Opposition Brief — Hilao v. Revelstoke Investment Investment Investment Corp., Inc. (No. 08-1019)

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22 pe FILED

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. a> MAR 10 2009

No. 08-1019 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

CELSA HILAO, ET AL.,

Petitioners,

Vv.

REVELSTOKE INVESTMENT CORPORATION, INC.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT

IN OPPOSITION

Eugene D. Gulland

Counsel of Record

Neil K. Roman

Joshua D. Greenberg

Covington & Burling LLP

1201 Pennsylvania Ave., NW

Washington, D.C. 20004

(202) 662-6000

March 10, 2009 Counsel for Respondent

QUESTION PRESENTED

Whether the court of appeals correctly applied

Hawaii law in determining that a finai judgment

rendered by the United States District Court for the

District of Hawaii expired and became unenforceable

where no extension of the judgment was sought or

granted within the ten-year lmitations period

imposed by Haw. Rev. Stat. § 657-5.

RULE 29.6 CORPORATE DISCLOSURE

STATEMENT

Respondent Revelstoke Investment Corp., Inc.

is a privately held Delaware corporation. No publicly

held company owns 10% or more of its stock. Its

parent company is Western Pacific Investment Corp.

II.

ITT.

TABLE OF CONTENTS

THE STATE LAW ISSUE DECIDED BY

THE COURT OF APPEALS WARRANTS

NEITHER REVIEW NOR “Di@FERRAL.”.... 12

THE QUESTIONS PRESENTED IN THE

PETITION WERE NOT PROPERLY

RAISED OR PASSED UPON BELOW......... 18

THE FEDERAL LAW ISSUES RAISED

IN THE PETITION INVOLVE NO

CONFLICT AMONG THE COURTS OF

APPEALS OR WITH DECISIONS OF

Fe OEE eesti sstitp ited tgactdasianindiacecenes 21

A. The Decision Below Does Not Conflict

With Any Federal Decision Addressing

Time Limitations On the Enforceability

of Federal Court Judgments. .................. 21

B. Petitioners’ New Position That The

1995 Class Judgment Is Not A Final

Judgment Is Baseless, Contradicts

Their Longstanding Position, Is

Supported By No Federal Appellate

Decision, And Would Not Change The

Result Even If It Were Correct. .............. 27

Fe Ee sisidciccamadee Sean nate 32

lil

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Bankers Trust Co. v. Mallis,

i es Fiabe svachdewxceredudnsenvinexonsdecevanescs 30

Borer v. Chapman,

ee Eg Farsi ses povcentnyonnceaciuvccdatins 23, 24

Herb v. Pitcairn,

I ee ee Oe NO goin sik csicencn vitsuntncnctcseounn 14, 15

Hilao v. Estate of Marcos,

95 F.3d 848 (Oth Cir. 1996) ............0..0000.c00000- 27, 28

Hilao v. Estate of Marcos,

103 F.3d 767 (9th Cir. 1996)..................... 4, 27, 28

Hilao v. Estate,

103 F.Sa 768 (th Cir. 1986).......................... 9,14

Hoover v. Ronwin,

Re NN oc cvn inc dadesss axhvnkechcieisdoivouscum 19

Huddleston v. Dwyer,

Be ee IO i as cdsccasesvcscencsasanadnaduinodsesas 13

Fuene vu. United States,

TOS F.BG TOG CU Cit. LGB) onincscccsccnccccccncscccescsss. 32

Jalapeno Property Management, LLC v.

Dukas, 265 F.3d 506 (6th Cir. 2001)....... 23, 26, 27

Lynum uv. Illinois,

Be Sie te EE sikehGitrisGritctictoncecdeean 14, 15

McMillian v. Monroe County, Alabama,

Ne UT ici cccausecciceveravsernncdsesasdvonasenaas

Picazo v. Alameida,

BG FO O71 1 EGER Civ. ZODKE) ........cccsccccesecscccesccess

Reiter v. Cooper,

Be re BN vecanadsscnetensstiecsssansccccesonuvvaasonts

Romero v. Allstate Corp.,

SOG FS S181 (Fe. Cir: SODB)...0 nc ccciccccccccssccsseesss

Talk of the Town v. Department of Finance &

Business Servtices,

S00 © .56 G60 (Oth Cir. ZOOS) ...........ccccccoscocccocceees

Tolle v. Carroll Touch,

ee ee By BE 6 1

United States v. Indrelunas,

OE yy Be Ce vivekckv ccs ccdecnadcvenicdee Pid. aes

United States v. S.A. Empresa de Viacao Aerea

Rio Grandense (Varig Airlines),

NN a igs cas ccna vecndeenndidaneaneian

United States v. United Foods, Inc.,

gg 5 SEER SE Re eS er oe

Wallace v. Kato,

I ass ssc nseknvecncesnelinavbesensncecales

Wills v. Texas,

ee i I NED 2, soca bdaenpanawsnanepanasenbeese

Yee v. City of Escondido,

Re iy EE iavicd cdsinsiecscncepaseonvscncseevssanencben

Zobrest v. Catalina Foothills School District,

sa ce tueeneuiicundien 18

STATE CASES

Andrews v. Roadway Express,

473 F.3d 565 (5th Cir. 2006)............... Sc eel apes 20

Beecher Limited v. Alvarez & Marsal North

America, LLC, No. 28011, 2008 WL

616287, 187 P.3d 593 (Haw. App. Mar. 7,

aoa nbs ulbscegprenivaaainniane 17

Brooks v. Minn,

836 P.2d 1081 (Haw. 1992)................. Ser meee ee 15, 16

Estate of Roxas v. Marcos, No. 28702, --- P.3d -

--, 2009 WL 352878 (Haw. Ct. App. Feb. 12,

2009), mot. for reconsideration denied, 2009

WL 550882 (Haw. Ct. App. Mar. 2, 2009).......... 17

Home Port Rentals, Inc. v. International

Yachting Group, Inc.,

252 F.3d 399 (Sth Cir. 2001) ................0s0000. passim

In re Estate of Marcos,

963 P.2d 1124 (Haw. 1998) ....cccccccccccscesceceeees 27, 28

International Savings & Loan Ass'n v. Wiig,

921 P.2d 117 (Haw. 1996) ..................... 7, 8, 16, 17

Matanuska Valley Lines, Inc. v. Molitor,

365 F220 S58 (OG Cir. 1GGG) .......c.cscoscsscvccsescsvcecs 20

Matsuura v. E.I. Du Pont de Nemours & Co.,

Be re IE CE ain dns nce ceca sace'xsveccnencscevscncensonsneeaes 14

State v. Matavale,

EGS FB Bae CHIAW. BOOT) ccsccccncecccccocccescccsvecccscess 13

United States v. Fiorella,

869 F.2d 1425 (11th Cir. 1989) ......0000 ee. 20

DOCKETED CASES

Estate of Francisco Sison v. Estate of

Ferdinand E. Marcos, No. 29372 (Haw.

