1. Personal Liability for OSCs/RPMS
David Hoefer
Attorney, Office of Regional Counsel
May , 2015
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U.S. Environmental Protection Agency

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Reality - you can be accused and even sued for many things, personally and professionally. There is no absolute protection against being sued. The mere fact that someone sues you doesn’t mean that they will prevail.
You can make mistakes in doing your job and still be protected.
The goal of this training is to inform you so that you minimize your exposure.
11/27/2018
U.S. Environmental Protection Agency

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What’s a “Tort”?
“A civil wrong for which a remedy may be obtained, usually in the form of damages; a breach of a duty that the law imposes on everyone in the same relation to one another as those involved in a given transaction.” Black's Law Dictionary (7th Edition).
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U.S. Environmental Protection Agency

4. The Federal Torts Claim Act (FTCA) 28 U.S.C. § 1346(b)
Individuals who are injured or whose property is damaged by the wrongful or negligent act of a federal employee acting in the scope of his or her official duties may file a claim with the government for reimbursement for that injury or damage. In order to state a valid claim, the claimant must demonstrate that (1) he was injured or his property was damaged by a federal government employee; (2) the employee was acting within the scope of his official duties; (3) the employee was acting negligently or wrongfully; and (4) the negligent or wrongful act proximately caused the injury or damage of which he complains. The claimant must also provide documentation establishing that his claim satisfies all the elements of the FTCA.
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U.S. Environmental Protection Agency

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The U.S. government has “sovereign immunity,” FTCA is a waiver of SI.
FTCA resulted from the 1945 B-25 Empire State Building crash.
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U.S. Environmental Protection Agency

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U.S. Environmental Protection Agency

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FTCA
Covers liability for the negligent or wrongful acts or omissions of federal employees acting within the scope of their official duties.
Substitutes the United States as the defendant in such a suit and the United States—not the individual employee—bears the cost of defense and any resulting liability.
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U.S. Environmental Protection Agency

8. U.S. Environmental Protection Agency
Pursuing a FTCA Claim
Administrative process for pursuing claim; Standard Form 95.
Claimant has 2 years to file from the date of the alleged occurrence.
Claimant must include facts and damages in the claim.
Agency has 6 months to respond.
If approves, Agency defends and pays.
If disapproved, claimant has 6 months to file lawsuit.
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U.S. Environmental Protection Agency

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What’s a Tort?
A civil wrong or injury, other than a breach of contract.
Intentional, negligent, strict liability.
Personal injury, trespass, damage to property.
Not criminal conduct, per se, but may overlap (e.g., conversion/theft).
Not violation of civil statute (e.g., Privacy Act), constitutional rights violations.
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U.S. Environmental Protection Agency

10. From the Remedial Design/Remedial Action Handbook, Section 2.5.5
“the RPM, as a federal employee, would not be personally liable Because government employees are protected from personal liability incurred from performance of their job duties under the Federal Torts Claim Act. An RPM could incur personal liability for damages, however, if the damages are the result of an action the RPM knowingly performed outside the scope of his or her job duties or area of competence.”
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U.S. Environmental Protection Agency

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it goes on to say . . .
“For more specific information on Legal liability, consult the Office of General Counsel or Regional Counsel.”
An instance where it is better to ask permission than seek forgiveness.
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U.S. Environmental Protection Agency

12. To make this more complicated . . .
Differing analyses for torts, statutory violations, constitutional violations, criminal violations.
If you violate a statute or the U.S. Constitution the FTCA doesn’t apply and immunity is “qualified.”
If it’s a criminal violation, you’re on your own.
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U.S. Environmental Protection Agency

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Ignore those complications – focus on staying within the scope of your authority as an OSC/RPM, and acting in a manner that a third-party would consider to be reasonable.
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U.S. Environmental Protection Agency

14. “Scope of his or her job duties”
“Employee is in the “scope of employment” whenever he/she is engaged in activities that fairly and reasonably may be said to be incident of the employment or logically and naturally connected with it.”
NCP at provides that the “OSC/RPM directs response efforts and coordinates all other efforts at the scene of a discharge and release.”
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U.S. Environmental Protection Agency

