The REPUBLIC OF THE PHILIPPINES, Plaintiff-Appellee, 2

v.
Ferdinand E. MARCOS, et al., Defendants-Appellants.
The Republic alleges that the Marcoses engaged in mail fraud, wire fraud, and
No. 86-6091. the transportation of stolen property in the foreign or interstate commerce of the
United States Court of Appeals, United States. The acts alleged are crimes under 18 U.S.C. Secs. 1341, 1343,
Ninth Circuit. and 2315. The Republic alleges that the acts were repeated, forming a pattern
of predicate acts under RICO, 18 U.S.C. Sec. 1961, and thereby giving rise to
Argued and Submitted Feb. 10, 1988. civil liability under RICO, 18 U.S.C. Sec. 1964.
Decided Dec. 1, 1988.
Special Concurrence, Dec. 2, 1988. 3
Contrary to the contention of the Marcoses, the Republic as a governmental body
Richard A. Hibey, Anderson, Hibey, Nauheim & Blair, Washington, D.C., is a person within the meaning of 18 U.S.C. Sec. 1961(3). Illinois Department of
John J. Bartko, Bartko, Welsch, Tarrant & Miller, and Stephen Horn, Revenue v. Phillips, 771 F.2d 312 (7th Cir.1985). The foreign nature of the
Schmeltzer, Aptaker & Sheppard, P.C., Washington, D.C., for Republic does not deprive it of statutory personhood. Cf. Pfizer, Inc. v.
defendants-appellants Ferdinand E. Marcos, Imelda R. Marcos and Government of India, 434 U.S. 308, 98 S. Ct. 584, 54 L. Ed. 2d 563 (1978).
Ramon Azurin. Accordingly the Republic has standing to assert the RICO claims.
4
John J. Stumreiter, Rosenfeld, Meyer & Susman, Beverly Hills, Cal. and Contrary to the contention of the Marcoses, the complaint, as interpreted by the
Gerald Walpin, Rosenman, Colin, Freund, Lewis & Cohen, New York district court, sufficiently alleges a RICO offense. The Republic alleges that the
City, for defendants-appellants Diosdado C. Ordonez and Ancor Marcoses and the other defendants arranged for the investment in real estate in
Holdings, N.V. Beverly Hills, California of $4 million fraudulently obtained by the Marcoses; that
the Marcoses arranged for the creation of two bank accounts in the name of
Ronald L. Olson, Bradley S. Phillips, Richard B. Kendall, Munger, Tolles
Imelda Marcos at Lloyds Bank of California totaling over $800,000 also
& Olson, Los Angeles, Cal., for plaintiff-appellee Republic of the
fraudulently obtained by the Marcoses; and that the Marcoses transported into
Philippines.
Hawaii money, jewels, and other property worth over $7 million also fraudulently
Richard K. Willard, Asst. Atty. Gen., James M. Spears, Deputy Asst. obtained by them. Criminal conduct under RICO "forms a pattern if it embraces
Atty. Gen., Robert C. Bonner, U.S. Atty., Robert E. Kopp, John F. criminal acts that have the same or similar purposes, results, participants,
Cordes, and John P. Schnitker, Asst. U.S. Attys., Washington, D.C., for victims, or methods of commission, or otherwise are interrelated by distinguishing
the amicus curiae U.S. characteristics and are not isolated events." Sedima, S.P.R.L. v. Imrex Co.,
Inc., 473 U.S. 479, 496 n. 14, 105 S. Ct. 3275, 3285, n. 14, 87 L. Ed. 2d
Appeal from the United States District Court for the Central District of 346 (quoting 18 U.S.C. Sec. 3575(e)). The purposes of the acts here alleged are
California. the same--to invest and to conceal fraudulently-obtained booty. The results are
the same--the investment of the booty. The principals are the same--the
Before BROWNING, Chief Judge, ANDERSON,* SCHROEDER, Marcoses. The victim is the same--the Republic. The episodes are not isolated
FLETCHER, PREGERSON, ALARCON, CANBY, NORRIS, BEEZER events. They represent a plan and a practice of getting the fruits of fraud out of
BRUNETTI, and NOONAN, Circuit Judges. the Philippines and into the assumed safety of the United States. If proved, the
NOONAN, Circuit Judge: allegations show acts that form a pattern.
5
1 Contrary to the contention of the Marcoses, the complaint as read by the district
The Republic of the Philippines (the Republic) brought a civil suit against its court also alleges a RICO enterprise. A RICO enterprise has been found to
former president, Ferdinand Marcos, and his wife Imelda (the Marcoses), consist of "a group of individuals associated in fact for the purpose of illegally
asserting claims under the Racketeer Influenced and Corrupt Organizations Act trafficking in narcotics ..., utilizing the United States mail to defraud ..., and
(RICO), 18 U.S.C. Secs. 1961 et seq., and other applicable law. The district court corruptly influencing ... the outcome of state court proceedings." United States v.
on June 25, 1986 entered a preliminary injunction enjoining the Marcoses from Turkette, 452 U.S. 576, 579, 101 S. Ct. 2524, 2526, 69 L. Ed. 2d 246 (1981).
disposing of any of their assets save for the payment of attorney fees and normal Here there is alleged to be a group of individuals associated in fact for the
living expenses. The Marcoses appealed. A panel of this court reversed, 2-1. 818 purpose of illegally investing the fruits of fraud and illegally using the mails and
F.2d 1473 (9th Cir.1987). We took the case en banc and now affirm the district wire and illegally transporting in interstate commerce the fruits of the fraud.
court. 6
Federal Jurisdiction The effect on the commerce of the United States of engaging in mail or wire fraud
or bringing stolen property into the country is palpable. The Marcoses are
 mistaken in arguing that such criminal acts have no consequences for commerce This Court has pendent jurisdiction over plaintiff's other claims under state and
to or in this country. The criminal enterprise which they are charged with foreign law in that such claims arise from a common nucleus of operative fact
conducting consisted in operations taking place within the United States. These and are so intertwined with other matters pending before the court as to make
operations had multiple effects on the domestic and foreign commerce of this the exercise of such jurisdiction over these claims appropriate.
country. If the operations were criminal, the operators incurred criminal liability
under our law. United States v. Stratton, 649 F.2d 1066, 1075 (5th Cir.1981) 12
(appearance of out-of-state litigants before court that was a criminal RICO The district court was correct in asserting pendent jurisdiction over these claims.
enterprise); United States v. Altomare, 625 F.2d 5 (4th Cir.1980) (interstate They derive from "a common nucleus of operative fact" and are such that a
telephone calls perpetuating RICO enterprise affected interstate commerce). The plaintiff "would ordinarily be expected to try them all in one judicial proceeding."
