Civil Justice for Victims of COVID Act

II Calendar No. 504 116TH CONGRESS 2D SESSION S. 4212 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 JULY 20, 2020 Ms. MCSALLY (for herself, Mr. HAWLEY, Mrs. BLACKBURN, Mr. COTTON, Mr. TILLIS, Mr. ROUNDS, Mr. GRAHAM, and Mrs. CAPITO) introduced the fol- lowing bill; which was read twice and referred to the Committee on the Judiciary JULY 30, 2020 Reported by Mr. GRAHAM, without amendment 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 VerDate Sep 11 2014 23:37 Jul 30, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4212.RS S4212 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4212 RS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Civil Justice for Vic- 2 tims of China-Originated Viral Infections Diseases Act’’ 3 or the ‘‘Civil Justice for Victims of COVID Act’’. 4 SEC. 2. RESPONSIBILITY OF FOREIGN STATES FOR RECK- 5 LESS ACTIONS OR OMISSIONS CAUSING THE 6 COVID–19 GLOBAL PANDEMIC IN THE UNITED 7 STATES. 8 (a) RESPONSIBILITY.—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 reckless 12 actions or omissions causing the COVID– 13 19 global pandemic in the United States 14 ‘‘(a) RESPONSIBILITY OF FOREIGN STATES.—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 death or 18 physical or economic injury to person, property, or busi- 19 ness occurring in the United States following any reckless 20 action or omission (including a conscious disregard of the 21 need to report information promptly or deliberately hiding 22 relevant information) of a foreign state, or of any official, 23 employee, or agent of that foreign state while acting with- 24 in the scope of his or her office, employment, or agency, 25 that caused or substantially contributed to the COVID– 26 VerDate Sep 11 2014 23:37 Jul 30, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4212.RS S4212 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4212 RS 19 global pandemic in the United States, regardless of 1 where the action or omission occurred. 2 ‘‘(b) RULE OF CONSTRUCTION.—A foreign state shall 3 not be subject to the jurisdiction of the courts of the 4 United States under subsection (a) on the basis of an 5 omission or act that constitutes mere negligence. 6 ‘‘(c) JURISDICTION.— 7 ‘‘(1) EXCLUSIVE JURISDICTION.—The courts of 8 the United States shall have exclusive jurisdiction in 9 any action in which a foreign state is subject to the 10 jurisdiction of a court of the United States under 11 subsection (a). 12 ‘‘(2) ADDITIONAL AUTHORITY TO ISSUE OR- 13 DERS.—In addition to authority already granted by 14 other laws, the courts of the United States shall 15 have jurisdiction to make and issue any writ or 16 order of injunction necessary or appropriate for the 17 enforcement of this section, including pre-judgment 18 injunctions related to transfer or disposal of assets. 19 ‘‘(d) INTERVENTION.—The Attorney General may in- 20 tervene in any action in which a foreign state is subject 21 to the jurisdiction of a court of the United States under 22 subsection (a) for the purpose of seeking a stay of the 23 civil action, in whole or in part. 24 ‘‘(e) STAY.— 25 VerDate Sep 11 2014 23:37 Jul 30, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4212.RS S4212 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4212 RS ‘‘(1) IN GENERAL.—A court of the United 1 States may stay a proceeding against a foreign state 2 if the Secretary of State certifies that the United 3 States is engaged in good faith discussions with the 4 foreign state defendant concerning the resolution of 5 the claims against the foreign state, or any other 6 parties as to whom a stay of claims is sought. In ex- 7 ercising its discretion under this subsection, the 8 court shall balance the interests of the United States 9 with the interests of the plaintiffs in a timely review 10 of their claims. 11 ‘‘(2) DURATION.— 12 ‘‘(A) IN GENERAL.—A stay under this sec- 13 tion may be granted for not more than 180 14 days. 15 ‘‘(B) EXTENSION.— 16 ‘‘(i) IN GENERAL.—The Attorney 17 General may petition the court for an ex- 18 tension of the stay for additional periods 19 not to exceed 180 days. 20 ‘‘(ii) RECERTIFICATION.—A court 21 may grant an extension under subpara- 22 graph (A) if the Secretary of State recer- 23 tifies that the United States remains en- 24 gaged in good faith discussions with the 25 VerDate Sep 11 2014 23:37 Jul 30, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4212.RS S4212 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4212 RS foreign state defendant concerning the res- 1 olution of the claims against the foreign 2 state, or any other parties as to whom a 3 stay of claims is sought. In choosing 4 whether to grant an extension, the court 5 shall balance the interests of the United 6 States with the interests of the plaintiffs in 7 a timely review of their claims.’’