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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

22 pe FILED
i : eo) '
. a> MAR 10 2009

No. 08-1019 OFFICE OF THE CLERK

St

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.

il

I.

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

iv

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.

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.”

~e

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

Eugene D. Gulland
Counsel of Record

Neil K. Roman

Joshua D. Greenberg

Covington & Burling LLP

1201 Penn. Ave., NW

Washington, D.C. 20004

(202) 662-6000

March 10, 2009 Counsel for Respondent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0165%3A2. Public record. Not legal advice.