What This Bill Does
This bill allows people and organizations injured by illegal fentanyl trafficking to sue foreign countries in U.S. courts. The bill removes certain legal protections that normally prevent lawsuits against foreign governments. It also lets the government pause lawsuits temporarily if U.S. officials are negotiating with a foreign country about the claims.
##
Who It Affects
- People injured or killed by illegal fentanyl trafficking into the United States
- Foreign countries whose officials or agents participate in fentanyl trafficking
- U.S. courts handling these lawsuits
- The Attorney General and Drug Enforcement Administration
- The Secretary of State
##
Key Provisions
- Foreign countries lose their normal legal immunity (protection from lawsuits) when people seek money damages for injuries or deaths caused by fentanyl trafficking acts committed by the foreign country or its officials (Sec. 3(b))
- U.S. citizens harmed by fentanyl trafficking can bring lawsuits against foreign countries the same way they can sue for acts of international terrorism (Sec. 3(c)(2))
- Liability can be assigned to anyone who knowingly provides substantial help to, or works together with, someone committing an act of fentanyl trafficking (Sec. 3(c)(3))
- The Attorney General, with the Drug Enforcement Administration, can ask a court to pause a lawsuit for up to 180 days if the U.S. government is actively negotiating with the foreign country (Sec. 4(c)(1))
- The pause can be extended for additional 180-day periods if the Secretary of State confirms the U.S. remains in good faith negotiations (Sec. 4(c)(2))
##
What Changes
U.S. courts gain the power to hear lawsuits against foreign countries for fentanyl trafficking injuries that previously would have been blocked. The government gains the ability to temporarily stop these lawsuits while diplomacy occurs. People injured by fentanyl trafficking gain a new legal path to sue foreign countries and anyone who knowingly helped the traffickers.
##
Important Definitions
- **Fentanyl trafficking**: Any illegal activity to produce, manufacture, distribute, sell, finance or transport illicit fentanyl, synthetic opioid chemicals used to make fentanyl, or fentanyl precursor chemicals, or to help others do these things (Sec. 3(a))
- **Listed chemical**: As defined in section 102 of the Controlled Substances Act, a synthetic opioid used in fentanyl production (Sec. 3(a))
##
Effective Date
The bill applies to all lawsuits that are pending or started on or after the date the bill becomes law, and to injuries occurring on or after January 1, 2013 (Sec. 6).
II
118TH CONGRESS
1ST SESSION
S. 389
To deter the trafficking of illicit fentanyl, provide justice for victims, and
for other purposes.
IN THE SENATE OF THE UNITED STATES
FEBRUARY 9, 2023
Mr. THUNE introduced the following bill; which was read twice and referred
to the Committee on the Judiciary
A BILL
To deter the trafficking of illicit fentanyl, provide justice
for victims, and for other purposes.
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
2
SECTION 1. SHORT TITLE.
3
This Act may be cited as the ‘‘Justice Against Spon-
4
sors of Illicit Fentanyl Act of 2023’’.
5
SEC. 2. FINDINGS AND PURPOSE.
6
(a) FINDINGS.—Congress finds the following:
7
(1) International drug trafficking is a serious
8
and deadly problem that threatens the vital interests
9
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of the United States and the safety and health of
1
every community in the United States.
2
(2) Transnational criminal organizations, car-
3
tels, and violent gangs are leading perpetrators of
4
drug trafficking, often combining the manufacture
5
and distribution of synthetic opioids with violence,
6
human smuggling and trafficking, firearms traf-
7
ficking, and public corruption, and pose a sustained
8
threat to the homeland security of the United
9
States.
10
(3) Illicit fentanyl is primarily produced in clan-
11
destine laboratories and trafficked into the United
12
States in powder and pill form, including fentanyl-
13
laced counterfeit pills.