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The NCP at (l) says that “the OSC/RPM is responsible for addressing worker health and safety concerns at a response scene, in accordance with § ”
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U.S. Environmental Protection Agency

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So you are directing a response and something goes wrong, for example, someone is injured or property is damaged. Were you “engaged in activities that fairly and reasonably may be said to be incident of the employment or logically and naturally connected with it”?
No bright line standard; “reasonable person” standard typically applied.
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U.S. Environmental Protection Agency

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Likely Exposure
Operation of a GOV
Example – OSC/RPM is leaving site at the end of the day and hits another car.
Backing GOV out of site parking and you hit another car.
OSC/RPM was on the phone while this happened.
OSC/RPM was texting when this happened.
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U.S. Environmental Protection Agency

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OSC/RPM was distracted while texting and he/she dropped an open beer onto his/her lap causing him/her to swerve.
OSC/RPM was distracted while texting and he/she dropped an open beer onto his/her lap, causing him/her to swerve, he/she has an elevated BAC, it is 3:00 a.m., and instead of leaving the site he/she is leaving a bar.
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U.S. Environmental Protection Agency

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Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act) 28 U.S.C. §2679(d)
The Westfall Act amended the FTCA to provide for the substitution of the United States as a defendant in any action where one of its employees is sued for damages as a result of an alleged common law tort committed by the employee within the scope of his or her employment. (Emphasis added.)
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U.S. Environmental Protection Agency

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So You Get Sued . . .
You are served with a Complaint naming you as the defendant.
Contact your supervisor and ORC immediately
ORC will review, and if appropriate, seek DOJ representation per 28 U.S.C. §517 and 28 C.F.R. §§ and
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U.S. Environmental Protection Agency

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Request for individual capacity representation prepared by ORC; goes to HQ; then to DOJ.
You can hire your own lawyer, but if DOJ represents you there is no cost to you.
DOJ looks to see if the conduct giving rise to the claim arose w/in the scope of your employment, and is it in the interest of the U.S. to defend you?
Reviewed by DOJ – 95% of requests are approved (as of 2011).
Applies to current and former federal employees, but you have to be employed by the U.S. when the tort occurred.
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U.S. Environmental Protection Agency

22. Professional Liability Insurance (PLI)
Available from non-governmental insurers.
If DOJ disapproves of your representation request, PLI has a duty to defend.
Covers (with limits):
Administrative investigation, e.g., government, (internal, OIG, EEO, MSPB) – covers legal representation/defense.
Damages for personal liability if a third-party sues you, and wins.
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U.S. Environmental Protection Agency

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PLI creates a contractual obligation, within the parameters established in the policy/contract, to defend and indemnify the insured.
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U.S. Environmental Protection Agency

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U.S. Environmental Protection Agency

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Your personal homeowner’s/auto policies typically don’t cover you for work-related incidents.
PLI coverage –
$1M per incident civil suit
$200K legal defense for disciplinary proceeding/investigation
$100K legal defense for criminal proceeding/investigation
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U.S. Environmental Protection Agency

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Perhaps easier said than done, but conduct yourself is an objectively reasonable manner – how would your acts look to a reasonable third-party? That is how you will be judged.
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U.S. Environmental Protection Agency

27. What about contractors?
General rule is that an contractor’s liability is the contractor’s liability, not EPA’s.
But if the party contracting “retains control” over the work “to have an actual effect on the method or conditions under which work is performed”, it may be exposed to liability.
Also, some work may be so “inherently dangerous” that you can’t contract away the liability.
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U.S. Environmental Protection Agency

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Takeaway
Stay within the scope of your authority as an OSC/RPM.
How would my actions look to a reasonable person?
Don’t violate the law or the U.S. Constitution.
Consult with your lawyer.
11/27/2018
U.S. Environmental Protection Agency