Important points from Heckler v. Cheney
"Overton Park did not involve an agency's refusal to take requested enforcement action. It involved an affirmative act of approval under a statute that set clear guidelines for determining when such approval should be given. Refusals to take enforcement steps generally involve precisely the opposite situation, and in that situation we think the presumption is that judicial review is not available. HN5Go to this Headnote in the case.This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion. See United States v. Batchelder, 442 U.S. 114, 123-124 (1979); United States v. Nixon, 418 U.S. 683, 693 (1974); Vaca v. Sipes, 386 U.S. 171, 182 (1967); Confiscation Cases, 7 Wall. 454 (1869). This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.
The reasons for this general unsuitability are many. First, an [***724] agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the [**1656] agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved [*832] in the proper ordering of its priorities. HN6Go to this Headnote in the case.Similar concerns animate the principles of administrative law that courts generally will defer to an agency's construction of the statute it is charged with implementing, and to the procedures it adopts for implementing that statute. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 543 (1978); Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 87 (1975).
In addition to these administrative concerns, we note that HN7Go to this Headnote in the case.when an agency refuses to act it generally does not exercise its coercive power over an individual's liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect. Similarly, when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers. See, e. g., FTC v. Klesner, 280 U.S. 19 (1929). Finally, we recognize that an agency's refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict -- a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to "take Care that the Laws be faithfully executed." U.S. Const., Art. II, § 3. "
I've posted the relevant paragraphs and bolded relevant sections to provide some context.
1. USCIS has not refused to act. It has already set in motion some of the processing required. According to Heckler v. Cheney, "when an agency does act to enforce, that action itself provides a focus for judicial review". Therefore the court has judicial authority to review USCIS action to completion.
2. Heckler made it clear that an action protected under 701(a)(2) should not affect individual's liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect. That's not the case here either.
Here the question is not USCIS' refusal to process your application but rather the delay in processing the application.
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