Petition for Writ of Certiorari — Lyon v. Agusta S. p. A.

7 Supreme Court, U.S.

1\ } FILED

No __g4 569 011 200

In The OFFICE OF THE CLERK

Supreme Court of the United States

4

KATHY LYON; AARON J. LYON; AND THE ESTATE OF

DAVID LYON AND BELINDA POLLACK; HANNA

MARIE POLLACK; RENEE STEVEN POLLACK; AND

THE ESTATE OF STEVEN POLLACK,

Petitioners,

VS.

AGUSTA S.P.A.; AGUSTA AEROSPACE CORPORATION;

SESTO CALENDE WORKS OF AGUSTA; and

SIAI MARCHETTI CORPORATION,

Respondents.

.

- On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

.

PETITION FOR WRIT OF CERTIORARI

¢

Stuart B. EsNerR

Counsel of Record

Esner & CHANG

e 523 West Sixth Street, Suite 524

Los Angeles, California 90014

Telephone: (213) 630-1990

Attorneys for Petitioners Kathy Lyon; Aaron J. Lyon; the Estate of

David Lyon; Belinda Pollack; Hanna Marie Pollack; Renee Steven

Pollack; and the Estate of Steven Pollack

TimotHy J. WHEELER IAN HERZOG

ApaM K. SHEA WILLIAM S. VocEL

GREENE, BROILLET, TAYLOR, Law Orrices oF IAN HERZOG

WHEELER & PANISH 233 Wilshire Boulevard,

100 Wilshire Boulevard, Suite 550

21st Floor Telephone: (310) 458-6660

Santa Monica, California 90401

. Attorneys for Petitioners

Telephone: (310) 576-1200 Belinda Pollack; Hanna

Attorneys for Petitioners Marie Pollack; Renee

Kathy Lyon; Aaron J. Lyon; Steven Pollack; and the

and the Estate of Estate of Steven Pollack

David Lyon .

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

yA he

i9' \

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QUESTIONS PRESENTED

On August 17, 1994, the President signed into law 49

U.S.C. section 40101 of the General Aviation Revitaliza-

tion Act of 1994 (“GARA”). With limited exceptions,

GARA bars actions based on defects in airplanes more

than 18 years old at the time of the accident. Plaintiffs

and petitioners are survivors of two of the three individ-

uals who died in the crash of a light plane on November

26, 1993. It is undisputed that, under then existing law,

petitioners had until November 25, 1994 to file suit. In

reliance on this fact, petitioners’ counsel proceeded to

investigate the crash to identify the proper parties to sue

and the proper claims to pursue. Counsel for the other

survivors (“The Belzer Plaintiffs”) opted to file suit ear-

lier. The district court and the Ninth Circuit concluded

that GARA applied retroactively to bar all claims within

its terms that were not filed in court before that Act was

signed in law. Under this interpretation the claims of

petitioners, who were acting in reliance on existing law to

postpone filing suit, are barred while the claims of the

Belzer plaintiffs (who fortuitously filed suit before GARA

was signed into law) are not barred.

The questions presented by this petition are:

1. Whether a plaintiff with an accrued cause of

action who has time under the applicable

statute of limitations to file suit, has a due

process right to expect that a newly enacted

statute will not time-bar his or her action

simply because, in reliance on the existing

statute of limitations, that plaintiff did not

file suit before the President signed this new

legislation into law?

| )

QUESTIONS PRESENTED - continued

2. Whether Equal Protection precludes Con-

gress from distinguishing between two sets

of plaintiffs injured in the same air crash

each of whom has time remaining to file suit

under the existing statute of limitations,

based upon the fact that one set of plaintiffs

filed suit before the President signed a new

statute into law and the other set, relying on

the statute of limitations, did not file suit

until after that point?

ili

CORPORATE DISCLOSURE STATEMENT

(RULE 29(6).)

Plaintiffs are individuals owning no controlling inter-

est in a foreign or domestic corporation.

oe

iv ; -

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................0000e000: i

CORPORATE DISCLOSURE STATEMENT (RULE

RE PE Eas EEE RE ene ee a Cee iii

TABLE OF AUTHORITIES ...............0000e0000- V

Ca ee ies 1

BARNS WOM PUIICTION ...2..... << ..500.2.220.0. 1

CONSTITUTIONAL AND STATUTORY PROVI-

SIs II oss ee oan anne 2

STATEMENT OF THE CASE................000008: 3

REASONS FOR GRANTING CERTIORARI ......... 5

I. THE DECISION BELOW CONTRAVENES

ESTABLISHED LAW THAT DUE PROCESS

PRECLUDES CONGRESS FROM RETROAC-

TIVELY SHORTENING THE TIME TO FILE

SUIT AS TO BAR EXISTING CLAIMS WITH-

OUT AFFORDING LITIGANTS A REASON-

ABLE OPPORTUNITY TO FILE SUIT........ 7

Il. THERE IS NO RATIONAL BASIS FOR DISTIN-

GUISHING BETWEEN TWO SETS OF PLAIN-

TIFFS INJURED IN THE SAME AIR CRASH

EACH OF WHOM HAS TIME REMAINING

TO FILE SUIT UNDER THE EXISTING STAT-

UTE OF LIMITATIONS, BASED UPON THE

FACT THAT ONE SET OF PLAINTIFFS FILED

SUIT BEFORE THE PRESIDENT SIGNED A

NEW STATUTE INTO LAW AND THE OTHER

SET, RELYING ON THE STATUTE OF LIMITA-

TIONS, DID NOT FILE SUIT UNTIL AFTER

ROME WOMEE 6p ibs ceneuadwascKitaceupeneeues 11

CONSE on ase et se 16

Vv

TABLE OF AUTHORITIES

FEDERAL CASES

Allen v. A.H. Robins Co., Inc., 752 F.2d 1365 (9th

Serre ee he ares eoree a Cay 10

Capitan Grande Band of Mis. Indians v. Helix Irr.

Dist., 514 F.2d 465 (9th Cir. 1975), cert. denied,

BZD US. B74... cc ccncccsedcndstedseassevetstepacies 8

Chenault v. U.S. Postal Service, 37 F.3d 535 (9th Cir.

FB PO TIO ET TNT ET rTP ery er rrr 8

Cae oe Seley, Se Us Se Ces i cd veo eoasebevares 12

Colorado Republican Campaign Committee v. FEC,

ee 8 | POET eee errr CTT eT ote Tye tree 9

Community Elec. Service v. National Elec. Contr., 869

eo rs Fe. | OTe e Tee Teer er vr c ee 10

Gray v. First Winthrop Corp., 989 F.2d 1564 (9th Cir.

i Me Rrra N Ey F EPR Dewy rrp reer rr T rr oer Ts 13, 14

Henderson v. Scientific-Atlanta, Inc., 971 F.2d 1567

425 9s Sepa eer rr rreye pyr rrr rr Tie 13, 14

ie ae tom, SA IS: A MINDY soc crieeiawes ss 9

Kelly v. Burlington Northern R. Co., 896 F.2d 1194

COU Ge FO nk knee d ached Pike eee eens ds 8

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilb-

I Bee GE RS 6s a keds é case wanesen te as 13, 14

Nelson v. International Paint Co., 716 F.2d 640 (9th

PRE eT er aE rr Tern yee 9

Ockerman v. May Zima & Co., 27 F.3d 1151 (6th Cir.

Eee eT Pere rs feo e er ere rE ers Pere e 8

|

vi

TABLE OF AUTHORITIES - Continued

Page

Royster Guano Co. v. Virginia, 253 U.S. 412 (1920).... 12

Serna v. Superior Court, 40 Cal.3d 239 (Cal. 1985),

ee a, Bk rere err ere “

Summers v. Wallace Hospital, 276 F.2d 831 (9th Cir.

BOON s cnc nvnanbduacueeschbawéoeeuessan0dbausdneues 10

U.S. CONSTITUTION

5th Amendment to the U.S. Constitution............. 2

14th Amendment to the U.S. Constitution......... 2, 11

STATUTES

ee Ca OC Be ak oh wewrarrc he decencaukiselsuse 1

me Ue. BOR Be 6660 kka0skesnccdas tee sccanes 1

a UE. Ba Bs 5 5. 0.bek cs bv hn theosceaaeees 1

Oy Tice. es SE o bck'a backend eke te reese 2, 4

Cal. Code Civ. Proc. Section 340(3).........sc.ecee00. 4y

MISCELLANEOUS

McGovern, The Variety, Policy and Constitutionality

of Products Liability Statutes of Repose, 30

A Am.U.L.Rev. 579, 582-587 (1981) ...............0.. 10

Note, The Constitutionality of Statutes of Repose:

Federalism Reigns, 38 Vand. L. Rev. 627, 629

CABG ov cccccncdvdsccensddes teaceddussseesenceuns 10

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit in Kathy Lyon et al. v. Agusta S.P.A. et al.,

252 F.3d 1078 (9th Cir. 6/7/2001) is reported and is set

forth in the Appendix hereto. App. 1, et seq.

S

BASIS FOR JURISDICTION

The final judgment of the United States Court of

Appeals for the Ninth Circuit affirming the decision of

the District Court of the Central District of California was

entered on July 3, 2001, upon the denial of petitioners’

petition for rehearing. App. 35. This petition for writ of

certiorari is filed within ninety (90) days from that date.

28 U.S.C. Section 2101(c).

The jurisdiction of this Court is invoked pursuant to

the provisions of 28 U.S.C. Section 1254(1)

JURISDICTION: Federal jurisdiction of this matter is

under 28 U.S.C. Section 1441(d), which provides:

Any civil action brought in a State court against

a foreign state as defined in section 1603(a) of

this title may be removed by the foreign state to

the district court of the United States for the

district and division e:mbracing the place where

such action is pending. Upon removal the action

shall be tried by the court without jury. Where

removal is based upon this subsection, the time

limitations of section 1446(b) of this chapter may

be enlarged at any time for cause shown.

