2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-6-2006

Robinson v. Hartzell Propeller

Precedential or Non-Precedential: Precedential

Docket No. 04-3379

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-3379

 

MICHAEL ROBINSON, Individually,

and as Parent and Natural Guardian of

Jennifer Robinson and Matthew Robinson;

WENDY ROBINSON, Individually,

and as Parent and Natural Guardian of

Sarah Kelley and Samantha Kelley

 v.

HARTZELL PROPELLER, INC.;

NEW ENGLAND PROPELLER SERVICE, INC.;

COLUMBIA AIRCRAFT SERVICE, INC.;

TEXTRON LYCOMING RECIPROCATING

ENGINE DIVISION, A DIVISION

OF AVCO CORPORATION;

TEXTRON, INC.; AVCO CORPORATION

 Hartzell Propeller, Inc.,

 Appellant

 
The Honorable Alan D. Lourie, United States Circuit *

Judge for the Federal Circuit, sitting by designation.

2

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 01-cv-05240)

District Judge: Honorable Jan E. DuBois

 

Submitted Under Third Circuit LAR 34.1(a)

June 12, 2006

Before: FISHER, GREENBERG and

LOURIE, Circuit Judges.

*

(Filed: July 6, 2006)

Patrick J. O’Connor

Ann T. Field

Cozen & O’Connor

1900 Market Street, 4th Floor

Philadelphia, PA 19103

Attorneys for Appellant

Bradley J. Stoll

The Wolk Law Firm

1710-12 Locust Street

Philadelphia, PA 19103

Attorney for Appellees, Michael Robinson

and Wendy Robinson
3

J. Bruce McKissock

McKissock & Hoffman

1818 Market Street

Philadelphia, PA 19103

Attorney for Appellee, New England

Propeller Service, Inc.

 

OPINION OF THE COURT

 

FISHER, Circuit Judge.

In this complex products liability case involving the

tragic crash of a small passenger aircraft, we consider primarily

the following issue of law: whether we may exercise appellate

jurisdiction under the collateral order doctrine to review the

denial of a motion for summary judgment on the basis that a

statute of repose was inapplicable. We conclude that the District

Court’s order does not fall under the collateral order doctrine

and will accordingly dismiss the appeal for lack of appellate

jurisdiction.

I.

On August 8, 1974, Hartzell manufactured the “Y”-shank

aluminum propeller that eventually made its way onto a Mooney

M20E aircraft. That aircraft was subsequently purchased by

Wendy and Michael Robinson. Twenty-five years later, on

August 15, 1999, the propeller fractured mid-flight, causing the
The Robinsons also sued New England Propeller 1

Service, a company that inspected and serviced the propeller in

1989, for negligence. That claim is not at issue in this appeal.

Pub. L. No. 103-298, 108 Stat. 1552 (1994), amended by 2

Act of Pub. L. No. 105-102, § 3(e), 111 Stat. 2216 (1997).

Section 2(a) of GARA provides as follows: 3

(a) IN GENERAL.--Except as provided in

subsection (b), no civil action for damages for

death or injury to persons or damage to property

arising out of an accident involving a general

aviation aircraft may be brought against the

manufacturer of the aircraft or the manufacturer

of any new component, system, subassembly, or

other part of the aircraft, in its capacity as a

manufacturer if the accident occurred--

4

aircraft to crash. Both Wendy and Michael suffered extensive

injuries: Wendy suffered a broken back, breast bone, and left

foot, while Michael fractured his spine, rendering him a

paraplegic. The Robinsons thereafter brought suit against

Hartzell under theories of negligence and products liability.1

The General Aviation Revitalization Act (“GARA”)2

contains a statute of repose that generally bars suits against

airplane manufacturers brought more than eighteen years after

the delivery date to an initial purchaser of the aircraft. See 49

U.S.C. § 40101 note. The Robinsons, however, allege that they 3
(1) after the applicable limitation period

beginning on--

(A) the date of delivery of the

aircraft to its first purchaser or

lessee, if delivered directly from the

manufacturer; or

(B) the date of first delivery of the

aircraft to a person engaged in the

business of selling or leasing such

aircraft; or

(2) with respect to any new component, system,

subassembly, or other part which replaced another

component, system, subassembly, or other part

originally in, or which was added to, the aircraft,

and which is alleged to have caused such death,

injury, or damage, after the applicable limitation

period beginning on the date of completion of the

replacement or addition.

