(Slip Opinion) OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
REPUBLIC OF PHILIPPINES ET AL. v. PIMENTEL,
TEMPORARY ADMINISTRATOR OF ESTATE OF
PIMENTEL, DECEASED, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 06–1204. Argued March 17, 2008—Decided June 12, 2008
A class action by and for human rights victims (Pimentel class) of Fer-
dinand Marcos, while he was President of the Republic of the Philip-
pines (Republic), led to a nearly $2 billion judgment in a United
States District Court. The Pimentel class then sought to attach the
assets of Arelma, S. A. (Arelma), a company incorporated by Marcos,
held by a New York broker (Merrill Lynch). The Republic and a Phil-
ippine commission (Commission) established to recover property
wrongfully taken by Marcos are also attempting to recover this and
other Marcos property. The Philippine National Banc (PNB) holds
some of the disputed assets in escrow, awaiting the outcome of pend-
ing litigation in the Sandiganbayan, a Philippine court determining
whether Marcos’ property should be forfeited to the Republic. Facing
claims from various Marcos creditors, including the Pimentel class,
Merrill Lynch filed this interpleader action under 28 U. S. C. §1335,
naming, among the defendants, the Republic, the Commission,
Arelma, PNB (all petitioners here), and the Pimentel class (respon-
dents here). The Republic and the Commission asserted sovereign
immunity under the Foreign Sovereign Immunities Act of 1976, and
moved to dismiss pursuant to Federal Rule of Civil Procedure 19(b),
arguing that the action could not proceed without them. Arelma and
PNB also sought a Rule 19(b) dismissal. The District Court refused,
but the Ninth Circuit reversed, holding that the Republic and the
Commission are entitled to sovereign immunity and are required par-
ties under Rule 19(a), and it entered a stay pending the Sandiganba-
yan litigation’s outcome. Finding that that litigation could not de-
termine entitlement to Arelma’s assets, the District Court vacated
2 REPUBLIC OF PHILIPPINES v. PIMENTEL
Syllabus
the stay and ultimately awarded the assets to the Pimentel class.
The Ninth Circuit affirmed, holding that dismissal was not war-
ranted under Rule 19(b) because, though the Republic and the Com-
mission were required parties, their claim had so little likelihood of
success on the merits that the action could proceed without them.
The court found it unnecessary to consider whether prejudice to those
entities might be lessened by a judgment or interim decree in the in-
terpleader action, found the entities’ failure to obtain a judgment in
the Sandiganbayan an equitable consideration counseling against
dismissing the interpleader suit, and found that allowing the inter-
pleader case to proceed would serve the Pimentel class’ interests.
Held:
1. Because Arelma and PNB also seek review of the Ninth Circuit’s
decision, this Court need not rule on the question whether the Repub-
lic and the Commission, having been dismissed from the suit, had the
right to seek review of the decision that the suit could proceed in
their absence. As a general matter any party may move to dismiss
an action under Rule 19(b). Arelma and PNB have not lost standing
to have the judgment vacated in its entirety on procedural grounds
simply because they did not appeal, or petition for certiorari on, the
underlying merits ruling denying them the interpleaded assets.
Pp. 7–9.
2. Rule 19 requires dismissal of the interpleader action. Pp. 9–20.
(a) Under Rule 19(a), nonjoinder even of a required person does
not always result in dismissal. When joinder is not feasible, the
question whether an action should proceed turns on nonexclusive
considerations in Rule 19(b), which asks whether “in equity and good
conscience, the action should proceed among the existing parties or
should be dismissed.” The joinder issue can be complex, and the
case-specific determinations involve multiple factors, some “substan-
tive, some procedural, some compelling by themselves, and some sub-
ject to balancing against opposing interests,” Provident Tradesmens
Bank & Trust Co. v. Patterson, 390 U. S. 102, 119. Pp. 9–10.
(b) Here, Rule 19(a)’s application is not contested: The Republic
and the Commission are required entities. And this Court need not
decide the proper standard of review for Rule 19(b) decisions, because
the Ninth Circuit’s errors of law require reversal. Pp. 10–19.
(1) The first factor directs the court to consider, in determining
whether the action may proceed, the prejudice to absent entities and
present parties in the event judgment is rendered without joinder.
Rule 19(b)(1). The Ninth Circuit gave insufficient weight to the sov-
ereign status of the Republic and the Commission in considering
whether they would be prejudiced if the case proceeded. Giving full
effect to sovereign immunity promotes the comity and dignity inter-
Cite as: 553 U. S. ____ (2008) 3
Syllabus
ests that contributed to the development of the immunity doctrine.
See, e.g., Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480,
486. These interests are concrete here. The entities’ claims arise
from historically and politically significant events for the Republic
and its people, and the entities have a unique interest in resolving
matters related to Arelma’s assets. A foreign state has a comity in-
terest in using its courts for a dispute if it has a right to do so. Its
dignity is not enhanced if other nations bypass its courts without
right or good cause. A more specific affront could result if property
the Republic and the Commission claim is seized by a foreign court
decree. This Court has not considered the precise question pre-
sented, but authorities involving the intersection of joinder and the
United States’ governmental immunity, see, e.g., Mine Safety Appli-
ances Co. v. Forrestal, 326 U. S. 371, 373–375, instruct that where
sovereign immunity is asserted, and the sovereign’s claims are not
frivolous, dismissal must be ordered where there is a potential for in-
jury to the absent sovereign’s interests. The claims of the Republic
and the Commission were not frivolous, and the Ninth Circuit thus
erred in ruling on their merits. The privilege of sovereign immunity
from suit is much diminished if an important and consequential rul-
ing affecting the sovereign’s substantial interest is determined, or at
least assumed, by a federal court in its absence and over its objection.
The Pimentel class’ interest in recovering its damages is not dis-
counted, but important comity concerns are implicated by assertion of
foreign sovereign immunity. The error is not that the courts below
gave too much weight to the Pimentel class’ interests, but that they
did not accord proper weight to the compelling sovereign immunity
claim. Pp. 11–16.
