UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION

KENNETH C. GRIFFIN,

Plaintiff,

v.

INTERNAL REVENUE SERVICE and U.S. 

DEPARTMENT OF THE TREASURY,

Defendants.

Case No. 1:22-cv-24023-Scola/Goodman

PLAINTIFF’S MEMORANDUM OF LAW, PURSUANT TO THE COURT’S 

POST-DISCOVERY HEARING ADMINISTRATIVE ORDER (ECF 84),

REGARDING APPLICATION OF 26 U.S.C. § 6103

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TABLE OF CONTENTS

INTRODUCTION ................................................................................................................................1

ARGUMENT........................................................................................................................................3

I. SECTION 6103 DOES NOT APPLY TO THE INVESTIGATIVE FILES........................3

II. SECTION 6103(h) PERMITS DISCOVERY OF THE INVESTIGATIVE FILES ...........4

CONCLUSION.....................................................................................................................................7

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INTRODUCTION

Defendants Internal Revenue Service (“IRS”) and Department of the Treasury (together, 

the “Government”) have taken the position that they are prohibited from reviewing and producing 

any document in any investigative files concerning the unlawful disclosures at issue in this case. 

The Government asserts that those investigative files, in their entirety, are the “return information” 

of Charles Edward Littlejohn, the confessed criminal who leaked thousands of taxpayers’

confidential and protected information. Thus, according to the Government, pursuant to Section 

6103, neither the Public Integrity Section of the Department of Justice’s (“PIN”) nor the Treasury 

Inspector General for Tax Administration’s (“TIGTA”) investigative files (together, the 

“Investigative Files”) can be disclosed to the Government’s counsel at the Department of Justice, 

Tax Division (“DOJ Tax”) or to Plaintiff Kenneth C. Griffin, the aggrieved taxpayer in this action

and the type of party for whom Section 6103 was enacted to protect.1

The Government’s position is wrong: the Investigative Files are not “return information”

under the plain language of the statute. Further, even if the Investigative Files constitute “return 

information” (and they do not), the Government cannot continue to stonewall discovery in this 

case by conjuring up a special exemption to the normal rules of civil procedure by invoking Section 

6103; the Investigative Files may be disclosed because they fall squarely within the exceptions 

provided by Section 6103(h), which authorizes disclosure of purported “return information” to 

DOJ Tax and in judicial proceedings that have any connection with determining the liability of, or 

an offense under Title 26 by, the taxpayer whose “return information” is at issue (who, here, the 

Government claims is Mr. Littlejohn).

1

 See, e.g., ECF 70 at 3 (“TIGTA’s investigative file is Mr. Littlejohn’s return information, and 

Plaintiff can cite no authorization in § 6103 that permits its disclosure.”).

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Notably, the operative version of Section 6103 “was enacted to protect taxpayers from the 

IRS, not the IRS from taxpayers.”

2 Prior to the Tax Reform Act of 1976, Section 6103 provided

that a taxpayer’s return was a “public record . . . open to inspection . . . upon order of the President”

or rules prescribed by the Secretary and approved by the President.3 In the wake of the Watergate 

investigation that led to allegations that the President used taxpayer return information for 

unauthorized political purposes, however, Congress amended Section 6103 generally to prohibit 

the inspection and disclosure of taxpayers’ return information apart from certain statutory 

exceptions, such as Section 6103(h)(4)(A), which allows for disclosure of a taxpayer’s return 

information in a judicial proceeding that “arose out of, or in connection with, determining the 

taxpayer’s civil or criminal liability” under the Internal Revenue Code. 

Here, the civil remedy created for taxpayers in Section 7431 for violations of Section 6103,

coupled with the disclosure exceptions under Section 6103(h)(4), harmoniously serve this 

legislative purpose: a taxpayer victimized by the IRS is able to seek redress for the Government’s 

violations of Section 6103 by bringing a civil claim against the Government under Section 7431—

as Mr. Griffin has done in this case—at which point the normal rules of civil discovery apply, and 

government lawyers must access responsive information in order to discharge their obligations. 

