[Am-info] FC: Can Microsoft case now go directly to Supreme Ct after all? (fwd)

Thu, 15 Jun 2000 10:36:06 -0700

In a message dated 2000 June 15 (Thursday), timestamp 09:57 AM, 
   on the topic [Am-info] FC: Can Microsoft case now go directly to
Supreme Ct after all? (fwd),
   Doug Masson <dmasson@well.com> wrote:

"|[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]

As the quoted passages from the statute and paraphrase from the rules
in the string of messages make clear, Judge Jackson could not certify
an appeal to the Supremes until after an appeal had been filed.  The
news reports about the Court of Appeals "accepting" the appeal were a
bunch of crap, as the statutes creating the various courts of appeals
do not give them the option of declining to accept an appeal from a
final judgment of a district court.  

What apparently happened, and was extraordinary, was that the Court of
Appeals issued a procedural order that the full panel would hear the
appeal, and did so _before_ there even was a notice of appeal filed. 
That procedural order could, I suppose, be challenged on the
constitutional grounds that as of the time the order was issued there
was no "case or controversy" before the Court of Appeals, a minimum
requirement under the Constitution for any ruling of any kind.  

Normally, appeals are heard by three of the circuit judges, and then,
if the losing party requests reconsideration, the court of appeals at
its discretion may rehear the case en banc.  The procedural order was
to bypass the first, limited, panel and proceed directly to a hearing
en banc (minus three of the judges, who recused themselves).  

If Judge Jackson certifies the case to the Supremes, _and_ if the
Supremes, who are not obliged to do so, accept the direct appeal, then
the Circuit Court of Appeals will not get to touch the case until at
least after the Supremes have remanded the proceedings (usually to the
district court, not to the appeals court) after a judgment.  

In short, the Circuit Court of Appeals cannot take the path of direct
appeal away from the Supreme Court if Judge Jackson certifies it and
the Supreme Court wants to accept the direct appeal.  

For me, the more interesting question is the effect of the Court of
Appeals' precipitous order on the issue whether the Supremes will want
to accept the direct appeal.  On the one hand, it could reassure the
Supremes that there will be no undue delay in the intermediate court,
which then could present the Supremes with a more focused appeal.  On
the other, if the Court of Appeals should reshape the decision, and
thus the appealable "assignments of error" to the Supreme Court, the
Supremes may have to send the case back for more than one remand to
put Humpty Dumpty back together again; whereas a remand from a direct
appeal to the Supreme Court would probably generate fewer further
proceedings.  Moreover, if I were a Supreme Court justice, I would be
deeply suspicious that any good could come from any decision of an
"impartial" tribunal that seems to be so anxious for and _want_ to get
its mitts on a case as much as this Court of Appeals seems to want to
rule on the Microsoft decision.  To me, the court's order violates the
maxim of avoiding even the appearance of impropriety.  

"|>  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.

"|>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".

-- 
-----------------------------------------------------------
"T. Guilbert" <ethical@1of1.net>   
"Ethical at One of One dot Net"
Portland, Oregon, United States of America
-----------------------------------------------------------