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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,
ELISABETH A. SHUMAKER, Clerk

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 http://www.ca10.uscourts.gov 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.

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