Overview
Cohen Milstein represents American citizens in a consumer class action against the U.S. Department of State for allegedly imposing arbitrary and capricious expedited passport processing fees.
Plaintiffs allege that the State Department’s $60 fee expedited passport processing has been unlawfully high since at least 2018. Audits of the State Department’s consular fee-setting in 2017 and 2022 raised concerns that its fees, including the expedited passport processing fee, cannot be justified based on an acceptable, cost-recovery basis. Yet the government still continues to charge and unlawfully high fee for expedited passport processing.
Plaintiffs argue the fee is unlawful because it goes beyond what the State Department is permitted to charge under 31 U.S.C. § 9701.
Important Dates & Rulings
- On May 27, 2026, Judge Chen certified a class seeking monetary damages under Rule 23(b)(3) but denied plaintiffs’ request to certify a class seeking injunctive relief.
- On March 24, 2025, Judge Chen denied defendants’ motion to dismiss, permitting both plaintiffs’ claims under both the APA and the Little Tucker Act to proceed.
- On February 10, 2025, the Honorable Edward M. Chen, Senior Judge for the U.S. District Court for the District of Northern California appointed Geoffrey Graber of Cohen Milstein Interim Class Counsel.
- On October 4, 2024, plaintiffs filed the original complaint with the U.S. District Court for the Northern District of California. Plaintiffs subsequently amended the complaint on April 24, 2025.
Case Background
Government agencies, including the State Department, have the authority to establish user charges, or fees, for goods or services of value, under 31 U.S.C. § 9701, otherwise known as Title V of the Independent Offices Appropriations Act of 1952.
Until 1994, the State Department provided expedited passport processing for no additional charge for applicants who could demonstrate urgent travel needs. The 1994 Appropriations Act permitted the State Department to retain any proceeds it collected from a fee for expedited passport processing, whether those funds otherwise would have been sent to the U.S. Department of Treasury. The State Department then began charging a fee for expedited passport processing.
This new expedited processing fee provided for 3-day processing in exchange for a $30 fee. In, 1997, the State Department increased the expedited passport processing fee to $35, explaining this fee was meant to “recover the costs of guaranteeing a maximum turn-around time of three business days to qualified users.”
As part of its 2002 fee revisions, the State Department raised the expedited passport processing fee from $35 to $60. The public notice explaining this increase reiterated that the fee “pays for all of the additional costs associated with expediting the processing and issuance of an applicant’s passport at a U.S. Passport Agency, so that the applicant can receive a passport in three days or less,” though it failed to specify what those “additional costs” were or how those costs were calculated.
In 2009, the State Department amended its expedited passport processing regulation to change the processing timeline from three business days to the amount of time specified on its website. Expedited passport processing times are now weeks not days. For instance, the State Department listed expedited processing time estimates like three to five weeks (late 2023) and two to three weeks (2024, 2026) in 2024, 2025, and 2026.
Despite this significant change in the service provided, the expedited passport processing fee, however, remains set at $60.
The State Department has never provided a sufficient justification for setting the expedited passport processing fee at $60. Under the IOAA, 31 U.S.C. § 9701, and case law interpreting it, a fee, like the expedited processing fee, may not exceed the cost the government incurs to provide the related service. But the government has never publicly explained what costs it incurs from providing expedited processing or what expenses it pays for with the proceeds from the expedited processing fee.
Furthermore, sources both within and outside the State Department have raised concerns with the State Departments’ fee-setting, including that fees like the expedited passport processing fee cannot be justified based on an acceptable, cost-recovery basis. These sources include a former senior government official, the State Department’s Office of the Inspector General, through its independent auditor Kearney & Company, and the U.S. Government Accountability Office.