14
(4) The People’s Republic of China (hereinafter
15
in this section referred to as ‘‘China’’) is the pri-
16
mary source country of fentanyl precursor chemicals
17
used to manufacture the illicit fentanyl that is traf-
18
ficked into the United States.
19
(5) The Commission on Combating Synthetic
20
Opioid Trafficking, established under section 7221
21
of the National Defense Authorization Act for Fiscal
22
Year 2020 (Public Law 116–92), reported in 2022
23
that China, which supplied 70 to 80 percent of
24
fentanyl seized by Federal authorities between 2014
25
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and 2019, has been surpassed by Mexico as the
1
‘‘dominant source’’ of illicit fentanyl in the United
2
States.
3
(6) Illicit fentanyl is primarily trafficked by
4
land into the United States through legal ports of
5
entry, as well as between such ports of entry, with
6
some trafficking facilitated by domestic and foreign-
7
based social media and encrypted communication ap-
8
plications.
9
(7) In fiscal years 2021 and 2022, U.S. Cus-
10
toms and Border Protection seized over 24,000
11
pounds of fentanyl at ports of entry, a 200 percent
12
increase from the amounts seized in fiscal years
13
2019 and 2020.
14
(8) Deaths caused by the trafficking of illicit
15
fentanyl have reached epidemic proportions, as—
16
(A) fentanyl was involved in nearly
17
200,000 deaths in the United States during the
18
period between 2014 and 2020;
19
(B) the number of drug overdose deaths in
20
the United States surpassed 100,000 during
21
the period between May 2020 and April 2021,
22
of which over 64,000 deaths were related to
23
fentanyl; and
24
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(C) fentanyl and other synthetic opioids
1
caused approximately 2⁄3 of more than 107,000
2
fatal overdoses in the United States during
3
2021.
4
(9) Overdose deaths remain a leading cause of
5
injury-related death in the United States, and
6
fentanyl-related deaths are the leading cause of
7
deaths among adults aged 18 to 45.
8
(10) Failure to meaningfully combat illicit
9
fentanyl trafficking will continue to stress the health
10
care and law enforcement resources of the United
11
States.
12
(11) It is necessary to recognize the substantive
13
causes of action for aiding and abetting and con-
14
spiracy liability under the Controlled Substances Act
15
(21 U.S.C. 801 et seq.).
16
(12) The decision of the United States Court of
17
Appeals for the District of Columbia in Halberstam
18
v. Welch, 705 F.2d 472 (D.C. Cir. 1983), which has
19
been widely recognized as the leading case regarding
20
Federal civil aiding and abetting and conspiracy li-
21
ability, including by the Supreme Court of the
22
United States, provides the proper legal framework
23
for how such liability should function in the context
24
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of the Controlled Substances Act (21 U.S.C. 801 et
1
seq.).
2
(13) Persons, entities, or countries that know-
3
ingly or recklessly contribute material support or re-
4
sources, directly or indirectly, to persons or organi-
5
zations that pose a significant risk of committing
6
acts of trafficking of illicit fentanyl that threaten the
7
safety and health of nationals of the United States
8
or the national security, foreign policy, or economy
9
of the United States, necessarily direct such conduct
10
at the United States, and should reasonably antici-
11
pate being brought to court in the United States to
12
answer for that conduct.
13
(14) The United States has a compelling inter-
14
est in providing persons and entities injured as a re-
15
sult of the trafficking of illicit fentanyl into the
16
United States with full access to the court system in
17
order to pursue civil claims against persons, entities,
18
or countries that have knowingly or recklessly pro-
19
vided material support or resources, directly or indi-
20
rectly, to the persons or organizations responsible
21
for their injuries.
22
(b) PURPOSE.—The purpose of this Act is to provide
23
civil litigants with the broadest possible basis, consistent
24
with the Constitution of the United States, to seek relief
25
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against persons, entities, and foreign countries, wherever
1
acting and wherever they may be found, that have pro-
2
vided material support, directly or indirectly, to foreign
3
organizations or persons that engage in the trafficking of
4
illicit fentanyl into the United States.
