25 F.3d 1467 (9th Cir. 1994), 92-15526, In re Estate of Ferdinand Marcos

Docket Nº:92-15526.
Citation:25 F.3d 1467
Party Name:In re ESTATE OF FERDINAND MARCOS, HUMAN RIGHTS LITIGATION. Maximo HILAO, et al., Class Plaintiffs; Vicente Clemente, et al., Class Plaintiffs; Jaime Piopongco, et al., Class Plaintiffs. Plaintiffs-Appellees, v. ESTATE OF Ferdinand MARCOS, Defendant-Appellant.
Case Date:June 16, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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25 F.3d 1467 (9th Cir. 1994)


Maximo HILAO, et al., Class Plaintiffs; Vicente Clemente,

et al., Class Plaintiffs; Jaime Piopongco, et

al., Class Plaintiffs. Plaintiffs-Appellees,


ESTATE OF Ferdinand MARCOS, Defendant-Appellant.

No. 92-15526.

United States Court of Appeals, Ninth Circuit

June 16, 1994

Argued and Submitted May 4, 1993.

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Bernard J. Rothbaum, Jr., Linn & Helms, Oklahoma City, OK, for defendant-appellant.

Robert A. Swift, Kohn, Savett, Klein & Graf, Philadelphia, PA, for plaintiffs-appellees.

Appeal from the United States District Court for the District of Hawaii.

Before: GOODWIN, TANG, and NOONAN, Circuit Judges.

Opinion by Judge TANG.

TANG, Senior Circuit Judge:


Defendant Estate of Ferdinand Marcos ("the Estate") appeals from the district court's order preliminarily enjoining the Estate from transferring, secreting or dissipating the Estate's assets pendente lite. On this interlocutory appeal, the Estate also challenges the district court's subject matter jurisdiction under the Foreign Sovereign Immunities Act and Alien Tort Act, claims that the plaintiffs do not state a cause of action, and contends that any cause of action abated upon Marcos' death. We have jurisdiction and affirm.

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During Ferdinand Marcos' tenure as President of the Philippines, up to 10,000 people in the Philippines were allegedly tortured, summarily executed or disappeared at the hands of military intelligence personnel acting pursuant to martial law declared by Marcos in 1971. Military intelligence allegedly operated under the authority of Marcos, General Fabian Ver, and Imee Marcos-Manotoc (Ferdinand Marcos' daughter).

Marcos, his family, Ver and others loyal to Marcos fled to Hawaii in February, 1986. One month later, a number of lawsuits were filed against Marcos, Ver, and/or Imee Marcos-Manotoc, claiming that the plaintiffs had been arrested and tortured, or were the families of people arrested, tortured, and executed between 1971 and 1986.

All actions were dismissed by district courts on the "act of state" defense; we reversed and remanded in an unpublished decision. Hilao v. Marcos, 878 F.2d 1438 (9th Cir.1989); Trajano v. Marcos, 878 F.2d 1439 (9th Cir.1989) (table decisions). The Judicial Panel on Multi-District Litigation then consolidated all cases in the District of Hawaii on September 5, 1990. The case was certified as a class action on April 8, 1991, and a consolidated amended complaint naming the Estate as a defendant was filed on behalf of the class.

Default was entered against Imee Marcos-Manotoc in 1986 in Trajano v. Marcos, one of the individual cases consolidated in this action. In 1991, Marcos-Manotoc moved to set aside the default and moved to dismiss for lack of subject matter jurisdiction under the Alien Tort Act and immunity under the Foreign Sovereign Immunities Act. The motions were denied, and judgment was entered against Marcos-Manotoc. We affirmed on appeal. See Trajano v. Marcos (In re: Estate of Ferdinand E. Marcos Litigation), 978 F.2d 493 (9th Cir.1992) ("Estate I"), cert. denied, --- U.S. ----, 113 S.Ct. 2960, 125 L.Ed.2d 661 (1993).

On November 1, 1991, the plaintiffs moved for a preliminary injunction to prevent the Estate from transferring or secreting any assets in order to preserve the possibility of collecting a judgment. The Estate had earlier been enjoined from transferring or secreting assets in an action brought by the Republic of the Philippines against Ferdinand Marcos. That preliminary injunction had been appealed, and was affirmed. See Republic of Philippines v. Marcos, 862 F.2d 1355 (9th Cir.1988) (en banc), cert. denied, 490 U.S. 1035, 109 S.Ct. 1933, 104 L.Ed.2d 404 (1989). When the preliminary injunction in that case was dissolved due to a settlement, the plaintiffs in this action immediately sought the continuation of that injunction. The district court granted the motion.

