IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

Case No. 1:22-cv-24023-SCOLA/GOODMAN 

KENNETH C. GRIFFIN, 

 Plaintiff, 

 v. 

INTERNAL REVENUE SERVICE, et al., 

 Defendants. 

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UNITED STATES’ REPLY IN SUPPORT OF ITS 

MOTION TO DISMISS PLAINTIFF’S COMPLAINT 

 Kenneth C. Griffin filed this suit for damages under section 7431 of the Internal 

Revenue Code (26 U.S.C., referred to herein as “IRC”) because he believes his tax return 

information was disclosed by the IRS to an online news publication (ProPublica) in 

violation of IRC § 6103. While his complaint and opposition brief are long on suspicion, 

both are short on allegations of fact necessary to raise his purported claim beyond 

speculation. Griffin’s IRC § 7431 claim should be dismissed for that reason. 

Nor can Griffin’s Privacy Act claim proceed. In addition to his claim for damages 

under IRC § 7431, Griffin separately requests damages under the Privacy Act, claiming 

the IRS failed to safeguard his confidential information. To avoid dismissal, his 

opposition recharacterizes that cause of action as a “Systems Failure Claim.” That 

recharacterization represents a distinction without a difference and does not change the 

fact that the underlying basis of his action is one rooted in—and preempted by—IRC 

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§ 7431. And, at all events, the Privacy Act does not support the recharacterized claim as 

an independent cause of action because Griffin fails to allege that he suffered any actual 

damages proximately caused by its purported violation. 

I. Griffin’s Bare Allegations of Wrongful Disclosure are Insufficient 

Griffin’s opposition holds steadfast to a theory that unidentified IRS employees 

unlawfully obtained and then disclosed his return information (as defined under IRC § 

6103(b)(2)) to ProPublica. But his belief—no matter how genuine—that the IRS must be

the source of the leak falls short of the pleading standard set forth in Federal Rule of Civil 

Procedure 8. The fact remains that Griffin’s allegations, pleaded on information and 

belief, are based solely on conjecture, speculation, and guesswork contained in 

correspondence from Congress to the Treasury Secretary. (See Compl. ¶ 12, n.20-22.)1

Despite Griffin’s emphatic rhetoric, there exists no connective tissue between his theory 

of the case and a justiciable—as opposed to hypothetical—claim for damages under IRC 

§ 7431. 

Instead of alleging specific facts to support his wrongful disclosure claim, Griffin 

posits that unnamed IRS employees exploited unspecified deficiencies in data security to 

unlawfully obtain and disclose his return information to ProPublica. In essence, Griffin is 

throwing speculative allegations at the wall to see what sticks. See Speaker v. U.S. Dep’t. 

of Health and Hum. Servs. Centers for Disease Control and Prevention, 623 F.3d 1371, 

1381 (11th Cir. 2010) (finding that a plaintiff’s “allegations must proffer enough factual 

1

 On their face, the correspondence to the Secretary reflects questions and opinions, not fact-based 

conclusions. 

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content to ‘raise a right to relief above the speculative level.’”). But Federal Rule of Civil 

Procedure 8 requires more: Griffin must allege specific facts to demonstrate, or allow one 

to reasonably infer, that an employee of the United States knowingly or negligently 

disclosed his return information to ProPublica. as defined by IRC § 6103. Griffin’s 

complaint contains none. 

To lend substance to his speculative allegations, Griffin claims that “ProPublica 

has all but admitted that the information came from disgruntled IRS employees.” (ECF 

No. 28, pdf p. 7.) This assertion flies in the face of statements made by ProPublica’s own 

journalists. Those journalists (1) acknowledge that they do not know (or will not disclose) 

the source of the information they received; and (2) recognize that information they 

published may have come from someone other than an IRS employee, for instance, a 

foreign state actor. See Stephen Engelberg and Richard Tofel, Why We Are Publishing 

the Tax Secrets of the .001%, ProPublica, (June 8, 2021, 4:59 a.m. EDT). While we do 

not suggest that Griffin must eliminate all other possibilities to pursue a claim against the 

United States, he must allege sufficient facts to plausibly demonstrate that a federal 

officer or employee leaked his return information to ProPublica. Ryan v. United States, 

74 F.3d 1161, 1163 (11th Cir. 1996) (“[T]he statutory definition of ‘return information’ 

confines it to information that passed through the IRS.”). His complaint falls short in that 

regard. 

