UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 1:22-cv-24023-SCOLA/GOODMAN

KENNETH C. GRIFFIN,

Plaintiff,

v.

INTERNAL REVENUE SERVICE and U.S. 

DEPARTMENT OF THE TREASURY,

Defendants.

PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE [ECF 108]

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 1 of 21
i

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .........................................................................................................1

BACKGROUND ..................................................................................................................................4

LEGAL STANDARD ..........................................................................................................................5

ARGUMENT........................................................................................................................................6

I. This Court Has Subject Matter Jurisdiction Over Mr. Griffin’s Alternative 

Theories Of Relief....................................................................................................................6

A. Mr. Griffin has adequately alleged that IRS employees unlawfully 

disclosed Mr. Griffin’s return information to Mr. Littlejohn in violation of 

Section 6103(n)............................................................................................................6

B. Mr. Griffin has adequately alleged that IRS employees unlawfully 

disclosed Mr. Griffin’s return information by willfully failing to employ 

appropriate data-security measures. ...........................................................................9

II. This Court Has Subject Matter Jurisdiction To Adjudicate Mr. Griffin’s Section 

7431(a)(1) Unlawful Disclosure Claim, And Therefore Should Not Dismiss 

Alternative Theories Of Relief Under That Same Claim. ...................................................11

III. Discovery Has Already Begun To Confirm Mr. Griffin’s Alternative Theories Of 

Liability...................................................................................................................................12

A. Discovery has provided information previously solely in the possession of 

the Government supporting Mr. Griffin’s alternative theories. ..............................13

B. The Government continues to withhold discovery, which may yield 

information relevant to Mr. Griffin’s alternative theories. .....................................14

CONCLUSION...................................................................................................................................15

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 2 of 21
ii

TABLE OF AUTHORITIES

Page(s)

Cases

Adinolfe v. United Techs. Corp.,

768 F.3d 1161 (11th Cir. 2014)...................................................................................................12

Allstate Ins. Co. v. James,

779 F.2d 1536 (11th Cir. 1986)...................................................................................................11

BBL, Inc. v. City of Angola,

809 F.3d 317 (7th Cir. 2015) .......................................................................................................11

Bancroft Glob. Dev. v. United States,

330 F. Supp. 3d 82 (D.D.C. 2018) ................................................................................................7

Brownback v. King,

592 U.S. 209 (2021)...................................................................................................................2, 5

Campbell v. District of Columbia,

972 F. Supp. 2d 38 (D.D.C. 2013) ..............................................................................................12

Fostvedt v. U.S., I.R.S.,

824 F. Supp. 978 (D. Colo. 1993) .................................................................................................8

Kothmann v. Rosario,

558 F. App’x 907 (11th Cir. 2014)..............................................................................................12

Morrison v. Amway Corp.,

323 F.3d 920 (11th Cir. 2003).......................................................................................................8

Strong v. United States,

No. 98-1452, 1998 WL 990581 (W.D. La. Dec. 10, 1988).........................................................7

United States v. Orlando Reg’l Healthcare Sys., Inc.,

524 F.3d 1229 (11th Cir. 2008).................................................................................................5, 6

United States v. Zak,

481 F. Supp. 3d 1305 (N.D. Ga. 2020)...............................................................................7, 8, 11

Winstead v. Lafayette Cty. Bd. Of Cty. Comm’rs,

197 F. Supp. 3d 1334 (N.D. Fla. 2016)............................................................................ 2, 11, 12

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 3 of 21
iii

Statutes & Rules

5 U.S.C. § 552a .............................................................................................................................3, 5, 9

26 U.S.C. § 6103......................................................................................................................... passim

26 U.S.C. § 7431(a)(1)............................................................................................................... passim

Federal Rule of Civil Procedure 8 .....................................................................................................11

Federal Rule of Civil Procedure 12 ...............................................................................................5, 11

Other Authorities

26 C.F.R. § 301.6103(n)-1 ...............................................................................................................1, 4

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 4 of 21
1

Plaintiff Kenneth C. Griffin (“Mr. Griffin”), in accordance with this Court’s April 22, 2024 

order to show cause (“Order,” ECF 108 at 10-11), respectfully submits that this Court has subject 

matter jurisdiction to adjudicate Mr. Griffin’s alternative theories of relief pursuant to the United 

States’ waiver of sovereign immunity under 26 U.S.C. § 7431(a)(1), and thus this Court should 

refrain from dismissing these alternative theories of relief. 

