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10th Circuit Court of Appeals Grants in Part SCO's Motion to Expedite Appeal - Updated
Monday, November 08 2010 @ 06:27 PM EST

The US Court of Appeals for the 10th Circuit in Denver, SCO's last-gasp hope, apparently believes that SCO always tells the truth. It has accepted as true SCO's assertion that Novell does not oppose SCO's motion to expedite.* Anyway, rather than wait to see if Novell files an opposition, the court has already granted in part SCO's motion, which SCO only filed on Friday. Here's the part that is granted:
This appeal will be placed on the January 2011 oral argument calendar. The decision on whether to expedite consideration of, and the decision in, this case is referred to the panel of judges that will decide the appeal on the merits.
So, they're leaving it up to the panel of judges chosen to hear the appeal as to whether or not to expedite how fast they rule, I guess, so that decision is delayed, but are they moving SCO ahead of the line on the schedule for oral argument? I can't tell. It seems so, in that it says the motion is granted in part, but by whom? Can clerks grant motions to expedite?

The January session is January 18-21. But something odd. This order doesn't list any judges as making this decision. It's signed by the clerk and the clerk's lawyer. Can they make this decision? Or did they forget to list the judges? It's definitely different from SCO's first appeal.

Anyway, now SCO can go to bankruptcy court and tell them that they should be able to delay selling the assets, or going into Chapter 7 alternatively, because they are soooo close to a decision from the appeals court.

Here it is, first:

11/08/2010 - Open Document - [9813156] Order filed by Clerk of the Court This matter is before the court on Appellant’s Unopposed Motion to Expedite Appeal (the “Motion”). Upon consideration, the Motion is granted in part, as provided below. Appellant’s optional reply brief remains due November 15, 2010. No extensions of time to file this brief will be considered. This appeal will be placed on the January 2011 oral argument calendar. The decision on whether to expedite consideration of, and the decision in, this case is referred to the panel of judges that will decide the appeal on the merits. [9812715-2]. Served on 11/08/2010.

And that's all the Order says. But what's left to expedite? How fast the judges write it up? Whether they decide it before other cases heard in the same session? Or whether it gets heard on the 18th or the 21st? Interestingly as I mentioned, it's signed like this:
Entered for the Court,

by: Lara Smith
Counsel to the Clerk

So now the clerk has a lawyer? Can she grant motions?

The last time SCO appealed, when it asked for the case to be expedited, it was also partly granted, and it was entered for the court by Ms. Shumaker and the Chief Deputy Clerk, Douglas E. Cressler, but two judges were involved in making the decision, Justice Kelly and the one now retired, Justice McConnell. This time, there are no judges listed as being involved.

SCO was told back then you can't ask to expedite consideration until a panel of judges is chosen after the case is fully briefed. Yet, here it is again, asking before there is a panel and before it's fully briefed. I note the appeals court, or the counsel to the clerk anyway, says that SCO's reply brief is optional, so maybe that makes it faster, if SCO skips that part. But no panel is chosen. I gather you can ask to get on an early oral argument session. But did they? Maybe this is the normal time frame. But then what's being granted in part, and by whom? If they are jumping ahead of other cases, don't judges make a decision like that?

Here's what happened last time, when SCO was told to file a motion to expedite after the panel was chosen:

Pending before the court is "Appellant's Unopposed Motion to Expedite Appeal" and the "Defendant-Appellee Novell, Inc.'s Response to Appellant's Motion to Expedite Appeal." The motion is granted in part.

Appellant appeals a decision of the district court related to UNIX operating system copyrights. Appellant asserts that the progress of other pending litigation is dependent on the resolution of this appeal and therefore asks that the appeal be expedited. The appellant asks to be ordered to file its opening brief by March 6, 2009, for the appellee to be ordered to file its response brief by April 6, 2009, and to be ordered to file a reply brief by April 20, 2009. The appellee does not strongly object to the appeal being expedited, but does object to the briefing schedule, asking for a 30-day extension to file its response brief beyond that proposed by the appellant.

The speed at which the opening brief is filed is almost completely within the control of the appellant who now seeks expedited briefing. The appellant can file its opening brief and appendix at any time those documents are ready, thus triggering a due date for the filing of a response brief. Appellant can also file its reply brief the next day after the response brief is filed, should appellant so elect. Therefore, there is no need to set an expedited schedule for the filing of the opening brief and reply.

The court does direct, however, that once the time for the filing of the appellee's response brief is set based on the service date of the opening brief and appendix (see Fed. R. App. P. 31(a)(1)), the appellee is discouraged from filing any motion for extension of time within which to file its response brief. Further, if appellee does seek an extension of time, the appellee is limited to a single extension of time of no more than 15 days.

