May 23, 2018

Appeal of the Determination on Nonmailability

CHARLES GILLESPIE v. UNITED STATES POSTAL SERVICE

P.S. Docket No. MLB 17-271

APPEARANCE FOR APPELLANT:
Charles Gillespie, pro se

APPEARANCE FOR RESPONDENT:
Louis DiRienzo, Esq.
Acting Deputy Chief Counsel
U.S. Postal Inspection Service

INITIAL DECISION 

On November 28, 2017, Appellant Charles Gillespie timely appealed from a determination of nonmailability by the United States Postal Inspection Service (USPIS) of a package addressed to him mailed from Oxnard, California.  39 U.S.C. § 3001;
18 U.S.C. § 1716; 39 C.F.R. Part 953.  USPIS moved for summary judgment on December 5, 2017.  In a telephone conference on February 2, 2018, I requested that the parties supplement the record with additional material and offered Appellant an opportunity to reply to Respondent’s Motion for Summary Judgment.  Order and Memorandum of Telephone Conference, February 2, 2018.  USPIS submitted additional materials but Appellant chose not to do so.  The record was closed on February 16, 2018.

Findings of Fact¹

1. On or about November 8, 2017, USPIS Inspectors in the Los Angeles Division intercepted a United States Postal Service Priority Mail parcel coming from Oxnard, California and addressed to Charles Gillespie, 501 S. Kettle Street, Altoona, Pennsylvania 16602, bearing tracking number 9405511298370841045354.
2. Based upon the characteristics of the parcel, USPIS Inspectors suspected that the parcel contained controlled substances and was therefore nonmailable.
3. The parcel was detained, and on November 9, 2017, notices were sent out to the sender and addressee.
4. On November 13, 2017, Mr. Gillespie contacted USPIS and gave consent to open the mail in question.
5. On November 28, 2017, Mr. Gillespie filed an Appeal of Determination of Nonmailability (“Appeal”) with the Judicial Officer.
6. In his Appeal, Mr. Gillespie stated that the package in question contained one ounce of marijuana, which he purchased for $300.00 from “Cannamed” (Appeal at 1).
7. Mr. Gillespie further stated that he had a valid medical marijuana card issued by the state of California, and that “Cannamed” had been sending him his medication since April of 2017.  Appellant also attached medical documentation on his condition.  (Appeal).
8. On January 8, 2018, the package in question was opened by USPIS and found to contain four baggies of marijuana, weighing approximately .44 grams total.

Discussion

Congress enacted the Controlled Substances Act (CSA), 21 U.S.C. §§ 801–971, as a comprehensive regime to combat drug abuse and control drug traffic.  Gonzales v. Oregon, 546 U.S. 243, 250 (2006).  The CSA divides all controlled substances into five schedules.  21 U.S.C. § 812(a).  Schedule I substances are subject to the most stringent controls. Gonzales, 546 U.S. at 250.  It is a violation of federal law to manufacture, distribute, or dispense a Schedule I controlled substance without a Drug Enforcement Administration (DEA) registration.  See 21 U.S.C. §§ 822, 823, 841(a).  Under the CSA, marijuana is a Schedule I drug.  See id. at
§ 812(c)(c)(10); Sansouci v. United States Postal Service, MLB 18-9, 2018 WL 2045023 (April 13, 2018).  The CSA defines “marijuana” to include “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.”  21 U.S.C. § 802(16).²
Notwithstanding this federal classification, many states have legalized the growth, manufacture, sale, and distribution of marijuana for medical purposes.³   “There is a serious debate in the United States over the efficacy of marijuana for medicinal uses.  Although marijuana has been legalized in a number of states, it is classified as a ‘Schedule I’ drug by the Drug Enforcement Administration, pursuant to its authority under the [CSA].”  Americans for Safe Access v. Drug Enf’t Admin., 706 F.3d 438, 439 (D.C. Cir. 2013).
In Sansouci v. United States Postal Service, I found that cannabidiols (CBD), because they are part of the marijuana plant, and a Schedule I drug, are nonmailable.  Likewise, marijuana is nonmailable.  21 U.S.C. § 812(c)(c)(10).  In this case, Appellant raises several arguments seeking an exception to this determination.  In our telephone conference, Mr. Gillespie raised three issues.  First, he questioned the constitutionality of the determination of marijuana as a Schedule I drug by Congress under the CSA.  Second, he asked whether there was an exemption for medical use under the “Compassionate Care Act.”  Third, he sought a waiver under federal law to receive marijuana through the United States mail, if such a waiver exists.
Constitutionality of the CSA
In Gonzales v. Raich, the Supreme Court addressed Appellant’s argument.  545 U.S. 1 (2005).  The Court rejected arguments that regulation of marijuana exceeded the government’s authority under the Commerce Clause.  Id. at 27-28.  Likewise, the Supremacy Clause applies where there is a conflict between state law and federal law.  Id. at 28-29.  Thus, state laws that permit the use of marijuana for medical reasons cannot override the government’s determination that the same substance may not be shipped in interstate commerce.  Id.  Accordingly, the CSA, including Congress’s decision to include marijuana as a Schedule I drug, is constitutional.  Id. at 33.
Compassionate Care Act
I was unable to locate any federal law pertaining to a “Compassionate Care Act.”  USPIS cited to legislation proposed by Senator Cory Booker in its brief, but that legislation was never passed.  However, there does exist a California state law referred to as the Compassionate Use Act.⁴   It was under this state law that Petitioners in the Raich case sought to declare the classification of marijuana as unconstitutional as discussed above.  Gonzalez v. Raich, 545 U.S. 1 (2005).  Given the clear directive of the Supreme Court in Raich, the California Compassionate Use Act does not exempt medical marijuana from the restrictions of federal law.
Waiver of Federal Law or CSA Requirements
I am without general jurisdiction to grant waivers to Postal Service regulations or to laws established by Congress.  As marijuana is a nonmailable substance, I cannot grant the relief sought by Appellant in this case.  While in limited instances the Attorney General of the United States may grant waivers “for registration [with the Attorney General] of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety” the granting of any such waiver is within the Attorney General’s authority alone.  21 U.S.C. § 822(d).
Accordingly, I find that the marijuana seized by USPIS in this case is nonmailable under current federal law.

ORDER

The Appeal is DENIED.

James G. Gilbert
Chief Administrative Law Judge