Amicus Curiae Brief — Rubin v. Islamic Republic Iran, 137 S. Ct. 708 (2017) (No. 16-534)

FILED

SEP -8 2017

No. 16-534 OFFITE OF THT OF OK

Xe wr eal

IN THE

Supreme Court of the United States

JENNY RUBIN, ETAL.,

Petitioners,

v.

ISLAMIC REPUBLIC OF IRAN, ET AL.,

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

BRIEF OF VICTIMS OF IRANIAN

TERRORISM AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

THOMAS FORTUNE FAY MATTHEW D. MCGILL

Fay LAw GRowP, P.A. Counsel of Record

777 6th Street N.W. MICHAEL R. HUSTON

Suite 410 LOCHKLAN F. SHELFER

Washington, D.C. 20001 GIBSON, DUNN & CRUTCHER LLP

(202) 589-1300 1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

JANE CAROL NORMAN (202) 887-3680

BOND & NORMAN Law, PC mincgill@gibsondunn.com

777 6th Street N.W

Suite 410

Washington, D.C. 20001

(202) 682-4100

Counsel for Amici Curiae

Liary of Cougs

TABLE OF CONTENTS

Page

ope gt ge te fa t. ! | I 1

SUP MUU OU" PADUER o5ooicacescdndsnsieisncdescccacns 3

UE ME i ag cia uc odd bdan bisaa satrlabbedatsacibaelsossioaait 6

28 U.S.C. § 1610(g)1) Is A FREESTANDING

EXCEPTION TO ATTACHMENT IMMUNITY ................ 6

A. Congress adopted 28 U.S.C.

§ 1610(g)(1) in the course of

expanding the rights of victinis of

I ase cheats caret, res cuba Se nalafernnceausseuts 6

B. Section 1610(g)(1)’s text and

structure allow victims to attach

any property of a foreign siute

sponsor of terrorism or its

MUNI CII sso hoosecicdcucdscessessncvacees 12

C. Section 1610(g)(1)’s background

and purpose confirm the meaning

RI NN I i o6 chic scaicsiwntices<sendorens 14

D. Courts and commentators have

understood Section 1610()(1) to be

a freestanding exception to

attachment immunity ...............0000......06. 16

E. Tran’s narrow reading of Section

1610(g\1) cannot be reconciled

with the statute’s text and

UE eivcadeas chvcvsesenecxestes iy nda eeuldoseatecr roms 22

PMN UD IIMOD og cicyaccpvapecesocaccsss-sdavpalusccsactssccdrencs oan

il

TABLE OF AUTHORITIES

Page

Cases

Alejandre v. Telefonica Larga Distancia de

Puerto Rico, Inc.,

SD ee Be rye bis ee) | Se eoenene 10

Bank Markazi v. Peterson,

De ri a Pook secaseaniss bicercsekesvesdes 1, 5, 16

Bennett v. Islamic Republic of fran,

507 F. Supp. 2d 117 (D.D.C. 2007).................. 2, 25

Bennett v. Islamic Republic of Iran,

825 F.3d 949 (9th Cir. 2016).......... 2, 14, 18, 25, 26

Bennett v. Islamic Republic of Iran,

927 F. Supp. 2d 833 (N.D. Cal. 2013)..........0008 2

Bruesewitz v. Wyeth LLC,

Sy Fst Se UNE Ec cov saceeette ctecicksobvuckseetbossvedbeshies 27

Calderon-Cardona v. Bank of New York Mellon,

Fe ee te rs BOD viccprinetinccsccindvadiocpdscheess 17

Cicippio-Puleo v. Islamic Republic of Iran,

BES Fe TORE CDC. Cit BOO) occ ccccciscccccocsccsccces. 9

Dean v. United States,

ee Se rg anck cde pebveccocescsbaceddosescnnssdanecins 31

Estate of Heiser v. Islamic Republic of Iran,

807 F. Supp. 2d 9 (D.D.C. 2O11)........0.00504..0.... 1, 20

First National City Bank v. Banco Para El

Comercio Exterior de Cuba,

PF tas % a0 h¢. : SARI nes 3, 10, 27

Flatow v. Islamic Republic of Iran,

308 F.3d 1065 (9th Cir. 2002Z).............c.cccccscccreeres 10

ill

Flatow v. Islamic Republic of Iran,

76 F. Supp. 2d 16 (D.D.C. 1908).........0:00000+«ss 10, 30

Gates v. Syrian Arab Republic,

TEB F.3d GOS Crile Cit, BOO) ais. so isess cde 19

Heiser v. Islamic Republic of fran,

736 F.3d 934 (D.C, Cir. 2013).............. Sapeceesa rend 18

Hester Intl Corp. v. Fed. Republic of Nigeria,

879 F.Ba UTC UA Clip, Fei recip ntkisescncesssriocien 27

Kapar v. Islamic Republic of Tran,

105 F. Supp. 3d 99 (D.D.C. 2015)................ 00000 19

Kirschenbaum v. 650 Fifth Ave. & Related Props.,

S30 F.36 107 CBS Cie. BIG) sseessiictssseseccessesvvnacoke 17

Lin v. United States,

561 F.3d GOS AC. Cir. BOGD). «...6cieccc.csaoe 24

Martinez v. Republic of Cuba,

149 F. Supp. 3d 469 (S.D.N-Y. 2016)................... 19

Microsoft Corp. v. I4] Ltd. P’ship,

BEE UD. Oh Gea avis ceestncteetaieee 26, 27

Ministry of Defense and Support for the

Armed Forces of the Islamic Republic of

Tran v. Cubic Def. Sys., Inc.,

984 F. Supp. 2d 1070 (S.D. Cal. 2013) ........cc000- 20

Morales v. Trans World Airlines, Inc.,

BOG TFB. SIG Cas secs sccscencecsssasecesnicihivcccieeaen 31

Oveissi v. Islamic Republic of fran,

$73 FP .3a BSS (DS. Ce. BRO wo osiccessicstieonsauean 23

Owens v. Republic of Sudan,

141 FP. Supp. 3d 2 COIR: BORG osc. cccisccsiccecsnmons 20

iv

Owens v. Republic of Sudan,

S664 F.3a 761 (D.C. Cir. 2017)................... eal ll

Peterson v. Islamic Republic of Iran,

516 F. Supp. 2d 26 (D.D.C. 2007).....................0 24

Peterson v. Islamic Republic of Iran,

I) 18

Republic of Argentina v. NML Capital, Ltd.,

I occ ccccuccosencenescocssscvesescsoessoeee 7

Republic of Austria v. Altmann,

Nee ee a cccvdcsscantswecseesecsccesoceses @

Rubin v. Islamic Republic of lran,

456 F. Supp. 2d 228 (D. Mass. 2006)................... 30

Saudi Arabia v. Nelson,

EE a 8

Schooner Exch. v. McFaddon,

Tee MID BBO GC BODBED convccccccsiscicesesseccscecnce 7

Stephan v. United States,

A

Veriinden B.V.v. Cent. Bank of Nigeria,

a os ss adasiuvcsasveesss 7

Walter Fuller Aircraft Sales v. Republic

of Philippines,

eg | 10

Weinstein v. Islamic Republic of Iran,

ee UD AEs. GN, SEP ROOD vo cnsccnsccccccescncsossese: 17

Wyatt v. Syrian Arab Republic,

UO GON, SPUD oc ccsccsceccscecccscnscsssssecce 19

Statutes

Be Cree I isisdinichsssescssnectecsonss ncaabieaanaanaoan 10

Be Ns Oe I catetistesss ccscnisodhscitatetaseictnmccneirounens enous 7

ns as Ur I ince a oa ee 7

28 U.S.C. § 1605(a)7) (2006)..............9, 18, 23, 24, 25

28 U.S.C. § 1605A.....4, 5, 6, 11, 12, 18, 15, 17, 18, 19,

20, 21, 23, 24, 25, 26, 28, 29, 31, 32

Be Wes GINS neiciolbdsvsiesctusttvccdiccemecnenas 13, 23, 24

28 1).8.C. § 1606A(c).................- 4, 6, 11, 13, 23, 24, 29

et RG eRe Ne Se Re: oe re a MP ee rare 2

28 U.S.C. § 1609......... ssictehpaatibdaadimdciacundeiacaedaa smal 7

Be RE en, Oe MI aisisissiceciccaiccariahs don stieadlecahestanceaabananieedaane

.. 3, 5, 6, 8, 9, 10, 15, 16, 17, 19, 21, 23, 24, 25, 26,

27, 28, 30, 31

a APs Oh SE teichcsescisecnnninteniaancnces 8, 9, 16, 19, 28

Be ae I dnissd sna inktichincnshiinainiebenctiinaddedsnacnaoane’ 31

ae Ge ee Chik easni civ iidiiceninninniatitinimseaeciomamiin 25

28 U.S.C. § 1610(g)(1)..... 1, 2, 3, 4, 5, 6, 11, 12, 13, 14,

