OCTOBER TERM, 1993
Syllabus
DIGITAL EQUIPMENT CORP. v. DESKTOP DIRECT, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
No. 93-405. Argued February 22, 1994-Decided June 6,1994
Pursuant to a settlement agreement between the parties, the
District Court dismissed a trademark infringement suit that
respondent Desktop Direct, Inc., had filed against petitioner
Digital Equipment Corporation. Months later, it granted Desktop's
motion to vacate the dismissal and rescind the agreement on the
ground that Digital had misrepresented material facts during
settlement negotiations. The Court of Appeals dismissed Digital's
appeal for lack of jurisdiction, see 28 U. S. C. § 1291, holding
that the District Court order was not immediately appealable under
the collateral order doctrine. Applying the three-pronged test set
forth in Cohen v. Beneficial Industrial Loan Corp.,
337 U. S. 541, and
Coopers & Lybrand v. Livesay,
437 U. S. 463, it
concluded that the entitlement claimed under the settlement
agreement was insufficiently "important" to warrant immediate
appeal as of right and reasoned that an alleged privately
negotiated "right not to go to trial" was different in kind from an
immunity rooted in an explicit constitutional or statutory
provision or compelling public policy rationale, the denial of
which has been held to be immediately appealable.
Held: A refusal to enforce a settlement agreement claimed to
shelter a party from suit is not immediately appealable under §
1291. Pp.867-884.
(a) Although certain categories of prejudgment decisions justify
departure from § 1291's general final judgment requirement, the
collateral order doctrine is a narrow exception and should never be
allowed to swallow the rule. Thus, immediate appeal is confined to
those decisions that are conclusive, that resolve important
questions completely separate from the merits, and that would
render such questions effectively unreviewable on appeal from the
final judgment in the underlying action. See Coopers & Lybrand,
supra. Appealability must 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 injustice
averted, by a prompt appellate court decision. pp. 867-868.
(b) Orders denying immunities are strong candidates for prompt
appeal under § 1291. Abney v. United States,
431 U. S. 651 (right to
be free from a second trial on a criminal charge); Mitchell v.
Forsyth,
472 U. S.
511 (right of government official to qualified immunity from
dam-
864
864 DIGITAL EQUIPMENT CORP. v. DESKTOP DIRECT, INC.
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
865
court for breach of contract or may move for a sanction under
Federal Rule of Civil Procedure 11 if a rescission was sought for
improper purposes. In addition, Digital's insistence that the
District Court applied a fundamentally wrong legal standard in
vacating the dismissal order here might support a discretionary
interlocutory appeal under 28 U. S. C. § 1292(b). Pp. 881-883.
993 F.2d
755, affirmed.
SOUTER, J., delivered the opinion for a unanimous Court.
John G. Roberts, Jr., argued the cause for petitioner.
With him on the briefs were David G. Leitch, Laurence R. Hefter,
David M. Kelly, and Thomas C. Siekman.
Rex E. Lee argued the cause for respondent. With him on the
brief were Carter G. Phillips, Gene C. Schaerr, Janet M. Letson,
John Paul Kennedy, and H. Ross Workman.
*
JUSTICE SOUTER delivered the opinion of the Court. Section 1291
of the Judicial Code confines appeals as of right to those from
"final decisions of the district courts."
28 U. S. C. § 1291. This case raises the question whether an
order vacating a dismissal predicated on the parties' settlement
agreement is final as a collateral order even without a district
court's resolution of the underlying cause of action. See Cohen v.
Beneficial Industrial Loan Corp.,
337 U. S. 541, 546
(1949). We hold that an order denying effect to a settlement
agreement does not come within the narrow ambit of collateral
orders.
I
Respondent, Desktop Direct, Inc. (Desktop), sells computers and
like equipment under the trade name "Desktop Direct." Petitioner,
Digital Equipment Corporation, is engaged in a similar business and
in late 1991 began using that trade name to market a new service it
called "Desktop Direct from Digital." In response, Desktop filed
this action in the
* James W Geriak filed a brief for Spectra-Physics, Inc.,
et al. as amici curiae urging reversal.
866
866 DIGITAL EQUIPMENT CORP. v. DESKTOP DIRECT, INC.
United States District Court for the District of Utah, charging
Digital with unlawful use of the Desktop Direct name. Desktop sent
Digital a copy of the complaint, and negotiations between officers
of the two corporations ensued. Under a confidential settlement
reached on March 25, 1992, Digital agreed to pay Desktop a sum of
money for the right to use the "Desktop Direct" trade name and
corresponding trademark, and for waiver of all damages and
dismissal of the suit. That same day, Desktop filed a notice of
dismissal in the District Court.
Several months later, Desktop moved to vacate the dismissal and
rescind the settlement agreement, alleging misrepresentation of
material facts during settlement negotiations. The District Court
granted the motion, concluding "that a fact finder could determine
that [Digital] failed to disclose material facts to [Desktop]
during settlement negotiations which would have resulted in
rejection of the settlement offer." App. to Pet. for Cert. 13a.
After the District Court declined to reconsider that ruling or stay
its order vacating dismissal, Digital appealed.
