Amicus Curiae Brief — Bank Markazi v. Peterson, 135 S. Ct. 1753 (2015) (No. 14-770)

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DEC 23 2015

NO. 14-770 Lorsicg oF THE CLERK |

Hn the

Supreme Court of the United States

BANK MARKAZI, THE CENTRAL BANK OF IRAN

Petitioner,

v.

DEBORAH D. PETERSON, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF FOR AMICUS CURIAE FOUNDATION

FOR DEFENSE OF DEMOCRACIES

IN SUPPORT OF RESPONDENTS

ERIN E. MURPHY

Counsel of Record

MICHAEL D. LIEBERMAN

BANCROFT PLLC

500 New Jersey Avenue, NW

Seventh Floor

Washington, DC 20001

(202) 234-0090

emurphy@bancroftplic.com

Counsel for Amicus Curiae

December 23, 2015

car a Sn cc SA EC SESSA LEE IS SETS

TABLE OF CONTENTS

SE EF TI cccccceccccccccescssccccssecesescscoese il

STATEMENT OF INTEREST .........................-seceeeees l

SUMMARY OF ARGUMENT ...................cccccceeeeeesees 2

EEE EEE 4

I. Section 8772 Is Part Of A Comprehensive

Effort To Use Economic Sanctions To Punish

And Deter Iran’s Sponsorship Of Terrorism ....... 4

II. Section 8772 Implicates None Of The

Separation Of Powers Concerns On Which

a cuestasnnnees S)

Ill. Section 8772 Does Not Violate Any

Separation Of Powers Principle........................ 17

A. Section 8772 Does Not Run Afoul of the

Separation of Powers Principles Set

EE a 18

B. Article II] Does Not Prohibit Congress

From “Effectively Dictating” the

a 21

C. Article II] Does Not Require Laws to be

Gomeraliy Applica ............000.ccscecsccceeeeees 24

EL Re 27

ss

TABLE OF AUTHORITIES

Cases

Acosta v. Islamic Republic of Iran,

es IE anccccncrcesnscnninssecsenucnnestannenenee 10

Arnold v. Islamic Republic of Iran,

| ET ER 10

Beer v. Islamic Republic of Iran,

Nos. 06-cv-473 and 08-cv-1807 (D.D.C) ................ 10

Bonk v. Islamic Republic of Iran,

oes 10

Bruner v. United States,

ees aaa 21

Clinton v. Jones,

ia teal een 26

Cort v. Ash,

ae ae 21

Dames & Moore v. Regan,

ET Re 5

Estate of Bland v. Islamic Republic of Iran,

SS 10

Estate of Brown v. Islamic Republic of Iran,

tS SR Se 10

Estate of Heiser v. Islamic Republic of Iran,

Nos. 00-cv-2329 and 01-cv-2104 (D.D.C) .............. 10

Estate of Silvia v. Islamic Republic of Iran,

ON | RRR IES CER Ce 10

Ex parte McCardle,

TE Ca Neen eae 22

FS. Royster Guano Co. v. Virginia,

I I os ssiinicchsrstneitatiiciniccnesiciniaiandednininil 26

il

Greenbaum uv. Islamic Republic of Iran,

ee cncrniciinscnssocensansanmnesemenmenssts 10

Khaliq v. Republic of Sudan,

| EE mee 10

Kirschenbaum. v. Islamic Republic of Iran,

Nos. 03-cv-1708 and 08-cv-1814 (D.D.C) .............. 10

Levin v. Islamic Republic of Iran,

Is rn aici cetitccliccinaiatidila 10

Miller v. French,

I le 19, 26

Murphy v. Islamic Republic of Iran,

EET Ee Oem 10

Mwila v. Islamic Republic of Iran,

Eee 10

Nat’ Coal. to Save Our Mall v. Norton,

269 F.3d 1092 (D.C. Cir. 2001)...........0000.00c eee. 25

Nixon v. Adm’r of Gen. Servs.,

ef eer ene 24, 25

Owens v. Republic of Sudan,

EEE Re eae a 10

Pennsylvania

v. Wheeling & Belmont Bridge Co.,

59 U.S. (18 How.) 421 (1855)...............00000..022.. 12, 24

Peterson v. Islamic Republic of Iran,

Nos. 01-cv-2094 and 01-cv-2684 (D.D.C.) ............. 10

Plaut v. Spendthrift Farm, Inc.,

ene elena passim

Pope v. United States,

I tl a al a Sa 24

iv

Robertson v. Seattle Audubon Soc’y,

4 See 12, 19, 21, 24

Rubin v. Islamic Republic of Iran,

a I cd cnnninnininisnectonbgncdeetniecnie 10

Shawnee Tribe v. United States,

423 F.3d 1204 (10th Cir. 2005).............0.0000.000ccccee. 24

States v. Schooner,

5 U.S. (1 Cranch) 103 (18012) ...................c0..c0..cece0. 21

Touby v. United States,

ELT Ee ee ee nr ae 26

United States v. Klein,

$0 U.S. (13 Wall.) 128 (18732).........0..0..00..00000000000.... 18

United States v. Sioux Nation of Indians,

EE ASL SAS ee 24

Valore v. Islamic Republic of Iran,

TE a Te ee 10

Wultz v. Islamic Republic of Iran,

— |___. 6 San aN ENED 10

Statutes

EE ese ewe eee eR passim

Pub. L. No. 104-172, 110 Stat. 1541 (1996)............... 5

Pub. L. No. 109-3, 119 Stat. 15 (2005).............00000... 16

Pub. L. No. 111-195, 124 Stat. 1312 (2010)............... 6

Pub. L. No. 112-158, 126 Stat. 1214 (2012)......... 7, 23

Pub. L. No. 112-81, 125 Stat. 1298 (2011)................. 7

Other Authorities

Cong. Globe, 40th Cong., 2d Sess. 2061

Vv

Daniel J. Meltzer, Congress, Courts, and

Constitutional Remedies, 86 Geo. L.J. 2537

REE eee ee nn ee 20

Kenneth Katzman, Cong. Research Serv.,

RS 20871, Iran Sanctions (2015)..................... 4, 5,6

Martin H. Redish & Christopher R. Pudelski,

Legislative Deception, Separation of

Powers, and the Democratic Process:

