dissenting:
The majority concludes that this court has jurisdiction over Sears’s appeal from the district court’s order denying summary judgment based upon the collateral order doctrine. Because I believe that the collateral order doctrine is not applicable, I respectfully dissent.
Ordinarily, interlocutory orders are not appealable. See 28 U.S.C. § 1291. The *1043Supreme Court recognized a narrow exception to this rule in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Cohen estab-. lished the collateral order doctrine, which provides that an interlocutory order may be appealed if it conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment. See, e.g., Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 431, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985).
Sears argues that the Plaintiffs executed valid releases of all claims in exchange for generous severance benefits. Based upon these releases, Sears asserted a right not to be sued by the Plaintiffs and moved for summary judgment. The district court denied summary judgment. The majority holds that this court has jurisdiction to review the district court’s order denying Sears’s motion for summary judgment because the order 1) conclusively determined Sears’s right to avoid litigation based upon the releases, 2) resolved an important question separate and distinct from the merits of the ADEA claims, and 3) is effectively unreviewable on appeal from final judgment because the litigation will already have taken place. See supra at 1039.
The majority’s conclusion is supported by two decisions from other circuits. See Grillet v. Sears, Roebuck & Co., 927 F.2d 217 (5th Cir.1991) (exercising jurisdiction based on the collateral order doctrine under circumstances almost identical to the case at bar); Janneh v. GAF Corp., 887 F.2d 432 (2d Cir.1989) (applying the collateral order doctrine to review district court’s refusal to enforce settlement agreement which plaintiff allegedly breached by maintaining his lawsuit). While these cases are on point, their holdings violate the Supreme Court’s mandate that the collateral order doctrine be construed narrowly.
I find two recent Supreme Court decisions to be instructive. In Midland Asphalt Corp. v. United States, 489 U.S. 794, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989), the Court held that a criminal defendant was not entitled to an interlocutory appeal from the district court’s order denying a motion to dismiss a grand jury indictment on the ground that the prosecution had engaged in illegal public disclosure. It rejected the defendant’s claim (which was similar to the claim in this case) that it had a right not to be tried and thereby satisfied the three requirements of the Cohen collateral order doctrine. “A right not to be tried in the sense relevant to the Cohen exception rests upon an explicit statutory or constitutional guarantee that trial will not occur — as in the Double Jeopardy Clause ... or the Speech or Debate Clause....” Id. at 801, 109 S.Ct. at 1499 (citations omitted) (emphasis added).
In Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989), a civil case, the Supreme Court affirmed the Second Circuit’s refusal to hear an interlocutory appeal from the district court’s order denying a motion to dismiss based upon a forum selection clause. The Court noted that the defendant had bargained for and received the right not to be sued except in Italy. Nevertheless, the Court held that:
Petitioner’s claim that it may be sued only in Naples, while not perfectly secured by appeal after final judgment, is adequately vindicable at that stage— surely as effectively vindicable as a claim that the trial court lacked personal jurisdiction over the defendant — and hence does not fall within the third prong of the collateral order doctrine.
Id. at 501, 109 S.Ct. at 1979.
Justice Scalia’s concurring opinion in Lauro Lines is particularly instructive.
While it is true ... that the “right not to be sued elsewhere than in Naples” is not fully vindicated — indeed, to be utterly frank, is positively destroyed — by permitting the trial to occur and reversing its outcome, that is vindication enough because the right is not sufficiently important to overcome the policies militating against interlocutory appeals. We have made that judgment when the right not to be tried in a particular court has been created through jurisdictional limitations established by Congress or international treaty.... The same judgment applies — if anything, a fortiori — when *1044the right has been created by private agreement.
Id. at 502-03, 109 S.Ct. at 1980.
I conclude that Sears’s asserted right not to be sued based upon private agreements — the releases entered into by the Plaintiffs — is not sufficiently important to justify an interlocutory appeal.
The policies underlying the general rule that interlocutory orders are not appealable are important. The majority’s approach creates yet another category of cases where interlocutory appeals are permitted. I would not create an exception for cases like this one.
I would hold that this court does not have jurisdiction over Sears’s appeal.