DOJ Scores Spectacular Own Goal In NY Congestion Pricing Case

Last night at roughly 9 p.m., thousands of very online lawyers had a sympathetic panic attack. The precipitating event was a litigation memo thoroughly rubbishing the Department of Transportation’s attack on New York’s congestion pricing plan which was inadvertently published on the public docket.

The memo, drafted by counsel in this case for the supervising attorney at the DoT, explained that “it is unlikely that Judge Liman or further courts of review” will accept Secretary of Transportation Sean Duffy’s theory that it was illegal for the Biden administration to approve tolls to cut traffic.

“It is unlikely the Court would conclude that a zonebased or area-wide pricing system i.e., cordon pricing—is not the type of ‘innovative’ pilot program included in the undefined and broad term ‘congestion pricing,’” they wrote.

They added the helpful suggestion that Duffy could likely accomplish the same goal by defunding the project through the Office of Management and Budget as a matter of changed executive priorities, while still beating his manly chest in this satisfying but doomed lawsuit.

“Importantly, DOT can seek termination of the agreement pursuant to the OMB regulations in addition to, and not in place of, defending the rationale laid out in the Secretary’s letter,” they write, in tacit acknowledgment that what is “important” is to protect the Secretary’s ego while sticking it to New York. And they’re clearly not wrong! Duffy and his agency have continued to tweet out threats against New York and its Governor Kathy Hochul, even as those posts harm the pending case.

The attorneys also warned that the lack of any actual agency record apart from Duffy’s shitposts “may lead plaintiffs to point to these ‘gaps’ in the administrative record as justification for extra-record discovery from DOT, including requests for production of emails and depositions of agency officials, including the Secretary in particular.” Whoopsie!

Meanwhile at the DOJ, after what we can only assume was an out-of-body experience, the AUSAs assigned to the case docketed the intended filing, a howling screed by Duffy threatening Hochul with dire consequences if she fails to remove the tolls. And this morning the office requested that the court strike or seal the internal memo. The government noted that the plaintiffs “have indicated that they would be open to discussing the issue of whether the document should remain under seal,” but insisted that no “further discussion among the parties is necessary given that the document is a privileged communication, was plainly filed in error, and the Government took immediate steps to notify the parties and have the document removed from the docket.”

This description may have elided the finer points. This morning the Plaintiff-Intervenors Riders Alliance and Sierra Club informed the court that they do, indeed, wish to discuss the issue of sealing further. To wit, they oppose it on grounds that every lawyer on social media has already seen the thing.

Judge Liman ordered the parties to brief the matter, leaving the document sealed on the record for the moment. And now we’ll all memory hole it and go back to pretending that the DOJ is still a functioning agency, not a hollowed out shell tasked with defending pointless, illegal revenge plots by the mad king.

MTA v. Duffy [Docket via Court Listener]

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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