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.