Justice Against Sponsors of Illicit Fentanyl Act of 2023

I 118TH CONGRESS 1ST SESSION H. R. 2947 To deter the trafficking of illicit fentanyl, provide justice for victims, and for other purposes. IN THE HOUSE OF REPRESENTATIVES APRIL 27, 2023 Mr. GOODEN of Texas (for himself, Mr. GOSAR, Mr. LAMBORN, Mr. ELLZEY, Mr. SANTOS, and Mr. LAMALFA) introduced the following bill; which was 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 VerDate Sep 11 2014 22:37 May 08, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2947.IH H2947 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 2947 IH 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 VerDate Sep 11 2014 22:37 May 08, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2947.IH H2947 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 2947 IH 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 VerDate Sep 11 2014 22:37 May 08, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2947.IH H2947 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 2947 IH (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 VerDate Sep 11 2014 22:37 May 08, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2947.IH H2947 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 2947 IH 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 VerDate Sep 11 2014 22:37 May 08, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2947.IH H2947 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 2947 IH 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 VerDate Sep 11 2014 22:37 May 08, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2947.IH H2947 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 2947 IH ‘‘(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 VerDate Sep 11 2014 22:37 May 08, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2947.IH H2947 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 2947 IH ‘‘(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 VerDate Sep 11 2014 22:37 May 08, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2947.IH H2947 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 2947 IH ‘‘(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 VerDate Sep 11 2014 22:37 May 08, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2947.IH H2947 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 2947 IH 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 VerDate Sep 11 2014 22:37 May 08, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2947.IH H2947 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 2947 IH 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 VerDate Sep 11 2014 22:37 May 08, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2947.IH H2947 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 2947 IH 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 [Text truncated for display. Full text available on Congress.gov.]