1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division DAVID CHARLES GRUSCH, Plaintiff, v. UNITED STATES DEPARTMENT OF DEFENSE, Defendant. No. 1:26 - cv - 607 (LMB/WEF) DEFENDANT’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REPLY IN FURTHER SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Department of Defense, through its undersigned counsel, respectfully submitted this combined memorandum in opposition to Plaintiff’s motion for summary judgment and reply in further support of its opposition. INTRODUCTION Fourth Circuit binding precedent is clear that an agency’s obligation under the Freedom of Information Act (“FOIA”) is to conduct a search for records that is reasonably calculated to lead to responsive records. The factual record in this case is undisputed given Plaintiff’s failure to abide by the Local Rules, and it is clear from that record that the search the Department of Defense (“DoD ” ) conducted met the FOIA’s requirements. Nothing more is required of it. Neither of Plaintiff’s two arguments can change this fact. First, Plaintiff contends that DoD failed to show how it even factored his request into account when building its search given that one of the record systems does not store information by personally identifiable information ( e.g. , name). However, the record shows that the DoD’s Case 1:26-cv-00607-LMB-WEF Document 37 Filed 10/30/26 Page 1 of 8 PageID# 176 2 search terms encompassed terms that included more than Plaintiff’s name and were designed to account for the particulars of his request. Second, Plaintiff contends that DoD’s release of responsive records reveals that it missed additional records that shou ld have been disclosed, and as such, DoD’s search i s legally inadequate. That argument has been squarely rejected by the Fourth Circuit in Rein v. United States Patent & Trademark Office , 553 F.3d 353 (4th Cir. 2009). An agency is neither “required to look beyond the four corners” of a request when developing search terms, nor required “to chase rabbit trails that may appear in documents uncovered during” the search. Id. at 365. Thus, neither of Plaintiff’s argument s disrupt the conclusion that DoD conducted a legally adequate search under the FOIA. For these reasons, those below, and those in Defendant’s Opening Brief, DoD respectfully requests that the Court grant its motion for summary judgment and deny Plaintiff’s motion for summary judgment. DEFENDANT’S MATERIALS FACTS ARE NOT IN DISPUTE All of Defendant’s proffered facts should be deemed admitted. Plaintiff failed to abide by Local Rule 56(B)’s requirements to provide a numerated list of facts that are undisputed for purposes of his motion. Dkt. 33 - 1 (“ Opp. ”) at 2 - 5 . Instead, he provides a narrative statement regarding his assertion of facts and the procedural history without regard to any of the facts that DoD provided in its statement of undisputed facts This “makes it difficult to determine exact ly which material facts are disputed.” Integrated Direct Mktg., LLC v. May , 129 F. Supp. 3d 336, 345 (E.D. Va. 2015) (Brinkema, J.). This Court and other jurists in this district routinely have held the movant’s facts cannot be adopted when he provides an “alternative, narrative statement of facts,” as this practice “serves to undermine Local Rule 56(B) by frustrating the ability to determine which material facts are in dispute.” Nifong v. SOC, LLC , 234 F. Supp. 3d 739, 744 (E.D. Va. 2017); Case 1:26-cv-00607-LMB-WEF Document 37 Filed 10/30/26 Page 2 of 8 PageID# 177 3 Chatman v. Hegseth , 2025 WL 2432722, at *2 (E.D. Va. Aug. 22, 2025) (Brinkema, J.); Rodriguez v. Fanning , 2016 WL 10586250, at *2 (E.D. Va. Nov. 22, 2016) Accordingl y, given this failure, all of DoD’s stated facts should admitted , and as such, no disputes of material fact preclude granting summary judgment to Defendant. RESPONSE TO PLAINTIFF’S “FACTS” In moving for summary judgment, Plaintiff was separately obligated to provide his statement of undisputed facts in a numerated list. As noted above, h e did not do this . Much of Plaintiff’s proposed facts is a recitation of his allegations — highlighting