                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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
      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


      *
       The Honorable Alan D. Lourie, United States Circuit
Judge for the Federal Circuit, sitting by designation.

                                 2
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

                               3
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.3 The Robinsons, however, allege that they



       1
       The Robinsons also sued New England Propeller
Service, a company that inspected and serviced the propeller in
1989, for negligence. That claim is not at issue in this appeal.
       2
        Pub. L. No. 103-298, 108 Stat. 1552 (1994), amended by
Act of Pub. L. No. 105-102, § 3(e), 111 Stat. 2216 (1997).
       3
           Section 2(a) of GARA provides as follows:

       (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
are entitled to bring their suit under an exception to the GARA
statute of repose because Hartzell made several material


       (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
misrepresentations in connection with obtaining a type
certificate for the propeller at issue from the Federal Aviation
Administration (“FAA”).4 Id.

        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


       4
        The specific exception at issue in this case is contained
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
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.5 In connection with its initial


       5
         There is some confusion in the record as to whether
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
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.




knew them to be.” (App. 18.)

                                 8
(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.)7 Finally, the Robinsons argue that there
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


       6
        Although somewhat unclear from the briefs, it seems as
if the graphs in Engineering Report No. 213 were not turned
over to the FAA.
       7
        The District Court concluded that this second statement
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
Mooney M20E to mark their tachometers between 2000 and
2350 rpm. Because of some early propeller tip failures, the
FAA issued Airworthiness Directive (“AD”) 65-12-13,8 which
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


       8
         An AD is a legally enforceable rule that applies to, inter
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
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

                               11
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 non-
final 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

                               12
the finality requirement of § 1291 must not be reduced to a case-
by-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

                                13
       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

                                  14
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

                                15
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).


                                16
       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 Noerr-
              Pennington immunity to suit, We,
              Inc., 174 F.3d at 326 (3d Cir.
              1999);


                               17
       •       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
               c o n t r a c tu a l c h o ic e -o f - v e n u e
               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 Bell-
Atlantic, are particularly instructive to our analysis of the present

                                     18
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



                               19
       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


                                 20
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.”

                                21
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. § 1658.9 The dissent explained that, “in


       9
           Section 1658 provides as follows:

       (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
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


               (2) 5 years after such violation.

28 U.S.C. § 1658.

                                 23
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-by-
case determination.” We, Inc., 174 F.3d at 325.



                               24
        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.10 Not only is


       10
        We are precluded from reviewing at this stage of the
proceedings the District Court’s identification of facts that are

                                25
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.


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
