Lawsuit Claims Marijuana Questions In Federal Security Clearance Process Violated DOD Contractor’s Constitutional Rights

A U.S. Department of Defense (DOD) contractor is suing the federal government, alleging that questions about his past marijuana use during a security clearance process violated his Fifth Amendment right against self-incrimination.

The plaintiff in the case, Robert Filipiuk, is an aerospace engineer at Johns Hopkins University Applied Physics Laboratory. In early 2023, as part of a DOD background check, he disclosed on a questionnaire that he’d used marijuana edibles roughly four times between March 2022 and October 2022.

By mid-2023, the agency issued a preliminary decision denying him access to classified information, a decision that was later reviewed. At the review hearing, when asked about his prior marijuana use, he declined to answer the questions.

Afterward, the administrative judge in the case told Filipiuk’s lawyer that “the Government expects that applicants will provide full disclosure and truthful answers to their questions.” He gave Filipiuk “one more chance to answer that question” about past cannabis use.

The engineer declined, and the judge issued an unfavorable security clearance decision.

Filipiuk’s complaint says the government violated his Fifth Amendment right against testifying against oneself by “by forcing him to choose between self-incrimination or holding a security clearance, a condition of his employment.”

It asserts the government violated the Constitution by informing Filipiuk that any information he shared could be disclosed to law enforcement but also warning that failure to answer the questions would lead to a loss of employment.

At the same time, the suit says, the government failed to offer Filipiuk temporary immunity in order to more openly discuss past cannabis use, “forcing him to choose between the threat of criminal prosecution and his security clearance, and ultimately his employment.”

“The loss of the security clearance will end his career,” the complaint continues, “which will also mean that Plaintiff will lose his livelihood as his entire career has been working technical jobs that require a security clearance.”

Losing the clearance will also hurt his earning potential, eliminate his health insurance and pension and negatively impact his reputation, the filing says.

It notes that Filipiuk was subjected to drug screening at least six times between August 2023 and November 2023, each time testing negative for marijuana and other drugs.

“In using Plaintiff’s assertion of his Fifth Amendment rights as a basis to revoke Plaintiff clearance, a condition of his employment, the Department violated Plaintiff’s constitutional rights and privilege against self incrimination,” the suit alleges. “Thus, pursuant to the APA [Administrative Procedures Act, this Court may set aside these actions and the findings and conclusions that resulted therefrom.”

As far as the security clearance, the lawsuit seeks a court injunction that would compel the government “to cease violating Plaintiff’s constitutional rights through the security clearance process.” It further asks the court order DOD to “delete the questions Plaintiff declined to answer, Plaintiff’s declination to answer, and the accompanying reasoning from the records.”

The case, filed last week in U.S. District Court for the District of Columbia and first reported by Law360, is Filipiuk v. Department of Defense (25-01974).

Legal questions about federal workers testing positive for marijuana have ballooned in recent years, as more individual states have legalized the drug.

A recent policy paper from a pair of companies in the trucking industry, for example, said the sector was short about 80,000 drivers last year—an issue it asserted was exacerbated by workers testing positive for marijuana under the federal Department of Transportation’s (DOT) strict, zero-tolerance drug policy.

“A significant number of otherwise qualified drivers fail pre-employment or random drug tests due to marijuana use,” the report said. “These drivers are often unaware of the DOT’s strict zero-tolerance policy or mistakenly believe that legal marijuana use in their home state is acceptable under federal law.”

Congressional lawmakers at hearings earlier this year also heard from representatives of the trucking industry, who called for wider use of hair-follicle testing in the industry. The chair of the National Transportation Safety Board (NTSB), meanwhile, recommended better education for drivers.

The U.S. Supreme Court in April ruled in favor of a trucker who sued a cannabis company after he was fired over a positive THC test that he said was caused by consuming a hemp-derived CBD product.

Separately, a Substance Abuse and Mental Health Services Administration (SAMHSA) official earlier this year downplayed criticism from the CEO of a drug-testing company that more widespread use of saliva-based drug testing “means truckers who use cannabis will be able to do so with near impunity, as long as they avoid a drug test for a couple of days.”

“When a donor receives a request for collection, the donor will not know if the test will be an oral fluid or urine collection until they arrive at the collection facility for a federal agency,” the unidentified SAMHSA official said in response. Not knowing whether to expect a saliva or urine test, in other words, would prevent drivers simply stopping marijuana use a few days before a saliva-based test.

The transportation industry also advised Congress in January that if marijuana is federally rescheduled, businesses want assurances that they won’t have to forgo zero-tolerance drug policies for drivers—while stressing that a key problem for the sector is a lack of technology to detect impaired driving.

While saliva and blood tests can detect recent marijuana use better than urine or hair samples, there’s another wrinkle: As recently acknowledged by a U.S. Department of Justice (DOJ) researcher, it’s unclear whether a person’s THC levels are even a reliable indicator of impairment.

Separately, people on both sides of the political divide have at times this year framed drug testing as a way to expel undesirable employees from government.

Elon Musk, during his time chairing the Trump administration’s Department of Government Efficiency (DOGE), called it a “great idea” to mandate drug testing of federal employees.

Shortly after that, a Democratic congresswoman filed a bill that would have required Musk and other DOGE workers to submit to drug testing to maintain their “special government employee” status.

Read the full complaint in Filipiuk v. Department of Defense below:

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