5
SEC. 3. RESPONSIBILITY OF FOREIGN STATES FOR THE
6
TRAFFICKING
OF
FENTANYL
INTO
THE
7
UNITED STATES.
8
(a) IN GENERAL.—Chapter 97 of title 28, United
9
States Code, is amended by inserting after section 1605B
10
the following:
11
‘‘§ 1605C. Responsibility of foreign states for the traf-
12
ficking of fentanyl into the united states
13
‘‘(a) DEFINITION.—In this section, the term ‘fentanyl
14
trafficking’ means—
15
‘‘(1) means any illicit activity—
16
‘‘(A) to produce, manufacture, distribute,
17
sell, or knowingly finance or transport—
18
‘‘(i) illicit fentanyl, including any con-
19
trolled substance that is a synthetic opioid
20
and any listed chemical (as defined in sec-
21
tion 102 of the Controlled Substances Act
22
(21 U.S.C. 802)) that is a synthetic opioid
23
utilized for fentanyl production; or
24
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‘‘(ii) active pharmaceutical ingredients
1
or chemicals that are used in the produc-
2
tion of fentanyl;
3
‘‘(B) to attempt to carry out an activity
4
described in subparagraph (A); or
5
‘‘(C) to assist, abet, conspire, or collude
6
with any other person to carry out an activity
7
described in subparagraph (A);
8
‘‘(2) a violation of section 401(a)(1) of the Con-
9
trolled Substances Act (21 U.S.C. 841(a)(1)) involv-
10
ing manufacturing, distributing, or dispensing, or
11
possessing with intent to manufacture, distribute, or
12
dispense, fentanyl or a fentanyl-related substance in
13
or into the United States;
14
‘‘(3) an attempt or conspiracy to commit a vio-
15
lation described in paragraph (2);
16
‘‘(4) having manufactured, distributed, or dis-
17
pensed, or possessed with intent to manufacture,
18
distribute, or dispense, fentanyl or a fentanyl-related
19
substance outside the United States with the inten-
20
tion of such fentanyl or fentanyl-related substance
21
being distributed or dispensed in or into the United
22
States in violation of section 401(a)(1) or 406 of the
23
Controlled Substances Act (21 U.S.C. 841(a)(1),
24
846); or
25
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‘‘(5) having produced or manufactured, distrib-
1
uted, or dispensed, or possessed with intent to man-
2
ufacture, distribute, or dispense, a substance that is
3
a precursor to fentanyl or a fentanyl-related sub-
4
stance with the intention of such precursor, fentanyl,
5
or fentanyl-related substance being distributed or
6
dispensed in or into the United States in violation
7
of section 401(a)(1) or 406 of the Controlled Sub-
8
stances Act (21 U.S.C. 841(a)(1), 846).
9
‘‘(b) RESPONSIBILITY OF FOREIGN STATES.—A for-
10
eign state shall not be immune from the jurisdiction of
11
the courts of the United States in any case in which money
12
damages are sought against a foreign state for physical
13
injury to person or property or death occurring in the
14
United States and caused by—
15
‘‘(1) an act of fentanyl trafficking in or into the
16
United States; and
17
‘‘(2) a tortious act or acts of the foreign state,
18
or of any official, employee, or agent of that foreign
19
state while acting within the scope of his or her of-
20
fice, employment, or agency, regardless where the
21
tortious act or acts of the foreign state occurred.
22
‘‘(c) CLAIMS
BY
NATIONALS
OF
THE
UNITED
23
STATES.—
24
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‘‘(1) DEFINITION.—In this subsection, the term
1
‘person’ has the meaning given the term in section
2
1 of title 1.
3
‘‘(2) CLAIMS.—If a foreign state would not be
4
immune under subsection (b) with respect to an act
5
of fentanyl trafficking in or into the United States,
6
a national of the United States may bring a claim
7
against the foreign state in the same manner, and
8
may obtain the same remedies, as a claim with re-
9
spect to an act of international terrorism brought
10
under section 2333.
