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’ MOTION TO DISMISS COMPLAINT 

 Plaintiff Kenneth C. Griffin seeks damages from the Government under 26 U.S.C. 

§ 7431 (Count I or “the § 7431 claim”) and the Privacy Act, 5 U.S.C. § 552a (Count II or 

“the Privacy Act claim”). As a basis for both counts, Griffin alleges that the IRS failed to 

properly safeguard its record systems and that, because of this failure, unidentified IRS 

personnel wrongfully obtained his tax return information and provided it to ProPublica, 

an online news publication. Griffin’s Complaint—based on speculation that someone at 

the IRS is ProPublica’s source and conjecture that deficient security practices caused the 

alleged leak—should be dismissed for failure to state a claim upon which relief can be 

granted. See Fed. R. Civ. P. 12(b)(6). 

INTRODUCTION 

 The Internal Revenue Code provides that taxpayers’ “returns” and “return 

information” are confidential. 26 U.S.C. § 6103(a). Consistent with their confidential 

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status, the Government cannot disclose an individual’s return or return information unless 

the disclosure is authorized by statute. Id. If the Government knowingly or negligently 

discloses a taxpayer’s return information in violation of § 6103, § 7431 provides the 

taxpayer with an exclusive cause of action to recover statutory or actual damages

proximately caused by that violation. See 26 U.S.C. § 7431(a).

Griffin’s Complaint fails to state a claim for two reasons. First, Griffin cannot 

recover under the Privacy Act. Under Count II, Griffin’s Complaint raises two Privacy 

Act claims: (1) wrongful disclosure of his return information, and (2) failure to safeguard 

that same information as required by the Privacy Act. But the Internal Revenue Code’s

statutory remedy preempts Griffin’s Privacy Act claim to the extent that it seeks damages 

for the purported unauthorized disclosure of his confidential return information to 

ProPublica. Even absent preemption, both aspects of Griffin’s Privacy Act claims must 

be dismissed because Griffin fails to allege any actual damages.

Second—turning to Count I of the Complaint—Griffin’s § 7431 claim is based on 

the unsupported speculation that unidentified IRS personnel hacked the IRS’s data and 

records systems to obtain his return information and then gave that information to 

ProPublica. In essence, Griffin’s Complaint is a shotgun pleading based solely on 

conclusory allegations of the IRS’s role in the disclosure of his information to 

ProPublica. Those conclusory allegations fail to state a valid claim for relief under § 

7431. Thus, Griffin’s § 7431 claim must, too, be dismissed.

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BACKGROUND 

In 2021 and 2022, ProPublica published a series of articles reporting on the tax 

returns of several of the wealthiest U.S. taxpayers, including Griffin. In its reporting, 

ProPublica states that it does not know the identity of the source of the information in its 

articles. See Stephen Engelberg and Richrd Tofel, Why We Are Publishing the Tax 

Secrets of the .001%, ProPublica (June 8, 2021, 4:59 a.m. EDT). And ProPublica does 

not rule out the possibility that the source is “a state actor hostile to American interests.” 

Id. 

Although the source of the information for ProPublica’s articles is unknown, 

Griffin filed this action based on “information and belief” that unknown IRS employees 

provided the information to ProPublica. The factual allegations in support of his claims 

are summarized as follows: 

• The IRS’s records system does not adequately safeguard taxpayer’s 

information. 

• The IRS has known of the challenges in its records security for years but 

has not taken sufficient action to shore up its records security. 

• On unknown dates between 2019 and March 2022 “on information and 

belief,” unidentified IRS personnel exploited unspecified weaknesses in the 

IRS’s records systems to obtain Griffin’s tax returns and return 

information. 

• On unknown dates between 2019 and March 2022, “on information and 

belief,” unidentified IRS personnel provided Griffin’s tax returns and return 

information to ProPublica. 

• In 2021 and 2022, ProPublica published articles that reported on the 

information it allegedly received from the IRS. 

