text:
Lord God, our Rock and Redeemer, let the words of my mouth and the meditations of our hearts be pleasing in your sight. Through Christ Jesus, our risen Lord. Amen.
One of the remarkable things about the concluding verses of 2 Tim, and of the letter as a whole, is how clear a window we get onto Paul’s circumstances on the eve of his death. It is rare in Paul’s letters to find such specific, concrete description of his situation as he writes. Most of the time, we can only infer very general details about the when and where of Paul’s writing. Second Timothy allows us to set the scene with much more specificity.
So, for example, several times in the letter we are told that Paul is in prison. He is locked up by the Roman Empire as a political criminal because he had, among other things, committed the high treason of proclaiming throughout the world that Jesus is Lord. Everyone knew that Caesar is Lord. There can’t be two “Lords”! Well that was precisely Paul’s point as he proclaimed the good news. And he wound up in a Roman prison cell.
In our passage this morning, we are clued off to the fact that the imprisoned Paul is awaiting a second legal hearing in Rome. Paul refers in v. 16 to his “first defense”; the clear implication is that he has a second defense, a second court date, on the horizon. It’s a bit debated, but I think Paul’s “first defense” was an initial hearing before a Roman judge to determine whether the charges against him were clear and compelling enough to execute him right away, or whether the matter was sufficiently complex to require a more careful weighing of the evidence at a formal trial. As Paul says in vv. 16–17, everyone who might have supported him at this first hearing abandoned him, but the Lord stood by him and “rescued [him] from the lion’s mouth.” In other words, the first legal hearing ended favorably for Paul; he was rescued from immediate execution. Now he awaits his second, more formal trial.
But Paul doesn’t seem to have much confidence that he’ll make it through his second defense alive. As he looks to the immediate future, he speaks in v. 18 of being brought “safely into [Christ’s] heavenly kingdom”—that is, into the kingdom that is to come. Paul knows that martyrdom is on the horizon as a result of his second defense. So he urges Timothy to make haste to come visit him in v. 9. Earlier in this chapter, in v. 6, he says that he is “already being poured out as a drink offering.” His time of “departure [i.e., death] has come.” He has fought the good fight and finished the race. Paul knows that the end, for him, is near.
Paul’s death is near, and he is more or less alone as he waits for it. Nearly all of his companions have left for various reasons. Titus and Crescens, mentioned in v. 10, left Paul, apparently because the Lord called them to other regions. According to v. 12, Paul sent Tychicus on an important task to Ephesus, probably to carry this letter to Timothy. Titus, Crescens, Tychicus—these were good friends whose departure was surely no easy pill to swallow for Paul with only an empty prison cell to turn to. For those whose earnest aspiration is to see Christ named where he is not named, life will be full of many bittersweet goodbyes as God’s call will take us and our friends and family along different paths. Paul writes this letter from prison, having just experienced some particularly bittersweet goodbyes.
And Paul has also experienced a much more painful separation. From other NT books, we know that Demas in v. 10 was a close partner with Paul in gospel labors. But it seems that idols laid hold of Demas’s heart, stealing his affections away from Christ. And having grown cold to Christ, Demas grew cold toward his brother in Christ, Paul, and he left Paul in a lurch. This isn’t simply two friends experiencing a sorrowful separation because of different callings; this is a friendship ending, a desertion by a close companion in a moment of great need.
In his first defense, Paul was abandoned by all who might have supported him. Now he has been abandoned by his one-time close friend Demas. And other dear partners in the work of the Lord have also left him. It is true that Paul expected Mark to come to his aid, as v. 11 suggests. And the beloved Timothy himself would, Lord willing, soon visit, as Paul urges him to do. And it’s true that Paul wasn’t completely alone. According to v. 11, Luke still stood faithfully by him. But the “alone” in that verse is striking: “Luke alone is with me.” Everyone else is gone. Please hurry, Timothy. The imprisoned Paul, at the end of his life, battles great loneliness.
And to make matters worse, it’s getting colder outside. In v. 9, Paul tells Timothy to come quickly. In v. 21, he again urges, “Do your best to come,” and adds, “before winter.” Winter is coming. And there’s a very practical reason why Timothy must get there before winter. Through a set of circumstances unknown to us, Paul had left his cloak in Troas. For “cloak,” read “winter coat.” Paul wants the first-century Greco-Roman equivalent to a parka, because winter is coming and Roman prisons weren’t known for their great central heating.
On top of all the other troubles Paul faces, he is also deeply anxious for his son in the Lord, Timothy. His deep, heart-wrenching anxiety for Timothy jumps off every page. Paul is concerned that Timothy might become ashamed of Christ. Paul is worried that Timothy might be led astray by youthful passions. Paul is anxious because Timothy could be thwarted by opponents such as Alexander, whom Paul warns Timothy of in our passage in vv. 14–15. The end of 2 Tim enables us to paint a uniquely vivid picture of the circumstances and state of soul that Paul is in as he writes this letter. The scene, with all of Paul’s difficulty and heartache, is easy for us to picture in our mind’s eye. This is a deeply human experience and hardship; it’s easy for us to imagine and easy, I think, for most to identify with at some level.
But Paul’s behavior in his great hardship may be harder to identify with. In this respect, Paul is quite strange. Here he is in no small amount of turmoil of soul and circumstance, with heavy burdens pressing down upon him, with tons of reasons for anxiety and frustration and despair. And what is he spending his time doing? He’s writing a letter to encourage Timothy. He’s thinking of and passing on good wishes to Prisca and Aquila and the household of Onesiphorus in v. 19. He’s noticing others and doing what he can for their good. And more remarkably, Paul is also extending mercy to those who have wronged him. We see it in v. 16. At his first legal hearing, everyone who might have supported him in fact deserted him. But what does Paul say? “May it not be charged against them!” May they find mercy before the Lord! May their failures and wrongs be forgiven them! It would be understandable if Paul held a grudge toward those who wronged him. But he doesn’t. We would sympathize if Paul wallowed in self-pity and cut himself off from others. But he doesn’t. While he acknowledges his grief and concern, he is not so blinded by it that he cannot look to the needs and the good of others. In his very poignant experience of disappointment and abandonment and fear and frustration and physical cold and emotional concern for the future, he still loves others and forgives.
And I say this makes Paul strange, because it’s a far cry from what I would do in Paul’s position. (I define strange or abnormal as anything different from me, since I am the definition of normal.) Paul does the opposite of what I tend to do with hardship and anxiety. What do I tend to do in those circumstances? I wallow in self-pity. I complain. I fix my eyes squarely on my problems. The good of others is the last thing that comes to mind when I encounter some great difficulty. In fact, when I experience hardship and frustration, abandonment and anxiety, I almost instinctively cut myself off from everyone else. Others only tend to intensify my sense of despair. Everything’s going well for them. Their joys are an offense to me, spotlighting my lack of joy. Or the troubles of others are not really as bad as mine, and I get bitter that no one else realizes that. I say, “They don’t know how hard it is for me.” No one really has a clue about the impossibility I’m in. In hardship and frustration, I’m more inclined to complain about how little others care about me than I am to care about others.
And I am certainly not ready to extend forgiveness and mercy to those whom I think have played a part in my hardship. It’s much easier to hold grudges, to harbor resentment and bitterness. Or in self-righteousness to be only conditionally merciful and forgiving: I’ll forgive you, alright, just as soon as I know that you know how awful you’ve been, only when I am satisfied that you have suffered enough for the suffering you have inflicted on me.
Paul seems strange to me because he doesn’t respond to his hardships in the way normal human beings do, or at least in the way sinful, self-preoccupied people do. So what is it that makes Paul so strange? Well, let’s consider the most theologically profound verses of our passage, vv. 17–18. Everyone deserted Paul at his first defense, but, Paul says in v. 17, “the Lord stood by me and strengthened me,” and Paul boldly proclaimed the gospel to the Roman court. The Lord stood by Paul. What’s more, this same Lord, Paul says in v. 18, “will rescue me from every evil deed and bring me safely into his heavenly kingdom.” As profound and rich as these verses are, I have a very easy, elementary question about them. The “Lord” whom Paul speaks of is clearly Jesus. This is the same Jesus who a few decades earlier was condemned to death, who was executed as a Roman political criminal, who bled and suffocated to death on a cross and whose mutilated corpse was buried in a tomb outside of Jerusalem. How is it possible for that Jesus to “stand by” Paul several decades later in Rome and to deliver Paul in the future? I said it’s a very easy question. Don’t overthink it. The reason why a crucified and dead Jesus can be with Paul and can be counted on to deliver Paul in the future is because this Jesus is no longer dead. He arose from the grave. He was resurrected from the dead to new, indestructible life. He is still alive and active today, and will be forever and ever.
Christ must be resurrected and alive in order for Paul to have the experience he had in v. 17 and the hope he has in v. 18. Christ’s resurrection is the basic but crucial assumption, the crucial fact, that stands behind Paul’s words here at the end of 2 Tim. It’s the crucial reality that makes Paul so different. Christ’s resurrection enables Paul to persevere through hardship, and even, in hardship, to care for others and extend mercy to those who have hurt him. Christ is risen! And that makes all the difference in the world on Paul’s actual experience of suffering.
It can also make all the difference in the world on our experience of suffering. If Paul’s letter indicates that the resurrection of Christ changes him, then the promise is that it will do so for us as well. But how? We’ll spend the rest of our time trying to answer that question. Specifically, I want to suggest three ways in which Christ’s resurrection changes and impacts us, three ways in which Christ’s resurrection made Paul new and can also make us new.
