Both sides have fought a bitter contest for tactical advantage this week as the software giant wrestles with the government over where Microsoft's appeal will be heard. Microsoft wants its appeal to be handled by the U.S. Court of Appeals for the District of Columbia Circuit here, but the government has asked U.S. District Judge Thomas Penfield Jackson to certify the case for direct appeal to the Supreme Court.
In its filing today, the latest in a long string of rebuttals and replies, the government blasted Microsoft's argument that the states' portion of the case cannot be appealed directly to the Supreme Court.
Microsoft on Monday is expected to respond to the government's petition, which is authorized by the federal Expediting Act. Many legal experts predict Jackson will certify the direct appeal, which the Supreme Court is not obligated to accept.
In a brief filed yesterday, Microsoft asked the appeals court not to cede jurisdiction over the case, arguing, among other things, that the Expediting Act does not cover the states' portion of the case.
The Justice Department (DOJ) and 19 states in 1998 jointly filed separate cases against Microsoft, which Jackson treated as one. But Microsoft argues that the cases are separate and that the Expediting Act would apply only to the DOJ's case anyway. The argument is important because it could give the appeals court reason to retain some jurisdiction, even if the appeal is certified for direct review by the Supreme Court.
But in its brief today the government made several arguments why the Expediting Act applies to both cases, refuting Microsoft's contention that the cases are wholly separate and cannot be treated as one.
A source close to the government said "the cases are consolidated and have been since the beginning of the trial."
"Microsoft is incorrect that its appeal in the States' case will remain in this Court if the district court certifies the Final Judgment for immediate appeal to the Supreme Court," government lawyers wrote today.
"Because the district court entered but one Final Judgment, the entire Final Judgment should be certified for direct appeal under the terms of the statute and the Supreme Court's rules," the brief says.
But the matter may not be as simple as the government would like, and Microsoft's contention that the Expediting Act does not cover the states' portion of the case could be valid, legal experts say.
"The phrase we use to describe this sort of problem is 'supplemental jurisdiction,' or whether or not the Expediting Act authorizes direct appeal not only of federal antitrust claims but also supplemental state law claims," said Andy Gavil, an antitrust professor at Howard University here.
"The Expediting Act is silent on supplemental jurisdiction or consolidation with other cases where the federal government is not the complainant," said Gavil, who is an expert in procedural issues. "It's a totally unanswerable question."
The problem is that the Expediting Act, which was passed in 1974, predates the 1976 amendment that allows states to bring cases under federal antitrust law.
Even so, "it would be appropriate for the Supreme Court to decide the scope of the Expediting Act, not the court of appeals," Gavil said. "Microsoft's argument could backfire on it, because it might highlight to the appeals court why they should stay out of it. The appeals court doesn't want to be in the position of telling the Supreme Court of what the scope of the Expediting Act is."
As the two sides bicker over procedural issues like this one, they decrease the likelihood the Supreme Court would even accept the case without first giving the appeals court a crack at it, said Bill Kovacic, a professor at the George Washington University School of Law.
"The Supreme Court likes to deal with two or three straightforward issues in a case," he said. "The more procedural baggage there is, the more unlikely the Supreme Court will take the case directly."