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Griffin cites to source material for nearly all his allegations, including links to 

several ProPublica stories that allegedly contain his return information.1 But he fails to 

allege any facts demonstrating that IRS personnel improperly obtained his records and 

provided those records to ProPublica. Nor does he make any attempt, beyond a 

conclusory statement, to explain how the IRS perpetrated the wrongful access and 

disclosure of his information and why the information allegedly disclosed is protected by

§ 6103. What’s more, consistent with the selective nature of his narrative, Griffin omits 

from his Complaint any reference to ProPublica’s admission that it does not know the 

source of the information and that the source may be a state actor hostile to Government 

interests. Instead, he alleges without support that ProPublica identified the IRS as its 

source. Compl. ¶ 4.

ARGUMENT

The crux of Griffin’s Complaint is the alleged unauthorized disclosure of his 

return information in violation of 26 U.S.C. § 6103 by an unidentified IRS employee to 

ProPublica. On this basic factual allegation, Griffin alleges two claims for relief. Count I 

seeks to recover under Section 7431 of the Internal Revenue Code. Count II seeks to 

recover for the same conduct under the Privacy Act, 5 U.S.C. § 522a. The Court should 

dismiss both claims. 

1 The Court may consider the ProPublica articles cited in Griffin’s Complaint at the motion to 

dismiss stage because they are central to Griffin’s claims and their authenticity are not disputed. 

See Hi-Tech Pharm., Inc. v. HBS Int’l Corp., 910 F.3d 1186, 1189 (11th Cir. 2018). 

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Griffin’s Privacy Act claim fails on both procedural and merits grounds. Griffin 

cannot proceed under the Privacy Act for the alleged wrongful disclosure of his 

information because the narrow relief prescribed by Congress under the Internal Revenue 

Code for that type of disclosure preempts Griffin’s broader Privacy Act claim. Even apart 

from this preemption, the Privacy Act claim must be dismissed for failure to state a claim 

because Griffin fails to allege actual damages. 

Griffin’s § 7431 claim is also meritless. Griffin’s broad “factual assertions” 

alleging a § 7431 claim lack the detail required to survive a motion to dismiss. Griffin 

merely speculates that “unidentified IRS personnel” obtained Griffin’s return information

and then gave that information to ProPublica. This speculative allegation—based on 

information and belief—evinces a shotgun pleading that falls short of the line between 

possible and plausible.

I. Griffin’s Privacy Act Claim Is Preempted by the Internal Revenue Code and 

Fails to State a Claim

In his Complaint, Griffin raises two alleged Privacy Act violations: (1) 

unauthorized disclosure of his return or return information, and (2) failure to safeguard 

information. Griffin cannot proceed under the Privacy Act for the alleged wrongful 

disclosure of Griffin’s return information because the Internal Revenue Code provides 

the exclusive remedy for the wrongful disclosure of return information. And even if 

Griffin were correct that he may proceed under the Privacy Act, his Complaint would still 

fail to state a claim because he has not pleaded actual damages, a necessary element to 

state a claim under the Privacy Act.

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A. The Internal Revenue Code Preempts Griffin’s Alleged Privacy Act 

Violation for the Unlawful Disclosure of His Tax Return Information 

At its core, Griffin’s Complaint seeks redress for the alleged unlawful disclosure 

of his return information. But Griffin cannot seek relief for the alleged disclosure under 

the Privacy Act. The Privacy Act provides that “[n]o agency shall disclose any record 

contained in a system of records . . . to any person, or to another agency” except as 

provided by statute. See 5 U.S.C. § 552a(b). The Privacy Act creates a private right of 

action for individuals whose confidential records are unlawfully disclosed where the 

Government’s “fail[ure] to comply” with its obligations under the Act “advers[ly] 

effect[ed]” the person whose records were disclosed. Id. § 552a(g)(1)(D).2

 Unlike the 

Privacy Act’s broad application to any “record” as defined in 5 U.S.C. § 552a(a)(4), § 

6103 prohibits the disclosure of a taxpayer’s “return or return information,” except as 

authorized by statute. 26 U.S.C. § 6103(a). Just as the Privacy Act permits suits for 

alleged violations of its provisions, the Internal Revenue Code allows taxpayers to sue 

the United States to redress alleged knowing or negligent violations of § 6103. 26 U.S.C. 

§ 7431(a)(1). 

