FILED UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. In re: ESTATE OF FERDINAND E. MARCOS HUMAN RIGHTS LITIGATION, No.

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1 FILED UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SEP MOLLY C. DWYER, CLERK u.s. COURT OF APPEALS In re: ESTATE OF FERDINAND E. MARCOS HUMAN RIGHTS LITIGATION, CELSA HILAO, Plaintiff - Appellee, No D.C. No. MDL MLR District of Hawaii, Honolulu ORDER v. ESTATE OF FERDINAND MARCOS, Defendant - Appellee. Before: GOODWIN, RYMER, and IKUTA, Circuit Judges. The Motion of the Class Plaintiffs and the Class of Human Rights Victims for Stay of the Mandate Pending Petitiottfor Certiorari is GRANTED. The mandate is stayed pending the timely filing of a petition for certiorari to the United States Supreme Court.

2 .~./ No UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN RE: ESTATE OF FERDINAND E. MARCOS HUMAN RIGHTS LITIGATION CELSA HILAO, Class Plaintiffs-Appellees v. ESTATE OF FERDINAND MARCOS, Defendant-Appellee REVELSTOKE INVESTMENT CORPORATION, INC. Applicant for Intervention and Appellant Appeal from the United States District Court for the District of Hawaii, Manuel L. Real, District Judge, Presiding, Nos. MDL No. 840, & MOTION OF THE CLASS PLAINTIFFS AND THE CLASS OF HUMAN RIGHTS VICTIMS FOR STAY OF THE MANDATE PENDING PETITION FOR CER1'IORARI Robert A. Swift Kohn Swift & Graf, PC One South Broad Street, Suite 2100 Philadelphia, PA Telephone Fax Sherry P. Broder JonM. VanDyke 841 Bishop Street, Suite 800 Honolulu, III Telephone Fax Attorneys for Celsa Hi/ao et al and the Plaintiff Class

3 MOTION OF THE CLASS PLAINTIFFS AND THE CLASS OF HUMAN RIGHTS VICTIMS FOR STAY OF THE MANDATE PENDING PETITION FOR CERTIORARI Plaintiffs-Appellees the Class of Human Rights Victims, through their Class Representatives Celsa Hilao et al., hereby move to stay the Court's mandate pending the filing and final disposition of a petition for a writ of certiorari in the United States Supreme Court pursuant to Federal Rule of Appellate Procedure 41 (d)(2) and 28 U.S.C. 2101(f). BACKGROUND By Opinion dated July 31, 2008 this Court ruled that the $2 billion judgment in favor of 9,539 human rights victims was no longer enforceable because it had sunsetted pursuant to Haw. Rev. Stat In re Estate o/ferdinand E. Marcos Human Rights Litig., 536 F.3d 980. This Court denied the Class's Petition for Rehearing or Rehearing En Banc on September II, Because of the important issues related to the protection of the judgment in favor of the Class, the Class intends to file a petition for certiorari to the United States Supreme Court to review this Court's ruling. DISCUSSION Federal Rule of Appellate Procedure 41 (d)(2)(a) permits a party to move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court. The motion must be served on all

4 parties and must show that the certiorari petition would present a substantial question and that there is good cause for a stay. Similarly, 28 U.S.C. 2101(f) states that "[i]n any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari," such a judgment "may be stayed for a reasonable time to enable the party aggrieved to obtain a writ of certiorari from the Supreme Court." Courts consider the public interest when deciding whether to grant a stay. See, e.g., Azurin v. Von Raab, 792 F.2d 914, 915 (9 th eire 1986) (granting emergency motion for stay of judgment releasing property claimed by Marcos in order to maintain status quo and not risk dissipation of assets); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, (9 th Cir. 2002) (discussing public interest considerations). 1. The Class of Victims' Petition for Certiorari Presents a "Substantial Question" The Class intends to petition for certiorari to address and resolve substantial questions - heretofore unanswered by the Supreme Court - regarding (1) how Rules 82 and 69 of the Federal Rules of Civil Procedure should be interpreted and applied, (2) whether all federal judgments and decrees based on federal jurisdictional statutes and federal causes of action are subject to state sunsetting laws, (3) whether federal or state law should apply in determining when a federal

5 judgment is "rendered" or is final for purpose of sunsetting laws, (4) what a federal court should do when faced with an ambiguous state statute that has never been authoritatively interpreted by the state's supreme court, (5) when a judgment is entered pursuant to Rule 58 of the Federal rules of Civil procedure, and (6) whether time limits applicable to enforcement statutes begin before the appellate process is completed. These are questions that have broad significance in the federal system and direct relevance to the autonomy of federal courts. This Court's ruling terminating execution on a $2 billion judgment in favor of 9,539 human rights victims is inconsistent with decisions of the U.S. Supreme Court and several Circuits, including Borer v. Chapman, 119 U.S. 587 (1887); United States v. Indrelunas, 411 U.S. 216 (1973); Home Port Rentals, Inc. v. International Yachting Group, Inc., 252 F.3d 399 (5 th Cir. 2001); and Andrews v. Roadway Express Inc., 473 F.3d 565 (5 th Cir. 2006). 2. Good Cause Exists to Stay the Mandate Pending Supreme Court Review Staying the mandate is appropriate because the ruling of this Court could have significant impact in other pending related cases, and rulings in those cases that tum out to be based on erroneous understandings of the law (because this Court's ruling could be overturned or modified by the Supreme Court) could cause irreversible harm to the Class of Victims. If other pending cases are dismissed, for

