No. 14-770
`
`IN 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
`————
`
`REPLY BRIEF FOR PETITIONER
`————
`
`DAVID M. LINDSEY
`ANDREAS A. FRISCHKNECHT
`CHAFFETZ LINDSEY LLP
`1700 Broadway, 33rd Floor
`New York, N.Y. 10019
`(212) 257-6960
`
`
`JEFFREY A. LAMKEN
`Counsel of Record
`ROBERT K. KRY
`LAUREN M. WEINSTEIN
`SARAH J. NEWMAN
`MOLOLAMKEN LLP
`The Watergate, Suite 660
`600 New Hampshire Ave., N.W.
`Washington, D.C. 20037
`(202) 556-2000
`jlamken@mololamken.com
`
`Counsel for Petitioner
`
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
`
`

`
`TABLE OF CONTENTS
`
`
`
`Page
`
`I. Section 8772 Violates the Separation of
`Powers by Purporting To Change the
`Law for a Single Pending Case .....................
`A. Respondents Fail To Identify Any
`Historical Precedent for § 8772 ...............
`B. Respondents’ Reliance on This
`Court’s Precedents Is Misplaced ............
`C. Respondents’ Remaining
`Arguments Fail ..........................................
`II. Section 8772 Is Unconstitutional Because
`It Effectively Dictates the Outcome of a
`Single Pending Case .......................................
`A. Congress May Not Direct the
`Outcome of a Specific Case ......................
`B. Section 8772 Left No Meaningful
`Determinations to the Courts ..................
`III. Bank Markazi’s Sovereign Status Does
`Not Alter the Separation-of-Powers
`Analysis .............................................................
`A. Section 8772 Is Not Public Rights
`Legislation ..................................................
`B. The Political Branches’ Foreign
`Affairs Powers Do Not Justify
`§ 8772’s Intrusion into Judicial
`Authority ....................................................
`IV. This Court Should Not Address TRIA ........
`Conclusion .....................................................................
`
`
`2
`
`2
`
`7
`
`10
`
`14
`
`14
`
`16
`
`17
`
`17
`
`18
`20
`22
`
`
`
`(i)
`
`

`
`ii
`TABLE OF AUTHORITIES
`
`Page(s)
`
`3
`3
`
`19
`
`4
`
`11
`
`
`CASES
`Baggs’s Appeal, 43 Pa. 512 (1862) ........................
`Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ............
`Dames & Moore v. Regan, 453 U.S. 654
`(1981) ....................................................................
`Evans v. Jordan, 13 U.S. (9 Cranch) 199
`(1815) ....................................................................
`Free Enter. Fund v. Pub. Co. Accounting
`Oversight Bd., 561 U.S. 477 (2010) ..................
`Heiser v. Islamic Republic of Iran,
`735 F.3d 934 (D.C. Cir. 2013) ...................... 20, 22
`Lebron v. Nat’l R.R. Passenger Corp.,
`513 U.S. 374 (1995) .............................................
`Lewis v. Webb, 3 Me. (3 Greenl.) 326 (1825) ........
`Me. Cent. R.R. Co. v. Bhd. of Maint. of Way
`Emps., 835 F.2d 368 (1st Cir. 1987),
`cert. denied, 486 U.S. 1042 (1988) ....................
`MCM Portfolio LLC v. Hewlett-Packard
`Co., No. 2015-1091, 2015 WL 7755665
`(Fed. Cir. Dec. 2, 2015) ......................................
`Medellín v. Texas, 552 U.S. 491 (2008) ................
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`134 S. Ct. 2120 (2014) .........................................
`N.Y. State Nat’l Org. for Women v. Terry,
`159 F.3d 86 (2d Cir. 1998), cert. denied,
`527 U.S. 1003 (1999) ...........................................
`Paramino Lumber Co. v. Marshall,
`309 U.S. 370 (1940) .......................................... 6, 11
`
`14
`3
`
`6
`
`5
`19
`
`20
`
`21
`
`
`
`

