Elvis E. Johnson v. Robert Sawyer, United States of America

GARWOOD, Circuit Judge,

dissenting:

I respectfully dissent.

In my view, Johnson has established neither a cause of action under Texas law, as required by the Federal Tort Claims Act (FTCA), 1 nor that he suffered any material damage as a result of any violation of 26 U.S.C. § 6103 as construed in Lampert v. United States, 854 F.2d 335, 338 (9th Cir.1988), ce rt. denied, 490 U.S. 1034 , 109 S.Ct. 1931 , 104 L.Ed.2d 403 (1989) and William E. Schrambling Accountancy Co. v. United States, 937 F.2d 1485, 1488-89 (9th Cir.1991), ce rt. denied, — U.S.-, 112 S.Ct. 956 , 117 L.Ed.2d 123 (1992), a construction which the majority accepts, arguendo, as correct. 2

This is a federal, not a Texas, law claim.

The FTCA, subject to diverse exceptions, waives the sovereign immunity of the United States, making it liable in tort "in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. § 2674 , for certain damages “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346 (b) (emphasis added). While as a matter of abstract linguistics the phrase “law- of the place where the act or omission occurred” might be thought to include generally applicable federal law, it has long been settled that it does not, and that “the liability of the United States under the Act [FTCA] arises only when the law of the state would impose it.” Brown v. United States, 653 F.2d 196, 201 (5th Cir.1981). Thus, even a violation of the United States Constitution, actionable under Bivens, 3 is not within the FTCA unless the complained of conduct is actionable under the local law of the state where it occurred. Brown at 201 .

It follows, of course, and has consistently been held, that “the FTCA was not intended to redress breaches of federal statutory duties.” Sellfors v. United States, 697 F.2d 1362, 1365 (11th Cir.1983). As the Second Circuit said in Chen v. United States, 854 F.2d 622, 626 (2d Cir.1988):

“The FTCA’s ‘law of the place’ requirement is not satisfied by direct violations of the Federal Constitution, See Contemporary Mission, Inc. v. U.S.P.S., 648 F.2d 97 , 104-05 n. 2 (2d Cir.1981); Birnbaum v. United States, 588 F.2d 319, 328 (2d Cir.1978), or of federal statutes or regulations standing alone, Cecile Indus., Inc. v. United States, 793 F.2d 97, 100 (3d Cir.1986); Art Metal-U.S.A., Inc. v. United States, 753 F.2d 1151, 1157-58 (D.C.Cir.1985); Birnbaum, 588 F.2d at 328 ; Nichols [v. Block], 656 F.Supp. [1436] at 1444-45 [ (D.Mont.1987) ]. The alleged federal violations also must con *1507 stitute violations of duties ‘analogous to those imposed under local law,’ Cecile Indus., 793 F.2d at 100 (quoting Art Metal, 753 F.2d at 1158 .)”

See also, e.g., Zabala Clemente v. United States, 567 F.2d 1140, 1149 (1st Cir.1977) (“... even where specific behavior of federal employees is required by federal statute, liability to the beneficiaries of that statute may not be founded on the Federal Tort Claims Act if state law recognizes no comparable private liability”); Gelley v. Astra Pharmaceutical Products, Inc., 610 F.2d 558, 562 (8th Cir.1979) (“... federally imposed obligations, whether general or specific, are irrelevant to our inquiry under the FTCA, unless state law imposes a similar obligation upon private persons”). Our Court has long followed this rule. United States v. Smith, 324 F.2d 622, 624-25 (5th Cir.1963) (the FTCA “simply cannot apply where the claimed negligence arises out of the failure of the United States to carry out a [federal] statutory duty in the conduct of its own affairs” and is unavailable where “[t]he existence or nonexistence of” the claim “depends entirely upon Federal statute”); Brown; Tindall v. United States, 901 F.2d 53 , 56 at n. 8 (5th Cir.1990) (“a federal regulation cannot establish a ' duty owed to the plaintiff under state law,” citing Smith). See also Bosco v. U.S. Army Corps of Engineers, 611 F.Supp. 449, 454 (N.D.Tex.1985).

