A federal judge ruled late Wednesday that an accidentally released memo, in which lawyers for the Trump administration had detailed the weaknesses of the government’s strategy to end congestion pricing in New York City, cannot be used in court.
The decision closes an embarrassing chapter for the U.S. Department of Transportation, after its legal counsel in April mistakenly uploaded the document and effectively revealed the agency’s game plan to kill the new tolling program.
But the ruling was something of a hollow victory for the administration, in that many of the points raised in the memo were no secret to the Metropolitan Transportation Authority, the operator of the toll program, before the document had been exposed.
Lawyers for the U.S. attorney’s office in Manhattan wrote and uploaded the memo, which caused a tense rift between them and the Transportation Department. A day after the document was released, a department spokeswoman called the lawyers incompetent and suggested that they might have tried to sabotage the case.
The Transportation Department said it had replaced the lawyers involved in the accident, but recent court filings still listed them as counsel in the case.
In his ruling, Judge Lewis J. Liman of the Southern District of New York, wrote that the transit authority and its backers had already challenged the federal government on similar grounds, and that “there was never a concern that the experienced counsel in this case would need to freeload off the arguments of the United States attorney’s office.”
Still, Judge Liman partly ruled in favor of the federal government, noting that the memo could not be used as evidence in the case because it contained privileged attorney-client communications and that its disclosure had been inadvertent.
“There is no reason to doubt that the attorneys engaged in a late-night filing simply selected the wrong file for upload, without any intent to make the selected document public,” the judge wrote. Shortly after the mistake was made, the memo was removed from the court docket; the judge’s ruling will make the document public again.
The Department of Transportation did not immediately respond to a request for comment and directed questions about its legal counsel to the Justice Department.
In February, the transportation secretary, Sean Duffy, said that he was withdrawing federal approval for the congestion pricing program, which charges most drivers $9 to enter Manhattan south of 60th Street. He argued that the plan went beyond the scope of a federal program used to authorize it, and that the toll should not be used primarily to fund mass transit.
In the 11-page memo, lawyers from the Southern District of New York warned that the Transportation Department’s legal arguments were “exceedingly likely” to fail, and that it should change tack.
The M.T.A., which runs mass transit in New York and has sued to stop the federal government’s intervention in the program, has argued that the secretary’s reasoning contradicts years of public review and study of the plan, which was approved by the Biden administration last year. Tolling began on Jan. 5.
Michael Gerrard, a professor at Columbia Law School who supports congestion pricing, said the judge’s decision not to allow the memo to be used in court was immaterial, because its contents had already been so widely shared.
“The M.T.A. can’t cite it, but it needn’t — the judge is fully aware of its contents,” he said in an email.
Kathryn Freed, a retired New York State Supreme Court justice who is part of a group that sued to stop congestion pricing, said that such memos detailing legal strategy were common in lawsuits. In this instance, she added, the document would have little effect on the legal battle over the tolls because it did not contain new information or arguments and it did not address the larger issue of the program’s negative influence on the city.
“The ruling is more important in the court of public opinion than in the court of law,” she said.
The decision comes after a wave of good news for the embattled tolling plan. Four months after the toll cameras were turned on, traffic in both central Manhattan and surrounding areas is down; fewer vehicles are on the road; the local economy has not suffered, as some critics predicted; and the M.T.A. is on pace to finance $15 billion in transit repairs and improvements with revenue from the tolls.
But the program remains at risk. Mr. Duffy has threatened repeatedly that his office will withhold federal funding from a host of transportation projects in New York State if the program is not shut down. He has given Gov. Kathy Hochul until May 21 to stop the program, or else some funding will be withheld starting the following week. Ms. Hochul has vowed to keep charging the tolls.
The next major decision in the court case is whether Judge Liman will grant the M.T.A. a preliminary injunction forbidding the federal government from following through on its threats.
Stefanos Chen is a Times reporter covering New York City’s transit system.
Winnie Hu is a Times reporter covering the people and neighborhoods of New York City.
The post Judge Rules Internal Congestion Pricing Memo Can’t Be Used in Court appeared first on New York Times.