PRELIMINARY STATEMENT

In his Second Amended Complaint (ECF 55, “SAC”), Mr. Griffin alleged a single count 

of unlawful disclosure by an “officer or employee of the United States” in violation of 26 U.S.C. 

§ 6103 (“Count One”), supported by three separate theories of liability. See SAC ¶¶ 41-60. In its 

order denying Defendants Internal Revenue Service (“IRS”) and the Department of the Treasury’s

(collectively with the IRS, the “Government”) motion to dismiss Mr. Griffin’s unlawful disclosure 

claim, this Court properly concluded that it has subject matter jurisdiction over Count One. At the 

same time, the Court raised questions regarding Mr. Griffin’s two alternative theories of relief 

under that same Count: first, that IRS employees violated the statutory requirements of Section 

6103(n)1 when they disclosed Mr. Griffin’s confidential tax return information to Charles Edward 

Littlejohn (“Mr. Littlejohn”), and second, that IRS employees violated Section 6103 by facilitating 

the disclosure of Mr. Griffin’s confidential tax return information to ProPublica through their

systematic and intentional failure to establish data security safeguards intended to protect against 

precisely this manner of unlawful disclosure. 

Under both alternative theories of relief, it is the conduct of an “officer or employee of the 

United States” other than Mr. Littlejohn that gives rise to Mr. Griffin’s unlawful disclosure claim 

1

 See also 26 C.F.R. § 301.6103(n)-1(b)(2), as cited in paragraph 46 and fn. 77 of the 

SAC. 

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 5 of 21
2

under Section 7431(a)(1). Accordingly, this Court has subject matter jurisdiction to adjudicate 

Mr. Griffin’s alternative theories of relief because, “[a]s the Government explains, the United 

States has waived its sovereign immunity for lawsuits brought by taxpayers aggrieved by the

wrongful disclosure of confidential information by an officer or employee of the United States”

through Section 7431(a)(1).2 To the extent the Government wishesto parse the underlying theories 

for Mr. Griffin’s Section 7431(a)(1) claim and have one or the other dismissed for lack of 

supporting evidence, any such determination by this Court should await development of the record 

and be taken up on summary judgment.

In addition to the Government’s own admissions that it waived sovereign immunity for 

unlawful disclosure claims against officers and employees of the United States under 

Section 7431(a)(1), there are three additional and independent bases on which the Court should 

refrain from dismissing Mr. Griffin’s alternative theories of relief for his Section 7431(a)(1) claim. 

As an initial mater, this Court already determined that Mr. Griffin’s pleading suffices to 

confer subject matter jurisdiction over the Section 7431(a)(1) claim, and thus the Court need not 

adjudicate alternative theories of liability for that same claim. Under the Federal Rules of Civil 

Procedure, while claims may be dismissed at the pleadings stage, theories that support alreadyviable claims should not be. See, e.g., Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs, 197 

F. Supp. 3d 1334, 1341 (N.D. Fla. 2016) (“[D]ismissal of theories (as opposed to claims) is 

inappropriate at the motion to dismiss stage.”). 

Moreover, “[d]ismissal for lack of subject-matter jurisdiction is proper only when the claim 

is so completely devoid of merit as not to involve a federal controversy.” Brownback v. King, 592 

U.S. 209, 217 (2021) (internal quotations omitted). As to the first alternative theory, the allegations 

2

 See ECF 108 at 5 (internal citation omitted). 

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 6 of 21
3

in the SAC detail how IRS employees unlawfully disclosed Mr. Griffin’s return information to

Mr. Littlejohn when they failed to comply with the requirements of Section 6103(n) by providing 

Mr. Littlejohn with greater access than necessary to “reasonably, properly, and economically 

perform[] his work,” SAC ¶ 56 & n.77, including access to “the confidential tax return information 

of thousands of the nation’s wealthiest people, covering more than 15 years,” id. ¶¶ 3-4, 38. These 

facts, as alleged and taken as true—and indeed, discovery thus far has shown that the allegations 

as written squarely align with undisputed events as they occurred—state a claim for relief. 

