Maximo HILAO, Class Plaintiffs, Plaintiff-Appellee, v. ESTATE OF Ferdinand MARCOS, Defendant-Appellant

The Estate of Ferdinand E. Marcos appeals from a final judgment entered against it in a class-action suit after a trifurcated jury trial on the damage claims brought by a class of Philippine nationals (hereinafter collectively referred to as "Hilao") who were victims of torture, "disappearance", or summary execution under the regime of Ferdinand E. Marcos. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and we affirm.

This case arises from human-rights abuses--specifically, torture, summary execution, and "disappearance"--committed by the Philippine military and paramilitary forces under the command of Ferdinand E. Marcos during his nearly 14-year rule of the Philippines. The details of Marcos' regime and the human-rights abuses have been set forth by the district court at 910 F.Supp. 1460, 1462-63 (D.Haw.1995).

Shortly after Marcos arrived in the United States in 1986 after fleeing the Philippines, he was served with complaints by a number of parties seeking damages for human-rights abuses committed against them or their decedents. District courts in Hawai'i and California dismissed the complaints on the grounds that the "act of state" doctrine rendered the cases nonjusticiable. This court reversed in consolidated appeals. Trajano v. Marcos, 878 F.2d 1439 (9th Cir.1989). The Judicial Panel on Multidistrict Litigation consolidated the various actions in the District of Hawai'i.

In 1991, the district court certified the Hilao case as a class action, defining the class as all civilian citizens of the Philippines who, between 1972 and 1986, were tortured, summarily executed, or "disappeared" by Philippine military or paramilitary groups; the class also included the survivors of deceased class members. Certain plaintiffs opted out of the class and continued, alongside the class action, to pursue their cases directly.

A default judgment was entered in 1991 against Marcos' daughter, Imee Marcos-Manotoc, upon one of the direct plaintiffs' complaints. That judgment was appealed to this court, which affirmed the district court in 1992, rejecting arguments that Marcos-Manotoc was entitled to foreign sovereign immunity and that the district court lacked jurisdiction under the Alien Tort Claims Act, 28 U.S.C. § 1350, and under Article III of the U.S. Constitution. Trajano v. Marcos (In re Estate of Ferdinand E. Marcos Human Rights Litigation), 978 F.2d 493 (9th Cir.1992) ("Estate I "), cert. denied, 508 U.S. 972, 113 S.Ct. 2960, 125 L.Ed.2d 661 (1993).

Marcos died during the pendency of the actions, and his wife Imelda Marcos and son Ferdinand R. Marcos, as his legal representatives, were substituted as defendants.

In November 1991, the district court issued a preliminary injunction that prohibited the Estate from transferring, dissipating, or encumbering any of its assets. The Estate appealed from the preliminary injunction, and this court affirmed, rejecting arguments on foreign sovereign immunity, on abatement of the action upon the death of Marcos, on the district court's lack of authority to enter the injunction, and on subject-matter jurisdiction and cause of action under the Alien Tort Claims Act. Hilao v. Marcos (In re Estate of Ferdinand E. Marcos Human Rights Litigation), 25 F.3d 1467 (9th Cir.1994) ("Estate II "), cert. denied, --- U.S. ----, 115 S.Ct. 934, 130 L.Ed.2d 879 (1995).1

The district court ordered issues of liability and damages tried separately. In September 1992, a jury trial was held on liability; after three days of deliberation, the jury reached verdicts against the Estate and for the class and for 22 direct plaintiffs and a verdict for the Estate and against one direct plaintiff. Judgment was entered and the preliminary injunction modified to take account of the verdict.

The district court then ordered the damage trial bifurcated into one trial on exemplary damages and one on compensatory damages. The court ordered that notice be given to the class members that they must file a proof-of-claim form in order to opt into the class. Notice was provided by mail to known claimants and by publication in the Philippines and the U.S.; over 10,000 forms were filed.

In February 1994, the same jury that had heard the liability phase of the trial considered whether to award exemplary damages. After two days of evidence and deliberations, the jury returned a verdict against the Estate in the amount of $1.2 billion.