¢

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitu-

tion provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any

criminal case to be a witness against himself,

nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

* compensation.

The Fourteenth Amendment to the United States

Constitution provides in pertinent part:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

49 U.S.C. Section 40101 of the General Aviation Revi-

talization Act of 1994 (“GARA” or “The Act”) provides in

pertinent part:

(a) In General. Except as provided in subsec-

tion (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 manufac-

turer of the aircraft or the manufacturer of any

new component system, subassembly, or other

part of the aircraft, in its capacity as a manufac-

turer if the accident occurred — (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... .

That section proceeds to define the term “limitation

period” to mean “18 years with respect to general avia-

tion aircraft and the components, systems, subassemblies

and other parts of such aircraft.”

As to its effective date, the Act provides: “Except as

provided in subsection (b), this Act shall take effect on

the date of the enactment of this Act [Aug. 17, 1994].”

Subdivision (b) provides that “[t]his Act shall not apply

with respect to civil actions commenced before the date of

the enactment of this Act.”

+

STATEMENT OF THE CASE

This action arises from a tragic plane crash resulting

in the death of the plane’s occupants, David Lyon, Steven

Pollack and Roy Belzer. Their survivors brought action

a ia i

against defendants and appellees Agusta, S.P.A. and SIAI

Marchetti S.P.A, the manufacturer of the accident-plane.

The District Court dismissed the Lyon and Pollack actions

(but not the Belzer action) exclusively under 49 U.S.C.

Section 40101 of the General Aviation Revitalization Act

of 1994 (“GARA”). With limited exceptions, GARA bars

actions based on defects in airplanes more than 18 years

old at the time of the accident. App. 15-16.

The distinguishing feature between the Lyon and

Pollack actions on the one hand and the Belzer action on

the other is that the Belzer plaintiffs filed suit before the

President signed GARA into law whereas the Lyon and

Pollack plaintiffs did not.

Defendants moved to dismiss the Lyon and Pollack

plaintiffs’ claims arguing that they were barred by

GARA. Plaintiffs argued that GARA could not be consti-

tutionally applied to their claims because it would effec-

tively shorten a statute of limitations without affording a

reasonable time to file suit and because it would violate

equal protection. Alternatively, plaintiffs urged the dis-

trict court to interpret GARA in a manner that was con-

sistent with the Constitution.

The district court rejected plaintiffs’ arguments and

granted the motion to dismiss. Plaintiffs appealed.

The Ninth Circuit affirmed the judgment, ruling that

GARA retroactively applied to bar this action. According

to the Ninth Circuit, because GARA was a “statute of

repose” and was not a “statute of limitations” GARA

could constitutionally be retroactively applied to cut-off

already accrued causes of action without affording a rea-

sonable time to file suit. App. 16. The Ninth Circuit

further ruled that a rational basis existed for Congress to

distinguish between plaintiffs with accrued causes of

action who did not file suit before the President signed

GARA into law and plaintiffs who filed suit before that

point. App. 18-20. The Ninth Circuit reasoned Congress

could rationally offer special protections to those who

had already filed their actions: App. 19-20. Plaintiffs

unsuccessfully petitioned for rehearing. This petition for

certiorari follows.

REASONS FOR GRANTING CERTIORARI

This petition should be granted for two reasons.

First, the Ninth Circuit’s opinion is contrary to precedent

that when a statute of limitations is shortened, Due Pro-

cess dictates that a plaintiff be afforded a reasonable time

to file suit. Here, it is beyond question that under the

applicable one-year statute of limitations, plaintiffs had

until and in fact filed suit before November 26, 1994.

But, on August 17, 1994, before plaintiffs filed suit,

the President signed GARA into law. The effective date

provision of GARA provides that the Act “shall not apply

with respect to civil actions commenced before its enact-

ment.”

The Court concluded that under this provision, the

very instant the Ptesident signed GARA into law, plain-

tiffs’ already accrued causes of action were barred - even

though plaintiffs had two months remaining under the

statute of limitations to file suit. If plaintiffs had filed suit

any time before the moment the President put pen to

er re en en en

paper, their action, without question, would have been

timely.

Thus, under the Court’s view, plaintiffs and their

counsel are no longer entitled to rely upon existing stat-

utes of limitations to determine when to file suit. After

all, behind closed doors in Washington or Sacramento

legislation might be in the works, which upon enactment

will, with lightning speed, bar their claims.

Accordingly, plaintiffs cannot afford the “luxury” of

conducting an investigation before filing suit. Once a

client discusses a case with counsel, suit should be filed

regardless of the time remaining on the statute of limita-

tions. As happened here, relying on the statute of limita-

tion to investigate the claims, might very well be fatal to

the action.

The Ninth Circuit’s opinion is not consistent with

any notion of Due Process. Since, under the Court’s view,

GARA operated to cut-off an already accrued cause of

action, it operated no differently then a statute of limita-

tions — which by their nature bar accrued causes of

action. Accordingly, Due Process demanded that plain-

tiffs be afforded a reasonable time to file suit after

'GARA’s enactment. The Court's rejection of this argu-

ment was therefore erroneous.

At the very least, Equal Protection requires Congress

to have a rational basis for treating classes of litigants

differently. The stated purpose of GARA was to attempt

the reversal of the declining market in the United States

of small plane manufacturing by affording manufacturers

knowledge that they could not be liable for the ever

increasing population of aircraft over 18 years old. But

this goal is not furthered in the least by insulating manu-

facturers from claims simply because the lawsuit based

on those claims was filed after rather than before the

’ President signed GARA into law.

The present case is illustrative. Here, as a result of

the same crash of the same airplane that gave rise to

appellants’ claims, the Belzer plaintiffs filed suit before

the President signed GARA into law. There was not so

much as a suggestion that GARA barred the Belzer

claims. Yet, petitioners’ claims were held to be barred

because they filed suit after the President signed GARA

into law — even though two months still remained under

the applicable statute of limitations.

Since the purpose of GARA is linked exclusively to

the vintage of the airplane which gives rise to the plaintiff's

claims, that purpose is not furthered at all by distinguish-

ing between classes of plaintiffs whose claims concern the

identical airplane based on whether they filed suit before

or after GARA’s enactment. Application of GARA to bar

plaintiffs’ claims is therefore violative of Equal Protec-

tion.

I. THE DECISION BELOW CONTRAVENES ESTAB-

LISHED LAW THAT DUE PROCESS PRECLUDES

CONGRESS FROM RETROACTIVELY SHORTEN-

ING THE TIME TO FILE SUIT AS TO BAR EXIS-

TING CLAIMS WITHOUT AFFORDING

LITIGANTS A. REASONABLE OPPORTUNITY TO

FILE SUIT.

The Ninth Circuit’s opinion in this case conflicts with

decisions of this Court and others that

Congress is without authority to extinguish

claims by shortening the statute of limitations

unless the prior limitations period has not yet

expired and Congress provides a reasonable

time in which the plaintiff may file suit. See

Ochoa v. Hernandez, 230 U.S: 139, 161-162, 57

L.Ed. 1427 (1913) (‘With reference to statutes. of

limitations, it is well settled that they may be

modified by shortening the time prescribed, but

only if this be done while the time is still run-

ning, and so that a reasonable time still remains

for the commencement of an action before the

bar takes effect.’) [Citations to other Supreme

Court cases.]

Ockerman v. May Zima & Co., 27 F.3d 1151, 1157 (6th Cir.

1994); Chenault v. U.S. Postal Service, 37 F.3d 535, 539 (9th

Cir. 1994) (“A newly enacted statute that shortens the

applicable statute of limitations may not be applied retro-

actively to bar a plaintiff’s claim that might otherwise be

brought under the old statutory scheme because to do so ~

would be manifestly unjust.”); Capitan Grande Band of Mis.

Indians v. Helix Irr. Dist., 514 F.2d 465, 468 (9th Cir. 1975)

(“the Supreme Court’s view [is] that the constitutionality

of statutes of limitations depends upon whether ‘a rea-

sonable time is given for the commencement of an action

before the bar takes effect.’ [Citation.]”) cert. denied, 423

U.S. 874; Kelly v. Burlington Northern R. Co., 896 F.2d 1194,

1198-1199 (9th Cir. 1990); 51 Am. Jur. 2d Limitation of

Actions § 38 (1970) (same).

Here, the face of the complaint shows that the plain-

tiffs’ causes of action accrued on November 26, 1993,

when the tragic plane crash occurred. App. 5. At that

point and at all times until the passage of GARA into law

on August 17, 1994, it was beyond question that plaintiffs

had until November 26, 1994, to file this action under

California’s one year statute of limitations. Cal. Code Civ.

Proc. Section 340(3); See Nelson v. International Paint Co.,

716 F.2d 640, 644 (9th Cir. 1983).

The Ninth Circuit concluded that the retroactive

application of GARA to bar the present action did not

violate the constitutional proscription against shortening

statutes of limitation without affording a reasonable time

to file suit because GARA is a statute of repose and not a

statute of limitations. App. 16. But this label based anal-

ysis is antithetical to this Court’s admonition that it is the

nature of the right and not the label that determines the

applicability of the protections of the Bill of Rights. See

Colorado Republican Campaign Committee v. FEC, 518 US.

