Missouri Attorney General Eric Schmitt is asking a federal appeals court to clear the way for the state to sue China for its role in the COVID-19 pandemic.
Schmitt’s office filed an appeal on July 8, immediately following U.S. District Judge Stephen N. Limbaugh Jr.’s decision to dismiss the complaint for lack of subject matter jurisdiction. In a 38-page opinion, Limbaugh said he had “no choice but to dismiss this novel complaint” under the requirements of the Foreign Sovereign Immunities Act.
In a statement, Chris Nuelle, a spokesman for the attorney general’s office, said Schmitt was “the first attorney general in the country to recognize the Chinese Government and Chinese Communist Party’s role in unleashing COVID-19 on the world,” and that the suit was intended to hold them accountable for their actions.
“The Office disagrees with the Court’s decision to let China off the hook, and today promptly filed a notice of appeal in this case to continue Attorney General Schmitt’s efforts to hold China accountable — we look forward to prevailing on appeal,” he said. “Our fight continues on to make China pay.”
The ruling came more than two years after the filing of the suit during the early days of the pandemic. The suit alleges that the novel coronavirus escaped from a laboratory in the city of Wuhan that studies such viruses, then spread to the rest of the world, including Missouri. (The opinion notes that another theory is that the virus originated in a food market.) The suit says the Chinese government misled the World Health Organization and other nations about the nature and extent of the disease.
The suit named nine defendants, ranging from the People’s Republic of China to local officials in Wuhan. The first year of litigation was spent trying to serve the lawsuit. After China’s foreign ministry rejected service under The Hague Convention, Schmitt’s office got court permission to serve some defendants by email and others through diplomatic channels.
None ever answered the suit, and they were found in default. But Limbaugh conducted an independent review of his jurisdiction and concluded that none existed.
Foreign states are generally immune from the jurisdiction of American federal and state courts, but FSIA does make exceptions, including those for “an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.”
Missouri had argued that many of the defendants were independent entities subject to suit. But Limbaugh said the allegations in the complaint indicated that all were at least instrumentalities or political subdivisions of the country of China itself and the ruling Communist Party.
Limbaugh also found that no exceptions applied. The thrust of the complaint was not about commercial activity, he wrote. It was “that defendants failed to contain the virus within Wuhan, and later within PRC’s borders, while lying to its citizens and the world about transmissibility of the virus and delaying, censoring, or withholding critical information about the virus.”
Limbaugh noted that FSIA also explicitly projects countries’ ability to “perform a discretionary function regardless of whether the discretion be abused.”
“The complaint cites no Chinese statute, regulation, or policy mandating any of the conduct. The conduct does not involve ministerial tasks,” he wrote. “Rather, the allegations reflect matters of judgment and choice, e.g., delaying information, providing misinformation, suppressing information, censoring information, allowing massive public gatherings, allowing unencumbered travel, and publicly punishing citizens who sought to warn the public about the virus.”
The case is State of Missouri ex rel. Schmitt v. People’s Republic of China, 1:20-cv-00099. The appellate case number is 22-2495.