First, Christ’s resurrection objectively transforms us. Or better, Christ’s resurrection unleashes an objective power that does something to us, makes us new people. The simplest way to get at this is to recall how the story of Jesus goes. Jesus was crucified, died, was buried, on the third day he rose again. Then what did he do? He poured out his Spirit on us. It’s the first royal act that the risen Jesus performs when he ascends to his cosmic throne: he gives his own Spirit to the church at Pentecost. The resurrection of Jesus opens the floodgates of heaven, as it were, so that the Spirit of the resurrected Christ might be showered on us, his bride. And the Spirit of the resurrected Christ changes and transforms us; he makes us new.
To say it more precisely, the Spirit of Christ makes us more like Christ. The Spirit of Christ breaks into a life and begins to shape that life into Christ’s image. In this light, consider again Paul’s experience at the end of 2 Tim. He was abandoned by his friends. Who else was deserted by his friends in his hour of greatest need? It was, of course, Jesus, who saw, one after another, his closest companions abandon him, betray him, deny him. Paul is being molded into the image of Christ. Paul is tried before the Roman authorities as a political criminal; so was Christ, who was tried before the Roman governor Pilate. Paul finds himself cloak-less, but he is only doing so after his Lord was stripped of his garments and strung up naked on the cross. And if Paul can pray for mercy for those who have sinned against him, “May it not be charged against them!,” it is because he is being conformed into the image of One who prayed for his persecutors, “Father, forgive them for they know not what they are doing.” Paul’s life, Paul’s mercy, Paul’s love is being made to reflect Christ, by the power of Christ’s own Spirit given to Paul and to the church because of and through Christ’s resurrection.
So the first way in which Christ’s resurrection impacts our lives is that it unleashes the Spirit who transforms us into Christ’s image. By the power of the Spirit, we become like Christ, persevering and even loving others through suffering. A second way in which the resurrection impacts our lives is this: it gives us something to set our hope on. Christ’s resurrection reveals to us our true hope so that we may bank on it while sojourning through this vale of tears, so that by hope we might persevere through suffering. It is hope in our true destiny, revealed in Christ’s resurrection, that changes us; hope strengthens our hearts to persevere and love. Let’s spend some time unpacking this point.
We’ve already noted that the Spirit of Christ is conforming our lives into Christ’s image. Here is one last crucial way in which we will become like Christ: Jesus suffered the supremest hardship and sorrow and pain—the sufferings and death of the cross—but he was delivered on the far side of his suffering. But how was he delivered? By being raised from the dead. Christ was resurrected. If Paul is in Jesus by faith, then Paul can be sure that his ultimate fate will be what Jesus experienced: he, too, will be raised from the dead on the far side of suffering. Suffering and death was not the end of Christ’s story, neither will it be the end of the story for Paul or anyone else who is in Christ and whom the Spirit is making like Christ. Christ’s resurrection reveals our truest destiny, which is nothing less than the resurrection of our bodies. It is in this destiny, this deliverance, this ultimate rescue that we can now set our hope.
What does Paul say in our passage? Paul suffers now, but he is confident, v. 18 says, that in the future he will be rescued from all his sufferings into Christ’s heavenly kingdom. He will be rescued from his sufferings in the same way Jesus was rescued from suffering—by being raised from the dead. Resurrection is the rescue that Paul eagerly anticipates at the end of 2 Tim. The language of being rescued into a “heavenly kingdom” in v. 18 might sound to us like some disembodied existence in an ethereal realm called “heaven.” But make no mistake about it: the true hope of the Christian is not escape from earth into heaven; the true hope of the Christian is that heaven would invade this earth and make all of it new—rocks and trees and skies and seas, cultures and cities and gardens and food, air and light and sound and our bodies. When Paul sets his hope on deliverance into Christ’s heavenly kingdom, he is not hoping to escape this created world and his created body. He is hoping in resurrection.
And Paul has the audacity to hope in his resurrection, because Christ’s resurrection guarantees that Paul and every Christian will be raised to new life as Christ was. Christ’s resurrection is the paradigm for our hope. In fact, one of the main aims of Paul in writing this letter was to help Timothy, and us, set our hope on Christ’s resurrection. In the middle of the letter, in perhaps the most important paragraph of the letter, 2:8–13, what does Paul exhort Timothy to do? Chapter 2, verse 8: “Remember Jesus Christ, risen from the dead.” Timothy, Timothy, Church of God, remember one thing: the resurrection of Jesus who gave his life for your life. Let the good news form and sustain your hope, because if the suffering Christ was raised from the dead, then so too will all who love and follow him be raised from the dead after their suffering. The promise is clear just a few verses later, in v. 11: “If we have died with him, we will also live with him.” We will be raised to new life as Christ was. And the promise is not only at the center of the letter, but also at the beginning and end. What are the opening words in 2 Tim 1:1? “Paul, an apostle of Christ Jesus by the will of God according to the promise of life that is in Christ Jesus.” The first sentence of the letter shows us why Paul writes to Timothy: so that he and we might hope in the promise of resurrection life. And Paul concludes the letter by setting the same hope before us: we will be delivered into Christ’s heavenly kingdom, into the new heavens and the new earth, in fully resurrected bodies to join with our risen Lord Jesus. Then, in the end, we will find that all will be made right. Every hurt will be healed, every fear will be forgotten, all disease and decay will be done away with, abandonment will give way to loyalty and fellowship, all hunger will give way to feasting. We will be welcomed to dine at our King’s table, and, best of all, our King will be present to us and for us, sitting down at table with us to feast on his unending goodness. Christ’s resurrection is God’s promise to us that in the end we will reign with Christ in life; his resurrection is the guarantee of our hope.
And this hope, when it grips our hearts, changes us. Christ’s resurrection assures us that our story will end not in death but in resurrection life, and such assurance strengthens and motivates us to persevere and even love through hardship. By laying hold of our true hope of resurrection, we are empowered to endure suffering and freed to love.
Laying hold of our true hope is what strengthens us to patiently endure suffering now, confident that any suffering, any loss, any anguish and pain of soul and body now will be restored a thousandfold in the age to come with resurrection life.
Laying hold of resurrection hope is what frees us to love others. A great obstacle to love is anxiety over our own good and life: if we’re worried about our needs, then of course we will have a hard time noticing the needs of others around us. But if Christ is risen, then we can be sure that in the end resurrection life and joy will be ours. Our ultimate good and life is secure. We will experience loss and isolation and abandonment and the frustration of our plans and a world of anguish and pain, but the promise still holds. I mean, what’s the worst that can happen to us? We can die. That’s it! We might think to ourselves, “That’s a huge problem.” And it is ... if our God does not raise the dead. If our hope is in this life only, then we are most of all to be pitied. But our hope is not in this life only; this life only is not even the fullness of what true life is. Our hope is in the resurrection life to come, in the God who can and will raise us to that new life. When our anxious hearts find rest in God’s sure promise of resurrection life, then we are freed to look beyond the threat of suffering now to the needs of others around us. We are freed to love others, even in the midst of hardship, by laying hold of our sure hope.
By laying hold of our resurrection hope in Christ, we are even freed to forgive those who sin against us. I believe it is, in part, hope in the resurrection that enables Paul to extend mercy to those who abandoned him at his first trial. Paul knows that at the resurrection, God will establish perfect justice. He will right every wrong; he will judge wrong-doers perfectly; he will vindicate those who have been wronged. In hope, Paul lays aside his urges for vindication now and lets go of bitterness and the maddening urge to see those who have hurt him get their comeuppance. It doesn’t cost us anything to let mercy dissolve our grievances; or whatever we think it costs us now will be more than repaid in the end. Paul’s hope in the resurrection and the righting of all wrongs at the end of days frees him to be merciful in his present affliction.
When we lay hold of resurrection hope in Christ, it changes us, strengthens us, impels us to love, frees us to forgive. That’s what happens when we set our eyes on our truest hope.
But a problem arises. It is often hard to set our eyes on our truest hope. Our truest hope often seems vague and dim and distant to us, and our pain now seems enormous. In 2 Cor 4, Paul says, “Momentary, light affliction is producing for us an eternal weight of glory beyond all comparison.” I want to say to Paul, “Paul, are you blind? Light affliction? Is abandonment by your friends ‘light’? Is the certainty of martyrdom ‘light’? Is imprisonment in a cold cell without sufficient clothing ‘light’?” Is Paul delusional? Does he have nothing to offer but frothy ideas and pious abstractions that, at the end of the day, have no correspondence to the real world? Paul’s afflictions were anything but light. And my afflictions and your afflictions do not feel light. We can talk about the greatness of our future hope till we’re blue in the face; but it does not change how great and huge and weighty our present sorrows seem to us.
Part of the problem here is a matter of perspective. It’s like this. I’m driving west to the Rockies on I-76, and I begin to see the vague, shadowy form of mountains on the horizon. While I’m still a hundred miles away in Fort Morgan, CO, the mountains I see look way smaller than the iPhone that is sitting on the dash of my car. The mountains look dim and dull and small; my iPhone looks huge and bright and glorious. That is reality for me in the moment; at least, it’s my perception of reality. Now this should go without saying (perhaps): the mountains are way bigger, way more glorious, way more breathtaking than an iPhone. From my perspective in Fort Morgan, it doesn’t look that way; not even close. But that’s not because the mountains are actually dwarfed by my iPhone. It’s because, at so great a distance from the mountains, I can’t see them clearly, can’t sense their proper shape and size and grandeur, and can’t discern the true insignificance of the iPhone. If I could hold them up side-by-side, there would be no contest. The greatness and weightiness of the phone that I feel now would be forgotten.
