The Office of the Attorney General has filed a notice of appeal signaling its intent to continue litigation against the Chinese Communist Party over the spread of COVID-19 in Missouri.
Eastern District of Missouri Senior U.S. District Judge Stephen Limbaugh dismissed the legal action on July 8. The case is now pending before the U.S. Court of Appeals for the Eighth Circuit in St. Louis.
“Given the Court’s conclusions based on the face of the complaint that (1) all named defendants are deemed foreign states under the FSIA, and (2) no exception to FSIA sovereign immunity applies, the service-of-process issues are moot,” Limbaugh wrote in his 38-page opinion. “All in all, the Court has no choice but to dismiss this novel complaint for lack of subject matter jurisdiction.”
Solicitor General John Sauer, who works with Attorney General Eric Schmitt, filed a notice of appeal supplement on July 14. His brief is due on Sept. 22, according to the federal appellate court’s briefing schedule.
"It's a difficult hurdle, particularly for a state attorney general, to execute a lawsuit against a foreign interest that also has an inability to actually produce a result because of the difficulty of actually getting the defendants in court," said Curtis Hill, former attorney general for the state of Indiana. "What really comes out of the judge's dismissal is that it is a difficult process for a state to pursue a legal action against a foreign government."
As previously reported in the St. Louis Record, the complaint blames the defendants for the COVID-19 pandemic and seeks recovery for loss of life, human suffering, and economic turmoil.
Other defendants named in the lawsuit include the People’s Republic of China, the Republic of China, the Wuhan Institute of Virology, and the Chinese Academy of Sciences.
"As is pointed out by the judge's decision, it is a novel approach and perhaps on appeal, someone will see it differently," Hill told the St. Louis Record. "So, I don't certainly fault General Schmitt for pursuing all legal avenues, including the process of appeal to take another shot."
On Aug. 30, Lawyers for Upholding International Law (LUIL) filed a motion for leave to file an amicus brief in support of upholding the dismissal. The Netherlands-based LUIL is chaired by Leiden University Professors Geert-Jan Alexander Knoops and Tom Zwart who have expertise and experience in international law in China.
“The State of Missouri contains multiple issues of subject-matter jurisdiction, including but not limited to the classification of the Defendants-Appellees as “arms of the state” and the Foreign Sovereign Immunities Act (FSIA),” the Dutch attorneys wrote in their pleading. “As practicing attorneys and learned academics in this field, the LUIL is uniquely qualified in providing assistance to the Court on the issues of International Law, specifically the sovereign immunity of Defendants-Appellees, as well as the potential implications on international legal matters.”