WRIT OF CERTIORARI FOR NINTH CIRCUIT COURT OF APPEALS

No. 06-1204
================================================================
In The
Supreme Court of the United States
——————————— ———————————
REPUBLIC OF THE PHILIPPINES, et al.,
Petitioners,
v.
MARIANO J. PIMENTEL, et al.,
Respondents.
——————————— ———————————
On Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit
——————————— ———————————
BRIEF FOR RESPONDENT
MARIANO J. PIMENTEL
——————————— ———————————
ROBERT A. SWIFT
*
CRAIG W. HILLWIG KOHN, SWIFT, & GRAF, P.C.
One S. Broad Street, Suite 2100
Philadelphia, PA 19107
(215) 238-1700
SHERRY
P. BRODER
841 Bishop Street, Suite 800
Honolulu, HI 96813
(808) 531-8411
JON M. VAN DYKE
2515 Dole Street
Honolulu, HI 96822
(808) 956-8509
Counsel for Respondent Mariano J. Pimentel
and the Class of Human Rights Victims
*Counsel of Record
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
Page 2
i
QUESTIONS PRESENTED
Whether the Republic of the Philippines (Repub-
lic) and its Presidential Commission on Good Gov-
ernment (PCGG), having been dismissed from the
interpleader action based on their successful asser-
tion of sovereign immunity, had the right to appeal
the district court’s determination that they were not
indispensable parties under Federal Rule of Civil
Procedure 19(b); and whether the Republic and its
PCGG have a right to seek this Court’s review of the
court of appeal’s opinion affirming the district court.
Whether the lower courts acted within their
discretion and followed the tests set out in Rule 19(b)
of the Federal Rules of Civil Procedure, as applied in
Provident Tradesmens Bank & Trust Co. v. Patterson,
in concluding, in equity and good conscience, that the
Republic of the Philippines and its PCGG were not
indispensable parties to this interpleader litigation.
Page 3
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED …………………………..
i
TABLE OF AUTHORITIES……………………………
v
INTRODUCTION …………………………………………
1
COUNTER-STATEMENT OF THE CASE ……….
1
SUMMARY OF ARGUMENT ………………………… 16
ARGUMENT……………………………………………….. 19
I. The Republic Has No Right To Appeal…… 19
A. Only “parties” to a judgment have a
right to appeal therefrom……………….. 19
B. The Republic was not a party to the
judgment and was not treated as a
party to the judgment…………………….. 20
C. The Republic failed to intervene to
assert its indispensability and pre-
serve a right to appeal……………………. 24
II. The Court Must Dismiss The Appeal As
To Arelma And The Philippine National
Bank Because They Lack Power To Ap-
peal And No Live Controversy Remains
As To Them ………………………………………… 31
III. The Republic Is Not An Indispensable
Party Under Rule 19(b) ……………………….. 35
A. The lower courts’ Rule 19(b) determi-
nation is reviewable under an abuse
of discretion standard…………………….. 36
Page 4
iii
TABLE OF CONTENTS – Continued
Page
B. The lower courts properly applied
Rule 19(b) pursuant to the instruc-
tions of this Court in Provident
Tradesmens Bank ………………………….. 39
1. The Class would be prejudiced by
a dismissal……………………………….. 40
2. The Republic is not bound by the
judgment………………………………….. 42
3. The judgment effects finality and
gives Plaintiff Merrill Lynch an
adequate remedy ………………………. 42
4. Other factors support the Rule
19(b) determination…………………… 44
5. The Republic’s sovereignty is a
factor but not the sole or overrid-
ing factor………………………………….. 46
C. Balancing all factors, the lower courts
properly held the Republic was not an
indispensable party ……………………….. 51
IV. This Case Will Not Impact Adversely On
United States Foreign Relations…………… 52
CONCLUSION…………………………………………….. 57
Page 5
iv
TABLE OF CONTENTS – Continued
Page
APPENDICES
A. Amicus Brief of the Republic of the Philip-
pine (9th cir. 1987)…………………………………… RA-1
B. Decision of the U.N. Human Rights Com-
mittee in Pimentel v. The Philippines, No.
1320/2004 (Mar. 19, 2007)………………………. RA-12
C. Letter Robert Swift to Swiss Ambassador
Urs Ziswiler (Dec. 11, 2007)……………………. RA-24
Page 6
v
TABLE OF AUTHORITIES
Page
FEDERAL CASES
American General Life and Acc. Insurance Co.
v. Wood, 429 F.3d 83 (4th Cir. 2005)…………………..36
Artichoke Joe’s v. Norton, 216 F. Supp. 2d 1084
(E.D. Cal. 2002)……………………………………………….47
Ashcroft v. Mattis, 471 U.S. 171 (1977) …………………33
Bonzel v. Pfizer, Inc., 439 F.3d 1358 (Fed. Cir.
2006) ………………………………………………………………37
Bourdieu v. Pacific Western Oil Co., 299 U.S. 65
(1936)……………………………………………………………..40
Brown v. Pacific Life Insurance Co., 462 F.3d
384 (5th Cir. 2006) …………………………………………..36
Chicago v. Atchison, T. & S.F. Ry. Co., 357 U.S.
77 (1958)…………………………………………………………35
Choctaw and Chickasaw Nations v. Seitz, 193
F.2d 456 (10th Cir. 1951) ………………………………….48
Citibank Int’l v. Collier-Traino, Inc., 809 F.2d
1438 (9th Cir. 1987) …………………………………………24
Cloverleaf Standardbred Owners Association v.
National Bank of Washington, 699 F.2d 1274
(D.C. Cir. 1983)………………………………………………..37
Conner v. Burford, 848 F.2d 1441 (9th Cir.
1988) ………………………………………………………………45
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,
126 S. Ct. 1854 (2006)…………………………………31, 32
Davis ex rel. Davis v. United States, 343 F.3d
1282 (10th Cir. 2003) ……………………………………….36
Page 7
vi
TABLE OF AUTHORITIES – Continued
Page
Davis v. United States, 192 F.3d 951 (10th Cir.
1999) ………………………………………………………………49
Dawavendewa v. Salt River Project Agricul-
tural Improvement and Power District, 276
F.3d 1150 (9th Cir. 2002)…………………………………..47
Deposit Guaranty Nat’l Bank v. Roper, 445 U.S.
326 (1980)……………………………………………………….32
Devlin v. Scardelletti, 536 U.S. 1 (2002)…………passim
Dole Food Co. v. Patrickson, 538 U.S. 468
(2003)…………………………………………………….9, 10, 56
Extra Equipamentos E Exportacao Ltda. v.
Case Corp., 361 F.3d 359 (7th Cir. 2004)……….36, 38
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.
1980) ………………………………………………………………55
GE Capital Mortgage Services, Inc. v. Estate of
Lugo, 319 F. Supp. 2d 127 (D.Mass. 2004)………….50
General Refractories Co. v. First State Insur-
ance Co., 500 F.3d 306 (3d Cir. 2007) …………………36
Georgia v. Jesup, 106 U.S. 458 (1882) ……………..28, 29
Glancy v. Taubman Centers, Inc., 373 F.3d 656
(6th Cir. 2004) …………………………………………………36
Hanson v. Denckla, 357 U.S. 235 (1958)………………..35
Hecht Co. v. Bowles, 321 U.S. 321 (1944) ………………40
Hilao v. Estate of Ferdinand Marcos, 103 F.3d
767 (9th Cir. 1996) …………………………………………….2
Page 8
vii
TABLE OF AUTHORITIES – Continued
Page
Hilao v. Estate of Marcos, 393 F.3d 987 (9th
Cir. 2004) ………………………………………………………..22
Hinckley v. Gilman, C. & S.R. Co., 94 U.S. 467
(1876)……………………………………………………………..30
Honig v. Doe, 484 U.S. 305 (1988)…………………………33
Horizon Bank & Trust Co. v. Flaherty, 309
F. Supp. 2d 178 (D.Mass. 2004)…………………………50
Horizon Bank & Trust Co. v. Massachusetts,
391 F.3d 48 (1st Cir. 2004)…………………………..33, 34
Hudson Savings Bank v. Austin, 479 F.3d 102
(1st Cir. 2007)………………………………………………….50
Imperial Appliance Corp. v. Hamilton Manu-
facturing Co., 263 F. Supp. 1015 (E.D. Wis.
1967) ………………………………………………………………49
In re Estate of Ferdinand E. Marcos Human
Rights Litigation, 910 F. Supp. 1460 (D. Ha-
waii 1995) …………………………………………………………2
In re Estate of Ferdinand Marcos Human
Rights Litigation, 94 F.3d 539 (9th Cir.
1996) …………………………………………………………55, 56
In re Estate of Marcos Human Rights Litiga-
tion, 25 F.3d 1467 (9th Cir. 1994)………………………55
In re Republic of the Philippines, 309 F.3d 1143
(9th Cir. 2002) ………………………………………….8, 9, 22
Kansas v. United States, 249 F.3d 1213 (10th
Cir. 2001) ………………………………………………………..49
Karcher v. May, 484 U.S. 72 (1987) ……………19, 20, 24
Page 9
viii
TABLE OF AUTHORITIES – Continued
Page
Mallow v. Hinde, 25 U.S. (12 Wheat.) 193
(1827)……………………………………………………………..26
Marino v. Ortiz, 484 U.S. 301 (1988) ………….20, 21, 25
Martin v. Wilks, 490 U.S. 755 (1989) …………………….25
Marx v. Guam, 866 F.2d 294 (9th Cir. 1989) ………….24
Merrill Lynch, Pierce, Fenner and Smith, Inc. v.
ENC Corporation, 464 F.3d 885 (9th Cir.
2006) ……………………………………………………….passim
Merrill Lynch, Pierce, Fenner and Smith, Inc. v.
ENC Corporation, 467 F.3d 1205 (9th Cir.
2006) ………………………………………………………………12
Mescalero Apache Tribe v. State of New Mexico,
131 F.3d 1379 (10th Cir. 1997) ………………………….49
Minnesota v. Northern Sec. Co., 184 U.S. 199
(1902)……………………………………………………………..35
Minnesota v. United States, 305 U.S. 382
(1939)……………………………………………………………..29
Moose Lodge No. 107 v. Irvis, 407 U.S. 163
(1972)……………………………………………………………..32
Narragansett Tribe of Indians v. Southern
Rhode Island Land Development Corp., 418
F. Supp. 798 (D.R.I. 1976)…………………………………48
Payne v. Niles, 61 U.S. (20 How.) 219 (1858)………….19
Preiser v. Newkirk, 422 U.S. 395 (1975) ………………..32
Provident Tradesmen Bank & Trust Co. v.
Patterson, 390 U.S. 102 (1968) …………………..passim
Page 10
ix
TABLE OF AUTHORITIES – Continued
Page
Republic of the Philippines v. Christie’s, No. 98-
3871 (S.D.N.Y. 1998)………………………………………….6
Republic of the Philippines v. Marcos, No. 86-
2294 (S.D.N.Y. 1986)………………………………………….6
Republic of the Philippines v. Marcos, 806 F.2d
344 (2d Cir. 1986)………………………………………………3
Republic of the Philippines v. Marcos, 818 F.2d
1473 (9th Cir. 1987) …………………………………………..6
Sac and Fox Nation of Missouri v. Norton, 240
F.3d 1250 (10th Cir. 2001) ………………………………..49
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)……….55
Sotheby’s v. Garcia, 802 F. Supp. 1058
(S.D.N.Y. 1992)………………………………………………….6
South Carolina v. Wesley, 155 U.S. 542
(1895)…………………………………………………..27, 28, 29
Spirit Lake Tribe v. North Dakota, 262 F.3d 732
(8th Cir. 2001) …………………………………………………36
Stringfellow v. Concerned Neighbors in Action,
480 U.S. 370 (1987)………………………………………….26
Taylor v. Freeland & Kronz, 503 U.S. 638
(1992)……………………………………………………………..32
Travellers Indemnity Co. v. Dingwell, 884 F.2d
629 (1st Cir. 1989)……………………………………………36
U.S. ex rel. Steele v. Turn Key Gaming, Inc.,
135 F.3d 1249 (8th Cir. 1998) ……………………………49
United Airlines, Inc. v. McDonald, 432 U.S. 385
(1977)……………………………………………………………..24
Page 11
x
TABLE OF AUTHORITIES – Continued
Page
United States v. Minnesota, 95 F.2d 468 (8th
Cir. 1938) ………………………………………………………..30
United States v. Rigel Ships Agencies, Inc., 432
F.3d 1282 (11th Cir. 2005)…………………………………37
United States Parole Commission v. Geraghty,
445 U.S. 388 (1980)…………………………………….33, 34
Universal Reinsurance Co., Ltd. v. St. Paul Fire
and Marine Insurance Co., 312 F.3d 82 (2d
Cir. 2002) ………………………………………………………..36
Walsh v. Centeio, 692 F.2d 1239 (9th Cir. 1982) ……..37
Wyandotte Nation v. City of Kansas City, Kan-
sas, 200 F. Supp. 2d 1279 (D. Kan. 2002)……………49
Yee v. City of Escondido, 503 U.S. 519 (1992)…………32
S
TATE
C
ASES
Dairyland Greyhound Park, Inc. v. McCallum,
258 Wis. 2d 210, 655 N.W.2d 474 (Wis. 2002)……..49
Saratoga County Chamber of Commerce, Inc. v.
Pataki, 100 N.Y.2d 801, 798 N.E.2d 1047
(N.Y. 2003)………………………………………………………46
INTERNATIONAL CASES AND TREATIES
In the Matter of The Swiss Federal Office of
Police Matters v. Fondation Maler et al.,
1A.91 (Swiss Sup. Ct. 1997)………………………………57
Pimentel v. The Philippines, No. 1320/2004
(U.N. Human Rights Com.) (Mar. 19, 2007) ……….14
Page 12
xi
TABLE OF AUTHORITIES – Continued
Page
Republic of the Philippines vs. Heirs of Ferdi-
nand E. Marcos et al., No. 141 (Phil. Sup. Ct.
2003) ………………………………………………………………10
Swiss Federal Office for Police Matters v. Fonda-
tion Maler, 1A.91 (Swiss Sup. Ct. 1997)………………..15
U.N. Convention Against Corruption, Oct. 31,
2003, GA Res. 58/4 ……………………………………..44, 52
U.N. Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment, art. 14, Dec. 10, 1984, 1465
U.N.T.S. 85 ……………………………………………………..45
U.N. International Covenant on Civil and
Political Rights, art. 2(3), Dec. 9, 1966, 1999
U.N.T.S. 1711 ……………………………………….15, 18, 45
U.N. International Covenant on Civil and
Political Rights, art. 14(1), Dec. 9, 1966, 1999
U.N.T.S. 1711 ………………………………………………….15
U.S.-Phil., S. Treaty Doc. No. 18, 104th Cong.,
1st Sess. (1995)……………………………………..43, 44, 52
U.S. C
ONSTITUTION AND
F
EDERAL
S
TATUTES
U.S. Constitution, Article III……………………..31, 32, 33
28 U.S.C. § 1254(1)……………………………………………..20
28 U.S.C. § 1335 …………………………………………………35
28 U.S.C. § 2467(C) …………………………………………….44
Page 13
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TABLE OF AUTHORITIES – Continued
Page
Foreign Sovereign Immunities Act (FSIA), 28
U.S.C. §§ 1602-11……………………………………….29, 46
Torture Victim Protections Act of 1991, 106
Stat. 73, 28 U.S.C. § 1350n……………………………….55
F
EDERAL
R
ULES
Federal Rules of Civil Procedure:
Rule 19…………………………………………………27, 42, 52
Rule 19(b) ………………………………………………..passim
Rule 24……………………………………………………………24
Federal Rule of Appellate Procedure 3………………….20
Supreme Court Rule 14.1(a)…………………………………32
M
ISCELLANEOUS
7 C. Wright, et al., Federal Practice and Proce-
dure § 1611 (3d ed. Supp. 2007) ………………………..26
Restatement (Third) of the Foreign Relations
Law of the United States § 482(2)………………………12
Page 14
1
BRIEF FOR RESPONDENT
MARIANO J. PIMENTEL
INTRODUCTION
This appeal presents the policy question of
whether a foreign sovereign can upset a judgment
rendered by a United States court adjudicating
entitlement to assets long located in the United
States based on the dual claims of immunity and
indispensability. The prevailing party is a Class of
indigent Filipino Human Rights Victims whose own
government seeks to deprive them of compensation
for their mistreatment by using its immunity as both
a sword and a shield. Tradition and precedent of this
Court support resisting manipulation of federal court
procedures by the foreign sovereign.
