L. Xia v. Rex Tillerson

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 21, 2017 Decided August 1, 2017

No. 16-5010

L. XIA, ET AL.,

APPELLANTS

v.

REX W. TILLERSON, SECRETARY OF THE UNITED STATES

DEPARTMENT OF STATE, IN OFFICIAL CAPACITY AND JOHN F.

KELLY, SECRETARY OF THE UNITED STATES DEPARTMENT OF

HOMELAND SECURITY, IN OFFICIAL CAPACITY,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-00057)

Ning Ye argued the cause and filed the brief for appellants.

Michael E. Rosman argued the cause and filed the brief for

amicus curiae Center for Individual Rights in support of

appellants.

Elianis N. Perez, Senior Litigation Counsel, U.S.

Department of Justice, argued the cause and filed the brief for

appellees. Wynne P. Kelly and R. Craig Lawrence, Assistant

U.S. Attorneys, entered appearances.

2

Before: PILLARD, Circuit Judge, and EDWARDS and

SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: The plaintiffs, five former

Chinese nationals, received certificates of United States

naturalization, on the basis of which they obtained United

States passports. In 2006, government investigators discovered

that Robert Schofield, an employee of the United States

Customs and Immigration Services (USCIS), had illegally

issued nearly 200 certificates of naturalization to individuals—

mostly Chinese nationals—who, the government contends, had

not satisfied the requirements to become U.S. citizens. After

USCIS learned of Schofield’s illegal activities, it

administratively canceled plaintiffs’ certificates of

naturalization without seeking a court order, and the State

Department administratively revoked or refused to renew their

passports.

The plaintiffs sued, claiming that the administrative

processes by which the United States canceled their certificates

of naturalization and revoked their passports violated their

rights to constitutionally and statutorily adequate process and

to be free from discrimination based on their Chinese ethnicity.

The government moved to dismiss the case for lack of subject

matter jurisdiction on the ground that the United States had not

waived sovereign immunity. The district court rejected that

ground but, after giving plaintiffs an opportunity to amend their

complaint, dismissed the amended complaint for failure to state

a claim on which relief can be granted. Plaintiffs appealed.

We affirm the dismissal of plaintiffs’ claims that the

government’s revocations of their certificates of naturalization

and their passports violated the Immigration and Nationality

3

Act and due process because they took place through

administrative rather than judicial process. We also affirm the

dismissal of their claims of ethnicity or national origin

discrimination. Because the government denied plaintiffs the

administrative review of their passport revocations or non-

renewals that the INA and agency rules require, however, we

reverse insofar as the district court held that any plaintiff is

barred by failure to exhaust administrative remedies from (a)

challenging under the APA the government’s failure to afford

plaintiffs the review the law requires, and (b) pursuing 8 U.S.C.

§ 1503 claims in the correct venues. We therefore remand

plaintiffs’ APA and section 1503 claims to the district court

with a suggestion that the court consider transferring the APA

claims together with the section 1503 claims to the venues

required for consideration of the latter.

I. Background

A. Factual Allegations

On review of a dismissal for failure to state a claim, our

description of events relies on plaintiffs’ allegations, which we

provisionally accept as true. Aware that discovery and proffers

of proof might well alter our understanding of the facts, we

allow untested allegations of the complaint to set the factual

stage for now. The government has yet to file an answer to the

complaint, and the parties have neither conducted discovery

nor presented or tested evidence as they would on summary

judgment motions or at trial. But under the Federal Rules of

Civil Procedure, if plaintiffs lack legally valid claims even on

the facts as they allege them, we need go no further. See Fed.

R. Civ. P. 12(b)(6); see also Ashcroft v. Iqbal, 556 U.S. 662,

678-79 (2009). Because the district court denied plaintiffs

leave to amend based on the legal inadequacy of the amended

complaint, we draw the following facts from that document.

4

The plaintiffs in this litigation—Lihong Xia, Wei Liu, Hoi

Lun Li, Jinsong Chen, and Hua Chen—were Chinese citizens

before they obtained their certificates of naturalization and

United States passports. According to plaintiffs, China’s

Nationality Law provides that any “Chinese national who has

settled abroad and who has been naturali[z]ed as a foreign

national . . . shall automatically lose Chinese nationality.”

App’x 202. When Chinese authorities discovered that

plaintiffs had become U.S. citizens, the Chinese government

responded by rescinding their Chinese citizenship.

After USCIS officer Robert Schofield pleaded guilty to

bribery and the unlawful procurement of citizenship or

naturalization, 1 the United States government revoked each

plaintiff’s certificate of naturalization and either revoked or

denied renewal of their passports. Plaintiffs allege that they

satisfied the requirements for naturalization and therefore are

U.S. citizens. Neither the complaint nor any public record the

parties have identified or provided explains precisely whether

or how these plaintiffs’ facially valid certificates of

naturalization and passports were affected by Schofield’s

activities. No information before the court at this stage shows

that plaintiffs were aware of inadequacies or fraud in the

procurement of their naturalization certificates or passports.

That said, the details of plaintiffs’ situations are not

entirely clear. The allegations focus primarily on the

1

See Plea Agreement, United States v. Schofield, No. 06-CR-427,

Doc. 32 (E.D. Va. Nov. 30, 2006); see also Jerry Markon,

Immigration Official Pleads Guilty to Falsifying Documents, The

Washington Post, Dec. 1, 2006,

http://www.washingtonpost.com/wp-

dyn/content/article/2006/11/30/AR2006113000603.html (last

accessed July 26, 2017).

5

experience of plaintiff Lihong Xia. The complaint alleges that

Xia was naturalized and obtained her United States passport in

2004. She resided in the United States as a citizen, and traveled

back and forth without incident between the United States and

China, where her parents lived, until October 2009, when an

officer from U.S. Immigration and Customs Enforcement

(ICE) stopped Xia at the airport as she returned to the United

States. After questioning her, the officer deemed Xia an

“arriving alien” and seized her passport. Am. Compl. ¶ 15.

The government initiated a removal proceeding, but the

immigration court dismissed the proceeding because the

Department of Homeland Security (DHS) failed to prosecute.

Xia repeatedly contacted DHS to demand the return of her

passport, to no avail.

