Holding the Chinese Communist Party Accountable for Infecting Americans Act of 2020

II 116TH CONGRESS 2D SESSION S. 3662 To amend title 28, United States Code, to provide a civil action against a foreign state for deliberate concealment or distortion of information with respect to an international public health emergency, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 7, 2020 Mr. COTTON introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 28, United States Code, to provide a civil action against a foreign state for deliberate concealment or distortion of information with respect to an inter- national public health emergency, 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 ‘‘Holding the Chinese 4 Communist Party Accountable for Infecting Americans 5 Act of 2020’’. 6 SEC. 2. FINDINGS; PURPOSE. 7 (a) FINDINGS.—Congress finds the following: 8 VerDate Sep 11 2014 20:45 May 20, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3662.IS S3662 lotter on DSK9F5VC42PROD with BILLS 2 •S 3662 IS (1) The Communist Party of China covered up 1 the existence and downplayed the seriousness of the 2 coronavirus disease 2019 (COVID–19), at least as 3 early as December 2019. 4 (2) Chinese government officials engaged in a 5 campaign to silence and delegitimize doctors, includ- 6 ing Dr. Li Wenliang, who were warning their col- 7 leagues and others about COVID–19. 8 (3) Chinese government officials ordered the de- 9 struction of laboratory samples and research regard- 10 ing COVID–19 in January 2020. 11 (4) Chinese government officials have detained 12 or otherwise silenced researchers, journalists, and 13 citizens who attempted to share information that 14 could have proven unflattering to the response of the 15 Chinese government to the COVID–19 outbreak. 16 (5) Chinese government officials have expelled 17 United States journalists who were covering the 18 COVID–19 outbreak in China. 19 (6) Chinese government officials have attempted 20 to censor or destroy academic research into COVID– 21 19 and its origins that might disagree with the offi- 22 cial positions of the Chinese government. 23 (7) Chinese government officials have inten- 24 tionally underreported or altered official numbers of 25 VerDate Sep 11 2014 04:05 May 13, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3662.IS S3662 lotter on DSK9F5VC42PROD with BILLS 3 •S 3662 IS COVID–19 infections and deaths in China, leading 1 world health experts to make flawed analyses that 2 severely underestimated the nature and seriousness 3 of COVID–19. 4 (8) Academic studies have shown that, had ap- 5 propriate interventions occurred to stop the spread 6 of COVID–19 even just weeks earlier, the spread of 7 COVID–19 would have been severely curtailed. 8 (9) The cover-up of COVID–19 by the Chinese 9 government— 10 (A) has caused significant death, injury, 11 and economic harm in the United States and 12 around the world; and 13 (B) is, at minimum, grossly negligent be- 14 havior causing significant injury. 15 (b) PURPOSE.—The purpose of this Act is to provide 16 civil litigants with the broadest possible basis, consistent 17 with the Constitution of the United States, to seek relief 18 against persons, entities, and foreign countries, wherever 19 acting and wherever they may be found, that are respon- 20 sible for, or complicit in ordering, controlling, or otherwise 21 directing acts intended to deliberately conceal or distort 22 the existence or nature of COVID–19, if such acts are 23 found to have likely contributed to the global COVID–19 24 pandemic. 25 VerDate Sep 11 2014 04:05 May 13, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3662.IS S3662 lotter on DSK9F5VC42PROD with BILLS 4 •S 3662 IS SEC. 3. DEFINITION. 1 In this Act, the term ‘‘COVID–19’’ means the 2 coronavirus disease 2019 (COVID–19). 3 SEC. 4. RESPONSIBILITY OF FOREIGN STATES FOR DELIB- 4 ERATE CONCEALMENT OR DISTORTING IN- 5 FORMATION ABOUT INTERNATIONAL PUBLIC 6 HEALTH EMERGENCIES. 7 (a) IN GENERAL.—Chapter 97 of title 28, United 8 States Code, is amended by inserting after section 1605B 9 the following new section: 10 ‘‘§ 1605C. Responsibility of foreign states for delib- 11 erate concealment or distorting informa- 12 tion about international public health 13 emergencies of international concern 14 ‘‘(a) RESPONSIBILITY OF FOREIGN STATE.—A for- 15 eign state shall not be immune from the jurisdiction of 16 the courts of the United States in any case in which money 17 damages are sought against a foreign state for physical 18 injury or death, or injury to property or economic inter- 19 ests, occurring in the United States and caused by— 20 ‘‘(1) the spread of COVID–19; and 21 ‘‘(2) a tortious act or acts, including acts in- 22 tended to deliberately conceal or distort the existence 23 or nature of COVID–19, of the foreign state, or of 24 any official, employee, or agent of that foreign state 25 while acting within the scope of his or her office, 26 VerDate Sep 11 2014 04:05 May 13, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3662.IS S3662 lotter on DSK9F5VC42PROD with BILLS 5 •S 3662 IS employment, or agency, regardless where the 1 tortious act or acts of the foreign state occurred. 2 ‘‘(b) EXCLUSIVE JURISDICTION.— 3 ‘‘(1) ORIGINAL JURISDICTION.—The United 4 States District Court for the Southern District of 5 New York, the United States District Court for the 6 Northern District of California, the United States 7 District Court for the Northern District of Illinois, 8 and the United States District Court for the South- 9 ern District of Texas shall have original and exclu- 10 sive jurisdiction over all actions in which a foreign 11 state is subject to the jurisdiction of a court of the 12 United States under this section. 