`
`
`
`5
`
`11
`
`8
`
`5
`
`iii
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`Pennsylvania v. Wheeling & Belmont
`Bridge Co., 59 U.S. (18 How.) 421
`(1856) .......................................................... 4, 5, 7, 8
`Plaut v. Spendthrift Farm, Inc.,
`514 U.S. 211 (1995) ..................................... passim
`Pope v. United States, 323 U.S. 1 (1944) .............
`8
`Precision Instrument Mfg. Co. v. Auto.
`Maint. Mach. Co., 324 U.S. 806 (1945)............
`Robertson v. Seattle Audubon Soc’y,
`503 U.S. 429 (1992) .................................. 8, 9, 14, 15
`Stern v. Marshall, 131 S. Ct. 2594 (2011) .... 5, 17, 18
`United States v. Brown, 381 U.S. 437
`(1965) ....................................................................
`United States v. Klein, 80 U.S.
`(13 Wall.) 128 (1872) ............................. 9, 14, 15, 16
`United States v. Schooner Peggy,
`5 U.S. (1 Cranch) 103 (1801) .............................
`United States v. Sioux Nation of Indians,
`448 U.S. 371 (1980) .............................................
`Wellness Int’l Network, Ltd. v. Sharif,
`135 S. Ct. 1932 (2015) .........................................
`CONSTITUTIONAL PROVISIONS,
`STATUTES, AND RULES
`1
`U.S. Const. art. I .....................................................
`11
`U.S. Const. art. I, § 6 ..............................................
`U.S. Const. art. I, § 9 ........................................... 10, 11
`U.S. Const. art. III ........................................... passim
`U.S. Const. art. VI ..................................................
`11
`U.S. Const. amend. I ..............................................
`11
`
`10
`
`
`
`
`
`
`
`
`
`

`
`
`
`19
`20
`
`19
`19
`19
`
`iv
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`International Emergency Economic
`Powers Act, Pub. L. No. 95-223, tit. II,
`91 Stat. 1625, 1626 (1977):
`50 U.S.C. §§ 1701 et seq. ...............................
`50 U.S.C. § 1702(a)(1)(C) ..............................
`Victims of Trafficking and Violence
`Protection Act of 2000, Pub. L. No.
`106-386, § 2002, 114 Stat. 1464, 1541 ................
`§ 2002(b)(1), 114 Stat. at 1543 ......................
`§ 2002(b)(2), 114 Stat. at 1543 ......................
`Terrorism Risk Insurance Act of 2002,
`Pub. L. No. 107-297, 116 Stat. 2322 ....... 20, 21, 22
`28 U.S.C. § 1610 note § 201(a) ......................
`20
`Iran Threat Reduction and Syria Human
`Rights Act of 2012, Pub. L. No. 112-
`158, § 502, 126 Stat. 1214, 1258:
`22 U.S.C. § 8772 ....................................... passim
`22 U.S.C. § 8772(a)(2) ....................................
`16
`22 U.S.C. § 8772(a)(2)(A) ..............................
`16
`22 U.S.C. § 8772(a)(2)(B) ..............................
`16
`22 U.S.C. § 8772(b) ........................................
`13
`22 U.S.C. § 8772(c)(1) ....................................
`6
`Consolidated Appropriations Act, 2016,
`H.R. 2029, div. O (enacted Dec. 18, 2015):
`§ 404(e)(2)(B)(iii) ............................................
`§ 404(e)(5) .......................................................
`§ 404(f)(1) ........................................................
`25 U.S.C. § 1701(d) ..................................................
`25 U.S.C. § 1721 .......................................................
`25 U.S.C. § 1741(4) ..................................................
`25 U.S.C. § 1751(d) ..................................................
`
`
`
`
`
`
`
`
`
`18
`18
`18
`6
`6
`6
`6
`
`

