Gebert v. Department of State

• Court: District Court, District of Columbia
• Decided: January 6, 2025
• Docket: Civil Action No. 2022-2939
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MATTHEW GEBERT,

Plaintiff,

v. No. 22-cv-02939 (DLF)

DEPARTMENT OF STATE, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Matthew Gebert challenges the U.S. Department of State’s (the “Department”) revocation

of his security clearance. The Court previously dismissed his complaint for, among other reasons,

failure to state a claim. Mem. Op., Dkt. 47. Before the Court is Gebert’s Motion for Leave to File

an Amended Complaint, Dkt. 49. For the reasons that follow, the Court will deny the motion in

part and grant in part.

I. BACKGROUND

As outlined in the Court’s previous opinion, Mem. Op. at 1–4, Gebert is required to

maintain a Top Secret security clearance as part of his State Department job, First Am. Compl.

¶¶ 11–12, Dkt. 34. During a routine reinvestigation for his clearance, Gebert was asked “[w]hether

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) “[w]hether he was aware of any people or organizations that would criticize or oppose his

employment in a government position”; and (3) whether “there was any information regarding

members of his family that would be a possible source of embarrassment to the United States

Department of State.” Id. ¶ 14. Gebert answered no to all three questions. Id. ¶ 15. After the reinterview, Hatewatch, a blog connected to the Southern Poverty Law Center,

published an article linking Gebert to white nationalist groups. Id. ¶ 18. In response, the

Department suspended Gebert indefinitely without pay, revoked his security clearance, and

terminated his health benefits. Id. ¶¶ 38–40, 59, 169, 172–74. Gebert filed a Freedom of

Information Act (“FOIA”) request seeking Department records relating to him and the

Department’s action. Mem. Op. at 4.

Gebert filed suit seeking damages, a declaratory judgment, and injunctive relief against the

Department and its employees under the First Amendment, the Fifth Amendment, the

Administrative Procedure Act, FOIA, and the federal Privacy Act. First Am. Compl. ¶¶ 94–277.

The defendants moved to dismiss for insufficient service, lack of jurisdiction, and failure to state

a claim. Dkt. 38. The Court granted the defendants’ motion to dismiss, and Gebert filed this

motion for leave to file an amended complaint. 1

II. LEGAL STANDARDS

Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “[t]he court should freely

give leave [to amend a complaint] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Whether

‘to grant or deny leave to amend, however, is vested in the sound discretion of the trial court.’”

Branch v. Spencer, No. 16-cv-1713 (TJK), 2019 WL 4277413, at *4 (D.D.C. Sept. 10, 2019)

(quoting Doe v. McMillan, 566 F.2d 713, 720 (D.C. Cir. 1977)). Courts may deny leave to amend

on the basis of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure

to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by

1 Although Gebert failed to meet and confer with defendants prior to moving for leave to amend, see Local Civ. R. 7(m), the Court will consider Gebert’s motion on the merits, see Niedermeier v. Off. of Baucus, 153 F. Supp. 2d 23, 27 (D.D.C. 2001) (noting the “general judicial preference for resolving motions on their merits”).

2 virtue of allowance of amendment, [or] futility of amendment.” Barkley v. United States Marshals

Serv., 766 F.3d 25, 38 (D.C. Cir. 2014) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). An

amendment “is futile and should be denied” when it “would not survive a motion to dismiss.”

Palacios v. MedStar Health, Inc., 298 F. Supp. 3d 87, 90 (D.D.C. 2018). Reviewing for futility is

functionally “identical to review of a Rule 12(b)(6) dismissal based on the allegations in the

amended complaint.” In re Interbank Funding Corp. Secs. Litig., 629 F.3d 213, 215–216 (D.C.

Cir. 2010) (internal quotation marks omitted). Thus, when assessing a motion for leave to amend,

“the Court is required to assume the truth of the allegations in the amended complaint and construe

them in the light most favorable to the movant.” Flaherty v. Pritzker, 322 F.R.D. 44, 46 (D.D.C.

2017) (citing Caribbean Broad. Sys. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir.

1998)). The party opposing amendment “bears the burden of showing why an amendment should

not be allowed.” Abdullah v. Washington, 530 F. Supp. 2d 112, 115 (D.D.C. 2008).