15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28,

29, 30, 31, 32

Pn OF ND le On 7

At: GA: © GI iice sntcinctasnasciadanisccnaniguecsescsn 1, 28

Antiterrorism and Effective Death Penalty

Act of 1996 § 221,

Pub. L. No. 104-132,

BE PIID, BG, SID ovnseeicisivecesateatstsotenssenn 8,9

vil

Iran Threat Reduction and Syria Human

Rights Act of 2012 § 502(e 1A),

Pub. L. No. 112-158, 126 Stat. 1258, 1260.......... 25

National Defense Authorization Act for

Fiscal Year 2008 § 1083,

Pub. L. No. 110-181, 122 Stat. 3, 338—44................

Ste PaaS Salers nt 128 he ot F Sb aot Th anh BE ES 6, 11, 13, 29, 30

Terrorism Risk Insurance Act of 2002 § 201(a),

Pub. L. No. 107-297,

ee I ITD hc cs) a Keres enetincatideeneawietdndobadans 25

Regulations

31 C.F.R. § 596.201 note ........... dh culaliceakconbbdehentaieicadeloos 11

Determination of President of the United

States, No. 2001-3, 65 Fed. Reg. 66,483

ee ie a ESE Ttalh gt a en eee eee te Be 25

Legislative Materials

151 Cong. Rec. S6746

(daily ed. June 16, 2005)

(otatemmant of Bom. Bpecter)........06..0.ssesessccesessecccees 14

154 Cong. Rec. S55

(daily ed. Jan. 22, 2008)

(statement of Mr. Lautenberg)............................ 16

A bill to amend title 28,

H.R. 865, 109th Cong. (1st Sess. 2005) ...............14

A bill to amend title 28,

S. 1257, 109th Cong. (1st Sess. 2005)................. 14

H.R. Rep. No. 110-477 (2007) (Conf. Rep.).........15, 16

vii

Justice for Victims of State Sponsored

Terrorism Act,

S. 1944, 110th Cong. (1st Sess. 2007). ................ 15

Other Authorities

Archaeological Instit. of Am.,

On the Attachment of Cultural Objects

to Compensate Victirns of Terrorism

I, TO a ace, 22

14A Charles Alan Wright, et al.,

Federal Practice and Procedure § 3662.4

a, ae aay A edie) sues ae EE ae 21

Felix Frankfurter,

Some Reflections on the Reading

of Statutes,

ie I, Men, I. GE COR vensincccesccccencvnccencins 30

Holland Cotter,

Art Review, Beyond Babylon: Global

Exchange, Early Version,

Bs ig, I UII. I PIII cone vischsievnsmascnectocnsinciceses 21

Jennifer K. Elsea,

Cong. Research Serv., RL31258,

Suits Against Terrorist States by

Victims of Terrorism (2008)........... 8, 10, 15, 16, 31

3 Louis B. Kimmelman & Steven L. Smith,

Business and Commercial Litigation in

Federal Courts $ 21:67 (Ath ed. 2016) ................. 20

Nout van Woudenberg,

State Immunity and Cultural Objects

UE EE Ce iv vvecesscctrecs YEA BOE a de SERS ED of OETA 22

Vill

Stephen Dycus, et al.,

Counterterrorism Law (3d ed. 2016)

Tobias A. Dorsey.

Some Reflections on Not Reading

the Statutes,

10 Green Bay 2d 283 (2007) .............

ee eee ee eee 2 ee

ee ee

INTEREST OF AMICI CURIAE'

Amici are Michael and Linda Bennett, victims of

one of many terrorist attacks sponsored by the Islamic

Republic of Iran. Amici hold a judgment against Iran

for the murder of their daughter, and they have filed

proceedings to attach Iranian assets in the United

States in satisfaction of their judgments. Accordingly,

amici have a direct and substantial interest in the cor-

rect interpretation of the Foreign Sovereign Immuni-

ties Act (“FSIA”) and 28 U.S.C. § 1610(¢)(1) in particu-

lar.

Iran is a designated state sponsor of terrorism, 50

U.S.C. app. § 4605(j), that has systematically enabled

and financed terrorist atiacks for almost four decades.

For example, in 1983, Hezbollah—sponsored by lran—

detonated a truck bomb at a Marine barracks in Bei-

rut, Lebanon, killing 241 American servicemen and

wounding dozens more. See Bank Markazi v. Peterson,

136 5. Ct. 1310, 1319-20 & n.6 (2016). The 1996

bombing of the Khobar Towers in Saudi Arabia. an-

other attack accomplished with Iran’s material] sup-

port—killed 19 United States servicemen among

many others. See Estate of Heiser v. Islamic Republic

of Iran, 807 F. Supp. 2d 9, 11 (D.D.C. 2011).

Amici are the parents of Marla Ann Bennett, an

American who died on July 31, 2002, when a Hamas

1 Pursuant to this Court’s Rule 37.6, counsel for ansici curiae

states that. no counsel for any party authored this brief in whole

or in part, and no party or counsel for a party, or any other person

other than amici curiae or their counsel, made a monetary con-

tribution to fund the preparation or submission of this brief. All

parties have filed letters with the Clerk consenting to briefs of

amici curiae.

2

operative detonated a bomb at the cafeteria of the He-

brew University of Jerusalem. In an action in fedcral

court in the District of Columbia, amici proved by “ev-

idence satisfactory to the court,” 28 U.S.C. § 1608(e),

that Iran materially supported Hamas, and was thus

liable for the attack that killed their daughter. See

Benneit v. Islamic Republic of Iran, 507 F. Supp. 2d 117

(D.D.C. 2007). Amici are among the respondents in

this Court in Bank Melli v. Bennett, No. 16-334. The

Bennett case illustrates how Section 1610(g)(1)

properly functions as a freestanding exception to a for-

eign state’s sovereign immunity, as the Ninth Circuit

concluded. See Bennett v. Islamic Republic of Iran, 825

F.3d 949, 958-62 (9th Cir. 2016).

Bank Melli is lran’s largest bank, wholly owned by

the government of Iran. Bennett, 825 F.3d at 957.

Bank Melli is owed approximately $18 million in

funds by Visa Inc. that are located in the United

States and arise from a commercial relationship in-

volving the use of Visa credit cards in Iran. Ibid. The

Bennett Respondents filed a complaint in federal court

seeking turnover of the Visa assets to satisfy their

judgments against Iran. /jid. The district court con-

cluded that Section 1610(g)(1) allows the Bennett Re-

spondents to attach Bank Melli’s assets even if those

assets are not used for commercial activity in the

United States. Bennett v. Islamic Republic of Iran, 927

F. Supp. 2d 833 (N.D. Cal. 2013). The Ninth Circuit

affirmed, holding that Section 1610(g)(1) “was meant

[by Congress] to allow attachment and execution with

respect to any property whatsoever of the foreign state

or its instrumentality.” Bennett, 825 F.3d at 961 (em-

phasis added).

3

Whereas this case involves extraordinary facts

and an attempt to attach museum antiquities, the

facts in Bennett—which involves money in an ac-

count—are much more common among victims invok-

ing Section 1610(gX1) to execute on their judgments

and attach the assets of foreign state sponsors of ter-

rorism.