`
`v
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`25 U.S.C. § 1771(4) ..................................................
`6
`6 Stat. 1-942 (1789-1845) ........................................
`5
`Act of Jan. 21, 1808, ch. 13, 6 Stat. 70 ...................
`4
`Act of Mar. 3, 1809, ch. 35, 6 Stat. 80 ...................
`4
`Act of Feb. 7, 1815, ch. 36, 6 Stat. 147 ..................
`4
`Act of Mar. 3, 1821, ch. 62, 6 Stat. 262 .................
`4
`Act of Mar. 3, 1825, ch. 64, § 19,
`4 Stat. 102, 107 ....................................................
`Act of May 24, 1828, ch. 145, 6 Stat. 389 ..............
`Act of July 2, 1836, ch. 311, 6 Stat. 672 ................
`Act of Aug. 26, 1842, ch. 208, 6 Stat. 864 ..............
`Act of Aug. 31, 1852, ch. 111, 10 Stat. 110:
`§ 6, 10 Stat. at 112 ...............................................
`§7, 10 Stat. at 112 ...............................................
`Act of July 12, 1870, ch. 251, 16 Stat. 230 ............
`Act of Apr. 10, 1936, ch. 198, 49 Stat. 2244 ..........
`Uniform Commercial Code:
`21
`U.C.C. § 8-112(c) .................................................
`21
`U.C.C. § 8-112 cmt. 3 ..........................................
`21
`U.C.C. § 8-503 .....................................................
`21
`U.C.C. § 8-503(a) .................................................
`21
`U.C.C. § 8-503 cmt. 1 ..........................................
`21
`U.C.C. § 8-503 cmt. 2 ..........................................
`Sup. Ct. R. 15.2 ................................................... 12, 15
`LEGISLATIVE MATERIALS
`H.R. Rep. No. 95-1453 (1978) ................................
`H.R. Rep. No. 96-1353 (1980) ................................
`
`7
`7
`15
`6
`
`
`
`7
`4
`5
`5
`
`6
`6
`
`
`
`
`
`
`
`
`
`

`
`
`
`19
`
`11
`2
`
`21
`
`2
`
`5
`
`21
`
`21
`
`21
`
`vi
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`Jennifer K. Elsea, Congressional
`Research Service, Suits Against
`Terrorist States by Victims of
`Terrorism (Aug. 8, 2008) ...................................
`OTHER AUTHORITIES
`Thomas M. Cooley, A Treatise on the
`Constitutional Limitations Which Rest
`upon the Legislative Power of the States
`of the American Union (1868) .........................
`The Federalist (Rossiter ed., 1961) ......................
`Michael H. Graham, Federal Practice and
`Procedure (2011) ................................................
`John Locke, Two Treatises of Government
`(4th ed. 1713) .......................................................
`William C. Robinson, The Law of Patents
`for Useful Inventions (1890) ............................
`Julie Triedman, Can U.S. Lawyers Make
`Iran Pay for 1983 Bombing?, Am. Law.,
`Oct. 28, 2013 ........................................................
`U.S. Br. in Bennett v. Islamic Republic of
`Iran, No. 13-15442, ECF No. 82
`(9th Cir. filed Oct. 23, 2015) ..............................
`U.S. Br. in Calderon-Cardona v. Bank of
`N.Y. Mellon, No. 12-75, ECF No. 210
`(2d Cir. filed Sept. 21, 2012) .............................
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`IN THE
`Supreme Court of the United States
`————
`NO. 14-770
`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
`————
`REPLY BRIEF FOR PETITIONER
`————
`Section 8772 creates a new rule explicitly limited to a
`single pending case. It disclaims any effect beyond en-
`suring that one party to that controversy pays its adver-
`saries nearly $2 billion. Respondents cannot identify a
`single example of Congress passing such legislation in
`the history of the Republic. And with reason: Article I
`empowers Congress to enact laws. A statute that pur-
`ports to dictate how the judiciary must resolve a solitary
`pending case, with no effect beyond requiring one party
`to pay its adversaries, is not a “law” as that term is tradi-
`tionally understood.
`Section 8772 is an impermissible attempt by Congress
`to decide a pending case, a power Article III reserves to
`
`
`
`