I a sesnedeviaiwenians 11

Hilao v. Estate of Ferdinand Marcos,

Civ. A. No. 86-0390 (D. Haw.)..............c0ecceeeeee 2,31

In Re Estate of Ferdinand E. Marcos Human

Rights Litigation,

PRPs PO. I CEs SEE Fesciccccseserecccesscscesessese passim

Piopongco v. Marcos,

CAV. Fi, INO. r+ LOS CD. FRAW.).0.<ccccccsccccoccsrccssccccenses 9

Sison v. Marcos,

CO, He, He MMs TER, BOW ons ccncoccceveccocescccssveccenns g

FEDERAL STATUTES

GB UI B.0. © UGDL....nccccecessscsccorscecsesonsscscecessnsscereoeees 4, 27

es te aided aide civasdi benhintueskstesinnitataciaeentatcccson 2

I, CO cit aon 5 csi esleadedssquaiaanaieminbann 22

MN Te BM nsnss nivecsbasssovesscesevrsscsvesivscass 3, 5, 24, 25

STATE STATUTES

ee. Tee, I, BE icttdicisststinitiseecicn passim

Tex. Civ. Prac. & Rem. Code § 16.066(a)................. 26

RULES

Federal Rule of Civil Procedure 58 .................. passim

Federal Rule of Civil Procedure 54.............. 26, 31, 32

Federal Rule of Civil Procedure 69 .................. passim

Hawaii Rule of Appellate Procedure 13................... 14

Hawaii Rule of Appellate Procedure 35(c)(1)........... 17

V1ll

INTRODUCTION

The court of appeals unanimously decided that

a final judgment in favor of petitioners entered in

February 1995 (the “1995 Class Judgment”) expired

in February 2005 under Haw. Rev. Stat. § 657-5,

which imposes a strict 10-year limit for enforcing

judgments that are not “extended” before expiration.

The court of appeals based its ruling on the express

terms of the Hawaii statute, decisions applying it,

and the long-accepted principle that state limitations

periods apply in the absence of a federal law

supplying a deadline.

Petitioners identify no issue worthy of this

Court’s review. The dispositive question decided by

the court of appeals — and fully addressed by the

parties below — is the straightforward application of

Hawaiis time limit for enforcing judgments.

Petitioners themselves tendered that issue to the

federal district court in Hawaii, and they never

sought to certify the question to the Hawaii state

courts. Now, however, petitioners ask this Court to

“defer or hold decision ox this Petition” (Pet. 4, 19-23,

Question Presented 2) while they seek in another

case to relitigate the same issue — which their

counsel asked the district court to “certify” to the

Supreme Court of Hawaii after the court of appeals

rejected their position below. The petition, in short,

not only raises questions of state law that are

inappropriate for review by this Court, but also

misuses the certiorari procedure as a tactic for

relitigation and delay.

Nor are the supposed questions of federal law

identified in the petition (see Questions Presented 1

and 3) worthy of review. Neither question was

a oe

presented to or decided by the courts below.

Question 1, whether federal law rather than state

law determines when a federal judgment “accrues”

for “sunsetting purposes” (Pet. 11), is not the subject

of any conflicting decisions of the circuits or any

contradiction with this Court’s decisions. And

Question 3, whether the 1995 Class Judgment was

truly a “final judgment,” turns on a fact-bound

argument and borders on the frivolous: Petitioners

consistently (and correctly) treated the 1995 Class

Judgment as a final judgment and enforced it as

such from February 1995 onward; the court of

appeals held that the judgment was final for

purposes of appellate review upon entry and

affirmed it in 1996; it was entered as a final

judgment in the docket of the Hawaii district court in

accordance with FRCP 58; and the result in this case

would be the same even if petitioners prevailed on

this issue.

STATEMENT

a The Parties. Petitioners are plaintiffs

in Hilao v. Estate of Ferdinand Marcos (Civ. A. No.

86-0390, D. Haw.), a class action alleging violations

of the Alien Tort Claims Act, 28 U.S.C. § 1350. This

class action was among a number of cases against

the former President of the Philippines that were

handled under multi-district litigation procedures in

In Re Estate of Ferdinand E. Marcos Human Rights

Litigation, MDL No. 840 (D. Haw.). On February 3,

1995, the Hawaii district court (Judge Real) entered

the 1995 Class Judgment in favor of petitioners in a

document entitled “Final Judgment,” which states

that “(t]he Court enters final judgment pursuant to

FRCP 58.” (ER 1.)!

Respondent Revelstoke Investment Corp., Inc.

owns real estate in Texas. Revelstoke is one of

several corporations established by the late Jose Y.

Campos, Sr. to hold investments for him and his

family. Mr. Campos was a Filipino businessman who

established successful pharmaceutical companies in

the Philippines and made investments both in the

Philippines and abroad.

This case arises because, in April 2005,

petitioners registered the 1995 Class Judgment in

the U.S. District Court for the Northern District of

Texas under 28 U.S.C. § 1963 and commenced an

enforcement action against Revelstoke and six

affiliated corporations (the “Texas Action”). In that

case, petitioners alleged that the real estate owned

by the corporations belongs to the Marcos Estate and

sought to execute on the properties to satisfy the

1995 Class Judgment. Revelstoke and the other

corporations vigorously contested the allegations

and, as described below, moved to dismiss the Texas

Action on the ground that the 1995 Class Judgment

was not extended within 10 years of entry and

therefore expired and became unenforceable in

February 2005 pursuant to Haw. Rev. Stat. § 657-5.

“ER” cites are to the “Excerpts of Record,” which is the

term used in the Ninth Circuit to refer to the appellate record

filed with the court of appeals.

2. The Immediate Enforcement And

Appeal of The 1995 Class Judgment. Shortiy

after entry of the 1995 Class Judgment on February

3, 1995, the Class moved for permission to enforce

what they recognized to be “the Final Judgment” in

their case.2, On March 14, 1995, the district court

granted the Class’s motion, directed its clerk to

“certify the Final Judgment of February 3, 1995 for

transfer to other districts,” and ruled that “there is

no bar to execution on the Final Judgment .. .

notwithstanding the pendency of any posttrial

motions or appeals.” (ER 16.) Petitioners promptly

began to enfgrce the judgment.

After the district court denied post-trial

motions, the Marcos Estate appealed on May 3, 1995,

“from the Final Judgment entered in favor of the

Plaintiff Class on February 3, 1995.” (Doc. 608, Am.

Notice of Appeal, Jn re Estate, MDL 840 (D. Haw.).)

The Ninth Circuit held that it “ha[d] jurisdiction over

the appeal pursuant to 28 U.S.C. § 1291,” observing

that “fojn February 3, 1995, the district court

entered final judgment in the class action suit” and

that “(t]he Estate appeals from this judgment.”

Hilao v. Estate of Marcos, 103 F.3d 767, 772 (9th Cir.

1996).

2 (Doc. 578, Pls.’ Mot. for Order Directing the Clerk to

Certify the Final Judgment for Transfer to Other Districts, Jn

re Estate, MDL 840 (D. Haw. filed Feb. 28, 1995).)