As to the second alternative theory, Mr. Griffin has plausibly alleged—again, in ways that 

align with undisputed facts and longstanding criticism of the IRS’s laxness—that the IRS willfully 

failed to employ appropriate data security measures, such as encryption mechanisms, that would 

have impeded Mr. Littlejohn’s ability to misappropriate Mr. Griffin’s return information, and thus 

unlawfully disclosed return information. Indeed, the Treasury Inspector General for Tax 

Administration (“TIGTA”) has repeatedly warned the IRS that “Security of Taxpayer Data and 

Protection of IRS Resources” was the agency’s “number one major management and performance 

challenge area.” SAC ¶ 26; see also id. ¶¶ 8-12, 27-33. Yet over more than a decade, the IRS 

willfully failed to remedy these critical security vulnerabilities. With respect to this theory, the 

Government itself has made clear it is sufficiently grounded in the statute by arguing that 

Mr. Griffin’s Privacy Act claim—arising from the same facts—was preempted and that 

Section 7431(a)(1) was the only available means for relief. See ECF 23 at 5-8. It cannot be the 

case that the same claim simultaneously falls within Section 7431(a)(1) for purposes of triggering 

preemption but outside the statute for purposes of being dismissed. 

Finally, it would be inequitable to dismiss Mr. Griffin’s theories of relief because the 

limited discovery provided by the Government to date has already done much to confirm them. 

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 7 of 21
4

For example, Mr. Littlejohn testified that he had unlimited access to taxpayer information despite 

needing only a subset of information to perform his job. Mr. Littlejohn’s access patently exceeded

the scope of permissible disclosure under 26 C.F.R. § 301.6103(n)-1 because it was not “necessary

to reasonably, properly, or economically perform the contract.” Importantly, the Government has 

refused and continues to refuse to cooperate in discovery, and has—18 months into this litigation—

produced only 4,165 documents while concealing and withholding key evidence. 

Accordingly, this Court should deny, in full, the Government’s motion to dismiss 

Count One—Mr. Griffin’s Section 7431(a)(1) unlawful disclosure claim—because this Court 

undoubtedly has subject matter jurisdiction to adjudicate this claim under each of the alternative 

theories of liability alleged by Mr. Griffin, and because the Court has already determined it has 

subject matter jurisdiction over that Count in its Order. 

BACKGROUND

In addition to the theory that Mr. Littlejohn was himself an “employee of the United States” 

within the meaning of Section 7431(a)(1)—which the Court already sustained—Mr. Griffin 

alleges two alternative theories of liability under Section 7431(a)(1). First, IRS employees 

unlawfully disclosed Mr. Griffin’s confidential tax return information to Mr. Littlejohn in violation 

of Section 7431(a)(1) by failing to observe statutory requirements for disclosing return information 

to IRS contractors under Section 6103(n). See SAC ¶¶ 45-46, 56 & n.77, 57. Second, IRS 

employees failed to comply with data-security requirements, leading to the unlawful disclosure of 

Mr. Griffin’s confidential return information to ProPublica. See id. ¶¶ 25-36, 51-52. 

The Government moved to dismiss Count One, Mr. Griffin’s unlawful disclosure claim,

on the sole basis that the Court lacked subject matter jurisdiction. See ECF 74. The Court has 

already rejected this argument and properly determined it has subject matter jurisdiction over 

Mr. Griffin’s unlawful disclosure claim. See ECF 108 at 5-7. Unlike the Government’s motion to 

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 8 of 21
5

dismiss Mr. Griffin’s Privacy Act claim, the Government did not move to dismiss Mr. Griffin’s 

unlawful disclosure claim under Federal Rule of Civil Procedure 12(b)(6). And, in its motion to 

dismiss Mr. Griffin’s unlawful disclosure claim for lack of subject matter jurisdiction under 

Federal Rule of Civil Procedure 12(b)(1), the Government failed to raise, let alone challenge, either 

of these alternative theories of relief.

