Re: MTA v. Duffy, No. 25 Civ. 1413 (S.D.N.Y.) Dear Erin: We write with respect to the above-referenced litigation brought by the Metropolitan Transportation Authority ("MTA") against the U.S. Department of Transportation ("DOT"), U.S. Secretary of Transportation Sean Duffy, the Federal Highway Administration ("FHWA"), and Executive Director of the FHWA, Gloria Shepherd, to provide you with information concerning (1) the litigation risk that DOT faces in defending the Secretary's February 19, 2025 decision to terminate the New York City Central Business District Tolling Program ("CBDTP") agreement, and (2) a process for terminating the CBDTP agreement outside of the current litigation for DOT to consider. As discussed below, there is considerable litigation risk in defending the Secretary's February 19, 2025 decision against plaintiffs' claims under the Administrative Procedure Act, that the decision was contrary to law, pretextual rocedurally arbitrary and capricious, and violated due process. For the reasons outlined below, it is unlikely that Judge Liman or further courts of review will accept the argument that the CBDTP was not a statutorily authorized "value pricing" pilot under the Value Prising Pilot Program (" ar FHWA may, however, be able to properly terminate the CBDTP value pricing pilot pursuant to established Office of Management and Budget ("OMB") regulations concerning the termination of cooperative agreements. Termination of the CBDTP agreement pursuant to these OMB regulations would still allow FHWA to end the CBDTP for the Secretary's stated reasons, but would do so as a matter of changed agency priorities rather than arguing the CBDTP was not statutorily authorized in the first instance. 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. Case 1:25-cv-01413-LJL Document 65 Filed 04/23/25 Page 2 of 11 Page 2
So, uh, it certainly looks like DOJ intended to file a letter to Judge Liman in MTA v. Duffy, but….it accidentally filed a letter containing its legal advice to the Department of Transportation instead
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