Republic's allegations are sufficient to establish federal jurisdiction. 18 U.S.C. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L.
Sec. 1964. Ed. 2d 218 (1966). The power of a federal court to decide pendent claims is
Pendent Jurisdiction "wide-ranging." See Carnegie-Mellon Univ. v. Cohill, --- U.S. ----, 108 S. Ct. 614,
618, 98 L. Ed. 2d 720 (1988). The exercise of the power is discretionary but
7 ordinarily the power if it exists is exercised; only exceptionally is the power not
employed. See C. Wright, A. Miller & E. Cooper 13B Federal Practice and
Procedure Sec. 3567.1 (1984 and 1988 Supp.).
The gravamen of the Republic's entire case is the allegation that the Marcoses 13
stole public money:
8 The common nucleus of operative facts that binds the RICO and non-RICO
claims together is pleaded in paragraph 12, which is incorporated by reference
into each claim for relief. To prove the predicates for RICO that allegedly occurred
During his twenty years as President of the Philippines, Mr. Marcos used his in this country, the Republic will have to prove theft, the acceptance of bribes,
position of power and authority to convert and cause to be converted, to his use extortion, conspiracy, and similar acts in the Marcoses' conduct of the
and that of his friends, family, and associates, money, funds, and property government in the Philippines. For example, to prove that stolen money was
belonging to the Philippines and its people. Complaint, p 12 (emphasis added). unlawfully transported in the United States, the Republic will have to prove theft
9 in the Philippines. The operative facts necessary as part of the proof of the RICO
claim are also the facts necessary to prove the theft. The RICO claims cannot be
proved without getting deeply into the pendent claims and proving some or all of
This common allegation supports not only plaintiff's RICO claims but also the them. Because the acts charged, if proved, support both the RICO and the non-
eight claims for conversion, fraud and deceit, constructive fraud, constructive RICO claims, the district court has subject matter jurisdiction over all claims in
trust, breach of implied contract, quiet title, accounting, and subrogation. The the Republic's complaint.
claims for a constructive trust, to quiet title, an accounting, and subrogation 14
merely set forth different forms of relief for the same underlying wrongs.
10
True, the pendent claims may involve more property than that which entered into
or affected the foreign or domestic commerce of the United States. The dissent
The Republic's strategy of bringing suit in a number of other jurisdictions is not appears to assume that jurisdiction over the pendent claims cannot extend
decisive of the question whether the claims are such that they would ordinarily beyond this property. But that is not the law. Properly pendent claims need not
be tried in one judicial proceeding. The present location of the sought-for funds be for the identical property involved in the federal cause of action. The pendent
in banks in various countries is not determinative as to the underlying wrongs claims remain within the court's jurisdiction if the vital facts that must be proved
alleged in the complaint. The claims brought in this suit would ordinarily be tried as predicates of the RICO claims are the same as those that must be proved to
in a single case. In both the RICO and non-RICO claims, the Republic alleges establish the extortion, bribery, theft, fraud, and conversions alleged by the
that the Marcoses converted public funds while in office. The district court pendent claims.
concluded: 15
11
At "every stage of the proceeding" the district court must exercise discretion as
to the pendent claims. See Carnegie-Mellon Univ. v. Cohill, 108 S.Ct. at 618. In
 light of a more fully developed record than that now before this court, the district may be acquired by an ex-chief magistrate invoking the magic words "act of
judge may conclude that some or all of the pendent claims should be dismissed state" to cover his or her past performance.
notwithstanding our holding that the district court has the power to assert
jurisdiction over those claims. Gibbs, 383 U.S. at 727, 86 S.Ct. at 1139. See also 20
3A J. Moore, W. Taggert & J. Wicker, Moore's Federal Practice p 18.07[1.-3] at
18-36-37 (2d ed. 1987). As of the record now before us, pendent jurisdiction
exists and supports an injunction based on the pendent claims. The classification might, it may be supposed, be used to prevent judicial
challenge in our courts to many deeds of a dictator in power, at least when it is
Act of State and Political Question apparent that sustaining such challenge would bring our country into a hostile
confrontation with the dictator. Once deposed, the dictator will find it difficult to
16 deploy the defense successfully. The "balance of considerations" is shifted.
Sabbatino, 376 U.S. at 428, 84 S.Ct. at 940. A fortiori, when a ruler's former
domain has turned against him and seeks the recovery of what it claims he has
Before determining whether issuance of an injunction was appropriate we stolen, the classification has little or no applicability. The act of state doctrine is
consider two defenses which, if accepted, would block trial of the case: the supple, flexible, ad hoc. The doctrine is meant to facilitate the foreign relations of
Marcoses maintain, first, that their acts are insulated because they were acts of the United States, not to furnish the equivalent of sovereign immunity to a
state not reviewable by our courts; and second, that any adjudication of these deposed leader.
acts would involve the investigation of political questions beyond our courts'
competence. 21
In the instant case the Marcoses offered no evidence whatsoever to support the
17 classification of their acts as acts of state. The burden of proving acts of state
Acts of State. The classification of certain acts as "acts of state" with the rested upon them. Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S.
consequence that their validity will be treated as beyond judicial review is a 682, 695, 96 S. Ct. 1854, 1861, 48 L. Ed. 2d 301 (1976). They did not even
pragmatic device, not required by the nature of sovereign authority and undertake the proof. The United States, invited by the court to address this matter
inconsistently applied in international law. Banco Nacional de Cuba v. as an amicus, assures us that the Executive does not at present see the
Sabbatino, 376 U.S. 398, 421-22, 84 S. Ct. 923, 936-37, 11 L. Ed. 2d 804 (1964). applicability of this defense. Brief of the United States of America as Amicus
The purpose of the device is to keep the judiciary from embroiling the courts and Curiae, p. 11. The act of state doctrine, the Executive declares, has "no bearing"
the country in the affairs of the foreign nation whose acts are challenged. on this case as it stands. As the doctrine is a pragmatic one, we cannot exclude
Minimally viewed, the classification keeps a court from making pronouncements the possibility that, at some later point in the development of this litigation, the
on matters over which it has no power; maximally interpreted, the classification Marcoses might produce evidence that would warrant its application. On the
prevents the embarrassment of a court offending a foreign government that is present record, the defense does not apply.