The Court of Appeals for the Tenth Circuit dismissed the appeal
for lack of jurisdiction, holding that the District Court order was
not appealable under § 1291, because it neither "end[ed] the
litigation on the merits" nor "[fell] within the long-recognized
'collateral order' exception to the final judgment requirement."
993 F.2d
755, 757 (1993). Applying the three-pronged test for
determining when "collateral order" appeal is allowed, see Cohen,
supra; Coopers & Lybrand v. Livesay,
437 U. S. 463 (1978), the
Court of Appeals concluded that any benefits claimed under the
settlement agreement were insufficiently "important" to warrant the
immediate appeal as of right. Although Digital claimed what it
styled a "right not to go to trial," the court reasoned that any
such privately negotiated right as Digital sought to vindicate was
different in kind from an immunity rooted in an explicit
constitutional or statutory provision or "compel-
867
ling public policy rationale," the denial of which has been held
to be immediately appealable. 993 F. 2d, at 758-760.1
The Tenth Circuit recognized that it was thus deviating from the
rule followed in some other Courts of Appeals, see Forbus v. Sears,
Roebuck & Co.,
958 F.2d
1036 (CAll 1992); Grillet v. Sears, Roebuck & Co.,
927 F.2d
217 (CA5 1991); Janneh v. GAF Corp.,
887
F.2d 432 (CA2 1989); but see Transtech Industries, Inc. v. A
& Z Septic Clean,
5 F.3d
51 (CA3 1993), cert. pending, No. 93-960. We granted
certiorari, 510 U. S. 942 (1993), to resolve this conflict and now
affirm.
II A
The collateral order doctrine is best understood not as an
exception to the "final decision" rule laid down by Congress in §
1291, but as a "practical construction" of it, Cohen, supra, at
546; see, e. g., Coopers & Lybrand, supra, at 468. We have
repeatedly held that the statute entitles a party to appeal not
only from a district court decision that "ends the litigation on
the merits and leaves nothing more for the court to do but execute
the judgment," Catlin v. United States,
324 U. S. 229, 233
(1945), but also from a narrow class of decisions that do not
terminate the litigation, but must, in the interest of "achieving a
healthy legal system," cf. Cobbledick v. United States,
309 U. S. 323, 326
(1940), nonetheless be treated as "final." The latter category
comprises only those district court decisions that are conclusive,
that resolve important questions completely separate from the
merits, and that would render such important questions effectively
unreviewable on appeal from final judgment in the underlying
action. See generally Coopers & Lybrand, supra. Immediate
appeals from such orders, we have ex-
1 The Tenth Circuit also denied Digital's request to stay the
District Court proceedings. We granted a stay pending our
disposition of Digital's petition for certiorari. 510 U. S. 804
(1993).
868
868 DIGITAL EQUIPMENT CORP. v. DESKTOP DIRECT, INC.
plained, do not go against the grain of § 1291, with its object
of efficient administration of justice in the federal courts, see
generally Richardson-Merrell Inc. v. Koller,
472 U. S. 424 (1985).
But we have also repeatedly stressed that the "narrow" exception
should stay that way and never be allowed to swallow the general
rule,
id., at 436, that a party is entitled to a single
appeal, to be deferred until final judgment has been entered, in
which claims of district court error at any stage of the litigation
may be ventilated, see United States v. Hollywood Motor Car Co.,
458 U. S. 263,
270 (1982). We have accordingly described the conditions for
collateral order appeal as stringent, see, e. g., Midland Asphalt
Corp. v. United States,
489 U. S. 794, 799
(1989), and have warned that 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, Van
Cauwenberghe v. Biard,
486 U. S. 517, 529
(1988), by a prompt appellate court decision. See also
Richardson-Merrell, supra, at 439 (this Court "has expressly
rejected efforts to reduce the finality requirement of § 1291 to a
case-by-case [appealability] determination"); Carroll v. United
States,
354 U. S.
394,405 (1957).
B
Here, the Court of Appeals accepted Digital's claim that the
order vacating dismissal (and so rescinding the settlement
agreement) was the "final word on the subject addressed," 993 F.
2d, at 757 (citation omitted), and held the second Cohen condition,
separability, to be satisfied, as well. Neither conclusion is
beyond question,2 but each is best left
2 It might be argued that given the District Court's "somewhat
cryptic" reference, 993 F. 2d, at 757, to what "a trier of fact
could determine," its recision order here was merely "tentative,"
Coopers & Lybrand v. Livesay,
437 U. S. 463, 469, n. 11
(1978), and thus inadequate under the first Cohen test, or that the
basis for vacating, Digital's alleged misrepre-
869
untouched here, both because Desktop has made no serious effort
to defend the Court of Appeals' judgment on those points and
because the failure to meet the third condition of the Cohen test,
that the decision on an "important" question be "effectively
unreviewable" upon final judgment, would in itself suffice to
foreclose immediate appeal under § 1291.3 Turning to these
dispositive factors, we conclude, despite Digital's position that
it holds a "right not to stand trial" requiring protection by way
of immediate appeal, that rights under private settlement
agreements can be adequately vindicated on appeal from final
judgment.
