT & GRAF, P.C.

One South Broad Street

Suite 2100

Philadelphia, PA 19107

(215) 238-1700

SHERRY P. BRODER

JON M. VAN Dyker

841 Bishop Street

Suite 800

Honolulu, HI 96813

(808) 531-8411

Counsel for Petitioners

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: ESTATE OF FERDINAND E.

MARCOS HUMAN RIGHTS LITIGA-

TION,

CELSA HILAO,

Plaintiff-Appellee, No. 06-16301

D.C. No.

MDL-00840-MLR

OPINION

ESTATE OF FERDINAND MARCOS,

Defendant-Appellee,

REVELSTOKE INVESTMENT

CORPORATION, INC.

Applicant for Intervention

and Appellant.

Appeal from the United States District Court

for the District of Hawaii

Manuel L. Real, District Judge, Presiding

Argued and Submitted

June 17, 2008 — Honolulu, Hawaii

Filed July 31, 2008

Before: Alfred T. Goodwin, Pamela Ann Rymer,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Rymer

COUNSEL

Eugene D. Gulland (argued) and Richard A. Jones,

Covington & Burling LLP, Washington, D.C., for the

proposed-intervenors-appellants.

Jon Van Dyke, Honolulu, Hawaii, (argued); Robert A.

Swift, Kohn, Swift & Graf, P.C., Philadelphia, Penn-

sylvania, for the appellee.

OPINION

RYMER, Circuit Judge:

This appeal requires us to consider a novel

situation involving the registration of a federal judg-

ment. In short, the judgment was rendered in the

United States District Court for the District of Ha-

waii and registered in the United States District

Court for the Northern District of Texas, where the

prevailing plaintiff sought to enforce it against a non-

party, Texas defendant. The defendant in the Texas

enforcement action moved to dismiss on the ground

that the judgment was not timely registered because,

under Texas’s borrowing statute, the Hawai'i “statute

of limitations” for enforcing judgments applies and

under it, the judgment had expired. This prompted

the plaintiff to ask the rendering court to declare that

the judgment was live and, in any event, to extend it,

which the district court did. Meanwhile, the collection

defendant moved to intervene in the extension pro-

ceeding, which the district court did not allow, and

then to appeal the extension, which the court also did

not allow. We conclude that the party against whom

enforcement was sought had a significant protectable

interest at stake that gave it the right to be heard in

the extension proceeding, and to appeal. Having

considered the intervenor’s arguments on the merits,

we also conclude that the district court erred in

purporting to extend the judgment. Accordingly, we

reverse the orders denying intervention, and vacate

the order granting extension.

In March, 1986, a class of human rights victims

whose lead plaintiff was Celsa Hilao brought suit in

the District of Hawaii against Ferdinand E. Marcos

and his estate. This action became part of a multidis-

trict proceeding, Estate of Ferdinand E. Marcos

Human Rights Litigation, MDL 840, over which the

transferee judge, Honorable Manuel L. Real, pre-

sided. A judgment was entered in Hilao’s favor on

February 3, 1995 (the MDL 840 Judgment). In it,

the court retained jurisdiction. The MDL 840 Judg-

ment was appealed and affirmed, Hilao v. Estate of

Marcos, 103 F.3d 767 (9th Cir. 1996); our mandate

issued January 8, 1997. Before commencing the

proceedings at issue here, Hilao registered the MDL

840 Judgment in the Northern District of Lllinois in

January 1997, the Republic of the Philippines in

May 1997, and Singapore in February 2005. Hilao

then registered the MDL 840 Judgment in the North-

ern District of Texas pursuant to 28 U.S.C. § 1963,’

and filed a class action complaint April 8, 2005

against Revelstoke Investment Corporation, Inc , and

six other corporations (collectively, “Revelstoke”),

alleging that real properties to which Revelstoke

holds title in Texas are beneficially owned by the

Marcos Estate, and seeking to execute and foreclose

on those properties in partial satisfaction of the MDL

840 Judgment.

On May 9, 2006, Revelstoke notified Hilao of its

belief that the MDL 840 Judgment had expired

pursuant to Hawai'i Revised Statute § 657-5’ as

' Section 1963 provides in pertinent part:

A judgment in an action for the recovery of money or

property entered in any ... district court ... may be

registered by filing a certified copy of the judgment in

any other district ... when the judgment has become

final by appeal or expiration of the time for appeal or

when ordered by the court that entered the judgment

for good cause shown.... A judgment so registered

shall have the same effect as a judgment of the dis-

trict court of the district where registered and may be

enforced in like manner.

° HRS § 657-5 provides:

Unless an extension is granted, every judgment and

decree of any court of the State shall be presumed to

be paid and discharged at the expiration of ten years

after the judgment or decree was rendered. No action

shall be commenced after the expiration of ten years

from the date a judgment or decree was rendered or

extended. No extension of a judgment or decree shall

be granted unless the extension is sought within ten

(Continued on following page)

applied through the Texas statute of limitations,

Texas Civil Practice & Remedies Code § 16.066(a),

which is a borrowing statute.’ HRS § 657-5 provides

that a judgment is presumed paid and discharged ten

years after it is rendered, unless the judgment is

extended within that ten-year period.