That’s how it is with the eternal weight of glory, the resurrection life, that is promised to us. If we could hold it up side-by-side, as it were, with our present sufferings, there would be no contest. We would say, with Paul, that our sufferings, intense as they are in the fervor of the present, are in the whole scheme of things momentary and light. Present despair, present physical pain, present loneliness and abandonment, present anxieties, even death—it’s all light in comparison to entering resurrection life in God’s heavenly kingdom as his resurrected sons and daughters. If we could see them side-by-side, it would be plain as day to us. But we can’t. We can’t pull the future into the present to set next to our present hardships. Scripture gives us some clues to paint a bit of a picture of our future hope, but the picture is still fuzzy, vague, seemingly distant. And it’s awfully hard, in any case, to call it all to mind in the moment of intense trial. We can’t pull the future into the present. So what does God do? He sends a little part of the future, the best part of the future, into the present so that we can taste and see. Our future hope is resurrection: the Father sends the Son, before the final resurrection, to be raised from the dead ahead of time to reveal our true hope. God doesn’t say, “In your hardships, try to comprehend all of your future hope in one shot.” What he says, through the Apostle Paul, is, “Remember Jesus Christ, risen from the dead.” He is the future broken into the present. He is the guarantee of our future hope. He is the mountain peak sent to us before we reach the eternal Rockies, to help us realize the true nature of reality and to help us fight the good fight of faith till our faith turns into sight. Our glorious future may at times seem dim; it might appear distant and fuzzy and small in comparison with our present hardship. But the tomb is empty. Our future is secure. Our Lord lives, and so shall we. Our Lord lives; indeed, he is present with us and near to us even now.
And this is the third and final way in which Christ’s resurrection makes a practical impact on our sorrow-filled lives today. If Christ has risen to new, everlasting life, then he can be, and is, present with us here and now, in our hardships whatever they may be. God has sent a foretaste of the future, a foretaste of our resurrection hope, into the present, and that resurrection hope is ultimately not a thing but a Person, not an idea but a Companion, not a fix to an impersonal problem but a Friend to stand with us and hold us through the storm.
Recently, we’ve sung together words that Ada Habershon penned over a century ago: Christ will hold me fast. He will hold me fast, for my Savior loves me so. He will hold me fast. She could have simply used the abstraction: “my Savior loves me so.” But she insists upon the very concrete image of being held in Christ’s arms. Why does she use that metaphor? I think she’s tapping into a profound human truth: to be held is to have someone present to us; in fact, to be held is to find healing. There is healing and renewal in the simple presence and embrace of loved ones. There is something mysteriously restorative in being held by one who loves us. Children know it. When one of my kids cracks their head against a wall (I have no idea how they manage to do it every day), where do they run immediately? To their mom and dad for a hug. When a loved one dies, we yearn for and need the embrace of those closest to us. By some deep magic in the universe, the presence and embrace of those who love us is a healing balm.
And the One who loves us most, the One who loves us perfectly, so perfectly he gave his life for our life—this One has risen to new life and is now present with us and even embraces us, wrapping around us the very Spirit of his love. Christ himself promises, “I am with you always, even to the end of the age.” He promises to be present with us and for us in the communion meal we are about to enjoy together, lifting us up by the power of his Spirit to know his nearness and his embrace. And those who turn to him, who seek his presence, find that his presence and embrace is enough. It doesn’t answer every anguished question we have. It doesn’t cause our sorrows to evaporate. But the embrace of our present Lord Jesus is enough to get us through this day (which is the only day we are right now responsible for).
Paul knew sorrow and hardship. He knew difficulty and despair and anxiety and anguish. He felt greatly abandoned by others, and he was greatly abandoned. But not utterly. “The Lord stood by me.” The risen Lord was there by his side throughout the ordeal, and he was the truest of friends, the closest of brothers, the greatest of all companions, and the strongest of all helpers. The risen Jesus stood by Paul and strengthened him to persevere through his ordeal. And he can and will do so for us. Let us turn to him in hope.
Most merciful God and heavenly Father, who by the death and resurrection of your Son Jesus Christ delivered and saved the world: grant that, by faith in him who suffered on the cross and triumphed over death, we may suffer faithfully triumph in the power of his victory. By your Spirit, transform us into Christ’s image; calm our anxious hearts with our true hope, so that we might be strengthened to perse- vere and love others; and comfort us with your nearness, we pray, through Jesus Christ your Son our Lord, who is alive and reigns with you, in the unity of the Holy Spirit, one God, now and for ever. Amen.
1. Second Timothy was perhaps the very last letter Paul wrote in his lifetime; it’s almost certainly the latest written letter of his that we have in our Bibles. So we can say not only that we arrive this morning at the end of 2 Tim but also at the end of all of Paul’s letters. And I mean “end” both temporally and logically, for the goal of Paul’s letters is to proclaim the good news of the risen Christ for the transformed lives of his people.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


text:
This Advocacy in Action issue was contributed by the Center for Law and Education.
Typically, lawsuits in special education brought on behalf of individual children with disabilities do not result in systemic policy change. When such change is necessary, class action lawsuits, filed on behalf of a group of similar individuals, can be an effective strategy. In the case of special education, class action lawsuits are often a method of last resort after mediation, resolution sessions, due process hearings, and appeals have failed to resolve the issue at hand. Class action lawsuits (in special education or otherwise) often result in consent decrees, which are legally binding agreements between the plaintiffs and defendants to pursue specific, sustainable solutions to the problems outlined in the lawsuit.
Though class action lawsuits have the potential to create systemic change in the special education system through effective consent decrees, a review of such actions suggests that they rarely have such an effect in practice. In a recent paper, David Rostetter and Katrina Arndt attempted to understand why school districts often fail to achieve the aims outlined by consent decrees, even when they invest significant time and resources in the attempt. To do this, Rostetter and Arndt selected from sixteen class actions brought under the Individuals with Disabilities Education Act seven class action lawsuits that resulted in consent decrees for closer review. Of these particular class actions brought between 1989 and 1999, six are ongoing. The authors defined five of these cases as high cost/low yield and two cases as low cost/high yield (where yield measures the extent to which the intended outcome of the initial complaint has been met). They reviewed court documents, expert reports, consent agreements, records of costs, and interviewed counsel, other key players, and state and district administrators, then looked for similarities between the unsuccessful (low yield) cases and between the successful (high yield) ones, to arrive at a list of recommendations for plaintiffs and defendants involved in class action lawsuits.
Mrs. W. v. Tirozzi (1989): This case was filed on behalf of students with intellectual disabilities, after data released by the state of Connecticut showed that only 7.69% of students identified with mental retardation in the state participated in general education classrooms (compared to 57.28% of all students with disabilities). The consent decree “established a panel of experts to guide the implementation of increasing the more inclusive placements of students with the label of mental retardation,” which ultimately failed to significantly increase such students’ placement in regular education classrooms, despite a high expenditure of time and resources on the part of the state. The authors of the study argue that this case failed because it incorrectly assumed that the state’s influence could affect large scale behavior change at the local district level, and because it tried to use special education law - implementation of LRE placement decisions by IEP Teams - to affect the behavior of general educators to comply with the LRE regulations.
Chanda S. v. LAUSD (1996/2003): This case sought wide scale change to both regular and special education after the California Legislature enacted a law requiring all students to pass an exit examination to receive a high school diploma. The initial consent decree involved reflecting changes in regular and special education, and the development of multiple plans in such diffuse areas as resource development, staff development, LREs, organizational structure, policy and procedure development, and dispute resolution procedures. The district struggled to meet the decree’s ambitious plans, a problem compounded by frequent leadership changes and resource limitations. With little evidence of improved services for students with disabilities, a modified consent degree was mediated in 2003 with fewer and specific outcomes that are largely fulfilled except, the authors pointedly note, those that are beyond the control of special education.
Emma C. v. Eastin (1996/2001/2007/2008): This case was brought on behalf of a relatively small number of students with disabilities (350) in the Ravenswood City School District (RCSD) in California who challenged the district’s continued failure to provide them a Free Appropriate Public Education (FAPE). The 800 page corrective action plan/consent decree was convoluted and overly ambitious in its aims. At the time of this study’s publication, the purported systems change lawsuit had cost 19 million dollars and had not improved the availability of FAPE in any significant way.
Angel G. v. TEA (1994/2004): This case asserted that school districts in Texas were not adequately meeting the educational needs of students with disabilities in residential service agencies. The case’s initial consent decree attempted to improve such services, but had very little impact after five years. Only after plaintiffs returned to court to challenge the state’s lack of effective monitoring and supervision, was a second consent agreement reached after another five years that established a new, improved method of focused state monitoring and enforcement of the rights of students, including those in residential facilities. Though this system was more effective than the first, it was developed a decade after the original complaint.
Having reviewed the above cases, the authors of the study identify the following essential characteristic of an ineffective consent decree from the relatively high cost/low yield class actions: an attempt to change an entire school system (general and special education) solely through special education litigation. Such effort, in general, fails because this kind of system-wide change requires the cooperation and support of general education administrators and staff, who often do not fall under the supervisory authority of special education.
Cordero v. Commonwealth of Pennsylvania (1992): This case was brought on behalf of a student with emotional needs who required significant mental health support services to meet her educational needs. The case sought to mitigate fragmentation of services to students in need of mental health services through eliminating barriers to collaboration and to effective interagency coordination between education agencies and mental health services in Pennsylvania. The consent decree required identification of each member of the statewide class and resolution of each individual’s unmet needs. It also required regular meetings between all necessary agencies involved and resulted in development of cost-sharing agreements between the key agencies at the state and local levels. The conditions of the consent decree were successfully met because the State Board of Education committed itself to monitor the actions of all agencies involved and because the agencies (particularly the Department of Education and of Health and Human Services) recognized the importance of working in tandem.
