H/T to Chris Bray for noting the unusual exchange of letters in the Belfast Project case. The government submitted a letter to the panel arguing that the lawyer for Moloney & McIntyre had argued facts not in the record at oral argument. There was little question that the plaintiffs’ lawyer did stray from the record, but the judges can easily tell what’s in the record and what’s not, so it’s not clear to me why the government thought the letter was a good idea. In any event, M&M’s lawyer submitted a letter in reply asserting that the facts outside the record to which he referred were true and that there is no provision in the FRAP for submitting such letters to the panel after argument.
This must be the silly season in the Belfast Project case. Dueling post-argument letters? I am not sure of the procedural correctness of the government’s letter. The Federal Rules are silent, and the letter is pretty plainly not a citation of supplemental authorities under Rule 28(j). On the other hand, Rule 22(c) of the Massachusetts Rules of Appellate Procedure, which I’ve never seen used in practice, does allow for post-argument written submissions—but by the appellant, not the appellee. All in all, I think the government made a mistake in submitting this letter, particularly on a point that I don’t think should much matter to the case.