2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-13-2007

Wisniewski v. Rodale Inc

Precedential or Non-Precedential: Precedential

Docket No. 06-1305

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-1305

 

DAVID WISNIEWSKI,

ON BEHALF OF HIMSELF

AND ALL OTHERS

SIMILARLY SITUATED

v.

RODALE, INC.

 David Wisniewski,

 Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 03-cv-00742

District Judge: The Honorable Paul S. Diamond

 

Argued September 18, 2007
2

Before: SLOVITER, SMITH, and WEIS, Circuit Judges.

(Filed: December 13, 2007)

Daniel B. Allanoff (argued)

Meredith, Cohen, Greenfogel & Skirnich

117 South 17th Street

22nd Floor

Philadelphia, PA 19103

Counsel for Appellant

Susan E. Wild

Gross, McGinley, LaBarre & Eaton

33 South 7th Street

P.O. Box 4060

Allentown, PA 18105

Lara M. Krieger

Manatt, Phelps & Phillips

11355 West Olympic Boulevard

Los Angeles, CA 90064

Gregory A. Clarick (argued)

Manatt, Phelps & Phillips

7 Times Square

New York, NY 10036

Counsel for Appellee
 1

 Section 3009 provides:

(a) Except for (1) free samples clearly and

conspicuously marked as such, and (2)

merchandise mailed by a charitable organization

3

 

OPINION OF THE COURT

 

SMITH, Circuit Judge.

This appeal requires us to determine whether § 3009 of

the Postal Reorganization Act, 39 U.S.C. § 3009 (2000), which

regulates the shipment of unordered merchandise, provides an

implied private right of action. The District Court dismissed

David Wisniewski’s § 3009 claim on the ground that no implied

private right of action exists under this statute. Based on our

review of the statute and applicable Supreme Court

jurisprudence, we will affirm.

I.

This litigation began in February 2003 when thenplaintiff Michael Karnuth sued Rodale, Inc. in the United States

District Court for the Eastern District of Pennsylvania, alleging

that Rodale violated the Postal Reorganization Act’s unordered

merchandise statute, 39 U.S.C. § 3009,1

 and various
soliciting contributions, the mailing of unordered

merchandise or of communications prohibited by

subsection (c) of this section constitutes an unfair

method of competition and an unfair trade

practice in violation of section 45(a)(1) of title 15.

(b) Any merchandise mailed in violation of

subsection (a) of this section, or within the

exceptions contained therein, may be treated as a

gift by the recipient, who shall have the right to

retain, use, discard, or dispose of it in any manner

he sees fit without any obligation whatsoever to

the sender. All such merchandise shall have

attached to it a clear and conspicuous statement

informing the recipient that he may treat the

merchandise as a gift to him and has the right to

retain, use, discard, or dispose of it in any manner

he sees fit without any obligation whatsoever to

the sender.

(c) No mailer of any merchandise mailed in

violation of subsection (a) of this section, or

within the exceptions contained therein, shall mail

to any recipient of such merchandise a bill for

such merchandise or any dunning

communications.

(d) For the purposes of this section, “unordered

merchandise” means merchandise mailed without

the prior expressed request or consent of the

4
recipient.

39 U.S.C. § 3009.

5

Pennsylvania state laws. Specifically, Karnuth alleged that

Rodale sent him books that he had never ordered and demanded

payment for them, and that he paid Rodale for one of the books

to avoid damage to his credit rating. Karnuth moved to certify

the case as a class action on behalf of all those to whom Rodale

had sent unsolicited products and payment demands, with a

subclass consisting of those who had paid in whole or in part for

the unsolicited products. The court denied the motion without

prejudice after Rodale alleged that Karnuth had consented to

receive the books. See Karnuth v. Rodale, Inc., No. 03-00742

(E.D. Pa. July 2, 2003). After Karnuth filed an amended

complaint, the District Court again denied his motion for class

certification in March 2005 on the ground that inconsistencies

in Karnuth’s two complaints could damage his credibility and

thereby harm the other class members. See Karnuth v. Rodale,

Inc., No. 03-00742 (E.D. Pa. Mar. 30, 2005). 

Subsequently, David Wisniewski replaced Karnuth as

class representative. Like Karnuth, Wisniewski alleged that

Rodale had sent him unsolicited books and that he had paid

Rodale to avoid damage to his credit rating. Rodale argued that

Wisniewski consented when he sent Rodale an order card that

enrolled Wisniewski in a “negative option” plan, under which

Rodale would ship books and bill any recipients who did not
 2

 The District Court had jurisdiction over the § 3009 claim

under 28 U.S.C. § 1331. We have jurisdiction over this appeal

under 28 U.S.C. §§ 1291 and 1294. 

6

return the books within a specified time period. Wisniewski

responded that the order cards failed to meet objective

disclosure standards and thus were inadequate as a source of

consent. Without addressing the merits of these claims, the

District Court granted class certification in July 2005 with

respect to the § 3009 claim and denied certification with respect

to the state law claims. See Karnuth v. Rodale, Inc., No. 03-

00742 (E.D. Pa. July 18, 2005). Both parties moved for

summary judgment on the federal and state claims, agreeing that

any ruling would bind only the named parties and not the class.