`
`2
`the judiciary. The Framers never would have counte-
`nanced such an act. For centuries, no Congress did either.
`Section 8772 is anathema to judicial independence and
`the rule of law. It cannot be sustained.
`I. SECTION 8772 VIOLATES THE SEPARATION OF POW-
`ERS BY PURPORTING TO CHANGE THE LAW FOR A
`SINGLE PENDING CASE
`A. Respondents Fail To Identify Any Historical
`Precedent for § 8772
`Section 8772 directs the judiciary to resolve a specific
`proceeding, identified by caption and docket number, ac-
`cording to a completely new rule. It denies that rule any
`effect beyond that one proceeding. Section 8772 thus has
`no impact on any other parties or cases and no effect af-
`ter this proceeding’s end.
`1. Respondents cannot find a single historical ante-
`cedent for § 8772. None exists—because Congress has
`never previously tried to enact a statute that so blatantly
`invades the judicial power. Congress’s “prolonged reti-
`cence would be amazing if such interference were not un-
`derstood to be constitutionally proscribed.” Plaut v.
`Spendthrift Farm, Inc., 514 U.S. 211, 230 (1995). That
`historical silence is virtually dispositive.
`There is a reason respondents can find no precedent
`for § 8772. One of the foundational distinctions between
`the legislative and judicial powers was that legislatures
`enact general laws, while courts decide specific cases.
`Authorities familiar to the Framers—from Locke to The
`Federalist—made that distinction clear. Pet. Br. 22-25.
`Respondents ignore those authorities. They offer no
`framing-era source articulating a contrary conception of
`the legislative and judicial powers, much less one sug-
`gesting that Congress can change the law for a single
`
`
`
`

`
`3
`pending case to make one party pay the others. Nor do
`they dispute that legislative interference with specific
`pending cases was a principal abuse at which the separa-
`tion of powers was aimed. Pet. Br. 29-30.
`Respondents likewise have no answer to the early
`state cases rejecting their view. Unlike Congress, early
`state legislatures sometimes attempted intrusions on ju-
`dicial authority comparable to §8772. But state courts
`struck down those laws as inconsistent with the separa-
`tion of powers. Pet. Br. 30-32. Respondents identify no
`framing-era cases adopting the opposite view.
`Respondents assert that some of the state cases in-
`volved statutes that attempted to reopen final judgments.
`Resp. Br. 38. Even if the statutes were also objection-
`able on that ground, the courts struck them down be-
`cause they purported to alter the law solely for a single
`pending case. See, e.g., Lewis v. Webb, 3 Me. (3 Greenl.)
`326, 336 (1825) (invalidating law that extended time to
`appeal because “it can never be within the bounds of le-
`gitimate legislation, to enact a special law * * * in a par-
`ticular case”); Baggs’s Appeal, 43 Pa. 512, 516 (1862)
`(similar). As Justice Iredell observed in Calder v. Bull, 3
`U.S. (3 Dall.) 386 (1798), an act granting new privileges of
`proceeding “with respect to suits depending or adjudged
`* * * is an exercise of judicial, not of legislative, author-
`ity.” Id. at 398 (emphasis added).
`Nor can the early state decisions be dismissed because
`they involved state separation-of-powers principles. Resp.
`Br. 38. This Court often looks to early state cases for
`guidance. See, e.g., Plaut, 514 U.S. at 223-224. With rea-
`son: They reflect framing-era understandings of legisla-
`tive and judicial power. Respondents are correct that “no
`decision of this Court” has struck down legislation on
`that ground. Resp. Br. 36. But that is because, for most
`
`
`
`