The court appointed a special master to supervise proceedings related to the compensatory-damage phase of the trial in connection with the class. In January 1995, the jury reconvened a third time to consider compensatory damages. The compensatory-damage phase of the trial is explained in greater detail below. After seven days of trial and deliberation, the jury returned a compensatory-damage award for the class of over $766 million; after two further days of trial and deliberation, the jury returned compensatory-damage awards in favor of the direct plaintiffs.

On February 3, 1995, the district court entered final judgment in the class action suit. The Estate appeals from this judgment.

The district court exercised jurisdiction under the Alien Tort Claims Act, 28 U.S.C. § 1350. The existence of subject-matter jurisdiction is a question of law reviewed de novo. Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir.1995).

The Estate argues that this case does not "arise under" federal law for Article III purposes and therefore the federal courts cannot constitutionally exercise jurisdiction. This court has twice rejected these arguments in Estate I and Estate II. See 978 F.2d at 501-503, 25 F.3d at 1472-74. The published decisions in those cases are both the controlling law of the circuit and the law of this case. The Estate has presented no compelling arguments that the law has changed in the interim or that the two previous decisions of this court were "clearly erroneous and would work a manifest injustice". Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 407, 133 L.Ed.2d 325 (1995). We therefore decline to reconsider the Estate's arguments and instead follow the court's prior decisions as the law of the circuit and of the case.

The Estate also argues that the Alien Tort Claims Act does not apply to conduct that occurs abroad and that all of the acts on which Hilao's judgment is based occurred within the Philippines. Again, however, this court rejected the argument when the Estate made it in a prior appeal. See Estate I, 978 F.2d at 499-501 ("[S]ubject-matter jurisdiction was not inappropriately exercised under § 1350 even though the actions of Marcos-Manotoc which caused a fellow citizen to be the victim of official torture and murder occurred outside of the United States."). The Estate has offered no arguments for why we should not follow that decision as the law of the circuit and of the case, and we therefore decline to reconsider that decision.

The Estate argues that the district court erred in not subjecting Hilao's claims to a two-year statute of limitations. The question of the appropriate statute of limitations is a question of law that we review de novo. Mendez v. Ishikawajima-Harima Heavy Indus. Co., 52 F.3d 799, 800 (9th Cir.1995).

The Alien Tort Claims Act does not contain a statute of limitations. The Estate argues, therefore, that the courts should follow the general practice of adopting an analogous state statute of limitations if such adoption would not be inconsistent with federal law or policy. Because the Alien Tort Claims Act involves, as its title suggests, torts, and because the case was heard in the District of Hawai'i, the Estate argues that Hawai'i's two-year statute of limitations for tort claims should apply. The Estate argues alternatively that the appropriate statute of limitations might be that imposed by Philippine law, which appears to require that claims for personal injury arising out the exercise by a public officer of authority arising from martial law be brought within one year. Philippine Civil Code, Art. 1146. Hilao argues that the ten-year statute of limitations in the Torture Victim Protection Act, 28 U.S.C. § 1350 (note, § 2(c)) (the TVPA), is the most closely analogous federal statue of limitations, and cites to a recent district court case applying that limit to claims under both the Alien Tort Claims Act and the TVPA. See Xuncax v. Gramajo, 886 F.Supp. 162, 192 (D.Mass.1995). Alternatively, Hilao points to the conclusion in Estate II that a claim under the Alien Tort Claims Act is closely analogous to a violation of 42 U.S.C. § 1983, 25 F.3d at 1476 (citing Forti v. Suarez-Mason, 672 F.Supp. 1531, 1548-50 (N.D.Cal.1987)), and argues that the jurisprudence on statutes of limitations under § 1983 should govern.

