In re: Enforcement of Philippine Forfeiture Judgment

24-185(L)
In re: Enforcement of Philippine Forfeiture Judgment
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2024
ARGUED: MARCH 11, 2025
D ECIDED: AUGUST 18, 2025
Nos. 24-185(L), 24-186(Con)
IN RE : E NFORCEMENT O F PHILIPPINE FORFEITURE J UDGMENT AGAINST
ALL ASSETS O F ARELMA, S.A., FORMERLY H ELD AT MERRILL LYNCH,
PIERCE , FENNER & S MITH, INCORPORATED, INCLUDING, B UT N OT
L IMITED TO, ACCOUNT N UMBER 16*
________
Appeal from the United States District Court
for the Southern District of New York.
________
Before: W ALKER , WESLEY , and B IANCO, Circuit Judges.
________
Ferdinand E. Marcos was a dictator and kleptocrat who ruled
the Republic of the Philippines as its President from 1965 to 1986.
Marcos stole billions of dollars from the Republic and its people and
used networks of foreign financial accounts and shell corporations to
hide stolen funds. These assets have been subject to competing legal
* The Clerk of Court is respectfully directed to amend the caption as set forth
above.

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claims by Marcos’s victims, including the Republic itself, since the
end of his presidency.
This case concerns a New York bank account at Merrill Lynch
into which Marcos deposited roughly $2 million in 1972 that, over
fifty years, has grown to over $40 million. After an interpleader action
failed to determine the rightful owner, the Republic asked the United
States Attorney General to commence federal proceedings on its
behalf under 28 U.S.C. § 2467 to enforce a forfeiture judgment that a
Philippine court had awarded to the Republic pertaining to the
account. The Attorney General obliged by initiating the case now
before us.
Two of Marcos’s judgment creditors intervened: (1) a class of
nearly 10,000 victims of Marcos’s human rights abuses; and (2) Jeana
Roxas, as personal representative of the estate of Roger Roxas, from
whom Marcos had stolen treasure that had been left in the Philippines
by Japanese forces during World War II. Each asserted affirmative
defenses to the Attorney General’s enforcement proceeding. On
summary judgment, the United States District Court for the Southern
District of New York (Kaplan, J.) rejected the class’s defenses,
dismissed Roxas from the proceeding for lack of Article III standing,
and entered judgment for the Government, thereby enabling the
return of the assets to the Republic. It also denied Roxas leave to
amend her answer to add additional affirmative defenses. The class
and Roxas appealed.
We conclude that the class failed to create a genuine dispute of
material fact as to its affirmative defenses. We also hold that Roxas
lacked standing to participate as a respondent because she failed to
create a genuine dispute as to her interest in the assets. We therefore
AFFIRM the district court’s judgment in favor of the Government.

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________
C LAY ROBBINS III, Wisner Baum LLP, Los Angeles,
CA (W. Crawford Appleby, Wisner Baum LLP,
Los Angeles, CA; Daniel J. Brown, Brown Law
Group, PLLC, New York, NY, on the brief), for
Respondent-Appellant Jeana Roxas, as Personal
Representative of the Estate of Roger Roxas, and
Intervenor-Appellant Golden Budha Corporation.
J OSHUA L. S OHN (Barbara Y. Levy, on the brief),
United States Department of Justice, Washington,
D.C., for Interested Party-Appellee United States of
America.
ROBERT A. SWIFT , Kohn, Swift & Graf, P.C.,
Philadelphia, PA (Jeffrey E. Glen, Anderson Kill
P.C., New York, NY, on the brief), for Intervenor-
Appellant Jose Duran, on his behalf and as
representative of a Class of Judgment Creditors of the
Estate of Ferdinand E. Marcos.
________
J OHN M. WALKER , J R ., Circuit Judge:
Ferdinand E. Marcos was a dictator and kleptocrat who ruled
the Republic of the Philippines as its President from 1965 to 1986.
Marcos stole billions of dollars from the Republic and its people and
used networks of foreign financial accounts and shell corporations to
hide stolen funds. These assets have been subject to competing legal
claims by Marcos’s victims, including the Republic itself, since the
end of his presidency.
This case concerns a New York bank account at Merrill Lynch
into which Marcos deposited roughly $2 million in 1972 that, over
fifty years, has grown to over $40 million. After an interpleader action

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failed to determine the rightful owner, the Republic asked the United
States Attorney General to commence federal proceedings on its
behalf under 28 U.S.C. § 2467 to enforce a forfeiture judgment that a
Philippine court had awarded to the Republic pertaining to the
account. The Attorney General obliged by initiating the case now
before us.
Two of Marcos’s judgment creditors intervened: (1) a class of
nearly 10,000 victims of Marcos’s human rights abuses; and (2) Jeana
Roxas, as personal representative of the estate of Roger Roxas, from
whom Marcos had stolen treasure that had been left in the Philippines
by Japanese forces during World War II. Each asserted affirmative
defenses to the Attorney General’s enforcement proceeding. On
summary judgment, the United States District Court for the Southern
District of New York (Kaplan, J.) rejected the class’s defenses,
dismissed Roxas from the proceeding for lack of Article III standing,
and entered judgment for the Government, thereby enabling the
return of the assets to the Republic. It also denied Roxas leave to
amend her answer to add additional affirmative defenses. The class
and Roxas appealed.
We conclude that the class failed to create a genuine dispute of
material fact as to its affirmative defenses. We also hold that Roxas
lacked standing to participate as a respondent because she failed to
create a genuine dispute as to her interest in the assets. We therefore
AFFIRM the district court’s judgment in favor of the Government.
BACKGROUND
This appeal is the latest chapter in a decades-long battle over
certain assets of Ferdinand E. Marcos in a New York bank account.
Marcos was President of the Republic of the Philippines (the

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5
“Republic”) from 1965 until 1986. During his presidency, Marcos
stole billions of dollars from the Republic and its citizens for his
personal gain (committing human rights violations along the way).
Much of Marcos’s theft occurred after he declared martial law in 1972.
Litigation over Marcos’s stolen assets has percolated through
American courts since 1986, when he left power and fled to Hawaii
before his death in 1989. See, e.g., N.Y. Land Co. v. Republic of
Philippines, 634 F. Supp. 279 (S.D.N.Y. 1986).
In this particular case, the United States, acting on the
Republic’s behalf, seeks enforcement of a judgment issued by a
Philippine court that ordered the New York account forfeited to the
Republic. Respondents-Appellants are other victims of Marcos and
their successors in interest who hold money judgments against
Marcos’s estate. They entered the action to block the Government
from enforcing the Philippine judgment.
I. The Arelma Assets
The New York bank account was opened in 1972, after Marcos
and co-conspirator Jose Campos incorporated Arelma S.A. under
Panamanian law to hold $2 million at Merrill Lynch, Pierce, Fenner &
Smith Inc. (“Merrill Lynch”) in New York. Arelma S.A. deposited $2
million into the account in November 1972, worth over $40 million
today (the “Arelma Assets” or the “Assets”). In 2017, the Assets were
transferred to the custody of the New York State Comptroller, where
they remain today. The parties agree that Arelma S.A. was an alter
ego of Marcos and that all of the Assets are proceeds of his criminal
activity.

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II. The Class
Intervenor-Appellant Jose Duran proceeds on behalf of himself
and as representative of a class of 9,539 Filipino human rights victims
and their successors in interest (the “Class”). Members of the Class
or their families suffered abuse at the hands of the Marcos regime,
including torture and summary execution. See generally Hilao v. Est.
of Marcos, 103 F.3d 767 (9th Cir. 1996). After suing the Marcos estate
in 1986 in the United States District Court for the District of Hawaii,
the Class won a judgment of approximately $2 billion. Id. at 772.
Because the estate’s assets were dissipated in violation of court
orders, the Class could not collect on the judgment. See generally In re
Est. of Marcos Hum. Rts. Litig., 496 F. App’x 759 (9th Cir. 2012).
III. Roxas and the Golden Budha Corporation
Intervenor-Appellant Jeana Roxas proceeds on behalf of the
estate of Roger Roxas, a treasure hunter and Marcos’s judgment
creditor.1 Golden Budha Corporation (“GBC”) is a company affiliated
with Roxas and the two share counsel in this case.
Starting in 1970, Roger Roxas spent seven months digging near
the Baguio General Hospital in the Northern Philippines. After
uncovering a network of tunnels, he discovered a treasure trove that
he believed to have been left behind by Japanese General Tomoyuki
Yamashita during Japan’s retreat from the Philippines in World
War II (the “Yamashita Treasure”). Roxas v. Marcos, 89 Haw. 91, 101
1 We refer to both Roger Roxas, who is deceased, and Jeana Roxas, who proceeds
on behalf of his estate, as “Roxas.”