See Wisniewski v. Rodale, 405 F. Supp. 2d 550, 553 (E.D. Pa.

2005). In December 2005, the District Court dismissed the

§ 3009 claim on the ground that this provision does not confer

an implied private right of action, and it dismissed the state law

claims for lack of jurisdiction. Id. at 557–58. Wisniewski

timely appealed. 

On appeal, the only issue before us is whether an implied

private right of action exists under § 3009.2

 Because this is a

question of law, we exercise plenary review over the District

Court’s summary judgment order. Am. Trucking v. Del. Toll

Bridge Comm’n, 458 F.3d 291, 295 (3d Cir. 2006).

II.
 3

 Courts have used the terms “private right of action” and

“private cause of action” interchangeably. See, e.g., Alexander

v. Sandoval, 532 U.S. 275, 291 (2001) (using the terms

interchangeably in the same paragraph); Touche Ross & Co. v.

Redington, 442 U.S. 560, 575–76 (1979) (same). Throughout

this opinion, we use the term “private right of action” except

when quoting an opinion that uses “private cause of action.” 

 4

 One commentator provides a description of a typical

implied private right of action scenario:

[T]he plaintiff institutes a civil action to prevent

an injury or to recover damages, and he alleges

that he is entitled to relief because of something

contained in a legislative text. He says the

defendant has acted or proposes to act in a manner

contrary to the text. He relies upon the legislation

even though the words of the text do not actually

state that he has a right to bring an action of this

kind, and here the defendant raises a defense. The

defendant argues that the legislation does not

support the plaintiff's claim because it does not

state that the plaintiff is entitled to maintain an

action upon it. The court must then decide the

issue.

H. Miles Foy III, Some Reflections on Legislation, Adjudication,

and Implied Private Actions in the State and Federal Courts, 71

7

A private right of action3 is the right of an individual to

bring suit to remedy or prevent an injury that results from

another party’s actual or threatened violation of a legal

requirement.4

 Although the legal requirement can be established
CORNELL L. REV. 501, 503 (1986). 

 5

 For example, Title II of the Civil Rights Act of 1964

provides a private right of action with the following language:

Whenever any person has engaged or there are

reasonable grounds to believe that any person is

about to engage in any act or practice prohibited

by section 2000a-2 of this title, a civil action for

preventive relief, including an application for a

permanent or temporary injunction, restraining

order, or other order, may be instituted by the

person aggrieved . . . .

42 U.S.C. § 2000a-3 (2000).

8

by a number of sources, our focus is on statutory duties created

by acts of Congress. Many federal statutes provide a private

right of action through their express terms.5

 Other federal

statutes, however, merely define rights and duties, and are silent

about whether an individual may bring suit to enforce them. For

some statutes in this latter category, courts have held that

“implied” private rights of action exist. Since neither party in

the present case contends that the text of § 3009 provides an

express private right of action, the only question before us is

whether the statute confers an implied private right of action. 

No consensus exists regarding when the Supreme Court

first began recognizing implied private rights of action under

federal statutes. In Cannon v. University of Chicago, 441 U.S.

677 (1979), the majority contends that the Court’s “earliest”
 6

 Justice Powell’s dissent in Cannon rejects this contention,

arguing that Rigsby did not establish a genuine implied private

right of action. He describes it as merely “judicial reference to

legislatively determined standards of care . . . to establish the

existence of negligence.” See Cannon, 441 U.S. at 732 (Powell,

J., dissenting).

 7 See Foy, supra note 4, at 524–33. 

 8 See Merrill Lynch v. Curran, 456 U.S. 353, 376 & n.54

(1982); Foy, supra note 4, at 534–35. 

9

case recognizing an implied private right of action was Texas &

Pacific Railway Co. v. Rigsby, 241 U.S. 33 (1916). SeeCannon,

441 U.S. at 689 (citing Rigsby, 241 U.S. at 39).6

 In Rigsby, the

Court unanimously held that the Federal Safety Appliance acts

provided an implied private right of action to an injured railroad

employee against his employer. 241 U.S. at 39. Others argue

that the idea of an implied private right of action existed in

English common law7

 and appeared in early U.S. cases such as

Marbury v. Madison, 5 U.S. 137 (1803).8

 

At all events, over the past fifty years, the Supreme Court

has substantially modified its test for determining whether a

federal statute provides an implied private right of action. The

Court’s opinions have not always announced explicitly when

they are overruling (or limiting to their facts) old precedents in

this area. Therefore, it can be difficult to discern to what degree

the Court has repudiated old tests as opposed to applying them
10

in a different way to different statutes. We trace these changes

below, explaining how the implied private right of action test

has developed and where we believe it stands today. 

A. J.I. Case Co. v. Borak

We begin our review with J.I. Case Co. v. Borak, 377

U.S. 426 (1964), because this case exemplifies the Court’s older

and less restrictive approach to implied private rights of action.

