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.

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.

Entered for the Court,
ELISABETH A. SHUMAKER, Clerk

by: Lara Smith
Counsel to the Clerk

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.

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.

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.

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.