In this brief, amici argue that construing Section

1610(g)(1) as a freestanding exception to the sovereign

immunity of assets of state sponsors of terrorism is

most consistent with the statutory text, as well as

Congress’s manifest purpose to enlarge opportunities

for victims of state-sponsored terrorism to access the

funds of those terrorist states.

SUMMARY OF ARGUMENT

Section 1610(g)(1) is a freestanding exception to a

foreign state’s immunity against attachment and exe-

cution. Before 2008, Congress perceived multiple

problems with the existing statutes authorizing vic-

tims of terrorism to obtain judgments against state

sponsors of terrorisni and then to attempt to satisfy

those judgments: (1) Some courts did not recognize a

cause of action directly against foreign states (only

against their agents); (2) because of sanctions regimes,

state sponsors of terrorism generally did not have as-

sets in the United States that were used for a commer-

cial activity, as required for attachment by 28 U.S.C.

§ 1610(a); and (3) some courts interpreted this Court's

decision in First National City Bank v. Banco Para El

Comercio Exterior de Cuba (“Bancec”), 462 U.S. 611

(1983), to mean that victims of state-sponsored terror-

ism generally could not attach assets of an agency or

+

instrumentality of the terrorist state in satisfaction of

a judgment against the state.

Congress addressed all of these problems when it

amended the FSIA in 2008. First, Congress created a

broad new cause of action directly against foreign

states for their sponsorship of terrorism, in 28 U.S.C.

§ 1605A(c). At the same time, in order to enable vic-

tims to collect on their judgments, Congress paired

that cause of action with a similarly broad new provi-

sion in Section 1610(g)(1) to govern attachment and

execution of assets in satisfaction of judgments en-

tered under Section 1605A. Section 1610(g1) em-

powers victims to attach “the property” of the terrorist

state, or of its agencies and instrumentalities, without

limitation to assets used for a commercial activity.

And Congress further specifically abrogated, in this

particular setting, the doctrine emanating from

Bancec that had been held to limit when the assets of

separate juridical entities can be seized in satisfaction

of judgments against a foreign state. Section

1610(g)(1) thus makes all property belonging to a ter-

rorist state’s agencies and instrumentalities subject to

attachment to satisfy a judgment against the state.

The statutory background of Section 1610(g)1)

confirms the text’s broad meaning. The legislation

was deliberately crafted in order to overcome the bar-

riers that were preventing victims of terrorism from

obtaining meaningful recovery. Multiple courts and

commentators accordingly have read Section

1610(g1) as a freestanding abrogation of attach-

ment-immunity that allows victims of terrorism with

judgments under Section 1605A to access any prop-

erty of the foreign state or its agency or instrumental-

ity. In fact, this Court suggested that was the best

5

reading of the text in dicta in Bank Markazi v. Peter-

son, 136 S. Ct. 1310, 1318 n.2 (2016).

Section 1610(g)(1) allows attachment “as provided

in this section,” but Iran is wrong to argue that phrase

means that victims of terrorism with judgments under

Section 1605A must necessarily satisfy the require-

ments of another immunity exception set forth in Sec-

tion 1610, in order to prevent Section 1610(a)(7) from

being rendered superfluous. Section 1610(a)(7) is not

superfluous, and never has been. Section 1610(g)(1) is

available only for victims with judgments “entered un-

der section 1605A.” Yet there are many plaintiffs who

have judgments against a state sponsor of terrorism

under some other cause of action, and for them, Sec-

tion 1610(a) remains the only viable means of attach-

ment. The fact that Section 1610(g)(1) and Section

1610(a)(7) will overlap in certain cases is not surpris-

ing or odd in this statute: Congress has repeatedly

expanded the rights of victims of terrorism by enact-

ing attachment-immunity exceptions that partially

overlap in certain cases. Congress deliberately used

Section 1610(g\1) to give victims a broad new attach-

ment right, thereby ensuring that victims iike peti-

tioners and amici can actually collect against state

sponsors of terrorism like Iran.

Iran is also wrong to contend that Section

1610(g)(1) does nothing more than abrogate Bancec in

cases involving the seizure of assets in satisfaction of

judgments under Section 1605A. Bancec applies only

in cases involving the property of a juridical entity

separate from the foreign state, so lran’s reading can-

not be reconciled with the text of Section 1610(gX1),

which enables victims with judgments under Section

1605A to attach the property of the foreign state itse/y.

6

The statutory phrase “upon that judgment as pro-

vided in this section” refers to Section 1083 of the Na-

tional Defense Authorization Act for Fiscal Year 2008,

Pub. L. No. 110-181, 122 Stat. 3, 338-44, which created

both 28 U.S.C. § 1610(g)\1) and the cause of action in

Section 1605A(c) that enabled victims to obtain “that

judgment.” That reading is most consistent with the

statutory purpose and would avoid the anomalies cre-

ated by Iran’s interpretation. In particular, whereas

[ran argues that victims of terrorism with judgments

under Section 1605A must overcome the commercial-

use requirement in Section 1610(a), that requirement

was precisely one of the provisions that frustrated vic-

tims of terrorism in their attempts to recover before

2008, and it was those frustrations that Congress

sought to climinate with Section 1610(g){1). Because

state sponsors of terrorism hav- ‘ew assets used for a

commercial activity in the United States, Iran’s read-

ing of Section 1610(g)(1) would give victims almost no

benefit at all. The text of Section 1610(g1) does not

limit the right to attachment to property that is used

for commercial activity, and victims with judgments

entered under Section 1605A are entitled to rely on

the more specific attachment-immunity exception

that was created just for them.

ARGUMENT

28 U.S.C. § 1610(g)(1) IS A FREESTANDING

EXCEPTION TO ATTACHMENT IMMUNITY

A. Congress adopted 28 U.S.C. § 1610(g)(1)

in the course of expanding the rights of

victims of terrorism

1. The jurisdiction of the United States over per-

sons and property within its territory “is susceptible

7

of no limitation not imposed by itself” Schooner Exch.

v. McFaddon, 11 US. (7 Cranch) 116, 136 (1812). Ac-

cordingly, the inumunity of a foreign state in United

States courts is “a matter of grace and comity rather

than a constitutional requirement.” Republic of Aus-

tria v. Altmann, 541 U.S. 677, 689 (2004).

Originally, foreign states enjoyed “virtually abso-

lute immunity” from suit. Verlinden B.V. v. Cent. Bank

of Niveria, 461 U.S. 480, 486 (1983). Before Congress

enacted genera! legislation addressing foreign sover-

eign immunity, courts looked to the Executive Branch

for guidance. /d. at 486-87. The Executive ultimately

adopted a “restrictive” theory of foreign sovereign im-

munity, under which foreign states were immune from

their public acts, but were not immune for purely

“commercial acts.” Id. at 487.

The FSIA, 28 U.S.C. § 1602 et seq., enacted in 1976,

created a “comprehensive set of legal standards gov-

erning claims of immunity in every civil action against

a foreign state.” Republic of Argentina v. NML Capi-

tal, Ltd., 134 S. Ct. 2250, 2255 (2014). The FSIA pro-

vides that foreign states are generally “immune” from

state and federal jurisdiction, 28 U.S.C. § 1604, but it

establishes various exceptions permitting particular

types of suits, id. §§ 1604-1607, including where the

claim is “based upon a commercial activity carried on

in the United States,” id. § 1605(a)(2).

The FSIA also addresses the immunity of a for-

eign state’s assets. As originally enacted, the FSIA

gencrally codified the restrictive theory of foreign sov-

ereign immunity. Thus, the property of a foreign state

is generally immune from execution, 28 U.S.C. § 1609,

subject to exceptions, id. $§ 1610-1611. Among other

5

exceptions, the property of a foreign state in the

United States is not immune when it is “used for a

commercial activity in the United States” and certain

other conditions are satisfied. Jd. § 1610(a). Similarly,

the property of an agency or instrumentality of u for-

eign state is available to satisfy a judgment against

that agency or instrumentality when it is “engaged in

commercial activity in the United States” and certain

other conditions are satisfied. Jd. § 1630(b).