C
The roots of Digital's argument that the settlement with Desktop
gave it a "right not to stand trial altogether" (and that such a
right per se satisfies the third Cohen requirement) are readily
traced to Abney v. United States,
431 U. S. 651 (1977),
where we held that § 1291 entitles a criminal defendant to appeal
an adverse ruling on a double jeopardy claim, without waiting for
the conclusion of his trial. After holding the second Cohen
requirement satisfied by the distinction between the former
jeopardy claim and the question of guilt to be resolved at trial,
we emphasized that the Fifth Amendment not only secures the right
to be free from multi-
sentations about when it first learned of Desktop's use of the
trade name, was so "enmeshed in the factual and legal issues
comprising the plaintiff's cause of action," 437 U. S., at 469
(internal quotation marks omitted), i. e., whether Digital
(willfully) misappropriated the name, as to elude Cohen's second
requirement for collateral order appeal. Indeed, it is possible
that the District Court phrased its order here in equivocal terms
precisely because it assumed that this lack of separability would
preclude any immediate appeal under § 1291.
3We have of course held that the Cohen requirements go to an
appellate court's subject-matter jurisdiction, see Firestone Tire
& Rubber Co. v. Risjord,
449 U. S. 368, 379
(1981), and thus, were it necessary here, we would be obliged to
assess whether each condition was met, without regard to whether
the parties believe it to be satisfied.
870
870 DIGITAL EQUIPMENT CORP. v. DESKTOP DIRECT, INC.
pIe punishments, but by its very terms embodies the broader
principle, "'deeply ingrained in ... the Anglo-American system of
jurisprudence,'" that it is intolerable for" 'the State, with all
its resources ... to make repeated attempts to convict an
individual [defendant], thereby subjecting him to embarrassment,
expense and ordeal and compelling him to live in a continuing state
of anxiety and insecurity.'" 431 U. S., at 661-662 (quoting Green
v. United States,
355
U. S. 184, 187-188 (1957)). We found that immediate appeal was
the only way to give "full protection" to this constitutional right
"not to face trial at all." 431 U. S., at 662, and n. 7; see also
Helstoski v. Meanor,
442 U. S. 500 (1979)
(decision denying immunity under the Speech and Debate Clause would
be appealable under § 1291).
Abney's rationale was applied in Nixon v. Fitzgerald,
457 U. S. 731, 742
(1982), where we held to be similarly appealable an order denying
the petitioner absolute immunity from suit for civil damages
arising from actions taken while petitioner was President of the
United States. Seeing this immunity as a "functionally mandated
incident of the President's unique office, rooted in the ...
separation of powers and supported by our history,"
id., at
749, we stressed that it served "compelling public ends,"
id., at 758, and would be irretrievably lost if the former
President were not allowed an immediate appeal to vindicate this
right to be free from the rigors of trial, see
id., at 752,
n. 32.
Next, in Mitchell v. Forsyth,
472 U. S. 511 (1985), we
held that similar considerations supported appeal under § 1291 from
decisions denying government officials qualified immunity from
damages suits. An "essential attribute,"
id., at 525, of
this freedom from suit for past conduct not violative of clearly
established law, we explained, is the "entitlement not to stand
trial or face the other burdens of litigation,"
id., at 526,
one which would be "effectively lost if a case [were] erroneously
permitted to go to trial," ibid. Echoing the reasoning of Nixon v.
Fitzgerald, supra (and Harlow v. Fitz-
871
gerald,
457 U. S.
800 (1982)), we explained that requiring an official with a
colorable immunity claim to defend a suit for damages would be
"peculiarly disruptive of effective government," and would work the
very "distraction ... from ... dut[y], inhibition of discretionary
action, and deterrence of able people from public service" that
qualified immunity was meant to avoid. See 472 U. S., at 526
(internal quotation marks omitted); see also Puerto Rico Aqueduct
and Sewer Authority v. Metcalf & Eddy, Inc.,
506 U. S. 139, 147 (1993)
(State's Eleventh Amendment immunity from suit in federal court may
be vindicated by immediate appeal under § 1291).
D
Digital puts this case on all fours with Mitchell. It maintains
that it obtained dual rights under the settlement agreement with
Desktop, not only a broad defense to liability but the "right not
to stand trial," the latter being just like the qualified immunity
held immediately appealable in Mitchell. As in Mitchell, that right
must be enforceable on collateral order appeal, Digital asserts, or
an adverse trial ruling will destroy it forever.
While Digital's argument may exert some pull on a narrow
analysis, it does not hold up under the broad scrutiny to which all
claims of immediate appealability under § 1291 must be subjected.
To be sure, Abney and Mitchell are fairly cited for the proposition
that orders denying certain immunities are strong candidates for
prompt appeal under § 1291. But Digital's larger contention, that a
party's ability to characterize a district court's decision as
denying an irreparable "right not to stand trial" altogether is
sufficient as well as necessary for a collateral order appeal, is
neither an accurate distillation of our case law nor an appealing
prospect for adding to it.