(2) The second factor is the extent to which any prejudice could
be lessened or avoided by relief or measures alternative to dismissal,
Rule 19(b)(2), but no alternative remedies or forms of relief have been
proposed or appear to be available. As to the third factor—whether a
judgment rendered without the absent party would be adequate, Rule
19(b)(3)—“adequacy” refers not to satisfaction of the Pimentel class’
claims, but to the “public stake in settling disputes by wholes, when-
ever possible,” Provident Bank, supra, at 111. Going forward with
the action in the absence of the Republic and the Commission would
not further this public interest because they could not be bound by a
judgment to which they were not parties. As to the fourth factor—
whether the plaintiff would have an adequate remedy if the action
were dismissed for nonjoinder, Rule 19(b)(4)—the Ninth Circuit made
much of the tort victims’ lack of an alternative forum. But Merrill
Lynch, not the Pimentel class, is the plaintiff as the stakeholder in
the interpleader action. See 28 U. S. C. §1335(a). The Pimentel
4 REPUBLIC OF PHILIPPINES v. PIMENTEL
Syllabus
class’ interests are not irrelevant to Rule 19(b)’s equitable balance,
but the Rule’s other provisions are the relevant ones to consult. A
dismissal on the ground of nonjoinder will not provide Merrill Lynch
with a judgment determining entitlement to the assets so it could be
done with the matter, but it likely would give Merrill Lynch an effec-
tive defense against piecemeal litigation by various claimants and in-
consistent, conflicting judgments. Any prejudice to Merrill Lynch is
outweighed by prejudice to the absent entities invoking sovereign
immunity. In the usual course, the Ninth Circuit’s failure to give suf-
ficient weight to the likely prejudice to the Republic and the Commis-
sion would warrant reversal and remand for further determinations,
but here, that error plus this Court’s analysis under Rule 19(b)’s ad-
ditional provisions require the action’s dismissal. Pp. 17–20.
464 F. 3d 885, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, GINSBURG, BREYER, and ALITO, JJ., joined, in
which SOUTER, J., joined as to all but Parts IV–B and V, and in which
STEVENS, J., joined as to Part II. STEVENS, J., and SOUTER, J., filed opin-
ions concurring in part and dissenting in part.
Cite as: 553 U. S. ____ (2008) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–1204
_________________
REPUBLIC OF THE PHILIPPINES, ET AL., PETI-
TIONERS v. JERRY S. PIMENTEL, TEMPORARY
ADMINISTRATOR OF THE ESTATE OF MARIANO J.
PIMENTEL, DECEASED, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 12, 2008]
JUSTICE KENNEDY delivered the opinion of the Court.
This case turns on the interpretation and proper appli-
cation of Rule 19 of the Federal Rules of Civil Procedure
and requires us to address the Rule’s operation in the
context of foreign sovereign immunity.
This interpleader action was commenced to determine
the ownership of property allegedly stolen by Ferdinand
Marcos when he was the President of the Republic of the
Philippines. Two entities named in the suit invoked sov-
ereign immunity. They are the Republic of the Philippines
and the Philippine Presidential Commission on Good
Governance, referred to in turn as the Republic and the
Commission. They were dismissed, but the interpleader
action proceeded to judgment over their objection. To-
gether with two parties who remained in the suit, the
Republic and the Commission now insist it was error to
allow the litigation to proceed. Under Rule 19, they con-
tend, the action should have been dismissed once it be-
came clear they could not be joined as parties without
2 REPUBLIC OF PHILIPPINES v. PIMENTEL
Opinion of the Court
their consent.
The United States Court of Appeals for the Ninth Cir-
cuit, agreeing with the District Court, held the action
could proceed without the Republic and the Commission
as parties. Among the reasons the Court of Appeals gave
was that the absent, sovereign entities would not prevail
on their claims. We conclude the Court of Appeals gave
insufficient weight to the foreign sovereign status of the
Republic and the Commission, and that the court further
erred in reaching and discounting the merits of their
claims.
I
A
When the opinion of the Court of Appeals is consulted,
the reader will find its quotations from Rule 19 do not
accord with its text as set out here; for after the case was
in the Court of Appeals and before it came here, the text of
the Rule changed. The Rules Committee advised the
changes were stylistic only, see Advisory Committee’s
Notes on 2007 Amendment to Fed. Rule Civ. Proc. 19, 28
U. S. C. A., p. 168 (2008); and we agree. These are the
three relevant stylistic changes. First, the word “required”
replaced the word “necessary” in subparagraph (a). Sec-
ond, the 1966 Rule set out factors in longer clauses and
the 2007 Rule sets out the factors affecting joinder in
separate lettered headings. Third, the word “indispensa-
ble,” which had remained as a remnant of the pre-1966
Rule, is altogether deleted from the current text. Though
the word “indispensable” had a lesser place in the 1966
Rule, it still had the latent potential to mislead.
As the substance and operation of the Rule both pre-
and post-2007 are unchanged, we will refer to the present,
revised version. The pre-2007 version is printed in the
Appendix of this opinion. The current Rule states, in
relevant part, as follows:
Cite as: 553 U. S. ____ (2008) 3
Opinion of the Court
“Rule 19. Required Joinder of Parties.
“(a) Persons Required to Be Joined if Feasible.
“(1) Required Party. A person who is subject to
service of process and whose joinder will not deprive
the court of subject-matter jurisdiction must be joined
as a party if:
“(A) in that person’s absence, the court cannot accord
complete relief among existing parties; or
“(B) that person claims an interest relating to the
subject of the action and is so situated that disposing
of the action in the person’s absence may:
“(i) as a practical matter impair or impede the per-
son’s ability to protect the interest; or
“(ii) leave an existing party subject to a substantial
risk of incurring double, multiple, or otherwise incon-
sistent obligations because of the interest.
“(2) Joinder by Court Order. If a person has not
been joined as required, the court must order that the
person be made a party. A person who refuses to join
as a plaintiff may be made either a defendant or, in a
proper case, an involuntary plaintiff.
“(3) Venue. If a joined party objects to venue and the
joinder would make venue improper, the court must
dismiss that party.
“(b) When Joinder Is Not Feasible. If a person
who is required to be joined if feasible cannot be
joined, the court must determine whether, in equity
and good conscience, the action should proceed among
the existing parties or should be dismissed. The fac-
tors for the court to consider include:
“(1) the extent to which a judgment rendered in the
person’s absence might prejudice that person or the
existing parties;
“(2) the extent to which any prejudice could be less-
ened or avoided by:
4 REPUBLIC OF PHILIPPINES v. PIMENTEL
Opinion of the Court
“(A) protective provisions in the judgment;
“(B) shaping the relief; or
“(C) other measures;
“(3) whether a judgment rendered in the person’s ab-
sence would be adequate; and
“(4) whether the plaintiff would have an adequate
remedy if the action were dismissed for nonjoinder.”
Fed. Rules Civ. Proc. 19(a)–(b).
See also Rule 19(c) (imposing pleading requirements);
Rule 19(d) (creating exception for class actions).
B
In 1972, Ferdinand Marcos, then President of the Re-
public, incorporated Arelma, S. A. (Arelma), under Pana-
manian law. Around the same time, Arelma opened a
brokerage account with Merrill Lynch, Pierce, Fenner &
Smith Inc. (Merrill Lynch) in New York, in which it depos-
ited $2 million. As of the year 2000, the account had
grown to approximately $35 million.
