Civil Justice for Victims of Coronavirus Act

II 116TH CONGRESS 2D SESSION S. 3674 To amend title 28, United States Code, to strip foreign sovereign immunity of certain foreign states to secure justice for victims of novel coronavirus in the United States. IN THE SENATE OF THE UNITED STATES MAY 11, 2020 Mr. HAWLEY 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 strip foreign sovereign immunity of certain foreign states to secure justice for victims of novel coronavirus in the United States. 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 ‘‘Civil Justice for Vic- 4 tims of Coronavirus Act’’. 5 VerDate Sep 11 2014 18:42 May 22, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3674.IS S3674 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 3674 IS SEC. 2. RESPONSIBILITY OF FOREIGN STATES FOR RECK- 1 LESS ACTIONS OR OMISSIONS CAUSING THE 2 COVID–19 GLOBAL PANDEMIC IN THE UNITED 3 STATES. 4 (a) RESPONSIBILITY.—Chapter 97 of title 28, United 5 States Code, is amended by inserting after section 1605B 6 the following: 7 ‘‘§ 1605C. Responsibility of foreign states for reckless 8 actions or omissions causing the COVID– 9 19 global pandemic in the United States 10 ‘‘(a) RESPONSIBILITY OF FOREIGN STATES.—A for- 11 eign state shall not be immune from the jurisdiction of 12 the courts of the United States in any case in which money 13 damages are sought against a foreign state for physical 14 or economic injury to person, property, or business occur- 15 ring in the United States following any reckless action or 16 omission (including a conscious disregard of the need to 17 report information promptly or deliberately hiding rel- 18 evant information) of a foreign state, or of any official, 19 employee, or agent of that foreign state while acting with- 20 in the scope of his or her office, employment, or agency, 21 that caused or substantially aggravated the COVID–19 22 global pandemic in the United States, regardless of where 23 the action or omission occurred. 24 ‘‘(b) RULE OF CONSTRUCTION.—A foreign state shall 25 not be subject to the jurisdiction of the courts of the 26 VerDate Sep 11 2014 18:42 May 22, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3674.IS S3674 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 3674 IS United States under subsection (a) on the basis of an 1 omission or act that constitutes mere negligence. 2 ‘‘(c) JURISDICTION.— 3 ‘‘(1) EXCLUSIVE JURISDICTION.—The courts of 4 the United States shall have exclusive jurisdiction in 5 any action in which a foreign state is subject to the 6 jurisdiction of a court of the United States under 7 subsection (a). 8 ‘‘(2) PERSONAL JURISDICTION.—The courts of 9 the United States shall have personal jurisdiction, to 10 the maximum extent permissible under the Constitu- 11 tion of the United States, over any defendant in an 12 action described in subsection (a). 13 ‘‘(3) ADDITIONAL AUTHORITY TO ISSUE OR- 14 DERS.—In addition to authority already granted by 15 other laws, the courts of the United States shall 16 have jurisdiction to make and issue any writ or 17 order of injunction necessary or appropriate for the 18 enforcement of this section, including pre-judgment 19 injunctions related to transfer or disposal of assets. 20 ‘‘(d) INTERVENTION.—The Attorney General may in- 21 tervene in any action in which a foreign state is subject 22 to the jurisdiction of a court of the United States under 23 subsection (a) for the purpose of seeking a stay of the 24 civil action, in whole or in part if the Secretary of State 25 VerDate Sep 11 2014 18:42 May 22, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3674.IS S3674 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 3674 IS certifies that the United States is engaged in good faith 1 discussions with the foreign state defendant concerning 2 the resolution of the claims against the foreign state, or 3 any other parties as to whom a stay of claims is sought. 4 ‘‘(e) DURATION OF STAY.— 5 ‘‘(1) IN GENERAL.—A stay under this section 6 may be granted for not more than 180 days. 7 ‘‘(2) EXTENSION.— 8 ‘‘(A) IN GENERAL.—The Attorney General 9 may petition the court for an extension of the 10 stay for additional periods not to exceed 180 11 days. 12 ‘‘(B) RECERTIFICATION.—A court shall 13 grant an extension under subparagraph (A) if 14 the Secretary of State recertifies that the 15 United States remains engaged in good faith 16 discussions with the foreign state defendant 17 concerning the resolution of the claims against 18 the foreign state, or any other parties as to 19 whom a stay of claims is sought. 20 ‘‘(f) DISMISSAL OF ACTIONS FOLLOWING FOREIGN 21 STATE AGREEMENT.— 22 ‘‘(1) INTERVENTION.—The Attorney General 23 may intervene in any action in which a foreign state 24 is subject to the jurisdiction of a court of the United 25 VerDate Sep 11 2014 18:42 May 22, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3674.IS S3674 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 3674 IS States under this section for the purpose of seeking 1 the dismissal of the case. 2 ‘‘(2) DISMISSAL WITH PREJUDICE.