We need not decide which statute of limitations applies because Hilao's suit was timely under any of the proposed statutes when equitable tolling principles are applied. The Senate Report on the TVPA states that the ten-year statute is subject to equitable tolling, including for periods in which the defendant is absent from the jurisdiction or immune from lawsuits and for periods in which the plaintiff is imprisoned or incapacitated. S.Rep. No. 249, 102d Cong., 1st Sess., at 11 (1991). Section 1983 generally borrows its statute of limitations from state laws, Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975), and incorporates equitable-tolling principles of either state or federal law in cases where a defendant's wrongful conduct, or extraordinary circumstances outside a plaintiff's control, prevented a plaintiff from timely asserting a claim. See, e.g., Hardin v. Straub, 490 U.S. 536, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989); Bianchi v. Bellingham Police Dept., 909 F.2d 1316 (9th Cir.1990); Williams v. Walsh, 558 F.2d 667 (2d Cir.1977). Hawai'i courts have allowed equitable tolling in similar situations. See, e.g., Cleghorn v. Bishop, 3 Haw. 483, 483-84 (1873) (statute of limitations tolled during lifetime of King Kamehameha V because he was immune from suit; after his death, claim could be brought against estate).

Any action against Marcos for torture, "disappearance", or summary execution was tolled during the time Marcos was president. A Philippine attorney who testified as an expert witness at trial stated that in 1981 Marcos engineered the passage of a constitutional amendment granting him, and others acting at his direction, immunity from suit during his tenure in office. Another expert witness testified that many victims of torture in the Philippines did not report the human-rights abuses they suffered out of intimidation and fear of reprisals; this fear seems particularly understandable in light of testimony on the suspension of habeas corpus between 1972 and 1981, and on the effective dependence of the judiciary on Marcos. Given these extraordinary conditions, any claims against Marcos for injury from torture, "disappearance", or summary execution were tolled until he left office in February 1986. The Estate appears to concede that the claims in this suit were asserted in March 1986. Thus, the filing of this action was timely under any of the asserted statutes of limitations.

The Estate argues that Hilao's cause of action abated upon the death of Marcos because the federal common-law rule is that an action for an intentional tort abates upon the death of either party. See Heikkila v. Barber, 308 F.2d 558, 560-61 (9th Cir.1962). This court has previously rejected this argument in Estate II, analogizing Hilao's cause of action to claims for violation of the Eighth Amendment right to freedom from cruel and unusual punishment or of 42 U.S.C. § 1983, neither of which abates upon the death of the defendant. 25 F.3d at 1476. We reject the Estate's argument that that decision was clearly erroneous and simply follow Estate II as the law of the circuit and of the case on the issue of abatement.

A district court's decision to certify a proposed class is reviewed for an abuse of discretion. Barber v. Hawaii, 42 F.3d 1185, 1197 (9th Cir.1994).

The Estate challenges the certification of the class because, it argues, the class does not meet the requirement of Rule 23 that a proposed class be made up of people to whom effective notice of the pending action can be given and who will be bound by any judgment entered.

All current civilian citizens of the Republic of the Philippines, their heirs and beneficiaries, who between 1972 and 1986 were tortured, summarily executed or disappeared while in the custody of military or paramilitary groups.

The Estate does not allege that the certified class fails to meet any of the express prerequisites specified in Federal Rule of Civil Procedure 23(a); its only objection appears to be that the class "refers to the citizens of an entire nation ". The court's definition of the class, however, refers only to those Philippines citizens who were (or whose decedents were) tortured, summarily executed or "disappeared" while in military custody during a 14-year period. This is not a class, as the Estate contends, the size of which is almost unlimited. Indeed, as Hilao points out, at the time the class was certified it was estimated, on the basis of documentation maintained by human-rights organizations, that the size of the class was 10,000 people, and following the trial on liability a total of 10,059 detailed and verified claim forms were received. In the end, 9,539 of the claims were found valid and awarded damages in the subsequent stages of the trial. The district court did not abuse its discretion in certifying the class as defined.

The Estate argues that the claims of the Hilao representatives are not typical of the claims of the class as required by Rule 23(a)(3) because there are significant individual questions in each case related to (1) the statute of limitations, (2) whether any compensable injury exists, (3) whether any injury was caused by Marcos' acts or omissions or was justifiable.