2. Congress has continually amended and added

to the FSIA’s immunity-exceptions to expand plain-

tiffs’ ability to sue foreign states and attach their

property. In particular, Congress has repeatedly

sought to expand opportunities for victims of state-

sponsored terrorism to establish lability and collect

damages. Iran has long sponsored and financed ter-

rorist attacks, such as the suicide bombing perpe-

trated on petitioners here by Hamas. See Pet. App.

1-2. But until the mid-1990s, victims of such horrific

attacks could not seek damages or enforce judgments

against Iran; “foreign States were immune from civil

liability in U.S. courts for injuries caused by acts of

terrorism carried out by their agents and proxies,” be-

cause such acts of terrorism were not viewed as “com-

mercial activity.” Jennifer K. Elsea, Cong. Research

Serv., RL31258, Suits Against Terrorist States by Vic-

tims of Terrorism 1 (2008); see also Saudi Arabia v.

Neilson, 507 U.S. 349, 361-62 (1993).

Beginning in 1996, Congress amended the FSIA

several times in order to enable victims of terrorism

to sue state sponsors of terror and to enforce their

judgments. In the Antiterrorism and Effective Death

Penalty Act of 1996 (““AEDPA”), Pub. L. No. 104-132,

110 Stat. 1214, Congress created a new exception to

9

the FS1A’s immunity from jurisdiction to permit law-

suits by U.S. nationals alleging commission of or sup-

port for an act of terrorism against designated state

sponsors of terrorism. ZJd. at § 221, 110 Stat. at

1241-43 (codified at 28 U.S.C. § 1605(a\7) (2006) (re-

pealed)). At the same time, AEDPA matched that ex-

ception from jurisdictional immunity from suit with a

new exception to the FSIA’s immunity from attach-

ment and execution, The new Section 1610(a)(7) per-

mitted seizure of the foreign state’s assets when they

were “used for a commercial activity in the United

States” and the party seizing the assets held a judg-

ment that “relates to a claim for which the foreign

state is not immune under section 1605(a)(7).”

AEDPA § 221, 110 Stat. at 1243 (codified at 28 U.S.C.

§ 1610(a\7) (2006)). Similarly, if “the judgment re-

lates to a claim for which” the foreign state’s “agency

or instrumentality is not immune by virtue of ... sec-

tion 1605(aX7),” then execution is possible against the

property of that agency or instrumentality if it “en-

gage(s] in commercial activity in the United States.”

28 U.S.C. § 1610{bX3).

But AEDPA did not immediately succeed in allow-

ing victims of state-sponsored terrorism to obtain re-

dress. Some courts held that 28 U.S.C. § 1605{a)(7)

and its amendments did not create a cause of action

against foreign states (only against their agents), re-

quiring plaintiffs to rely on widely varying state-law

wrongful death and personal injury causes of action

against forcign states. See, e.g., Cicippio-Puleo v. Is-

lamic Republic of Iran, 353 F.3d 1024, 1027 (D.C. Cir.

2004). Moreover, when victims did obtain judgments,

they often could not collect because state sponsors of

terrorism—which were usually subject to an array of

10

sanctions—conducted few commercial activities in the

United States that would potentially make property

available for attachment under Section 1610(a)7) or

(bX3). See Elsea, supra, at 7—9; Flatow v. Islamic Re-

public of Iran, 76 F. Supp. 2d 16, 24 (D.D.C. 1999)

(bank accounts were not related to commercial activ-

ity and thus not subject to attachment under Section

1610(a)(7)).

In addition, based on this Court's decision in First

National City Bank v. Banco Para Ei Comercio Exie-

rior de Cuba (“Bancec”), 462 U.S. 611, 620-21 (1983),

courts generally rejected efforts by plaintiffs to satisfy

their judgments against state sponsors of terrorism by

seizing assets of agencies or instrumentalities of those

states. See, e.g., Alwjiandre v. Telefonica Larga Dis-

tancia de Puerto Rico, Inc., 183 F.3d 1277, 1287 (11th

Cir. 1999); Flatow v. Islamic Republic of Iran, 308 F.3d

1065, 1071 n.9 (9th Cir. 2002). Bancec had established

a general presumption that “government instrumen-

talitics established as juridical] entities distinct and

independent from their sovercign should normally be

treated as such.” 462 US. at 626-27. After Bancec,

some courts pronounced five “Bancec factors” to deter-

mine whether the presumption of separateness has

been overcome. See Walter Fuller Aircraft Sales v. Re-

public of Philippines, 965 F.2d 1375, 1380 n.7 (5th Cir.

1992). Although the text of Section 1610(a)(7) seems

to allow seizure of an instrumentality’s assets that are

used for a commercial activity in the United States—

it allows qualifying judgments against “the foreign

state” to be enforced against property in the United

States of the “foreign state, as defined in |28 U.S.C.

§ 1603(a)],” including “an agency or instrumentality of

a foreign state,” id. § 1603(a)—cases like Alejandre

11

and Flatow invoked the “Bancec factors” and held that

the presumption of separateness had not been over

come, so the property of agencies or instrumentalities

could not be seized.

In 2008, Congress addressed all of these prob-

lems—the absence of a clear federal cause of action

against terrorist states; the limitation of seizures to

the virtually non-existent category of assets “used for

a commercial activity in the United States”; and the

inability to recover from the agencies and instrumen-

talities of terrorist states—by amending the FSIA as

part of the National Defense Authorization Act for

Fiscal Year 2008 (“2008 NDAA”) § 1083, Pub. L. No.

110-181, 122 Stat. 3, 338-44. Congress abrogated Ci-

cippio-Puleo by creating a new, more expansive fed-

eral-law cause of action directly against foreign-state

sponsors of terrorism for their support of terrorist. at-

tacks. 28 U.S.C. § 1605A(c); see also Owens v. Republic

of Sudan, 864 F.3d 751, 765 (D.C. Cir 2017). And in

the same Section of the 2008 NDAA, Congress created

Section 1610(g(1), a new provision to govern attach-

ment and execution against the asscts of a foreign

state and its agencies and instrumentalities in terror-

ism cases.*

2 Today, the remaining designated state sponsors of terrorism

are Lran, Sudan, and Syria. See 31 C.F.R. § 596.201 note. So

Section 1605A and the attendant attachment-immunity excep-

tion in Section 1610(¢X1) can be applied against the assets only

of those states.

12

B. Section 1610(g)(1)’s text and structure

allow victims to attach any property of a

foreign state sponsor of terrorism or its

instrumentalities

The text of 28 U.S.C. § 1610(g)(1)—in contrast to

earlier statutes that provided for seizure of foreign

states’ assets—uscs exceedingly broad and encom-

passing language to describe terrorism victims’ enti-

tlement to attachment and execution. When a victim

has obtained a “judgment ... under section 1605A”

against a foreign state sponsor of terrorism for its role

in carrying out or facilitating terrorism, “the property

of [the] foreign state, ... and the property of an agency

or instrumentality of such a state, including property

that is a separate juridical entity or is an interest held

directly or indirectly in a separate juridical entity, is

subject to attachment in aid of execution, and execu-

tion, upon that judgment as provided in this section.”

Ibid. (emphases added). The assets are subject to at-

tachment “regardless of” the Bancec factors. Ibid.

Thus, by the plain text of the statute, Section

1610(g\(1) does multiple things at once for victims of

terrorism with judgments under Section 1605A: First,

in cases where a victim locates property of the terror-

ist state itself, Section 1610(g\1) abrogates execution

and attachment immunity and enables the victim to

attach “the property.” Second, in cases where the vic-

tim locates the property of the terrorist state’s agency

or instrumentality, Section 1610(g)(1) additionally

makes that property available to satisfy the Section

1605A judgment. And for those latter cases, the stat-

ute also specifically abrogates the Bancec factors,

making pellucid Congress’s intention that the assets

of any agency or instrumentality of a terrorist state be

13

available for seizure “regardless of” its status as a sep

arate juridical entity.

