Jackson exits Microsoft discrimination case

The judge who oversaw Microsoft's antitrust trial has recused himself from another proceeding affecting the software giant.

3 min read
WASHINGTON--The judge who oversaw Microsoft's antitrust trial has recused himself from another proceeding affecting the software giant.

U.S. District Judge Thomas Penfield Jackson issued an order late Monday that removed him from overseeing a massive $5 billion discrimination suit against Microsoft.

Microsoft had earlier filed a request that Jackson recuse himself from the matter because of alleged bias against the company. In his six-page order, Jackson defended his views formed about Microsoft during several court cases, saying he harbors no bias.

"I must acknowledge, however, that extra-judicial comments attributed to me, when viewed in light of public disapproval thereof expressed by the court of appeals at oral argument of the Microsoft cases appeal, have created an appearance of personal bias or prejudice," Jackson wrote in his order.

For this reason, he granted Microsoft's request for recusal and returned the case to the District Court's calendar committee for random reassignment.

Jackson was put under the spotlight during oral arguments last month in Microsoft's appeal of the antitrust case, when the panel of seven judges ripped into him for post-trial comments that gave the appearance of bias.

For example, in the Jan. 8 issue of The New Yorker, Jackson said Microsoft founder Bill Gates "has a Napoleonic concept of himself and his company, an arrogance that derives from power and unalloyed success, with no leavening hard experience, no reverses." He added that company executives "don't act like grown-ups!"

Bob Lande, a professor at the University of Baltimore School of Law, described the recusal as "a very wise move. I guess following the bashing before the Court of Appeals, he's finally getting some sense behind him."

"We think the decision to recuse is appropriate," said Microsoft spokesman Jim Cullinan. "We respectively disagree with the District Court's comments, but these issues are before the Court of Appeals, so it would be inappropriate for us to comment."

Jackson's decision essentially puts the discrimination suit filed by former Microsoft employee Rahn Jackson into limbo. Rahn Jackson is no relation to Judge Jackson.

The June 2000 lawsuit alleges that Microsoft engaged in widespread discriminatory and retaliatory practices in violation of Title VII of the Civil Rights Act of 1964. Rahn Jackson in January amended the lawsuit, adding additional plaintiffs and petitioning for class-action status. If granted, the scope of the case would be extended to other African-American employees Microsoft hired after April 27, 1992.

In late January, Microsoft asked Judge Jackson to change the venue to Washington state, so that the discrimination suit could be consolidated with another there. Soon afterward, the Redmond, Wash.-based company requested the judge recuse himself for bias.

Jackson had scheduled oral presentations on both matters for March 2, three days after oral arguments in Microsoft's antitrust appeal. But after his verbal bruising from the seven-member appeals panel, Jackson abruptly canceled the oral argument.

"It looks like during that two-week period, he thought about it and drafted the order," Lande said. "It seems he now understands that he either stepped over the line or that at least those are the rules."

In his recusal order, Jackson explained that he knew nothing about Microsoft before 1995, when he replaced another judge overseeing a consent decree with the software maker and the Justice Department. Most of what he learned came "through the ensuing judicial proceedings."

Between autumn 1997 and summer 1999 Jackson said he spent most of his judicial time "evaluating evidence in the consent decree proceedings and the trial of the antitrust actions." He referred to affidavits, depositions and court testimony of senior Microsoft executives. "Much of it proved, time and again, to be inaccurate, misleading, evasive or transparently false," he wrote.

Jackson emphasized that all opinions formed about Microsoft resulted from court proceedings and that a 1994 Supreme Court decision stated "that 'opinions held by judges as a result of what they learned in earlier proceedings' cannot be characterized as either 'bias' or 'prejudice.'"

Still, the comments made against the judge by the Court of Appeals clearly led to his recusal decision, Lande said.

During the appeal's oral argument proceeding, appellate Judge Harry Edwards ripped into Jackson for out-of-court comments that created the appearance of bias.

"It doesn't mean that we are entitled to say because those feelings developed during the course of a proceeding, we are going to run off our mouths in a pejorative way because there is an appearance problem," Edwards said. "The system would be a sham if all judges went around doing this."