LEGAL STANDARD

This Court has subject matter jurisdiction to adjudicate Mr. Griffin’s alternative theories 

of relief under his Section 7431(a)(1) unlawful disclosure claim because the factual allegations in 

the SAC, taken as true, sufficiently allege a basis for this Court’s subject matter jurisdiction—i.e., 

that conduct of the officers or employees of the United States was ultimately responsible for the 

unlawful disclosure of Mr. Griffin’s confidential return information both to Mr. Littlejohn and to 

ProPublica. See United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1233 (11th 

Cir. 2008) (per curiam) (internal citation and quotations omitted) (in determining whether a 

plaintiff has made out a facial pleading of subject matter jurisdiction, the Court “is required merely

to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the 

allegations in his complaint are taken as true”). Indeed, dismissal for lack of subject matter 

jurisdiction is proper “only when the claim is so completely devoid of merit as not to involve a 

federal controversy.” Brownback, 592 U.S. at 217 (alterations adopted) (internal quotations 

omitted). 

ARGUMENT

I. THIS COURT HAS SUBJECT MATTER JURISDICTION OVER MR. GRIFFIN’S ALTERNATIVE 

THEORIES OF RELIEF.

Mr. Griffin “sufficiently alleged a basis of subject matter jurisdiction” over his alternative 

theoriesfor relief under Count One. See Orlando Regional Healthcare Sys., Inc., 524 F.3d at 1232. 

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 9 of 21
6

Indeed, Section 7431(a)(1) provides an express waiver of sovereign immunity where “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.” 26 U.S.C. § 7431(a)(l). Section 6103, in turn, provides that “[r]eturns and return 

information shall be confidential, . . . except as authorized by this title.” 26 U.S.C. § 6103(a). For 

each of Mr. Griffin’s alternative theories of liability, the SAC adequately alleges that officers or 

employees of the United States unlawfully disclosed Mr. Griffin’s return information in violation 

of Section 6103. Accepting those allegations as true, the facts alleged in Mr. Griffin’s SAC state

a claim for relief under Section 7431(a)(1) under each theory. 

A. Mr. Griffin adequately alleged that IRS employees unlawfully disclosed Mr. 

Griffin’s return information to Mr. Littlejohn in violation of Section 6103(n).

The SAC adequately alleges that IRS employees unlawfully disclosed Mr. Griffin’s return 

information to Mr. Littlejohn in violation of Section 6103(n)such that this Court has subject matter 

jurisdiction to adjudicate Mr. Griffin’s claim pursuant to the Government’s waiver of sovereign 

immunity under Section 7431(a)(1). Specifically, the SAC alleges that IRS employees provided 

Mr. Littlejohn with access to “the confidential tax return information of thousands of the nation’s 

wealthiest people, covering more than 15 years.” SAC ¶¶ 3-4, 38. As alleged in the SAC, this 

expansive disclosure violated Section 6103(n) because “Mr. Littlejohn could have reasonably, 

properly, and economically performed his work for the IRS with only parts or portions of Mr. 

Griffin’s confidential return information” and “Mr. Littlejohn’s work for the IRS would not have 

been seriously impaired if Mr. Griffin’s taxpayer identity information were deleted from his 

returns prior to their disclosures to Mr. Littlejohn.” Id. ¶ 56 & n.77; see also id. ¶¶ 45-46, 52, 57.

Courts analyzing Section 7431(a)(1) claims have consistently determined that this level of 

detail is adequate to state a claim. For example, in Bancroft Glob. Dev. v. United States, plaintiffs 

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 10 of 21
7

alleged, “on information and belief” “that the IRS and FBI must have disclosed . . . confidential 

tax return information” to a particular individual, as evidenced by that individual’s knowledge of 

the return information. 330 F. Supp. 3d 82, 101-02 (D.D.C. 2018). Although the complaint failed 

to “specifically allege[] who made the disclosure, or when,” the court denied the Government’s 

motion to dismiss, finding that these allegations were sufficient to permit defendants to “formulate 

a defense and gather evidence to rebut this claim,” and noted that “the dates on which such 

disclosures took place [were] peculiarly within the Government’s control.” Id.; see also United 

States v. Zak, 481 F. Supp. 3d 1305, 1311 (N.D. Ga. 2020) (explaining that a plaintiff may allege 

an unlawful disclosure claim “on information and belief where the facts are peculiarly within the 

possession and control of the defendant, or where the belief is based on factual information that 

makes the inference of culpability plausible” (internal quotations omitted)). 