——————————— ———————————
COUNTER-STATEMENT OF THE CASE
The judgment in this statutory interpleader
action awarded assets of about $35 million in an
account (the “Account”) at Merrill Lynch, Pierce,
Fenner & Smith, Inc. to the Respondent Class of
9,539 victims of grave human rights abuses suffered
during the 1972-86 martial-law regime of Ferdinand
E. Marcos in the Philippines. Marcos was sued by the
Class in the U.S. District Court for the District of
Hawaii after he fled to Honolulu following the Febru-
ary 1986 “People Power” revolution in the Philip-
pines.
In the interpleader, the Class members sought to
collect a portion of their judgment of almost $2 billion
Page 15
2
rendered in their historic human rights action. Hilao
v. Estate of Ferdinand Marcos, 103 F.3d 767 (9th Cir.
1996). The Class members are individuals (and their
heirs) who were victims of “massive jus cogens human
rights abuses for which Marcos was responsible.”
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Arelma,
Inc., No. CV00-595-R (D.Hawaii Aug. 14, 2003) [here-
inafter “Tr.Ct.Op.”], Pet.App. 43a, 53a. They were
“subjected to hideous tortures,” “summarily executed”
or “simply ‘disappeared.’ ” Id. at 45a; In re Estate
of Ferdinand E. Marcos Human Rights Litig.,
910 F. Supp. 1460, 1462-63 (D.Hawaii 1995) (listing
specific forms of torture used).
The underlying case for massive human rights
abuses was pursued with the explicit approval of the
Republic,
1
which filed an amicus curiae brief in 1987
urging the U.S. courts to provide a venue for the
Victims’ claims. This amicus brief, discussed in more
detail infra, stated explicitly that the Republic’s
“foreign relations with the United States will not be
adversely affected if these human rights claims
against Ferdinand Marcos are heard in U.S. courts.”
Amicus Curiae Brief Filed in 1987 by the Republic in
Hilao v. Marcos, No. 15039, RA-1, 11.
The Republic was also litigating actively in the
United States during this period, seeking to recover
1
Reference to the Republic herein also refers to its execu-
tive agency, the Petitioner Presidential Commission for Good
Government (PCGG).
Page 16
3
Marcos assets, and it stated in a complaint it filed in
the U.S. District Court for the Southern District of
New York in 1986 that after Ferdinand Marcos be-
came “the dictator of the Philippines with personal
control over its government and economy,” he “par-
ticipated in a variety of activities constituting a gross
denial of human rights, including abduction, murder,
torture, summary incarceration and execution.”
Republic of the Philippines v. Marcos, 806 F.2d 344,
348 (2d Cir. 1986) (summarizing language from the
Republic’s complaint). The trial court explained in the
present case that Marcos directly controlled all mili-
tary and para-military groups in the Philippines and
guided the systematic abuses imposed upon thou-
sands of victims. Tr.Ct.Op., Pet.App. 44a-45a.
The abuse committed against Plaintiff Pi-
mentel by the Philippine military is illustra-
tive of the claims of the class he represents.
Pimentel was arrested two weeks after the
declaration of martial law. During the next
six years he was held in detention centers for
four years with no charges against him. On
his trip home from his final detention, the
military kidnapped him. They beat him with
rifles breaking his teeth, an arm and a leg,
and dislocating ribs. They then took him to a
remote sugar cane field, buried him up to his
neck and left him for dead.
Id. at 48a (emphasis added).
Page 17
4
Merrill Lynch filed this interpleader action in
September 2000
2
to determine the entitlement to
Merrill Lynch securities account No. 165-07312 (the
“Account”) established by Ferdinand E. Marcos in
1972 in the name of Arelma Inc. a shell corporation
3
incorporated in Panama for the purpose of hiding
actual ownership of these assets. See Tr.Ct.Op.,
Pet.App. 46a-47a. Arelma’s incorporation coincided
with Marcos’s declaration of martial law and the
onslaught of massive jus cogens human rights viola-
tions. See id. at 45a, 53a. The Arelma Account was
opened with a deposit of $2,000,000 provided by
Marcos, which grew to about $35,000,000 when the
interpleader was filed in September 2000. Id. at 45a-
46a; Ex. 9, Joint Appendix (JA) at 34. Merrill Lynch
deposited the Account assets, consisting of securities
and cash, in the district court at the outset of this
statutory interpleader litigation. Tr.Ct.Op., Pet.App.
46a. Merrill Lynch named as defendants those
2
The Petitioners’ assertion, Pet.Br. at 6 n. 5, that the lower
court instructed Merrill Lynch to deposit the Arelma assets in
the U.S. District Court for the District of Hawaii is contrary to
fact and court ruling. A different federal judge in Hawaii, ruling
on the Republic’s recusal motion, found “the court did not direct,
order, or require Merrill Lynch to file the instant action.” Merrill
Lynch has explained in its amicus curiae brief that it filed the
interpleader action in the U.S. District Court for the District of
Hawaii in September 2000, because of the competing claims that
had been presented for the Arelma assets. Merrill Lynch Br. at
8.
3
Petitioners acknowledge that Arelma was a “shell corpora-
tion” at page 2 of their Brief, and the court of appeals so found.
Ct.Ap.Op., Pet.App. 10a.
Page 18
5
persons or entities that had claimed the Account,
including the four Petitioners, the Class of Human
Rights Victims, and members of the Marcos family.
JA13-15.
The record in this case, developed through four
years of protracted and contentious litigation, con-
tains undisputed evidence that the Arelma Account
was established at the explicit direction of Marcos
with funds he provided. “Arelma was incorporated to
receive funds owned by Ferdinand Marcos,” Tr.Ct.Op.,
Pet.App. 48a; “[t]he source of those funds [in the
Merrill Lynch Account] was Ferdinand E. Marcos” id.
at 45a; “[Ferdinand E.] Marcos controlled Arelma
during his lifetime.” Id. at 48a. “The purpose of
incorporating Arelma was to receive funds owned by
Ferdinand E. Marcos, and there is no evidence the
funds deposited in the Arelma account at Merrill
Lynch were not the property of Ferdinand E. Marcos.”
Id. at 53a.
The Republic has acknowledged that it knew
about the Arelma Account since at least 1986. Pet.Br.
at 5; see also Merrill Lynch, Pierce, Fenner & Smith v.
Arelma, Inc., No. CV00-595MLR, Findings of Fact &
Conclusions of Law re Rule 19(b) Motion (D.Hawaii
Aug. 14, 2003) [hereafter cited as “Tr.Ct. FOF/COL”],
Pet.App. 56a (“The Republic has been aware of the
deposit since 1986 . . . “). In 1987, the Republic sought
and obtained the assistance of the U.S. District Court
for the Southern District of New York to issue a
preliminary injunction freezing the Arelma account.
See Ex. 23, JA35; Tr.Ct.Op., Pet.App. 47a; Tr.Ct.
Page 19
6
FOF/COL, Pet.App. 56a. See also Republic of the
Philippines v. Marcos, No. 86-2294 (S.D.N.Y. 1986).
The Republic, however, never pursued recovery of the
Arelma account, and the injunction lapsed.
Beginning in 1986, the Republic filed or was a
party in at least a dozen cases in various U.S. courts
seeking to recover Marcos assets, see, e.g., Republic of
the Philippines v. Marcos, 818 F.2d 1473, 1475 (9th
Cir. 1987), but never asserted immunity in any of
these earlier cases. See, e.g., Tr.Ct.Op., Pet.App. 47a;
Tr.Ct. FOF/COL, Pet.App. 58a. Four cases were in the
Hawaii federal court. Some of these cases were mas-
sive in scope and required federal courts to devote
considerable judicial resources. The Republic partici-
pated in at least two other interpleader proceedings
without asserting immunity or indispensability. See
Sotheby’s v. Garcia, 802 F. Supp. 1058 (S.D.N.Y. 1992)
(in which the Republic waived its immunity and
participated willingly in an interpleader concerning
disputed paintings); Republic of the Philippines v.
Christie’s, No. 98-3871 (S.D.N.Y. 1998) (involving a
Picasso painting and including the Class as a claim-
ant).
No evidence produced through discovery or
introduced at the present interpleader trial by the
Republic or its affiliated parties (Arelma and the
Philippine National Bank (“PNB”)) supports the
Republic’s position that the $2 million deposited in
the Account was “misappropriated” or “stolen,” which
is the cornerstone of Petitioners’ contentions. See
Pet.Br. at 1. In fact, both lower courts concluded that
Page 20
7
this Account was the property of Ferdinand E. Mar-
cos: “The purpose of incorporating Arelma was to
receive funds owned by Ferdinand E. Marcos, and
there is no evidence the funds deposited in the
Arelma account at Merrill Lynch were not the prop-
erty of Ferdinand E. Marcos.” Tr.Ct.Op., Pet.App. 53a.
“Arelma is a shell corporation . . . and the court may
look through the corporate form to Marcos, the owner
of its assets.” Ct.Ap.Op., Pet.App. 10a (emphasis
added).
4
Although the Republic did not participate
directly in the interpleader proceedings after it with-
drew from the litigation, it utilized Arelma and PNB
as its proxies because (a) after 2000, it controlled
Petitioner Arelma, worked with Arelma’s counsel,
paid for Arelma’s prosecution of the litigation, and (b)
it controlled the escrow agent Petitioner PNB, owned
16% of PNB’s stock, and elected four of its 11 direc-
tors. See Rogel Zenarosa Dep. at 9-12.
The Republic moved to dismiss itself on sovereign
immunity grounds in this litigation only after losing a
motion to change venue or recuse the judge assigned
to the case. See Dkt. No. 56. At no time did the Re-
public seek to intervene for any purpose before the
district court or the court of appeals, even after the
district court ruled that it was not an indispensable
party. Tr.Ct. FOF/COL, Pet.App. 55a-60a. The court
of appeals ruled in 2002, in an earlier appeal,
4
The assertion made by Petitioners to the contrary in the
last sentence of their footnote 10 (Pet.Br. at 25) is seriously
misleading.
Page 21
8
In re Republic of the Philippines, 309 F.3d 1143 (9th
Cir. 2002), Pet.App. 30a-42a [hereafter cited as “2002
Ct.Ap.Op.”] that the Republic was entitled to dis-
missal on sovereign immunity grounds, but it de-
clined to accept the Republic’s argument that it was
an indispensable party to this litigation pursuant to
Rule 19(b). Id. at 1153. On remand, in 2003, the
district court, acting on the Rule 19(b) motion of
Arelma and PNB, made detailed findings and conclu-
sions holding the Republic was not an indispensable
party. Tr.Ct. FOF/COL, Pet.App. 58a-60a. This opin-
ion noted that the record was substantially more
complete as a result of the completion of discovery
and the filing of various motions, including a motion
for summary judgment, compared to the record that
had been transmitted to the court of appeals two
years earlier. Id. at 56a. The district court explained
that the record did not support the contention that a
Philippine court was about to rule on the forfeiture of
the Arelma assets. Id. at 56a-57a. The court noted
that the long-awaited 85-page decision issued by the
Philippine Supreme Court on July 15, 2003 did not
even mention Arelma. Id. at 56a.
The district court noted that because the Repub-
lic had known about the Arelma Account since 1986
and had obtained an injunction from a federal court
with regard to this Account in 1987, the Republic’s
claim to the assets would be barred by the applicable
New York statutes of limitations, id. at 56a-57a,
and hence was not “legally protectible.” Id. at 58a.
The district court specifically held that because the
Page 22
9
Republic would not be bound by the judgment or
findings in the case, its claim would not be impaired:
Neither res judicata nor collateral estoppel
from rulings in this case will apply to the
Republic and its PCGG since it is no longer a
party.
Id. at 58a. The court of appeals affirmed the lifting of
the stay on February 20, 2004, clearing the way for
trial. Merrill Lynch, Pierce, Fenner & Smith v.
Arelma, Inc., Nos. 03-16742, 03-16743 (9th Cir. Feb.
20, 2004), JA25-27.
At trial, the members of the Class of Human
Rights Victims prevailed in proving that Arelma was
an alter ego of Ferdinand Marcos and that their claim
as judgment creditors had priority to the interpleaded
assets. Tr.Ct.Op., Pet.App. 53a-54a. The claim of
PNB, based on its possession of the Arelma stock
certificates, was denied based on this Court’s decision
in Dole Food Co. v. Patrickson, 538 U.S. 468 (2003),
which confirmed that an individual shareholder does
not own a corporation’s assets.
5
Id. at 52a. The claims
of the remaining parties, the Roxas Estate and the
Golden Budha Corporation, were denied since (a)
5
The Republic’s argument that the Arelma Account is a
“subset” of Marcos’ Swiss assets, Pet.Br. at 5, and should “follow
the [Arelma] shares,” transferred to it by Swiss authorities,
Pet.Br. at 40-41, is legally and factually wrong. The Swiss
government never had possession or control of the assets in the
Merrill Lynch account, and the Republic of the Philippines never
owned the Arelma share certificates. Tr.Ct.Op., Pet.App. 46a.
Page 23
10
their prior judgments were not against Ferdinand
Marcos or his Estate, and (b) they failed to prove the
Account assets derived from property stolen from
them.
6
Id. at 53a-54a.
Four days after entry of the district court’s July
12, 2004 judgment, JA90, the Republic filed a motion
in a Philippine trial court to reopen long-closed
litigation there, asking that court to find that the
Arelma assets – which had been in the United States
for more than three decades and in the custody of the
district court for four years – were the property of the
Republic. See Republic of the Philippines vs. Heirs of
Ferdinand E. Marcos et al., No. 141 (Sandiganbayan,
1st Div.). This motion, which omitted mention of the
U.S. judgment, specifically referred to the Arelma
Account and asked the Philippine court to declare
“the funds, properties, shares and interests of
Arelma, Inc. as forfeited in favor of the Republic.” The
parties to that proceeding are limited to the Republic
and the Marcoses, and the Human Rights Victims
have been excluded from participation. Pet.App. 10a,
59a. Now, three-and-a-half years later, the Philippine
court still has not ruled on the motion.
In 2006, the court of appeals affirmed the judg-
ment in favor of the Class of Human Rights Victims.
7
6
A Petition for Certiorari, No. 06-1039, by these parties is
pending before this Court.
7
Although the Class twice argued that the Republic as a
nonparty lacked power to appeal, see JA92-98 and Pimentel’s
Ninth Circuit Brief at 28, the court of appeals did not address
(Continued on following page)
Page 24
11
Merrill Lynch, Pierce, Fenner and Smith, Inc. v ENC
Corporation, 464 F.3d 885 (9th Cir. 2006) [hereinafter
“Ct.Ap.Op.”], in Petitioner’s Appendix to its Certiorari
Petition [hereinafter “Pet.App.”] at 1a-11a. The court
of appeals understood that the four factors listed in
Rule 19(b) are directly fact-based and examined the
“circumstances and practicalities of the Republic’s
claim” to determine whether the judgment rendered
in its absence ” ‘might be prejudicial to [it] or those
already parties.’ ” Id. at 4a (quoting Rule 19(b)). It
then examined two specific scenarios that could
follow if the Republic were deemed indispensable,
and concluded that “it is doubtful that the Republic
has any likelihood of recovering the Arelma assets”
because “[t]he res is in the United States” and [i]t
cannot be finally disposed of except by the judgment
of a court in the United States.” Id. at 7a-8a. The
court of appeals recognized that any effort by the
Republic to pursue the Arelma assets in an action
against Merrill Lynch in New York would be barred
by New York’s six-year statute of limitations. Id. at 8a
(citing N.Y. C.P.L.R. sec. 213, and also citing Provi-
dent Tradesmen Bank & Trust Co. v. Patterson, 390
U.S. 102, 115 (1968), for the proposition that the
Republic’s “failure to secure a judgment affecting
these assets is a factor to be taken into account”). Id.
at 7a. The court of appeals explained that any judg-
ment the Republic might obtain in the Philippines
the issue, because it ruled for the Class on the Rule 19(b) issue.
See Ct.Ap.Op., Pet.App. 9a-11a.