On June 5, Hilao filed a motion pursuant to

Federal Rules of Civil Procedure 69 in the MDL 840

action for a ten-year extension of the judgment.

Hilao’s memorandum in support explains that the

issue had been raised in the Texas collection litigation

and that, while Hilao believed HRS § 657-5 was not

applicable to her federal judgment, she sought an

extension out of an abundance of caution.

Revelstoke filed a motion for judgment on the

pleadings in the Texas litigation on June 15, contend-

ing that the enforcement action was barred by the

Hawai'i ten-year statute of limitations borrowed in

the forum state by Tex. Civ. Prac. & Rem. Code

§ 16.066(a). On June 19, Hilao asked the Northern

District of Texas to stay proceedings on Revelstoke’s

years of the date the original judgment or decree was

rendered. A court shall not extend any judgment or

decree beyond twenty years from the date of the origi-

nal judgment or decree. No extension shall be granted

without notice and the filing of a non-hearing motion

or a hearing motion to extend the life of the judgment

or decree.

* Tex. Civ. Prac. & Rem. Code § 16.066(a) provides: “[a]n

action on a foreign judgment is barred in this state if the action

is barred under the laws of the jurisdiction where rendered.”

motion until after the District of Hawaii ruled on

Hilao’s request to extend the judgment. A stay was

subsequently entered.

On June 22, Revelstoke moved to intervene in

MDL 840 for the limited purpose of contesting Hilao’s

motion to extend. Hilao did not oppose intervention.

At a hearing held on June 26, Judge Real first

granted Hilao’s motion to extend the judgment. After

ruling on that motion, the court considered, and

denied, Revelstoke’s request to intervene for the

purpose of opposing the motion. Its reasons, stated

from the bench, were that the court had no jurisdic-

tion over the matters in Texas; that the Texas litiga-

tion had not been sent to the District of Hawaii under

the multidistrict case; and that nothing that happens

in the District of Hawaii can affect the judgment in

Texas.

The same day the court signed a written order, in

the form proposed by Hilao; granting the extension.

The order was entered June 27, and finds that the

MDL 840 Judgment was not final until issuance of

the Ninth Circuit mandate on January 8, 1997; HRS

§ 657-5 only applies to “domestic” judgments and

federal court judgments have no expiration date;

application of HRS § 657-5 to federal court judgments

on federal causes of action would be barred by the

Supremacy Clause; and alternatively, even if HRS

§ 657-5 were applicable, good cause exists to grant an

extension to January 8, 2007 given Marcos’s pattern

and practice of secreting assets.

Revelstoke then moved to intervene for the

limited purpose of appealing the district court’s

extension order. The court denied this motion in a

written order that states: “This matter rests in the

jurisdiction of the Texas litigation.”

Revelstoke filed a timely notice of appeal from

the district court’s orders denying intervention and

granting the extension.

Intervention is governed by Fed. R. Civ. Proc.

24(a) and (b). To intervene as of right pursuant to

Rule 24(a), an applicant must show that “(1) it has a

significant protectable interest relating to the prop-

erty or transaction that is the subject of the action;

(2) the disposition of the action may, as a practical

matter, impair or impede the applicant’s ability to

protect its interest; (3) the application is timely; and

(4) the existing parties may not adequately represent

the applicant’s interest.” S. Cal. Edison Co. v. Lynch,

307 F.3d 794, 802 (9th Cir. 2002) (quoting United

States v. City of Los Angeles, 288 F.3d 391, 397 (9th

Cir. 2002) (quoting Donnelly v. Glickman, 159 F.3d

405, 409 (9th Cir. 1998) (internal quotation marks

omitted))).

Only the first requirement is seriously disputed.

For this requirement, we set out an “analytical frame-

work” in City of Los Angeles, 288 F.3d at 398. As

summarized in Southern California Edison:

An applicant has a “significant protectable

interest” in an action if (1) it asserts an in-

terest that is protected under some law, and

(2) there is a “relationship” between its le-

gally protected interest and the plaintiff’s

claims. The relationship requirement is met

if the resolution of the plaintiff’s claims ac-

tually will affect the applicant. The “interest”

test is not a clear-cut or bright-line rule, be-

cause no specific legal or equitable interest

need be established. Instead, the “interest”

test directs courts to make a _ practical,

threshold inquiry, and is primarily a practi-

cal guide to disposing of lawsuits by involv-

ing as many apparently concerned persons

as is compatible with efficiency and due

process.

307 F.3d at 803 (internal quotation marks and cita-

tions omitted.)