Like the plaintiff in Bancroft, Mr. Griffin has thus adequately alleged “to whom [the 

disclosures] were made, the nature of the disclosures, [and] the circumstances surrounding them.” 

See Zak, 481 F. Supp. 3d at 1311. Although Mr. Griffin did not name individual IRS employees 

responsible, he specifically alleged that the disclosures were made to Mr. Littlejohn, that the nature 

of the disclosures was providing unfettered access to tax return information for a specific subset 

of individuals (including Mr. Griffin’s tax return information), and that such sweeping and 

unabated access was not “necessary” and thus violated Section 6103(n). See Strong v. United 

States, No. 98-1452, 1998 WL 990581, at *2-3 (W.D. La. Dec. 10, 1988) (concluding that 

complaint alleging plaintiff’s return information was the subject of “gossip[]” among IRS 

employees provided “sufficient facts from which the Government c[ould] infer and [be] put on 

notice” despite failure to “specify who made the alleged improper disclosures to whom, what 

information was disclosed, and when disclosures were made”); see also Zak, 481 F. Supp. at 1311 

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 11 of 21
8

(explaining that allegations should “allow the Government to analyze the alleged disclosure and 

determine whether it fell into one of the exceptions provided for in the statute”).

The allegations in the SAC amply enable the Government to “formulate a defense and 

gather evidence to rebut” Mr. Griffin’s theory that the IRS disclosed information to Mr. Littlejohn 

beyond what was authorized by Section 6103(n). Indeed, the Government has already asserted its 

argument that these disclosures were permissible under 6103(n). See ECF 78 at 7 (arguing that 

Mr. Littlejohn was authorized to access Mr. Griffin’s return information for purposes of tax 

administration); see also Fostvedt v. United States, 824 F. Supp. 978, 986 (D. Colo. 1993) 

(dismissing unlawful disclosure claim where allegations left the government “unable to formulate 

a defense” or determine “what discovery it should produce” and rendered the Court “unable to 

establish whether the government ha[d] waived its immunity to suit”). The Government did not 

even challenge this theory until its reply, arguing that Mr. Griffin’s allegations fall outside the 

scope of § 7431(a)(1) because Mr. Littlejohn was properly authorized to access such IRS 

information under Section 6103(n). ECF 78 at 7. Yet, like the Government’s argument that 

Mr. Littlejohn was not an “employee of the United States,” this argument presents a “factual attack 

against jurisdiction,” see ECF 108 at 7, and therefore is properly reserved for the finder of fact. 

Morrison v. Amway Corp., 323 F.3d 920, 929-30 (11th Cir. 2003). 

B. Mr. Griffin has adequately alleged that IRS employees unlawfully disclosed 

Mr. Griffin’s return information by willfully failing to employ appropriate 

data-security measures. 

Separately, the SAC also adequately alleges that IRS employees disclosed Mr. Griffin’s 

return information in violation of Section 6103 through the IRS’s willful failure to employ 

adequate data-security measures. See SAC ¶¶ 25-36, 51-52. The SAC describes in detail

numerous TIGTA and GAO reports that “put the IRS on notice for a decade” that its data-security 

systems were deficient, see id. ¶¶ 8-12, 26-33, and alleges that the IRS’s willful “failure to establish 

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 12 of 21
9

appropriate administrative, technical, and physical safeguards over its systems of records” directly 

led to the disclosure of Mr. Griffin’s return information to ProPublica, id. ¶¶ 34, 52. As alleged in 

the SAC, “Mr. Littlejohn exploited these willful failures to repeatedly inspect and misappropriate 

Mr. Griffin’s confidential tax return information and unlawfully disclose that information to 

ProPublica.” Id. ¶ 34.