This comprehensive right to attachment is con-

sistent with the structure of the FSLA as a whole after

Congress amended it in the 2008 NDAA. The attach-

ment provision in Section 1610(g)(1) corresponds to

the new cause of action in Section 1605A that Con-

gress created in the same section of the same legisla-

tion. When Congress gave to certain victims of state-

sponsored terrorism a new federal cause of action

against terrorist states, 28 U.S.C. § 1605A(c), it also

provided to persons with judgments under that new

cause of action the right to seize, in satisfaction of

those judgments, the assets of both the terrorist state

and its agencies and instrumentalities. That is why

the 2008 NDAA labeled Section 1610(g)(1) as a “con-

forming amendment{ |” to the provision that created

Section 1605A. 2008 NDAA § 1083(b)(3), 122 Stat. at

341. The breadth of Sections 1605A and 1610(g)(1) ac-

cord with each other, and the provisions work together

to overcome the barriers that existed under the prior

version of the FSIA and thereby enable meaningful re-

covery for victims.

Congress well understood that it was according

terrorism victims an extremely powerful new tool to

obtain redress, but at the same time tethering that

tool to the new federal cause of action under Section

1605A. For that reason, Congress included in the 2008

NDAA a provision allowing plaintiffs who had previ-

ously proceeded under Section 1605(a)(7)’s immunity

exception to convert their judgments or refile their

claims under Section 1605A. See 28 USC.

§ 1605A(a)(2)(ADG XID.

14

C. Section 1610(g)(1)’s background and

purpose confirm the meaning of the

broad text

It is undisputed that, in the 2008 NDAA, Congress

“meant to expand successful plaintiffs’ options for col-

lecting judgments against state sponsors of terror-

ism.” Bennett v. lslamic Republic of Iran, 825 F.3d 949,

961 (9th Cir. 2016).

The legislation that eventually became Section

1610(g\(1) first was debated in 2005. See A bill to

amend title 28, S. 1257, 109th Cong. (1st Sess. 2005);

To amend title 28, H.R. 865, 109th Cong. (1st Sess.

2005). Senator Specter, in his remarks introducing

the bill, stated that it would “clarifly] a private right

of action, in Federal courts, for U.S. citizens against

state sponsors of terrorism and wil] ultimately make

it easier for victims of such acts to collect court-

ordered damages against state-sponsors of terrorism.”

151 Cong. Rec. S6746 (daily ed. June 16, 2005)

(statement of Sen. Specter). Regarding attachment,

Senator Specter stated that the bill would “eliminatle]

many of the barriers which have prevented US.

citizens from collecting on court ordered damages

against state sponsors of terrorism,” referencing

Bancec in particular. Jbid. Senator Specter stated

that the bill would “ease the burden on the families of

victims of terrorism by permitting them to attach the

hidden assets of terrorist states held within the

United States.” Jbid. Senator Specter’s bill died in

committee.

In 2007, Senator Lautenberg introduced a new bill

that was ultimately enacted as part of the 2008

15

NDAA. Justice for Victims of State Sponsored Terror-

ism Act, S. 1944, 110th Cong. (1st Sess. 2007). The

Report of the Conference Committee described the

legislation as “expandling] the ability of claimants to

seek recourse against the property of {terrorism-spon-

soring] foreign state[s]” by “permitting any property

in which the foreign state has a beneficial ownership

to be subject to execution of that judgment.” H.R. Rep.

No. 110-477, at 1001 (2007) (Conf. Rep.). The Confer-

ence Report then reiterated that “the provision is writ-

ten to subject any property interest in which the for-

eign state enjoys a beneficial ownership to attachment

and execution.” Jd. at 1001-02 (emphasis added).

After the 2008 NDAA was enacted, a report on it

by the Congressional Research Service likewise stated

that “the purpose of thlis| provision is to enable any

property in which the foreign state has a bencficial

ownership to be subject to execution for terrorism

judgments, except for diplomatic and consular prop-

erty,” and that “(t]he language renders subject to exe-

cution any property” that belongs to “the defendant

foreign State.” Elsea, supra, at 55.

Section 1610(g)(1)’s legislative history thus con-

firms what its text shows. The provision accomplishes

two goals: (1) it expands the universe of foreign-state

assets and foreign-instrumentality assets that are

available for attachment and exccution upon Section

1605A judgments in order to sweep in not just assets

“used for a commercial activity in the United States,”

28 US.C. § 1610(a), but “any property interest” of a

terrorist state; and (2) for assets held in the name of

separate juridical entities, Section 1610(g)(1) specifi-

cally abrogates Bancec as a barrier to attachment.

16

The statute “permit|s] any property in which the for-

eign state has a beneficial ownership to be subject to

execution of that judgment,” H.R. Rep. No. 110-477, at

1001, and “renders subject to exccution any property”

of “the defendant foreign State,” Elsea, supra, at

45-46, “upon the satisfaction of a ‘simple ownership’

test,” 154 Cong. Rec. S55 (daily ed. Jan. 22, 2008)

(statement of Mr. Lautenberg), without regard to

whether the property is used for a commercial activity.

D. Courts and commentators have

understood Section 1610(g)(1) to be a

freestanding exception to attachment

immunity

1. The vast majority of courts to interpret Section

1610(g\1) have read it as just such a freestanding ab-

rogation of attachment immunity. In fact, this Court

read Section 1610(g)(1) that way (albeit in dicta) in

Bank Markazi v. Peterson, 1386 S. Ct. 1310 (2016).

There, the Court explained that “[vlictims of state-

sponsored terrorism ... have often faced practica! and

legal difficulties” enforcing their judgments. Jd. at

1317-18. At first, “only foreign-state property located

in the United States and ‘used for a commercial activ-

ity’ was available for the satisfaction of judgments.”

Id. at 1318 (quoting 28 U.S.C. § 1610(a\(7), (bX3)). But

then in 2008, Congress enacted Section 1610(g¢)(1),

which “expand[ed] the availability of assets for

postjudgment exccution” by “mak[ing] available for

execution the property ... of a foreign state sponsor of

terrorism, or its agency or instrumentality, to satisfy

a judgment against that state.” Jd. at 1318n.2. This

Court’s opinion in Bank Markazi shows that the sim-

plest reading of Section 1610(g1) is also the best:

The provision abrogates immunity against execution

17

for judgment-holder victims; it does not force those

victims back into the difficult task of satisfying the

commercial-use requirement of Section 1610(a).

Moreover, until the Seventh Circuit’s opinion in

this case, every court of appeals to consider the issue

had held or suggested that. Section 1610(g)(1) created

a freestanding exception to attachment immunity.

The Second Circuit, for instance, stated that Section

1610(g)(1) “allow{s] attachment of property of a for-

eign state against which a judgment is entered under

section 1605A.” Calderon-Cardona v. Bank of New

York Mellon, 770 F.3d 993, 999 (2d Cir. 2014). The Sec-

ond Circuit also made clear that “Section 1610(g) not

only allows attachment of property of a foreign state

but also property of an agency or instrumentality that

is a separate juridica] entity or is an interest held di-

rectly or indirectly in a separate juridical entity.” [bid.

The Second Circuit thus helpfully distinguished Sec-

tion 1610(g)(1)’s two effects: (1) abrogating attach-

ment immunity fur all foreign-state and foreign-in-

strumentality property in Section 1605A cases; and

(2) abrogating the Bancec presumption and use of the

Bancec factors in cases involving separate juridical

entities. See also Kirschenbaum v. 650 Fifth Ave. &

Related Props., 830 F.3d 107, 123 (2d Cir. 2016) (“Sec-

tion 1610(g) strips FSIA attachment immunity from

the property of a ‘foreign state’ or of its ‘agency or in-

strumentality’ if the underlying judgment was en-

tered under § 1605A’s terrorism exception.”).

The D.C, Circuit also hus stated that, “lo]nce a

Section 1605A judgment is obtained, Section 1610(g)

strips execution immunity from ail property of a de-

fendant sovereign.” Weinstein v. Islamic Republic of

fran, 831 F.3d 470, 483 (D.C. Cir. 2016). Section

18

1610(g)(1) “subjects to attachment the property of a

foreign state and the property of an agency or instru-

mentality of such a state against which a plaintiff

holds a judgment under 28 U.S.C. § 1605A.” Heiser v.