Page 25
12
would be unenforceable, because the Philippine court
would have no jurisdiction over the res – the Arelma
Account assets – and if a Philippine court were to
issue a ruling regarding these assets, “a court of this
country would not be bound to give it effect.” Id. at
8a. See also Merrill Lynch, Pierce, Fenner and Smith,
Inc. v. ENC Corporation, 467 F.3d 1205, 1207 (9th
Cir. 2006), Pet.App. 61a, where the court of appeals
noted that the Philippine Supreme Court had previ-
ously “categorically declared” that its forfeiture
proceeding regarding Marcos assets “is in rem,” citing
Republic of the Philippines v. Sandiganbayan (Nov.
18, 2003), and also citing Restatement (Third) of the
Foreign Relations Law of the United States § 482(2)(a)
(1987) for the proposition that “any judgment made
without proper jurisdiction is unenforceable in the
United States.” The court of appeals noted explicitly
that the Republic is not bound by the present pro-
ceeding, “because it is not a party to the action,” and
that it is not formally prejudiced because it remains
free to pursue a claim against Merrill Lynch in the
United States (although its odds of success are ex-
tremely low because of New York’s six-year statute of
limitations). Ct.Ap.Op., Pet.App. 8a-9a.
The court of appeals completed the balancing
process required by Rule 19(b) by concluding (a) that
“[b]ecause the Republic has little practical likelihood
of obtaining the Arelma assets, there is no need to
lessen prejudice to it,” id. at 9a; (b) that although the
Arelma assets are not adequate to satisfy the Human
Page 26
13
Rights Victims $2 billion award, nonetheless “the
symbolic significance of some tangible recovery is not
to be disregarded, and if the recovery is distributed
pro rata among the individuals, it will have monetary
meaning for the poor among them,” id.; (c) that if this
interpleader were to have been dismissed on the basis
of indispensability, the Human Rights Victims would
have no alternative forum open to them in the Philip-
pines, id.; and (d) that the Human Rights Victims
could be required to sue in New York but such a
requirement would impose “a needless repetition that
will not benefit the Republic.” Id. The court of appeals
noted that it would be unrealistic to direct the Hu-
man Rights Victims to “find redress from their own
government” because – despite the passage of 21
years since Marcos was forced out of office – “the
Republic has not taken steps to compensate these
persons who suffered outrage from the extra-legal
acts of a man who was the president of the Republic.”
Id. at 9a-10a. The court of appeals then concluded
that “[n]o injustice is done [to the Republic] if it now
loses what it can never effectually possess.” Id. at 9a.
Shortly after the decision of the court of appeals,
the district court ordered the first distribution of
monies to Class members since the time they had
initiated litigation against Marcos in 1986.
8
The
8
By stipulation, the parties in the instant case, pending
appeal, transferred the assets at issue to the Marcos Human
Rights Litigation, MDL 840, pending in the same court. The
distribution order was entered in MDL 840.
Page 27
14
district court ruled that each eligible class member
will receive, initially, $2,000, upon issuance of the
mandate. In re Estate of Ferdinand E. Marcos Human
Rights Litigation, MDL No. 840, Order of June 26,
2006, JA103-104. The overwhelming number of Class
members are impoverished and exist in a cycle of
poverty. In a country where the median per capita
income is $1,600 per year, this first distribution “will
have monetary meaning for the poor among them.”
Ct.Ap.Op., Pet.App. 9a.
Other collection efforts by the Class have been
stymied, not just by the well known fact that Marcos
concealed his wealth,
9
but also by the unwillingness
of the Philippine courts to allow the Class members to
file their judgment in order to pursue collection
possibilities in the Philippines. In 2007, the United
Nations Human Rights Committee found that this
refusal constituted a violation of the Class members’
rights under international law. See Pimentel v. The
Philippines, Communication No. 1320/2004 (Mar. 19,
2007), RA-12-23. The Committee found that the
9
The 1995 judgment included the following finding:
Ferdinand and Imelda Marcos engaged in a sophisti-
cated pattern and practice of secreting their assets,
periodically laundering those assets in various coun-
tries, and redepositing the monies in Swiss bank ac-
counts in the names of the multiple Liechtenstein
foundations.
In re Estate of Ferdinand E. Marcos Human Rights Litigation,
MDL No. 840, Final Judgment (D. Hawaii Feb. 3, 1995), JA49,
57.
Page 28
15
obstructive procedures employed by the Philippine
courts (the trial court required the Class members to
pay a filing fee of US$8,400,000 and the Philippine
Supreme Court took eight years and three months to
overturn this ruling) violated the rights of the Class
members under Articles 2(3)(a) and 14(1) of the
International Covenant on Civil and Political Rights,
Dec. 9, 1966, 1999 U.N.T.S. 1711:
The Committee is of the view that the au-
thors [the Class] are entitled, under article 2,
paragraph 3(a), of the Covenant, to an effec-
tive remedy. The State party is under an
obligation to ensure an adequate remedy to
the authors including, compensation and a
prompt resolution of their case on the en-
forcement of the US judgement in the State
party. The State party is under an obligation
to ensure that similar violations do not occur
in the future.
Human Rights Committee, para. 11, RA-23.
The Republic has never compensated the Class
members for the abuses they suffered during the
Marcos regime, Ct.Ap.Op., Pet.App. 9a-10a, although
a decision of the Swiss Federal Court in 1997 specifi-
cally held that international law required the Repub-
lic to compensate the Victims. Swiss Federal Office
for Police Matters v. Fondation Maler, 1A.91/1997/odi
(Swiss Federal Court (Bundesgericht, Dec. 19, 1997),
Ex. 47, JA64, 84 para. 7a.
Following two motions for reconsideration and
for en banc review in the court of appeals, Petitioners
Page 29
16
filed a petition for certiorari with this Honorable
Court. This Court granted certiorari on December 3,
2007 adding the additional issue of whether the
Republic and PCGG had power to appeal the judg-
ment to the court of appeals and to this Court. PNB
and Arelma did not seek certiorari of the court of
appeals’ ruling that the Class had priority over their
claims.
——————————— ———————————
SUMMARY OF ARGUMENT
1. The Republic does not have power to appeal
the judgment. It made the strategic determination to
withdraw from this interpleader, it chose not to
intervene into the trial proceeding even after the trial
judge ruled that it was not an indispensable party,
and it is not bound in any way by the rulings made by
the lower courts during the course of this interpleader
procedure. Allowing the Republic to appeal at this
point is contrary to the core principle that only par-
ties (or those that intervene) can appeal, will disrupt
the orderly conduct of litigation, and will make it
more difficult for trial courts to bring about closure.
Arelma and PNB lack standing to raise the issue
of the Republic’s indispensability on appeal, because
they no longer challenge the lower courts’ rulings that
they are not entitled to the disputed assets and hence
have no further direct interest in the outcome of this
litigation.
Page 30
17
2. The lower courts followed the language of
Rule 19(b) and this Honorable Court’s guidance in
Provident Tradesmen Bank, 390 U.S. 102, in deter-
mining that the Republic was not an indispensable
party to the interpleader. Their decisions, made after
weighing all relevant factors under the standard of
equity and good conscience, were not an abuse of
discretion.
The Republic has participated actively in litiga-
tion in U.S. courts regarding purported Marcos
assets; it has never previously asserted sovereign
immunity in those actions; it has known about the
Arelma assets since at least 1986; and it sought and
obtained the assistance of a U.S. court to freeze these
assets in 1987. Prior to entry of the interpleader
judgment, the Republic never made any effort what-
soever to establish its claim to ownership of these
assets, in either a Philippine or a U.S. court. The
lower courts, based on the factual record developed in
this interpleader, both concluded that the assets were
owned by Ferdinand Marcos, and determined that the
Class of Human Rights Victims were entitled to these
assets. The Republic made the strategic decision to
withdraw from the interpleader, and it should be
bound by the consequences of its decision.
The court of appeals also determined that if this
interpleader proceeding is dismissed, the members of
the Class “will have no forum within the Philippines
open to their claims,” and that a proceeding against
Merrill Lynch in New York “would merely raise
the same question of indispensability.” Ct.Ap.Op.,
Page 31
18
Pet.App. 10a. The Human Rights Victims have tried
to pursue collection efforts in the Philippine courts,
but have been stymied in their efforts, and the United
Nations Human Rights Committee has ruled explic-
itly that the failure of the Philippine Courts to permit
collection efforts constitutes a violation of the obliga-
tions of the Philippines under Article 2(3) of the
International Covenant on Civil and Political Rights.
The Republic’s effort to dismiss the interpleader
at this point is not supported by any evidence or offer
of proof substantiating its contention that it is the
legitimate owner of these assets. If this Court were to
dismiss the interpleader, its ruling would allow any
foreign governmental body to block any interpleader
or any other proceeding brought by any judgment
creditor to collect its judgment merely by asserting a
claim to the assets in question without having to
present any evidence to substantiate its claim.
3. No significant negative foreign policy conse-
quences will follow if the independent courts of the
United States apply logical legal principles to deter-
mine ownership of assets long-held in the United
States. The amicus curiae brief filed by the United
States makes no claim that any adverse consequences
regarding U.S. foreign relations will follow if this
Court affirms the rulings below. Petitioners contend
that they will be disadvantaged by such a ruling,
because the disputed assets are, they say, “matters of
the greatest political sensitivity and importance,”
Pet.Br. at 48, but they offer no specifics. Nor do
Petitioners address the inconsistency between their
Page 32
19
present contentions and the position the Republic
expressed in the amicus curiae brief filed in 1987,
which stated “without hesitation or reservation that
its foreign relations with the United States will not be
adversely affected if these human rights claims are
heard in U.S. courts.” RA-11 (emphasis in original).
Courts must, of course, give careful consideration
to foreign policy concerns raised by foreign govern-
ments, but the need to defer to such concerns is
minimal when the courts possess in rem jurisdiction
over the assets at issue and the matter concerns
procedural issues related to the courts’ management
of their dockets. Here, no contention is made that the
claims of the Class of Human Rights Victims should
not have been pursued or that the judgment in favor
of the Victims was unwarranted.
——————————— ———————————
ARGUMENT
I.
The Republic Has No Right To Appeal
A. Only “parties” to a judgment have a
right to appeal therefrom.
This Honorable Court has “consistently applied
the general rule that one who is not a party or has
not been treated as a party to a judgment has no
right to appeal therefrom.” Karcher v. May, 484 U.S.
72, 77 (1987). This rule has been “very well settled”
for at least 150 years. See, e.g., Payne v. Niles, 61 U.S.
(20 How.) 219, 221 (1858) (“[I]t is very well settled in
Page 33
20
all common-law courts, that no one can bring up, as
plaintiff in a writ of error, the judgment of an inferior
court, unless he was a party to the judgment in the
court below. . . .”). This jurisdictional limitation on
appellate rights is embodied in Rule 3 of the Federal
Rules of Appellate Procedure, which provides for the
filing of a notice of appeal by “parties.” Marino v.
Ortiz, 484 U.S. 301, 304 (1988) (per curiam) (citing
Fed. R. App. P. 3). It is likewise codified in 28 U.S.C.
§ 1254(1) – Petitioners’ asserted basis for this Court’s
jurisdiction – which provides for writs of certiorari
“granted upon the petition of any party. . . .” 28 U.S.C.
§ 1254(1). Cf. Karcher, 484 U.S. at 81 (dismissing for
lack of jurisdiction where the appellants were not
“parties” under the previous version of § 1254(2)).
B. The Republic was not a party to the
judgment and was not treated as a
party to the judgment.
The naming of the Republic in the complaint is
not controlling on the question whether it may appeal
from the judgment. “The label ‘party’ does not indi-
cate an absolute characteristic, but rather a conclu-
sion about the applicability of various procedural
rules that may differ based on context.” Devlin v.
Scardelletti, 536 U.S. 1, 10 (2002). Thus, depending
on the procedural development of the case and the
strategic choices made, a litigant can lose “party”
status. See Karcher, 484 U.S. at 81 (holding that
intervenor appellants lost “party” status during the
appeals). The relevant “context” here is that the
Page 34
21
Republic successfully opposed its joinder as a party in
the district court, then elected to sit on the sidelines
while the remaining parties litigated the Republic’s
alleged indispensability and their competing claims
to the Arelma assets. As a consequence of its strategic
decision, the Republic lost any right it might have
had to appeal from the judgment.
Contrary to the Petitioners’ argument, Pet.Br. at
24, 29, the dismissal of the Republic was not a “tech-
nical matter.” Having invoked foreign sovereign
immunity, the Republic avoided joinder as a party
and was neither subject to the district court’s jurisdic-
tion nor bound by its judgment. The district court
explained that “[n]either res judicata nor collateral
estoppel from rulings in this case will apply to the
Republic and its PCGG since it is no longer a party,”
Tr.Ct.Op., Pet.App. 58a, and the court of appeals
agreed that “any judgment entered in this action
cannot bind the Republic because it is not a party to
the action,” Ct.Ap.Op., Pet.App. 8a, a conclusion that
Petitioners do not contest. The Republic was not,
therefore, a “party” to the judgment from which it
now seeks to appeal. See Devlin, 536 U.S. at 10-11
(permitting an appeal as “petitioner’s only means of
protecting himself from being bound by a disposition
of his rights”) (emphasis added). See also id. at 9
(distinguishing the petitioners in Marino on the basis
that “the District Court’s decision did not finally
dispose of any right or claim they might have had”)
(emphasis added). As amicus Merrill Lynch notes, the
Republic still has what it always claimed to have – a
Page 35
22
contingent claim against Merrill Lynch. Merrill Lynch
Br. at 27-29.
The Republic’s status in the present case is thus
similar to its status in Hilao v. Estate of Marcos, 393
F.3d 987 (9th Cir. 2004), where the court of appeals
ruled that the Republic was a “nonparty” to the
district court’s actions regarding a settlement agree-
ment and an “Order Directing Compliance” issued to
banks holding disputed assets. Because the Republic
was not bound by the settlement agreement “its
argument for nonparty appellate standing to chal-
lenge that same agreement collapses.” Id. at 993.
Similarly, an Order Directing Compliance by financial
institutions did not “bind[ ] , [n]or was meant to bind,
the Republic,” and hence the Republic could not
challenge it. Id. at 994. Notwithstanding the Repub-
lic’s claim that the Compliance Order “interfered with
its efforts . . . to collect all funds,” the court of appeals
held that “inconvenience to the Republic, however,
does not rise to the level of an ‘exceptional circum-
stance’ justifying nonparty standing to appeal.” Id.
(citation omitted).
Nor was the Republic “treated as a party” in the
district court following its dismissal. The court of
appeals ordered its dismissal on sovereign immunity
grounds but remanded with directions to stay the
litigation because later events could affect the indis-
pensability determination. 2002 Ct.Ap.Op., Pet.App.
30a. Thereafter, the Republic avoided the district
court proceedings. See Pet.Br. at 9 (stating that the
Page 36
23
Republic was “absent from the litigation” after the
district court lifted the stay).
10
More importantly, the Republic made no further
effort to press its indispensability arguments in
the district court. It was not until Arelma and
PNB renewed their Rule 19(b) motion that the dis-
trict court proceeded to determine the Republic’s
claimed indispensability. Tr.Ct. FOF/COL, Pet.App.
55a-60a. The Republic neither sought to intervene
nor otherwise to be heard at the evidentiary hearing.
It took no exception to the district court’s findings of
fact and conclusions of law denying Arelma’s and
PNB’s motion, including the district court’s finding
that “[t]he Republic and its PCGG made a strategic
decision not to participate in this litigation even
though they have participated in over a dozen law-
suits in the United States involving purported Marcos
assets,” and that “[t]he Republic and PCGG must
accept ‘the disadvantages as well as the advantages
10
After the court of appeals remanded for dismissal of the
Republic, counsel for the Republic did appear informally at a
district court hearing to spread the appellate mandate and rule
on Respondent’s motion to lift the stay, but expressly reserved
the Republic’s immunity. Hearing Transcript, 6/20/2003, at 3, 19-
20. After the district court lifted the stay, the Republic petitioned
for leave to appeal. Pimentel moved to strike the petition on the
ground that the Republic, having invoked sovereign immunity
and having failed to intervene, was a nonparty with no right to
appeal. The court of appeals affirmed without addressing the
motion to strike. Merrill Lynch, Pierce, Fenner & Smith, Inc. v.
