UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MATTHEW GEBERT,

Plaintiff.

v. No. 22-cv-2939 (DLF)

DEPARTMENT OF STATE,

Defendant.

MEMORANDUM OPINION AND ORDER

Matthew Gebert sued the U.S. Department of State for revoking his security clearance. In

his two remaining claims, he challenges the constitutionality of three questions he was asked in

his 2019 security clearance interview as void for vagueness and overbroad. Before the Court is

the Department’s Motion to Dismiss, Dkt. 62; Gebert’s Motion for Preliminary Injunction and

Motion for a Temporary Restraining Order, Dkt. 64; Gebert’s Cross Motion for Summary

Judgment, Dkt. 69; and the Department’s Motion to Strike, Dkt. 74. For the reasons that follow,

the Court will GRANT the Department’s Motion to Dismiss for lack of subject matter jurisdiction

and DENY the remaining motions as moot.

I. BACKGROUND

The factual and legal background to this case is recounted in the Court’s previous

memorandum opinions on the Department’s Motion to Dismiss, Dkt. 38, and Gebert’s Motion to

Amend, Dkt. 48, which the Court incorporates by reference.

, at *1–2 (D.D.C.

Mar. 27, 2024);

, at *1 (D.D.C. Jan. 6, 2025). Gebert’s remaining claims in his

amended complaint challenge the constitutionality of three questions asked during the

reinvestigation process: (1) Whether he had any association with any person, group, or business venture that could be used, even unfairly, to criticize, impugn or attack his character or qualifications for a government position;

(2) Whether he was aware of any people or organizations that would criticize or oppose his employment in a government position;

(3) [I]f there was any information regarding members of his family that would be a possible source of embarrassment to the [ ] Department.

Sec. Am. Compl. ¶ 13, Dkt. 59. Gebert alleges those questions are overbroad and vague in

violation of his First Amendment rights. He is scheduled to appear before a Security Appeal Panel

on June 27, 2025, for a final determination regarding his security clearance. The Department now

moves to dismiss Gebert’s amended complaint.

II. LEGAL STANDARDS

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move to

dismiss an action for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Federal law

empowers federal district courts to hear only certain kinds of cases, and it is “presumed that a

cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins.,

(1994). When deciding a Rule 12(b)(1) motion, the court must “assume the truth of all material

factual allegations in the complaint and construe the complaint liberally, granting plaintiff the

benefit of all inferences that can be derived from the facts alleged, and upon such facts determine

[the] jurisdictional questions.” Am. Nat’l Ins. Co. v. FDIC,

(citations and

internal quotation marks omitted). But the court “may undertake an independent investigation”

that examines “facts developed in the record beyond the complaint” in order to “assure itself of its

own subject matter jurisdiction.” Settles v. U.S. Parole Comm’n,

(D.C. Cir.

2005) (internal quotation marks omitted). A court that lacks jurisdiction must dismiss the

action. Fed. R. Civ. P. 12(b)(1), 12(h)(3).

2 III. ANALYSIS

A. Subject Matter Jurisdiction

The Department raises two threshold challenges. 1 Principally, the Department argues that

Gebert’s claims “flow[] inexorably” from the revocation of his security clearance and therefore

are non-justiciable. Mot. to Dismiss at 10–12. And to the extent Gebert seeks relief that is not

inextricably tied to the merits of his security clearance determination, the Department contends he

lacks standing. The Court agrees.

Not all claims are “capable of resolution through the judicial process.” Rucho v. Common

Cause,

(2019) (quotation omitted). As discussed in the Court’s Order on

Gebert’s motion to amend,

, at *2, security clearance determinations relate to

issues of national security that “courts traditionally have been reluctant to intrude upon.” Dep’t of

Navy v. Egan,

(1988). Thus, any claim that requires “reviewing the merits” of

an agency’s “decision not to grant a clearance” is non-justiciable. Ryan v. Reno,

(D.C. Cir. 1999). This includes constitutional claims, like the ones Gebert brings. Lee v.