604, 622 (1996) (“the government ‘cannot foreclose the

exercise of constitutional rights by mere labels”); In re

Gault, 387 U.S. 1, 50 (1967); Serna v. Superior Court, 40

Cal.3d 239, 256 (Cal. 1985), cert. denied, 475 U.S. 1096

(“[T]he Supreme Court has emphasized that the nature of

the proceeding and its consequences determine the appli-

cability of the protections of the Bill of Rights, not ‘labels

of convenience.’ ”)

Here, we are not concerned with the constitutionality

of GARA in general. Clearly, the central purpose of that

Act is to serve as a statute of repose precluding causes of

action from ever accruing (in contrast to a statute of

limitations which precludes recovery on accrued causes

10

of action).! But, with respect to the Ninth Circuit, cate-

gorizing GARA in this manner begs the question rather

than answers it. As to these plaintiffs (and as to other

individuals who possessed accrued causes of action at the

time GARA was signed into law) GARA operated as a

statute of limitations serving to eliminate an already

accrued cause of action because suit was not filed before

GARA was signed into law.

There is no distinction - none whatsoever — between

the manner GARA operated as to these plaintiffs and how

a retroactively shortened statute of limitations operates.

In both instances, the prospective plaintiffs act in reliance

on existing law to determine the date by which a suit

must be filed; in both instances, if the plaintiffs had filed

suit before the enactment of the new law, their claims

would have been preserved; in both instances a legisla-

ture changed the rules midway through the game so that

their claims are no longer viable solely because they did

not file suit before a newly prescribed date.

1 While generally, “[s]tatutes of limitations limit the time in

which a plaintiff may bring suit after the cause of action accrues,

whereas statutes of repose potentially bar the plaintiff’s suit

before the cause of action accrues” (Note, The Constitutionality of

Statutes of Repose: Federalism Reigns, 38 Vand. L. Rev. 627, 629

(1985)), there is much uncertainty in the law as to the

distinction, if any between the two. See McGovern, The Variety,

Policy and Constitutionality of Products Liability Statutes of Repose,

30 Am.U.L.Rev. 579, 582-587 (1981) (Author details the various

meanings ascribed to statutes of repose). Often courts use the

terms interchangeably. See Community Elec. Service v. National

Elec. Contr., 869 F.2d 1235, 1241 (9th Cir. 1989); Allen v. A.H.

Robins Co., Inc., 752 F.2d 1365, 1372 (9th Cir. 1985); Summers v.

Wallace Hospital, 276 F.2d 831, 835 (9th Cir. 1960).

11

As detailed, if the effective date provision of GARA

were labeled as a “statute of limitations” then settled

principles of law would have precluded Congress from

retroactively acting in this manner. The fact that such a

label was not used should not and does not dictate a

different result.

Simply put, the same constitutional vice that pre-

cludes retroactively shortening a statute of limitations

without affording a reasonable period to file suit likewise

precludes the retroactive application of GARA to this

action. This provides the first basis for certiorari.

II. THERE IS NO RATIONAL BASIS FOR DISTIN-

GUISHING BETWEEN TWO SETS OF PLAIN-

TIFFS INJURED IN THE SAME AIR CRASH EACH

OF WHOM HAS TIME REMAINING TO FILE

SUIT UNDER THE EXISTING STATUTE OF LIM-

ITATIONS, BASED UPON THE FACT THAT ONE

SET OF PLAINTIFFS FILED SUIT BEFORE THE

PRESIDENT SIGNED A NEW STATUTE INTO

LAW AND THE OTHER SET, RELYING ON THE

STATUTE OF LIMITATIONS, DID NOT FILE SUIT

UNTIL AFTER THAT POINT.

A second reason why this Court should grant cer-

tiorari is that, contrary to the Ninth Circuit’s opinion,

application of GARA to this action would also violate the

Equal Protection clause. U.S. Const. 14th Amend. The

Equal Protection clause denies “the power to legislate

that different treatment be accorded to persons placed by

a statute into different classes on the basis of criteria

wholly unrelated to the objective of that statute. A classi-

fication ‘must be reasonable, not arbitrary, and must rest upon

12

some ground of difference having a fair and substantial relation

to the object of the legislation, so that all persons similarly

circumstanced shall be treated alike.’ ” Reed v. Reed, 404 U.S.

71, 75-76 (1971), quoting Royster Guano Co. v. Virginia, 253

U.S. 412, 415 (1920) (emphasis added).

Stated another way, “[a]t a minimum, a statutory

classification must be rationally related to a legitimate

governmental purpose” Clark v. Jeter, 486 U.S. 456, 461

(1988). This so-called “rational relationship” test requires

the reviewing court in analyzing a statute which treats

classes differently “to conduct ‘a serious and genuine

judicial inquiry into the correspondence between the clas-

sification and the legislative goals’ (Dorrough v. Estelle,

(Sth Cir. 1974) 497 F.2d 1007, 1011) .. . ” Newland v. Board

of Governors, 566 P.2d 254, 257 (Cal. 1977).

Equal Protection precludes Congress from distin-

guishing between two sets of plaintiffs injured in the

same air crash each of whom have time remaining to file

suit under the existing statute of limitations, based upon

the fact that one set of plaintiffs filed suit before the

President signed a new statute into law and the other set,

relying on the statute of limitations, did not file suit until

after that point. The stated purpose of GARA was to

attempt the reversal of the declining market in the United

States of small plane manufacturing by affording manu-

facturers knowledge that they could not be liable for the

ever increasing population of aircraft over 18 years old.

See Senate Report no. 103-202.

But the distinction between the categories of plain-

tiffs which is at issue does nothing to further that pur-

pose and certainly does not justify the harsh result

13

defendants propose. Under the distinction defendants seek to

draw, two plaintiffs whose claims arise from the very same air

crash could be treated markedly different even though their

injuries arise from the defective nature of the same aircraft,

their causes of action accrued at the same instant, and the

applicable statute of limitations was scheduled to expire on the

same day. Indeed, this anomaly is present in this matter

since one set of plaintiffs (the Belzers) did file their action

arising from this same aircraft before GARA was signed

into law. Therefore, there is no question but that the Act

does not apply to their claims.

The arbitrary nature of defendants’ position is fur-

ther highlighted by the fact that under their analysis, a

plaintiff injured by a fifty year old plane who commenced

his or her action on August 16, 1994, would unquestiona-

bly not be barred by GARA while a plaintiff injured by a

19 year old aircraft who commenced his or her action a

day later would not be able to do so.

Thus, the policy reasons for enacting GARA are not

furthered in the least by treating plaintiffs, possessing

accrued causes of actions when that Act was signed into

law, so dramatically different.

Nevertheless, the Ninth Circuit concluded that Con-

gress had a rationale basis for distinguishing between

these two classes by reference to Gray v. First Winthrop

Corp., 989 F.2d 1564, 1573-1574 (9th Cir. 1993) (which in

turn relied upon Henderson v. Scientific-Atlanta, Inc., 971

F.2d 1567, 1574 (11th Cir. 1992)). App. 19. These cases

considered the constitutionality of Acts -of Congress

which were taken in response to Lampf, Pleva, Lipkind,

Prupis & Petigrow v. Gilbertson, 501.U.S. 350 (1991).

14

In Lampf, this Court concluded that a uniform statute

of limitations applied to actions under section 10(b) of the

Securities and Exchange Act of 1934. Before Lamp/ there

was a split among the circuits with several circuits bor-

rowing the statute of limitations from state law.

The Congressional enactment in question applied to

actions which were filed prior to Lampf and operated to

render the statute of limitations in effect prior to that

decision, again applicable to those actions. Among the

challenges leveled by the defendants in these cases

against this new statute was that it arbitrarily distin-

guished between those plaintiffs who filed suit before

Lampf was decided and those plaintiffs who filed suit

after that decision.

In upholding the statute against this attack, the Gray

court and Henderson court each reasoned that (1) Con-

gress could conclude that the problem created by Lampf

was most pressing with respect to plaintiffs who had

already filed suit and now found their claims time-barred

and (2) Congress could solve a problem step by step

rather than all at once. Gray, supra, 989 F.2d at p.

1573-1574; Henderson, supra, 971 F.2d at p. 1574.

The issue here, however, is just the reverse of the

issue presented in Gray and Henderson. Unlike the Act

involved in those cases, GARA was not enacted to elimi-

nate unfairness caused by the retroactive application of a

newly announced rule. Rather, GARA itself announced

the new rule and then proceeded to delineate that it

applied to some claims but not others depending on

whether a lawsuit was filed. Thus, under GARA Congress

was not endeavoring to correct a perceived problem, in

15

which case it could do so one step at a time. Rather, it was

creating the problem to begin with.

As applied in this case, two plaintiffs whose claims

arise from the very same air crash could be treated mark-

edly different even though their injuries arise from the

defective nature of the same aircraft, their causes of

action accrued at the same instant, and the applicable

statute of limitations was scheduled to expire on the same

day.

The fact that under these circumstances, one plaintiff

has taken the additional step of filing suit while another

plaintiff holding an equally valuable claim, has decided

to conduct additional investigation before filing suit

knowing that time remained under the existing statute of

limitations, does not serve as a rational reason to con-

clude that it is more fair to bar the claims of the plaintiff

who has not yet filed suit.