This is not to say that the required state law must be one directly applicable to the conduct of federal employees or to the precise activity from which the claim arose. The Supreme Court made this clear in Indian Towing Co. v. United States, 350 U.S. 61, 63-64 , 76 S.Ct. 122, 124 , 100 L.Ed. 48 (1955), where it relied on the “under like circumstances” language of section 2674 in holding that the United States could be liable under the FTCA for the Coast Guard’s negligence in the operation of its lighthouse, asserting “it is hornbook tort law that one who undertakes to warn the public of a danger and thereby induces reliance must perform his ‘good Samaritan’ task in a careful manner.” See also Block v. Neal, 460 U.S. 289, 293 , 103 S.Ct. 1089, 1092 , 75 L.Ed.2d 67 (1983). Although Indian Towing did not expressly refer to state law, subsequent decisions have made plain that in FTCA cases “the application of the ‘Good Samaritan’ doctrine is at bottom a question of state law.” United States v. S.A. Impresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 , 815 n. 12, 104 S.Ct. 2755 , 2765 n. 12, 81 L.Ed.2d 660 (1984). See also Sheridan v. United States, 487 U.S. 392, 400 , 108 S.Ct. 2449, 2455 , 101 L.Ed.2d 352 (1988). If the government undertakes to perform a duty, such as to furnish a lighthouse service or direct air traffic, and negligently performs that duty, then it may be liable under the FTCA if a similarly situated private enterprise would be liable under the local law good Samaritan rule.. As the Supreme Court explained in Sheridan :

“By voluntarily adopting regulations that prohibit the possession of firearms on the naval base and that require all personnel to report the presence of any such firearm, and by further voluntarily undertaking to provide care to a person who was visibly drunk and visibly armed, the Government assumed responsibility to ‘perform [its] “good Samaritan” task in a careful manner.’ ” Indian Towing Co. v. United States, 350 U.S. 61, 65 , 76 S.Ct. 122, 124 , 100 L.Ed. 48 (1955). The District Court and the Court of Appeals both assumed that petitioners’ version of the facts would support recovery under Maryland law on a negligence theory if the naval hospital had been owned and operated by a private person.” Id. 487 U.S. at 400 , 108 S.Ct. at 2555 (footnote omitted).

We have applied the same theory in FTCA cases involving air traffic controllers. See Gill v. United States, 429 F.2d 1072, 1075 (5th Cir.1970). 4

The teaching of these authorities is that the violation of a federal statute or regulation does not give rise to FTCA liability *1508 unless the relationship between the offending federal employee or agency and the injured party is such that the former, if a private (or at least non-federal) person or entity, would owe a duty under state law to the latter in an analogous non-federal situation. If the requisite relationship exists, then the statutory or regulatory violation may constitute or be evidence of negligence in the performance of that analogous state law duty. 5 But merely because a given state has a general doctrine of negligence per se does not mean that every violation there of a federal statute by a federal employee suffices for a claim by an intended statutory beneficiary to be a claim under state law for purposes of the FTCA. Otherwise, in such states the FTCA would have been rewritten to include conduct actionable only by virtue of federal law where “a private individual under like circumstances” would not be liable under state law. Thus in Art Metal-U.S.A., Inc. v. United States, 753 F.2d 1151 (D.C.Cir.1985), the D.C. Circuit rejected FTCA liability sought to be predicated on a violation of federal regulations, notwithstanding that local law had a broad negligence per se doctrine and the plaintiffs were intended beneficiaries of the regulatory provisions violated. The court observed: “duties set forth in federal law do not, therefore, automatically create duties cognizable under local tort law. The pertinent question is whether the duties set forth in the federal law are analogous to those set forth in local tort law.” Id. at 1158 (citing Indian Towing Co.). 6 And, in Sellfors , an FTCA case sought to be based on a federal statutory violation, the court stated: “We must first reject appellant’s insistence upon automatically applying the state negligence per se law.” Id., 697 F.2d at 1367 . The Sell-fors court went on to say:

“Even though violation of a federal statutory duty does not automatically invoke state law principles of negligence per se, where the government, in the performance of such duties does act negligently, liability may be found under state law because of the relationship created: the good Samaritan doctrine. See Indian Towing Co. v. United States, 350 U.S. 61 , 76 S.Ct. 122 , 100 L.Ed. 48 (1955).” Id.