Harnessing the Political Theory of United

States v. Klein, 100 Nw. U. L. Rev 437

SIRES REISE ECCS. ARE NRE ree 20

8S SES nomen 25

8S LT rE 25

Transcript of Oral Argument,

Robertson v. Seattle Audubon Soc’y, 503

U.S. 429 (1992) (No. 90-1596) .....................0eeeee eee 22

STATEMENT OF INTEREST"

The Foundation for Defense of Democracies

(“FDD”) is a non-profit, non-partisan section 501(c)(3)

policy institute focusing on foreign policy and national

security. Through its Iran Project and its Center on

Sanctions and Illicit Finance, FDD conducts extensive

research on ways to use sanctions to target the

economic and financial resources of the Iranian

regime. FDD’s work has informed numerous pieces of

Iran sanctions legislation, including the Iran Freedom

and Counter-Proliferation Act of 2012; the Iran Threat

Reduction and Syria Human Rights Act of 2012;

section 1245 of the National Defense Authorization

Act of 2012; and the Comprehensive Iran Sanctions,

Accountability, and Divestment Act of 2010. These

laws target Iran’s energy, financial, shipping,

insurance, commercial, and proliferation activities, as

well as the regimes human rights abuses. The

legislative measures are widely viewed as the most

robust U.S. measures yet imposed against the Iranian

regime.

FDD also seeks to reduce the amount of oil and

other commercial revenues the Iranian regime can

devote to advancing its illicit nuclear and ballistic

missile programs, supporting terrorism, and

repressing its citizens. As part of this effort, FDD has

! Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and that no entity or person, aside from amicus curiae, its

members, and its counsel, made any monetary contribution

toward the preparation or submission of this brief. Pursuant to

Supreme Court Rule 37.3, counsel of record for all parties have

consented to this filing in letters on file with the Clerk’s office.

2

performed studies on sanctioning Iran’s Central Bank,

Iranian banks, and the Islamic Revolutionary Guard

Corps, and has sought to deny the Islamic Republic

the ability to use the international Society for

Worldwide Interbank Financial Telecommunications

(“SWIFT”) to conduct financial transactions.

FDD has a significant interest in this case

because it provided research, analysis, and expertise

to Congress regarding the Iran Threat Reduction and

Syria Human Rights Act of 2012, section 502 of which

(codified at 22 U.S.C. §8772) is being challenged in

this case. In particular, FDD provided extensive

research and championed measures in the Act dealing

with energy, shipping, banking, insurance,

nonproliferation, and human rights abuses. FDD

firmly believes that Congress and the President must

remain unfettered in their efforts to hold Iran

accountable for sponsoring acts of terrorism against

U.S. citizens around the world, and that Iran should

not be permitted to use the international banking

system to shield its assets from terrorism-related

judgments. Section 502 of the Act is instrumental to

those efforts.

SUMMARY OF ARGUMENT

This case is not‘about “a statute that effectively

directs a particular result in a single pending case.”

Pet’r.Br.i. Nor is it about an effort by Congress “to

ensure that its favored litigant prevails.” Jd. at 2.

Instead, it is about a statute that serves as a critical

tool in the United States’ sustained efforts to use

economic sanctions to punish Iran for, and deter it

from, supporting acts of terrorism against U.S.

citizens. Consistent with that broader foreign policy

3

objective, the statute is not confined to any particular

litigant or to any particular claim. Nor does the

statute direct a federal court to order one party to turn

over money to another. Instead, the statute just

establishes the law that a court should apply when

determining whether a particular set of assets is

subject to execution and attachment for judgments

against Iran, and then tasks a court with applying it.

The findings that the statute tasks the court with

making are no mere make-weights; nor are they fig

leafs for congressional incursion on Article III

prerogative. Instead, they are precisely what ensures

that execution or attachment will be permitted only

when it will further both of the policy goals underlying

the law: facilitating efforts by the victims of Iran’s

deplorable actions to collect on the judgments they

have obtained, and ensuring that Iran itself is held

responsible for the injuries it has caused.

Petitioner's blithe suggestion that “[i]f Congress

wanted to compensate these plaintiffs,” it could have

just paid their claims itself, Pet’r.Br.53, ignores what

section 8772 is really about. To be sure, section 8772

is intended to ensure that the representatives of the

hundreds of the victims who lost their lives to Iran’s

state-sponsored terrorism will actually be

compensated for the wrongs that they have suffered.

But equally important, it is also about achieving the

United States’ broader foreign policy objective of using

economic sanctions to ensure that Jran itself is held

responsible for the deplorable acts of terrorism that it

sponsors, and meaningfully deterred from continuing

to do the same. And the statute is carefully crafted to

leave fully intact a court’s Article III prerogative to

determine whether the legal conditions Congress has

4

crafted to further those twin policy goals are actually

satisfied. The statute thus simply does not implicate

any of the separation of powers principles on which

petitioner seeks to rely. In short, it is Iran, not section

8772, that is a threat to our democracy.

ARGUMENT

I. Section 8772 Is Part Of A Comprehensive

Effort To Use Economic Sanctions To Punish

And Deter Iran’s Sponsorship Of Terrorism.

Section 8772 and the comprehensive 56-page

piece of legislation through which it was enacted are

part of a sustained effort to use targeted economic

sanctions to punish and deter Iran’s sponsorship of

terrorism. Since the Iran Hostage Crisis in 1979, Iran

has posed a continuous and uninterrupted threat to

American interests and American lives. _I[ran-

sponsored bombings, assassinations, hijackings, and

hostage-takings over the past 36 years have claimed

thousands of victims, and future acts threaten to claim

thousands more. This pervasive Iranian threat is

virtually without parallel in the modern era, in terms

of both its. longevity and its intensity American

foreign policymakers have _accordingly used every

means of national power and leverage at their disposal

to ensure that Iran is held accountable for, and

deterred from, harming U.S. citizens.