Pimentel, Nos. 03-16742, 03-16743 (9th Cir. Feb. 20, 2004),
JA25-27.
Page 37
24
that flow from’ their ‘strategic election.’ ” Tr.Ct.
FOF/COL, Pet.App. 58a-59a (citing Citibank Int’l v.
Collier-Traino, Inc., 809 F.2d 1438, 1441 (9th Cir.
1987)).
11
C. The Republic failed to intervene to as-
sert its indispensability and preserve
a right to appeal.
Contrary to Petitioners’ argument, Pet.Br. at 20,
an appeal from the judgment was not the “only
means” for the Republic to protect its interests.
Devlin, 536 U.S. at 10. As the U.S. amicus curiae
brief notes, the Republic could have intervened as of
right pursuant to Rule 24 after its dismissal, for the
limited purpose of asserting its own indispensability,
without consenting to jurisdiction generally. See U.S.
Br. at 15; see also Marx v. Guam, 866 F.2d 294, 301
(9th Cir. 1989) (holding that Guam could challenge
the district court’s jurisdiction to proceed in its
absence, without risk of waiving its sovereign
immunity). The Republic also could have sought
intervention post-judgment for purposes of appeal.
United Airlines, Inc. v. McDonald, 432 U.S. 385, 395
(1977). Such intervention would have afforded the
Republic with appellate rights. Karcher, 484 U.S. at
77. Further, the denial of an intervention motion is
11
“While we do not fault that strategic election, we must
hold that the appellant must accept the disadvantages as well as
the advantages that flow from it.” Citibank, 809 F.2d 1438, 1441
(9th Cir. 1987).
Page 38
25
itself immediately appealable. Marino, 484 U.S. at
384.
However, the mere opportunity to intervene does
not confer appellate rights. “Joinder as a party, rather
than knowledge of a lawsuit and an opportunity to
intervene, is the method by which potential parties
are subjected to the jurisdiction of the court and
bound by a judgment or decree.” Martin v. Wilks, 490
U.S. 755, 765 (1989). The Republic eschewed inter-
vention and adopted a different strategy, one that
forced the district court and the remaining parties to
litigate the indispensability questions in its absence.
This election to sit on the sidelines has consequences.
Id. at 770 (Stevens, J., dissenting) (“One of the disad-
vantages of sidelinesitting is that the bystander has
no right to appeal from a judgment no matter how
harmful it may be.”). Because the Republic could have
sought intervention but chose not to, the Court
should reject its attempted end-run around the rule
that only “parties” can appeal. Marino, 484 U.S. at
304 (“We think the better practice is for such a non-
party to seek intervention for purposes of appeal”).
The intervention requirement is not a meaning-
less formality. Instead, it prevents litigants from
gaming the federal court system by permitting the
district court, in the first instance, to resolve the
scope of an intervenor’s “party” status and participa-
tion, preferably before an issue is decided and before
an appeal is taken. See Devlin, 536 U.S. at 21 (Scalia,
J., dissenting) (noting that intervention permits the
Page 39
26
district court ” ‘to perform an important screening
function’ “) (citation omitted). And as the United
States argued in Devlin, “the Federal Rules permit
courts to place conditions on the scope of intervention,
and that includes restrictions on discovery.” U.S. Br.
in Devlin v. Scardelletti, 2002 WL 352118 at *26
(2002) (citing Stringfellow v. Concerned Neighbors in
Action, 480 U.S. 370, 378 (1987)).
12
Logic requires a rule mandating that a foreign
government, asserting immunity, must intervene on a
limited basis to assert its indispensability to an
interpleader proceeding if it wishes to appeal from
the judgment. A foreign government asserting sover-
eign immunity simply seeks to block its own joinder
on jurisdictional grounds. By contrast, an assertion of
indispensability invokes equity to preclude the par-
ties and the court from proceeding to judgment
13
– a
12
In Devlin, the United States argued that class member
objectors should be required to intervene in order to appeal the
approval of a mandatory class settlement that bound them over
their objections, because the intervention requirement allows
the district court to exercise control over, and place appropriate
conditions, on the scope of the objectors’ participation. Id.
Although the Court held that intervention was not required in
Devlin, that holding is easily distinguishable from the present
situation, because the appellants in Devlin were bound by the
judgment in that case. Devlin, 536. U.S. at 7. Here, the Republic
is not bound by the interpleader judgment.
13
The nature of the indispensability inquiry is equitable,
not jurisdictional. See 7 C
.
W
right
, et al., F
ederal
P
ractice
&
P
rocedure
§ 1611, at 169 (3d ed. Supp. 2007) (citing Mallow v.
Hinde, 25 U.S. (12 Wheat.) 193, 198 (1827)).
Page 40
27
discretionary, fact-bound inquiry that implicates the
interests of all the parties and “can only be deter-
mined in the context of particular litigation.” Provi-
dent Tradesmens Bank, supra. The lack of an
intervention requirement would place the district
court and the other parties in the untenable situation
of attempting to resolve a sovereign’s claim of indis-
pensability without the ability to order complete
discovery and litigation on that claim.
An intervention requirement thus prevents a
foreign government from using its immunity as both
a shield and as a sword – precisely what the Republic
asks this Court to authorize here. It simultaneously
claims the right to appeal from a determination of its
indispensability while rejecting any concomitant
burden to present evidence on its contention in the
first instance. It seeks to preserve its sovereign
prerogative to sit on the sidelines, while reserving the
right to assert error in the district court’s resolution
of those issues in its absence. Nothing in either Rule
19 nor the principles governing foreign sovereign
immunity requires the federal courts to tolerate such
strategic manipulation, especially in light of the
ready availability of limited intervention that pre-
serves that government’s immunity.
This Court has previously dismissed appeals by
states for lack of jurisdiction where the state asserted
an interest in the property in suit as a basis for
dismissal, but refused to consent to jurisdiction and
failed to intervene. In South Carolina v. Wesley, 155
U.S. 542 (1895), the plaintiff sued the South Carolina
Page 41
28
secretary of state for possession of land occupied by
the state. Before trial, the South Carolina attorney
general appeared and filed a “suggestion” that the
court lacked jurisdiction to proceed because the State
owned the property and would not consent to jurisdic-
tion. Id. at 543-44. The trial court denied the sugges-
tion, proceeded to trial and awarded possession to the
plaintiff. This Court dismissed South Carolina’s writ
of error, reasoning that “[t]he state was not a party to
the record in the trial court, and did not become a
party by intervention, pro interesse suo or otherwise,
but expressly refused to submit its rights to the
jurisdiction of the court.” Id. at 545.
The Wesley court cited Georgia v. Jesup, 106 U.S.
458 (1882), a receivership action brought against
assets of a railroad located in Georgia. Before the
final foreclosure decree issued, the Georgia attorney
general appeared and petitioned to dismiss or stay
the proceedings for lack of jurisdiction, asserting
sovereign immunity and claiming that the state had a
priority claim to the assets. Id. at 459-60. The trial
court denied the state’s petition and entered the
foreclosure decree, and Georgia appealed to this
Court. Id. at 461. This Court held that because the
state refused to submit to jurisdiction and was not
bound by the decree, the order denying the state’s
dismissal petition “is not one which the state can ask
this court to review upon its appeal; this, for the
reason already indicated, that the order did not
conclude the state – it being no party to the suit – as
to any right acquired by virtue of the executions for
Page 42
29
taxes.” Id. at 463. Significantly, this Court observed
that even if the state had priority under Georgia law,
that priority was not affected because there was no
adjudication of the state’s rights. Id. at 463-64.
A foreign government with statutory immunity
under the Foreign Sovereign Immunities Act (FSIA),
28 U.S.C. §§ 1330, 1391, 1441(d), 1602-11, surely has
no greater appellate rights than a state that has an
organic, constitutional immunity from suit. The
Republic of the Philippines is no different in any
relevant respect from the sovereign states in Wesley
and Jesup. The Republic was not a party in the
district court and, after its dismissal, it neither acted
like a party nor was treated like a party. It invoked
sovereign immunity nearly from the outset of the
proceedings and refused to submit its claims to the
jurisdiction of the district court. It is not bound to the
judgment. It failed to seek intervention. Therefore it
was not a party in the district court and has no right
to appeal the denial of indispensable party status and
the judgment of the district court.
Petitioners and the U.S. amicus brief cite Minne-
sota v. United States, 305 U.S. 382 (1939), as prece-
dent for finding appellate rights in this case, even
though (as the United States concedes) the Court
never considered the issue of appellate rights in that
case. Pet.Br. at 23, U.S. Br. at 16-17. Moreover, unlike
in the present case, the court of appeals in Minnesota
dismissed the entire litigation on the Government’s
interlocutory appeal and did not remand for further
development and consideration of the Government’s
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30
indispensability arguments. United States v. Minne-
sota, 95 F.2d 468, 473 (8th Cir. 1938). Thus, at no
time in the Minnesota litigation did the United States
opt to sit on the sidelines as a nonparty and permit a
court to resolve indispensability in its absence. Here,
however, the Republic made the strategic decision not
to pursue further its assertion of indispensabilty in
the district court.
The Petitioners’ “collateral order” analogy also
fails. Pet.Br. at 23-24. The collateral order doctrine
permits interlocutory appeals from certain types of
orders by persons who were bound by, and thus were
“parties” to, those orders, even though they would not
be bound by the subsequent judgment in the litiga-
tion. Devlin, 536 U.S. at 16-17. Here, by contrast, the
Republic claims a right to appeal from a judgment to
which it is not bound. Id. (distinguishing the right to
appeal from a judgment from the right to appeal from
a collateral order). Nor was the Republic a party to
the district court’s order denying Arelma’s and PNB’s
renewed Rule 19(b) motion, Tr.Ct. FOF/COL, Pet.App.
55a, because it was not the Republic’s motion and the
Republic never intervened to support it. And unlike a
collateral order, the district court’s order does not
purport to require the Republic to do (or not do)
anything. See Devlin, 536 U.S. at 17 (citing Hinckley
v. Gilman, C. & S.R. Co., 94 U.S. 467 (1876)).
Litigation choices have consequences. The deci-
sion of the Republic to claim immunity and its failure
to intervene on the question of its indispensability
Page 44
31
had the consequence of foreclosing it from appealing
the judgment.
II. The Court Must Dismiss The Appeal As To
Arelma And Philippine National Bank Be-
cause They Lack Power To Appeal And No
Live Controversy Remains As To Them.
This Court independently scrutinizes whether
particular petitioners present a sufficient case or
controversy to create Article III standing. Daimler-
Chrysler Corp. v. Cuno, 547 U.S. 332, 126 S.Ct. 1854,
1859 (2006). The Petitioners and the United States
argue that Arelma and PNB have a right to raise the
Rule 19(b) issue even if the Republic does not. Pet.Br.
at 16; U.S. Br. at 9. But Rule 19(b) appeals are not
riderless horses. Since Arelma and PNB suffered no
injury from the denial of their Rule 19(b) motion, and
they no longer challenge the denial of their claims to
the Arelma assets on the merits, there is no live
controversy as to them and they therefore lack stand-
ing to appeal.
The district court denied the claims of Arelma
and PNB on the merits after a trial. Tr.Ct.Op.,
Pet.App. 52a-54a. The court of appeals affirmed the
judgment stating that neither Arelma (a “shell corpo-
ration”) nor PNB (“as escrow holder”) “now have an
interest to be protected.” Ct.Ap.Op., Pet.App. 10a.
Neither Arelma nor PNB sought certiorari of that
merits determination in this Court, and any such
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32
challenge is therefore waived. Cf. Taylor v. Freeland
& Kronz, 503 U.S. 638, 645-46 (1992) (“Only the
questions set forth in the petition [for certiorari], or
fairly included therein, will be considered by the
Court”) (quoting Sup. Ct. R. 14.1(a)); Yee v. City of
Escondido, 503 U.S. 519, 536-37 (1992) (same).
Indeed, Arelma and PNB apparently now support
the Republic’s claims of ownership of the account.
However, a litigant generally lacks standing to ad-
vance the rights of others. Moose Lodge No. 107 v.
Irvis, 407 U.S. 163, 166 (1972). Rather, standing
requires “personal injury fairly traceable to the
[opposing party’s] unlawful conduct and likely to be
redressed by the requested relief.” DaimlerChrysler,
126 S.Ct. at 1861 (2006). In DaimlerChrysler, this
Court found no Article III standing because there was
no injury that was “concrete and particularized.” Id.
at 1862. “[T]he injury is not actual or imminent, but
instead conjectural or hypothetical.” Id. Similarly,
any “injury” to Arelma and PNB from the decision to
proceed in the Republic’s absence is conjectural and
hypothetical given the unchallenged merits rulings.
Since Arelma and PNB have abandoned any claims to
the interpleaded assets, they are in no way “ag-
grieved” by the judgment of the court of appeals, and
therefore lack standing to appeal that judgment.
Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326,
333 (1980).
Article III jurisdiction requires that a live contro-
versy must exist at every stage of review. Preiser v.
Newkirk, 422 U.S. 395, 401 (1975). “That the dispute
Page 46
33
between the parties was very much alive when suit
was filed, or at the time the Court of Appeals ren-
dered its judgment, cannot substitute for the actual
case or controversy that an exercise of this Court’s
jurisdiction requires.” Honig v. Doe, 484 U.S. 305, 307
(1988). This Court has observed that Article III
jurisdiction can be destroyed by a party’s choices
about which rulings to appeal. Ashcroft v. Mattis, 431
U.S. 171, 172-73 (1977). Here, Arelma and PNB chose
not to seek certiorari to challenge the rulings that
their claims failed on the merits.
The failure of Arelma and PNB to preserve their
“requisite personal interest” in the subject matter of
the litigation means that the Court now lacks juris-
diction over their appeal. United States Parole
Comm’n v. Geraghty, 445 U.S. 388, 397 (1980). For
example, in Ashcroft v. Mattis this Court held that
the petitioner’s failure to preserve a challenge to a
merits-based ruling on an affirmative defense ren-
dered the case moot. 431 U.S. at 171-72. Because
there was no longer any dispute over the merits of the
liability claim, the petitioner lacked a present inter-
est in controversy and could not appeal. Id. at 172-73.
An interpleader case from the First Circuit is
instructive. In Horizon Bank & Trust Co. v. Massa-
chusetts, 391 F.3d 48 (1st Cir. 2004), Massachusetts
successfully asserted immunity but was held not to be
an indispensable party. Id. at 51. The district court
proceeded to judgment in the Commonwealth’s ab-
sence and awarded the interpleaded assets to a
private claimant. Id. at 52. The Commonwealth
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34
appealed the indispensability ruling but failed to
challenge the priority of the judgment winner’s claim.
Id. The First Circuit dismissed the appeal, holding
that the Commonwealth’s failure to challenge the
ultimate disposition of the interpleaded fund ren-
dered moot the issue of its indispensability. Id. at 53.
The court noted that its holding could be premised on
a loss of standing to appeal. Id. at 53 n.1.
Regardless of whether the result is based on
mootness principles or a loss of appellate standing,
14
the point is that neither Arelma nor PNB has any
present interest to be protected in the litigation as a
whole, or in a Rule 19(b) determination.
15
Without a
viable claim to the assets, the indispensability of the
Republic is a purely abstract proposition as to Arelma
and PNB, and their appeal must be dismissed for lack
of standing.
14
As this Court observed in Geraghty, mootness is “the
doctrine of standing set in a time frame: The requisite personal
interest that must exist at the commencement of the litigation
(standing) must continue throughout its existence (mootness).”
Geraghty, 445 U.S. at 397 (citations omitted).
15
Petitioners argued in a footnote to their petition for a writ
of certiorari that “The decision also places PNB, the nominal
owner of Arelma, in an untenable position because the bank is a
party to escrow agreements, entered into at the direction of the
Swiss Federal Supreme Court, requiring it to dispose of the
Arelma assets as directed by the appropriate Philippine court.”
Cert.Pet. at 11 n.5. PNB fails to articulate any detrimental
consequence of this position, especially given their failure to
continue to pursue the merits of their claims.
Page 48
35
Both Petitioners and the United States rely on
Minnesota v. Northern Sec. Co., 184 U.S. 199 (1902),
for the proposition that appellate courts must act sua
sponte to protect the rights of absent indispensable
parties. Pet.Br. at 18, U.S. Br. at 17. The United
States also cites Hanson v. Denckla, 357 U.S. 235
(1958), for the proposition that Arelma and PNB have
a right to raise the lack of an indispensable party on
appeal. U.S. Br. at 10. But both of these propositions
assume the presence of a party with the requisite
personal stake in the litigation to support standing to
appeal.
