FC: Can Microsoft case now go directly to Supreme Ct after all?

[Declan McCullagh <declan () well com>]

[An interesting discussion from the cyberia list. The DC circuit court of 
appeals has agreed to hear MS's appeal. Does this mean that the case won't 
-- or can't -- go to the Supremes right away? --Declan]


> Date:         Wed, 14 Jun 2000 09:12:41 -0500
> From: Mac Norton <mnorton () COMP UARK EDU>
> Subject:      Re: MS-Nationalization By Thomas J. DiLorenzo
>
> Any Supreme Court procedure gurus among us? Is the DC Cir's
> decision to keep the appeal reviewable? En banc, even?
> MacN



> Date:         Wed, 14 Jun 2000 11:39:47 -0400
> From: Mike Godwin <mnemonic () WELL COM>
> Subject:      Re: MS-Nationalization By Thomas J. DiLorenzo
>
> Mac writes:
>
> > Any Supreme Court procedure gurus among us? Is the DC Cir's
> > decision to keep the appeal reviewable? En banc, even?
>
> I doubt even the gurus can call this one.
>
> Microsoft's procedural cleverness in circumventing the Expediting Act
> does, in my mind, raise constitutional questions. Congress supposedly
> has the authority to design the appellate jurisdiction of the federal
> courts, and the Expediting Act was an effort at just such a design.
> While I'm not going to categorically condemn race-to-the-courthouse
> tactics, it seems to me that Congress did not intend for the
> Expediting Act to be circumvented quite so easily.
>
>
> --Mike



> Date:         Wed, 14 Jun 2000 12:15:57 -0400
> From: Declan McCullagh <declan () wired com>
> Subject:      Re: MS-Nationalization By Thomas J. DiLorenzo
>
> I'm not sure it's just "Microsoft's procedural cleverness" that's going on
> here. The clock is ticking on their three months -- which Jackson could
> have made longer -- and Jackson's ruling yesterday was not particularly
> helpful.
>
> In any case, some news reports have said the Supreme Court could take the
> case anyway after Jackson does the certification thang, and I think the
> burden of argument should be on those who say they couldn't.
>
> -Declan



> Date:         Wed, 14 Jun 2000 12:24:55 -0400
> From: Mike Godwin <mnemonic () WELL COM>
> Subject:      Re: MS-Nationalization By Thomas J. DiLorenzo
>
> Declan writes:
>
> > I'm not sure it's just "Microsoft's procedural cleverness" that's going on
> > here. The clock is ticking on their three months -- which Jackson could
> > have made longer -- and Jackson's ruling yesterday was not particularly
> > helpful.
>
> I don't think Microsoft believed Jackson was going to grant them a
> stay, and I think their primary concern was the immediate conduct
> remedies, not the three-months-later breakup.
>
> > In any case, some news reports have said the Supreme Court could take the
> > case anyway after Jackson does the certification thang, and I think the
> > burden of argument should be on those who say they couldn't.
>
> Well, that's an interesting question. If Jackson no longer has the
> case, given that the Court of Appeals has apparently snagged it, does
> Jackson even have the power to certify it under the Expediting Act?
>
> Not impossibly, Klein and Co. will have to attempt to invoke the
> Expediting Act in the Court of Appeals.
>
>
> --Mike



> Date:         Wed, 14 Jun 2000 13:08:21 -0400
> From: John Noble <jnoble () DGSYS COM>
> Subject:      Re: MS-Nationalization By Thomas J. DiLorenzo
>
> At 11:39 AM -0400 6/14/00, Mike Godwin wrote:
> >Mac writes:
> >
> >>Any Supreme Court procedure gurus among us? Is the DC Cir's
> >>decision to keep the appeal reviewable? En banc, even?
>
> The DC Circuit doesn't get to decide to "keep the appeal" any more than it
> could decide to dump the appeal. They only decided that so long as they
> have jurisdiction, the appeal will be heard en banc. The Supreme Court's
> decision to accept certification is affected only climatically.
>
> >
> >I doubt even the gurus can call this one.
> >
> >Microsoft's procedural cleverness in circumventing the Expediting Act
> >does, in my mind, raise constitutional questions. Congress supposedly
> >has the authority to design the appellate jurisdiction of the federal
> >courts, and the Expediting Act was an effort at just such a design.
> >While I'm not going to categorically condemn race-to-the-courthouse
> >tactics, it seems to me that Congress did not intend for the
> >Expediting Act to be circumvented quite so easily.
> >
>
> How have they circumvented the Act. The Government has asked Jackson to
> certify a direct appeal. He presumably will. And Supreme Court will have to
> decide whether or not to take it. And if they think they should take it,
> nothing Microsoft did or can do is going to tie their hands.
>
> All Microsoft did was file its notice of appeal, and move for a stay
> pending appeal. The district court forced the filing of the notice of
> appeal, by refusing to grant the motion for a stay. Microsoft had no option
> of asking the Supreme Court for a stay at this stage, and its request to
> the Court of Appeals does not foreclose the Supreme Court's options on
> taking the appeal directly, which would divest the Court of Appeals of its
> jurisdiction over the stay motion. They're entitled to ask for a stay, and
> they certainly don't have to presume that the Supreme Court is going to
> take the highly unusual course of entertaining a direct appeal.
>
> The "procedural cleverness" here was on the part of the Government and J.
> Jackson. The rules give MS 60 days to notice an appeal. J.Jackson, at the
> urging of the Government, refused to rule on a perfectly ordinary motion
> for stay pending appeal because MS had not yet noticed the appeal, which it
> wasn't required to do to perfect the motion.
>
> John Noble


