IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN ANTITRUST INSTITUTE, INC., v. Plaintiff, MICROSOFT CORPORATION; JOHN ASHCROFT; and THE UNITED STATES OF AMERICA, Defendants. Civil Action No. 02-138 (CKK AAI S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO THE GOVERNMENT DEFENDANTS RENEWED MOTION TO DISMISS INTRODUCTION On February 11, 2002, Plaintiff AAI filed an Amended Complaint for Declaratory and Injunctive Relief, which mooted the motions to dismiss filed by Defendants the United States of America and Microsoft Corporation against the original complaint. Microsoft has not chosen to move against the Amended Complaint. However, the United States and a new government defendant named in the Amended Complaint, Attorney General John Ashcroft (together referred to herein as the Government Defendants, have filed a renewed motion to dismiss in light of the Amended Complaint. The Government Defendants renewed motion essentially is a new motion to dismiss the Amended Complaint, incorporating their earlier arguments against the original complaint and adding a few new ones that focus on changes made by the Amended Complaint. For the convenience of the Court in facilitating its consideration of the Government Defendants motion to dismiss within the current expedited schedule ordered by the Court with respect to the AAI s motion for a preliminary injunction,
AAI hereby responds to the renewed motion to dismiss rather than taking the full 11 days allowed by LCvR 7.1(b. 28 U.S.C. 1361 PROVIDES AN ADDITIONAL BASIS FOR RELIEF The Government Defendants argue that 28 U.S.C. 1361 is inapplicable to this case for two reasons: mandamus is not appropriate when another remedy exists and the federal government has no obligations to AAI. Both arguments lack merit. As AAI has demonstrated in its memoranda on its motion for preliminary injunction and in opposition to the Defendants motions to dismiss the original complaint, AAI has no adequate means to seek the relief in the Amended Complaint other than through this action. Although AAI intends to file a motion to participate in the antitrust case within the next week, the mere opportunity to seek permission to intervene or participate in that case, subject to the Court s discretion, does not constitute an adequate remedy. It is unknown, but highly doubtful, whether AAI will be permitted to seek the declaratory and injunctive relief requested in this action as a participant in the antitrust case. Therefore, at the most, AAI has an alternative inadequate possible remedy. In addition, it is uncertain whether even that inadequate possible remedy exists. While the Government Defendants advise the Court that it is aware of AAI s intention to move to participate (DOJ Supplemental Memorandum, at 4 n.2, they fail to also advise the Court that they oppose that motion. The bottom line is that, until the Court rules on AAI s motion to participate and, if it grants the motion, delineates the role that AAI may have and what relief it may seek in that proceeding, there is no way to know if even the inadequate possible remedy exists. Therefore, on this motion to dismiss, in which the Court must resolve ambiguities and inferences in favor of AAI, it cannot be assumed that AAI 2
will have an ability to seek its requested relief through participant status in the antitrust case. 1 Case law supports the notion that the ability to move for participation is not an adequate alternative remedy. To be adequate, an alternative remedy must be capable of affording full relief as to the very subject matter in question. Carter v. Seamans, 411 F.2d 767, 773 (5 th Cir. 1969 (finding an adequate alternative remedy where plaintiff had right of action in Claims Court and Claims Court could grant relief sought. The full relief sought by AAI is a declaratory judgment and a permanent injunction. It is not clear that status as a participant under 15 U.S.C. 16(f(3, if granted, affords the ability to obtain such relief. Cases denying mandamus relief do so on the basis of the availability of some other express statutory or administrative means of obtaining the relief requested. See, e.g., In re GTE Service Corp., 762 F.2d 1024 (D.C. Cir. 1985 (denying mandamus because plaintiff had alternative means of obtaining relief through express statutory right of action; Gray v. Office of Personnel Management, 771 F.2d 1504 (D.C. Cir. 1985 (denying mandamus because plaintiff had statutory right to appeal action by Office of Personnel Management to the Office of Special Counsel; Goodman v. Dalton, 1994 U.S. Dist. LEXIS 6514 (D.D.C. 1994 (denying mandamus because plaintiff could seek 1 Thus, all of the Defendants arguments that the antitrust case provides an adequate alternative remedy are premature. If the Court denies participant status to AAI, then there is not even a potential for a remedy there, and if the Court grants participant status to AAI, then Defendants can move at that time for a motion to dismiss on that basis. In any event, it would not be proper to resolve the current uncertainties against AAI on a motion to dismiss. 3