Revelstoke argues that it has an interest — avoid-

ing the loss of its real property in the Texas action —

that is protected under HRS § 657-5, which shields

persons such as Revelstoke from efforts to enforce

judgments that have expired. Further, in Revelstoke’s

view, the relational element is met because its motion

in the Northern District of Texas seeks to vindicate

this interest, while Hilao’s motion for an extension in

the District of Hawaii seeks to thwart it. Hilao count-

ers that Revelstoke’s interest is solely concerned with

property in Texas that is the subject of a separate

lawsuit unrelated to the subject matter of MDL 840 —

the torture, summary execution and disappearance of

thousands of Filipinos at the hands of Ferdinand

Marcos. |

We review de novo the district court’s denial of

intervention as of right, Southern California Edison,

307 F.3d at 802, and are guided by the maxim that

the requirements for intervention are broadly inter-

preted in favor of intervention. See, e.g., City of Los

Angeles, 288 F.3d at 397.

We conclude that Revelstoke had the right to

intervene on the record adduced. Hilao interposed no

objection to intervention, which implicitly conceded

the significance of a protectable interest related to

her motion to extend.* The district court ruled with-

out reference to Rule 24(a) or the factors that frame

the “significant interest” analysis. Of the reasons

given — no jurisdiction over the matters in Texas, the

Texas litigation had not been sent to the District of

Hawaii, and nothing that happens in the District of

* So, too, does her request for a stay in the collection action.

Hilao’s memorandum in support of a stay in the Northern

District of Texas states: “Instead of placing this Court in conflict

with its brother court in Hawaii, Defendants should, if they

believe their own arguments, move to intervene in the action in

Hawaii. Since it is a Hawaiian state statute at issue, presuma-

bly the Hawaiian Federal Court has more experience in inter-

preting and applying it than a Texas court. In any event, there is

no harm to the parties by staying the instant Motion until after

the Federal Court in Hawaii addresses the issue on June 26.

Depending on -e decision by the Federal Court in Hawaii,

Defendants may wish to pursue, modify or withdraw thcir

Motion.”

10a

Hawaii can affect the MDL 840 Judgment in Texas —

the first two have no relevance to intervention and

the third cannot be right. Whether the MDL 840

Judgment is alive or dead is directly at issue in the

Texas litigation. As Hilao acknowledges, it was this

question that precipitated her request in MDL 840 for

an extension, and, in turn, a request in the enforce-

ment action for a stay. Her papers in the Northern

District of Texas point out that a decision on this

issue by the District of Hawaii will effectively pre-

termit the outcome of Revelstoke’s motion to dismiss.

In these circumstances, we are satisfied that Rev-

elstoke has a significant interest that is protected by

Hawai'i law, and that is actually affected as a practi-

cal matter by the resolution of Hilao’s request for

rehef.

We are not persuaded otherwise by Hilao’s posi-

tion on appeal. She puts a good deal of weight on

United States v. Alisal Water Corp., 370 F.3d 915 (9th

Cir. 2004), where a judgment creditor tried to inter-

vene in an environmental enforcement action in

which he had no interest except for the prospect that

an award of penalties in the remedial phase might

impair his ability to collect the debt. We thought this

too remote from the core issues involved in the litiga-

tion, and in any event, believed the creditor’s interest

would not be impaired because a separate process for

approving claims was in place. However, the Alisal

scenario is quite different from the situation here. No

doubt Revelstoke’s interest (like the Alisal creditor’s

interest) would have been too distant for intervention

lla

before Hilao invoked the District of Hawaii’s jurisdic-

tion over the MDL 840 Judgment in response to

Revelstoke’s position in the Northern District of

Texas; but once Hilao sought relief with respect to the

life of the judgment in MDL 840, and a stay with

respect to the same issue in the Northern District of

Texas where it initially surfaced, Revelstoke’s conjec-

tural interest became concrete.

By the same token, we see no compelling reason

why Revelstoke cannot have a sufficient interest in

the life of the ju¢gment to intervene in a discrete

proceeding as t9 that particular issue, even though it

lacks an interest in the litigation as a whole. Alisal

recognized this precise possibility. 370 F.3d at 921-22

(observing that prior cases suggest that a party’s

interest in a specific phase of a proceeding may

support intervention at that particular stage of the

lawsuit); see also City of Los Angeles, 288 F.3d at 398-

99 (noting that an intervenor’s proteciable interest

might shift if the scope of the litigation is restruc-

tured). Revelstoke’s interest in participating in an

MDL 840 proceeding did not arise until Hilao’s mo-

tion to extend effective'y transferred the forum for

determining the life of the MDL 840 Judgment from

the Northern District of Texas to the District of

Hawaii. Absent that preemptive strike, the issue was

before the Northern Districi of Texas for decision. The

registering court could have re olved the issue itself —

in which event Revelstoke would have had a place at

the table — or elected to defer to the District of Hawaii

by staying its hand until the parties had it out before

12a

the court that had rendered the judgment — in which

case Revelstoke would also have had a say. It follows

that if Revelstoke’s interest in having a judgment lien

removed from its property enables it to contest en-

forceability of the judgment in the collection action

itself, Revelstoke is entitled to do so wherever that

issue turns out to be joined. As it turned out here,

this was in MDL 840.

