After a Washington DC judge on Wednesday dismissed a crowd-funded legal challenge brought last year by a Paris-based organization of accidental Americans and around nine co-plaintiffs over the way their ability to "voluntarily expatriate" had become all-but-impossible – which they said was a violation of the U.S. Constitution – the plaintiffs gave notice yesterday of their plans to appeal.
The Association of Accidental Americans and its co-plaintiffs, who are said to live in a number of countries located in Europe and Asia, said in a statement that they were wishing to renounce their U.S. citizenships "due to the U.S. government’s discriminatory treatment of its citizens residing abroad, especially in the areas of financial privacy and taxation," but that the American government's "suspension and delay of renunciation services due to [the pandemic]" had made this impossible.
The case (No. 1:21-cv-2933-TNM) was filed on behalf of the accidental Americans in the U.S. District Court for the District of Columbia by their lawyers, L. Marc Zell and Noam Schreiber of Zell & Associates International Advocates LLC.
"Ever since the passage of the Foreign Account Tax Compliance Act (FATCA), U.S. citizens abroad have been treated as financial pariahs by foreign financial institutions," the accidental Americans said in their statement.
"In many countries, banks have closed or frozen accounts maintained by U.S. persons. Elsewhere, banks refuse to provide basic services to U.S. citizens, imposing unreasonable limitations on their ability to carry out their business and daily affairs."
They added that they had "a fundamental right to renounce their citizenship under the [U.S.] Constitution" but that this right had been "infringed when the [U.S.] government suspended and delayed renunciation services at consular posts around the globe due to the COVID-19 pandemic.
"Electing not to resolve this cardinal issue, the court concluded that even if there were a fundamental right to expatriate, there is no authority suggesting that the government must allow citizens to renounce quickly, despite the severe hardship [their] U.S. citizenship [had been causing] accidental Americans.
"Plaintiffs and the government filed motions for summary judgment and, after extensive briefing, the court issued its 20-page memorandum opinion. At the outset, the court rejected the government’s argument that the court lacked jurisdiction to adjudicate the case. In so ruling, the court concluded that plaintiffs suffered a concrete injury which can be redressed by the court."
However, the accidentals' statement went on, the court finally declared that, although sensitive to the “serious” plight of accidental Americans, it didn't believe that the U.S. State Department had acted "unreasonably" in delaying renunciation services – comparing the waiting times for non-immigrant visa services to those of renunciation services.
Complaint filed in November
As reported, the AAA and its co-plaintiffs filed their complaint last November, a little more than two months after the organization announced that it and a number of individuals were planning to crowd-fund such a legal challenge against the State Department over the difficulties dual citizens around the world had been having in their efforts to renounce or relinquish their U.S. citizenships, owing to the continued closure of U.S. embassies and consulates.
At the time it and its fellow plaintiffs filed their complaint, the AAA, along with some 20 individual accidental Americans of 10 different nationalities, already had an earlier action against the State Department underway since the previous December, which alleged that the US$2,350 fee that the U.S. currently charges those wishing to renounce their American citizenship "violate[s] the U.S. Constitution and international law".
Since that complaint was filed, the State Department has twice asked the judge in that matter to dismiss it, on grounds that the AAA had failed to sufficiently make their case.
In their statement yesterday, the accidentals noted that they were still awaiting judgment in that matter, noting that it had been "ripe for a decision" for more than a year, and that it, too, was based on the fundamental constitutional right that all U.S. citizens have to expatriate.
Fabien Lehagre, founder and president of the Association of Accidental Americans (pictured left), ended the group's formal statement on its latest action by saying: "While disappointed in the ruling, we are happy that the court acknowledged the financial burdens caused by FATCA, and related legislation, on accidental Americans.
"We are also pleased that the court left open for decision by another court our main argument, that voluntary expatriation is a fundamental constitutional right, the restrictions of which should be stricken unless they are necessary for a compelling governmental interest.
"We have [now] appealed [Wednesday's] decision, and will raise our arguments before the Court of Appeals. It is our hope that the Court of Appeals will give the right to expatriate the importance it deserves.
"Our struggle for liberty has just begun."
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