the next case is meant to be united states of america may please the court good morning your honors i'm kathleen packenham mere this morning representing gary minda who's the appellant in this case with your permission i'll reserve three minutes for rebuttal thank you this case presents issues of first impression in the are absolutely critical with respect to taxpayer privacy we asked this court to follow the plain meaning of section seventy four thirty one and joined with the fourth and eighth circuits in interpreting that statute  the only way that gives meaningful incentives to the internal revenue service to safeguard taxpayer information that isn't trusted to the in return a revenue service with respect to the lower court's decision and the position urged by the united states respectfully they do not give meaning to three critically interrelated provisions seventy four thirty one a which fixes liability sixty two one hundred three b eight which defines disclosure and seventy four thirty one see that tells us how to compute damages in such a case with respect to section seventy four thirty one that's the source of liability in this case and it's something that the district court really never touches on s seventy four thirty one and provides that if any employee of the united states by reason of negligence discloses any return information in violation of sixty one of three it says any return or return thank you your honor with respect to a taxpayer in violation of sixty one and through the taxpayer may bring a civil action now congress was not concerned with the form of disclosure and that's a lot of what's discussed in lower court opinion rather congress very very broadly defined what disclosure means in this context in sixty one to three b eight the congress said that making known to any person in any matter whatever disclosure is found in seventy four thirty one which is the down it is computation but there is no reference to act of disclosure in seventy four thirty one way which is the foundation of liability now o is that in terms of setting the amount of damages something for thirty one c on assets one thousand dollars for each act and why isn't this one mailing one act well there certainly was one act of mailing a don't dispute that but the question of why should not one act of disclosure it is not one act of disclosure for first in the first instance there is separate liability for each disclosure under seventy four made known the taxpayer's name it made known his social security number it made known multiple items within the definition of return information under sixteen one two three it's really hard to take the text of this provision that the amount of damages which says a thousand dollars for each act of unauthorized inspection or disclosure of a return or return information to mean what your contending help me understand because it clearly says you get a thousand dollars for an unauthorized disclosure of a return that return would presumably have many pieces of information but the clear text seems to say if it's just an author i suppose or of the return it's a thousand dollars why would you treat return information differently given that provision for there's a couple of different reasons why or out i think are writing as is the correct one first take a step back and look at this seventy four thirty one c and all of its words the first thing it says i i action and brought under subsection essay which is the liability section a pond a finding of why ability on the part of the defendant so there are separate liability with respect to each disclosure the defendant shall be liable in an amount equal to the sum of and then we get to the question of statutory damages or the greater of actual damages plus punitive damages sajid then goes on to say it's a thousand dollars for each act of an authorized for a return to return information with respect to which such defendant is found liable there's different liability for different disclosures here the focus on the physical act respectfully leads to an absurd result in this case and in other cases take for example an instance in which an internal revenue agent is talking to someone and they say  in one conversation they disclose an author in an authorized way a taxpayer's name that's one just closure they then give the social security number they then tell them that that person is under criminal investigation they  go on and on and on and make multiple disclosures does it matter that that's one conversation does it matter whether the agent stops and takes a break and comes back and read initiates the conversation i think the focus on act which the government itself in its brief defines not as a physical act but they say there's a thing done or a thing being done and the thing being done here is a disclosure of confidential information thank you good morning please the court my name is jennifer rubin and i represent the united states in this case as the court has done during the initial argument we focused very much on language of seventy four thirty one see that the statutory damages are calculated based on one thousand dollars for each act of unauthorized inspection or disclosure of a and everyone agrees that there's no punitive damages question it's just statutory damages no actual damages and then bring disclosure of two things an entire return with all of the schedules all of the information completely and redacted everything on their income dutchman's withholdings source of income their name their their social security number and a slip of paper that had a different tax payer's name and amount of in income you have to read that if either one of two ways either you read it as it says a return or return information one thousand dollars for the first taxpayer and two thousand dollars for the second one under my opponent's rating alternatively you go on you say we're going to ignore that it was a returns close i'm going to count each and every single item of information thereby reading the term a return out of the statute entirely moreover i would how would you address your opponent's hypothetical about a conversation that went on and little by little dribs and drabs of information about tax payers or security number  or just a gross income the fact of an investigation would it matter with happy one act was one conversation but if there were two conversations or if there were two people other people in the conversation with those with acts i think it is a little difficult to understand exactly what an act would be in many the circumstances that you can envision happening pages of one return get sent to multiple people in one act but multiple disclosures in that way we do have a principle we should look to well we would see you look at the again at the language each act and what is an act of disclosure we would say that a conversation is a single act if you have a single conversation that do it not there might be some mess your questions out there as to whether if you had a conversation we would say that a single conversation