United States Court of Appeals

for the Fifth Circuit

No. 21-11104

James Franklin, 

Plaintiff—Appellant,

versus

United States; Charles Rettig, in his official capacity as 

Commissioner of Internal Revenue; Antony Blinken, Secretary, U.S. 

Department of State; Janet Yellen, Secretary, U.S. Department of 

Treasury, 

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:20-CV-1303

Before King, Elrod, and Southwick, Circuit Judges.*

King, Circuit Judge:

James Franklin appeals from the dismissal of his claims challenging 

tax penalties assessed against him, as well as the revocation of his passport 

pursuant to those penalties. He also appeals from the denial of an award of 

* Judge Elrod concurs in the judgment.

United States Court of Appeals

Fifth Circuit

FILED

September 15, 2022

Lyle W. Cayce

Clerk

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attorneys’ fees under the Freedom of Information Act. For the following 

reasons, we AFFIRM. 

I. 

The Internal Revenue Service (IRS) found that James Franklin had 

failed to file accurate tax returns and had not reported a foreign trust of which 

he was the beneficial owner, and so it assessed penalties against him. Those 

penalties, assessed under 26 U.S.C. § 6677 on July 18, 2016, totaled 

$421,766. In 2018, the IRS began its collection efforts against Franklin, filing 

a federal tax lien and later levying on Franklin’s Social Security benefits. The 

IRS also certified to the Department of State that Franklin had a “seriously 

delinquent tax debt” per 26 U.S.C. § 7345 (enacted under the Fixing 

America’s Surface Transportation (“FAST”) Act), which led the State 

Department to revoke Franklin’s passport. 

In response to the penalties, Franklin, through counsel, filed a 

Freedom of Information Act (“FOIA”) request seeking: “(1) ‘All relevant 

files and their contents . . . for the tax periods 1998 through 2017, including 

the entire administrative file relating to any auditor investigation’ and 

(2) ‘All relevant files, reports, letters, documents, or workpapers related to 

any penalty assessment under I.R.C. § 6677.’” In response, the IRS provided 

several documents from Franklin’s administrative file and tax records; 

according to Franklin, those documents demonstrate that the IRS did not

comply with statutory procedural requirements that must be satisfied before 

the assessment of penalties under § 6677. 

Franklin did not file an administrative appeal of the IRS’s response to 

his FOIA request; instead, he took the response at face value and assumed 

that the IRS had not complied with the procedural requirements (namely, 

that the penalties be approved in writing by a supervisor of the determining 

agent under 26 U.S.C. § 6751(b)). Franklin therefore filed an offer-inCase: 21-11104 Document: 00516473202 Page: 2 Date Filed: 09/15/2022
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compromise for a nominal sum, asserting a doubt of liability based on the 

purported procedural deficiencies. The IRS returned the offer without 

processing it, sending two separate letters that said respectively that (1) the 

IRS lacked jurisdiction to process the offer because “[i]t is regarding a foreign 

return and/or related issues,” and (2) “[o]ther investigations are pending 

that may affect the liability sought to be compromised or the grounds upon 

which it was submitted,”. Franklin then sent a second offer-in-compromise 

based on the same grounds and offering the same nominal settlement. 

After these offers-in-compromise were unsuccessful, Franklin filed 

this suit. He asserted various claims related to the alleged procedural failure 

under § 6751(b) (collectively, the “§ 6751(b) Claims”); those claims were 

brought under 26 U.S.C. §§ 7345, 7432, and 7433; 28 U.S.C. § 2410; the 

Declaratory Judgment Act; and the Administrative Procedure Act. Franklin 

also challenged the constitutionality of the FAST Act’s passport-revocation 

scheme, asserting that it violated his rights under the Fifth Amendment. 

Franklin later amended his complaint to seek attorneys’ fees under FOIA 

after the Government, in its Motion for Partial Dismissal, attached exhibits

that had not been produced in response to Franklin’s FOIA request, which

the Government asserted demonstrated that the penalties had been approved 

by the relevant supervisor. In addition to its assertions that the procedural 

requirements had been satisfied, the Government’s motion also sought 

dismissal of the § 6751(b) Claims for lack of jurisdiction; the Government 

later updated its motion and sought either dismissal or summary judgment 

on Franklin’s constitutional and FOIA claims. 