49 U.S.C. § 40101 note § 2(a). Section 2(d) of the Act states

that “the section supersedes any State law to the extent that such

law permits a civil action described in subsection (a) to be

brought after the applicable limitation period for such civil

action established by subsection (a).” Id. note § 2(d). Section

3 of the Act defines the “limitation period” as “18 years with

respect to general aviation aircraft and the components, systems,

subassemblies, and other parts of such aircraft.” Id. note § 3(3).

5

are entitled to bring their suit under an exception to the GARA

statute of repose because Hartzell made several material
The specific exception at issue in this case is contained 4

within section 2(b)(1) of the Act:

(b) EXCEPTIONS.--Subsection (a) does not

apply--

(1) if the claimant pleads with specificity the facts

necessary to prove, and proves, that the

manufacturer with respect to a type certificate or

airworthiness certificate for, or obligations with

respect to continuing airworthiness of, an aircraft

or a component, system, subassembly, or other

part of an aircraft knowingly misrepresented to

the Federal Aviation Administration, or concealed

or withheld from the Federal Aviation

Administration, required information that is

material and relevant to the performance or the

maintenance or operation of such aircraft, or the

component, system, subassembly, or other part,

that is causally related to the harm which the

claimant allegedly suffered.[.]

49 U.S.C. § 40101 note § 2(b)(1).

6

misrepresentations in connection with obtaining a type

certificate for the propeller at issue from the Federal Aviation

Administration (“FAA”). Id. 4

Federal law requires propeller manufacturers to obtain a

type certificate from the FAA. See id. § 44704. The purpose of

that process is to ensure that the propeller has been designed and
There is some confusion in the record as to whether 5

Hartzell had DOA status at the time the application was

submitted in 1963. Hartzell claims that it received DOA status

in 1967. (App. 17.) The disagreement over when Hartzell

received DOA status does not seem to be material to the

ultimate disposition of the case. It is relevant, however, to the

Robinsons’ argument that Hartzell continued to abuse its DOA

authority after certification was issued “by concealing the

vibration problem and leading the FAA to believe that the cause

of the frequent propeller failures were other than what Hartzell

7

manufactured properly, performs properly, and meets FAA

minimum standards. See id. Some manufacturers are able to

grant themselves a type certificate through the FAA’s Delegated

Opinion Authority (“DOA”) process. DOA status grants to a

designated engineering representative (“DER”) the ability to

“assume the FAA’s role and certify a part.” (App. 16-17, 373.)

Following certification, an entity with DOA also “is responsible

to ensure that the product design is in accordance with the

regulations and has no characteristics which may detract from

flight safety.” Service difficulties, such as a failure,

malfunction, or defect in any part, including “propeller blade . . .

structural failure,” are to be “reviewed, reported, and resolved.”

14 C.F.R. § 21.3(c)(5).

In 1963, Hartzell submitted an application for type

certification to the FAA for the propeller and aircraft

combination at issue – the HC-C2YK-1/7666-2 Hartzell

propeller installed on the Lycoming IO-360-AIA powered

Mooney M20E airplane. In connection with its initial 5
knew them to be.” (App. 18.)

8

application, Hartzell conducted a vibration test of the

propeller/engine/aircraft combination the week of July 8, 1963.

That test measured the stresses (measured in pounds per square

inch (psi)) placed on the propeller at different speeds (measured

in revolutions per minute (rpm)) at four different flight

conditions: (1) take-off/climb at full throttle; (2) level flight at

full throttle; (3) level flight with throttle set at 24-inch manifold

pressure; and (4) static flight at full throttle. (App. 247-48.)

With regard to these tests, the report stated the following:

The peak stress at 2230 RPM reached a value of

4800 psi for the 24 inch Hg manifold setting,

which is approximately the allowable value.

