Yesterday, in 17 pages of legal briefs, the Justice Department asked U.S. District Judge Thomas Penfield Jackson to withhold ruling on a Microsoft motion to stay restrictions on its business practices set to go into effect in about 84 days.
The government wants to force Microsoft to file its larger appeal of the case first before granting the stay request in a maneuver favoring an expedited appeal to the Supreme Court.
Microsoft responded this morning, charging the government was trying to sidestep the law so it can petition the Supreme Court to take the case directly.
"Upon consideration of defendant Microsoft's motion for stay pending appeal, the plaintiffs' response hereto, and Microsoft's reply, the Court being of the opinion that consideration of a stay pending appeal is premature in that no notice of appeal has been filed, it is this 13th day of June, 2000, ordered that the Court reserves ruling on Microsoft's motion until such time that a timely notice of appeal is filed," Jackson wrote today.
Jackson's decision shocked George Washington University School of Law antitrust professor Bill Kovacic. "The effect of this is to tell the government, 'I'm with you all the way, and I am going to do whatever you want to move the entire package to the Supreme Court,'" he said.
The issue before the court is complicated and potentially could rob Microsoft of a chance to get a ruling on the sweeping business restrictions before they go into effect, Kovacic said.
"What the government is really asking is they're trying to enlist Jackson's help depriving Microsoft the opportunity to stay the interim remedies," he explained. "They want Microsoft to follow a process that virtually ensures that the interim remedies go into effect before any tribunal could review them."
After Jackson last week ordered that Microsoft be broken into separate operating systems and software applications companies, the company filed a motion to stay additional business restrictions set to go into effect 90 days later. Jackson, who automatically stayed the breakup order pending appeal, was expected to reject the motion.
Microsoft would then file a preliminary appeal asking the U.S. Court of Appeals for the District of Columbia Circuit to stay some or part of the restrictions pending its larger appeal. At the same time, the government would like to expedite Microsoft's larger appeal of the case to the Supreme Court, sidestepping the local level, but cannot do so until the software company formally files the appeal. It has up to 60 days to do so.
"The government has put itself in a bit of a procedural box here," Kovacic said. "It is evident they did not carefully think through the expedited review mechanism (to the Supreme Court) and the appellate rules that govern a review of a final order from the district court. They don't want the court of appeals to touch this matter at all, but there is no mechanism in the Expediting Act that would ensure a Supreme Court review before the interim remedies take effect."
Jackson and the government have good reason to avoid the local appellate court. Twice before, in 1995 and 1998, the appeals court sided with Microsoft against the government. The second time brought Jackson before the ire of the appeals panel, which admonished him for issuing an order compelling Microsoft to sell Windows 95 without Internet Explorer.
Rich Gray, an intellectual property attorney with Outside General Counsel Silicon Valley in Menlo Park, Calif., had little sympathy for the government's position.
"It would appear Microsoft is working fairly within the rules, but the government sees this is a burden taking the case directly to the Supreme Court," he said. "That's tough luck for the government."
Had the government been playing fairly, it would have asked Jackson to suspend the conduct restrictions while the Supreme Court decided whether it would accept the appeal and for as long as it would need to review an appeal, Kovacic said. The government instead "made this astonishing request that Jackson join them in forestalling Microsoft's exercise of a right given in the existing rules."