The Government itself has represented to the Court that Section 7431(a)(1) provides the 

“exclusive remedy for the wrongful disclosure of return information” and preempts the Privacy 

Act’s “more general prohibition on disclosure of ‘records.’” See ECF 23 at 5, 7. The Government 

cannot have it both ways. According to the Government, the IRS’s abject security failures cannot 

give rise to a Privacy Act claim because such claims “must be brought under [Section] 7431, not 

the Privacy Act,” id. at 8, even while, again according to the Government, Section 7431 provides 

no avenue for relief. By the Government’s own admission, however, “[t]he IRS knows and has 

known that without effective security controls, the IRS’s systems of records are vulnerable to, 

among other things, malicious efforts by IRS employees or contractors to illicitly obtain and 

misappropriate confidential taxpayer information.” SAC ¶ 25; see also ECF 121 ¶ 25 (admitting 

allegation). Despite this acknowledgement, the Government would leave Mr. Griffin and other 

similarly situated taxpayers without any statutory means of holding the IRS accountable for its 

egregious security failures—even if the IRS completely eliminated all security measures. This 

upside-down result cannot be what Congress intended when it provided an explicit waiver of 

sovereign immunity for unlawful disclosures by officers or employees of the United States. 

Consistent with the Government’s own account of what happened and the obvious intent of the 

statute, the SAC plausibly alleges that IRS employees violated Section 7431(a)(1) by unlawfully 

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 13 of 21
10

disclosing Mr. Griffin’s return information through the IRS’s willful failure to employ appropriate 

data-security measures. See SAC ¶¶ 25-36, 51-52. 

For example, the SAC specifically alleges that the IRS “failed to establish and implement 

cryptographic mechanisms to secure data in IRS systems that process taxpayer data” and “failed 

to enforce the use of encryption algorithms as required by the Federal Information Processing 

Standards,” id. ¶ 30. This “failure to use adequate encryption algorithms that convert data into a 

format that is unreadable for unauthorized users . . . allowed Mr. Littlejohn to store and transmit 

Mr. Griffin’s” confidential return information to ProPublica in a “readable format.” Id. ¶ 36. The 

SAC alleges that Mr. Littlejohn also took advantage of the “IRS’s failure to adequately establish 

the organizational understanding to manage cybersecurity risks, which allowed Mr. Littlejohn to 

repeatedly access, inspect, and misappropriate Mr. Griffin’s and thousands of other taxpayers’ 

confidential return information without detection by uploading the data to a private website.” Id. 

¶ 36. Additionally, the SAC alleges that IRS employees granted Mr. Littlejohn unfettered access 

to taxpayer information and failed to monitor or restrict that access in violation of the IRS’s own 

internal policies. Id. ¶ 32. 

As alleged, this collective failure by the IRS constitutes an unlawful disclosure under 

Section 6103 and falls within the United States’ limited waiver of sovereign immunity as 

enumerated in Section 7431(a)(1). “Disclosure” within the meaning of Section 6103 is not 

confined to a single method; rather, “Section 6103(b)(8) defines ‘disclosure’ broadly to include 

directly or indirectly ‘making known to any person in any manner whatever.’” Zak, 481 F. Supp. 

3d at 1308 (quoting 26 U.S.C. § 6103(b)(8)). Here, the collective security failures of the IRS—

carried out by officers and employees of the United States—effectively “ma[de] known . . . in any 

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 14 of 21
11

manner whatever” Mr. Griffin’s confidential return information. Such collective failure 

constitutes “disclosure” under Section 6103’s broad definition.

II. THIS COURT HAS SUBJECT MATTER JURISDICTION TO ADJUDICATE MR. GRIFFIN’S 

SECTION 7431(A)(1) UNLAWFUL DISCLOSURE CLAIM, AND THEREFORE SHOULD NOT 

DISMISS ALTERNATIVE THEORIES OF RELIEF UNDER THAT SAME CLAIM.

