Sorry, but with all due respect to J. J. Cramer and the people in the black robes, I think the government's position is way, way overextended on this one.
On a different note, I don't know if you noticed, but Microsoft has filed its notice of appeal, and the D.C. Circuit has already decided to hear the case en banc.
Appeals Court's Eagerness to Weigh In Is Viewed as a Victory for Microsoft
interactive.wsj.com
Microsoft Corp. won a tactical advantage in its historic battle with the government, as the appeals court in Washington signaled its eagerness to take the software maker's appeal.
* * *
There are, however, some inaccuracies in the Wall Street Journal Article. For starters, the article does not quite get the D.C. Circuit's order right, and, therefore, misses an extremely important detail.
The order, in full, reads:
"In view of the exceptional importance of these cases and the fact that the number of judges of this court disqualified from participation as a practical possibility precludes any en banc rehearing of a panel decision, it is
"ORDERED, sua sponte, by the en banc court that these cases and all motions and petitions filed in these cases be heard by the court sitting en banc. Parties shall hereafter file an original and nineteen copies of all pleadings and briefs submitted.
Per Curiam,
for the court
Mark J. Langer, Clerk
*Circuit Judges Silberman, Henderson and Garland took no part in the consideration and issuance of this order, and they will take no part in any future consideration of matters before the court involving these cases.
microsoft.com
If you read the article, it does not mention at all the fact that the three judges are disqualified (probably for holding Microsoft stock) and that the court, therefore, decided to hear the case en banc because it would not be able to assemble an en banc panel sufficiently independent of the three judge panel which normally would hear the initial appeal to make meaningful, independent en banc review possible.
It seems to me that the disqualification of three judges, not the case's importance or lack thereof, probably accounted for the court's decision to en banc the case immediately rather than have it go through a panel first. The case's public importance, while certainly true, seems to me to be more like a make-weight. After all, if you read Microsoft's stay brief
( microsoft.com )
the legal issues (from their perspective, in any event) are pretty cut and dried.
And then you've got Duke, err, I mean, Bill Neukom, who spouts endlessly about the appeal in his prepared statement but doesn't even mention the en banc review aspect of the case.
microsoft.com
If he thought getting an en banc panel was such a great victory for Microsoft, you'd expect him to crow about it (in which case, he'd be wrong). To say the Court of Appeals was ready for Microsoft's appeal when it came is certainly true; to say they are so "eager" to hear it due to its "great public importance" is spin.
Furthermore, the experts the article cites completely miss, in addition to the disqualification angle, the following points:
1. Microsoft, in filing its notice of appeal early, totally caved in to the DOJ's and the DJ's little coercion gambit. I'd have expected something more from them: say, a raft of post-judgment motions, and a petition for writ of mandamus to the Court of Appeals to try to get the Court of Appeals to force the DJ to make some kind of ruling on Microsoft's stay application so there would be time to rule on those motions. Instead, Microsoft just caved and filed their notice of appeal. (I guess if you hit 'em where it hurts, you get results. ;) )
2. By agreeing to take the case en banc as an initial matter, the Court of Appeals cut out one entire layer of appellate review. While this reduced the chances the Supreme Court will take the case after the DJ certifies it, it did so at some expense to Microsoft's delay strategy.
3. If ownership of Microsoft stock is a proxy for conservatism, three of the conservative judges are disqualified, which means the en banc court probably will be less, not more, conservative than the panel that might otherwise have heard the case.
The article did get one thing right: this won't affect Judge Jackson's ability to certify it to the Supreme Court.
I'd call this a DOJ victory, not a Microsoft victory. |