When individuals have attempted to seek relief under both statutes as Griffin has 

done here, courts have routinely held that § 7431 provides the exclusive remedy for 

disclosure of taxpayer information. See, e.g., Gardner v. United States, 213 F.3d 740, 

742 (D.C. Cir. 2000) (discussing how courts interpret the relationship between § 6103 

2 There are several other avenues for a person to allege a violation under the Privacy Act (see 5 

U.S.C. § 522a(g)(1)(A)-(D). In this case, the Privacy Act claim appears limited to claims under 5 

U.S.C. § 522a(g)(1)(D), (g)(4). 

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and the Privacy Act). The prevailing view is that the specific provisions in the Internal 

Revenue Code related to the disclosure of return information—§§ 6103 and 7431—

preempt the Privacy Act’s more general prohibition on disclosure of “records.” See id; 

see also Hobbs v. United States, 209 F.3d 410, 412 (5th Cir. 2000) (noting that a 

majority of courts that have considered the interaction of § 6103 and the Privacy Act 

have concluded that § 7431 is the exclusive remedy for the disclosure of tax return 

information). As explained in Gardner, when Congress enacted § 6103, it intended to 

override inconsistent provisions contained in the Privacy Act. 213 F.3d at 741.

Upholding the district court’s dismissal under Rule 12(b)(6) of the plaintiff’s Privacy Act 

claims for wrongful disclosure of return information, the D.C. Circuit reasoned that the 

Internal Revenue Code’s “detailed framework for access to and disclosure of tax records 

preempts the generic provisions of the Privacy Act.” Id.

Indeed, allowing taxpayers to proceed under both causes of action would 

inevitably lead to inconsistent and irreconcilable results. Hobbs, 209 F.3d at 412. As the 

Fifth Circuit recognized, “only § 6103 provides for a variety of tax-return-specific 

exceptions to the general confidentiality rule.” Id. But if the plaintiff were allowed “to 

maintain a suit under the Privacy Act even where his § 7431 damages action was 

unsuccessful, this would punish the IRS for disclosing tax return information it was 

authorized to disclose under the express terms of § 6103.” Id. Preemption, thus, is the 

only appropriate way of reconciling these two statutes.

In his Complaint Griffin alleges that “the IRS unlawfully disclosed . . . his 

confidential tax return information . . . in violation of [the Privacy Act].” Compl. ¶ 56. 

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But a claim for the disclosure of return information must be brought under § 7431, not 

under the Privacy Act. See Gardner, 213 F.3d at 742; see also Hobbs, 209 F.3d at 412 (§ 

7431 is the exclusive remedy for wrongful disclosure claims); Cheek v. IRS, 703 F.2d 

271, 271–72 (7th Cir.1983) (Congress intended to override any inconsistent provisions 

of Privacy Act when it enacted § 6103); Welborn v. United States, 218 F. Supp. 3d 64, 

81 (D.D.C. 2016) (Privacy Act claims dismissed because they are preempted by the 

Internal Revenue Code); Ross v. United States, 460 F. Supp. 2d 139, 151 (D.D.C. 2006) 

(same); Diamond v. United States, 2014 WL 788361, at *9 (C.D. Cal. Nov. 14, 2014) 

(same); Gulden v. United States, 2007 WL 3202480, at *3 (M.D. Fla. Oct. 28, 2007) 

(same); Iacoe v. IRS, 1999 WL 675322, at *5 (E.D. Wis. July 23, 1999) (same).3

 

For this reason, the Court should dismiss Griffin’s Privacy Act claim for the 

alleged wrongful disclosure of his tax return information. 

B. Griffin’s Privacy Act Claim Fails to State a Claim Because he Fails to 

Allege Actual Damages 

To the extent Griffin’s failure to safeguard allegation is not otherwise preempted 

by the Internal Revenue Code, his entire Privacy Act claim must be dismissed for failure 

to allege actual damages. To state a claim under the Privacy Act, the plaintiff must 

demonstrate that: (1) the government failed to fulfill its record-keeping obligation; (2) the 

agency acted intentionally or willfully in failing to perform its obligation; (3) the failure 

3

 The United States identified only one case declining to find § 7431 provides the exclusive 

remedy for a wrongful disclosure of tax return information and allowing the plaintiff to pursue 

her lawsuit under both § 7431 and the Privacy Act. Sinicki v. Dep’t. of Treasury, 1998 WL 

80188, at *4–*5 (S.D.N.Y. Feb. 24, 1998). The Court should not follow this outlier and should 

adopt the reasoning of the cases above. 

