Suing China Over COVID-19 – Can It Be Done, And Who Is Crazy Enough To Try?

An image of a positive coronavirus test pictured in front of a Chinese and American flag.

Image Credit: https://lsj.com.au/wp-content/uploads/2020/04/Hot-topic.jpg – Brookings https://www.brookings.edu/blog/order-from-chaos/2020/03/19/the-us-and-china-need-to-relearn-how-to-coordinate-in-crises/

By Joseph Mongiardo, JHBL Staff Member

As the COVID-19 pandemic enters its ninth month, many stir-crazy Americans understandingly find themselves angry – and what do Americans do when we are angry? We file lawsuits, of course.[i] While one could get into a deeper discussion of the political nature of the pandemic, and the subsequent finger-pointing of its handling, I seek no part in that discussion here: the fact of the matter is there is a select portion of the U.S. population currently seeking to sue China for liability. But is a lawsuit really a viable way to proceed? Can American litigants really bring the monolith of the Communist Party of China to bear for the deaths caused by the virus?

On September 28, 2016, not long after the fifteenth anniversary of the September 11^th terrorist attacks, Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA), providing the only veto override of President Obama’s presidency.^[ii] The bill passed with overwhelming bipartisan support and allowed “civil litigants… to seek relief against persons, entities, and foreign countries, wherever acting and wherever they may be found, that have provided material support, directly or indirectly, to foreign organizations or persons that engage in terrorist activities against the United States.”^[iii] Reading JASTA alone, one might think it encourages this kind of international litigation; however, it actually provides the exception to the general rule of sovereign immunity – that a government cannot be sued without its consent.

The doctrine of sovereign immunity upholds obvious public policy interests, such as preserving mannerly international relations, civil procedure, and due process. While many frustrated Americans would like to treat sovereign immunity similar to how Danny Glover’s character treats diplomatic immunity in Lethal Weapon 2, it remains a crucial legal principle at the cornerstone of international law, one which the United States itself benefits from exceedingly.[iv] Upholding sovereign immunity prevents the international community from descending into a potential frenzied series of tit-for-tat, seizing any assets the other country has within its borders as collateral. For these reasons, Congress enshrined these longstanding principles into law by passing the 1976 Foreign Sovereign Immunities Act (FSIA).

FSIA incorporates three main exceptions to sovereign immunity, the commercial activity exception, the non-commercial tortuous acts or omissions exception, and the terrorism exception (revised by JASTA).[v] The commercial activity exception is governed by 28 U.S.C. § 1605 (a)(2), while the non-commercial tort exception is governed by 28 U.S.C. § 1605 (a)(5).[vi] All of these exceptions are narrowed to activity conducted within the United States by state officials acting in their capacity, which directly affects the United States.[vii] Courts have further interpreted this exception to only apply to activity conducted by the foreign state itself.[viii] Therefore, courts are reluctant to apply, never mind extend, these exceptions.[ix] However, when courts have allowed suits under FSIA, the damages have been substantial.[x] While FSIA stands as the main preclusive obstacle to U.S. litigants seeking to hold China accountable, it certainly has not stopped many of them from filing suits.[xi]

Most plaintiffs in these cases have attempted to fit into one of the FSIA exceptions, alleging “that China suppressed information, silenced whistleblowers, failed to notify international organizations in a timely manner, and failed to protect public health in other ways.”[xii] As the state of Missouri’s complaint alleges, China’s “fraudulent, reckless, and negligent actions… in violation of the International Health Regulations… impeded the ability of the medical community and others to stop the spread of COVID-19 and its consequences.”[xiii] Nearly all of these claims boast impressive damages, some exceeding the President’s suggested figure of ten million dollars per death.[xiv] It should be no surprise with longstanding reluctance to extend FSIA that courts unanimously around the country are summarily dismissing complaints alleging similar facts as being frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).[xv] U.S. litigants are not the only ones getting squelched at the courthouse doors. Litigants from other countries, such as Nigeria, Italy, Turkey, and India, have also filed complaints one would expect to be dismissed due to sovereign immunity reasons.[xvi] The international outcry for relief has some experts hopeful that legal protections will be placed to prevent similar mishandlings of pandemics in the future.[xvii]

Some U.S. representatives are unwilling to pass up this opportunity to hold China accountable though, filing several bills modeled after JASTA to specifically allow litigation for COVID-19.[xviii] As the Supreme Court has noted, it is Congress’ discretion to amend the law regarding other nation’s sovereign immunity.[xix] While several of these bills have made it out of committee, they have considerably low chances of passing in the House and becoming law. What is of note, however, is the sheer volume of bills being introduced, over 100 bills since February, a rate of introduction that far exceeds the amount of measures filed in the wake of September 11th.[xx] This attempt to pass legislation holding China accountable could be conceived as a symbolic effort to push attention and blame off members of Congress in light of a coming election, but it should nevertheless be viewed as a genuine attempt and threat to reign in a frequent and evasive tortfeasor in China.

China has received substantial notoriety for how it has handled legal proceedings against it in the past, particularly in the International Court of Justice, where to this day China has never appeared to contest a proceeding against it since the founding of the United Nations.[xxi] It should be no surprise then that China has similarly made no appearances to defend coronavirus suits, though it has held press conferences to acknowledge them as “nothing short of absurdity.”[xxii] Ignoring the lawsuits may prove an effective prophylactic for China since it will allow them to argue any results against them on appeal while preserving their defense for sovereign immunity.[xxiii] Even then, China may only choose to dignify a response by making its legal position known in a less formal manner, as it has in other rare instances, such as its “position paper” with the Philippines when litigation pursued over the South China Sea.[xxiv] Even if the United States does pass a bill attempting to hold them accountable, China may well carry out counter-suits against the United States, as they already have done.[xxv] It is safe to say China will avoid COVID-19 litigation like the plague.