Griffin’s attempt to distinguish the instant case from those cited by the United 

States in its motion to dismiss is unpersuasive. In Bancroft Global Dev., Inc. v. United 

States, 330 F. Supp. 3d 82 (D.D.C. 2016), the district court dismissed a wrongful 

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disclosure claim by plaintiffs who were the subject of an IRS civil audit while being 

investigated by both the FBI and ICE. The court found key details lacking, such as “who 

disclosed the tax return information, to whom, and when.” Id. at 103. The same is true 

here. Although Griffin alleges a date range (late June 2019 to mid-2021) and an 

“ultimate” recipient (ProPublica) of the disclosed information, the complaint fails to 

allege facts (as opposed to speculation) that connect ProPublica’s receipt of his tax 

information on the one hand, to a violation of IRC § 6103 on the other. 

Unlike Bancroft, Griffin does not describe any IRS examination, process or event 

pertaining to tax administration that would credibly explain how an IRS employee 

obtained his return information in the first place. Instead, he guesses that someone within 

the IRS stole and leaked it and reasons that the IRS must identify the leaker for him. 

The case he cites, Fattah v. United States, offers no support for that contention. 

Quite the contrary, the complaint in that case provided a detailed roadmap to uncover the 

source of the wrongful disclosure. It alleged that on a specific date two IRS agents served 

him with a subpoena and identified by the name the IRS spokesperson who allegedly 

disclosed to a news outlet that the plaintiff was under investigation. 2014 WL 4249768 at 

*10-11 (E.D. Pa. Aug. 27, 2014). With the benefit of that information, the government 

was able to confirm the violation and admit that Fattah was entitled to statutory 

damages.2

 

2

 At trial, the United States prevailed on Fattah’s claim for actual and punitive damages. See Fattah v. 

United States, 2017 WL 3638076, at *3 (E.D. Pa. July 27, 2017). 

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Griffin provides no such details and relies on “information and belief” as a 

substitute. While he correctly observes that a plaintiff can allege a wrongful disclosure 

based solely on “information and belief,” such allegations “still must include at least who 

made the disclosure and when.” United States v. Zak, 481 F. Supp. 3d 1305, 1312 (N.D. 

Ga. 2020) (collecting cases). 

Griffin’s reliance on Strong v. United States, 1998 WL 990581 at *2–3, (W.D. La. 

Dec. 10, 1998), is misplaced. In Strong, unlike here, the plaintiff directed the 

Government to the source of the alleged unlawful disclosure by pleading that his wife, an 

IRS employee, openly discussed her husband’s return information amongst her 

colleagues at the IRS office where she worked. Here, Griffin’s “information and belief” 

stands naked, unadorned by any underlying facts that would provide the Government 

with anything other than suspicion that the IRS might be a source of the ProPublica leak 

of his information. 

To save his complaint, Griffin overstates the breadth of our argument as one that 

contends the “only case where the IRS can be sued is one where it need never be sued[.]” 

(ECF No. 28, pdf. p. 2). The United States makes no such claim, as evidenced by cases 

where we did not question the sufficiency of the allegations but the plaintiff’s entitlement 

to the relief sought. See, e.g., Fattah v. United States, 2017 WL 3638076 (E.D. Pa. July 

27, 2017) (accepting the government’s admission that a wrongful disclosure occurred in 

violation of IRC § 6103 but denying plaintiff’s demand for damages because he failed to 

prove that the wrongful disclosure “actually and proximately” caused the plaintiff 

damages); Minda v. United States, 2015 WL 6673198 (E.D.N.Y. Oct. 9, 2015) (awarding 

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each plaintiff $1,000 following the United States’ admission that a wrongful disclosure 

occurred), aff’d , 851 F.3d 231 (2d Cir. 2017); Nat’l Org. for Marriage, Inc. v. United 

States, 24 F. Supp. 3d 518 (2014) (dismissing NOM’s wrongful disclosure claim on 

summary judgment because there was no evidence that the inspections “were anything 

but official tax administrative business.”). Griffin’s complaint stands on different footing 

because he pleads no particularized facts to reasonably infer that his return information 

was disclosed by the IRS in violation of IRC § 6103. 