> Date:         Wed, 14 Jun 2000 13:21:45 -0400
> From: John Noble <jnoble () DGSYS COM>
> Subject:      Re: MS-Nationalization By Thomas J. DiLorenzo
>
> At 12:24 PM -0400 6/14/00, Mike Godwin wrote:
> >Declan writes:
> >
> >>I'm not sure it's just "Microsoft's procedural cleverness" that's going on
> >>here. The clock is ticking on their three months -- which Jackson could
> >>have made longer -- and Jackson's ruling yesterday was not particularly
> >>helpful.
> >
> >I don't think Microsoft believed Jackson was going to grant them a
> >stay, and I think their primary concern was the immediate conduct
> >remedies, not the three-months-later breakup.
>
> The conduct restrictions go into effect 90 days out. The break-up is stayed
> by the Judge's own order pending completion of the appeals.
>
>
> John Noble


> Date:         Wed, 14 Jun 2000 14:43:02 -0400
> From: "Stephen T. Middlebrook" <Stephen.Middlebrook () FMS TREAS GOV>
> Subject:      Re: MS-Nationalization By Thomas J. DiLorenzo
>
> Many many moons ago I had a question about exactly when jurisdiction 
> passed from
> the district to the circuit court.  I seem to remember the answer 
> invovling the
> passing of the proper papers to the appeals court.  Remember, the notice of
> appeal is filed in the district court.  The appeals court doesn't technically
> get the case until the clerk for the district court sends it up.  The district
> court doesn't automatically lose all jurisdiction, because the appeal may only
> be over a part of the case.  It's unclear whether the DC District court has
> certified and sent the docket to the DC Circuit.
>
> My gut (with a little input from my brain) says that if Jackson certifies the
> case under the extraordinary appeal statute, the gov't can take that to the
> Supremes despite the notice of appeal.  Under the act, does the Sup. Ct. 
> have to
> take the case, or do they get to choose whether to issue a writ to the lower
> court taking the case?  Perhaps the big court would issue the writ to the
> appeals court as well the district court or otherwise stay whatever is 
> going on
> at the DC Circuit.
>
>
> stm


> Date:         Wed, 14 Jun 2000 15:02:10 -0400
> From: Mike Godwin <mnemonic () WELL COM>
> Subject:      Re: MS-Nationalization By Thomas J. DiLorenzo
>
> Thanks to a private message from a fellow Cyberian:
>
> ß 29. Appeals (Expediting Act)
>
> (a) Court of Appeals;  review by Supreme Court
>
> Except as otherwise expressly provided by this
> section, in every civil action brought in any district
> court of the United States under the Act entitled "An
> Act to protect trade and commerce against unlawful
> restraints and monopolies", approved July 2, 1890, or
> any other Acts having like purpose that have been or
> hereafter may be enacted, in which the United States
> is the complainant and equitable relief is sought, any
> appeal from a final judgment entered in any such
> action shall be taken to the court of appeals pursuant
> to sections 1291 and 2107 of Title 28.  Any appeal
> from an interlocutory order entered in any such action
> shall be taken to the court of appeals pursuant to
> sections 1292(a) (1) and 2107 of Title 28 but not
> otherwise.  Any judgment entered by the court of
> appeals in any such action shall be subject to review
> by the Supreme Court upon a writ of certiorari as
> provided in section 1254(1) of Title 28.
>
> (b) Direct appeals to Supreme Court
>
> An appeal from a final judgment pursuant to subsection
> (a) of this section shall lie directly to the Supreme
> Court if, upon application of a party filed within
> fifteen days of the filing of a notice of appeal, the
> district judge who adjudicated the case enters an
> order stating that immediate consideration of the
> appeal by the Supreme Court is of general public
> importance in the administration of justice.  Such
> order shall be filed within thirty days after the
> filing of a notice of appeal.  When such an order is
> filed, the appeal and any cross appeal shall be
> docketed in the time and manner prescribed by the
> rules of the Supreme Court.  The Supreme Court shall
> thereupon either (1) dispose of the appeal and any
> cross appeal in the same manner as any other direct
> appeal authorized by law, or (2) in its discretion,
> deny the direct appeal and remand the case to the
> court of appeals, which shall then have jurisdiction
> to hear and determine the same as if the appeal and
> any cross appeal therein had been docketed in the
> court of appeals in the first instance pursuant to
> subsection (a) of this section.
>
>
>
> --Mike