In Borak, the Court unanimously held that the Securities

Exchange Act of 1934 implicitly authorizes a private right of

action for rescission or damages to stockholders who alleged

that they were injured by a consummated merger authorized

with a false or misleading proxy statement in violation of

§ 14(a) of the Act. See 377 U.S. at 428, 435. The Court

explained its holding by emphasizing that “it is the duty of the

courts to be alert to provide such remedies as are necessary to

make effective the congressional purpose.” Id. at 433. Based

on language in § 14(a) explicitly granting the Securities and

Exchange Commission (“SEC”) the authority to make rules “in

the public interest or for the protection of investors,” the Court

deemed “the protection of investors” to be among the section’s

primary purposes. Id. at 432. Noting that the SEC admits that

it does not have enough time to examine every proxy statement

for false and misleading statements, the Court stated that private

enforcement is a “necessary supplement” to the SEC’s efforts to

protect investors. Id. at 432–33. Finally, the Court asserted that

a federal right of action was necessary because state law might

not be adequate to protect the federally-created “rights” in the
 9

 The Cort opinion never explicitly acknowledges that it is

rejecting the Borak approach. In fact, it cites Borak several

times in a manner suggesting that it is merely distinguishing the

statute at issue in Borak from the one addressed in Cort. See

Cort, 422 U.S. at 79–80 & n.11, 84, 85. Later cases recognize

that Cort effectively overruled Borak. See, e.g., Alexander v.

Sandoval, 532 U.S. 275, 287 (2001).

11

statute. Id. at 434–35. At no point in its opinion did the Borak

Court purport to discern Congress’s intent regarding a private

right of action (as opposed to Congress’s general purposes in

enacting the statute).

B. Cort v. Ash

The Supreme Court’s unanimous opinion in Cort v. Ash,

422 U.S. 68 (1975), replaced the relatively loose standards of

Borak with a four-factor test for determining whether an implied

private right of action exists.9

 Using this test, the Court

determined that 18 U.S.C. § 610 (1970 & Supp. III), a criminal

statute (later repealed) that prohibited corporations from making

contributions to presidential campaigns, does not provide an

implied private right of action for stockholders to sue corporate

directors who violate the statute. 422 U.S. at 68–70. The Court

described its test as follows:

In determining whether a private remedy is

implicit in a statute not expressly providing one,

several factors are relevant. First, is the plaintiff
12

“one of the class for whose especial benefit the

statute was enacted”—that is, does the statute

create a federal right in favor of the plaintiff?

Second, is there any indication of legislative

intent, explicit or implicit, either to create such a

remedy or to deny one? Third, is it consistent

with the underlying purposes of the legislative

scheme to imply such a remedy for the plaintiff?

And finally, is the cause of action one

traditionally relegated to state law, in an area

basically the concern of the States, so that it

would be inappropriate to infer a cause of action

based solely on federal law?

Id. at 78 (emphasis in original) (citations omitted). Explaining

the second prong of this test, the Court said that when federal

law grants certain rights to a class of people (and thereby

satisfies the first prong), “it is not necessary to show an intention

to create a private cause of action, although an explicit purpose

to deny such cause of action would be controlling.” Id. at 82

(emphasis in original). Thus, the test articulated in Cort allowed

courts to recognize an implied private right of action even in the

absence of any affirmative congressional intent to create this

remedy.

C. Post-Cort Developments

Although Cort has never been formally overruled,

subsequent decisions have altered it virtually beyond
 10 Justice Scalia observed in a 1988 concurrence that Cort’s

analysis was “effectively overruled” by later Supreme Court

opinions. See Thompson v. Thompson, 484 U.S. 174, 188

(Scalia, J., concurring).

 11 Of the Justices involved in Cannon, only Justice Powell

called for the outright abandonment of the Cort test, claiming

that the test is unconstitutional because it permits judicial

lawmaking in violation of the separation of powers. See

Cannon, 441 U.S. at 742–43 (Powell, J., dissenting). Justice

Powell declared that courts should refuse to recognize implied

private rights of action “absent the most compelling evidence

that Congress in fact intended such an action to exist,” and that

they should be “especially reluctant” to recognize them when

the statute provides an alternative mechanism for enforcing the

rights it creates. Id. at 749 (Powell, J., dissenting). 

13

recognition.10 In Cannon v. University of Chicago, 441 U.S. 675

(1979), the Court framed the implied private right of action

question as one of “statutory construction” in which the Court’s

task is to determine whether “Congress intended to make a

remedy available.” 441 U.S. at 688. The Cannon Court

nonetheless relied on the four Cort factors because they were

“indicative of such intent.”11 Id. Thus, Congress’s intent to

create a private right of action—virtually ignored in Borak and

described in Cort v. Ash merely as one of four factors—emerged

as the primary factor in Cannon. The Court in Touche Ross &

Co. v. Redington, 442 U.S. 560 (1979), established that

congressional intent is the exclusive factor, declaring that the

task of courts is “limited solely to whether Congress intended to

create the private right of action,” 442 U.S. at 568 (emphasis
 12 Commentators have noted that Sandoval implicitly affirms

Justice Powell’s dissenting view in Cannon that Cort should be

discarded in favor of a pure focus on congressional intent. See,

e.g., Matthew C. Stephenson, Public Regulation of Private

Enforcement: The Case for Expanding the Role of

Administrative Agencies, 91 VA. L. REV. 93, 105 (2005) (“The

Sandoval Court thus seems to have adopted Justice Powell’s

view that the multifactor Cort analysis ‘too easily may be used

to deflect inquiry away from the intent of Congress, and to

permit a court instead to substitute its own views as to the

desirability of private enforcement.’” (quoting Cannon, 441 U.S.

