IN THE
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT


Nos. 00-5212, 5213


MICROSOFT CORPORATION,
Defendant-Appellant,

v.

UNITED STATES OF AMERICA and STATE OF NEW YORK, et al.,
Plaintiffs-Appellees.


ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


APPELLANT'S MOTION FOR STAY OF THE MANDATE PENDING PETITION FOR WRIT OF CERTIORARI

Pursuant to Rule 41(d)(2) of the Federal Rules of Appellate Procedure and Circuit Rule 41, appellant Microsoft Corporation ("Microsoft") hereby requests the Court to stay issuance of its mandate pending final disposition of Microsoft's petition for a writ of certiorari in the Supreme Court, which Microsoft filed earlier today. (A copy of the petition is annexed to this motion for the convenience of the Court.)

Microsoft respectfully submits that the district judge should have been disqualified as of September 1999, the date of his earliest known violation of 28 U.S.C. s 455(a) and the Code of Conduct of United States Judges. Such disqualification would require vacatur of the district court's findings of fact and conclusions of law. Although acknowledging that the district judge engaged in "deliberate, repeated, egregious, and flagrant" ethical violations, Op. at 106, this Court limited the scope of disqualification to the remedy phase of the trial, primarily because Microsoft had not shown actual bias, Op. at 122.

The requirement that Microsoft show actual bias is inconsistent with the language of 28 U.S.C. s 455(a). Under that provision, "what matters is not the reality of bias or prejudice but its appearance." Liteky v. United States, 510 U.S. 540, 548 (1994). In holding that, absent a showing of actual bias, disqualification was not effective until eight months after the earliest known ethical violation committed by the district judge, this Court's decision also conflicts with the Supreme Court's decision in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988), as well as the Tenth Circuit's decision in United States v. Cooley, 1 F.3d 985 (10th Cir. 1993), and the Ninth Circuit's decision in Preston v. United States, 923 F.2d 731 (9th Cir. 1991).

That conflict makes the issue appropriate for the Supreme Court's attention. See Sup. Ct. R. 10(a); Robert L. Stern et al., Supreme Court Practice  4.4, 4.5 (7th ed. 1993). Moreover, were the Supreme Court to determine that a new trial is required, that decision would substantially alter further proceedings in this case, potentially nullifying any actions taken by the district court on remand in the interim. Accordingly, the requirements for a stay under Rule 41(d)(2) of the Federal Rules of Appellate Procedure and Circuit Rule 41 are met.

A.

Under the Federal Rules of Appellate Procedure, "[a] party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court." Fed. R. App. P. 41(d)(2)(A). By operation of law, such a stay remains in place until the Supreme Court's final disposition of the petition. The party seeking a stay "must show that the certiorari petition would present a substantial question and that there is good cause for a stay." Id. Similarly, Circuit Rule 41 permits a stay of the issuance of mandate upon a showing of "good cause." Under both rules, a stay to permit the filing of a petition for a writ of certiorari may "ordinarily" be for up to 90 days. D.C. Cir. R. 41; see also Fed. R. App. P. 41(d)(2)(B). Because Microsoft has already filed its petition, it is seeking a stay only pending the Supreme Court's final disposition of the petition.

Whether there exists "a substantial question" and "good cause" for a stay turns on the applicant's "reasonable probability of succeeding on the merits and whether the applicant will suffer irreparable injury." Books v. City of Elkhart, 239 F.3d 826, 827 (7th Cir.), cert. denied, 121 S. Ct. 2209 (2001). If either one of these elements is established, the stay should be granted. See id. at 829 (granting stay "although the [applicant] presents a weak case for a grant of certiorari"); see also Deering Milliken, Inc. v. FTC, 647 F.2d 1124, 1128 (D.C. Cir.) (existence of "substantial" issues constitutes "good cause" that would make the court "obliged to grant" stay), cert. denied, 439 U.S. 958 (1978). Both elements are present here.

B.

The question of whether a showing of actual bias is required before disqualification is available to remedy flagrant and concealed violations of 28 U.S.C. s 455(a) is a substantial one for purposes of Rule 41(d)(2)(A). The Supreme Court found the issue of remedies for violations of 28 U.S.C. s 455(a) deserving of its attention in Liljeberg, and Microsoft respectfully submits that this Court's decision conflicts with Liljeberg. There also can be no doubt that requiring a showing of actual bias creates a conflict with both the Tenth Circuit's decision in Cooley and the Ninth Circuit's decision in Preston. The question presented thus falls within the first class of cases suitable for review on certiorari. See Sup. Ct. R. 10(a); see also United States v. Holland, 1 F.3d 454, 456 (7th Cir. 1993) ("A conflict among the circuits is an accepted basis for the granting of the writ of certiorari.").