A year and a half later, in 2011, USCIS sent Xia a notice

of its intent to cancel her certificate of naturalization, asserting

that Xia was among the nearly 200 individuals who received

naturalization certificates from Schofield. The notice gave Xia

sixty days to refute USCIS’s decision in writing or request a

hearing. Xia opposed cancellation and requested a hearing

within the time limit. While the proceeding before USCIS was

pending, the State Department notified Xia that it had revoked

her passport based on USCIS’s cancellation of her certificate

of naturalization. Contrary to the State Department’s

explanation, however, USCIS had not yet issued any decision

canceling Xia’s certificate of naturalization and would not do

so for another year. Once USCIS notified Xia that it had

canceled the certificate, she appealed to USCIS’s

Administrative Appeals Office and appeared for a hearing. She

once again denied USCIS’s charge that her naturalization

certificate was not adequately supported. By that time, USCIS

asserted that it was her parents who were on the list of people

affected by Schofield’s misconduct. Xia strenuously disputed

that her parents could have had any contact with Schofield

6

because they had never set foot in the United States. Her

position was that any irregularity on Schofield’s part had not

been shown to undermine her naturalization, and argued that

USCIS’s administrative procedure for revoking certificates of

naturalization did not satisfy the Due Process Clause of the

Fifth Amendment. USCIS dismissed the appeal, without

addressing Xia’s due process arguments because they were

“outside the jurisdiction of th[e] office.” App’x 154.

The complaint contains sparse but similar allegations

about Wei Liu. He allegedly was naturalized around 2001 and

traveled abroad freely as a U.S. citizen. While on a trip to

China in December 2007, however, he attempted to renew his

U.S. passport. The State Department denied his application

and confiscated his passport. USCIS sent Liu a notice of its

intent to cancel his certificate of naturalization and provided

him with an administrative hearing at the U.S. Embassy in

Beijing. After the hearing, USCIS canceled Liu’s certificate of

naturalization. USCIS notified Liu of his opportunity to appeal

its decision administratively, but the complaint does not say

whether Liu pursued an appeal.

There is less we can glean about the remaining plaintiffs

from their sparse and unclear allegations. Plaintiffs claim

without elaboration that

• ICE agents confiscated Hoi Lun Li’s passport at the Los

Angeles International Airport, and USCIS later

canceled her certificate of naturalization “without due

process proceedings,” Am. Compl. ¶ 62;

• The State Department denied Jinsong Chen’s passport

renewal application while he was in Shanghai; and

7

• Hua Chen’s passport and certificate of naturalization

were administratively cancelled.

In addition to making various statutory and constitutional

claims that the government failed to follow the requisite

processes to revoke their passports and certificates of

naturalization, plaintiffs contend that the government targeted

them for that unfair treatment based on their Chinese ethnicity.

In support of the discrimination claims, plaintiffs attached to

their complaint a list of individuals, who they contend were not

Asian, who, they say, “received full evidentiary hearings”

before being denaturalized. App’x 161-82 (list of former U.S.

citizens who have been denaturalized).

B. District Court Proceedings

Plaintiffs sued the Secretary of State and Secretary of

Homeland Security in their official and individual capacities.

As relevant to this appeal, plaintiffs sought declaratory and

injunctive relief under (1) the Due Process Clause of the Fifth

Amendment to the Constitution; (2) the Immigration and

Nationality Act (INA), 8 U.S.C. §§ 1421, 1451(a); (3) the

Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.;

and (4) two provisions of the Civil Rights Acts, sections 1981

and 1983 of Title 42 of the U.S. Code.

Defendants moved to dismiss the case for lack of subject

matter jurisdiction under Rule 12(b)(1) of the Federal Rules of

Civil Procedure. They principally argued that the government

had not waived sovereign immunity for this type of suit. See

Defs.’ Mot. to Dismiss, Xia v. Kerry, 14-cv-57 (June 13, 2014).

The district court rejected that argument, Xia v. Kerry (Xia I),

73 F. Supp. 3d 33, 39 (D.D.C. 2014), but sua sponte dismissed

the complaint without prejudice under Rule 12(b)(6) for failure

to state a claim, id. at 39-46.

8

The court held that plaintiffs failed to state a due process

claim because it was “impossible to discern the procedures to

which plaintiffs believe they were entitled but deprived.” Id.

at 42. The court dismissed plaintiffs’ civil rights claims under

sections 1981 and 1983 for want of allegations that the

government acted under color of state (as opposed to federal)

law. Id. at 43-44. Plaintiffs’ INA claims likewise failed, the

court said, because none of the INA provisions plaintiffs cited

applied to the government’s alleged conduct. Id. at 44. As for

plaintiffs’ APA claim, the court concluded that the complaint

identified nothing arbitrary in the government’s actions. Id. at

44-45. Alternatively, the court held, section 1503 of Title 8 of

the U.S. Code provides an adequate alternative judicial remedy

for plaintiffs, thus barring any APA claim. Id. at 45. Section

1503 would allow plaintiffs to sue in federal court for a

declaration of their United States citizenship. Id at 46. The

district court cautioned, however, that section 1503 requires

plaintiffs to first exhaust their administrative remedies, which

it held that only Xia had done. Id. at 45-46. The court therefore

dismissed the complaint without prejudice. Id. at 46.

Plaintiffs moved for leave to amend their complaint to

address the shortfalls the district court identified. Their

proffered amended complaint added claims under 8 U.S.C.

§§ 1447(b) and 1503 seeking declarations that they are U.S.

citizens and so entitled the restoration of their naturalization

certificates and passports. Plaintiffs also included new

allegations that they were entitled to “full, fair and meaningful

De-Naturalization proceedings.” Am. Compl. ¶ 5. Despite

those changes, the district court denied leave to amend the

complaint, concluding that the proffered amended complaint

“failed to cure inadequacies present in their previous complaint

that led th[e] Court to dismiss their claims.” Xia v. Kerry (Xia

II), 145 F. Supp. 3d 68, 74 (D.D.C. 2015). The court held that

9

it could not decide the new section 1503 claims because Xia

alleges she resides in New Jersey, making the federal court

there, not here, the proper venue under section 1503, and

because, in its view, no other plaintiff alleged the requisite

exhaustion of administrative remedies that it saw as a

prerequisite to a section 1503 claim. Id at 73-74.

