The Supreme Court and numerous others have distinguished Webster and cases like it, and held it to be narrowly applicable to regulatory areas requiring a high degree of deference. See, e.g., Franklin v. Massachusetts, 505 U.S. at 2785 (listing Webster as representing one of the limited areas “in which the courts have been hesitant to intrude,” and holding APA § 701(a)(2) inapplicable in view of the fact that “[t]he taking of the census is not such an area of traditional deference”); Beno v. Shalala, 30 F.3d                                                              13 The state had submitted no TMDL at all, which the court interpreted as a constructive submission triggering EPA’s duty to promulgate. American Canoe Ass’n, 30 F.Supp.2d at 920-21.

5 Plaintiffs have not demonstrated that there is “law to apply” to judge EPA’s decision not to proceed under Section 303(c)(4)(B) at this time. Initially, plaintiffs’ suggestion that 5 U.S.C. § 701(a)(2) applies only to matters of national security or to nonenforcement decisions, Pl. Resp. at 12-13, is simply wrong. Notwithstanding the concurring opinion in Franklin v. Massachusetts , 505 U.S. 788 (1992) cited by plaintiffs, courts – including the Supreme Court and the Fifth Circuit – have found agency action to be committed to agency discretion in a wide variety of circumstances.

5 U.S.C. § 701(a). The presumption, however, does not hold Case 1:07-cv-02210-RJL Document 13 Filed 12/21/2007 Page 25 of 45 -17- where judicial review is precluded by statute, 5 U.S.C. § 701(a)(1), or where the agency action in question is committed to agency discretion by law, 5 U.S.C. § 701(a)(2). The Supreme Court has read this latter provision to bar review where “statutes are drawn in such broad terms that in a given case there is no law to apply.”

5 U.S.C. § 701(a). The presumption, however, does not hold Case 1:07-cv-02210-RJL Document 14-2 Filed 12/21/2007 Page 25 of 45 -17- where judicial review is precluded by statute, 5 U.S.C. § 701(a)(1), or where the agency action in question is committed to agency discretion by law, 5 U.S.C. § 701(a)(2). The Supreme Court has read this latter provision to bar review where “statutes are drawn in such broad terms that in a given case there is no law to apply.”

260 U.S. at 636–38. If there is an intent to circumscribe agency discretion that has meaningful limits, there is “law to apply” under § 701(a)(2), and the agency may be required to follow that law. Heckler v. Chaney, 470 U.S. 821, 834–35 (1985).

Although section 701(a)(2) stakes out “a very narrow exception” to judicial review under the APA, see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971), “the Supreme Court has indicated that the § 701(a) hurdle must be cleared „before any review at all may be had‟ under the APA.” E.J. Friedman Co. v. United States, 6 F.3d 1355, 1359 (9th Cir. 1993) (quoting Heckler v. Chaney, 470 U.S. 821, 828 (1985)). In Heckler, the Supreme Court established that review of agency actions is precluded under section 701(a)(2) where “the statute is drawn so that a court would have no meaningful standard against which to judge the agency‟s exercise of discretion.” Heckler, 470 U.S. at 830. That is precisely the situation here.

And while agency inaction is reviewable in some circumstances, the APA does not apply where agency action or inaction is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). As established above, EPA’s decision of whether to “veto” a Corps permit under Section 404(c) is firmly committed to EPA’s discretion; thus, any assertion that EPA improperly failed to take action is not within the ambit of the APA.

And while agency inaction is reviewable in some circumstances, the APA does not apply where agency action or inaction is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). As established above, EPA’s decision of whether to “veto” a Corps permit under Section 404(c) is firmly committed to EPA’s discretion; thus, any assertion that EPA improperly failed to take action is not within the ambit of the APA.

Defendants’ denial of Plaintiff’s EAD application resulting from their improper reliance on EOIR clock in adjudication of Plaintiff’s EAD application and failure to properly calculate the number of days during which Plaintiff’s asylum case has been pending, failure to adhere to USCIS established precedent in the form of its prior AAO decision, as well as failure to provide Plaintiff with legally sufficient notice of or an opportunity to contest his EOIR clock stoppage are arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law. As such, these actions violate the Administrative Procedure Act, 5 U.S.C. §701, et seq. and the Due process clause. Therefore, this Court should order that Defendants reverse the decision denying Plaintiff’s EAD application.

Congress has not given any direction to USCIS as to how far and to what extent it should pursue its investigation. Such investigations are “committed to agency discretion” for purposes of 5 U.S.C. § 701(a)(2). Case 4:16-cv-01015-DW Document 8 Filed 01/23/17 Page 17 of 22 18 Fifth, the extent to which USCIS pursues such an investigation is a matter of judgment relating to national security concerns, which require administrative expertise.