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proximately caused an adverse effect on an individual; and (4) the individual suffered 

actual damages. See Fanin v. U.S. Dep’t of Veterans Affairs, 572 F.3d 868, 872 (11th Cir. 

2009) (internal citation omitted). Failure to allege any of these elements requires 

dismissal of a litigant’s Privacy Act claim. 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).

The Privacy Act permits recovery only for “pecuniary or economic harm.” F.A.A. 

v. Cooper, 566 U.S. 284, 299 (2012). Thus, a person seeking relief under the Privacy Act 

cannot recover non-pecuniary damages stemming from “loss of reputation, shame, 

mortification, injury to the feelings and the like.” See id. at 295–96 (2012) (construing § 

552a(g)(4)). Because Griffin fails to allege any pecuniary harm, his claim must be 

dismissed. 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 a Privacy Act violation.”); U.S. 

Dep’t of Agriculture, 2022 WL 2208915, at * 7 (S.D. Fla. June 21, 2022) (dismissing the 

plaintiff’s Privacy Act claim, which failed to allege actual damages, for failure to state a 

claim); Welborn, 218 F. Supp. 3d at 82 (dismissing Privacy Act violation for failure to 

state a claim when the plaintiff did not allege actual damages).

Griffin does not allege he suffered pecuniary or economic harm resulting from the 

alleged violations of the IRS’s failure to safeguard his information under the Privacy Act. 

The Complaint simply states that Griffin “has and will continue to sustain damages 

directly traceable to the IRS’ violations” under the Privacy Act (Compl. ¶ 57), and Griffin

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does not identify the nature of such damages. On the face of the Complaint, it is 

impossible to identify whether the generic “damages” he alleges are actual damages that 

are economic or pecuniary (recoverable) versus non-pecuniary (non-recoverable) 

damages. Griffin’s Complaint, devoid of any allegation of actual damages, must be 

dismissed. See Brown v. U.S. Dep’t of Justice, 169 F. App’x 537, 541 (11th Cir. 2006) 

(dismissal proper where the plaintiff’s Privacy Act claim failed as it was “devoid of any 

allegations” of actual damages). 

II. Griffin’s Section 7431 Claim Should Be Dismissed for Failure to State a 

Claim 

Griffin’s wrongful disclosure claim under the Internal Revenue Code is based on 

speculation and conjecture that an unidentified IRS employee hacked the IRS’s data and 

records systems to obtain his personal records and then gave those records to ProPublica. 

Griffin’s conclusory allegations based on his information and belief that the IRS was the 

source of the information in ProPublica’s articles amount to a shotgun pleading that runs 

afoul of Rule 8. And this warrants dismissal of his wrongful disclosure claim under Rule 

12(b)(6). 

A. Griffin’s Wrongful Disclosure Claim Is a Shotgun Pleading That Falls 

Short of Rule 8’s Standard Because It Is Replete with Vague and 

Conclusory Allegations 

Griffin’s wrongful disclosure claim based on “information and belief” that an 

unidentified IRS employee is responsible for the disclosure to ProPublica fails the 

pleading standard required by Rule 8 of the Federal Rules of Civil Procedure. Rule 

8(a)(2) requires “a short and plain statement of the claim showing that the pleader is 

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entitled to relief.” See Fed. R. Civ. P. 8(a)(2). Although the Rule does not require detailed 

factual allegations, the plaintiff must allege “more than an unadorned, the defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The 

claim must provide fair notice of what the plaintiff’s claim is and the grounds upon which 

it rests. Bell At. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Shotgun pleadings—like Griffin’s Complaint—fail “to give defendants adequate 

notice of the claims against them and the grounds upon which each claim rests.” Weiland 

v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1322–23 (11th Cir. 2015). The 

Eleventh Circuit has identified four categories of shotgun pleadings. Id. at 1321. Griffin’s 

wrongful disclosure count falls into the second category because he offers only vague and 

conclusory allegations to support his claim. See id. at 1321 n.12 (collecting cases in 

which the complaint was a shotgun pleading because of vague and conclusory 

allegations); Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 164 (11th Cir. 