3. The Class’s Attempt To Enforce The

1995 Class Judgment Against Respondent. In

April 2005, the Class commenced the Texas Action

by registering the 1995 Class Judgment pursuant to

28 U.S.C. § 1963 and filing an enforcement action in

the Texas court against Revelstoke. (ER 43-79,

Compl., Del Prado v. B.N. Dev. Co., No. 05-234 (N.D.

Tex. filed Apr. 8, 2005).)? The Class alleged that the

1995 Class Judgment was “rendered” February 3,

1995. (Id. |§ 1, 4, 12.)

Counsel for Revelstoke informed the Class’s

counsel that Revelstoke would move to dismiss the

Texas Action because the 1995 Class Judgment

expired February 3, 2005, pursuant to Haw. Rev.

Stat. § 657-5. (ER 38.) The Class had never sought

or obtained an extension of the 1995 Class

Judgment, so it could no longer be enforced under

the express terms of the Hawaii statute, which

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

3 The original caption of this suit identifies Mariano

Pimentel as Class representative. Romulo Del Prado was later

appointed Class representative, and the caption was changed

accordingly. We use the current caption when referring to this

suit.

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 judgment 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.” Haw. Rev. Stat.

§ 657-5 (emphasis added).

Without serving or otherwise notifying

Revelstoke, the Class moved in the District of Hawaii

for an out-of-time “extension” of the 1995 Class

Judgment. (ER 17-23.) The court of appeals later

characterized the Class’s tactic as a “preemptive

strike” designed to “pretermit the outcome of

Revelstoke’s motion to dismiss” the Texas Action and

“transfer[ | the forum for determining the life of the

[1995 Class] Judgment... to... Hawaii.” (Pet. App.

10a-11a.)

Upon learning of the Hawaii motion to extend,

Revelstoke moved to intervene in the Hawaii district

court for the limited purpose of opposing the

extension motion. (ER 24-33.) During a hearing

days later, Judge Real summarily granted the

motion for an “extension” of the 1995 Class

Judgment and then denied Revelstoke’s motion to

intervene. (ER 109-12.) Revelstoke promptly filed a

second motion to intervene for the purpose of

appealing the extension of the 1995 Class Judgment.

‘/*-.

(ER 118-124.) Judge Real immediately denied that

motion, too. (ER 125.) Revelstoke timely appealed.

Meanwhile, the Class successfully moved the

Texas court to stay consideration of Revelstoke’s

motion to dismiss the Texas Action on the ground

that the validity of the 1995 Class Judgmenit should

be decided by a federal court in Hawaii: “Since it is

a Hawaiian state statute at issue, presumably the

Hawaiian Federal Court has more experience in

interpreting and applying it than a Texas court.”

(Pet. App. 9a n.4 (quoting Pls.’ Mot. to Stay Briefing

at 2).)

4, The Ninth Circuit’s Decision

Reversing The District Court. On July 31, 2008,

the Ninth Circuit held that Revelstoke should have

been allowed to intervene in the Hawaii district

court to oppose the “extension” of the 1995 Class

Judgment. On the merits, the court of appeals held:

“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 district court clearly erred in

resurrecting the [1995 Class] Judgment

in 2006 after it expired in February

2005.” (Pet. App. 14a.)

The court of appeals emphasized that the

Hawaii statute “plainly states that all judgments are

extinguished after ten years unless timely renewed”

(id.), and that the Hawaii Supreme Court has

confirmed this plain-meaning interpretation:

“The Hawaii 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.” (Pet. App.

14a (quoting Wiig, 921 P.2d at 119).)

The court of appeals also rejected the Class’s

argument that the ten-year period was tolled until

the 1995 Class Judgment was affirmed on appeal:

“HRS §657-5 provides 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.” (Pet.

App. 18a (quoting § 657-5) (emphasis in

original).)

On September 11, 2008, the court of appeals

unanimously denied the Class’s_ petition for

rehearing and rehearing en banc. (Pet. App. 34a.)

None of the 28 judges eligible to vote for rehearing

did so. (Jd.) In their rehearing petition, the Class

raised for the first time two questions that are

presented in the petition for certiorari.4

4 Apart from rearguing is®es previously presented to the

court of appeals, the Class con’ended for the first time in its

petition for rehearing (1) that the interpretation of Haw. Rev.

(...continued)

5. Class Counsel’s Efforts To Relitigate

The Issues By Certification To The Hawaii

Supreme Court In Another Case. Shortly after

the Ninth Circuit ruled that the 1995 Class

Judgment had expired, Class Counsel appeared

before Judge Real in two other actions being handled

in MDL 840: Sison v. Marcos, Civ. A. No. 86-225 (D.

Haw.), and Piopongco v. Marcos, Civ. A. No. 87-138

(D. Haw.) (collectively, “Sison-Piopongco”). Class

Counsel obtained an order from Judge Real in Sison-

.Piopongco “certifying” to the Hawaii Supreme Court

the same question about the application of Haw. Rev.

Stat. § 657-5 that the Ninth Circuit decided below

against the Class in this case.

The certification order was issued in the

following way: On October 2, 2007, just before the

tenth anniversary of their own judgment, the Sison-

Piopongco plaintiffs moved for an extension under

§ 657-5. That motion was filed by Paul Hoffman,

Stat. § 657-5 should be certified for decision to the Hawaii

Supreme Court, and (2) that the limitations period under § 657-

5 did not start running until December 6, 1995 hecause the

1995 Class Judgment was not really a final judgment under

FRCP 58.

5 The Sison-Piopongco plaintiffs “pursue[d] their claims

directly” rather than as part of the Class, and their claims for

compensatory damages “were tried separately” from those of

the Class. Hilao v. Estate, 103 F.3d 789, 791 (9th Cir. 1996).

Judge Real entered final judgment in Sison-Piopongco in

August 1995, largely denying the plaintiffs’ damages claims.

The court of appeals reversed and remanded, id, at 793-94, and

a new judgment was entered in favor of the Sison-Piopongco

plaintiffs on October 3, 1997, awarding Sison $750,000 and

Piopongco $250,000.

who represented the Sison-Piopongco plaintiffs but

to our knowledge does not represent the Class. The

motion languished for almost a year. But on

September 12, 2008, the day after the Ninth Circuit

denied the Class’s petition for rehearing in this case,

Judge Real heard the motion. At that hearing, Class /

Counsel appeared but Mr. Hoffman did not.

Although no party had ever asked for certification of

any question to the Hawaii Supreme Court, the

district court suggested certification concerning

§ 657-5. Class Counsel responded: “Yes, Your -

Honor, that would be an excellent approach.” (Tr. of

Hr’g at 4:13-18 (D. Haw. Sept. 12, 2008).®)

The courtroom clerk then spoke by telephone

with Mr. Hoffman, who “didn’t have notice of the

hearing” and was “on vacation.” (Id. at 5:19 — 6:2,

7:1-3.) Mr. Hoffman asked for a chance to brief the

issues, but Judge Real refused: “Mr. Van Dyke [who

argued for the Class in the court of appeals} is here

for the class, and he indicates that he’s amenable to

the presentation to the Hawai'i Supreme Court.” (d.

at 7:12-21.) It was then agreed that Class Counsel

would “prepare . . . suggested language” for

transmission to the Hawaii Supreme Court. (/d. at

9:3-10.)