16
Since Arelma and PNB no longer challenge
the district court’s conclusions on the merits of their
claims, their claims are deemed moot and they have
no standing to appeal at all.
III. The Republic Is Not An Indispensable
Party Under Rule 19(b).
An interpleader action commenced under 28
U.S.C. § 1335 is unlike a conventional lawsuit. It is
brought by a plaintiff stakeholder who willingly
deposits the res with the court and who seeks only the
remedy of a discharge order. The defendants are not
true defendants. They are claimants who have as-
serted entitlement to the res. They are not required to
16
“[A]ny defendant affected by the court’s judgment has
that ‘direct and substantial personal interest in the outcome’
that is necessary to challenge whether that jurisdiction was in
fact acquired.” Hanson, 357 U.S. at 245 (citing Chicago v.
Atchison, T. & S.F. Ry. Co., 357 U.S. 77 (1958)).
Page 49
36
present evidence in support of their claims, but they
must do so if they expect to prevail in the inter-
pleader proceeding. They do not risk entry of a judg-
ment against them for a money judgment. Properly
considered, an interpleader complaint is an invitation
to make a claim. Accordingly, many of the policy
concerns underlying foreign sovereign immunity are
not present in an interpleader, and the factors set
forth in Rule 19(b) favor maintenance of an inter-
pleader, not dismissal.
A. The lower courts’ Rule 19(b) determi-
nation is reviewable under an abuse of
discretion standard.
This Court has not squarely considered the
standard of review applicable to a district court’s Rule
19(b) determination, and neither the Petitioners nor
the Solicitor General address the standard of review
in their briefs. The courts of appeals have reached a
consensus
17
on this issue that, because Rule 19(b)
17
Only the Sixth Circuit reviews Rule 19(b) determinations
de novo. Glancy v. Taubman Centers, Inc. 373 F.3d 656, 665 (6th
Cir. 2004). All other circuits review for abuse of discretion. See
Travellers Indemnity Co. v. Dingwell, 884 F.2d 629, 635 (1st Cir.
1989); Universal Reinsurance Co., Ltd. v. St. Paul Fire and
Marine Ins. Co., 312 F.3d 82, 88 (2d Cir. 2002); General Refracto-
ries Co. v. First State Ins. Co., 500 F.3d 306, 312 (3d Cir. 2007);
American General Life and Acc. Ins. Co. v. Wood, 429 F.3d 83, 92
(4th Cir. 2005); Brown v. Pacific Life Ins. Co., 462 F.3d 384, 393
(5th Cir. 2006); Extra Equipamentos E Exportacao Ltda. v. Case
Corp., 361 F.3d 359, 361 (7th Cir. 2004); Spirit Lake Tribe v.
North Dakota, 262 F.3d 732 (8th Cir. 2001); Davis ex rel. Davis v.
(Continued on following page)
Page 50
37
determinations are fact-intensive and require a
balancing of interests based on pragmatic considera-
tions, “de novo balancing should not occur on appeal;
instead, the district court’s application of Rule19(b)’s
‘equity and good conscience’ test should be reviewed
under an ‘abuse of discretion’ standard.” Cloverleaf
Standardbred Owners Ass’n v. Nat’l Bank of Washing-
ton, 699 F.2d 1274, 1276-77 (D.C. Cir. 1983) (R.
Ginsburg, J., joined by Scalia, J.) (citing Walsh v.
Centeio, 692 F.2d 1239, 1241-43 (9th Cir. 1982)).
This Court’s decision in Provident Tradesmens
Bank, supra, is not to the contrary. Although the
Court balanced the Rule 19(b) factors de novo, the
Rule 19(b) issues in that case were first raised in the
court of appeals so there were no district court find-
ings entitled to deference. 390 U.S. at 109. Here,
where the district court took evidence and engaged in
fact-finding in the first instance, the district court’s
determination is entitled to particularly wide latitude
consistent with the “equity and good conscience”
standard provided in Rule 19(b). See Cloverleaf, 699
F.2d at 1277 (stating that the “equity and good con-
science” standard ” ‘leaves the district judge with
substantial discretion in considering which factors to
weigh and how heavily to emphasize certain consid-
erations in deciding whether the action should go
United States, 343 F.3d 1282, 1289 (10th Cir. 2003); United
States v. Rigel Ships Agencies, Inc., 432 F.3d 1282, 1291 (11th
Cir. 2005); Bonzel v. Pfizer, Inc., 439 F.3d 1358, 1362 (Fed. Cir.
2006).
Page 51
38
forward in the absence of someone needed for a
complete adjudication of the dispute,’ ” quoting from 7
C. Wright & A. Miller, Federal Practice and Proce-
dure, § 1604 at 45-46 (1972)). See also Extra Equi-
pamentos E Exportacao Ltda. v. Case Corp., 361 F.3d
359, 361 (7th Cir. 2004) (reviewing for abuse of dis-
cretion “[b]ecause of the looseness of the terms ‘equity
and good conscience’ and because their applicability is
to be determined in each case by weighing several
factors with no weights indicated”).
This Court emphasized in Provident Tradesmens
Bank that the approach of a reviewing court post-trial
is different from the analysis applied by the initial
court, because “[a]fter trial, considerations of effi-
ciency” such as “the time and expense” involved in
the trial militate in favor of denying a Rule 19(b)
motion. Id. at 111; see also id. at 112 (explaining that
[o]n appeal . . . [the] interest in preserving a fully
litigated judgment should be overborne only by rather
greater opposing considerations that would be re-
quired at an earlier stage” when the “only concern”
was which forum to choose).
In the present case, to be sure, the court of ap-
peals also did not address the standard of review, and
its decision reflects a de novo balancing.
18
However,
18
The Class preserved the issue of the correct standard of
review, having argued their merits brief in the court of appeals
for application of the Ninth Circuit’s abuse of discretion stan-
dard. See Pimentel’s Merits Brief in Merrill Lynch v. ENC Corp.,
Nos. 04-16503, 04-16538, 04-16503, filed 11/30/2004, at 17.
Page 52
39
insofar as the court of appeals affirmed the judgment
of the district court, the court of appeals’ reasoning
should be viewed as supplying alternative grounds
and additional reasons for affirming the judgment.
B. The lower courts properly applied Rule
19(b) pursuant to the instructions of
this Court in Provident Tradesmens
Bank.
The lower courts interpreted and applied the
language of Rule 19(b) of the Federal Rules of Civil
Procedure by following this Honorable Court’s deci-
sion in Provident Tradesmens Bank, 390 U.S. at 109
and 118, which instructed courts to look through the
lens of ” ‘equity and good conscience’ ” and to deter-
mine indispensability ” ‘in the context of [this] par-
ticular litigation.’ ” Ct.Ap.Op., Pet.App. 4a-5a. This
Court explained that a decision on whether a party is
indispensable “must be based on factors varying with
the different cases, some such factors being substan-
tive, some procedural, some compelling by them-
selves, and some subject to balancing against
opposing interests.” Provident Tradesmens Bank, 390
U.S. at 118-19. The four factors listed in Rule 19(b)
are directly fact-based, and so it is essential and
inevitable that a court examine the practical issues
related to a party’s participation in a trial.
19
The court
19
Contrary to Petitioners’ contention, Pet.Br. at 34, the
court of appeals did not evaluate the merits of the Republic’s
asserted claim, but instead assumed the validity of the claim and
(Continued on following page)
Page 53
40
of appeals also followed the guidance provided by this
Court in Hecht Co. v. Bowles, 321 U.S. 321, 329
(1944), which explained that the “equity” called for in
Rule 19(b) requires courts to exercise “flexibility . . .
marked by ‘mercy and practicality.’ ” Ct.Ap.Op.,
Pet.App. 6a (emphasis added). This Court has ex-
plained that “[a] court of equity will strain hard” to
avoid dismissal. Bourdieu v. Pacific Western Oil Co.,
299 U.S. 65, 70 (1936).
1. The Class would be prejudiced by a
dismissal.
The Class of Human Rights Victims, which
prevailed on the merits following years of hard fought
and expensive litigation, would be severely prejudiced
by a dismissal. The Class members, some of whom
were tortured or summarily executed as early as
1972, have waited decades for relief, first to obtain
their judgment and then to collect a portion of it. If
the present claim were to be dismissed pursuant to
the views of the Republic and the U.S. amicus curiae
brief, the Class would have no alternate forum in
which to pursue its claims, because it has no right to
intervene in the Republic’s forfeiture proceedings,
and it would be obliged to sue Merrill Lynch, thus
raising the same issues presented in this action.
determined that even if it were valid the Republic was barred by
the statute of limitations from pursuing the claim. Ct.Ap.Op.,
Pet.App. 8a.
Page 54
41
Dismissal of this interpleader would also preju-
dice the interpleader plaintiff, Merrill Lynch. Merrill
Lynch acted responsibly by initiating this inter-
pleader and naming as “defendants-claimants” all
individuals who had asserted any entitlement to the
Arelma assets. Merrill Lynch Complaint, JA12-13.
Merrill Lynch has been discharged from the litiga-
tion. Discharge Order, JA22. Dismissal of the entire
interpleader after these many years of litigation
would ensnare Merrill Lynch, the stakeholder, in
costly and protracted future lawsuits.
By contrast, the Republic has no real negative
consequences because it is still free to bring a claim
against Merrill Lynch and it can pursue Marcos
assets from numerous other sources in many other
venues. As the court of appeals held after considering
all litigation avenues open to the Republic, “[a]s a
practical matter, it is doubtful that the Republic has
any likelihood of recovering the Arelma assets.”
Ct.Ap.Op., Pet.App. 7a. Merrill Lynch has conclu-
sively demonstrated in its brief amicus curiae that
any lawsuit that might be brought by the Republic
against Merrill Lynch would be barred by a New York
statute of limitations. Merrill Lynch Br. at 26-28. The
Republic has been aware of the Arelma assets since
1986 but has yet to establish its right to these assets
in any court in the world. Ct.Ap.Op., Pet.App. 7a. The
court of appeals concluded that “[n]o injustice is done
[to the Republic] if it now loses what it can never
effectually possess.” Id. at 9a.
Page 55
42
2. The Republic is not bound by the
judgment.
The Republic is expressly not bound by the
interpleader judgment. See Provident Tradesmens
Bank, 390 U.S. at 110; Ct.Ap.Op., Pet.App. 8a. No
findings of fact or conclusions of law will bind it via
res judicata or collateral estoppel. Tr.Ct. FOF/COL,
Pet.App. 58a. As the court of appeals stated when it
denied the Republic’s second motion for reconsidera-
tion, the Republic’s “fears of res judicata are base-
less.” Pet.App. 61a. Therefore, to the extent the
shaping of the judgment could lessen the impact on
the Republic, the lower courts have done so.
3. The judgment effects finality and
gives Plaintiff Merrill Lynch an
adequate remedy.
The final two enumerated factors in Rule 19(b)
address the effectiveness of a final judgment from the
standpoint of the plaintiff and the other litigants.
Implicit in the Rule is the understanding that in the
absence of a “necessary” or “required” litigant, final-
ity may be imperfect. Therefore, Rule 19 asks
whether the finality achievable without the missing
litigant is “adequate” and whether dismissal will
deprive the plaintiff of an adequate remedy.
Merrill Lynch, the plaintiff, answers unequivo-
cally that the final judgment is adequate, and that it
will have no remedy at all if this action is dismissed.
Merrill Lynch Br. at 14 and 29. Notwithstanding the
Page 56
43
possible future litigation the Republic might
threaten, the judgment resolves entitlement to the
Account assets as a practical matter. The likelihood
that the Republic could prevail against Merrill Lynch
in an action to recover the Account assets is so de
minimis that Merrill Lynch is willing to accept that
risk. As this Court stated in Provident Tradesmens
Bank, there is “no reason . . . to throw away a valid
judgment just because it [does] not theoretically
settle the whole controversy.” 390 U.S. at 116.
International treaty provisions will not under-
mine the adequacy of the judgment. Never invoked
and never mentioned in the litigation until the Solici-
tor General’s Statement of Interest, the application of
the treaties is speculative. The Republic never sought
the assistance of the United States under the Treaty
on Mutual Legal Assistance in Criminal Matters
(“MLAT”), Nov. 13, 1994, U.S.-Phil., S. Treaty Doc.
No. 18, 104th Cong., 1st Sess. (1995), because it
cannot satisfy the conditions precedent to invocation.
The Republic must first obtain a judgment in its own
courts establishing a right to the assets in which all
claimants are heard. It has never undertaken such a
procedure, despite extensive stays of the interpleader
proceeding. Since the Class of Human Rights Victims,
with a clear interest to the assets, are barred from
the forfeiture proceeding, see Ct.Ap.Op., Pet.App.
10a; 2002 Ct.Ap.Op., Pet.App. 41a; Tr.Ct. FOF/COL,
Pet.App. 59a, any forfeiture judgment obtained by
the Republic as to the assets would be ineligible for
Page 57
44
recognition by a United States court under MLAT. See
28 U.S.C. § 2467(C).
Nor has the Republic invoked the United Nations
Convention Against Corruption, Oct. 31, 2003, GA
Res. 58/4, which the United States ratified in 2006,
two years after the judgment in this action. Questions
of the Convention’s retroactivity aside, the United
States complied with its obligations thereunder since
the Republic was permitted to participate in “a civil
action,” i.e., the interpleader action, “to establish title
to or ownership of property” allegedly stolen from it.
See Convention, art. 53(a).
The final judgment is also adequate from the
standpoint of the parties to the litigation. Although
only one party prevailed – the Class – the inter-
pleader finally resolved the parties’ claims inter se to
the Account assets, and the court of appeals affirmed
the judgment on the merits. Though the parties other
than the Class are disappointed with the outcome,
they had full discovery and a fair opportunity to
submit evidence and plead their claims.
4. Other factors support the Rule 19(b)
determination.
The Republic’s dilatoriness in seeking a judgment
as to the Account assets is a factor both lower courts
took into account. Both courts noted that the Republic
has been aware of the Account assets since 1986 and
even obtained a freeze order from a federal court in
1987. The Republic offers no explanation to this
Page 58
45
Court why it has vigorously pursued litigation con-
cerning other alleged Marcos assets in this country,
but not the Arelma assets. Nor has it explained its
unwillingness to participate in the instant inter-
pleader (yet permitting PNB and Arelma to partici-
pate) while prosecuting over a dozen other lawsuits in
United States courts – and participating in other
interpleader actions.
The status of the Class members as adjudicated
human rights victims is another factor taken into
account by the lower courts. International treaties
ratified by the United States require it to provide
remedies for compensation to human rights victims.
See International Covenant on Civil and Political
Rights, art. 2(3), supra, and the U.N. Convention
Against Torture and Other Cruel, Inhuman or De-
grading Treatment or Punishment, art. 14, Dec. 10,
1984, 1465 U.N.T.S. 85. The interpleader serves
precisely that purpose. The Republic has never com-
pensated the Class members for the abuses they
suffered, and has interfered with the Class members’
attempts to enforce its judgment. Ct.Ap.Op., Pet.App.
10a; RA-12. Enabling victims of jus cogens violations
of fundamental human rights to receive compensation
for their suffering and loss, as required by interna-
tional treaty law, could well be characterized as
serving a public good and falling within the “public
rights” exception to the indispensable party require-
ments. See Conner v. Burford, 848 F.2d 1441 (9th Cir.
1988) (weighing the claim of indispensability in light
of the “public rights” exception and the fact that the
Page 59
46
interests of the parties claiming to be indispensable
had been protected by other parties in the litigation).
5. The Republic’s sovereignty is a fac-
tor but not the sole or overriding
factor.
Although sovereignty is not an enumerated factor
in Rule 19(b), the lower courts appropriately consid-
ered it. The court of appeals referred to it as a “pow-
erful consideration,” but “not the sole consideration.”
Ct.Ap.Op., Pet.App. 7a. Before this Court, the Repub-
lic contends that foreign sovereigns have the absolute
power to block all interpleader actions in United
States courts involving assets they claim. Pet.Br. at
27 et seq. This contention is not supported by the
amicus curiae brief filed by the Solicitor General,
which recognizes the importance of the balancing
approach under Rule 19(b) and agrees that proceed-
ings can continue even if a sovereign claimant is
absent. U.S. Br. at 21-22. Nor is support for this
contention found in the text of the FSIA or Rule 19(b).