1997) (finding that a complaint with vague and conclusory allegations was a 

“prototypical ‘shotgun complaint’”). 

Griffin’s wrongful disclosure claim is a textbook shotgun pleading. Griffin offers 

only vague and conclusory allegations that unidentified IRS personnel are responsible for 

the alleged disclosure of his return information to ProPublica. These allegations are based 

on speculation and conjecture. Although he provides notice of the nature of his claim 

(wrongful disclosure), Griffin’s claim is largely hypothetical. Indeed, by alleging a 

violation of § 6103 based on information and belief, Griffin speculates that some 

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unknown individual(s) in an organization of nearly 80,000 employees4, using unknown 

methods and exploiting unspecified security weaknesses, wrongfully obtained his return 

information. He then infers that the IRS individual(s) gave that information to 

ProPublica, while omitting or discounting all other possibilities or explanations. The 

ProPublica articles he cites offer no additional context that fill in the blanks or afford the 

United States fair notice to formulate a response. If anything, those articles muddy the 

water as ProPublica acknowledges in its reporting that it does not know who provided 

Griffin’s tax information and does not rule out that the source is a foreign government 

hostile to the United States. See Stephen Engelberg and Richrd Tofel, Why We Are 

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

(acknowledging that the information ProPublica received could have “come from a state 

actor hostile to American interests.”). 

To allow Griffin’s wrongful disclosure claim to go forward based solely on his 

conclusory allegations will “exact an intolerable toll” on the Court and “lead to 

unnecessary and unchanneled discovery.” Jackson v. Bank of Am., N.A., 898 F.3d 1348 

(11th Cir. 2018). That it is especially problematic here. Without confirming the 

authenticity of any purported return information, it is certainly understandable that a 

taxpayer in his shoes would want to know how his or her confidential return information 

entered the public domain. Section 6103, however, does not permit the United States to 

4 See 2021 IRS Data Book, at 69, 72, and 73 (IRS employed 78,661 full-time equivalents in 

2021) (Data Book available here: https://www.irs.gov/pub/irs-pdf/p55b.pdf). 

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disclose to Griffin or the Court the existence or details of any investigations related to the 

events described in the Complaint. Information about investigations into specific persons 

for unauthorized disclosure violations can represents the return information of the

subjects and/or targets of those investigations, which the United States is prohibited from 

revealing. 26 U.S.C. § 6103(b)(2)(A); Comyns v. United States, 155 F.2d 1344, 1348–49

(S.D. Fla. 2001) aff’d, 287 F.3d 1034 (11th Cir. 2002) (“[R]evealing the fact that a 

taxpayer is the subject of a tax investigation constitutes disclosure of ‘return 

information.’”).

That is not to suggest that Griffin has no remedy. Both Treasury Secretary Yellen 

and former IRS Commissioner Rettig advised Congress that they have referred the 

publication of Griffin’s return information by ProPublica to TIGTA and other 

investigative authorities. Compl. ¶ 12, n. 22–23. If future events reveal—beyond 

speculation and conjecture—that his return information was disclosed to ProPublica in 

violation of § 6103, then Griffin can file suit. For now, however, his speculative 

allegations do not comply with Rule 8, and his wrongful disclosure claim must be 

dismissed.5

5 For this reason, Griffin’s Complaint can also be dismissed on ripeness grounds. See, e.g., Yacht 

Club on the Intracoastal Condominium Ass’n, Inc. v. Lexington Ins. Co., 509 F. App’x 919, 921–

22 (11th Cir. 2013) (explaining that the ripeness doctrine “protects federal courts from engaging 

in speculation or wasting their resources through the review of potential or abstract disputes.”). 