16

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

DATED: September 27, 2001

Respectfully submitted,

Stuart B. EsNeR

Counsel of Record

EsNer & CHANG

523 West Sixth Street, Suite 524

Los Angeles, California 90014

Telephone: (213) 630-1990

Attorneys for Petitioners Kathy Lyon; Aaron J. Lyon; the

Estate of David Lyon; Belinda Pollack; Hanna Marie Pollack;

Renee Steven Pollack; and the Estate of Steven Pollack

Timotny J. WHEELER

ApvaM K. SHEA

GREENE, BROILLET, TAYLOR,

WHEELER & PANISH

100 Wilshire Boulevard,

21st Floor

Santa Monica, California

90401

Telephone; (310) 576-1200

Attorneys for Petitioners

Kathy Lyon; Aaron J. Lyon;

and the Estate of

David Lyon

IAN HERzOG

WILLIAM S. VOGEL

Law Orfrices OF IAN HERZOG

233 Wilshire Boulevard,

Suite 550

Telephone: (310) 458-6660

Attorneys for Petitioners

Belinda Pollack; Hanna

Marie Pollack; Renee

Steven Pollack; and the

Estate of Steven Pollack

App. 1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Katuy Lyon, an individual and

as Guardian Ad Litem for

AARON J. Lyon; & TaRA JEAN

Lyon; Aaron J. Lyon, by and

through his Guardian Ad Litem

Kathy Lyon; Tara Jean Lyon, by

and through her Guardian Ad

Litem Kathy Lyon; Davin Lyon,

by and through its [sic] Personal

Representative Kathy Lyon,

Plaintiff-counter-defendant-

cross-defendants-Appellants,

V.

Acusta S.P.A.; Star MARCHETTI

CorPORATION; SESTO CALENDE

Works oF AGusta; AGUSTA

AEROSPACE CORPORATION,

Defendant-counter-claim-

3rd-party-plaintiffs-Appellees,

and

UNITED STATES OF AMERICA,

Intervenor.

eee eee eee eee eae

No. 99-55986

D.C. No.

CV-94-07769-CBM

App. 2

KatHy Lyon, an individual and

as Guardian Ad Litem for

AARON JEAN Lyon; & TARA JEAN

Lyon Aaron J. Lyon, by and

through his Guardian Ad Litem

Kathy Lyon; Tara Jean Lyon, by

and through her Guardian Ad

Litem Kathy Lyon; Davip Lyon,

by and through its [sic] Personal

Representative Kathy Lyon,

Plaintiff-counter-defendant-

cross-defendants-Appellants-

cross-Appellees,

V.

Acusta S.P.A.; Sia1t MARCHETTI

CORPORATION; AGUSTA AEROSPACE

CORPORATION; SESTO CALENDE

Works oF AGUSTA,

Defendant-counter-claim-3rd-

party-plaintiffs-Appellees-

cross-Appellants,

and

Unitep STATES OF AMERICA,

Intervenor.

ee ee ae ee ee ee oe ee a ee i

No. 99-55987

D.C. No.

CV-94-07769-CBM

App. 3

BetinDA Po.tack, individually;

HANNA Manrie Poitack, by and

through her Guardian Ad Litem,

Belinda Pollack; RENEE STEVEN

Pottack, by and through her

Guardian Ad Litem, Belinda

Pollack; Estate oF STEVEN S.

Pottack, by and through its

Personal Representative, Belinda

Pollack,

Plaintiffs-Appellants,

v.

AcustTa, S.P.A.; Star MARCHETTI

CORPORATION,

Defendants-Appellees,

and

Unitep States OF AMERICA,

Intervenor.

Nee Ne ieee ee ee ee ee ee ee ee wes wes

No. 99-56010

D.C. No.

CV-94-07770-CBM

ee

App. 4

BetinpA Po.Lack, individually;

HANNA Marie Potiack, by and

through her Guardian Ad Litem,

Belinda Pollack; RENEE STEVEN

Pouitack, by and through her

Guardian Ad Litem, Belinda

Pollack; Estate or STEVEN S. No. 99-56011

Po.ttack, by and through its D.C. No.

Personal Representative, Belinda CV-94-07770-CBM

—_—- OPINION

Plaintiffs-Appellants-Cross-

Appellees,

V.

Acusta, S.P.A.; Stat MARCHETTI

CORPORATION,

Defendants-Appellees-Cross-

Appellants.

ee ee ee ee ee ee ee i ee i

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted

April 17, 2001 - Pasadena, California

Filed June 7, 2001

Before: Harry Pregerson, Ferdinand F. Fernandez,

and Susan P. Graber, Circuit Judges.

Opinion by Judge Fernandez

David Lyon, Steven Pollack and Roy Belzer were

killed in the crash of an airplane. Kathy Lyon, et al., and

Belinda Pollack, et al., survivors of David Lyon and

App. 5

Steven Pollack, respectively, (collectively Survivors)

brought this action against Agusta S.P. A., Agusta Aero-

space Corporation, Sesto Calende Works of Agusta, and

Siai Marchetti Corporation. The Agusta entities are

owners of Marchetti, which designed and manufactured

the aircraft. Those entities and Marchetti are instru-

mentalities of the Republic of Italy.! Marchetti moved to

dismiss the action on the basis that under the Foreign

Sovereign Immunities Act of 1976 (the FSIA), the district

court did not have jurisdiction over it. See 28 U.S.C.

§ 1604. It also moved to dismiss on the basis that the

action was barred by the provisions of the General Avia-

tion Revitalization Act of 1994 (GARA). See Pub. L. No.

103-298, 108 Stat. 1552 (1994) (provisions at 49 U.S.C.

§ 40101 notes). The district court denied the former

motion and granted the latter. The Survivors and

Marchetti appeal. We affirm.

BACKGROUND

On November 26, 1993, an airplane designed and

manufactured by Marchetti and known as model F-260

crashed in Santa Monica, California. David Lyon and

Steven Pollack were aboard, and both were killed in the

accident. The airplane had originally been sold by

Marchetti in December of 1970 to SA Sabena N.V. in

Belgium and had, after intervening transfers, become the

property of the owner of the craft at the time of the crash.

The Survivors brought their action on November 15,

1 Hereafter, for convenience, we will refer to all the entities

collectively as Marchetti.

App. 6

1994, but the effective date of GARA was August 17,

1994, and that Act declares that, absent certain defined

exceptions, “no civil action . . . may be brought against

the manufacturer . . . if the accident occurred” more than

18 years after the aircraft was delivered to the first pur-

chaser or to a person in the business of selling aircraft.

GARA §§ 2(a), 3(3). The Survivors asserted that the Act

did not apply to them. They also asserted that Marchetti

had failed to issue later warnings about an alleged prob-

lem with the aircraft, and that amounted to replacement

of a component part, which would have started a new 18-

year period running from the time of that failure. The

district court held that GARA barred the actions.

STANDARDS OF REVIEW

We review de novo a district court’s dismissal of a

complaint for failure to state a claim. Johnson v. Knowles,

113 F.3d 1114, 1117 (9th Cir. 1997). “A complaint should

not be dismissed unless it appears beyond doubt that the

Plaintiffs can prove no set of facts in support of their

claim that would entitle them to relief.” Id. We also

review de novo the issue of whether a statute applies

retrospectively. United States ex rel. Lindenthal v. Gen.

Dynamics Corp., 61 F.3d 1402, 1406-07 (9th Cir. 1995). In

addition, the existence of subject matter jurisdiction

under the FSIA is a question of law, which we review de

novo. Phaneuf v. Republic of Indonesia, 106 F.3d 302, 304-05

(9th Cir. 1997). Finally, we review the district court’s

denial of a Federal Rule of Civil Procedure 60(b) motion

for an abuse of discretion. Civic Ctr. Square, Inc. v. Ford (In

re Roxford Foods, Inc.), 12 F.3d 875, 879 (9th Cir. 1993).

App. 7

JURISDICTION

Before proceeding any further, we must determine

whether we have jurisdiction over this action in light of

the fact that Marchetti is an instrumentality of the Repub-

lic of Italy. There can be no dispute about the general

rule that “a foreign state shall be immune from the juris-

diction of the courts of the United States.” 28 U.S.C.

§ 1604. Of course, there are exceptions to that, id., and one

of them is that there shall not be immunity in a case “in

which the action is based . . . upon an act outside the

territory of the United States in connection with a com-

mercial activity of the foreign state elsewhere and that act

causes a direct effect in the United States.” 28 U.S.C.

§ 1605(a)(2).

The parties do agree that Marchetti’s acts of design-

ing, manufacturing and selling the F-260 were “in connec-

tion with a commercial activity” and that the activity was

“outside the territory of the United States.” What is in

dispute is whether that activity caused “a direct effect in

the United States,” and it is that rather enigmatic proposi-

tion that we must construe. The Supreme Court has

unraveled the enigma to some extent.

In Republic of Argentina v. Weltover, Inc., 504 U.S. 607,

112 S. Ct. 2160, 119 L. Ed. 2d 394 (1992), the Court was

faced with a situation where Argentina had issued certain

bonds payable in United States dollars, with payment, at

the election of the creditor, to be made on the New York

market. Id. at 609-10, 112 S. Ct. at 2163-64. When the

2 There is no dispute that Marchetti is an instrumentality.

As such, it is a foreign state. See 28 U.S.C. § 1603(a) & (b).

App. 8

bonds matured, Argentina did not pay them, and an

action was commenced against it in the United States

District Court for the Southern District of New York.

Pursuant to the FSIA, Argentina moved to dismiss for

lack of jurisdiction, but that motion was denied. Id. at

610, 112 S. Ct. at 2164. The Court began by rejecting the

notion that in order for an effect to be direct, it must be

substantial or foreseeable. Id. at 618, 112 S. Ct. at 2168.

Rather, said the Court, “an effect is ‘direct’ if it follows ‘as

an immediate consequence of the defendant’s

. activity.’ ” Id. (citation omitted). The Court, thus,

explicated the text with an oracular pronouncement of its

own. It had little trouble in applying that to the case

before it, where Argentina had actually contracted to

make payments in the United States. Id. at 618-19, 112

S. Ct. at 2168-69. Its application here is not quite as

obvious.