As to the statute of limitations, as discussed above, any applicable statute was tolled during the period that Marcos was in office in the Philippines, so there are no relevant individual statute-of-limitations issues: the applicable statute began to run at the earliest not when human-rights abuses were inflicted on each particular class member but in February 1986 when Marcos fled to Hawai'i. As to whether any compensable injury exists for a particular class member, that question is virtually identical in each case. Did the victim experience pain and suffering from the torture, summary execution, or "disappearance"? In the case of those who were executed or "disappeared", did their survivors suffer from the loss of the victim's earnings? As to whether any particular injury was caused by Marcos' act or omission, this question was resolved by the liability finding, discussed below, that Marcos was liable for any act of torture, summary execution, or "disappearance" committed by the military or paramilitary forces on his orders or with his knowledge. The district court's decision to certify the class was not an abuse of discretion.2IV. Evidentiary Challenges

The Estate challenges the district court's admission of statements made by torturers to their victims and of various documents. Evidentiary rulings are reviewed only for an abuse of discretion and should not be reversed absent some prejudice. City of Long Beach v. Standard Oil Co., 46 F.3d 929, 936 (9th Cir.1995).

The Estate challenges the district court's admission under Federal Rule of Evidence 801(d)(2)(D) of statements made by members of the Philippine military or paramilitary forces to the plaintiffs or witnesses in this case. This evidence was used to show that those who committed the abuses were in the military and that Marcos either ordered specific acts taken by the military/paramilitary forces or knew of them yet failed to take effective measures to prevent them.3

Section 801(d)(2)(D) provides that "A statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship". The existence of an agency relationship is a question for the judge under Rule 104(a) and must be proved by substantial evidence but not by a preponderance of the evidence. United States v. Flores, 679 F.2d 173, 178 (9th Cir.1982), cert. denied, 459 U.S. 1148, 103 S.Ct. 791, 74 L.Ed.2d 996 (1983).

The Estate challenges the district court's determination that an agency relationship existed between Marcos and the torturers on two grounds. First, it argues that the statements made by members of the military forces to their victims cannot be used in determining whether an agency relationship existed between the person making the statement and Marcos. The Estate cites to United States v. Jones, 766 F.2d 412, 415 (9th Cir.1985), for the proposition that "[t]he fact of agency cannot be proven by the alleged agent's extrajudicial statements". After Jones, however, the Supreme Court decided in Bourjaily v. United States, 483 U.S. 171, 177-81, 107 S.Ct. 2775, 2779-82, 97 L.Ed.2d 144 (1987), that a court may consider an out-of-court statement in making its Rule 104(a) determination of the admissibility of a statement under Rule 801(d)(2)(E). This court, relying on Bourjaily, has held that "out-of-court statements may themselves be considered in determining the preliminary question, under Rule 801(d)(2)(D), of the scope of [the agent's] employment duties". Arizona v. Standard Oil Co. of California (In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation), 906 F.2d 432, 458 (9th Cir.1990), cert. denied, 500 U.S. 959, 111 S.Ct. 2274, 114 L.Ed.2d 725 (1991). It therefore appears that Jones is no longer a correct statement of the law and the district court did not abuse its discretion in relying on the military members' statements to their victims in determining that an agency relationship existed between Marcos and the individuals who tortured the plaintiffs or their decedents.

The Estate also challenges the district court's reliance, in deciding to admit the evidence under Rule 801(d)(2)(D), on expert testimony, introduced by Hilao, concerning the structure, organization, and control of the Philippine military, security, and intelligence forces; Marcos' relationship thereto; and the effect of Marcos' presidential decrees. The Estate challenges this testimony because the experts did not testify as to the actual membership of particular individuals in those military or paramilitary organizations. The district court was clearly entitled, however, to rely on this testimony, in connection with the statements reported by the torture victims as to the unit affiliations of various perpetrators of torture, in determining whether an agency relationship existed in order to make the statements admissible.

The district court did not abuse its discretion in admitting the statements challenged by the Estate.

The Estate challenges the admission of "many hearsay statements" on the basis of the residual exception contained in Rule 803(24). The only citation the Estate provides for the hearsay statements it is challenging is to the district court's ruling. In that ruling, the district court said

All right. So you have in mind, the rulings made by the Court as to any conversations by military with any of the plaintiffs or witnesses, they are admitted pursuant to 801(d)(2)(D), since I think the evidence is clear at this point that Mr. Marcos was the commander in chief in absolute control of the military, and/or 803.24 deem to be--not 803.24 deem to be hearsay.