From the beginning, economic sanctions have

been a critical tool in the United States’ foreign policy

toward Iran. See Kenneth Katzman, Cong. Research

Serv., RS 20871, Iran Sanctions 1 (2015) (“Katzman”).

During the Iran Hostage Crisis, President Carter

declared a national emergency and blocked billions of

dollars of Iranian assets held in the United States. See

5

Dames & Moore v. Regan, 453 U.S. 654, 662-63 (1981).

Although most of those sanctions were lifted upon

resolution of the crisis in 1981, the United States

officially designated Iran a state sponsor of terrorism

following the October 1983 bombing of United States

Marine barracks in Lebanon. That designation

triggered substantial sanctions under the Export

Administration Act of 1979, including restrictions on

foreign assistance, a ban on arms transfers, and

export controls for dual-use items. See Katzman 2-3.

In the mid-1990s, President Clinton and Congress

continued efforts to deny Iran financial resources to

support terrorism. President Clinton issued several

executive orders with respect to Iran, including bans

on United States investment in Iran’s energy sector

and bans on United States trade with Iran. See Exec.

Order No. 12,957, 60 Fed. Reg. 14,615 (1995); Exec.

Order No. 12,959, 60 Fed. Reg. 24,757 (1995). In 1996,

Congress went one step further with the Iran and

Libya Sanctions Act (“ILSA”), Pub. L. No. 104-172, 110

Stat. 1541 (1996), which sought to deprive Iran of

foreign investment in its energy sector. The ILSA

mandated sanctions on foreign entities or persons

investing more than $20 million in Iran’s energy

sector. See Katzman 8-11.

Beginning in 2006, the Bush administration and

then the Obama administration, with bipartisan

support from Congress, designed a new and

unprecedented campaign of economic pressure on

Iran. These efforts began with the Department of the

Treasury, which worked to persuade banks around the

world to cease all business with Iran and isolate Iran

from the international financial system. To ensure

6

that Iran could not get around those constraints by

funneling its assets through third parties, President

Bush issued two executive orders that blocked the

assets of individual Iranian banks and other entities

that Iran has used to facilitate its sponsorship of

terrorism. See Exec. Order No. 13,224, 66 Fed. Reg.

49,079 (2001); Exec. Order No. 13,382, 70 Fed. Reg.

38,567 (2005). The State Department also engaged

with the United Nations Security Council, which

passed four sanctions resolutions against Iran

between 2006 and 2010. Katzman 31-32. These

resolutions froze the assets of named Iranian

individuals and entities, prohibited Iran from a wide

range of weapons-related activity, prohibited certain

exports to Iran, and called for restraints on

transactions with Iranian banks. 7d. at 32.

Congress has supported these efforts with

legislation increasing the economic pressure to deter

and prevent Iran from sponsoring terrorism. Between

2010 and 2013, congressional sanctions targeted

Iran’s financial, energy, shipping, automotive,

petrochemical, insurance, precious metals, and

industrial trade industries. These efforts cut off Iran’s

economic and financial lifelines, including its crude oil

exports, the Central Bank of Iran’s access to the global

financial system, and the use of the SWIFT global

financial messaging system. First, in 2010, Congress

codified the ban on United States trade with Iran in

the Comprehensive Iran Sanctions, Accountability,

and Divestment Act (““CISADA”), Pub. L. No. 111-195,

124 Stat. 1312 (2010). CISADA also directs the

President to impose sanctions on persons who invest

in Iran’s energy sector, on foreign banks that

knowingly facilitate certain Iranian transactions, and

7

on individuals complicit in human rights abuses. In

2011, Congress passed legislation aimed at weakening

Iran’s oil industry by imposing consequences on

foreign banks that process any payments through

Iran’s central bank. See National Defense

Authorization Act (““NDAA”), Pub. L. No. 112-81, 125

Stat. 1298 (2011).

The Iran Threat Reduction and Syria Human

Rights Act of 2012, Pub. L. No. 112-158, 126 Stat.

1214, is a continuation of these legislative efforts. The

Act aims to compel Iran to abandon its pursuit of

nuclear weapons, to deter Iran from sponsoring acts of

terror, and to punish Iran for its past sponsorship of

terrorism. Various provisions of the Act blacklist

Iran’s energy. financial, and transportation sectors,

cut off companies that do business with Iran from

access to domestic markets, impose sanctions to

prevent Iran from repatriating any proceeds from its

oil sales, and deprive the Iranian regime of 80 percent

of its hard currency earnings and half the funds that

support its budget. Section 8772, the provision at

issue in this case, is but one of the Act’s many efforts

to increase the financial pressure on Iran to cease

sponsoring acts of terrorism. “[I]n furtherance of the

broader goals of th[e] Act to sanction Iran,” section

8772 ensures that Iran will not be able to escape the

financial consequences of its actions, or the deterrence

that those consequences are intended to accomplish,

by using third parties to conceal and/or shield its

assets from the many victims of terrorism whose duly

obtained judgments Iran has refused to pay.

To that end, section 8772 identifies nearly $2

billion in Iranian assets held at a U.S. bank and

8

subjects those assets to execution to satisfy judgments

arising out of Iran’s sponsorship of terrorism so long

as certain statutorily specified criteria are satisfied.

In particular, because section 8772 is intended not just

to compensate victims, but also “to ensure that Jran is

held accountable for paying the judgments” that result

from its support of terrorism, the provision applies

only if the court determines that “Iran holds equitable

title to, or the beneficial interest in, the assets ... and

that no other person possesses a constitutionally

protected interest in the assets.” 22 U.S.C. §8772(a)(2)

(emphasis added). If the court finds that someone else

holds a “beneficial” or “a constitutionally protected

interest in the assets,” it may make the assets

available for execution or attachment only to the

extent that doing so “does not infringe upon” that

third-party interest. Jd. §8772(a)(2)(B).