"extant at the time of suit." Id. at 428, 84 S.Ct. at 940. 22
18 Political Questions. Bribetaking, theft, embezzlement, extortion, fraud, and
The "continuing vitality" of the doctrine depends on "its capacity to reflect the conspiracy to do these things are all acts susceptible of concrete proofs that need
proper distribution of functions between the judicial and political branches of the not involve political questions. The court, it is true, may have to determine
Government on matters bearing upon foreign relations." Id. at 427-28, 84 S.Ct. questions of Philippine law in determining whether a given act was legal or illegal.
at 939-40. Consequently, there are "constitutional underpinnings" to the But questions of foreign law are not beyond the capacity of our courts. See
classification. Id. at 423, 84 S.Ct. at 938. A court that passes on the validity of an Zschernig v. Miller, 389 U.S. 429, 461, 88 S. Ct. 664, 681, 19 L. Ed. 2d
"act of state" intrudes into the domain of the political branches. The proper 683 (1968) (Harlan, J. concurring); Fed.R.Civ.P. 44.1 (allowing consideration of
application of the doctrine is illustrated by Occidental Petroleum Corp. v. Buttes foreign law materials). The court will be examining the acts of the president of a
Gas & Oil Co., 331 F. Supp. 92 (C.D.Cal.1971), aff'd per curiam, 461 F.2d country whose immediate political heritage is from our own. Although sometimes
1261 (9th Cir.), cert. denied, 409 U.S. 950, 93 S. Ct. 272, 34 L. Ed. 2d criticized as a ruler and at times invested with extraordinary powers, Ferdinand
221 (1972). Marcos does not appear to have had the authority of an absolute autocrat. He
19 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
As a practical tool for keeping the judicial branch out of the conduct of foreign the deposed Venezuelan ruler, Marcos Perez Jimenez, the latter acts are as
affairs, the classification of "act of state" is not a promise to the ruler of any foreign adjudicable and redressable as would be a dictator's act of rape. Jimenez v.
country that his conduct, if challenged by his own country after his fall, may not Aristeguieta, 311 F.2d 547 (5th Cir.1962).
become the subject of scrutiny in our courts. No estoppel exists insulating a The Convenience of the Forum
deposed dictator from accounting. No guarantee has been granted that immunity
23 prevent resolution of the questions or execution of any judgment by altering the
status quo. Serious questions are "substantial, difficult and doubtful, as to make
them a fair ground for litigation and thus for more deliberative investigation."
The Marcoses maintain that the Republic's action should have been dismissed, Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.1952)
even if the district court had jurisdiction, on the ground of forum non conveniens. (Frank, J.). Serious questions need not promise a certainty of success, nor even
They point to the foreign character of the plaintiff, the nature of the Republic's present a probability of success, but must involve a "fair chance of success on
claims about the Marcoses' conduct in office, and the fact that the court will be the merits." National Wildlife Fed'n v. Coston, 773 F.2d 1513, 1517 (9th Cir.1985)
called upon to decide questions of Philippine law. The inconvenience of the forum (Duniway, J.). Applying these principles and definitions to this case, we conclude
was argued by the Marcoses to the district court. But the court did not address that the district court did not abuse its discretion in granting the preliminary
the argument. On the present record the district court did not abuse its discretion injunction.
in refusing to dismiss the Republic's action on forum non conveniens grounds 28
before issuing the preliminary injunction.
Injunction Rather Than Attachment The district court stated orally that "the hardship is clearly on the side of the
24 plaintiff." The district court also made the written finding that there was more than
Fed.R.Civ.P. 64 makes available all remedies for the seizure of property "in the a mere possibility of irreparable harm; in fact, it concluded that the Republic
manner provided by the law of the state in which the district court is held." The "would be irreparably injured if [the injunction] were not issued." (emphasis
Marcoses argue that the freeze of their assets is an attachment and that added). The Marcoses have offered no evidence of any hardship they would
California law permits attachment only in connection with a claim based upon a suffer if the injunction were issued. Indeed, the district court stipulated in the
contract. Cal.Civ.Proc.Code Sec. 483.010(c). The Marcoses are mistaken. While injunction that the Marcoses may use their assets to cover normal living
a freeze of assets has the effect of an attachment, it is not an attachment. F.T.C. expenses and legal fees. Irreparable injury was weighed against zero evidence
v. H.N. Singer, Inc., 668 F.2d 1107, 1112 (9th Cir.1982). The court has power to of hardship. On this record, the balance of hardships tipped decidedly in the
preserve the status quo by equitable means. A preliminary injunction is such a Republic's favor.
means. F.T.C., 668 F.2d at 1112. 29
25
The Standard for Issuance of the Injunction
26 The district court also concluded that the Republic had a "substantial likelihood"
The issuance of the preliminary injunction was not an abuse of discretion by the of prevailing on the merits. Although we do not read this as a finding of probability
of success, we do believe that it represents a finding that the Republic has at
district court if that court properly concluded that the Republic had shown the
probability of success on the merits of its pendent claims and the possibility of least a fair chance of success, which is all that is required. See Benda, 584 F.2d
at 315. We agree with the district court that the Republic has at least a fair chance
irreparable injury, or that the pendent claims raised serious questions and the
balance of hardships tipped sharply in favor of the Republic. Hoopa Valley Tribe of prevailing on the merits, including on the merits of its constructive trust claim.
v. Christie, 812 F.2d 1097, 1102 (9th Cir.1987). "These are not two distinct tests, 30
but rather the opposite ends of a single 'continuum in which the required showing
of harm varies inversely with the required showing of meritoriousness.' " Rodeo
Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir.1987) (quoting The Republic presented evidence that in February 1986 the Marcoses had
San Diego Committee Against Registration and the Draft v. Governing Board of transported from the Philippines to Hawaii $8.2 million worth of cash, negotiable
the Grossmont Union High School Dist., 790 F.2d 1471, 1473 n. 3 (9th instruments, jewelry, and other property, allegedly derived from the Marcoses'
Cir.1986)). "The critical element in determining the test to be applied is the wrongdoing in the Philippines. Ferdinand Marcos swore by affidavit that it had
relative hardship to the parties. If the balance of harm tips decidedly toward the not been his intention to go to Hawaii and that he had been taken there
plaintiff, then the plaintiff need not show as robust a likelihood of success on the involuntarily by the government of the United States. But as he sought to recover
merits as when the balance tips less decidedly." Benda v. Grand Lodge of Int'l from United States Customs all of these items he clearly intended to introduce
Assoc. of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), them into the United States. He used the United States mail and telephone
cert. dismissed, 441 U.S. 937, 99 S. Ct. 2065, 60 L. Ed. 2d 667 (1979) (citation services for this purpose.
omitted).