Lest there be any doubt, the disclosure exceptions under Section 6103(h) ensure that evidence 

regarding the Government’s potential violations of Section 6103 will be available to hold the 

Government accountable for its misconduct. Here, the Government attempts to turn Section 6103

upside down and convert it into a vehicle for withholding evidence that would be directly 

responsive to a taxpayer’s claim under Section 7431; far from contravening Section 6103, the 

2

 See In re U.S. v. NorCal Tea Party Patriots, 817 F.3d 953, 965 (6th Cir. 2016). 

3

 26 U.S.C. 6103(a) (1970).

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information sought would vindicate Section 6103 and rectify the wrongful disclosure at issue by 

revealing how, when, where, and to what extent IRS personnel unlawfully disclosed Mr. Griffin’s 

confidential return information to ProPublica. By no stretch of the law or the imagination can the 

Government rightly block discovery into a claim under Section 7431(a)(1)—which Congress 

enacted to expressly enable taxpayers to sue the Government for violations of Section 6103—by 

invoking Section 6103 to keep the Government’s wrongful disclosures cloaked in darkness.

ARGUMENT

I. SECTION 6103 DOES NOT APPLY TO THE INVESTIGATIVE FILES 

To begin, the Investigative Files are not “return information” and thus are not protected by 

Section 6103. This is because “return information” is limited, in relevant part, to “data[] received 

by, recorded by, prepared by, furnished to, or collected by the Secretary [of the Treasury or their 

delegate] 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.” 26 U.S.C. § 6103(b)(2)(A); see 26 

U.S.C. § 7701(11)(b) (defining “Secretary” as “the Secretary of the Treasury or his delegate”). 

Materials that were collected, seized, and/or created in connection with the criminal investigation 

into Mr. Littlejohn—having nothing to do with Mr. Littlejohn’s status as a taxpayer or his taxes

and collected as part of an investigation led by PIN with the assistance of TIGTA—clearly fall 

outside any common-sense (much less reasonable) reading of 26 U.S.C. § 6103(b)(2)(A).

Indeed, as the Eleventh Circuit has explained, “information collected by the United States 

Attorney’s Office, even with the assistance of an IRS Special Agent, is not information belonging 

to the Secretary of the Treasury—it is within the custody of the Attorney General or the 

Department of Justice,” because Section 6103 “protects only information filed with and disclosed 

by the IRS, not all information relating to any tax matter.” Ryan v. United States, 74 F.3d 1161, 

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1163 (11th Cir. 1996) (affirming finding that DOJ investigative material that involved tax 

information was not “return information”); see Baskin v. United States, 135 F.3d 338, 342-43 (5th 

Cir. 1998) (material that IRS Special Agent obtained in course of investigation was not “return 

information”). Nor does having an IRS employee later receive the data convert it into “return 

information.” See Rice v. United States, 166 F.3d 1088, 1091 (10th Cir. 1999) (classification of 

“return information” “turns on the immediate source of the information”). Likewise here: so long 

as a civil claim is pending under Section 7431, the plaintiff is entitled to discovery into that claim. 

It suffices to note, therefore, that the materials sought are directly responsive to Mr. Griffin’s claim 

that his return information was disclosed in violation of Section 6103.

II. SECTION 6103(h) PERMITS DISCOVERY OF THE INVESTIGATIVE FILES 

Although the Investigative Files are neither “return information” nor exempt from normal 

discovery, Mr. Griffin addresses in this section how—if they were “return information” as the 

Government contends—the exceptions written into the statute itself would apply and render the 

Investigative Files subject to disclosure in this litigation. Specifically, Section 6103(h)(2)(A) 

permits disclosure to the DOJ personnel litigating a “matter involving tax administration” if “the 

proceeding arose out of, or in connection with, determining the taxpayer’s civil or criminal 

liability” under Title 26. Section 6103(h)(4)(A) similarly permits disclosure “in a Federal or State 

judicial or administrative proceeding pertaining to tax administration” if that nexus requirement is 

met. Accordingly, consistent with the Government’s theory, because this litigation—brought 

under an internal revenue law and based on violations of the internal revenue laws—is a 

quintessential “matter involving tax administration”

4

and because it “arose out of, or in connection 

4

 The term “tax administration,” used in both subsections, is defined “broadly to include almost 

any activity before the IRS,” Mallas v. United States, 993 F.2d 1111, 1122 (4th Cir. 1993), such 

as the “application of the internal revenue laws,” “includ[ing] . . . enforcement [and] litigation . . . 

under such laws,” 26 U.S.C. § 6103(b)(4)(B).