While the statute identifies the relevant assets by

reference to the docket number of ongoing proceedings

in the Southern District of New York, it does not single

out any particular judgment or judgments that they

may be used to satisfy. Instead, so long as the

conditions that the statute identifies are satisfied, the

assets may be used “to satisfy any judgment to the

extent of any compensatory damages awarded against

Iran for damages for personal injury or death caused

by an act of torture, extrajudicial killing, aircraft

sabotage, or hostage-taking, or the provision of

material support or resources for such an act.” Id.

§8772(a)(1)(C) (emphasis added). Accordingly,

although section 8772 applies only to one particular

proceeding, its application is not confined to the

parties who were already part of that proceeding when

the statute was enacted. Section 8772 instead leaves

9

other victims of Iran’s sponsorship of terrorism free to

intervene in the proceeding and assert their own

claims to the assets, which some did after the statute

took effect. See Pet.App.18a-19a.

The provisions of section 8772 thus work in

tandem to achieve Congress’ two basic objectives.

First, in furtherance of its goal of holding Iran

responsible for the acts of terrorism that it has

sponsored, the statute renders the assets subject to

attachment only to the extent that they are, in fact,

Iran’s assets. Second, in further of its goal of ensuring

that all victims of Iran’s acts have the potential to

execute on the judgments they have obtained, the Act

renders the assets subject to execution or attachment

by any victim with a claim against the assets, not just

some preferred individual or individuals. The statute

requires only that everyone falling into that class

litigate their claims in a_ single consolidated

proceeding.

II. Section 8772 Implicates None Of The

Separation Of Powers Concerns On Which

Petitioner Relies.

When section 8772 is viewed against that

backdrop, three things are crystal clear. First, the

statute is not directed at “a single pending case.”

Pet’'r.Br.1. It is instead directed at an entire class of

cases that Congress just decided to effectively

consolidate into a single proceeding. Second, section

8772 does not direct the district court to reach any

particular outcome; it instead requires the court to

make findings essential to ensuring that the statute

furthers not only Congress’ interest in compensating

the victims of acts of terrorism sponsored by Iran, but

10

also its equally important objective of holding Jran

responsible for its deplorable actions. Third, section

8772 is nothing like the kinds of one-off laws to which

petitioner analogizes. It reflects not congressional

interference in a private dispute, but rather a critical

component of a much broader foreign policy initiative.

1. First, the notion that section 8772 applies only

to “a single pending case” blinks reality. Respondents

are the representatives of hundreds of Americans

killed in several different Iran-sponsored terrorist

attacks, who among them hold judgments from well

over a dozen different civil actions.2 The terrorist

2 Those civil actions are: Peterson v. Islamic Republic of Iran,

Nos. 01-cv-2094 and 01-cv-2684 (D.D.C.); Greenbaum v. Islamic

Republic of Iran, No. 02-cv-2148 (D.D.C.); Acosta v. Islamic

Republic of Iran, No. 06-cv-745 (D.D.C.); Rubin v. Islamic

Republic of Iran, No. 01-cv-1655 (D.D.C.); Estate of Heiser v.

Islamic Republic of Iran, Nos. 00-cv-2329 and 01-cv-2104

(D.D.C); Levin v. Islamic Republic of Iran, No. 05-cv-2494

(D.D.C.); Valore v. Islamic Republic of Iran, No. 03-cv-1959

(D.D.C); Bonk v. Islamic Republic of Iran, No. 08-cv-1273 (D.D.C);

Estate of Silvia v. Islamic Republic of Iran, No. 06-cv-750

(D.D.C.); Estate of Brown v. Islamic Republic of Iran, No. 08-cv-

531 (D.D.C.); Estate of Bland v. Islamic Republic of Iran, No. 05-

ev-2124 (D.D.C); Beer v. Islamic Republic of Iran, Nos. 06-cv-473

and (8-cv-1807 (D.D.C); Kirschenbaum. uv. Islamic Republic of

Iran, Nos. 03-cv-1708 and 08-cv-1814 (D.D.C); Arnold v. Islamic

Republic of Iran, No. 06-cv-516 (D.D.C.); Murphy v. Islamic

Republic of Iran, No. 06-cv-596 (D.D.C.); and Wultz v. Islamic

Republic of Iran, No. 08-cv-1460 (D.D.C.). Three other plaintiff

groups previously were involved in these proceedings, but the

district court denied them turnover because they did not yet hold

judgments against Iran. See Pet.App.19a-20a, 28a. Those civil

actions are: Mwila v. Islamic Republic of Iran, No. 08-cv-1377

(D.D.C.); Owens v. Republic of Sudan, No. 01-cv-2244 (D.D.C.);

and Khaliq v. Republic of Sudan, No. 10-cv-356 (D.D.C.).

ll

attacks giving rise to these judgments include the

1983 Beirut Marine Barracks Bombing, the 1983

kidnapping of CNN correspondent Jerry Levin, the

1990 assassination of Rabbi Meir Kahane, the 1996

‘bombing of the Khobar Towers in Saudi Arabia, a

September 4, 1997 suicide bombing at a street mall in

Jerusalem, an August 9, 2001 suicide bombing at a

restaurant in Jerusalem, a December 1, 2001 suicide

bombing at a street mall in Jerusalem, a June 11, 2003

suicide bombing on a bus in Jerusalem, and an April

17, 2006 suicide bombing at a restaurant in Tel Aviv.

To be sure, the plaintiffs who obtained judgments

in those different cases are now all part of a single

proceeding to collect on them. But that is not because

their discrete cases are all really one and the same. It

is because section 8772 effectively directed everyone

who falls into the class of cases to which the law

applies—namely, cases in which a victim of Iran’s

state-sponsored terrorism has obtained a judgment on

which he or she is seeking to collect—to go litigate

their efforts to execute on the relevant assets in that

consolidated proceeding. By declaring section 8772

inapplicable to “any proceedings other than

proceedings referred to in subsection (b),” Congress

thus did not “change[] the law for a single case.”