Tellingly, Griffin admits that a motivating factor for his suit is his desire to “force

the government to investigate the circumstances of an unauthorized disclosure.” (ECF 

No. 28, pdf. p. 14 (emphasis in original).) But IRC § 7431 cannot be read as a waiver of 

sovereign immunity that permits him to seek mandamus or injunctive relief. See Henkell 

v. United States, 1998 WL 41565, at *5 (E.D. Cal. Jan. 9, 1998) (stating that IRC § 7431 

does not authorize injunctive relief). The statutory text of IRC § 7431 makes clear the 

limits of the waiver: “[A] taxpayer may bring a civil action for damages” for the knowing 

or negligent inspection or disclosure of return information) (emphasis added). IRC 

§ 7431(a)(1).3

 

Sovereign immunity concerns aside, it makes little sense to allow Mr. Griffin to 

use IRC § 7431 as a tool to “force” an investigation of the events described in his 

3

 Although not directly stated, Griffin request for equitable relief in the form a forced investigation could 

be construed as a claim under the Administrative Procedures Act, 5 U.S.C. § 702. But equitable relief is 

not available under the APA “if an adequate remedy at law exists.” Welborn v. IRS, 218 F. Supp. 3d 64, 

81 n.1 (D.D.C. 2016). In this case, there is an adequate remedy at law for an unauthorized disclosure of 

return information. 

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complaint. As explained in our opening brief, IRC § 6103—the statute that Griffin relies 

on here—prohibits the United States from disclosing any facts or details of any 

investigation of third parties related to the disclosure of taxpayer information. See IRC § 

6103(b)(2)(A). Griffin cannot seek damages for a hypothetical violation of IRC § 6103 

while, at the same time, complain that Government officials refuse to violate § 6103 by 

providing “any information on what is known and what has been done to address the 

IRS’s [alleged] unlawful disclosures[.]” (Compl. ¶ 12.) While the government takes 

seriously any allegation that a taxpayer’s return information was disclosed without 

authorization, this lawsuit is not an appropriate vehicle to obtain the explanation he seeks. 

II. Griffin’s Privacy Act Claim Should Be Dismissed for Failure to State a 

Claim 

As argued in the motion to dismiss, Griffin’s Privacy Act claim suffers from two 

fundamental flaws: 1) It substantively represents a wrongful inspection and disclosure 

claim that is preempted by the relief afforded by IRC § 7431; and 2) The failure to 

describe the damages he suffered by the Privacy Act’s violation. Griffin’s arguments to 

the contrary are unpersuasive. 

A. The IRC Preempts the Privacy Act’s Unauthorized Disclosure Claim 

“[T]he Internal Revenue Code preempts the Privacy Act for remedies for disclosure 

of tax information.” Gardner v. United States, 213 F.3d 735, 742 (D.C. Cir. 2000). For 

the first time, Griffin maintains that his Privacy Act claim “rests exclusively on the 

Privacy Act provision governing the failure to protect confidential information, 5 U.S.C. 

§ 522a(e)(10).” (See ECF No. 28, pdf. p. 19.) According to Griffin, his Privacy Act claim 

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is not preempted by IRC § 7431 because he does not seek damages related to the 

unauthorized disclosure of his return information; rather he seeks “redress only for harm 

caused by the IRS’s failure to protect and secure his confidential information.” (Id.) 

But Griffin’s attempt to repackage his claim ignores the obvious: He alleges that 

“the IRS unlawfully disclosed . . . his confidential tax return information . . . in violation 

of [the Privacy Act].” (Compl. ¶ 56.) Griffin cannot bypass the issue of preemption by 

recharacterizing the type of relief he is seeking under the Privacy Act. Otherwise, Griffin 

could theoretically recover damages under different statutes for the same conduct. IRC 

§ 7431 specifically redresses the wrongful disclosure of his return information and 

preempts the more general provisions of the Privacy Act.4 Hobbs v. United States, 209 F.3d 

410, 412 (5th Cir. 2000) (“[A] ‘precisely drawn, detailed statute preempts more general 

remedies.’”) (internal citations omitted). 

B. Griffin’s Privacy Act Claim Must Be Dismissed Because He Does Not Allege 

Any Actual Damages 

Even if Griffin’s Privacy Act claim is not preempted by IRC § 7431, it must still 

be dismissed for failure to state a claim because Griffin does not plead actual damages. 

