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MANHATTAN (CN) — The Department of Transportation and its Justice Department lawyers are at odds over their ongoing legal effort to axe Manhattan’s congestion pricing pilot program after federal attorneys accidentally docketed an internal memo outlining their concerns with the case.
Transportation Secretary Sean Duffy announced plans to kill the program in February, calling it a “slap in the face to working class Americans and small business owners." Lawyers at the Southern District of New York are representing Duffy and the Trump administration’s Department of Transportation after it was sued by the Manhattan Transit Authority over Duffy’s demand to do so.
But late Wednesday night, those Justice Department attorneys uploaded an internal letter to the public court docket in which they discussed how difficult it would be for Duffy to win the case.
Assistant U.S. Attorneys Dominika Tarczynska, David Farber and Christine Poscablo wrote that “there is considerable litigation risk” in defending Duffy’s decision, which they said was “contrary to law, pretextual, procedurally arbitrary and capricious, and violated due process.”
As it turns out, the 11-page letter, addressed to Department of Transportation senior trial attorney Erin Hendrixson and dated April 11, was uploaded by mistake. The Justice Department lawyers asked the court on Thursday to seal the filing, which they say is privileged.
“Although the contents of the document have been made public in news reporting, the document was filed in error and should not be considered part of the court docket,” they wrote.
The Department of Transportation lambasted the federal attorneys in a statement to Courthouse News.
“Are SDNY lawyers on this case incompetent or was this their attempt to RESIST?” a department spokesperson said in an email. “At the very least, it’s legal malpractice. It’s sad to see a premier legal organization continue to fall into such disgrace.”
Nicholas Biase, a spokesperson for the Southern District of New York, said in a statement: “Unfortunately, an attorney-client privileged document was erroneously filed on the public docket last night. This was an honest error and was not intentional in any way. Upon realizing the error, we immediately took steps to have the document removed. We look forward to continuing to vigorously advocate in the best interest of our clients, the DOT and FHWA, in this matter.”
The Federal Highway Administration is also a named defendant in the case.
Duffy claims that congestion pricing is unlawful since it establishes a “cordon pricing” zone in Manhattan without a free alternative route. He also argues that the program’s primary goal is to raise revenue, not reduce traffic congestion, which does not make it an eligible pilot project under federal law.
“Neither of these reasons is likely to convince the court,” the lawyers wrote in the internal memo.
The lawyers say that “legislative history makes clear” that the program is likely legal under the Congressional statutes Duffy claims it violates. They also acknowledged that congestion pricing has been clear in its goals to both raise revenue and reduce congestion, and early data from the program shows that it has been successful in doing both.
“SDNY’s memo doesn’t represent reality,” a Transportation Department spokesperson said. “Kathy Hochul’s congestion pricing war against the working class was hastily approved by the Biden Administration after Donald Trump was elected. Taxpayers already financed the highways that Hochul is now shutting down to the driving public and there is no free alternative. This is unprecedented and illegal. If New York doesn’t shut it down, the Department of Transportation is considering halting projects and funding for the state.”
The lawyers proposed an alternate legal strategy: to argue that the federal government has the power to end “cooperative agreements” if it no longer meets his agency’s priorities.
Even that strategy is no sure thing, however. The congestion pricing program “does not have any explicit termination provisions, which may make this argument more difficult,” the lawyers said.
Transit activists celebrated the accidental filing, with one congestion pricing advocacy account writing on social media: “Even their own lawyers know they have a losing argument.”
Environmental lawyer Michael Gerrard told Courthouse News that the incident “ is the kind of mistake that law professors warn their students never to make.”
“What a boneheaded move to post an internal strategy document on the court docket,” he said Thursday. “It has to be an accident. We’ve all hit the wrong button.”
Gerrard added that the memo “confirms everything the MTA has been saying” about the case, and stands to give them a massive advantage in the courtroom.
The first-in-the-nation tolling program kicked off in early 2025, and charges passenger vehicles a daily $9 toll to enter Manhattan’s central business district during peak hours. Its goal is to raise $1 billion per year to fund the Manhattan Transit Authority’s aging public transportation infrastructure, as well as reduce pollution and slash traffic congestion in the busiest part of New York City.
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