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B. Griffin Fails to State a Valid Claim for Relief Under Section 7431 of the 

Internal Revenue Code 

The conclusory nature of Griffin’s allegations leads to dismissal of his § 7431 

claim for a second, broader reason—failure to state a claim. Rule 12(b)(6) requires the 

dismissal of claims based on conclusory and speculative allegations. See Twombly, 550 

U.S. at 555 (explaining that factual allegations must rise “above the speculative level”). 

Thus, Rule 12(b)(6) ensures that deficient claims do not move past the pleading stage and 

into discovery hoping to find “data and evidence to support the allegations through 

subsequent discovery.” Moss v. Liberty Mut. Fire Insur. Co., 2017 WL 4676629, * 7 

(M.D. Fla. Aug. 18, 2017); see also Lazarre v. JPMorgan Chase Bank, N.A., 780 F. 

Supp. 2d 1320, 1329 n.16 (S.D. Fla. 2011) (Discovery “is not intended to allow a plaintiff 

to go on a fishing expedition to see if the speculative complaint that he has filed has any 

basis in fact.”). But this is what Griffin seeks to do. He hopes to prove his conclusory and 

speculative allegations through broad discovery. 

To allege a violation under § 7431, the aggrieved party must plead these elements: 

(1) that an officer or employee of the United States (2) knowingly, or by reason of 

negligence, disclosed (3) any return or return information of a taxpayer that is protected 

from disclosure under § 6103. See 26 U.S.C. § 7431(a). Griffin’s Complaint fails to 

allege several key facts necessary for his § 7431 claim to survive a motion to dismiss 

under Rule 12(b)(6). First, Griffin fails to plead sufficient facts to demonstrate that his 

“return” or “return information” (i.e., § 6103 information) was disclosed to ProPublica. 

Second, Griffin’s Complaint lacks the necessary facts of the circumstances of the alleged 

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disclosure to take his allegation on information and belief that unidentified IRS personnel 

disclosed his return information to ProPublica from speculation to plausible. 

i. Griffin Failed to Plead Facts Sufficient to Demonstrate “Return or 

Return Information” was Disclosed 

Section 6103 of the Internal Revenue Code protects a taxpayer’s “return” and 

“return information.” Those words are terms of art that are statutorily defined. A “return” 

is “any tax or information return, . . . which is filed with the Secretary . . . including 

supporting schedules, attachments, or lists which are supplemental to, or part of, the 

return so filed.” 26 U.S.C. § 6103(b)(1) (emphasis added). A taxpayer’s “return 

information” includes: 

a taxpayer’s identity, the nature, source, or amount of his income, payments, 

receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax 

liability, tax withheld, deficiencies, overassessments, or tax payments, 

whether the taxpayer’s return was, is being, or will be examined or subject 

to other investigation or processing, or any other data, received by, recorded 

by, prepared by, furnished to, or collected by the Secretary with respect to a 

return or with respect to the determination of the existence, or possible 

existence, of liability (or the amount thereof) of any person under this title 

for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense. 

Id. § 6103(b)(2) (emphasis added). Thus, § 6103 protects only a taxpayer’s return or 

return information that is within the IRS’s files. To illustrate, a taxpayer’s return that is 

stored in the IRS’s files is protected by § 6103 and cannot be disclosed unless authorized 

by statute. But a draft of that same return stored in the files of the taxpayer’s accountant 

is not protected by § 6103 because it was not filed with the IRS. And so, if the 

accountant’s files are stolen and given to a news service, such as ProPublica, there is no 

unauthorized disclosure of the taxpayer’s “return” or “return information.” See Thomas v. 

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United States, 890 F.2d 18, 21 (7th Cir. 1989) (“[T]he definition of return information 

comes into play only when the immediate source of that information” is the IRS’s files); 

Johnson v. Sawyer, 120 F.3d 1307, 1325–26 (5th Cir. 1997) (holding that an IRS press 

release announcing the taxpayer’s guilty plea disclosed return information because the 

immediate source of that information was the IRS’s file, not the public judicial 

proceeding). 