Djunaski v. Arizona Department of Education (1999/2001): In this case, the Arizona Protection and Advocacy Office asserted that the Arizona State Department of Education (ASDOE) was not meeting its general supervision responsibilities for investigating and resolving complaints consistent with IDEA. The consent decree established guidelines for the resolution of complaints, as well as a monitor of the process. Again, the conditions of the consent decree were met because the body with legal responsible for state oversight (ASDOE) fully committed itself to the task. This led to strong coordination between the class members and the monitor’s office, allowing complaints to be quickly and effectively resolved in accordance with IDEA. This lawsuit was also successful because it identified a very specific component of the law, and because the state was able to create a reliable data system to track its progress against the goals of the consent decree, show evidence of compliance, improved capacity and no further need for a monitor.
The authors of the study identify the following characteristic as typical of low cost/high yield class action lawsuits and consent decrees involving special education: they, in general, focus on a limited number of well-defined problems, which can be solved with few changes and with relatively few resources show moderate progress.
Based on the authors’ examination of the high cost/low yield and low cost/high yield cases, they arrived at a list of seven recommendations for participants in class action lawsuits in special education. These recommendations are intended to limit the cost of the case and ensure that it results in a consent decree with attainable objectives.
Plaintiffs should limit the scope of their case to existing special education law. They should not seek outcomes not directly required by special education law, or outcomes that require significant change in general education controlled by other laws.
Plaintiffs should only seek, and defendants should only agree to, attainable outcomes. The authors advise both parties to focus on what is possible within a given time period, rather than what is ideal, particularly given that class action lawsuits are often brought against districts that are already struggling.
Consent decrees should involve measurable changes within a finite period. This keeps the focus of the decree on improving outcomes for students.
Measurements of progress should involve the smallest possible units: change should be measured in classrooms or schools, rather than across a district or state.
Change should not be recorded in large automated databases, which struggle to pinpoint specific problem areas. Such systems may indicate that an entire district has failed to meet the objectives of a consent decree, when the problem really lies in only a few schools within that district.
Monitors, masters, and consultants should only be appointed for a finite and predetermined period of time. This increases the likelihood that they will accomplish their tasks within that frame.
Roles and responsibilities of all parties involved should be well-defined.
The Research: Class Action Lawsuits and Consent Decrees in Special Education: Recommendations for Practice, David Rostetter and Katrina Arndt, Journal of Disability Policy Studies 23 (4) 195-206, Hammill Institute on Disabilities, 2012.

matches: v. v. v. v. v. v.


text:
As reported earlier on this Blog here, the Supreme Court had remitted the case to the FPC with the order to dismiss the suit with respect to the requested declaratory judgment of non-infringement for the diacid, and to also assess the two other salts that had initially been at stake in first instance proceedings.
Well, the first part is a no-brainer. The FPC is bound to the legal assessment of the Supreme Court, and it thus dismissed the suit with respect to the diacid.
As to the two other salts, i.e. pemetrexed dipotassium and pemetrexed ditromethamine, the FPC briefly assessed infringement under the doctrine of equivalents.
The first question to be answered in the assessment of infringement under the DoE is whether the replaced feature and the replacing feature have the same objective function. The decision holds that it is only the cation that is different, and that the dianion is the same in any event. Further, it is held that both the dipotassium and the ditromethamine salt will be dissociated under physiological conditions, and everything suggests that the mode of action is determined by the dianion.
Pemetrexeddikalium unterscheidet sich von Pemetrexeddinatrium bzw. Pemetrexeddisäure lediglich durch das Kation. Das Dianion ist in allen Fällen identisch. Pemetrexeddikalium liegt bei physiologischem pH dissoziiert in Kation und Dianion vor. Es spricht alles dafür, dass die Wirkungsweise durch das Pemetrexed-Dianion gegeben ist.
Aus diesen Gründen ist eine Gleichwirkung für Pemetrexeddikalium gegeben ist.
One may like or dislike the outcome as it is. Be this as it may. What is troubling me is that this reasoning is only focused on the mode of action of the dianion. Note that the dianion neither is the replaced feature nor the replacing feature. Does this reasoning actually address the first question of the FPC’s questionnaire for the assessment under the DoE at all?
Is there a need to rephrase the first question? Time will show, I guess.
The FPC answered the second and third question in the affirmative, too. It did so by mere reference to the considerations of the Supreme Court.
In sum, all three pemetrexed forms (diacid, dipotassium and ditromethamine) are held to infringe the patent in suit.
The patent in suit is Lilly‘s EP 1 313 508 B1; see the EPO Register and Swissreg for further details. EP’508 is heavily litigated in many countries. The present decision in Switzerland concerns Lilly’s request for interim injunctive relief in summary proceedings. Main proceedings are still pending (O2105_004).
12. A product containing pemetrexed disodium, vitamin B 12 or a pharmaceutical derivative thereof said pharmaceutical derivative of vitamin B12 being hydroxocobalamin, cyano-10-chlorocobalamin, aquocobalamin perchlorate, aquo-10-chlorocobalamin perchlorate, azidocobalamin, chlorocobalamin or cobalamin, and, optionally, a folic binding protein binding agent selected from the group consisting of folic acid, (6R)-5-methyl-5,6,7,8-tetrahydrofolic acid and (6R)-5-formyl-5,6,7,8-tetrahydrofolic acid, or a physiologically available salt or ester thereof, as a combined preparation for the simultaneous, separate or sequential use in inhibiting tumor growth.
Pemetrexed disodium (see structural formula below) is marketed by Lilly under the trademark Alimta®. Stakes are high for Lilly: Alimta® generated a worldwide revenue of $2,493 million in 2015; see Lilly’s Annual Report 2015, p F31. The drug is used as a cancer medication that interferes with the growth and spread of cancer cells in the body; see drugs.com for further information.
Literal infringement was not an issue. The present decision is all about the question of whether or not the use of pemetrexed diacid might constitute an infringement under the Doctrine of Equivalents (DoE).
Note that the wording of the claim had been narrowed down during prosecution in order to overcome the examiner’s objections and to proceed to grant: The broad term antifolate had been more precisely defined as pemetrexed in first place, and finally even further as pemetrexed disodium. The FPC thus assessed whether the DoE is applicable at all to the feature pemetrexed disodium. The FPC notes that the patentee is bound by limitations he had accepted during prosecution in order to obtain the patent, and that he is therefore prevented under principles of good faith (Art. 2 CC) to circumvent this limitation by asserting equivalence. The FPC refers to a decision HG060066 of the Commercial Court Zurich in this respect. This is not to be confused with the Prosecution History Estoppel known in the U.S. — it rather highlights that the prosecution history is not just irrelevant.
Für die Beurteilung der Bedeutung dieser von der Patentinhaberin im Laufe des Erteilungsverfahrens vorgenommenen Einschränkung ist davon auszugehen, dass die Schweiz, wie andere Europäische Länder auch, keine Prosecution History Estoppel, wie sie in USA angewandt wird, kennt. Das heisst aber keineswegs, dass die Erteilungsgeschichte in der Schweiz völlig ausser Acht gelassen werden kann.
The FPC consequently held that the request for interim injunctive relief had to be dismissed for this reason alone.
For the sake of completeness, the FPC additionally assessed infringement under the DoE. The FPC’s 3-step questionnaire has recently been approved by the Supreme Court.
The first question to be answered is whether the replaced features have the same objective function. The FPC essentially relied on the fact that the attacked embodiment is a Swissmedic approved generic version of Alimta®, ie the pemetrexed disodium containing product. The same objective function was thus held to be given.
The second question asks whether the replaced features and their same objective function are made obvious to the skilled person by the teaching of the patent. See also the clarifying headnote of O2014_002 on how the FPC expects this question to be addressed. The FPC held that the skilled person knows that pemetrexed diacid would be at least partially deprotonated under physiological conditions, and that both pemetrexed diacid and pemetrexed disodium will result in the same pemetrexed dianion. Concluding, the skilled person would thus have expected the diacid to have the same effect (based on the anion). The FPC expressly dissents with the judgement of the England and Wales Court of Appeal ( EWCA Civ 555, #71) in this respect.
The terms “antifolate” and “antifolate drug” generally refer to a chemical compound which inhibits at least one key folate-requiring enzyme of the thymidine or purine biosynthetic pathways, preferably thymidylate synthase (“TS”), dihydrofolate reductase (“DHFR”), or glycinamide ribonucleotide formyltransferase (“GARFT”), by competing with reduced folates for binding sites of these enzymes. The “antifolate” or “antifolate drug” for use in this invention is Pemetrexed Disodium (ALIMTA®), as manufactured by Eli Lilly & Co.
The FPC thus answered the third question in the negative, expressly consenting with the judgement of the England and Wales Court of Appeal ( EWCA Civ 555, #72) in this respect. The FPC also sides with the German Federal Supreme Court’s decision X ZR 29/15 in parallel proceedings in that the present matter is not an abandonment in the sense of X ZR 16/09 – Okklusionsvorrichtung. In Okklusionvorrichtung the replacing feature had been explicitly mentioned in the specification; not so in the present matter. However, the FPC notes that this does not automatically mean that a contrario the third question is to be answered in the affirmative.
Der BGH fokussiert sich bei der Beurteilung der dritten Äquivalenzfrage allerdings sehr auf diese Frage des Verzichts. Dem kann nicht gefolgt werden. Die Tatsache, dass kein Verzicht gemäss Okklusionsvorrichtung vorliegt, bedeutet keineswegs automatisch im Umkehrschluss, dass die 3. Äquivalenz-Frage zu bejahen ist. Das greift zu kurz.
The FPC thus dismissed Lilly’s request for interim injunctive relief in summary proceedings. Main proceedings are still pending (O2015_004).
A comprehensive summary on the current status of proceedings relating to Lilly’s Alimta® can be derived from Lilly’s Form 10-Q (3/2016); see p 24-25.
If you are interested in the fulltext decisions, there is a long series of decisions to read from the UK, ie  EWHC 3316 (Pat),  EWCA Civ 517,  EWHC 1511 (Pat),  EWCA Civ 555 and  EWHC 234 (Pat).
