ZORN v. DEPARTMENT OF JUSTICE et al

Filing 10

MEMORANDUM OPINION AND ORDER denying 2 Plaintiff's Motion for Preliminary Injunction and denying as moot 8 Defendants' Motion to Dismiss or in the Alternative for Summary Judgment. Defendants shall respond to 9 Plaintiff's Amended Complaint by February 2, 2025. See full Memorandum Opinion and Order for details. Signed by Judge Christopher R. Cooper on 1/6/25. (lccrc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MATTHEW C. ZORN,
Plaintiff,
v.

Case No. 24-cv-03360 (CRC)

U.S. DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Defendants.
MEMORANDUM OPINION AND ORDER
Marijuana legalization has long divided the public. Apparently, it also divides the current
Administration. In October 2022, President Biden directed federal agencies to reevaluate
marijuana’s regulatory status under the Controlled Substances Act. After further deliberations
within the executive branch, the Attorney General signed a notice of proposed rulemaking to
reschedule marijuana and thereby reduce some of the legal restrictions on its use. According to
press reporting, the Attorney General signed the notice over the objections of the Drug
Enforcement Administration (“DEA”). Before the proposed rulemaking was made public,
someone affiliated with a group opposed to rescheduling marijuana posted on social media that
the DEA Administrator had not signed off on it. When asked how he knew of this fact ahead of
the proposal’s release, the person quipped that he had “friends in low places.”
Attorney Matthew Zorn, who represents parties involved in the rulemaking, took those
posts to mean that DEA employees had improperly leaked word of the Administrator’s
recalcitrance. Zorn filed a request under the Freedom of Information Act (“FOIA”) seeking
DEA emails related to any potential leaks, and now seeks a preliminary injunction ordering the
agency to immediately process his request. The Court will deny Zorn’s motion because he has

not demonstrated irreparable harm, his request is overly burdensome, and the equities do not
support granting extraordinary relief.
I.

Background
A. Rescheduling Marijuana
Under the Controlled Substances Act, substances are classified under one of five

“schedules.” See 21 U.S.C. § 812. Drugs in Schedule I are subject to the strictest regulations
while those in Schedule V are subject to the least strict. See generally id. §§ 821–32, 841–65,
951–71. Marijuana is a Schedule I substance, a classification for drugs that do not have any
“currently accepted medical use in treatment in the United States.” Id. § 812(b)(1)(B), (c).
Lamenting “our failed approach to marijuana,” in 2022, President Biden directed the
Department of Justice and the Department of Health and Human Services to reevaluate the
drug’s classification. Statement from President Biden on Marijuana Reform, The White House
(Oct. 6, 2022), https://perma.cc/L9K7-C26D. About a year and a half later, the Department of
Justice formally proposed rescheduling marijuana from Schedule I to Schedule III. Schedules of
Controlled Substances: Rescheduling of Marijuana, 89 Fed. Reg. 44597, 44597 (May 21, 2024).
The Attorney General, rather than the DEA Administrator, signed the notice of proposed
rulemaking. See id. at 44622. According to press reporting, DEA has “long resisted”
rescheduling marijuana. Joshua Goodman & Jim Mustian, Top U.S. Drug Agency A Notable
Holdout in Biden’s Push to Loosen Federal Marijuana Restrictions, AP (May 20, 2024),
https://apnews.com/article/marijuana-pot-dea-legalization-bidencb7869d3286094f0124de728320d89c1.
Following the rulemaking notice, the DEA appointed an administrative law judge to
oversee a formal rulemaking process and named a 25-member panel of marijuana groups and

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experts to participate in the hearings. Mot. at 4. That panel includes Smart Approaches to
Marijuana (“SAM”), a group opposed to rescheduling. Id. at 3. Hearings are scheduled to begin
on January 21, 2025, and run through March 6, 2025. Mot. Reply, Ex. 7 at 6.
B. Zorn’s FOIA Request
About one week before DOJ published notice of the proposed rulemaking, Dr. Kevin
Sabet, who is affiliated with SAM, posted on social media that the DEA Administrator “did NOT
sign the rescheduling order, breaking with five decades of precedent and established law and
regulations[.]” Mot. at 3. As support, Dr. Sabet cited “two confidential sources inside DEA and
another outside DEA[.]” Id. When someone asked Dr. Sabet how he knew about the
Administrator’s refusal in advance, he posted that he had “friends in low places.” Id.
Rescheduling proponents took these posts to mean that someone at DEA had engaged in
improper ex parte contacts with Dr. Sabet. Two groups raised this issue with the presiding ALJ
and asked him to “remov[e] the DEA and its Administrator as the sponsor and proponent of the
proposed rescheduling action” and for other relief. Compl., Ex. 3 at 1–2. The ALJ denied that
motion, explaining that while he found the allegations “distasteful,” he lacked authority to grant
the relief sought. Id. at 2. The ALJ also viewed the record as insufficient to conclude that “the
agency’s decisonmaking process has been or would be irrevocably tainted so as to make the
ultimate judgment of the agency unfair[.]” Id. at 7 (cleaned up).
Zorn tried a different approach and filed a FOIA request with DEA seeking emails related
to the purported contacts. Specifically, he requested all DEA emails between October 1, 2022,
and October 29, 2024, with the following keywords:

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1. Marijuana; AND
2. Rescheduling or proceeding; AND
3. Sabet OR “smart approaches for marijuana” OR SAM OR Torridon OR Niforatos OR
kevin OR barr OR shea
Mot. at 4–5. (“Torridon,” “Niforatos,” “Barr,” and “Shea” refer to other individuals or entities
affiliated with SAM. Opp’n at 3–4.) After DEA did not respond, Zorn filed this lawsuit and
moved for a preliminary injunction. DEA then denied Zorn’s FOIA request and opposed the
preliminary injunction on the ground that Zorn’s initial request was unduly burdensome. Id. at
1–2. In response, Zorn proposed narrowing his FOIA request to emails “from those DEA
employees engaged in the ex parte contacts.” Mot. Reply at 2.
The government then moved for summary judgment and filed a declaration supporting its
undue-burden arguments. Because Zorn has filed an amended complaint, the Court will deny the
government’s motion as moot and permit the government to file another responsive pleading
within 30 days of the amended complaint. The Court will, however, construe the government’s
motion as a sur-reply for purposes of Zorn’s preliminary-injunction motion and consider the
arguments contained therein and the supporting declaration. See 11A Fed. Prac. & Proc. Civ.
§ 2949 (“Affidavits are appropriate on a preliminary-injunction motion and typically will be
offered by both parties.”).
II.

Legal Standard
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). A party seeking such relief must, “by a clear
showing, carr[y] the burden of persuasion” and demonstrate “(1) a substantial likelihood of
success on the merits, (2) that it would suffer irreparable injury if the injunction were not
granted, (3) that an injunction would not substantially injure other interested parties, and (4) that

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the public interest would be furthered by the injunction.” Chaplaincy of Full Gospel Churches v.
England, 454 F.3d 290, 297 (D.C. Cir. 2006); Winter, 555 U.S. at 20. The last two factors merge
when the government is a party. Nken v. Holder, 556 U.S. 418, 435 (2009).
Preliminary injunctions are especially unusual in FOIA cases. Such an order “effectively
allows the requestor to jump the queue in front of other requesters who have been waiting
patiently for the agency’s response to their requests, including requests that are subject to
expedited processing. Very few cases are that urgent.” Am. Oversight v. Dep’t of State, 414 F.
Supp. 3d 182, 184–85 (D.D.C. 2019). A preliminary injunction in a FOIA case also effectively
gives the requestor all the relief he seeks, but without the ordinary litigation process. That result
is contrary to the D.C. Circuit’s general instruction that “a preliminary injunction should not
work to give a party essentially the full relief he seeks on the merits.” Dorfmann v. Boozer, 414
F.2d 1168, 1173 n.13 (D.C. Cir. 1969) (per curiam).
III. Analysis
The Court will deny Zorn’s motion because he has not demonstrated that irreparable
harm is likely, that he has a likelihood of success on the merits, or that the equities require
granting extraordinary relief.
A. Irreparable Harm
The Court begins its analysis of Zorn’s motion with irreparable harm because “it is what
justifies the extraordinary remedy of granting relief before the parties have had the opportunity
fully to develop the evidence and fully to present their respective cases.” Jubilant DraxImage
Inc. v. U.S. Int’l Trade Comm’n, 490 F. Supp. 3d 169, 188 (D.D.C. 2020) (quotation marks
omitted). “A movant’s failure to show any irreparable harm is therefore grounds for refusing to