Since this engine has no dampers which can wear

and cause higher stresses, the probability of this

value being reached or exceeded in service seems

remote. There appears to be no necessity to

placard against operation in the 2200-2300 RPM

range.

****

The HC-C2YK/7666-2 propeller is considered

satisfactory vibrationwise when installed on the

IO-360 Lycoming engine without restrictions.
Although somewhat unclear from the briefs, it seems as

6

if the graphs in Engineering Report No. 213 were not turned

over to the FAA.

The District Court concluded that this second statement 7

was not a misrepresentation. The Court stated, however, that its

ruling was without prejudice to the Robinsons’ right to offer

additional evidence at trial to argue that Hartzell knew that

vibration dampers lessened the stresses imparted to the

propeller. (App. 36-37 n.8.)

9

(App. 244-45.)

The Robinsons contend that this statement in the report

contains three misrepresentations. First, the Robinsons contend

that the peak stress was not approximately equivalent to the

allowable value, but rather exceeded the allowable value. The

Robinsons cite to a set of graphs that were contained in

Engineering Report No. 213 that demonstrate that allowable

vibratory stress limits were exceeded at three different points.

6

Second, the Robinsons contend that the lack of vibration

dampers on the Lycoming engine would increase, rather than

decrease, the stress on the propeller. They point to a 1972

engineering report in which Hartzell recommended “the use of

[a] dampered engine” to decrease the chances of propeller

failure. (App. 553-54.) Finally, the Robinsons argue that there 7

was a necessity to placard against operation at certain speeds

because vibratory peak stresses exceeded FAA permissible

limits. When the type certification was first issued, the type

certification data sheet included a note requiring owners of the
An AD is a legally enforceable rule that applies to, inter 8

alia, aircraft and propellers. See 14 C.F.R. § 39.3. The FAA

issues an AD if two requirements are satisfied: (1) an unsafe

condition exists in the product, and (2) the condition is likely to

exist or develop in other products of the same type design. Id.

§ 39.5. Anyone who operates an aircraft is required to comply

with an applicable AD. Id. § 39.7.

10

Mooney M20E to mark their tachometers between 2000 and

2350 rpm. Because of some early propeller tip failures, the

FAA issued Airworthiness Directive (“AD”) 65-12-13, which 8

placed further rpm restrictions on the propeller/engine

combination and required an addendum to the airplane flight

manual. (App. 559.) In addition, the FAA issued another AD

in 1977, which required additional rpm restrictions.

The Robinsons also assert that Hartzell continued to

make knowing misrepresentations and omissions regarding the

propeller at issue following FAA certification of the

propeller/undamped engine combination. As noted above,

Hartzell had a continuing obligation under its DOA status to

comply with the reporting requirements of 14 C.F.R. § 21.3.

According to the Robinsons, “Hartzell’s continuing

airworthiness measures, approved through its DOA, did not

resolve the illegal vibratory stresses disclosed by report 213 and

did not disclose the excessive vibrations to the FAA.”

(Appellee’s Br. at 7.) In fact, there have been approximately

forty prior blade failures involving the same propeller/engine

combinations as the one at issue. (See App. 18-19.) The

Robinsons essentially argue that Hartzell on several occasions
11

blamed other factors – particularly pilot error – instead of

disclosing that there was a propeller/engine vibration problem.

(See App. 596, 621, 625, 629.)

Following the completion of discovery, Hartzell brought

a motion for summary judgment contending that the suit was

barred by the eighteen-year statute of repose enacted under

GARA, 49 U.S.C. § 40101 note § 2(a). The District Court

agreed with the Robinsons that material issues of fact existed as

to whether the GARA exception applied and denied Hartzell’s

motion. Hartzell filed a timely appeal and urges us to reach the

merits of the District Court’s decision under the collateral order

doctrine.

II.

Our jurisdiction as an appellate court extends under 28

U.S.C. § 1291 over a “final order” of a district court. An order

is “final” when it “terminates the litigation between the parties

on the merits of the case and leaves nothing to be done but to

enforce by execution what has been determined.” Richerson v.