Where a claim is wholly grounded on violation of a federal statute or regulation, to allow FTCA recovery merely on the basis of a general, abstract state doctrine of negligence per se, without requiring that there be some specific basis for concluding that similar conduct by private or non-federal governmental employees in clearly analogous circumstances would be actionable under state law, is to in essence discriminate against the United States: recovery against it is allowed, although in analogous circumstances the private or municipal employer or employee would not be subject to liability under state law. Plainly, the FTCA waiver of sovereign immunity does not go so far.

Here the duty not to disclose return information is grounded entirely on the federal statute, 26 U.S.C. § 6103 . Neither the majority, nor the district court, nor the plaintiff-appellee, points to any provision of Texas statutory or common law analogous to section 6103, much less any which in similar circumstances would prohibit a state or municipal official, or a private person, from disclosing information comparable to that disclosed here concerning an individual recently convicted of a felony in the local courts. In its footnote 36 the majority refers, without elaboration or citation of authority, to the torts of libel, slander, and defamation as possible Texas law analogues to the claim made here. However, as the majority recognizes, libel and slander are specifically excluded from the FTCA, 28 U.S.C. § 2680 (h), and so presum *1509 ably is defamation, which is essentially the same thing. Further, the information disclosed here was in every significant respect truthful and a matter of public record. The footnote also makes a similar coneluso-ry reference to professional malpractice arising from the disclosure of confidential information by lawyers or psychiatrists or the like concerning a client or patient. Again, no authority is cited. It seems to me that the analogy is quite strained, as in the instances cited there is a broad and general relationship of trust and confidence voluntarily undertaken between the parties, while the relationship between the Internal Revenue Service and taxpayers is largely involuntary, adversarial, and at arms length. Tellingly, the majority relegates its asserted Texas law analogues to a footnote, and makes no analysis either of the particular elements necessary for recovery under such purported section 6103 analogues or of the facts here to determine whether such particular elements are established. Nor did the district court. It is plain that the majority has relied exclusively on section 6103 (as did the district court), with no justification for doing so beyond the mere fact that Texas has a general doctrine of negligence per se. 7 For the reasons previously stated, that simply will not suffice to convert this federal law claim to one under Texas law.

Moreover, the majority does not establish that there actually is any Texas law doctrine of negligence per se applicable in a case such as this, where the statute violated is a federal one and there is also a federal statute that creates a comprehensive federal cause of action for the precise federal statutory violation alleged. As in effect at the time of the here challenged press releases, 26 U.S.C. § 7217 provided as follows:

Ҥ 7217. Civil Damages for unauthorized disclosure of returns and return information

(a) General rule. — Whenever any person knowingly, or by reason of negligence, discloses a return or return information (as defined in section 6103(b)) with respect to a taxpayer in violation of the provisions of section 6103, such taxpayer may bring a civil action for damages against such person, and the district courts of the United States shall have jurisdiction of any action commenced under the provisions of this section.

(b) No liability for good faith but erroneous interpretation. — No liability shall arise under this section with respect to any disclosure which results from a good faith, but erroneous, interpretation of section 6103.

(c) Damages. — In any suit brought under the provisions of subsection (a), upon a finding of liability on the part of the defendant, the defendant shall be liable to the plaintiff in an amount equal to the sum of—

(1) actual damages sustained by the plaintiff as a result of the unautho *1510 rized disclosure of the return or return information and, in the case of a willful disclosure or a disclosure which is the result of gross negligence, punitive damages, but in no case shall a plaintiff entitled to recovery receive less than the sum of $1,000 with respect to each instance of such unauthorized disclosure; and

(2) the costs of the action.