Indeed, Petitioners fail to cite even one single case
supporting the Rule 19(b) dismissal of an inter-
pleader action based solely on the fact that a foreign
sovereign has asserted immunity.
20
20
Numerous cases can be cited where litigation has contin-
ued despite assertions of immunity by sovereign parties, includ-
ing, e.g., Saratoga County Chamber of Commerce, Inc. v. Pataki,
100 N.Y.2d 801, 798 N.E.2d 1047, 1058 (N.Y. 2003) (ruling that
although a tribe protected by sovereign immunity had interests
(Continued on following page)
Page 60
47
The cases involving the immunity of the United
States, the 50 states, and Indian tribes cited by the
Republic are not analogous to the present situation,
because Indian tribes, the 50 states, and the federal
government operate within the jurisdiction of the
United States and, if a case is dismissed after an
assertion of sovereign immunity, other means exist to
address and resolve the dispute. For example, in
Dawavendewa v. Salt River Project Agricultural
Improvement and Power District, 276 F.3d 1150, 1162-
63 (9th Cir. 2002), which the Republic cites, the court
dismissed the claim only after determining that three
potential “viable alternative forum[s]” existed – a
suit on behalf of the plaintiff brought by the United
States, a suit brought on behalf of the plaintiff by the
Equal Employment Opportunity Commission, and a
suit by the plaintiff in tribal court.
Assertions of sovereignty coupled with indispen-
sability arise in cases involving claims of immunity
by the United States, the 50 states, and Indian tribes,
and such evaluations are always fact-specific. Some
involve claims brought by Native American tribes,
that would be affected by the litigation, the tribe should not be
deemed an indispensable party because that would leave the
public with no effective remedy against constitutional violations
and other abuses by the executive branch), and Artichoke Joe’s v.
Norton, 216 F. Supp. 2d 1084, 1118-20 (E.D. Cal. 2002), aff’d on
other grounds, 353 F.3d 712 (9th Cir. 2003) (ruling that although
the immune tribes “can claim a legal interest in this lawsuit,”
the claim could proceed without them because their interest
would be represented by another party).
Page 61
48
where the United States Government is the nonjoined
party. Courts have often allowed such claims to
proceed without the United States, and the courts
have been particularly influenced by the potential
consequence that the lawsuit could not be pursued
and thus that the underlying dispute would continue
to fester. In Choctaw and Chickasaw Nations v. Seitz,
193 F.2d 456, 460-61 (10th Cir. 1951), cert. denied,
343 U.S. 919 (1952), for instance, the court of appeals
noted that “[m]ore than twenty years have elapsed
and the United States has failed to bring an action, in
behalf of the Nations,” and that “[i]f we hold that the
United States is an indispensable party, the Nations
will be unable to prosecute a suit to establish their
title to, and recover the possession and use of, their
lands predicated upon an alleged cause of action
which arose more than twenty years ago.” Id. Even
though proceeding with the suit might well require
the defendants to undertake “the burden and expense
of defending two lawsuits” (i.e., a second one brought
by the United States), the court ruled that “the
equities presented by the situation and the inconven-
iences that will result . . . weigh heavily in favor of
the Nations.” Id. Similarly, in Narragansett Tribe of
Indians v. Southern Rhode Island Land Development
Corp., 418 F. Supp. 798 (D.R.I. 1976), the court al-
lowed an action brought by the tribe against the State
of Rhode Island and other defendants to proceed even
in the absence of the United States, which could not
be sued because of its sovereign immunity.
Page 62
49
Davis v. United States, 192 F.3d 951, 960 (10th
Cir. 1999), relied upon by Petitioners, Pet.Br. at 32,
38, 43, is not to the contrary. There, the court of
appeals remanded on the grounds that despite the
absence of the tribe, tribal sovereign immunity did
not necessarily make the tribe indispensable, and
stated that sovereign immunity does “not abrogate
the application of Rule 19(b), whose factors this court
has applied to Indian tribes in several cases” (cita-
tions omitted). Similarly, in Imperial Appliance Corp.
v. Hamilton Manufacturing Co., 263 F. Supp. 1015
(E.D. Wis. 1967), the court allowed the action to
proceed after determining that joinder was not feasi-
ble because there was no alternative forum in which
plaintiffs could maintain the action against all inter-
ested parties. See also Mescalero Apache Tribe v.
State of New Mexico, 131 F.3d 1379, 1384 (10th Cir.
1997) (ruling that the United States was not an
indispensable party); Wyandotte Nation v. City of
Kansas City, Kansas, 200 F. Supp. 2d 1279, 1297-98
(D. Kan. 2002) (same); Kansas v. United States, 249
F.3d 1213 (10th Cir. 2001) (holding that the tribe was
not an indispensable party); Sac and Fox Nation of
Missouri v. Norton, 240 F.3d 1250 (10th Cir. 2001)
(same); U.S. ex rel. Steele v. Turn Key Gaming, Inc.,
135 F.3d 1249 (8th Cir. 1998) (same); Dairyland
Greyhound Park, Inc. v. McCallum, 258 Wis.2d 210,
655 N.W.2d 474 (Wis. 2002) (same).
Courts confronted with State assertions of Elev-
enth Amendment sovereignty coupled with indispensa-
bility in interpleader actions have rejected arguments
Page 63
50
that actions should be dismissed altogether based on
the immunity claim. These decisions emphasize a
practical approach to rule 19(b). For example, in
Hudson Savings Bank v. Austin, 479 F.3d 102 (1st
Cir. 2007), the court of appeals addressed the problem
raised by a claim of Eleventh Amendment immunity
by Massachusetts in an interpleader action where the
underlying issue was the relative priority of federal
and state tax liens. This appellate court decided that
a practical way around the immunity claim could be
found by instructing the district court to stay the
interpleader with regard to Massachusetts, to adjudi-
cate “the main dispute between the two sovereigns,”
and then to remand “what was left of the interpleader
action to the state court for resolution.” Id. at 108.
Similar outcomes were reached in GE Capital Mort-
gage Services, Inc. v. Estate of Lugo, 319 F. Supp. 2d
127, 134 (D.Mass. 2004) (finding, “after examining
the alternatives . . . that ‘proceeding to judgment . . .
provides the most complete and efficient resolution of
the controversy that is possible, with less danger of
inconsistency than any other available course of
action.’ “) and Horizon Bank & Trust Co. v. Flaherty,
309 F. Supp. 2d 178 (D.Mass. 2004), appeal dismissed
on other grounds, 391 F.3d 48 (1st Cir. 2004).
When the litigant is a foreign government enti-
tled to sovereign immunity, alternative means to
resolve a dispute over assets within the United States
do not exist, and a dismissal of the claim would leave
the dispute unresolved. The approach urged by the
Republic would permit any foreign sovereign to claim
an interest in any litigation in the United States
Page 64
51
without having to present any evidence whatsoever to
support its claim, assert foreign sovereign immunity
and indispensability – again without having to pre-
sent any evidence to support the claim – and then
completely bar adjudication of the dispute by U.S.
courts, even if the assets in dispute are unquestionably
in the United States. In the present case, the Repub-
lic’s position would bar the claimants from any forum
to pursue their claims even though a U.S. court has in
rem jurisdiction over the disputed assets.
C. Balancing all factors, the lower courts
properly held the Republic was not an
indispensable party.
Both of the lower courts followed Provident
Tradesmens Bank and balanced the pertinent factors
separately. In written opinions, each court discussed
the factors it considered. Both courts concluded, in
equity and good conscience, that the Republic was not
an indispensable party.
Petitioners and the United States place complete
and undue emphasis on the Republic’s foreign gov-
ernment status. Indeed, their analysis exemplifies
the “inflexible approach” which the “[r]ule was de-
signed to avoid.” Provident Tradesmens Bank, 390
U.S. at 107. The fact that it is possible to weigh and
balance the factors differently from the way in which
the lower courts undertook the task is not a basis to
overturn the ruling below. On this record, it cannot be
said that the lower courts abused their discretion.
Page 65
52
IV. This Case Will Not Adversely Impact
United States Foreign Relations.
It is noteworthy that the amicus curiae brief filed
by the United States makes no broad assertion that
the present case will present significant difficulties
with regard to any U.S. foreign policy interest or will
undermine U.S. relations with the Philippines. The
U.S. amicus brief focuses on technical issues relating
to interpretations of Rule 19 and the application of
principles of standing to the present case. Its “Argu-
ment” makes only passing reference to the Treaty on
Mutual Legal Assistance in Criminal Matters and the
UN Convention Against Corruption, which “contem-
plate cooperation” but have no direct relevance to the
present adjudication.
The Republic’s claim of a possible adverse impact
on its relationship with the United States is over-
stated.
21
More than a dozen other cases in United
21
The Republic’s argument that distribution of the assets in
the Account to poor Filipinos is an “affront [to Philippine]
dignity and may affect our relations with [the U.S.],” Pet.Br. at
48, stands in stark contrast to its position regarding hearings
conducted by the U.S. Congress on March 14, 2007 investigating
hundreds of “extrajudicial” killings in the Philippines, which
have been attributed to the Philippine military under the Arroyo
administration. See http://foreign.senate.gov/hearings/2007/hrg
070314p.html. In an interview on March 11, 2007, the Philip-
pines National Security Adviser, Norberto Gonzales, said “the
inquiry was neither an affront to the country’s sovereignty nor a
breach of courtesy among nations.” See Palace Unfazed by US
Hearing on Extrajudicial Killings, Philippine Daily Inquirer,
March 11, 2007, (and related
(Continued on following page)
Page 66
53
States courts involving both the Republic and the
Marcos assets have not adversely affected United
States relations with the Philippines. Although
Petitioners insinuate a lack of comity on the part of
the United States courts, the opposite is true. At the
outset of this case, the Republic engaged in forum
and judge shopping, asserting its sovereign immunity
only after losing its motions to transfer the case or
recuse the judge. Although the Republic has known of
the existence of the Account at Merrill Lynch since at
least 1986, and obtained a federal court freeze order
regarding these assets in 1987, see Exhibit 23, JA35,
the Republic thereafter abandoned its interest in this
Account and never pursued any recovery of it in either
a Philippine or U.S. court until July 2004 – four days
after judgment was rendered for the Class in the lower
court. By seeking relief in a Philippine court following
entry of the judgment, the Republic hoped to nullify
the American judgment.
22
This lethargy does not
articles on March 15 and 16). Surely a country unfazed by U.S.
Congressional hearings tying its leadership to mass killings
(resulting in a reduction in foreign aid) cannot be overly sensi-
tive to a judicial interpleader proceeding determining entitle-
ment to assets of a former president (deceased while residing in
Hawaii) that have been in the United States since 1972.
22
The July 15, 2003 decision of the Philippine Supreme
Court forfeiting the Swiss bank accounts made no mention of
the Arelma funds on deposit with the United States court
in Hawaii since the Republic never sought any relief as
to those funds. See Tr.Ct. FOF/COL, Pet.App. 56a. The Repub-
lic’s motion, pending in a lower Philippine court, seeks to reopen
the Philippine Supreme Court decision which the latter Court
had expressly declared final and executory.
Page 67
54
comport with its grand assertions that the Account is
“a matter of the greatest urgency,” a “preeminent
responsibility of the Philippine government,” affect-
ing its “vital national interests,” and endangering its
ability to “combat official corruption.” Pet.Br. at 3 and
49.
The Republic’s current position contradicts the
official position it presented to the court of appeals in
1987, where it argued that the U.S. courts should
“allow Plaintiffs . . . to present their evidence of gross
human rights violations against Ferdinand Marcos
and to pursue justice in U.S. District Court.” Amicus
Curiae Brief Filed in 1987 by the Republic of the
Philippines in Hilao v. Marcos, No. 15039, RA-1. It
also stated
without hesitation or reservation that its
foreign relations with the United States will
not be adversely affected if these human
rights claims against Ferdinand Marcos are
heard in U.S. courts; and in fact, relations
may well be improved if Filipino citizens see
that justice is available in U.S. courts. The
Philippine Government has previously ex-
pressed its deep concern to the U.S. Govern-
ment about the need for a just solution to the
present suits against ex-President Mar-
cos. . . .
Id. at 11 (emphasis in original).
The U.S. courts acted in conformity with that
request, and, after contentious adjudication, the
Page 68
55
decision below provides the opportunity to provide
modest compensation to the Victims who have suf-
fered so much, and their heirs. This distribution will
vindicate transcendent values shared by the United
States, the Philippines, and indeed the entire world
community. See Sosa v. Alvarez-Machain, 542 U.S.
694, 731-32 (2004) (indicating approval of the ap-
proach and analysis found in Filartiga v. Pena-Irala,
630 F.2d 876 (2d Cir. 1980), and in In re Estate of
Marcos Human Rights Litig., 25 F.3d 1467 (9th Cir.
1994)); and Sosa, supra, at 728 (recognizing that the
Torture Victim Protections Act of 1991, 106 Stat. 73,
has provided “authority that ‘establish[es] and unam-
biguous and modern basis for’ federal claims of tor-
ture and extrajudicial killing”).
It is also clear that the international community
has reached agreement on the substantive principle
that torture and extrajudicial murder by government
officials are unlawful and “procedural agreement that
universal jurisdiction exists to prosecute” those who
commit such acts and that providing “universal tort
jurisdiction” “will not significantly threaten the
practical harmony that comity principles seek to
protect.” Sosa, 542 U.S. at 762 (Breyer, J., concur-
ring). It would be a cruel irony if our courts, after
acknowledging the legitimacy of such claims, adopted
a rule on indispensability that effectively forecloses
the ability of victims of human rights abuses ever to
collect their judgments. In In re Estate of Ferdinand
Marcos Human Rights Litigation, 94 F.3d 539 (9th
Page 69
56
Cir. 1996), the court of appeals quoted from the
Republic’s 1987 amicus brief, noting that “the Repub-
lic’s own subsequent actions” were interfering with
the efforts of the Human Rights Victims to collect
their judgment, id. at 547, and then explained that
the Republic had “stated that [the Class of Victims]
should be permitted to seek damages from whatever
assets the Estate [of Marcos] could establish as its
own.” Id. (emphasis added). Allowing litigants to
collect on their judgment against the assets of the
tortfeasor is obviously an essential element to the
vindication of these principles.
The objections raised by the Swiss Federation in
its 2007 diplomatic note, see Pet. Reply App. 1a, are
contrary to a diplomatic note Switzerland sent to the
United States in 1994. In the 1994 note the Federa-
tion claimed the primacy of Swiss courts to make the
initial adjudication of entitlement to Marcos assets
located in Switzerland since its courts possessed in
rem jurisdiction. Now Switzerland contends United
States courts have no power to adjudicate entitle-
ment to Marcos assets even though a United States
court possesses in rem jurisdiction.
23
Counsel for the
23
Switzerland also claims that the Account in the United
States was subject to Switzerland’s jurisdiction because the
Swiss had confiscated the two Arelma share certificates and
transferred them to the Republic. Switzerland’s assertion of
jurisdiction over the Arelma assets in the United States is a
frontal attack on this Court’s decision in Dole, 538 U.S. at 468,
which held that a shareholder does not own or control the assets
of the corporation.
Page 70
57
Human Rights Victims requested the Swiss Embassy
to explain this contradiction but it failed to do so. See
RA-24.
The Swiss Federation’s position is also under-
mined by the decisions of its own Supreme Court
which permitted the return to the Philippines of
Marcos funds located in Switzerland. See In the
Matter of The Swiss Federal Office of Police Matters v.
Fondation Maler et al., 1A.91/1997/odi, at A16 (Dec.
19, 1997), JA64. Return of the funds was conditioned
explicitly on the Republic’s compensation of Filipino
human rights victims, citing the Class’ judgment. Id.
at 84-86. As the court of appeals pointed out, the
human rights victims have never been compensated.
See Ct.Ap.Op., Pet.App. 9a-10a.
Although the present case involves a foreign
government and international issues, it is essentially
a case involving judicial procedure.