The “language” prepared by Class Counsel and

certified by Judge Real seeks the Hawaii Supreme

6 The transcript is available on the PACER website for

the District of Hawaii, https://ecf.hid.uscourts.gov/cgi-

bin/login.pl (last visited Mar. 8, 2009), under case number 03-

11111 (which designates the MDL 840 docket entries that are

available electronically).

Court’s opinion on a question not presented by the

Sison-Piopongco case, but which directly implicates

the 1995 Class Judgment: whether any appellate

review of a judgment on appeal tolls the ten-year

period under § 657-5.?7 Sison-Piopongco does not

present this broad issue because the original

judgment in those cases had been reversed, and the

motion to extend was filed less than ten years after

entry of the new judgment on remand. In this case,

by contrast. the 1995 Class Judgment was affirmed

on appeal without modification.

Petitioners inaccurately assert that the

Hawaii Supreme Court “has agreed to decide” the

certified questions. (Pet. 19.) To the contrary, that

court invited briefing of the issues but expressly

stated that it was not yet “determining whether this

court will answer the question.” (Pet. App. 32a.)

Revelstoke was granted leave and has filed an

amicus brief to oppose the Class’s efforts to obtain an

advisory opinion on a hypothetical question that is

not presented by the case and that would interpret

§ 657-5 differently from the _ carefully-reasoned

decision of the Ninth Circuit.®

7 The certified question asks whether the limitations

period under § 657-5 “begin[s] after the appellate process is

completed.” (Pet. App. 28a.)

8 Order, Estate of Francisco Sison v. Estate of Ferdinand

E. Marcos, No. 29372 (Haw. Feb. 17, 2009).

ce.

REASONS FOR DENYING THE WRIT

The petition for certiorari presents no issue

worthy of this Court’s review. Petitioners seek to use

the certiorari procedure for the inappropriate

purposes of contesting the Ninth Circuit’s sound and

straightforward interpretation of Hawaii state law

and seeking a “deferral” from this Court while they

try to relitigate in the Hawaii Supreme Court the

same issues that they tendered to the federal courts

below.

Furthermore, the other issues raised by

petitioners were not presented to or decided by the

courts below. None of the questions presents a

conflict among the circuits or a departure from any

decision of this Court.

I. THE STATE LAW ISSUE DECIDED BY

THE COURT OF APPEALS WARRANTS

NEITHER REVIEW NOR “DEFERRAL.”

Review is inappropriate — as is any delay in

disposing of the petition — because the court of

appeals decided an issue of state law. The Class

concedes that the court below “basied] its ruling

entirely on a Hawai'i statute,” but challenges “[t}he

court of appeals’ interpretation and application of

(Haw. Rev. Stat. § 657-5].” (Pet. 3-4.) The Ninth

Circuit’s interpretation of Hawaii law would not

warrant rew’ew or deferral even if it were not so

manifestly correct.

1. This Court “accord[s] great deference to

the interpretation and application of state law by the

Courts of Appeals.” Unized States v. S.A. Empresa de

Viacao Aerea Rio Grandense (Varig Airlines), 467

U.S. 797, 816 n.12 (1984); see also, e.g., McMillian v.

Monroe County, Ala., 520 U.S. 781, 786 (1997). Only —

“in exceptional cases” does this Court review “the

considered determination of questions of state law by

the intermediate federal appellate courts.”

Huddleston v. Dwyer, 322 U.S. 232, 237 (1944).

Petitioners fail to identify any respect in which the

interpretation and application of Haw. Rev. Stat.

§ 657-5 by the court of appeals raises “exceptional”

circumstances calling for special review.

2. This Court should not “hold” the petition

on the asserted ground that the Hawai Supreme

Court “has agreed to decide” the questions certified

by Judge Real in the Sison-Piopongco case. (Pet. 19.)

As an initial matter, the Hawaii court has not

“agreed to decide” anything; rather, it invited

briefing before “determining whether [it] will answer

the [certified] question.” (Pet. App. 32a.) It may well

decline to answer the question that is not genuinely

presented by the Sison-Piopongco case: whether the

Ninth Circuit was correct that the 10-year time limit

for enforcement of a judgment under Haw. Rev. Stat.

§ 657-5 is not tolled by appellate proceedings

resulting in affirmance of the judgment.

Indeed, answering that hypothetical question

would be inconsistent with the Hawaii Supreme

Court’s. self-recognized “duty” not to “declare

principles or rules of law which cannot affect the

matter in issue in the case:before it.” State v.

Matavale, 166 P.3d 322, 342 n.15 (Haw. 2007)

(quoting Wong vu. Bd. of Regents, Univ. of Haw., 616

P.2d 201, 204 (Haw. 1989)). An answer to that

question could not affect the Sison-Piopongco

plaintiffs’ extension motion. When the Hawaii

Supreme Court perceives that a tendered questions

is hypothetical after briefs are submitted, it does not

answer the question. See Matsuura v. E.I. Du Pont

de Nemours & Co., 73 P.3d 687, 796 (2003) (“insofar

as [a] certified question d[id] not appear to be

‘determinative of the cause,’ it was inappropriate for

certification under HRAP Rule 13” and the court

“decline[d] to answer it”).!°

3: Petitioners mischaracterize the authority

that they offer to support their request that this

Court “defer or hold decision” on the petition. The

cases they cite involve the different situation in

which “awaiting the position of a state’s highest

court” may clarify whether this Court has

jurisdiction to review a decision. (Pet. 22.)

In Lynum uv. Illinois, 368 U.S. 908 (1961), and

Herb v. Pitcairn, 324 U.S. 117 (1945), this Court did

not “hold” a certiorari petition because a ruling in

another case might produce a new interpretation of

9 As previously noted, the original August 1995 judgment

in Sison-Piopongco was reversed on appeal in December 1996,

see Hilao, 103 F.3d F.3d 789 at 793-94, and the new judgment

was entered on remand in October 1997. The Sison-Piopongco

plaintiffs’ extension motion was filed October 2, 2007, less than

ten years after entry of the new judgment on remand.

10 Moreover, as explained below (see infra at 15-17), the

deewiem of the court of appeals on the first certified question

folie#*s two unanimous Hawaii Supreme Court opinions, which

mases certification unnecessary. See Haw. R. App. P. 13

(limiting certification to situations where “there is no clear

controlling precedent in the Hawai'i judicial decisions”).

state law. This Court instead deferred consideration

because it was unclear whether the decision on

which certiorari was sought rested on “an adequate

and independent state ground,” so that explanation

by the state supreme court would clarify “whether

the decision of [a] federal [claim] . . . was necessary

to the judgment rendered.” Lynum, 368 U.S. at 908;

Herb, 324 U.S. 128.

