In the Matter of the Appeal by GONE TO THE BIRDS, 17365 21 Mile Road, Big Rapids, MI 49307-9328, Mailability - Shipping of Bobwhite Quail P.S. Docket No. 25/150 November 13, 1987 James A. Cohen Judicial Officer APPEARANCE FOR PETITIONER: Thomas Proefrock 17365 21 Mile Road Big Rapids, MI 49307-9328 APPEARANCES FOR RESPONDENT: Nan K. McKenzie, Esq. Thomas A. Ziebarth, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112
Petitioner, Thomas Proefrock, d/b/a Gone to the Birds, has appealed from an Initial Decision upholding the ruling that adult Bobwhite quail and Chukar partridge are nonmailable under Postal Service regulations.
Background
On September 26, 1986, the Acting Manager, Mailing Require- ments, United States Postal Service, Detroit, Michigan, advised Petitioner that the Office of Classification and Rates Administra- tion, Washington, DC, had ruled that "adult birds (quail and Chukar partridge), are not acceptable in the mail." This ruling was stated to be based on considerations of "health, humane treatment, and cost." Petitioner filed a timely appeal from this ruling and the matter was assigned to an Administrative Law Judge. Thereafter, a hearing was held before the Administrative Law Judge at which Petitioner represented himself and testified on his own behalf, and two witnesses testified on behalf of the Postal Service. On January 12, 1987, the Administrative Law Judge issued an Initial Decision in which he concluded that the mailing of birds such as Bobwhite quail and Chukar partridge was prohibited under the terms of Domestic Mail Manual (DMM) 124.63b(2).1/ The Administrative Law Judge therefore denied Petitioner's appeal. Petitioner has filed a timely appeal with the Judicial Officer.
Petitioner's Contentions
In his appeal, Petitioner alleges that the Administrative Law Judge was "biased and prejudiced," Postal Service counsel was "intimidating" and the testimony of Respondent's witnesses was "absolutely ridiculous." Petitioner requests that his testimony be heard by a "Federal Judge and that consideration be given to the merits of my presentation" which he contends has not been done. Finally, he states that the Postal Service has openly admitted making an error and that he and his family have suffered severe losses due to the Postal Service ruling.
Discussion
The entire record has been reviewed but no support for any of Petitioner's contentions has been found. Petitioner's claim of bias and prejudice on the part of the Administrative Law Judge is totally without foundation. The record reflects that the Administrative Law Judge went to great lengths to assure that Petitioner understood the nature of the proceeding and was given a full opportunity to present his evidence and arguments. Moreover, the Administrative Law Judge properly weighed the evidence and arguments and correctly concluded that Respondent's birds are nonmailable under Postal Service regulations. This conclusion, although adverse to Petitioner, does not establish bias or prejudice on the part of the Administrative Law Judge. Athena Products, Ltd., P.S. Docket No. 7/99 (P.S.D. June 26, 1981); see Everywoman's Water Pill, P.S. Docket No. 6/113 (P.S.D. May 31, l979); Educational Researchers, P.S. Docket No. 3/53 (P.S.D. July 31, 1975); Termpapers, P.S. Docket No. 2/188 (P.S.D. Nov. 11, 1971).
Similarly, there is no merit to Petitioner's claim of intimidation by Postal Service counsel. The record reflects that Postal Service counsel conducted herself courteously and professionally. Petitioner has not shown, and the record does not reflect, any conduct which could in any way be considered to constitute intimidation.
Petitioner's characterization of the testimony of the Postal Service witnesses as "ridiculous" and his contention that the merits of his case have not been considered are equally unpersuasive. The testimony of the two Postal Service witnesses was credible and properly evaluated by the Administrative Law Judge. A fair reading of the record and the Initial Decision establishes that the merits of the case were considered by the Administrative Law Judge. In addition, the merits of the case have been further considered by the Judicial Officer in connection with Petitioner's appeal. 2/
Petitioner's assertion that the Postal Service admitted an error is not further explained. However, the record establishes that Petitioner had been allowed to send adult Bobwhite quail and Chukar partridge through the mail prior to the 1986 mailability ruling. Nevertheless, the Administrative Law Judge correctly found that such error would not entitle Petitioner to continue the practice. While the economic hardship caused by the present adverse ruling is regrettable, Petitioner was able to obtain the economic benefits of the use of the mail over a significant period of time despite the prohibition of DMM 124.63b(2).
Conclusion
DMM 124.63b(2)3/ clearly prohibits the mailing of warm- blooded animals except day-old poultry. It is undisputed that the birds which Petitioner desires to send through the mail are warm- blooded animals over a day old. Therefore, it is concluded that adult Bobwhite quail and Chukar partridge are nonmailable under DMM 124.63b(2). Accordingly, Petitioner's appeal is denied.
Under 39 C.F.R. 224.1(c)(4)(iii) and (iv) neither the Judicial Officer nor the Administrative Law Judges are authorized to determine the validity of Postal Service regulations.
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