Because of that, Marchetti seizes on a case in which a

district court held that the FSIA exception did not apply

to the crash of a helicopter in Colorado. Four Corners

Helicopters, Inc. v. Turbomeca S. A., 677 F. Supp. 1096, 1097

(D. Colo. 1988). That craft was manufactured, at least in

part, by an instrumentality of France and was sold in that

country. Id. at 1098. The helicopter finally found its way

into the United States many years later. The court, which

did not have the benefit of Weltover, ruled that in order to

have a direct effect here “the injury suffered by the plain-

tiff must be ‘a substantial, foreseeable and immediate

causal result of an act of the defendant outside the United

States in connection with [defendant’s] commercial activ-

ity elsewhere.’ ” Id. at 1101 (citation omitted). But that is

exactly what the Supreme Court said the effect need not

peeeneeaSe

App. 9

be. Again, it need only be an “immediate consequence” of

the defendant’s activity. Thus, Marchetti’s reliance on

Four Corners is misplaced. See Adler v. Fed. Republic of

Nigeria, 219 F.3d 869, 876 (9th Cir. 2000); see also Corzo v.

Banco Cent. de Reserva del Peru, 243 F.3d 519, 525-26 (9th

Cir. 2001).

Once we eschew both substantiality and fore-

seeability, we must interpret “immediate consequence” to

mean something different from those terms. Particularly

where failure of a manufactured product is concerned, a

more appropriate reading of the phrase should focus on

whether some intervening act broke the chain of causa-

tion leading from the asserted wrongful act to its impact

in the United States.? That view is propounded in Ver-

meulen v. Renault, U.S.A., Inc., 985 F.2d 1534 (11th Cir.

1993), which is more apposite to the case at hand than the

arguments pressed upon us by Marchetti. Vermeulen was ~

driving a Renault in Georgia when she was injured in an

accident. The car was designed and manufactured by a

corporation which was wholly owned by the French gov-

ernment. Id. at 1537. The court applied the Weltover test

and held: “The complaint in this case alleges that the

injuries Vermeulen suffered in an automobile accident on

the roads of Georgia were the result of RNUR’s negligent

design and manufacture of the LeCar passenger restraint

3 Marchetti suggests that “immediate” refers to time, and a

delay of some 23 years cannot be immediate. We disagree. While

one meaning of immediate is “occurring, acting, or

accomplished without loss of time,” the more relevant meaning

in this context is “acting or being without the intervention of

another object, cause, or agency.” Webster’s Third New

International Dictionary 1129 (1986).

App. 10

system. We can hardly imagine a more immediate conse-

quence of the defendant's activity.” Id. at 1545.

It should be noted, however, that there can be little

doubt that the sale and use of the automobile in question

in the United States was contemplated by the manufac-

turer. Id. at 1537-42. Nevertheless, that fact relates to

foreseeability more than it relates to “immediate conse-

quence,” and in Vermeulen the court properly focused on.

the latter. A defective product failed because of the

defect; the consequence could hardly be more immediate.

The same is allegedly true in the case at hand.

Marchetti asks us to consider, instead, the gloss

placed on the concept in Princz v. F.R.G., 307 U.S. App.

D.C. 102, 26 F.3d 1166 (D. C. Cir. 1994). That was an

attempt by a Holocaust survivor to sue the Federal

Republic of Germany for injuries he suffered in Europe.

26 F.3d at 1168. The court declared that there was no

direct effect in the United States and opined that “[a]

‘direct effect’ however, ‘is one which has no intervening

element, but, rather, flows in a straight line without devi-

ation or interruption.’ ” Id. at 1172 (citation omitted). In

so doing, the court quoted one of its own pre-Weltover

cases. Even if we apply that gloss, it is pellucid that the

line between the defective production of the aircraft and

the failure of that product because of the defect was a

straight one. The acts which resulted in production of an

allegedly defective product were legally significant and

gave rise to the claim at hand. See Adler, 219 F.3d at 876.

Therefore, we hold that we do have jurisdiction. In so

stating, we recognize that much time passed between the

manufacture and the injury and that the aircraft even

App. 11

changed hands. Still, time itself is linear, and while ques-

tions about its ravages, or speculation about the ravages

of others along the way, may affect proof, they do not

affect jurisdiction. Nevertheless, considerations of that

sort do lead legislatures to enact statutes of repose. With

that in mind, we turn to GARA.

DISCUSSION

It is apparent that Congress was deeply concerned

about the enormous product liability costs that our tort

system had imposed upon manufacturers of general avia-

tion aircraft. It believed that manufacturers were being

driven to the wall because, among other things, of the

long tail of liability attached to those aircraft, which

could be used for decades after they were first manufac- —

tured and sold. See H.R. Rep. No. 103-525, pt. I, at 1-4

(1994), reprinted in 1994 U.S.C.C.A.N. 1638, 1638-41. Con-

gress therefore enacted GARA, which provides that:

Except as provided in subsection (b), no civil

action for damages for death or injury to per-

sons 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 compo-

nent, system, subassembly, or other part of the

aircraft, in its capacity as a manufacturer if the

accident occurred -

(1) after the applicable limitation period [18

years] beginning on -

App. 12

(A) the date of delivery of the aircraft to

its first purchaser or lessee, if deliv-

ered 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... .

GARA § 2(a)(1). That is a classic statute of repose. See

Caldwell v. Enstrom Helicopter Corp., 230 F.3d 1155, 1156

(9th Cir. 2000). It does not run from the date on which an

injury occurs. There will be a statute of limitations which

runs from that date. Rather, it runs from what amounts to

the date of the first transfer from the manufacturer. Thus,

if an accident occurs one day before the GARA period

runs, an action will be possible and will be governed by

the usual statute of limitations. If it occurs on the day

after the GARA period runs, no action whatsoever is

possible.

The Survivors argue, however, that GARA is not

retroactive; that is, it does not properly cover their action

because the accident in question occurred before GARA

was enacted. They add that if GARA does cover them, it

is unconstitutional. We disagree with those propositions.

In the remainder of this opinion, we will deal with those

questions, and other related issues.

A. Retroactivity

No doubt there can be serious philosophical debates

over whether retroactive legislation can be called law at

all, if the purpose of law is to bring good order to society

by guiding our activities and channeling them along

App. 13

desirable lines.* But, the Supreme Court has made it clear

that, with some noteable exceptions, retroactive legisla-

tion is permissible. With that in mind, it has outlined the

proper approach to reading statutes. All things remaining

equal, we presume that statutes are not meant to be

retroactive. See Landgraf v. USI Film Prods., 511 U.S. 244,

265-67, 114 S. Ct. 1483, 1497-98, 128 L. Ed. 2d 229 (1994).

Presumptions aside, we must give a statute “its intended

scope.” Id. at 267, 114 S. Ct. at 1498. We must first “deter-

mine whether Congress has expressly prescribed the stat-

ute’s proper reach. If Congress has done so, of course,

there is no need to resort to judicial default rules.” Id. at

280, 114 S. Ct. at 1505. If Congress has not done so, we

must go on to ask “whether the new statute would have

retroactive effect.” Id. In so doing, we ask “whether it

would impair rights a party possessed when he acted,

increase a party’s liability for past conduct, or impose

new duties with respect to transactions already com-

pleted.” Id. If it does have that effect, we apply the

traditional presumption, “that it does not govern absent

clear congressional intent favoring such a result.” Id. Still,

we must try to avoid sweeping away “settled expecta-

tions” unnecessarily. See id. at 266, 114 S. Ct. at 1497.

We bring all of this to the provisions of GARA

wherein Congress has declareu that the “Act shall take

effect on the date of” its enactment, August 17, 1994.

GARA § 4(a). There is nothing extraordinary about that

wording as such; it certainly does not speak to retroac-

tivity. See Landgraf, 511 U.S. at 257, 114 S. Ct. at 1493. But

4 See Lon Fuller, The Morality of Law 39, 44 (1964).

App. 14

preceding that declaration is the phrase “except as pro-

vided in subsection (b),” and that subsection reads, “this

Act shall not apply with respect to civil actions com-

menced before the date of the enactment of this Act.”

GARA § 4(b). That language may not expressly state the

reach of the statute, although a moment of reflection

suggests that it must have been intended to cut off claims

that were not already part of a commenced civil action.

Surely it expresses a clear intent that other claims be

barred. Congress could easily have said that the statute

did not apply to any “accidents that occurred” before the

effective date of the Act; it had used just that form of

locution in § 2(a) when it defined the scope of the Act

itself. Instead, just a couple of relatively short sections

later it used the language found in § 4(b) and indicated a

desire to preserve pending actions only. We think that,

“nothing, indeed, but a different intent explains the dif-

ferent treatment.” Lindh v. Murphy, 521 U.S. 320, 329, 117

S. Ct. 2059, 2064, 138 L. Ed. 2d 481 (1997).

It is not unusual for Congress to draw just that

distinction between claims which are already part of a

commenced civil action and those which are possible, but

have not been filed yet. See Gray v. First Winthrop Corp.,

989 F.2d 1564, 1567, 1572 (9th Cir. 1993). We, therefore, are

satisfied that Congress clearly expressed its intention that

GARA be applied to all actions that had not already been

commenced on its effective date.

But, say the Survivors, perhaps a civil action is com-

menced when an accident has occurred because that puts

in train a series of events that could lead to an actual

filing. However, normal use of legal language would not

dub that “commencement of an action.” See, e. g., Fed. R.