Even as they have recognized the need for immediate appeals
under § 1291 to vindicate rights that would be "irretrievably
lost," Richardson-Merrell, 472 U. S., at 431, if re-
872
872 DIGITAL EQUIPMENT CORP. v. DESKTOP DIRECT, INC.
view 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 sense that relief from error can never extend
to rewriting history. Thus, erroneous evidentiary rulings, grants
or denials of attorney disqualification, see, e. g.,
RichardsonMerrell, supra, and restrictions on the rights of
intervening parties, see Stringfellow v. Concerned Neighbors in
Action,
480 U. S.
370 (1987), may burden litigants in ways that are only
imperfectly reparable by appellate reversal of a final district
court judgment, cf. Carroll, 354 U. S., at 406; Parr v. United
States,
351 U. S.
513, 519-520 (1956); and other errors, real enough, will not
seem serious enough to warrant reversal at all, when reviewed after
a long trial on the merits, see Stringfellow, supra. In still other
cases, see Coopers & Lybrand v. Livesay,
437 U. S. 463 (1978), 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 sufficed to meet the third Cohen
requirement. See generally Lauro Lines s.r.l. v. Chasser,
490 U. S. 495, 499 (1989)
("It is always true, however, that 'there is value ... in
triumphing before trial, rather than after it''') (quoting United
States v. MacDonald,
435 U. S. 850, 860, n. 7
(1978)); Richardson-Merrell, supra, at 436.
873
Nor does limiting the focus to whether the interest asserted may
be called a "right not to stand trial" offer much protection
against the urge to push the § 1291 limits. We have, after all,
acknowledged that virtually every right that could be enforced
appropriately by pretrial dismissal might loosely be described as
conferring a "right not to stand trial," see, e. g., Midland
Asphalt, 489 U. S., at 501; Van Cauwenberghe v. Biard, 486 U. S.,
at 524. Allowing immediate appeals to vindicate every such right
would move § 1291 aside for claims that the district court lacks
personal jurisdiction, see Van Cauwenberghe, supra, that the
statute of limitations has run, see 15B C. Wright, A. Miller, &
E. Cooper, Federal Practice and Procedure § 3918.5, and n. 65, p.
521 (1992), that the movant has been denied his Sixth Amendment
right to a speedy trial, see MacDonald, supra, that an action is
barred on claim preclusion principles, that no material fact is in
dispute and the moving party is entitled to judgment as a matter of
law, or merely that the complaint fails to state a claim. Such
motions can be made in virtually every case, see generally id., at
862; United States v. Hollywood Motor Car Co., 458 U. S., at 270,
and it would be no consolation that a party's meritless summary
judgment motion or res judicata claim was rejected on immediate
appeal; the damage to the efficient and congressionally mandated
allocation of judicial responsibility would be done, and any
improper purpose the appellant might have had in saddling its
opponent with cost and delay would be accomplished. Cf.
Richardson-Merrell, supra, at 434 (appeals from "entirely proper"
decisions impose the same costs as do appeals from "injudicious"
ones). Thus, precisely because candor forces us to acknowledge that
there is no single, "obviously correct way to characterize" an
asserted right, Lauro Lines, supra, at 500, we have held that §
1291 requires courts of appeals to view claims of a "right not to
be tried" with skepticism, if not a jaundiced eye. Cf. Van
Cauwenberghe, supra, at 524-525.
874
874 DIGITAL EQUIPMENT CORP. v. DESKTOP DIRECT, INC.
In Midland Asphalt, for example, we had no trouble in
dispatching a defendant's claim of entitlement to an immediate
appeal from an order denying dismissal for alleged violation of
Federal Rule of Criminal Procedure 6(e), forbidding disclosure of
secret grand jury information. Noting" 'a crucial distinction
between a right not to be tried and a right whose remedy requires
the dismissal of charges,'" 489 U. S., at 801, quoting Hollywood
Motor Car, supra, at 269, we observed that Rule 6(e) "contains no
hint," 489 U. S., at 802, of an immunity from trial, and we
contrasted that Rule with the Fifth Amendment's express provision
that "[n]o person shall be held to answer" for a serious crime
absent grand jury indictment. Only such an "explicit statutory or
constitutional guarantee that trial will not occur," we suggested,
id., at 801, could be grounds for an immediate appeal of
right under § 1291.4
The characterization issue surfaced again (and more ominously
for Digital, see infra, at 880) in Lauro Lines, supra, where a
defendant sought to appeal under § 1291 from an order denying
effect to a contractual provision that a Neapolitan court would be
the forum for trying all disputes arising from the parties'
cruise-ship agreement. While we realized of course that the value
of the forum-selection clause would be diminished if the defendant
could be tried before appealing, we saw the contractual right to
limit trial to an Italian forum as "different in kind" from the
entitlement to "avoid
4 That reasoning echoed our decision one Term earlier in Van
Cauwenberghe v. Biard,
486 U. S. 517 (1988),
where we unanimously rejected the contention that a defendant
brought to the United States under an extradition treaty could
appeal immediately under § 1291 from a decision denying a motion to
dismiss based on the principle of "specialty," which he asserted
immunized him from service of civil process in the United States.
Even if such an immunity might supply a basis for vacating a
judgment on appeal, we held, the right "should be characterized as
the right not to be subject to a binding judgment of the court,"
and so understood, it could therefore "be effectively vindicated
following final judgment." Id., at 526-527.
