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 FOR A LIMITED STAY OF DISCOVERY 

Pursuant to the Court’s inherent authority and for good cause under Rule 26(c) of 

the Federal Rules of Civil Procedure, the United States moves for a stay of discovery 

directed to the government while the court considers its motion to dismiss. The grounds 

for this motion are as follows: 

BACKGROUND 

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

tax returns of several of the wealthiest U.S. taxpayers, including Plaintiff Kenneth C. 

Griffin (“Plaintiff”). 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 Richard Tofel, 

Why We Are Publishing the Tax Secrets of the .001%, ProPublica (June 8, 2021, 4:59 

a.m. EDT). Although the source of ProPublica’s reporting was unknown, on December 

13, 2022, Plaintiff filed a complaint against the United States alleging someone in the 

IRS wrongfully disclosed his return or return information, and that the IRS failed to 

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safeguard the same information in violation of the Privacy Act. Dkt. No. 1. The United 

States moved to dismiss the complaint on April 25, 2023. Dkt. No. 23.

2. On July 28, 2023, the Plaintiff sent a first round of discovery requests to the 

United States. These requests consisted of forty-five (45) requests for admissions, fortytwo (42) requests for production, and ten interrogatories, which consist of sixty-nine (69) 

interrogatories when each discrete subpart is counted separately. 

3. The United States timely responded to the discovery requests on September 

11, 2023, raising various objections including that discovery should not proceed while a 

facial challenge to Plaintiff’s claims is pending. 

4. Before the court ruled on the motion to dismiss Plaintiff’s complaint, an

Information was filed on October 29, 2023, by the United States against Charles E. 

Littlejohn, an employee of a company that contracts with the IRS, for the wrongful 

disclosure of return or return information. See United States v. Littlejohn, No. 1:23-cr343, Dkt. No. 1 (D.D.C.). Soon thereafter, Mr. Littlejohn pleaded guilty to wrongfully 

disclosing taxpayer return information (including Plaintiff’s) in violation of 26 U.S.C. 

§ 7213—his sentencing hearing is scheduled for January 29, 2024. Id. at Dkt. Nos. 8, 9, 

and Oct. 12, 2023 (Minute Entry). Counsel representing the United States in this civil 

case was unaware that Mr. Littlejohn was the individual who disclosed Plaintiff’s tax 

information to Pro Publica until the day the Department of Justice publicly announced the 

filing of the Information. 

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5. Considering this new information, on November 13, 2023, Plaintiff filed a 

Second Amended Complaint.

1 Dkt. No. 55. The Second Amended Complaint asserts two 

claims. First, Plaintiff claims that the United States is liable to him for statutory and 

punitive damages under 26 U.S.C. § 7431 for the wrongful disclosure of his return or 

return information by IRS contractor Charles E. Littlejohn.2 Second, Plaintiff alleges that 

the IRS failed to safeguard his confidential return information in violation of the Privacy 

Act (5 U.S.C. § 552a). 

6. The identification and prosecution of Mr. Littlejohn as the individual who 

wrongfully disclosed Plaintiff’s return information completely changed the factual 

landscape of this case. For that reason, on November 21, 2023, the United States 

requested that Plaintiff withdraw his July discovery requests and issue new, targeted 

discovery requests that reflect the newly revealed facts that have been incorporated into 

his Second Amended Complaint. 

7. Plaintiff has not withdrawn his initial discovery requests. Instead, he insists 

that the United States must supplement its responses. But in apparent recognition that the 

initial discovery requests have largely been superseded by subsequent events (and before

the United States was required to respond to the Second Amended Complaint), Plaintiff

issued a new round of written discovery. The new requests include eleven (11) 

1 Plaintiff’s first Amended Complaint misidentified another individual as the person who 

transmitted his return information to ProPublica. He filed the Second Amended Complaint to 

correct that error.

2 Plaintiff also alleges that he’s entitled to recover litigation and attorneys’ fees. Dkt. No. 55 

¶ 60. Due to his net worth, plaintiff cannot—under any circumstance—meet the definition of 

“prevailing party” in § 7430(c)(4)(A)(ii), made applicable here by § 7431(c)(3).

 

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interrogatories (for a total of 80), sixty-four (64) requests for admissions (109 total), and 

thirty-three (33) requests for production (seventy-five total). Considering the discrete 

subparts to its interrogatories, Plaintiff has, to date, made over 200 discrete discovery 

requests directed at the United States or its agencies to support claims—we contend—the 

Court lacks jurisdiction to hear and/or fail on their face.

8. The United States has also received notices of subpoenas from the Plaintiff 

directed at third parties, including ProPublica, Booz Allen Hamilton, and Charles 

Littlejohn.

9. On November 27, 2023, the United States moved to dismiss on both counts. 

Dkt. No. 58. It argues that the Court lacks jurisdiction to adjudicate Count I because the 

United States has not waived its immunity from suit from claims of wrongful disclosure 

by government contractors. Separately, the motion argues that Count II fails to state a 

plausible claim for relief under the Privacy Act because plaintiff has not articulated any 

concrete or identifiable damages.

LAW AND ANALYSIS

“[D]istrict courts are entitled to broad discretion in managing pretrial discovery 

matters.” Perez v. Miami–Dade Cty., 297 F.3d 1255, 1263 (11th Cir. 2002). “Granting a 

discovery stay until an impending motion to dismiss is resolved is a proper exercise of 

that responsibility.” Rivas v. The Bank of New York Mellon, 676 F. App’x 926, 932 (11th 

Cir. 2017); see also, Bettis v. Toys “R” Us-Delaware, Inc., 273 Fed. Appx. 814, 819 

(11th Cir. 2008) (vested with inherent authority to manage docket, the district court did 

not abuse its discretion in entering a protective order preventing discovery from 

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proceeding); Patterson v. U.S. Postal Serv., 901 F.2d 927, 929 (11th Cir. 1990) (noting 

that discovery matters “are committed to the sound discretion of the district court” and 

finding no abuse of discretion in staying discovery).