App. 15

Civ. P. 3 (“A civil action is commenced by filing a com-

plaint with the court.”); Altseimer v. Bell Helicopter Textron

Inc., 919 F. Supp. 340, 342 (E. D. Cal. 1996) (same). Also,

say the Survivors, we should interpret GARA to provide

that if any peyson has filed a civil action arising out of the

same accident, everybody involved in the accident should

be deemed to have commenced one. Again, we are aware

of no authority for that interesting proposition, and we

decline to create that rule out of whole cloth. The mis-

chief it could cause is palpably obvious. Certainly, the

fact that somebody has already started an action gives

notice of that person’s claim; it also tends to show that

there was no artificial barrier to commencement of an

action. At any rate, there is no reason to create a rule that

one party’s filing of an action commences the action of an

entirely separate party.

B. Constitutionality

The Survivors next argue that if GARA bars their

action, it is unconstitutional both substantively and pro-

cedurally. Their substantive argument rests on the theory

that they have been deprived of a vested property right

in their cause of action. That argument cannot succeed.

We have squarely held that although a cause of action is a

“species of property, a party’s property right in any cause

of action does not vest until a final unreviewable judg-

ment is obtained.” Grimesy v. Huff, 876 F.2d 738, 743-44

(9th Cir. 1989) (citations and internal quotation marks

omitted); see also Austin v. City of Bisbee, 855 F.2d 1429,

1435-36 (9th Cir. 1988).

App. 16

The Survivors also claim that the statute violates a

procedural due process right because a statute of limita-

tions cannot be shortened in a way that eliminates the

plaintiff's ability to file an action. See Chenault v. United

States Postal Serv., 37 F.3d 535, 539 (9th Cir. 1994); Ocker-

man v. May Zima & Co., 27 F.3d 1151, 1157 (6th Cir. 1994);

Capitan Grande Band of Mission Indians v. Helix Irrigation

Dist., 514 F.2d 465, 468 (9th Cir. 1975). But GARA is not a

statute of limitations, and does not shorten any statute of

limitations. It is, again, a statute of repose. See Caldwell,

230 F.3d at 1156. The focus of a statute of repose is

entirely different from the focus of a statute of limita-

tions. The latter bars a plaintiff from proceeding because

he has slept on his rights, or otherwise been inattentive.

Therefore, it is manifestly unjust to tell somebody that he

has X years to file an action, and then shorten the time in

midstream. However, a statute of repose proceeds on the

basis that it is unfair to make somebody defend an action

long after something was done or some product was sold.

It declares that nobody should be liable at all after a

certain amount of time has passed, and that it is unjust to

allow an action to proceed after that. In this case, for

example, there was an attempt to sue the manufacturer

for the allegedly defective design of a part of an aircraft

that had been in service for some 23 years after it was

first sold. While an injured party might feel aggrieved by

the fact that no action can be brought, repose is a choice

that the legislature is free to make. See generally Stuart v.

Am. Cyanamid Co., 158 F.3d 622, 627 (2d Cir. 1998); Amoco

Prod. Co. v. Newton Sheep Co., 85 F.3d 1464, 1472 (10th Cir.

1996); Sch. Dist. No. 1], Multnomah County v. ACandS, Inc.,

5 F.3d 1255, 1259 (9th Cir. 1993).

App. 17

Therefore, when we focus, as Congress did, on the

need to revitalize a flagging industry, it is difficult to see

any real unfairness in the decision to cut the infinite-

liability tail, even though a cause of action might have

accrued before selection of the length of the period of

repose was made. The holder of an existing cause of

action was no more, or less, worthy than a person who

would come later, and had no less of an opportunity to

seek a recovery. In neither case are the jeremiads of the

injured party less appealing. The legislative decision was

not made on the basis of the injured party’s alacrity or

merit; it was made on the basis that in the course of

human affairs too much time had elapsed since the date

of a defendant’s acts.

Of course, the legislature must act in a rational man-

ner; that almost goes without saying. But barring irra-

tional or arbitrary conduct, Congress can adjust the

incidents of our economic lives as it sees fit. See Pension

Benefit Guar. Corp. v. R.A. Gray & Co., 467 1S. 717, 722)

104 S. Ct. 2709, 2717, 81 L. Ed. 2d 601 (1984); Usery v.

Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S. Ct. 2882,

2892-93, 49 L. Ed. 2d 752 (1976). Indeed, the Supreme

Court has not blanched when settled economic expecta-

tions were upset, as long as the legislature was pursuing

a rational policy. See R.A. Gray & Co., 467 U.S. at 729, 104

S. Ct. at 2717; Turner Elkhorn Mining Co., 428 U.S. at 15, 96

S. Ct. at 2892-93. Here the choice was assuredly rational.

In so stating, we do not overlook the Survivors’ request

that we consider Shadburne-Vinton v. Dalkon Shield Claim-

ants Trust, 60 F.3d 1071, 1074 (4th Cir. 1995), where the

court opined that “in analyzing the constitutionality of

retroactive legislation, statutes of repose are now treated

App. 18

the same as statutes of limitation.” Of course, they are

treated the same in the sense that both are subject to

rational basis review. y

But that does not mean that what is rational for one is

precisely the same as what is rational for the other. We

can, for example, test the rationality of both dogs and

cats, but we test each according to the characteristics of

its species. Similarly, in this instance the different charac-

teristics of the different species of statutes — repose versus

limitations - affect considerations about their rationality.

The Fourth Circuit recognized as much when it went on

to explain that the issue actually was whether the statute

in question served “a legitimate legislative purpose that

is furthered by rational means.” Id. at 1075-76. It then

upheld an enlargement of a statute of repose because that

simply readjusted the benefits and burdens of economic

life. Id. at 1077. That surely does not affect our decision

here, except as it supports it. This statute, too, simply

reallocated those benefits and burdens.

In truth, what seems to gall the Survivors most is that

other victims of the accident in question here had already

filed their actions, and Congress did ameliorate the

harshness of GARA to some extent when it determined

that those who already had actions on file would not be

barred from proceeding. But that glissades to their claim

that their equal protection rights have been violated.

The glissando, however, does not advance their

cause, for it is stymied by precedent. In 1991, the

Supreme Court authoritatively resolved uncertainty

regarding the proper statute of limitations in securities

App. 19

cases. See Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gil-

bertson, 501 U.S. 350, 111 S. Ct. 2773, 115 L. Ed. 2d 321

(1991). It decided upon a period of one year. Id. at 364,

111 S. Ct. at 2782. That decision took many people by

surprise because in places like the Ninth Circuit a longer

statute had been in use. Congress decided to ameliorate

the plight of people caught unawares, but in doing so it

limited relief to those who had already commenced an

action on the day that the Supreme Court ruled. See 15

U.S.C. § 78aa-1. That was attacked as a violation of the

equal protection principies buried in the due process

clause of the Fifth Amendment.> We declared that Con-

gress could limit its special concerns to those who “had

legitimately and indisputably relied on the state of the

law prior to Lampf.” Gray, 989 F.2d at 1573-74. We saw

nothing irrational about that choice and determined,

instead, that it passed “constitutional muster, amply sur-

viving rational basis scrutiny.” Id. at 1574. In so doing, we

quoted the Eleventh Circuit’s statement that:

It is not irrational for Congress to limit its rem-

edy to those individuals who have gone so far

as to file suit in reliance upon the existing stat-

ute of limitations. These individuals will suffer

the most concrete injury because they have

expended significant time and effort to bring

5 The Supreme Court has, of course, determined that the

equal protection clause of the Fourteenth Amendment is,

essentially, surplusage because its principles are contained and

embedded in the concept of due process and, therefore, can be

found within the Fifth Amendment although it does not

mention equal protection at all. See Vance v. Bradley, 440 U.S. 93,

94 n. 1, 99S. Ct. 939, 941 n. 1, 59 L. Ed. 2d 171 (1979); Bolling v.

Sharpe, 347 U.S. 497, 500, 74 S. Ct. 693, 695, 98 L. Ed. 884 (1954).

App. 20

their action, not to mention substantial funds for

attorney’s fees and court costs.

Id. (citation omitted). So it is here. Congress rationally

can, and did, offer special protection to those who had

already filed their actions. That was not irrational. GARA

is constitutional in this respect.

C. Subsidiary Arguments

In an attempt to save the day, the Survivors make

two subsidiary arguments. First, they assert that a new

18-year period started against Marchetti under the “com-

ponent part” portion of the Act. See GARA § 2(a)(2).

Second, they assert that they should have been permitted

to amend to spell out a claim under the exception regard-

ing misrepresentations to the Federal Aviation Adminis-

tration. See GARA § 2(b)(1). We reject both of those

claims.

(1) Component parts

No doubt, addition of a new component part can

start a new 18-year period of repose running from the

date of completion of the addition of that part to the

aircraft. GARA § 2(a)(2). Moreover, we have held that a

part need not be hardware; it might actually be some-

thing like a “revised aircraft manual.” Caldwell, 230 F.3d

at 1158. The Survivors attempt to argue that a failure to

warn about a newly perceived problem also amounts to

something like replacement of a component part because

it breaches an alleged continuing duty to upgrade and

update. We do not agree. Were that so, GARA would have

little value to manufacturers because the plaintiff could

App. 21

always argue that an 18-year period commenced if the

manufacturer did nothing at all, while simultaneously

arguing that if the manufacturer did do something that,

too, would start a new 18-year period running. That is

not the law, and in Caldwell we alluded to the fact that a

revision to a manual was quite different from a failure to

warn. Id. at 1157. What we alluded to there, we reify here:

a failure to warn is decidedly not the same as replacing a

component part with a new one. It does not allow the

Survivors to bypass the GARA bar.