even if it included multiple pieces of information is a single act of disclosure even if there are multiple persons present acknowledge so that that is a tougher question than the one percent if there were two agents presents and each of them disclosed maybe that would be two acts that might i suppose it's fact specific and you have to look at what an act might be and that's right it is fact specific and facts and actually what was going on that my suspicion is that would be as a single act otherwise it becomes really difficult to break down and it doesn't appear here that that's what congress was trying to  moreover even if there was some ambiguity the principles of sovereign immunity say that you would have read this provision narrowly in favor of the government if it could be interpreted as a single act of disclosure it should be if it would you shouldn't infer that that was that's inability to explain is sufficient evidence of gross negligence to create potential liability for i guess putative damages or put the question to jury you know were nearly you would be expect that concerned me could you address that concern of course here we have as it is a lack of evidence of any thing other than an accident there's really no explanation that has been provided that would be anything other than an upsurge or negligence there's no was certainly congress seems to indicate that there are situations that would not be subject to punitive damages and so otherwise it would say only you always get punitive damages and certain said it said assuming that kind of damages are even available here where information could be sent to the wrong place this is hoops case for other like the national organization marriage case you don't really have any evidence that it's an oops case the agency hasn't offered any explanation as to how this happened it doesn't seem to have audit procedures in place that could provide an explanation i would submit that this is a perfect system is a is so situation or make sense or might not be a good explanation it was an accident and you know accidentally clipping something to you two together would normally want to have it what evidence do you point to to support your statement that it was an accident it could have been also someone intentionally putting in the wrong and follow up and sending someone right and we don't have an explanation well there certainly is no evidence in the case that anybody there would have had any interest in doing that so i would say that there needs to be some evidence of willfulness before that it really the first time there is any suggestion that it could have been willful was in the reply brief on appeal i didn't mean to suggest it was willful but i'm saying that the absence of any evidence at all about what could have happened to account for this suggests to me at least gross negligence is just shien's suggested a couple of the of age and suggested the  suggests the possibly the sin like a printed out by network error at the wrong printer and then gotten extend but you know if you've ever gotten to a place and realized oh i accidently brought a piece of paper with me that i wasn't planning on bringing with me and i didn't know how that happened tax documents be handled with care i guess what i would say is prohibits these kinds of disclosures you know they don't prohibit you from accidentally picking up someone else's brief fine example that even should and there being some precautions put in place what i would say is a congress certainly open left open the possibility that there would be simple negligence that there would be situations where punitive damages were not available and under actually picked up papers together and put them in the article of together that really is no theory and which this would be truly gross negligence and less every disclosure is gross negligence which is not what just ask that why is is that the case if you have zero actual damages plus punitive miking or actual damages be calculated zero in the statute permit and the statue seems to say that actual damages must be doesn't say explicitly that only a factual damages are sustained a punitive damages be worded doesn't it just says that in a particular case the plaintiff is entitle to the sum of actual damages plus if there 's gross negligence or whatever punitive damages i believe the language is let me just look at it just to make sure the actual damages sustained by the plaintiff as a result of such again that co i would say that the my congress structure especially with including the word sustained is almost inherent in the word actual damages is almost emphasising that actual damages needed to be sustained but in all that again under the principles of sovereign immunity if there error reading it's ambiguous if it is unclear then you need to to adopt a narrow interpretation which is what the ninth circuit did in city for the reasons tanner briefly or to any evidence your honor to grant question i mean i think hoops is just frankly totally insufficient woomera talking about the kinds of highly sensitive information the taxpayers trust there's absolutely no evidence that the service center that was handling this information had any process in place by which agents were required to for example before putting documents in an envelope making sure that the name on the document match the name on the envelope that agents were required to record robustly developed on that account about what systems were in place to check and double check and so no i mean the only the only evidence that exists really as to what happened at the service center it was the treasury  report but the government came forward with no evidence suggesting that for example agents are required to promptly get up and get documents from the printer to make sure that they don't get intermingled with other things no requirement to make sure that the rate documents are getting down to the right person you know is just insane you know kind of offensive frankly when we're talking about this kind of thing i want to go back to the question of what act means here and i would just want to make sure that it's clear we believe that act means the making known of information no matter what the form is that we need clear bright lines when it comes to this kind of liability particularly as my colleague says when we're dealing with questions of sovereign immunity imagine there are lots of examples what happens when an agent faxes one document to several different people what happens when an agent e mails a document i mean the statue obviously predates lots of advances in technology and there are many instances in which the physical act the pressing of the button could be construed as one act but remember seventy four thirty one a tell us us that there are separate liability for each disclosure not for each act of disclosure doesn't act no no seventy four thirty one a does not refer to act c refers to active disclosure for which there is liability and you have to tie seventy four thirty one see act seventy four