Pet’r.Br.40. Instead, it simply established a single

procedural vehicle through which all of the cases to

which section 8772 applies could be resolved at once.

That alone cannot be the difference between a

constitutional law and an unconstitutional one. If it

were, then section 8772 would have been perfectly

permissible if Congress had just omitted the language

rendering the law inapplicable to “any proceedings

12

other than proceedings referred to in subsection (b)”—

even though doing so would have left the law with the

exact same substantive effect on the exact same range

of cases. Congress does not work any fundamental

incursion on Article III prerogative by instructing a

single court to resolve a common set of claims brought

by several different parties rather than requiring

several different courts to do so one by one.

Accordingly, whatever the Constitution may have

to say about laws that target “a single pending case,”

Pet’r.Br.1, there is no need for this Court to resolve

that question here, as the answer simply does not have

any bearing on this case. Section 8772 does not

change the law for a particular case; it changes the law

for a particular set of assets. Any concerns that kind

of targeted legislation may raise have no more to do

with separation of powers principles than changing

the law for a particular bridge, Pennsylvania v.

Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421

(1855), or for 13 particular forests, Robertson v. Seattle

Audubon Soc’y, 503 U.S. 429 (1992). See infra Part

III.B. That does not change just because Congress has

coupled a narrow substantive law with a narrow

procedural mechanism for invoking it. The

Constitution simply does not prevent Congress from

trying to ease the burden on victims of acts of

terrorism that occurred more than a decade ago (if not

longer) by giving them a single forum in which one

court can resolve common issues arising out of their

efforts to finally collect on the many judgments that

their different cases have produced.

2. Second, section 8772 does not dictate—whether

“effectively” or otherwise—the outcome of the cases

13

that it governs. The conditions section 8772 imposes

on execution of the assets in question in the subsection

entitled “Court determination required” are not make-

weights designed to cover up an effort to deprive the

judiciary of its Article III power. They are critical

components of the substantive law that section 8772

creates, included to ensure that the statute will allow

execution or attachment only if doing so furthers both

of the interests Congress sought to achieve.

Again, Congress was not simply looking to

transfer wealth to a favored party, or even just to

ensure that victims of the acts of terrorism that Iran

has sponsored have a remedy for the wrongs they have

suffered. Congress also wanted section 8772 te serve

the equally important interest of holding Jran itself

responsible for its role in those deplorable acts. As the

government has explained time and again, one of the

core goals of economic sanctions is to use financial

pressure not just to punish Iran for its past acts, but

to get Iran to cease sponsoring acts of terrorism in the

future. Accordingly, when Congress required the

court to find that the assets in question belong to Iran,

and Iran alone, it was not reverse-engineering a legal

test that would ensure that the court reached its

preferred outcome. It was instead crafting a legal

standard that maps directly onto the foreign policy

concerns that section 8772 seeks to achieve.

To be sure, Congress may have had very good

reason to believe that “Iran holds equitable title to, or

the beneficial interest in, the assets” in question, “and

that no other person possesses a constitutionally

protected interest in thfose] assets.” 22 U.S.C.

§8772(a)(2). But whether Congress expected the court

14

to reach certain answers to those questions does not

change the fact that it did not instruct the court to do

so. Indeed, the statute expressly contemplates the

possibility that the district court could have found that

Iran was not the only party with a “beneficial interest”

in the assets, and creates a distinct rule to govern if

the court were to make such a determination. See id.

Congress can hardly be accused of “effectively

dictating” the outcome of the proceeding when its own

statute: expressly recognizes that the district court

could have reached a different result. Petitioner's

decision not to dispute section 8772’s requirements

does not reflect that those requirements were

meaningless; at most, it simply suggests that

petitioner realized that disputing them would reveal

the flaws in its separation of powers arguments.

Moreover, Congress did not confine section 8772

to any particular judgment or persons. It instead

again set forth a standard by which the court is to

determine whether the law applies, requiring the

court to make an independent assessment of whether

a claimant is, in fact, seeking to collect on a judgment

for “compensatory damages awarded against Iran for

damages for personal injury or death caused by an act

of torture, extrajudicial killing, aircraft sabotage, or

hostage-taking, or the provision of material support or

resources for such an act.” 22 U.S.C. §8772(a)(1)(C).

Sure enough, the district court denied turnover to

three of the groups of plaintiffs that were part of this

consolidated action when section 8772 was enacted

because it found that those plaintiffs did not hold

qualifying judgments. See Pet.App.19a-20a, 28a. At

any rate, again, that Congress may have anticipated

which claimants would satisfy that standard is beside

15

the point. What matters for constitutional purposes is

that the statute leaves it in the court’s hands, not

Congress’, to determine whether an individual who

tries invokes the law falls within its reach.

Accordingly, any constitutional constraints on

Congress’ power to “effectively dictate” the outcome of

litigation are, once again, not implicated here. Section

8772 does not compel the district court to reach any

particular conclusion at all, let alone compel the court

to do so in a manner that intrudes on Article III

prerogative. See infra Part III.A. It simply

establishes the criteria that must be satisfied in order

for the relevant assets to be subject to execution, and

then directs the court to make its own determination

of whether that criteria is satisfied.