Islamic Republic of Iran, 735 F.3d 934, 937 (D.C. Cir.

2013). Thus, Section 1610(g)(1)’s *requirements” are

“satisfied” if the assets at issue are “property” of “a for-

eign state” against whom “plaintiffs hold a judgment

under ... 28 U.S.C. § 1605A.” Jd. at 937-38 (internal

quotation marks omitted).

And in Bennett v. Islamic Republic of Iran, 825

F.3d 949 (9th Cir. 2016), where amici are plaintiffs, the

Ninth Circuit dealt extensively with this question.

The court held that “subsection (g) contains a free-

standing provision for attaching and executing

against assets of a foreign state or its agencies or in-

strumentalities.” Jd. at 959. That provision “covers a

different subject than § 1610(a) through (e): by its ex-

press terms, it applies only to ‘certain actions,’ specif-

ically, judgments ‘entered under Section 1605A.”” [hid.

“By definition, such claims do not arise from commer-

cial activity; they arise from acts of torture (and the

like).” lbid. Therefore, “Section 1610(g) requires only

that a judgment under § 1605A have been rendered

against the foreign state; in that event, both the prop-

erty of the foreign state and the property of an agency

or instrumentality of that state are subject to attach-

ment and execution.” Jbid. Bennett was also con-

sistent with a prior opinion from the Ninth Circuit,

which had interpreted Section 1610(g)(1) as “ex-

pand[ing] the category of foreign sovereign property

that can be attached; judgment creditors can now

19

reach any U.S, property in which Iran has any inter-

est.” Peterson v. Islamic Republic of Iran, 627 F.3d

1117, 1123 n.2 (9th Cir. 2010).

Before Rudin, the Seventh Circuit had twice inter-

preted Section 1610(g)(1) as a freestanding abrogation

of attachment immunity, holding that the provision

“authorizes attachment of property of foreign state

sponsors of terrorism and their agencies or instru-

mentalitics to execute judgments under § 1605A for

state-sponsored terrorism” even when plaintiffs “are

not seeking attachment under § 1610(a) or (b).” Gates

v. Syrian Arab Republic, 755 F.3d 568, 575 (7th Cir.

2014). The Seventh Circuit in Gates stated that when

Congress “replaced the then-existing terrorism excep-

tion to immunity ... with a broader terrorism excep-

tion” in Section 1605A, Congress matched that broad

cause of action with Section 1610(g)(1), a “powerful at-

tachment provision available only to victims of state-

sponsored terrorism who hold judgments under

§ 1605A.” Ibid. And in Wyatt v. Syrian Arab Republic,

the Seventh Circuit held that Section 1610(g)(1) is not

subject to Section 1610's other requirements, which is

“consistent with” Congress’s purpose “to make it cas-

ier for terrorism victims to obtain judgments and to

attach assets.” 800 F.3d 331, 343 (7th Cir. 2015). See

also Pet. App. 41 (Hamilton, .J., dissenting from denial

of rehearing en banc) (“(I)n interpreting an ambiguous

statutory text [like Section 1610(g)(1)], we can and

should draw on statutory purpose and legislative his-

tory.”).

Many district courts have come to the same con-

clusion. See, e.g., Martinez v. Republic of Cuba, 149 F.

Supp. 3d 469, 473 (S.D.N.Y. 2016) (“FSIA Section

20

1610(g) abrogates sovereign immunity against execu-

tion fur judgments under Section 1605A.”); Kapar v.

Islamic Republic of Iran, 105 F. Supp. 3d 99, 107

(D.D.C. 2015) (“for awards under Section 1605A, the

property of a foreign state, agency, or instrumentality

available for attachment is not limited by any refer-

ence to ‘commercial activity.” ... Congress therefore

made it much easier for Section 1605A plaintiffs to

collect on their judgments”); Ministry of Defense and

Support for the Armed Forces of the Islamic Republic

of Tran v. Cubic Def. Sys., Inc., 984 F. Supp. 2d 1070,

1094-95 (S.D. Cal. 2013) (“The plain language of the

statute supports a broad reading. Section 1610(g) al-

lows attachment of any ‘property of a foreign state

against which a judgment is entered under Section

1605A.’ Congress did not qualify the definition by lim-

iting it to property connected to a commercial activ-

ity.”); Estate of Heiser v. Islamic Republic of Iran, 807

F. Supp. 2d 9, 19 n.8 (D.D.C. 2011) (“[Section] 1610(g)

does not limit attachment to property used in ‘com-

mercial activity—unlike the execution provisions

found in § 1610{a) & (b).”); but see Owens v. Republic

of Sudan, 141 F. Supp. 3d 1, 6 (D.D.C. 2015) (“[Section]

1610(g) is not [a] freestanding immunity exception.”).

2. Numerous legal treatises and commentators

have also understood Section 1610(g¢)(1) as both broad-

ening the scope of forcign-state and foreign-instru-

mentality assets that can be attached to satisfy Sec-

tion 1605A judgments, and abrogating the Bancec pre-

sumption for separate juridical cntitics. One treatise

states that Section 1610(g)(1) “limit[s] the application

of foreign sovereign immunity” as a “defense[ ] to post-

judgment attachment or execution with respect to

21

property belonging to designated state sponsors of ter-

rorism.” 3 Louis B. Kimmelman & Steven L. Smith,

Business and Commercial Litigation in Federal

Courts § 21:67 (4th ed. 2016).

Similarly, a prominent textbook states that Sec-

tion 1610(¢)(1) “exposes to attachment most property

in which a foreign state has an interest, when that

state has a judgment entered against it under

$1605A.” Stephen Dycus, et al., Counterterrorism Law

949 (3d ed. 2016). While Section 1610(a) is limited to

assets “used for a commercial activity,” Section

1610(g)\(1) “broadened the universe of exposed assets

further [beyond Section 1610(a)) to include most prop-

erty in which the foreign state has any interest.” Id.

at 951.

Wright & Miller’s leading treatise acknowledges

that, in addition to abrogating the Bancec presump-

tion, “Section 1610(g) also may provide a basis for at-

taching property, regardless of commercial use, in aid

of execution of a judgment entered under the terror-

ism exception.” 14A Charles Alan Wright, et al., Fed-

eral Practice and Procedure § 3662.4 (4th ed. 2017).

3. The attachment provision in Section 1610(g)(1)

is intentionally broad to reach a wide variety of for-

eign-state assets. At the time of the 2008 NDAA, mu-

seums and archaeological societies understood that

Section 1610(g)(1) would subject to attachment and

execution art pieces loaned from a state sponsor of ter-

rorism to a United States museum, even if the pieces

were not used for a commercial activity. Just after the

2008 NDAA was passed, Syria —another state sponsor

of terrorism—cancelled its planned loan of 55 artifacts

22

to the Metropolitan Museum of Art (“Met”), lest vic-

tims of Syrian terrorism attach the museum pieces.

See Holland Cotter, Art Review, Beyond Babylon:

Global Exchange, Early Version, N.Y. Times (Nov. 20,

2008) (describing the Met’s statement that “recent leg-

islation ... has made it too difficult and risky for the

planned loans to proceed”). The Archaeological Insti-

tute of America (“ALA”) issued a public statement de-

scribing the “concern,” “in light of the 2008 amend-

ments,” that “the objects” would not be protected “from

attachment by individuals who have claims against

Syria for supporting terrorist activity.” AIA, On the

Attachment of Cultural Objects to Compensate Victims

of Terrorism (Feb. 9, 2009)3; see also Nout van

Woudenberg, State Immunity and Cultural Objects on

Loan 117 (2012) (describing the incident).

Taking all of these sources together, an over-

whelming weight of authority has supported treating

Section 1610(g)(1) as a freestanding exception to the

attachment immunity of a terrorist state.

E. [ran’s narrow reading of Section

1610(g)(1) cannot be reconciled with

the statute’s text and purpose

1. Iran’s argument rests entirely on the clause in

Section 1610(g)(1) stating that foreign-state property

is subject to attachment “as provided in this section.”

