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Supreme Court of the United States No. IN THE Supreme Court of the United States ALAN GROSS AND JUDITH GROSS, Petitioners, v. UNITED STATES OF AMERICA, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit PETITION FOR A WRIT OF CERTIORARI Barry I. Buchman Counsel of Record Scott D. Gilbert Natalie A. Baughman Emily P. Grim GILBERT LLP 1100 New York Ave. NW, Suite 700 Washington, DC 20005 (202) 772-2305 [email protected] Counsel for Petitioners i QUESTIONS PRESENTED I. With only specifically-enumerated and narrow exceptions, the Federal Tort Claims Act (“FTCA”) waives sovereign immunity and imposes liability on the United States “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. One such exception, the “foreign country exception,” bars “[a]ny claim arising in a foreign country.” 28 U.S.C. § 2680(k). In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), this Court held that the applicability of the foreign country exception turns solely on the location of a plaintiff’s injury. The Court thus held that the exception barred a claim for injuries that occurred exclusively in Mexico, even though some of the injury-causing conduct occurred in the United States. The question presented is one that was not addressed in Sosa and one on which lower courts are divided: whether the foreign country exception bars an FTCA claim where the plaintiffs have alleged injuries in both the United States and a foreign country. II. This Court has recognized that the purpose of the foreign country exception is to prevent application of foreign tort law to claims against the United States. Here, even though neither party argued for the application of foreign tort law and even though the plaintiffs alleged injuries both in the United States and in a foreign country, the courts below held that the foreign country exception barred their claims. The courts below thus construed the foreign country exception to create two ii classes of plaintiffs: (1) those injured solely in the United States; and (2) those injured solely or partly abroad—and held that the latter have no claim under the FTCA. The question presented is whether the foreign country exception, as applied here, lacks a rational basis and therefore violates the Equal Protection Clause. iii PARTIES TO THE PROCEEDING The Petitioners (plaintiffs-appellants below) are Alan and Judith Gross. The respondent (defendant-appellee below) is the United States of America (the “Government”). iv TABLE OF CONTENTS QUESTIONS PRESENTED ........................................ i PARTIES TO THE PROCEEDING ........................... iii TABLE OF CONTENTS ............................................ iv TABLE OF AUTHORITIES ..................................... vii OPINIONS BELOW .................................................... 1 JURISDICTION .......................................................... 1 STATUTORY PROVISIONS INVOLVED ................. 1 STATEMENT OF FACTS ........................................... 1 I. THE DISTRICT COURT PROCEEDING ............. 1 A. The Complaint .................................................. 2 B. The Government’s Motion to Dismiss ............. 3 1. The Statutory Claim ................................... 3 2. The Equal Protection Claim ....................... 4 C. The District Court’s Decision ........................... 4 1. The Statutory Claim ................................... 5 2. The Equal Protection Claim ....................... 5 II. THE COURT OF APPEALS’ DECISION ............. 6 A. The Statutory Claim ........................................ 6 B. The Equal Protection Claim ............................ 7 REASONS FOR GRANTING THE WRIT.................. 8 v I. THE APPLICABILITY OF THE FOREIGN COUNTRY EXCEPTION TO CASES WHERE THE PLAINTIFF’S INJURY OCCURRED AT LEAST PARTLY IN THE UNITED STATES IS AN IMPORTANT QUESTION OF FEDERAL LAW THAT SHOULD BE RESOLVED BY THIS COURT. ........................................................ 9 II. UNDER CITY OF CLEBURNE, THE FOREIGN COUNTRY EXCEPTION IS UNCONSTITUTIONAL AS APPLIED WHERE, AS HERE, ENFORCING THE EXCEPTION AS CONSTRUED BY THE LOWER COURTS HAS NO RATIONAL BASIS, IN LIGHT OF THE STATUTORY PURPOSE. ................................... 16 A. Under City of Cleburne, There Is a Critical Distinction Between Facial and As-Applied Equal Protection Challenges, Even Under Rational Basis Review. ................................... 17 B. Under the As-Applied Analysis Required By City of Cleburne, the Foreign Country Exception Is Unconstitutional As Applied Because Enforcing the Exception Will Not Serve Its Purpose. .......................................... 19 CONCLUSION .......................................................... 