The court infers from the motion to expedite that once the appeal is briefed, the appellant would like the panel of judges assigned to the case to give this appeal expedited consideration over other cases. However, in this circuit, the appeal will not be assigned to a panel until after it is fully briefed. After the briefing is completed, the appellant may, if it so elects, file a motion asking that the case be given expedited consideration on the merits by the panel ultimately assigned to hear this appeal.

So I looked at the Timeline to see if there had ever been such a motion, but instead all I see is SCO followed the clerk's "guidance" and asked in a footnote in its appeal brief that it be hurried up:
10 Based on the guidance of the Clerk’s Office, in addition to the expedited briefing schedule that this Court has set, SCO respectfully requests that oral argument be scheduled in this matter for either the May 2009 panel or a special panel to convene in June 2009. SCO is willing to file its reply brief earlier than otherwise required in order to facilitate that scheduling.
What is going on in Denver? Is it all foreordained, so nobody cares? Or nobody pays much attention to details? Or they keep changing? Here's a copy of the rules they're supposed to follow.

When do we find out about the panel of judges, you ask? According to this FAQ [PDF], we find out a week before the day set for oral argument:

When can I find out who my panel will be?

The week before oral arguments, the three judge panels will be listed on our website, the panel members are not disclosed before this time. Please go to and click on the Argument Calendar tab to find your panel.

If you look at the court's schedule [PDF] for oral argument going forward for this year, there's a November session, which SCO didn't get on. The next possibility is January 18-21, the one they got, according to the list for 2011 [PDF]. How can the clerk's lawyer give them expedited scheduling on oral argument is my question, if that has just happened? And where are the judges in this decision? Or more accurately, are there any? If so, which ones? Can the clerk and the clerk's lawyer alone rule on a motion to expedite, even in part? I gather so, since it seems like it just happened. If anyone knows the explanation, do tell. I can't explain any of this, because it doesn't at all match what happened the last time.

Update: * Old timers may remember the 2006 SCO motion that SCO claimed was stipulated to by IBM, but it was not. IBM's opposition [PDF] made it clear:

7. Despite the fact that IBM made perfectly clear to SCO that it opposed SCO’s request for an additional extension, SCO filed tonight a “stipulation and joint motion,” with the conformed signature of undersigned counsel. SCO did so without IBM’s consent, and that “stipulation” does not reflect IBM’s position. That motion should be denied.
Ah, SCO, SCO, SCO. Anyway, just a word to the wise.


10th Circuit Court of Appeals Grants in Part SCO's Motion to Expedite Appeal - Updated | 68 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: stats_for_all on Monday, November 08 2010 @ 06:31 PM EST
as always

[ Reply to This | # ]

Spelling corrections here, please...
Authored by: jbeadle on Monday, November 08 2010 @ 06:33 PM EST
So PJ can find 'em quickly.


[ Reply to This | # ]

Off Topic
Authored by: stats_for_all on Monday, November 08 2010 @ 06:34 PM EST
MOR's for September filed.... Blank Rome paid through Feb Bill, and Cash on hand
shrinks to 551,000.

[ Reply to This | # ]

Off Topic here, please...
Authored by: jbeadle on Monday, November 08 2010 @ 06:35 PM EST
If posing links, please do so in HTML mode.


[ Reply to This | # ]

New Picks comments here, please...
Authored by: jbeadle on Monday, November 08 2010 @ 06:37 PM EST
The title should reflect the news pick...


[ Reply to This | # ]

All things COMES here, please...
Authored by: jbeadle on Monday, November 08 2010 @ 06:38 PM EST
Thanks to all who keep the documentation coming...



[ Reply to This | # ]

Novell does not oppose
Authored by: webster on Monday, November 08 2010 @ 06:49 PM EST

No party would tell the court that the other party did not oppose their motion
unless they had called them up and asked their position, even SCO. One normally
asks for consent so one can caption the Motion as a "Consented Motion"
to whatever.

A party might say we don't consent but we don't oppose it either. That means
the party won't even respond and oppose the motion. Remember Novell doesn't
even think oral arguments are necessary thought they will be "happy"
to tell the court anything they might wish to hear. Novell probably suggested
that both waive arguments when SCO asked them about expediting.

SCO's creds with PJ is low, but aspersions here are unwarranted. She should
assume SCO checked with Novell.


[ Reply to This | # ]

10th Circuit Court of Appeals Grants in Part SCO's Motion to Expedite Appeal
Authored by: tknarr on Monday, November 08 2010 @ 07:01 PM EST

I think what's happening is that the clerk's basically granting what's possible now (scheduling oral arguments for the earliest possible session) and deferring everything else to whatever panel of judges is actually assigned. That panel can decide eg. whether or not they're going to give SCO's appeal an early spot in the session or not. The only substantial thing seems to be disallowing any extensions, and I think that'd be easily defensible since it's SCO that's asked for things to be expedited and extensions are the exact opposite of expediting things so SCO can't very well object to them being disallowed.

IOW they're giving SCO the bits they can, and punting the rest to the final panel (whoever that turns out to be).

