Appeal of the Determination on Nonmailability

NICHOLAS TURNER v. UNITED STATES POSTAL SERVICE

P.S. Docket No. MLB 20-77

APPEARANCE FOR PETITIONER
Nicholas Turner, pro se

APPEARANCE FOR RESPONDENT
David Reardon, Esq.
Inspector Attorney

INITIAL DECISION

This matter is before me on Respondent’s Motion for Summary Judgment.  Appellant Nicholas Turner has made periodic appearances at events in this case but did not submit an opposition to Respondent’s Motion for Summary Judgment.  Based upon the documents submitted by Mr. Turner, including his original appeal, I can review the existing record to determine whether there exists a genuine issue of material fact that would defeat this motion.  
The Court will grant summary judgment when the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.  Fed.R.Civ.P.  56(a).  The Court's function at the summary judgment stage is not to weigh the evidence, but rather to determine whether there are genuine questions of fact for trial.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).  If the evidence and pleadings demonstrate that only questions of law are at issue, summary judgment is the proper method to resolve a case without a hearing.  See Fed.R.Civ.P. 56(c); Maghan v. Bd. of Comm'rs of Dist. of Columbia, 141 F.2d 274, 275 (D.C. Cir. 1944). 
The Postal Service asserts that the seized package contains marijuana.  Appellant has been unclear on what the package contains, and has failed to produce sufficient evidence that the package contains a lawful cannabis product.¹  Under the Federal Rules of Civil Procedure, when a party fails to properly address another party’s assertion of fact — here that the package contains marijuana — I am left with several options.²  In this case, I permitted Appellant an additional opportunity to submit evidence sufficient to establish a genuine issue of material fact that the package contains a lawful cannabis product.  See Fed.R.Civ.P. 56(c)(1)(B); Order to Show Cause (August 18, 2020).  Appellant failed to do so.
From the record, it appears that Mr. Turner is seeking to mail a cannabis product, but he was unable to provide Postal Service officials with proper documentation that the product in question was otherwise lawful cannabis merchandise.  The documentation submitted by Appellant does not establish that the package contains lawful industrial hemp.  In fact, Appellant’s original submission appears to concede that the package contains marijuana.  As I have previously explained in KAB, LLC v. United States Postal Service, both marijuana and industrial hemp are derived from the same plant, cannabis sativa L.  The key distinguishing characteristic between lawful industrial hemp (and related products) and marijuana listed by the Controlled Substances Act (CSA) as a Schedule I drug, depends upon the amount of tetrahydrocannabinol (THC) in the product.  A cannabis product with 0.3% THC or less is generally considered to be industrial hemp and may be shipped through the United States mail when it meets certain legal requirements associated with its cultivation and processing.  KAB, LLC v. United States Postal Service, MLB 18-39, 2018 WL 4912891 (September 21, 2018).
For the purposes of mailing industrial hemp, the Postal Service may require a shipper to provide satisfactory evidence that the product is industrial hemp, including a certificate from the appropriate state authority permitting the shipper (or its supplier) to cultivate industrial hemp and a verifiable lab analysis that proves that the THC level in the product is within legal limits.  Here, Appellant produced an out of date license that does not explain how the purported licensee is connected to the actual product shipped.  A corresponding lab report was also supplied that appears at best inconclusive on the critical issue of the THC level of its contents.  In short, neither submission would satisfy the Appellant’s burden to prove the product is lawful industrial hemp and thus mailable under the exception for industrial hemp.  Id.; see also, Sansouci v. United States Postal Service, MLB 18-9, 2018 WL 2045023 (April 13, 2018).
While at the summary judgment stage I must draw all inferences in favor of the nonmoving party, and view evidence in the light most favorable to the nonmoving party, in doing so I need not fabricate evidence that does not exist.  If the evidence in the record is insufficient to establish that a material fact exists, its absence cannot be inferred or construed to exist in favor of the nonmoving party.  Here, the license provided is out of date, thus insufficient as a matter of law to establish that the product was lawfully grown (assuming we could connect the licensee to the product in the shipment).  The lab report, without any underlying explanation or further evidence of its validity (and direct relationship to the contents of the package), also fails to meet the minimal burden necessary to establish a genuine issue of material fact that the package contains a mailable product.³  The absence of evidence to support a contention that the product to be mailed is lawful, when the burden rests with the shipper to prove that fact at trial, cannot be sufficient to avoid summary judgment based on an inference that actual evidence to support the claimed exemption may exist somewhere.  See, e.g., United States v. Articles of Device Consisting of Three Devices . . . “Diapulse”, 527 F.2d 1008, 1011-12 (6th Cir. 1976)(in a case where nonmoving party bears burden to establish that specific exception to regulation applies, absence of evidence to support contention permits finding for government at summary judgment stage). 
