United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2014 Decided November 14, 2014

No. 13-5168

ALAN GROSS AND JUDITH GROSS,

APPELLANTS

v.

UNITED STATES OF AMERICA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01860)

Barry I. Buchman argued the cause for appellants. With

him on the briefs were Scott D. Gilbert, Natalie A. Baughman,

and Emily P. Grim.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellee. On the brief were Ronald C. Machen Jr., U.S.

Attorney, and R. Craig Lawrence and Michelle Lo, Assistant

U.S. Attorneys.

Before: HENDERSON, ROGERS and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge ROGERS.
2

ROGERS, Circuit Judge: The Cuban Liberty and

Democratic Solidarity (Libertad) Act of 1996, Pub. L.

No. 104–114, 110 Stat. 785 (1996) (codified at 22 U.S.C. § 6021

et seq.), aimed “to assist the Cuban people in regaining their

freedom and prosperity, as well as in joining the community of

democratic countries that are flourishing in the Western

Hemisphere.” Id. § 3, 22 U.S.C. § 6022(1). The Act authorized

the President “to furnish assistance and provide other support for

individuals and independent nongovernment organizations to

support democracy-building efforts for Cuba.” Id. § 109, 22

U.S.C. § 6039. In that regard, the United States Agency for

International Development (“USAID”) entered a contract with

a private consulting firm, Development Alternatives, Inc.

(“DAI”), to provide humanitarian support to groups within

Cuba. DAI, in turn, contracted with Alan Gross to train the

Jewish community in Cuba to use and maintain information and

communication technologies, such as mobile phones, wireless

technologies, and personal computers. As his fifth trip to Cuba

was drawing to a close in December 2009, Mr. Gross was

detained and interrogated by Cuban authorities. In 2011, he was

convicted for his participation 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” and sentenced to fifteen years’ imprisonment. 

Compl. ¶ 115 (alteration in original). 

In 2012, Mr. Gross and his wife Judith sued DAI and the

United States, alleging negligence, gross negligence, negligent

infliction of emotional distress, and loss of consortium in

connection with Mr. Gross’s work in Cuba. In addition to

physical and emotional harm suffered by Mr. Gross, they

alleged that they “have suffered significant economic losses due

to Mr. Gross’s wrongful arrest and continuing wrongful

detention,” including “the destruction of Mr. Gross’s business,”

lost income, legal fees, and medical expenses. Id. ¶ 129
3

(emphasis added). The Grosses settled their claims against

DAI. The United States moved to dismiss the claims against it

on the ground of sovereign immunity. The district court granted

the motion, ruling that the foreign country exception to the

waiver of sovereign immunity in the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. § 2680(k), foreclosed the Grosses’ claims

“[b]ecause [their] injuries . . . stem from [Mr.] Gross’s

imprisonment in Cuba,” and that the exception did not, under

rational basis scrutiny, violate the Equal Protection Clause as

applied to the Grosses. Gross v. Dev. Alternatives, Inc., 946 F.

Supp. 2d 120, 124, 127 (D.D.C. 2013).

The Grosses appeal, and our review is de novo, see, e.g.,

Janko v. Gates, 741 F.3d 136, 139 (D.C. Cir. 2014). The court

“accept[s] the well-pleaded factual allegations set forth in [the

Grosses’] complaint as true for purposes of this stage of the

litigation and construe[s] reasonable inferences from those

allegations in [their] favor, although we are not required to

accept [the Grosses’] legal conclusions as true.” Doe v.

Rumsfeld, 683 F.3d 390, 391 (D.C. Cir. 2012). For the

following reasons, we affirm the dismissal of the complaint. 

I.

The FTCA waives the United States’s sovereign immunity

from tort claims and, subject to exceptions, renders the United

States liable in tort as if it were a private person. See Sosa v.

Alvarez-Machain, 542 U.S. 692, 700 (2004); 28 U.S.C.

§ 1346(b)(1). When determining whether one of the exceptions

to that waiver applies, the court “is to identify those

circumstances which are within the words and reason of the

exception — no less and no more.” Dolan v. U.S. Postal Serv.,

546 U.S. 481, 492 (2006) (quoting Kosak v. United States, 465

U.S. 848, 853 n.9 (1984)) (internal quotation marks omitted). 