(d) Period for bringing action. — An action to enforce any liability created under this section may be brought, without regard to the amount in controversy, within 2 years from the date on which the cause of action arises or at any time within 2 years after discovery by the plaintiff of the unauthorized disclosure.” Added Pub.L. 94-455, Title XII, § 1202(e)(1), Oct. 4, 1976, 90 Stat. 1687 , and amended Pub.L. 95-600, Title VII, § 701(bb)(7), Nov. 6, 1978, 92 Stat. 2923 . 8 None of the Texas negligence per se cases cited by the majority involve a situation where there is a statutorily created comprehensive cause of action for the statutory violation claimed to constitute negligence per se. 9 It seems to me evident that the Texas courts would not create a common law cause of action for the statutory violation in such a situation, particularly where the statute violated is a federal one and the statute creating a comprehensive cause of action for the violation is likewise a federal one. Indeed, what could possibly motivate a Texas court to create such a cause of action in those circumstances? If the Texas cause of action merely mirrored section 7217, what purpose would be served? 10 Texas law obviously could not prevent recovery authorized by section 7217. It seems just as plain that Texas could not enhance the recovery provided for in section 7217 or authorize such recovery under circumstances in which section 7217 does not allow it. 11 Any such law *1511 would plainly be preempted by section 7217. See, e.g., Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 231 , 106 S.Ct. 2485, 2499 , 91 L.Ed.2d 174 (1986); Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 , 98 S.Ct. 2010, 2015 , 56 L.Ed.2d 581 (1978); Brown v. General Services Administration, 425 U.S. 820, 834-35 , 96 S.Ct. 1961, 1969 , 48 L.Ed.2d 402 (1976); United States v. Demko, 385 U.S. 149, 150-52 , 87 S.Ct. 382, 383-84 , 17 L.Ed.2d 258 (1966); Rollins v. Marsh, 937 F.2d 134, 140 (5th Cir.1991); Atkinson v. Gates, McDonald & Co., 838 F.2d 808 (5th Cir.1988); LeSassier v. Chevron USA, Inc., 776 F.2d 506 (5th Cir.1985). Here we deal with a suit grounded on the liability of federal employees for actions taken in the course of their employment with the Internal Revenue Service in releasing federal income tax information contrary to section 6103(a)(1) and so as to create civil liability under section 7217. Clearly in such instances section 7217 must be preemptive of state law. As the Court remarked in Boyle v. United Technologies Corp., 487 U.S. 500, 505 , 108 S.Ct. 2510, 2514-15 , 101 L.Ed.2d 442 (1988): “Another area that we have found to be of peculiarly federal concern, warranting the displacement of state law, is the civil liability of federal officials for actions taken in the course of their duty. We have held in many contexts that the scope of that liability is controlled by federal law.”

The only reasonable conclusion is that the complained of conduct by the IRS employees here was not, and could not have been, actionable under Texas law; it was, and was only, a violation of section 6103 actionable under section 7217. Because it was not actionable under Texas law, the United States had no liability under the FTCA.

The section 6103 violation was not a cause of Johnson’s damage.

The majority accepts, arguendo, that Lampert correctly construes section 6103 and accordingly that the violations here are: the disclosure of Johnson’s middle initial “E.” (the press releases describe him as “Elvis E. Johnson,” while the information uses “Elvis Johnson”); his age (59); the title of his executive position with American National Insurance Company (the press releases say “an executive vice-president for the American National Insurance Corporation,” but the trial record refers to him as “an executive for American National Insurance Company”); and his street address (the press releases, which have “Galveston, Texas” headers and use “here” to refer to Galveston, describe Johnson as “of 25 Adler Circle”; the information describes him as “a resident of Galveston, Texas”). 12

The April 17 press release would have been entirely in conformance with section *1512 6103 had it .merely omitted the middle initial “E.,” the figure “59,” and the word “vice-president,” while expressly substituting the already clearly implicit “Galveston” for “25 Adler Circle.” As so redacted, the press release would read as follows (bracketed material omitted; underscored added):

“INSURANCE EXECUTIVE PLEADS GUILTY IN TAX CASE

GALVESTON, TEXAS — In U.S. District Court here, Apr. 10, Elvis [E.] Johnson, [59,] plead guilty to a charge of federal tax evasion. Judge Hugh Gibson sentenced Johnson, of [25 Adler Circle] Galveston, to a six-month suspended prison term and one year supervised probation.