As to Germany, there is the most recent decision X ZR 29/15 of the Federal Supreme Court. Please find the whole course of proceedings through the various instances in Germany here. Interim injunctive relief has been granted by the Regional Court Munich I in matters 21 O 22243/15 and 21 O 5583/16.
The FPC dismissed Lilly’s request for interim injunctive relief in summary proceedings concerning a generic version of Lilly’s Alimta®, ie Actavis’ Amtiris®. While the claims of Lilly’s EP 1 313 508 B1 specifically require pemetrexed disodium, Amtiris® comprises pemetrexed diacid. The FPC held that limitation from antifolate to pemetrexed disodium during prosecution constitutes an abandonment of subject-matter. But even if it would not be considered an abandonment, the FPC denied an infringement under the Doctrine of Equivalents since the skilled person would have understood the wording pemetrexed disodium as a strict limitation, in view of the claims in view of the specification. Main proceedings are still pending (O2015_004).
I have reported on the main hearing before the FPC on this Blog here. For a brief review of the underlying decision O2014_002 of the FPC, see this Blog here.
Long awaited, now here it is: The first decision of the Supreme Court on the Doctrine of Equivalents since ages; see fulltext below. You hoped for a ready-mix for assessment of equivalency? I’m sorry, there is none.
But let’s have a look at the very basic facts first.
The technology is not difficult to understand: The strip (6) and the ‘component with a complementary surface’ — actually, yet another strip — are arranged in a way as to allow fluid passing through the valve in the one direction of the valve. The valve closes when the fluid has passed, to prevent unpleasant odor from rising up. Flattened tubes instead of separate strips had been known in the prior art for the same purpose; see D1, US 3 835 857).
actually mean? There is no explicit definition of “separate” in the patent. Actually, the word as such was not even used in the application as filed at all. It had been introduced during prosecution, based on the overall specification and figures which all show (completely) separate strips; see figures 1 and 2, above.
On the other hand, the two strips are interconnected by lateral connectors in the attacked embodiment. Noteworthy, this configuration is protected by EP 2 553 299 B1 of the defendant (embedded below; EP’299 explicitly acknowledges the patent in suit as closest prior art in para. -).
Die Ausführungsbeispiele weisen auf dieses Verständnis eindeutig hin, ohne dass Anhaltspunkte für ein weiteres Verständnis von ‘separate’ in dem Sinne bestehen würden, dass das Ausführungsbeispiel mit den losen Enden nur als eine – wie die Beschwerdeführerin behauptet, bevorzugte – Ausführung erschiene.
Almost no decision on equivalency is uncontroversial, and people mostly have a very firm opinion pro or contra infringement under the Doctrine of Equivalents. So do I. But I feel there are plausible arguments for both views in the present matter, and I won’t take position for either side. No use crying over spilt milk anyway; this case has been finally decided now.
But let’s have a closer look at what can be learned about how the Supreme Court nowadays assesses infringement under the Doctrine of Equivalents on the basis of the three-step questionnaire as defined by the FPC (see S2013_001).
[…] component and the strip (6) are separate for a sufficient length to allow for a sealing effect when a fluid has passed.
The first question is a no-brainer here: Fulfilment of the same function has been beyond dispute.
It is to be determined whether, once the features are replaced, the same effect is evident for the person of skill in the art when objectively assessed in consideration of the teaching of the patent.
Zu beurteilen ist, ob, wenn die Merkmale ausgetauscht sind, die Gleichwirkung für den Fachmann bei objektiver Betrachtung unter Berücksichtigung der Lehre des Patents offensichtlich ist.
According to the hn in light of the reasons, this test compares two already given situations (one with the replaced/claimed feature and another one with the replacing feature) and only then asks whether the same effect is evident. As I have outlined earlier, this really makes a big difference.
[…], whether the skilled person who intends to add a fixation at the lower end of the strips instead of the loose ends will readily understand that the strips have to be separate at a length which is sufficient to achieve the effect which the patent intends to achieve.
[…], ob der Fachmann, der statt der losen Enden der Streifen am unteren Ende der Streifen eine Befestigung anbringen will, ohne weiteres erkennt, dass die Streifen auf einer hinreichenden Länge getrennt werden müssen, um die mit dem Patent angestrebte Wirkung zu erreichen.
I don’t think that this is what the FPC had in mind when drafting the hn and r. 6.5.2.4. In the assessment of the FPC, there is no need at all for a skilled person intending to add a fixation. The skilled person rather only compares two given scenarios, i.e. the claimed solution and the attacked embodiment. If the same effect of these two embodiments is evident, the question is to be answered in the affirmative. Else, it’s not. Frankly speaking, I just cannot say whether the Supreme Court is supportive of this approach or not.
Thus, it is not apparent for the skilled person in view of the claim construction that the claimed subject-matter (separately) could equivalently be replaced with a modification of this feature (lateral connectors).
So ist in diesem Fall für den Fachmann bei Orientierung am ausgelegten Anspruchswortlaut auch nicht erkennbar, dass die anspruchsgemässe Lehre (separat) mit einer Abwandlung des betroffenen Merkmals (Verbindungsstege) gleichwertig realisiert werden kann.
Actually, a complete separation […] with loose ends is not required by the wording of the claim as such.
Eine vollständige Trennung […] mit losen Enden wird vom Anspruchswortlaut für sich genommen gerade nicht verlangt.
If that was indeed the case, then why is there no literal infringement?
Thus, the loose end of the strips can equally be replaced by a fixation.
Danach lässt sich das lose Ende der Streifen gleichwertig durch eine Befestigung ersetzen.
In my perception, the great achievement of the third question reaches far beyond that. It had been intended to be all about providing a reasonable degree of legal certainty for third parties, i.e. to reasonably confine the potential scope under the Doctrine of Equivalents. Therefore, it essentially asks whether the skilled person would really have considered the replacing feature as an equivalent, with due consideration of the claim and the description — not merely whether it objectively is an equivalent replacement.
Subsequent inventions are directly covered by the scope of the prior teaching if this prior teaching is fully embodied while providing for an improved, non-obvious variant; and inventions which make use of the core of the inventions that has been patented earlier (ALOIS TROLLER, Immaterialgüterrecht, Bd. II, 3. Aufl. 1985, S. 891). Art. 36(1) PatA provides for a non-exclusive license in such cases (cf decision 4C.502/1997 of April 20, 1998, r. 5b).
Vom Schutzbereich der älteren Lehre direkt umfasst sind spätere Erfindungen, wenn sie die ältere Lehre vollständig anwenden, aber eine verbesserte, nicht naheliegende Ausführung lehren, und ebenso Erfindungen, bei deren Anwendung der Kern der früher patentierten Erfindung mitverwendet wird (ALOIS TROLLER, Immaterialgüterrecht, Bd. II, 3. Aufl. 1985, S. 891). Dafür sieht Art. 36 Abs. 1 PatG eine nicht ausschliessliche Lizenz vor (vgl. Urteil 4C.502/1997 vom 20. April 1998 E. 5b).
Reference to Art. 36(1) PatA looks like an easy way out, but the right to be granted a non-exclusive license is explicitly only given by law if the invention represents an important technical advance of considerable economic significance in relation to the invention that is the subject-matter of the prior patent. It will not necessarily be easy to meet this precondition.
I hope we will see further decisions of the Supreme Court in the near future which provide some more guidance on the actual interpretation of the second question and how the reasonable degree of legal certainty for third parties is to be safeguarded when answering the third question. Addressing infringement under the Doctrine of Equivalents with a set of three questions that somehow resemble the questionnaires used in the U.K. and Germany surely is an achievement of harmonization. But I do not yet see much harmony in how the questions are interpreted and answered.
The good news from the first decision of the Supreme Court on the Doctrine of Equivalents since ages: The third question of the FPC’s questionnaire is approved. The sad news: There is little to no guidance in the decision with respect to how the second and the third question are to be interpreted. In particular, it still remains unclear how the reasonable degree of legal certainty for third parties is to be safeguarded when answering the third question.
For a brief review of the underlying decision O2014_002 of the FPC, see this Blog here. The decision of the Supreme Court has been published today.
An important take-away message is: The third question (which has been applied by the FPC for the first time in S2013_001, somewhat similar to Schneidmesser in Germany and Improver in the UK) has now been approved by the Supreme Court. Welcome!
On the merits of the case, the Supreme Court overruled the FPC’s decision on equivalence. It will take me a few days to digest the decision and to put it into perspective. Asking three questions is a first step; the devil surely is in the detail of the answers. Stay tuned.
Art. 109 PatA; Art. 69 EPC; Protocol on the Interpretation of Article 69 EPC of 05 October 1973 as revised by the Act revising the EPC of 29 November 2000; Art. 66 para. 1 lit. a PatA: imitation (equivalence), accessibility.
The decision is a booklet of 82 pages and it will take me some more time to finish a post on all aspects of the decision. The main hearing took place on 14 September 2015; see this Blog here for some background information on the subject-matter at stake. But the highlight for sure is the headnote which is meant to clarify an important issue in the assessment of equivalence, i.e. the second question relating to accessibility (Auffindbarkeit). So I bring forward this part of the story.
Werden die ersetzten Merkmale und deren objektiv gleiche Funktion dem Fachmann durch die Lehre des Patentes nahe gelegt?
Are the replaced features and their objectively same function rendered obvious by the teaching of the patent to the person of skill in the art?
Starting from the teaching of the patent in suit, is it evident for the skilled person that the replaced feature has the same effect?
Ist bei ausgetauschten Merkmalen die Gleichwirkung für den Fachmann bei objektiver Betrachtung ausgehend von der Lehre des Patents offensichtlich?