Under the foreign country exception, the United States retains
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sovereign immunity from “[a]ny claim arising in a foreign

country.” 28 U.S.C. § 2680(k). The Grosses contend the

United States failed to meet its burden to show this exception

applies. Insofar as they maintain the district court erred as a

matter of law in construing the scope of the exception, their

challenge must fail at the outset. 

In Sosa, the Supreme Court held that the foreign country

exception “bars all claims based on any injury suffered in a

foreign country, regardless of where the tortious act or omission

occurred.” 542 U.S. at 712. The Court rejected the

“headquarters doctrine,” under which this exception had not

applied to claims that a domestic act or omission had its

operative effect in another country. See id. at 701–10. 

“[F]ollow[ing] the lead of Sosa,” this court held in Harbury v.

Hayden, 522 F.3d 413, 423 (D.C. Cir. 2008), that a plaintiff

“cannot plead around the FTCA’s foreign-country exception

simply by claiming injuries . . . that are derivative of the

foreign-country injuries at the root of the complaint” — in that

case, a widow’s “emotional injuries in the United States as a

result of the death of her husband [in Guatemala].” Id. 

Resisting the force of this precedent, the Grosses emphasize

that Mr. Gross’s alleged economic injuries “have occurred

exclusively in the United States” and consequently are not

derivative of the injuries he has suffered in Cuba. Reply Br. 6. 

They also point to the “unique facts,” Appellants’ Br. 20, that

his injuries were sustained when the United States sent him to

Cuba to fulfill U.S. objectives. But these arguments are either

another way of invoking the headquarters doctrine rejected in

Sosa or suggesting we can ignore this court’s interpretation in

Harbury of the foreign country exception as extending to

derivative injuries, which we cannot do, see LaShawn A. v.

Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996). Likewise, their

characterization of Mr. Gross’s economic injuries as “primary”
5

rather than “derivative,” Reply Br. 7, does not advance the

Grosses’ cause because it misapprehends the holding in

Harbury and ignores the allegations of their own complaint. 

The Grosses’ complaint attributes all of their alleged injuries to

Mr. Gross’s imprisonment in Cuba; they allege that they “have

suffered significant economic losses due to Mr. Gross’s

wrongful arrest and continuing wrongful detention.” Compl. ¶

129 (emphasis added). The complaint, on its face, therefore

establishes that the Grosses’ alleged economic injuries are

“based entirely on” injuries suffered by Mr. Gross in Cuba and

are “derivative” of those injuries under Harbury, 522 F.3d at

423.1

The Grosses insist that to cloak the United States in

immunity when “it sends a U.S. citizen into a foreign country to

accomplish U.S. Government objectives in what the United

States knows to be a dangerous fashion, and that citizen suffers

at least some injury in the United States as a result,” would

create a “sweeping new ‘government operations’ exception.” 

1

 The Grosses’ reliance on the non-binding analysis in S.H.

v. United States (“S.H. II”), — F. Supp. 2d. —, No. CIV. S-11-1963

LKK D, 2014 WL 3362366 (E.D. Cal. July 8, 2014), and S.H. ex rel.

Holt v. United States (“S.H. I”), No. CIV.S-11-1963 LKK DAD, 2013

WL 6086775 (E.D. Cal. Nov. 19, 2013), is unavailing. In S.H., the

Eastern District of California addressed the foreign country exception

in a negligence case where the alleged injuries to a child born in Spain

consisted of catastrophic neurological damage and cerebral palsy. A

threshold question was when and where the cerebral palsy “occurred.” 

The S.H. district court conducted a choice-of-law analysis to conclude,

in the murky medical diagnostic context, that her injury occurred in

the United States. See S.H. II, 2014 WL 3362366, at *14, 16–17. 

Because the complaint here alleges that Mr. Gross’s primary “injury”

is his imprisonment in Cuba, see Compl. ¶ 139, no choice-of-law

analysis is necessary to determine that the foreign country exception

bars the Grosses’ claims. 
6

Appellants’ Br. 20–21. This view is foreclosed by the plain text

of the foreign country exception and cases interpreting it. In

Harbury, the court considered the potential effect of allowing

derivative claims to proceed, despite the foreign country

exception, explaining that to do so “would threaten to ‘swallow

the foreign country exception whole.’” 522 F.3d at 423

(quoting Sosa, 542 U.S. at 703). Insofar as the Grosses seek to

highlight the inequity in denying redress to individuals sent to

foreign countries at the behest of the United States, their policy

argument is better directed to Congress. 