II. Analysis

The district court dismissed plaintiffs’ case in its entirety

and denied as futile their motion for leave to amend. We affirm

the dismissal of plaintiffs’ claims that the government violated

the INA and due process by revoking their certificates of

naturalization and their passports through administrative rather

than judicial process. We also affirm the dismissal of

plaintiffs’ claims of discrimination, and the determination that

the District of Columbia is the wrong venue for their claims

under 8 U.S.C. § 1503. However, we reverse the district

court’s determination that plaintiffs are barred due to a failure

to exhaust their administrative remedies from pursuing (a)

APA claims challenging the government’s failure to afford

them proper administrative review, and (b) section 1503 claims

in the correct venue.

We ordinarily review the denial of a motion for leave to

amend for abuse of discretion, but where, as here, a district

court denies leave to amend because the amended complaint

would not survive a motion to dismiss, our review is de novo.

In re Interbank Funding Corp. Secs. Litig., 629 F.3d 213, 218

(D.C. Cir. 2010). As on review of a dismissal under Rule

12(b)(6), “we treat the complaint’s factual allegations as true

and must grant the plaintiff[s] the benefit of all inferences that

can be derived from the facts alleged.” Abdelfattah v. U.S.

Dep’t of Homeland Sec., 787 F.3d 524, 529 (D.C. Cir. 2015)

(alteration omitted). “To survive a motion to dismiss, a

10

complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’”

Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do

not suffice.” Id.

A. Claims of Inadequate Procedure Under the INA and

Due Process Clause

We begin with the most troubling aspect of plaintiffs’ case:

Their claims that their citizenship was revoked without the

process required by the Constitution and federal law. Plaintiffs

allege that they were “stripp[ed] of U.S. citizenship” without

“any kind of due process,” i.e. the judicial process the INA

requires to effectuate denaturalization. Appellants Br. 13.

1.

Citizenship is among the most momentous elements of an

individual’s legal status. “It would be difficult to exaggerate

its value and importance.” Schneiderman v. United States, 320

U.S. 118, 122 (1943). Many invaluable benefits flow from

United States citizenship, including rights to vote in federal

elections, to travel internationally with a U.S. passport, to

convey citizenship to one’s own children even if they are born

abroad, to be eligible for citizen-only federal jobs, and, indeed,

to be free of discrimination by Congress on the basis of

alienage. Before an individual may obtain U.S. citizenship

through naturalization, “there must be strict compliance with

all the congressionally imposed prerequisites to the acquisition

of citizenship.” Fedorenko v. United States, 449 U.S. 490, 506

(1981).

11

The possessor of a facially valid naturalization certificate

is presumptively a citizen. “Congress has vested sole

naturalization authority in the Attorney General, 8 U.S.C.

§ 1421(a), and a certificate of naturalization represents

conclusive evidence of the Attorney General's determination.”

United States v. Straker, 800 F.3d 570, 586 (D.C. Cir. 2015),

cert. denied, 136 S. Ct. 1170 (2016) (citing Tutun v. United

States, 270 U.S. 568, 577 (1926); 8 U.S.C. § 1443(e)).

Citizenship is constitutionally protected by due process from

unintentional relinquishment. Afroyim v. Rusk, 387 U.S. 253,

268 (1967).

“[O]nce citizenship has been acquired, its loss can have

severe and unsettling consequences.” Fedorenko, 449 U.S. at

505. Denaturalization “may result in the loss of both property

and life; or of all that makes life worth living.” United States

v. Minker, 350 U.S. 179, 187 (1956). Reflecting the gravity of

that step, revocation or cancellation of citizenship may only be

accomplished by a federal judicial order. See United States v.

Zucca, 351 U.S. 91, 95 & n.8 (1956); Bindczyck v. Finucane,

342 U.S. 76, 79 (1951); Schneiderman, 320 U.S. at 122-23;

Gorbach v. Reno, 219 F.3d 1087, 1092-98 (9th Cir. 2000) (en

banc). In other words, although citizenship may be

administratively bestowed, it can only be revoked by a federal

court.

If the government concludes that a naturalized citizen is

not legally entitled to citizenship, it may seek to effect

denaturalization either through federal criminal prosecution or

a civil action in federal court. If an individual knowingly

procures naturalization or a certificate or evidence of

citizenship to which the putative citizen is not entitled, the

government may criminally prosecute her under 18 U.S.C.

§ 1425. Once a person is convicted under section 1425, the

federal court in which the conviction occurred shall on that

12

ground revoke the defendant’s citizenship. See 8 U.S.C.

§ 1451(e); see Maslenjak v. United States, 582 U.S. ___, slip

op. at 1 (June 22, 2017).

If proof of the requisite mens rea is lacking or some other

factor counsels against criminal prosecution, the government

alternatively may denaturalize a person by obtaining a civil

denaturalization order in federal court pursuant to 8 U.S.C.

§ 1451. “The exclusive [noncriminal] process for challenging

the validity of the grant of a naturalization petition is through a

revocation of naturalization proceeding pursuant to 8 U.S.C.

§ 1451.” United States v. Clarke, 628 F. Supp. 2d 15, 23

(D.D.C. 2009), aff’d sub nom. United States v. Straker, 800

F.3d 570. Whenever any person procures a naturalization order

or certificate illegally, or by concealment of a material fact or

willful misrepresentation, section 1451 authorizes the

government to sue “for the purpose of revoking and setting

aside the order admitting such person to citizenship and

cancelling the certificate of naturalization.” 8 U.S.C.

§ 1451(a); see Zucca, 351 U.S. at 91; Bindczyck, 342 U.S. at

83. In that proceeding, the government “carries a heavy burden

of proof.” Costello v. United States, 365 U.S. 265, 269 (1961).

“[I]n view of the grave consequences to the citizen,

naturalization decrees are not lightly to be set aside—the

evidence must indeed be ‘clear, unequivocal, and convincing’

and not leave ‘the issue in doubt.’” Id. (quoting Schneiderman,

320 U.S. at 125, 158; Baumgartner v. United States, 322 U.S.

665, 670 (1944)) (alteration omitted); see Nowak v. United

States, 356 U.S. 660, 663 (1958).