III. ANALYSIS

Gebert’s proposed amended complaint contains fourteen counts, alleging violations of the

First Amendment, Fifth Amendment, the Administrative Procedure Act, FOIA, and the Privacy

Act, including four Privacy Act claims not previously raised. The Court will consider each in turn.

A. Constitutional Claims

Most of Gebert’s constitutional claims challenge the Department’s decision to revoke his

security clearance. See Counts I, II, III, IV, V, VI, IX, First Am. Compl. ¶¶ 94–143, 155–160.

These claims are non-justiciable as a recent D.C. Circuit opinion makes clear. Lee v. Garland,

No. 20-5221, -- F.4th --, 2024 WL 4596664, at *7 (D.C. Cir. Oct. 29, 2024). Counts VII and VIII,

however, are justiciable because they do not challenge the revocation of Gebert’s security

3 clearance, but rather the interview process itself. Because the underlying basis for those

constitutional claims are different, the Court will address them separately.

1. Justiciability

In the Court’s ruling on the defendants’ motion to dismiss, the Court dismissed Gebert’s

First Amendment and Fifth Amendment claims on the merits because he failed to allege

constitutional violations. Since then, however, the D.C. Circuit has addressed the issue of whether

constitutional challenges to security clearance revocations are ever reviewable on the merits. In

Lee v. Garland, the D.C. Circuit held that “an Executive Branch decision to deny or revoke a

security clearance” is not subject to judicial review due to the lack of judicially manageable

standards. Id. This holding directly forecloses many of the counts in Gebert’s proposed amended

complaint.

Counts I through VI and Count IX of the proposed amended complaint raise various First

Amendment, Equal Protection, and Due Process claims. Despite pleading new facts related to

comparators who allegedly were not afforded the same treatment, the asserted basis for each claim

remains the same: the revocation of Gebert’s security clearance. Counts I through V explicitly

state that the alleged harm stems from his security clearance revocation and resulting job loss.

Proposed Am. Compl. ¶¶ 132, 145, 149, 155, 160–161, Dkt. 49. Count VI alleges an Equal

Protection claim based on the “disciplinary and retaliatory action” against Gebert. Id. ¶ 176. But

the only plausible disciplinary action is directly tied to the Department’s discretionary decision to

revoke his security clearance. Count IX alleges a Due Process claim that is similarly based on the

revocation of Gebert’s security clearance. Id. ¶ 209 (requesting an order that the Department

“adjudicate Plaintiff’s clearance issue favorably”). In sum, Counts I through VI and IX ask the

Court to “second-guess the Executive Branch” on its clearance decisions which the Court cannot

4 do. Lee, 2024 WL 4596664, at *10. Accordingly, the Court will deny Gebert leave to file Counts

I through VI and IX of his amended complaint.

The Court will, however, grant Gebert leave to file Counts Counts VII and VIII because

both counts challenge the Department’s security clearance process rather than the revocation itself.

As the D.C. Circuit reiterated in Lee, not all issues related to security clearances are nonjusticiable.

Id. The Circuit has repeatedly affirmed that challenges to the process that only tangentially relate

to the ultimate grant or denial of a clearance are justiciable. See Nat’l Fed’n of Fed. Emps. v.

Greenberg, 983 F.2d 286, 290 (D.C. Cir. 1993). In Greenberg, for example, plaintiffs challenged

three questions in the Department of Defense’s security clearance questionnaire. Id. at 287. The

Court determined that the challenge was justiciable because even though the ultimate grant or

denial decision was nonreviewable, “the judiciary still may properly scrutinize the manner in

which the objective is to be achieved.” Id. at 290. Greenburg directly controls here. Counts VII

and VIII challenge three questions that the Department asked in its interview as “overbroad, vague,

and facially unconstitutional.” Proposed Am. Compl. ¶ 184. Like in Greenberg, Gebert is not

asking the Court to reach a judgment regarding the end result, but merely the means used. Thus,

Counts VII and VIII are justiciable.

2. Merits

Previously, the Court dismissed Gebert’s claims challenging the constitutionality of the

Department’s interview questions because their constitutionality was not relevant to the ultimate

determination that Gebert lied in answering those questions. Mem. Op. at 12–13. In other words,

the Court construed those claims as ultimately challenging the revocation decision itself. In his

amended complaint, however, Gebert makes clear that these counts challenge not the ultimate

determination, but the process. Proposed Am. Compl. ¶¶ 182, 189. Because the Department offers

5 no other basis for the Court to find that amendment would be futile, the Court will grant Gebert’s

motion to amend his complaint on Counts VII and VIII.