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7
(1998).2 Roxas took a large golden Buddha statue; uncut diamonds;
samurai swords; and twenty-four gold bars, seven of which he sold.
Id. at 101-02. On April 5, 1971, Marcos’s police raided Roxas’s home
and stole the Buddha, diamonds, swords, and remaining seventeen
gold bars. Id. at 102. In 1996, Roxas’s estate won a multi-million-
dollar judgment in Hawaii state court based on claims that Marcos
had tortured him and stolen the treasure (the “Hawaii Tort Action”).
Id. at 103-04, 113-14.
IV. Previous Lawsuits Relevant to this Action
Several prior suits involving the Republic, Appellants, and the
Arelma Assets are relevant to resolving the appeal before us.
A. Federal Lawsuits Brought by the Republic in the 1980s
In the 1980s, the Republic filed three suits against Marcos in
district courts in New York, Hawaii, and Texas that accused him of
misappropriating the Republic’s funds and hiding them in American
accounts. See Republic of Philippines v. Marcos, No. 86-cv-2294
(S.D.N.Y. 1986); Republic of Philippines v. Marcos, No. 86-cv-3859 (C.D.
Cal. 1986); Republic of Philippines v. Marcos, No. 86-cv-1184 (S.D. Tex.
1986). The Republic voluntarily dismissed each action as to Marcos.
B. The Interpleader Action
After receiving competing demands for the Arelma Assets from
Marcos’s creditors, Merrill Lynch filed an interpleader action in the
Hawaii district court in 2000 to determine the Assets’ ownership (the
“Interpleader Action”). The Class, Roxas, and the Republic were
2 Both the Government and Roxas rely on the facts affirmed by the Hawaii
Supreme Court in Roxas v. Marcos, 89 Haw. 91 (1998). Gov. Br. 7 n.5; Roxas Br. 26
n.6.

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named as parties, but the Republic asserted sovereign immunity and
was dismissed from the action. The Assets were awarded to the Class
in 2004. Republic of Philippines v. Pimentel, 553 U.S. 851, 860 (2008). The
Supreme Court vacated the award in 2008, holding that the Assets
could not be distributed without the Republic’s participation due to
its sovereign immunity and its status as an indispensable party. Id. at
865-66, 872.
C. The Philippine Judgment
In 1991, the Republic brought forfeiture proceedings in a
Philippine anti-corruption court, the Sandiganbayan, seeking assets
stolen by the Marcos regime. The Republic moved for summary
judgment with respect to the Arelma Assets in 2004. On April 2, 2009,
the Sandiganbayan granted the motion, entering forfeiture in the
Republic’s favor (the “Philippine Judgment”). The court found that
the Assets were based on around $2 million of criminally obtained
property that Campos had deposited at Merrill Lynch in 1972. The
Philippine Supreme Court affirmed in 2012 and subsequently denied
reconsideration.
V. The Present Action
In January 2015, the Republic formally requested that the U.S.
Attorney General enforce the Philippine Judgment against the
Arelma Assets. On February 11, 2016, the Assistant Attorney General
for the Criminal Division of the U.S. Department of Justice certified
that the Republic’s request was in the interest of justice. On June 27,
2016, the Government brought this action by filing an enforcement
application under 28 U.S.C. § 2467 in the United States District Court
for the District of Columbia. The action was later transferred to the
Southern District of New York.

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Roxas and the Class intervened and, in their answers, asserted
affirmative defenses to enforcement. GBC, represented by the same
counsel as Roxas, unsuccessfully sought to intervene. Dist. Ct. Dkt.
No. 96.
Appellants now seek review of three of the district court’s
orders, described below, that collectively extinguished their
affirmative defenses and dismissed Roxas’s defenses to the
enforcement proceeding for lack of standing, resulting in a judgment
in the Government’s favor. GBC also challenges the denial of its
motion to intervene.
First, in September and October 2019, the Class and the
Government cross-moved for summary judgment on the Class’s
statute of limitations defense. On February 27, 2020, the district court,
affirming the recommendation of a magistrate judge (Gorenstein,
M.J.), held that the Government’s suit was timely. In re Enf't of
Philippine Forfeiture Judgment (Arelma I), 442 F. Supp. 3d 756 (S.D.N.Y.
2020).
Second, on February 7, 2023, the district court denied Roxas’s
motion for leave to amend her answer to add additional affirmative
defenses, rejecting the magistrate judge’s recommendation. In re
Arelma, S.A. (Arelma II), No. 19-mc-412, 2023 WL 1796615 (S.D.N.Y.
Feb. 7, 2023).
Finally, in September 2022, the Government moved for
summary judgment against Roxas and the Class on their remaining
defenses and separately sought summary judgment against Roxas for
her lack of Article III standing. The Class cross-moved for summary
judgment in its favor on its affirmative defenses, requesting dismissal
of the case. On January 11, 2024, the district court adopted the

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10
magistrate judge’s recommendation to reject the Class’s remaining
defenses, dismiss Roxas’s challenge to the enforcement proceeding
for lack of standing, and deny the Class’s cross-motion for summary
judgment. In re Arelma, S.A. (Arelma III), No. 19-mc-412, 2023 WL
6449240 (S.D.N.Y. Oct. 3, 2023), report and recommendation adopted sub
nom. In re Enf't of Philippine Forfeiture Judgment Against All Assets of
Arelma, S.A., No. 19-mc-412, 2024 WL 127023 (S.D.N.Y. Jan. 11, 2024).
D ISCUSSION
On appeal, the Class argues that it created a genuine dispute of
material fact as to its affirmative defenses and thus the district court
erred in granting summary judgment to the Government. In the
alternative, the Class asserts that enforcement of the Philippine
Judgment should be limited as to the amount of assets and the
custodian to which it pertains. Roxas, meanwhile, challenges the
district court’s grant of summary judgment based on her lack of
Article III standing. She also reasserts her affirmative defenses that
were mooted by the district court’s standing decision and argues that
it wrongly denied her leave to amend her answer to add additional
defenses.
“We review de novo a district court’s decision to grant
summary judgment, construing the evidence in the light most
favorable to the party against whom summary judgment was granted
and drawing all reasonable inferences in that party’s favor.”
Covington Specialty Ins. Co. v. Indian Lookout Country Club, Inc., 62 F.4th
748, 752 (2d Cir. 2023) (per curiam).3 Decisions as to Article III
standing are also reviewed de novo. United States v. Cambio Exacto,
3 Unless otherwise indicated, in quoting cases, all internal quotation marks,
alterations, and citations are omitted.

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S.A., 166 F.3d 522, 526 (2d Cir. 1999). We review for abuse of
discretion a district court’s denial of leave to amend, Gurary v.
Winehouse, 235 F.3d 792, 801 (2d Cir. 2000), denial of intervention,
United States v. City of New York, 198 F.3d 360, 364 (2d Cir. 1999), and
rulings as to which materials are admissible for consideration on
summary judgment, reversing only decisions that are based on “an
erroneous view of the law or on a clearly erroneous assessment of the
evidence, or [that] render a decision that cannot be located within the
range of permissible decisions,” Picard Tr. for SIPA Liquidation of
Bernard L. Madoff Inv. Sec. LLC v. JABA Assocs. LP, 49 F.4th 170, 181 (2d
Cir. 2022). We may affirm a judgment, including one resulting from
summary judgment, “on any ground that finds adequate support in
the record.” Plymouth Venture Partners, II, L.P. v. GTR Source, LLC, 52
F.4th 91, 95 (2d Cir. 2022).
I. 28 U.S.C. § 2467
This case centers on 28 U.S.C. § 2467, which allows the Attorney
General to, “upon request of a foreign nation pursuant to a mutual
forfeiture assistance treaty, . . . petition a United States court to
enforce a foreign forfeiture judgment.” United States v. Federative
Republic of Brazil, 748 F.3d 86, 88 (2d Cir. 2014). Upon receiving a
request, the Attorney General or his or her “designee” determines
whether to certify it as “in the interest of justice,” a decision immune
from judicial review. 28 U.S.C. § 2467(b)(2). Only foreign judgments
that are “final” may be enforced. Id. § 2467(a)(2).
If a request is certified, the Government may file an application
in district court “on behalf of a foreign nation . . . seeking to enforce”
the foreign judgment “as if [it] had been entered by a court in the
United States.” Id. § 2467(c)(1). Any entity “affected by the forfeiture
or confiscation judgment” may intervene as a respondent. Id.