Here, however, the government has not gone to court to

seek denaturalization of any of the plaintiffs in this case; it has

administratively canceled their certificates of naturalization

and revoked their passports. The Attorney General has

statutory authority, without a court order, to “cancel any

13

certificate of citizenship” where it appears “to the Attorney

General’s satisfaction” that the document was illegally or

fraudulently obtained. 8 U.S.C. § 1453. The Department of

Homeland Security has promulgated regulations governing

that process. 8 C.F.R. §§ 342.1-342.9. The regulations require

the government to provide written notice of its intent to cancel

a certificate of naturalization. 8 C.F.R. § 342.1. The certificate

holder, who may be represented by counsel, can then dispute

the cancellation either in writing or in person. 8 C.F.R. § 342.1.

If the government decides to cancel the certificate of

naturalization, it must inform the affected individual of the

right to appeal to the USCIS Administrative Appeals Office.

See 8 C.F.R. § 342.8. The statute makes clear, however, that

administrative cancellation of a certificate of naturalization

“shall affect only the document and not the citizenship status

of the person in whose name the document was issued.” 8

U.S.C. § 1453.

Similarly, if the State Department discovers that a passport

was “illegally, fraudulently, or erroneously obtained,” the

Secretary of State is authorized to cancel it. 8 U.S.C. § 1504(a).

Generally, the passport holder “shall be given, at such person’s

last known address, written notice of the cancellation of such

document, together with the procedures for seeking a prompt

post-cancellation hearing.” Id. But administrative cancellation

of a citizen’s passport, like administrative cancellation of a

certificate of naturalization, shall “affect only the document

and not the citizenship status of the person in whose name the

document was issued.” Id.

Even though administrative cancellation of a certificate of

naturalization or passport cannot affect an individual’s

citizenship, those actions nevertheless have consequences.

Without proof of one’s citizenship, for example, a person will

14

be unable to travel abroad, or to establish entitlement to the

many other rights and privileges of citizenship.

Subject to exceptions relating to removal proceedings not

relevant here, anyone in the United States who “claims a right

or privilege as a national of the United States and is denied such

right or privilege by any department or independent agency, or

official thereof, upon the ground that he is not a national of the

United States” has a statutory right to claim the benefits of

citizenship in a declaratory judgment action under 8 U.S.C.

§ 1503(a). Section 1503 empowers “the district court of the

United States for the district in which such person resides or

claims a residence” to enter “a judgment declaring [her] to be

a national of the United States.” 8 U.S.C. § 1503(a). The

plaintiff “need make only a prima facie case establishing [her]

citizenship by birth or naturalization.” Perez v. Brownell, 356

U.S. 44, 47 n.2 (1958), overruled on other grounds by Afroyim,

387 U.S. 253. The government must then respond with “clear,

unequivocal, and convincing” evidence rebutting the plaintiff’s

showing of citizenship. Id.

2.

Plaintiffs contend that the government violated their right

to statutorily and constitutionally adequate process by failing

to provide them “full, fair and meaningful De-Naturalization

proceedings.” Am. Compl. ¶ 5. The district court faulted

plaintiffs for failing to identify the process they claim they are

due. Although admittedly far from crystalline, we find it clear

enough that plaintiffs claim entitlement to pre-deprivation

process in the form of an action by the Attorney General in

federal court, in which the government bears the burden of

proof, as contemplated by 8 U.S.C. § 1451. See Am. Compl.

¶ 30 (“[A]ll plaintiffs are U.S. citizens whose citizenship can

only be taken away through denaturalization proceedings by

15

the U.S. Judiciary Branch and none [has] been offered such . . .

process . . . yet.”) (emphasis omitted); see also Fedorenko, 449

U.S. at 505 (citing Costello, 365 U.S. at 269). Plaintiffs’ due

process claim thus dovetails with their claims under the INA.

They argue that the Constitution required the government

formally to denaturalize them under one provision of the INA

(section 1451) rather than rest on administrative action under

other INA provisions (sections 1453 and 1504).

Plaintiffs challenge the validity of the administrative

cancellations as, in effect, an unauthorized and unconstitutional

workaround of the requisite denaturalization process,

accomplished by treating the revocation of plaintiffs’

certificates of citizenship and passports as having confirmed

plaintiffs’ lack of U.S. citizenship without the requisite court

order. Am. Compl. ¶ 27. Plaintiffs are now, as they put it, in

“a gray limbo,” unable to travel abroad or, in the cases of Wei

Liu or Jinsong Chen, to return to the United States, and lacking

any proof of United States citizenship that would allow them

to enjoy its benefits. Id. At the same time, viewed by China as

having been naturalized here, plaintiffs are unable to live in or

travel to and from China as citizens of the nation of their birth.

The government appears to have two responses to

plaintiffs’ challenge:

First, the government argues that, because plaintiffs

received their certificates of naturalization through an illegal

and inadequate process tainted by the criminal conduct of

USCIS officer Robert Schofield, plaintiffs simply never

became citizens. A person who is a non-citizen is not entitled

to either a certificate of naturalization or a passport. Once the

authorized administrative processes took away those

unlawfully conferred documents, the government reasons, the

16

problem was fixed and no more process was due. See Oral Arg.

Audio 19:41-20:27, 24:20-25:27.

Second, even assuming plaintiffs must be treated as if they

were validly naturalized until proven otherwise, and

acknowledging that judicial process under 8 U.S.C. § 1451 or

18 U.S.C. § 1425 is required for denaturalization, the

government’s revocation of plaintiffs’ documents did not

denaturalize them. Because the administrative actions

plaintiffs challenged were incapable of vitiating citizenship,

those actions did not have to conform to denaturalization’s pre-

deprivation judicial process. See Oral Arg. Audio 31:06-31:43,

32:14-32:32; see also Schneiderman, 320 U.S. at 122-23.

a.

The first of these arguments is fatally circular. When

pressed at oral argument as to why it did not seek orders in

federal court under section 1451 to declare plaintiffs

denaturalized, the government asserted that it need not do so

because plaintiffs were never United States citizens to begin

with. In their view, plaintiffs did not receive valid certificates

of naturalization, so there is no citizenship for a court to revoke

in an action under section 1451.