Alleged crimes and misfeasance by Marcos during his
presidency became the subject of worldwide attention and
protest. A class action by and on behalf of some 9,539 of
his human rights victims was filed against Marcos and his
estate, among others. The class action was tried in the
United States District Court for the District of Hawaii and
resulted in a nearly $2 billion judgment for the class. See
Hilao v. Estate of Marcos, 103 F. 3d 767 (CA9 1996). We
refer to that litigation as the Pimentel case and to its class
members as the Pimentel class. In a related action, the
Estate of Roger Roxas and Golden Budha [sic] Corporation
(the Roxas claimants) claim a right to execute against the
assets to satisfy their own judgment against Marcos’
widow, Imelda Marcos. See Roxas v. Marcos, 89 Haw. 91,
113–115, 969 P. 2d 1209, 1231–1233 (1998).
The Pimentel class claims a right to enforce its judg-
ment by attaching the Arelma assets held by Merrill
Cite as: 553 U. S. ____ (2008) 5
Opinion of the Court
Lynch. The Republic and the Commission claim a right to
the assets under a 1955 Philippine law providing that
property derived from the misuse of public office is for-
feited to the Republic from the moment of misappropria-
tion. See An Act Declaring Forfeiture in Favor of the
State Any Property Found To Have Been Unlawfully
Acquired by Any Public Officer or Employee and Providing
for the Proceedings Therefor, Rep. Act No. 1379, 51:9 O. G.
4457 (June 18, 1955).
After Marcos fled the Philippines in 1986, the Commis-
sion was created to recover any property he wrongfully
took. Almost immediately the Commission asked the
Swiss Government for assistance in recovering assets—
including shares in Arelma—that Marcos had moved to
Switzerland. In compliance the Swiss Government froze
certain assets and, in 1990, that freeze was upheld by the
Swiss Federal Supreme Court. In 1991, the Commission
asked the Sandiganbayan, a Philippine court of special
jurisdiction over corruption cases, to declare forfeited to
the Republic any property Marcos had obtained through
misuse of his office. That litigation is still pending in the
Sandiganbayan.
The Swiss assets were transferred to an escrow account
set up by the Commission at the Philippine National Banc
(PNB), pending the Sandiganbayan’s decision as to their
rightful owner. The Republic and the Commission re-
quested that Merrill Lynch follow the same course and
transfer the Arelma assets to an escrow account at PNB.
Merrill Lynch did not do so. Facing claims from various
Marcos creditors, including the Pimentel class, Merrill
Lynch instead filed an interpleader action under 28
U. S. C. §1335. The named defendants in the interpleader
action were, among others, the Republic and the Commis-
sion, Arelma, PNB, and the Pimentel class (the respon-
dents here).
The Pimentel case had been tried as a class action be-
6 REPUBLIC OF PHILIPPINES v. PIMENTEL
Opinion of the Court
fore Judge Manuel Real of the United States District
Court for the Central District of California, who was sit-
ting by designation in the District of Hawaii after the
Judicial Panel on Multidistrict Litigation consolidated the
various human rights complaints against Marcos in that
court. See Hilao, supra, at 771. Judge Real directed
Merrill Lynch to file the interpleader action in the District
of Hawaii, and he presided over the matter.
After being named as defendants in the interpleader
action, the Republic and the Commission asserted sover-
eign immunity under the Foreign Sovereign Immunities
Act of 1976 (FSIA), 28 U. S. C. §1604. They moved to
dismiss pursuant to Rule 19(b), based on the premise that
the action could not proceed without them. Arelma and
PNB also moved to dismiss pursuant to Rule 19(b). With-
out addressing whether they were entitled to sovereign
immunity, Judge Real initially rejected the request by the
Republic and the Commission to dismiss the interpleader
action. They appealed, and the Court of Appeals reversed.
It held the Republic and the Commission are entitled to
sovereign immunity and that under Rule 19(a) they are
required parties (or “necessary” parties under the old
terminology). See In re Republic of the Philippines, 309
F. 3d 1143, 1149–1152 (CA9 2002). The Court of Appeals
entered a stay pending the outcome of the litigation in the
Sandiganbayan over the Marcos assets. See id., at 1152–
1153.
After concluding that the pending litigation in the
Sandiganbayan could not determine entitlement to the
Arelma assets, Judge Real vacated the stay, allowed the
action to proceed, and awarded the assets to the Pimentel
class. A week later, in the case initiated before the Sandi-
ganbayan in 1991, the Republic asked that court to de-
clare the Arelma assets forfeited, arguing the matter was
ripe for decision. The Sandiganbayan has not yet ruled.
In the interpleader case the Republic, the Commission,
Cite as: 553 U. S. ____ (2008) 7
Opinion of the Court
Arelma, and PNB appealed the District Court’s judgment
in favor of the Pimentel claimants. This time the Court of
Appeals affirmed. See Merrill Lynch, Pierce, Fenner &
Smith v. ENC Corp., 464 F. 3d 885 (CA9 2006). Dismissal
of the interpleader suit, it held, was not warranted under
Rule 19(b) because, though the Republic and the Commis-
sion were required (“necessary”) parties under Rule 19(a),
their claim had so little likelihood of success on the merits
that the interpleader action could proceed without them.
One of the reasons the court gave was that any action
commenced by the Republic and the Commission to re-
cover the assets would be barred by New York’s 6-year
statute of limitations for claims involving the misappro-
priation of public property. See N. Y. Civ. Prac. Law Ann.
§213 (West Supp. 2008). The court thus found it unneces-
sary to consider whether any prejudice to the Republic and
the Commission might be lessened by some form of judg-
ment or interim decree in the interpleader action. The
court also considered the failure of the Republic and the
Commission to obtain a judgment in the Sandiganbayan—
despite the Arelma share certificates having been located
and held in escrow at the PNB since 1997–1998—to be an
equitable consideration counseling against dismissal of the
interpleader suit. The court further found it relevant that
allowing the interpleader case to proceed would serve the
interests of the Pimentel class, which, at this point, likely
has no other available forum in which to enforce its judg-
ment against property belonging to Marcos.
This Court granted certiorari. See 552 U. S. ___ (2007).
II
We begin with the question we asked the parties to
address when we granted certiorari: Whether the Republic
and the Commission, having been dismissed from the
interpleader action based on their successful assertion of
sovereign immunity, had the right to appeal the District
8 REPUBLIC OF PHILIPPINES v. PIMENTEL
Opinion of the Court
Court’s determination under Rule 19 that the action could
proceed in their absence; and whether they have the right
to seek this Court’s review of the Court of Appeals’ judg-
ment affirming the District Court. See ibid.
Respondents contend that the Republic and the Com-
mission were not proper parties in the Court of Appeals
when it reviewed the District Court’s judgment allowing
the action to proceed without them; and, respondents
continue, the Republic and the Commission are not proper
parties in the instant proceeding before us. See Brief for
Respondent Pimentel 21.
