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 SECOND AMENDED COMPLAINT 

 Plaintiff Kenneth C. Griffin filed a Second Amended Complaint following the 

identification and prosecution of Charles Edward Littlejohn as the individual who 

disclosed his return information in violation of § 6103 of the Internal Revenue Code (26 

U.S.C. § 6103). While the Second Amended Complaint no longer asserts a hypothetical 

claim for damages under 26 U.S.C. § 7431(a), it asserts the claim against the wrong 

defendant. Contrary to the allegations in the Second Amended Complaint, the filings in 

United States v. Littlejohn identify Littlejohn as a contractor authorized to receive return 

information under § 6103(n) when he downloaded and disclosed Mr. Griffin’s return 

information. See United States v. Littlejohn, Case No. 1:23-cr-343 (D.D.C.), ECF Nos. 8, 

9. Since Littlejohn was not an officer or employee of the IRS, Mr. Griffin’s claim for 

damages in Count I lies not against the United States (as pleaded) under § 7431(a)(1), but 

rather against Littlejohn under § 7431(a)(2). Although we understand that Mr. Griffin 

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wishes to hold the Government accountable for its contractor’s actions, § 7431(a)(1) does 

not afford him a cause of action against the United States for that violation.

Separately, the Court must dismiss Mr. Griffin’s Privacy Act claim (Count II).

Like his original complaint and his Amended Complaint, Mr. Griffin’s Second Amended 

Complaint alleges no actual damages proximately caused by the IRS’s purported failure 

to properly safeguard his confidential tax information. In lieu of a monetary award, Mr. 

Griffin asks the Court to “[o]rder the IRS to formulate, adopt, and implement a data 

security plan that satisfies the requirements of the Privacy Act[.]” 2d. Am. Compl. Dkt. 

No. 55, at 28. The Privacy Act does not authorize injunctive relief, however. So even if 

Mr. Griffin could demonstrate a Privacy Act violation, his Second Amended Complaint

fails to state a redressable claim.

STANDARD OF REVIEW

The United States moves to dismiss Count I of the Second Amended Complaint 

under Rule 12(b)(1) for lack of subject matter jurisdiction because the United States has 

not waived its sovereign immunity under § 7431(a)(1) for unlawful disclosures by 

government contractors. Where the defendant makes a factual challenge to subject matter 

jurisdiction under Rule 12(b)(1), courts may disregard the pleadings and consider 

extrinsic evidence to determine its authority to hear the case. Kennedy v. Floridian Hotel, 

Inc., 998 F.3d 1221, 1230 (11th Cir. 2021). The criminal filings in United States v. 

Charles Edward Littlejohn, No. 1:23-cr-00343 (D.D.C.) (“the criminal case”), which Mr. 

Griffin invited the court to judicially notice, establish that this Court lacks subject matter 

jurisdiction over Count I. For the Court’s convenience, the United States has attached 

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copies of the following relevant filings in the criminal case: Information (Dkt. No. 1), 

Plea Agreement (Dkt. No. 8), and Factual Basis for Plea Agreement (Dkt. No. 9). The 

criminal filings are central to Mr. Griffin’s Second Amended Complaint and are 

undisputed.

The United States moves to dismiss Count II of the Second Amended Complaint 

under Rule 12(b)(6) for failure to state a claim upon which relief may be granted because 

Mr. Griffin fails to allege that he sustained actual damages as required to maintain a 

cause of action under the Privacy Act. In deciding a motion to dismiss for failure to state 

a claim, a court must assume as true the well-pleaded factual allegations in the complaint 

and “then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft 

v. Iqbal, 556 U.S. 662, 679 (2009). 

UNDISPUTED FACTS

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

returns of several of the wealthiest U.S. taxpayers, including Mr. Griffin’s. On September 

29, 2023, the United States filed an Information in the United States District Court for the 

District of Columbia charging Charles Edward Littlejohn, a government contractor 

employed by a consulting firm that contracts with the IRS, with unlawfully disclosing 

return information in violation of 26 U.S.C. § 7213(a)(1). The Information and ensuing 

filings in that court state that 

• During the relevant time period, Littlejohn “served as a contractor to 

Company A, a consulting firm that services public and private clients,” 

and he “worked on contracts Company A had obtained with [the IRS].”

Ex. C ¶¶ 1-2; see also Ex. A ¶¶ 2-3. 

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• Littlejohn is “a person described in 26 U.S.C. § 6103(n)” who willfully 

and without authorization disclosed the return or return information of 

“thousands of other persons.” Ex. A ¶ 5; see also, Ex. B ¶ 2; Ex. C ¶¶ 2, 

10-13.