The district court dismissed all of Franklin’s claims. It first found that 

it lacked jurisdiction over each of the various § 6751(b) claims, finding that 

each was a prohibited collateral attack on the existence or validity of 

Franklin’s tax liability for which the United States had not waived sovereign 

immunity. While the district court found that it did have jurisdiction over 

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Franklin’s Fifth Amendment challenge to the FAST Act’s passportrevocation scheme, it also dismissed that claim after finding that the law was 

constitutional under rational-basis review.1 Lastly, the district court found 

that while Franklin was eligible for attorneys’ fees under FOIA (because his 

lawsuit prompted the IRS to release documents it alleged showed compliance 

with § 6751(b)’s procedural requirements), he was not entitled to an award 

of fees. Franklin timely appeals.

II. 

We first consider whether the district court was correct to find that it 

lacked subject-matter jurisdiction over Franklin’s various claims challenging 

the tax penalties. “We review questions of subject matter jurisdiction, 

including sovereign immunity determinations, de novo.” Daniel v. Univ. of 

Tex. Sw. Med. Ctr., 960 F.3d 253, 256 (5th Cir. 2020). When considering 

whether the United States has waived its default sovereign immunity, 

Franklin “bear[s] the burden of showing Congress’s unequivocal waiver.” 

Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009) (quoting St. 

Tammany Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 

315 (5th Cir. 2009)). His claims must be “brought in exact compliance with 

the terms of a statute under which the sovereign has consented to be sued.” 

Lewis v. Hunt, 492 F.3d 565, 571 (5th Cir. 2007) (quoting Hussain v. Bos. Old 

Colony Ins. Co., 311 F.3d 623, 629 (5th Cir. 2002)). 

Franklin’s panoply of claims share a common thread: he asserts he is 

entitled to damages for various IRS actions because they were based on

penalty assessments that were invalid ab initio due to the IRS’s failure to 

1 The district court also found that it did not have jurisdiction over a separate 

challenge Franklin raised to the penalties themselves under the Eighth Amendment’s 

Excessive Fines Clause, which Franklin does not appeal. 

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follow § 6751(b)’s procedural requirements. The district court was correct to 

find that each of these claims was a prohibited attempt to collaterally attack 

the actual penalties assessed. Under the Anti-Injunction Act, Congress has 

provided that, absent limited exceptions, “no suit for the purpose of 

restraining the assessment or collection of any tax shall be maintained in any 

court by any person.” 26 U.S.C. § 7421(a). Thus, when challenging the 

validity of a tax liability, the general rule is that a taxpayer must “pay first and 

litigate later.” Flora v. United States, 362 U.S. 145, 164 (1960). “[O]nce a tax 

has been assessed, [a] taxpayer . . . has no power to prevent the IRS from 

collecting it;” instead, the taxpayer must “pay the tax in full, and then sue 

for a refund.” Jones v. United States, 889 F.2d 1448, 1449–50 (5th Cir. 1989). 

Courts have zealously guarded this rule, recognizing the importance of the 

government’s ability “to assess and collect taxes alleged to be due without 

judicial intervention” so that “the United States is [assured] of prompt 

collection of its lawful revenue.” Enochs v. Williams Packing & Navigation

Co., 370 U.S. 1, 7 (1962).

We do not shirk that duty today. Each of Franklin’s claims impliedly 

challenges the validity of the tax assessment itself. It does not matter that the 

procedural deficiency Franklin alleges occurred can technically be construed 

as occurring in a separate examination phase or can be characterized as 

occurring “pre-assessment.” The Supreme Court has clarified these discrete 

steps, see Direct Mktg. Ass’n v. Brohl, 575 U.S. 1, 9–10 (2015), and held that a 

challenge to reporting requirements backed by a tax penalty can proceed, CIC 

Servs., LLC v. IRS, 141 S. Ct. 1582, 1588–89 (2021). But it has reaffirmed that 

a challenge to the assessment or collection of a tax itself is still barred. See Id.

at 1589. 

Thus, the distinctions of the various phases of the tax process found 

in those cases do not aid Franklin here. This is so because Franklin’s case is 

based on a cascade of inferences that necessarily includes a challenge to the 

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assessment itself: proper procedures were not followed, therefore the IRS 

was not allowed to assess the penalties, therefore the assessed penalties were

invalid, and therefore the IRS engaged in a cavalcade of actions based on the 

invalid penalties for which Franklin is owed damages. Franklin cannot state 

a claim without following that line of logic, as his challenges are all based on 

the alleged procedural deficiency that rendered the assessment void from the 

start. And that chain of reasoning features a defective link: it is based on an 

assumption that the assessment itself was void. Thus, his claims represent a 

challenge to the validity of the assessment over which the courts do not have 

jurisdiction.