the background that led to his FOIA request, his FOIA, and the DoD’s processing of that FOIA request. Opp. at 2 - 4. Of course, his allegations are not evidence. See Chatman , 2025 WL 2432722, at *2. Apart from providing a narrative of his allegations, Plaintiff also provides a summary of the records that DoD released in connection with this request. Relevant here is the one record that DoD released in full (Dkt. 33 - 2 at 34 ) which is a letter from Mr. Mark D. Dupont to Congressman Tomithy Burchett that is dated November 1, 2023. Plaintiff suggests that the “contents of this letter reveal on its face an acknowledge ment that additional responsive materials likely exist.” Opp. at 5. Plaintiff is wrong. Nothing in this record identifies another written communication that was created. In fact, the letter expressly references “a brief telephone conversation.” Dkt. 33 - 2 at 34 (emphasis added) Accordingly, Plaintiff’s hedge that other records “ likely exist” is just speculation on his part. Opp. at 5 (emphasis added). That speculation is not evidence. See Hodgin v. UTC Fire & Sec. Americas Corp., Inc. , 885 F.3d 243, 252 (4th Cir. 2018). ARGUMENT A. The Undisputed Factual Record Confirms that DoD Discharged its FOIA Obligations By Conducting a Reasonably Calculated Search for Respon sive Record s The undisputed record reveals that DoD undertook a search that met the parameters of Case 1:26-cv-00607-LMB-WEF Document 37 Filed 10/30/26 Page 3 of 8 PageID# 178 4 Plaintiff’s FOIA request. Though it was tasked to search a component that does ordinarily handle “unauthorized disclosure” complaints, DoD nevertheless searched its shared folder and two custodians for responsive records based on the search it dev eloped by reference to Plaintiff’s FOIA request DEX 1, ¶¶ 10 - 12. That search returned 22 records (totaling 6,632 pages). The FOIA does not require anything further. It does not require “a perfect search,” but only a “reasonable one.” Rein v. U.S. Pat. & Trademark Off. , 553 F.3cd 353, 362 (4th Cir. 2009). That in turn, only requires a search “reasonably calculated to discovery responsive documents,” id. , and the agency “is entitled to limit its search based on an appropriate internal analysis of locations where responsive documents are most likely to be located.” Boundy v. U.S. Pat. & Trademark Off. , 2023 WL 2567350, at *5 (E.D. Va. Mar. 17, 2026). B. Plaintiff’s Objections to DoD’s Search Lack Merit Distilled to its essence, Plaintiff’s argument is twofold: (1) DoD’s search is inadequate because it failed to reference the specific inquiry or any search targeting the event described in the request, Opp. at 8; and (2) the search is defective because the released records reveal the potential existence of a responsive record, Opp. 6 - 7, 9 - 10. Neither argument is availing. 1. First, contrary to Plaintiff’s argument, the DoD’s searches were tailored to his FOIA request s . Though Plaintiff faults the DoD for conducting a search of a system “if the system has no names to search for,” Opp. at 8, the answer is simple. DoD had other terms in its search that made no reference to Plaintiff’s name: “ unidentified aerial phenomenon”, “unidentified anomalous phenomenon”, “UAP ” , and “UFO ” DEX 1 ¶ 10. Indeed, as DoD ’ s supplemental declaration shows, DoD employe d a search that used the key terms disjunctively. DEX 3, ¶ 8. To be sure, this meant that the search required more work to determine if the records did in fact pertain to the unauthorized disclosure complaint at issue in Plaintiff FOIA request. This does not mean, as Plaintiff suggests, that a search could not be performed as DoD indicated. Second, that the file Case 1:26-cv-00607-LMB-WEF Document 37 Filed 10/30/26 Page 4 of 8 PageID# 179 5 system does not organize or tie personal identifiable information does not mean that a search for an individual’s name is fruitless. It may well be that a record merely references an individual’s name even if t he system does not “tie personal identifiable information to reports.” DEX 1 ¶ 10. In short, Plaintiff’s argument does nothing to rebut the fact that DoD conducted a search within the component he asked to search and the custodian he asked to search. With no help from Plaintiff, and based on its judgment, DoD executed a search on its network shared folders “as that is where the specific DoD component stored its record and is the common practice for requests that seek records with no designated folder and no known file location” and also included an additional custodian who would have oversight over the particular subject at issue in the request. Dkt. 31 (“Br.”) at 6 - 7. 