Jones, 551 F.2d 918, 922 (3d Cir. 1977) (quoting St. Louis, Iron

Mountain and S. Ry. Co. v. S. Express Co., 108 U.S. 24, 28-29

(1883)). In most cases, a denial of a motion for summary

judgment does not qualify as a final order because, “far from

finally deciding a case, it is a decision to permit litigation to

continue.” Hamilton v. Leavy, 322 F.3d 776, 782 (3d Cir. 2003)

(citation omitted).

In Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949),

however, the Supreme Court explained that § 1291 is to be
12

given a “practical rather than a technical construction,” and that

there is a “small class” of non-final orders “which finally

determine claims of right separable from, and collateral to,

rights asserted in the action, too important to be denied review

and too independent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudicated.”

Id. at 546; see also Dotzel v. Ashbridge, 438 F.3d 320, 323 (3d

Cir. 2006); Bell Atlantic-Pa., Inc. v. Pa. Pub. Util. Comm’n, 273

F.3d 337, 342 (3d Cir. 2001); In re Ford Motor Co., 110 F.3d

954, 958 (3d Cir. 1997). Cohen and its progeny have been

interpreted to permit the immediate appeal of an otherwise nonfinal collateral order if the order: (1) conclusively determines a

disputed legal question, (2) resolves an important issue

completely separable from the merits of the action, and (3) is

effectively unreviewable on appeal from a final judgment. Bell

Atlantic, 273 F.3d at 342.

The Supreme Court has referred to the collateral order

doctrine as a “narrow exception” that contains “stringent”

requirements. Digital Equip. Corp. v. Desktop Direct, Inc., 511

U.S. 863, 868 (1994). Strict construction of the doctrine is

grounded on “the longstanding congressional policy against

piecemeal appeals that underlies the final judgment rule.” We,

Inc. v. City of Philadelphia, 174 F.3d 322, 324-25 (3d Cir.

1999). To prevent the unwarranted expansion of the doctrine,

“the issue of appealability under § 1291 is to be determined for

the entire category to which a claim belongs, without regard to

the chance that the litigation at hand might be speeded, or a

‘particular injustic[e]’ averted by prompt appellate court

litigation.” Digital Equip., 511 U.S. at 868; see We, Inc., 174

F.3d at 325 (“This approach reflects the Court’s insistence that
13

the finality requirement of § 1291 must not be reduced to a caseby-case determination.”). Thus, case-by-case considerations

such as whether the litigation will be expedited by immediate

review, or whether an erroneous ruling will incur increased

expenses, are not factors that can justify review under the

collateral order doctrine. Bell Atlantic, 273 F.3d at 343.

Moreover, simply characterizing a right as an irreparable

entitlement not to stand trial is insufficient for an appeal to fall

under the collateral order doctrine, as “virtually every right that

could be enforced appropriately by pretrial dismissal might

loosely be described as conferring ‘a right not to stand trial.’”

Digital Equip., 511 U.S. at 873. As the Supreme Court has

pointed out, the collateral order doctrine is exceedingly narrow

because numerous adverse pretrial rulings cannot be completely

remedied following final judgment:

Even as they have recognized the need for

immediate appeals under § 1291 to vindicate

rights that would be “irretrievably lost” if review

were confined to final judgments only, our cases

have been at least as emphatic in recognizing that

the jurisdiction of the courts of appeals should

not, and cannot, depend on a party’s agility in so

characterizing the right asserted. This must be so

because the strong bias of § 1291 against

piecemeal appeals almost never operates without

some cost. A fully litigated case can no more be

untried than the law’s proverbial bell can be

unrung, and almost every pretrial or trial order

might be called “effectively unreviewable” in the
14

sense that relief from error can never extend to

rewriting history. Thus, erroneous evidentiary

rulings, grants or denials of attorney

disqualification, and restrictions on the rights of

intervening parties, may burden litigants in ways

that are only imperfectly reparable by appellate

reversal of a final district court judgment; and

other errors, real enough, will not seem serious

enough to warrant reversal at all when reviewed

after a long trial on the merits. In still other cases,

an erroneous district court decision will, as a

practical matter, sound the “death knell” for many

plaintiffs’ claims that might have gone forward if

prompt error correction had been an option. But

if immediate appellate review were available

every such time, Congress’s final decision rule

would end up a pretty puny one, and so the mere

identification of some interest that would be

“irretrievably lost” has never suffered to meet the

third Cohen requirement.