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with, determining [Mr. Littlejohn’s] civil or criminal liability,” 5 under Title 26, “return 

information” can plainly be disclosed in the proceeding.

Whistleblower 972-17W is instructive. There, the court found that Section 6103(h)(4)(A) 

permitted disclosure of tax offenders’ return information to a third-party whistleblower because 

the right to the award was “inextricably linked with determining the target taxpayer’s . . . liability,” 

which was “more than enough” to satisfy Section 6103(h)(4)(A)’s “quite broad” standard. 2022 

WL 2718766, at *10. The court remarked that “it [wa]s hard to see how one can resist the 

conclusion that [the] judicial proceeding arose in connection with (and [wa]s quite closely related 

to) determining the target taxpayers’ liabilities.” Id. Here, like in Whistleblower (and giving 

credence to the Government’s position), Mr. Griffin’s claims are “quite closely” related to PIN’s

and TIGTA’s inquiry into and determination of the purported “taxpayer’s” (Mr. Littlejohn’s)

criminal liability for violating the same statute, Section 6103—which the Government itself has

acknowledged in its filings. See, e.g., ECF 68 at 3.

Simply put, a litigant can obtain another taxpayer’s “return information” under 

Section 6103(h)(4)’s exceptions in a judicial proceeding, including at the discovery stage. For 

example, in Conf. Informant 92-95-932X v. United States, the court held that the IRS could not 

rely upon Section 6103 to evade discovery when a plaintiff who provided information that led to 

the collection of a third party’s unpaid taxes sued the IRS to recover reward money and propounded 

discovery requests for that third party’s return information. 45 Fed. Cl. 556, 558-59 (Fed. Cl. 

5

 Sections 6103(h)(2)(A) and (h)(4)(A) both employ identical “arose out of” and “in connection 

with” language, which are broad phrases that mean “any link, association, or relationship” with 

the determination of the taxpayer’s criminal liability under Title 26. Whistleblower 972-17W v. 

Comm’r of I.R.S., 2022 WL 2718766, at *8 (T.C. July 13, 2022). Section 6103(h) thus provides a 

relation “standard that is quite broad” and excludes only those “proceedings that have only a 

remote relation to the determination of a taxpayer’s liability.” Berkun v. Comm’r of IRS, 2023 WL 

6973206, at *4 (T.C. Oct. 23, 2023) (cleaned up).

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2000) (explaining that “the confidentiality of taxpayer information is not absolute,” particularly 

where—as here—“parts of the return will provide the information needed by the party requesting 

discovery”); see also D.O. Creasman Elecs., Inc. v. United States, 2011 WL 1791232, at *3 

(W.D.N.C. May 10, 2011) (granting motion to compel and recognizing that Section 6103(h)(4)(B) 

authorized discovery of employees’ returns in action regarding tax treatment of labor expenses); 

Plotkin v. United States, 465 F. App’x 828, 833 (11th Cir. 2012) (Section 6103(h)(4)(A) authorized

disclosure of a probationer’s return information to a probation officer who moved for probation 

revocation, in part because the proceeding arose out of the probationer’s criminal liability under 

tax laws). Accordingly, following the Government’s logic, because this proceeding “arose out of, 

or in connection with, determining” Mr. Littlejohn’s liability, the investigative files are 

discoverable here. 26 U.S.C. § 6103(h)(4)(A).

