                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             OCT 24 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

In re: ESTATE OF FERDINAND E.                    No. 11-15487
MARCOS HUMAN RIGHTS
LITIGATION,                                      D.C. No. 1:03-cv-11111-MLR


CELSA HILAO; ADORA FAYE DE                       MEMORANDUM*
VERA,

              Plaintiffs - Appellees,

  v.

THE ESTATE OF FERDINAND E.
MARCOS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Hawaii
                    Manuel L. Real, District Judge, Presiding

                     Argued and Submitted October 15, 2012
                               Honolulu, Hawaii



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


                                          1
Before: REINHARDT, THOMAS, and PAEZ, Circuit Judges.

      The Estate of Ferdinand E. Marcos (hereinafter “Marcos”) appeals a

$353,600,000 contempt judgment awarded to a class of human rights victims

(hereinafter “Hilao”). Marcos argues on appeal that, because the underlying

damages judgment expired in 20051 and because the $100,000 per day contempt

sanction upon which the contempt judgment was based was coercive in nature,2 the

contempt judgment is unenforceable. We review findings of civil contempt and the

amount of a civil contempt sanction for abuse of discretion. FTC v. Affordable

Media, LLC, 179 F.3d 1228, 1229 (9th Cir. 1999). Underlying factual findings are

reviewed for clear error. Id. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      Marcos’s argument is likely waived. The argument that Marcos made in the

district court was that the contempt judgment was unenforceable under state law,

because it had expired under Haw. Rev. Stat. § 657-5. The district court rejected

this argument, and Marcos did not appeal that determination, although it did appeal



      1
       The underlying damages judgment in an action against Marcos by Hilao
expired in 2005 pursuant to Hawaii’s ten-year statute of limitations for civil
judgments. Haw. Rev. Stat. § 657-5.
      2
      The contempt judgment was issued in 2011, and it covered the failure of
Marcos to pay the court’s contempt sanction from 1995 to 2005.

                                         2
the decision. Marcos now argues on appeal that the contempt judgment is

unenforceable under federal law, because coercive sanctions are unenforceable

when the underlying damages judgment has expired. This is a new argument, and

we “do[] not consider an issue not passed upon below.” Dodd v. Hood River Cnty.,

59 F.3d 852, 863 (9th Cir. 1995) (internal quotation and citation omitted). Marcos

contends that it “obliquely” made this argument in its December 2010 status report

statement. We agree that this reference was oblique; it was, in fact, a single

sentence of a single paragraph of a five-page memorandum to the district court.

Moreover, the paragraph lacked legal citation and began with “Put another way,”

suggesting that Marcos was simply restating the state law argument in different

terms. Thus, Marcos did not raise this argument “sufficiently for the trial court to

rule on it.” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992)

(quoting In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989)).

      Independent of waiver, we reject Marcos’ argument on the merits. Even if

Marcos is correct that the contempt sanction was coercive, it was also clearly

compensatory.3 The district court ordered that the $100,000 per day sanction be

paid to the plaintiff, Hilao, not the court. See Falstaff Brewing Corp. v. Miller



      3
       Marcos has conceded that a compensatory contempt judgment is
enforceable even when the underlying damages judgment has expired.

                                          3
Brewing Co., 702 F.2d 770, 779-80 (9th Cir. 1983). Additionally, the district court

explained that the $100,000 per day amount was “necessary and appropriate”

because Marcos’s contumacious conduct was causing direct harm to Hilao,

including $55,000 per day from lost interest and additional losses due to Marcos’s

dilatory tactics. Because a contempt sanction can be both coercive and

compensatory, U.S. v. United Mine Workers of America, 330 U.S. 258, 303-04

(1947); Union of Prof. Airmen v. Alaska Aeronautical Ind., Inc., 625 F.2d 881, 883

(9th Cir. 1979), and because no party has asked the court to allocate the $100,000

per day amount between compensatory and coercive components, the district court

did not abuse its discretion in treating the entirety of the $100,000 per day sanction

as compensatory.

      In view of the above, we hold that the $353,600,000 contempt judgment is

properly enforceable by Hilao.

      AFFIRMED.




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