[Am-info] FC: Can Microsoft case now go directly to Supreme Ct after all?
(fwd)
Doug Masson
dmasson@well.com
Thu, 15 Jun 2000 09:57:51 -0700 (PDT)
---------- Forwarded message ----------
Date: Thu, 15 Jun 2000 10:51:48 -0400
From: Declan McCullagh <declan@well.com>
To: politech@vorlon.mit.edu
Subject: FC: Can Microsoft case now go directly to Supreme Ct after all?
[An interesting discussion from the cyberia list. The DC circuit court of=
=20
appeals has agreed to hear MS's appeal. Does this mean that the case won't=
=20
-- 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 o=
n
>>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 t=
o
>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 optio=
n
>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 i=
t
>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 staye=
d
>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=20
>passed from
>the district to the circuit court. I seem to remember the answer=20
>invovling the
>passing of the proper papers to the appeals court. Remember, the notice o=
f
>appeal is filed in the district court. The appeals court doesn't technica=
lly
>get the case until the clerk for the district court sends it up. The dist=
rict
>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 ha=
s
>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 th=
e
>Supremes despite the notice of appeal. Under the act, does the Sup. Ct.=
=20
>have to
>take the case, or do they get to choose whether to issue a writ to the low=
er
>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=20
>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:
>
>=DF 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 appea=
l
>[FRAP 12]. Is "forthwith" flexible enough to allow the district court cler=
k
>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=20
> technically
> >get the case until the clerk for the district court sends it up. The=20
> district
> >court doesn't automatically lose all jurisdiction, because the appeal=20
> 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=20
> 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 l=
ower
> >court taking the case? Perhaps the big court would issue the writ to th=
e
> >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 o=
f
>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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