Reaction and analysis from John Yoo, former deputy assistant attorney general, and Federalist contributor Helen Raleigh.
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Rep. Jason Gooden, R-Texas, is introducing a bill Friday targeting China over the coronavirus outbreak that would open it up to potential litigation in American courts if the country is found to have “manufactured” the virus.
The bill, called the Stop COVID Act, would amend the Foreign Sovereign Immunities Act (FSIA) to state that other countries “shall not be immune from the jurisdiction of the courts of the United States in any case where such foreign state is found, whether intentionally or unintentionally, to have discharged a biological weapon … in the United States or such discharge results in the bodily injury of [a] United States citizen.”
China has not been found, despite unsubstantiated speculation, to have intentionally developed the novel coronavirus. Evidence indicates that the virus initially transmitted to humans from an animal at a wet market in Wuhan, China, before it began transmitting between humans, triggering the current pandemic.
There is, however, a high-security bio-agent lab in Wuhan, and its presence has been noted as an “alternative theory” to simple negligence in a class-action lawsuit seeking to hold China liable for damage the coronavirus has caused to Americans and the U.S. economy. China adamantly denies such a theory.
“[The Wuhan Institute of Virology] handles the most dangerous viruses,” Jeremy Alters, the chief strategist and non-attorney spokesperson for the Berman Law Group, the class-action firm backing the suit, told Fox News in response to questions about the inclusion of the unsubstantiated bio-weapons theory in its lawsuit. “It resides in the epicenter of the outbreak in Wuhan. In that lab, they cultivate viruses from exotic animals. The wet markets were supposed to be shut down years ago and the Chinese government turned a blind eye to the ongoing operations. This is not coincidental.”
Gooden said in a statement on the bill — which could potentially provide a boost to the lawsuit — that it would give the U.S. options to hold China accountable if it is ever proven that the coronavirus was made by the Chinese government.
“China currently enjoys immunity from US litigation, even if it becomes known that China manufactured this deadly virus,” Gooden said. “The Stop COVID Act will give our legal system the power to investigate the origin of the virus and, if found guilty, hold accountable those responsible for creating and releasing it.”
The lawsuit backed by the Berman group faces challenges because of FSIA’s limits on Americans’ ability to sue other countries.
The plaintiffs claim they fit under the exceptions for commercial activity and “personal injury or death” that stems from “the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.”
Yale law professor Stephen L. Carter, however, argued in a recent Bloomberg column that the Florida suit’s claims don’t fall under the FSIA exceptions.
“The Florida class-action suit asserts that the exception for commercial activities applies, but it’s not easy to see how,” Carter writes.
Carter also notes that the second exemption the Florida plaintiffs claim “specifically bars any claim ‘based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.’ It’s hard to find a way around this restriction.”
But Alters says China’s negligence in its response to the coronavirus should fall under the exceptions to FSIA because of how egregious it is.