A look at each of Franklin’s claims confirms that conclusion. His 

§ 7432 claim seeks damages for failure to release a lien—because the lien is 

based on penalties he states are invalid. His § 7433 claim seeks damages for 

wrongful collection activities—namely, trying to collect invalidly assessed 

penalties. His § 2410 claim seeks to quiet title to the property subject to the 

IRS’s lien—because the lien stems from allegedly invalid penalties. He seeks 

a declaratory judgment and consideration under the Administrative 

Procedure Act—that the penalty assessments are invalid due to the 

procedural deficiencies. And, in addition to his constitutional challenge to 

the revocation of his passport, he seeks review of the certification that he has 

a “seriously delinquent tax debt”—because the tax debt is based on allegedly 

invalid penalties. At every turn, Franklin seeks to overturn the penalties, 

restrain collection of them, or otherwise cast doubt on the validity of the 

assessment. The government has not waived its sovereign immunity for 

those challenges, and so the district court was correct to dismiss them for lack 

of jurisdiction. 

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III. 

We turn to Franklin’s challenge to the constitutionality of the FAST 

Act’s passport-revocation scheme. The district court dismissed that claim 

under Rule 12(b)(6). “We review a district court’s ruling on a motion to 

dismiss de novo, ‘accepting all well-pleaded facts as true and viewing those 

facts in the light most favorable to the plaintiffs.’” Anderson v. Valdez, 845 

F.3d 580, 589 (5th Cir. 2016) (quoting Dorsey v. Portfolio Equities, Inc., 540 

F.3d 333, 338 (5th Cir. 2008)). 

Franklin’s constitutional claim is based on his substantive due process 

rights under the Fifth Amendment. Substantive due process “protects 

individual liberty against ‘certain government actions regardless of the 

fairness of the procedures used to implement them.’” Collins v. City of 

Harker Heights, 503 U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474 

U.S. 327, 331 (1986)). 

Generally, liberty interests protected by the Fifth Amendment are 

considered under one of two standards: strict scrutiny and rational-basis 

review. If a right is fundamental, strict scrutiny applies. Washington v. 

Glucksberg, 521 U.S. 702, 720–21 (1997). To survive strict scrutiny, a 

governmental restriction of a fundamental right must be “narrowly tailored 

to serve a compelling state interest.” Id. at 721 (quoting Reno v. Flores, 507 

U.S. 292, 302 (1993)). If a right is not fundamental, then rational review is 

applied, and the restriction at issue survives as long as it is “rationally related 

to a legitimate government interest.” Reyes v. N. Tex. Tollway Auth., 861 F.3d 

558, 561 (5th Cir. 2017).

In turn, to decide if the implicated right is fundamental, that right 

must be “carefully describe[d].” Malagon de Fuentes v. Gonzales, 462 F.3d 

498, 505 (5th Cir. 2006). In the instant case, the district court correctly 

defined the right as “the right to international travel.” We next consider 

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whether that right is “‘deeply rooted in this Nation’s history and 

tradition’ . . . and ‘implicit in the concept of ordered liberty,’ such that 

‘neither liberty nor justice would exist if [the right was] sacrificed.’” 

Glucksberg, 521 U.S. at 721 (first quoting Moore v. City of E. Cleveland, 431 

U.S. 494, 503 (1977), then quoting Palko v. Connecticut, 302 U.S. 319, 325, 

326 (1937)). The Supreme Court has cautioned that, because declaring a right 

as fundamental “to a great extent . . . place[s] the matter outside the arena of 

public debate and legislative action,” courts should “exercise the utmost care 

whenever [they] are asked to break new ground in this field.” Id. at 720 

(quoting Collins, 503 U.S. at 125). 

Given the Supreme Court’s guidance on restrictions to international 

travel, we cannot find that it is a fundamental right such that restrictions on 

it merit strict scrutiny. It is true that three of the Supreme Court’s cases 

hinted at the possibility that the right to international travel is fundamental. 

In Kent v. Dulles, the Court stated that “[t]he right to travel is a part of the 

‘liberty’ of which the citizen cannot be deprived without the due process of 

law under the Fifth Amendment” and that “[f]reedom of movement is basic 

in our scheme of values.” 357 U.S. 116, 125–26 (1958). In Aptheker v. Secretary 

of State, the Court held that a law restricting the grant of passports to 

members of the Communist Party was an unconstitutional violation of the 

petitioner’s rights under the Fifth Amendment. 378 U.S. 500, 504–05 (1964). 

In doing so, the Court stated that the law “swe[pt] too widely and too 

indiscriminately across the liberty guaranteed in the Fifth Amendment” and 

noted that “Congress ha[d] within its power ‘less drastic’ means of achieving 

the congressional objective of safeguarding our national security.” Id. at 512–

14 (quoting Shelton v. Tucker, 364 U.S. 479, 488 (1960)). And in Zemel v. 