The foreign country exception thus deprived the district

court of jurisdiction to address the Grosses’ FTCA claims, all of

which are based on or derivative of injuries suffered in Cuba.

II.

The Grosses’ contention under the Equal Protection Clause

fares no better. Reprising an argument they raised in opposing

the government’s motion to dismiss the complaint, they

maintain that the foreign country exception is unconstitutional

as applied to them because it “differentiates between two

classes of U.S. citizens injured due to U.S. Government

negligence: those whose injuries occur abroad and those whose

injuries occur in the United States.” Appellants’ Br. 21. 

Applying rational basis scrutiny, which the Grosses agreed was

the proper inquiry, the district court found that a rational basis

for the disparity exists because the foreign country exception

“protect[s] the United States’ coffers from the whims of foreign

law,” Gross, 946 F. Supp. 2d at 126. 

The Grosses maintain that “it is irrelevant whether

Congress’s basis in enacting the foreign country exception was

rational in general,” Appellants’ Br. 22, and that application of

the foreign country exception cannot be sustained because its
7

“sole stated purpose” — avoiding the application of foreign law

— “would not be served” in their case, id. at 24. The district

court thus erred, they continue, by rejecting their constitutional

challenge without performing a choice-of-law analysis or

allowing for discovery and “by ascribing a purpose to the

foreign country exception different from the one actually stated

by Congress.” Id. at 28. 

As an initial matter, to accept the Grosses’ view that the

foreign country exception applies only when foreign law would

control is contrary to Supreme Court instruction. In Smith v.

United States, 507 U.S. 197 (1993), the Court rejected the

argument that, as to a FTCA claim arising in Antarctica, which

has no law of its own, applying the foreign country exception

was unnecessary to further the exception’s goal of “insulat[ing]

the United States from tort liability imposed pursuant to foreign

law.” Id. at 200. In so doing, the Court looked to the text of the

foreign country exception, 28 U.S.C. § 2680(k); a different

provision of the FTCA, 28 U.S.C. § 1346(b), which it had

interpreted as “more than a choice-of-law provision” and

instead to “delineate[] the scope of the United States’ waiver of

sovereign immunity”; and “the presumption against

extraterritorial application of United States statutes.” Id. at

201–03. 

Thereafter, in Sosa, the Court reaffirmed that Congress did

not write the exception to apply only when foreign law would

be implicated. The Court rejected the notion of “selective

application of headquarters doctrine . . . when a State’s choiceof-law approach would not apply the foreign law of place of

injury.” 542 U.S. at 711. Such an application of the exception,

the Court concluded, would result in “a scheme of federal

jurisdiction that would vary from State to State, benefitting or

penalizing plaintiffs accordingly,” id., and the idea Congress

would have intended such a scheme of federal jurisdiction “is
8

too implausible to drive the analysis to the point of grafting

even a selective headquarters exception onto the foreign country

exception itself,” id. at 712. The Court acknowledged that the

argument “would be well taken . . . if Congress had written the

exception to apply when foreign law would be applied. But that

is not what Congress said.” Id. at 711. The foreign country

exception, the Court observed, was “written at a time when the

phrase ‘arising in’ was used in state statutes to express the

position that a claim arises where the harm occurs; and the odds

are that Congress meant simply this. . . .” Id.

Consequently, the Grosses attempt to minimize Sosa as

addressing only the scope of the foreign country exception, not

an as-applied challenge to the constitutionality of the exception. 

Even so, well-settled precedent establishes that, under the

lenient rational basis test, “a classification neither involving

fundamental rights nor proceeding along suspect

lines . . . cannot run afoul of the Equal Protection Clause if there

is a rational relationship between the disparity of treatment and

some legitimate governmental purpose.” Armour v. City of

Indianapolis, 132 S. Ct. 2073, 2080 (2012) (quoting Heller v.

Doe, 509 U.S. 312, 319–20 (1993)) (internal quotation marks

omitted). “[T]he distinction between facial and as-applied

challenges . . . goes to the breadth of the remedy employed by

the Court, not what must be pleaded in a complaint.” Edwards

v. District of Columbia, 755 F.3d 996, 1001 (D.C. Cir. 2014)

(alterations in original) (quoting Citizens United v. FEC, 558

U.S. 310, 331 (2010)) (internal quotation marks omitted); “[t]he

substantive rule of law is the same for both challenges,” id.; see

Smith v. City of Chicago, 457 F.3d 643, 652 (7th Cir. 2006). 