Id. at 872 (citations omitted).

We have not yet addressed whether an order denying

summary judgment on a statute of repose defense qualifies as a

collateral order under Cohen and its progeny. Each party has

offered competing analogies in support of their respective

positions. The Robinsons assert that the order is not appealable

because we have explicitly held that defendants cannot appeal

from a pre-trial order denying a statute of limitations defense.

See Bell-Atlantic, 273 F.3d at 345-46. In contrast, Hartzell
15

argues that a decision on a statute of repose is more akin to a

decision denying an assertion of qualified immunity, which is

appealable to the extent it touches upon an issue of law. See

Hamilton, 322 F.3d at 782; Giuffre v. Bissell, 31 F.3d 1241,

1245 (3d Cir. 1994).

A review of our caselaw confirms that the collateral order

doctrine has been applied only to a narrow universe of rights

primarily rooted in constitutional or statutory provisions or a

competing public policy rationale. See 15A Charles Alan

Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure § 3914.6, at 531 (2d ed. 1992) (“The

theory that some rights are designed to protect against the

burdens of trial and support appeal from a refusal to dismiss . . .

is likely to be limited narrowly.”). The essential question that

must be answered is the nature of the right to be protected. In

cases where the collateral order doctrine is applied, the interest

at stake is so important that it is comparable to an immunity

from suit that cannot be remedied unless immediate appellate

review is taken. Id.

For example, in Abney v. United States, 431 U.S. 651

(1977), the Supreme Court held that a criminal defendant could

appeal immediately the district court’s denial of a motion to

dismiss on the ground that the indictment violated double

jeopardy protections. Id. at 659. The Court explained that the

particular Fifth Amendment right at issue was a constitutional

right “not to face trial at all,” id. at 662 n.7, which would be

forever lost if the defendant was forced to go to trial: “[T]here

can be no doubt that such orders constitute a complete, formal

and, in the trial court, final rejection of a criminal defendant’s
16

double jeopardy claim. There are simply no further steps that

can be taken in the District Court to avoid the trial the defendant

maintains is barred by the Fifth Amendment’s guarantee.” Id.

at 660. Similarly, in Helstoski v. Meanor, 442 U.S. 500 (1979),

the Court held that the denial of a motion to dismiss an

indictment premised on the Speech and Debate Clause of the

Constitution was subject to immediate appellate review because

that Clause was designed to protect Congressmen from being

exposed to liability for actions taken on the floor of the

legislature. Id. at 508; see also P.R. Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139 (1993) (holding that entities

claiming to be “arms of the state” may appeal an order denying

Eleventh Amendment immunity under the collateral order

doctrine); Stack v. Boyle, 342 U.S. 1 (1951) (permitting

immediate appeal of denial of motion to reduce bail on grounds

that it was an excessive penalty in violation of Eighth

Amendment). The Court has also determined that denials of

absolute and qualified immunity serve compelling public ends

which would be irretrievably lost if officials were forced to go

to trial. Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982) (holding

that denial of absolute immunity immediately was appealable

because immunity was a “functionally mandated incident of the

President’s unique office, rooted in the . . . separation of powers

and supported by our history”); Mitchell v. Forsyth, 472 U.S.

511, 525-26 (1985) (concluding in the qualified immunity

context that an “essential attribute” of freedom from suit for past

conduct that did not violate a clearly established right was an

“entitlement not to stand trial or face the other burdens of

litigation,” which could otherwise impede the official’s

discretionary actions).
17

In the vast majority of cases, our Court and the United

States Supreme Court have rejected the application of the

collateral order doctrine to non-final orders. In fact, the narrow

scope of the collateral doctrine might be better understood by

examining those orders from which courts have held that an

immediate appeal may not be taken. For example, courts have

held that decisions denying the following defenses were not

appealable under the collateral order doctrine:

• an order denying a motion to

dismiss for lack of personal

jurisdiction, Van Cauwenberghe v.