14

added), and instructing that courts should use the Cort factors

only to the extent that they help to determine legislative intent,

id. at 575–76. See also Transamerica Mortg. Advisors, Inc.

(TAMA) v. Lewis, 444 U.S. 11, 15–16 (1979) (“what must

ultimately be determined is whether Congress intended to create

the private remedy asserted, as our recent decisions have made

clear.”). Although the Supreme Court continued to recite the

Cort factors in later implied private right of action opinions, its

attempts to discern legislative intent went well beyond these

factors. As the Court’s opinion in Thompson v. Thompson, 484

U.S. 174 (1988), observed, the Court has used “other tools of

statutory construction” in addition to the Cort factors as “guides

to discerning” Congress’s intent. 484 U.S. at 179.

D. Alexander v. Sandoval

The Supreme Court’s decision in Alexander v. Sandoval,

532 U.S. 275 (2001), strongly suggests that the Court has

abandoned the Cort v. Ash test.12 In Sandoval, the Court held
at 740 (Powell, J., dissenting))).

 13 Section 601 of Title VI provides that no person shall be

denied, on the basis of race, color, or national origin, the

benefits of federally-funded programs. 42 U.S.C. § 2000d

(2000). Section 602 authorizes federal agencies “to effectuate

the provisions” of § 601 of Title VI through regulations. 42

U.S.C. § 2000d-1 (2000). As the Sandoval Court noted, § 601

prohibits only intentional discrimination, but the regulations

promulgated under § 602 prohibit not only intentional

discrimination but also activities that have a disparate impact on

racial groups. 532 U.S. at 280–82. Because no party had

challenged the agencies’ authority to promulgate disparateimpact regulations, the Court assumed for the purposes of the

case that the regulations were valid. Id. at 281–82. Also, the

Court did not challenge the existence of an implied private right

of action to enforce § 601 directly, which it deemed to have

been ratified by Congress. See id. at 279–80.

 14 The Sandoval majority opinion cites Cort only to point out

that Cort marked the demise of the Borak approach. See

Sandoval, 532 U.S. at 287. The Sandoval dissent, however,

suggests that Cort should remain viable. See Sandoval, 532

U.S. at 311 (Stevens, J., dissenting).

15

that Title VI of the Civil Rights Act does not provide an implied

private right of action to enforce disparate-impact regulations

promulgated under § 602 of the Act (42 U.S.C. § 2000d-1

(2000)).13 Although the Sandoval Court did not expressly reject

the Cort v. Ash factors, it did not use them at all to guide its

inquiry.14 Instead, the Court set out the following test for
 15 To avoid confusion between the terms “private right” and

“private right of action,” we follow the approach of Three Rivers

Center v. Housing Authority of the City of Pittsburgh by

referring to substantive rights granted in statutes as “personal

rights” rather than “private rights.” See 382 F.3d 412, 419 n.9

(3d Cir. 2004). The Supreme Court has used the term “personal

right” in the same manner. See id. (citing Gonzaga Univ. v.

Doe, 536 U.S. 273, 285 (2002)).

16

discerning whether an implied private right of action exists:

Like substantive federal law itself, private rights

of action to enforce federal law must be created

by Congress. . . . The judicial task is to interpret

the statute Congress has passed to determine

whether it displays an intent to create not just a

private right but also a private remedy. . . .

Statutory intent on this latter point is

determinative. . . . Without it, a cause of action

does not exist and courts may not create one, no

matter how desirable that might be as a policy

matter, or how compatible with the statute.

532 U.S. at 286–87 (citations omitted). The Court concluded

that the “text and structure” of § 602 did not show that Congress

intended to create a personal right,15 in light of the absence of

“rights-creating language” that focuses on the protected

individuals. 532 U.S. at 288–89. Next, the Court concluded

that nothing in the text of § 602 demonstrated that Congress

intended to create a private remedy and that the statute’s

provision of a remedial scheme suggests that Congress
 16 Although we have acknowledged that Justice Scalia, the

author of the Sandoval majority opinion, disapproves of the use

of legislative history, see American Trucking, 458 F.3d at 298

n.5 (quoting Blanchard v. Bergeron, 489 U.S. 87, 98–99 (1989)

(Scalia, J., concurring)), nothing in Sandoval expressly

condemns its use. Sandoval criticizes consideration of

“expectations that the enacting Congress had formed in light of

the contemporary legal context,” 532 U.S. at 287–88 (quotation

omitted), as well as “reliance on congressional inaction” to infer

“congressional intent to ratify lower court decisions regarding

a particular statutory provision,” id. at 291–92, but stops short

of condemning all judicial inquiry into legislative history.

