Lawyers for the U.S. Department of Transportation are not planning to seek an emergency order to halt congestion pricing if the toll keeps going after April 20, the Trump administration's current deadline for Gov. Hochul to end the toll, according to a new court filing.
In a letter to Judge Lewis Liman, who's overseeing the MTA's lawsuit challenging Transportation Secretary Sean Duffy's bid to withdraw federal approval of the toll, MTA attorney Roberta Kaplan said that federal lawyers said they don't plan on asking for an emergency injunction should the deadline come and go.
"The MTA ... specifically asked whether the federal defendants contemplate taking any unilateral action on or after April 20 that might require plaintiffs to seek expedited injunctive relief," Kaplan wrote. "The federal defendants ... did state that, at present, they do not intend to seek preliminary injunctive relief themselves."
The decision not to seek an injunction when the MTA blows past the double secret probation deadline Duffy announced after the agency ignored his original March 20 deadline means that congestion pricing will be sticking around at least through the summer, based on the filing schedule on which the plaintiffs and defendants agreed, according to Kaplan's letter.
Per that schedule, the federal government won't turn over the administrative record until May 27, seven weeks from now. The administrative record, a collection of every communication and document a government agency has in its possession to demonstrate how it came to make a decision, is key in lawsuits centered around violations of administrative procedure, as the MTA's suit against Duffy is.
Usually the administrative record is the only document a judge is supposed to use to determine whether an agency acted rationally when making an administrative decision. Except there's one flaw: Duffy and his team have not acted rationally; Kaplan's letter said that federal lawyers suggested there actually is no administrative record between the day Duffy took office and the day he sent his letter demanding an end to the toll.
"Counsel for the federal defendants were unable to confirm ... whether the administrative record will include any documents, beyond Defendant Duffy’s Feb. 19 letter, for the period after Defendant Duffy took office on Jan. 28, 2025," Kaplan wrote.
For their part, U.S. DOT lawyers said it was too early to talk about emergency motions because nothing has been done to require one.
"Plaintiffs’ articulation of a potential need for expedited injunctive relief is premature," the federal lawyers said, according to Kaplan's letter. "This issue is not currently before the Court and therefore the government does not take any position in response at this time."
It's not uncommon for cases like this to move slowly. For instance, when New Jersey sued the Federal Highway Administration over congestion pricing it took almost four months for the Garden State to file a motion for summary judgment — and the federal government didn't respond with its own argument for summary judgment until another month after that. But the behind-the-scenes legal filings paint a much different picture than the showy demands by President Trump to end the toll and the attempts by Duffy to force the MTA to end the toll at the snap of his fingers.
After Gov. Hochul made it clear that the state would not comply with the order to stop congestion pricing, Duffy has tried to look in control of the situation by releasing propaganda videos, calling the subway a "shithole," trying to paint the subway as an out of control hellscape and taking a widely-mocked two-stop subway ride on Friday. Transit advocates were unimpressed by the antics
"Secretary Duffy has no idea what he's talking about and his MetroCard 101 stunt was the latest example of that," said Riders Alliance Director of Policy and Communication Danny Pearlstein. "Congestion pricing is working phenomenally well and we're certain by the summer it will have raised hundreds of millions of dollars to repair subway, and especially in the summer will improve our air quality."
Both sides in the trial are scheduled to talk during a pretrial telephone conference on Wednesday, during which they will further discuss the schedule revealed in Kaplan's letter.