Biard, 486 U.S. 517 (1988);

• an order denying a motion to

dismiss on the grounds that an

extradited person was immune from

civil process, id.;

• a defense that a suit was barred by

a prior settlement or release,

Digital Equip., 511 U.S. at 869

(1994); Transtech Indus., Inc. v. Z

Septic Clean, 5 F.3d 51, 58 (3d Cir.

1993);

• a defense asserting NoerrPennington immunity to suit, We,

Inc., 174 F.3d at 326 (3d Cir.

1999);
18

• a decision denying both statute of

limitations and res judicata

defenses, Bell-Atlantic, 273 F.3d at

345-46;

• a decision denying dismissal of an

indictment for an alleged violation

of Federal Rule of Criminal

Procedure 6(a), which forbids the

disclosure of secret grand jury

information, Midland Asphalt

Corp. v. United States, 489 U.S.

794, 799-800 (1989);

• a decision denying effect to a

contractual choice-of-venue

provision, Lauro Lines, S.R.L. v.

Chasser, 490 U.S. 495 (1989).

The key consideration in each of these cases was whether the

claimed right sought to be protected was characterized as a right

to immunity from suit or a defense to liability. We, Inc., 174

F.3d at 326. In each decision enumerated above, the courts

characterized the defenses as defenses to liability, which may be

considered following a final judgment. See, e.g., United States

v. Hollywood Motor Car Co., 458 U.S. 263, 269 (1982) (stating

that there is “a crucial distinction between a right not to be tried

and a right whose remedy requires the dismissal of charges”).

Two of the decisions referenced above, We, Inc. and BellAtlantic, are particularly instructive to our analysis of the present
19

case. In We, Inc., the plaintiff brought suit after the City of

Philadelphia issued a cease operations order to the plaintiff to

shut down two adjacent businesses near the University of

Pennsylvania (“Penn”) Dental School without first providing the

plaintiff with notice or an opportunity for a hearing. 174 F.3d

at 324. The plaintiff brought suit against both the City and

Penn, arguing that it was deprived of property without due

process of law. The district court denied the motion for

summary judgment filed by Penn, which had claimed immunity

for some of its actions under the Noerr-Pennington doctrine.

That doctrine confers immunity from liability under the First

Amendment for conduct resulting from petitioning a

governmental body. Id. at 327. On appeal, Penn asserted that

we could exercise jurisdiction under the collateral order doctrine

because Noerr-Pennington immunity was akin to absolute and

qualified immunity. We rejected that argument, finding that

“the Petition Clause of the First Amendment neither enjoys

‘special First Amendment status’ nor confers an ‘absolute

immunity’ for privilege.” Id. We explained that although the

Noerr-Pennington doctrine bestows immunity from liability to

prevent First Amendment rights from being chilled, it does not

confer immunity from suit.

Key to our decision in We, Inc. was the distinction

between immunity involving a public official and immunity

involving a private defendant. We adopted the analysis from the

Seventh Circuit in Segni v. Commercial Office of Spain, 816

F.2d 344 (7th Cir. 1987), which distinguished Noerr-Pennington

immunity from qualified, absolute, and “state action” immunity
20

on the ground that the latter doctrine[s] “had been

interpreted to create an immunity from suit and

not just from judgment – to spare state officials

the burdens and uncertainties of the litigation

itself as well as the cost of an adverse judgment.”

The possibility that the “burdens of suit . . . might

deter [public officials] from vigorous execution of

their office [was] a consideration missing in the

case of the private defendant.”

174 F.3d at 329 (citation omitted). We agreed with the

distinction drawn by Segni between public official immunity and

private party immunity, noting that we had been “unable to find

any case holding that the burden of litigation on a private

defendant justifies an immunity from suit as well as a defense to

liability.” Id. As a result, we concluded that the interests

protected by the Noerr-Pennington doctrine could be fully

vindicated by an appeal following a trial. Id. at 330.

