The Republic of the Philippines v. Ferdinand E. Marcos, Imelda R. Marcos, Ramon Azurin, Diosdado C. Ordonez and Ancor Holdings, N.V.

concurring in part and dissenting in part:

I concur in the result reached in Judge Kozinski’s opinion. Indeed, if the district court had had jurisdiction to enter the preliminary injunction, I could agree with it entirely. I respectfully dissent, however, from the jurisdictional holding of Part I of the opinion and join in the remainder.

The majority, in finding that the district court had jurisdiction, relies on the case of Keniston v. Roberts, 717 F.2d 1295 (9th Cir.1983), for the proposition that at this stage of the proceedings the complaint must meet only two criteria. First, it must claim a right to recover under the Constitution and laws of the United States. Id., at 1298 . Second, the claim set forth in the complaint must not be wholly insubstantial and frivolous. Id. The test set forth in Keniston , however, is used only “ ‘for the purposes of determining whether [the plaintiff] stated a cause of action on which relief could be granted.’ ” Id. (quoting Jackson Transit Authority v. Local Division 1285, 457 U.S. 15 , 21 n. 6, 102 S.Ct. 2202 , 2206 n. 6, 72 L.Ed.2d 639 (1982)). The test of whether to grant a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is inapplicable to…

dissenting:

The majority opinion characterizes this case largely as a political dispute between competing governments, designed to challenge the legitimacy of Marcos’ reign. Majority op. at 1475,1479,1479-80. This characterization distorts the proper focus of our analysis. In my view, this appeal concerns the attempt by the Republic of the Philippines to secure a preliminary injunction to prevent Ferdinand and Imelda Marcos, and their alleged agents, from transferring, conveying, or encumbering specific properties in California, and other as yet unidentified properties, allegedly purchased with funds stolen from the Republic of the Philippines, pending a final determination of ownership of the properties. The district court concluded that it had subject matter jurisdiction under RICO. Under the pendent claims for conversion, fraud, and deceit, which sought money damages, an accounting, and return of property under a constructive trust, 1 the court issued a preliminary injunction to preserve the status quo pending a determination on the merits. Because I believe that the act of state doctrine does not compel reversal, and that the district court clearly did not abuse its…

We review a preliminary injunction entered against the former president of the Philippines, his wife, several of their associates, corporations allegedly controlled by some or all of them, and a bank where Mrs. Marcos has an account.

Facts

A. Background

On February 7, 1986, a special presidential election was held in the Philippines. There were allegations of massive fraud against the existing government and outbreaks of violence against those supporting the opposition. The precise vote count may never be known, but the official tabulation, which showed an overwhelming victory for Ferdinand Marcos, was rejected by the Philippine people. On February 25, 1986, realizing perhaps that his regime was nearing its end, Marcos and his wife left. His successor, President Corazon Aquino, was almost immediately recognized by our government as the legitimate leader of the Philippines. N.Y. Times, Feb. 26, 1986, at 1, col. 3.

When the Marcoses arrived in Hawaii, they brought along numerous crates filled with currency, jewels, precious metals and negotiable instrumente. These crates were impounded by the United States Customs Service. Litigation began. On February 28, the Central Bank of…

818 F.2d 1473 55 USLW 2686 , RICO Bus.Disp.Guide 6687 The REPUBLIC OF the PHILIPPINES, Plaintiff/Appellee, v. Ferdinand E. MARCOS, Imelda R. Marcos, Ramon Azurin, Diosdado C. Ordonez and Ancor Holdings, N.V., Defendants/Appellants. Nos. 86-6091, 86-6093. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 3, 1986. Decided June 4, 1987. As Amended June 24, 1987. Ronald L. Olson, Richard B. Kendall, Los Angeles, Cal., for plaintiff/appellee. Gerald Walpin, Lawrence G. Golde, Dorothy Heyl, New York City, Richard A. Hibey, Washington, D.C., for defendants/appellants. Appeal from the United States District Court For the Central District of California. Before NELSON, HALL and KOZINSKI, Circuit Judges. KOZINSKI, Circuit Judge. 1 We review a preliminary injunction entered against the former president of the Philippines, his wife, several of their associates, corporations allegedly controlled by some or all of them, and a bank where Mrs. Marcos has an account. Facts A. Background 2 On February 7, 1986, a special presidential election was held in the Philippines. There were allegations of massive fraud against the existing government and outbreaks of violence against…