The U.S. Court of Appeals for the District of Columbia Circuit wastes no time moving on Microsoft's appeal, issuing an order today requiring that Microsoft file a proposed appeals schedule by Oct. 2.
Just hours after the U.S. Supreme Court delivered the government a blow by refusing to take the case directly, the Court of Appeals took complete jurisdiction in the case. Most legal experts expected that the appellate court wouldn't take action until later in the week.
Microsoft filed the appeal following U.S. District Judge Thomas Penfield Jackson's order to break the company in two in June.
"You normally wouldn't see any action until the Supreme Court returns the court record to the Court of Appeals, which would happen in a few days," said Andy Gavil, an antitrust professor at Howard University Law School.
Under the schedule set by the court, Microsoft has until 4 p.m. Oct. 2 to file "a motion to govern further proceedings herein, including a proposed briefing schedule and format."
The government has until 4 p.m. Oct. 5 to file a response to Microsoft's proposal. Microsoft will then be able to file a reply by Oct. 10.
The appeals court's swift action stunned some legal experts, who noted from the start a willingness to take aggressive action in the case.
"I'm surprised they moved this fast. Same day. Wow," said Bob Lande an antitrust professor with the University of Baltimore School of Law.
The appeals court had offered to expedite a review of the case and to hear it en banc, or before the full panel of judges, minus those recused for conflicts of interest.
But once the government petitioned the Supreme Court to take the case directly, the appeals court temporarily ceded jurisdiction in the case. With the high court's decision today to send the case back to the lower court, the appeal can move forward for the first time since Jackson's ruling.
Lande believes the appeals court's swift action forebodes a fast resolution to the case, potentially much sooner than the nine to 12 months many legal experts had predicted for the appellate level.
"I wonder if this bodes well for a quick resolution of the issues," Lande said. "They moved so quickly this could be over shorter rather than longer."
The appeals court puts the case exactly where Microsoft wants it. Twice before, the same court overturned previous government wins against the Redmond, Wash.-based software maker.
The case also increases the pressure on the government to preserve its victory and Jackson's remedy that would split Microsoft into two companies: one for operating systems and the other for software applications.
"On an institutional level, it's a blow to some extent to the antitrust division and the solicitor general," Gavil said. "They don't like to risk the institutional capital of asking for things and not getting them. But I don't think it necessarily tells you anything on where the Supreme Court rests on the merits of the case."