Finally, Hilao suggests that Revelstoke’s interest

is not entirely impaired or impeded because the

district court’s extension order has no direct effect on

the eventual ruling of the Northern District of Texas.

While this is so with respect to the merits of the

enforcement action, her own papers suggest the

opposite with respect to the threshold issue of

whether the MDL 840 Judgment was alive at the

time ci registration. Of course we cannot say for sure

what the Northern District of Texas will do once its

stay is lifted, but Hilao’s representation to that court

manifests her belief that the registering court will

defer to the rendering court on the issue of extending

its own judgment. Hilao relies on cases where courts

have rejected intervention founded on concerns about

the stare decisis or collateral estoppel effect of a

decision, such as Bethune Plaza, Inc. v. Lumpkin, 863

F.2d 525, 531-532 (7th Cir. 1988), and Purcell uv.

BankAtlantic Financial Corp., 85 F.3d 1508, 1513

(11th Cir. 1996). But there is an important difference

between a non-party’s interest in avoiding bad prece-

dent or obtaining a favorable opinion (the situation in

Bethune) — or in influencing the outcome of another

13a

proceeding in which one has only a collateral interest

(the situation in Purcell) — and the interest that a

real party in interest has in adjudicating an issue it

has raised in one proceeding that lands in another

proceeding for disposition. In the former case, the

non-party’s interest is abstract and indirect; in the

latter case, the party’s interest is particularized and

direct.

Consequently, we conclude that Revelstoke

asserts an interest in not having its property exe-

cuted upon pursuant to a judgment that has expired;

this interest is significant, and protected by law (HRS

§ 657-5 as applied through the Texas statute of limi-

tations, Tex. Civ. Prac. & Rem. Code § 16.066(a)); and

there is a direct relationship between its legally

protected interest and Hilao’s claim in the ancillary

proceeding that the MDL 840 Judgment has not

expired. This means that Revelstoke had a right to

intervene and be heard on the merits.” We could

remand, but see no point in doing so. Revelstoke

seeks to protect its own interests, the merits are fully

briefed, and no other party in MDL 840 has any

interest in the controversy between Hilao and Rev-

elstoke. Therefore, we turn to the order extending the

MDL 840 judgment.

* Given this conclusion, we need not consider whether the

district court also erred in denying permissive intervention

under Rule 24(b).

l4a

Revelstoke argues that HRS § 657-5 means what

it says: a judgment expires within ten years unless

extended before expiration; that the Hawaii Supreme

Court said so in International Savings & Loan Ass’n

v. Wiig, 921 P.2d 117 (Haw. 1996); and that the dis-

trict court clearly erred in resurrecting the MDL 840

Judgment in 2006 after it expired in February 2005.

We agree. On its face, HRS § 657-5 plainly states that

all judgments are extinguished after ten years unless

timely renewed. The Hawai'i Supreme Court has

authoritatively declared that the burden is on the

judgment creditor to seek judicial extension of the

judgment prior to expiration of the ten-year period,

and that if she fails to secure an extension within the

ten years, “the judgment and all the rights and

remedies appurtenant to that judgment terminate.”

Wiig, 921 P.2d at 119.

Hilao does not argue to the contrary. Instead, she

defends the order on other grounds, namcly, the MDL

840 Judgment did not expire until January 8, 2007

when the Ninth Circuit’s mandate issued; the MDL

840 Judgment was renewed, and thus extended,

every time it was registered in another court; partial

collection tolled or renewed the judgment; the MDL

840 Judgment is not governed by an Hawai'i statute;

state statutes that would impede the ability of federal

courts to ensure collectability of federal judgments

based on federal causes of action cannot be enforced

because of the Supremacy Clause; the judgment

would not have lapsed in any event as it was not

l5a

“rendered” until January 8, 1997; and good cause

existed for extending the MDL 840 Judgment. In

effect, Hilao’s position is that a federal judgment is

free of state limitations and can be enforced forever.

For this she cites no authority, and nothing she

argues persuades us to accept her view.

