{"id":116349,"date":"2025-04-24T15:44:06","date_gmt":"2025-04-24T23:44:06","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/04\/24\/doj-scores-spectacular-own-goal-in-ny-congestion-pricing-case\/"},"modified":"2025-04-24T15:44:06","modified_gmt":"2025-04-24T23:44:06","slug":"doj-scores-spectacular-own-goal-in-ny-congestion-pricing-case","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/04\/24\/doj-scores-spectacular-own-goal-in-ny-congestion-pricing-case\/","title":{"rendered":"DOJ Scores Spectacular Own Goal In NY Congestion Pricing Case"},"content":{"rendered":"

Last night at roughly 9 p.m., thousands of very online lawyers had a sympathetic panic attack. The precipitating event was a litigation memo<\/a> thoroughly rubbishing the Department of Transportation\u2019s attack on New York\u2019s congestion pricing plan which was inadvertently published on the public docket.<\/p>\n

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So, uh, it certainly looks like DOJ intended to file a letter to Judge Liman in MTA v. Duffy, but\u2026.it accidentally filed a letter containing its legal advice to the Department of Transportation insteadstorage.courtlistener.com\/recap\/gov.us\u2026<\/p>\n

\u2014 Anna Bower (@annabower.bsky.social)<\/a> 2025-04-24T01:55:40.446Z<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

The memo, drafted by counsel in this case for the supervising attorney at the DoT, explained that \u201cit is unlikely that Judge Liman or further courts of review\u201d will accept Secretary of Transportation Sean Duffy\u2019s theory that it was illegal for the Biden administration to approve tolls to cut traffic.<\/p>\n

\u201cIt is unlikely the Court would conclude that a zonebased or area-wide pricing system i.e., cordon pricing\u2014is not the type of \u2018innovative\u2019 pilot program included in the undefined and broad term \u2018congestion pricing,\u2019\u201d they wrote. <\/p>\n

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.<\/p>\n

\u201cImportantly, 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\u2019s letter,\u201d they write, in tacit acknowledgment that what is \u201cimportant\u201d is to protect the Secretary\u2019s ego while sticking it to New York. And they\u2019re 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<\/a>.<\/p>\n

The attorneys also warned that the lack of any actual agency record apart from Duffy\u2019s shitposts \u201cmay lead plaintiffs to point to these \u2018gaps\u2019 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.\u201d Whoopsie!<\/em><\/p>\n

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<\/a> by Duffy threatening Hochul with dire consequences if she fails to remove the tolls. And this morning the office requested<\/a> that the court strike or seal the internal memo. The government noted that the plaintiffs \u201chave indicated that they would be open to discussing the issue of whether the document should remain under seal,\u201d but insisted that no \u201cfurther 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.\u201d <\/p>\n

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<\/a> on grounds that every lawyer on social media has already seen the thing.<\/p>\n

Judge Liman ordered the parties to brief the matter, leaving the document sealed on the record for the moment. And now we\u2019ll 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.<\/p>\n

MTA v. Duffy<\/a> [Docket via Court Listener]<\/p>\n

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Liz Dye<\/a>\u00a0lives in Baltimore where she produces the Law and Chaos\u00a0substack<\/a>\u00a0and\u00a0podcast<\/a>.<\/strong><\/em><\/p>\n<\/p>\n<\/p>\n

The post DOJ Scores Spectacular Own Goal In NY Congestion Pricing Case<\/a> appeared first on Above the Law<\/a>.<\/p>\n

Last night at roughly 9 p.m., thousands of very online lawyers had a sympathetic panic attack. The precipitating event was a litigation memo<\/a> thoroughly rubbishing the Department of Transportation\u2019s attack on New York\u2019s congestion pricing plan which was inadvertently published on the public docket.<\/p>\n

The memo, drafted by counsel in this case for the supervising attorney at the DoT, explained that \u201cit is unlikely that Judge Liman or further courts of review\u201d will accept Secretary of Transportation Sean Duffy\u2019s theory that it was illegal for the Biden administration to approve tolls to cut traffic.<\/p>\n

\u201cIt is unlikely the Court would conclude that a zonebased or area-wide pricing system i.e., cordon pricing\u2014is not the type of \u2018innovative\u2019 pilot program included in the undefined and broad term \u2018congestion pricing,\u2019\u201d they wrote. <\/p>\n

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.<\/p>\n

\u201cImportantly, 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\u2019s letter,\u201d they write, in tacit acknowledgment that what is \u201cimportant\u201d is to protect the Secretary\u2019s ego while sticking it to New York. And they\u2019re 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<\/a>.<\/p>\n

The attorneys also warned that the lack of any actual agency record apart from Duffy\u2019s shitposts \u201cmay lead plaintiffs to point to these \u2018gaps\u2019 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.\u201d Whoopsie!<\/em><\/p>\n

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<\/a> by Duffy threatening Hochul with dire consequences if she fails to remove the tolls. And this morning the office requested<\/a> that the court strike or seal the internal memo. The government noted that the plaintiffs \u201chave indicated that they would be open to discussing the issue of whether the document should remain under seal,\u201d but insisted that no \u201cfurther 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.\u201d <\/p>\n

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<\/a> on grounds that every lawyer on social media has already seen the thing.<\/p>\n

Judge Liman ordered the parties to brief the matter, leaving the document sealed on the record for the moment. And now we\u2019ll 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.<\/p>\n

MTA v. Duffy<\/a> [Docket via Court Listener]<\/p>\n

\n

Liz Dye<\/a>\u00a0lives in Baltimore where she produces the Law and Chaos\u00a0substack<\/a>\u00a0and\u00a0podcast<\/a>.<\/strong><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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\u2019s attack on New York\u2019s congestion pricing plan which was inadvertently published on the public docket. So, uh, it certainly looks like DOJ intended to file a […]<\/p>\n","protected":false},"author":3,"featured_media":116350,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-116349","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/04\/facepalm-fear-shame-embarrassed-embarrassment-face-to-palm-T5hjdd.jpeg?fit=724%2C483&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/116349","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=116349"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/116349\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/116350"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=116349"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=116349"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=116349"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}