GROSS et al v. DEVELOPMENT ALTERNATIVES, INC. et al

Filing 2

COMPLAINT against All Plaintiffs ( Filing fee $ 350 receipt number 0090-3134832) filed by ALAN GROSS, JUDITH GROSS. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Exhibit A, # 6 Exhibit B)(Snyder, Ivan)

Exhibit A

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1100 New York Avenue, NW
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Scott O. Gilbert

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gllberts@gotofirm com

December 2, 20 I I

VIA HAND DELIVERY

Ms. Lisa Gomer
Office of the General Counsel
U.S. Agency for International Development
Ronald Regan Building, 6.06-125
1300 Pennsylvania A venue, NW
Washington, DC 20523
Re:

Claim for Damages on Behalf of Judith E. Gross

Dcar Ms. Gomer:
We submit this claim on behalf of Judith E. Gross pursuant to the Federal Tort Claims Act, 28
U.S.C. § 267 1, et seq. and related regulations. As discussed below, this claim arises as a direct
result of the recklessness and gross negligence of the U.S. Agency for International Development
("USAID"), its agents, employees. and contractors. We are authorized to submit this claim on
Mrs. Gross's behalf as her duly authorized legal representative pursuant to 28 C.F.R. § 14.2(a).
Mrs. Gross is the wife of Alan P. Gross, a USAID subcontractor. On February 10,2009, Mr.
Gross entered into a contract with Development Alternatives, Inc. ("DAI") requiring Mr. Gross
to perform certain work in connection with USAID's "Cuba Democracy and Contingency
Planning Program" (the " Program"). The Program is a part oftbe Instability, Crisis and
Recovery Programs Prime Contract No. DFD-I-00-05-00250-00, which was entered into by
USAID and DAI on August 14,2008. Mr. Gross's contract with DAl was amended several
times, up through and including Modification No.5, which was executed by Mr. Gross on
October 23, 2009 (the "S ubcontract").
The Subcontract specifies the work that Mr. Gross was 10 perfonn between November 1, 2009
and October 3 1, 20 10. Under the Subcontract, Mr. Gross was required to develop and
implement a plan to increase the availability in Cuba of information and communication

Ms. Lisa Gomer
December 2, 2011
Page 2

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technologies ("leTs") through, among other things, the use of mobile phones, wireless
technologies, computers, and internet-accessing devices. The stated purpose of the plan was to
improve internet access for the Jewish community in Cuba. In order to complete his obligations
under the Subcontract and the Program, Mr. Gross was required to travel to Cuba and to bring
with him the necessary ICT devices. Once in Cuba, Mr. Gross was to meet with various
members of the Cuban Jewish community for purposes of configuration, logistics, training and
use of the ICTs. All of this work was agreed to and performed with the direct approval of
USAlD.
Prior to Mr. Gross's departure to Cuba, neither USAID nor DAI fully disclosed the significant
risks Mr. Gross would face by traveling to and entering Cuba to perform the work required under
the Program and the Subcontract. Nor did USAID or DAI offer to provide, or in fact provide, to
Mr. Gross the extensive training that would be reasonably necessary to minimize the risk of harm
to an individual in the circumstances soon to be faced by Mr. Gross. Indeed, USAID and DAI
never so much as inquired whether Mr. Gross fully understood the risks he was about to take by
performing the work required under the Program and the Subcontract. Nobody at USAID or
DAI informed Mr. Gross, or trained or prepared him, for what we now know was a material risk
that, because of his work under the Program and the Subcontract, Mr. Gross could be detained by
the Cuban Government for a potentially indefinite period of time based on charges unfamiliar to
any American. USAID also utterly failed to supervise DAI under the Program to ensure that
subcontractors, such as Mr. Gross, were not put in harm's way without full disclosure and
adequate training.
On November 23,2009, Mr. Gross departed the United States and traveled to Cuba to perfortn
the work required of him. Due entirely to the work he was performing under the Program and
Subcontract, Mr. Gross was arrested by Cuban authorities on December 3, 2009. Mr. Gross was
not formally charged with a crime until February 2011, when he was charged with "Acts against
the Independence or Territorial Integrity of the State." After a summary trial in March 2011 , Mr.
Gross was convicted and sentenced to 15 years imprisonment. The Cuban court determined that
Mr. Gross participated in "a subversive project of the U.S. government that aimed to destroy the
Revolution through the use of communication systems out of the control of [Cuban] authorities."
Mr. Gross remains incarcerated in Cuba.

The detention and imprisonment of Mr. Gross are the direct consequence of the reckless and
grossly negligent conduct of US AID. As a result, Mrs. Gross has suffered significant harm,
including but not limited to financial loss and physical and emotional pain and suffering. On
April 19, 2010, USAID offered to pay Mrs. Gross $202,000 in exchange for a full release of
Liability. Mrs. Gross refused and on June 18,2010, USAID authorized payment of that amount
without resolving Mrs. Gross's claim against USAID.
Although we appreciate the interim payment by USAID, the sum paid docs not begin to
compensate Mrs. Gross for the harm she has suffered and continues to suffer because of

Ms. Lisa Gomer
December 2, 20 II

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USAID's conduct. We hereby demand that USAID pay compensation to Mrs. Gross in the
amount of$ l O million. In view of the circumstances of Mr. Gross's incarceration in Cuba, we
reserve the right to update this claim accordingly. Should you require any additional
infonnation please do not hesitate to contact me.
r
Sincere

IScott D. Gilbert