Government pleads with high court to take Microsoft case

In a scheduled filing with the court, the Department of Justice and 19 states argued that the case warrants direct consideration, bypassing an appeals court.

The government won a stunning early victory in June when U.S. District Judge Thomas Penfield Jackson ordered that Microsoft be broken into two companies: one for operating systems and another for applications.

But the government is in a more tenuous position with its appeals argument, say legal experts.

"It would be a serious blow to the government should the Supreme Court decide not to take the case at this time," said Bill Kovacic, a professor at the George Washington University School of Law. The antitrust expert gave the government no better than a 50-50 chance of winning a direct appeal.

In April, Jackson ruled that Microsoft is a dangerous monopoly that has continually violated U.S. antitrust law. But after his final judgment in June, Jackson stayed--or put on hold--restrictions to Microsoft's business practices that would have gone into effect Sept. 5. He had earlier stayed the breakup order.

So now, the government's dilemma is twofold.

First, if the Supreme Court rejects the direct appeal and sends it back to the U.S. Court of Appeals for the District of Columbia Circuit, there won't be any restraint on Microsoft's behavior for at least another year.

The government's other dilemma is more complex. The appeals court has overturned two previous rulings against Microsoft and would appear to be favorable appeals venue for Microsoft, University of Baltimore Law School professor Bob Lande said.

"There is no question Microsoft believes it can prevail with the appeals court and that the government would like to avoid the case being heard there," he said.

Kovacic said the government for obvious reasons could not make that argument but prudently has focused on the broader issue: the merits of direct appeal.

"Because immediate consideration of this appeal is of general public importance in the administration of justice, the Solicitor General, on behalf of the United States, urges the Court to note probable jurisdiction under the Expediting Act," government lawyers wrote in today's brief.

The Expediting Act allows cases of national importance to skip the regular appeals process and move directly to the Supreme Court.

"The suit has immense importance to our national economy," the brief states. "It is especially important to the rapidly developing high-technology sectors, which need to know how they will be affected by the remedies resulting from this case?The public interest requires prompt and final resolution of the issues on appeal."

To help bolster the government's position, three groups opposing Microsoft--yesterday, ProComp and today, the Software & Information Industry Association (SIIA) and the Computer & Communications Industry Association--filed friend-of-court briefs asking that the Supreme Court accept the expedited appeal.

SIIA and Microsoft have been at odds since the trade group filed an earlier brief, which eventually led the software maker to pull out of the group. In the last days of the trial, another SIIA filing advocating a three-way split caught Jackson's attention and caused a stir during the final day in court.

In a brief filed last month, Microsoft argued that mistakes made at trial and the voluminous court record, among other factors, warrant a review by the appeals court. The company reiterated that position today.

"We continue to believe that the Supreme Court would benefit from an initial review of this very complex and technical appeal by the court of appeals," Microsoft spokesperson Jim Cullinan said. "We look forward to responding more fully in our filing next week."

But in its brief, the government dismissed those considerations, pointing out the "United States recognizes that the need for direct appeal arises infrequently and does not lightly seek it."

In the last 26 years, the government has only sough two direct appeals, including the AT&T antitrust case.

"The only baseline is the AT&T case, and maybe you can argue the breakup of the Bell system has greater and more obvious impact on every American," Howard University Law School professor Andy Gavil said.

"But this case isn't far behind in essentially how we will work with our desktops and office operating systems for years to come. How could this not be that case? And if that is not this case, then the Expediting Act is for all intents and purposes a dead letter."

But Kovacic said his colleagues are not convinced the Supreme Court will take the case at this time.

"In the last three or four months I've talked to about 100 (lawyers) who do Supreme Court practice who are not being paid by one of the contestants, and not one of them has said it was more likely than not the Supreme Court would take the case," he said. "Consistently they said, 'The court simply won't take it.'"

One of the factors benefiting Microsoft is the appeals court's position in the case. The day Microsoft filed its appeal, the appeals court agreed to hear the case en banc, or before the entire panel, minus those disqualified for conflicts of interest.

"The fact that the court of appeals has now positioned itself to take the case en banc, (in a) single stage of intermediate review, and then (send the case) on its way to the Supreme Court, that tips things in favor of there not being a fast-track review" by the high court, Kovacic said.

Microsoft is expected to respond Aug. 22 to today's government brief.

The Supreme Court is expected to rule on jurisdiction by early October. If it chooses to take the case directly, a ruling is expected by next June. Otherwise the case goes back to the appeals court, which could rule as early as nine months later but more likely not before a year.