L'Association Des Americains Accidentels v. United States Dep't of State

Decision Date10 February 2023
Docket NumberCivil Action 20-cv-03573 (TSC)
CourtU.S. District Court — District of Columbia

TANYA S. CHUTKAN United States District Judge

Plaintiffs L'Association des Americains Accidentels and twenty named individuals have sued the United States Department of State the Secretary of State, and the Assistant Secretary of State for Consular Affairs. Plaintiffs allege that the State Department's 2015 Final Rule finalizing a citizenship renunciation processing fee violates the Administrative Procedure Act (“APA”) and customary international law, and that the imposition of any fee is unconstitutional under the Fifth, First, and Eighth Amendments. Compl., ECF No. 1 ¶¶ 10-15. Defendants have moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) on the customary international law and Eighth Amendment claims, for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the remaining claims, and in the alternative for summary judgment on the customary international law and Eighth Amendment claims. Defs.' Mot., ECF No. 11 at 1. Plaintiffs have cross-moved for summary judgment on the Fifth Amendment, First Amendment, and customary international law claims. Pls.' Cross-Mot., ECF No. 13 at 1-2. For the reasons set forth below, the court will grant Defendants' motion to dismiss and for summary judgment and deny Plaintiffs' cross-motion for summary judgment.


L'Association des Americains Accidentels is a Paris-based non-profit organization whose stated goal is to “represent and defend Accidental Americans who live outside the United States from the adverse effects of certain American extraterritorial laws.” Compl. ¶ 20. Plaintiffs describe “Accidental Americans” as “individuals whom the U.S. deems to be American citizens as a result of being born in the U.S., but who have lived abroad most if not all of their lives as citizens of another country.” Id. ¶ 127 (citing Peter J. Spiro, Citizenship Overreach, 38 MICH. J INT'L L. 167, 167 (2017)).

Plaintiffs claim that the State Department's $2,350 fee (“Renunciation Fee”) to process a request for a Certificate of Loss Nationality (“CLN”) in renunciation cases, violates the APA, the Constitution, and customary international law. They seek declaratory and injunctive relief.

A. Statutory Background

The process for renunciation of U.S. citizenship outside of the U.S. is governed by the Immigration and Nationality Act (INA) § 349(a)(5), 8 U.S.C. § 1481(a)(5), which provides that a U.S. citizen can expatriate and renounce their U.S. citizenship by “making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State.” A U.S. citizen seeking to renounce their citizenship while abroad must appear in person before a U.S. consular or diplomatic officer and sign an oath of renunciation.[1]Under 8 U.S.C. § 1501, a U.S. diplomatic or consular officer certifies the facts forming the basis for their belief that a loss of U.S. citizenship has occurred and, if the consular officer's report is approved by the Secretary of State, a CLN is issued to the renunciant. See also 22 C.F.R. §§ 50.40 (c), (e) (“Whenever a diplomatic or consular officer has reason to believe that a person, while in a foreign country, has lost his U.S. nationality . . .[,] he shall prepare a certificate of loss of nationality containing the facts upon which such belief is based and shall forward the certificate to the [State] Department.... If the certificate of loss of nationality is approved by the Department,” the “diplomatic or consular office in which the certificate was prepared shall then forward a copy of the certificate to the person to whom it relates or his representative.”).

The Independent Offices Appropriations Act (“IOAA”) authorizes an agency to “charge for a service or thing of value provided by the agency.” Compl. ¶ 98 (citing 31 U.S.C. § 9701). “Each charge shall be-(1) Fair; and (2) based on- (A) the costs to the Government; (B) the value of the service or thing to the recipient; (C) public policy or interest served; and (D) other relevant facts.” 31 U.S.C. § 9701(b). To determine the actual cost for providing consular services, the Bureau of Consular Affairs' Office of the Comptroller uses a Cost of Service Model (“CoSM”).” Compl. ¶ 102; Pickard Decl., ECF No. 11-2 ¶ 3. The CoSM uses “an activity-based costing . . . methodology to identify, describe, assign costs to, and report on agency operations” for various consular products and services. Pickard Decl. ¶ 4 (internal citation omitted). Activity-based costing “seek[s] to precisely identify and assign costs to processes and activities and then to individual products and services through the identification of key cost drivers referred to as resource drivers and activity drivers.” Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates (“2010 Supplemental NPRM”), 75 Fed.Reg. 14111-01, 14112 (Mar. 24, 2010) (internal quotation marks omitted). Using this model, the State Department determines the total costs for a consular service provided, then divides the total cost by the estimated number of users of that service. Id.