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§ 2467(c)(2)(A). Respondents may block enforcement of the foreign
judgment by proving any of five enumerated affirmative defenses:
(1) that the foreign judgment was rendered via “tribunals or
procedures incompatible with the requirements of due process of
law”; (2) that “the foreign court lacked personal jurisdiction over the
defendant”; (3) that “the foreign court lacked jurisdiction over the
subject matter”; (4) that the foreign nation failed to “take steps, in
accordance with the principles of due process, to give notice of the
proceedings to a person with an interest in the property . . . sufficient
time to enable him or her to defend”; and (5) that the foreign
judgment “was obtained by fraud.” Id. §§ 2467(d)(1)(A)-(E). If none
apply, “[t]he district court shall enter such orders as may be necessary
to enforce the judgment on behalf of the foreign nation,” id.
§ 2467(d)(1), but is “bound by the findings of fact” of the foreign
judgment in so doing, id. § 2467(e).
Section 2467 is unique in its role as a discretionary policy tool
of international relations that courts apply within the otherwise
routinized realm of asset forfeiture. This role informs our analysis of
several issues of first impression raised by Appellants.
II. The Class’s Affirmative Defenses
The Class asserts three affirmative defenses under § 2467(d)(1):
(1) that “the foreign court lacked jurisdiction over the subject matter”;
(2) that the Republic “did not take steps, in accordance with the
principles of due process, to give notice of the [foreign] proceedings”
to it “in sufficient time to enable [it] to defend”; and (3) that the
“judgment was obtained by fraud.” Id. §§ 2467(d)(1)(C)–(E). It also
raises two generally applicable defenses: that the Government’s
application was (1) untimely; and (2) barred by Federal Rule of Civil

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Procedure 41(a)(1)(B). We find that the Class failed to create a
genuine dispute of material fact as to any of its defenses.
A. Statute of Limitations
The Class argues that the Government’s application is time-
barred under 28 U.S.C. § 2462. As a threshold matter, we agree with
the parties and district court that § 2462 applies here. It provides that
“an action, suit or proceeding for the enforcement of any civil fine,
penalty, or forfeiture, pecuniary or otherwise, shall not be entertained
unless commenced within five years from the date when the claim
first accrued.” 28 U.S.C. § 2462. The Government’s § 2467 application
is indisputably “an action, suit or proceeding for the enforcement of
a[] . . . forfeiture.” Id.
The parties’ agreements end there. They disagree about what
the relevant “claim” is under § 2462 and when it accrued. The district
court held that the operative claim is the enforcement application the
Government filed in the district court under § 2467 on June 27, 2016,
and that it accrued in January 2015, when the Republic asked the
Attorney General to enforce the Philippine Judgment, making the
application timely. Arelma I, 442 F. Supp. 3d at 758, 761-65. The
Government defends this holding on appeal.
The Class argues that the limitations period should instead be
measured with reference to the claim underlying the Philippine
Judgment, which is the forfeiture claim the Republic brought in the
Sandiganbayan. The Class argues that this claim accrued in 1972,
when the Arelma Assets were deposited into the Merrill Lynch
account; thus, this action, filed on June 27, 2016, is untimely.

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1. “Claim” Defined
To locate the relevant claim, we must first examine the meaning
of that term as used in § 2462. “Claim” can refer either to “the basis
of a lawsuit or the lawsuit itself.” United States v. Ripa, 323 F.3d 73, 82
n.10 (2d Cir. 2003). In the former sense, “claim” means the “factual
situation that entitles one person to obtain a remedy.” Id. In the latter,
it is synonymous with “cause of action” and means “[a]n interest or
remedy recognized at law; the means [to] obtain a privilege,
possession, or enjoyment of a right or thing.” Claim, Black’s Law
Dictionary (12th ed. 2024). Here, the term’s location in § 2462, a statute
of limitations, suggests that the “claim” could not proceed until the
Attorney General certified the Republic’s request to the Government
to enforce the judgment it had obtained in Philippine court. See
King v. Burwell, 576 U.S. 473, 486 (2015) (“[O]ftentimes the
meaning . . . of certain words or phrases may only become evident
when placed in context.”). “Claim” as used in statutes of limitations
means that which accrues to start the limitations period, coming into
existence “when the plaintiff has a complete and present cause of
action.” Gabelli v. SEC, 568 U.S. 442, 448 (2013).
The Class argues that the Government’s § 2467 application is
not an independent claim because it is substantively identical to the
Philippine Judgment it seeks to enforce: the Government has no claim
of its own to the Assets but is simply acting on the Republic’s behalf.
But these are different causes of action brought by different parties
that offer different remedies and implicate different sets of facts.
While the Republic’s forfeiture claim sought to establish its right to
the Assets, the Government’s § 2467 application offers a distinct
“remedy” in its enforcement. Claim, Black’s Law Dictionary (12th ed.
2024). Further, while courts in § 2467 actions are bound by the foreign

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judgment’s findings of fact regarding its merits and scope, they must
consider a different set of facts relating to its enforceability, including
those relating to the foreign court’s jurisdiction and procedural
fairness. 28 U.S.C. §§ 2467(e), (d)(1)(A)-(E). Finally, the Class’s
argument ignores the independent policy interests the Government
may (or may not) have in enforcement, which may only be sought on
behalf of nations that are parties to the United Nations Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
or a “mutual forfeiture assistance” treaty or agreement, and only after
a determination that enforcement serves the “interest of justice.” Id.
§ 2467(a)(1), (b)(2); see Federative Republic of Brazil, 748 F.3d at 96 (the
“interests of justice” requirement “ensures that the executive alone
will weigh the foreign affairs implications of any enforcement
action”).
In an analogous context, courts widely view claims to enforce
administrative penalties as distinct, for the purposes of § 2462, from
the claims lodged to assess those penalties in the first place. See
FERC v. Vitol Inc., 79 F.4th 1059, 1064 (9th Cir. 2023) (joining First,
Fourth, Sixth, Seventh, and Eighth Circuits in concluding that claims
to enforce administrative penalties accrue under § 2462 “only after the
agency has assessed such a penalty in an agency proceeding”); but see
United States v. Core Laboratories, Inc., 759 F.2d 480, 483 (5th Cir. 1985)
(running § 2462 limitations period for enforcement action from the
date of the underlying violation for which the penalty was assessed).4
4 “Outside of the Fifth Circuit [in Core], no court has ever held that, in a case where
an antecedent administrative judgment is a statutory prerequisite to the
maintenance of a civil enforcement action, the limitations period on a recovery suit
runs from the date of the underlying violation as opposed to the date on which the
penalty was administratively imposed.” Vitol Inc., 79 F.4th at 1066 (noting Core’s

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The Class prefers an analogy to 28 U.S.C. § 1963, which allows
plaintiffs to register and enforce federal district court judgments in a
different district. But it provides no authority suggesting that a § 1963
registration is not a claim in its own right. Instead, courts view § 1963
as “more than a mere procedural device for the collection of the
foreign judgment.” Stanford v. Utley, 341 F.2d 265, 268 (8th Cir. 1965).
And § 2467 applications are more claim-like in any event because,
unlike § 1963 registrations, they allow for fact-based affirmative
defenses.
Finally, the Class suggests that a § 2467 action cannot constitute
a standalone claim because it is initiated via “application” instead of
complaint. 28 U.S.C. § 2467. But this argument is one of semantics,
not substance. Several types of filings with different names can be
used to bring claims in federal court, such as “petitions,”
“complaints,” and “applications.” See, e.g., 28 U.S.C. § 2254 (federal
courts “shall entertain an application for a writ of habeas corpus”).
2. Accrual
The Class next argues that even if the operative claim under
§ 2462 is the Government’s enforcement application, it accrued more
than five years before the Government initiated this action on June 27,
2016. “[T]he standard rule is that a claim accrues when the plaintiff
has a complete and present cause of action.” Gabelli, 568 U.S. at 448.
Section 2467 makes clear that the Government can only certify a
request and apply for enforcement after the foreign judgment exists
and is final and the foreign nation requests enforcement. 28 U.S.C.
§§ 2467(a)(2), (b)(1). The satisfaction of these conditions gives the
“limit[ation] to the particular statute at issue”); see United States v. Meyer, 808 F.2d
912, 915 (1st Cir. 1987) (criticizing Core’s reliance on legislative history).