27 31
For the purposes of injunctive relief, "serious questions" refers to questions which
cannot be resolved one way or the other at the hearing on the injunction and as
to which the court perceives a need to preserve the status quo lest one side
 The Republic also presented evidence that since at least 1968 the Marcoses had unlawful means alleged by the Republic. The inference depends in part on the
a checking account at a bank in Beverly Hills, California and that this account hearsay statements of Fernando. It was within the discretion of the district court
was used to make payments of $200,000 to "William Saunders" and $100,000 to to accept this hearsay for purposes of deciding whether to issue the preliminary
"Jane Ryan." The Republic introduced evidence that these names were aliases injunction. Flynt Distrib. Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.1984)
under which Ferdinand Marcos and Imelda Marcos acted. The Republic ("The urgency of obtaining a preliminary injunction necessitates a prompt
presented evidence of the creation by the Marcoses in 1970 of a Lichtenstein determination and makes it difficult to obtain affidavits from persons who would
entity entitled the "Sandy Foundation," which in effect was a trust to make be competent to testify at trial. The trial court may give even inadmissible
investments for the benefit of the Marcoses and their children, Imelda, Ferdinand, evidence some weight, when to do so serves the purpose of preventing
and Irene, and which was funded by the Marcoses with an initial capital of irreparable harm before trial."); see also K-2 Ski Co. v. Head Ski Co., 467 F.2d
100,000 Swiss francs. The Republic presented evidence that "Jane Ryan" and 1087, 1088 (9th Cir.1972) (trial court may consider allegations in verified
"William Saunders" transferred their accounts to this trust and that Credit Suisse, complaint in issuing preliminary injunction). No affidavits countering the inference
a Zurich bank, was "the administering bank" of the trust. The Republic presented were presented by the Marcoses. See K-2 Ski Co., 467 F.2d at 1089. The
evidence of correspondence by the Marcoses as customers of that bank and the Republic's case remains to be proved. The Republic has put forward enough to
use by Imelda Marcos of the alias of Jane Ryan in dealing with that bank. show a fair chance of succeeding with its proof.
The Scope of the Injunction
32
35
The injunction is directed against individuals, not against property; it enjoins the
According to the Republic's evidence, a code was worked out for contacts Marcoses and their associates from transferring certain assets wherever they are
between the Marcoses and the trust. According to a copy of a memorandum located. Because the injunction operates in personam, not in rem, there is no
signed by Ferdinand Marcos, if he cabled "Happy Birthday" to the bank, its Hong reason to be concerned about its territorial reach. See, e.g., Steele v. Bulova
Kong representative, Ralph Klein, would proceed to Manila and "contact him Watch Co., 344 U.S. 280, 289, 73 S. Ct. 252, 257, 97 L. Ed. 319 (1952) (district
through Col. Fabian C. Ver." (Colonel Ver is now General Ver, associated with court "in exercising its equity powers may command persons properly before it
the Marcoses in power and in their flight from the Philippines.) to cease to perform acts outside its territorial jurisdiction") (citations omitted).
36
33 A court has the power to issue a preliminary injunction to prevent a defendant
from dissipating assets in order to preserve the possibility of equitable remedies.
See, e.g., F.T.C. v. H.N. Singer, Inc., 668 F.2d 1107, 1112 (9th Cir.1982)
In addition to this evidence of secretive dealings in substantial sums of money in (preliminary injunction appropriate to preserve the possibility of equitable
the course of which the Marcoses used a bank in California, the Republic remedies). The injunction here enjoins the defendants from secreting those
submitted a statement by the Minister of the Budget of the Philippines as to the assets necessary to preserve the possibility of equitable relief.
total salaries authorized to be paid Ferdinand Marcos as president from 1966 to 37
1985 and Imelda Marcos as a minister of government from 1976 to 1985. The
total authorized amount is P 2,288,750, in dollars less than $800,000. The
Republic submitted what purports to be a balance sheet signed by Ferdinand Although the gravamen of the complaint is that the Marcoses converted public
Marcos as part of a tax return stating his assets as of December 31, 1966 as P property to their own use, the seventh claim for relief, which alleges a
150,000, in dollars less than $60,000. The Republic submitted the sworn constructive trust, states an equitable cause of action and seeks equitable relief:
deposition, executed June 16, 1986, of Rafael Fernando, Representative and "[The Marcoses], by virtue of their position as President of the Philippines and
Coordinator on the West Coast of the United States of the Presidential Governor of Manila, respectively, occupied positions of trust as to the Philippines
Commission on Good Government of the Republic of the Philippines. Fernando and its people. [The Marcoses] violated said trust by their numerous acts of
declares that Swiss bank authorities have documented to the government of the conversion, fraud, deceit, constructive fraud, civil conspiracy, acts of
Republic the existence of bank accounts owned by Ferdinand Marcos in the racketeering, and other unlawful acts." As the result of these asserted violations
amount of $200 million and have reported to the Republic the existence of other of trust, the Marcoses acquired specific funds and real property, including the
accounts held for or on behalf of him in the amount of approximately $1.3 billion. accounts with Lloyds Bank, the real property in Beverly Hills, the deposits with
34 the Swiss banks and the property brought into Hawaii. Complaint, paragraphs
The Marcoses' clandestine dealings with Credit Suisse and the Lichtenstein trust 62-67. In granting the preliminary injunction, the district court specifically found
and the discrepancy between the purported balance sheet of 1966 and the "that the Philippines will be entitled to an accounting for, and to impose a
reported assets of 1986, coupled with the reported authorized salaries of the constructive trust upon, the property subject to this Order." The district court
Marcoses as members of the government of the Republic, give rise to the found the preliminary injunction necessary to preserve the possibility of equitable
inference that very large sums of money were amassed by the Marcoses by the relief. On this record, the district court did not abuse its discretion in entering an
injunction of this scope.