B. Administrative Procedure Act Claim

Gebert fails to state an APA claim for the same reasons the Court identified in its previous

order—he fails to plead any prospective injury allowing remedy under the APA. Gebert’s

proposed amended complaint identifies one APA claim stemming from the removal of his health

insurance coverage. Proposed Am. Compl. ¶¶ 210–228. The proposed amended complaint adds

details on the government’s admission of error and his financial harm. Id. ¶¶ 218–222. But as the

Court previously observed, money damages are not a remedy under the APA. 5 U.S.C. § 702.

Gebert’s amendments do not establish any prospective injury that the APA could remedy, so the

proposed amendment would be futile. The Court will deny leave to amend on this basis.

C. FOIA/Privacy Act Claims

Amendment of Gebert’s FOIA and Privacy Act claims, Counts XV and XVI, likewise

would be futile because Gebert failed to administratively exhaust before bringing his claims in

federal court. In the D.C. Circuit, “exhaustion of administrative remedies is a mandatory

prerequisite to a lawsuit under FOIA.” Wilbur v. CIA, 355 F.3d 675, 676 (D.C. Cir. 2004) (cleaned

up). This “means that a requester under FOIA must file an administrative appeal” under an

agency’s FOIA regulations or otherwise “face dismissal of any lawsuit complaining about the

agency’s response.” Id. (cleaned up). Similarly, a Privacy Act plaintiff must “exhaust his or her

administrative remedies prior to bringing an amendment suit.” Hill v. Air Force, 795 F.2d 1067,

1070 (D.C. Cir. 1986). And “failure to exhaust administrative remedies under the Privacy Act is

a jurisdictional deficiency because exhaustion is required by statute.” Barouch v. DOJ, 962 F.

6 Supp. 2d 30, 67 (D.D.C. 2013). Gebert concedes he did not appeal the decision following his

document requests. Because he failed to exhaust his administrative remedies, an amendment

would be futile.

Gebert’s argument that he constructively exhausted his claims is unavailing. For one,

constructive exhaustion is not allowed by the Privacy Act. Id. at 67–68. For another, Gebert has

not constructively exhausted his FOIA claim. Constructive exhaustion occurs when an agency

fails to provide any meaningful response at all, thereby preventing the plaintiff from appealing the

decision. Cf. Oglesby v. Dep’t of Army, 920 F.2d 57, 61 (D.C. Cir. 1990). A response is sufficient

if it details (1) “the agency’s determination of whether or not to comply with the request”; (2) “the

reasons for its decision”; and (3) “notice of the right of the requester to appeal.” Id. at 65. Gebert

claims the Department’s response to his FOIA request failed to meet these requirements.

The Department responded to Gebert’s request in two stages. In the first stage, the response

identified 509 responsive pages, but only specifically addressed 435 of those pages in its denial

letter, and only provided 414 of the 420 pages it stated it was releasing. Ex. H, Dkt. 48-3. In the

second stage, the Department identified and discussed 456 responsive pages and stated it was

releasing all 456 in whole or in part, but only provided 420 pages. Ex I, Dkt 48-5; Proposed Am.

Compl. ¶¶ 87–89, 93–95.

Gebert argues that the first letter was deficient for failing to discuss 74 of the redacted

pages, and that both letters are deficient for failing to release all the approved documents. Reply

at 11–12, Dkt. 52. The latter argument fails because a response “does not require actual production

of the records to the requester at the exact same time that the ‘determination’ is communicated to

the requester.” Citizens for Responsibility and Ethics in Washington v. FEC, 711 F.3d 180, 188

7 (D.C. Cir. 2013). Thus, the letters served as a determination under the meaning of the statute and

obligated Gebert to administratively appeal. 2

That leaves the remaining 74 pages that were not addressed in the first letter. Although the

Court acknowledges this oversight is perplexing, constructive exhaustion is not warranted here.