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Government a “complete and present cause of action” and therefore
marks accrual. Gabelli, 568 U.S. at 448.
The Class suggests instead that the claim accrued in 1972, when
the Arelma Assets were deposited into the Merrill Lynch account. It
relies on Gabelli, which fixed the accrual of certain SEC enforcement
actions to “when a defendant’s allegedly fraudulent conduct occurs.”
Id. But the statute in Gabelli empowered the SEC to seek penalties as
soon as the underlying fraud occurred, not after a separate
proceeding to show wrongdoing. See id. at 445 (citing 15 U.S.C. § 80b-
9). Gabelli’s holding, that the limitations period in § 2462 begins to run
“when a defendant’s allegedly fraudulent conduct occurs” instead of
when it is discovered, id. at 448, is confined to circumstances in which
Congress allows an agency “to prosecute a violation by filing suit in
federal court in the first instance,” Vitol Inc., 79 F.4th at 1064
(discussing Gabelli, 568 U.S. at 445-46). Here, by contrast, the
Government cannot seek enforcement under § 2467 until a final
foreign judgment exists. 28 U.S.C. § 2467(b)(1)(C); see United States v.
Meyer, 808 F.2d 912, 914-15 (1st Cir. 1987) (holding that the term
“enforcement” in § 2462 “presupposes the existence of an actual
penalty to be enforced” and that an enforcement claim cannot accrue
until liability has been assessed).
The Class warns that our holding would enable foreign nations
to wait long periods before requesting enforcement. But while a
foreign government may decide when to request enforcement, it
cannot decide whether or when an enforcement application is
actually brought. Only the Attorney General or their designee can do
so after deciding whether a nation’s request is “in the interest of
justice.” 28 U.S.C. § 2467(b)(2). A country that waits decades to
request enforcement risks denial.

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18
Finally, the Class argues that even if claims accrue from the
date of the foreign country’s enforcement request, the Government’s
application is still untimely because the Republic first requested
enforcement in January 2010, six years before the Government
brought this action. The letter to which the Class refers requested “the
assistance of the appropriate authorities of the United States of
America” to “assist in the return of the Arelma assets to the Republic,
should the Sandiganbayan judgment be affirmed by the Philippine Supreme
Court.” Duran App’x 35, 39 (emphasis added). This request was,
therefore, conditioned on the Sandiganbayan judgment being
“affirmed by the Philippine Supreme Court”; because this condition
was not met at the time of the January 2010 letter, the request was not
perfected. Duran App’x 39. Further, the request did not enable the
Government to file a § 2467 application because the foreign judgment
was not yet “final”; it therefore cannot mark accrual. 28 U.S.C.
§ 2467(a)(2) (allowing enforcement of “a final order of a foreign
nation”).
B. Federal Rule of Civil Procedure 41(a)(1)(B)
The Class next argues that the Government’s application is
barred under Rule 41(a)(1)(B) because of earlier lawsuits the Republic
brought against Marcos and later dismissed. Rule 41(a)(1)(B)
provides that a unilateral notice of voluntary dismissal “operates as
an adjudication on the merits”—that is, a dismissal with prejudice—
when “the plaintiff previously dismissed any federal- or state-court
action based on or including the same claim.” Fed. R. Civ.
P. 41(a)(1)(B). This provision, known as the “two-dismissal rule,”
functions similarly to claim preclusion, blocking later-filed suits
based on the same claim. Jian Yang Lin v. Shanghai City Corp, 950 F.3d
46, 50 (2d Cir. 2020) (per curiam). A subsequent action is “based on

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19
or includ[es] the same claim” as the first when “it arises from the same
transaction or occurrence.” Id.
The Class argues that this action is based on the same claim as
the Republic’s lawsuits against Marcos from the 1980s that the
Republic voluntarily dismissed. It asserts that the Philippine
forfeiture action and the Republic’s 1980s suits each sought an
accounting of Marcos’s ill-gotten wealth, and that the Government’s
§ 2467 application shares this commonality because it is identical to
the Philippine forfeiture claim. But the § 2467 claim does not “arise[]
from the same transaction or occurrence” as the Philippine Judgment
because, as discussed earlier, it seeks to enforce a pre-existing
judgment and does not go to the merits of the underlying forfeiture
action. Id.
The rationale behind the two-dismissal rule of Rule 41(a)(1)(B)
likewise does not cover this case. Where the rule’s “purpose . . .
would not appear to be served by its literal application, and where
that application’s effect would be to close the courthouse doors to an
otherwise proper litigant, a court should be most careful not to
construe or apply the exception too broadly.” Poloron Prods., Inc. v.
Lybrand Ross Bros. & Montgomery, 534 F.2d 1012, 1017 (2d Cir. 1976).
The rule’s purpose, to prevent “abuse” and harassment stemming
from the “unreasonable use of the plaintiff’s unilateral right to
dismiss an action,” does not apply here. Id. Its application cannot be
said to protect the Class, the party invoking it, from abuse, as the
Class was not a defendant to the Republic’s 1980s suits. The repeat
litigation at issue here arises from the complexity inherent in
international disputes over the assets of an ousted dictator, not a
campaign of harassment on the part of the Republic.

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20
C. Subject Matter Jurisdiction
A § 2467 respondent can prevent enforcement of a foreign
judgment by showing that “the foreign court lacked jurisdiction over
the subject matter.” 28 U.S.C. § 2467(d)(1)(C). The district court
rejected the Class’s defense because the Class failed to show that the
Philippine court lacked subject matter jurisdiction. It relied on the
Sandiganbayan’s holding, affirmed by the Philippine Supreme Court,
that the Sandiganbayan had jurisdiction over the Arelma Assets after
the Class declined to furnish evidence under Philippine law disputing
that conclusion. Arelma III, 2023 WL 6449240, at *18.
1. Choice of Law
The Class challenges the district court’s use of Philippine
instead of American law to determine whether the Sandiganbayan
had jurisdiction.5 We hold that the district court properly applied
Philippine law. It is dubious that an American court could practically
apply American principles of subject matter jurisdiction, such as
diversity and federal question jurisdiction, to foreign judgments.
And the American jurisdictional principles that the Class asks us to
apply here would undermine § 2467’s purpose as a discretionary tool
of international comity. The Class argues that the Sandiganbayan
lacked in rem jurisdiction because it did not control the res at issue—
5 While no circuit court has weighed in on this question, district courts have
uniformly assumed that foreign law applies. See In re One Prinz Yacht Named
Eclipse, No. 12-MC-162, 2022 WL 4119773, at *6 (D.D.C. Sept. 9, 2022) (using
Spanish law to determine Spanish court’s jurisdiction); In re Enf’t of Restraining
Ord. by Ninth Fed. Ct., Fifth Jud. Subsection in Campinas, SP, No. MC 15-783, 2024
WL 4854037, at *9 (D.D.C. Nov. 21, 2024) (Brazilian law); In re Enf’t of Restraining
Ord. by Republic of India, No. 22-MC-106, 2024 WL 5375481, at *3 (D.D.C. Nov. 18,
2024) (“[I]t is generally presumed that foreign courts have subject matter
jurisdiction over the disputes they adjudicate.”).