Without implying that respondents are correct in saying
the Republic and the Commission could neither appeal nor
become parties here, we conclude we need not rule on this
point. Other parties before us, Arelma and PNB, also seek
review of the Court of Appeals’ decision affirming the
District Court. They, too, moved to dismiss the action
under Rule 19(b), appealed from the denial of their mo-
tion, and are petitioners before this Court. As a general
matter any party may move to dismiss an action under
Rule 19(b). A court with proper jurisdiction may also
consider sua sponte the absence of a required person and
dismiss for failure to join. See, e.g., Minnesota v. Northern
Securities Co., 184 U. S. 199, 235 (1902); see also Provi-
dent Tradesmens Bank & Trust Co. v. Patterson, 390 U. S.
102, 111 (1968).
Respondents argue, however, that Arelma and PNB
have no standing to raise before this Court the question
whether the action may proceed in the absence of the
Republic and the Commission. Arelma and PNB lost on
the merits of their underlying claims to the interpleaded
assets in both the District Court and the Court of Appeals.
By failing to petition for certiorari on that merits ruling,
respondents contend, Arelma and PNB abandoned any
entitlement to the interpleaded assets and therefore lack a
concrete stake in the outcome of further proceedings. We
Cite as: 553 U. S. ____ (2008) 9
Opinion of the Court
disagree. Dismissal of the action under Rule 19(b) would
benefit Arelma and PNB by vacating the judgment deny-
ing them the interpleaded assets. A party that seeks to
have a judgment vacated in its entirety on procedural
grounds does not lose standing simply because the party
does not petition for certiorari on the substance of the
order.
III
We turn to the question whether the interpleader action
could proceed in the District Court without the Republic
and the Commission as parties.
Subdivision (a) of Rule 19 states the principles that
determine when persons or entities must be joined in a
suit. The Rule instructs that nonjoinder even of a re-
quired person does not always result in dismissal. Subdi-
vision (a) opens by noting that it addresses joinder “if
Feasible.” Where joinder is not feasible, the question
whether the action should proceed turns on the factors
outlined in subdivision (b). The considerations set forth in
subdivision (b) are nonexclusive, as made clear by the
introductory statement that “[t]he factors for the court to
consider include.” Fed. Rule Civ. Proc. 19(b). The general
direction is whether “in equity and good conscience, the
action should proceed among the existing parties or should
be dismissed.” Ibid. The design of the Rule, then, indi-
cates that the determination whether to proceed will turn
upon factors that are case specific, which is consistent
with a Rule based on equitable considerations. This is
also consistent with the fact that the determination of who
may, or must, be parties to a suit has consequences for the
persons and entities affected by the judgment; for the
judicial system and its interest in the integrity of its proc-
esses and the respect accorded to its decrees; and for
society and its concern for the fair and prompt resolution
of disputes. See, e.g., Illinois Brick Co. v. Illinois, 431
10 REPUBLIC OF PHILIPPINES v. PIMENTEL
Opinion of the Court
U. S. 720, 737–739 (1977). For these reasons, the issue of
joinder can be complex, and determinations are case spe-
cific. See, e.g., Provident Bank, supra, at 118–119.
Under the earlier Rules the term “indispensable party”
might have implied a certain rigidity that would be in
tension with this case-specific approach. The word “indis-
pensable” had an unforgiving connotation that did not fit
easily with a system that permits actions to proceed even
when some persons who otherwise should be parties to the
action cannot be joined. As the Court noted in Provident
Bank, the use of “indispensable” in Rule 19 created the
“verbal anomaly” of an “indispensable person who turns
out to be dispensable after all.” 390 U. S., at 117, n. 12.
Though the text has changed, the new Rule 19 has the
same design and, to some extent, the same tension. Re-
quired persons may turn out not to be required for the
action to proceed after all.
In all events it is clear that multiple factors must bear
on the decision whether to proceed without a required
person. This decision “must be based on factors varying
with the different cases, some such factors being substan-
tive, some procedural, some compelling by themselves, and
some subject to balancing against opposing interests.” Id.,
at 119.
IV
We turn to Rule 19 as it relates to this case. The appli-
cation of subdivision (a) of Rule 19 is not contested. The
Republic and the Commission are required entities be-
cause “[w]ithout [them] as parties in this interpleader
action, their interests in the subject matter are not pro-
tected.” In re Republic of Philippines, 309 F. 3d, at 1152;
see Fed. Rule Civ. Proc. 19(a)(1)(B)(i). All parties appear
to concede this. The disagreement instead centers around
the application of subdivision (b), which addresses
whether the action may proceed without the Republic and
Cite as: 553 U. S. ____ (2008) 11
Opinion of the Court
the Commission, given that the Rule requires them to be
parties.
We have not addressed the standard of review for Rule
19(b) decisions. The case-specific inquiry that must be
followed in applying the standards set forth in subdivision
(b), including the direction to consider whether “in equity
and good conscience” the case should proceed, implies
some degree of deference to the district court. In this case,
however, we find implicit in the District Court’s rulings,
and explicit in the opinion of the Court of Appeals, errors
of law that require reversal. Whatever the appropriate
standard of review, a point we need not decide, the judg-
ment could not stand. Cf. Koon v. United States, 518 U. S.
81, 99–100 (1996) (a court “by definition abuses its discre-
tion when it makes an error of law”).
The Court of Appeals erred in not giving the necessary
weight to the absent entities’ assertion of sovereign im-
munity. The court in effect decided the merits of the
Republic and the Commission’s claims to the Arelma
assets. Once it was recognized that those claims were not
frivolous, it was error for the Court of Appeals to address
them on their merits when the required entities had been
granted sovereign immunity. The court’s consideration of
the merits was itself an infringement on foreign sovereign
immunity; and, in any event, its analysis was flawed. We
discuss these errors first in the context of how they af-
fected the Court of Appeals’ analysis under the first factor
of Rule 19(b). We then explain that the outcome suggested
by the first factor is confirmed by our analysis under the
other provisions of Rule 19(b). The action may not
proceed.
A
As to the first Rule 19(b) factor—the extent to which a
judgment rendered in the person’s absence might preju-
dice that person or the existing parties, Fed. Rule Civ.
12 REPUBLIC OF PHILIPPINES v. PIMENTEL
Opinion of the Court
Proc. 19(b)(1)—the judgment of the Court of Appeals is
incorrect.
In considering whether the Republic and the Commis-
sion would be prejudiced if the action were to proceed in
their absence, the Court of Appeals gave insufficient
weight to their sovereign status. The doctrine of foreign
sovereign immunity has been recognized since early in the
history of our Nation. It is premised upon the “perfect
equality and absolute independence of sovereigns, and
th[e] common interest impelling them to mutual inter-
course.” Schooner Exchange v. McFaddon, 7 Cranch 116,
137 (1812). The Court has observed that the doctrine is
designed to “give foreign states and their instrumentali-
ties some protection from the inconvenience of suit,” Dole
Food Co. v. Patrickson, 538 U. S. 468, 479 (2003).