In Bell-Atlantic, we determined that a decision denying

a statute of limitations defense was not immediately appealable

under the collateral order doctrine. In so doing, we again

discussed the distinction between an immunity from suit and a

defense to liability, explaining that “[t]he fact . . . that a defense

may warrant pre-trial dismissal is not dispositive of whether it

is immediately appealable.” Bell-Atlantic, 273 F.3d at 345.

Rather, the key inquiry is the nature of the right at issue and

whether that right would be forfeited if not vindicated prior to

trial. Following that dichotomy, we offered the following

explanation of why a decision denying a statute of limitations
21

defense was not immediately appealable under the collateral

order doctrine:

Statutes of limitation are not guarantees that suit

and trial will not occur on untimely claims.

Limitations periods are designed to foreclose the

potential for inaccuracies and unfairness brought

about by a finding of liability based on stale

evidence. This interest is not in defending against

old claims, but an interest in not being held

ultimately liable on that old claim based on old,

less reliable evidence. Such an interest is not

irretrievably lost if a party must wait until after

final judgment to appeal the adverse ruling and to

vindicate the right to be free from liability.

Id. at 346. Thus, we held that the statute of limitations defense

could be effectively reviewed on appeal from a final judgment.

Id.

In arguing that a statute of repose should be treated like

qualified immunity, Hartzell relies heavily upon the Ninth

Circuit’s decision in Estate of Kennedy v. Bell Helicopter

Textron, 283 F.3d 1107 (9th Cir. 2002). In Kennedy, the Ninth

Circuit determined that it could exercise appellate jurisdiction

over a decision denying a motion to dismiss under the GARA

statute of repose. The majority opinion compared the GARA

statute of repose to a form of qualified immunity and concluded

that “the GARA statute of repose . . . creates an explicit

statutory right not to stand trial which would be irretrievably lost

should [the defendant] be forced to defend itself in a full trial.”
Section 1658 provides as follows: 9

(a) Except as otherwise provided by law, a civil

action arising under an Act of Congress enacted

after the date of the enactment of this section may

not be commenced later than 4 years after the

cause of action accrues.

(b) Notwithstanding subsection (a), a private right

of action that involves a claim of fraud, deceit,

manipulation, or contrivance in contravention of

a regulatory requirement concerning the securities

laws, as defined in section 3(a)(47) of the

Securities Exchange Act of 1934 (15 U.S.C.

78c(a)(47)), may be brought not later than the

earlier of--

(1) 2 years after the discovery of the facts

constituting the violation; or

22

Id. at 1110. The majority rejected the plaintiff’s argument that

the statute of repose was more akin to a statute of limitations,

and rendered a conclusory holding that the right conferred under

the statute of repose was a right “to be free from the burdens of

trial.” Id. at 1111.

A dissenting opinion by Judge Paez, however, is more in

line with Supreme Court and Third Circuit precedents. The

dissent noted that the statute of repose language in GARA,

which provides that “no civil action . . . may be brought,” was

very similar to the language used in the federal default statute of

limitations, 28 U.S.C. § 1658. The dissent explained that, “in 9
(2) 5 years after such violation.

28 U.S.C. § 1658.

23

employing traditional text for statutes of limitations, Congress

intended [in GARA] only to confer a defense to liability, not

immunity from suit and a collateral appeal right.” Kennedy, 283

F.3d at 1115 (Paez, J., dissenting). In addition, Judge Paez

surveyed the historical rationale for applying the collateral order

doctrine to qualified immunity decisions. He found that the

qualified immunity exception was rooted in preventing the

social costs of subjecting governmental entities to broad-ranging

discovery. These societal costs, Judge Paez pointed out, “are

conspicuously absent from” the GARA statute of repose

defense: “GARA’s purpose is not to relieve general aviation

manufacturers from social costs, but rather, solely from the

economic costs of product liability claims – the same type of

economic costs faced by any defendant in an action alleging

tortious conduct.” Id. at 1114 (Paez, J., dissenting).

In light of the case law, there are four primary reasons

why the District Court’s ruling denying application of the

GARA statute of repose should not be appealable under the

collateral order doctrine. First, the interest protected by a statute

of repose is much more similar to a statute of limitations than to

a grant of qualified immunity. Although we have noted that the

interest protected by a statute of repose is somewhat different

from that protected by a statute of limitations, see Woessner v.