Rusk, the Court seemed to compare the right to international travel favorably 

to the fundamental right of interstate travel; it upheld a ban on travel to Cuba 

based on “the weightiest considerations of national security,” analogizing to 

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the fact that the “freedom [of interstate travel] does not mean that areas 

ravaged by flood, fire or pestilence cannot be quarantined.” 381 U.S. 1, 15–16 

(1965). The Court stated that just as interstate travel can sometimes be 

abridged to protect “the safety and welfare of the area or the Nation as a 

whole[,] [s]o it is with international travel.” Id. 

However, later Supreme Court decisions have consistently and 

decisively refuted these earlier suggestions, going to great pains to separate 

the right to international travel from the fundamental right to interstate 

travel. In Califano v. Aznavorian, the Court noted that its past cases “often 

pointed out the crucial difference between the freedom to travel 

internationally and the right of interstate travel.” 439 U.S. 170, 176 (1978). 

Therefore, the Court made clear that regulations affecting international 

travel are “not to be judged by the same standard applied to laws that penalize 

the right of interstate travel.” Id. at 177. In so holding, the Court further 

explained that “[t]he constitutional right of interstate travel is virtually 

unqualified” while “the ‘right’ of international travel has been considered to 

be no more than an aspect of the ‘liberty’ protected by the Due Process 

Clause of the Fifth Amendment.” Id. at 176 (quoting Califano v. Torres, 435 

U.S. 1, 4 n.6 (1978)). “As such this ‘right,’ the Court has held, can be 

regulated within the bounds of due process.” Id. (quoting Torres, 435 U.S. at 

4 n.6). 

The court reiterated this distinction when considering the revocation 

of the passport of a former CIA officer who threatened to reveal state secrets 

in Haig v. Agee, stating again that “the freedom to travel outside the United 

States must be distinguished from the right to travel within the United 

States.” 453 U.S. 280, 306 (1981). And it hammered home the point in Regan 

v. Wald, explicitly stating that any implication in Kent that the right to 

international travel was concomitant with the right to interstate travel had 

been “rejected in subsequent cases.” 468 U.S. 222, 241 n.25 (1984). The 

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Supreme Court also noted that Kent and Aptheker concerned restrictions on 

travel based on a person’s beliefs and associations; their discussions of the 

purported fundamental right to international travel thus hinged on protecting 

rights derived from the First Amendment that were not implicated in later 

cases (and that are not implicated here). See Haig, 453 U.S. at 304; Regan, 

468 U.S. at 241 (“First Amendment rights . . . controlled in Kent and 

Aptheker.”). Taken together, these decisions of the Supreme Court make 

clear that the right (or, more aptly, freedom) to travel internationally is not 

fundamental, and thus that restrictions on international travel like the FAST 

Act’s passport-revocation scheme are not to be judged under strict scrutiny.

We note that the above conclusion does not necessarily end the 

analysis. Franklin is correct in his assertion that the right to international 

travel is not a new creation unmoored from our past, but instead can be traced 

through the ages from Magna Carta to Blackstone to the Declaration of 

Independence to the modern Universal Declaration of Human Rights. 

Recognizing that fact, two esteemed members of our sister circuits have 

concluded that the right to international travel holds a place somewhere 

between the two poles that anchor our substantive-due-process 

jurisprudence and should be considered under intermediate scrutiny. Maehr 

v. U.S. Dep’t of State, 5 F.4th 1100, 1115 (10th Cir. 2021) (Lucero, J., 

concurring in the judgment) (applying intermediate scrutiny to the FAST 

Act’s passport-revocation scheme); Eunique v. Powell, 302 F.3d 971, 978 (9th 

Cir. 2002) (McKeown, J., concurring) (applying intermediate scrutiny to a 

law revoking passports of those seriously in arrears on child-support 

payments). Intermediate scrutiny requires that the challenged restriction 

“must serve important governmental objectives and must be substantially 

related to achievement of those objectives.” Craig v. Boren, 429 U.S. 190, 197 

(1976). 