Was the person skilled in the art enabled by his expertise to find the modified means as having the same effect?
Haben seine Fachkenntnisse den Fachmann befähigt, die abgewandelten Mittel als gleichwirkend aufzufinden?
This question is all about excluding those cases in which an inventive step was necessary to find the modified means as having the same effect. If that is the case, i.e. if the means having the same effect were not obvious to the person skilled in the art, they are outside the scope of the patent (BGH Oct. 24, 1986, Case No. X ZR 45/85, (Befestigungsvorrichtung [Fixing Device])). Because what the person skilled in the art is not able to find and to do based on the patent and helped by his or her knowledge in the art, is not to be granted to the patentee (BGH May 15, 1975, Case No. X ZR 35/72, (Ski-Absatzbefestigung [Ski Heel Attachment])). Else, the fundamental bargain underlying most patent regimes is violated — i.e. that a patent is an exclusive right granted for a limited period in exchange for certain technical teaching made available by the patentee to the public, by publication of the patent.
But let’s again have a look at the reasons of the decision S2013_001, r. 17.2: In light of various Supreme Court decisions (BGE 97 II 85, r. 1; BGE 125 III 29, r. 3b; BGE 115 II 490, r. 2a), it was held that it has to be asked whether the replacing means are rendered obvious by the teaching of the patent for the person of routine skill in art, “henceforth referred to as the second question” (“nachstehend als zweite Frage bezeichnet”). In the next paragraph, the second Schneidmesser question is recited and it was held, that this question equates with the aforementioned second question (“entspricht obiger zweiter Frage”). This is why I felt that the Swiss approach to the second question actually resembles Schneidmesser. With the reasons of the present decision at hand, I doubt that this is the case.
I remain keen to learn how the Urinal question will henceforth be applied in practice.

matches:
EWCA
EWCA
EWCA
EWCA
Art. 36
Art. 36
Art. 36
Art. 109
Art. 69
Art. 66


text:
By the Special Act of February 27, 1942, Congress conferred upon the Court of Claims jurisdiction to hear, determine, and render judgment upon certain claims of a contractor against the Government in conformity with directions given in the Act. The court had previously denied recovery on the claims. The Act authorized review here by certiorari.
1. The Act is to be construed not as setting aside the judgment in a case already decided, or as changing the rules of decision for the determination of a pending case, but rather as creating a new obligation of the Government to pay the contractor's claims where no obligation existed before. United States v. Klein, 13 Wall. 128, distinguished. P. 323 U. S. 8.
(a) There is no constitutional obstacle to Congress' imposing on the Government a new obligation where none existed before for work performed by the contractor which was beneficial to the Government and for which Congress thought he had not been adequately compensated. P. 323 U. S. 9.
(b) The power of Congress to provide for the payment of debts, conferred by § 8 of Article I of the Constitution, is not restricted to payment of those debts which are legally binding on the Government, but extends to the creation of such obligations in recognition of claims which are merely moral or honorary. P. 323 U. S. 9.
2. By the creation of a legal, in recognition of a moral, obligation to pay the contractor's claims, Congress did not encroach upon the judicial function which the Court of Claims had previously exercised in adjudicating that the obligation was not legal. P. 323 U. S. 10.
3. Nor did the Act encroach upon the judicial function of the Court of Claims by directing that court to pass upon the contractor's claims in conformity to the particular rule of liability prescribed by the Act, and to give judgment accordingly. P. 323 U. S. 10.
(b) When a plaintiff brings suit to enforce a legal obligation, it is not any the less a case or controversy, upon which a court possessing the federal judicial power may rightly give judgment, because the plaintiff's claim is uncontested or incontestable. P. 323 U. S. 11.
(c) Whether the Act makes the findings in the earlier suit conclusive, and, if not, whether the evidence would establish the facts on which the Act predicates liability, are judicial questions. P. 323 U. S. 11.
(d) Whether the facts be ascertained by proof or by stipulation, it is still a part of the judicial function to determine whether there is a legally binding obligation, and, if so, to give judgment for the amount due even though the amount depends upon mere computation. P. 323 U. S. 11.
4. The Act authorized the claimant to invoke the judicial power of the Court of Claims, and he did so. P. 323 U. S. 12.
5. The appellate jurisdiction conferred upon this Court by Art. III, § 2, cl. 2 of the Constitution extends to decisions of the Court of Claims rendered in exercise of its judicial functions, and such appellate review is not precluded by the fact that Congress has also imposed upon the Court of Claims nonjudicial functions of an administrative or legislative character. P. 323 U. S. .
6. The Court of Claims' determination that the Act conferred upon it only nonjudicial functions, and hence that it had no judicial duty to perform, was itself an exercise of judicial power reviewable here. Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693, distinguished. P. 323 U. S. 14.
Certiorari, 321 U.S. 761, to review the dismissal of a proceeding brought in the Court of Claims pursuant to a special jurisdictional Act, which that court held unconstitutional.
any prior determination" or "any statute of limitations," it purported to confer jurisdiction on the Court of Claims to "hear and determine," and directed it to "render judgment" upon, certain claims of petitioner against the Government in conformity to directions given in the Act.
Petitioner brought the present proceeding in the Court of Claims to recover upon his claims as specified and sanctioned by the Special Act. The court dismissed the proceeding on the ground that the Act was unconstitutional. 100 Ct.Cls. 375. It thought that, in requiring the court to make a mathematical calculation of the amount of petitioner's claims upon the basis of data enumerated in the Act and to give judgment for the amount so ascertained, notwithstanding the rejection of those claims in an earlier suit in the Court of Claims, the Act was an unconstitutional encroachment by Congress upon the judicial function of the court. Holding that it was free to ignore the congressional command because given without constitutional authority, the court gave judgment dismissing the proceeding.
writ, 321 U.S. 761. For reasons which will presently appear, we hold that we have jurisdiction to review the judgment below.
Several years before the enactment of the Special Act, petitioner brought suit in the Court of Claims to recover amounts alleged to be due upon his contract with the Government for the construction of a tunnel as a part of the water system of the District of Columbia. The construction involved certain excavation and certain filling of the excavated space, in part with concrete and in part with drypacking and grout. Drypacking consists of closely packed broken rock, into which is pumped the grout, a thin liquid mixture of sand, cement and water, which, when it hardens, serves to solidify and strengthen the drypacking.
Included in the demands for which the suit was brought were certain claims which are now asserted in this proceeding. They comprise a claim for additional excavation and concrete work alleged to have been required because of certain orders of the contracting officer, and a claim for drypacking and grout furnished by petitioner and placed by him in certain excavated space outside the so-called "B" line shown on the contract drawings. The "B" line marked the outer limits of the tunnel beyond which, by the terms of the contract, petitioner was not to be paid for excavation.
material be removed and that the resulting space be filled with concrete, all at increased expense to petitioner. The Court of Claims made findings showing the amount of the additional excavation and concrete work claimed, but denied recovery on these items because the order of the contracting officer for the additional work involved a change in the contract which was not in writing, as the contract required.
The Court of Claims also denied petitioner's claim for drypacking and grout. It was of opinion that the Government had received the benefit of, and was liable for, whatever drypacking petitioner had done, and for so much of the grout as had actually found its way into the drypacked space and had remained there. But it denied recovery because of deficiency in the proof as to the extent of this space. The only proof offered was the "liquid method" of computation, based on the number of bags of cement used in the preparation of all the grout furnished by petitioner, the cement constituting a fixed proportion of the grout. The court held, with the Government, that the seepage of the grout into areas outside that drypacked rendered the liquid method an unreliable measure for determining either the volume of the drypacking or the amount of the grout required for it. The court gave judgment accordingly, while allowing to petitioner other claims upon his contract with which we are not here concerned. Petitioner's motions for a new trial were denied by the Court of Claims, and this Court denied certiorari. 303 U.S. 654.
have been performed by the said Pope in complying with certain orders of the contracting officer whereby the plans for the work were so changed as to lower the upper 'B' or 'pay' line three inches, and as to omit the timber lagging from the side walls of the tunnel, and for the work of excavating materials which caved in over the tunnel arch and for filling such caved-in spaces with drypacking and grout, as directed by the contracting officer, the amount of drypacking to be determined by the liquid method as described by the court and based on the volume of grout actually used, and the amount of grout to be as determined by the court's previous findings based on the number of bags of cement used in the grout actually pumped into the drypacking."
The Act further directed that the court should consider as evidence in the case "any or all evidence" taken by either party in the earlier suit, "together with any additional evidence which may be taken."
of law which were in the case upon its former trial and would, but for the act, be in it now, and to decide all questions of fact except certain simple computations."
So construed, it thought the Special Act directed the Court of Claims to decide again the case or controversy which it had decided in the first suit, "to decide it for the plaintiff, and give him a judgment for an amount" determined by a "simple computation, based upon data referred to in the special act." This it concluded Congress could not "effectively direct."
For this conclusion, it relied upon United States v. Klein, 13 Wall. 128, in which this Court ruled that Congress was without constitutional power to prescribe a rule of decision for a case pending on appeal in this Court so as to require it to order dismissal of the suit in which the Court of Claims had given judgment for the claimant. Decision was rested upon the ground that the judicial power over the pending appeal resided with this Court in the exercise of its appellate jurisdiction, and that Congress was without constitutional authority to control the exercise of its judicial power and that of the court below by requiring this Court to set aside the judgment of the Court of Claims by dismissing the suit.
of the Government and to require relitigation of the suit. For we do not construe the Special Act as requiring the Court of Claims to set aside the judgment in a case already decided or as changing the rules of decision for the determination of a pending case.