Section 1963, the federal statute under which

Hilao registered the MDL 840 Judgment in the

Northern District of Texas for supplemental enforce-

ment proceedings, has ro limitations period. How-

ever, it does provide that a registered judgment “shall

have the same effect as a judgment of the district

court of the district where registered and may be

enforced in like manner.” Rule 69(a) is to the same

effect, providing that the procedure on execution is to

be in accordance with the procedure of the state in

which the district court is located at the time the

remedy is sought. Likewise, the Rules of Decision Act,

28 U.S.C. § 1652, requires application of state stat-

utes of limitations unless a timeliness rule drawn

from elsewhere in federal law should be applied. See

Agency Holding Corp. v. Malley-Duff & Assocs., 483

U.S. 143, 147 (1987) (so holding). This is the under-

standing upon which we, and other courts, have

proceeded in similar circumstances, looking to the

law of the registration forum for its statute of limita-

tions on enforcement of judgments. See, e.g., Duchek

v. Jacobi, 646 F.2d 415, 417 (9th Cir. 1981) (acknowl-

edging rule that state law applies to procedures for

enforcing * judgment); Marx v. Go Publ’g Co., 721

F.2d 1272, 1273 (9th Cir. 1983) (applying limitations

16a

law of the registering state); Matanuska Valley Lines,

Inc. v. Molitor, 365 F.2d 358, 359-60 (9th Cir. 1966)

(same).°

Marx and Matanuska are particularly instruc-

tive. In Marx, the plaintiff obtained a judgment

against Go Publishing in the United States District

Court for the District of Columbia which he regis-

tered, and sought to enforce, in the Centra] District of

California. Go Publishing raised a statute of limita-

ticns defense based on the California period for

enforcing judgments (ten years). We held, based on

analogous California law, that the ten-year period

runs from the time the judgment is registered, so long

as the judgment is not time-barred at the time of

registration. In so holding, we rejected an argument

that state limitations rules are inapplicable where a

district court judgment is registered under § 1963.

721 F.2d at 1273. In Matanuska, the plaintiff ob-

tained a judgment in the United States District Court

for the District of Alaska on July 26, 1956 and regis-

tered it pursuant to § 1963 in the Western District of

Washington on September 10, 1964. Registration of

the judgment was timely under the laws of Alaska,

the rendering state, where the life of a judgment is

ten years. However, under the laws of Washington,

the registering state, a foreign judgment was not

° See also, e.g., Stanford v. Utley, 341 F.2d 265, 266 (8th Cir.

1965) (looking to forum law for the limitations period on en-

forcement of judgments); Home Port Rentals, Inc. v. Int'l Yacht-

ing Group, 252 F.3d 399, 406 (5th Cir. 2001) (same).

17a

enforceable or registrable after the expiration of six

years following its entry. We held that enforcement of

the registered judgment was barred by the Washing-

ton statute of limitations. 365 F.2d at 360.

Relying on Duchek, Hilao posits that state law

cannot divest a federal district court of jurisdiction to

enforce its judgment. However, Duchek is inapposite.

The Ducheks had obtained a judgment in the Central

District of California, sued to set aside an allegedly

frauduient transfer of assets, and obtained another

judgment that they sought to enforce. The defendants

argued that because state law applied under Rule

69(a), the court lacked jurisdiction in light of a state

venue statute that required u petition to enforce a

judgment to be filed in the state superior court. We

held that state legislation cannot withdraw federal

jurisdiction. But this is neither the purpose, nor the

effect, of applying the forum’s statute of limitations

for enforcing a judgment. It does not follow from the

principle that state law cannot oust a federal court of

subject matter jurisdiction, that no state law cutting

off or curtailing a right — here, to enforce a judgment

— may ever apply.

Stating the same thing somewhat differently,

Hilao proposes that a federal judgment is renewed,

and thereby extended, every time it is registered

under § 1963 in another court. We agree with part of

what she says: registering a judgment under § 1963 is

the functional equivalent of obtaining a new judg-

ment of the registration court. See, e.g., Matanuska,

365 F.2d at 360; Marx, 721 F.2d at 1273. The effect is

18a

to allow that judgment, i.e., the newly registered

judgment, to be enforced for the period allowed by the

law of that forum, i.e., the state of registration, if the

judgment were live, and thus registerable, at the time

when it was registered. However, Hilao points to no

authority suggesting that registration in one district

— even if accomplished when the judgment was live —

“extends” the statute of limitations in all districts.

Hilao maintains that the clock starts running on

federal judgments after the time for appeal has

expired. While this is true for many purposes such as

finality of judgments, see, e.g., Calderon v. United

States District Court, 128 F.3d 1283, 1286 n.2 (9th

Cir. 1997), overruled on other grounds by 163 F.3d 530

(9th Cir. 1998), abrogated on other grounds by Wood-

ford v. Garceau, 538 U.S. 202 (2003), the question

here is the judgment’s longevity. HRS § 657-5 pro-

vides that the limitations period begins to run on “the

date the original judgment or decree was rendered.”

It does not say ten years from the date of entry plus

however much time it takes to appeal.’ Consistent

with Hawai’i’s policy that judgment creditors have

ten years to attempt to collect from the date the

judgment is rendered, enforcement of the MDL 840

Judgment began immediately.

" HRS § 657-5 caps the life of a judgment (properly ex-

tended) at twenty years, running from the same point: “A court

shall not extend any judgment or decree beyond twenty years

from the date of the original judgment or decree.”