Date:         Wed, 14 Jun 2000 16:08:33 -0400
> From: John Noble <jnoble () DGSYS COM>
> Subject:      Re: MS-Nationalization By Thomas J. DiLorenzo
>
> My thanks as well to the anonymous Cyberian. Nothing like actually knowing
> what it says while we discourse on what it means. I would read this to
> confer jurisdiction on the district court to certify the direct appeal,
> notwithstanding any other provision of law which would otherwise remove
> jurisdiction to the circuit court by the docketing of an appeal in the
> circuit court.
>
> FRAP requires the district court clerk to transmit to the circuit court
> clerk "forthwith" a copy of the notice of appeal and docket entries [FRAP
> 3(d)], and directs the circuit court clerk to "thereupon" docket the appeal
> [FRAP 12]. Is "forthwith" flexible enough to allow the district court clerk
> to sit on the notice until the judge decides the motion for certification.
> Was the notice sent to the court appeals the same day it was filed (seems
> unlikely). Does the court of appeals have a "docketed" case (they gave it a
> number) or is the order re en banc review merely "advisory".



> Date:         Wed, 14 Jun 2000 15:33:08 -0400
> From: John Noble <jnoble () DGSYS COM>
> Subject:      Re: MS-Nationalization By Thomas J. DiLorenzo
>
> At 2:43 PM -0400 6/14/00, Stephen T. Middlebrook wrote:
> >Many many moons ago I had a question about exactly when jurisdiction
> >passed from
> >the district to the circuit court.  I seem to remember the answer
> >invovling the
> >passing of the proper papers to the appeals court.
>
> That makes sense to me.
>
> >Remember, the notice of
> >appeal is filed in the district court.  The appeals court doesn't 
> technically
> >get the case until the clerk for the district court sends it up.  The 
> district
> >court doesn't automatically lose all jurisdiction, because the appeal 
> may only
> >be over a part of the case.  It's unclear whether the DC District court has
> >certified and sent the docket to the DC Circuit.
> >
> >My gut (with a little input from my brain) says that if Jackson 
> certifies the
> >case under the extraordinary appeal statute, the gov't can take that to the
> >Supremes despite the notice of appeal.
>
> Not "despite" the notice of appeal. Apparently the notice of appeal has to
> be filed before the government can move for certification to the SC
>
> >Under the act, does the Sup. Ct. have to
> >take the case, or do they get to choose whether to issue a writ to the lower
> >court taking the case?  Perhaps the big court would issue the writ to the
> >appeals court as well the district court or otherwise stay whatever is
> >going on
> >at the DC Circuit.
>
> The Supreme Court review is discretionary. They can keep it or refuse it. I
> have no doubt that if they keep it, the DC Circuit will bow out, but if
> they didn't, the SC could issue an order in aid of preserving its
> jurisdiction.
>
> John Noble


Date:         Wed, 14 Jun 2000 15:23:45 -0400
> From: John Noble <jnoble () DGSYS COM>
> Subject:      Re: MS-Nationalization By Thomas J. DiLorenzo
>
> At 1:25 PM -0400 6/14/00, Mike Godwin wrote:
> >>How have they circumvented the Act. The Government has asked Jackson to
> >>certify a direct appeal. He presumably will.
> >
> >I'm hazy as to whether the case is still in Jackson's court.
>
> You raise a good point, which was unclear to me until your later post
> raising the question of whether Jackson has continuing jurisdiction. I'm
> not sure off-hand what it is that formally removes a case from district
> court jurisdiction pending appeal. For some reason I thought it was the
> notice of appeal, but here the district court is insisting on the filing of
> a notice of appeal before it rules on the stay motion, and the notice of
> appealis a pre-condition to the motion for certification. So I must be
> wrong about the significance of the notice as a jurisdictional threshold.
> What is it that formally extinguishes trial court jurisdiction pending
> appeal?
>
> In any event, I can't imagine that MS could defeat expedited SC review by
> the simple expedient of filing a motion with the circuit court; and I can't
> imagine that the circuit court could defeat expedited SC review with
> something like a scheduling order. I feel comfortable that the Supreme
> Court will figure a way to preserve its jurisdiction under the expedited
> review provisions if it has the inclination.
>
> John Noble



> Date:         Tue, 13 Jun 2000 11:45:12 -0400
> From: John Noble <jnoble () DGSYS COM>
> Subject:      Re: MS-Nationalization By Thomas J. DiLorenzo
>
> At 10:46 AM -0400 6/13/00, Chris Savage wrote:
> >Now, this may just be a failure of PR.  But it makes me wonder.
>
> On that subject, did anyone else have a problem with Jackson, to whom this
> case may well return on remand, and who will in any event be responsible
> for interpreting and enforcing his order, giving interviews to the
> Washington Post, New York Times and Wall Street Journal on the day he
> released his order. Isn't there some rule about judges making public
> comments on pending cases, and didn't this very judge get called on it
> while presiding over the Oliver North case.
>
> John Noble



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