BROADGATE V USCIS UPDATE - GOVERNMENT'S RESPONSE

In a development in the Broadgate V. USCIS law suit filed against USCIS for injunction against the implementation of the January 8, 2010 Neufeld memo which changed the definition of employer-employee definitions, the government Defendants filed with the court their response and opposition to the preliminary injunction requested by the Plaintiffs.
In their response, the government claims that the court lacks jurisdiction over the matter (very common claim the government makes), among other reasons, that the agency’s general policy is not a “final” action for purposes of the APA therefore it is not reviewable by the court.
Furthermore, the government argues, that the guidance memorandum at issue in this case is not subject to the notice and comment rulemaking requirements of the APA because it "merely sets forth a general and flexible framework to guide agency adjudicators in the exercise of their discretion. The memorandum simply refines the contours of an already existing legal norm set forth in the agency’s regulation". We all know this to be untrue, as the agency did in fact change its interpretation and existing legal norm.
In any event, the government argues that the memo falls within the contours of a policy statement or interpretive guidance, and thus exempt from the notice and comment rulemaking.
Based on all the above, the government argues that the Plaintiffs do not show a strong likelihood that their law suit will succeed on its merits, and therefore the court should deny the preliminary injunction.