Before the Special Act, the claims of petitioner on his contract with the Government had been passed upon judicially and merged in a judgment which was final. United States v. Jones, supra; In re Sanborn, 148 U. S. 222, 148 U. S. 225; Luckenbach S.S. Co. v. United States, 272 U. S. 533, 272 U. S. 536 et seq. This Court denied certiorari, and the judgment, which remains undisturbed by any subsequent legislative or judicial action, conclusively established that petitioner was not entitled to recover on his claims. The Special Act did not purport to set aside the judgment, or to require a new trial of the issues as to the validity of the claims which the Court had resolved against petitioner. While inartistically drawn, the Act's purpose and effect seem rather to have been to create a new obligation of the Government to pay petitioner's claims where no obligation existed before. And, such being its effect, the Act's impact upon the performance by the Court of Claims of its judicial duties seems not to be any different than it would have been if petitioner's claims had not been previously adjudicated there.
States, 92 U. S. 41; United States v. Realty Co., 163 U. S. 427; United States v. Cook, 257 U. S. 523; Cincinnati Soap Co. v. United States, 301 U. S. 308, 301 U. S. 314. Congress, by the creation of a legal, in recognition of a moral, obligation to pay petitioner's claims, plainly did not encroach upon the judicial function which the Court of Claims had previously exercised in adjudicating that the obligation was not legal. [Footnote 2] Nor do we think it did so by directing that court to pass upon petitioner's claims in conformity to the particular rule of liability prescribed by the Special Act, and to give judgment accordingly. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421; Roberts v. United States, supra; see Cherokee Nation v. United States, 270 U. S. 476, 270 U. S. 486; cf. Klamath Indians v. United States, 296 U. S. 244; United States v. Klamath Indians, 304 U. S. 119.
Congress added to or subtracted from the judicial duties of the Court of Claims by directing that it consider the case and give judgment for the amount found to be due. Stripped of all complexities of detail, the case is one in which, simply stated, petitioner has sought to enforce the obligation, which the Government has assumed, to pay him for work done and not paid for. Congress has, in effect, consented to judgment in an amount to be ascertained by reference to the specified data.
When a plaintiff brings suit to enforce a legal obligation it is not any the less a case or controversy upon which a court possessing the federal judicial power may rightly give judgment because the plaintiff's claim is uncontested or incontestable. Nor is it any the less so because the amount recoverable depends upon a mathematical computation based upon data to be ascertained which by the terms of the obligation are its measure. For, in any case, the court is called on to sanction by its judgment an alleged obligation in a proceeding in which the existence, validity, and extent of the obligation, the existence of the data, and the correctness of the computation may be put in issue.
and, if so, to give judgment for the amount due even though the amount depends upon mere computation.
It is a judicial function and an exercise of the judicial power to render judgment on consent. A judgment upon consent is "a judicial act." United States v. Swift & Co., 286 U. S. 106, 286 U. S. 115; Swift & Co. v. United States, 276 U. S. 311, 276 U. S. 324; see also Pacific R. v. Ketchum, 101 U. S. 289; United States v. Babbitt, 104 U. S. 767; Nashville, Chattanooga & St. Louis R. v. United States, 113 U. S. 261; Thompson v. Maxwell Land-Grant Co., 168 U. S. 451. It is likewise a judicial act to give judgment on a legal obligation which the court finds to be established by stipulated facts; J. I. Case Co. v. Labor Board, 321 U. S. 332, 321 U. S. 333; Johnson v. Yellow Cab Co., 321 U. S. 383, 321 U. S. 388; Equitable Society v. Comm'r, 321 U. S. 560, 321 U. S. 561; or when the defendant is in default. Voorhees v. Bank of the United States, 10 Pet. 449; Randolph v. Barrett, 16 Pet. 138; Clements v. Berry, 11 How. 398; Cooper v. Reynolds, 10 Wall. 308; Rio Grande Irrigation Co. v. Gildersleeve, 174 U. S. 603; Fidelity & Deposit Co. v. United States, 187 U. S. 315; Christianson v. King County, 239 U. S. 356, 239 U. S. 372. It is a familiar practice and an exercise of judicial power for a court upon default, by taking evidence when necessary or by computation from facts of record, to fix the amount which the plaintiff is lawfully entitled to recover and to give judgment accordingly. Renner & Bussard v. Marshall, 1 Wheat. 215; Aurora v. West, 7 Wall. 82, 74 U. S. 104; Clements v. Berry, supra; cf. 19 U. S. Thatcher, 6 Wheat. 129. In all these cases, the court determines that the unchallenged facts shown of record establish a legally binding obligation; it adjudicates the plaintiff's right of recovery and the extent of it, both of which are essential elements of the judgment.
Congress has imposed on that court, as it has on the courts of the District of Columbia, nonjudicial duties of an administrative or legislative character. See In re Sanborn, supra; Federal Radio Comm'n v. Nelson Co., 289 U. S. 266, 289 U. S. 275. Those imposed on the Court of Claims are such as it has traditionally exercised ever since its original organization as a mere agency of Congress to aid it in the performance of its constitutional duty to provide for payment of the debts of the Government. Such administrative duties coexist with its judicial functions. See Ex Parte Bakelite Corp., supra, 279 U. S. 452 et seq. Its decisions rendered in its administrative capacity are not judicial acts, and their review, even though sanctioned by Congress, is not within the appellate jurisdiction of this Court. Gordon v. United States, 2 Wall. 561, and see the views expressed by Taney, C.J., in 117 U.S. 697; In re Sanborn, supra. But, notwithstanding the retention of such administrative duties by the Court of Claims, as in the case of the courts of the District of Columbia, Congress has provided for appellate review of the judgments of both courts rendered in their judicial capacity. And this Court has held, by an unbroken line of decisions, that its appellate jurisdiction, conferred by Art. III, Sec. 2, Cl. 2 of the Constitution, extends to the review of such judgments of the Court of Claims; De Groot v. United States, 5 Wall. 419; United States v. Jones, supra; Nashville, C. & St.L. R. v. Wallace, 288 U. S. 249, 288 U. S. 263, and of the courts of the District of Columbia, Federal Radio Comm'n v. Nelson Bros. Co., supra, and cases cited.
authorized it as an inferior court to perform judicial functions whose exercise is reviewable here. The problem presented here is no different than if Congress had given a like direction to any district court to be followed as in other Tucker Act cases. Its possession of nonjudicial functions by direction of Congress presents no more obstacle to appellate review of its judicial determinations by this Court than does the performance of like functions by the courts of the District of Columbia or by state courts whose exercise of judicial power, in the cases specified in Article III, Sec. 2, Cl. 1, of the Constitution, is reviewable here by virtue of Cl. 2 of Sec. 2. Compare Southwestern Bell Tel. Co. v. Oklahoma, 303 U. S. 206, with Barnett v. Rogers, 302 U.S. 655. See also Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 211 U. S. 225-226; Oklahoma Gas Co. v. Russell, 261 U. S. 290.
The Court of Claims' determination that the Special Act conferred upon it only nonjudicial functions, and hence that it had no judicial duty to perform, was itself an exercise of judicial power reviewable here. Interstate Commerce Commission v. Brimson, 154 U. S. 447. The case is not one where the court below has made merely an administrative decision not subject to judicial review, without purporting to act judicially or to rule as to the extent of its judicial authority as the ground of its action or refusal to act. Postum Cereal Co. v. Calif.Fig Nut Co., 272 U. S. 693. Jurisdiction to decide is jurisdiction to make a wrong, as well as a right, decision. Fauntleroy v. Lum, 210 U. S. 230, 210 U. S. 234-235; Burnet v. Desmornes y Alvarez, 226 U. S. 145, 226 U. S. 147.
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That jurisdiction be, and the same is hereby, conferred upon the Court of Claims of the United States, notwithstanding any prior determination, any statute of limitations, release, or prior acceptance of partial allowance, to hear, determine, and render judgment upon the claims of Allen Pope, his heirs or personal representatives, against the United States, as described and in the manner set out in section 2 hereof, which claims arise out of the construction by him of a tunnel for the second high service of the water supply in the District of Columbia."
"Sec. 2. The Court of Claims is hereby directed to determine and render judgment at contract rates upon the claims of the said Allen Pope, his heirs or personal representatives, for certain work performed for which he has not been paid, but of which the Government has received the use and benefit -- namely, for the excavation and concrete work found by the court to have been performed by the said Pope in complying with certain orders of the contracting officer whereby the plans for the work were so changed as to lower the upper 'B' or 'pay' line three inches, and as to omit the timber lagging from the side walls of the tunnel, and for the work of excavating materials which caved in over the tunnel arch and for filling such caved-in spaces with dry packing and grout, as directed by the contracting officer, the amount of dry packing to be determined by the liquid method, as described by the court and based on the volume of grout actually used, and the amount of grout to be as determined by the court's previous findings based on the number of bags of cement used in the grout actually pumped into the dry packing."
"Sec. 3. Any suit brought under the provisions of this Act shall be instituted within one year from the date of the approval hereof, and the court shall consider as evidence in such suit any or all evidence heretofore taken by either party in the case of Allen Pope against the United States, numbered K-366, in the Court of Claims, together with any additional evidence which may be taken."
"Sec. 4. From any decision or judgment rendered in any suit presented under the authority of this Act, a writ of certiorari to the Supreme Court of the United States may be applied for by either party thereto, as is provided by law in other cases."
The Court of Claims has often so held in earlier cases. See, e.g., Nock v. United States, 1 Ct.Cls. 71; 2 Ct.Cls. 451; Murphy v. United States, 14 Ct.Cls. 508; 15 Ct.Cls. 217, aff'd, 104 U. S. 104 U.S. 464; 35 Ct.Cls. 494; Alcock v. United States, 61 Ct.Cls. 312; 74 Ct.Cls. 308; Deluca v. United States, 69 Ct.Cls. 262, cert. denied, 282 U.S. 862; 84 Ct.Cls. 217. And see Menominee Tribe of Indians v. United States, 101 Ct.Cls. 10, decided Feb. 7, 1944.