B. Renunciation Fee Rulemaking 2010 through 2015

In 2010, the State Department issued a notice of proposed rulemaking, recommending a $450 charge for administrative processing of a request for a CLN in renunciation cases under 8 U.S.C. § 1481(a)(5). Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates (“2010 IFR”), 75 Fed.Reg. 6321-01, 6324 (Feb. 9, 2010). Explaining its proposal to impose a renunciation fee for the first time, the State Department stated that “documenting a U.S. citizen's renunciation of citizenship is extremely costly, requiring American consular officers overseas to spend substantial amounts of time to accept, process, and adjudicate cases.” Id. The State Department further explained that the fee would “help defray a small portion of the total cost to the U.S. Government of documenting the renunciation of citizenship.” Id. It received almost 1,800 comments during the comment period, some of which challenged the $450 Renunciation Fee as too high, primarily because the services were previously provided at no charge. Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates (“2012 Final Rule”), 77 Fed.Reg. 5177-01 (Feb 2, 2012). The State Department finalized the $450 fee in 2012. Id.

In 2014, the State Department issued an interim final rule increasing the cost of the Renunciation Fee to $2,350. Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates-Visa and Citizenship Services Fee Changes (“2014 IFR”), 79 Fed.Reg. 51247-01, 51251 (Aug. 28, 2014). Defending the fee increase, the State Department noted that an overseas time survey-“which collected extensive data on both consular activities and the time spent by consular staff performing consular services at all overseas locations”-allowed the CoSM to better identify and assign costs. Id. at 51249. The survey further revealed that demand for renunciation services had “increased dramatically, consuming far more consular officer time and resources.” Id. at 51251. The State Department concluded that, in contrast to its 2010 Interim Rule and 2012 Final Rule, there was “no public benefit or other reason for setting [the renunciation processing] fee below cost.” Id.

On August 25, 2015, the State Department finalized the $2,350 Renunciation Fee. Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates, 2015 Final Rule, 80 Fed.Reg. 51464-01, 51464 (Aug. 25, 2015). It noted that it had received seventy comments, most of which expressed concern with the high cost of the fee. Several commenters complained about the effect of recently passed bank and tax laws, including the Foreign Account Tax Compliance Act (“FATCA”), affecting U.S. citizens living abroad.[2]Admin. R., ECF No. 21-11 at 3, 31, 42, 61, 65. Some commenters sought to be “grandfathered in to the previous” $450 fee, and others took the position that renunciation should remain free of charge. 2015 Final Rule, 80 Fed.Reg. at 51464-65. One-third of the comments suggested that the fee increase was a “deterrent” that violated the “constitutional or human right” to expatriate. Id. at 51465. The State Department responded that it had not “restricted or burdened the right of expatriation,” that “the fee is not punitive and is unrelated to the IRS tax legislation,” and that “the fee is a cost-based user fee for consular services.” Id. It went on to describe the renunciation process in detail, the fact that the demand for renunciation services had increased since 2010, and that the increase in demand was a drain on consular resources. Id.

In 2018, three years after publishing the 2015 Final Rule, the State Department finalized a separate rule applying the $2,350 Renunciation Fee to any request for a CLN, regardless of the type of citizenship expatriation at issue. Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates, 83 Fed.Reg. 4423-02 (Jan. 31, 2018).

C. Plaintiff's Claims

Plaintiffs assert that they “generally do not regard themselves as U.S. citizens,” in part because they “never chose to be U.S. citizens.” Compl. ¶ 130. They contend that the “current legal and regulatory regimes promulgated by the U.S. government have created a reality where it simply is not...

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