. 8 (b) APPLICABILITY.—The amendment made by sub- 9 section (a) shall apply to any action or omission described 10 in section 1605C of title 28, United States Code, as added 11 by that subsection, that occurred before, on, or after the 12 date of enactment of this Act. 13 (c) REMOVAL OF IMMUNITY FROM ATTACHMENT OR 14 EXECUTION.—Section 1610 of title 28, United States 15 Code, is amended— 16 (1) in subsection (a)(7), by striking ‘‘section 17 1605A or section 1605(a)(7) (as such section was in 18 effect on January 27, 2008)’’ and inserting ‘‘section 19 1605A, section 1605(a)(7) (as such section was in 20 effect on January 27, 2008), or section 1605C’’; 21 (2) in subsection (b)(2), by striking ‘‘or 22 1605(b)’’ and inserting ‘‘, 1605(b), or 1605C’’; 23 (3) by striking subsection (d) and inserting the 24 following: 25 VerDate Sep 11 2014 23:37 Jul 30, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4212.RS S4212 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4212 RS ‘‘(d) The property of a foreign state, as defined in 1 section 1603(a) of this chapter, used for a commercial ac- 2 tivity in the United States, shall not be immune from at- 3 tachment prior to the entry of judgment in any action 4 brought in a court of the United States or of a State, 5 or prior to the elapse of the period of time provided in 6 subsection (c) of this section, if— 7 ‘‘(1) the foreign state has explicitly waived its 8 immunity from attachment prior to judgment, not- 9 withstanding any withdrawal of the waiver the for- 10 eign state may purport to effect except in accord- 11 ance with the terms of the waiver; 12 ‘‘(2) the purpose of the attachment is to secure 13 satisfaction of a judgment that has been or may ulti- 14 mately be entered against the foreign state, and not 15 to obtain jurisdiction; or 16 ‘‘(3) the attachment relates to a claim for which 17 the foreign state is not immune under section 18 1605C.’’; and 19 (4) in subsection (g)(1), in the matter pre- 20 ceding subparagraph (A), by striking ‘‘1605A’’ and 21 inserting ‘‘1605A or 1605C’’. 22 (d) CAUSE OF ACTION.—Any citizen or resident of 23 the United States injured in his or her person, property, 24 or business by reason of any reckless action or omission 25 VerDate Sep 11 2014 23:37 Jul 30, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4212.RS S4212 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4212 RS (including a conscious disregard of the need to report in- 1 formation promptly or deliberately hiding relevant infor- 2 mation) of a foreign state, or of any official, employee, 3 or agent of that foreign state while acting within the scope 4 of his or her office, employment, or agency, that caused 5 or substantially contributed to the COVID–19 global pan- 6 demic in the United States, regardless of where the action 7 or omission occurred, may sue therefor in any appropriate 8 district court of the United States and shall recover three- 9 fold the damages he or she sustains and the cost of the 10 suit, including attorney’s fees. 11 (e) ENFORCEMENT BY STATE ATTORNEYS GEN- 12 ERAL.—Any State, on its own behalf or on behalf of the 13 citizens or residents of the State, may bring a civil action 14 under subsection (d) in a district court of the United 15 States. Nothing in this Act may be construed to prevent 16 a State from exercising its powers under State law. 17 (f) TIME LIMITATION ON THE COMMENCEMENT OF 18 CIVIL ACTION.—Notwithstanding any other provision of 19 law, a civil action arising under subsection (d) may be 20 commenced up to 20 years after the cause of action ac- 21 crues. 22 (g) TECHNICAL AND CONFORMING AMENDMENT.— 23 The table of sections for chapter 97 of title 28, United 24 VerDate Sep 11 2014 23:37 Jul 30, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4212.RS S4212 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4212 RS States Code, is amended by inserting after the item relat- 1 ing to section 1605B the following: 2 ‘‘1605C. Responsibility of foreign states for reckless actions or omissions caus- ing the COVID–19 global pandemic in the United States.’’. VerDate Sep 11 2014 23:37 Jul 30, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6211 E:\BILLS\S4212.RS S4212 pamtmann on DSKBC07HB2PROD with BILLS VerDate Sep 11 2014 23:37 Jul 30, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6211 E:\BILLS\S4212.RS S4212 pamtmann on DSKBC07HB2PROD with BILLS Calendar No. 504 116TH CONGRESS 2D SESSION S. 4212 A BILL To amend title 28, United States Code, to strip for- eign sovereign immunity of certain foreign states to secure justice for victims of novel coronavirus in the United States. JULY 30, 2020 Reported without amendment VerDate Sep 11 2014 23:37 Jul 30, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6651 Sfmt 6651 E:\BILLS\S4212.RS S4212 pamtmann on DSKBC07HB2PROD with BILLS