6 " instance, the Class of Victims may be barred from pursuing assets that could assist in satisfying their judgment against the Marcos Estate. By contrast, no countervailing hardship exists to prevent a stay of the mandate until the Supreme Court determines whether to grant certiorari. If the Supreme Court denies the Class's petition for certiorari, the courts adjudicating related cases can then determine how to proceed in light of this Court's ruling. If, on the other hand, the petition is granted, it will be obvious that the Supreme Court believes both that the petition presents a substantial question and that an error in this Court's opinion may require a different outcome. The modest additional time involved with a stay of mandate, therefore, cannot outweigh the irreversible harm that could result to the Class of Victims if a stay is denied but this Court's decision is later vacated or reversed. 3. Public Policy Also Favors a Stay The judgment awarded to the Class of Human Rights Victims was based on claims brought under two congressionally-established jurisdictional statutes, the Alien Tort Statute, 28 U.S.C. sec. 1350, and the Torture Victim Protection Act, Pub.L. No , 106 Stat. 73 (1992). The Torture Victim Protection Act was enacted by Congress to reconfirm that U.S. courts should provide a venue to those persons who suffer from torture and extrajudicial murder at the hands of public

7 officials. The legal principles utilized by the Class of Human Rights Victims were approved by this Court in, e.g., Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9 th Cir. 1992); Trajano v. Marcos, 978 F.2d 493 (9 th Cir. 1992); and Hilao v. Marcos, 25 F.3d 1467 (9 th Cir. 1994), and more recently by the United States Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). If federal district courts are not permitted to enforce this judgment because of a hypertechnical reliance on state law restrictions, such a ruling will have broad implications on cases involving all nature of federal law, including bankruptcy cases, cases based on federal environmental statutes, cases based on federal antitrust law, and so on. The Supreme Court has stressed the importance of protecting the autonomy of the federal courts. in decisions such as Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 537 (1958) ("[t]he federal system is an independent system for adrrjnistering justice to litigants who properly invoke its jurisdiction"), and Felder v. Casey, 487 U.S. 131, 139 (1988) ("Any assessment of the applicability of a state law to federal civil rights litigation... must be made in light of the purpose and nature of the federal right. "). Applying these principles to this case would appear to lead to the conclusion that a state sunsetting provision cannot be invoked to block the enforcement of a judgment based on a federal

8 jurisdictional statute and federal cause of action, especially when the judgment creditors have been diligently seeking to collect on their judgment and the district court was exercising continuing jurisdiction over the collection effort. A stay is necessary while the Supreme Court considers these substantial issues. CONCLUSION For the foregoing reasons, the Plaintiffs-Appellees and the Class of Human Rights Victims respectfully requests this Court, pursuant to Federal Rule of Appellate Procedure 41(d)(2) and 28 U.S.C. 2101(f), to stay the issuance of the mandate pending the timely filing of a petition for certiorari to the United States Supreme Court. Respectfully submitted, Dated: September 15,2008 flw-rl L ' Robert A. Swift ~ KOHN SWIFT & GRAF, PC One South Broad Street, Suite Philadelphia, P A Telephone Fax Sherry P. Broder Jon M. Van Dyke 841 Bishop Street, Suite 800 Honolulu, m Telephone Fax

9 Attorneys for Celsa Hilao et al. and the Class of Human Rights Victims University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection

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

11 CERTIFICATE OF SERVICE I hereby certify that a copy of the Foregoing Motion of the Class Plaintiffs and the Class of Human Rights Victims for Stay of the Mandate Pending Petition for Certiorari was served on this 15th day of September 2008 by U.S. Mail and CMlECF on the following counsel: Eugene D. Gulland Covington & Burling 1201 Pennsylvania Avenue, NW Washington, D.C James P. Linn 1601 NW Expressway St. #1110 Oklahoma City, OK Randall Scarlett 536 Pacific Avenue San Francisco, CA Carol A. Eblen Goodsill Anderson Quinn & Stifel LP 1099 Alakea St., Suite 1800 Honolulu, III John J. Bartko Bartko, Tarrant & Miller 900 Front Street, Suite 300 San Francisco, CA Bert T. Kobayashi, Jr. LexR. Smith Kobayashi Sumita & Goda 999 Bishop St., 26 th FIr. Honolulu, III

12 I University Of Hawaii School of Law Library - Jon Van Dyke Archives Collection Jay R. Ziegler Bachalter Nemer 1000 Wilshire Blvd, 15 th Floor Los Angeles, CA Steven V. Bomse Richard Cashman Rachel Jones Heller Ehrman LP 333 Bishop Street San Francisco, CA Paul Hoffinan Schonbrun, De Simone, Seplow, Harris & Hoffman 723 Oceanfront Walk, Suite 100 Venice, CA 90291, 11