Appeals court would defer


WASHINGTON - An appeals court announced yesterday that it would stand aside in the Microsoft Corp. antitrust case if, as expected, a federal judge refers the case this week to the Supreme Court.

In a two-page order, the U.S. Circuit Court of Appeals here set a schedule for written arguments on whether it should block the District Court ruling that ordered a breakup of the software company and tighter restrictions on its business behavior.

But the order stressed that the court would simply suspend its review of the case if U.S. District Judge Thomas Penfield Jackson agrees to send the case first to the Supreme Court, as the Justice Department and 19 states have asked.

The appeals court's action makes it appear, however, that Microsoft will have to turn to the Supreme Court first to seek a delay in Jackson's remedy order, because he is expected to transfer the case to the highest court quickly - perhaps today.

A plea to the Supreme Court to block the judge's order might provide some clue about the role the court sees for itself in reviewing the dispute. The justices have discretion on whether to review the case themselves right away or return it to the appeals court for the initial round of appeal.

Microsoft believes that the appeals court will be more sympathetic to its arguments.

For their part, the Justice Department and the states want to avoid the risk of a trip through that court by going directly to the Supreme Court.

Yesterday, in a last-hour attempt to persuade Judge Jackson not to send the case to the Supreme Court at this point, Microsoft contended that such a transfer would waste time.

The court is soon beginning its three-month summer recess, Microsoft noted, and likely would not act on the case until fall. In the meantime, if the case stayed at the appeals court, the company said, it would move along steadily through the summer, toward an earlier ruling.

Such a ruling by the appeals court could then move on to the Supreme Court. The justices, Microsoft said, would benefit from having the case sifted first by the appeals court.

To transfer the case to the justices now, it added, "would be to ask the Supreme Court to devote its time and energy to resolve legal issues more appropriately resolved by the court of appeals."

The case at this stage involves such a wide array of factual and legal issues that it should be pared down before moving on to the Supreme Court, the company contended.

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