3. Finally, section 8772 bears no resemblance to

the kinds of one-off statutes to which petitioner

analogizes. Starting with petitioner’s “most salient

example,” Pet’r.Br.34, the Terri Schiavo legislation

was a one-off statute unrelated to any broader

legislative effort. When Congress created federal

court jurisdiction to hear claims on Terri Schiavo’s |

behalf, Congress was not in the midst of some decades-

long initiative to strike a proper balance between state

and federal court jurisdiction in family disputes about

medical treatment. Congress entered the fray for one

case, and one case only. Indeed, whereas the Iran

Threat Reduction and Syria Human Rights Act is 56

pages long and contains a wide range of provisions “in

furtherance of [Congress’] broader goals ... to sanction

Iran,” 22 U.S.C. §8772(a)(2), the Act for the Relief of

the Parents of Theresa Marie Schiavo was two pages

long and did nothing other than create federal court

16

jurisdiction for a single case. See Pub. L. No. 109-3,

119 Stat. 15 (2005). Whatever the constitutional

implications of such a statute may be, that kind of law

is so dissimilar to this one as to render the comparison

meaningless.

Petitioner’s historical comparisons fare no better.

See Pet’r.Br.30-32. All of the state court cases

petitioner identifies concern laws divorced from any

broader legislative initiative. Thus, to the extent they

raised the specter of “[s]pecial laws ... pushed through

the legislatures by unscrupulous men to serve private

ends,” id. at 30, they are readily distinguishable from

the provision at issue here. Congress did not enact

section 8772 out of a bare desire “to force one party to

pay other parties billions of dollars for past injuries.”

Id. at 42. Congress enacted section 8772 to ensure

that Iran would be forced to satisfy the undisputedly

valid judgments that the victims of its unlawful

actions obtain—not just because those victims are

entitled to execution of the judgments that courts

award them, but because ensuring that Iran is held

financially responsible for the acts of terrorism that it

sponsors is a critical component of the United States

efforts to protect its citizens from the threat that Iran

will continue to sponsor such acts in the future.

Accordingly, whatever concerns the Framers may

have had about legislative interference in private

disputes among citizens, those, too, are inapposite

here. The specificity of section 8772 reflects not a

congressional desire to interfere with a private dispute

(or with the independence of the judiciary), but rather

a congressional effort to make sensitive foreign policy

judgments unique to a particular country. Iran has

17

time and again refused to abide by international rules,

and Congress is free to react by refusing to apply the

same rules to Iran as it does to the rest of the

international community. After all, the Framers

granted Congress broad powers to address foreign

relations. For those powers to be effective, Congress

must be able to invoke them flexibly and sensitively to

address specific threats posed by specific nations. It is

thus no wonder that section 8772 is targeted at a

particular country and set of assets. Foreign policy is

not a place for one-size-fits-all rules; it would be

absurd to require Congress to give Iran the same

sovereign immunity as Ireland.

* * *

As the foregoing reveals, section 8772 is simply

not what petitioner tries to make it out to be. The

statute applies not to “a single pending case,”

Pet’r.Br.i, but to an entire class of cases. The statute

does not “direct{] a particular result,” whether

“effectively” or otherwise. Jd. And the statute is

designed to further critical foreign policy objectives;

not “to ensure that [Congress] favored litigant

prevails.” Jd. at 2. In short, the statute does not even

implicate any of the constitutional concerns that

petitioner identifies.

III. Section 8772 Does Not Violate Any

Separation Of Powers Principle.

At any rate, petitioner's conception of the

separation of powers constraints that this Court’s

cases impose on Congress’ ability to legislate is

fundamentally flawed. Properly understood, the

principles that this Court has articulated do not

prohibit Congress from legislating with specificity, or

18

from passing laws that are designed to affect the

outcome of a pending case. They just require Congress

to refrain from interfering with the judiciary’s core

role of deciding how existing law applies to a particular

set of facts. Section 8772 does not interfere with that

role at all.

A. Section 8772 Does Not Run Afoul of the

Separation of Powers Principles Set

Forth in Klein.

For all the ink that has been spilled about United

States v. Klein, 80 U.S. (13 Wall.) 128 (1872), its core

holding is straightforward: Congress may not instruct

an Article III court how to apply existing law to

particular facts. Courts alone wield the power to take

a law as written and apply it to the facts. If Congress

seeks to affect the outcome of pending cases, it must

do so by using its Article I powers to amend the law,

not by telling courts how to perform their Article III

function of applying the law to particular facts. The

statute in Klein violated that separation of powers

principle because it purported to instruct courts how

to apply the existing legal framework governing

reimbursement of captured property to the fact of a

presidential pardon. Indeed, it purported to compe!

courts “to deny to pardons granted by the President

the effect which this court had adjudged them to

have.” Klein, 80 U.S. at 145. This Court thus was

“forbidden to give the effect to evidence which, in its

own judgment, such evidence should have, and [wa]s

directed to give it an effect precisely contrary.” Id. at

147

Accordingly, while Klein itself may not be a

paragon of clarity, the principle it stands for is simple:

19

Congress cannot instruct an Article III court how to

apply existing law to particular facts. This Court’s

cases confirm that understanding. In Robertson, for

instance, the Court was not troubled by the fact that

the challenged law singled out two pending cases. Nor

was the Court troubled by the fact that Congress

enacted the law for the specific purpose of putting an

end to the litigation that it expressly referenced.

Instead, it was enough to satisfy any separation of

powers concerns that Congress had not tried to

“direct[] decisions in pending cases without amending

any law”; it instead “affected the adjudication of the

cases” by “effectively modifying the provisions at issue

in those cases.” Robertson, 503 U.S. at 440-41

(emphasis added).

The Court reiterated the same understanding in

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).

As the Court explained there, “[w]hatever the precise

scope of Klein, ... later decisions have made clear that

its prohibition does not take hold when Congress

‘amend[s] applicable law.” Jd. at 218 (quoting

Robertson, 503 U.S. at 441). And in Miller v. French,

530 U.S. 327 (2000), this Court rejected a Klein

challenge to the Prison Litigation Reform Act because

the statute created “a new legal standard” rather than

“prescribing a rule of decision.” Id. at 349-50. Indeed,

even petitioner's own amici agree that “Klein’s central

distinction” is “between directing law application and

amending the underlying law,” FCS.Br.9, and identify

Klein’s core holding as the principle that “Congress

20

may not direct the result in a pending case without

amending the underlying law,” id. at 4.3

Properly understood, then, the Klein question in

this case is remarkably easy: Section 8772 does not

direct courts how to apply existing law; it instead just

changes the law that applies to the particular assets

at issue. Congress did not instruct courts that,

notwithstanding how the Uniform Commercial Code

has been interpreted, attachment of the relevant

assets must be found to satisfy its requirements. Nor

did Congress say anything about whether the assets

should be deemed attachable under the terms of the

Foreign Sovereign Immunities Act, the Terrorism

Risk Insurance Act of 2002, or any provision of law.

