In re: ESTATE OF FERDINAND E. 99.pdf · sunsetted pursuant to Haw. Rev. Stat. 657-5. In re Estate o/Ferdinand E. Marcos Human Rights Litig., 536 F.3d 980. This Court denied the Class's

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 06-16301

FILED SEP 162008

MOLLY C. DWYER, CLERK u.s. COURT OF APPEALS

In re: ESTATE OF FERDINAND E. MARCOS HUMAN RIGHTS LITIGATION, D.C. No. MDL-00840-MLR

District of Hawaii, Honolulu

CELSA HILAO, ORDER

Plaintiff - Appellee,

v.

ESTATE OF FERDINAND MARCOS,

Defendant - Appellee.

Before: GOODWIN, RYMER, and IKUTA, Circuit Judges.

The Motion of the Class Plaintiffs and the Class of Human Rights Victims

for Stay of the Mandate Pending Petitiottfor Certiorari is GRANTED. The

mandate is stayed pending the timely filing of a petition for certiorari to the United

States Supreme Court.

University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection

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No. 06-16301

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

IN RE: ESTATE OF FERDINAND E. MARCOS HUMAN RIGHTS LITIGATION

CELSA HILAO, Class Plaintiffs-Appellees

v.

ESTATE OF FERDINAND MARCOS, Defendant-Appellee

REVELSTOKE INVESTMENT CORPORATION, INC. Applicant for Intervention and Appellant

Appeal from the United States District Court for the District of Hawaii, Manuel L. Real, District Judge, Presiding,

Nos. MDL No. 840, 86-390 & 86-330

MOTION OF THE CLASS PLAINTIFFS AND THE CLASS OF HUMAN RIGHTS VICTIMS FOR STAY OF THE MANDATE PENDING PETITION

FOR CER1'IORARI

Robert A. Swift Kohn Swift & Graf, PC One South Broad Street, Suite 2100 Philadelphia, PA 19107 Telephone 215-238-1700 Fax 215-238-9806

Sherry P. Broder JonM. VanDyke 841 Bishop Street, Suite 800 Honolulu, III 96813 Telephone 808-531-1411 Fax 808-531-8411

Attorneys for Celsa Hi/ao et al and the Plaintiff Class


MOTION OF THE CLASS PLAINTIFFS AND THE CLASS OF HUMAN RIGHTS VICTIMS FOR STAY OF THE MANDATE

PENDING PETITION FOR CERTIORARI

Plaintiffs-Appellees the Class of Human Rights Victims, through their Class

Representatives Celsa Hilao et al., hereby move to stay the Court's mandate

pending the filing and final disposition of a petition for a writ of certiorari in the

United States Supreme Court pursuant to Federal Rule of Appellate Procedure

41 (d)(2) and 28 U.S.C. § 2101(f).

BACKGROUND

By Opinion dated July 31, 2008 this Court ruled that the $2 billion judgment

in favor of 9,539 human rights victims was no longer enforceable because it had

sunsetted pursuant to Haw. Rev. Stat. 657-5. In re Estate o/Ferdinand E. Marcos

Human Rights Litig., 536 F.3d 980. This Court denied the Class's Petition for

Rehearing or Rehearing En Banc on September II, 2008. Because of the

important issues related to the protection of the judgment in favor of the Class, the

Class intends to file a petition for certiorari to the United States Supreme Court to

review this Court's ruling.

DISCUSSION

Federal Rule of Appellate Procedure 41 (d)(2)(A) permits a party to

move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court. The motion must be served on all


parties and must show that the certiorari petition would present a substantial question and that there is good cause for a stay.

Similarly, 28 U.S.C. § 2101(f) states that "[i]n any case in which the final

judgment or decree of any court is subject to review by the Supreme Court on writ

of certiorari," such a judgment "may be stayed for a reasonable time to enable the

party aggrieved to obtain a writ of certiorari from the Supreme Court."

Courts consider the public interest when deciding whether to grant a stay.