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the Arelma Assets—which were located in the United States and in
custody of the Hawaii district court. But if a foreign court cannot have
jurisdiction to forfeit property located in the United States, then § 2467
could almost never be invoked. Its application would be limited to
circumstances in which the disputed property is located within the
foreign country at the time of the foreign forfeiture judgment before
being subsequently moved to the United States, or where the foreign
nation otherwise legally controlled the assets under preexisting
seizure or attachment orders.
Our conclusion is further supported by the presumption
against extraterritorial application, which teaches that “[w]hen a
statute gives no clear indication of an extraterritorial application, it
has none, and reflects the presumption that United States law governs
domestically but does not rule the world.” Kiobel v. Royal Dutch
Petroleum Co., 569 U.S. 108, 115 (2013). “This presumption serves to
protect against unintended clashes between our laws and those of
other nations which could result in international discord.” Id. Here,
there is no indication that § 2467(d)(1)(C) seeks to extend the
American law of subject matter jurisdiction to foreign adjudications.
The Class’s preferred holding would do so indirectly by denying
foreign nations the ability to recover assets located on American soil
unless their jurisdictional principles aligned with those of the United
States.
2. Analysis under Philippine Law
The district court did not err in accepting the Sandiganbayan’s
conclusion as to its own jurisdiction under Philippine law. The Class
argues that a U.S. court need not accept a foreign court’s legal
conclusions because this would render the jurisdictional defense
contained in § 2467(d)(1)(C) null. But a mandate to apply foreign law

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does not require U.S. courts to take a foreign court’s jurisdictional
holding at face value. The Class was free to furnish evidence that the
Sandiganbayan lacked jurisdiction under Philippine law, as Roxas
did, but chose not to do so. Arelma III, 2023 WL 6449240, at *18 & n.13.
The district court therefore had no choice but to accept the Philippine
courts’ holdings in rejecting the Class’s subject matter jurisdiction
defense.
D. Notice
A § 2467 respondent can prevent enforcement by showing that
“the foreign nation did not take steps, in accordance with the
principles of due process, to give notice of the proceedings to a person
with an interest in the property of the proceedings in sufficient time
to enable him or her to defend.” 28 U.S.C. § 2467(d)(1)(D). The
district court rejected the Class’s defense on these grounds because it
held that the Class was not an interested party that was owed notice
at the time the Philippine Judgment was issued.6 It reasoned that the
Supreme Court’s decision in Republic of Philippines v. Pimentel, 553 U.S.
851 (2008), destroyed the Class’s interest in the Assets before the
Sandiganbayan issued its judgment, meaning that it could not have
been injured by any lack of notice. Arelma III, 2023 WL 6449240, at
*11-15. We agree.
1. Relevant Background of the Interpleader Action
Before analyzing the Class’s notice defense, we must first
examine aspects of the timeline of the Interpleader Action which bear
on the question of notice. In 2004, the Hawaii district court in the
Interpleader Action awarded the Arelma Assets to the Class, in partial
6 The Class does not argue that it was entitled to notice based on any interest it
acquired in the Arelma Assets after the Sandiganbayan’s April 2009 judgment.

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satisfaction of a $2 billion judgment the Class had previously won
against Marcos’s estate. Merrill Lynch, Pierce, Fenner & Smith v.
Arelma, Inc., No. CV00-595, 2004 WL 5326929, at *7 (D. Haw. July 12,
2004). The parties agree that this judgment gave the Class an interest
in the Assets. The Republic appealed to the Ninth Circuit, arguing
that it was an indispensable party to the Interpleader Action and that
the Assets could not be awarded without its participation. Merrill
Lynch, Pierce, Fenner & Smith, Inc. v. ENC Corp., 464 F.3d 885, 890 (9th
Cir. 2006). The Ninth Circuit rejected this argument and affirmed the
Assets’ award to the Class. Id. at 894.
The Supreme Court reversed in Republic of Philippines v.
Pimentel, 553 U.S. 851 (2008). Pimentel held that the Republic was a
required party to the Interpleader Action and that its sovereign
immunity meant that it was prejudiced by the action’s proceeding
without its participation under Federal Rule of Civil Procedure 19. Id.
at 864-67. Accordingly, it held that the Interpleader Action must be
dismissed, thereby voiding the district court’s award of the Assets to
the Class. Id. at 873. Its mandate, which directed the Ninth Circuit to
“order the United States District Court of the District of Hawaii to
dismiss the interpleader action,” issued on July 14, 2008. Dkt. July 17,
2008, Case No. 04-16401 (9th Cir.).
On remand from Pimentel, the Ninth Circuit ordered the
Hawaii district court “to dismiss the interpleader action.” Merrill
Lynch, Pierce, Fenner & Smith, Inc. v. ENC Corp., 535 F.3d 1010 (9th Cir.
2008). Before dismissing the Interpleader Action, however, the
district court performed an “accounting” of the Arelma Assets in the
fall of 2008, during which it held that the Class was entitled to certain
interest accrued on the Assets. Merrill Lynch, Pierce, Fenner & Smith,
Inc. v. Arelma, Inc., 587 F.3d 922, 924-25 (9th Cir. 2009). This

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24
determination was swiftly reversed by the Ninth Circuit on
November 13, 2009, which made clear that all of the Assets, including
any accrued interest, were required to be returned to Merrill Lynch.
Id. at 925. With this delay, the Assets were not returned until
February 2010.
2. Whether the Class Was Owed Notice
The question here is whether the Class was owed notice of the
Sandiganbayan proceedings to defend its interest in the Arelma
Assets, awarded to it in the Interpleader Action, even though the
Supreme Court’s holding in Pimentel reversed that award before the
Sandiganbayan handed down its judgment.
The Class argues that it only needed an interest in the Arelma
Assets at the time the Republic moved for summary judgment in the
Sandiganbayan against the Assets in order to be owed notice, because
§ 2467(d)(1)(D)’s purpose is to give parties “sufficient time to enable
[them] to defend” their interest. Duran Br. 33-34 (quoting 28 U.S.C.
§ 2467(d)(1)(D)). But § 2467(d)(1)(D) is backward-looking—it asks
courts to evaluate in hindsight whether the interested party was given
an opportunity to participate in the foreign proceeding and, on this
ground, to deny the enforcement of a judgment for which this
opportunity was deprived. A party with no interest in the contested
property at the time of the foreign judgment cannot be said to have
been deprived of anything. Even though the Class had an interest in
the Assets at the outset of the Philippine proceedings, Pimentel
destroyed this interest before the Sandiganbayan issued its judgment,
thereby rendering the Class’s ability to defend that interest
meaningless. The Class analogizes to Article III standing, under
which a plaintiff’s stake in the outcome of litigation is measured as of
the suit’s outset. Doe v. McDonald, 128 F.4th 379, 385 (2d Cir. 2025).

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But that stake must be maintained throughout all stages of litigation
in order for the case not to be moot. Id. Similar logic applies here: a
party who loses its interest in the forfeited property before the foreign
forfeiture judgment is issued no longer has a need to defend itself in
the foreign proceeding and, accordingly, its entitlement to notice is
rendered effectively moot.
Having decided that the Class needed an interest in the Assets
when the Sandiganbayan ordered their forfeiture on April 2, 2009 in
order to be owed notice under § 2467(d)(1)(D), we now examine
whether it had an interest on that date. It did not. Although the
district court in the Interpleader Action initially awarded the Class
the Assets in 2004, the Supreme Court in Pimentel reversed this
judgment and destroyed the Class’s interest once its mandate issued
on July 14, 2008, eight months before the Philippine Judgment. The
Class therefore had no interest in the Assets deriving from this award
at the time of the Philippine Judgment.
The Class argues that its interest in the Assets persisted after
Pimentel because the district court, on remand from Pimentel, did not
return the Assets to Merrill Lynch until February 2010—after the
Philippine Judgment issued in April 2009. We disagree that this delay
in actualizing Pimentel’s mandate prolonged the Class’s interest in the
Assets. Any ownership the Class had over interest accrued on the
Assets awarded by the Hawaii district court was rendered void ab
initio by the Ninth Circuit’s decision reversing that award in Merrill
Lynch, 587 F.3d at 924-25. “It has long been well established that the
reversal of a lower court’s decision sets aside that decision . . . and
requires that it be treated thereafter as though it never existed.”
Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008) (citing
Butler v. Eaton, 141 U.S. 240, 244 (1891)); see Concilio de Salud Integral de