Johnson, an executive [vice-president] for the American National Insurance Corporation, was charged in a criminal information with willful evasion of federal tax by filing a false and fraudulent tax return for 1975.

In addition to the sentence, Johnson will be required to pay back taxes, plus penalties and interest.”

There is absolutely no evidence whatever even tending to suggest that such a press release would have had, or was calculated to have had, any different effect on Johnson or his relations with American National Insurance Company than the press releases actually issued. 13 The district court, in effect, simply ignored this problem and treated the entirety of the press releases as proscribed under section 6103. Hence the district court’s factual finding of causation is grounded on what the majority has assumed is a legally incorrect foundation. The majority (footnote 41) asserts “it was not beyond reason ... to find that the confidential information that was released caused the damage to Johnson.” But no explanation is given for this delphic and wholly counterintuitive conclusion. 14 This was a matter as to which Johnson had the burden of proof and that burden surely cannot have been sustained by such unreasonable and unexplained speculation.

Nor is this the whole of it. The district court reasoned that because a minority of the board knew about Johnson’s April 10 guilty plea before any press release, but he was not forced to resign until a few days after the second and last (April 17) release, that therefore, the press releases themselves caused him to be terminated. But this is pure post-hoc, propter-hoc reasoning. No one testified that the press releases had anything to do with Johnson’s loss of position. The district court seems to assume that the board as a whole would not have been told. The majority assumes that there was a change of heart because of the publicity. There is no evidence to support either assumption. Johnson was a member of the board, and the second ranking executive with the company. Only the board could remove him from that position. The fact that a minority of the board knew of the April 10 conviction and failed to take action before April 17 proves nothing. Moreover, the evidence is undisputed that the whole board and all the stockholders of this large, publicly held company, the stock of which was publicly traded, would have had to have been informed, even if there had never been any press release whatever. Johnson himself testified:

“Q. At some point you were going to tell the Board that you were a tax felon? A. It would be in the footnotes of the annual report, sir.

*1513 Q. And would have gone out to the board of directors?

A. And to the shareholders.

Q. And to the shareholders. And you were going to do that regardless whether there was a press release?

A. It would have to have been done, yes, sir.” 15

In these circumstances, and on this barren record, it is wholly fanciful to suggest that the inclusion in the press releases of the essentially minor matters whose disclosure was prohibited by section 6103 was a cause of Johnson’s loss of position at American National or of any material damage to him.

Conclusion

The majority and the district court recite evidence, principally from Johnson himself, tending to indicate that he wasn’t really guilty of felony tax evasion, but was merely negligent at worst, carelessly relying on his wife’s confused bookkeeping, and/or that he simply sacrificed himself to protect his wife. Any such contention is wholly inconsistent with the wording of the information to which Johnson pleaded guilty as well as with the necessary elements of a section 7201 violation. See footnote 12 supra. In this case Johnson’s conviction— which he has never challenged — wholly bars him from taking any such position, especially in this suit against the United States, which successfully prosecuted him for his tax fraud against it. See, e.g., Piper v. United States, 392 F.2d 462, 464-65 (5th Cir.1968); Tomlinson v. Lefkowitz, 334 F.2d 262, 264-65 (5th Cir.1964), cert. denied, 379 U.S. 962 , 85 S.Ct. 650 , 13 L.Ed.2d 556 (1965). See also, e.g., United States v. Thomas, 709 F.2d 968, 972 (5th Cir.1983). The majority acknowledges that there was no breach of the plea of agreement, 16 but nevertheless it, and the district court, seem to view the matter as if Johnson’s legitimate expectations from the agreement were frustrated. Again, however, the conviction stands and Johnson is bound by its necessarily implied findings. He never sought to challenge it. Having received a short, probated sentence for what we must presume was the willful, knowing, and intentional cheating of the United States out of several thousand dollars, and protected by that sentence from more severe punishment, he now collects several million dollars from the United States because this matter of public record — which he admits all the shareholders of his publicly-held company would have to have been specifically informed of anyway — was mentioned in two brief Galveston press releases. Neither the law nor the facts support this recovery. Johnson has indeed made a silk purse from a sow’s ear, and we should not countenance it.