38 Marcoses over the course of twenty years. The pendent claims are alleged to be
The district court remains free to modify or dissolve the preliminary injunction if violations of as yet unspecified laws of as yet unspecified states and countries.
warranted by developments in this case subsequent to the noticing of this appeal. The district court's injunction purports to reach over a billion dollars worth of
Lyng v. Northwest Indian Cemetery Protective Assoc., --- U.S. ----, 108 S. Ct. assets, the bulk of which are located in Switzerland. See Republic of the
1319, 1330, 99 L. Ed. 2d 534 (1988). See also 7 J. Moore, W. Taggert & J. Philippines v. Marcos, 818 F.2d 1473, 1476 (9th Cir.1987).
Wicker, Moore's Federal Practice p 65.07 at 65-114 (2d ed. 1987). 45
39

To affirm this injunction, the majority must hold that the district court properly
In Summation. Jurisdiction to hear the Republic's claims and to enter the exercised pendent jurisdictional authority to reach all of the Marcoses' property,
preliminary injunction exists. A serious question of liability has been presented wherever located. I cannot agree. The basis for federal jurisdiction is contained
and the Republic has a fair chance of success on the merits of its case. The in RICO allegations of illegal activities concerning assets now located in the
Marcoses have not presented any preclusive defense. The scope of the United States. There has been no showing that these claims arise in any way
injunction is justified. It was imperative for the district court to preserve the status from the same allegedly wrongful transactions through which the Marcoses
quo lest the defendants prevent resolution of the case by putting their property acquired other property located elsewhere. Nor does the record disclose any
beyond the reach of the court. Hardship to the Republic would have been great reason why a court in California, as opposed to courts in the Philippines or
and irreparable if the district court had not taken its prudent, amply justified action Switzerland, should decide claims to property stolen from the Philippines and
to keep the Marcoses' assets from disappearing. transported to Switzerland. I therefore part company with the majority when it
affirms on this record the district court's issuance of a preliminary injunction
40 preventing the Marcoses from disposing of any assets anywhere in the world.
46
AFFIRMED.
41 In my view the existence of pendent jurisdiction over claims reaching all the
Marcoses' assets has not yet been established. As explained more fully below
this injunction should be vacated and the matter remanded to the district court
SCHROEDER, Circuit Judge, with whom CANBY, Circuit Judge, joins concurring for consideration of pendent jurisdiction and other issues on the basis of a fuller
in part and dissenting in part. record.
42 BACKGROUND
47
I join in the majority's conclusion that there is a well-pleaded RICO claim The plaintiff sought an injunction to be entered solely in the exercise of pendent
providing federal subject matter jurisdiction. I agree further that the act of state jurisdiction because RICO does not authorize injunctive relief. See Religious
doctrine is not a threshold bar to considering the activities of the defendants Technology Center v. Wollersheim, 796 F.2d 1076, 1088-89 (9th Cir.1986), cert.
during the time that Mr. Marcos was the Philippine head of state. Those were the denied, 479 U.S. 1103, 107 S. Ct. 1336, 94 L. Ed. 2d 187 (1987). RICO,
principal issues that a majority of the three-judge panel considered and that we however, does provide the requisite federal question jurisdiction.
undertook to decide in this en banc proceeding. 48
43
For the RICO predicate acts in violation of the laws of the United States, the
complaint alleged violations of 18 U.S.C. Secs. 1341, 1343, 2314, and 2315. The
The injunction we review, however, was entered only a week after this suit was alleged racketeering activities essentially involve mail and wire fraud and the
filed, and the record before us is minimal. It does not provide support for the importation of stolen goods into the United States. The showing before the district
majority's resolution of the further issues it must reach, without reasoned court of the Marcoses' actual holdings in the United States included the
analysis, in order to uphold this injunction. I therefore dissent from the affirmance. Marcoses' interests in California real estate, the existence of a bank account with
44 a California bank, and the transporting to Hawaii of $8.2 million in funds and
The injunction is based upon the district court's exercise of pendent jurisdiction, property.
not federal question jurisdiction. It is based on a complaint alleging, in the most 49
sweeping of generalities, pendent claims of fraud and conversion by the
 The district court granted the injunction in conclusory fashion, finding: 91. The Marcoses have urged that in order to make out a claim under RICO, the
complaint would have to allege that there was an adverse economic impact upon
50 the United States by virtue of the defendants' conduct.
(1) That there is a substantial danger that, if this Order were not issued, the parties
against whom this Order is directed would transfer or conceal funds, property, books 57
and records, placing said items beyond the Court's process and recovery by the
Philippines in this action.
RICO, however, was aimed at the destructive effect of organized criminal activity
51 on our society. Its provisions do not focus on any adverse effect of specific activity
(2) That the Philippines therefore would be irreparably injured if this Order were not on the nation's GNP. Its history emphasizes the adverse consequences of
issued. organized crime on our democratic processes, our domestic security and our
52 general welfare, including but not limited to the economic system. See RICO
Statement of Findings and Purpose, Pub.L. No. 91-452, 84 Stat. 922 (1970), 91st
(3) That there is a substantial likelihood that the Philippines will prevail in this action,
and that the Philippines will be entitled to an accounting for, and to impose a constructive Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Admin.News 1073. The
trust upon, the property subject to this Order. Supreme Court has stated:

53 58
RICO is to be read broadly. This is the lesson not only of Congress' self-consciously
expansive language and overall approach, ... but also of its express admonition that
When this court first considered this appeal, a fractured three-judge panel held RICO is to "be liberally construed to effectuate its remedial purposes." ... RICO was an
that the complaint should have been dismissed in its entirety. A majority of the aggressive initiative to supplement old remedies and develop new methods for fighting
panel held that the act of state doctrine prevented the court from inquiring into crime.
the Marcoses' activities during the period in question. Marcos, 818 F.2d at 1489- 59
90. Because a majority of the panel concluded that the act of state doctrine Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 497-98, 105 S. Ct. 3275,
prevented the court from adjudicating any of the claims, the majority did not need 3286, 87 L. Ed. 2d 346 (1985); see also Russello v. United States, 464 U.S. 16,
to consider, and did not address, the issues of pendent jurisdiction. 26, 104 S. Ct. 296, 302, 78 L. Ed. 2d 17 (1983) ("[t]he legislative history clearly
54 demonstrates that the RICO statute was intended to provide new weapons of
unprecedented scope for an assault upon organized crime and its economic
roots").
