The federal government is being sued by a contractor for the U.S. Department of Defense. He claims that his Fifth Amendment rights against self-incrimination were violated when questions regarding his marijuana usage during security clearance processes.
Robert Filipiuk is an aerospace engineering student at Johns Hopkins University Applied Physics Laboratory. He disclosed, in 2023 as part of his DOD background investigation, that he used edible marijuana four times between the months of March and October.
Mid-2023 the agency made a preliminary ruling denying his access to classified material. This decision was reviewed later. He refused to give an answer at the review hearing when asked about previous marijuana use.
The Administrative Judge in this case informed Filipiuk’s Lawyer that, “the Government is expecting that all applicants provide truthful and complete answers to the questions they ask.” Filipiuk was given “another chance” to reply about previous cannabis use.
The judge made a decision that was not favorable to the engineer.
Filipiuk says that in his complaint, the government violated Filipiuk’s Fifth Amendment right to testify against himself by “forcing him to choose either self-incrimination of holding a clearance for security purposes as part of his job.”
The government is accused of violating the Constitution when it informed Filipiuk about the possibility that the information he provided could be shared with law enforcement. It also warned that failure to respond to the questions might result in the loss of his job.
The suit also claims that the government did not offer Filipiuk a temporary immunity to allow him to discuss his past marijuana use more freely, forcing him “to choose between criminal prosecution or his clearance and, ultimately, his job.”
In the lawsuit, it is stated that the loss of security clearance would end Plaintiff’s career. “This will mean that Plaintiff loses his livelihood because his entire career has consisted of working in technical positions that required a security clearing.”
According to the document, losing clearance also affects his potential earnings, will eliminate his health care and pension benefits and have a negative impact on his reputation.
There is evidence that Filipiuk has been tested for drugs at least six separate times between August and November of 2023.
The suit claims that the Department has violated Plaintiffs’ constitutional rights, including his privilege against self-incrimination, by using his Fifth Amendment right as the basis for revoking his clearance. Accordingly, 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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