Zorn v. U.S. Department of Justice

• Court: District Court, District of Columbia
• Decided: January 6, 2025
• Docket: Civil Action No. 2024-3360
• Status: Published

Opinion

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-biden-

cb7869d3286094f0124de728320d89c1.

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

2 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:

3 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

4 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

5 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 third-

party, 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

6 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 then-

President 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

7 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

8 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

9 “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

10 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