Constructive exhaustion is not appropriate if it would be “unfair ‘to those who are engaged in the

tasks of administration’” by preventing them the “fair opportunity to resolve” the issue prior to

litigation. Dettmann v. DOJ, 802 F.2d 1472, 1476 n.8 (D.C. Cir. 1986) (quoting United States v.

Tucker Truck Lines, 344 U.S. 33, 36–37 (1952)). Because it is not the Court’s responsibility to

unduly intrude in the administration of an agency’s actions, “[c]onstructive exhaustion in

the FOIA is a privilege granted only to individuals whose requests for records have essentially

been ignored by the agency.” Nat’l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 97 (D.D.C. 2013).

Gebert’s request was not ignored. Indeed, the Department provided a detailed explanation of the

number of responsive records, bases for withholding certain documents, and provided notice of

his right to appeal. See Oglesby, 920 F.2d at 65. The Department’s oversight of a few pages is

the type of error it should have the “fair opportunity to resolve” through the administrative process.

Dettmann, 802 F.2d at 1476 n.8. Constructive exhaustion is therefore inappropriate here. Because

an amendment would be futile due to Gebert’s failure to exhaust, the Court will deny leave to

amend on Counts XV and XVI.

2 Gebert does not allege that the Department failed to make the remaining documents “promptly available.” 5 U.S.C. § 552(a)(3)(A), (a)(6)(C)(i); see Citizens for Responsibility, 711 F.3d at 283 (“FOIA requires that the agency make the records ‘promptly available,’ which depending on the circumstances typically would mean within days or a few weeks of a ‘determination,’ not months or years.”).

8 D. Privacy Act Claims

Gebert raises four new Privacy Act claims under the Privacy Act’s catch-all provision for

violations unrelated to records requests. 3 5 U.S.C. § 552a(g)(1)(D). His proposed amendment

alleges the Department violated the non-access Privacy Act provisions when it (1) failed to provide

notice (Count XI); (2) collected information beyond what was notified, (Count XII); (3) unlawfully

collected First Amendment information (Count XIII); and (4) improperly shared information

(Count XIV). See id. § 552a(e)(3), (e)(7). To support these claims, Gebert must plead facts

allowing the plausible inference that the Department’s actions were “intentional or willful.” Id. §

552a(g)(4). Because Gebert has not provided any facts sufficient to support that inference,

amendment would be futile.

To state a claim, Gebert must plead facts supporting the plausible inference that the

Department’s actions were in “flagrant disregard” of the Privacy Act, taken “without grounds for

believing them to be lawful,” or “so patently egregious and unlawful that anyone undertaking the

conduct should have known it unlawful.” In re OPM Data Sec. Breach Litig., 928 F.3d 42, 63

(D.C. Cir. 2019) (internal quotation marks omitted). “[G]ross negligence” is insufficient. Id. at

62–63. Although the proposed amended complaint alleges facts related to the Department’s

violations of certain Privacy Act requirements, those alleged facts do not show that the

Department’s actions were taken in flagrant disregard of the Act. Indeed, Gebert seems to concede

that the Department was not targeting him for his views until after the Hatewatch article publicized

his views. Proposed Am. Compl. ¶¶ 16, 17, 51. Nor does Gebert allege that the questions were

so obviously unlawful that the Department should not have asked them. Thus, the entire basis for

3 As the defendant correctly notes, damages are the only available remedy for non-access-related Privacy Act claims. See 5 U.S.C. § 552a(g)(1)(D); (4)(A); Sussman v. Marshals Serv., 494 F.3d 1106, 1122 (D.C. Cir. 2007).

9 Gebert’s claims are his conclusory statements that the Department “acted in a manner which was

intentional and willful.” Id. ¶¶ 234, 242, 254, 261. His “fanciful at best” allegations cannot support

a claim that the Department acted intentionally or willfully in any of his non-access Privacy Act

claims. Doe v. DOJ, 660 F. Supp. 2d 31, 44 (D.D.C. 2009) (internal quotation marks omitted).

The Court will thus deny leave to amend on Counts XI through XIV.

For the foregoing reasons, it is

ORDERED that Gebert’s motion for leave to amend his complaint is GRANTED IN

PART and DENIED IN PART. The motion is granted with respect to Counts VII and VIII and

otherwise denied.

SO ORDERED.

________________________ DABNEY L. FRIEDRICH United States District Judge January 6, 2025