matches:
v.
§ 8
§ 2
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.


On this date, January 12, 2019, I declare that a state of emergency exists in the Commonwealth of Virginia based on the need to prepare and coordinate our response to winter weather forecasted to impact the Commonwealth on January 12th. This storm could result in significant snow and ice accumulation, create transportation issues, and result in significant power outages.
Therefore, by virtue of the authority vested in me by § 44-146.17 of the Code of Virginia, as Governor and as Director of Emergency Management, and by virtue of the authority vested in me by Article V, Section 7 of the Constitution of Virginia and by § 44-75.1 of the Code of Virginia, as Commander-in-Chief of the armed forces of the Commonwealth, and subject always to my continuing and ultimate authority and responsibility to act in such matters, I hereby proclaim a state of emergency exists. Accordingly, I direct state and local governments to render appropriate assistance to prepare for this event, to alleviate any conditions resulting from the situation, and to implement recovery and mitigation operations and activities so as to return impacted areas to pre-event conditions as much as possible.
A. Implementation of the Commonwealth of Virginia Emergency Operations Plan (COVEOP), as amended, by state agencies along with other appropriate state plans.
C. Activation of the Virginia National Guard and the Virginia Defense Force to state active duty to assist in providing such aid. This shall include Virginia National Guard assistance to the Virginia Department of State Police to direct traffic, prevent looting, and perform such other law enforcement functions as the Superintendent of State Police (in consultation with the State Coordinator of Emergency Management, the Adjutant General, and the Secretary of Public Safety and Homeland Security) may find necessary. Pursuant to § 52-6 of the Code of Virginia, I authorize the Superintendent of the Department of State Police to appoint any and all such Virginia Army and Air National Guard personnel called to state active duty as additional police officers as deemed necessary. These police officers shall have the same powers and perform the same duties as the Virginia State Police officers appointed by the Superintendent. Any bonds and/or insurance required by § 52-7 of the Code of Virginia shall be provided for them at the expense of the Commonwealth. In all instances, members of the Virginia National Guard and Virginia Defense Force shall remain subject to military command as prescribed by § 44-78.1 of the Code of Virginia and are not subject to the civilian authorities of county or municipal governments.
D. Activation, implementation, and coordination of appropriate mutual aid agreements and compacts, including the Emergency Management Assistance Compact (EMAC), and the authorization of the State Coordinator of Emergency Management to enter into any other supplemental agreements, pursuant to §§ 44-146.17(5) and 44-146.28:1 of the Code of Virginia. The State Coordinator of Emergency Management is hereby designated as Virginia's authorized representative within the meaning of the Emergency Management Assistance Compact, § 44-146.28:1 of the Code of Virginia.
E. This Emergency Declaration implements limited relief from the provisions of 49 CFR §§ 390.23 and 395.3 for the purpose of providing direct relief or assistance as a result of this disaster.
F. Authorization of the Virginia Departments of State Police, Transportation, and Motor Vehicles to grant temporary overweight, over width, registration, license, or hours of service exemptions to all carriers transporting essential emergency relief supplies to, through, and from any area of the Commonwealth. This authorization also applies to water, food, heating oil, motor fuels, or propane, agricultural products, agricultural supplies, livestock and poultry, livestock and poultry feed, forest products and salvaged wood, waste, and trees cut in preparation for the storm, and providing restoration of utilities (including but not limited to electricity, gas, phone, water, wastewater, and cable) or removal of waste to, through and from any area of the Commonwealth in order to support the disaster response and recovery, regardless of their point of origin or destination. Weight exemptions are not valid on posted structures for restricted weight. Weight exemptions are also not valid on interstate highways unless there is an associated federal emergency declaration. The exemption shall not exceed the duration of the motor carrier's or driver's direct assistance in providing emergency relief, or 30 days from the initial declaration of emergency, whichever is less.
1. All overwidth loads, up to a maximum of 12 feet, and overheight loads up to a maximum of 14 feet, must follow Virginia Department of Motor Vehicles' hauling permit and safety guidelines.
2. In addition to described overweight/overwidth transportation privileges, carriers are also exempt from vehicle registration with the Department of Motor Vehicles. This includes vehicles en route and returning to their home base. The agencies cited in this provision shall communicate this information to all staff responsible for permit issuance and truck legalization enforcement.
G. Implementation and discontinuance of the transportation-related provisions authorized above shall be disseminated by the publication of administrative notice to all affected and interested parties. I hereby delegate to the Secretary of Public Safety and Homeland Security, after consultation with other affected Cabinet Secretaries, the authority to implement and disseminate this Order as set forth in § 2.2-104 of the Code of Virginia.
H. Authorization of the Commissioner of Agriculture and Consumer Services to grant a temporary waiver of the maximum vapor pressure prescribed in regulation 2VAC5-425 et seq., and to prescribe a vapor pressure limit the Commissioner deems reasonable. The temporary waiver shall remain in effect until emergency relief is no longer necessary, as determined by the Commissioner of Agriculture and Consumer Services.
I. Provision of appropriate assistance, including temporary assignments of non-essential state employees to the Adjunct Emergency Workforce, be rendered by state agencies to respond to this situation.
J. Authorization of appropriate oversight boards, commissions, and agencies to ease building code restrictions, permitting requirements, and to allow for emergency demolition, hazardous waste disposal, debris removal, emergency landfill sitting, and other operations and activities necessary to address immediate health and safety needs without regard to time-consuming procedures or formalities and without regard to application or permit fees or royalties. All appropriate executive branch agencies are to exercise discretion to the extent allowed by law to address any pending deadlines or expirations affected by or attributable to this emergency event.
K. Authorization for the heads of executive branch agencies, with the concurrence of their Cabinet Secretary, to act, when appropriate, on behalf of their regulatory boards to waive any state requirement or regulation where the federal government has waived the corresponding federal or state regulation based on the impact of events related to this situation.
L. Activation of the statutory provisions in § 59.1-525 et seq. of the Code of Virginia related to price gouging.
M. Authorization of a maximum of $100,000 in state sum sufficient funds for state and local government mission assignments authorized and coordinated through the Virginia Department of Emergency Management that are allowable as defined by The Stafford Act, 42 USC § 5121 et seq. This funding is also available for state response and recovery operations and incident documentation. Out of this state disaster sum sufficient, an amount estimated at $50,000 is authorized for the Department of Military Affairs for the state's portion of the eligible disaster-related costs incurred for salaries, travel, and meals during mission assignments authorized and coordinated through the Virginia Department of Emergency Management.
N. Implementation by public agencies under my supervision and control of their emergency assignments as directed in the COVEOP without regard to normal procedures pertaining to performance of public work, entering into contracts, incurring of obligations or other logistical and support measures of the Emergency Services and Disaster Laws, as provided in § 44-146.28(b) of the Code of Virginia. Section 44-146.24 of the Code of Virginia also applies to the disaster activities of state agencies.
O. During this declared emergency, any person who holds a license, certificate, or other permit issued by any state or political subdivision thereof, evidencing the meeting of qualifications for professional, mechanical, or other skills, the person, without compensation other than reimbursement for actual and necessary expenses, may render aid involving that skill in the Commonwealth during this emergency. Such person shall not be liable for negligently causing the death of, or injury to, any person or for the loss of, or damage to, the property of any person resulting from such service as set forth in Code of Virginia § 44-146.23(C). Additionally, members and personnel of volunteer, professional, auxiliary, and reserve groups identified and tasked by the State Coordinator of Emergency Management for specific disaster-related mission assignments, as representatives of the Commonwealth engaged in emergency services activities within the meaning of the immunity provisions of § 44-146.23(A) of the Code of Virginia, shall not be liable for the death of, or any injury to, persons or damage to property as a result of such activities, as provided in § 44-146.23(A) of the Code of Virginia.
P. Designation of physicians, nurses, and other licensed and non-licensed health care providers and other individuals, as well as hospitals, nursing facilities and other licensed and non-licensed health care organizations, political subdivisions and other private entities by state agencies, including the Departments of Health, Behavioral Health and Developmental Services, Social Services, Emergency Management, Transportation, State Police, and Motor Vehicles, as representatives of the Commonwealth engaged in emergency services activities, at sites designated by the Commonwealth, within the meaning of the immunity provisions of § 44-146.23(A) of the Code of Virginia, in the performance of their disaster-related mission assignments.
Q. As provided in § 44-146.23(F) of the Code of Virginia, no individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, fraternal organization, religious organization, charitable organization, or any other legal or commercial entity and any successor, officer, director, representative, or agent thereof, who, without compensation other than reimbursement for actual and necessary expenses, provides services, goods, real or personal property, or facilities at the request and direction of the State Department of Emergency Management or a county or municipal employee whose responsibilities include emergency management shall be liable for the death of or injury to any person or for the loss of, or damage to, the property of any person where such death, injury, loss, or damage was proximately caused by the circumstances of the actual emergency or its subsequent conditions, or the circumstances of this emergency.
Upon my approval, the costs incurred by state agencies and other agents in performing mission assignments through the VEOC as defined herein and in § 44-146.28 of the Code of Virginia, other than costs defined in the paragraphs above pertaining to the Virginia National Guard and pertaining to the Virginia Defense Force, shall be paid from state funds.
This Executive Order shall be effective January 12, 2019, and shall remain in full force and in effect until February 12, 2019, unless sooner amended or rescinded by further executive order. Termination of the Executive Order is not intended to terminate any federal-type benefits granted or to be granted due to injury or death as a result of service under this Executive Order.
Given under my hand and under the Seal of the Commonwealth of Virginia, this 12th day of January, 2019.