See, e.g., Azurin v. Von Raab, 792 F.2d 914, 915 (9th eire 1986) (granting

emergency motion for stay of judgment releasing property claimed by Marcos in

order to maintain status quo and not risk dissipation of assets); Sammartano v.

First Judicial Dist. Ct., 303 F.3d 959, 974-75 (9th Cir. 2002) (discussing public

interest considerations).

1. The Class of Victims' Petition for Certiorari Presents a "Substantial Question"

The Class intends to petition for certiorari to address and resolve substantial

questions - heretofore unanswered by the Supreme Court - regarding (1) how

Rules 82 and 69 of the Federal Rules of Civil Procedure should be interpreted and

applied, (2) whether all federal judgments and decrees based on federal

jurisdictional statutes and federal causes of action are subject to state sunsetting

laws, (3) whether federal or state law should apply in determining when a federal


judgment is "rendered" or is final for purpose of sunsetting laws, (4) what a federal

court should do when faced with an ambiguous state statute that has never been

authoritatively interpreted by the state's supreme court, (5) when a judgment is

entered pursuant to Rule 58 of the Federal rules of Civil procedure, and (6)

whether time limits applicable to enforcement statutes begin before the appellate

process is completed. These are questions that have broad significance in the

federal system and direct relevance to the autonomy of federal courts. This

Court's ruling terminating execution on a $2 billion judgment in favor of 9,539

human rights victims is inconsistent with decisions of the U.S. Supreme Court and

several Circuits, including Borer v. Chapman, 119 U.S. 587 (1887); United States

v. Indrelunas, 411 U.S. 216 (1973); Home Port Rentals, Inc. v. International

Yachting Group, Inc., 252 F.3d 399 (5th Cir. 2001); and Andrews v. Roadway

Express Inc., 473 F.3d 565 (5th Cir. 2006).

2. Good Cause Exists to Stay the Mandate Pending Supreme Court Review

Staying the mandate is appropriate because the ruling of this Court could

have significant impact in other pending related cases, and rulings in those cases

that tum out to be based on erroneous understandings of the law (because this

Court's ruling could be overturned or modified by the Supreme Court) could cause

irreversible harm to the Class of Victims. If other pending cases are dismissed, for


"

instance, the Class of Victims may be barred from pursuing assets that could assist

in satisfying their judgment against the Marcos Estate. By contrast, no

countervailing hardship exists to prevent a stay of the mandate until the Supreme

Court determines whether to grant certiorari.

If the Supreme Court denies the Class's petition for certiorari, the courts

adjudicating related cases can then determine how to proceed in light of this

Court's ruling. If, on the other hand, the petition is granted, it will be obvious that

the Supreme Court believes both that the petition presents a substantial question

and that an error in this Court's opinion may require a different outcome. The

modest additional time involved with a stay of mandate, therefore, cannot

outweigh the irreversible harm that could result to the Class of Victims if a stay is

denied but this Court's decision is later vacated or reversed.

3. Public Policy Also Favors a Stay

The judgment awarded to the Class of Human Rights Victims was based on

claims brought under two congressionally-established jurisdictional statutes, the

Alien Tort Statute, 28 U.S.C. sec. 1350, and the Torture Victim Protection Act,

Pub.L. No. 102-256, 106 Stat. 73 (1992). The Torture Victim Protection Act was

enacted by Congress to reconfirm that U.S. courts should provide a venue to those

persons who suffer from torture and extrajudicial murder at the hands of public


officials. The legal principles utilized by the Class of Human Rights Victims were

approved by this Court in, e.g., Siderman de Blake v. Republic of Argentina, 965

F.2d 699 (9th Cir. 1992); Trajano v. Marcos, 978 F.2d 493 (9th Cir. 1992); and

Hilao v. Marcos, 25 F.3d 1467 (9th Cir. 1994), and more recently by the United

States Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). If federal

district courts are not permitted to enforce this judgment because of a

hypertechnical reliance on state law restrictions, such a ruling will have broad

implications on cases involving all nature of federal law, including bankruptcy

cases, cases based on federal environmental statutes, cases based on federal

antitrust law, and so on.