2. Second, Plaintiff’s claim that DoD’s search is inadequate because it failed to conduct an additional search for records based on the contents of its released records misses the mark in several resp ects Opp. at 6 - 7, 9 - 10. In fact, there are two threshold reasons why the argument fails . As an initial matter, it is far from “clear,” Opp. at 7, the November 2023 letter (Dkt. 33 - 2 at 34) even references another record. The letter references details about a “a brief telephone conversation,” which is not a written communication. Dkt . 33 - 2 at 34. Given that November 2023 letter follows four months after this telephone call, it is plausible to conceive that individuals perform ing due diligence for the November 2023 letter did not need to rely on any written record . Instead, they could have relied on their working memories of events. Separately, another threshold obstacle that stands in Plaintiff’s way is the overbreadth of his initial FOIA request. Indeed, Plaintiff claims entitlement to th ese hypothetical records based on the language in his FOIA request seeking “any document containing information related to” the unauthorized disclosures complaint. Opp. at 7 (quo ting FOIA request). But Courts have recognized that agencies Case 1:26-cv-00607-LMB-WEF Document 37 Filed 10/30/26 Page 5 of 8 PageID# 180 6 are not obliged to respond to FOIA requests that use similar “expansive phrasing” such as “any and all” or “referencing or regarding in any way” that are unbounded and “that do not allow the agency to determine precisely what records are being requested” because to do so would otherwise require an “unduly burdensome” search.” Am. Ctr. for L. & Just. v. U.S. Dep ’ t of Homeland Sec. , 573 F. Supp. 3d 78, 85, 87 (D.D.C. 2021); Shapiro v. CIA , 170 F. Supp. 3d 147, 154 (D.D.C. 2016) (“FOIA requests seeking documents that ‘relate to’ certain subjects have faltered for the same reason.”); Freedom Watch v. CIA , 895 F. Supp. 2d 221, 223, 229 (D.D.C.2012) (a request for records “that refer or relate to the following [topics] in any way” was “vague” and “extraordinarily broad”). That is why the DoD’s imposition of limits on the search in the way that it did was reasonable in light face of Plaintiff’s request. Plaintiff cannot compel DoD to conduct the kind of burdensome and limitless search it would like under the FOIA. Apart from these threshold deficiencies, Plaintiff’s argument runs contrary to binding Fourth Circuit precedent. Indeed, what Plaintiff advances is what the Fourth Circuit rejected in Rein . There, like here, the Rein requester faulted the government’s search because “responsive document s refer to other documents that were not produced.” 553 F.3d at 363. In rejecting this argument, Rein noted tha t there was no basis to conclude “that the A gencies were compelled to expand the search terms they used to discover the materials [requester] claim[s] should have been found.” Id. at 363 - 64. The driving analysis, Rein re - iterated “is not whether the Agencies’ search uncovered every potentially responsive document , but whether the search was reasonably calculated to discover responsive documents.” Id at 364 (citation omitted). For that reason, Rein held that “[t]he Agencies’ failure to produce certain specific documents does not, of itself, yield the conclusion that the search was inadequate.” Id. And most importantly, the Fourth Circuit made plain: “The Agencies were not required to look beyond the four corners of [ a requestor’s] request Case 1:26-cv-00607-LMB-WEF Document 37 Filed 10/30/26 Page 6 of 8 PageID# 181 7 when formulating their search, nor w ere they required to chase