Judge Hall, in a separate concurring opinion, concluded that there was 60
additionally a lack of subject matter jurisdiction because no RICO claim had been
well pleaded. Id. at 1490-91.
What RICO does require is "a pattern of racketeering activity." 18 U.S.C. Sec.
55 1962. By definition, "racketeering activity" necessitates a violation of one of our
state or federal laws. 18 U.S.C. Sec. 1961. Federal RICO jurisdiction thus
attaches only to those activities that allegedly violate our domestic laws.
Judge Nelson dissented, disagreeing with the other judges as to the applicability
of the act of state doctrine. The dissent argued persuasively that the majority's 61
holding with respect to the act of state doctrine was inconsistent with existing
Supreme Court and Ninth Circuit authority. Id. at 1492-95. We granted en banc
review because of that inconsistency, which was the principal focus of the petition In this case, in Count One of the Complaint, the plaintiff alleges that the Marcoses
for rehearing and rehearing en banc filed by the Government of the Philippines. engaged in mail and wire fraud, and importation of stolen property into the United
States in violation of 18 U.S.C. Secs. 1341, 1343, 2314, 2315. In engaging in
RICO CLAIMS AND FEDERAL QUESTION JURISDICTION these activities, the plaintiff alleges that the Marcoses were conducting a RICO
enterprise as part of an association in fact with the other defendants. These
56 allegations, on their face at least, would survive a motion to dismiss for lack of
subject matter jurisdiction. I therefore agree that there is a RICO basis for federal
subject matter jurisdiction.
In defense of the panel's decision that the complaint be dismissed in its entirety,
the Marcoses have focused upon Judge Hall's separate opinion that there was 62
no well-pleaded RICO claim and hence no federal jurisdiction. See id. at 1490-
 Finding a basis for federal question jurisdiction is but a first step, however, in when a question to which the judicial power of the Union is extended by the constitution,
reviewing the propriety of this injunction. The claims on which this injunction rests forms an ingredient of the original cause, it is in the power of congress to give the Circuit
are pleaded as claims pendent to the RICO claims. The next step is thus to Courts jurisdiction of that cause, although other questions of fact or of law may be
consider whether the relationship between the pendent claims and the federal involved in it.
claims are sufficiently close to permit the district court to assume jurisdiction over
pendent claims reaching the Marcoses' worldwide holdings. See United Mine 68
Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d Id. at 823. The Court subsequently expanded the Osborn doctrine in Siler v.
218 (1966).THE INJUNCTION AND PENDENT JURISDICTION Louisville & Nashville R.R. Co., 213 U.S. 175, 29 S. Ct. 451, 53 L. Ed.
63 753 (1909), then narrowed pendent jurisdiction's scope in Hurn v. Oursler, 289
U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148 (1933). Finally, more than two decades
ago, the Court clarified the scope of pendent jurisdiction in United Mine Workers
In holding that the district court had pendent jurisdiction over claims to the v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966).
Marcoses' assets wherever located in the world, the majority fails to appreciate 69
that pendent jurisdiction can derive only when there is a sufficient factual
connection between the activities giving rise to the pendent claims and the
activities giving rise to the federal claims. In this case, such pendent jurisdiction In Gibbs, a unanimous Court rejected Hurn as "unnecessarily grudging," id. at
should properly derive only from activities directly related to the alleged RICO 725, 86 S.Ct. at 1138, and adopted a two-part test resting on considerations of
violations of United States law. These comprise the alleged fraudulent dealings power and discretion. In evaluating a federal court's power to hear a pendent
in this country and illegal importation of assets into the United States. It is not claim, the Court stated that:
enough for the majority to characterize all the claims as involving criminal 70
misconduct. See majority op. at 1359-1360. [p]endent jurisdiction, in the sense of judicial power, exists whenever there is a claim
64 "arising under [the] Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority ...," U.S. Const., Art. III, Sec. 2, and the
relationship between that claim and the state claim permits the conclusion that the entire
Plaintiff claims the assets now in the United States are traceable to thefts of action before the court comprises but one constitutional "case." The federal claim must
assets rightfully belonging to the people of the Philippines. There may well be a have substance sufficient to confer subject matter jurisdiction on the court.... The state
sufficient factual nexus to sustain pendent jurisdiction for claims arising from the and federal claims must derive from a common nucleus of operative fact. But if,
original wrongful appropriations of the property now found in this country. This is considered without regard to their federal or state character, a plaintiff's claims are such
because the property is the same. No such factual link as yet exists for the that he would ordinarily be expected to try them all in one judicial proceeding, then,
pendent claims to property transferred from the Philippines to other countries. assuming substantiality of the federal issues, there is power in federal courts to hear the
whole.
65
71

It is an elementary legal principle that federal courts are courts of limited

jurisdiction. There are constitutional restraints on their exercise of jurisdiction. Id.
The Constitution restricts federal courts' jurisdiction to claims "arising under [the] 72
Constitution, the Laws of the United States, and Treaties made, or which shall
be made, under their Authority." U.S. Const., art. III, Sec. 2. When a plaintiff
pleads a federal claim within a district court's federal subject matter jurisdiction, Thus, federal claims and pendent claims must all derive from a "common nucleus
a plaintiff may not automatically bring any other claim against the same of operative fact." They must also be the sort that would ordinarily be tried in "one
defendant. Subject matter jurisdiction of non-federal claims, under the judicially- judicial proceeding." Id. The majority opinion does not analyze the pendent
created doctrine of pendent jurisdiction, depends upon the relationship between claims. Instead, it merely announces that the pendent claims arose from a
those claims and the federal claims. nucleus of operative fact common to the RICO claims. Majority op. at 1359.
66 73
The Supreme Court initially set out the concept underlying pendent jurisdiction in
1824 in Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 6 L. Ed.