[ Reply to This | # ]

This is interesting...
Authored by: HockeyPuck on Monday, November 08 2010 @ 07:01 PM EST
But I got to thinking for a second (a first). What if the panel is a group of
judges with specific expertise, being in a DB that chooses from the next
available? I also would imagine the courts work on a fairly strict timetable. It
would be easy to offload a scheduling function like this.

Now based on past protocol, this appears to be strange... unless. Since they
already read the briefs (I assume); could they simply want to get this over
with? I know far fetched.

[ Reply to This | # ]

Excellent news for SCO
Authored by: sk43 on Monday, November 08 2010 @ 07:05 PM EST
According to the 10th Circuit's Practitioners' Guide, the median time between
the filing of the Appellee's brief and oral argument is normally 2.9 months.
Novell filed its brief on October 29. If SCO does get scheduled for the January
session, then the elapsed time will have been only 2.7 months. SCO has
expedited the process by 0.2 months (i.e. 6 days). Goes to show it never hurts
to ask.

[ Reply to This | # ]

"Can the clerk and the clerk's lawyer alone rule on a motion to expedite, even in part?"
Authored by: webster on Monday, November 08 2010 @ 07:43 PM EST

They are probably authorized to grant routine, unopposed or consented requests
for "extensions of time" or expeditions so long as they are not
repetitive and inordinately long, especially before a panel is named.


[ Reply to This | # ]

"Novell does not oppose SCO's motion to expedite"
Authored by: Yossarian on Monday, November 08 2010 @ 08:18 PM EST
My reading of Novell's brief is that Novell is pretty sure
that it has a strong case and that it is ready to go.

If my impression is true then opposing the motion makes no
sense. It would cost Novell extra money without bringing any
benefit. So why bother?

[ Reply to This | # ]

10th Circuit Court of Appeals Grants in Part SCO's Motion to Expedite Appeal
Authored by: Anonymous on Monday, November 08 2010 @ 09:23 PM EST
The only thing I can think of is this. The panel is already
set, but they won't disclose it until a week before the
arguments. So, the judges on the panel probably ruled in
favor of the request to expedite, but because they can't be
revealed until the week of the 11th, none were listed.

Honestly, would you want the judges listed on the order?
After all, that would possibly tell Yarro (or Cahn, or
whoever) which judges they need to send extra big Christmas
gifts to this year.

Have a great day:)

[ Reply to This | # ]

  • Bad theory - Authored by: Anonymous on Tuesday, November 09 2010 @ 06:52 AM EST
Last time brief's weren't in, this time they are
Authored by: Anonymous on Monday, November 08 2010 @ 09:58 PM EST
In the previous request for an expedited hearing, no briefs had been submitted.
This time, the appeal and reply briefs have been submitted and only SCO's
optional response brief is outstanding.

That's a significant difference.

It appears the court would normally wait until after the response brief was
received to assign a panel and schedule the hearing, but has expedited this by
scheduling them for a January hearing now - on condition that SCO get their
response brief in on time or loose it.

Last time, the court wouldn't (couldn't) commit to a schedule for the hearing
because all the briefs were outstanding - notably, Novell's reply which could
have a 15 day extension. There was too much uncertainty to permit scheduling.
This time, Novell's reply is already in hand (and they aren't objecting) so
their is no prejudice to Novell to expedite the hearing. The only uncertainty if
whether SCO can submit their response brief on time, and that's solved by
telling them to do so or loose it.

Also, with only 7 days before the response is due, the Clerk may know there
would still be space in the January hearing schedule even if they'd waited until
receiving the response to schedule the case. So, the only actual expedition may
be giving them the date now.

In neither case would the court commit to an expedited decision before hearing
the case, which makes sense (someone might bring up an issue in the hearing that
requires more than usual research and consideration).

[ Reply to This | # ]

10th Circuit Court of Appeals Grants in Part SCO's Motion to Expedite Appeal - Updated
Authored by: Anonymous on Tuesday, November 09 2010 @ 06:47 AM EST
Is it possible that since this is a second appeal from the same original case
that the order from the request to expedite the previous appeal, and all of its
explanations, are implicitly included in this order? After All, SCO has been
told the rules once before, and why waste the court's time and energy to tell
them what they've already been told?

[ Reply to This | # ]

10th Circuit Court of Appeals Grants in Part SCO's Motion to Expedite Appeal - Updated
Authored by: JamesK on Tuesday, November 09 2010 @ 07:55 AM EST
What is going on in Denver?

Any chance someone's gone beyond their authority? Forgery?


(I am not a lawyer and I don't play one on TV)

[ Reply to This | # ]

10th Circuit Court of Appeals Grants in Part SCO's Motion to Expedite Appeal - Updated
Authored by: Anonymous on Tuesday, November 09 2010 @ 12:41 PM EST
Can Novel still opppose?

[ Reply to This | # ]

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