——————————— ———————————
CONCLUSION
Both the irony and injustice in this case spring
from a foreign sovereign’s campaign to prevent its
most abused and vulnerable citizens from recovering
compensation on their judgment, rendered in a
United States court, for jus cogens violations of hu-
man rights perpetrated by a former president of that
sovereign. Petitioners advocate for a rule that would
totally prevent courts from adjudicating disputes over
assets, because they assert the right to block any
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58
such adjudication merely by claiming the disputed
assets, without having to present any evidence to
substantiate their claim. Once Petitioners’ position is
understood, it becomes clear that it must be rejected.
For the reasons set forth above, this Court should
dismiss the appeal of the nonparty Republic for lack
of power to appeal, and dismiss the appeal of Arelma
and PNB for mootness or lack of appellate standing.
In the alternative, this Court should affirm the
decision below that the Republic was not an indispen-
sable party under Rule 19(b).
Respectfully submitted,
ROBERT A. SWIFT
*CRAIG W. HILLWIG KOHN, SWIFT, & GRAF, P.C.
One South Broad Street, Suite 2100
Philadelphia, PA 19107
(215) 238-1700
SHERRY P. BRODER
841 Bishop Street, Suite 800
Honolulu, HI 96813
(808) 531-8411
JON M. VANDYKE
2515 Dole Street
Honolulu, HI 96822
(808) 956-8509
Counsel for Respondent Mariano J. Pimentel
and the Class of Human Rights Victims
*Counsel of Record
Page 72 RA-1

Appendix A
[Filed in the Ninth Circuit in Hilao v. Ferdinand
Marcos et al, No. 15039 (later MDL 840), 1987]
AMICUS BRIEF OF THE
REPUBLIC OF THE PHILIPPINES
I.
INTRODUCTION
The Republic of the Philippines strongly urges
this Honorable Court to reverse the July 18, 1986
decision of the U.S. District Court for the District of
Hawaii in the cases of Hilao, et al. v. Marcos, et al.,
Docket No. 86-2449 (hereafter “Hilao”), and Trajano,
et al. v. Marcos, et al., Docket No. 86-2448, 86-15039
(hereafter “Trajano”), and to allow the Plaintiffs in
those two cases to present their evidence of gross
human rights violations against Ferdinand Marcos
and to pursue justice in U.S. District Court.
The District Judge ruled that these cases are
“non-justiciable under the act of the state doctrine”
because they “involve judicial review of the acts of the
duly recognized head of a foreign sovereign commit-
ted under authority of law.” Slip opinions, Hilao at
14, Trajano at 16. This conclusion characterizes the
act of state doctrine in terms that are too broad and
applies the doctrine incorrectly to these facts.
Page 73
RA-2
II.
THE DISTRICT COURT CHARACTERIZED THE
ACT OF STATE DOCTRINE TOO BROADLY AND
IGNORED THE RESPONSIBILITY OF COURTS
TO DECIDE CASES INVOLVING AGREED
PRINCIPLES OF INTERNATIONAL LAW.
The act of state doctrine is “compelled by neither
international law nor the [U.S.] Constitution,” but it
has continued to play a significant role in the courts
of the United States and some other countries be-
cause of “its capacity to reflect the proper distribution
of functions between the judicial and political
branches of the Government on matters bearing upon
foreign affairs.” Banco Nacional de Cuba v. Sab-
batino, 376 U.S. 398, 427-28 (1964). It does not fore-
close judicial scrutiny of all acts of foreign
governments, but only those on which no “agreed
principle” exists or those that involve aspects of
international law that “touch much more sharply on
national nerves than do others.” Id. at 428. The
District Court apparently misinterpreted this doc-
trine by phrasing it as a per se rule that applies
automatically. It should instead have carefully bal-
anced the interests involved to evaluate whether it is
appropriate to apply this doctrine to these causes.
If it had undertaken such a balancing approach,
the District Court would certainly have concluded
that the aspects of international law raised by these
cases – whether a former head of state can commit
illegal acts of torture and murder – is one on which
an “agreed principle” exists. See, e.g., Filartiga v.
Page 74
RA-3
Pena-Irala, 630 F.2d 876, 882 (2d Cir. 1980) (“There is
at present no dissent from the view that the guaran-
ties [of international human rights and fundamental
freedoms] include, at a base minimum, the right to be
free from torture”).
Furthermore, this question of the legitimacy of
torture and arbitrary murder of citizens by govern-
mental officials acting under color of law is not one
that touches “national nerves” sharply.
The instant case indeed raises the issue of the
State responsibility of the Philippine government not
to its alien residents but to its very own nationals to
protect themselves from peril to their lives and limbs
and their property. Surely, American courts should
not shield a former head of State of a foreign govern-
ment from imputations of committing acts of torture
against its own nationals under the guise of the act of
state doctrine originally enunciated in Underhill v.
Hernandez, 168 U.S. 250, 18 S.Ct. 83, 43 L.Ed. 456
(1897), and reiterated in Detjen v. Central Leather
Co., 1248 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726 (1918);
Ricaud v. American Metal Co. Ltd., 246 U.S. 304; 38
S.Ct. 312, 62 L.Ed. 733 (1918); Banco Nacional de
Cuba v. Sabatino, supra.
In all of the aforecited cases, the Courts had
stressed on the political considerations that could
have affected the conduct of foreign relations of the
government of the United States of America, i.e.,
offense to the foreign state. In the present case, the
Philippine government would not in the very least be
Page 75
RA-4
offended if judicial inquiry is made on the participa-
tion of its former head of State in the commission of
acts herein complained of.
This Honorable Court should not shy away from
enforcing the international recognition of the essen-
tial rights of man to be free from harm to life and
limb against higher authorities of his State.
Indeed, all nations have agreed repeatedly in
recent years that torture and arbitrary murder by
government officials are violations of international
law. The Republic of the Philippines was, for instance,
a sponsor of the 1975 Declaration on the Protection of
All Persons from Being Subjected to Torture, which
states in Article 2:
Any act of torture or other cruel, inhuman or
degrading treatment or punishment is an of-
fense to human dignity and shall be con-
demned as a denial of the purposes of the
Charter of the United Nations and as a vio-
lation of human rights and fundamental
freedoms proclaimed in the Universal Decla-
ration of Human Rights.
U.N. General Assembly Res. 3452, 30 U.N. GAOR
Supp. (No. 34) 91, U.N. Doc. A/1034 (1976). The Re-
public of the Philippines also supported U.N. General
Assembly Resolutions 35/170 and 35/178 on the “Code
of Conduct for Law Enforcement Officials” and on
“Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.” The Republic of the Phil-
ippines has signed the 1966 International Covenant
Page 76
RA-5
on Civil and Political Rights, which states in Article 7
that “No one shall be subjected to torture or to cruel,
inhuman or degrading punishment or treatment.”
Perhaps most significantly, the 1973 Constitution of
the Republic of the Philippines specifically condemns
torture in Article IV, Section 20:
Any person under investigation for the com-
mission of an offense shall have the right to
remain silent and to counsel, and to be in-
formed of such right. No force, violence,
threat intimidation, or any other means
which violates the free will shall be used
against him. (Emphasis added.)
The Republic of the Philippines has, therefore,
joined forces with the other nations of the world to
condemn torture and other arbitrary use of force
against individuals. The United States has also been
at the forefront of this movement. The U.S. State
Department has repeated this commitment forcefully
in recent years:
Human rights is at the core of American for-
eign policy because it is central to America’s
conception of itself. This nation did not ‘de-
velop.’ It was created in order to make real a
specific political vision. It follows that ‘hu-
man rights’ is not something added on to our
foreign policy, but its ultimate purpose: the
preservation and promotion of liberty in the
world.
U.S. State Department, Country Reports on Human
Rights Practices for 1983 at 1478 (Report submitted
Page 77
RA-6
to the House Foreign Affairs Committee and the
Senate Foreign Relations Committee, 89th Cong., 2d
Sess., Feb. 1984) (emphasis in original).
Because all nations have condemned torture and
murder under color of law and the United States and
the Philippines have worked together to establish the
prohibition of torture and murder by governments of
their citizens as a peremptory norm of international
law, no judge need shy away from examining allega-
tions that these clear principles of law have been
violated. In these cases, there are disputes about
what facts occurred, but there is no dispute about
what standard of international law applies. The act of
state doctrine exists in the United States to prevent
judges from issuing opinions that may interfere with
the foreign policy interests of the United States. It
does not prevent judges from hearing complaints that
allege that clear standards of international law –
agreed upon by the United States and all other
concerned nations – have been violated. The act of
state doctrine should not, therefore, stand in the way
of these cases being litigated in U.S. Courts.
Page 78
RA-7
III.
EVEN IF THE DISTRICT COURT’S
CHARACTERIZATION OF THE ACT OF STATE
DOCTRINE WERE CORRECT, THE APPLICATIN
[sic] OF THE DOCTRINE TO THE FACTS OF
THESE CASES IS INCORRECT BECAUSE THE
TORTURE AND MURDER ALLEGED –
ALTHOUGH COMMITTED UNDER
COLOR OF LAW – WERE ILLEGAL.
As mentioned above, Article IV, Section 20 of the
1973 Philippine Constitution specifically prohibits
torture or other use of force by government officials
against Philippine citizens. The distinction between
lawful and unlawful acts was clearly understood by
the drafters of the 1973 Constitution and they took
care not to immunize illegal governmental actions.
(See Article VII, Section 15, of the 1973 Philippine
Constitution, which immunizes ex-Presidents from
suit only for “official acts” undertaken during their
tenure.)
Besides, the immunity from suit invoked by
defendant Ferdinand Marcos is not all absolute, but
subject to the constitutional provision on accountabil-
ity of public officers (1973 Constitution, Article XII,
Sec. 1, et seq.), and other statutes penalizing acts of
public officers in abuse of authority (Revised Penal
Code, Article 203, et seq.) and Anti Graft and Corrupt
Practices Act (Rep. Act No. 3019).
During the 1981 debates over amending the
Constitution, it was said:
Page 79
RA-8
[T]he government or its officials may not val-
idly claim state immunity for acts they com-
mitted against a private party in violation of
an existing law. They should be held respon-
sible, for as the state can speak and act only
by law, whatever it does say and do must be
lawful. That which, therefore, is unlawful . . .
is not the word or deed of the state but is the
mere wrong and trespass of those persons
who falsely speak and act in its name.
Deliberations at the Batasang Pambansa, Sinco, p. 33
(February 1981).
It is axiomatic in democratic governments that:
No man in this country is so high that he is
above the law. No officer of the law may set
that law at defiance, with impunity. All the
officers of the government from the highest
to the lowest are creatures of that law and
are bound to obey it.
United States v. Lee, 106 U.S. 196, 220 (1982). The
District Court thus mischaracterized the acts alleged
to have occurred in this case when it concluded that
they were committed “under authority of law.” Slip
opinions, Hilao at 14, Trajano at 16 (emphasis
added). The complaints allege that these acts were
committed under color of law, but no authority of law
existed to justify the torture or murder of Philippine
citizens by any official of the Philippine government.
This distinction was explicitly recognized by the
U.S. Court of Appeals for the Fifth Circuit in a case
involving the former head of state of Venezuela who
Page 80
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had sought refuge in the United States, but was
subsequently accused of having committed financial
improprieties while he was in office. Jimenez v.
Artisteguieta, 311 F.2d 547 (5th Cir. 1962), cert.
denied, 373 U.S. 914 (1963), reh’ng denied, 374 U.S.
858 (1963). Jimenez presented an argument similar
to that made by Mr. Marcos, contending that he was
charged with
acts done in the exercise of or in color of his
sovereign authority and by virtue of the law
of nations as stated in Underhill v. Hernan-
dez, 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456,
[the] was entitled to be discharged from cus-
tody inasmuch as the judicial authorities
cannot review the acts done by a sovereign in
his own territory to determine illegality.
Id. at 557 (emphasis added). The court rejected this
claim, stating that the acts Jimenez was alleged to
have committed
constituted common crimes committed by the
Chief of State done in violation of his posi-
tion and not in pursuance of it. They are as
far from being an act of state as rape which
appellant concedes would not be an ‘Act of
State.’
Id. at 558 (emphasis added). Ferdinand Marcos is
accused of committing acts of violence similar in
severity to the rape analogy used by the U.S. Court of
Appeals for the Fifth Circuit. The same legal princi-
ples that applied to the deposed dictator Jimenez
surely should also apply to ex-President Marcos. For
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the same reasons that were persuasive to the court in
Jimenez, Ferdinand Marcos should not be protected
from civil liability by the act of state doctrine for acts
like torture and murder.
IV.
CONCLUSION
The Government of the Republic of the Philip-
pines is not directly involved in the Hilao and Tra-
jano cases now before this Honorable Court. They
have been brought by private Philippine citizens who
allege that they – or their loved ones – have been
physically mistreated by Ferdinand Marcos and his
associates during the period Mr. Marcos was Presi-
dent of the Philippines. They brought their action in
the U.S. District Court for Hawaii, because that is
where Mr. Marcos has taken refuge. Service was
perfected upon Mr. Marcos and jurisdiction has been
established under the relevant U.S. statute (28
U.S.C. § 1350). Nonetheless, the U.S. District Court
has blocked this litigation, concluding that the act of
state doctrine prevents a U.S. court from adjudicating
this matter.
The Government of the Republic of the Philip-
pines respectfully urges this Honorable Appellate
Court to reverse the District Court and allow Plain-
tiffs to present evidence in support of their claims.
Because the international law principles are clear
and agreed upon by all nations, this judicial action
does not have the capacity of disrupting foreign
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relations between the concerned countries. The
Government of the Republic of the Philippines can
state without hesitation or reservation that its for-
eign relations with the United States will not be
adversely affected if these human rights claims
against Ferdinand Marcos are heard in U.S. courts;
and, in fact, relations may well be improved if Fili-
pino citizens see that justice is available in U.S.
courts. The Philippine Government has previously
expressed its deep concern to the U.S. Government
about the need for a just solution to the present suits
against ex-President Marcos. See Opinion No. 34, S.
1986, Ministry of Justice, Republic of the Philippines,
dated April 23, 1986, attached hereto as Exhibit A.
The Philippine Government now respectfully requests
this Honorable Court to allow the present suits to
proceed to trial.
Respectfully submitted,
Makati, Metro Manila for Manila, Philippines.
NEPTALI A. GOZALES
Minister of Justice
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Appendix B
VIEWS OF THE HUMAN RIGHTS COMMITTEE
UNDER ARTICLE 5, PARAGRAPH 4, OF THE
OPTIONAL PROTOCOL TO THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS
Eighty-ninth session
concerning
Communication No. 1320/2004**
Submitted by:
Mariano Pimentel et al. (repre-
sented by counsel, Mr. Robert
Swift)
Alleged victim:
The author
State party
The Philippines
Date of
communication:
11 October 2004 (initial submis-
sion)
The Human Rights Committee, established under
article 28 of the International Covenant on Civil and
Political Rights,
Having concluded its consideration of communi-
cation No. 1320/2004, submitted to the Human Rights
** The Following members of the Committee participated
in the examination of the present communication: Mr. Prafulla-
chandra Natwarlal Bhagwati, Mr. Maurice Glèlè Ahanhanzo,
Mr. Yuji Iwasawa, Mr. Edwin Johnson, Mr. Walter Kälin, Mr.
Ahmed Tawfik Khalil, Ms. Zonke, Zanele Majodina, Ms. Iulia
Antoanella Motoc, Mr. Michael O’Flaherty, Ms. Elisabeth Palm,
Mr. José Luis Pérez Sanchez-Cerro, Mr. Rafael Rivas Posada, Sir
Nigel Rodley and Ms. Ruth Wedgwood.
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Committee on behalf of Mariano Pimentel et al.
under the Optional Protocol to the International
Covenant on Civil and Political Rights,
Having taken into account all written informa-
tion made available to it by the author of the commu-
nication, and the State party,
Meeting on 19 March 2007
Adopts the following:
Views under article 5, paragraph 4, of the Op-
tional Protocol
1. The authors of the communication are Mariano
Pimentel, Ruben Resus and Hilda Narcisco, all Phil-
ippine nationals. The first author resides in Hono-
lulu, Hawaii, and the others in the Philippines. They
claim to be victims of violations by the Republic of the
Philippines of their rights under article 2, paragraph
3 (a), of the International Covenant on Civil and
Political Rights. The communication also appears to
raise issues under article 14, paragraph 1, of the
Covenant. The Covenant and the Optional Protocol
entered into force for the State party on 23 January
1987 and 22 November 1989, respectively. The au-
thors are represented by counsel; Mr. Robert Swift of
Philadelphia, Pennsylvania.