`
`4
`of the Nation’s history, Congress never enacted such a
`law—a “reticence” that speaks volumes. Plaut, 514 U.S.
`at 230.
`2. Searching for analogous statutes, respondents
`scour the annals of private laws, and properly so. If early
`Congresses thought they could enact legislation limited
`to a solitary pending case, that is surely where the evi-
`dence would be found. But respondents come up dry.
`The only examples they identify are inapposite for the
`same reasons as Pennsylvania v. Wheeling & Belmont
`Bridge Co., 59 U.S. (18 How.) 421 (1856), and many other
`authorities they invoke: The statutes were not limited to
`a single pending case, and they concerned public rights.
`See pp. 7-9, infra.
`The only early private laws respondents identify are
`statutes granting or extending patents and copyrights.
`Resp. Br. 41 & n.7.1 But those laws had legal force be-
`yond a single case: They granted patents or copyrights
`enforceable for a term against the world. The law con-
`ferring patent protection to Oliver Evans’s flour mill, for
`example, did not grant a patent solely for one infringe-
`ment suit; it granted a patent enforceable against any
`infringer in any suit. See Act of Jan. 21, 1808, ch. 13, 6
`Stat. 70; Evans v. Jordan, 13 U.S. (9 Cranch) 199 (1815).
`If Congress had granted a patent valid only for one speci-
`fied infringement suit, that might start to look more like
`§ 8772. But respondents identify no such statute.
`The patent and copyright statutes are also inapposite
`for a second reason: They involved public rights. This
`Court has long recognized that Congress may determine
`
`
`1 See also, e.g., Act of Mar. 3, 1809, ch. 35, 6 Stat. 80; Act of Feb. 7,
`1815, ch. 36, 6 Stat. 147; Act of Mar. 3, 1821, ch. 62, 6 Stat. 262; Act of
`May 24, 1828, ch. 145, 6 Stat. 389.
`
`
`
`

`
`5
`matters of public rights—typically claims against the
`government—without regard to Article III. See Stern v.
`Marshall, 131 S. Ct. 2594, 2611-2615 (2011). That was
`one of the reasons the Court sustained the statute in
`Wheeling Bridge: It concerned a “public right secured
`by acts of congress.” 59 U.S. (18 How.) at 431.
`Respondents deny that statutes granting patents and
`copyrights involve public rights. Resp. Br. 41. The law is
`otherwise. See, e.g., MCM Portfolio LLC v. Hewlett-
`Packard Co., No. 2015-1091, 2015 WL 7755665, at *3-9
`(Fed. Cir. Dec. 2, 2015) (holding that “patent rights are
`public rights”); cf. Precision Instrument Mfg. Co. v.
`Auto. Maint. Mach. Co., 324 U.S. 806, 815-816 (1945);
`1 William C. Robinson, The Law of Patents for Useful
`Inventions § 46, at 69-70 (1890). Respondents urge that
`such laws cannot concern public rights because they con-
`fer “rights to exclude other private persons.” Resp. Br.
`41. But so does any law conveying public land to a pri-
`vate person—which is paradigmatic public rights legisla-
`tion. See Wellness Int’l Network, Ltd. v. Sharif, 135 S.
`Ct. 1932, 1966 (2015) (Thomas, J., dissenting).
`Having reviewed the more than 3100 private laws en-
`acted between 1789 and 1845, we have not found a single
`example of Congress changing the law solely for one
`pending case between other parties. See 6 Stat. 1-942
`(1789-1845).2 That should be all but fatal to respondents’
`position.
`
`
`2 In two instances, Congress consented to reopening judgments in
`favor of the government. See Act of July 2, 1836, ch. 311, 6 Stat. 672;
`Act of Aug. 26, 1842, ch. 208, 6 Stat. 864. Those laws were clearly
`public rights legislation. See Pet. Br. 52. They do not imply any
`broader power to manipulate a single pending case where the gov-
`ernment is not a party.
`
`
`
`

`
`6
`3. Respondents find no refuge in modern statutes ei-
`ther. The law in Paramino Lumber Co. v. Marshall, 309
`U.S. 370 (1940) (Resp. Br. 41), for example, reinstated
`administrative review of a workers’ compensation claim.
`See Act of Apr. 10, 1936, ch. 198, 49 Stat. 2244. This
`Court upheld that law because it affected administrative
`rather than judicial proceedings—and thus presented no
`Article III issue at all. See 309 U.S. at 381 & n.25 (con-
`trasting “statutes affecting judicial judgments rather
`than administrative orders”). The statute in Maine Cen-
`tral Railroad Co. v. Brotherhood of Maintenance of Way
`Employees, 835 F.2d 368 (1st Cir. 1987), cert. denied, 486
`U.S. 1042 (1988) (Resp. Br. 43), is even further afield. The
`court upheld that statute because there were no pending
`judicial proceedings: “We cannot find a legislative en-
`croachment on judicial powers, where the judiciary was
`powerless to act in the controversy.” 835 F.2d at 372.
`Respondents also invoke “statutes that settled specific
`suits * * * against States involving Native American land
`transfers.” Resp. Br. 42. In each case, however, Con-
`gress enacted implementing legislation to effectuate the
`parties’ settlement agreement. See 25 U.S.C. § 1701(d)
`(reciting that “the parties * * * have executed a Settle-
`ment Agreement which requires implementing legislation
`by the Congress”); id. §§ 1721, 1741(4), 1751(d), 1771(4);
`H.R. Rep. No. 95-1453, at 5 (1978); H.R. Rep. No. 96-
`1353, at 11 (1980). There is an obvious difference be-
`tween a statute that implements a settlement and a stat-
`ute that changes the law for one case for the sole purpose
`of making one party lose.
`Finally, respondents claim that a handful of modern
`statutes, although facially general in scope, allegedly tar-
`geted one or more pending cases. Resp. Br. 42-43. But
`§ 8772 by its terms is limited to a single pending case. 22
`
`
`
`