204 (1824). There, the Court stated that
67
 In reviewing the entry of the preliminary injunction, we should consider the nature The majority of our three-judge panel concluded that the act of state doctrine
of the asserted pendent jurisdiction and address the two jurisdictional issues that bars consideration of the plaintiffs' claims. I agree with the majority of this en
Gibbs requires courts to address when dealing with pendent claims. banc court that such a holding is not appropriate on this record. I do not agree
with the majority, however, that this injunction can be affirmed without any regard
74 to the act of state doctrine.
78
The first question, therefore, is whether the RICO claims and all of the pendent The panel majority's use of the act of state doctrine as a threshold bar in the
claims arise from a "common nucleus of operative fact." They do not. The RICO circumstances of this case is not consistent with the development of that doctrine
claims of necessity have to do with the defendants' activities that violated the under Supreme Court authority. See, e.g., Alfred Dunhill of London, Inc. v.
criminal laws of the United States. The pendent claims are not limited to those Cuba, 425 U.S. 682, 96 S. Ct. 1854, 48 L. Ed. 2d 301(1976); Banco Nacional de
activities and reach property that has not been shown to have any connection Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923, 11 L. Ed. 2d 804 (1964). We
with the United States itself or violations of our law. have expressly stated that the act of state doctrine is not jurisdictional. See
International Association of Machinists and Aerospace Workers v. OPEC, 649
75 F.2d 1354, 1359 (9th Cir.1981), cert. denied, 454 U.S. 1163, 102 S. Ct. 1036, 71
Upholding pendent jurisdiction in such circumstances is thus contrary to the L. Ed. 2d 319 (1982); Timberlane Lumber Co. v. Bank of America, 549 F.2d 597,
teaching of decisions following Gibbs that have focused on the nexus between 602 (9th Cir.1976), cert. denied, 472 U.S. 1032, 105 S. Ct. 3514, 87 L. Ed. 2d
events underlying the federal cause of action and those underlying pendent state 643 (1985). Rather, the doctrine involves the judiciary's prudential decision to
causes of action. See, e.g., Finn v. Gunter, 722 F.2d 711, 713 (11th Cir.1984) refrain from adjudicating the legality of a foreign sovereign's public acts that were
(finding pendent jurisdiction); PAAC v. Rizzo, 502 F.2d 306, 312-13 (3d committed within its own territory. See OPEC, 649 F.2d at 1359; see also
Cir.1974), cert. denied, 419 U.S. 1108, 95 S. Ct. 780, 42 L. Ed. 2d 804 (1975) Sabbatino, 376 U.S. at 401, 84 S.Ct. at 926. The Supreme Court, in addressing
(no pendent jurisdiction); see also C. Wright, A. Miller & E. Cooper, 13B Federal the act of state doctrine, has stated:
Practice and Procedure Sec. 3567.1 (1984). Our circuit also evaluates pendent 79
claims under the nexus test. See, e.g., Klaus v. Hi-Shear Corp., 528 F.2d 225, Every sovereign state is bound to respect the independence of every other sovereign
231 (9th Cir.1975). The plaintiffs have provided us with no explanation of how state, and the courts of one country will not sit in judgment on the acts of the government
the pendent claims are related to the RICO claims. The only factual connection of another, done within its own territory. Redress of grievances by reason of such acts
between all the claims of wrongdoing in this case appears to be a common must be obtained through the means open to be availed of by sovereign powers as
plaintiff and common defendants. Under Gibbs and the constitutional restraints between themselves.
on the exercise of power by the federal judiciary in Article III, that is not sufficient.
76 80
Sabbatino, 376 U.S. at 416, 84 S.Ct. at 934 (quoting Underhill v. Hernandez, 168
U.S. 250, 252, 18 S. Ct. 83, 84, 42 L. Ed. 456 (1897)).
Moreover, even assuming there is a common nexus of fact reaching all the 81
Marcoses' assets, pendent jurisdiction would exist only as to the claims that
would ordinarily be tried in one judicial proceeding. Gibbs, 383 U.S. at 725, 86
S.Ct. at 1138. These are not such claims. The RICO claims allege violations of The act of state doctrine "expresses the strong sense of the Judicial Branch that
the United States' criminal laws through activities in this country. The pendent its engagement in the task of passing on the validity of foreign acts of state may
claims, on the other hand, encompass allegations of fraud and conversion hinder rather than further this country's pursuit of goals both for itself and for the
stemming from the Marcoses' actions in the Philippines spanning a twenty-year community of nations as a whole in the international sphere." Sabbatino, 376
period. Further, the bulk of the property claimed, according to the complaint, is U.S. at 423, 84 S.Ct. at 938. The Court further elaborated that the doctrine
located in Switzerland. The claims against the Marcoses are in fact already the involves separation of powers:
subject of multiple judicial proceedings. See, e.g., Republic of the Philippines v.
Marcos, litigation in the Southern District of New York, 86 Civ. 2294 (PNL), and 82
Republic of the Philippines v. Marcos, litigation in the District of Hawaii, No. CV- [The doctrine's] continuing vitality depends on its capacity to reflect the proper
86-0155 HMF. The plaintiff cites no case remotely similar in scope to this case. distribution of functions between the judicial and political branches of the Government
The claims here are not those ordinarily tried in one judicial proceeding. on matters bearing upon foreign affairs.... [S]ome aspects of international law touch
much more sharply on national nerves than do others; the less important the
ACT OF STATE DOCTRINE implications of an issue are for our foreign relations, the weaker the justification for
exclusivity in the political branches.... [W]e decide only that the Judicial Branch will not
77 examine the validity of a taking of property within its own territory by a foreign sovereign
government, extant and recognized by this country at the time of suit.
83 Restatement (Second) of Foreign Relations Law Sec. 41 (1965) (doctrine
involves refraining "from examining the validity of an act of a foreign state by
which that state has exercised its jurisdiction to give effect to its public interest").