Although the Sandoval Court “find[s] that [it] can end” its

inquiry into congressional intent with the text and structure of

Title VI, id. at 288, it does not state that the inquiry in all cases

must end with text and structure.

17

“intended to preclude” any other remedy. Id. at 290–91. The

Court rejected the Government’s argument that Congress had

“ratified” an implied private right of action under § 602 by

failing to address this issue when it amended Title VI.16 Having

applied what the Court called its “standard test for discerning

private causes of action” and having found no congressional

intent to create a personal right or private remedy in the statute’s

text or structure, the Court ended its inquiry. Id. at 293. 

E. The State of the Law Today

After Sandoval, the relevant inquiry for determining

whether a private right of action exists appears to have two

steps: (1) Did Congress intend to create a personal right?; and
 17 We observe that under circumstances different from

American Trucking, however, reliance on Cort could lead to

results that are inconsistent with Sandoval. As noted above,

Cort v. Ash said that when a statute contains strong rightcreating language, “it is not necessary to show an intention to

create a private cause of action . . . .” 422 U.S. at 82. American

Trucking expresses a related idea when it says “[w]here, as here,

a statute is devoid of any right-creating language, there need be

a more compelling indication in the legislative history before

this court can recognize a right of action.” 458 F.3d at 303. To

the extent that one could interpret this statement to mean that

demonstrating legislative intent to create a personal right

eliminates or reduces the need to demonstrate legislative intent

to create a private remedy, it is inconsistent with our reading of

18

(2) Did Congress intend to create a private remedy? Only if the

answer to both of these questions is “yes” may a court hold that

an implied private right of action exists under a federal statute.

See, e.g., Three Rivers Ctr. v. Hous. Auth. of the City of

Pittsburgh, 382 F.3d 412, 421 (3d Cir. 2004) (“Put succinctly,

for an implied right of action to exist, a statute must manifest

Congress’s intent to create (1) a personal right, and (2) a private

remedy” (citing Sandoval, 532 U.S. at 286)). Even when we

invoked the Cort test in American Trucking v. Delaware Toll

Bridge Commission, 458 F.3d 291 (3d Cir. 2006), our analysis

paralleled the Sandoval test. Focusing only on the first two

“critical” Cort factors, 458 F.3d at 297, the American Trucking

opinion treated the first Cort factor as an inquiry into legislative

intent to create a personal right, 458 F.3d at 297, and the second

Cort factor as an inquiry into legislative intent to create a private

remedy, 458 F.3d at 303.17 
Sandoval.

 18 Sandoval appears to have left untouched the Court’s

jurisprudence on how to determine whether statutory language

creates a personal right. See 532 U.S. at 288–89 (citing

California v. Sierra Club, 451 U.S. 287, 294 (1981); Univs.

Research Assn., Inc. v. Coutu, 450 U.S. 754 (1981); Cannon,

441 U.S. at 690). 

19

III.

Applying the Sandoval test to § 3009, we conclude that

this statute provides no implied private right of action. 

A. Did Congress Intend to Provide a Personal Right in

§ 3009?

To determine whether a personal right existed under

§ 602 of Title VI, the Sandoval Court began by reviewing the

“text and structure” of the statute to determine whether the

statute contained “rights-creating” language that focuses on the

“individual protected” rather than “the person regulated.” 532

U.S. at 288–89.18 Accordingly, we examine the text and

structure of § 3009 to see if rights-creating language exists. The

only part of the statute that explicitly establishes a “right” is

§ 3009(b):

Any merchandise mailed in violation of

subsection (a) of this section, or within the

exceptions contained therein, may be treated as a

gift by the recipient, who shall have the right to
 19 Even though Sandoval suggests that the distinction

between a statute focusing on the person regulated and one

focusing on the person protected is still significant, see 532 U.S.

at 289, we would be reluctant to place dispositive weight on this

factor. The apparent “focus” of a statute might have more to do

with Congress’s writing style than its intent. See RICHARD H.

FALLON, JR. ET AL., HART AND WECHSLER’S THE FEDERAL

20

retain, use, discard, or dispose of it in any

manner he sees fit without any obligation

whatsoever to the sender.

39 U.S.C. § 3009(b) (emphasis added). With an explicit

reference to a right and a focus on the individual protected, this

language suffices to demonstrate Congress’s intent to create a

personal right for recipients to treat unsolicited merchandise as

a gift. Indeed, Rodale concedes that § 3009(b)’s language is

“rights-creating.” (See Appellee’s Br. at 30.) 