Indeed, Congress could not have made clearer that it

was creating a new law that would apply

“notwithstanding any other provision of law” and was

“preempting any inconsistent provision of State law ”

22 U.S.C. §8772(a)(1) (emphasis added). Thus, rather

than instructing the Court how to apply the law,

Congress simply “amend[ed] applicable law” Plaut,

3 In fact, the principle Klein stands for is arguably even

narrower than that. As scholars have noted, the statute at issue

in Klein posed a particular problem because it sought to override

the Court’s interpretation of a constitutional provision. See, e.g.,

Martin H. Redish & Christopher R. Pudelski, Legislative

Deception, Separation of Powers, and the Democratic Process:

Harnessing the Political Theory of United States v. Klein, 100 Nw.

U. L. Rev. 437, 464 (2006) (“The Court was necessarily concerned

... that Congress was seeking to interfere with the judicial

interpretation of constitutional provisions.”); Daniel J. Meltzer,

Congress, Courts, and Constitutional Remedies, 86 Geo. L.J.

2537, 2540 (1998) (“Congress may not compel the courts to speak

a constitutional untruth.”). Section 8772, of course, raises no

such concern.

21

514 U.S. at 218 (quoting Robertson, 503 U.S. at 441).

That is exactly what this Court has said—

repeatedly—that Klein in no way prohibits Congress

from doing.

B. Article III Does Not Prohibit Congress

From “Effectively Dictating” the

Outcome of Cases.

Petitioner insists that Klein stands for a far more

sweeping proposition—namely. that “legislatures may

not dictate the outcome of pending cases.” Pet’r.Br.19.

That is simply not correct. It is well-settled that

Congress may pass laws that apply to cases pending

at the time of enactment—even when the new law is

outcome-determinative. For example, in Bruner uv.

United States, this Court dismissed an action because,

while the case was pending, Congress repealed the

jurisdictional statute under which it had been filed.

343 U.S. 112 (1952). In United States v. Schooner

Peggy, this Court reversed a decree condemning a

French vessel because a treaty ratified while the case

was pending provided for the restoration of captured

property “not yet definitively condemned.” 5 U.S. (1

Cranch) 103, 109 (1801); see id. at 110 (“[I]f

subsequent to the judgment and before the decision of

the appellate court, a law intervenes and positively

changes the rule which governs, the law must be

obeyed[.]”). And in Cort v. Ash, this Court reversed a

grant of injunctive relief because Congress passed a

statute while the case was pending that established

an administrative procedure for adjudicating alleged

violations of the statute at issue. 422 U.S. 66 (1975).

Indeed, Congress may pass laws with the express

intention of dictating the outcome of a pending case.

22

In Ex parte McCardle, Congress stripped this Court of

jurisdiction to review denials of petitions for habeas

corpus while McCardle’s case was pending in this

Court. 74 U.S. 506 (1869). McCardle’s attorney

argued that the jurisdiction-stripping law was aimed

specifically at McCardle and thus violated separation

of powers principles. Jd. at 510.4 This Court rejected

that argument and dismissed the case for want of

jurisdiction, noting that the Court was “not at liberty

to inquire into the motives of the legislature.” Id. at

514. Congress also effectively dictated the outcome in

Wheeling, a case that this Court explicitly

distinguished in Klein, and Robertson, a case in which

this Court explicitly distinguished Klein. As the

Solicitor General pointed out during oral argument in

Robertson, to prohibit Congress from legislating to

impact a pending case would “essentially amount[] to

a freezing theory. that the pendency of a lawsuit [has]

an injunctive effect, as it were, against the Congress

of the United States.” Transcript of Oral Argument at

46, Robertson v. Seattle Audubon Soc’y, 503 U.S. 429

(1992) (No. 90-1596). It would make little sense to

allow private litigants to disable Congress from

exercising its Article I powers by filing a lawsuit, and

still less sense to disable Congress from addressing an

issue when it is most squarely presented. ai

Clearly, then, Klein does not stand for the

sweeping proposition that petitioner urges. Congress

can effectively dictate the outcome of pending cases,

4 See, e.g., Cong. Globe, 40th Cong., 2d Sess. 2061 (1868)

(statement of Rep. James F. Wilson, R-Iowa) (“Most assuredly it

was my intention to take away the jurisdiction given by the act

of 1867 reaching the McCardle case[.]}”).

23

and it does so with regularity. Klein simply limits the

method by which Congress may achieve that result.

Under petitioner's reading, the constitutionality of a

statute would turn not on the substance of the law or

the degree to which it infringes on the power of other

branches, but rather on the procedural posture of the

cases to which it applies. That cannot be the law.

Petitioner's “no dictating the outcome” principle

cannot bear the weight placed upon it, either as a

premise in this case or as a rule to apply to others.

Indeed, even petitioner’s own amici recognize that

Klein cannot plausibly be read as prohibiting Congress

from passing laws designed to dictate the outcome of

a pending case given the “numerous decisions holding

that Congress may amend the law governing pending

litigation.” FCS.Br.7 In stark contrast to petitioner,

petitioner’s amici instead stress repeatedly just how

“narrow” “Klein’s core principle” really is. Jd. at 4, 8.

