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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Process Violated DOD Contractor’s Constitutional Rights appeared first on Marijuana
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