. 28 U.S.C. §§ 1346 , 2671-2680.

. Under this construction, section 6103 prohibits "only the disclosure of confidential tax return information” and hence does not prohibit disclosure of return information once that information has been “made a part of the public domain." Lampert at 338 . I am in essential agreement with Lampert. Cf. United States v. Wallington, 889 F.2d 573, 576 (5th Cir.1989) ( 18 U.S.C. § 1905 restricted to confidential information).

.Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971).

. Gill was a Texas case. Texas has recognized the good Samaritan doctrine since well before enactment of the FTCA. See, e.g., Colonial Savings Ass’n v. Taylor, 544 S.W.2d 116, 119 (Tex.1976).

. Similarly, in an action between private parties who owe a duty one to the other under state law, such as the duties owed by a seller to a buyer in respect to the quality of the goods sold, violation of applicable federal law may constitute a breach of that duty under a negligence per se concept, just as would violation of state law. See Gibson v. Worley Mills, Inc., 614 F.2d 464, 466 (5th Cir.1980).

. This language and holding were cited with approval by the Third Circuit in Cecile Industries, Inc. v. United States, 793 F.2d 97 at 100 (3d Cir.1986).

. The majority apparently takes some comfort from the fact that the prohibitions of section 6103(a) extend to certain state and local government employees and, in some specified circumstances, to private persons. Section 6103(a) provides:

"(a) General rule. — Returns and return information shall be confidential, and except as authorized by this title—

(1) no officer or employee of the United States,

(2) no officer or employee of any State, any local child support enforcement agency, or any local agency administering a program listed in subsection (1)(7)(D) who has or had access to returns or return information under this section, and

(3) no other person (or officer or employee thereof) who has or had access to returns or return information under subsection

(e)(l)(D)(iii), (1)(12), paragraph (2) or (4)(B) of subsection (m), or subsection (n), shall disclose any return or return information obtained by him in any manner in connection with his service as such an officer or an employee or otherwise or under the provisions of this section. For purposes of this subsection, the term "officer or employee” includes a former officer or employee.”

Obviously, section 6103(a)(1) is the only clause applicable to this case. The word "other” in clause (3) plainly excludes federal employees from that clause. But even if section 6103(a)(2) or section 6103(a)(3) applied by analogy, that would be an analogous federal law, not an analogous state law. The majority’s discussion of clauses (2) and (3) of section 6103(a) merely serves to confirm that it relies exclusively on federal law.

. In 1982 section 7217 was repealed and replaced by 26 U.S.C. § 7431 , which generally allows for an action against the United States for violations of section 6103. The legislation repealing section 7217 and enacting section 7431 provided that such legislation would "apply with respect to disclosures made after the date of enactment of this Act [September 3, 1982]." Pub.L. 97-248, Title III, § 357(c). Hence, section 7217 remains applicable to the here challenged disclosures, and section 7431 is inapplicable.

. The closest case cited by the majority is El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex.1987). Poole involved suits against licensed on-premises beverage distributors for selling liquor to intoxicated persons contrary to Texas Alcoholic Beverage Code Ann. 101.63(a) (Vernon 1978). Plaintiffs were individuals injured in collisions during 1984 with cars driven by those to whom the defendants had recently dispensed the alcoholic beverages in violation of the referenced Texas statute. The Texas Supreme Court handed down its decision on June 3, 1987, holding the defendants civilly liable and relying in part on the doctrine of negligence per se. Id., 732 S.W.2d at 312-314 . At the time of the complained of acts and injuries, and indeed at the time the Supreme Court’s opinion was handed down, no Texas statute spoke to the question whether or under what circumstances there would be civil liability for violation of this or similar provisions of the Texas Alcoholic Beverage Code. The Texas Supreme Court did note, however, that on June 1, 1987, the legislature had passed an amendment to the Texas Alcoholic Beverage Code providing for civil liability if it was apparent to the party furnishing the alcoholic beverage that the person being served was obviously intoxicated to the extent of presenting a clear danger to himself and others. The Supreme Court noted that it was uncertain whether the act would become law, observing that it had not yet been signed by the governor and that its "effectiveness ... depends upon the action, if any, taken by the Governor.” Id., Til S.W.2d at 314. The Court also noted that the legislation apparently placed "a much more onerous burden of proof” on the plaintiff than did the Court’s opinion. The Court, however, declined to apply this more onerous standard because the legislative amendment “does not by its terms govern a cause of action arising or accruing before its effective date.” Id. The plain implication of Poole is that the statutory cause of action would be exclusive of any court-created action under a negligence per se theory with respect to statutory violations occurring after the legislation went into effect.