Here, by contrast, (i) petitioners seek

“deferral” based on a possible decision in a different

case pending in state court, (ii) the decision below

was rendered by a federal appellate court, not the

state supreme court, (iii) that decision expressly

turns on the interpretation and application of a state

statute, and (iv) petitioners concede that the decision

was based “entirely” on state law (see Pet. 3).

Moreover, no case cited by petitioners involves a

situation where, as here, the delay is sought in aid of

efforts to relitigate the same issues decided by the

court below.

4. Petitioners also disregard that the Ninth

Circuit’s interpretation of Haw. Rev. Stat. § 657-5

accords not only with the plain meaning of the

statute, but also with two unanimous opinions of the

Hawaii Supreme Court holding that § 657-5 imposes

a strict limitations period that runs from the date a

judgment is entered by the trial court.

Brooks v. Minn, 836 P.2d 1081 (Haw. 1992),

holds that a judgment is “rendered” under § 657-5

when it is “entered” on the docket, so “the ten-year

{limitations period] runs from the date the judgment

was entered.” 836 P.2d at 1086-87 & n.10. The

judgment in Brooks “was filed on February 9, 1981,”

as.

so the judgment creditor “had until February 9,

1991” to enforce it. Id. at 1087.1!

Similarly, International Savings & Loan Ass'n,

Ltd. v. Wiig, 921 P.2d 117, 118-19 (Haw. 1996),

confirms that § 657-5 imposes an unyielding, bright-

line limitation rule that allows no exception:

“HRS § 657-5 places the burden on the

judgment creditor to seek judicial

extension of the judgment prior to the

expiration of the ten year statutory

period; otherwise, the judgment is

presumed to be ‘paid and discharged’ as

a matter of law.” Jd. at 119.

Wiig emphasizes that “HRS §657-5 is a

statute of repose that compels the exercise of a right

within the statutorily defined period of time.” /d.}2

it The precise date on which the limitations period began

running was important in Brooks because the judgment

incorporated a promissory note providing for interest from the

effective date of the note. The Court ruled that the judgment

creditor was “entitled to recover . . . interest as provided in the

Note from the date the [judgment] was entered on February 9,

1981,” not from the date the judgment debtor’s right to appeal

expired. 836 P.2d at 1087 (emphasis added).

12 Wiig held that the ten-year clock started when a

judgment was entered by the trial court on March 8, 1984, not

when the time for appeal expired: “[{P]ursuant to the plain

language of HRS § 657-5, the judgment expired on March 8,

1994 — ten years after the original judgment was rendered.”

921 P.2d at 118-19. The judgment creditor argued that a

garnishment order obtained months after the judgment’s entry

“tolled’ the life of the judgment beyond the ten year period.” Id.

The Hawaii Supreme Court disagreed, rejecting the view that

(...continued)

Thus, “[ijf the judgment creditor fails to secure the

extension within the ten years, the judgment and all

the rights and remedies appurtenant to that

judgment terminate.” Id.'8

Citing Wiig, the Ninth Circuit held that Haw.

Rev. Stat. § 657-5 “means what it says: a judgment

expires within ten years unless extended before

expiration.” (Pet. App. 14a.) In doing so, the court of

appeals applied the plain language of § 657-5, which

“provides that the limitations period begins to run on

‘the date the original judgment or decree was

rendered” and “does not say ten years from the date

of entry plus however much time it takes to appeal.”

(Pet. App. 18a (quoting § 657-5).)

Contrary to petitioners’ assertion, the court of

appeals did not regard any issue of Hawaii law as

“novel.” (Pet. 21.) The full sentence quoted by the

“a garnishment proceeding or any other enforcement action

‘tolls’ the time limitation imposed by HRS § 657-5.” Id. at 120.

13 Further evidencing that the ten-year limit imposed by

Haw. Rev. Stat. § 657-5 is unyielding, the Intermediate Court of

Appeals of Hawaii recently held that the statute “creates a

limitation period that commences on the original judgment’s

entry date” even when the judgment is partially reversed and

partially vacated on appeal. Estate of Roxas v. Marcos, No.

28702, --- P.3d ---, 2009 WL 352878, at *4-5 (Haw. Ct. App. Feb.

12, 2009), mot. for reconsideration denied, 2009 WL 550882, at

*1 (Haw. Ct. App. Mar. 2, 2009) (table).

In contrast, the recent Hawaii opinion cited by the

Class, Beecher Limited v. Alvarez & Marsal North America,

LLC, No. 28011, 2008 WL 616287, 187 P.3d 593 (Haw. App.

Mar. 7, 2008) (table) (see Pet. 21-22 n.9), does not apply Haw.

Rev. Stat. § 657-5 and is an “unpublished dispositional order”

that “shall not be cited in any other action or proceeding,” Haw.

R. App. P. 35(c)(1).

oF.

Class describes only the facts of this case as “novel.”

(See Pet. App. 2a (“This appeal requires us to

consider a novel situation involving the registration

of a federal judgment.”).)

Il. THE QUESTIONS PRESENTED IN THE

PETITION WERE NOT PROPERLY

RAISED OR PASSED UPON BELOW,

The petition overlooks that this Court

ordinarily does not review questions that were not

properly presented to, or decided by, the courts

below. See, e.g., United States v. United Foods, Inc.,

533 U.S. 405, 417 (2001) (declining to “allow a

petitioner to assert new substantive arguments

attacking ... the judgment [below] when those

arguments were not pressed in the court whose

opinion we are reviewing, or at least passed upon by

it”); Zobrest v. Catalina Foothills Sch. Dist., 509

U.S. 1, 8 (1993) (“Where issues are neither raised

before nor considered by the Court of Appeals, this

Court will not ordinarily consider them.”).

1. To have properly presented an issue to

the courts below, petitioners must have done so

before the court of appeals ruled on the merits.

Arguments are “waived” when they are presented for

the first time in a rehearing petition in the absence

of good grounds for the delay. See, e.g., Picazo v.

Alameida, 366 F.3d 971, 972 (9th Cir. 2004); Talk of

the Town v. Dep't of Fin. & Bus. Servs., 353 F.3d 650,

650 (9th Cir. 2003). This Court recognizes the same

rule: “[i]t has been the traditional practice of this

Court .. . to decline to review claims raised for the

first time on rehearing in the court below.” Wills v.

Texas, 114 S. Ct. 1867, 1867 (1994) (O’Connor, J.,

concurring in the denial of the petition for certiorari),

° 18.

see also Hoover v. Ronwin, 466 U.S. 558, 574 (1984)

(declining to address respondent’s constitutional

argument that was “made... for the first time in...

response to petitioners’ motion for rehearing in the

Court of Appeals”; the “failure to raise this issue in a

timely manner precludes our ccnsideration’),

z. None of the questions presented by

petitioners was properly raised before or decided by

the Ninth Circuit. Until its petition for certiorari,

the Class never argued that “[f]ederal statutory or

common law” creates a “federal law accrual rule”

that determines when the limitations period under

Haw. Rev. Stat. § 657-5 began running for the 1995

Class Judgment. (Pet. 3-4, 11-19.)14 In the courts

below, petitioners made the different argument that

the Supremacy Clause overrides the Hawaii

statute.!5 Petitioners appear to have abandoned that

argument, perhaps because every court of appeals to

14 This is not a situation where a certiorari petition makes

a new argument in support of a claim raised below. Compare

Yee v. City of Escondido, 503 U.S. 519, 534-35 (1992)

(petitioners who claimed “Takings Clause” violation in lower

courts could make “regulatory taking argument” and “physical

taking argument” in this Court, even though it was “unclear” if

former was raised below, because these were “separate

arguments in support of a single claim”) (emphasis in original).