The privilege is codified by federal statute. FSIA, 28
U. S. C. §§1330, 1602–1611, provides that “a foreign state
shall be immune from the jurisdiction of the courts of the
United States and of the States except as provided in
sections 1605 to 1607,” absent existing international
agreements to the contrary. §1604; see Verlinden B. V. v.
Central Bank of Nigeria, 461 U. S. 480, 486–489 (1983)
(explaining the history of the doctrine’s codification).
Exceptions to the general principle of foreign sovereign
immunity are contained in §§1605–1607 of the statute.
They are inapplicable here, or at least the parties do not
invoke them. Immunity in this case, then, is uncontested;
and pursuant to the Court of Appeals’ earlier ruling on the
issue, the District Court dismissed the Republic and the
Commission from the action on this ground.
The District Court and the Court of Appeals failed to
give full effect to sovereign immunity when they held the
action could proceed without the Republic and the Com-
mission. Giving full effect to sovereign immunity pro-
motes the comity interests that have contributed to the
development of the immunity doctrine. See, e.g., id., at
Cite as: 553 U. S. ____ (2008) 13
Opinion of the Court
486 (“[F]oreign sovereign immunity is a matter of grace
and comity”); National City Bank of N. Y. v. Republic of
China, 348 U. S. 356, 362, and n. 7 (1955) (foreign sover-
eign immunity derives from “standards of public morality,
fair dealing, reciprocal self-interest, and respect for the
‘power and dignity’ of the foreign sovereign” (quoting
Schooner Exchange, supra, at 136–137, 143–144)).
Comity and dignity interests take concrete form in this
case. The claims of the Republic and the Commission
arise from events of historical and political significance for
the Republic and its people. The Republic and the Com-
mission have a unique interest in resolving the ownership
of or claims to the Arelma assets and in determining if,
and how, the assets should be used to compensate those
persons who suffered grievous injury under Marcos.
There is a comity interest in allowing a foreign state to use
its own courts for a dispute if it has a right to do so. The
dignity of a foreign state is not enhanced if other nations
bypass its courts without right or good cause. Then, too,
there is the more specific affront that could result to the
Republic and the Commission if property they claim is
seized by the decree of a foreign court. Cf. Republic of
Mexico v. Hoffman, 324 U. S. 30, 35–36 (1945) (pre-FSIA,
common-law doctrine dictated that courts defer to execu-
tive determination of immunity because “[t]he judicial
seizure” of the property of a friendly state may be re-
garded as “an affront to its dignity and may . . . affect our
relations with it”).
Though this Court has not considered a case posing the
precise question presented here, there are some authori-
ties involving the intersection of joinder and the govern-
mental immunity of the United States. See, e.g., Mine
Safety Appliances Co. v. Forrestal, 326 U. S. 371, 373–375
(1945) (dismissing an action where the Under Secretary of
the Navy was sued in his official capacity, because the
Government was a required entity that could not be joined
14 REPUBLIC OF PHILIPPINES v. PIMENTEL
Opinion of the Court
when it withheld consent to be sued); Minnesota v. United
States, 305 U. S. 382, 386–388 (1939) (dismissing the
action for nonjoinder of a required entity where the United
States was the owner of the land in question but had not
consented to suit). The analysis of the joinder issue in
those cases was somewhat perfunctory, but the holdings
were clear: A case may not proceed when a required-entity
sovereign is not amenable to suit. These cases instruct us
that where sovereign immunity is asserted, and the claims
of the sovereign are not frivolous, dismissal of the action
must be ordered where there is a potential for injury to
the interests of the absent sovereign.
The Court of Appeals accordingly erred in undertaking
to rule on the merits of the Republic and the Commission’s
claims. There may be cases where the person who is not
joined asserts a claim that is frivolous. In that instance a
court may have leeway under both Rule 19(a)(1), defining
required parties, and Rule 19(b), addressing when a suit
may go forward nonetheless, to disregard the frivolous
claim. Here, the claims of the absent entities are not
frivolous; and the Court of Appeals should not have
proceeded on the premise that those claims would be
determined against the sovereign entities that asserted
immunity.
The Court of Appeals determined that the claims of the
Republic and the Commission as to the assets would not
succeed because a suit would be time barred in New York.
This is not necessarily so. If the Sandiganbayan rules that
the Republic owns the assets or stock of Arelma because
Marcos did not own them and the property was forfeited to
the Republic under Philippine law, then New York misap-
propriation rules might not be the applicable law. For
instance, the Republic and the Commission, standing in
for Arelma based upon the Sandiganbayan’s judgment,
might not pursue a misappropriation of public property
suit, as the Court of Appeals assumed they would. They
Cite as: 553 U. S. ____ (2008) 15
Opinion of the Court
might instead, or in the alternative, file suit for breach of
contract against Merrill Lynch. They would argue the
statute of limitations would start to run if and when
Merrill Lynch refused to hand over the assets. See
N. Y. Civ. Prac. Law Ann. §213 (West Supp. 2008); Ely-
Cruikshank Co. v. Bank of Montreal, 81 N. Y. 2d 399, 402,
615 N. E. 2d 985, 986 (1993) (“In New York, a breach of
contract cause of action accrues at the time of the breach”).
Or the Republic and the Commission might bring an
action either in state or federal court to enforce the Sandi-
ganbayan’s judgment. See 1 Restatement (Third) of For-
eign Relations Law of the United States §482, Comment a
(1986) (jurisdiction of foreign court rendering judgment is
presumed); id., at Comment d (providing exceptions not
relevant here); see also 28 U. S. C. §2467(c) (providing for
enforcement of foreign forfeiture judgments in certain
circumstances). Merrill Lynch makes arguments why
these actions would not succeed, see Brief for Merrill
Lynch as Amicus Curiae 26–27, to which the Republic, the
Commission, and the United States respond, see Reply
Brief for Petitioners 14–18; Brief for United States as
Amicus Curiae 24–28. We need not seek to predict
the outcomes. It suffices that the claims would not be
frivolous.
As these comments indicate, Rule 19 cannot be applied
in a vacuum, and it may require some preliminary as-
sessment of the merits of certain claims. For example, the
Rule directs a court, in determining who is a required
person, to consider whether complete relief can be afforded
in their absence. See Fed. Rule Civ. Proc. 19(a)(1)(A).
Likewise, in the Rule 19(b) inquiry, a court must examine,
to some extent, the claims presented and the interests
likely to be asserted both by the joined parties and the
absent entities or persons. Here, however, it was im-
proper to issue a definitive holding regarding a nonfrivo-
lous, substantive claim made by an absent, required entity
16 REPUBLIC OF PHILIPPINES v. PIMENTEL
Opinion of the Court
that was entitled by its sovereign status to immunity from
suit. That privilege is much diminished if an important
and consequential ruling affecting the sovereign’s
substantial interest is determined, or at least assumed, by
a federal court in the sovereign’s absence and over its
objection.