As a contractor to whom return information could be disclosed under § 6103(n), 

Littlejohn received regular training about protecting return information, and the potential 

criminal consequences of inspecting or disclosing without authorization return 

information. Ex. C ¶ 4. Despite being informed of the consequences, Littlejohn disclosed

Mr. Griffin’s return information to ProPublica. Ex. C. ¶¶ 10-13; 2d. Am. Compl. ¶ 4. 

Littlejohn then obstructed or tried to impede detection of his crime and abused his 

position of trust while employing highly specialized skills in furthering his criminal 

activity. Ex. C ¶¶ 14-15; see also 2d. Am. Compl. ¶¶ 36, 37 (detailing Littlejohn’s 

misconduct). None of the criminal filings mentions or intimates the involvement of any 

other individual in these events.

Considering the recent criminal case against Littlejohn upended the landscape of 

this case, the Court granted Mr. Griffin leave to amend his complaint with the caveat that 

he “may only add allegations related to the recently revealed criminal proceedings.” Dkt. 

No. 42 (Paperless Order). Mr. Griffin now alleges that Littlejohn was responsible for 

disclosing his tax returns. See, e.g., 2d Am. Compl. at 4 (“Littlejohn ... unlawfully 

disclosed [plaintiff’s] information to ProPublica[.]”); 2d Am. Compl. at 7 (“To date, 

ProPublica has published nearly 50 articles using the tax returns and confidential tax 

return information Littlejohn provided to ProPublica.”); 2d Am. Compl. at 13 (“Littlejohn

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... repeatedly inspect[ed] and then misappropriate[d] the confidential tax return 

information of thousands of the nation’s wealthiest taxpayers, including Mr. Griffin[.]”).

But despite his earlier invitation for the Court to take judicial notice of the 

criminal case, Mr. Griffin largely disregards the central tenet of the Information, 

Statement of Facts, and Plea Agreement: Littlejohn was a contractor who used his own 

devices to violate § 6103 and cover his tracks. Instead, to shoehorn his wrongful 

disclosure claim into one against the United States, he baldly alleges that unnamed IRS 

personnel may have assisted Littlejohn, see 2d Am. Compl. at 3, or that Littlejohn was an 

IRS employee based on Internal Revenue Manual provisions. 2nd Am. Compl. ¶¶ 22-23.

Those allegations do not—and cannot—change the fact that Littlejohn illegally disclosed 

Mr. Griffin’s return information as a contractor and prosecuted as such. Mr. Griffin 

pleads no facts to support a claim that Littlejohn was ever an employee of the United 

States.

As for his Privacy Act claim, Mr. Griffin points to technological defects identified 

in the Treasury Inspector General for Tax Administration (TIGTA) Annual Assessment 

of the Internal Revenue Service’s Information Technology Program for 2020 to show that 

the IRS failed to safeguard his return information. TIGTA is required by law to assess 

annually IRS information technology and provide a report to the IRS with its 

recommendations.1 The court need not decide whether these allegations plausibly allege 

1 TIGTA Annual Assessment of the Internal Revenue Service’s Information Technology Program for 

Fiscal Year 2020 (Reference No. 2021-20-001) (Oct. 30, 2020) p. 3 citing the IRS Restructuring and 

Reform Act of 1998.

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that the IRS violated the Privacy Act, however, because Mr. Griffin does not allege that 

the failure to safeguard his tax information caused any pecuniary or economic harm. The 

Second Amended Complaint contains only the bare allegation that Mr. Griffin “has and 

will continue to sustain damages directly traceable to the IRS’ violations” under the 

Privacy Act. 2d. Am. Compl. ¶ 68.

ARGUMENT

I. The United States has not waived sovereign immunity under § 7431(a)(1) for 

unlawful disclosures by government contractors.

The United States is immune from suit except where it has explicitly waived its 

immunity. United States v. Mitchell, 445 U.S. 535, 538 (1980). Waiver of sovereign 

immunity is strictly construed. Foster Logging, Inc. v. United States, 973 F.3d 1152, 

1157 (11th Cir. 2020). Any ambiguities in the statutory langue are to be construed in 

favor of immunity. FAA v. Cooper, 566 U.S. 284, 290 (2012) (citing United States v. 

Williams, 514, U.S. 527, 531 (1995)). “Where subject matter jurisdiction is challenged on 

the basis of sovereign immunity, the Plaintiff bears the burden of showing Congress’s 

unequivocal waiver of sovereign immunity.” City of Pembroke Pines, Florida v. Fed.