Thus, it is clear that the district court relied on Rule 803(24) only as an alternative ground for the admission of the statements of the torturers to their victims or witnesses. Because we have already determined that the district court did not abuse its discretion in admitting those statements under Rule 801(d)(2)(D), we decline to reach the Estate's Rule 803(24) challenge.

The Estate challenges the admission under Rule 803(8) of various Presidential Commitment Orders (PCOs); Arrest, Search and Seizure Orders (ASSOs); and Preventive Detention Actions (PDAs) signed by Marcos. Rule 803(8) allows the admission of "[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report ..., or (C) ... factual findings resulting from an investigation made pursuant to authority granted by law ...".

The Estate alleges that the challenged documents relate to various detainees, not to the activities of any office or agency within the Philippines. It is pellucidly clear, however, that the district court did not abuse its discretion in holding that letters from President Marcos to the Minister of National Defense approving requests for PCOs and PDAs are records "setting forth ... the activities of the office" of the President.

The Estate also challenges the admission of the documents under Rule 803(24). As it did with the hearsay statements discussed above, the district court admitted the documents on a number of alternative grounds, including Rule 803(8) and Rule 803(24). Because we affirm the admission of the documents on the basis of Rule 803(8), we decline to reach the Estate's 803(24) challenge.

A claim that the trial court misstated the elements that must be proven at trial is a question of law to be reviewed de novo. Oglesby v. Southern Pacific Transportation Co., 6 F.3d 603, 606 (9th Cir.1993).

The district court instructed the jury that it could find the Estate liable if it found either that (1) Marcos directed, ordered, conspired with, or aided the military in torture, summary execution, and "disappearance" or (2) if Marcos knew of such conduct by the military and failed to use his power to prevent it. The Estate challenges the latter basis for liability, arguing that liability is not imposed under such conditions in analogous U.S. law claims, that "no international law decision ... has ever imposed liability upon a foreign official" on those grounds, and that the district court essentially made the Estate liable on a respondeat superior theory that is inapplicable in intentional torts.

The principle of "command responsibility" that holds a superior responsible for the actions of subordinates appears to be well accepted in U.S. and international law in connection with acts committed in wartime, as the Supreme Court's opinion in In Re Yamashita indicates:

[T]he gist of the charge is an unlawful breach of duty by petitioner as an army commander to control the operations of the members of his command by 'permitting them to commit' the extensive and widespread atrocities specified.... [T]he law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.... [P]rovisions [of international law] plainly imposed on petitioner, who at the time specified was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized[,] by our own military tribunals.

In re Yamashita, 327 U.S. 1, 14-16, 66 S.Ct. 340, 347-48, 90 L.Ed. 499 (1946). See also Art. 86(2), Protocol to the Geneva Conventions of August 12, 1949, opened for signature December 12, 1977, reprinted in 16 I.L.M. 1391, 1429 (1977) ("The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal [or] disciplinary responsibility ... if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach."); Art. 7(3), Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, 32 I.L.M. 1159, 1192-94 (1993) ("The fact that any [act of genocide, crime against humanity, or violation of the Geneva Conventions or of the laws or customs of war] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."); see generally Lt. Cmdr. Weston D. Burnett, Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra, 107 Mil.L.J. 71 (1985).

The United States has moved toward recognizing similar "command responsibility" for torture that occurs in peacetime, perhaps because the goal of international law regarding the treatment of noncombatants in wartime--"to protect civilian populations and prisoners ... from brutality", Yamashita, 327 U.S. at 15, 66 S.Ct. at 347-48--is similar to the goal of international human-rights law. This move is evidenced in the legislative history of the TVPA:

[A] higher official need not have personally performed or ordered the abuses in order to be held liable. Under international law, responsibility for torture, summary execution, or disappearances extends beyond the person or persons who actually committed those acts--anyone with higher authority who authorized, tolerated or knowingly ignored those acts is liable for them.