As explained above, the decision to proceed in the ab-
sence of the Republic and the Commission ignored the
substantial prejudice those entities likely would incur.
This most directly implicates Rule 19(b)’s first factor,
which directs consideration of prejudice both to absent
persons and those who are parties. We have discussed the
absent entities. As to existing parties, we do not discount
the Pimentel class’ interest in recovering damages it was
awarded pursuant to a judgment. Furthermore, combat-
ing public corruption is a significant international policy.
The policy is manifested in treaties providing for interna-
tional cooperation in recovering forfeited assets. See, e.g.,
United Nations Convention Against Corruption, G. A.
Res. 5814, chs. IV and V, U. N. Doc. A/RES/58/4, pp. 22,
32 (Dec. 11, 2003) (reprinted in 43 I. L. M. 37 (2004));
Treaty on Mutual Legal Assistance in Criminal Matters
Art. 16, Nov. 13, 1994, S. Treaty Doc. No. 104–18 (1995).
This policy does support the interest of the Pimentel class
in recovering damages awarded to it. But it also under-
scores the important comity concerns implicated by the
Republic and the Commission in asserting foreign sover-
eign immunity. The error is not that the District Court
and the Court of Appeals gave too much weight to the
interest of the Pimentel class, but that it did not ac-
cord proper weight to the compelling claim of sovereign
immunity.
Based on these considerations we conclude the District
Court and the Court of Appeals gave insufficient weight to
the likely prejudice to the Republic and the Commission
should the interpleader proceed in their absence.
Cite as: 553 U. S. ____ (2008) 17
Opinion of the Court
B
As to the second Rule 19(b) factor—the extent to which
any prejudice could be lessened or avoided by relief or
measures alternative to dismissal, Fed. Rule Civ. Proc.
19(b)(2)—there is no substantial argument to allow the
action to proceed. No alternative remedies or forms of
relief have been proposed to us or appear to be available.
See 7 C. Wright, A. Miller, & M. Kane, Federal Practice
and Procedure §1608, pp. 106–110 (3d ed. 2001) (collecting
cases using alternative forms of relief, including the grant-
ing of money damages rather than specific performance,
the use of declaratory judgment, and the direction that
payment be withheld pending suits against the absent
party). If the Marcos estate did not own the assets, or if
the Republic owns them now, the claim of the Pimentel
class likely fails; and in all events, if there are equally
valid but competing claims, that too would require adjudi-
cation in a case where the Republic and the Commission
are parties. See State Farm Fire & Casualty Co. v.
Tashire, 386 U. S. 523, 534, and n. 16 (1967); Russell v.
Clark’s Executors, 7 Cranch 69, 98–99 (1812) (Marshall,
C. J.); Wichita & Affiliated Tribes of Okla. v. Hodel, 788
F. 2d 765, 774 (CADC 1986) (“Conflicting claims by benefi-
ciaries to a common trust present a textbook example of a
case where one party may be severely prejudiced by a
decision in his absence” (citing Williams v. Bankhead, 19
Wall. 563, 570–571 (1874))).
C
As to the third Rule 19(b) factor—whether a judgment
rendered without the absent party would be adequate,
Fed. Rule Civ. Proc. 19(b)(3)—the Court of Appeals under-
stood “adequacy” to refer to satisfaction of the Pimentel
class’ claims. But adequacy refers to the “public stake in
settling disputes by wholes, whenever possible.” Provident
Bank, 390 U. S., at 111. This “social interest in the effi-
18 REPUBLIC OF PHILIPPINES v. PIMENTEL
Opinion of the Court
cient administration of justice and the avoidance of multi-
ple litigation” is an interest that has “traditionally been
thought to support compulsory joinder of absent and po-
tentially adverse claimants.” Illinois Brick Co., 431 U. S.,
at 737–738. Going forward with the action without the
Republic and the Commission would not further the public
interest in settling the dispute as a whole because the
Republic and the Commission would not be bound by the
judgment in an action where they were not parties.
D
As to the fourth Rule 19(b) factor—whether the plaintiff
would have an adequate remedy if the action were dis-
missed for nonjoinder, Fed. Rule Civ. Proc. 19(b)(4)—the
Court of Appeals made much of what it considered the tort
victims’ lack of an alternative forum should this action be
dismissed. This seems to assume the plaintiff in this
interpleader action was the Pimentel class. It is Merrill
Lynch, however, that has the statutory status of plaintiff
as the stakeholder in the interpleader action.
It is true that, in an interpleader action, the stakeholder
is often neutral as to the outcome, while other parties
press claims in the manner of a plaintiff. That is insuffi-
cient, though, to overcome the statement in the inter-
pleader statute that the stakeholder is the plaintiff. See
28 U. S. C. §1335(a) (conditioning jurisdiction in part upon
whether “the plaintiff has deposited such money or prop-
erty” at issue with the district court or has “given bond
payable to the clerk of the court in such amount and with
such surety as the court or judge may deem proper”). We
do not ignore that, in context, the Pimentel class (and
indeed all interpleader claimants) are to some extent
comparable to the plaintiffs in noninterpleader cases.
Their interests are not irrelevant to the Rule 19(b) equita-
ble balance; but the other provisions of the Rule are the
relevant ones to consult.
Cite as: 553 U. S. ____ (2008) 19
Opinion of the Court
Merrill Lynch, as the stakeholder, makes the point that
if the action is dismissed it loses the benefit of a judgment
allowing it to disburse the assets and be done with the
matter. Dismissal of the action, it urges, leaves it without
an adequate remedy, for it “could potentially be forced . . .
to defend lawsuits by the various claimants in different
jurisdictions, possibly leading to inconsistent judgments.”
Brief for Merrill Lynch as Amicus Curiae 14. A dismissal
of the action on the ground of nonjoinder, however, will
protect Merrill Lynch in some respects. That disposition
will not provide Merrill Lynch with a judgment determin-
ing the party entitled to the assets, but it likely would
provide Merrill Lynch with an effective defense against
piecemeal litigation and inconsistent, conflicting judg-
ments. As matters presently stand, in any later suit
against it Merrill Lynch may seek to join the Republic and
the Commission and have the action dismissed under Rule
19(b) should they again assert sovereign immunity. Dis-
missal for nonjoinder to some extent will serve the pur-
pose of interpleader, which is to prevent a stakeholder
from having to pay two or more parties for one claim.
Any prejudice to Merrill Lynch in this regard is out-
weighed by prejudice to the absent entities invoking sov-
ereign immunity. Dismissal under Rule 19(b) will mean,
in some instances, that plaintiffs will be left without a
forum for definitive resolution of their claims. But that
result is contemplated under the doctrine of foreign sover-
eign immunity. See, e.g., Verlinden, 461 U. S., at 497 (“[I]f
a court determines that none of the exceptions to sover-
eign immunity applies, the plaintiff will be barred from
raising his claim in any court in the United States”).