13 ‘‘(2) APPELLATE JURISDICTION.—The United 14 States Court of Appeals for the Federal Circuit shall 15 have exclusive jurisdiction of an appeal from a final 16 decision of an action under this section. 17 ‘‘(c) STAY OF ACTIONS PENDING FOREIGN STATE 18 NEGOTIATIONS.— 19 ‘‘(1) INTERVENTION.—The Attorney General 20 may intervene in any action in which a foreign state 21 is subject to the jurisdiction of a court of the United 22 States under this section for the purpose of seeking 23 a stay of the civil action, in whole or in part. 24 ‘‘(2) STAY.— 25 VerDate Sep 11 2014 04:05 May 13, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3662.IS S3662 lotter on DSK9F5VC42PROD with BILLS 6 •S 3662 IS ‘‘(A) IN GENERAL.—A court of the United 1 States shall stay a proceeding under this sec- 2 tion against a foreign state or any official, em- 3 ployee, or agent of the foreign state, if the Sec- 4 retary of State certifies that the United States 5 is engaged in good faith discussions with the 6 foreign state defendant, or any other defendant, 7 with respect to the resolution of a claim against 8 such a defendant. 9 ‘‘(B) DURATION.— 10 ‘‘(i) IN GENERAL.—A stay under this 11 section may be granted for not more than 12 180 days. 13 ‘‘(ii) EXTENSION.— 14 ‘‘(I) IN GENERAL.—The Attorney 15 General may petition the court for an 16 extension of the stay for additional 17 180-day periods. 18 ‘‘(II) RECERTIFICATION.—A 19 court may grant an extension under 20 subclause (I) if the Secretary of State 21 recertifies that the United States re- 22 mains engaged in good faith discus- 23 sions with the foreign state defendant 24 or any other defendant concerning the 25 VerDate Sep 11 2014 04:05 May 13, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3662.IS S3662 lotter on DSK9F5VC42PROD with BILLS 7 •S 3662 IS resolution of a claim against the for- 1 eign state or any official, employee, or 2 agent of the foreign state, as to whom 3 a stay of claims is sought. 4 ‘‘(d) DISMISSAL OF ACTIONS FOLLOWING FOREIGN 5 STATE AGREEMENT.— 6 ‘‘(1) INTERVENTION.—The Attorney General 7 may intervene in any action in which a foreign state 8 is subject to the jurisdiction of a court of the United 9 States under this section for the purpose of seeking 10 the dismissal of the case. 11 ‘‘(2) DISMISSAL WITH PREJUDICE.—A court of 12 the United States may dismiss with prejudice a pro- 13 ceeding under this section against a foreign state or 14 any official, employee, or agent of the foreign state 15 if the Secretary of State certifies that the United 16 States and the foreign state have entered into an 17 agreement with respect to the resolution of a claim 18 against such a defendant, regardless of whether the 19 plaintiff is a party to such agreement or consents to 20 the dismissal. 21 ‘‘(e) RULE OF CONSTRUCTION.—A foreign state shall 22 not be subject to the jurisdiction of the courts of the 23 United States under this section on the basis of a tortious 24 act or acts that constitute mere negligence. 25 VerDate Sep 11 2014 04:05 May 13, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3662.IS S3662 lotter on DSK9F5VC42PROD with BILLS 8 •S 3662 IS ‘‘(f) DEFINITION.—In this section, the term 1 ‘COVID–19’ means the coronavirus disease 2019 2 (COVID–19).’’. 3 (b) EXCEPTIONS TO THE IMMUNITY FROM ATTACH- 4 MENT OR EXECUTION.—Section 1610(g) of title 28, 5 United States Code, is amended by inserting ‘‘, 1605B, 6 or 1605C’’ after ‘‘1605A’’ each place the term appears. 7 (c) TECHNICAL AND CONFORMING AMENDMENTS.— 8 (1) TABLE OF SECTIONS.—The table of sections 9 for chapter 97 of title 28, United States Code, is 10 amended by inserting after the item relating to sec- 11 tion 1605B the following: 12 ‘‘1605C. Responsibility of foreign states for deliberate concealment or distorting information about international public health emergencies of international concern.’’. (2) CONFORMING AMENDMENT.—Section 13 1605(g)(1)(A) of title 28, United States Code, is 14 amended by striking ‘‘or section 1605B’’ and insert- 15 ing ‘‘, section 1605B, or section 1605C’’. 16 (d) SEVERABILITY.—If any provision of this Act or 17 any amendment made by this Act, or the application of 18 a provision or amendment to any person or circumstance, 19 is held to be invalid, the remainder of this Act and the 20 amendments made by this Act, and the application of the 21 provisions and amendments to any other person not simi- 22 larly situated or to other circumstances, shall not be af- 23 fected by the holding. 24 VerDate Sep 11 2014 04:05 May 13, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3662.IS S3662 lotter on DSK9F5VC42PROD with BILLS 9 •S 3662 IS (e) APPLICABILITY.—The amendments made by this 1 section shall apply to a civil action— 2 (1) pending on, or commenced on or after, the 3 date of enactment of this Act; and 4 (2)(A) arising out of an injury to a person from 5 COVID–19 on or after January 1, 2020; or 6 (B) arising out of an injury to property or busi- 7 ness during the national emergency declared by the 8 President under the National Emergencies Act (50 9 U.S.C. 1601 et seq.) with respect to the coronavirus 10 disease 2019 (COVID–19). 11 Æ VerDate Sep 11 2014 04:05 May 13, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\S3662.IS S3662 lotter on DSK9F5VC42PROD with BILLS