`
`7
`U.S.C. § 8772(c)(1). A statute that on its face has no legal
`effect beyond a single proceeding raises far different
`separation-of-powers concerns than generally applicable
`legislation allegedly motivated by pending litigation.
`Respondents’ search for modern antecedents would
`shed no significant light on Article III’s meaning even if
`it had been successful. For most of the country’s history,
`Congress never attempted anything remotely like § 8772.
`But the absence of even modern antecedents underscores
`how far Congress strayed from constitutional norms.
`B. Respondents’ Reliance on This Court’s Prece-
`dents Is Misplaced
`Bereft of historical support, respondents invoke this
`Court’s cases. Those decisions do not endorse what Con-
`gress attempted here.
`1. Respondents describe Wheeling Bridge as uphold-
`ing “a statute enacted specifically to resolve a dispute in a
`single case concerning the legality of a particular bridge.”
`Resp. Br. 20. But that statute was not limited to a single
`case. It declared broadly that the bridge was a “lawful
`structure[ ] in [its] present position and elevation” not-
`withstanding any law to the contrary. Act of Aug. 31,
`1852, ch. 111, § 6, 10 Stat. 110, 112. Congress thus
`changed the bridge’s status for all purposes, all times,
`and all cases. Any action, by any party, at any point,
`challenging the bridge on any basis was subject to that
`generally applicable law—even a suit unrelated to the
`navigation concerns in Wheeling Bridge. The statute,
`moreover, designated the bridge a federal post-road. Id.
`§ 7, 10 Stat. at 112. That change brought still other gen-
`erally applicable laws to bear. See, e.g., Act of Mar. 3,
`1825, ch. 64, § 19, 4 Stat. 102, 107 (prohibiting competing
`delivery services on post roads). Section 8772—which
`
`
`
`