Garland,

, 888 (D.C. Cir. 2024).

But not all challenges to the security clearance process implicate the merits of a particular

security clearance determination. In National Federation of Federal Employees v. Greenburg, the

plaintiffs sought an injunction preventing an agency from asking three questions of civilian

employees during security clearance reinvestigations.

(D.C. Cir. 1993). The

Court reached the merits of that claim, reasoning that challenges to “the methods used to gather

information” were justiciable.

. This exception only applies, however, when the plaintiff

1 The Department also argues the Civil Service Reform Act divests this Court of jurisdiction, Mot. to Dismiss at 7–10, and that Gebert fails to state a vagueness or overbreadth claim on the merits, Mot. to Dismiss at 16–30. Because the Court will grant the Department’s motion to dismiss on alternative grounds, it will not reach these other issues.

3 “seek[s] relief against an agency decision discrete from the revocation decision.” Lee, 120 F.4th

at 894.

Most of the relief Gebert seeks is inseparable from the Department’s decision to revoke his

security clearance. Most significantly, he seeks backpay and reinstatement—the exact remedies

the D.C. Circuit rejected in Lee. 120 F.4th at 885. Because Gebert’s job requires an active security

clearance, his removal “flowed inexorably from the revocation decision” and that remedy remains

outside the Court’s jurisdiction. Id. at 894. Gebert also seeks an injunction preventing the Security

Appeal Panel from considering Gebert’s answers to the allegedly unconstitutional questions. Mot.

for Prelim. Inj. ¶ 106, Dkt. 64; Sec. Am. Compl. ¶ 103; June 23 Rough Tr. at 15–16. Because

those answers to the challenged questions were the sole basis for revoking Gebert’s security

clearance, see Ex A. at 2, Dkt. 64-2, granting such relief would necessarily reverse the

Department’s determination and, by extension, reinstate his security clearance. Although this

might not always be the case, at least as applied here, this relief is not “discrete from the revocation

decision.” Lee, 120 F.4th at 894.

But part of the relief Gebert seeks—an injunction preventing the Department from asking

him the challenged questions in any future clearance investigation, Reply at 10, Dkt. 73—falls

under the Greenburg exception and is justiciable. Even so, he lacks standing to seek such relief.

To establish standing, a plaintiff seeking an injunction must show a “sufficiently imminent and

substantial” risk of harm. TransUnion LLC v. Ramirez,

(2021). Gebert faces

no such risk. Apart from the appeals process itself, which the Court has already addressed, Gebert

does not allege any future risk that he will face these unconstitutional questions again. At most,

he suggests that if he prevails in obtaining a declaratory judgment, he “will most certainly be

subject to a new security clearance background investigation, and then subject to another every

4 five years.” Opp’n to Mot. to Dismiss at 11, Dkt. 69-1. But he offers no caselaw to support the

proposition that the possibility of a favorable judgment from a court is enough to confer standing.

And that possibility is too speculative to grant standing. See Fla. Audubon Soc’y v. Bentsen,

(D.C. Cir. 1996). Moreover, it is not plausible that the Security Appeal Panel will

ask him the same questions during the upcoming review hearing. Rough Tr. at 31–32. Indeed,

Gebert himself insists—though the Department disputes,

at 37—that the three questions were

“unique” questions not normally asked in interviews, id. at 26. And he further acknowledges that

any follow up questions by the appeal panel would only be “derivative” of the original questions.

Rough Tr. at 26, 42. He thus lacks standing to challenge future security clearance interview

process. Accordingly, it is

ORDERED that the Department’s Motion to Dismiss, Dkt. 62, is GRANTED. It is further

ORDERED that Gebert’s Motion for Preliminary Injunction and Motion for a Temporary

Restraining Order, Dkt. 64; Gebert’s Cross Motion for Summary Judgment, Dkt. 69; and the

Department’s Motion to Strike, Dkt. 74, are DENIED AS MOOT.

________________________ DABNEY L. FRIEDRICH June 26, 2025 United States District Judge

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