The Supreme Court has stressed the importance of protecting the autonomy

of the federal courts. in decisions such as Byrd v. Blue Ridge Rural Electric

Cooperative, Inc., 356 U.S. 525, 537 (1958) ("[t]he federal system is an

independent system for adrrJnistering justice to litigants who properly invoke its

jurisdiction"), and Felder v. Casey, 487 U.S. 131, 139 (1988) ("Any assessment of

the applicability of a state law to federal civil rights litigation ... must be made in

light of the purpose and nature of the federal right. "). Applying these principles to

this case would appear to lead to the conclusion that a state sunsetting provision

cannot be invoked to block the enforcement of a judgment based on a federal


jurisdictional statute and federal cause of action, especially when the judgment

creditors have been diligently seeking to collect on their judgment and the district

court was exercising continuing jurisdiction over the collection effort. A stay is

necessary while the Supreme Court considers these substantial issues.

CONCLUSION

For the foregoing reasons, the Plaintiffs-Appellees and the Class of Human

Rights Victims respectfully requests this Court, pursuant to Federal Rule of

Appellate Procedure 41(d)(2) and 28 U.S.C. § 2101(f), to stay the issuance of the

mandate pending the timely filing of a petition for certiorari to the United States

Supreme Court.

Dated: September 15,2008

Respectfully submitted,

fLw-rl·L ' Robert A. Swift ~ KOHN SWIFT & GRAF, PC One South Broad Street, Suite Philadelphia, P A 19107 Telephone 215-238-1700 Fax 215-238-9806

Sherry P. Broder Jon M. Van Dyke 841 Bishop Street, Suite 800 Honolulu, m 96813 Telephone 808-531-1411 Fax 808-531-8411


Attorneys for Celsa Hilao et al. and the Class of Human Rights Victims


CERTIFICATE OF COMPLIANCE

I certify that pursuant to Ninth Circuit Rules 35-4(a) and 40-1 (a), the attached Motion of the Class Plaintiffs and the Class of Human Rights Victims for Stay of the Mandate Pending Petition for Certiorari is proportionately spaced, has a type face of 14 points, and contains 1640 words of text.

~.~------Robert A. Swift


CERTIFICATE OF SERVICE

I hereby certify that a copy of the Foregoing Motion of the Class Plaintiffs and the Class of Human Rights Victims for Stay of the Mandate Pending Petition for Certiorari was served on this 15th day of September 2008 by U.S. Mail and CMlECF on the following counsel:

Eugene D. Gulland Covington & Burling 1201 Pennsylvania Avenue, NW Washington, D.C. 20004-2401

James P. Linn 1601 NW Expressway St. #1110 Oklahoma City, OK 13118-1427

Randall Scarlett 536 Pacific Avenue San Francisco, CA 94133

Carol A. Eblen Goodsill Anderson Quinn & Stifel LP 1099 Alakea St., Suite 1800 Honolulu, III 96813

John J. Bartko Bartko, Tarrant & Miller 900 Front Street, Suite 300 San Francisco, CA 94111-1427

Bert T. Kobayashi, Jr. LexR. Smith Kobayashi Sumita & Goda 999 Bishop St., 26th FIr. Honolulu, III 96813-3.889

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Jay R. Ziegler Bachalter Nemer 1000 Wilshire Blvd, 15th Floor Los Angeles, CA 90017

Steven V. Bomse Richard Cashman Rachel Jones Heller Ehrman LP 333 Bishop Street San Francisco, CA 94111

Paul Hoffinan Schonbrun, De Simone, Seplow, Harris & Hoffman 723 Oceanfront Walk, Suite 100 Venice, CA 90291

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Documents

In re: ESTATE OF FERDINAND E. 99.pdf · sunsetted pursuant to Haw. Rev. Stat. 657-5. In re Estate o/Ferdinand E. Marcos Human Rights Litig., 536 F.3d 980. This Court denied the Class's