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26
Loiza, Inc. v. Perez-Perdomo, 625 F.3d 15, 19 (1st Cir. 2010) (“Reversing
an . . . injunction often warrants treating the injunction thereafter as if
it did not exist in the period before the vacation.”). Even though the
Ninth Circuit did not act until after the Philippine Judgment issued,
the Class’s interest was void from the beginning.
E. Fraud
Section 2467(d)(1)(E) allows a party to prevent enforcement of
a foreign forfeiture judgment by showing that the judgment “was
obtained by fraud.” 28 U.S.C. § 2467(d)(1)(E). The Class argues that
the Republic secured the Philippine Judgment by fraud because it
concealed certain obligations it had involving the Arelma Assets that
arose from an earlier settlement with a Marcos associate.
1. Type of Fraud Contemplated by § 2467(d)(1)(E)
We must first determine which type of fraud is contemplated
by § 2467(d)(1)(E), another question of first impression. The district
court adopted the standard applicable to collateral actions to set aside
a judgment on the basis of “fraud on the court” under Federal Rule of
Civil Procedure 60(d)(3). Arelma III, 2023 WL 6449240, at *15. The
parties do not contest this interpretation and we agree that a modified
Rule 60(d)(3) standard is appropriate here. Rule 60(d)(3) is analogous
to § 2467(d)(1)(E) because both allow parties to attack a judgment
collaterally, and § 2467(d)(1)(E)’s reference to judgments “obtained
by fraud” connotes misconduct directed at a court instead of an
adverse party.
Fraud on the court under Rule 60(d)(3) embraces a narrow and
extreme set of conduct “which . . . defile[s] the court itself so that the
judicial machinery can not perform in the usual manner.” Mazzei v.
The Money Store, 62 F.4th 88, 93 (2d Cir. 2023). It requires showing

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27
that (1) “the defendant interfered with the judicial system’s ability to
adjudicate impartially”; and (2) “the acts of the defendant must have
been of such a nature as to have prevented the plaintiff from fully and
fairly presenting a case or defense.” Id. at 93-94. The second element
is inapplicable here because the Class was not a party to the foreign
proceeding.
2. Whether the Philippine Judgment Was Obtained by
Fraud
The Class’s theory of fraud centers on a 1986 settlement
between the Republic and Jose Campos, a Marcos associate who
established shell companies to hold Marcos’s stolen assets. In May
1986, the Republic settled claims against Campos, recovering assets
worth $115 million (the “1986 Settlement”). The Class argues that this
settlement fully satisfied the Republic’s only claim to the Arelma
Assets: that they were the product of a conspiracy by Marcos and
Campos to steal and hide the Republic’s funds. It also maintains that
a 1989 Philippine Supreme Court decision required that the Campos
settlement be applied as a credit toward future damages assessed
against Marcos as a joint tortfeasor in that scheme. The Class argues
that these obligations made it fraudulent for the Republic to move for
summary judgment before the Sandiganbayan without informing it
of (1) the 1986 Settlement or (2) the credit against Marcos’s liability,
thereby seeking double recovery for the Assets.
The Class fails to create a genuine dispute that these allegations
are true, let alone that they constitute “fraud which . . . attempts to
defile the court.” Id. First, the Republic did inform the
Sandiganbayan of the 1986 Settlement. The Class acknowledges that
the Republic attached a letter detailing the settlement and its “main
points” to its 1991 forfeiture petition. Duran Br. 47; Duran App’x 363-

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Nos. 24-185(L), 24-186-Con
28
64. And the Philippine Judgment acknowledged that the forfeiture
proceedings concern “[p]roperties surrendered to the [Republic] by
Marcos crony Jose Y. Campos.” Duran Sp. App’x 143 n.25. The Class
is right that the bounds of fraud on the court are “characterized by
flexibility which enables it to meet new situations,” and this is
certainly a unique situation. Leber-Krebs, Inc. v. Capitol Recs., 779 F.2d
895, 899 (2d Cir. 1985). But the Republic could not have defrauded
the Sandiganbayan by withholding information that the
Sandiganbayan already knew.
Finally, the Class’s argument regarding the “credit” Marcos
was owed by the Campos settlement is unpersuasive. The Class finds
fault in the Republic’s “permit[ing] [the Sandiganbayan] to assume
that the Arelma funds were somehow not to be credited against the
joint liability of Campos and Marcos,” thereby preventing it “from
applying the accepted law of crediting payments by one joint
tortfeasor against the remaining obligations of non-settling
tortfeasors.” Duran Reply Br. 13. As noted above, the Republic did
not hide the settlement’s existence or terms. What remains is an
accusation that the Sandiganbayan legally erred in failing to apply
principles of joint and several liability, not an accusation that the
Republic “interfered with” its “ability to adjudicate impartially.”
Mazzei, 62 F.4th at 94. The Class’s notice defense therefore fails.
III. The Class’s Requests to Limit Enforcement
In addition to its affirmative defenses, the Class also argues that
the Philippine Judgment, if enforced, should be limited as to the
amount of the Assets and custodians to which it pertains. While the
Class styles these arguments as affirmative defenses, they are not
found in §§ 2467(d)(1)(A)-(E). Section 2467(d)(1) instructs that, if no
affirmative defenses apply, the court “shall enter such orders as may

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29
be necessary to enforce the judgment on behalf of the foreign nation.”
28 U.S.C. § 2467(d)(1). We agree with the district court that the Class’s
arguments are better understood as requests to define the scope of the
orders that are “necessary to enforce the judgment.” Id. § 2467(d)(1);
Arelma III, 2023 WL 6449240, at *20.
A. Limitation as to Amount
The Class first argues that the district court erred in refusing to
limit enforcement of the Philippine Judgment to $3,369,975, the
amount in the Merrill Lynch account as of 1983. The Sandiganbayan’s
2009 judgment ordered the forfeiture of “all the assets, investments,
securities, properties, shares, interests, and funds of Arelma, Inc.,
presently under management and/or in an account at the Meryll [sic]
Lynch Asset Management, New York, U.S.A., in the estimated
aggregate amount of US$3,369,975.00 as of 1983, plus all interests and
all other income that accrued thereon.” Duran Sp. App’x 168. The
Philippine Supreme Court’s affirmance contains nearly identical
language as to the estimated amount.
Section 2467(a)(2) allows for the enforcement of two types of
forfeiture judgments: those compelling a person or entity (A) “to pay
a sum of money representing the proceeds of” certain crimes; and
(B) “to forfeit property involved in or traceable to the[ir]
commission.” 28 U.S.C. §§ 2467(a)(2)(A)-(B). In other words, the
Government can enforce a judgment denoted in terms of an amount
of currency or a specific piece of property.
The Class insists that “property” as used in the statute can only
refer to tangible goods and not assets of an undefined value, such as
the contents of a bank account. We see no reason why a bank account
cannot qualify as “property” under § 2467 as it can in other forfeiture

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30
contexts. See, e.g., United States v. Watts, 786 F.3d 152, 174-76 (2d Cir.
2015) (bank accounts considered “property” under 21 U.S.C. § 853);
United States v. Technodyne LLC, 753 F.3d 368, 373 (2d Cir. 2014) (19
bank accounts forfeited as “property . . . traceable to” criminal acts
under 18 U.S.C. § 981(a)(1)).
The Class argues that forfeiting a bank account as property
would render § 2467(a)(2)(B)’s separate reference to “a sum of
money” superfluous. But § 2467(a)(2)’s structure replicates the long-
established distinction between forfeiture of property and money
judgments, such as in Federal Rule of Criminal Procedure 32.2. Fed.
R. Crim. P. 32.2 advisory committee’s note to 2000 adoption (noting
that Rule 32.2(b)(1) “recognizes that there are different kinds of
forfeiture judgments in criminal cases,” those “for a sum of money”
and those for “a specific asset”). Here, the Sandiganbayan’s judgment
falls under § 2467(a)(2)(B) because it references “[a]ll assets,
properties, and funds belonging to Arelma, S.A.” Duran Sp.
App’x 183; see Duran Sp. App’x 168. Its reference to the amount of
money in the account as of 1983 serves only to identify the account; it
does not transform the judgment into a money judgment.
The Class next suggests that the Philippine judgment must be
expressed in terms of a “sum certain” under New York law in order
to be enforceable. Its winding path to this position is as follows:
§ 2467(d)(2) states that the “[p]rocess to enforce a judgment under this
section shall be in accordance with [Federal Rule of Civil
Procedure] 69(a),” 28 U.S.C. § 2467(d)(2), and Rule 69(a) states that
“[a] money judgment is enforced by a writ of execution,” and that that
procedure “must accord with the procedure of the state where the
court is located,” Fed. R. Civ. P. 69(a). Section 5302(a)(1) of the New
York Civil Practice Law and Rules, in turn, supplies the procedure for