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However, we need not decide whether restrictions that effectively

deprive an individual of the ability to travel outside our borders, like the 

passport-revocation scheme before us, should be judged under rational-basis 

review or intermediate scrutiny. Even under the higher standard of 

intermediate scrutiny, the FAST Act’s passport-revocation scheme is 

constitutional. The government’s interest in collecting taxes, which animates 

the FAST Act’s passport-revocation scheme, is undoubtedly an important 

one. See, e.g., Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (“[E]ven a 

substantial burden would be justified by the ‘broad public interest in 

maintaining a sound tax system’” (quoting United States v. Lee, 455 U.S. 252, 

260 (1982))); Flora, 362 U.S. at 154 (“It is essential to the honor and orderly 

conduct of the government that its taxes should be promptly paid[.]”). The 

passport-revocation scheme is also clearly connected to that goal: delinquent 

taxpayers will be well-incentivized to pay the government what it is owed to 

secure return of their passports, and those same taxpayers will find it much 

more difficult to squirrel away assets in other countries if they are effectively 

not allowed to legally leave the country. 

The FAST Act’s passport-revocation scheme also does not sweep 

beyond what is necessary to achieve Congress’s goal of trying to recoup the 

$5.8 billion or more in delinquent taxes owed to the government. The 

government is not authorized to seize the passport of any person who owes 

any taxes. Instead, the scheme is focused on those with serious tax debts and 

provides several procedural safeguards through both the tax process and, 

ultimately, through a cause of action should the certification itself be 

erroneous. Congress was within its rights to provide the IRS another arrow 

in its quiver to support its efforts to recoup seriously delinquent tax debts. 

And, importantly, what Congress provided was an arrow, not a bazooka. Its 

chosen tool is carefully aimed at the problem, not fired indiscriminately with 

grave risk of collateral damage to the rights of those not covered by the 

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scheme. Under even intermediate scrutiny, the passport-revocation scheme 

is constitutional. See Eunique, 302 F.3d at 978 (McKeown, J., concurring) 

(upholding a similar passport-revocation scheme for those in serious arrears 

on child-support payments under intermediate scrutiny). The district court 

was correct to dismiss Franklin’s challenge. 

IV. 

We last consider whether the district court correctly denied Franklin 

attorneys’ fees related to his FOIA request. A district court’s decision on 

whether to award attorneys’ fees under FOIA is reviewed for abuse of 

discretion. Batton v. IRS, 718 F.3d 522, 525 (5th Cir. 2013). An award of fees 

under FOIA2 is considered under a two-pronged test: first considering fee 

eligibility and second considering entitlement to the award of fees. Id. “The 

eligibility prong asks whether a plaintiff has substantially prevailed and thus 

may receive fees. If so, the court proceeds to the entitlement prong and 

considers a variety of factors to determine whether the plaintiff should receive 

fees.” Id. (quoting Brayton v. Office of the U.S. Trade Representative, 641 F.3d 

521, 524 (D.C. Cir. 2011)). When considering entitlement to fees, courts look 

to four factors: “(1) the benefit to the public deriving from the case; (2) the 

commercial benefit to the complainant; (3) the nature of the complainant’s 

interest in the records sought; and (4) whether the government’s 

withholding of the records had a reasonable basis in law.” Id. at 527 (quoting 

Texas v. ICC, 935 F.2d 728, 730 (5th Cir. 1991)). 

The district court did not abuse its discretion in declining to award 

fees. Franklin’s lawsuit is far afield from the purposes for which FOIA, and 

its attorneys’ fees provision, were designed. There is no public value in the 

information, and no value for anyone other than Franklin. Instead, Franklin 

2 5 U.S.C. § 552(a)(4)(E)(i)

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only sought the information to aid him in his personal fight with the IRS 

regarding his tax penalties. When considering FOIA attorneys’ fees, we have 

generally looked with disfavor on cases with no public benefit. This is 

especially true when the information seeker was motivated by a private 

commercial interest (such as reversing sizeable tax penalties to avoid paying 

hundreds of thousands of dollars to the government). See, e.g., ICC, 935 F.2d 

at 733 (“We are persuaded that the information ordered disclosed in Texas’s 

suit is so devoid of public benefit that the trial court was within its discretion 

in denying Texas’s request for fees.”); Blue v. Bureau of Prisons, 570 F.2d 

529, 533–34 (5th Cir. 1978) (“Thus the factor of ‘public benefit’ does not 

particularly favor attorneys’ fees where the award would merely subsidize a 

matter of private concern; this factor rather speaks for an award where the 

complainant’s victory is likely to add to the fund of information that citizens

may use in making vital political choices.”). 

That is the case here. Our collective treasury of knowledge is made no 

richer through knowing whether or not an IRS supervisor signed forms 

authorizing the penalties assessed against Franklin. The public gains no

benefit from that information; only Franklin could as he seeks to overturn 

those penalties. The district court did not abuse its discretion in deciding not 

to award him attorneys’ fees. 

V. 

For the foregoing reasons, we AFFIRM. 

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