11
‘‘(3) AIDING AND ABETTING LIABILITY.—In an
12
action under paragraph (2) for an injury arising
13
from an act of fentanyl trafficking in or into the
14
United States, liability may be asserted as to any
15
person who aids and abets, by knowingly providing
16
substantial assistance, or who conspires with the
17
person who committed such an act of fentanyl traf-
18
ficking.
19
‘‘(4) EFFECT ON OTHER FOREIGN SOVEREIGN
20
IMMUNITIES.—Nothing in paragraph (3) affects im-
21
munity of a foreign state from jurisdiction under
22
other law.
23
‘‘(d) RULE OF CONSTRUCTION.—A foreign state shall
24
not be subject to the jurisdiction of the courts of the
25
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United States under subsection (b) on the basis of an
1
omission or a tortious act or acts that constitute mere neg-
2
ligence.’’.
3
(b) TECHNICAL AND CONFORMING AMENDMENTS.—
4
(1) The table of sections for chapter 97 of title
5
28, United States Code, is amended by inserting
6
after the item relating to section 1605B the fol-
7
lowing:
8
‘‘1605C. Responsibility of foreign states for the trafficking of fentanyl into the
United States.’’.
(2) Subsection 1605(g)(1)(A) of title 28,
9
United States Code, is amended by striking ‘‘or sec-
10
tion 1605B’’ and inserting ‘‘, 1605B, or 1605C’’.
11
SEC. 4. STAY OF ACTIONS PENDING STATE NEGOTIATIONS.
12
(a) EXCLUSIVE JURISDICTION.—The courts of the
13
United States shall have exclusive jurisdiction in any ac-
14
tion in which a foreign state is subject to the jurisdiction
15
of a court of the United States under section 1605C of
16
title 28, United States Code, as added by section 3(a) of
17
this Act.
18
(b) INTERVENTION.—The Attorney General, in con-
19
sultation with the Administrator of the Drug Enforcement
20
Administration, may intervene in any action in which a
21
foreign state is subject to the jurisdiction of a court of
22
the United States under section 1605C of title 28, United
23
States Code, as added by section 3(a) of this Act, for the
24
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•S 389 IS
purpose of seeking a stay of the civil action, in whole or
1
in part.
2
(c) STAY.—
3
(1) IN GENERAL.—A court of the United States
4
may stay a proceeding against a foreign state in an
5
action brought under section 1605C of title 28,
6
United States Code, as added by section 3(a) of this
7
Act, if the Secretary of State certifies that the
8
United States is engaged in good faith discussions
9
with the foreign state defendant concerning the reso-
10
lution of the claims against the foreign state, or any
11
other parties as to whom a stay of claims is sought.
12
(2) DURATION.—
13
(A) IN GENERAL.—A stay under this sec-
14
tion may be granted for not more than 180
15
days.
16
(B) EXTENSION.—
17
(i) IN GENERAL.—The Attorney Gen-
18
eral may petition the court for an exten-
19
sion of the stay for additional 180-day pe-
20
riods.
21
(ii) RECERTIFICATION.—A court shall
22
grant an extension under clause (i) if the
23
Secretary of State recertifies that the
24
United States remains engaged in good
25
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faith discussions with the foreign state de-
1
fendant concerning the resolution of the
2
claims against the foreign state, or any
3
other parties as to whom a stay of claims
4
is sought.
5
SEC. 5. SEVERABILITY.
6
If any provision of this Act or any amendment made
7
by this Act, or the application of a provision or amend-
8
ment to any person or circumstance, is held to be invalid,
9
the remainder of this Act and the amendments made by
10
this Act, and the application of the provisions and amend-
11
ments to any other person
[Text truncated for display. Full text available on Congress.gov.]