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31
writs of execution in New York, allowing the execution of “a foreign
country judgment . . . of a sum of money.” N.Y. C.P.L.R. § 5302(a).
The Class suggests that this reference to “a sum of money” requires
that the foreign judgment be denoted in terms of a “sum certain” in
order to be enforceable via § 2467.
This argument confuses the means by which the Government
may obtain a judgment under § 2467 and those by which it can
execute said judgment on U.S.-based property. Even if the process for
executing a pre-existing federal judgment under § 2467 on New York
property is governed by C.P.L.R. § 5302, New York law has nothing
to do with the substantive standard for obtaining § 2467 relief—which
itself enforces a foreign judgment—in the first place. That standard
is supplied by § 2467 itself. See 28 U.S.C. § 2467(d).
B. Limitation as to Custodian
The Class next attempts to exploit a clerical error in the
Sandiganbayan’s judgment to nullify the Government’s application.
Because the Sandiganbayan’s decretal judgment refers to “an account
at Meryll [sic] Lynch Asset Management,” it argues, the judgment
should be limited to funds that were held at that institution. Duran
Br. 14; Duran Sp. App’x 168. The Sandiganbayan’s reference to
“Meryll [sic] Lynch Asset Management” is an apparent clerical error,
as the Assets were actually held by Merrill Lynch, Pierce, Fenner &
Smith, Inc., a different entity, before being transferred to New York
State in 2017. Duran Sp. App’x 168. This error was corrected by the
Philippine Supreme Court, which eliminated the Sandiganbayan’s
reference to a specific custodian in its 2012 affirmance. Duran Sp.
App’x 183.

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32
The Class only hints at this argument in its opening brief,
providing the relevant factual background in its “Statement of the
Case” section, before explicitly arguing the point for the first time in
its reply. Federal Rule of Appellate Procedure 28(a)(8) requires
appellants to state their contentions in their opening brief. Fed. R.
App. P. 28(a)(8)(A). “[A]rguments not raised in an appellant’s
opening brief, but only in his reply brief, are not properly before an
appellate court.” McCarthy v. SEC, 406 F.3d 179, 186 (2d Cir. 2005)
(also observing that “[t]o the extent that an unexpressed challenge . . .
may have been hidden between the lines of petitioner’s brief, it is not
our obligation to ferret out a party’s arguments”). This argument is
abandoned; we decline to entertain it.
VI. Roxas’s Standing
Roxas challenges the district court’s grant of summary
judgment against her on the grounds that she lacked Article III
standing to contest the enforcement of the Philippine Judgment. The
district court held that while Roxas had a cognizable interest in the
proceeds of the Yamashita Treasure, she failed to show that this
interest translated to one in the Arelma Assets. Arelma III, 2023 WL
6449240, at *11. We agree with the district court.
A. Applicable Law
Article III of the Constitution limits federal court jurisdiction to
“Cases and Controversies.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 559
(1992). Standing gives teeth to this limitation: it “help[s] ensure” that
the party bringing suit “has such a personal stake in the outcome of
the controversy as to warrant [its] invocation of federal-court
jurisdiction.” Murthy v. Missouri, 603 U.S. 43, 57 (2024). An intervenor
as of right like Roxas “must have Article III standing in order to

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pursue relief that is different from that which is sought by a party
with standing.” Town of Chester v. Laroe Ests., Inc., 581 U.S. 433, 440
(2017). On summary judgment, a party must establish standing “by
affidavit or other evidence specific facts” demonstrating “a genuine
issue regarding standing.” Lugo v. City of Troy, 114 F.4th 80, 88 (2d
Cir. 2024).
The standing inquiry for forfeiture claimants is two pronged.
“The nature of a claimant’s asserted property interest is defined by
the law of the State– or . . . nation– in which the interest arose,” while
“federal law determines the effect of that interest on the claimant’s
right to bring a claim.” United States v. All Assets Held at Bank Julius,
480 F. Supp. 3d 1, 13 (D.D.C. 2020) (collecting cases); United States v.
U.S. Currency, $81,000.00, 189 F.3d 28, 33 (1st Cir. 1999) (holding
same). While “an owner of property seized in a forfeiture action will
normally have standing,” as will parties who possess the property or
have a “financial stake” in it, the ultimate question is whether this
interest is such that the property’s forfeiture would create “an injury
that can be redressed at least in part by” its return. Cambio Exacto, 166
F.3d at 527-28. Because forfeiture claimants do not invoke federal
jurisdiction in the same way as a traditional civil plaintiff, but merely
“ensure that the government is put to its proof” regarding its claim,
we have characterized the applicable standing inquiry as “truly
threshold only,” requiring only a “facially colorable interest” in the
proceedings. United States v. $557,933.89, More or Less, in U.S. Funds,
287 F.3d 66, 78-79 (2d Cir. 2002) (explaining that claimants need not
“ultimately prove[] the existence of” their claimed interest). That
reasoning applies equally here, where the Government seeks to
enforce a foreign forfeiture judgment under § 2467, and Roxas has
intervened as a respondent only to oppose enforcement. See 28 U.S.C.

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§ 2467(c)(2)(A) (“the defendant or another person or entity affected by
the forfeiture . . . shall be the respondent” in § 2467 actions).
We proceed to identify Roxas’s interest in the Assets under
state law and assess whether this interest is sufficient for standing
under the above-stated principles of federal common law.
B. Roxas’s Interest in the Assets under New York Law
Roxas asserts an interest in the Arelma Assets by way of Roger
Roxas’s former ownership of portions of the Yamashita Treasure that
were stolen by Marcos.7 She contends that Roger Roxas had a
continued ownership interest in the proceeds of the treasure under
New York and Philippine law and that these proceeds formed part of
Marcos’s $2 million Arelma deposit in 1972. The Government does
not dispute Roxas’s ownership of proceeds of the portion of the
treasure stolen from Roger Roxas by Marcos. Instead, the parties
contest whether those proceeds are traceable to Marcos’s 1972
deposit, and therefore the Arelma Assets, such that Roxas has an
interest in them as well. Roxas claims an interest in the Assets under
both New York and Philippine law.8 We disregard Roxas’s argument
under Philippine law, which does not allege any link to the Assets,
and instead examine her claim that she has an interest under New
York law via a constructive trust.
Under New York law, “when property has been acquired in
such circumstances that the holder of the legal title may not in good
7 Roxas acknowledges that she cannot establish a sufficient interest in the Arelma
Assets solely based on her judgment against the Marcoses for the theft of the
treasure.
8 The Government does not respond to Roxas’s argument that either Philippine or
New York law could govern Roxas’s interest in the Arelma Assets.

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conscience retain the beneficial interest, equity converts him into a
trustee.” Simonds v. Simonds, 45 N.Y.2d 233, 241 (1978). More
generally, a “constructive trust is an equitable remedy” employed to
“prevent unjust enrichment.” Homapour v. Harounian, 182 A.D.3d 426,
427 (1st Dep’t 2020). Beneficiaries of a constructive trust have
Article III standing to contest forfeiture of the trust property. Torres v.
$36,256.80 U.S. Currency, 25 F.3d 1154, 1158-60 (2d Cir. 1994).
“[B]efore a constructive trust may be imposed, a claimant to a
wrongdoer’s property must trace his own property into a product in
the hands of the wrongdoer.” United States v. Benitez, 779 F.2d 135,
140 (2d Cir. 1985). The New York Court of Appeals has held that the
“inability to trace plaintiff’s equitable rights precisely should not
require that they not be recognized, much as in the instance of
damages difficult to prove,” Simonds, 45 N.Y.2d at 240, and so courts
should “relax the tracing requirement in exceptional circumstances,”
Rogers v. Rogers, 63 N.Y.2d 582, 587 (1984); it has not, however,
explained which circumstances qualify as exceptional.
Despite the lack of guidance from New York courts, the
circumstances here are “exceptional” by any reasonable measure. Id.
The Assets have passed through several people, corporations,
countries, and decades, and are undoubtedly the proceeds of
malfeasance. We therefore opt to relax, but not eliminate, the tracing
requirement. The same conclusion was reached by a district court in
an interpleader action over other property purchased with funds
misappropriated by the Marcoses, in which Roxas and the Republic
participated. Dist. Att’y of N.Y. Cnty. v. Republic of the Philippines
(DANY), 307 F. Supp 3d 171, 208-09 (S.D.N.Y. 2018). DANY denied
the Republic summary judgment on Roxas’s attempt to recover the
property under a theory of constructive trust under New York law.
Id. at 205-06, 208-09. Given Marcos’s efforts to hide his crimes and the