“In deciding whether to stay discovery pending resolution of a motion to dismiss, 

the court must balance the harm produced by a delay in discovery against the possibility 

that the motion will be granted and entirely eliminate the need for such discovery.” Lewis 

v. Mercedes-Benz USA, LLC, No. 19-cv-81220, 2020 WL 4923640, at *2 (S.D. Fla. 

March 25, 2020) (Ruiz, J.) (internal quotation and citation omitted). The Eleventh Circuit 

has recognized that staying discovery generally is prudent when there is a pending 

“motion to dismiss based on failure to state a claim for relief” that presents a purely legal 

question that requires no discovery before the court may rule on it. Chudasama v. Mazda 

Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997). “Accordingly, courts in the Eleventh 

Circuit agree that a stay of discovery is appropriate if a pending motion to dismiss “‘will 

dispose of the entire case.’” Jumlist v. Prime Ins. Co., No. 21- 01416-SCJ, 2021 WL 

6751892, at *1 (N.D. Ga. June 24, 2021) (citing cases); see also Nankvil v. Lockheed 

Martin Corp., 216 F.R.D. 689, 692 (M.D. Fla. 2003) (“courts have held good cause to 

stay discovery exists wherein resolution of a preliminary motion may dispose of the 

entire action”) (internal quotations and citations omitted).

A stay is particularly appropriate if a government entity has anchored its motion to 

dismiss on sovereign immunity grounds. “[S]overeign immunity presents a special 

concern that a party raising the defense should not be subjected to the burdens of 

litigation before the defense has been decided.” Cook v. Taylor, No. 18-977, 2019 WL 

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1233853, at *1 (M.D. Ala. Mar. 15, 2019) (citing Bouchard Transp. Co. v. Fla. Dep’t of 

Env’t Prot., 91 F.3d 1445, 1448 (11th Cir. 1996)). The Eleventh Circuit has explicitly 

held that the district court must resolve a claim of immunity before subjecting a party 

asserting it to discovery or Rule 26 obligations. Id. (citing Howe v. City of Enterprise, 

861 F.3d 1300, 1302–03 (11th Cir. 2017)). Courts take a “preliminary peak at the merits 

of the dispositive motion to see if it appears to be clearly meritorious and truly case 

dispositive.” In re Mednax Servs., Inc., Customer Data Sec. Breach Litig., No. 21-MD02994, 2021 WL 10428229, at *1 (S.D. Fla. Oct. 9, 2021) (Ruiz, J.) (internal quotation 

and citation omitted).

As Magistrate Judge Goodman observed in the Administrative Order he issued on 

November 29, a preliminary peak at the United States’ motion to dismiss reveals that it 

has merit. Dkt. No. 63 at 2. First, the United States seeks dismissal of Plaintiff’s wrongful 

disclosure count because the United States has not waived sovereign immunity for 

individuals who, like Littlejohn, are contractors that disclose return information in 

violation of § 6103. On those facts, the taxpayer must bring the suit directly against the 

individual who allegedly wrongfully disclosed the information. Compare 26 U.S.C. § 

7431(a)(1) (allowing suits against the United States for wrongful disclosures by officers 

or employees of the United States) with § 7431(a)(2) (allowing suits directly against any 

other person who wrongfully discloses return information). Second, the United States 

seeks to dismiss Plaintiff’s Privacy Act claim because he failed to allege any violation 

caused him to suffer economic damage. As the Supreme Court has made clear, a plaintiff 

must specifically plead actual damages because the United States retains sovereign 

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immunity for all non-economic harms, including “loss of reputation, shame, 

mortification, injury to the feelings and the like.” FAA v. Cooper, 566 U.S. 284, 295-96, 

304 (2012) (construing 5 U.S.C. § 552a(g)(4)). 

If the motion is granted even in part, it could significantly alter the scope of 

discovery. See In re Mednax Servs., 2021 WL 10428229, at *1 (granting stay because 

even a partial dismissal “would substantially impact the viability of claims against one or 

more Defendants and drastically alter the scope of discovery.” (citation omitted). Thus, 

good cause exists to stay discovery while the court considers a motion that challenges the 

United States’ immunity from Plaintiff’s wrongful disclosure claim and questions the 

facial adequacy of the independent claim he asserts under the Privacy Act.3

 

Dated: December 1, 2023 Respectfully Submitted

DAVID A. HUBBERT 

Deputy Assistant Attorney General 

Stephanie A. Sasarak 

STEPHANIE A. SASARAK 

Maryland Bar No. 1012160096 

MARY ELIZABETH SMITH 

Maryland Bar No. 0712110235

Trial Attorneys, Tax Division 

U.S. Department of Justice 

P.O. Box 14198 

Washington, D.C. 20044 

202-307-2089 (v) | 202-514-4963 (f)

Mary.E.Smith@usdoj.gov 

Stephanie.A.Sasarak@usdoj.gov 

Counsel for the United States 

3 We do not object to Plaintiff’s continued efforts to seek discovery from third-parties while the 

court considers our motion to dismiss. 

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Of counsel:

MARKENZY LAPOINTE

United States Attorney

Southern District of Florida

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CERTIFICATE OF SERVICE 

I hereby certify that on December 1, 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. 

Stephanie A. Sasarak

STEPHANIE A. SASARAK 

Trial Attorney 

 U.S. Dept. of Justice, Tax Division 

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