“Rights-creating” language is not as obviously present in

other sections of the statute. Section 3009(b) requires that

mailers of unsolicited merchandise attach a “clear and

conspicuous statement” informing the recipient of his or her

right to treat the merchandise as a gift. Section 3009(c) forbids

mailers of unsolicited merchandise from sending a recipient a

bill or any dunning communications. These provisions do not

necessarily create “personal rights” for recipients to receive

clear and conspicuous statements and to be free from bills and

dunning communications. Congress worded them as

prohibitions on the person regulated rather than entitlements for

the person protected.19 The provisions’ failure to identify
COURTS AND THE FEDERAL SYSTEM 785 (5th ed. 2003) (“Does

the appropriateness of a private right of action depend on

whether a statute says ‘no person shall be subjected to

discrimination in a federally funded program’ rather than ‘no

federally funded program shall discriminate’?”). In the present

case, for example, § 3009(c) might have appeared to “focus”

more on the individual protected if Congress had written “No

recipient shall be mailed a bill for such merchandise . . . ,” but

the meaning would be identical. We do not consider Congress’s

use of the passive voice a reliable guide to its intent to create

personal rights. 

 20 We also note that the provisions requiring mailers to notify

recipients of their rights and to refrain from billing them are

ancillary to the recipients’ right to keep the merchandise as a

gift. These provisions ensure that recipients are aware of this

right, but provide no independent benefit to a recipient who is

fully aware that he or she has a right to keep the merchandise.

21

“rights” (to receive notices and not to receive bills) contrasts

with the explicit identification of a “right” to keep the

merchandise as a gift.20 Even assuming arguendo that Congress

intended these provisions to create personal rights, the

distinction is largely academic because we can find no

legislative intent to create a private remedy, for the reasons

discussed below. 

B. Did Congress Intend to Provide a Private Remedy for

Violations of § 3009?

In the generation since the Supreme Court declared that
 21 See, e.g., Sandoval, 532 U.S. at 290 (“The express

provision of one method of enforcing a substantive rule suggests

that Congress intended to preclude others.”); Russell, 473 U.S.

at 146 (“The six carefully integrated civil enforcement

provisions . . . provide strong evidence that Congress did not

intend to authorize other remedies that it simply forgot to

incorporate expressly.”); TAMA, 444 U.S. at 19–20 (“It is an

elemental canon of statutory construction that where a statute

expressly provides a particular remedy or remedies, a court must

be chary of reading others into it.”).

 22 See, e.g., Coutu, 450 U.S. at 773 (highlighting another

provision of the same Act explicitly conferring a private right of

action); Touche Ross, 442 U.S. at 571–72 (pointing out that

several other provisions of the same act explicitly provide a

private right of action, showing that “when Congress wished to

provide a private damage remedy, it knew how to do so and did

so expressly”).

22

legislative intent to create an implied private right of action is

the sole touchstone of our inquiry, the Court has not provided a

test for discerning this intent. Most of its decisions have relied

on whatever indicators of legislative intent appear to be useful

in the context of a given statute. The Court frequently has

examined factors related to the text and structure of the statute

in question, including the existence of a comprehensive remedial

scheme in the statute21 and the explicit creation of a private right

of action elsewhere in the same statute.22 The Court has also
 23 Among the aspects of legislative history that the Court has

considered in the past are statements of intent in the

congressional record associated with the original enactment, see,

e.g., Thompson, 484 U.S. at 184–85; National Sea Clammers,

453 U.S. at 17–18; Coutu, 450 U.S. at 773–75, and statements

of intent in the congressional record associated with later

amendments, see, e.g., Daily Income Fund, Inc. v. Fox, 464 U.S.

523, 538–40 (1984); Merrill Lynch, 456 U.S. at 383–84; Coutu,

450 U.S. at 778–79. In certain contexts, the Court has inferred

a private right of action from Congress’s enactment of a statute

containing language similar to that of a statute in which courts

had previously found an implied private right of action. See,

e.g., Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 176–77

(2005); Cannon, 441 U.S. at 694–96. In the past, the Court had

inferred that Congress intended to ratify a private right of action

when it amended a statute while leaving unchanged a provision

that federal courts had interpreted to confer a private right of

action, see, e.g., Merrill Lynch, 456 U.S. at 381–82, but later

Court opinions have foreclosed this option, see Sandoval, 532

at 291–92; Cent. Bank of Denver v. First Interstate Bank of

Denver, 511 U.S. 164, 186 (1994). As the Sandoval opinion

demonstrates, the Court is willing to dispense entirely with an

inquiry into legislative history when the text and structure of the

statute are clear. See supra note 16. 

 24 See TAMA, 444 U.S. at 18–20 (holding that Congress

intended that “customary legal incidents” of contract voidness,

23

relied upon various aspects of the statute’s legislative history,23

the “customary legal incidents” that follow directly from a

statutory provision,24 Congress’s explicit creation of private
including a private right to sue for rescission, an injunction, or

restitution, would follow from its statutory declaration that

certain contracts “shall be void”). 

 25 See, e.g., Cent. Bank of Denver, 511 U.S. at 184–85

(declining to find an implied private cause of action for aiding

and abetting under the Securities Exchange Act of 1934 because

Congress had acted against the “backdrop” of a 1929 federal

securities law and securities laws in eleven states that had

provided explicitly for such a cause of action); Northwest

Airlines, Inc. v. Transport Workers Union of America, 451 U.S.

77, 92 & n.24 (1981) (declining to find an implied private right

of action for contribution under the Equal Pay Act and Title VII

and noting that it was “significant” but “not dispositive” that

Congress had expressly provided for a right to contribution in

certain securities acts); TAMA, 444 U.S. at 248 (noting that

Congress expressly authorized private suits for damages in other

securities-related statutes enacted at around the same time as the

IAA).