V
The Court of Appeals’ failure to give sufficient weight to
the likely prejudice to the Republic and the Commission
should the interpleader proceed in their absence would, in
20 REPUBLIC OF PHILIPPINES v. PIMENTEL
Opinion of the Court
the usual course, warrant reversal and remand for further
proceedings. In this case, however, that error and our
further analysis under the additional provisions of Rule
19(b) lead us to conclude the action must be dismissed.
This leaves the Pimentel class, which has waited for years
now to be compensated for grievous wrongs, with no im-
mediate way to recover on its judgment against Marcos.
And it leaves Merrill Lynch, the stakeholder, without a
judgment.
The balance of equities may change in due course. One
relevant change may occur if it appears that the Sandi-
ganbayan cannot or will not issue its ruling within a
reasonable period of time. Other changes could result
when and if there is a ruling. If the Sandiganbayan rules
that the Republic and the Commission have no right to the
assets, their claims in some later interpleader suit would
be less substantial than they are now. If the ruling is that
the Republic and the Commission own the assets, then
they may seek to enforce a judgment in our courts; or
consent to become parties in an interpleader suit, where
their claims could be considered; or file in some other
forum if they can obtain jurisdiction over the relevant
persons. We do note that if Merrill Lynch, or other par-
ties, elect to commence further litigation in light of
changed circumstances, it would not be necessary to file
the new action in the District Court where this action
arose, provided venue and jurisdictional requirements are
satisfied elsewhere. The present action, however, may not
proceed.
* * *
The judgment of the Court of Appeals for the Ninth
Circuit is reversed, and the case is remanded with instruc-
tions to order the District Court to dismiss the inter-
pleader action.
It is so ordered.
Cite as: 553 U. S. ____ (2008) 21
Opinion of the Court
Appendix to opinion of the Court
APPENDIX
The Court of Appeals issued its decision before the 2007
Amendments to Rule 19(b) became effective. See Merrill
Lynch, Pierce, Fenner & Smith v. ENC Corp., 464 F. 3d
885, 891 (CA9 2006). The text of the Rule before those
changes were adopted is as follows:
“Rule 19. Joinder of Persons Needed for Just
Adjudication
“(a) Persons to be Joined if Feasible. A person
who is subject to service of process and whose joinder
will not deprive the court of jurisdiction over the sub-
ject matter of the action shall be joined as a party in
the action if (1) in the person’s absence complete relief
cannot be accorded among those already parties, or (2)
the person claims an interest relating to the subject of
the action and is so situated that the disposition of the
action in the person’s absence may (i) as a practical
matter impair or impede the person’s ability to protect
that interest or (ii) leave any of the persons already
parties subject to a substantial risk of incurring dou-
ble, multiple, or otherwise inconsistent obligations by
reason of the claimed interest. If the person has not
been so joined, the court shall order that the person be
made a party. If the person should join as a plaintiff
but refuses to do so, the person may be made a defen-
dant, or, in a proper case, an involuntary plaintiff. If
the joined party objects to venue and joinder of that
party would render the venue of the action improper,
that party shall be dismissed from the action.
“(b) Determination by Court Whenever Join-
der not Feasible. If a person as described in subdi-
vision (a)(1)–(2) hereof cannot be made a party, the
court shall determine whether in equity and good con-
science the action should proceed among the parties
22 REPUBLIC OF PHILIPPINES v. PIMENTEL
Opinion of the Court
Appendix to opinion of the Court
before it, or should be dismissed, the absent person
being thus regarded as indispensable. The factors to
be considered by the court include: first, to what ex-
tent a judgment rendered in the person’s absence
might be prejudicial to the person or those already
parties; second, the extent to which, by protective pro-
visions in the judgment, by the shaping of relief, or
other measures, the prejudice can be lessened or
avoided; third, whether a judgment rendered in the
person’s absence will be adequate; fourth, whether the
plaintiff will have an adequate remedy if the action is
dismissed for nonjoinder.
“(c) Pleading Reasons for Nonjoinder. A plead-
ing asserting a claim for relief shall state the names,
if known to the pleader, of any persons as prescribed
in subdivision (a)(1)–(2) hereof who are not joined, and
the reasons why they are not joined.
“(d) Exception of Class Actions. This rule is
subject to the provisions of Rule 23.”
Cite as: 553 U. S. ____ (2008) 1
Opinion of STEVENS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–1204
_________________
REPUBLIC OF THE PHILIPPINES, ET AL., PETI
TIONERS v. JERRY S. PIMENTEL, TEMPORARY
ADMINISTRATOR OF THE ESTATE OF MARIANO J.
PIMENTEL, DECEASED, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 12, 2008]
JUSTICE STEVENS, concurring in part and dissenting in
part.
While I join Part II of the Court’s opinion holding that
we have jurisdiction to review the Court of Appeals’ deci
sion and agree that we should not affirm the Court of
Appeals’ judgment on the merits of its analysis under Rule
19 of the Federal Rules of Civil Procedure, I believe the
appropriate disposition of this case is to reverse and re
mand for further proceedings. The District Court and the
Ninth Circuit erred by concluding that the New York
statute of limitations provides a virtually insuperable
obstacle to petitioners’ recovery of the Arelma, S. A., as
sets, and I therefore agree that this Court should reverse.
I would not, however, give near-dispositive effect to the
Republic of the Philippines (Republic) and the Philippine
Presidential Commission on Good Governance’s (Commis
sion) status as sovereign entities, as the Court does in
ordering outright dismissal of the case.
In my judgment, the Court of Appeals should either
order the District Judge to stay further proceedings pend
ing a reasonably prompt decision of the Sandiganbayan or
order the case reassigned to a different District Judge to
conduct further proceedings. There is, of course, a risk of
2 REPUBLIC OF PHILIPPINES v. PIMENTEL
Opinion of STEVENS, J.
unfairness in conducting such proceedings without the
participation of petitioners. But it is a risk that they can
avoid by waiving their sovereign immunity, and the record
provides a basis for believing that they would do so if the
case proceeded before a different judge.
The Republic did not invoke its sovereign immunity
until after the District Court denied its motion seeking
dismissal or transfer for improper venue, dismissal on act
of state grounds, or recusal of the District Judge. App. 9;
id., at 2–3 (docket entries). In support of that motion they
advanced a factual basis for suspecting that the District
Judge’s impartiality could be questioned. Memorandum of
Law in Support of the Motions to Dismiss, Transfer or
Stay, and For Recusal 23–28 in Civ. No. CV00–595MLR
(D. Haw.). These facts demonstrate that the District
Judge would likely “have substantial difficulty in putting
out of his or her mind previously-expressed views.” Cali-
fornia v. Montrose Chemical Corp. of California, 104 F. 3d
1507, 1521 (CA9 1997) (providing the standard for when
the Ninth Circuit will reassign a case; internal quotation
marks omitted).
