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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0316%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

~ ahs Cat, OS
FiicG

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0316%3A16. Public record. Not legal advice.