When Are Sovereigns Immune and Indispensable?

by Roger Alford

In case you missed it, in addition to Medellin and Boumediene, there is one other significant international case before the Supreme Court this term. Although the case is a sleeper, it has important ramifications for any attempts by successful claimants to attach assets of government officials who violate human rights when the sovereign also has a legitimate claim to those assets. More specifically, what happens to litigation when the foreign sovereign is immune from suit and potentially an indispensable party?

You can find details and documents about Philippines v. Pimental at SCOTUSWiki here, but essentially it relates to efforts by human rights victims to execute judgment against assets of Ferdinand Marcos located in Hawaii. The victims are seeking some $35 million in execution of their $2 billion judgment against Ferdinand Marcos in the case of Hilao v. Estate of Marcos. Meanwhile, the Philippine government argues that under Philippine law, any ill-gotten gains obtained by government officials belongs to the Philippine government.

The holder of the account, Merrill Lynch, brought an interpleader action to resolve the competing claims to the assets. The Ninth Circuit ruled that the Philippines enjoys sovereign immunity but is not an indispensable party. The Supreme Court granted certiorari on December 3, 2007. The questions presented are:

1. Whether a foreign government that is a “necessary” party to a lawsuit under Rule 19(a) and has successfully asserted sovereign immunity is, under Rule 19(b), an “indispensable” party to an action brought in the courts of the United States to settle ownership of assets claimed by that government.

2. Whether the Republic of the Philippines (Republic) and its Presidential Commission on Good Government (PCGG), having been dismissed from the interpleader action based on their successful assertion 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 the right to seek this Court’s review of the court of appeals’s opinion affirming the district court.

The United States has filed an amicus brief in support of the Philippines. Oral argument is not yet scheduled.


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