875
suit altogether" that Abney and Mitchell held could be
"adequately vindica[ted]" only on immediate appeal. 490 U. S., at
501.
E
As Digital reads the cases, the only things standing in the way
of an appeal to perfect its claimed rights under the settlement
agreement are the lone statement in Midland Asphalt, to the effect
that only explicit statutory and constitutional immunities may be
appealed immediately under § 1291, and language (said to be stray)
repeated in many of our collateral order decisions, suggesting that
the "importance" of the right asserted is an independent condition
of appealability. See Brief for Petitioner 28-34. The first,
Digital explains, cannot be reconciled with Mitchell's holding,
that denial of qualified immunity (which we would be hard pressed
to call "explicitly ... guarantee[d]" by a particular
constitutional or statutory provision) is a collateral order under
§ 1291; as between Mitchell and the Midland Asphalt dictum, Digital
says, the dictum must give way. As for the second obstacle, Digital
adamantly maintains that "importance" has no place in a doctrine
justified as supplying a gloss on Congress's "final decision"
language.
1
These arguments miss the mark. First, even if Mitchell could not
be squared fully with the literal words of the Midland Asphalt
sentence (but cf. Lauro Lines, 490 U. S., at 499, noting that
Midland Asphalt was a criminal case and Mitchell was not), that
would be only because the qualified immunity right is inexplicit,
not because it lacks a good pedigree in public law. Indeed, the
insight that explicitness may not be needed for jurisdiction
consistent with § 1291 only leaves Digital with the unenviable task
of explaining why other rights that might fairly be said to include
an (implicit) "right to avoid trial" aspect are less in need of
protection by immediate review, or more readily vindicated on
appeal from final
876
876 DIGITAL EQUIPMENT CORP. v. DESKTOP DIRECT, INC.
judgment, than the (claimed) privately negotiated right to be
free from suit. It is far from clear, for example, why § 1291
should bless a party who bargained for the right to avoid trial,
but not a party who "purchased" the right by having once prevailed
at trial and now pleads res judicata, see In re Corrugated
Container Antitrust Litigation v. Willamette Industries, Inc.,
694 F.2d
1041 (CA5 1983); or a party who seeks shelter under the statute
of limitations, see, e.
g., United States v. Weiss,
7 F.3d
1088 (CA2 1993), which is usually understood to secure the same
sort of "repose" that Digital seeks to vindicate here, see Brief
for Petitioner 25; or a party not even subject to a claim on which
relief could be granted. See also Cobbledick, 309 U. S., at 325
("Bearing the discomfiture and cost of a prosecution for crime even
by an innocent person is one of the painful obligations of
citizenship"); Firestone Tire & Rubber Co. v. Risjord,
449 U. S. 368, 378 (1981)
("[P]otential harm" should be compared to "the harm resulting from
other interlocutory orders that may be erroneous") (internal
quotation marks omitted).
Digital answers that the status under § 1291 of these other
(seemingly analogous) rights should not give us pause, because the
text and structure of this particular settlement with Desktop
confer what no res judicata claimant could ever have, an express
right not to stand trial. 5 But we cannot attach much significance
one way or another to the supposed clarity of the agreement's terms
in this case. To ground a ruling here on whether this settlement
agreement in terms confers the prized "right not to stand trial" (a
point Desktop by no means concedes) would flout our own frequent
admonitions, see, e. g., Van Cauwenberghe, 486 U. S., at 529, that
availability of collateral order appeal must be determined at
5 But cf. Home Building & Loan Assn. v. Blaisdell,
290 U. S. 398, 429430
(1934) (" '[T]he laws which subsist at the time and place of the
making of a contract ... enter into and form a part of it, as if
they were expressly referred to ... in its terms''') (quoting Von
Hoffman v. City of Quincy, 4 Wall. 535, 550 (1867)).
877
a higher level of generality. Indeed, just because it would be
the rare settlement agreement that could not be construed to
include (at least an implicit) freedom-from-trial "aspect," we
decide this case on the assumption that if Digital prevailed here,
any district court order denying effect to a settlement agreement
could be appealed immediately. (And even if form were held to
matter, settlement agreements would all include "immunity from
suit" language a good deal plainer than what Digital relies on
here, see Tr. of Oral Arg. 44.) See also Van Cauwenberghe, supra,
at 524 ("For purposes of determining appealability, ... we will
assume, but do not decide, that petitioner has presented a
substantial claim" on the merits).6
2
The more fundamental response, however, to the claim that an
agreement's provision for immunity from trial can
6 Similarly, we must reject as patently irrelevant for § 1291
purposes Digital's repeated claims that the District Court applied
the "wrong legal standard" in granting Desktop's motion to vacate
the dismissal order. If Digital is right that a settlement
agreement confers a contractual "immunity from suit," that
protection is no more "irretrievably lost," and thus no more
appealable under § 1291, when a district court applies an erroneous
legal standard than when it commits a plain vanilla mistake in
misapplying the proper standard.