But that argument assumes what the government must

prove. We cannot begin our analysis where the government

does for two reasons. First, we are reviewing the denial of

leave to amend the complaint for failure to state a claim, and

so must provisionally credit plaintiffs’ allegations. See

Interbank, 629 F.3d at 218. Plaintiffs allege that they met the

naturalization requirements, and that their applications and

eligibility were not undermined by USCIS official Schofield’s

fraudulent scheme. It is not clear why plaintiffs’

naturalizations would be invalid if, for example, they were not

17

in fact among those Schofield illegally dealt with, or were

extorted by Schofield and his illegal brokers in the process of

obtaining naturalization for which they were nonetheless fully

eligible. The government has not disputed that plaintiffs

previously had facially valid certificates of naturalization and

passports; it has not in this litigation yet had the chance to prove

that plaintiffs did not qualify as citizens. At this stage, we must

assume, as plaintiffs allege, that their certificates and passports

evidenced U.S. citizenship.

The government’s first rebuttal to plaintiffs’ procedural

claims is inadequate for another, more fundamental reason.

The government’s own administrative decision—even if well

supported and ultimately vindicated—cannot relieve it of its

burden to prove to a court by clear and convincing evidence

that plaintiffs’ apparent naturalization is invalid. Indeed,

section 1451, providing for judicial action to revoke

naturalization, explicitly speaks to cases in which

naturalizations “were illegally procured or were procured by

concealment of a material fact or by willful misrepresentation.”

8 U.S.C. § 1451(a). The government’s theory would appear to

allow it to circumvent in every such case its burden to obtain a

judicial denaturalization order, based on the theory that the

naturalization was never valid to begin with. The

denaturalization statute itself seems to foreclose that approach.

The very cases that establish the principle that

denaturalization requires a court order, obtained upon the

government’s clear and convincing proof, likewise rebut the

government’s position here. In those cases, as here, the

government contended that naturalization was defective from

the start.

The entire denaturalization question in Schneiderman, for

example, was whether Mr. Schneiderman’s certificate of

18

naturalization was lawfully cancelled twelve years after it was

granted because he had fraudulently procured it in the first

place. 320 U.S. at 120-22. The government argued that

Schneiderman had never validly qualified as someone

“attached to the principles of the Constitution of the United

States” because he concealed his Communist affiliation in his

application. Id. at 121. The Court did not treat Schneiderman

as a non-citizen simply because the government was convinced

that he fraudulently obtained his U.S. citizenship, but instead

required the government to persuade the Court with “the

clearest sort of justification and proof.” Id. at 122.

In Baumgartner v. United States, too, the government sued

for denaturalization of a man whom, it asserted, falsely claimed

in the naturalization process his allegiance to the Constitution

and laws of the United States while in fact remaining loyal to

the German Reich. 322 U.S. at 666. The Court emphasized

“the importance of ‘clear, unequivocal, and convincing’ proof

on which to rest the cancellation of a certificate of

naturalization” and placed that “weighty proof” burden on the

government notwithstanding the government’s claim that the

certificate of naturalization was never valid because

fraudulently procured ab initio. Id. at 671, 675.

So, too, the petitioner in Costello v. United States, was

ostensibly naturalized 27 years before the government sought

to divest him of his citizenship. 365 U.S. at 268. The Court

noted that the record left no doubt that, at the time of his

application, petitioner Costello willfully misrepresented his

occupation as “real estate” and concealed that he was in fact an

illegal bootlegger. Id. at 272. Before it treated Mr. Costello as

a noncitizen, however, the government was required to file a

federal denaturalization complaint under section 1451 and

shoulder its “heavy burden of proof.” Id. at 269; see

Fedorenko, 449 U.S. at 508-09 (underscoring government’s

19

burden to prove the materiality of a false statement in a visa

application in a case in which it was “seeking to revoke

petitioner’s citizenship because of the alleged unlawfulness of

his initial entry into the United States”); Nowak, 356 U.S. at

661, 663 (holding that the government had failed to prove by

clear and convincing evidence “that Nowak had obtained his

citizenship both fraudulently and illegally”).

The government’s position here contradicts both the INA

and the long line of precedent requiring the government to use

federal judicial process and meet a high standard of proof to

effectuate denaturalization. If the government were correct

that a successful administrative challenge to a naturalization

certificate or passport on the ground that it was unlawfully

procured sufficed to reveal the holder’s true status as a

noncitizen, obviating any need for judicial action under section

1451 to effect denaturalization, the precedents, the process

provided by section 1451, and the express preservation of

citizenship status in sections 1504 and 1453 would be illusory.

On the government’s logic, anyone whose naturalization the

government deemed invalidly obtained would not be protected

by the requirement of a court order to denaturalize, but could

instead be denaturalized administratively. No court of which

we are aware has accepted the contention that, in such

circumstances, judicial process is unnecessary.

b.

The second response to plaintiffs’ due process claim hits

the mark: The administrative actions that the government has

thus far taken are not procedurally inadequate because they

have not denaturalized the plaintiffs. In fact, the statutory

authority on which the government relied is quite explicit that

it authorizes only revocation of certain evidence of citizenship,

not the citizenship status itself. See Gorbach, 219 F.3d at 1093

20

(noting that the INA “is unambiguous in not conferring upon

the Attorney General the power to denaturalize citizens

administratively” (emphasis omitted)).

The logic of the administrative route is that it stops short

of denaturalization, and thus comports with denaturalization’s

more robust procedural prerequisites. As discussed above, if

the government wishes to revoke a naturalized person’s status

as a citizen without first criminally prosecuting her, see 18

U.S.C. § 1425, it must seek a court order under section 1451.

And, according to the complaint, the only actions the

government has so far concluded against these plaintiffs are

administrative.

Assuming, as we must, that plaintiffs were naturalized

United States citizens, they retain that citizenship status until

the government obtains a court order vitiating it.

Administrative actions alone are inadequate to extinguish any

United States citizenship plaintiffs may have. The statutory

authority that permits USCIS administratively to revoke a

certificate of naturalization expressly provides that such

revocation “shall affect only the document and not the

citizenship status of the person in whose name the document

was issued.” 8 U.S.C. § 1453. The authority on which the State

Department depends to cancel a passport administratively

contains the same limitation. 8 U.S.C. § 1504(a). Because the

administrative actions plaintiffs challenged were incapable of

vitiating citizenship, plaintiffs were not entitled to

denaturalization’s pre-deprivation judicial process.