—Prior to 3 the entry of judgment, a court of the United States 4 may dismiss with prejudice a proceeding under this 5 section against a foreign state or any official, em- 6 ployee, or agent of the foreign state if the Secretary 7 of State certifies that the United States and the for- 8 eign state have entered into an agreement with re- 9 spect to the resolution of a claim against such a de- 10 fendant, regardless of whether the plaintiff is a 11 party to such agreement or consents to the dis- 12 missal.’’. 13 (b) APPLICABILITY.—The amendment made by sub- 14 section (a) shall apply to any action or omission described 15 in section 1605C of title 28, United States Code, as added 16 by that subsection, that occurred before, on, or after the 17 date of enactment of this Act. 18 (c) REMOVAL OF IMMUNITY FROM ATTACHMENT OR 19 EXECUTION.—Section 1610 of title 28, United States 20 Code, is amended— 21 (1) in subsection (a)(7), by striking ‘‘section 22 1605A or section 1605(a)(7) (as such section was in 23 effect on January 27, 2008)’’ and inserting ‘‘section 24 VerDate Sep 11 2014 18:42 May 22, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3674.IS S3674 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 3674 IS 1605A, section 1605(a)(7) (as such section was in 1 effect on January 27, 2008), or section 1605C’’; 2 (2) in subsection (b)(2), by striking ‘‘or 3 1605(b)’’ and inserting ‘‘, 1605(b), or 1605C’’; 4 (3) by striking subsection (d) and inserting the 5 following: 6 ‘‘(d) The property of a foreign state, as defined in 7 section 1603(a) of this chapter, used for a commercial ac- 8 tivity in the United States, shall not be immune from at- 9 tachment prior to the entry of judgment in any action 10 brought in a court of the United States or of a State, 11 or prior to the elapse of the period of time provided in 12 subsection (c) of this section, if— 13 ‘‘(1) the foreign state has explicitly waived its 14 immunity from attachment prior to judgment, not- 15 withstanding any withdrawal of the waiver the for- 16 eign state may purport to effect except in accord- 17 ance with the terms of the waiver; 18 ‘‘(2) the purpose of the attachment is to secure 19 satisfaction of a judgment that has been or may ulti- 20 mately be entered against the foreign state, and not 21 to obtain jurisdiction; or 22 ‘‘(3) the attachment relates to a claim for which 23 the foreign state is not immune under section 24 1605C.’’; and 25 VerDate Sep 11 2014 18:42 May 22, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3674.IS S3674 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 3674 IS (4) in subsection (g)(1), in the matter pre- 1 ceding subparagraph (A), by striking ‘‘1605A’’ and 2 inserting ‘‘1605A or 1605C’’. 3 (d) CAUSE OF ACTION.—Any citizen or resident of 4 the United States injured in his or her person, property, 5 or business by reason of any reckless action or omission 6 (including a conscious disregard of the need to report in- 7 formation promptly or deliberately hiding relevant infor- 8 mation) of a foreign state, or of any official, employee, 9 or agent of that foreign state while acting within the scope 10 of his or her office, employment, or agency, that caused 11 or substantially aggravated the COVID–19 global pan- 12 demic in the United States, regardless of where the action 13 or omission occurred, may sue therefor in any appropriate 14 district court of the United States and shall recover three- 15 fold the damages he or she sustains and the cost of the 16 suit, including attorney’s fees. 17 (e) ENFORCEMENT BY STATE ATTORNEYS GEN- 18 ERAL.—Any State, on its own behalf or on behalf of the 19 citizens or residents of the State, may bring a civil action 20 under subsection (d) in a district court of the United 21 States. Nothing in this Act may be construed to prevent 22 a State from exercising its powers under State law. 23 (f) TIME LIMITATION ON THE COMMENCEMENT OF 24 CIVIL ACTION.—Notwithstanding any other provision of 25 VerDate Sep 11 2014 18:42 May 22, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3674.IS S3674 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 3674 IS law, a civil action arising under subsection (d) may be 1 commenced up to 20 years after the cause of action ac- 2 crues. 3 (g) TECHNICAL AND CONFORMING AMENDMENT.— 4 The table of sections for chapter 97 of title 28, United 5 States Code, is amended by inserting after the item relat- 6 ing to section 1605B the following: 7 ‘‘1605C. Responsibility of foreign states for reckless actions or omissions caus- ing the COVID–19 global pandemic in the United States.’’. Æ VerDate Sep 11 2014 18:42 May 22, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S3674.IS S3674 pamtmann on DSKBC07HB2PROD with BILLS