rabbit tra i ls that may appear in documents uncovered during their search.” Id. at 365. Plaintiff’s argument cannot be reconciled with this binding precedent. Opp. at 9. The reason is understandable as he solely relies on D.C. Circuit precedent which is not binding on this Court and does not cite Rein See Opp. at 9. Under Fourth Circuit law, however, an agency’s search is not judged by the fruits of the search See Rein , 553 F.3d at 36 4 ; Empower Oversight Whistleblowers & R sch. v. Nat’l Inst s of Health , 122 F.4th 92, 102 (4th Cir. 2024) . Accordingly, there was no basis for DoD to continue pursuing a second search based on what it released to Plaintiff. See Cochran v. Dep’t of Homeland Sec. , 2019 WL 1129437, at *8 (D. Md. Mar. 11, 2019) (“ Mere reference to other files does not establish the existence of documents that are relevant to appellant’s FOIA request. If that were the case, an agency responding to FOIA requests might be forced to examine virtually every document in its files, following an interminable trail of cross - referenced documents like a chain letter winding its way through the mail. FOIA clearly does not impose this burden upon federal agencies.” (cleaned up) (quoting Morley v. CIA , 508 F.3d 1108 - 1121 (D.C. Cir. 2007))). Accordingly, given the above, it is clear that DoD crafted and executed a search that was reasonably calculated to lead to responsive record s . The FOIA did not require it to do anything further. * * * Plain from Plaintiff’s arguments is that he has discovered his own additional leads in the documents that he wishes to explore. The means to pursue those leads is not to force the agency to work within the confines of the Plaintiff’s original request . Instead, as the Fourth Circuit has instructed, the proper course is for the request or ( i.e. , Plaintiff) to “pursue those leads through a second FOIA request specifying” additional parameters for the search. Rein , 553 F.3d at 365 Case 1:26-cv-00607-LMB-WEF Document 37 Filed 10/30/26 Page 7 of 8 PageID# 182 8 (citing Kowalczyk v. Dep’t of Just. , 73 F.3d 386, 389 (D.C. Cir. 1996)). CONCLUSION For all the foregoing reasons and those raised in Defendant’s Opening Brief, the DoD discharged its FOIA obligations. Accordingly, DoD’s motion for summary judgment should be granted , Plaintiff’s motion for summary judgment should be denied , and judgment should be entered in DoD ’ s favor. Dated: October 30 , 2026 By : Respectfully submitted, TODD W. BLANCHE Attorney General THEOPHANI K. STAMOS First Assistant United States Attorney /s/ MATTHEW J. MEZGER Assistant United States Attorney Office of the United States Attorney Justin W. Williams U.S. Attorney’s Building 2100 Jamieson Ave. Alexandria, VA 22314 Tel: (703) 299 - 3741 Fax: (703) 299 - 3982 Email: matthew.mezger@usdoj.gov Counsel for Defendant Case 1:26-cv-00607-LMB-WEF Document 37 Filed 10/30/26 Page 8 of 8 PageID# 183 DEX 3 Case 1:26-cv-00607-LMB-WEF Document 37-1 Filed 10/30/26 Page 1 of 5 PageID# 184 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division DAVID CHARLES GRUSCH, Plaintiff, v. UNITED STATES DEPARTMENT OF DEFENSE, Defendant. No. 1:26-cv-607 (LMB/WEF) SUPPLEMENTAL DECLARATION OF VIRGINIA E. BURKE Pursuant to 28 U.S.C. § 1746, I, Virginia E. Burke, hereby declare under penalty of perjury that the following is true and correct to the best of my knowledge: 1. I am the Freedom of Information Act Division (“FD”) Chief, for the Oversight and Compliance Directorate (“O&C”) 1 2. O&C serves as the primary advisor to senior Department of War (“DoW”) leadership on protecting privacy and civil liberties, intelligence oversight, regulatory compliance, and overseeing the administration, organization, and management of DoW Freedom of Information Act (“FOIA”) program. O&C operates under the Office of the Director of Administration and Management (“ODA&M”). 