It appears, for example, that the District Judge sum
moned an attorney representing Merrill Lynch to a meet
ing in chambers in Los Angeles on September 11, 2000,
after learning that the Republic and the Commission
sought to obtain the Arelma funds from Merrill Lynch.
During these proceedings, the District Judge directed
Merrill Lynch to file an interpleader action before him in
the District of Hawaii and to deposit the Arelma funds
with the court, despite the attorney’s argument that New
York would likely be the more appropriate forum. See
ante, at 6; Tr. 6 (Sept. 11, 2000). Merrill Lynch filed the
interpleader on September 14, 2000, and the District
Judge sealed the file, making it difficult for other parties
to determine the status of the proceedings. See Affidavit
of Richard A. Martin in Support of the Motions to Dismiss,
Cite as: 553 U. S. ____ (2008) 3
Opinion of STEVENS, J.
Transfer, or Stay Submitted by the Republic of the Philip
pines and the Presidential Commission on Good Govern
ment in Civ. No. CV00–595MLR (D. Haw.), ¶6–7, 11.
These actions bespeak a level of personal involvement and
desire to control the Marcos proceedings that create at
least a colorable basis for the Republic and the Commis
sion’s concern about the District Judge’s impartiality.
Furthermore, following the Republic and the Commis
sion’s motion to dismiss the action on sovereign immunity
grounds, the District Judge decided that they were not
“real parties in interest.” See In re Republic of Philip-
pines, 309 F. 3d 1143, 1148 (CA9 2002). The Ninth Circuit
reversed and directed the District Judge to enter a stay,
id., at 1153; the District Court did so, but vacated the stay
within months. While the District Court’s decision to do
so was not without some basis, it presumably increased
concern about the possibility that the District Judge would
not fairly consider the Republic’s position on the merits.
Upon reassignment, the question whether to dismiss the
case, to stay the proceedings, or to require the Republic to
choose between asserting its sovereign immunity and
defending on the merits would be open. The District
Judge might wish to hold a hearing to determine whether
the Republic and the Commission have a substantial
argument that the Republic owned the disputed assets
when they were conveyed to Arelma in 1972. While the
Court assumes that the Republic’s interest in the Arelma
assets is “not frivolous,” ante, at 14, on this record, it is not
clear whether the Republic has a sufficient claim to those
assets to preclude their recovery by judgment creditors of
Marcos. The Republic’s claim to disputed assets may be
meritless for reasons unrelated to the potential statute of
limitations.
Further, in conducting the balancing inquiry mandated
by Rule 19, as interpreted by Justice Harlan’s opinion for
the Court in Provident Tradesmens Bank & Trust Co. v.
4 REPUBLIC OF PHILIPPINES v. PIMENTEL
Opinion of STEVENS, J.
Patterson, 390 U. S. 102 (1968), I would conclude that
several facts specific to this case suggest that the Republic
and the Commission’s sovereign interests should be given
less weight than in the ordinary case. First, in all events,
the Republic and the Commission must take affirmative
steps in United States courts (or possibly invoke the assis
tance of the Attorney General to do so, see Brief for United
States as Amicus Curiae 27) at some point in order to
recover the assets held in the United States. Thus, the
sovereign interest implicated here is not of the same mag
nitude as when a sovereign faces liability; the Republic’s
interest is in choosing the most convenient venue and time
for the suit to proceed.
Second, in the past two decades, the Republic has par
ticipated in other proceedings involving Marcos’ assets in
our courts without interposing any objection. Indeed, in
1987 it filed an amicus brief with the Ninth Circuit in the
underlying consolidated class action that led to the entry
of respondents’ judgment against Marcos; in that brief the
Republic urged the Ninth Circuit to reverse the District
Judge’s dismissal of two of the cases (later consolidated)
under the act of state doctrine and “to allow the Plaintiffs
in those two cases to present their evidence of gross hu
man rights violations against Ferdinand Marcos and to
pursue justice in U. S. District Court.” App. A to Brief for
Respondent Pimentel RA–1.
This was the Republic’s position notwithstanding the
fact that any recovery would come from a judgment
against Marcos’ assets—assets that the Republic and the
Commission now claim to have owned in full from the
moment Marcos acquired them. See, e.g., Brief for Repub
lic in Nos. 04–16401, 04–16503, and 04–16538 (CA9), p. 9
(“Under Philippine law, assets resulting from the misuse
of public office, bribery, corruption, and other such crimes
by public officials are forfeit to the Republic from the
moment such assets are generated”); Pet. for Republic in
Cite as: 553 U. S. ____ (2008) 5
Opinion of STEVENS, J.
No. 0141 (Sandiganbayon) (filed 1991) (seeking forfeiture
of a large number of Marcos assets). Even if the Republic
believed that Marcos might have some personal assets
that were not ill gotten, under the Republic’s theory that
amount could not possibly have approached the judgment
respondents received. Either the Republic was encourag
ing futile and purely symbolic litigation, or the Republic
believed that other creditors would have access to at least
a portion of Marcos’ vast assets.
In sum, I am persuaded that the Court’s judgment today
represents a more “inflexible approach” than the Rule
contemplates. Provident, 390 U. S., at 107. All parties
have an interest in the prompt resolution of the disposi
tion of the Arelma assets. A remand would allow a new
judge to handle the matter in an expeditious fashion
rather than requiring a brand new proceeding. The Court
suggests that Merrill Lynch may file in another District
Court—presumably in New York—if it seeks to commence
further litigation. See ante, at 20. While this solution
would put the matter before another District Judge, it
requires the initiation of a new proceeding that may un
necessarily delay the final resolution.
Accordingly, I respectfully dissent.
Cite as: 553 U. S. ____ (2008) 1
Opinion of SOUTER, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–1204
_________________
REPUBLIC OF THE PHILIPPINES, ET AL., PETI-
TIONERS v. JERRY S. PIMENTEL, TEMPORARY
ADMINISTRATOR OF THE ESTATE OF MARIANO J.
PIMENTEL, DECEASED, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 12, 2008]
JUSTICE SOUTER, concurring in part and dissenting in
part.
I join all but Parts IV–B and V of the Court’s opinion. I
differ as to relief because a conclusion of the matter pend-
ing before the Sandiganbayan may simplify the issues
raised in this case and render one disposition or another
more clearly correct. I would therefore vacate the judg-
ment and remand for a stay of proceedings for a reason-
able time to await a decree of the Philippine court. If it
should appear later that no such decree can be expected,
the Court of Appeals could decide on the next step in light
of the Court’s opinion. For reasons given by JUSTICE
STEVENS, I would order that any further proceedings in
the District Court be held before a judge fresh to the case.