 26 For example, the Court has examined the extent to which

state law remedies are available, see Daily Income Fund, 464

U.S. at 542 (noting that the subject matter of the proposed

private cause of action is “generally governed” by state law),

and even the provision’s location in the United States Code, see

Thompson, 484 U.S. at 183 (stating that the placement of the

provision as an addendum to the full faith and credit statute is

“strong proof” that Congress did not intend to create a private

24

rights of action in similar statutes enacted at roughly the same

time,25 and an assortment of other factors.26 To provide some
right of action).

 27 We see no merit in Wisniewski’s argument that “[n]owhere

does the statute specifically refer to enforcement by the FTC . .

. .” (Appellant’s Br. at 23 (emphasis in original)). For all

practical purposes, the reference to “section 45(a)(1)” is a

reference to FTC enforcement. 

 28 One of the remedies in the current FTC Act is restitution.

See 15 U.S.C.A. § 45(a)(4)(B) (West 2007) (“All remedies

available to the Commission with respect to unfair and deceptive

acts or practices shall be available for acts and practices

described in this paragraph, including restitution to domestic or

foreign victims.”). Congress added this remedy to the FTC Act

in 2006, however, so it was not part of the FTC’s arsenal at the

25

boundaries to our inquiry into congressional intent, we will

confine ourselves to those purported signals of legislative intent

that the parties have raised and that are consistent with current

doctrine.

1. Text and Structure of § 3009

The express language of § 3009 provides only for Federal

Trade Commission (“FTC”) enforcement. By declaring the

shipment of unsolicited merchandise and the resulting bills to be

a violation of 15 U.S.C. § 45(a)(1) (and therefore unlawful),

§ 3009(a) authorizes the FTC to use any of the Federal Trade

Commission Act’s (“FTC Act”) applicable enforcement

mechanisms in response to this behavior.27 The FTC Act allows

the FTC to obtain a variety of remedies28 for violations of
time § 3009 was enacted. See Pub. L. No. 109-455, 120 Stat.

3372 (Dec. 22, 2006).

 29 See 15 U.S.C. § 45(a)(2) (2000) (“The Commission is

hereby empowered and directed to prevent persons,

partnerships, and corporations . . . from using unfair methods of

competition in or affecting commerce and unfair or deceptive

acts or practices in or affecting commerce.”).

 30 See 15 U.S.C. § 45(m)(1)(A) (2000) (“The Commission

may commence a civil action to recover a civil penalty in a

district court of the United States against any person,

partnership, or corporation which violates any rule under this

chapter respecting unfair or deceptive acts or practices . . . with

actual knowledge or knowledge fairly implied on the basis of

objective circumstances that such act is unfair or deceptive and

is prohibited by such rule.”).

26

§ 45(a)(1), including injunctions29 and civil penalties.30 The rest

of § 3009 builds on § 3009(a) by explaining what rights a

recipient possesses when confronted with an unlawful

merchandise shipment and by imposing additional duties on

shippers of merchandise who have either chosen to disregard

§ 3009(a) or are subject to one of its exceptions. 

The reference to FTC enforcement combined with the

absence of other enforcement provisions creates a presumption

that FTC enforcement of the statute is exclusive. As the

Sandoval Court held, “[t]he express provision of one method of

enforcing a substantive rule suggests that Congress intended to

preclude others.” 532 U.S. at 290. Wisniewski correctly points
 31 Since the demise of Borak, the Supreme Court has

generally been unwilling to find implied private rights of action

in statutes that expressly provide for agency or other

enforcement. The Court has made exceptions for certain

securities and anti-discrimination statutes, but it has done so

primarily because of longstanding precedent interpreting the

same or similar language to create a private right of action. See

Jackson, 544 U.S. at 176 (private retaliation actions under Title

IX); Huddleston, 459 U.S. at 380–81 (private actions based on

registration statement fraud under Section 10(b) of Securities

Exchange Act); Merrill Lynch, 456 U.S. at 378–82 (private

actions under Commodities Exchange Act); Cannon, 441 U.S.

at 694–98 (private actions under Title IX); Superintendent of

Ins. v. Bankers Life & Cas. Co., 404 U.S. 6 (1971) (approving

with virtually no analysis a private right of action under Section

10(b)). Moreover, the Court has taken a stricter approach in

recent years to both securities and anti-discrimination statutes

despite longstanding interpretations. See Sandoval, 532 U.S. at

293 (finding no private action under § 602 of Title VI); Cent.

Bank of Denver, 511 U.S. at 183–88 (finding no private right of

action for aiding and abetting under Section 10(b)).