The Court found that the district judge committed clear and repeated violations of the Code of Conduct for United States Judges. See Op. at 113-17. The Court also found that the district judge's "conduct destroyed the appearance of impartiality" in violation of 28 U.S.C. s 455(a), which required that he disqualify himself at the time the violations began to occur. See Op. at 122. Moreover, the Court found that the district judge's concealment of his discussions with reporters "made matters worse" and "prevented the parties from nipping his improprieties in the bud." Op. at 115. Nevertheless, the Court held that the district judge's "rampant disregard for the judiciary's ethical obligations" did not warrant disqualification as of the time the violations began (and consequently vacatur of the district court's findings of fact and conclusions of law) primarily because Microsoft had not shown actual bias. See Op. at 117, 120-22.

In Liljeberg, the Supreme Court held that a violation of 28 U.S.C. s 455(a) far less egregious than the pattern of misconduct engaged in by the district judge in this case required that a final judgment (which had been affirmed on appeal) be vacated and the case retried. No requirement of actual bias was imposed. See Liljeberg, 486 U.S. 867-68. The decisions in Cooley and Preston also support Microsoft's position that disqualification as of September 1999 is necessary to remedy the appearance of partiality created by the district judge's secret discussions with reporters, which began at least two months before the findings of fact were entered and at least six months before the conclusions of law were issued. See Op. at 109.

The misconduct at issue in Cooley concerned a single television appearance in which the district judge stated that an injunction he had entered would be enforced. Cooley, 1 F.3d at 995. The Tenth Circuit found that the district judge deliberately chose "to appear in such a forum at a sensitive time to deliver strong views on matters which were likely to be ongoing before him." Id. Although the Tenth Circuit concluded that "the record of the proceedings below, including the sentences imposed, discloses no bias," id. at 996, it found that the district judge's decision to appear on television conveyed the impression that he "had become an active participant in bringing law and order to bear on the protesters, rather than remaining as a detached adjudicator." Id. As a consequence, the Tenth Circuit held that a reasonable person would question the district judge's impartiality. Id. To remedy this violation of 28 U.S.C. s 455(a), the Tenth Circuit vacated not only each defendant's sentence, but each defendant's conviction as well, and remanded the case for a new trial before a different district judge. Id. at 998.

In Preston, the Ninth Circuit disqualified a trial judge pursuant to 28 U.S.C. s 455(a) because he previously had been "of counsel" to a law firm that represented a non-party with an interest in the litigation. Preston, 923 F.2d at 732. Despite the absence of any claim of actual bias, see id. at 734, the Ninth Circuit held that there was "no way . . . to purge the perception of partiality in this case other than to vacate the judgment and remand the case to the district court for retrial by a different judge," id. at 935. The Ninth Circuit reached that conclusion despite acknowledging "that a retrial will involve considerable additional expense, perhaps with the same result as the first trial." Id.

The imposition of a requirement of actual bias on a record disclosing far more serious violations of 28 U.S.C. s 455(a) than those at issue in Cooley and Preston presents a clear conflict on an important issue with direct bearing on maintaining the integrity of the judicial process. This Court's decision not to vacate the findings of fact and conclusions of law in this case after explicitly stating that "[m]embers of the public may reasonably question whether the District Judge's desire for press coverage influenced his judgments," Op. at 120 -- not merely his judgments on the issue of remedy, but his judgments generally -- poses a "risk of undermining the public's confidence in the judicial process." Liljeberg, 486 U.S. 864. At a minimum, this Court's requirement of a showing of actual bias to obtain disqualification under 28 U.S.C. s 455(a) presents a substantial question that merits review by the Supreme Court.

C.

The Court has noted that "[r]ulings in this case have potentially huge financial consequences for one of the nation's largest publicly-traded companies and its investors." Op. at 117. Allowing the mandate to issue when questions going to the fundamental integrity of proceedings in the district court have not been finally resolved subjects Microsoft to the threat of severe and unnecessary injury. It also subjects both the federal judiciary and the parties to costly and distracting proceedings that may prove in the end to be of no avail. As proceedings on remand in this action will "require significant time and attention," the interests of the parties, the judiciary and the public would best be served by affording Microsoft "a full opportunity to seek review in the Supreme Court of the United States" before going forward. Books, 239 F.3d at 829.

Respectfully submitted,

______________________________

William H. Neukom
Thomas W. Burt
David A. Heiner, Jr.
MICROSOFT CORPORATION
One Microsoft Way
Redmond, Washington 98052
(425) 936-8080

John L. Warden
Richard J. Urowsky
Steven L. Holley
Richard C. Pepperman, II
SULLIVAN & CROMWELL
125 Broad Street
New York, New York 10004
(212) 558-4000

Counsel for Defendant-Appellant

August 7, 2001