When you're playing poker and have a weak hand, there's generally two options: fold or bluff. If choosing the latter, it's crucial to project that your hand is much stronger than it is in the hope that your opponents will believe they'd better get out while they can. In the legal throwdown between New York and the Department of Transportation (DOT), the federal government played their hand with all their cards face up.
In a stunning error that will likely be cited as a "don't do this" example in law schools for years to come, Justice Department attorneys mistakenly docketed an internal memo that, among other discussions, included warnings to the DOT legal team that their legal angle to force the Metropolitan Transit Authority (MTA) to shut down its congestion pricing program for Manhattan is unlikely to succeed.
Hey! I'm Walkin' Here!
Following the lead of London and Singapore, New York lawmakers approved a congestion pricing plan in 2019. It charges a daily fee for vehicles travelling in Manhattan from 60th Street to the southern tip of the New York City borough. It launched in November of 2024 with lower rates than anticipated ($9 instead of $15) and reduced rates for taxis and rideshares.
In addition to reducing the number of vehicles and pollution in Manhattan, the program is intended to generate enough revenue to enable the MTA to issues bonds to raise capital for renovating the subway system. While congestion pricing has its critics, traffic has declined by 12.8% (about 5.8 million vehicles) and the MTA says the program is on track to raise $500 million from tolls during its first year.
Congestion pricing has always caught the ire of President Donald Trump, so it was little surprise to many when DOT Secretary Sean Duffy announced that he was ordering the program to be shut down in February. New York Governor Kathy Hochul instead had the MTA sue the DOT and kept the program in place. She also ignored additional deadlines from Duffy in March and April, vowing that the cameras used to assess tolling "will stay on."
Did You Also Represent Alex Jones?
Duffy has repeatedly threatened New York with a variety of sanctions over congestion pricing. He maligned the New York City subway system numerous times before actually riding on it, and his claims that it's crime-ridden "sh*thole" that commuters are afraid to use are undermined by falling crime rates and over four million riders per day.
Less than a week after Duffy criticized Hochul and the MTA for ignoring a deadline to end congestion pricing, Justice Department attorneys at the South District of New York (SDNY) filed a document for the case with the court on April 23, 2025. Unfortunately for the DOT, it was a private internal memo instead of the legal papers it had intended. Addressed to the DOT's Senior Trial Attorney, it expressed doubts that the DOT's current legal arguments would convince the judge to rule against the MTA.
The 11-page letter doubted that the challenge against cordon pricing would work and that there was "no compelling legal argument" to support the DOT's position. The attorneys noted that Duffy's attempt to shutter the program was "contrary to law, pretextual, procedurally arbitrary and capricious, and violated due process."It went on to suggest possible alternative administrative routes for shutting down congestion pricing that might have a better chance of success.
SDNY called the posting of the letter "an honest mistake" and "not intentional in any way." They were blasted by the DOT, who suggested it was either incompetence or done on purpose.
Ask Not for Whom the Toll Tolls
After asking the court to somehow unring the bell by sealing the document, the DOT had the SDNY attorneys removed from the case. It was transferred to Justice Department attorneys based in Washington. This was also done earlier in the year when SDNY attorneys refused to file to dismiss corruption charges against New York Mayor Eric Adams.
Duffy, a former reality-tv star and U.S. Congressman, set a new deadline of May 21 for compliance. It seems unlikely that New York's congestion pricing train is going to stop at that station.
Related Resources
- Manhattan's Congestion Pricing Saga Takes a Turn (FindLaw's Law and Daily Life)
- New York Traffic Laws (FindLaw's State Laws)
- Subway Accidents and Settlements (FindLaw's Torts and Personal Injury Law)