And rightly so, as Klein leaves Congress perfectly free.

to effectively dictate the result of pending cases by

amending the applicable law; it just requires Congress

to refrain from instructing an Article III court how to

apply facts to existing law In short, as subsequent

cases have made clear, Klein is a case about how

Congress may effectively dictate the outcomes of

cases—not about whether it may.5

5 Petitioner’s amici make the baffling claim that section 8772

is unconstitutional because “no new law has been made” at all.

FCS.Br.17. Both Houses of Congress and the President disagree.

See Iran Threat Reduction and Syria Human Rights Act of 2012,

Pub. L. No. 112-158, 126 Stat. 1214, 1258. Without a doubt,

section 8772 is a new law governing the attachment of the assets

in question for execution of certain judgments against Iran. To

24

C. Article III Does Not Require Laws to be

Generally Applicable.

Finally, even assuming section 8772 applied to

only “a single pending case” (and it does not), that, too,

would pose no separation of powers problem. Indeed,

petitioner’s “single pending case” principle is a poor

match for separation of powers doctrine, which is

concerned with intrusions on other branches, not with

constraints on the manner in which one branch may

exercise the powers that it unquestionably possesses.

If, as explained, section 8772 does not intrude on the

judiciary’s Article III function, then it is difficult to

fathom how it could violate Article III simply because

it impacts too few cases.

Although “legislatures usually act through laws of

general applicability. that is by no means their only

legitimate mode of action.” Plaut, 514 U.S. at 239 n.9.

In fact, Congress legislates with particularity quite

often. Congress has passed laws impacting only a

single bridge, see Wheeling, 59 U.S. at 429, only 13

forests, Robertson, 503 U.S. at 435-36, and only one

President’s papers, Nixon v. Adm’r of Gen. Servus., 433

U.S. 425 (1977). And the list goes on. See, e.g., United

States v. Sioux Nation of Indians, 448 U.S. 371, 389

(1980) (law declaring res judica‘a defense unavailable

in one case); Pope v. United States, 323 U.S. 1, 10

(1944) (law directing court to apply a specified formula

to one case); Shawnee Tribe v. United States, 423 F.3d

1204, 1207 (10th Cir. 2005) (law giving the Secretary

of the Army discretion to convey a particular piece of

be sure, the new law is not generally applicable, but that hardly

means that it is no law at all.

25

property); Nat? Coal. to Save Our Mall v. Norton, 269

F.3d 1092, 1097 (D.C. Cir. 2001) (law exempting a

planned memorial from various federal statutes).

Moreover, although Congress passed private bills

with greater regularity before the expansion of the

administrative state, “[p]rivate bills in Congress are

still common.” Plaut, 514 U.S. at 239 n.9. In 2012, for

example, Congress passed An Act For the Relief of

Sopuruchi Chukwueke, which provided that one

individual “shall be deemed ‘» have been lawfully

admitted to, and remained in, the United States, and

shall be eligible for adjustment of status to that of an

alien lawfully admitted for permanent residence.”

Priv. L. No. 112-1 (2012). In 2006, Congress passed

the Betty Dick Residence Protection Act, the sole

purpose of which was to “require the Secretary of the

Interior to permit the continued occupancy and use of

[a particular residence} by Betty Dick for the

remainder of her natural life.” Priv. L. No. 109-1

(2006). No one has ever suggested that the specificity

of these laws renders them subject to some sort of

separation of powers concern.

That is not to say that Congress’ power to single

out particular individuals or property is unfettered.

But to the extent Congress is restrained from enacting

laws that do not have general applicability, it is

constrained by explicit constitutional provisions, not

broad structural principles. For example, the Bill of

Attainder Clause bars any law “that legislatively

determines guilt and inflicts punishment upon an

identifiable individual without provision of the

protections of a judicial trial.” Nixon, 433 U.S. at 468.

The Equal Protection Clause mandates that every

26

legislative classification “must be reasonable, not

arbitrary, and must rest upon some ground of

difference having a fair and substantial relation to the

object of the legislation.” F.S. Royster Guano Co. v.

Virginia, 253 U.S. 412, 415 (1920). The Takings

Clause, Ex Post Facto Clause, Due Process Clause,

and Privileges and Immunities Clause all likewise

impact Congress’ ability to single out individuals for

particular benefits or burdens. It is these specific

provisions—and not some vague notion of separation

of powers—that prevent Congress from improperly

singling out individuals and entities for adverse

treatment.

At any rate, it is not at all clear how the scope of

a statute's applicability “could in any way” impact

whether it “infringe[s] upon the judicial power.”

Plaut, 514 U.S. at 238-39. Separation of powers

principles are concerned with the aggrandizement of

one branch at the expense of another. See Miller, 530

U.S. at 341 (“{T]he Constitution prohibits one branch

from encroaching on the central prerogatives of

another.”); Clinton v. Jones, 520 U.S. 681, 699 (1997)

(“The Framers ‘built into the tripartite Federal

Government ... a self-executing safeguard against the

encroachment or aggrandizement of one branch at the

expense of the other.” (alteration in original)). It is

not concerned with how a single branch exercises its

own power. See Touby v. United States, 500 U.S. 160,

167-68 (1991) (“The principle of separation of powers

... does not speak to the manner in which authority is

parceled out within a single Branch.”). Given that

section 8772 does not intrude on the judicial role, see

supra Part III.A, surely it cannot offend Article III

simply because of how few cases it impacts. Once it is

27

clear that Congress has not intruded into the realm of

one of its co-equal branches of government—and that

is quite clear here—then only some other principle

could limit how Congress can exercise its own power.

By relying on the separation of powers, petitioner

hangs its hat on the wrong constitutional hook.

CONCLUSION

For the foregoing reasons, this Court should

affirm the judgment below.

Respectfully submitted,

ERIN E. MURPHY

Counsel of Record

MICHAEL D. LIEBERMAN

BANCROFT PLLC

500 New Jersey Avenue, NW

Seventh Floor

Washington, DC 20001

(202) 234-0090

emurphy@bancroftplic.com

Counsel for Amicus Curiae

December 23, 2015