Id. at 427-28, 84 S.Ct. at 940. 89
84
However, these considerations are less compelling in the situation before us, As the dissenting opinion of Judge Nelson quite rightly pointed out, the act of
where the foreign government has itself invoked our jurisdiction, and the state doctrine cannot bar the plaintiffs' action at this stage in the proceedings due
challenged actions involve a government no longer in power. In Sabbatino, the to the distinction between the official acts and the private conduct of a former
Supreme Court observed that, "[t]he balance of relevant considerations may also head of state. As Judge Nelson stated:
be shifted if the government which perpetrated the challenged act of state is no
longer in existence ... for the political interest of this country may, as a result, be 90
measurably altered." 376 U.S. at 428, 84 S.Ct. at 940. "Moreover, the act of state Marcos and his agents no doubt exercised broad power, especially after the imposition
doctrine reflects respect for foreign states, so that when a state comes into our of martial law in 1972. But the appropriate inquiry is not to invoke the talismanic label
courts and asks that our courts scrutinize its actions, the justification for "dictator." The district court should determine which of the challenged acts were official
application of the doctrine may well be significantly weaker." Republic of the and which were not. Only by doing so can the court determine the extent to which the
Philippines v. Marcos, 806 F.2d 344, 359 (2d Cir.1986). act of state doctrine may apply.
85
91

Further, the Supreme Court has noted that for doctrine to apply the acts in
question must have involved public acts of the sovereign. The Court stated that 818 F.2d at 1494-95.
in each of its act of state decisions, the facts were sufficient to demonstrate that 92
86
the conduct in question was the public act of those with authority to exercise sovereign
powers and was entitled to respect in our courts. [H]ere, no statute, decree, order, or At this point, no determinations have been made regarding the capacity in which
resolution of the Cuban Government itself was offered in evidence indicating that Cuba the Marcoses were acting when the alleged unlawful conduct occurred.
had repudiated its obligations in general or any class thereof or that it had as a sovereign Accordingly, the original panel majority erred in finding that, at this stage of the
matter determined to confiscate the amounts due three foreign importers. litigation, the act of state doctrine bars adjudication of the bulk of the Philippine
government's pendent claims.
87
93

Alfred Dunhill, 425 U.S. at 694-95, 96 S.Ct. at 1861.

The majority decision here, however, goes much further. It declares that the
88 injunction can be affirmed without regard to the act of state doctrine. In my view,
Accordingly, the courts have insisted that the act of state doctrine precludes we should instead instruct the district court to consider to what extent, if any, the
review of public acts of the sovereign. See, e.g., Marcos, 806 F.2d at 358 ("[t]hat doctrine applies in the circumstances of this case, and on the basis of the record
the acts must be public acts of the sovereign as been repeatedly affirmed") which has developed more fully during the pendency of this interlocutory appeal.
(emphasis in original); Filartiga v. Pena-Irala, 630 F.2d 876, 889 (2d Cir.1980) Until such consideration can be given, an injunction of this breadth is not
("we doubt whether action by a state official in violation of the Constitution and appropriate.
laws of the Republic of Paraguay, and wholly unratified by that nation's
government, could properly be characterized as an act of state"); Arango v. 94
Guzman Travel Advisors Corp., 621 F.2d 1371, 1380 (5th Cir.1980) ("[t]he act of
state doctrine only precludes judicial inquiry into the legality, validity, and
propriety of the acts and motivations of foreign sovereigns acting in their This en banc court requested the amicus views of the Department of State on
governmental roles within their own boundaries"); Jimenez v. Aristeguieta, 311 the act of state issues. Its brief concludes that the application of the act of state
F.2d 547, 557 (5th Cir.1962) ("judicial authorities cannot review the acts done by doctrine at this stage is speculative and the injunction premature. The majority's
a sovereign in his own territory to determine illegality"); Sharon v. Time, Inc., 599 reliance upon the position of the United States as support for its holding is wholly
F. Supp. 538, 544 (S.D.N.Y.1984) ("[t]he doctrine is limited to laws, decrees, misplaced. The government urges that an injunction should not have been
decisions, seizures, and other officially authorized 'public acts' "); see also
 entered on the basis of this record. The government amicus curiae brief states in I would vacate the injunction and remand the matter to the district court for further
appropriate context as follows: consideration of the appropriate scope of a preliminary injunction.
95 102
[T]he record before the district court, which did not include any detailed specification of
the factual basis for the bulk of the nonfederal claims, did not make it possible even to
analyze the extent to which those claims are properly before the court.... FLETCHER, Circuit Judge, concurring specially in Judge SCHROEDER's
concurring and dissenting opinion:
96
Even assuming jurisdiction, it is not clear at this stage that the district court should, as 103
a prudential matter, undertake to adjudicate the bulk of the nonfederal claims. The
court's capacity to do so fairly and expeditiously and without offending the sensibility of
other nations cannot be resolved on this record. Adjudication in this district court may I concur fully in the following portions of Judge Schroeder's opinion: its discussion
turn out to be barred by considerations of international comity and forum non of the basis for finding jurisdiction based on a well-pleaded RICO claim; its
conveniens. discussion of the basis for concluding that the act of state doctrine is not a
prudential bar at this stage of the proceedings in this case.
97
The act of state doctrine seems to us to have little or no bearing on this case at this 104
stage of its development. The doctrine provides, in general, that the validity of specific
acts of a foreign sovereign is not subject to challenge in our courts; the circumstances
of a particular case may, however, make that general principle inapplicable. On the I concur only in its conclusion that the injunction should be vacated and
present record, it is not clear that any act of state--an act of a sovereign within its remanded for further consideration in that I do not agree with its restrictive view
territorial jurisdiction on matters pertaining to its governmental sovereignty--is involved of pendent jurisdiction (by the same token, I cannot agree with the majority's
in this case. Nor is it clear that the case would require an adjudication of the validity of expansive approach). Also, I would stay the vacation of the injunction for a
such an act, without which the case could not fairly proceed. Under these reasonable period of time to allow the district court to reconsider the injunction
circumstances, the bearing, if any, of the act of state doctrine on this case should be and its scope in light of the current state of the record.
determined only after further development of the case on the merits.
98

Amicus brief at 11-12.

99

The United States' views are wholly in accord with those expressed in this dissent
and are in conflict with the majority.
CONCLUSION
100

This injunction is unprecedented in its breadth. To decide the merits of the

pendent claims, the district court would have to unravel all of the Marcoses'
financial transactions over a long period of time and over much of the globe. It
would take a corps of historians years to accomplish the task. We are not yet told
why a single district judge in California should undertake it.
101