864
Syllabus
ages suit). However, merely identifying some interest that would be "irretrievably lost" has never sufficed to meet the third Cohen requirement, see generally Lauro Lines s.r.l. v. Chasser, 490 U. S. 495, 499, for then appellate jurisdiction would depend on a party's agility in characterizing the right asserted. Even limiting the focus to whether the interest claimed may be called a "right not to stand trial" would move § 1291 aside too easily, since virtually any right that could be enforced appropriately by pretrial dismissal might loosely be so described. Precisely because there is no single, obviously correct way to characterize an asserted right, § 1291 requires courts of appeals to view claims of a "right not to be tried" with skepticism. Pp. 868-875. (c) That Digital's agreement may be read as providing for immunity from trial does not distinguish its claim from other arguable rights to be trial free, such as an assertion of res judicata, and attaching significance to the supposed clarity of this agreement's terms would flout the admonition that availability of collateral order appeal must be determined categorically. More fundamentally, such a right by agreement does not rise to the level of importance needed for recognition under § 1291. Digital errs in maintaining that "importance" has no place in a doctrine justified as supplying a gloss on Congress's "final decision" language. The third Cohen question, whether a right is "adequately vindicable" or "effectively reviewable," simply cannot be answered without a judgment about the value of the interests that would be lost through rigorous application of a final judgment requirement. While there is no need to decide here that a privately conferred right could never supply the basis of a collateral order appeal, there are sound reasons for treating such rights differently from those originating in the Constitution or statutes. There is little room to gainsay the importance of the public policy embodied in constitutional or statutory provisions entitling a party to immunity from suit, but including such a provision in a private contract is barely a prima facie indication that the right is important to the benefited party, let alone that its value exceeds that of other rights not embodied in agreements, or that it is "important" in Cohen's sense, as being weightier than the policies advanced by § 1291. Pp. 875-881. (d) Even if the term "importance" were to be exorcised from the Cohen analysis altogether, Digital's rights would remain adequately vindicable on final judgment to an extent that other immunities are not. Freedom from trial is rarely the sine qua non of a negotiated settlement agreement and will rarely compare with the embarrassment and anxiety averted by a successful double jeopardy claimant or the distraction from duty avoided by qualified immunity. Moreover, unlike trial immunity claimants relying on public law, a settling party can seek relief in state
Page: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 NextLast modified: October 4, 2007