Civil Air Patrol Avoiding Legal Issues in CAP sUAS Operations Austin Worcester 15 July 2019

What issues are we talking about? Issues for CAP Potential tort liability (Federal Tort Claims Act) Potential tort liability (CAP Corporate Insurances) Agency liability for actions of its members Issues personal to the individual: Individual tort liability if acting outside scope of duties (damages from your pocket) Potential criminal liability (negligence etc.) Issues that run to both the agency and the individual: Safety – Accident investigation, corrective actions Property loss – FLIPL, reimbursement for loss, admin penalties FTCA: although fed gov normally cannot be sued under principles of sovereign immunity, Congress has waived sovereign immunity in certain statutes. One of these is the FTCA. So when torts are committed (think, doing things negligently), the United States can be sued. -Importantly, this openness to suit is then taken back by the “discretionary function” exception of the FTCA: -The Federal Tort Claims Act (FTCA), 28 U.S.C.A. §§ 2671–2680 contains a discretionary function exception, which provides that the United States will not be liable for "any claim… based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C.A. § 2680(a). -To establish that the discretionary function exception is applicable, the United States must satisfy a two-part test, under which it first must show that the conduct complained of required the exercise of discretion, and then must show that the discretion was exercised on the basis of social, economic, or political policy. Berkovitz v United States, 486 US 531, 108 SCt 1954, 100 LE2d 531 (1988).

Mission Impacts Time delays to resolve issues (certifications, safety, …) Time delays for litigation Adverse judgments paid from project funds (or your own pocket, if outside scope of duties) Accidents, injuries, fatalities Personal/personnel issues

FTCA Sovereign immunity waived for many torts (think, negligent acts causing harm) but there’s an exception to this waiver Discretionary Function exception Exercise of discretion required Discretion was exercised on the basis of policy Did the agency allow you to exercise discretion? If so, did you exercise it according to policy? What must I do? What can’t I do? What may I do? What should I, or shouldn’t I do? FTCA: although fed gov normally cannot be sued under principles of sovereign immunity, Congress has waived sovereign immunity in certain statutes. One of these is the FTCA. So when torts are committed (think, doing things negligently), the United States can be sued. -Importantly, this openness to suit is then taken back by the “discretionary function” exception of the FTCA: -The Federal Tort Claims Act (FTCA), 28 U.S.C.A. §§ 2671–2680 contains a discretionary function exception, which provides that the United States will not be liable for "any claim… based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C.A. § 2680(a). -To establish that the discretionary function exception is applicable, the United States must satisfy a two-part test, under which it first must show that the conduct complained of required the exercise of discretion, and then must show that the discretion was exercised on the basis of social, economic, or political policy. Berkovitz v United States, 486 US 531, 108 SCt 1954, 100 LE2d 531 (1988).

Hypothetical Small UAS flight; UAS impacts crop duster Fatality = criminal charge? Acting within scope of duties? Authorized aircraft operated for authorized purpose? Required qualifications/certifications? Acted according to USACE policies/procedures? Many other kinds of harm can = tort liability (FTCA) Discretionary function: were you afforded discretion and acting according to policy? (example: 70-1U on operating conditions) Admin issues: property loss result of negligence/misconduct? Payment for equipment Environmental issues (cleanup)

Bottom line: acting within policies/regs is what helps protect you from legal action in event of mishap

Questions? Austin Worcester, Senior Program Mgr for UAS aworcester@capnhq.gov