See Welborn, 218 F.Supp.3d at 81 (D.D.C. 2016) (stating that a plaintiff must allege 

“calculable damages” to survive a motion to dismiss). Griffin’s conclusory statement that 

he “has and will continue to sustain damages directly traceable to the IRS’s violations” 

fails to allege any actual damages, which is required to state a viable claim under the 

4

 This is not to suggest that Griffin has asserted a justiciable IRC § 7431 claim. He has not. But as a legal 

matter, a litigant asserting a well-pleaded claim that his return information was wrongfully disclosed in 

violation of IRC § 6103 can only proceed under IRC § 7431. 

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Privacy Act. See, e.g., Brown v. U.S. Dep’t of Justice, 169 F. App’x 537, 541 (11th Cir. 

2006) (dismissing the plaintiff’s Privacy Act claim because she did not show that she 

suffered actual damages and determining that any adverse consequences she experienced 

were merely “speculative.”). 

Griffin cites to the Eleventh Circuit’s decision in Young v. Grand Canyon Univ., 

Inc. to support his argument that he sufficiently alleged actual damages. 57 F.4th 861, 

867 (11th Cir. 2023). But Young does not concern the Privacy Act; the plaintiff in that 

case brought claims for breach of contract, unjust enrichment, intentional 

misrepresentation, and violation of Arizona’s Consumer Fraud Act. To the extent it has 

any import here, Young stands for the unremarkable proposition that a court should make 

all reasonable inferences in favor of a plaintiff at the motion to dismiss stage. Id. In this 

instance, that does not help Griffin. The fact that a court must make all reasonable

inferences in Griffin’s favor does not absolve him from pleading any facts to support his 

claim for damages. 

Griffin’s assertion that he suffered damages constitutes a legal conclusion, which, 

standing alone, does not allow the Court to draw any inferences in his favor. See, e.g., 

Welborn, 218 F. Supp. 3d at 82 (declining to assume actual damages based on the 

plaintiffs’ “conclusory statement” that they “have suffered or are at increased risk of 

suffering from” a list of potential harms). See Bell Atlantic Corp. v. Twombly, 550 U.S. 

544, 555 (2007); (courts need not accept as true legal conclusions); Ashcrof v. Iqbal, 556 

U.S. 662, 663 (2009) (allowing courts to draw reasonable inferences in a plaintiff’s favor 

so long as the claim contains sufficient “factual content”). Griffin’s failure to allege the 

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required elements of a Privacy Act claim requires dismissal of the same. See Corbett v. 

Trans. Sec. Admin., 568 F. App’x 690, 702 (11th Cir. 2014) (“We need not evaluate 

whether [the plaintiff] stated a Privacy Act violation because he alleged no pecuniary loss 

or actual damages as a result of the Privacy Act violation.”). 

CONCLUSION

For the reasons above and in the United States’ Motion to Dismiss, the United 

States respectfully requests that the Court dismiss Griffin’s Complaint for failure to state 

a claim for which relief can be granted. 

Dated: June 21, 2023 Respectfully Submitted 

DAVID A. HUBBERT 

Deputy Assistant Attorney General 

 Elizabeth N. Duncan 

ELIZABETH N. DUNCAN 

Virginia Bar No. 90685 

ZACHARY A. GRAY 

California Bar No. 291376 

STEPHANIE A. SASARAK 

Maryland Bar No. 1012160096 

Trial Attorneys, Tax Division 

U.S. Department of Justice 

P.O. Box 14198 

Washington, D.C. 20044 

202-514-6546 (v) | 202-514-4963 (f) 

Elizabeth.N.Duncan@usdoj.gov 

Zachary.A.Gray@usdoj.gov 

Stephanie.A.Sasarak@usdoj.gov 

Counsel for the United States 

Of counsel: 

MARKENZY LAPOINTE 

United States Attorney 

Southern District of Florida 

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CERTIFICATE OF SERVICE 

I hereby certify that on June 21, 2023, I filed a copy of the foregoing document 

with the Clerk of Court using the CM/ECF system, which will send notification to 

counsel of record. 

 

Elizabeth N. Duncan 

ELIZABETH N. DUNCAN 

Trial Attorney 

 U.S. Dept. of Justice, Tax Division 

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