`
`8
`specifically limits itself to a single pending controversy—
`is the polar opposite.
`Moreover, as Bank Markazi explained (and respond-
`ents never contest), Wheeling Bridge relied on the public
`rights nature of the law. Pet. Br. 36-37. “[I]nterference
`with the free navigation of the river,” the Court held,
`“constituted an obstruction of a public right secured by
`acts of congress.” 59 U.S. (18 How.) at 431. The Court
`also relied on the prospective nature of the relief the
`statute affected: The earlier decree directing removal of
`the bridge was “executory, a continuing decree.” Ibid.
`The Court contrasted the case with a dispute over money:
`“If the remedy in this case had been an action at law, and
`a judgment rendered in favor of the plaintiff for damages,
`the right to these would have passed beyond the reach of
`the power of congress.” Ibid. Respondents ignore those
`aspects of the Court’s reasoning.3
`2. Jumping forward a century, respondents invoke
`Robertson v. Seattle Audubon Society, 503 U.S. 429
`(1992). They assert that the statute there “applied only
`to the specific forests disputed in [two pending cases],
`and only for a specific year.” Resp. Br. 23. But the stat-
`ute was not limited to two cases. As this Court explained,
`while the statute “made reference to pending cases iden-
`
`3 Pope v. United States, 323 U.S. 1 (1944), and United States v. Sioux
`Nation of Indians, 448 U.S. 371 (1980), are similarly inapposite. In
`Pope, Congress prescribed the amount the federal government
`would pay a claimant after a court denied him compensation. See
`323 U.S. at 8-10. And in Sioux Nation, Congress waived the gov-
`ernment’s own res judicata defense. 448 U.S. at 402-405. Both cases
`involved paradigmatic public rights authority: The government was
`spending its own funds and waiving its own defenses, just like any
`litigant may do. See Plaut, 514 U.S. at 230-232. Those cases do not
`prove that Congress can change the law in a dispute over private
`rights between other parties.
`
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`
`9
`tified by name and caption number,” the reference “served
`only to identify the five ‘statutory requirements that are
`the basis for’ those cases.” 503 U.S. at 440 (emphasis
`added). The statute thus altered the law equally for any
`suit challenging the logging based on those five statutory
`requirements. Pet. Br. 38-39. Respondents may think
`that distinction immaterial, but this Court found it signif-
`icant—and thus specifically called it out. 503 U.S. at 440.
`Robertson, moreover, involved claims against the gov-
`ernment concerning its management of its own lands—
`precisely the sort of public rights matter that need not be
`assigned to Article III courts. Pet. Br. 39.
`Most important, Robertson expressly declined to
`reach the question here: whether a statute violates the
`separation of powers if it “swe[eps] no more broadly, or
`little more broadly, than the range of applications at is-
`sue in [a] pending case[ ].” 503 U.S. at 441. The parties
`in Robertson did not make that argument, so the Court
`declined to address it. Ibid. Robertson cannot be prece-
`dent for a proposition the Court refused to decide.
`3. Respondents claim that Plaut v. Spendthrift
`Farm, Inc., 514 U.S. 211 (1995), “rejected a claim that a
`statute violated the separation of powers because it di-
`rected the result in particular cases.” Resp. Br. 23. Not
`so. Plaut involved generally applicable legislation. The
`passage respondents cite consists of three sentences of
`dicta explaining why United States v. Klein, 80 U.S. (13
`Wall.) 128 (1872)—another case involving generally ap-
`plicable legislation—raised different separation-of-powers
`concerns. 514 U.S. at 218. That passage does not sug-
`gest that Congress can change the law for a single pend-
`ing case.
`Respondents assert that Plaut “rejected the view that
`a statute’s breadth bears on whether it infringes the judi-
`
`
`
`

`
`10
`cial power.” Resp. Br. 37. That is incorrect. The “view”
`Plaut rejected was that a statute’s breadth could save it
`if the statute improperly sought to reopen final judg-
`ments. 514 U.S. at 239. Respondents reason that, “[i]f
`[a] statute’s breadth cannot save it from intruding on the
`Judiciary’s role, neither can the narrowness of a law that
`does not otherwise infringe the judicial power invalidate
`it.” Resp. Br. 37. That argument defies logic. That a
`statute’s breadth does not save it from one separation-of-
`powers violation (reopening final judgments) does not
`prove that a statute’s scope cannot be relevant to a dif-
`ferent separation-of-powers violation (invading the judi-
`ciary’s role of deciding specific cases).
`C. Respondents’ Remaining Arguments Fail
`1. Respondents urge that, because the Bill of Attain-
`der Clause prohibits targeted legislation only when it is
`punitive, a statute’s specificity cannot be relevant to gen-
`eral separation-of-powers principles. The separation of
`powers, they assert, cannot “invalidate statutes for the
`same reasons as specific, enumerated provisions yet ac-
`cording to different standards.” Resp. Br. 40.
`That is faulty logic. The Bill of Attainder Clause does
`not invalidate statutes for the “same reasons” as the sep-
`aration of powers. That Clause prohibits Congress from
`enacting specific, punitive legislation whether or not
`there is a pending judicial proceeding—indeed, typically
`absent such a proceeding. See, e.g., United States v.
`Brown, 381 U.S. 437 (1965) (invalidating statute prohibit-
`ing Communist Party members from serving as union
`officers or employees). The separation of powers, by con-
`trast, prohibits Congress from picking winners and losers
`in a single pending judicial proceeding. It is that dis-
`tinct ingredient of a pending case—and the threat to ju-
`
`
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`