Even setting aside the well-pled allegations supporting Mr. Griffin’s alternative theories, 

this Court already rightfully determined that it has subject matter jurisdiction over Mr. Griffin’s 

Section 7431(a)(1) claim. See ECF 108. Therefore, this Court need go no further to examine its 

subject matter jurisdiction regarding alternative theories of relief under that same claim because 

“dismissal of theories (as opposed to claims) is inappropriate at the motion to dismiss stage.” See, 

e.g., Winstead, 197 F. Supp. 3d at 1341 (citation omitted); see also BBL, Inc. v. City of Angola, 

809 F.3d 317, 325 (7th Cir. 2015) (“A motion to dismiss under Rule 12(b)(6) doesn’t permit 

piecemeal dismissals of parts of claims; the question at this stage is simply whether the complaint 

includes factual allegations that state a plausible claim for relief.”). Indeed, Federal Rule of Civil 

Procedure 8(d)(2) provides that, “[i]f a party makes alternative statements, the pleading is 

sufficient if any one of them is sufficient.” Fed. R. Civ. P. 8(d)(2). Likewise, as the Eleventh 

Circuit has explained, “[l]itigants in federal court may pursue alternative theories of recovery, 

regardless of their consistency.” Allstate Ins. Co. v. James, 779 F.2d 1536, 1540 (11th Cir. 1986). 

Accordingly, because this Court has subject matter jurisdiction to adjudicate one of 

Mr. Griffin’s theories of liability against the Government under Section 7431(a)(1)—i.e., that Mr. 

Littlejohn, as an “employee of the United States,” violated Section 6103 by unlawfully inspecting 

and disclosing Mr. Griffin’s tax return information to ProPublica—this Court retains subject matter 

jurisdiction over Mr. Griffin’s alternative theories of liability under Section 7431(a)(1). See, e.g.,

Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1175 (11th Cir. 2014) (internal citation and 

quotations omitted) (“It is a well-settled rule of federal procedure that plaintiffs may assert 

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 15 of 21
12

alternative and contradictory theories of liability . . . . In this case, moreover, the theories of 

causation that the plaintiffs allege . . . are not necessarily mutually exclusive, . . . [and l]isting 

several possible causal factors does not amount to conclusory ‘catch all’ allegations.”).3 

Put simply, this Court “need not address [Mr. Griffin’s] alternative theories” of liability at 

the motion to dismiss stage, as such determinations are properly left for summary judgment when 

discovery is complete and it is “apparent to the parties which legal theories are viable, so a court 

should be allowed to narrow the available theories for trial.” See Winstead, 197 F. Supp. 3d at 

1341; see also Kothmann v. Rosario, 558 F. App’x 907, 912 n.5 (11th Cir. 2014) (per curiam) 

(affirming district court’s denial of motion to dismiss where just one of plaintiff’s theories stated 

a facially plausible claim). 

III. DISCOVERY HAS ALREADY BEGUN TO CONFIRM MR. GRIFFIN’S ALTERNATIVE 

THEORIES OF LIABILITY.

Finally, it would be inequitable to dismiss Mr. Griffin’s alternative theories of relief at the 

motion to dismiss stage because the limited discovery provided by the Government to date has 

already done much to confirm them. As set forth in Mr. Griffin’s pending motion to compel 

discovery, ECF 111, the Government has largely stonewalled and delayed discovery, withholding 

its “investigative files” concerning critical information regarding the unlawful disclosures of 

Mr. Griffin’s return information. Yet even the limited discovery provided by the Government has 

supported Mr. Griffin’s alternative theories of relief under Section 7431(a)(1). Accordingly, 

Mr. Griffin respectfully requests, in the event this Court is inclined to dismiss Mr. Griffin’s 

3

 See also, e.g., Campbell v. District of Columbia, 972 F. Supp. 2d 38, 46 n.5 (D.D.C. 

2013) (“[B]ecause Ms. Campbell’s claim survives the motion to dismiss stage on at least a ‘stigma 

or disability’ theory, the Court need not address at this stage whether the complaint alleges that 

Defendants made a defamatory statement to support a ‘reputation-plus’ theory as well. . . . [S]he 

may take discovery under both theories.”). 

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 16 of 21
13

alternative theories of liability, that the Court grant him leave to amend his Second Amended 

Complaint. If granted leave to amend, Mr. Griffin would incorporate the information detailed 

below, which further supports his alternative theories of liability.

A. Discovery has provided information previously solely in the possession of the 

Government supporting Mr. Griffin’s alternative theories.