Nor do we accept uncritically Digital's novel and highly
convenient contention that such a right to be free from trial is,
either in this case or generally, more valuable than other rights
conferred by a settlement agreement. See infra, at 881-882. While
Digital emphasizes that, under the terms of the settlement here,
Desktop is owed a larger sum for "dismissal of the above referenced
lawsuit and a waiver of all damages" than for "all rights to the
Trademarks," that proves little, if anything. To compare those two
amounts is to place the bargained-for damages waiver on the wrong
side of the ledger: that (typically quite valuable) right is
precisely the sort that is fully vindicable on post judgment
appeal. Moreover, even if a high price tag might otherwise be an
indicator of a right's "importance" to the benefited party, we
cannot ignore that settlement agreement "prices" may be structured
for tax, accounting, and business strategy reasons that have
nothing to do with their true value to the party.
878
878 DIGITAL EQUIPMENT CORP. v. DESKTOP DIRECT, INC.
distinguish it from other arguable rights to be trial free is
simply that such a right by agreement does not rise to the level of
importance needed for recognition under § 1291. This, indeed, is
the bone of the fiercest contention in the case. In disparaging any
distinction between an order denying a claim grounded on an
explicit constitutional guarantee of immunity from trial and an
order at odds with an equally explicit right by private agreement
of the parties, Digital stresses that the relative "importance" of
these rights, heavily relied upon by the Court of Appeals, is a
rogue factor. No decision of this Court, Digital maintains, has
held an order unappealable as "unimportant" when it has otherwise
met the three Cohen requirements, and whether a decided issue is
thought "important," it says, should have no bearing on whether it
is "final" under § 1291.
If "finality" were as narrow a concept as Digital maintains,
however, the Court would have had little reason to go beyond the
first factor in Cohen, see also United States v. 243.22 Acres of
Land in Babylon, Suffolk Cty., 129 F.2d 678, 680 (CA2 1942) (Frank,
J.) (" 'Final' is not a clear one-purpose word"). And if
"importance" were truly aberrational, we would not find it featured
so prominently in the Cohen opinion itself, which describes the
"small class" of immediately appealable prejudgment decisions in
terms of rights that are "too important to be denied review" right
away, see 337 U. S., at 546. To be sure, Digital may validly
question whether "importance" is a factor "beyond" the three Cohen
conditions or whether it is best considered, as we have sometimes
suggested it should be, in connection with the second,
"separability," requirement, see, e. g., Coopers & Lybrand, 437
U. S., at 468; Lauro Lines, 490 U. S., at 498, but neither enquiry
could lead to the conclusion that "importance" is itself
unimportant. To the contrary, 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
879
through rigorous application of a final judgment requirement.
See generally Van Cauwenberghe, supra, at 524 (" '[T]he substance
of the rights entailed, rather than the advantage to a litigant in
winning his claim sooner,'" is dispositive) (quoting MacDonald, 435
U. S., at 860, n. 7); Lauro Lines, supra, at 502-503 (SCALIA, J.,
concurring).
While there is no need to decide here that a privately conferred
right could never supply the basis of a collateral order appeal,
but cf. n. 7, infra (discussing 9 U. S. C. § 16), there are surely
sound reasons for treating such rights differently from those
originating in the Constitution or statutes. When a policy is
embodied in a constitutional or statutory provision entitling a
party to immunity from suit (a rare form of protection), there is
little room for the judiciary to gainsay its "importance."
Including a provision in a private contract, by contrast, is barely
a prima facie indication that the right secured is "important" to
the benefited party (contracts being replete with boilerplate), let
alone that its value exceeds that of other rights not embodied in
agreements
(e. g., the right to be free from a second suit
based on a claim that has already been litigated), or that it
qualifies as "important" in Cohen's sense, as being weightier than
the societal interests advanced by the ordinary operation of final
judgment principles. Where statutory and constitutional rights are
concerned, "irretrievabl[e] los[s]" can hardly be trivial, and the
collateral order doctrine might therefore be understood as
reflecting the familiar principle of statutory construction that,
when possible, courts should construe statutes (here § 1291) to
foster harmony with other statutory and constitutional law, see, e.
g., Ruckelshaus v. Monsanto Co.,
467 U. S. 986, 1018
(1984); United States ex rel. Milwaukee Social Democratic
Publishing Co. v. Burleson,
255 U. S. 407, 437-438
(1921) (Holmes, J., dissenting). But it is one thing to say that
the policy of § 1291 to avoid piecemeal litigation should be
reconciled with policies embodied in other statutes or the
Constitution, and quite another to suggest that this
880
880 DIGITAL EQUIPMENT CORP. v. DESKTOP DIRECT, INC.
public policy may be trumped routinely by the expectations or
clever drafting of private parties.7
Indeed, we do not take issue with the Tenth Circuit's
observation that this case shares more in common with Lauro Lines
than with Mitchell. It is hard to see how, for purposes of § 1291,
the supposedly explicit "right not to be tried" element of the
settlement agreement in this case differs from the unarguably
explicit, privately negotiated "right not to be tried in any forum
other than Naples, Italy," in that one. There, no less than here
(if Digital reads the settlement agreement correctly), one private
party secured from another a promise not to bring suit for reasons
that presumably included avoiding the burden, expense, and perhaps
embarrassment of a certain class of trials (all but Neapolitan ones
or, here, all prompted by Desktop). Cf. Lauro Lines, supra, at 501
(asserted right was "surely as effectively vindicable" on final
judgment appeal as was the right in Van Cauwenberghe).8 The losing
argument in Lauro Lines should be a losing argument here.
