In re: ESTATE OF FERDINAND E. MARCOS HUMAN RIGHTS LITIGATION, CELSA HILAO v. the Estate of Ferdinand E. Marcos

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ESTATE OF FERDINAND E.
MARCOS HUMAN RIGHTS
LITIGATION,
CELSA HILAO; ADORA FAYE DE
VERA,
Plaintiffs - Appellees,
v.
THE ESTATE OF FERDINAND E.
MARCOS,
Defendant - Appellant.
No. 11-15487
D.C. No. 1:03-cv-11111-MLR
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Manuel L. Real, District Judge, Presiding
Argued and Submitted October 15, 2012
Honolulu, Hawaii
FILED
OCT 24 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

1 The underlying damages judgment in an action against Marcos by Hilao
expired in 2005 pursuant to Hawaii’s ten-year statute of limitations for civil
judgments. Haw. Rev. Stat. § 657-5.
2 The contempt judgment was issued in 2011, and it covered the failure of
Marcos to pay the court’s contempt sanction from 1995 to 2005.
2
Before: REINHARDT, THOMAS, and PAEZ, Circuit Judges.
The Estate of Ferdinand E. Marcos (hereinafter “Marcos”) appeals a
$353,600,000 contempt judgment awarded to a class of human rights victims
(hereinafter “Hilao”). Marcos argues on appeal that, because the underlying
damages judgment expired in 2005 1 and because the $100,000 per day contempt
sanction upon which the contempt judgment was based was coercive in nature,2 the
contempt judgment is unenforceable. We review findings of civil contempt and the
amount of a civil contempt sanction for abuse of discretion. FTC v. Affordable
Media, LLC, 179 F.3d 1228, 1229 (9th Cir. 1999). Underlying factual findings are
reviewed for clear error. Id. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
Marcos’s argument is likely waived. The argument that Marcos made in the
district court was that the contempt judgment was unenforceable under state law,
because it had expired under Haw. Rev. Stat. § 657-5. The district court rejected
this argument, and Marcos did not appeal that determination, although it did appeal

-- 2 of 4 --

3 Marcos has conceded that a compensatory contempt judgment is
enforceable even when the underlying damages judgment has expired.
3
the decision. Marcos now argues on appeal that the contempt judgment is
unenforceable under federal law, because coercive sanctions are unenforceable
when the underlying damages judgment has expired. This is a new argument, and
we “do[] not consider an issue not passed upon below.” Dodd v. Hood River Cnty.,
59 F.3d 852, 863 (9th Cir. 1995) (internal quotation and citation omitted). Marcos
contends that it “obliquely” made this argument in its December 2010 status report
statement. We agree that this reference was oblique; it was, in fact, a single
sentence of a single paragraph of a five-page memorandum to the district court.
Moreover, the paragraph lacked legal citation and began with “Put another way,”
suggesting that Marcos was simply restating the state law argument in different
terms. Thus, Marcos did not raise this argument “sufficiently for the trial court to
rule on it.” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992)
(quoting In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989)).
Independent of waiver, we reject Marcos’ argument on the merits. Even if
Marcos is correct that the contempt sanction was coercive, it was also clearly
compensatory.3 The district court ordered that the $100,000 per day sanction be
paid to the plaintiff, Hilao, not the court. See Falstaff Brewing Corp. v. Miller

-- 3 of 4 --

4
Brewing Co., 702 F.2d 770, 779-80 (9th Cir. 1983). Additionally, the district court
explained that the $100,000 per day amount was “necessary and appropriate”
because Marcos’s contumacious conduct was causing direct harm to Hilao,
including $55,000 per day from lost interest and additional losses due to Marcos’s
dilatory tactics. Because a contempt sanction can be both coercive and
compensatory, U.S. v. United Mine Workers of America, 330 U.S. 258, 303-04
(1947); Union of Prof. Airmen v. Alaska Aeronautical Ind., Inc., 625 F.2d 881, 883
(9th Cir. 1979), and because no party has asked the court to allocate the $100,000
per day amount between compensatory and coercive components, the district court
did not abuse its discretion in treating the entirety of the $100,000 per day sanction
as compensatory.
In view of the above, we hold that the $353,600,000 contempt judgment is
properly enforceable by Hilao.
AFFIRMED.

-- 4 of 4 --