Denying plaintiffs’ inadequate-process claims, however,

need not leave plaintiffs in limbo. If plaintiffs believe that they

are United States citizens and that USCIS erroneously

invalidated their certificates of naturalization and passports,

they may pursue (in the correct venue, as discussed below) the

21

section 1503 claims in their amended complaint. Section 1503

provides for judicial review of denial of any “right or privilege”

of citizenship, including invalidations of passports or

naturalization certificates. Of course, any such claim requires

objectively reasonable factual and legal support. See Fed. R.

Civ. P. 11(b).

That said, while section 1503 provides plaintiffs an

adequate avenue to assert their citizenship claims, it is not

available to them in the District of Columbia. The district court

correctly held that this is the wrong venue. Section 1503

requires a claimant to file in “the district in which such person

resides or claims a residence.” 8 U.S.C. § 1503(a). The

amended complaint states that Xia resides in Edison, New

Jersey; Wei Liu resides in Los Angeles, California, but is

currently living in Beijing; and Li resides in Los Angeles,

California. The complaint does not allege any United States

residence for Jinsong Chen, only that he “is now living under

duress in Shanghai.” Am. Compl. ¶ 78. The paragraph of the

complaint that identifies the Los Angeles residence of Wei Liu

also mentions his wife, plaintiff Hua Chen, without specifying

whether she also resides in Los Angeles, id., but plaintiffs’

counsel confirmed at oral argument that she does not reside in

Washington, D.C. Because none of the plaintiffs has alleged

residence here, the District of Columbia is the wrong venue for

their section 1503 action.

Plaintiffs object that requiring them to seek recourse under

section 1503 impermissibly shifts the burden onto them to

prove their citizenship, thus effectively depriving them of their

procedural rights. See Am. Compl. ¶ 57. But we cannot say

that the minimal initial showing the statute requires of a

plaintiff to trigger the government’s proof burden facially

invalidates section 1503 as a matter of due process, or puts it in

conflict with section 1451. The threshold showing required of

22

a section 1503 plaintiff is minimal. She or he need only show

prima facie evidence of citizenship. See Perez, 356 U.S. at 47

n.2. Presenting proof of a naturalization certificate or

passport—even if already administratively cancelled—would

seem to satisfy that prima facie requirement. The government

would then be put to its burden to establish by “clear,

unequivocal, and convincing evidence” the plaintiff’s lack of

entitlement to the disputed “right or privilege” of citizenship.

Id.

c.

We now consider the balance of plaintiffs’ INA claims.

Plaintiffs contend that the government violated sections 1421,

1447(b), and 1451(a) of the INA. But those provisions do not

apply to the conduct plaintiffs challenge here.

Section 1421 grants the Attorney General the power to

naturalize individuals. 8 U.S.C. § 1421. It says nothing about

denaturalization or cancellation of certificates of

naturalization.

Section 1447(b) permits a person whose application for

naturalization has been pending without decision to apply for a

hearing before the district court “for the district in which the

applicant resides.” 8 U.S.C. § 1447(b). That section is

inapplicable here. Plaintiffs’ applications were not denied

during the naturalization process; the government cancelled

their certificates of naturalization years after they ostensibly

became U.S. citizens. The government’s argument that it may

treat plaintiffs as if they were never naturalized might lend

some logic to plaintiffs’ invocation of section 1447(b), but we

reject that argument for the reasons stated above.

23

Plaintiffs also assert that section 1451(a) authorizes the

government to seek a court order denaturalizing a citizen. 8

U.S.C. § 1451(a). In this case, however, the government did

not attempt to denaturalize the plaintiffs under section 1451(a).

Instead, they canceled their certificates of naturalization

through an administrative proceeding under section 1453—a

proceeding that, as discussed above, is powerless to bring about

a denaturalization.

There is, however, some resonance to the section 1451

claim insofar as that provision appears not only to authorize but

to obligate the government to file in court if it has information

that a certificate of naturalization may have been illegally

procured. 8 U.S.C. § 1451 (declaring that “it shall be the duty

of the United States attorneys for the respective districts, upon

affidavit showing good cause therefor, to institute”

denaturalization proceedings) (emphasis added). To the extent

that the government has the requisite evidence to prove

plaintiffs’ non-citizenship, the statute suggests that it should

have filed a civil case under section 1451.

B. Administrative Procedure Act Claims

This brings us to plaintiffs’ APA claim. Under the APA,

a party aggrieved by agency action may seek judicial review to

set aside a final agency action that is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2); id. § 702. To obtain such review, the

aggrieved party must show that a statute makes the agency

action reviewable or, if no other statute explicitly provides for

review, that it is a “final agency action for which there is no

other adequate remedy in a court.” 5 U.S.C. § 704. There is

no dispute that the challenged actions were final. And no

argument has been made, nor does it appear, that the statutes

authorizing the government to revoke the plaintiffs’ certificates

24

of naturalization and passports independently provide for

judicial review. 8 U.S.C. § 1453 (cancellation of certificate of

naturalization); 8 U.S.C. § 1504 (cancellation of passport).

Thus, plaintiffs may obtain judicial review under the APA so

long as there is no other, adequate judicial remedy available.

The complaint appears to assert an APA claim challenging

as arbitrary and procedurally inadequate the administrative

revocation of the both the certificates of naturalization and the

passports of all plaintiffs. Am. Compl. ¶¶ 70-71. The factual

allegations specific to Xia allege that the State Department

informed Xia on February 11, 2012, that it had revoked her

passport because Xia’s certificate of naturalization had been

canceled by USCIS, but that was untrue and thus arbitrary.

Am. Compl. ¶ 19. “Actually,” the complaint alleges, at the

time of the passport revocation “there was no cancellation

decision in place” regarding her certificate of naturalization;

USCIS did not formally cancel Xia’s certificate of

naturalization until October 2, 2012. Id. When Xia sought

reconsideration, the State Department informed her that she

was not entitled to a post-cancellation hearing under 22 C.F.R.

§§ 51.70-.74. App’x 201. Xia’s passport revocation was

allegedly arbitrary because putatively based on an event that

had yet to occur, and allegedly contrary to law because

accomplished without the requisite administrative hearing.

The district court rejected plaintiffs’ APA claims for

failure to exhaust administrative remedies. Xia II, 145 F. Supp.

3d at 73. We disagree, for two reasons.