Although the Class argued below that the limitations period did

not start until after affirmance of the 1995 Class Judgment and

cited some of the cases it cites here (see Class Br. at 2, 19-24,

Hilao v. Estate of Ferdinand Marcos, No. 06-16301 (9th Cir.

filed Aug. 25, 2006) (“Class 9th Cir. Br.”)), the Class never

raised a claim based on “[flederal statutory or common law” and

never suggested the existence of a “federal law accruai rule.”

(Pet. 3-4, 11-19.)

15 (See Pet. App. 14a; Class 9th Cir. Br. at 2, 31.)

consider the issue has held that, pursuant to FRCP

69(a)(1), the forum state’s law limits the period for

enforcing a federal court judgment where no federal

statute imposes a deadline. See, e.g., Andrews uv.

Roadway Express, 473 F.3d 565, 567, 569 n.4 (5th

Cir. 2006) (Texas law); Home Port Rentals, Inc. v.

Int'l Yachting Group, Inc., 252 F.3d 399, 408 & n.23

(5th Cir. 2001) (Louisiana law); United States v.

Fiorella, 869 F.2d 1425, 1426 & n.5 (11th Cir. 1989)

(Alabama law); Matanuska Valley Lines, Inc. uv.

Molitor, 365 F.2d 358, 360 (9th Cir. 1966)

(Washington law).16

3. Petitioners also concede that they did not

request certification of state law issues to the Hawaii

Supreme Court or present an argument based on

FRCP 58 until their “motion for rehearing” in the

court of appeals. (Pet. 4, 10.) It was petitioners who

tendered the interpretation of Haw. Rev. Stat. § 657-

5 to the courts below, and they never suggested

“certification” to the state courts until they had fully

litigated the issue and lost. Similarly, petitioners

treated the 1995 Class Judgment as a final judgment

under Rule 58 from 1995 to 2008 — again, until they

lost in the court below and seized on the new

contention that it was not really a final judgment.

16 The Class erroneously implies that a federal judgment

“on a federal cause of action” is subject to limitations principles

different from those that apply to a federal judgment on a state

cause of action. (Pet. 14.) Rule 69(a)(1) makes no stch

distinction. Every federal court judgment is subject to state law

for enforcement purposes (absent a specific provision of federal

law to the contrary), regardless of the cause of action on which

the judgment is based.

Hl. THE FEDERAL LAW ISSUES RAISED IN

THE PETITION INVOLVE NO CONFLICT

AMONG THE COURTS OF APPEALS OR

WITH DECISIONS OF THIS COURT.

The Ninth Circuit’s application of Haw. Rev.

Stat. § 657-5 does not conflict with a decision of

another court of appeals or of this Court with respect

to either federal issue that petitioners raise.

A. The Decision Below Does Not

Conflict With Any Federal Decision

Addressing Time Limitations On

the Enforceability of Federal Court

Judgments.

Petitioners argue that the Ninth Circuit’s

application of § 657-5 to the 1995 Class Judgment

conflicts with decisions of other courts of appeals and

of this Court holding that federal law determines

when a state limitations period begins running on a

federal court judgment. (Pet. 3-4, 11-19.) None of

the opinions cited by the Class so holds, and none

establishes or applies a “federal law accrual rule” for

state limitations periods on judgments. (Pet. 4.)

As the Ninth Circuit correctly observed, FRCP

69(a)(1) provides that “the procedure on execution is

to be in accordance with the procedure of the state in

which the district court is located.” (Pet. App. 15a.)!7

17 FRCP 69(a)(1) states: “A money judgment is enforced

by a writ of execution, unless the court directs otherwise. The

procedure on execution — and in proceedings supplementary to

and in aid of judgment or execution — must accord with the

procedure of the state where the court is located, but a federal

statute governs to the extent it applies.”

Under this principle, and under the Rules of Decision

Act, 28 U.S.C. § 1652, the forum state’s law limits

the life of a judgment “unless a timeliness rule

drawn from elsewhere in federal law should be

applied.” (Pet. App. 15a.) Petitioners disregard this

well-settled principle and rely on cases addressing

questions other than enforcement of judgments

rendered by federal courts.

Thus, petitioners make the uncontroversial

and irrelevant point that “Federal law has always

controlled when a federal judgment is deemed ‘final’

for purposes of appeal.” (Pet. 11.) Similarly, they

cite cases holding that the “accrufal]” of federal

causes of action — not judgments — is determined by

“federal common law.” (/d.)!8 The question decided

below (and presented here) is not the time of accrual.

of the petitioners’ causes of action, which were

ultimately upheld in the 1995 Class Judgment, but

the time period within which that judgment could be

enforced under Hawaii state law, which controls

under FRCP 69(a) and the Rules of Decision Act.

Petitioners come closer to addressing relevant

points when they contend that three decisions

involving limitation periods on enforcement of

18 (See Pet. 11-12 (citing Wallace v. Kato, 549 U.S. 348,

388 (2007) (“the accrual date of a § 1983 cause of action is a

question of federal law”); Romero v. Allstate Corp., 404 F.3d

212, 221 (3d. Cir. 2005) (“The date of accrual of the ERISA non-

fiduciary duty claims asserted is determined as a matter of

federal common law.”); Tolle v. Carroll Touch, 977 F.2d 1129,

1138 (7th Cir. 1992) (“we look to federal common law for

purposes of deciphering the accrual date of a cause of action

under a federal statute”)).)

- 22-

judgments conflict with the decision below. (Pet.

12-15, 19.) The court of appeals distinguished two of

these cases: Borer v. Chapman, 119 U.S. 587 (1887),

and Home Port Rentals, Inc. v. International

Yachting Group, Inc., 252 F.3d 399 (5th Cir. 2001).

(Pet. App. 19a.) Petitioners did not cite the third

case, Jalapeno Property Management, LLC v. Dukas,

265 F.3d 506 (6th Cir. 2001), until their certiorari

petition. None of the three cases holds that a state

statute limiting lives of judgments “does not begin to

run on a federal judgment until all appeals are final”

(Pet. 3), and there is no conflict between those cases

and the decision below.

1.. Borer

In Borer, the trial court entered a judgment on

April 19, 1872, which this Court “reversed and

remanded.” 119 U.S. at 593, 601-02. A corrected,

final judgment was entered “on December 18, 1878,”

and was made nunc pro tunc “as of July 10, 1871.”

