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For more than two years, the government and Microsoft Corp. have battled on the fault lines of technological innovation and the rule of law in their historic antitrust case. But last week, the epic struggle deteriorated into procedural bickering over the when and where of the appellate process. And at press time, June 16, the Justice Department was set to file yet another brief in this new spat with Microsoft. The sniping began in earnest on June 13, the day Microsoft filed its appeal of the trial court ruling against it with the U.S. Court of Appeals for the District of Columbia. On its own motion, the appeals court that afternoon issued an order that “all motions and petitions” would be heard by an en banc court. It noted that three judges, one of whom previously worked at the Justice Department during the Clinton administration, are disqualified. That leaves seven judges, including Stephen F. Williams, author of a June 1998 decision that granted victory to Microsoft in a related case. Microsoft is banking on Judge Williams’ decision in its appeal. But until the appeals court order, it could not count on the prospect that Judge Williams would be part of the judicial panel this time around. At eight o’clock that night, the Justice Department filed a motion with the trial judge, Thomas Penfield Jackson, asking him for an order certifying the case for direct review to the U.S. Supreme Court. The Expediting Act, a 1974 law, allows direct appeal of antitrust cases brought by the U.S. government. In a footnote, the government sought to blunt Microsoft’s attempt to sever the case brought by 19 state attorneys general, co-plaintiffs with Justice. The government cites Supreme Court Rule 18.2, which states that “all parties to the proceedings in the district court are deemed parties entitled to file documents” in direct appeals under the Expediting Act. Meanwhile, dueling motions quibbled over whether appeals court procedural rules allow it to review the case before Judge Jackson, a federal district court judge, rules on Microsoft’s motion to stay his final order. In a June 15 filing, Microsoft contended that Supreme Court Rule 18.2 relates to the mechanics of brief filing, rather than appellate jurisdiction.

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