19a

Neither Borer v. Chapman, 119 U.S. 587 (1887),

nor Home Port, upon which Hilao rely, requires a

different result. In Borer, the Court was concerned

with a judgment entered nunc pro tunc whose terms

were changed from the original judgment, and con-

cluded that the statute of limitations did not begin to

run until the judgment was in a form to be enforced.

119 U.S. at 602. Home Port noted that if a judgment

is properly registered in one state, 1t may be enforced

within the limitation period of that state even though

the time for enforcement has run in the rendering

state. In this context, the court characterized as

“clearly specious” a contention that the rendering

state’s limitations period (which the defendant

counted from the date of entry) applied. 252 F.3d at

406. While the statement can be read as critical of

both contentions, i.e., that the rendering state’s

statute of limitations applied (there is no suggestion

in Home Port that the registering state borrowed the

rendering state’s statute) and that the rendering

state started counting from entry instead of after

appeal, the court does not purport to adopt a rule that

would be pertinent here.

Hilao contends, and the district court’s order

states, that HRS § 657-5 applies only to “domestic”

judgments rendered by Hawai'i state courts. How-

ever, when a federal court borrows the most analo-

gous state statute of limitations as a matter of federal

law, the loan cannot turn on what the “most analo-

gous” state statute says about its own applicability.

See, e.g., Home Port Rentals, 252 F.3d at 403 n.5

20a

(holding that a Louisiana statute of limitations which

referred only to a “‘money judgment rendered by a

trial court of this State’” applied to judgments ren-

dered by a federal district court in Louisiana); Stan-

ford, 341 F.2d at 266 & n.2 (concluding that a

Mississippi statute of limitations which referred to

“alll actions founded on any judgment or decree

rendered by any court of record in this state’” applied

to a judgment rendered by a federal court in Missis

sippl).

Alternatively, Hilao submits that the running of

the Hawai'i period of limitations was tolled by her

collection efforts, and that in any event, good cause

existed to extend the judgment for ten years because

Marcos had a pattern and practice of fraudulently

secreting his assets. Whether or not this is so, the

extension was not sought before the MDL 840 Judg-

ment expired. HRS § 657-5 contains no provision for

revival, and the Hawai’i Supreme Court has held that

its time limits are absolute. Wiig, 921 P.2d at 120

(ruling that the existence of other enforcement ac-

tions does not toll the time limits mandated by HRS

§ 657-5).

We conclude that the district court erred in

extending the judgment pursuant to a request that

was not made within ten years after the original

judgment was rendered. None of the proffered rea-

sons for bypassing this rule of Hawai'i law is convinc-

ing. Accordingly, having reversed the orders denying

intervention as of right, and to appeal, and having

considered the merits of the relief Hilao sought and

2la

obtained in the District of Hawaii, we vacate the

court’s order of June 27, 2006.

REVERSED IN PART; VACATED IN PART.

22a

APPENDIX B

ROBERT A. SWIFT

Lead Counsel

Kohn, Swift & Graf, P.C.

1 South Broad Street, Suite 2100

Philadelphia, PA 19107 |

Telephone No: (215) 238-1700

rswift@kohnswift.com

Sherry P. Broder 1880

Attorney at Law - A Law Corporation

Davies Pacific Center

841 Bishop Street, Suite 800

Honolulu, Hawaii 968).

Telephone No: (808) 531-1411

broder@hawaii.rr.com

Attorneys for Plaintiff Class

IN THE UNITED “TATES DISTRICT COURT

DIST’? CT OF HAWAII

Ferdinand E. Marcos,

and

DeVera et al v. Estate

of Ferdinand E. Marcos.

(Filed June 27, 2006)

IN RE:

MDL No. 840

ESTATE OF FERDINAND No. 86-390

E. MARCOS HUMAN No. 86-330

RIGHTS LITIGATION

THIS DOCUMENT

RELATES TO:

Hilao et al v. Estate of | ORDER

}

23a

ORDER

The Court has carefully reviewed the Class

Plaintiffs’ Motion for Extension of Judgment and the

record in this case. The Court finds as follows:

1. The Judgment rendered in the above action

on February 3, 1995 was not final until issuance of

the mandate of the Ninth Circuit was spread on the

record of this Court on January 8, 1997.

2. Hawaii Revised State 657-5 provides in

“[u]nless an extension is granted, every judgment and

decree of any court of the state shall be presumed

paid and discharged at the expiration of ten years

after the judgment or decree was rendered.” The

statute also provides that a court may extend the ten

year period for an additional ten years.

3. HRS 657-5 only applies to “domestic” judg-

ments, that is, judgments rendered by Hawaii state

courts. The federal Judgment rendered in this action

was based on a federal cause of action. Federal court

judgments have no expiration date.

4. Application of HRS 657-5 to federal court

judgments on federal causes of action would be

barred by the Supremacy Clause of the United States

Constitution. Congress created a statutory regime for

entry of and transfer of federal court judgments

which would be impeded by HRS 657-5.