Emergency Mgmt. Agency, 494 F. Supp. 3d 1272, 1282 (S.D. Fla. 2020) (cleaned up). In 

a cause of action for the wrongful disclosure of a return or return information protected 

by § 6103 of the Internal Revenue Code, § 7431 provides the taxpayer with the exclusive

remedy to recover damages for the alleged unauthorized disclosure. See 26 U.S.C. § 

7431(a); Welborn v Internal Revenue Serv., 218 F. Supp. 3d 64, 81 (D.D.C. 2016). 

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Neither section 7431 nor section 6103 contains a waiver of sovereign immunity to Count 

I of the Second Amended Complaint and reading them together does not create one.

Section 6103 provides that return or return information shall be confidential unless 

authorized by statute. 26 U.S.C. § 6103(a). The statutory scheme and relevant regulations 

draw a sharp distinction between officers and employees of the United States and other 

persons such as contractors. Section 6103(a)(1) provides that “no officer or employee of 

the United States” shall disclose return information except as authorized by law. A 

different section addresses the same subject matter for other persons, including 

contractors. Section 6103(a)(3) provides that “no other person,” including a contractor 

who has access to return information under § 6103(n), shall disclose return information 

except as authorized by law. 

The authorizations of disclosure of return information maintain the same 

distinction. For example, there are several provisions in § 6103 that allow disclosure to 

officers or employees of the United States under prescribed circumstances.. See, e.g., 26 

U.S.C. § 6103(h)(1) (disclosure to Treasury employees for the purposes of tax

administration); § 6103(h)(2) (disclosure of return information to Department of Justice 

in matters involving tax administration); 6103(i) (disclosure to Federal officers or 

employees for administration of Federal laws no related to tax administration). Section 

6103(h)(1) provides the statutory authority that allows IRS employees to receive return or 

return information to perform their official tax administration duties. See also, Gardner v. 

United States, 213 F.3d 735, 738-39 (D.C. Cir. 2000) (disclosure of employee's returns 

and tax information within IRS was permissible under tax administration exception 

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contained in 6103(h)(1))). A different authorization, set forth in section 6103(n), permits 

disclosure of return information in certain circumstances “[p]ursuant to regulations” to 

“any person” including to a government contractor. See 26 U.S.C. § 6103(n).

Those regulations, like the statutory scheme, distinguish between officers and 

employees of the United States and other persons, such as contractors, to whom return 

information may be disclosed. See Treas. Reg. § 301.6103(n)-1. They expound on the 

statutory authority to disclose return information under section 6103(n) to permit certain 

officers and employees of the United States to disclose return information “to any 

person” in certain circumstances “to the extent necessary in connection with a written 

contract or agreement. . . .” Treas. Reg. § 301.6103(n)-1(a)(1). As such “person” receives 

return information in connection with a written contract, it is unsurprising that the 

regulations refer to such “person” in one place as a “contractor” id. § 301.6103(n)-

1(b)(2), and in many places as potentially having a “subcontractor” id. § 301.6103(n)-

1(a)(2)(ii), -1(a)(4), -1(c), -1(d), -1(e)(1), -1(e)(2), -1(e)(3), -1(e)(4).

Littlejohn was not an officer or employee of the United States authorized to 

inspect and receive return information under § 6103(h)(1). The filings in his criminal case 

uniformly state that he was a contractor authorized to receive return or return information 

under § 6103(n). See Ex. A (Information) ¶ 5 (“Charles Edward Littlejohn, a person 

described in 26 U.S.C. § 6103(n), did willfully disclose . . .”); Ex. C (Factual Basis) ¶¶ 1, 

3 (“Charles Edward Littlejohn (“Defendant”) severed as a contractor to company A . . 

.and was authorized, pursuant to 26 U.S.C. § 6103(n) . . .”); 2d. Am. Compl. ¶¶ 32, 56 n. 

76 and 77. Littlejohn, therefore, falls into the “other person” category described in § 

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6103(a)(3) (“no other person who has access to return information under . . . subsection 

(n) . . . shall disclose any return or return information”).

Consistent with § 6103(a) and its underlying regulations, § 7431(a) distinguishes 

between unauthorized disclosures by an “officer or employee of the United States” from 

wrongful disclosures by “any [other] person.” Section 7431(a) provides reads:

(1) If any officer or employee of the United States knowingly, or by reason of 

negligence, inspects or discloses any return or return information with respect 

to a taxpayer in violation of any provision of section 6103, such taxpayer may 

bring a civil action for damages against the United States in a district court of 

the United States.