First, during his deposition, Mr. Littlejohn testified that he “was able to access tax returns 

at will,” see ECF 119-1 at 92:22-93:3, thereby confirming that IRS employees unlawfully 

disclosed Mr. Griffin’s return information to Mr. Littlejohn by allowing him greater access than 

necessary to “reasonably, properly, or economically” carry out his duties, in violation of Section 

6103(n). As Mr. Littlejohn testified, his work “wasn’t about tax returns, typically,” and even if 

disclosure of certain tax return information had been necessary for his work, Mr. Littlejohn also 

testified that the IRS had the ability to tailor Mr. Littlejohn’s access by filtering necessary 

information through a separate database. ECF 119-1 at 96:18-98:14. 

Second, the IRS’s willful failure to implement adequate security measures facilitated the 

disclosure of Mr. Griffin’s return information, in violation of Section 6103. As alleged in the SAC, 

over a decade of GAO and TIGTA assessments of the IRS’s security protocols identified 

vulnerabilities in its systems. See SAC ¶¶ 25-36, 51-52. Mr. Littlejohn’s testimony confirms that 

these security deficiencies allowed Mr. Littlejohn’s disclosures: he testified that 

, ECF 118 at 128:11-

129:4, that the IRS system allowed Mr. Littlejohn to upload the return information to a private 

website he created, ECF 119-1 at 142:3-9, and to later share that 

, ECF 118 at 175:3-7. 

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 17 of 21
14

B. The Government continues to withhold discovery, which may yield 

information relevant to Mr. Griffin’s alternative theories.

As detailed in Mr. Griffin’s Motion to Compel Discovery, ECF 111, the Government has 

repeatedly failed to comply with its discovery obligations and actively hampered Mr. Griffin’s 

attempts to learn the details of events surrounding his stolen return information.4 The Government 

began investigating Mr. Littlejohn as early as November 2021. See ECF 119-1 at 237:12-15. Yet 

over a year later, the Government represented to this Court that it was “[w]ithout any clue as to 

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

information to ProPublica.” See ECF 23 at 16. Throughout discovery, the Government has 

continued to hide the ball, asserting in its initial discovery responses—served almost two years 

after the Government began investigating Mr. Littlejohn—that “if and to the extent that there is an 

ongoing investigation . . . the information sought is protected from disclosure by the law 

enforcement investigatory privilege.” See ECF 111-3, USA Responses to Plaintiff’s First Set of 

Interrogatories, at 6 (objection to Interrogatory No. 2) (emphasis added). 

Even today, the Government continues to stonewall by withholding materials containing

information critical to Mr. Griffin’s Section 7431 claim, including information supporting both of 

Mr. Griffin’s alternative theories of liability. Specifically, the Government has refused to produce

investigative files regarding its now-concluded investigation into Mr. Littlejohn’s criminal 

conduct. These investigative files include materials, such as memoranda and documents from Mr. 

Littlejohn’s proffers, showing whether IRS employees violated Section 7431 by providing Mr. 

4

 Mr. Griffin incorporates by reference his prior submissions to this Court regarding the 

Government’s intransigence, see ECF 71 (memorandum of law on law enforcement investigatory 

privilege); ECF 88 (memorandum of law on Section 6103); ECF 111 (motion to compel 

discovery), and the Court’s favorable rulings ordering the Government to fulfill its discovery 

obligations, see ECF 63 (ordering the Government to begin producing documents); ECF 84 

(setting a deadline for the Government to respond to all other outstanding discovery requests).

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 18 of 21
15

Littlejohn unnecessary access to tax returns and by failing to employ appropriate data-security 

measures, consistent with Mr. Griffin’s allegations. The Government also continues to withhold 

communications between Mr. Littlejohn and certain IRS employees, which are likely to have 

information relevant to each of Mr. Griffin’s theories of liability under Section 7431.

CONCLUSION

For the foregoing reasons, the Court should not dismiss Mr. Griffin’s alternative theories 

of liability supporting his Section 7431(a)(1) claim. Alternatively, Mr. Griffin respectfully 

requests that this Court grant him leave to amend his Second Amended Complaint to include the 

substance set forth above.

Dated: May 3, 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

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 19 of 21
16

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

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 20 of 21
17

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 3rd day of May, 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 

Case 1:22-cv-24023-RNS Document 133 Entered on FLSD Docket 05/03/2024 Page 21 of 21