Griffin fails to plausibly allege that the information reported in ProPublica’s 

articles is his return information as defined by § 6103. He merely speculates that the 

information came from the IRS’s files. But there is no indication in the Complaint or by 

ProPublica that the information was taken from the IRS’s files—either by unidentified 

IRS personnel or outside hackers. While it is true that it is often hard to trace private 

information in the public domain to any particular data breach, Griffin cannot even allege 

(other than speculatively) that there was a data breach at the IRS, which led to the 

disclosure of his return information to ProPublica. Even ProPublica claims it does not 

know the identity of its source and has not ruled out that it could be a hostile foreign 

actor. Thus, Griffin’s bald assertion that the information must have come from the IRS’s 

files, while possible, is insufficient to plausibly allege that the ProPublica articles 

contained his return information as defined under § 6103. 

ii. Griffin Failed to Plead Facts that an Employee or Official of the 

United States Wrongfully Disclosed His “Return” or “Return 

Information” to ProPublica 

Even if Griffin plausibly alleged that the articles were based on his return 

information, Griffin does not plausibly allege that any IRS employees knowingly or 

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negligently gave that information to ProPublica. And for this reason too, his § 7431 claim 

must be dismissed. 

A party seeking damages under § 7431 must allege “who made the alleged 

disclosures, to whom they were made, the nature of the disclosures, the circumstances 

surrounding them, and the dates on which they were made.” Bancroft Glob. Dev. v. 

United States, 330 F. Supp. 3d 82, 101 (D.D.C. 2018) (citation and quotation omitted). 

But Griffin alleges only on information and belief that unidentified IRS personnel made 

the disclosure to ProPublica on unknown dates between late 2019 and March 2022. 

Allegations based “on information and belief” are taken as true only if the plaintiff 

alleges specific, non-conclusory facts to support the allegation. See Scott v. Experian 

Info. Sols., Inc., 2018 WL 3360754, at *2 (S.D. Fla. June 29, 2018). Griffin does not 

allege specific, non-conclusory facts to support his allegation on information and belief 

that unidentified IRS personnel are ProPublica’s source. To allow Griffin’s claim to 

proceed because he couched his allegations as based on information and belief flaunts 

Twombly’s plausibility standard.

Courts confronted with similarly conclusory allegations have dismissed other 

wrongful disclosure suits. For example, in United States v. Zak, the court held that the 

allegation that unidentified “IRS and DOJ Officials have made other statements 

constituting impermissible disclosure of Mr. Clark’s return information” was insufficient 

to state a claim for relief. 481 F. Supp. 3d 1305, 1312 (N.D. Ga. 2020). The allegation 

was “too attenuated” because “the allegation on its own neither identifies who made the 

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alleged disclosure, nor when.” Id. Without additional facts, this allegation failed to 

provide “any guideposts” to fairly place the Government on notice of the claim. Id. 

The court in Bancroft reached a similar conclusion in dismissing one of the 

plaintiff’s wrongful disclosure counts while allowing other claims to go forward. 330 F. 

Supp. 3d at 89. For two of Bancroft’s claims, the allegations placed the Government on 

notice to whom the tax information was allegedly revealed and the narrow time frame of 

the alleged disclosure. And so, the court allowed those claims to proceed. But a third 

claim for wrongful disclosure was not supported with factual allegations that placed the 

Government on notice of his claim. Id. at 102–03. The plaintiff did not allege key details 

such as “who disclosed the tax return information, to whom, and when.” Id. at 103. The 

plaintiff did not even allege “where in the Government” the source of the alleged 

disclosure worked. Id.

At least one court has allowed a § 7431 claim to survive a motion to dismiss 

without alleging who made the disclosure. Strong v. United States, Case No. 6:98-cv1452, 1998 WL 990581, *3 (W.D. La. Dec. 10, 1998). But Strong is an outlier in which 

the plaintiff included other factual allegations to put the Government on notice to 

investigate his claim. In Strong, the plaintiff was married to an IRS employee and alleged 

that his return information was openly discussed among employees at a specific IRS 

office because of his marriage. And an IRS official attested under oath that discussion of 

the plaintiff’s tax return information was “part of a common and accepted practice” at the 

IRS office where his spouse worked. Id.