(2) If any person who is not an officer or employee of the United States

knowingly, or by reason of negligence, inspects or discloses any return or return 

information with respect to a taxpayer in violation of any provision of section 

6103, such taxpayer may bring a civil action for damages against such 

person in a district court of the United States.

26 U.S.C. § 7431(a) (emphasis added). 

Section 7431(a)(1) waives sovereign immunity to bring suit for damages against 

the United States for wrongful disclosures by an “officer or employee of the United 

States.” But if return information is wrongfully disclosed by “any person who is not an 

officer or employee of the United States” the taxpayer must bring action against that

person under § 7431(a)(2). See also Treas. Reg. § 301.6103(n)-1(c) (Any person who 

receives returns or return information under § 6103(n) is subject to the civil and criminal 

penalty provisions of §§ 7431, 7213, and 7213A for the unauthorized inspection or 

disclosure of the returns or return information.). Plainly stated: if an officer or employee

of the United States wrongfully discloses return information, the taxpayer must sue the 

United States. 26 U.S.C. §§ 6103(a)(1) and 7431(a)(1). If any other person wrongfully 

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discloses return information, the taxpayer must sue that person. 26 U.S.C. §§ 6103(a)(3) 

and 7431(a)(2).

Mr. Griffin’s Second Amended Complaint must be dismissed against the United 

States because Littlejohn is not an “officer or employee of the United States.” Any claim 

for unlawful inspection or disclosure of return information can proceed only against 

Littlejohn under § 7431(a)(2). In the Second Amended Complaint, Mr. Griffin recognizes 

that Littlejohn is a contractor, yet he tries to manufacture a wrongful disclosure claim 

against the United States by cherry-picking text from the Internal Revenue Manual 

(“IRM”). Far from plausibly alleging Littlejohn is a government employee, the IRM 

provisions Mr. Griffin cites as support for Count I simply make clear that the obligation 

to protect taxpayer information applies to both “employees” and contractors. See IRM 

10.5.5 (Noting that the intended audience of this IRM provision includes “IRS employees 

and IRS contractors who have staff-like access including subcontractors, non-IRSprocured contractors, vendors, and outsourcing providers who have staff-like access.”). 

And Mr. Griffin omits any reference to another IRM provision describing background 

investigative requirements for contractors which states “Staff-like Access is granted to an 

individual who is not an IRS employee (and includes but is not limited to the contractor 

employees described above). See IRM 10.23.2.1 (emphasis added). In any event. the IRM 

does not have the force of law, see United States v. Rum, 995 F.3d 882, 893 (11th Cir. 

2021), and it cannot usurp § 7431(a)(1)’s unambiguous limited waiver of sovereign 

immunity enacted by Congress.

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The United States is unaware of any case that has held that the United States can 

be sued for wrongful disclosures of return information for acts of disclosure by 

individuals who are not officers or employees of the United States. Mr. Griffin’s remedy 

for the wrongful disclosure of his return information is bound by parameters Congress 

created in its limited waiver. Broadening § 7431(a)(1) to include government contractors 

as United States employees is contrary to the plain language contained in §§ 6103(a) and

7431(a) and would disrupt the harmonious framework of the two statutes. Such statutory 

interpretations must be rejected. Bankston v. Then, 615 F.3d 1364, 1367 (11th Cir. 2011) 

(“If the language at issue has a plain and unambiguous meaning with regard to the 

particular dispute in the case, and the statutory scheme is coherent and consistent, the 

inquiry is over.”) (cleaned up).

This does not mean that Congress left Mr. Griffin without a remedy. Mr. Griffin is 

simply limited to suing Littlejohn under § 7431(a)(2). See, e.g., Hrubec v. Nat’l R.R. 

Passenger Corp., 981 F.2d 962 (7th Cir. 1992) (United States is not a party to a case 

brought under § 7431(a)(2) for alleged wrongful disclosure of return information by a 

person who is not a United States employee); Joint Tech., Inc. v. Weaver, No. 11-846,

2013 WL 12091101 (W.D. Okla. 2013) (holding non-United States defendant liable for 

wrongful disclosure of return information under § 7431(a)(2)). But Mr. Griffin cannot 

proceed against the United States. See, e.g., Adelman v. Discovery Card Services, Inc., 

915 F. Supp. 1163, 1165 (D. Utah 1996) (granting United States’ motion to dismiss 

because disclosure was committed by a contractor working for a state agency, holding 

that “Section 7431(a)(1) is clear: it waives sovereign immunity for disclosures of returns 

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or return information only when an ‘officer or employee of the United States’ makes that 

disclosure.”); Payne v. United States, No. 97-2255, 1998 WL 773625, at *2-3 (S.D. Tex. 