Pending this interlocutory appeal of the preliminary injunction, trial on liability proceeded. On September 24, 1992, the jury rendered a verdict in favor of the class and the individually-named plaintiffs (except for plaintiff Wilson Madayag). The Estate's motion for JNOV was denied, and judgment was entered in favor of the prevailing plaintiffs. The preliminary injunction was modified on November 16, 1993, to set forth the jury verdict on liability, to compel the legal representatives of the Estate to fully and completely answer plaintiffs' interrogatories regarding the assets of the estate, to name the Swiss banks at which the Marcoses had deposited monies as representatives of the Estate, and to permit the plaintiffs to take discovery regarding these assets.

On February 23, 1994, the jury awarded the plaintiffs $1.2 billion in exemplary damages. The jury will reconvene to determine compensatory damages.


I. The Foreign Sovereign Immunities Act

The Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. Secs. 1330, 1602-11, 1 is

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the sole basis for obtaining jurisdiction over a foreign state and its agencies or instrumentalities. 2 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 688, 102 L.Ed.2d 818 (1989) ("Amerada Hess "). Subject matter jurisdiction against a foreign state depends on the existence of one of the exceptions to immunity set forth in FSIA. Estate I, 978 F.2d at 496, citing, Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). See also Liu v. Republic of China, 892 F.2d 1419, 1424 (9th Cir.1989), cert. dismissed, 497 U.S. 1058, 111 S.Ct. 27, 111 L.Ed.2d 840 (1990). The existence of subject matter jurisdiction under FSIA is a question of law reviewed de novo. Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 706 (9th Cir.1992) ("Siderman"), cert. denied, --- U.S. ----, 113 S.Ct. 1812, 123 L.Ed.2d 444 (1993).

The Estate argues that this action does not fall within any of the articulated exceptions to immunity and should therefore be dismissed. In particular, the Estate argues that under 28 U.S.C. Sec. 1605(a)(5) 3, a foreign state is immune to damages for personal injury or death unless it occurs in the United States. See Amerada Hess, 488 U.S. at 439, 109 S.Ct. at 690-91; McKeel v. Islamic Republic of Iran, 722 F.2d 582, 588 (9th Cir.1983), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984).

However, we have previously rejected the Estate's argument that FSIA immunizes alleged acts of torture and execution by a foreign official. On appeal from entry of default judgment against Imee Marcos-Manotoc, we rejected Marcos-Manotoc's assertion that she was entitled to sovereign immunity because her challenged actions were premised on her authority as a government agent. Estate I, 978 F.2d at 497. In Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095 (9th Cir.1990), we had held that FSIA does not immunize a foreign official engaged in acts beyond the scope of his authority:

Where the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do.

Id. at 1106 (quotation omitted). We held that upon default, Marcos-Manotoc admitted that she acted on her own authority, not that of the Republic of the Philippines. Her acts were not taken within any official mandate and were therefore not the acts of an agency or instrumentality of a foreign state within the meaning of FSIA. Estate I, 978 F.2d at 498.

Like Marcos-Manotoc, the Estate argues that Marcos' acts were premised on his official authority, and thus fall within FSIA. However, because the allegations of the complaint are taken as true for purposes of determining whether an action should be dismissed, 4 Siderman, 965 F.2d at 706, Marcos'

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actions should be treated as taken without official mandate pursuant to his own authority.

Further, we rejected the argument that Marcos' actions were "official" or "public" acts when we reversed the dismissal of the actions against Ferdinand Marcos on the "act of state doctrine." In Estate I, we explained:

This [conclusion that Marcos-Manotoc's acts were not taken pursuant to an official mandate] is consistent with our earlier decision that the same allegations against former President Marcos are not nonjusticiable "acts of state." See Trajano v. Marcos, 878 F.2d 1439 (9th Cir.1989) [table decision]. In so holding, we implicitly rejected the possibility that the acts set out in Trajano's complaint were public acts of the sovereign.

Id. at 498 n. 10.

Moreover, in Republic of the Philippines, we held that Marcos' alleged illegal acts were not official acts pursuant to his authority as President of the Philippines. We rejected the contention that the Republic's RICO suit against Marcos involved a nonjusticiable political question:

Although sometimes criticized as a ruler and at times invested with extraordinary powers, Ferdinand Marcos does not appear to have had the authority of an absolute autocrat. He was not the state, but the head of the state, bound by the laws that applied to him. Our courts have had no difficulty in distinguishing the legal acts of a deposed ruler from his acts for personal profit that lack a basis in law. As in the case of the deposed Venezuelan ruler, Marcos Perez Jimenez, the latter acts are as adjudicable and redressable as would be a dictator's act of rape.

Republic of the Philippines, 862 F.2d at 1361, citing Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir.1962), cert. denied, 373 U.S. 914, 83 S.Ct. 1302, 10 L.Ed.2d 415...

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