DOJ asks Supreme Court to hear Microsoft case

The government asks the high court to accept a direct appeal of the antitrust case and requests a briefing schedule that would require the parties to file more papers in July and August.

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Microsoft's antitrust appeal moved one step closer to the Supreme Court this afternoon.

In a one-page letter sent by the solicitor general, the government asked the Supreme Court to accept a direct appeal of the landmark antitrust case. The request also suggests a briefing schedule before the high court that would require the parties to file more papers in July and August.

Earlier this week, U.S. District Judge Thomas Penfield Jackson certified the case for direct appeal, the second step in the three-stage process.

The law authorizing such an appeal is called the Expediting Act. For a case to skip over the local appellate court and go directly to the Supreme Court, the Justice Department (DOJ) must first petition the direct appeal, which must be certified by the federal judge overseeing the case.

The DOJ must then, in conjunction with the solicitor general, request that the Supreme Court accept the direct appeal.

The letter, from solicitor general Seth Waxman, notes Jackson's certification of "the direct appeal to the Supreme Court, pursuant to the Expediting Act."

Waxman continued: "I am authorized by counsel to state that the parties have agreed to a briefing schedule pursuant to which appellant will file its Jurisdictional Statement on July 26, 2000; appellees will respond on August 15, 2000; and appellant will file its reply (if any) on August 22, 2000."

The Supreme Court is not obligated to accept the direct appeal, which usually is made only in cases of national importance. The high court is expected to make its decision by the first week of October.

If the Supreme Court accepts the case, it would likely render its decision by June of next year. Otherwise, the case would return to the U.S. Court of Appeals for the District of Columbia Circuit, which could take up to a year reviewing the case.

Microsoft is expected in its Special coverage: Breakupbrief to continue with its argument that the Expediting Act does not cover the states' portion of the case. Originally, the DOJ and 19 states filed separate cases, which Jackson treated as one.

But "because the Expediting Act predates the statute authorizing states to file antitrust cases under federal law," Microsoft could have a valid claim on this point, said Andy Gavil, an antitrust professor with Howard University Law School. "That is for the Supreme Court to decide.

George Washington University School of Law professor Bill Kovacic predicted that the government would argue that "because there is no longer any hope of restraint on Microsoft's behavior, it is doubly important that the court accept the appeal."

Earlier in the week, Jackson stayed restrictions on Microsoft's business behavior that the government had counted on being in place during the appeals process. They had been set to go into effect Sept. 5.