(2) Motion to vacate

Finally, the Survivors assert that the district court

abused its discretion when it denied their motion under

Federal Rule of Civil Procedure 60(b)(6) to vacate its prior

judgment so that they could amend their complaint to

assert the exception involving knowing misrepresenta-

tions to the FAA. GARA § 2(b)(1). Rule 60(b)(6) does

allow the district court to vacate its judgment based on

“any other reason justifying relief from the operation of

the judgment.” The Survivors assert that their reason is

that they have a fait nouveau. They say that they have

_ now learned that fraud on the FAA was committed by

Marchetti. The fatal flaw in their argument centers on the

phrase “any other reason.” The reason they state is not

another reason at all; it is, in fact, already contained in

Rule 60(b)(2) (newly discovered evidence) or, perhaps, in

Rule 60(b)(3) (fraud). But motions under those provisions

must be brought within one year of the judgment which

is being attacked. See Fed. R. Civ. P. 60(b). The judgments

in question here were entered in May of 1996, and the

App. 22

motions were brought in April of 1998. Thus, the motions

were not brought within one year.

The Survivors cannot avoid the time bar by pointing

out that their motion was made under Rule 60(b)(6). That

portion of the rule is not a substitute for the preceding

portions. See United States v. Alpine Land & Reservoir Co.,

984 F.2d 1047, 1049-50 (9th Cir. 1993). The long-standing

rule in this circuit is that, “clause (6) and the preceding

clauses are mutually exclusive; a motion brought under

clause (6) must be for some reason other than the five

reasons preceding it under the rule.” Molloy v. Wilson, 878

F.2d 313, 316 (9th Cir. 1989); see also Lafarge Conseils et

Etudes, S.A. v. Kaiser Cement & Gypsum Corp, 791 F.2d

1334, 1338 (9th Cir. 1986). That must be so, if the one year

limitation is not to be repealed by judicial fiat. The dis-

trict court did not abuse its discretion.

CONCLUSION

Congress decided that the economic health of the

general aviation aircraft manufacturing industry

depended on lifting the requirement that manufacturers

abide the possibility of litigation for the indefinite future

when they sell an airplane. It, therefore, generally limited

their exposure to accidents which occur within 18 years

of the first delivery of the airplane. GARA §§ 2(a), 3.

Marchetti first delivered the F-260 in question here about

23 years before the crash in California. We hold that in

GARA Congress constitutionally barred an action based

upon that accident, even though GARA itself was not

passed until after the accident occurred. We also hold

that, while Marchetti would rather escape liability here

App. 23

on the jurisdictional grounds provided by the FSIA, it

cannot do so, but must be content to rely on GARA faute

de mieux.

AFFIRMED. The parties shall bear their own costs on

appeal.

App. 24

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Belinda Pollack, et al.,

CV 94-7769 CBM

Plaintiffs,

- Order Re:

; Defendants’ Motion

Agusta S.P.A., et al., to Dismiss

Defendants.

Kathy Lyon, et al.,

CV 94-7770 CBM

Plaintiffs,

Defendants’ Motion

V. pote

to Dismiss

Agusta S.P.A., et al. (FILED DEC 1 1995)

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

This matter is before the Court on Defendants’

Motion to Dismiss. The parties appeared before the

Court, the Honorable Consuelo B. Marshall, United States

District Judge, presiding, on October 30, 1995. Having

reviewed all of the papers, evidence and arguments, the

Court hereby GRANTS Defendants’ Motion to Dismiss

without prejudice.

Before the Court are several cases arising out of a

plane accident which occurred on November 26, 1993.

The plane crashed into an apartment building in Santa

Monica, California. The plane’s occupants, Roy Belzer

(“Belzer”), David Lyon (“Lyon”) and Steven Pollack

(“Pollacek”), died in the crash. Three residents of the

apartment building, Carl Ralph (“Ralph”), Steve Reed

App. 25

(“Reed”) and Joanna Pittard (“Pittard”), claim to have

been injured. All of the Plaintiffs in this case have filed

suit against Agusta S.p.A, Agusta Aerospace Corpora-

tion, and Sesto Calende Worlds of Agusta (collectively

“Agusta”), and Siai Marchetti Corporation (“Marchetti”).

Agusta and Marchetti are instrumentalities of the

Republic of Italy. Marchetti is the designer and manufac-

turer of the aircraft engine, including various other parts

and components, of the plane that crashed. Agusta is the

owner, along with another government entity, of

Marchetti.

In December 1970, Marchetti sold and delivered the

plane to its original purchaser, Sabena, in Belgium. After

that time, Marchetti claims that it had no involvement

with that aircraft.

A. Applicability of the General Aviation Revitalization

Act (“GARA”) of 1994

The GARA represents a legislative decision to

decrease the number of potential suits arising from air-

plane manufacturing. To effectuate this purpose, the

GARA includes provisions specifying which parties may

be held liable and when such actions must be brought.!

1 Section 2 of the GARA states:

(a) Except as provided in subsection (b), a 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

manufacturuer [sic] of the aircraft or the

manufacturver [sic] of any new component, system,

App. 26

Specifically, the GARA includes a “ ‘limitation period’

.. . of 18 years with respect to general avaiation aircraft

and the components, systems, subassemblies, and other

parts of such aircraft . . . ” General Aviation Revitaliza-

tion Act of 1994, § 3(3). Pursuant to § 4 of the GARA, the

Act takes effect as of August 17, 1994, but does not apply

to actions commenced before this date. The actions by the

~ Lyon and Pollack Plaintiffs were originally filed on

November 15, 1994. Plaintiffs have not cited any author-

ity to support their position that this Court should judi-

cially legislate a grace-period for filing suits based on

accidents which occurred before GARA was passed.

Accordingly, this Court concludes that Plaintiffs’ action is

subject to GARA.

Furthermore, the Court concludes that GARA is not

unconstitutional either on its face or as applied to Plain-

tiffs’ case. The GARA, as economic legislation, “comes to

the Court with a presumption of constitutionality,

and ... the burden is on one complaining of a due

process violation to establish that the legislature has

acted in an arbitrary and irrational way.” Duke Power Co.

v. Carolina Environmental Study Group, 438 U.S. 59, 83

(1977) (quoting Usery v. Turner Elkhorn Mining Co., 428

U.S. 1, 15 (1976)). Plaintiffs have failed to offer any

subassembly, or other part of the aircraft, in its

capacity as a manufacturer if the accident occurred -

(1) after the applicable limiation period

beginning on -

(A) the date of delivery of the aircraft to

its first purchaser, if delivered directly from

the manufacturer .. .

App. 27

authority to support their contention that the Constitu-

tion requires an extension of the time to file suit when a

statute of repose is passed.

Additionally, this Court concludes that Plaintiffs

have not been deprived of a property right (in a civil

action) in violation of due process through the applica-

tion of the GARA to this case. Although the application of

the GARA may bar this civil action, property rights in a

civil action do not vest until entry of final judgment.

Grimsey v. Huff, 876 F.2d 738, 743-44 (9th Cir. 1989). Con-

sequently, Plaintiffs do not have any property rights in

the case at bar.

In order to bypass GARA’s limitation period, Plain-

tiffs alternatively urge the Court to adopt various inter-

pretions of the phrase “civil actions commenced” in

GARA, Section 4. However, these interpretations conflict

with the provisions of the Federal Rules of Civil Pro-

cedure which clearly define this language. See Fed. R. Civ.

P. 2-3. Therefore, this Court declines to adopt any of the

definitions urged by Plaintiffs.

Plaintiffs also contend that component parts manu-

factured by Defendants may have been installed into the

plane within the 18 year statutory period prescribed by

GARA. In particular, they claim that the engine was

replaced during the statutory period and that engine

mounts produced by the Defendants were likely installed

during that process. Since such allegations are not

included in the complaint, however, they cannot be con-

sidered for purposes of the present motion.

App. 28

II. Foreign Sovereign Immunities Act (“FSIA”)

Defendants contend this Court does not have subject-

matter jurisdiction because Defendants are instru-

mentalities of foreign countries and immune from suit

under the FSIA. However, Defendants fall within an

exception to the FSIA which states: “A foreign state shall

not be immune from suit. . . in any case . . . (2) in which

the action is based upon... an act outside the territory of

the United States in connection with a commercial activ-

ity of the foreign state elsewhere and that act causes a

direct effect in the United States.” 28 U.S.C. § 1605. Plain-

tiffs allege that Defendants negligently manufactured and

installed the aircraft parts that caused the accident in

question. Assuming the truth of these allegations, the

Court concludes that Defendants’ activities had a “direct

effect” in the United States.

In opposition to this conclusion, Defendants rely

heavily upon Four Corners Helicopters, Inc. v. Turbomeca

S.A., 677 F.Supp. 1096 (D.Colo. 1988). However, subse-

quent to Four Corners, the Supreme Court has explained

that the question of whether a foreign sovereign’s com-

merical activity has a “direct effect” in the United States

does not contain any unexpressed requirement of “sub-

stantiality” or “foreseeability”; an effect is “direct” if it

follows as an immediate consequence of the defendant’s

activity. Republic of Argentina v. Weltover, Inc., 505 U.S.

607, 618 (1992). In the present case, Plaintiffs have alleged

sufficient facts which, if true, establish that the accident

was a result of Plaintiffs’ negligence in constructing the

plane. Accordingly, this Court has subject-matter jurisdic-

tion over this action since Defendants are not entitled to

immunity under the FSIA.

App. 29

BASED ON THE FOREGOING, the Court hereby

DISMISSES Plaintiffs’ Complaint WITHOUT PREJUDICE.

IT IS SO ORDERED.

DATED: 12/1/95 /s/ Consuelo B. Marshall

HONORABLE

CONSUELO B. MARSHALL

United States District Judge

App. 30

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

BELINDA POLLACK,

et al.,

Plaintiffs

CASE NO. .