Air Liquide, Inc., 242 F.3d 469, 472 n.1 (3d Cir. 2001), both are

designed primarily to protect private parties from liability on
24

stale claims. As Judge Paez pointed out in his dissent in

Kennedy, the fact that the language used in the GARA statute of

repose was similar to the federal catch-all statute of limitations

in 28 U.S.C. § 1658 evinces a Congressional intent that the two

provisions would receive similar treatment in the collateral order

context.

Second, as noted in We, Inc. and in the dissenting opinion

in Kennedy, there is a clear difference between an immunity

granted to a public official and an immunity granted to a private

defendant. We have recognized in the former context that an

order surrounding an immunity decision is immediately

appealable under the collateral order doctrine to ensure that

public officials are not deterred from vigorously carrying out the

discretionary functions of their office. We have not done so in

the latter because the same public policy rationale does not

extend to whether a private party defendant should be forced to

wait until after a final judgment to remedy an incorrect decision.

Third, the GARA statute of repose is not a pure immunity

because it contains exceptions under which immunity does not

attach. One such exception, that a knowing misrepresentation

renders the statute of repose inapplicable, does not have an

analogue in the context of qualified immunity, in which there

are no “exceptions” to granting immunity if a public official has

not violated a clearly established right. Holding to the contrary

in this case would be inimical to our admonition “that the

finality requirement of § 1291 must not be reduced to a case-bycase determination.” We, Inc., 174 F.3d at 325.
We are precluded from reviewing at this stage of the 10

proceedings the District Court’s identification of facts that are

25

Finally, even if we were to hold that a statute of repose

is the functional equivalent of a decision on qualified immunity,

the Cohen factors militate against recognizing appellate

jurisdiction because the applicability of the statute of repose is

intertwined with a decision on the merits. This fact clearly

distinguishes the present case from Kennedy. There, the Ninth

Circuit was faced not with a factual dispute as to the

applicability of the § 2 GARA exception, but with a legal issue:

which of two undisputed dates triggered the running of the

GARA limitations period. Here, the District Court found that

there was a factual dispute relating to the § 2 exception. That

determination is similar to a finding in the qualified immunity

context that there are disputed facts relating to the immunity

issue. In that context, we have exercised appellate jurisdiction

under the collateral order doctrine to review a pre-trial denial of

immunity “only to the extent that it raises questions of law.”

Hamilton, 322 F.3d at 782; see Giufffre, 31 F.3d at 1245 (“[A]n

order denying qualified or absolute immunity, to the extent that

the order turns on an issue of law, is immediately appealable

under the collateral order doctrine.”) (emphasis added and

citation omitted). The reason is that such a situation is not

“completely separate from the merits”; in other words, the

merits issue is intertwined with the immunities issue.

The same result applies in this case. The District Court

determined that there is an issue of fact regarding whether

Hartzell misrepresented information to the FAA. Not only is 10
subject to genuine dispute. See Hamilton, 322 F.3d at 782

(citing Ziccardi v. City of Philadelphia, 288 F.3d 57, 59, 61 (3d

Cir. 2002)).

26

a determination on that issue relevant to the underlying merits

of the claim, it is also important to determine whether the § 2

GARA exception applies. Thus, in addition to not exercising

appellate jurisdiction over this appeal in the immunity context,

we should not do so because the issue is not separable from the

merits.

When all of these factors are considered in the context of

our historical reluctance to expand the scope of the collateral

order doctrine, it becomes clear that we should decline to

exercise jurisdiction over Hartzell’s appeal.

IV.

A statute of repose simply does not implicate the same

public policy concerns as a denial of absolute or qualified

immunity. In addition, the decision on whether the statute of

repose applies in this particular case is intertwined with a

decision on the merits. There exists a genuine issue of material

fact as to whether the GARA exception applies, which would

preclude our consideration of the appeal at this time under the

Cohen factors and our jurisprudence in the area of qualified

immunity. For these reasons, we decline to allow an

interlocutory challenge to the decision denying the motion to

dismiss under the GARA statute of repose and will dismiss this

appeal.