Iran argues that those five words drastically change

the meaning of the statute from a provision that made

available for seizure all property interests of state-

sponsors of terrorism into a mere abrogation of

3 https://goo.g/EgXauQ

23

Bancec’s presumption of separateness, so that a ter-

rorism victim must still rely on some other provision

of section 1610 to overcome the immunity against at-

tachment of foreign-state property. Iran further con-

tends that this interpretation of “as provided in this

section” is necessary in order to avoid reading Section

1610(g 1) in a way that would render Section

1610(a)(7) superfluous. Br. in Opp. of Iran at 12; see

also Br. for the United States as Amicus Curiae Sup-

porting Certiorari at 12. Iran is wrong. Although the

two statutes will overlap in certain cases, Section

1610(g)(1) is at once both broader and narrower than

Section 1610(a)(7).

i. First, Section 1610(g)(1) is broader because,

whereas Section 1610(a)(7) removes immunity only

for a foreign state’s property that is “used for a com-

mercial activity in the United States,” Section

1610(g)(1) removes immunity from “the property of a

foreign state” and “the property of an agency or instru-

mentality” of that state. Section 1610(g)(1)’s text has

no “commercial use” limitation.

At the same time, however, Section 1610(g)(1) is

also narrower than Section 1610(a)(7). While Section

1610(¢)(1) requires “a judgment ... entered under sec-

tion 16054,” Section 1610(a)(7) applies to any judg-

ment that “relates to a claim for which the foreign

state is not immune under section 1605A or section

1605(a\(7).”. That latter category includes terrorism

claims against terrorist states as to which Section

1605A(a)(1) vitiates immunity, but which proceed un-

der state-law causes of action rather than the federal

cause of action created by Section 1605A(c). See

Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 841

24

(D.C. Cir. 2009) (“[Df an FSIA exception abrogates im-

munity, plaintiffs may bring state law claims that they

could have brought if the defendant were a private in-

dividual.”). There are numerous victims of state-spon-

sored terrorism for whom Section 1605A does not pro-

vide a cause of action, because the plaintiffs are not

nationals of the United States, members of the armed

forces, or employees or contractors of the United

States government, as required by 28 USC.

§ 1605A(chM 2AM). See, e.g., Peterson v. Islamic Re-

public of Iran, 515 F. Supp. 2d 25, 44—45 (D.D.C. 2007)

(plaintiffs obtained judgments against Iran under

state law), overruled on other grounds by Lin v. United

States, 561 F.3d 502, 208 (D.C. Cir. 2009). For these

victims and others proceeding under state law, Section

1610(a7) remains the primary operative attachment

provision.

The United States has argued that Section

1610(aX7) was “irrelevant” at least at the time the

2008 NDAA was passed because in that bill, Congress

amended Section 1610(aX7) by striking out the refer-

ence to Section 1605(a\7) and replacing it with a ref-

erence to Section 1605A, so that at the time, Section

1610(aX7) “referred sole/y to judgment creditors under

Section 1605A.” Br. for the United States as Amicus

Curiae Supporting Certiorari at 12. But the United

States has conflated the abrogation of immunity in

Section 1605A, which is what matters for purposes of

Section 1610(a)(7), with the cause of action in Section

1605A, which is what matters for Section 1610(g)(1).

Even at the time of the 2008 NDAA, Section 1610(a)(7)

remained quite relevant to any terrorism plaintiff who

was using the immunity-waiver in Section 1605A(a)

25

but who was proceeding under a state-law cause of ac-

tion. For those plaintiffs, their judgments would “re-

latel ] to a claim for which the foreign state is not im-

mune under section 1605A,” 28 U.S.C. § 1610(a)(7)

(2008), but the judgments would not be “entered under

section 1605A,” and thus the judgments could be en-

forced under Section 1610(a)(7) but not Section

1610(gX1). Reading Section 1610(g)(1) as a freestand-

ing abrogation of immunity for Section 1605A judg-

ment-holders has never rendered other provisions of

the FSIA superfluous.¢

ii. To be sure, Section 1610(g)(1) and Section

1610(aX(7) will sometimes overlap: There are some

victims of terrorism, and some categories of foreign-

state asscts, where execution would be possible under

either Section 1610(g)(1) or the commercial-use excep-

tion. Indeed, Bennett is just such a case. See Bennett,

825 F.3d at 967 (Benson, J., concurring in part and dis-

senting in part). But in this statute, that overlap is

not surprising or noteworthy. Section 1610(g)(1) was

not the first time that Congress created overlapping

categories of attachment immunity. There can be no

doubt that 28 U.S.C. § 1610(f)(1) is a freestanding ex-

ception to attachment immunity for foreign-state as-

sets subject to sanction, yet it was entirely possible

that those same assets would be used by the foreign

* Congress later realized that not every litigant proceeding un-

der the old Section 1605(aX7) would convert their case to one un-

der the new Section 1605A, so in 2012 it added back in to Section

1610(a)7) a reference to cases where the plaintiff used the im-

munity-exception in Section 1605(a)(7). See lran Threat Reduc-

tion and Syria Human Rights Act of 2012 § 502(eX1)(A), Pub. L.

No. 112-158, 126 Stat. 1258, 1260.

26

state “for a commercial activity,” and so would be at-

tachable for that reason as well. After Section

1610(f)(1) was enacted, President Clinton exercised

the authority granted to him to waive that provision.

See 28 U.S.C. § 1610(f(3); Determination of President

of the United States, No. 2001-3, 65 Fed. Reg. 66,483

(Oct. 28, 2000). But that was a discretionary determi-

nation that can be revisited by the president at any

time, thereby restoring the statutory overlap.®

When Congress wrote the 2008 NDAA, it was un-

satisfied with the existing options for attachment and

execution that were available to terrorism victims.

Rather than use a scalpel to precisely tailor the exist-

ing Section 1610(a)(7) in just-the-right way, Congress

painted over the existing regime with a broad new at-

tachment-immunity provision in Section 1610(g\1)

that spared many terrorism victims—but not all, just

those with judgments “entered under section

1605A”—the effort, time, and expense of demonstrat-

ing that the terrorist state’s interest in property was

used for a commercial activity or owned by the sover-

eign itself and not through an instrumentality.

Though certainly “there are times” when Congress

enacts a provision that renders an earlier enacted pro-

vision “superfluous,” Microsoft Corp. v. [41 Ltd. P’ship,

564 U.S. 91, 107 (2011), at least for victims of state-

sponsored terrorism with judgments under state-law

5 Similarly, the Terrorism Risk Insurance Act of 2002 (“RIA”)

§ 201(a), Pub. L. No. 107-297, 116 Stat. 2322, 2337, overlaps with

Section 1610(g)1) and Section 1610(f) by independently making

blocked assets like those at issue in Bennett subject to attach-

ment. See Bennett, 825 F.3d at 957-58 (majority op.).

27

causes of action, the 2008 NDAA did not convert Sec-

tion 1610(a)(7) into mere “verbosity and prolixity.”

Bruesewitz v. Wyeth LLC, 562 US. 223, 236 (2011).

Rather, Section 1610(a)(7) was a vita) means—indeed,

the only realistic means—of obtaining redress for

some victims. There is simply no adverse inference to

be drawn from the fact that Congress has created a

system that allows certain categories of assets to be

attached pursuant to multiple different sources. That

has been an intentional part of Congress’s design of

the FSIA’s terrorism exceptions for more than a dec-

ade.

2. “[T)he canon against superfluity assists only

where a competing interpretation gives effect to every

clause and word of a statute.” Microsoft, 564 U.S. at

106 (quotation marks omitted). And here, Iran’s inter-

pretation of Section 1610(g)(1) “has a superfiuity prob-

lem of its own.” Bruesewitz, 562 U.S. at 236 n.48.

Iran's argument, adopted by the Seventh Circuit

below, is that Section 1610(g)(1) does only one thing:

“(I]t partially abrogates the so-called Bancec doctrine,

which holds that a judgment against a forcign state

cannot be executed on property owncd by its juridi-

cally separate instrumentality.” Pet. App. 4; see also

Br. in Opp. of Iran 17 (Section 1610(g)(1) “merely elim-

inates the five Bancee factors as a barrier to recov-

ery.”). But that cannot be all the statute does, because

Bancec is relevant only to cases involving an entity

that is juridically separate from the foreign state it-

self. See 462 U.S. at 626-27 (“|Gjovernment instru-

mentalities established as juridical entities distinct

and independent from their sovereign should nor-

mally be treated as such.”); Hester Int'l Corp. v. Fed.