5. In the alternative, if HRS 657-5 were appli-

cable, there is good cause to grant an extension of the

Judgment. The Judgment will not be ten years old

24a

until January 8, 2007. The Judgment is hereby

extended for ten years from its tenth anniver-

sary. This Court and the Ninth Circuit have held that

Marcos had a pattern and practice to fraudulently”

secrete his assets and use off-shore corporations and

cronies to hold title to property. Plaintiffs have exer-

cised due diligence and exceptional efforts in attempt-

ing to identify assets to satisfy the judgment. This

Court has held Imelda Marcos and Ferdinand R.

Marcos in contempt for violating the terms of the

permanent injunction by transferring assets. Marcos

family members have failed to appear for deposition

or produce documents regarding the identification

and collection of assets to satisfy the Judgment.

6. The February 1999 Settlement Agreement is

unaffected by this Order.

Dated: Honolulu, Hawaii, June 26, 2006

/s/ Real

The Honorable Manuel Real

25a

APPENDIX C

MINUTES

CASE NUMBER: CIVIL NO. 03-11111MLR

CASE NAME: In Re: MDL 840 Marcos, et al.

ATTYS FOR PLA: Robert Swift

Sherry Broder

John Van Dyke

ATTYS FOR DEFT: Thomas Benedict

INTERPRETER:

JUDGE: Manuel L. Real REPORTER: Debra Chun

DATE: 06/26/2006 TIME: 10:25-10:40

COURT ACTION: EP: Joint Motion for Attorney

Fees and Reimbursement. of Expenses by Plaintiff’s

Counsel. Clarification to be submitted to the Court

via memorandum regarding services and litigation

costs in Singapore and meetings with government

officials. Motion Granted. Swift to prepare Order.

Class’ Motion for Extension of Judgment. Motion

Granted.

Ex Parte MOTION for Hearing re MOTION to Inter-

vene and Extension of June 26 Hearing Date on Class

Motion for Extension of Judgment by B.N. Deveop-

ment Co., Inc., Ellesmere Investment Corp., Inc.,

Jason Development Co., Inc., Langley Investment

Corp., Inc., Pender Investment Corp., Inc., Revelstoke

26a

Investment Corp., Inc., Vernon Investment Corp., Inc.

Motion Denied and terminated.

MOTION to Intervene by B.N. Development Co., Inc.,

Ellesmere Investment Corp., Inc., Jason Development

Co., Inc., Langley Investment Corp., Inc., Pender

Investment Corp., Inc., Revelstoke Investment Corp.,

Inc., Vernon Investment Corp., Inc. Motion Denied

and terminated.

Submitted by: Warren N. Nakamura, Courtroom

Manager

27a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

In Re: MDL NO. 840

ESTATE OF ri

FERDINAND E. MARCOS 0. 86-

HUMAN RIGHTS LITIGATION | ORDER

(Filed Jul. 3, 2006)

THIS DOCUMENT

RELATES TO:

Hilao, et al. v. Estate of

Ferdinand E. Marcos,

And

De Vera, et al. v. Estate

of Ferdinand E.. Marcos

ORDER

After consideration of Revelstoke Investment

Corp., Inc.’s Motion to Intervene for Purpose of Ap-

peal, and all other arguments or briefing thereon,

IT IS HEREBY ORDERED that Revelstoke

Investment Corp., Inc.’s Motion to Intervene for

Purpose of Appeal is granted [denied. This matter

rests in the jurisdiction of the Texas litigation. ]

Dated: Honolulu, Hawaii, June 27, 2006.

IT IS SO ORDERED.

/s/ Real

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APPENDIX E

IN THE SUPREME COURT OF HAWADPI

nese | MDLNO. 840

—. MARCOSHUMAN ! CERTIFIED

RIGHTS LITIGATION | GUESTION

MDL No. 840 | (Filed Sep. 26, 2008)

THIS DOCUMENT

RELATES TO ALL

ACTIONS

The United States District Court for the District

of Hawai'i sends its greetings to the Supreme Court

of Hawai'i. In the above matter the District Court has

determined that there is a question concerning the

law of Hawai'i which is determinative of the cause

and there is no clear controlling precedent in the

Hawai'i judicial decisions. The question is:

With regard to the time period for executing

a judgment in H.R.S. § 657-5, does the time

period begin after the appellate process is

completed (because the appeal may provide

relief in the form of damages not provided for

in the original judgment and because the

completion of the appellate process allows

the judgment creditor to proceed without

limitation to collect the judgment), or, in the

alternative, given that an amended judg-

ment establishes the relationship between

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judgment creditor and debtor, does an

amendment or modification of the original

judgment (including an amended judgment

providing for additional relief) start the time

period anew?

Facts pertinent to this question are:

l. The Plaintiffs, the Estate of Francisco Sison

and Jaime Piopongco, obtained individual judgments

for damages against the Estate of Ferdinand E.