discharge correction through petition for review by Board of Correction of Naval Records or in action in U.S. Court of Claims or appropriate federal district court; Horton v. Dept. of Justice, 1990 U.S. Dist. LEXIS 12916 (D.D.C. 1990 (denying mandamus because prisoner could seek relief through prison grievance procedure or litigation against those responsible for conduct complained of. In this case, there is no administrative remedy within the Justice Department to seek review of its Tunney Act compliance and there is no other statute (other than those asserted in the Amended Complaint that affords a right of action to seek the requested declaratory and injunctive relief. Indeed, it is highly significant that the Justice Department does not even claim that there is. It claims only that the antitrust case is an alternative forum in which these matters will be addressed. DOJ Supplemental Memorandum, at 4. They will? The Justice Department wants to prevent the Court from addressing AAI s claims by opposing AAI s participation. Moreover, nowhere does the Justice Department state that AAI would have the right to seek the declaratory and injunctive relief sought in its Amended Complaint or even that the Court has the authority to grant such relief in the antitrust case, even if the Court were to reject the Justice Department s attempt to preclude the Court from addressing the matter. The other point made by the Justice Department, that the Tunney Act does not create any duty owed to AAI, is equally flawed. Section 16(b of the Tunney Act states that [a]ny written comments and any responses by the United States thereto shall... be filed with such district court and published by the United States in the Federal Register. 15 U.S.C. 16(b (emphasis added. Thus, the Justice Department has the duty to file and publish AAI s comments and its responses thereto. Section 16(b of the Tunney Act states that copies of any other materials and documents which the 4
United States considered determinative in formulating such proposal, shall also be made available to the public at the district court and in such other districts as the court may subsequently direct. Id. (emphasis added. Thus, the Justice Department has the duty to make such determinative documents available to AAI in the places specified. Section 16(b of the Tunney Act states that the United States shall file with the district court, publish in the Federal Register, and thereafter furnish to any person upon request, a competitive impact statement which shall recite the required items. Id. (emphasis added. Thus, the Justice Department has the duty to furnish to AAI a CIS containing the required disclosures. Section 16(d of the Tunney Act states that the United States shall receive and consider any written comments relating to the proposal for the consent judgment submitted under subsection (b. Id. at 16(d (emphasis added. Thus, the Justice Department owes a duty to receive AAI s comments and to consider them. Section 16(d of the Tunney Act states that the United States shall file with the district court and cause to be published in the Federal Register a response to such comments. Id. (emphasis added. Thus, the Justice Department owes a duty to file and publish its response to AAI s comments. There is nothing discretionary about these duties. 2 They are mandatory. AAI seeks to enforce them. It seeks to do so through statutes that provide it a right of action to do just that, including the Administrative Procedures Act. If AAI succeeds on the merits of those rights of action, the Court may, 2 The Justice Department argues that its duties under the Tunney Act are discretionary because it need only comply with them if the Government wishes to settle an antitrust action by means of a consent judgment entered by a court. DOJ Supplemental Memorandum, at 5 (emphasis in original. We agree. If the Justice Department withdraws its RPFJ, it need not comply with the duties of the Tunney Act. If it does not, however, the duties of the Tunney Act are not discretionary; they are mandatory. 5
among other things, order the Attorney General to carry out the government s obligations to AAI and other members of the public pursuant to 28 U.S.C. 1361. Therefore, this Court should deny the Justice Department s motion to dismiss and grant a preliminary injunction pending this Court s determination of whether the Justice Department has complied with the requirements of the Tunney Act. Respectfully submitted this day of February, 2002. By: Michael G. Lenett (D.C. Bar #425592 Jonathan W. Cuneo (D.C. Bar #939389 The Cuneo Law Group, P.C. 317 Massachusetts Avenue, N.E., Suite 300 Washington, DC 20002 (202 789-3960 (Tel. (202 789-1813 (Fax 6
CERTIFICATE OF SERVICE I hereby certify that I caused a copy of AAI s Memorandum of Points and Authorities in Opposition to the Government Defendants Renewed Motion to Dismiss to be served as indicated below, this day of February, 2002, on the following: U.S. Attorney General John Ashcroft (mail U.S. Department of Justice Tenth St. & Constitution Ave., N.W. Washington, D.C. 20530 U.S. Attorney Roscoe C. Howard, Jr. (mail U.S. Attorney for the District of Columbia 555 4 th Street, N.W. Washington, D.C. 20001 Renatta Hesse (mail and fax U.S. Department of Justice 601 D Street, N.W. Suite 1200 Washington, D.C. 20530 Ori Lev (mail and fax U.S. Department of Justice 950 Pennsylvania Ave., N.W. 901 E. Street Building, Room 940 Washington, D.C. 20530 Attorneys for Defendants John Ashcroft and the United States John L. Warden (all by mail and fax James H. Carter, Jr. Kate Usdrowski SULLIVAN & CROMWELL 125 Broad Street New York, New York 10004-2498 7
Attorneys for Defendant Microsoft Corporation Susan Leigh THE CUNEO LAW GROUP, P.C. 317 Massachusetts Ave., N.E. Suite 300 Washington, D.C. 20002 Telephone: (202 789-3960 Fax: (202 789-1813 8