Republic of Nigeria, 879 F.2d 170, 179 (Sth Cir. 1989)

28

(‘Bancec guides the “determination of whether a gov-

ernment instrumentality is a separate juridical en-

tity”). Section 1610(g)(1), on the other hand, reaches

further: It subjects to attachment “the property of a

foreign state.” (Emphasis added.) If Iran were right

that Congress’s sole objective for Section 1610(g)1)

was to abrogate Bancec, then Congress would not have

needed to authorize separately the seizure of “the

property of a foreign state.” On Iran’s reading, that

portion of the text is simply duplicative of the right to

scize assets of a foreign state that is already provided

by Section 1610(a).

In other words, on Iran’s view of the statute, Sec-

tion 1610(g)(1) could have achieved the samc meaning

if Congress had said, “when a judgment is entered

against a foreign state under section 1605A, the prop-

erty of an agency or instrumentality of such a state is

subject to aitachment.” But in fact, Congress author-

ized attachment of “the property of a foreign state ...

and the property of an agency or instrumentality of

such a state.” 28 U.S.C. § 1610(g)(1) (emphasis added).

Iran has attempted to evade this problem by ar-

guing that Section 1610(g\(1)’s abrogation of Bancec

applies in seizure proceedings under both Section

1610(a)(7) and Section 1610(b)(3). But that cannot be

right, either. Under Section 1610(b)(3), the plaintiff is

seizing the asscts of an agency or instrumentality to

satisfy his judgment against that agency or instru-

mentality; the statute requires a judgment on “a claim

for which the agency or instrumentality is not im-

mune.” 28 U.S.C. § 1610(b\3) (emphasis added). In

that scenario, Bancec and its factors for assessing sep-

arate juridical status from the sovereign have no rele-

vance. So if Iran were right and Congress meant to do

29

nothing more than abrogate Bancec, leaving victims

limited to assets used for a commercial activity, then

Section 1610(g)(1) ought to have said “as provided in

subsection (a)(7).”

3. The best understanding of the phrase “upon

that judgment as provided in this section” is that it re-

fers to Section 1083 of the 2008 NDAA, which created

both Section 1610(g)(1) and Section 1605A. See 122

Stat. at 341. It is the 2008 NDAA that is authoritative

law. See Stephan v. United States, 319 U.S. 423, 426

(1943) (the Statutes at Large, not the United States

Code, are controlling law); see generally Tobias A.

Dorsey, Some Reflections on Not Reading the Statutes,

10 Green Bag 2d 283, 284 (2007). “[Ajs provided in

this section” modifies “that judgment,” meaning “a

judgment ... entered under section 1605A,” 28 U.S.C.

§ 1610(g\(1), and it was Section 1083 of the 2008

NDAA that created the federal cause of action in Sec-

tion 1605A(c) for victims of terrorism to obtain a judg-

ment against terrorist states. Section 1083 also cre-

ated the new remedial provision applicable to such

judgments, allowing the holder to seize any interest in

property of the terrorist state.

Congress used the phrase “this section” several

times in Section 1083 of the 2008 NDAA, and some of

those other uses unambiguously refer to Section 1083.

See, e.g., § 1083(c), 122 Stat. at 342 (“The amendments

made by this section shall apply to any claim arising

under section 1605A of title 28, United States Code.”);

§ 1083(e), 122 Stat. at 344 (“If any provision of this

section ... is held invalid, the remainder of this Section

... Shall not be affected!.])”). Unfortunately, in Section

1610(g)(1), Congress unintentionally created an ambi-

guity by using the phrase “this section” while at the

30

same time directing that the new provision be codified

in a particular part of the United States Code, namely

28 U.S.C. § 1610(g)(1). But that ambiguity should be

resolved by Congress’s purpose for this statute. See

Felix Frankfurter, Some Reflections on the Reading of

Staiutes, 47 Colum. L. Rev. 527, 538-39 (1947) (the

“policy” of a statute “is evinced in the language of the

statute, as read in light of the other external manifes-

tations of purpose”). It is clear from the statutory

background, the Conference Report, and the under-

standing of multiple courts and commentators since

enactment that Congress’s purpose was to make it sig-

nificantly easier for victims of terrorism to effectively

execute on their judgments. Reading “as provided in

this section” in Section 1610(g)(1) to refer to Section

1083 would both support the statutory purpose and

avoid the textual anomalies created by Iran’s interpre-

tation.

Iran’s reading, by contrast, would force victims to

overcome the onerous commercial-use requirement in

Section 1610(a)(7), which, given the dearth of assets of

terrorist states that are “used fur a commercial activ-

ity in the United States,” is tantamount to leaving vic-

tims with no additional means of redress at all. That

is clearly not what Congress intended. Congress knew

that, before the 2008 NDAA, the commercial-use re-

quirement in Section 1610(a) was among the barricrs

frustrating terrorism victims in their attempts to col-

lect on their judgments. See Rubin v. Islamic Republic

of Iran, 456 F. Supp. 2d 228, 234 (D. Mass. 2006); Fila-

tow, 76 F. Supp. 2d at 24; Elsea, supra, at 7-9. And

yet according to Iran, Section 1610(gX1) did nothing

to benefit these victims because it made no change to

the commercial-use requirement. Iran's reading

31

would significantly undermine the benefit to terror

victims —particularly victims of Jranian terrorism—

that was one explicit purpose of the 2008 NDAA.

Congress did not insert any language about com-

mercial activity into the attachment-immunity excep-

tion in Section 1610(g)(1), and this Court has no call

to insert that missing language. See Dean v. United

States, 556 U.S. 568, 572 (2009) (“[Wle ordinarily re-

sist reading words or elements into a statute that do

not appear on its face.” (citation omitted)). Nor did

Congress’s new attachment-immunity exception refer

back to Section 1610(a), even though Congress knows

how to do that: Section 1610(c) provides special ser-

vice requirements that explicitly apply only to “sub-

sections (a) and (b) of this Section.” If Congress had

meant to limit Section 1610(g)(1)’s attachment right

to the terms of Section 1610(a), it would have done so.

Section 1610(a) is the FSIA’s generic provision for

executing on a judgment—of whatever kind—against

a foreign sovereign, whereas Section 1610(g\1) was

created specifically to address victims of terrorism

with judgments under Section 1605A. Victims seek-

ing to execute on their judgments are entitled to rely

on the more specific provision that addresses their

particular situation in Section 1610(g)(1), without be-

ing forced back into the more general attachment pro-

vision in Section 1610(a). See Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 384-85 (1992) (“[lit is a

commonplace of statutory construction that the spe-

cific governs the general, ... A general [provision] can-

not be allowed to supersede the specific [provision.]”).

32

CONCLUSION

Congress's path of legislation has continually at-

tempted to make it easier for jadgment-creditors to

collect against terrorist states. Section 1610(g)1) is

among the most expansive of these efforts. The provi-

sion is a freestanding abrogation of immunity that

means just what it says: The property of a foreign

state, or of its agencies and instrumentalities, is avail-

able to satisfy a Section 1605A judgment against that

state for its sponsorship of terrorism.

For the foregoing reasons, the judgment should be

reversed.

Respectfully submitted.

THOMAS FORTUNE FAY MATTHEW D. MCGILL.

Fay LAW Group, P.A. Counsel of Record

777 6th Street N.W. MICHIART. R. HUSTON

Suite 420 LOCHLAN F. SHELFER

Washington, D.C. 20001 GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20086

(202) 887-3680

mmegill@gibsondunn.com

(202) 589-1300

ANE CAROL NORMAN

ROND & NORMAN LAW, P’C

777 6th Street N.W.

Suite 410

Washington, D.C. 20001

(202) 682-4100

Counsel for Amici Curiae

September 8, 2017