Marcos on August 11, 1995 for human rights abuses.

On that same day judgment was entered against

Flaintiff Jose Maria Sison and in favor of the Estate

of Ferdinand E. Marcos.

2. A final judgment as to all consolidated ac-

tions in MDL 840 pursuant to FRCP 58 was entered

by the Clerk of the Court on December 6, 1995.

3. Plaintiffs Jose Maria Sison and Piopongco

appealed their judgments and obtained a reversal

which resulted in the entry of an amended final

judgment in their favor on October 3, 1997. Sison v.

Estate of Marcos, 1998 WL 789405 (9th Cir. 1998).

The judgment was not entered nunc pro tunc.

4. On October 2, 2007 all three plaintiffs filed a

motion to extend their judgments pursuant to Haw.

Rev. Stat. 657-5.

5. Following hearing on September 12, 2008,

the United States District Court decided to certify to

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the Hawai'i Supreme Court the above stated issue of

Hawai'i law.

BY THE COURT:

/s/ Real

MANUEL L. REAL

MDL 840 Transferee Judge

CERTI*IED AS A TRUE AND CORRECT

DOCUMENT OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF HAWAII

SUE BEITIA

CLERK OF THE COURT

[SEAL]

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APPENDIX F

NO. 29372

/ IN THE SUPREME COURT

OF THE STATE OF HAWAII

ESTATE OF FRANCISCO SISON,

JOSE MARIA SISON, and JAIME PIOPONGCO,

Plaintiffs-Appellants,

vs.

ESTATE OF FERDINAND E. MARCOS,

Defendant-Appellee.

ORIGINAL PROCEEDING

ORDER ON CERTIFIED QUESTION

(By: Moon, C.J., Nakayama, and Duffy, JJ.,

Intermediate Court of Appeals Judge Leonard,

in place of Levinson, J., recused, and

Intermediate Court of Appeals Judge Fujise,

in place of Acoba, J., recused)

(Filed Oct. 16, 2008)

Upon consideration of the order of the United

States District Court for the District of Hawai'i

requesting the Supreme Court of the State of Hawai’i

to answer the certified question, it appears that the

question is amenable to answer by this court pursu-

ant to Hawai'i Rules of Appellate Procedure (HRAP

Rule 13). Therefore,

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IT IS HEREBY ORDERED, without conclusively

determining whether this court will answer the

question, that:

1. Pursuant to HRAP Rule 28(e), plaintiffs

Estate of Francisco Sison, Jose Maria Sison, and

Jaime Piopongco are designated the appellants for

purposes of this proceeding and shall pay the re-

quired filing fee for an original proceeding in this

court. |

2. Defendant Estate of Ferdinand E. Marcos is

designated the appellee for this proceeding.

3. Pursuant to HRAP Rule 13(c), Plaintiffs-

Appellants shall make all necessary arrangements

with the clerk of the United States District Court for

the District of Hawai’i to transmit the original or

certified copies of the pending federal court case to

this court. It shall be the responsibility of Plaintiffs-

Appellants to ensure that the record is received in

this court within thirty days from the date of this

order.

4. After the record is filed in the supreme court,

Plaintiffs-Appellants shall file an opening brief

within the time provided by HRAP Rule 28(b). The

opening brief shall conform to the format and content

requirements of HRAP Rule 28, insofar as applicable.

A statement of jurisdiction pursuant to HRAP Rule

12.1 is not necessary.

5. Thereafter, Defendant-Appellee shall file an

answering brief within the time provided by HRAP

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Rule 28(c). The answering brief shall conform to the

format and content requirements of HRAP Rule 28,

insofar as applicable.

6. Plaintiffs-Appellants may file a reply brief in

accordance with HRAP Rule 28(d).

DATED: Honolulu, Hawai'i, October 15, 2008.

/s/ Ronald T.Y. Moon

/s/ Paula A. Nakayama

/s/ James E. Duffy, Jr.

/s/ Katherine G. Leonard

/s/ Alexa D.M. Fujise

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APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: ESTATE OF No. 06-16301

FERDINAND E. MARCOS D.C. No

HUMAN RIGHTS LITIGATION, MDL-00840-MLR

District of

ciated ail Hawaii Panakele

Plaintiff-Appellee, ORDER

ing (Filed Sep. 11, 2008)

ESTATE OF

FERDINAND MARCOS,

Defendant-Appellee.

Before: GOODWIN, RYMER, and IKUTA, Circuit

Judges.

The panel has unanimously voted to deny appel-

lees’ petition for rehearing. Judge Rymer and Judge

Ikuta voted to deny the petition for rehearing en banc

and Judge Goodwin recommended denial of the

petition for rehearing en banc. The petition for re-

hearing en banc was circulated to the judges of the

court, and no judge requested a vote for en banc

consideration.

This petition for rehearing and the petition for

rehearing en banc are DENIED.

iain

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