3. As the FD Chief, I am responsible for overseeing the FOIA program for O&C. As such, I serve as a FOIA Initial Denial Authority for releasing O&C information. My office receives 1 O&C was formerly called the Privacy, Civil Liberties, and Transparency (“PCLT”) office, including during the initial timeframe relevant to this litigation, but for the purposes of this Declaration, I will refer to my office as “O&C”. Case 1:26-cv-00607-LMB-WEF Document 37-1 Filed 10/30/26 Page 2 of 5 PageID# 185 2 FOIA litigation taskings from the DoW Office of General Counsel (“OGC”). I oversee searches across ODA&M to ensure thoroughness, reasonableness, and consistency. My office then provides the relevant results of litigation searches to the DoW Office of General Counsel for their final assessment and release under the FOIA. I have held my position since April 5, 2026. 4. From January 28, 2024, to April 4, 2026, I was a senior Government Information Specialist, and then the delegated Acting Director, in the Freedom of Information Directorate, Office of the Assistant to the Secretary of Defense for Privacy, Civil Liberties, and Transparency (OATSD(PCLT)) in the Department of Defense that reorganized to become the Freedom of Information Act Division, Oversight and Compliance Directorate, Office of the Director for Administration and Management, DoW. 5. The statements in this declaration are based on my personal knowledge and on information made available to me in the course of my official duties. I have familiarized myself with the procedural history of this civil action (No. 1:26-cv-607) and reviewed Plaintiff’s FOIA request (the “25-FP-0002” request). 6. The purpose of this declaration is to add additional context to my declaration dated September 18, 2026 (DEX 1), to further explain how DoW conducted searches for the 25-FP-0002 request. FOIA Request 25-FP-0002 Searches 7. In my first declaration, I stated that information from the office of the Senior Intelligence Oversight Official (“DOD SIOO”) was searched by and within the Intelligence Oversight Division (“IOD”) using the key search terms provided in the original request (“David Charles Grusch”, “Grusch”, “unidentified aerial phenomenon”, “unidentified anomalous phenomenon”, “UAP", and “UFO”). DEX 1, ¶¶ 9-10. I also stated that the Oversight and Case 1:26-cv-00607-LMB-WEF Document 37-1 Filed 10/30/26 Page 3 of 5 PageID# 186 3 Compliance Directorate (“O&C”) used these same key search terms to search the email accounts of O&C’s then-Assistant to the Secretary of Defense for Privacy, Civil Liberties, and Transparency, Joo Chung, and the Senior Intelligence Oversight Official for the Department of Defense, Mark Dupont. DEX 1, ¶¶ 11-12. 8. The searches of these key terms across IOD’s network shared folders and the email accounts of Joo Chung and Mark Dupont were Boolean “OR” operator searches. That is, the DoD SIOO office files within IOD, and Joo Chung’s and Mark Dupont’s email accounts, were searched for information comprising any of the search terms: (“David Charles Grusch” OR “Grusch” OR “unidentified aerial phenomenon” OR “unidentified anomalous phenomenon” OR “UAP” OR “UFO”). 9. This Boolean search parameter would have captured all information responsive to the parameters of the two search requests in the 25-FP-0002 FOIA request listed at DEX 1, ¶ 7. 10. By searching the IOD’s network shared folders and Joo Chung’s and Mark Dupont’s email accounts, using the Boolean parameter (“David Charles Grusch” OR “Grusch” OR “unidentified aerial phenomenon” OR “unidentified anomalous phenomenon” OR “UAP” OR “UFO”) , we logically would have captured any information that also included references to an unauthorized disclosure(s). Thus, our searches would have located any records relevant to Request 1 or 2 of the 25-FP-0002 FOIA request. 11. Additionally, upon further review of the searches conducted by O&C on the email accounts of Joo Chung and Mark Dupont, I have determined that these email accounts were searched for the phrase “unauthorized disclosures”, in addition to the key search terms referenced above. Two records (42 pages) from the O&C search results hit only on the “unauthorized disclosure” phrase and not any of the key search terms. DoW OGC informs me that they Case 1:26-cv-00607-LMB-WEF Document 37-1 Filed 10/30/26 Page 4 of 5 PageID# 187 Case 1:26-cv-00607-LMB-WEF Document 37-1 Filed 10/30/26 Page 5 of 5 PageID# 188