20 APPENDIX D.C. Circuit Opinion (Nov. 14, 2014) ................. A1 D.C. Circuit Judgment (Nov. 14, 2014) ............ A14 District Court Opinion (May 28, 2013) ............ A16 District Court Order Granting Motion to Dismiss (May 28, 2013) .................................... A32 vi Statutory Provisions ......................................... A33 The Grosses' Complaint (Nov. 16, 2012) .......... A38 D.C. Circuit Oral Argument Transcript (Sept. 19, 2014) ................................................. A90 vii TABLE OF AUTHORITIES Cases Page(s) Alvarez-Machain v. United States, 331 F.3d 604 (9th Cir. 2003) ................................ 11 Bolt v. United States, 509 F.3d 1028 (9th Cir. 2007) .............................. 13 City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432 (1985) ............................ 16, 17, 18, 20 Dolan v. U.S. Postal Serv., 546 U.S. 481 (2006) .............................................. 14 Harbury v. Hayden, 522 F.3d 413 (D.C. Cir. 2008) ........................ 3, 5, 6 Moore v. Valder, 65 F.3d 189 (D.C. Cir. 1995) .......................... 14, 15 Prescott v. United States, 973 F.2d 696 (9th Cir. 1992) ................................ 13 S.H. ex rel. Holt v. United States, 32 F. Supp. 3d 1111 (E.D. Cal. 2014) .............................................................. 7, 12, 13, 14 S.H. ex rel Holt v. United States, No. CIV. S–11–1963 LKK DAD, 2013 WL 6086775, (E.D. Cal. Nov. 19, 2013) ...............................................................13 viii Sami v. United States, 617 F.2d 755 (D.C. Cir. 1979) .............................. 19 Smith v. United States, 507 U.S. 197 (1993) ................................................9 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ...................................... passim Stewart v. United States, 199 F.2d 571 (7th Cir. 1952) ................................ 13 United States v. Nordic Village, Inc., 503 U.S. 30 (1992) ................................................14 United States v. Spelar, 38 U.S. 217 (1949) ............................................ 9, 19 Supreme Court Rules Sup. Ct. R. 10 .................................................. 9, 10, 16 Statutes 28 U.S.C. § 1254(1) ......................................................1 28 U.S.C. § 1291 ..........................................................6 28 U.S.C. §§ 1346(b), 2671-2680 .................................2 28 U.S.C. § 2674 .......................................................... i 28 U.S.C. § 2680(k) ..................................................... i ix Miscellaneous Equal Protection Clause to the U.S. Constitution ........................................ ii, 8, 16 1 OPINIONS BELOW The opinion of the United States District Court for the District of Columbia granting the Government’s motion to dismiss is reported at 946 F. Supp. 2d 120. Pet. App. A16–A32. The opinion of the United States Court of Appeals for the District of Columbia Circuit affirming the District Court is reported at 771 F.3d 10. Pet. App. A1–A15. JURISDICTION Petitioners seek review of a final judgment of the D.C. Circuit, which was entered on November 14, 2014. Pet. App. A14–A15. This Petition is timely filed by the deadline of February 12, 2015. This Court has jurisdiction under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED Relevant provisions of the FTCA and the Constitution are set forth in the Appendix to the Petition. Pet. App. A33–A37. STATEMENT OF FACTS I. THE DISTRICT COURT PROCEEDING Petitioner Alan Gross formerly worked as a subcontractor to Development Alternatives, Inc. (“DAI”), which was a prime contractor of the United States Agency for International Development (“USAID”), on a project aimed at improving internet access for Cuba’s Jewish community. Pet. App. A57– 2 A63. Mr. Gross traveled to Cuba for this project five times in 2009. Pet. App. A63–A71. On December 3, 2009, during his last visit to Cuba, Mr. Gross was arrested and imprisoned in Cuba by the Cuban government, under conditions that the District Court aptly described as “harrowing.” Pet. App. A19, A70. On March 11, 2011, the Cuban government convicted Mr. Gross of “Acts against the Independence or Territorial Integrity of the State” and sentenced him to fifteen years in Cuban prison. Pet. App. A70. The Cuban government kept Mr. Gross imprisoned in Cuba until December 17, 2014, when he was released as part of an agreement between the United States and Cuba to expand relations between the two nations. A. The Complaint On November 16, 2012, Alan Gross and his wife, Petitioner Judith Gross, sued the Government and DAI for their responsibility in sending Mr. Gross to Cuba without proper training or supervision.1 Pet. App. A38–A89. (The Grosses and DAI settled shortly thereafter.) Mr.
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