Accordingly, I find that there is no genuine issue of material fact in dispute.⁴
As Appellant’s main argument is that he is entitled to use marijuana as part of a religious ritual, and therefore certain federal laws remove this shipment from the restrictions of the CSA, I can rightfully infer for the purposes of this appeal that the package contains marijuana.  Appellant refers to it as “cannabis” in his appeal and discusses the use of cannabis in religious ceremonies.  Logically, if the package does not contain marijuana or other contents restricted by the CSA, the religious use exemption raised by Appellant would be irrelevant and his appeal moot.  Thus, if the package contains marijuana, the remainder of this decision applies.  If it does not, Appellant must still present evidence that the package contains a lawful cannabis product such as industrial hemp, which he has already failed to do in this case.
Also, Appellant states that he wishes to use the cannabis for medicinal purposes due to the COVID-19 pandemic.  This argument appears to undercut Appellant’s main legal argument, which is the cannabis is exempt from federal restriction as part of a religious exercise.  However, giving Appellant due consideration of its intended use, I will infer that Appellant intends to use this product for religious purposes to give practical effect to his stated religious exercise claims under applicable federal law.⁵  To the extent relevant, I will also infer that Appellant is a duly authorized member of an Indian tribe covered by 42 U.S.C. § 1996a. 
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).⁶  Marijuana is a Schedule I controlled substance.  Id. at § 812.  See United States Postal Service, Publication 52, Hazardous, Restricted, and Perishable Mail, § 453.31 (Aug. 2017)(“If the distribution of a controlled substance is unlawful under 21 U.S.C. §§ 801–971 or any implementing regulation in 21 CFR Chapter II, then the mailing of the substance is also unlawful under 18 U.S.C. § 1716.”); see also Sansouci v. United States Postal Service, MLB 18-9, 2018 WL 2045023 (April 13, 2018).
To the extent that Appellant seeks to enforce any rights he may claim under the American Indian Religious Freedom Act (AIRFA), AIFRA is a policy statement and does not create a cause of action or any judicially enforceable individual rights.  United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007).
Appellant’s actual claims, if any, might arise under the Religious Freedom Restoration Act (RFRA) 42 U.S.C. § 2000bb-1(a).  To establish a prima facie claim under RFRA, a plaintiff must “present evidence sufficient to allow a trier of fact rationally to find the existence of two elements.”  Navajo Nation v. United States Forest Serv., 535 F.3d 1058, 1068 (9th Cir. 2008)(en banc).  “First, the activities the plaintiff claims are burdened by the government action must be an ‘exercise of religion.’” Id. (quoting 42 U.S.C. § 2000bb-1(a)).  “Second, the government action must ‘substantially burden’ the plaintiff’s exercise of religion.”  Id.  Once a plaintiff has established those elements, “the burden of persuasion shifts to the government to prove that the challenged government action is in furtherance of a ‘compelling governmental interest’ and is implemented by ‘the least restrictive means.’”  Id. (quoting 42 U.S.C. § 2000bb-1(b)); see also Fazaga v. Federal Bureau of Investigation, 965 F.3d 1015 (9th Cir. 2020).
In Oklevueha Native American Church of Hawaii, Inc. v. Lynch, 828 F.3d 1012 (2016), the Ninth Circuit does a thorough job debunking a very similar claim.  I need not copy the opinion here to state that it adequately addresses any claims brought by Appellant, and it clearly finds that restrictions under the CSA on marijuana use do not give rise to a claim under RFRA.
Not surprisingly, the Oklevueha Native American Church decision does not specifically address whether the Postal Service’s restrictions on mailing under the CSA substantially burden Mr. Turner’s free exercise of religion.  However, it is difficult to imagine a scenario in which the inability to ship marijuana could be perceived as a substantial interference with Appellant’s free exercise of religion, when the government’s choice to criminalize marijuana does not.  Assuming without finding that marijuana is a valid part of Appellant’s religious exercise, Appellant under current law has numerous sources from which to obtain marijuana in states that permit its cultivation and use notwithstanding the CSA.  Indeed Mr. Turner notes that both the state of Oregon from where the package originated, and the state of Hawaii where Appellant resides permit the personal use of marijuana.  There is little need for Appellant to ship or receive marijuana through the United States mail when he has access to marijuana locally.  Even if it were a true religious exercise for Appellant to use marijuana, the fact that he cannot use the United States mail for its shipment does not impose upon his religious freedom.  If the restrictions of the CSA do not substantially burden the free exercise of the Oklevueha Native American Church of Hawaii, I see no basis to find that a Postal Service regulation promulgated under the same statutory restrictions would substantially burden Appellant’s asserted free exercise rights here.

ORDER

Respondent’s Motion for Summary Judgment is GRANTED.
The Appeal is DENIED.  The Postal Service may dispose of the nonmailable contents of the package in accordance with 39 U.S.C. § 3001(b).

James G. Gilbert
Chief Administrative Law Judge