S.Rep. No. 249, 102d Cong., 1st Sess. at 9 (1991) (footnote omitted) (citing Forti and In re Yamashita ). At least one district court has recognized such liability. Xuncax, 886 F.Supp. at 171-73, 174-75 ("Gramajo was aware of and supported widespread acts of brutality committed by personnel under his command resulting in thousands of civilian deaths.... Gramajo refused to act to prevent such atrocities." "... Gramajo may be held liable for the acts of members of the military forces under his command."). See also Paul v. Avril, 901 F.Supp. 330, 335 (S.D.Fla.1994) ("Defendant Avril [former military ruler of Haiti] bears personal responsibility for a systematic pattern of egregious human rights abuses in Haiti during his military rule ... He also bears personal responsibility for the interrogation and torture of each of the plaintiffs ... All of the soldiers and officers in the Haitian military responsible for the arbitrary detention and torture of plaintiffs were employees, representatives, or agents of defendant Avril, acting under his instructions, authority, and control and acting within the scope of authority granted by him."). The conduct at issue in this case involved violations by members of military or paramilitary forces of a jus cogens norm of international law parallel to the types of war crimes for which international law imposes command responsibility. Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-717 (9th Cir.1992) (prohibition against torture has attained status of jus cogens norm from which no derogation is permitted). In these circumstances, the district court's instruction on the second category of liability was proper under international law.

The Estate challenges three aspects of the district court's jury instructions on the basis of the TVPA.4 The TVPA creates a cause of action against one who commits torture or extrajudicial killing and was intended to codify judicial decisions recognizing such a cause of action under the Alien Tort Claims Act. 28 U.S.C. § 1350, note; S.Rep. No. 249, 102d Cong., 1st Sess., at 3-5 (1991); H.R.Rep. No. 367, 102d Cong., 1st Sess., at 3-4 (1991).

The Estate argues that the jury was not properly instructed because it was not required to find that each plaintiff had met the exhaustion requirement of the TVPA. The Act provides that "[a] court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred". 28 U.S.C. § 1350, note, § 2(b). The language of this provision, referring as it does to the court's authority to hear a claim, demonstrates that, contrary to the Estate's suggestion, the issue of exhaustion is one for the court, not for the jury. The Estate was therefore not entitled to the instruction it seeks.5

The Estate next argues that the district court failed to instruct the jury that it could only find the Estate liable for acts actually committed by Ferdinand Marcos. It points out that the Act imposes liability on any "individual who ... subjects an individual to torture ... or ... subjects an individual to extrajudicial killing". 28 U.S.C. § 1350, note, §§ 2(a)(1), (2). Thus, the Estate concludes, the jury should have been instructed that it could not find liability under the TVPA for acts of torture or summary execution of which Marcos was aware and failed to prevent.

As discussed above, however, the Senate Report makes clear that in enacting the TVPA, Congress intended to impose exactly the type of liability that the jury instructions allowed in this case:

[A] higher official need not have personally performed or ordered the abuses in order to be held liable. [R]esponsibility for torture, summary execution, or disappearances extends beyond the person who actually committed those acts--anyone with higher authority who authorized, tolerated or knowingly ignored those acts is liable for them.

S.Rep. No. 249 at 9. Thus, the district court's instructions on liability were proper under the TVPA.

Finally, the Estate argues that the district court should have instructed the jury on the ten-year statute of limitations in the TVPA. The application of a statute of limitations, however, is a question of law for the court, not for the jury. Washington v. Garrett, 10 F.3d 1421, 1429 (9th Cir.1993). Thus, the Estate was not entitled to a jury instruction on the TVPA's statute of limitations. As discussed above, the district court did not err in allowing Hilao's action to proceed despite the TVPA's ten-year limit because the limitation is subject to equitable tolling.

The Estate challenges an instruction given by the district court in the liability stage of the trial:

To determine the Estate of the late President Marcos is liable to any plaintiff for wrong alleged by the plaintiffs, you must determine whether the injury alleged by a plaintiff has been shown by a preponderance of the evidence to have been caused by reason of a person being taken into custody by an order of Ferdinand Marcos or under his authority.

We review the formulation of jury instructions in a civil trial for an abuse of discretion. Oglesby, 6 F.3d at 606. The Estate argues that under this instruction, the jury might have found it liable for a plaintiff's injuries only on the basis of the plaintiff being taken into custody on Marcos' authori