94-7770 CBM (CTx)

)

)

) ORDER RE: (1) MOTION

7 TO DISMISS THIRD

AMENDED COMPLAINT;

AGUSTA S.P.A., ) ALTERNATIVE MOTION

et al., ) TO STRIKE JURY

) DEMANDS; (2) MOTION

) FOR ORDER CERTIFYING

) ISSUE FOR

INTERLOCUTORY APPEAL

)

(FILED APR 19, 1996)

Defendants.

Before the Court, the Honorable Consuelo B. Mar-

shall, United S‘ates District Court Judge, presiding, are

two motions: (1) a motion to dismiss the third amended

complaint, and (2) a motion to certify an order for inter-

locutory appeal. Based on the foregoing, the Court hereby

GRANTS the motion to dismiss the third amended com-

plaint. In light of this dismissal, the motion to certify the

December 10, 1995 order for interlocutory appeal is moot.

_ This action arises out of a plane crash which occurred

on November 26, 1993. Defendant Marchetti is the

designer and manufacturer of the engine and other parts

of the subject aircraft. Defendant Agusta is the owner,

along with another government entity, of Marchetti.

Plaintiffs Lyon and Pollack are the representatives of the

estates of those who died in the crash. In December 1970,

Defendants sold and delivered the subject plane to S.A.

Sabena (“Sabena”), the original purchaser. Defendants

App. 31

claim no involvement with the subject plane after that

date.

The General Aviation Revitalization Act of 1994

(“GARA”), which became effective on August 17, 1994,

imposes an 18 year statute of repose on civil actions

against aircraft manufacturers.! Plaintiffs’ first and sec-

ond amended complaints have both been previously dis-

missed pursuant to the time limitations of GARA.?

Defendants now move to dismiss the third amended com-

plaint.

In the third amended complaint, Plaintiffs attempt to

bring this action within GARA’s “component parts” pro-

visions.? Generally, this subsection of GARA provides

that no civil action for damages arising out of an accident

may be brought against the manufacturer of component

parts that were added to an aircraft if the accident

occurred 18 years after the replacement or addition of

1 Sec. 2 of GARA provides for time limitations on civil

actions against aircraft manufacturers. Generally, it provides

that no civil action may be brought against a general aviation

aircraft manufacturer more than eighteen years after the

delivery date of the aircraft to its first purchaser. With respect to

a new component part added or replaced on the plane, no civil

action may be brought against that component’s manufacturer

more than 18 years after the date of completion of the

replacement or addition. 49 U.S.C § 40101.

2 The first complaint was dismissed in a December 6, 1995

order. The second amended complaint was dismissed in a

February 9 1996 order.

3 The claims regarding the accident aircraft itself (not the

component parts) have already been dismissed pursuant to the

time limitations of GARA in a December 11, 1995 order.

ee

App. 32

said component part. 49 U.S.C. § 40101, §2(a)(2). There-

fore, in order to properly state a claim under this subsec-

tion, Plaintiffs must allege that a replacement or

additional component part was placed in the aircraft by

the Defendant manufacturers within the 18 years preced-

ing the accident.

In the third amended complaint, Plaintiffs assert a

“failure to warn” theory as to two component parts: (1) in

1982, Defendants took action to warn users of Italian

planes of the danger posed by the fuel selector valve, but

failed to warn users of non-Italian aircraft employing the

same fuel system with the same dangerous component,

and (2) Defendants failed during the 18-year period to

advise the users of the aircraft that the engine mount must

be replaced after replacing the engine. Plaintiffs contend

that Defendants’ failure to warn was a cause of the acci-

dent. Additionally, Plaintiffs allege that during the 18

years preceding the accident Defendants assumed and

breached a continuing duty to advise and warn users of

these known defects in the aircraft and component parts.

Plaintiffs do not allege that defective parts were

added after 1975 (18 years preceding the accident), but

that Defendants failed to add component parts to the

accident plane and failed to warn certain parties that

parts needed to be added within the 18 years preceding

the accident. This claim does not fall under the compo-

nent parts provision of GARA.* Because Defendants were

4+ If it did, GARA’s provisions would be rendered

meaningless because plaintiffs could simply plead around its

provisions by asserting general claims of negligent

maintenance.

App. 33

not involved with the plane in the 18 years preceding the

accident, GARA effectively absolves them of liability.

With regard to Defendants’ alternative motion to

strike jury demands, this Court finds that Plaintiffs have

no right to a jury trial under the Foreign Sovereign

Immunities Act (“FSIA”). 28 U.S.C. § 1330. This Court

previously determined jurisdiction pursuant to FSIA.5

(December 11, 1995 Order re: Defendants’ Motion to Dis-

miss). Since Defendants Agusta and Marchetti are owned,

in whole or in part, by the Italian government, they

qualify as an “agent or instrumentality of a foreign state”

pursuant to 28 U.S.C. § 1603(a) of FSIA.® No right to a

jury trial attaches to claims brought against a foreign

state. Wilmington Trust v. U.S. Dist. Court for D. Hawaii,

934 F.2d 1026, 1032 (9th Cir. 1991).

> The Court finds that the “direct effects” exception to the

FSIA, 28 U.S.C. § 1605, applies to Defendants. Therefore, this

Court retains jurisdiction over Defendants.

6 28 U.S.C. § 1603(a) provides that:

An “agency or instrumentality of a foreign state”

means any entity —

(1) which is a separate legal person, corporate

or otherwise, and

(2) which is an organ of a foreign state or

political subdivision thereof, or a majority of

whose shares or other ownership interest is

owned by a foreign state or political subdivision

thereof, and

(3) which is neither a citizen of a State of the

United States as defined in section 1332 and (d) of

this title, nor created under the laws of any third

country. i

28 U.S.C. § 1603(a).

App. 34

BASED ON THE FOREGOING, the Court hereby dis-

misses the third amended compliant. The motion to cer-

tify the December 10, 1995 order for interlocutory appeal

is thereby moot. Defendants Agusta, S.P.A. and SIAI

Marchetti S.P.A. are dismissed pursuant to this order,

Defendant Agusta Aerospace Corporation was dismissed

in a stipulation filed April 24, 1995 and the parties agreed

at che hearing on this matter that Defendant Sesto Cal-

ende Works of Agusta has not been served or is non-

existent. There being no remaining defendants, this case

is hereby dismissed.

IT IS SO ORDERED.

DATED: 4/17/96 /s/ Consuelo B. Marshall

CONSUELO B. MARSHALL

UNITED STATES

DISTRICT JUDGE

App. 35

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATHY LYON, an individual

and as Guardian Ad Litem

for AARON J. Lyon; & TARA

JEAN LYON; AARON J.

LYON, by and through his

Guardian Ad Litem Kathy

Lyon; TARA JEAN LYON, by

and through her Guardian

Ad Litem Kathy Lyon;

DAVID LYON, by and

through its [sic] Personal

Representative Kathy Lyon,

No. 99-55986

D.C. No.

CV-94-07769-CBM

ORDER DENYING

PETITION FOR

REHEARING

(Filed Jul. 3, 2001)

Plaintiff-counter-defendant-

cross-defendants —

Appellants,

V.

AGUSTA S.P.A.; SIAI

MARCHETTI CORPORATION;

SESTO CALENDE WORKS OF

AGUSTA; AGUSTA

AEROSPACE CORPORATION,

Defendant-counter-claim-3rd-

party-plaintiffs - Appellees,

and

UNITED STATES

OF AMERICA,

Intervenor.

eee eee eee eee eee eee eee eee eee eee ee Se

App. 36

KATHY LYON, an individual ) No. 99-55987

and as Guardian Ad Litem ) DC. No

for AARON JEAN LYON; & ) -atsia oe

TARA JEAN LYON AARON J. ) ©¥2407769-CBM

LYON, by and through his

Guardian Ad Litem Kathy

Lyon; DAVID LYON, by and

through its Personal

Representative Kathy Lyon,

Plaintiff-counter-defendant-

cross-defendants —

Appellants-cross-

Appellees,

Vv.

AGUSTA S.P.A.; SIAI

MARCHETTI CORPORATION;

AGUSTA AEROSPACE

CORPORATION; SESTO

CALENDE WORKS OF

AGUSTA,

Defendant-counter-claim-3rd-

party-plaintiffs — Appellees-

cross-Appellants,

and

UNITED STATES

OF AMERICA,

Intervenor.

ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee

App. 37

BELINDA POLLACK,

individually; HANNA MARIE

POLLACK, by and through

her Guardian Ad Litem,

Belinda Pollack; RENEE

STEVEN POLLACK, by and

through her Guardian Ad

Litem, Belinda Pollack;

ESTATE OF STEVEN S.

POLLACK, by and through its

Personal Representative,

Belinda Pollack,

Plaintiffs - Appellants,

No. 99-56010

D.C. NO.

CV-94-07770-CBM

V.

AGUSTA, S.P.A.; SIAI

MARCHETTI CORPORATION,

Defendants — Appellees,

and

UNITED STATES

OF AMERICA,

Intervenor.

BELINDA POLLACK, No. 99-56011

individually; HANNA MARIE D.C. No

POLLACK, by and through

her Guardian Ad Litem,

Belinda Pollack; RENEE

STEVEN POLLACK, by and

through her Guardian Ad

Litem, Belinda Pollack;

ESTATE OF STEVEN S.

POLLACK, by and through its

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

CV-94-07770-CBM

)

)

)

)

)

)

App. 38

Personal Representative,

Belinda Pollack,

Plaintiffs - Appellants/Cross-

Appellees,

V.

AGUSTA, S.P.A.; SIAT

MARCHETTI CORPORATION,

_ Defendants - Appellees /

Cross-Appellants.

i ee ee

Before: PREGERSON, FERNANDEZ, and GRABER, Cir-

cuit Judges.

The panel has unanimously voted to deny the appel-

lants’ petition for rehearing.

The petition for rehearing is DENIED.