`
`11
`dicial independence such legislation entails—that trig-
`gers Article III’s application.
`To be sure, there is some overlap: A criminal trial be-
`fore Congress would violate both the Bill of Attainder
`Clause and the separation of powers. But that is no rea-
`son to truncate Article III. The Constitution sometimes
`targets specific abuses despite an overlap with broader
`protections. Compare, e.g., U.S. Const. art. I, § 6 (Speech
`and Debate Clause), with id. amend. I (Free Speech
`Clause); and id. art. VI (Religious Test Clause), with id.
`amend. I (Free Exercise Clause). The Framers singled
`out bills of attainder because legislative criminal trials
`were a particularly notorious and egregious abuse. See
`Pet. Br. 29, 41-42 (collecting sources); Thomas M. Cooley,
`A Treatise on the Constitutional Limitations Which
`Rest upon the Legislative Power of the States of the
`American Union 260 (1868) (bills of attainder “specially
`obnoxious”). It is inconsistent with the Framers’ design
`to rely on that prohibition to relax separation-of-powers
`limitations that would otherwise apply.
`2. Respondents assert that, because Congress can
`apply general legislation to pending cases, see United
`States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110
`(1801); and Congress can enact special legislation inde-
`pendent of a pending case, see Paramino, 309 U.S. at
`380; Congress can do both at once and change the law for
`one pending case. Resp. Br. 44-45. That homespun logic
`likewise fails.
`No principle of law or logic says that, if Congress can
`do one of two things in isolation, it can do both in combi-
`nation. Examples disproving that specious reasoning are
`easy to find. See, e.g., Free Enter. Fund v. Pub. Co.
`Accounting Oversight Bd., 561 U.S. 477, 492-498 (2010)
`(holding that, although Congress can grant for-cause re-
`
`
`
`

`
`12
`moval protection to inferior officers, and grant for-cause
`removal protection to the principal officers who supervise
`inferior officers, it cannot do both at once). Enacting
`specific legislation to change the law solely for a pending
`case offends the separation of powers in a way that those
`two acts in isolation do not.
`Respondents complain that it is “utterly illogical” that
`Congress’s power should “evaporate[ ] the moment a
`complaint is filed in federal court.” Resp. Br. 44. But the
`separation of powers secures judicial independence, and
`the threat to that independence arises only once there is
`a pending case. It is thus neither “illogical” nor even
`surprising that Congress’s authority should depend in
`part on the existence of a pending case.
`While respondents predict a “raft of uncertainties and
`practical problems,” Resp. Br. 45-46, their fears are con-
`trived. Congress managed to avoid enacting legislation
`like § 8772 for most of the Nation’s history. So have the
`many States whose courts adopted this rule nearly two
`centuries ago. In any event, purported ambiguities
`around the edges of a rule are no reason to uphold legis-
`lation that blatantly violates any plausible account of the
`separation of powers.
`3. Respondents finally urge that, even if the separa-
`tion of powers prohibits Congress from enacting a law
`limited to a single case, that prohibition would not apply
`here because this action involves an agglomeration of
`lawsuits. Resp. Br. 46-47. That argument is forfeited be-
`cause it was not raised in the brief in opposition. See Br.
`in Opp. 19-26; this Court’s Rule 15.2. It is also meritless.
`The underlying judgments that established liability
`were entered in 18 different actions (and a 19th added at
`the last moment). Pet. App. 16a-17a, 18a-19a. But the
`
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`

`
`13
`“case” to which § 8772 applies is this enforcement pro-
`ceeding—the “proceedings in the United States District
`Court for the Southern District of New York in Peterson
`et al. v. Islamic Republic of Iran et al., Case No. 10 Civ.
`4518 (BSJ) (GWG).” 22 U.S.C. § 8772(b). This case be-
`gan when the Peterson plaintiffs filed a turnover com-
`plaint against Citibank, and Citibank responded by inter-
`pleading the other judgment creditors as defendants in
`this one case. Pet. App. 14a-15a; C.A. App. 1349, 1355.
`The assets were disposed of in a single opinion, by a
`single judge, who entered