. Clearly, state as well as federal courts are available for suits under section 7217 itself, as its grant of federal jurisdiction does not purport to be exclusive. See, e.g., Tafflin v. Levitt, 493 U.S. 455 , 110 S.Ct. 792 , 107 L.Ed.2d 887 (1990).

. For example, could Texas law allow civil recovery for a section 6103 proscribed disclosure even though it resulted "from a good faith, but erroneous, interpretation of section 6103” and was hence not actionable under section *1511 7217(b)? Could Texas law authorize a longer limitations period than that of section 7217(d)? Could Texas law authorize recovery of more than the $1,000 provided for in section 7217(c) absent proof of larger actual damages?

. The information to which Johnson pleaded guilty charged a violation of 26 U.S.C. § 7201 , a felony that then provided for a maximum prison term of five years and a $10,000 fine for “[a]ny person who willfully attempts in any manner to evade or defeat any tax imposed by this title." The law clearly is, and has been in this Circuit since well before any of the events at issue, that establishing a violation of section 7201 requires a finding that the defendant "acted willfully and knowingly with specific intent to evade his income tax obligation,” United States v. Daniels, 617 F.2d 146, 148 (5th Cir.1980), and that "a negligent, careless, or unintentional understatement of income” is not "sufficient.” United States v. Garber, 607 F.2d 92, 97-98 (5th Cir.1979). "The government must demonstrate that the defendant willfully concealed and omitted from her return income which she knew was taxable.” Id. at 98 .

The information here alleged in relevant part as follows:

“ ... on ... April 15, 1976 ... the defendant ELVIS JOHNSON, a resident of Galveston, Texas, did willfully and knowingly attempt to evade and defeat a large part of the income tax due and owing by him to the United States for the calendar year 1975, by preparing and causing to be prepared, by signing and causing to be signed, and by mailing and causing to be mailed, ... a false and fraudulent income tax return, which was filed with the Internal Revenue Service, wherein he stated and represented that his taxable income for said calendar year was $53,589.00 and that the amount of tax due and owing thereon was the sum of $18,374.50, whereas, as he then and there well knew, his taxable income for 1975 was $59,784.18 upon which said taxable income he owed to the United States an income tax of $21,849.47 (Violation: Title 26, United States Code, Section 7201 ).”

. While the majority refers, as did the district court, to the fact that Johnson was known as “E.E.” to many people, there is no evidence that a reference to "Elvis Johnson, of Galveston, an American National Insurance Company executive,” would not have sufficed to identify him. Furthermore, Johnson’s damage claims are almost entirely premised on his loss of high position with American National. Yet, it is undisputed that the chief executive officer and general counsel of that concern, as well as a couple of others on its board, were aware, before any press release, that Johnson had pleaded guilty to the information and been sentenced. There is not a scintilla of evidence that anyone thought that the addition of the section 6103 confidential (non-public domain) information even had the potential for making any difference at all to anyone with American National (or to anyone else).

. The significant facts were Johnson’s identity, his being an executive with American National, and his felony offense, all of which were non-confidential, public domain matters.

. And we also know as a matter of common knowledge that this information would likewise have to be disclosed to the SEC, where it would be a matter of public record, and to the investment community.

. This is because, as the majority points out (fn. 42), "[t]he plea agreement specified only that the Justice Department would not issue a press release," and there is no finding or conclusive evidence that the Justice Department caused either press release or failed to inform the IRS of the agreement. The majority notes that neither Johnson nor the district court relied on a claim of breach of the plea agreement.