DOJ asks appeals court to back off

Yesterday, in a surprise maneuver, the U.S. Court of Appeals for the District of Columbia Circuit offered to hear the case before a panel of seven judges, instead of the usual three. In its order, the court affirmed its jurisdiction over Microsoft's appeal, which the government is petitioning the Supreme Court to take directly.

U.S. District Judge Thomas Penfield Jackson had been expected to rule today on the government's petition asking him to certify a direct appeal of the case to the Supreme Court, but today's filings pushed back any action by the judge.

The Justice Department would like the appeals court to give up control of the case, while it seeks approval to take the case directly to the Supreme Court.

"It looks to me like they're trying to cut the court of appeals out completely," George Washington University School of Law professor Bill Kovacic said. "This is going to be a crucial fight here."

The issue of jurisdiction is not a simple matter but a crucial step in determining the case's outcome. The appeals court is viewed as a more favorable venue for Microsoft.

"The government is scared to death of the appeals court and what it might do," said Rich Gray, an intellectual property attorney with Outside General Counsel Silicon Valley in Menlo Park, Calif.

Besides filing its overall appeal yesterday, Microsoft asked the appellate court to rule on a motion that would stay restrictions on its business practices set to go into effect in about 83 days. Microsoft had made the same request of Jackson, but, acquiescing to a government request, he declined ruling on the motion until after Microsoft filed its broader appeal.

"This Court should summarily dismiss Microsoft's motion for leave to submit an overlong motion, not because of the length of the motion for stay pending appeal, but because it is premature," government lawyers wrote today. The government brief contends Microsoft violated court procedures by not first giving "the district court a chance to rule on its stay motion."

But Kovacic said Microsoft might have a reasonable contention it was not treated fairly by Jackson.

The rules of the court allow a defendant to take the request directly to appeals court if the judge "fails to afford the relief requested," he said. "This is exactly the argument Microsoft has made for petitioning the appeals court."

Gray said he believes the government is acting properly in making its request to the appeals court.

"By the request to the court of appeals that it not act, they're trying to plug a hole in the statute under the assumption Judge Jackson will certify the appeal," he said. "I don't think it's unreasonable for the government to be asking that. Now it is going to be interesting to see what the court of appeals does."

The larger problem for the government is that the appeals court could rule on the stay motion before trustbusters can get the case certified for direct appeal to the Supreme Court. Once that happens, the appeals court would no longer have jurisdiction over the appeal.

The government yesterday filed its petition asking Jackson to certify the appeal for direct consideration to the high court. Microsoft today said it would respond to the petition by Monday, with Jackson ruling on the government's request early next week.

If the appeals court turns down the government's request rejecting the stay motion, "the alternative is to defer consideration itself until the court resolves whether it has jurisdiction," a source close to the government said. "What we suggest to the court of appeals is it should just wait and see what Judge Jackson does on the jurisdictional issue."

According to the government's brief, "It makes little sense for the Court to rush into briefing of Microsoft's likelihood of prevailing on appeal before ascertaining whether it will have jurisdiction over the case. The district court is likely to rule on the government's motion to certify under the Expediting Act in a matter of days."

Jackson is expected to ask that the appeal be heard directly by the Supreme Court, which is under no obligation to accept it.

"On the contrary, given the appeals court's actions (yesterday), I doubt the Supreme Court will take the case now," Gray said.

If the appeals court does accept the government's request, the entire appeal, including the request staying conduct restrictions, would go to the Supreme Court. The high court is expected to decide whether to hear the case or send it back to the appeals court by early October.

Kovacic faulted the government for trying to take the stay request to the Supreme Court, arguing it would unfairly penalize Microsoft.

"Are they trying to ensure the interim remedies take effect without out a stay, and is the mechanism they are using the certification to the Supreme Court?" he said. "They know the Supreme Court cannot rule on this jurisdictional issue before early September."

In that case, he added, the clock would tick down to when the restrictions go into effect without Microsoft having the chance to be heard by a court.

The government source sidestepped this issue, responding: "What we're trying to do here is preserve the Supreme Court's jurisdiction under the statute. If you take the statute seriously, then we have to do this."

Gray disagreed the government was trying to rob Microsoft of due process and couldn't see why the Supreme Court would, following its normal schedule, wait until September to decide what to do about the case.

"Just as the court of appeals was very proactive, the Supreme Court could be proactive," he said. "They know the case is coming and may have already had their own informal polling, the way the appeals court did."