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Gross v. Development Alternatives, Inc.

United States District Court, District Circuit

May 28, 2013



JAMES E. BOASBERG, United States District Judge

For three and a half years, American Alan Gross has wasted in a Cuban prison, convicted of “acts against the independence or territorial integrity of the state” for his work as a federal subcontractor. Another decade of imprisonment looms. Gross was arrested while bringing internet access to Jewish communities in Cuba, part of a collaboration between the U.S. Agency for International Development and its contractor Development Alternatives, Inc. to promote democracy in that nation. According to Gross, USAID and DAI understood the risks that his work entailed, but gave him inadequate warnings and training. He and his wife Judith thus sued, and DAI subsequently settled. The United States now moves to dismiss, asserting sovereign immunity. Because the Federal Government retains immunity for injuries suffered in foreign countries, the Court will grant the Motion.

I. Background

As the Motion at issue is a motion to dismiss, the Court draws the facts from the Complaint, assuming them to be true at this stage. Passed and signed in 1996, the Cuban Liberty and Democratic Solidarity Act authorized support for democracy-building efforts in Cuba. See Pub. L. No. 104-114, § 109, 110 Stat. 785, 799 (1996) (codified at 22 U.S.C. § 6039). Among the agencies tasked with this democracy promotion was USAID. See Compl., ¶ 20. Its Cuba Program “was expressly designed to hasten Cuba’s peaceful transition to a democratic society.” Id., ¶ 22 (internal quotation marks omitted). In putting that Program into place, USAID often worked with contractor DAI. See id., ¶¶ 35, 37. This case arises out of their collaboration.

In late 2008, at USAID’s request, DAI sought proposals for projects to increase internet and “new media” access in Cuba. See id., ¶¶ 43-44, 48-49, 53-55, 60. Alan Gross, who had worked with DAI in the past, responded with a bid to “train[] the Jewish community in Cuba on the use and maintenance of information and communication technologies (‘ICTs’) through, among other things, the use of mobile phones, wireless technologies, and personal computers.” Id., ¶¶ 52, 56-57. DAI selected Gross’s proposal and, with USAID’s approval, entered a subcontract with his single-member LLC on February 10, 2009. See id., ¶¶ 61-64. The subcontract emphasized that in performing the project, “time is of the essence.” Id., ¶ 67. DAI directly oversaw the project, but was required to regularly update USAID, which retained ultimate control. See id., ¶¶ 45-47, 65, 68-74.

Gross traveled to Cuba four times in mid-2009, each time staying in a different Cuban Jewish community for one to two weeks. See id., ¶¶ 59, 77, 84, 94-95, 101. At each project site, he would “establish[] internet connections using multiple redundant devices in order to improve intra and intergroup communications channels” and then train those in the Cuban Jewish community “to use ICT devices to connect to the internet so that they can have regular and direct contact with each other and with [Gross].” Id., ¶ 66 (quoting subcontract). These new internet connections undercut the Cuban government’s censorship. See id. After each of his four trips, Gross wrote a new memo to DAI (which was always shared with USAID) warning of the riskiness of this covert work and the perils if caught. See id., ¶¶ 77-79, 84-86, 95-96, 101-03. Despite these dangers, Gross and DAI (with USAID’s approval) agreed to extend the project. See id., ¶¶ 73, 108-09, 111.

Gross left for his fifth trip to Cuba on November 23, 2009. See id., ¶ 112. On December 3, the night before he was to return to the United States, Cuban authorities arrested him. See id. He was initially held as a political prisoner, where he was extensively interrogated and psychologically abused. See id., ¶ 114. Only in February 2011 was he finally charged with a crime: “acts against the independence or territorial integrity of the state.” See id., ¶ 113. Following a summary trial in which the Cuban court determined that he had “participated in ‘a subversive project of the U.S. government that aimed to destroy the Revolution through the use of communications systems out of the control of Cuban authorities, ’” Gross was convicted on March 11, 2011, and handed a 15-year sentence. Id., ¶ 115 (brackets omitted). Three and a half years after his arrest, Gross lives in harrowing conditions, with little hope of improvement:

Mr. Gross resides in a 10-by-12 foot room with two other inmates, he has lost over 100 pounds, and he is battling chronic arthritis pain and what appears to be a cancerous tumor beneath his shoulder blade. His business and career have been destroyed, and his family has been deprived of their primary wage earner. . . . While Mr. Gross remains confined in Cuba, his oldest daughter has been battling breast cancer and his mother has been suffering from terminal lung cancer. At this time, there are no indications that Mr. Gross will return to his family within the next decade.

Id. at 3-4; see also id., ¶¶ 128-31. Despite diplomatic efforts, so far the United States has failed to secure Gross’s release. See Mot. at 1-2.

According to Plaintiffs, better precautions by DAI and USAID could have averted Gross’s incarceration. Although DAI and USAID understood the risks and dangers he faced, they never fully disclosed those risks, trained him on how to minimize them, or provided additional protection. See Compl., ¶¶ 75, 118, 121, 123. Nor did they heed the warnings Gross gave after all four trips. See id., ¶¶ 120, 125. Instead, they repeatedly let him return to Cuba. See id., ¶¶ 118(d), 121(d). USAID, moreover, ignored various manuals, directives, and agreements on disclosure and training. See id., ¶¶ 121(e), 122, 124. All of these failings undergird this lawsuit.

After exhausting administrative remedies, see id., ¶¶ 132-33, Gross and his wife Judith filed suit against DAI (negligence, gross negligence, and negligent and grossly negligent infliction of emotional distress as to Alan; loss of consortium as to both) and the United States (negligence and negligent infliction of emotional distress as to Alan; loss of consortium as to both). See id., ¶¶ 136-171. Both Defendants moved to dismiss. Before the filing of DAI’s Reply, however, Plaintiffs and DAI notified the Court that they had settled and expect DAI’s dismissal shortly. The United States’ Motion is now ripe.

II. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(1), a court must dismiss a claim for relief when the complaint “lack[s] . . . subject-matter jurisdiction.” To survive a motion to dismiss under Rule 12(b)(1), Plaintiffs bear the burden of proving that the Court has subject-matter jurisdiction to hear their claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an “independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). “For this reason ‘the [p]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C. 2001) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm. v. FDA, 402 F.3d 1249, 1253 (D.C. ...

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