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issue a preliminary injunction, even if the other three factors entering the calculus merit such
relief.” Chaplaincy, 454 F.3d at 297.
To obtain a preliminary injunction, Zorn must “clear a high standard” and prove that he
faces a “certain and great” injury that necessitates immediate relief. Alpine Sec. Corp. v.
FINRA, 121 F.4th 1314, 1332 (D.C. Cir. 2024) (cleaned up). Here, Zorn claims he will be
irreparably injured if the requested documents are not immediately disclosed. The problem,
however, is that Zorn offers no reason to think that any documents showing ex parte contacts
would be uncovered by his FOIA request. While Dr. Sabet’s social media posts suggest that
someone from DEA disclosed information about the proposed rulemaking to an interested thirdparty, Zorn provides no evidence that any such disclosure occurred over a DEA email. For
instance, Dr. Sabet’s claimed contacts at the DEA could have met him face-to-face, spoken to
him over the phone, or texted him from a personal cellphone. None of those modes of
communication (which perhaps were more likely given the purported content) would be captured
by Zorn’s proposed search of DEA’s email server. If the requested documents do not actually
exist, then Zorn is not harmed by the agency’s failure to disclose them. Without further proof of
the records’ existence, Zorn has not met his burden of showing a certainly impending injury.
Even if the records exist, Zorn has not made a sufficiently compelling showing of
irreparable injury. Courts have found irreparable harm in FOIA cases where the documents are
“time-sensitive and highly probative, or even essential to the integrity, of an imminent event,
after which event the utility of the records would be lessened or lost.” Heritage Found. v. EPA,
No. 23-cv-748 (JEB), 2023 WL 2954418, at *4 (D.D.C. April 14, 2023). For example, courts
have found irreparable harm in FOIA cases seeking documents pertaining to then-President
Trump’s pending impeachment proceedings, and documents related to political interference with

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mail-in voting in the months before the 2020 presidential election. Id. (canvassing cases); see
Am. Oversight, 414 F. Supp. 3d at 185 (finding irreparable harm where documents “potentially
[went] to the heart of one of the issues that the Congress [was] considering” during thenPresident Trump’s first impeachment).
Zorn has not shown that the records he seeks are essential to the rulemaking’s integrity.
The ALJ is already aware of the alleged ex parte contacts. As he observed, the contacts were
publicly disclosed to “the world through social media” and flagged to him months before the
hearings began. Compl., Ex. 3 at 7. And, on this early record, the Court sees little relationship
between the alleged contacts and the ultimate merits of whether marijuana should be
rescheduled. See Pro. Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 563 (D.C. Cir. 1982)
(“If, however, the [ex parte] communication is truly not relevant to the merits of an
adjudication[,] . . . disclosure is unnecessary.”).
Furthermore, the records would not suddenly lose their utility once the rulemaking
concludes. The Court agrees that there is some interest in the records’ immediate disclosure
because the rulemaking is currently pending and concerns a somewhat high-profile issue. But a
party could use any records to challenge any rule promulgated by the DEA years after the rule’s
promulgation should the records reveal a connection between the merits and any improper
contacts. The same cannot be said of an impeachment or an election, neither of which can be
readily challenged like ordinary agency action can. And while the requested records may lose
some relevance if they are disclosed later, “[p]ublic critiques of how” an agency handles a matter
“have no expiration date[.]” Heritage Found., 2023 WL 2954418, at *5; see also Landmark
Legal Found. v. EPA, 910 F. Supp. 2d 270, 278 (D.D.C. 2012) (finding no irreparable harm
where the requester sought documents in connection with a pending rulemaking because the

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requester could “still submit public comments to the proposed rule” with or without the
requested documents).
B. Likelihood of Success on the Merits
Zorn also has not demonstrated a likelihood of success on the merits because his request
is overly burdensome. “An agency need not honor a [FOIA] request that requires an
unreasonably burdensome search.” Am. Fed. of Gov’t Emps. v. Dep’t of Comm., 907 F.2d 203,
209 (D.C. Cir. 1990) (quotation marks omitted). Here, Zorn’s original request asks for all the
emails in DEA’s possession over a two-year period that include frequently used words within the
agency (marijuana, rescheduling, proceeding) and very common names (Sam, Kevin).
According to a declaration filed by DEA in support of its summary judgment motion, a search
using those keywords yielded 456,551 emails. Davis Decl. ¶ 9. Assuming that each email is one
page long and that DEA can process 500 pages per month, DEA would need 76 years to process
all the emails. Id. ¶ 10. The Court has little difficulty concluding that such a burden is
unreasonable. See Ayuda, Inc. v. FTC, 70 F. Supp. 3d 247, 275–76 (D.D.C. 2014) (holding that a
search requiring more than 8,000 hours of work was unreasonable).
Zorn concedes that the government’s burden argument is “correct[]” and “[a]dmittedly
. . . a good one.” Mot. Reply at 2. He instead purports to narrow his request to emails with the
original keywords “but only from those DEA employees engaged in the ex parte contacts.” Id.
As a threshold matter, the Court agrees with Zorn and other courts in this district that a
plaintiff may, at least prior to summary judgment, unilaterally narrow his own FOIA request. As
Judge Bates put it, “FOIA requests are frequently clarified or modified even after a lawsuit is
filed. To deny that possibility might be to deny any prospect of compromise or settlement in
FOIA cases.” People for Am. Way v. DOJ, 451 F. Supp. 2d 6, 12 (D.D.C. 2006); accord