The precedents on which the Grosses rely to support their

view that the foreign country exception should not apply where

doing so would be inconsistent with the exception’s stated

purpose, even if that purpose is otherwise legitimate, are not to
9

the contrary. In Wheeling Steel Corp. v. Glander, 337 U.S. 562

(1949), the Supreme Court held that an Ohio ad valorem tax

that had the purpose and effect of taxing the goods of nonresidents, while exempting the goods of Ohio residents, denied

two out-of-state corporations the equal protection of Ohio law. 

Id. at 563–64, 573–74. The Court did not hold, as the Grosses

suggest, that “application of [a] statute in a manner that is

inconsistent with its stated purpose is unconstitutional,”

Appellants’ Br. 22. In Shelby County v. Holder, 133 S. Ct. 2612

(2013), the Supreme Court upheld a facial challenge to the

constitutionality of the coverage provision of the Voting Rights

Act on the ground that it was “irrational for Congress to

distinguish between States in such a fundamental way based on

40-year-old data, when today’s statistics tell an entirely

different story.” Id. at 2630–31. That the Court insisted that

Congress’s judgment be rational in light of “current conditions,”

id. at 2631, does not aid the Grosses; it is not the “current

circumstances,” Appellants’ Br. 22, of a particular litigant that

mattered to the Court, but rather the “current conditions” that

were before Congress when it enacted the statute, see Shelby

County, 133 S. Ct. at 2628–29. 

Similarly, the Grosses’ objections that the district court

erred by failing to engage in a fact-specific analysis and to

allow discovery fail. In Richmond Medical Center for Women

v. Herring, 570 F.3d 165, 172 (4th Cir. 2009), on which the

Grosses rely, the Fourth Circuit did not state that all as-applied

challenges require a court to engage in a fact specific analysis. 

Neither does Greater Baltimore Center for Pregnancy

Concerns, Inc. v. Mayor & City Council of Baltimore, 721 F.3d

264, 282 (4th Cir. 2013), on which they also rely, show the

district court was required to allow discovery. Although these

cases indicate that “a developed factual record” may sometimes

be required in as-applied constitutional challenges, Richmond

Med. Ctr., 570 F.3d at 172; see also Greater Balt. Ctr., 721 F.3d
10

at 282, neither addressed rational basis review in the context of

an as-applied Equal Protection challenge. (The district court

opinions in S.H. also do not aid the Grosses as no constitutional

challenge to the foreign country exception was raised. See 2014

WL 3362366; 2013 WL 6086775.) Moreover, the government

responds, inasmuch as the Grosses never moved for discovery

nor defended against the motion to dismiss their complaint on

the ground they had not yet taken discovery, no error can be

assigned on that ground. See Second Amendment Found. v. U.S.

Conf. of Mayors, 274 F.3d 521, 525 (D.C. Cir. 2001). Even on

appeal, the Grosses do not identify any particular discovery they

needed to defend against the government’s motion to dismiss on

jurisdictional grounds. Absent a plausible basis that would

permit them to overcome the jurisdictional bar, the Grosses fail

to show error by the district court in any event. Cf. Herbert v.

Nat’l Acad. of Sciences, 974 F.2d 192, 198 (D.C. Cir. 1992). 

Finally, the Grosses object that the district court erred by

ascribing a purpose to the foreign country exception different

from that stated by Congress and acknowledged by courts, by

referring to logistical burdens potentially posed by their lawsuit. 

See Gross, 946 F. Supp. 2d at 127. We find no error. Having

properly rejected the Grosses’ framing of the Equal Protection

inquiry — as requiring a rational basis for the exception as

applied to a U.S. citizen injured abroad where domestic law

would control the tort liability — the district court rejected their

Equal Protection challenge to the exception, referring to

Congress’s concern about the effect on the Treasury absent the

exception. See id. at 126 (citing Sosa, 542 U.S. at 707). The

district court then pointed out that even under the Grosses’

framing of the inquiry the foreign country exception did not

violate the Equal Protection Clause. The district court noted

that other circuit courts of appeal had recognized the exception

protects the United States from particularly burdensome

litigation. See id. at 127. Its own unremarkable observation
11

regarding logistical difficulties involving foreign injuries

required no development of the record and was irrelevant to the

Grosses’ claims. 

Accordingly, we affirm the judgment of dismissal. In so

doing, we endorse the views expressed in the penultimate

paragraph of the district court’s opinion, Gross, 946 F. Supp. 2d

at 127.