Id. at 596, 602. This Court held that the limitations

period for enforcement did not begin running on July

10, 1871 because “[t]he date of that entry is by a

fiction of the law” and “the right of [the judgment

creditor] to enforce th{e] judgment” should run from

_ the entry of the new judgment on remand that was

- “actually entered on December 18, 1878.” Id. at 602.

In contrast, the 1995 Class Judgment (i) was

never suspended, reversed, or vacated, (ii) is not a

nunc pro tunc judgment, (i11) was ruled immediately

enforceable by the rendering court, and (iv) was

enforced by the Class “immediately” after entry (Pet.

App. 18a). Nothing in Borer suggests that “the state

time period to enforce a federal judgment d[oes] not

begin to run until all appeals [a]re completed.” (Pet.

- 23.

12.)19 Borer also antedated the adoption of FRCP

69(a)(1) and therefore did not address that rule’s

principle that state law governs enforcement of

judgments.

2. Home Port Rentals

Petitioners are also incorrect in asserting that

the decision below conflicts with Home Port Rentals.

That case does not apply a federal law rule that

limitations periods for enforcing judgments are tolled

until “all appeals are completed or the time for

appeal has expired.” (Pet. 13.) Instead, Home Port

Rentals holds that, where a “live” (i.e., unexpired)

judgment was registered in Louisiana under 28

U.S.C. § 1963, Louisiana’s limitations period

governed enforcement of the judgment in that state

and began running on the date of registration.

The judgment in Home Port Rentals was

entered by the South Carolina federal court on.

March 20, 1989, was affirmed by the Fourth Circuit

on April 2, 1992, and was registered in a Louisiana

federal court on March 17, 1999. 252 F.3d at 402.

On the date of registration, the judgment was

“enforceable” in “both the rendering and the

19 The enforcement action in Borer “was filed August 20,

1879,” within one year after entry of the corrected, final

judgment. 119 U.S. at 601. The Court thus did not need to

consider application of a Minnesota statute providing that

enforcement actions be “commenced within one year from the

time the claim is allowed or established.” Id. The Court noted

that “[w]hether that statute has any application to this bill in

equity . .. is a question which need not be considered or

decided.” Id. at 603

registration jurisdictions,” as each had a ten-year

limitations period. Jd. at 403-04 & nn. 4-5.

The Fifth Circuit held that Louisiana’s

limitations period governed pursuant to the final

sentence in § 1963, which states: “A judgment so

registered shall have the same effect as a judgment

of the district court of the district where registered

and may be enforced in like manner.” Id. at 406

(quoting § 1963). The same sentence was decisive in

determining “when Louisiana’s [limitations] clock

started to tick”: “enforcement proceedings following

registration are governed exclusively by the

limitation rules of the state in which the registration

district is situated,” and “ir Louisiana, that period

starts to run on the date the judgment is registered.”

Id. at 406-08 & n.23 (citing Fed. R. Civ. P. 69)

(emphases in original).

Petitioners quote the words “clearly specious”

from Home Port Rentals out of context. (Pet. 13.)

The opinion uses those words in discussing which

state’s law applied, not in regard to when the

applicable state limiiations period began running.

252 F.3d at 406. Because the judgment had been

registered in Louisiana before it expired in South

Carolina, it could be “enforced within the limitation

period of [Louisiana] even though the time for

enforcement ha[d] run in [South Carolina]” after the

registration in Louisiana. Jd. The judgment debtor’s

“contention that South Carolina’s statute of

limitations” controlled enforcement in Louisiana was

“clearly specious” because the judgment was “live”

when it was registered (unlike the expired 1995

Class Judgment when it was registered in Texas)

and the governing Louisiana statute did not look to

- 9R.-

the rendering jurisdiction’s limitations period (unlike

the borrowing provision governing the Texas Action,

Tex. Civ. Prac. & Rem. Code § 16.066(a)). Home Port

Rentals, 252 F.3d at 406.

3. Jdalapeno

Nor does the decision below conflict with

Jalapeno. The Class asserts that Jalapeno “appl[ied]

federal common law” to hold that state limitations

periods on judgments “do not begin [to run] until

after the mandate issues following an appeal.” (Pet.

13.) Jalapeno does not hold that an appeal must end

before a state limitations period on a judgment

begins running, much less apply “federal common

law” to that effect. Instead, Jalapeno addresses the

different question whether a limitations period on

enforcement began running upon entry of a

judgment that remained “subject to revision’ by the

district court” and that was neither final nor

appealable. 265 F.3d at 513-14 (quoting FRCP

54(b)).

Whereas the judgment in Jalapeno “lacked a

certification of finality,” id. at 508, 511, the 1995

Class Judgment is titled “Final Judgment” and by its

terms “enters final judgment pursuant to FRCP 58”

in favor of the Class (ER 1). Petitioners try to

sidestep these points by arguing that the 1995 Class

Judgment was only “signed” February 3, 1995 (e.g.,

Pet. 5-7, 9) and that it was not really “entered” until

December 6, 1995 (e.g., Pet. 5, 7). They ignore that

the top-right corner of the first page of the 1995

Class Judgment (ER 1) and the pertinent docket

entry (ER 181) each confirm that the judgment was

entered February 3, 1995.

- 26-

Petitioners likewise ignore that the 1995 Class

Judgment entered February 3, 1995 was appealed as

a final judgment in 1995, was held to be such by the

Ninth Circuit, and was enforced by petitioners as a

final judgment immediately after entry.?° In

Jalapeno, by contrast, the entry of a _ non-final

judgment subject to revision precluded an appeal.?!

B. Petitioners’ New Position That The

1995 Class Judgment Is Not A Final

Judgment Is Baseless, Contradicts

Their Longstanding Position, Is

Supported By No Federal Appellate

Decision, And Would Not Change

The Result Even If It Were Correct.

Petitioners’ past positions and conduct belie

their new contention that the 1995 Class Judgment

— — ———— — eer

20 The Marcos Estate appealed “from the Final Judgment

entered in favor of the Plaintiff Class on February 3, 1995”

(Doc. 608, Am. Notice of Appeal, In re Estate, MDL 840 (D.

Haw. filed May 3, 1995)) — i.e., from the 1995 Class Judgment.

The court of appeals determined that the “final judgment in the

class action suit” was entered “[o]n February 3, 1995” and held

that it “ha(d] jurisdiction over the appeal pursuant to 28 U.S.C.

§ 1291,” Hilao, 103 F.3d 767 at 771-72. Far from disputing

these points, petitioners moved on February 28, 1995 for

authorization to enforce the 1995 Class Judgment immediately,

their motion was granted, and they continued enforcing the

judgment while the Estate’s appeal was pending. See, e.g.,

Hilao v. Estate of Marcos, 95 F.3d 848, 850 (9th Cir. 1996); In re

Estate of Marcos, 963 P.2d 1124, 1128 (Haw. 1998).

21 The Sixth Circuit ruled that the judgment in Jalapeno

did not become final “until the termination of the litigation

against the remaining defendants,” which did not occur “until

after this court had issued its second mandate ... which

concluded the litigation as to ‘the rights and liabilities of all the

parties.” 265 F.3d at 514 (quoting Fed. R. Civ. P. 54(b)).