Chamberlain v. Kurtz is in accord. 589 F.2d 827 (5th Cir. 1979). Although Chamberlain

held that a taxpayer could not invoke the Section 6103(h)(4)(A) exception to obtain public 

disclosure under FOIA, it made clear that the exception permits the government to disclose return 

information in response to civil discovery. Id. at 838. The Fifth Circuit explained that the 

exception exists to “describe[] the circumstances in which [federal] officials may disclose

confidential information in a judicial or administrative proceeding.” Id. (emphasis added). For

example, the exception permits federal officials to “use the information as evidence in such 

proceedings.” Id. The exception thus permits the DOJ attorneys litigating this case to obtain Mr. 

Littlejohn’s return information and disclose it to Mr. Griffin in response to his discovery requests. 

Otherwise, the Government could withhold tax return information from Mr. Griffin during 

discovery but then use it as evidence at trial. That could not possibly be what Congress intended.

Confirming that disclosure is authorized here, the legislative history of Section 6103 makes 

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clear that Congress did not intend to deny an aggrieved taxpayer suing the government the

evidence necessary to identify and rectify violations of Section 6103. Section 6103 was amended

in 1976 in response to concerns that the IRS had become a “lending library” that shared taxpayer 

information with other government actors, sometimes for political or improper aims. See Stokwitz 

v. United States, 831 F.2d 893, 894 (9th Cir. 1987). Section 6103 in its current form was intended 

to enhance protections of a taxpayer’s privacy, thus promoting compliance with tax laws, while at 

the same time permitting disclosure to authorities and parties who have legitimate need for the 

information. See Whistleblower, 2022 WL 2718766, at *12. Section 6103(h)’s exceptions serve 

the interests of tax enforcement and compliance by ensuring that information regarding violations 

of the tax laws can be made available to taxpayers; it is not plausible or even coherent to posit that 

Congress simultaneously intended to enable the Government to conceal smoking-gun evidence of 

its violations of Section 6103 from taxpayers who sue under Section 7431 to complain that their 

rights have been violated under that very statute. Indeed, Section 6103 “does not entitle the IRS 

to keep secret (in the name of ‘taxpayer privacy,’ no less) every internal IRS document that reveals 

IRS mistreatment of a taxpayer . . . in this case or future ones.” See NorCal, 817 F.3d at 965. 

CONCLUSION

The Court should (i) find that the Investigative Files are not “return information,” and (ii) 

direct the Government to produce all responsive information from within the investigative files. 

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Dated: January 8, 2024 Respectfully submitted,

 By: /s/ Jason D. Sternberg

 William A. Burck (pro hac vice)

 Derek L. Shaffer (pro hac vice)

 Alexander J. Merton (pro hac vice)

QUINN EMANUEL URQUHART & SULLIVAN LLP

1300 I Street, N.W., Suite 900

Washington, DC 20005

(202) 538-8334 

williamburck@quinnemanuel.com

derekshaffer@quinnemanuel.com

ajmerton@quinnemanuel.com

John F. Bash (pro hac vice)

QUINN EMANUEL URQUHART & SULLIVAN LLP

300 West 6th St, Suite 2010

Austin, TX 78701

(737) 667-6100

johnbash@quinnemanuel.com

Jason D. Sternberg (Florida Bar No. 72887)

QUINN EMANUEL URQUHART & SULLIVAN LLP

2601 South Bayshore Dr, Suite 1550

Miami, FL 33133

(305) 402-4880

jasonsternberg@quinnemanuel.com

Christopher D. Kercher (pro hac vice)

Peter H. Fountain (pro hac vice)

QUINN EMANUEL URQUHART & SULLIVAN LLP

51 Madison Avenue, 22nd Floor

New York, New York 10010

(212) 849-7000 

christopherkercher@quinnemanuel.com

peterfountain@quinnemanuel.com

Counsel to Plaintiff Kenneth C. Griffin

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 8th day of January, 2024, I caused a copy of the 

foregoing document to be filed with the Clerk of Court using the CM/ECF electronic filing system, 

which will send notification to all counsel of record.

 By: /s/ Jason D. Sternberg

Jason D. Sternberg

Fla. Bar No. 72887

jasonsternberg@quinnemanuel.com 

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