Feb. 10, 1998) (Strictly construing § 7431(a)(1) in favor of immunity, this Court finds 

that the United States may not be held liable in a civil action for unlawful disclosure of 

tax return information by a former officer or employee.”). This may not be the remedy 

Mr. Griffin prefers. But it is the only remedy Congress provides.

II. Mr. Griffin’s Privacy Act claim fails to state a claim because he does not

allege actual damages.

To state a claim under the Privacy Act, a plaintiff must plead facts showing, 

among other things, that he has suffered “actual damages” because of a particular Privacy 

Act violation. 5 U.S.C. § 552a(g)(4). The term “actual damages” is “limited to proven 

pecuniary or economic harm.” Cooper, 566 U.S. at 299. Pecuniary or economic harm are 

a form of “special damages” that “must be specifically pleaded and proven.” Id. at 295. 

The United States retains sovereign immunity for all non-economic harms, including 

“loss of reputation, shame, mortification, injury to the feelings and the like.” Id. at 295-

96, 304 (construing § 552a(g)(4)).

As the Supreme Court and the Eleventh Circuit have recognized, the failure to 

establish monetary damages is fatal to Privacy Act claims. Id. at 295 (explaining that “the 

Privacy Act’s remedial provision authorizes plaintiffs to recover . . . but only if they 

prove at least some ‘actual damages’”) (quoting 5 U.S.C. 552a(g)(4)(A)); 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 

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or actual damages as a result of a Privacy Act violation.”); see also, Ramos v. U.S. Dep’t 

of Agric., No. 22-20312, 2022 WL 2208915, at *7 (S.D. Fla. June 21, 2022) (Bloom, J.)

(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).

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

the alleged failure by the IRS to safeguard his information under the Privacy Act. The

Second Amended Complaint simply states that Mr. Griffin “has and will continue to 

sustain damages directly traceable to the IRS’ violations” under the Privacy Act (2d. Am. 

Compl. ¶ 68) without identifying or describing the nature of such damages. On the face 

of the Second Amended 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. And the allegation fails to show that 

Mr. Griffin sustained financial loss because of any alleged Privacy Act violation—the 

only type of compensable harm under the Privacy Act. Cooper, 566 U.S. at 299.

Pleading actual damages is not a burdensome exercise. Nonetheless, Mr. Griffin’s

Privacy Act claim as pled in his Second Amended Complaint is devoid of any attempt to 

claim actual damages. If Mr. Griffin has truly sustained actual monetary loss resulting 

from the alleged Privacy Act violation, then pleading such facts should not be difficult. 

Mr. Griffin, after all, controls the information he needs regarding his own damages. See, 

e.g., Gen. Steel Domestic Sales, LLC v. Chumley, No. 10-cv-01398, 2011 WL 2415167, 

at *3 (D. Colo. June 10, 2011) (explaining that to plead special damages, a plaintiff 

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should be able to plead facts within his own control). Congress has conditioned as part of 

its waiver of sovereign immunity under the Privacy Act actual damages to be pleaded 

with specificity. Cooper, 566 U.S. at 301. Mr. Griffin must plead those facts accordingly.

Mr. Griffin’s Second Amended 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 was proper because plaintiff’s Privacy Act claim was “devoid of any 

allegations” of actual damages).

CONCLUSION

To be sure, the wrongful disclosure of Mr. Griffin’s return information by 

Littlejohn was egregious and the United States has taken it seriously by pursuing criminal 

penalties against Littlejohn. But Congress made two decisions that require the dismissal 

of Mr. Griffin’s suit. First, the United States can be sued for wrongful disclosures in 

violation of § 6103 only if such disclosures are committed by officers or employees of 

the United States. Littlejohn is not an officer or employee of the United States. Second, 

only violations of the Privacy Act that result in actual, monetary losses can sustain a 

lawsuit against the agency. Mr. Griffin has not pleaded actual damages. The Court must 

therefore dismiss this Second Amended Complaint.

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Dated: November 27, 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 

Of counsel: 

MARKENZY LAPOINTE 

United States Attorney 

Southern District of Florida

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CERTIFICATE OF SERVICE 

I hereby certify that on November 27, 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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