27 -

entered on February 3, 1995 was not really a final

judgment and that the final judgment was actually

entered on December 6, 1995. (Pet. 23-29.) This

remarkable’ revisionist history ignores’ that

petitioners themselves treated the 1995 Class

Judgment as a final judgment for many years:

Petitioners moved for authorization to begin

enforcing it in February 1995, and their motion was

granted two weeks later; petitioners enforced it as

soon as they were authorized to do so and continued

doing so while it was on appeal??; the Ninth Circuit

held that it was a final judgment in 1996 when it

exercised appellate jurisdiction and affirmed it,

Hilao, 103 F.3d 767 at 772; and petitioners

registered it and filed the Texas Action in 2005 based

on the specific allegation that it was an enforceable

final judgment.

Petitioners do not explain why the fact-bound

question whether the judgment was_ entered

February 3, 1995 or December 6, 1995 warrants

review. Nor do they acknowledge that it would make

no difference even if their new position were correct:

They never registered or sought to extend the

22 By the time the Marcos Estate appealed the 1995 Class

Judgment, the Class had registered the judgment and begun

executing on it, both in Hawaii and in other jurisdictions, and

the Class continued such enforcement efforts while the appeal

was pending. See, e.g., Hilao, 95 F.3d at 850 (in May 1995, the

Class “registered its Hawai'i judgment against the Estate in the

Central District of California” and served “writs of execution”

on banks in Los Angeles); In re Estate of Marcos, 963 P.2d at

1128 (in November 1995, the district court “grant[ed] the

[Class’s] motion for a writ of execution,” holding that a car “was

to be seized and sold to satisfy a portion of the [Class’s]

judgment against the Marcos Estate”).

98.

purported December 1995 judgment, so it would

have expired and become unenforceable more than

three years ago.”

In any event, their new position is not correct.

The district court’s docket reflects that the “separate

document” and other formal requirements for

entering judgment under FRCP 58 were all satisfied

as of February 3, 1995:

e The first page of the 1995 Class Judgment

states that “[t]he Court enters final

judgment pursuant to FRCP 58.” (ER 1.)

e The 1995 Class Judgment was entered on

the district court’s docket on February 3,

1995 as follows: “FINAL JUDGMENT —

on behalf of Plaintiffs — REAL.” (ER 181,

Doc. 568, MDL 840 (D. Haw.).)

e The 1995 Class Judgment is “a separate

document” (i.e., a document “distinct from

any opinion or memorandum”) and the

district court’s clerk “promptly prepare[d],

23 Petitioners assert that because they registered the 1995

Class Judgment in April 2005, less than 10 years after

December 6, 1995, they should be allowed to enforce the

December 1995 judgment. (Pet. 23, 29.) But petitioners

registered only the 1995 Class Judgment entered February 3,

1995, not the supposed December 1995 judgment. In any event,

petitioners did not even mention the possibility of registering

the December 1995 judgment until after the Ninth Circuit ruled

against them in July 2008. By then, no December 1995

judgment could be registered because it was never extended

under Haw. Rev. Stat. § 657-5 and therefore would have

expired in December 2005.

- 99.

sign[ed], and enterjed] the judgment” in

the court’s “civil docket.” Fed. R. Civ. P.

58(a), (b)(1), (c)(2) & advisory committee’s

note.

Nor do petitioners identify any conflict

between the decision below and other federal

decisions applying FRCP 58. They cite no federal

decision suggesting that Rule 58 may be applied

retrospectively to undo a final judgment that was

fully litigated on appeal, affirmed, and enforced

against the judgment debtor. Indeed, this Court has

held that the “sole purpose of the separate-document

requirement, which was added to Rule 58 in 1963,

was to clarify when the time for appeal . . . begins to

run.” Bankers Trust Co. v. Mallis, 435 U.S. 381, 384

(1978).

There is no conflict between the decision

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

220 (1973), which also recognized that Rule 58’s

formalities were designed to cure the “considerable

uncertainty over what actions of the District Court

would constitute an entry of judgment” for purposes

of appeal. Jndrelunas held that a docket entry

recording that the jury had entered a verdict was not

an entry of judgment so that the Government’s notice

of appeal filed after issuance of separate, written

“formal judgments” more than eight months later

was timely. Id. at 218-19, 221. The same procedure

was followed in this case: The docket recorded a jury

verdict for the Class on January 18, 1995, and a

separate, written document’ entitled “Final

Judgment” dated February 3, 1995, was signed by

Judge Real, endorsed by the clerk, and entered on

the docket. (ER 177, Doc. 562, MDL 840 (D. Haw.);

. 30 -

ER 181, Doc. 568, MDL 840 (D. Haw.).) Notably,

petitioners’ list of relevant document entries (Pet. 26-

27) omits docket entries showing that the 1995 Class

Judgment was a final judgment upon entry,

undermining their assertion that “the judgment was

not in a form to be enforced until December 6, 1995.”

(Pet. 29.)4

Nor does the decision of the court of appeals

conflict with FRCP 54(b) or any federal decision

applying it. In arguing that the 1995 Class

Judgment was interlocutory because it did not

embrace the claims of other parties to the case,

petitioners confuse the case brought by the Class

(Civ. A. No. 86-390, D. Haw.) with other cases that

were handled under the multi-district procedures in

MDL 840 (such as Sison-Piopongco) in which final

judgment was entered later.

Because the 1995 Class Judgment fully

adjudicated the claims brought by the Class in their

particular case, Judge Real expressly “enter|ed] final

judgment pursuant to FRCP 58 in favor of 135

randomly selected Class Claims and the Plaintiff

Class” in Civil Action No. 86-0390. (ER 1.) It bears

repeating that petitioners not only acquiesced in

entry of that judgment, but successfully moved for an

order that enabled them to enforce it immediately.

2 Petitioners omit: (i) the Class’s motion of February 28,

1995 for authorization to enforce the judgment immediately

(ER 182), (ii) Judge Real’s order of March 14, 1995 authorizing

immediate enforcement of the judgment (ER 15-16), and the

notice of appeal from the judgment filed by the Marcos Estate

on May 1, 1995 (ER 185).

- a] -

Neither of the cases involving FRCP 54(b)

cited by petitioners casts any doubt on the finality of

the 1995 Class Judgment. (Pet. 28.) Reiter v.

Cooper, 507 U.S. 258, 270 (1993), simply held that a

judgment entered on a _ plaintiffs claims is

unappealable where the defendant's counterclaims

remain unadjudicated and the court has not made

the “express determination” required by Rule 54(b)

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

1984), addresses the appealability of a case that was

consolidated with another case for all purposes —

not merely for multi-district proceedings or for trial.

If petitioners believed that the enforcement and

appeal of the 1995 Class Judgment soon after its

entry was inconsistent with the Ninth Circuit’s

guidance in Huene, they should have raised that

point below over a decade ago.

CONCLUSION

The petition for a writ of certiorari should be °

denied.

Respectfully submitted,

WV Kon A 6