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Factual Background
2.1 The authors claim to be members of a class of
9,539 Philippine nationals who obtained a final
judgment in the United States for compensation
against the estate of the late Ferdinand E. Marcos
(“the Marcos estate”) for having been subjected to
torture during the regime of President Marcos.
1
Ferdinand E. Marcos was residing in Hawaii at the
time.
2.2 In September 1972, the first author was ar-
rested by order of President Marcos two weeks after
the declaration of martial law in the Philippines.
Over the next six years, he was detained for a total of
four years in several detention centres, without ever
being charged. Upon return from his final period in
detention, he was kidnapped by solders [sic], who
1
United States District Court in Hawaii, Estate of Ferdi-
nand E. Marcos Human Rights Litigation, MDL No. 840 [The
authors’ names are not mentioned in the judgment. There is a
list of around 137 randomly selected “class claims” and the com-
pensatory damages awarded to them (ranging from US$ 10,000 to
US$ 185,000) is specified. Judgment for compensatory damages
was also awarded to victims in three of the remaining plaintiff
subclasses “of all current citizens of the Republic of the Philip-
pines, their heirs and beneficiaries, who between September
1972 and February 1986 were tortured summarily executed/
disappeared and are presumed dead, while in the custody of the
Philippine military or para-military groups, in the aggregate of
US$251,819,811.00, US$409,191,760.00 and US$94,910,640.00
to be divided pro-rata. Judgment for US$ 1,197,227,417.90
exemplary damages was also awarded to be divided pro rata
among all members of the plaintiff class.]
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beat him with rifles, broke his teeth, his arm and leg,
and dislocated his ribs. He was buried up to his neck
in a remote sugar cane field and abandoned, but was
subsequently rescued.
2.3 In 1974, the second author’s son, A.S., was
arrested by order of President Marcos and taken into
military custody. He was tortured during interroga-
tion and kept in detention, without ever being
charged. He disappeared in 1977. In March 1983, the
third author was also arrested by order of President
Marcos. She was tortured and gang-raped during her
interrogation. She was never charged with nor con-
victed of any offense.
2.4 In April 1986, the authors, together with other
class members, brought an action against the Marcos
estate. On 3 February 1995, a jury at the United
States District Court in Hawaii awarded a total of
US$ 1,964,005,859.90 to the 9,539 victims (or their
heirs) of torture, summary execution and disappear-
ance. The jurors found a consistent pattern and
practice of human rights violations in the Philippines
during the regime of President Marcos from 1972-
1986. Where individuals were randomly selected, part
of the amount of the judgment is divided per claim-
ant. Individuals, who were not randomly selected but
are part of the class, including the authors, will
receive part of the award which was made to three
Page 87
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subclasses.
2
However, the amounts were not divided
per claimant and it is only after collection (in whole
or in part) of the judgment amount that the United
States District Court of Hawaii will allocate amounts
to each claimant. On 17 December 1996, the United
States Court of Appeal for the Ninth Circuit affirmed
the judgment.
3
2.5 On 20 May 1997, five class members, including
the third author, filed a complaint against the Marcos
estate, in the Regional Trial Court of Makati City,
Philippines, with a view to obtaining enforcement of
the United States judgment. The defendants counter
filed a motion to dismiss, claiming that the PHP 400
(US$ 7.20) paid by each plaintiff was insufficient as
the filing fee. On 9 September 1998, the Regional
Trial Court dismissed the complaint, holding that the
complainants had failed to pay the filing fee of PHP
472 million (US$ 8.4 million), calculated on the total
amount in dispute (US$ 2.2 billion). On 10 November
1998, the authors filed a motion for reconsideration
before the same Court, which was denied on 28 July
1999.
2.6 On 4 August 1999, the five class members filed a
motion with the Philippine Supreme Court, on their
2
The subclasses relate to those victims that had been (1)
tortured, (2) summarily executed and (3) disappeared and are
presumed dead.
3
United States Court of Appeals for the Ninth Circuit,
Hilao v. Estate of Marcos, 103 F.3d 767.
Page 88
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own behalf and on behalf of the class, seeking a
determination that the filing fee was PHP 400 rather
than PHP 472 million. By the time of submission of
the communication to the Committee (11 October
2004), the Supreme Court had not acted on this
motion, despite a motion for early resolution filed by
the petitioners on 8 December 2003. (see para. 4
below for an update).
2.7 According to the authors, since the five class
members filed their motion with the Philippine
Supreme Court, the same Court entered judgement
for the State party against the Marcos Estate in a
forfeiture action and directed enforcement of that
judgement for over US$ 650 million, even though that
appeal was filed over two years after the authors’ own
petition.
The Complaint
3. The authors claim that their proceedings in the
Philippines on the enforcement of the US judgement
have been unreasonably prolonged and that the
exorbitant filing fee amounts to a de facto denial of
their right to an effective remedy to obtain compensa-
tion for their injuries, under article 2 of the Covenant.
They argue that they are not required to exhaust
domestic remedies, as the proceedings before the
Philippine courts have been unreasonably prolonged.
The communication also appears to raise issues
under article 14, paragraph 1, of the Covenant.
Page 89
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The State party’s submission on admissibility
and merits
4. On 12 May 2005, the State party submitted that
the communication is inadmissible for failure to
exhaust domestic remedies. It submits that, on 14
April 2005, the Supreme Court handed down its
decision in Mijares et al. v. Hon. Ranada et al., af-
firming the authors’ claim that they should pay a
filing fee of PHP 410 rather than PHP 472 million
with respect to their complaint to enforce the judg-
ment of the United States District Court in Hawaii.
The State party denies that the authors were not
afforded an effective remedy.
The authors’ comments on the State party’s
submission
5.1 On 12 January 2006, the authors submit that
there has been no satisfactory resolution of their
claims. They confirm that, on 14 April 2005, the
Supreme Court decided in their favour with respect to
the filing fee. However, despite the Supreme Court’s
view that there be a speedy resolution to their claim
by the trial court, this court has not yet decided on
the enforceability of the decision of the United States
District Court of Hawaii.
5.2 In addition, the authors argue that an appeal in
a parallel case, which is one year older than the
Page 90
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appeal in the current case has been pending for over
seven years in the Philippine Supreme Court.
4
Additional comments by the parties
6. On June 1, 2006, the State party submitted that,
following the Supreme Court decision on the filing
fee, the case was reinstated before the trial court. It
adds that the authors of the current case are unre-
lated to the case referred to in paragraph 5.2.
7.1 On 15 June and 4 July 2006, in response to a
request for clarification from the Secretariat regard-
ing the authors’ status as “victim[s]” for the purposes
of article 1 of the Optional Protocol, the authors
stated that a class action in the United States may be
brought by any member of the class on behalf of a
defined group, in this case, 9,539 victims of torture,
summary execution and disappearance. All class
members have standing in a class action once it is
certified by a court and all have the right to share in
a final judgement. A court is free to designate particu-
lar class members as “class representatives” for
purposes of prosecuting the litigation, but the “class
representative” has no more standing on his claim
than any other individual class members. Thus, the
4
This case relates to Imelda M. Manotoc v. Court of Ap-
peals, which involves an interlocutory appeal from the lower
court finding there was sufficient service on Imee Marcos-
Manotoc, the daughter of Ferdinand E. Marcos, in an action to
enforce a United States judgment against her for the torture and
murder of a man.
Page 91
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use of different “class representatives” for the same
class in lawsuits filed in the US and the Philippines
has no bearing on the authors’ standing. The Philip-
pine rule on class actions is derived from and based
on the United States rule.
7.2 According to the authors, in a class action filed
in the United States, it is not common to file a list of
all class members. In this case, where the public
record could be inspected by the Philippine Ministry,
which might act in reprisal against the living torture
victims, caution was exercised. The authors, provide
evidence to prove that they are members of the U.S.
class action: an excerpt from Ms. Narcisco’s testimony
at the trial on liability in the United States; an ex-
cerpt from Mr. Pimentel’s deposition in 2002 in the
United States, and a United States judgement in
which he was certified as a class representative in a
subsequent case; and a claim form as required by the
court with respect to M. Resus. The authors also
confirm that there has been no action taken for the
enforcement of the judgement.
Issues and proceedings before the Committee
Consideration of admissibility
8.1 Before considering any claim contained in a
communication, the Human Rights Committee must,
in accordance with rule 93 of its Rules of Procedure,
decide whether or nor [sic] it is admissible under the
Optional Protocol to the Covenant.
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8.2 The Committee notes that the claim relating to
the enforcement of the United States District Court of
Hawaii’s judgement is currently pending before the
State party’s Regional Trial Court. Since the last
hearing on the filing issue relating to this case, on 15
April 2005, in which the Supreme Court found in
favour of the authors, the issue of the enforcement of
the judgement has been reinstated before the Re-
gional Trial Court. For this reason, and bearing in
mind that the complaint relates to a civil claim for
compensation, albeit for torture, the Committee
cannot conclude that the proceedings have been so
unreasonably prolonged that the delay would exempt
the authors from exhausting them. Accordingly, the
Committee finds that this claim is inadmissible under
article 5, paragraph 2 (b), of the Optional Protocol.
8.3 The Committee observes that since the authors
brought their action before the Regional Trial Court
in 1997, the same Court and the Supreme Court
considered the issue of the required filing fee arising
from the authors claim on three subsequent occasions
(9 September 1998, 28 July 1999 and 15 April 2005)
and over a period of eight years before reaching a
conclusion in favour of the authors. The Committee
considers that the length of time taken to resolve this
issue raises an admissible issue under article 14,
paragraph 1, as well as article 2, paragraph 3, and
should be considered on the merits.
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Consideration of the merits
9.1 The Human Rights Committee has considered
the present communication in the light of all the
information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional
Protocol.
9.2 As to the length of the proceedings relating to
the issue of the filing fee, the Committee recalls that
the right to equality before the courts, as guaranteed
by article 14, paragraph 1, entails a number of re-
quirements, including the condition that the proce-
dure before the national tribunals must be conducted
expeditiously enough so as not to compromise the
principle of fairness.
5
It notes that the Regional Trial
Court and Supreme Court spent eight years and
three hearings considering this subsidiary issue and
that the State party has provided no reasons to
explain why it took so long to consider a matter of
minor complexity. For this reason, the Committee
considers that the length of time taken to resolve this
issue was unreasonable, resulting in a violation of the
authors’ rights under article 14, paragraph 1, read in
conjunction with article 2, paragraph 3, of the Cove-
nant.
10. The Human Rights Committee, acting under
article 5, paragraph 4, of the Optional Protocol, is of
the view that the facts before it disclose a violation of
5
Perterer v. Austria, Communication No.1015/2001, Views
adopted on 20 July 2004, para. 10.7.
Page 94
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article 14, paragraph 1, read in conjunction with
article 2, paragraph 3, as it relates to the proceedings
on the amount of the filing fee.
11. The Committee is of the view that the authors
are entitled, under article 2, paragraph 3(a), of the
Covenant, to an effective remedy. The State party is
under an obligation to ensure an adequate remedy to
the authors including, compensation and a prompt
resolution of their case on the enforcement of the US
judgement in the State party. The State party is
under an obligation to ensure that similar violations
do not occur in the future.
12. Bearing in mind that, by becoming a State party
to the Optional Protocol, the State party has recog-
nized the competence of the Committee to determine
whether there has been a violation of the Covenant or
not and that, pursuant to article 2 of the Covenant,
the State party has undertaken to ensure to all
individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant and
to prove an effective and enforceable remedy in case a
violation has been established, the Committee wishes
to receive from the State party, within 90 days, in-
formation about the measures taken to give effect to
the Committee’s Views
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Appendix C
[Letterhead of Kohn, Swift & Graf, P.C.]
December 11, 2007
Ambassador Urs Ziswiler
Embassy of Switzerland
2900 Cathedral Ave. NW
Washington, DC 20008
Re: Republic of the Philippines v. Mariano
J. Pimentel, United States Supreme
Court, No. 06-1204
Dear Ambassador Ziswiler:
I wish to bring to your attention a matter of some
urgency on behalf of the 9,539 Filipino human rights
victims I represent in the above matter. On April 5,
2007 the Embassy of Switzerland submitted a diplo-
matic note to the United States Department of State
intended for submission to the United States Su-
preme Court in the above matter.
1
Since the Embassy
may participate as amicus in the merits briefing, I
wish to bring to your attention inconsistencies in the
position taken by the Embassy.
In the 1990′s the victims sought to enjoin trans-
fer of Marcos assets located in two Swiss banks,
1
Regrettably, the submission of the note to the Court
occurred well after the submission of the human rights victims’
Opposition Brief, thus precluding any response by counsel for
the victims. This appears to be a practice of the Embassy since it
has recurred several times in different courts as the Embassy
has regularly opposed the victims.
Page 96
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Swiss Bank Corporation and Credit Suisse, which
had branches in the United States. The accounts at
issue, however, were located at the banks’ branches in
Switzerland. Your Embassy sent a diplomatic note
dated June 7, 1994 to the State Department asserting
that “[u]nder international law, therefore, the United
States courts lack jurisdiction to assert control over
this property held in Switzerland.” Your Embassy
claimed that, initially, only Swiss courts could adjudi-
cate ownership of these assets. Ultimately the injunc-
tion entered by the United States courts was not
applied to the banks’ branches outside the United
States.
The above appeal involves a securities trading
account at Merrill Lynch in New York which was
established for Ferdinand E. Marcos in 1972 by a
Swiss banker, Jean Louis Sunier, using a Panama-
nian corporation named “Arelma.” The assets in this
account have been in the United States for 35 years.
In September 2000, at my request, Merrill Lynch
deposited the assets from the Merrill Lynch account
with the United States court in Hawaii and filed an
interpleader action naming various parties with
potential claims to the assets as defendants, includ-
ing the Republic of the Philippines. The Republic
voluntarily chose not to participate and was dis-
missed therefrom. The United States court found,
after a full trial on the merits, that the victims were
entitled to the assets in partial satisfaction of their
1995 judgment against the Estate of Ferdinand E.
Marcos. Evidence adduced at the trial included the
Page 97
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testimony of Mr. Sunier and opinions of the Swiss
Supreme Court finding that Arelma was a Marcos
alter ego.
In your diplomatic note of April 5, 2007, you
assert that United States courts do not have author-
ity to determine legal entitlement to the assets. Yet
this is directly contrary to the position the Embassy
asserted in 1994 when it claimed the primacy of
Swiss courts to make the initial adjudication of
entitlement to Marcos assets located in Switzerland.
Switzerland’s only other connection to this appeal
is that Mr. Sunier retained the two “blank” Arelma
stock certificates until these were confiscated from
him in 1997. Switzerland gave these stock certificates
to the Republic of the Philippines even though there
was absolutely no evidence that Arelma had ever
been owned by the Republic or was a Republic asset.
Rather, it appears the transfer of the stock certifi-
cates was intended to permit the Republic to transfer
the assets at Merrill Lynch outside the United States.
Neither the human rights victims nor the United
States courts interfered in any way in the question-
able transfer of the certificates.
Your diplomatic note of April 5, 2007 fails to
mention other pertinent matters such as:
• The duty of the United States under interna-
tional treaties, to which Switzerland and the
Republic are also signatories, to provide a fo-
rum for claims by human rights victims.
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• The refusal of Swiss courts to honor letters
rogatory requests of the United States court
for documents that the human rights victims
needed to prosecute their case against the
Marcos Estate.
• Switzerland’s failure to act on the decade-old
ruling of its Supreme Court that compensa-
tion should be paid by the Republic to the
victims.
Accordingly, I would appreciate you explaining in
a letter to me the seeming inconsistent positions
taken by your Embassy. In particular, please explain
why Swiss courts have the right to adjudicate enti-
tlement to assets located in Switzerland but United
States courts do not have the similar right for assets
located in the United States. While I have no desire
to embarrass the Embassy before the United States
Supreme Court, the Embassy’s voluntary advocacy in
opposing human rights victims may necessitate doing
so, including placing this letter and your Embassy’s
1994 diplomatic note into the record.
Respectfully yours,
Robert A. Swift
RAS:yr
Cc: US State Dept., Office of the Legal Advisor US
Dept. of Justice, Office of the Solicitor General