First, plaintiffs’ APA claims are plausibly alleged, given

that the government took the position that no administrative

remedies were open to them through which to seek return or

reissuance of their passports. They had nothing to exhaust

before filing their APA claims. Plaintiffs accordingly have a

25

futility defense to any failure to exhaust administrative

remedies regarding the passport deprivations.

The State Department informed Xia that she was not

entitled to any post-revocation hearing after it denied her

request for the return of her passport. See App’x 201. In

responding to Xia, the government cited a series of regulations,

22 C.F.R. §§ 51.70-.74, without making clear which one

applied. The State Department presumably relied on the same

authority regarding the other plaintiffs’ lack of any right to

administrative review of their passport revocations.

Section 51.70(b)(1) states that a person whose passport

was denied or revoked based on “Non-nationality” is not

entitled to a post-cancellation hearing. To the extent that the

government relied on plaintiffs’ putative non-nationality as a

reason to deny them post-deprivation process, section

51.70(b)(1) cannot bear the weight that the government appears

to assign it. The reasons detailed above in connection with the

INA claims explain why a governmental assertion of non-

nationality likewise cannot obviate a passport holder’s right to

a hearing under section 51.70(b)(1). However finally it may

have administratively invalidated plaintiffs’ documents, the

government must do more than assume plaintiffs’ non-

nationality to treat them as noncitizens.

Second, and more importantly, the APA requires

exhaustion of administrative remedies “only when expressly

required by statute or . . . an agency rule.” Darby v. Cisneros,

509 U.S. 137, 154 (1993). The government argues in a

footnote that plaintiffs’ APA claims are barred for failure to

exhaust, Appellee Br. 27 n.8, but it points to no statute or rule

requiring exhaustion in this case.

26

The amended complaint seeks, among other forms of

relief, an injunction instructing the Department of State to

reconsider its decision to revoke plaintiffs’ passports and notify

them of “the procedures to be followed for the administrative

or judicial appeal.” Am. Compl. ¶ 104(E). Because the

relevant law does not require exhaustion and, in any event,

exhaustion would have been futile with respect to the passport

invalidations, we vacate the district court’s judgment in part

and remand for further consideration of the APA claims, or for

transfer of those claims together with the section 1503 claims

to the correct venues.

C. Civil Rights Claims

Plaintiffs contend that the government targeted them for

adverse treatment based on their Chinese ethnicity and

nationality in violation of 42 U.S.C. §§ 1981 and 1983. The

district court dismissed those claims on the ground that sections

1981 and 1983 apply only to actions taken under color of state,

not federal, law. Xia II, 145 F. Supp. 3d at 73. On appeal,

plaintiffs do not challenge the district court’s determination

that the government’s conduct falls outside the scope of section

1983—nor could they, as section 1983 does not apply when

federal officials act under color of federal law. Jones v. Horne,

634 F.3d 588, 594 n.2 (D.C. Cir. 2011); Williams v. United

States, 396 F.3d 412, 414-15 (D.C. Cir. 2005). In any event,

plaintiffs do not seek damages. Whatever constitutional

support they invoke for their claims for injunctive relief does

not depend on section 1983.

Plaintiffs, aided on these issues by amicus Center for

Individual Rights, focus instead on the section 1981 claim.

Section 1981 guarantees to “[a]ll persons within the

jurisdiction of the United States” the “same right” as white

citizens enjoy “to make and enforce contracts . . . and to the full

27

and equal benefit of all laws and proceedings” as well as equal

“punishment, pains, penalties, taxes, licenses, and exactions.”

42 U.S.C. § 1981(a). In the Civil Rights Act of 1991, Congress

amended various civil rights laws in an effort to “strengthen

and improve” them. The Act amended section 1981 in two

ways, first by rejecting the narrow interpretation, in Patterson

v. McLean Credit Union, 491 U.S. 164 (1989), of the section

1981 right to “make and enforce contracts,” and, second, by

forestalling any construction of that statute as inapplicable to

private actors. In the course of deciding Patterson, the Court

had sua sponte ordered reargument on whether it should

overrule Runyon v. McCrary’s holding that section 1981

“reaches private conduct.” 427 U.S. 160, 173 (1976); see

Patterson v. McLean Credit Union, 485 U.S. 617, 617 (1988)

(restoring case for reargument); CBOCS West, Inc. v.

Humphries, 553 U.S. 442, 450 (2008) (“Congress passed the

Civil Rights Act of 1991 with the design to supersede

Patterson.”).

In response to Patterson’s reading of section 1981 not to

prohibit on-the-job racial harassment, Congress added section

1981(b), specifying that “‘make and enforce contracts’

includes the making, performance, modification, and

termination of contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the contractual

relationship.” Id.; see Civil Rights Act of 1991, Pub. L. No.

102-166, § 101, 105 Stat. 1071, 1071-72 (codified at 42 U.S.C.

1981(b)). And, because the Court had seemed poised to

overrule Runyon, Congress added subsection (c), declaring that

the rights identified above are “protected against impairment

by nongovernmental discrimination and impairment under

color of State law.” § 101, 105 Stat. at 1072 (codified at 42

U.S.C. § 1981(c)); see also 137 Cong. Rec. 30,630, 30,678

(Nov. 7, 1991) (Statement of Rep. Hyde) (“[T]his section of the

Act codifies the holding of Runyon v. McCrary, under which

28

section 1981 prohibits private, as well as governmental,

discrimination.”) (citation omitted); 137 Cong. Rec. 28,999,

29,034 (Oct. 30, 1991) (Statement of Sen. Dole) (same).

The district court held that subsection (c) limits section

1981 to claims against private parties or state actors, excluding

federal actors. Xia I, 73 F. Supp. 3d at 44. Before the 1991

amendment, however, the Supreme Court had treated section

1982, which “closely parallel[s]” section 1981, Jones v. Alfred

H. Mayer Co., 392 U.S. 409, 441-42 n.78 (1968), to apply to

“federal as well as state” discrimination, District of Columbia

v. Carter, 409 U.S. 418, 422 (1973). Plaintiffs challenge the

district court’s holding that federal discrimination is no longer

covered, contending that Congress did not intend its

affirmation in subsection (c) of section 1981’s application to

private and “State” actors implicitly to eliminate claims based

on the exercise of federal governmental authority. The district

court’s narrower view would, anomalously, make section 1981

inapplicable to territories, a result in tension with subsection

(a)’s coverage of all persons “in every State and Territory.”