7 This is not to say that rights originating in a private
agreement may never be important enough to warrant immediate
appeal. To the contrary, Congress only recently enacted a statute,
102 Stat. 4671, see 9 U. S. C. § 16 (1988 ed., Supp. IV),
essentially providing for immediate appeal when a district court
rejects a party's assertion that, under the Arbitration Act, a case
belongs before a commercial arbitrator and not in court, a measure
predicted to have a "sweeping impact," 15B C. Wright, A. Miller,
& E. Cooper, Federal Practice and Procedure §3914.17, p. 11
(1992); see generally
id., at 7-38. That courts must give
full effect to this express congressional judgment that particular
policies require that private rights be vindicable immediately,
however, by no means suggests that they should now be more ready to
make similar judgments for themselves. Congress has expressed no
parallel sentiment, to the effect that settlementagreement rights
are, as a matter of federal policy, similarly "too important" to be
denied immediate review.
S To be fair, the Lauro Lines opinion does contain language
that, taken alone, might lend succor to petitioner's claim, see 490
U. S., at 501 ("[A]n entitlement to avoid suit is different in kind
from an entitlement to be sued only in a particular forum"), but
the opinion is not easily read as
881
Nor are we swayed by Digital's last-ditch effort to come within
Cohen's sense of "importance" by trying to show that
settlement-agreement "immunities" merit first-class treatment for
purposes of collateral order appeal, because they advance the
public policy favoring voluntary resolution of disputes. It defies
common sense to maintain that parties' readiness to settle will be
significantly dampened (or the corresponding public interest
impaired) by a rule that a district court's decision to let
allegedly barred litigation go forward may be challenged as a
matter of right only on appeal from a judgment for the plaintiff's
favor.
III A
Even, finally, if the term "importance" were to be exorcised
from the Cohen analysis altogether, Digital's rights would remain
"adequately vindicable" or "effectively reviewable" on final
judgment to an extent that other immunities, like the right to be
free from a second trial on a criminal charge, are not. As noted
already, experience suggests that freedom from trial is rarely the
sine qua non (or "the essence," see Van Cauwenberghe, 486 U. S., at
525) of a negotiated settlement agreement. Avoiding the burden of a
trial is no doubt a welcome incident of out-of-court dispute
resolution (just as it is for parties who prevail on pretrial
motions), but in the run-of-the-mill cases this boon will rarely
compare with the "'embarrassment'" and "'anxiety'" averted by a
successful double jeopardy claimant, see Abney, 431 U. S., at
661-662, or the" 'distraction from ... dut[y],'" Mitchell, 472
endorsing Digital's claim that a privately negotiated right not
to stand trial would be immediately appealable. To the contrary,
Lauro Lines expressly adopted (at least for criminal appeals)
Midland Asphalt's limitation that "'[a] right not to be tried in
the sense relevant to the Cohen exception rests upon an explicit
statutory or constitutional guarantee,'" 490 U. S., at 499, quoting
489 U. S., at 801, and stated that the collateral order doctrine
operates "[s]imilarly" in civil cases, 490 U. S., at 499.
882
882 DIGITAL EQUIPMENT CORP. v. DESKTOP DIRECT, INC.
u. S., at 526, avoided by qualified immunity. Judged within the
four corners of the settlement agreement, avoiding trial probably
pales in comparison with the benefit of limiting exposure to
liability (an interest that is fully vindicable on appeal from
final judgment). In the rare case where a party had a special
reason, apart from the generic desire to triumph early, for having
bargained for an immunity from trial, e.
g., an unusual
interest in preventing disclosure of particular information, it may
seek protection from the district court.
The case for adequate vindication without immediate appeal is
strengthened, moreover, by recognizing that a settling party has a
source of recompense unknown to trial immunity claimants dependent
on public law alone. The essence of Digital's claim here is that
Desktop, for valuable consideration, promised not to sue, and we
have been given no reason to doubt that Utah law provides for the
enforcement of that promise in the same way that other rights
arising from private agreements are enforced, through an action for
breach of contract. See, e.
g., VanDyke v. Mountain Coin
Machine Distributors, Inc., 758 P. 2d 962 (Utah App. 1988)
(upholding compensatory and punitive damages award against party
pursuing suit in the face of settlement agreement); see generally
5A A. Corbin, Corbin on Contracts § 1251 (1964); cf. Yockey v.
Horn,
880 F.2d
945, 947 (CA7 1989) (awarding damages for breach of settlement
agreement promise not to "participate in any litigation" against
plaintiff); see also Richardson-Merrell, 472 U. S., at 435, and n.
2 (existence of alternative fora for vindicating asserted rights is
relevant to appealability under § 1291). And as for Digital's
suggestion, see Brief for Petitioner 25, that Desktop is using this
proceeding not to remedy a fraud but merely to renege on a promise
because it now thinks it should have negotiated a better deal, when
a party claims fraud or otherwise seeks recision of a settlement
for such improper purposes, its opponent need not rely on a court
of appeals for protection. See
883
Fed. Rule Civ. Proc. 11 (opponent may move for sanction when
litigation is motivated by an "improper purpose, such as ...
unnecessary delay or needless increase in the cost of
litigation").
