Gross v. Development Alternatives, Inc.
946 F. Supp. 2d 120
D.D.C.2013Background
- Gross worked with DA I under USAID to promote democracy in Cuba; subcontract executed February 10, 2009; project trained Cuban Jewish communities on ICT use and internet access.
- Project involved covert, risk-laden activities responsive to government censorship and required ongoing updates to USAID.
- Gross traveled to Cuba four times in 2009, establishing internet connections and training community members to connect with each other and with Gross.
- Following his fifth trip, Cuban authorities arrested Gross on December 3, 2009; he was convicted on March 11, 2011 of acts against the independence or territorial integrity of Cuba and sentenced to 15 years.
- Plaintiffs allege that DAI and USAID knew of the risks but failed to adequately warn, train, or protect Gross; DAI settled, leaving the United States as the remaining defendant under FTCA theory.
- Court addresses the United States’ motion to dismiss under Rule 12(b)(1) on sovereign-immunity grounds, focusing on the FTCA foreign-country exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FTCA foreign-country exception bars the claims | Plaintiffs contend some injuries could fall outside the exception | Defendant argues Sosa v. Alvarez-Machain supports barring injuries abroad | yes; foreign-country exception bars all FTCA claims arising abroad. |
| Whether the Equal Protection Clause challenges to 2680(k) salvage the claims | Plaintiffs claim rational-basis scrutiny invalidates the exception | Government argues rational basis exists to shield against foreign-injury litigation | No; rational-basis analysis sustains the exception. |
Key Cases Cited
- Sosa v. Alvarez-Machain, 542 U.S. 692 (U.S. 2004) (foreign-country exception bars injuries suffered abroad)
- Beattie v. United States, 756 F.2d 91 (D.C. Cir. 1984) (headquarters doctrine rejected; concerns over broad outsourcing of liability)
- Harbury v. Hayden, 522 F.3d 413 (D.C. Cir. 2008) (derivative injuries abroad cannot bypass foreign-country exception)
- Dolan v. U.S. Postal Serv., 546 U.S. 470 (U.S. 2006) (limits scope of FTCA exceptions; proper construction of 2680(k))
- U.S. v. Spelar, 338 U.S. 217 (U.S. 1949) (discusses rational basis and extraterritorial considerations)
- Burna v. United States, 240 F.2d 720 (4th Cir. 1957) (reasons for 2680(k) include burden of foreign litigation)
- Molzof v. United States, 502 U.S. 301 (U.S. 1992) (FTCA exceptions delimit scope of government liability)