The 1991 Civil Rights Act should not, plaintiffs say, be read to

effect by implication such a momentous repeal. See

Appellants’ Br. 39-41; Amicus Br. for Ctr. for Individual

Rights 16-22.

We have not had occasion to decide whether the Civil

Rights Act of 1991 affected section 1981’s coverage of federal

government discrimination, and we find no occasion to do so

here because plaintiffs have “not nudged [their] claims of

invidious discrimination across the line from conceivable to

plausible.” Iqbal, 556 U.S. at 680. In pleading a claim under

section 1981, the “plaintiff[s’] initial burden is not onerous.”

Nanko Shipping, U.S.A. v. Alcoa, Inc., 850 F.3d 461, 467 (D.C.

Cir. 2017). They must allege only facts that, “accepted as true,”

suffice to “state a claim to relief that is plausible on its face.”

29

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

The allegations of discrimination in the amended complaint are

so threadbare, however, that they do not meet even that low

burden. 2

Plaintiffs acknowledge that the government asserted it

cancelled plaintiffs’ certificates of naturalization for the non-

racial reason that former USCIS employee Robert Schofield

issued them unlawfully. Other than the conclusory allegation

that the “defendants acted under color of law . . . to discriminate

on the basis of race and original ethnicity, by denying their full

and fair proceedings,” Am. Compl. ¶ 97, no factual allegation

in the complaint suggests plaintiffs were targeted because they

were Chinese. Their corresponding briefing—asserting that

the government’s “taking” of their “property and liberty rights”

and failure to afford them due process “may have been

motivated by the Appellant’s color, race, ethnicity and of their

national origin,” Appellant Br. 26—is speculative and vague.

2

An additional reason makes it inappropriate to decide an important

question of statutory interpretation in this case. Plaintiffs seek only

injunctive relief, not damages, and injunctive relief is unquestionably

available against federal officials for violation of the Fifth

Amendment’s Due Process Clause, including its equal protection

component. Thus, if plaintiffs plausibly alleged discrimination based

on their ethnicity, the court could grant them the relief they seek

without regard to whether discrimination by federal actors creates an

entitlement to damages under section 1981. See Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 213 (1995) (claim for

injunctive relief for racial discrimination “arises under the Fifth

Amendment to the Constitution”); Navab-Safavi v. Glassman, 637

F.3d 311, 318-19 (D.C. Cir. 2011) (acknowledging availability of

constitutional claim against the federal government of discrimination

because of ethnicity or national origin).

30

The most concrete basis plaintiffs identify for their claims

of discrimination is a chart that purports to list denaturalized

former U.S. citizens, many of whom were implicated in the

commission of war crimes. App’x 161-82. Plaintiffs assert

without factual support that the list contains over a hundred

“similarly situated persons of other” (i.e., non-Chinese)

“original ethnicity” who were denaturalized via valid processes

not equally offered to the plaintiffs. Am. Compl. ¶ 34. That

chart (which appears to have been copied from Wikipedia) 3 and

plaintiffs’ associated allegations fail to identify the listed

individuals’ ethnicities or the process they received before

being denaturalized. “The complaint and supporting materials

simply do ‘not permit the court to infer more than the mere

possibility of misconduct.’” Atherton v. D.C. Office of Mayor,

567 F.3d 672, 688 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. at

679). We therefore affirm the district court’s dismissal of

plaintiffs’ Civil Rights Act claims on the alternative ground

that they are not adequately pleaded. See EEOC v. Aramark

Corp., 208 F.3d 266, 268 (D.C. Cir. 2000) (“[B]ecause we

review the district court’s judgment, not its reasoning, we may

affirm on any ground properly raised.”).

III. Conclusion

We affirm the district court’s judgment insofar as it

dismissed the due process and INA claims that plaintiffs are

entitled to a judicial determination of the validity of the

cancellations of their certificates of naturalization and

passports. We also affirm the district court’s dismissal of the

claims under 42 U.S.C. §§ 1981 and 1983 on the ground that

3

List of denaturalized former citizens of the United States,

WIKIPEDIA, available at

https://en.wikipedia.org/wiki/List_of_denaturalized_former_citizen

s_of_the_United_States (last accessed July 11, 2017).

31

the complaint fails plausibly to allege ethnicity discrimination.

And we affirm the district court’s decision that the section 1503

claims may only be resolved in the districts in which the

plaintiffs reside. See 28 U.S.C. §§ 1406, 1631.

We reverse the district court’s dismissal of the APA

claims, including the district court’s associated conclusion that

the 8 U.S.C. § 1503 claims of all plaintiffs except for Lihong

Xia are barred by a failure to exhaust; no exhaustion bar applies

here.

Plaintiffs say that they are stranded. With no certificates

of naturalization and no passports, they cannot fully exercise

the rights and privileges of U.S. citizenship. Yet it appears that,

at least unless and until they are denaturalized here, the Chinese

government will not reinstate their Chinese citizenship.

According to plaintiffs, that renders them effectively stateless.

But assuming, as discussed above, that they were

naturalized, plaintiffs have not yet been denaturalized. The

government has a strong interest in promptly clarifying the

plaintiffs’ status, and where grounds for denaturalization

appear, the government should initiate denaturalization

proceedings under 8 U.S.C. § 1451(a). Or the plaintiffs

themselves may trigger a resolution of their dilemma under 8

U.S.C. § 1503 by pursuing, in the appropriate venues, their

claims that they have been denied “a right or privilege as a

national of the United States,” and thereby put the government

to its proof that they are not citizens. 8 U.S.C. § 1503(a).

The district court should consider on remand whether it is

in the interest of justice to transfer plaintiffs’ section 1503

claims to the appropriate venues rather than dismissing them.

We note that it is our normal practice “to transfer the entire

case,” rather than severing the claims that were properly raised

32

in this venue—here, the APA claims. Cameron v. Thornburgh,

983 F.2d 253, 257 n.5 (D.C. Cir. 1993). Our decision today is

without prejudice to plaintiffs’ ability to seek leave to file

amended complaints in the correct venues to clarify and

develop their APA and section 1503 claims.

So ordered.