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decades that had elapsed, it found “exceptional circumstances”
warranting relaxed tracing. Id. at 208-09 (citing Rogers, 63 N.Y.2d at
587). Though not binding, we find the DANY court’s reasoning
persuasive and proceed to evaluate Roxas’s evidence on summary
judgment under relaxed tracing.
1. Roxas’s Evidence
To show tracing, Roxas relies on two pieces of evidence and the
facts affirmed by the Hawaii Supreme Court in the Hawaii Tort
Action, Roxas v. Marcos, 89 Haw. 91 (1998). Both parties assume the
veracity of the facts affirmed in that case. Roxas primarily relies on
deposition testimony from John Buckley, a now-deceased forensic
accountant, taken during the Interpleader Action. Buckley had
examined Marcos’s tax returns, documents found in the Philippine
presidential palace, and other financial records. Roxas Br. 30; Roxas
App’x 2555. He testified that the funds constituting the Arelma
deposit had been wired to a Swiss shell foundation under Marcos’s
pseudonym before being “transferred to Panama” and “deposited
with Merrill Lynch.” Roxas App’x at 2556. Buckley could not
remember, however, whether he had “traced the source of the two
million dollars” before their arrival in Switzerland. Id. at 2568.
Buckley stated that “the most probable source” for those funds
originally was “the treasure that was uncovered in the Philippines.”
Id. at 2565-66, 2568. He reasoned that because Marcos’s tax returns
did not reflect comparable legitimate wealth, and because he
“doubt[ed] that [Marcos] would have generated that much through
legitimate activity,” the source of the deposit must have been
illegitimate. Id. at 2566. Buckley was “not sure” whether there could
have been an illegitimate source other than the treasure. Id. at 2568.
He named as other options “reparations that the Philippines received

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37
from Japan” and “various aid money that the U.S. sent to the
Philippines,” but cautioned that these sources would be “more closely
scrutinized by the Philippine government” and “small in comparison
to the treasure.” Id. Buckley noted, however, that he “was not asked
to investigate the Japanese treasure” and had not “seen sufficient
documentation” to “reliably conclude that the source of the two
million dollars” was illicit. Id. at 2569-70.
Roxas also points to the opening statement of Gerry Spence, an
attorney for Marcos’s widow Imelda Marcos, during a 1990 trial in
New York. Spence claimed that a witness would testify “that part of
[Marcos’s] wealth came from the discovery of what is called the
Yamashita gold hoard.” Roxas App’x 2242.
2. Admissibility
The parties contest the admissibility of the Buckley testimony
and Spence’s statements. The district court found the Buckley
testimony inadmissible and, in any event, unpersuasive as to Roxas’s
interest in the Assets. Arelma III, 2023 WL 6449240, at *8-9. It declined
to rule on the admissibility of the Spence statements, holding that they
were unpersuasive regardless. Id. at *9. We agree with the district
court that Spence’s statement is unpersuasive. The statement echoes
Buckley’s assertions that Marcos took and sold gold, including from
the treasure, but provides no details as to specific gold sales or their
timing, nor does it cast doubt on other potential sources of the Assets.
We therefore review only the admissibility of the Buckley testimony.
“[O]nly admissible evidence need be considered by the trial
court in ruling on a motion for summary judgment, and a district
court deciding a summary judgment motion has broad discretion in
choosing whether to admit evidence.” Picard, 49 F.4th at 181. The

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district court found the Buckley testimony inadmissible on three
independent grounds: it (1) did not qualify under the exception to the
hearsay rule provided by Federal Rule of Civil Procedure 32(a)(8);
(2) was expert testimony that Roxas failed to disclose; and (3) was
speculative. Arelma III, 2023 WL 6449240, at *8-9. We conclude that
the district court’s exclusion of the testimony was justified by its
speculative nature and need not address its other grounds for
exclusion.
“An expert’s opinions that are without factual basis and are
based on speculation or conjecture are . . . inappropriate material for
consideration on a motion for summary judgment.” Major League
Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008); see
Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (per
curiam) (“expert testimony should be excluded if it is speculative or
conjectural”).9 While Buckley examined transfers of the $2 million
between shell corporations and bank accounts prior to its deposit in
New York, he could not remember whether he had traced it before its
arrival in a Swiss bank account. Roxas App’x at 2568. When asked
specifically whether he believed that the Arelma Assets were “stolen
from others,” Buckley replied “I don’t know that . . . . I think there’s a
presumption that that money came from other sources, and the most
probable source is the treasure.” Id. at 2565. Crucially, Buckley
admitted that he “was not asked to trace gold or the treasure,” id. at
2568; instead, his conclusion as to the Assets’ likely source was based
on (1) the lack of legitimate income reflected on Marcos’s tax
documents; and (2) the relative difficulty that Buckley presumed that
9 Roxas argues that she sought to use Buckley as a fact witness instead of as an
expert. Even assuming that Buckley could be considered a fact witness in relation
to the financial documents he personally reviewed, he admitted that his
conclusions as to the Assets’ likely source was not based on this review.

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Marcos would face in stealing other large sums, such as foreign aid
and reparations. Id. at 2565-68. At best, Buckley’s conclusion was a
negative inference based on educated speculation. The district court
did not abuse its discretion in finding it conjectural.
3. Analysis of Roxas’s Remaining Evidence
Roxas’s remaining evidence fails, even under a relaxed tracing
standard, to create a genuine dispute as to whether the Assets are
traceable to the portion of the treasure that was stolen from Roger
Roxas. Roxas points out that the 1971 raid in which Marcos stole the
treasure was the first judicially confirmed incident of Marcos seizing
property from a citizen, and that the deposit occurred shortly after
Marcos first declared martial law, making it less likely that the deposit
included different ill-gotten funds. She also points to the gap of some
eighteen months between the treasure’s theft and the Arelma deposit.
But given the scale of Marcos’s thefts, the general timing of his
criminal activity alone, without any evidence casting doubt on
alternative potential sources for the deposit, is not enough to show
that the Arelma deposit stemmed from any specific incident.
* * *
Because we hold that Roxas lacked standing to assert any
affirmative defenses, we need not address whether the district court
properly denied her motion to amend her answer to add further
defenses.
V. GBC’s Motion to Intervene
The district court rejected GBC’s request to intervene on
January 14, 2020. To be granted intervention under Federal Rule of
Civil Procedure 24, an applicant must, among other things, “show

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that the[ir] interest is not protected adequately by the parties to the
action.” Floyd v. City of New York, 770 F.3d 1051, 1057 (2d Cir. 2014)
(per curiam). The district court denied GBC intervention on multiple
grounds, including that its interests would be adequately represented
by Roxas, as they share counsel and are otherwise affiliated.
The district court did not abuse its discretion. A prospective
intervenor’s burden in demonstrating that their interest is not
adequately protected is “minimal,” but becomes more burdensome
“where the putative intervenor and a named party have the same
ultimate objective.” Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d
171, 179 (2d Cir. 2001). GBC and Roxas have the same objective here:
to prevent enforcement of the Philippine Judgment. Roxas argues
that this common interest did not exist at the time the district court
weighed GBC’s intervention request because Roxas had not yet been
granted intervention as a named party. But the district court ruled on
GBC’s motion only after granting Roxas respondent status, which it
made retroactive to 2016. Roxas Sp. App’x 88-89. And Roxas does
not explain how GBC’s exclusion substantively impacts its interests.
Finally, even though Roxas is no longer in the case for lack of standing
and therefore may not be said to advance a shared objective, the
district court also found that GBC lacked Article III standing for the
same reason as Roxas—its inability to connect any claim it had to the
treasure with one to the Assets. We agree with the district court.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.

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