In the end, nothing is likely to come out of a lawsuit against China, whether as a country or against the Communist Party. Even if a judgment were to be rendered, there would not be $20 trillion, as one complaint seeks for damages, in Chinese assets within the United States to seize to account for the balance.[xxvi] The best a supporter of such an effort can hope for is creating an international remedy to hold countries accountable for spreading future diseases, something certainly to keep an eye on if a Trump Administration enters a second term.[xxvii]

Joseph Mongiardo is a second-year law student with an interest in Property and Constitutional Law. He has interned with the Honorable Judge Garrett J. McManus at the Lynn Juvenile Court. Joseph is also a contributor for the Suffolk Legal Podcast Club as well as a member of the school’s chapter of the Federalist Society.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.

Sources:

[i] “We spend about 2.2 percent of gross domestic product, roughly $310 billion a year, or about $1,000 for each person in the country on tort litigation, much higher than any other country.” https://www.nytimes.com/roomfordebate/2010/11/15/investing-in-someone-elses-lawsuit/more-money-into-bad-suits

For an interesting article on why America has such notoriety for being litigious: http://www.law.harvard.edu/programs/olin_center/papers/pdf/Ramseyer_681.pdf

[ii] https://www.politico.com/story/2016/09/senate-jasta-228841

[iii] Justice Against Sponsors of Terrorism Act, 114 Enacted S. 2040

[iv] “we stand to lose more from the weakening of the sovereign immunity principle than any other country. Again, sovereign immunity is about reciprocity. It’s not a privilege we grant as a favor to other countries.” – https://www.brookings.edu/podcast-episode/dont-count-on-suing-china-for-coronavirus-compensation/

[v] Justice Against Sponsors of Terrorism Act, 114 Enacted S. 2040; https://www.fjc.gov/sites/default/files/2014/FSIAGuide2013.pdf

[vi] https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1117&context=ilj

https://www.lawfareblog.com/whats-many-coronavirus-related-lawsuits-against-china

[vii] https://www.law.cornell.edu/uscode/text/28/1605

[viii] Rubin v. Islamic Republic of Iran, 830 F.3d 470

[ix] “You can only sue a foreign government in American courts under exceptional circumstances. These include rare situations where the claim is based on commercial activity carried out by a foreign government that has a direct effect in the United States, or where there’s a noncommercial tort that takes place in the U.S.” – https://www.brookings.edu/podcast-episode/dont-count-on-suing-china-for-coronavirus-compensation/

[x] “Last year, a federal judge awarded the parents of Otto Warmbier, the 22-year-old Ohio college student who was arrested and tortured by the regime of Kim Jong Un and died after his release, a $500 million judgment against North Korea. Warmbier’s parents, Cindy and Fred, have been seeking to attach North Korean assets around the globe to collect. The families of passengers who were killed in the bombing of Pan Am flight 103 over Lockerbie, Scotland, in 1988, were awarded between $5 and $10 million each against the government of Libya. Two families of victims killed on 9/11 won a $104 million verdict against the government of Iraq.” https://www.foxnews.com/politics/hawley-lawsuits-china-coronavirus-bill

[xi] Some suits have already been filed and dismissed: Medina v. Chinese Gov’t, No. 20-CV-3644 (CM), 2020 U.S. Dist. LEXIS 102320 (S.D.N.Y. June 10, 2020). For an extensive list, see: https://www.lawfareblog.com/whats-many-coronavirus-related-lawsuits-against-china

[xii] https://www.brookings.edu/podcast-episode/dont-count-on-suing-china-for-coronavirus-compensation/

[xiii] https://ago.mo.gov/docs/default-source/press-releases/2019/prc-complaint.pdf?sfvrsn=86ae7ab_2

[xiv] https://www.brookings.edu/podcast-episode/dont-count-on-suing-china-for-coronavirus-compensation/

[xv] 28 U.S.C. § 1915(e)(2)(B)(i); Medina v. Chinese Gov’t, No. 20-CV-3644 (CM), 2020 (S.D.N.Y. June 10, 2020).

[xvi] https://www.abajournal.com/magazine/article/can-plaintiffs-from-other-countries-hold-china-legally-accountable-in-their-respective-courts

https://www.pulse.ng/news/metro/nigerians-drag-china-to-court-over-covid-19-pandemic-demand-dollar200bn-compensation/80c4hgk

https://www.aa.com.tr/en/africa/nigerians-sue-china-for-200b-over-coronavirus-pandemic/1902797

[xvii] https://www.abajournal.com/magazine/article/can-plaintiffs-from-other-countries-hold-china-legally-accountable-in-their-respective-courts

[xviii] https://www.judiciary.senate.gov/press/rep/releases/chairman-graham-applauds-committee-passage-of-bill-to-allow-americans-to-sue-china-over-coronavirus-pandemic

[xix] Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016)

[xx] https://www.newsweek.com/legislation-punish-china-coronavirus-track-outpace-counterterrorism-proposals-after-9-11-1507377