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Leopold v. USCIS, 560 F. Supp. 3d 189, 197–98 (D.D.C. 2021). Moreover, as the government
recognizes, Zorn could refile his revised FOIA request and, if necessary, sue again, returning “to
precisely the same position in which the parties now stand.” People for Am. Way, 451 F. Supp.
2d at 11. Under those circumstances, “[i]t would be senseless and inefficient” to woodenly hold
Zorn to an overbroad request and send him—and the government—back to square one. Id.
The cases cited by the government do not change the analysis. In National Security
Counselors v. CIA, 969 F.3d 406 (D.C. Cir. 2020), the plaintiff filed an overbroad FOIA request
with the CIA and “did not refine its request after the CIA invited it to do so.” Id. at 410
(quotation marks omitted). In light of the plaintiff’s decision, the D.C. Circuit held that the CIA
was not required to respond to the overbroad request, nor was it required to narrowly construe
the request into something reasonable. Id. Similarly, in Brody v. DOJ, No. 22-5043, 2023 WL
1511679 (D.C. Cir. Feb. 3, 2023), the plaintiff filed an overbroad request and, after it was
denied, argued that “the FBI should have used ‘common sense’ to limit the search[.]” Id. at *1.
The D.C. Circuit rejected that argument, explaining that “FOIA places the burden of submitted a
reasonably drafted request on the requester,” and that “[a]n agency has no duty to narrow a
request[.]” Id. Put another way, both National Security Counselors and Brody hold that the
Government need not narrow a request for the plaintiff. They do not forbid the plaintiff from
narrowing a request for the Government.
Still, Zorn is not likely to prevail on the merits of his revised request. He asks the agency
to limit its new search to the emails of those employees who “engaged in the ex parte contacts.”
Yet, he does not identify any specific custodians who may have leaked the information. And
DEA attests that it “is unaware (and could not feasibly become aware) of whether anyone
engaged in the ex parte contacts that Plaintiff references.” Davis Decl. ¶ 15. That attestation is

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“accorded a presumption of good faith[.]” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991).
To be sure, agencies generally are obligated to identify employees (or categories of
employees) who are likely to possess relevant documents when designing a FOIA search. Here,
however, Zorn’s “narrowed” request would require DEA to ferret out employees who engaged in
potentially improper communications with Dr. Sabet, by any means, before then limiting its
search to the email files of those employees. In other words, Zorn asks the agency to narrow its
FOIA search by conducting an internal leak investigation. Such an inquiry might fall within the
bailiwick of an Inspector General. But Zorn cites no authority, and the Court is aware of none,
that would obligate an agency’s FOIA office to follow his proposed approach.
Without requiring the agency to first unmask suspected leakers, Zorn’s “narrowed”
search would be just as burdensome as the original one. DEA would still have to review all
456,551 potentially responsive emails to see if they contain evidence of improper contacts. Of
course, Zorn may not know who engaged in ex parte contacts given that Dr. Sabet did not
publicly name his DEA sources. But that does not relieve him of his burden to draft a reasonably
tailored request. Because he did not do so, DEA likely is under no obligation to respond to either
of his requests, and Zorn has not demonstrated a likelihood of success on the merits.
C. Balance of Equities and Public Interest
Finally, the balance of equities and public interest do not require granting an injunction
here. Granting a preliminary injunction would jump Zorn’s burdensome request to the front of
the queue, delaying others’ requests. That line-cutting is partially offset by the public’s interest
in revealing potential government wrongdoing. But that interest alone is not enough to obtain a
preliminary injunction in a FOIA case. If it were, then preliminary injunctions would be

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commonplace in FOIA cases, as most FOIA requests could be framed as an attempt to expose
government misconduct. After all, that is “little more than the core purpose of FOIA,” which is
“to allow the public to be informed about what their government is up to[.]” Wadelton v. Dep’t
of State, 941 F. Supp. 2d 120, 124 (D.D.C. 2013) (cleaned up); see also DOJ v. Reps. Comm. for
Freedom of Press, 489 U.S. 749, 773 (1989). Without more, Zorn has not demonstrated that the
equities favor granting an injunction.
IV. Conclusion
Zorn has not demonstrated that he faces irreparable injury, that he has a likelihood of
success on the merits, or that the balance of equities and public interest favor granting an
injunction. It is hereby:
ORDERED that [2] Plaintiff’s Motion for a Preliminary Injunction is DENIED.
ORDERED that [8] Defendants’ Motion to Dismiss or in the Alternative for Summary
Judgment is DENIED AS MOOT. Defendants shall respond to [9] Plaintiff’s Amended
Complaint by February 2, 2025.
This is an appealable order.

CHRISTOPHER R. COOPER
United States District Judge
Date: January 6, 2025

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