B
In preserving the strict limitations on review as of right under
§ 1291, our holding should cause no dismay, for the law is not
without its safety valve to deal with cases where the contest over
a settlement's enforceability raises serious legal questions taking
the case out of the ordinary run. While Digital's insistence that
the District Court applied a fundamentally wrong legal standard in
vacating the dismissal order here may not be considered in deciding
appealability under § 1291, see n. 6, supra, it plainly is relevant
to the availability of the discretionary interlocutory appeal from
particular district court orders "involv[ing] a controlling
question of law as to which there is substantial ground for
difference of opinion," provided for in § 1292(b) of Title 28.
Indeed, because we suppose that a defendant's claimed entitlement
to a privately negotiated "immunity from suit" could in some
instances raise "a controlling question of law ... [which] ... may
materially advance the ultimate termination of the litigation," the
discretionary appeal provision (allowing courts to consider the
merits of individual claims) would seem a better vehicle for
vindicating serious contractual interpretation claims than the
blunt, categorical instrument of § 1291 collateral order appeal.
See Van Cauwenberghe, 486 U. S., at 529-530 (internal quotation
marks omitted); Coopers & Lybrand, 437 U. S., at 474-475.9
9We recognize that § 1292 is not a panacea, both because it
depends to a degree on the indulgence of the court from which
review is sought and because the discretion to decline to hear an
appeal is broad, see, e.
g., Coopers & Lybrand, 437 U.
S., at 475 (serious docket congestion may be adequate reason to
support denial of certified appeal). On the other hand, we find
nothing in the text or purposes of either statute to justify the
concern, expressed here by Digital, that a party's request to
appeal under
884
884 DIGITAL EQUIPMENT CORP. v. DESKTOP DIRECT, INC.
IV
The words of § 1291 have long been construed to recognize that
certain categories of prejudgment decisions exist for which it is
both justifiable and necessary to depart from the general rule,
that "the whole case and every matter in controversy in it [must
be] decided in a single appeal." McLish v. Roff,
141 U. S. 661, 665-666
(1891). But denying effect to the sort of (asserted) contractual
right at issue here is far removed from those immediately
appealable decisions involving rights more deeply rooted in public
policy, and the rights Digital asserts may, in the main, be
vindicated through means less disruptive to the orderly
administration of justice than immediate, mandatory appeal. We
accordingly hold that a refusal to enforce a settlement agreement
claimed to shelter a party from suit altogether does not supply the
basis for immediate appeal under § 1291. The judgment of the Court
of Appeals is therefore
Affirmed.
§ 1292(b) might operate, practically or legally, to prejudice
its claimed right to immediate appeal under § 1291.
885
The next page is purposely numbered 1001. The numbers between
884 and 1001 were intentionally omitted, in order to make it
possible to publish the orders with
permanent page numbers,
thus making the official citations available upon publication of
the preliminary prints of the United States Reports.
886
MARCH 28,1994 Certiorari Granted-Vacated and Remanded
No. 92-6259. ADAMS
V. EVATT, COMMISSIONER, SOUTH CAROLINA
DEPARTMENT OF CORRECTIONS, ET AL. C. A. 4th Cir. Petition for
rehearing granted, and the order entered June 14, 1993 [508 U. S.
974], denying the petition for writ of certiorari is vacated.
Motion of petitioner for leave to proceed in forma pauperis
granted. Certiorari granted, judgment vacated, and case remanded
for further consideration in light of Sullivan v. Louisiana,
508 U. S. 275
(1993). Reported below:
965 F.2d
1306.
No. 92-8656. AVAKIAN
V. UNITED STATES. C. A. 9th Cir.
Motion of petitioner for leave to proceed in forma pauperis
granted. Certiorari granted, judgment vacated, and case remanded
for further consideration in light of United States v. Granderson,
ante, p. 39. Reported below:
980 F.2d
738.
No. 93-753. NORTH CAROLINA
V. BRYANT; and NORTH CAROLINA
V. WILLIAMS. Sup. Ct. N. C. Motions of respondents Marvin
Earl Williams and Kenneth Michael Bryant for leave to proceed in
forma pauperis granted. Certiorari granted, judgments vacated, and
cases remanded for further consideration in light of Victor v.
Nebraska, ante, p. 1. Reported below: 334 N. C. 333, 432 S. E. 2d
291 (first case); 334 N. C. 440, 434 S. E. 2d 588 (second
case).
No. 93-6913. HILL
V. UNITED STATES. C. A. 5th Cir. Motion
of petitioner for leave to proceed in forma pauperis granted.
Certiorari granted, judgment vacated, and case remanded for further
consideration in light of United States v. Granderson, ante, p. 39.
Reported below:
5 F.3d
528.
Miscellaneous Orders
No. D-1338. IN RE DISBARMENT OF SACKS. Disbarment entered. [For
earlier order herein, see 510 U. S. 1034.]
No. D-1341. IN RE DISBARMENT OF CULLEN. Disbarment entered. [For
earlier order herein, see 510 U. S. 1035.]
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