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Griffin’s § 7431 claim is like the dismissed claims in Zak and Bancroft. He does 

not allege the who or when to allow the United States to defend against his claim. Griffin 

alleges when he learned of the alleged wrongful disclosure (March 2022). And he 

attributes the alleged disclosure “on information and belief” to unknown IRS personnel.

Beyond this, he does not provide any details on where in the IRS the unidentified 

personnel may work. Nor does Griffin allege the specific dates, or even month or year of 

the alleged disclosure. He alleges only that it may have occurred between late 2019 and 

March 2022. 

Unlike in Strong, Griffin’s allegations do not provide guideposts to allow the 

Government to assess his claim. To illustrate, the IRS employed nearly 80,000 

individuals each year between late 2019 and March 2022. Without any clue as to which 

employee(s) allegedly misappropriated Griffin’s return information and gave that 

information to ProPublica, the Government would have to canvass all those employees to 

investigate the allegations. Simply put, Griffin’s allegation would require the 

Government to search for a needle in a haystack. But the needle may not even be in the 

haystack. ProPublica does not know if the source of the information was the IRS and 

acknowledges that the source may be a hostile state actor. 

In sum, Griffin’s claim “on information and belief” that IRS personnel disclosed 

his return information to ProPublica is based on speculation and conjecture. And the 

Court need not afford to these speculative allegations the presumption of truth for 

purpose of determining whether Griffin’s wrongful disclosure states a valid claim for 

relief under Rule 12(b)(6). Griffin’s § 7431 claim fails to allege specific facts to show 

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that the IRS was responsible for the disclosure to ProPublica, or even that the information 

constituted “return information.” Griffin has therefore failed to state a claim upon which 

relief can be granted under 26 U.S.C. § 7431.6

CONCLUSION

Griffin’s Complaint alleging that the IRS is responsible for the wrongful 

disclosure of his records to ProPublica is long on content but short on substance. Griffin’s 

Privacy Act claim, in part, fails because § 7431 preempts his Privacy Act claim for 

wrongful disclosure of return information. And his Privacy Act claim fails in its entirety 

because Griffin does not plead that he suffered actual damages. Griffin’s wrongful 

disclosure claim fares no better. It is a shotgun pleading based on vague, conclusory 

allegations that the IRS is the source of the ProPublica articles. And Griffin fails to state a 

claim under § 7431 because he has not plausibly alleged beyond mere “information and 

belief” that IRS employees provided his “return information” to ProPublica in violation 

of 26 U.S.C. § 6103.

6 If Griffin’s Complaint survives a motion to dismiss, the Court should still deny Griffin’s 

request for non-monetary relief because neither § 7431 nor the Privacy Act provide for the type 

of extraordinary relief he seeks. See Compl. at p. 21 (referring to subsections “A”, “B”, “E”, and 

“F.” of Prayer for Relief). In this case, each statute lays out the remedies available to a wronged 

party, e.g., $1,000 in damages per wrongful disclosure under 26 U.S.C. § 7431 and actual 

damages with a recovery no less than $1,000 under the Privacy Act. Griffin’s demanded 

declaratory relief (i.e., that the Court declare the IRS wrongfully inspected and disclosed 

Griffin’s § 6103 information to ProPublica; order the IRS to produce to Griffin all documents to 

Griffin related to said disclosure; and order the IRS to adopt a data plan that satisfies the Privacy 

Act) goes well beyond what is available to him under the statutory schemes alleged in his 

Complaint. “[T]he task for th[e] court is determine whether plaintiffs’ claims are based upon 

‘express mandates of the controlling statute’ or ‘go beyond what the statute itself requires.’” 

Mason v. City of Huntsville, Ala., 2012 WL 4815518, at *14 (N.D. Ala. Oct. 10, 2012). 

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Dated: April 25, 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

Case 1:22-cv-24023-RNS Document 23 Entered on FLSD Docket 04/25/2023 Page 21 of 22
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CERTIFICATE OF SERVICE 

I hereby certify that on April 25, 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. 

 Zachary A. Gray

ZACHARY A. GRAY 

Trial Attorney 

 U.S. Dept. of Justice, Tax Division 

Case 1:22-cv-24023-RNS Document 23 Entered on FLSD Docket 04/25/2023 Page 22 of 22