27

out that “private rights of action have been implied from statutes

that provide for agency enforcement” (Appellant’s Br. at 23),

but this does not change the fact that agency enforcement

creates a strong presumption against implied private rights of

action that must be overcome.31

Wisniewski’s strongest argument for overcoming the

presumption of exclusive FTC enforcement is based on an

analogy between § 3009 and § 215 of the Investment Advisers
 32 Section 215 declares the contract to be “void,” a term

typically used in contract law to describe contracts that create no

enforceable rights or obligations for either party. See

RESTATEMENT (SECOND) OF CONTRACTS § 7, cmt. a. Under

§ 215, the contract is only void “as regards the rights” of a

wrongdoer, which suggests that the contract is merely

“voidable” at the innocent party’s option. In another case, the

Supreme Court concluded that “void,” as used in § 29(b) of the

Securities Exchange Act, really meant “voidable,” and noted

that § 215 of the IAA is a parallel provision. See Mills v. Elec.

Auto-Lite Co., 396 U.S. 375, 387 (1970).

28

Act (“IAA”), the statutory provision under which the Supreme

Court recognized an implied private right of action in TAMA.

(See Appellant’s Br. at 16.) Section 215 provides that every

contract whose formation or performance would violate the IAA

“shall be void . . . as regards the rights of any person” who

violated the statute or knew of the facts underlying its violation.

444 U.S. at 16–17 (quoting 54 Stat. 856, as set forth in 15

U.S.C. § 80b-15).32 The Court concluded that the statutory text

showed congressional intent to create a private remedy, stating:

By declaring certain contracts void, § 215 by its

terms necessarily contemplates that the issue of

voidness under its criteria may be litigated

somewhere. At the very least Congress must have

assumed that § 215 could be raised defensively in

private litigation to preclude the enforcement of

an investment advisers contract. But the legal

consequences of voidness are typically not so

limited. A person with the power to void a
29

contract ordinarily may resort to a court to have

the contract rescinded and to obtain restitution of

consideration paid. . . . For these reasons we

conclude that when Congress declared in § 215

that certain contracts are void, it intended that the

customary legal incidents of voidness would

follow, including the availability of a suit for

rescission or for an injunction against continued

operation of the contract, and for restitution.

444 U.S. at 18–19 (citations omitted). The Court noted in a

footnote that Congress might have intended that private litigants

raise § 215 claims only in state court, but that “we decline to

adopt such an anomalous construction without some indication

that Congress in fact wished to remit the litigation of a federal

right to the state courts.” Id. at 19 n.8. 

Sections 3009 and 215 do have some similarities. Both

provisions define the rights of those affected by a violation of

the statute. Section 215 establishes that the wronged party to a

purported contract entered in violation of the IAA is under no

obligation to perform. Section 3009 establishes that the

recipient of merchandise sent in violation of the unordered

merchandise statute is under no obligation to return or pay for

the merchandise. The TAMA Court concluded that, through the

statute’s explicit declaration of voidness, Congress indicated its

intent to allow the wronged party to bring an action under § 215

to rescind the void contract and to obtain restitution for

consideration paid. Wisniewski argues that Congress likewise

intended to create a private right of action under § 3009 that

would allow recipients to obtain restitution for expenses
30

incurred because of the sender’s misrepresentations regarding

their rights. 

Although the TAMA analogy is apposite, it is not

convincing. We believe that the statutes in question are too

different to allow an interpretation that Congress intended to

create a private right of action under § 3009. We note that the

private right of action allowed in TAMA was very limited. It

allowed the wronged party to bring an action for “limited

equitable relief,” 444 U.S. at 22, which includes only those

remedies closely associated with the contract’s voidness:

rescission of the contract, an injunction against the contract’s

enforcement, or restitution of consideration paid, 444 U.S. at

18–19. The TAMA Court explicitly stated that a party could not

obtain “compensation for any diminution in the value of the

rescinding party’s investment alleged to have resulted from the

adviser’s action or inaction.” Id. at 24 n.14. Also, TAMA makes

clear that a party has no private right of action to recover

amounts lost to an investment adviser who engaged in the

fraudulent activities prohibited by § 206, except those amounts

given as consideration under a void advisory contract. Id. at

24–25 & n.14. In other words, TAMA does not create a general

presumption that Congress intended to create a private right of

action for restitution whenever one party obtains a benefit from

another by violating the latter party’s statutory rights. Instead,

its analysis is linked closely to the explicit declaration of

voidness in the statute and the “customary legal incidents” that

follow from such a declaration according to established contract

law principles. See id. at 19. 

In contrast, § 3009 does not explicitly declare any
 33 At most, Wisniewski could contend that his payment to

Rodale for the unordered merchandise created a faux-contractual

relationship between the two parties, with Rodale’s shipment of

merchandise as the “offer” and Wisniewski’s payment as the

“acceptance.” Under this reasoning, if Rodale obtained

Wisniewski’s acceptance in a manner that violated the statute

(e.g., by failing to inform him of his rights), then the acceptance

would be invalid and the contract voidable. Thus, the

declaration that Wisniewski has a right to keep the merchandise

would be equivalent to a declaration that any contract that

disregarded this right shall be void, which under TAMA would

entitle Wisniewski to the “customary legal incidents” of a void

contract (including restitution). This line of reasoning is too

speculative to be convincing, however. It requires us to make

an assumption not present in TAMA: that statutory recognition

of a right automatically carries with it the power to void any

purported contracts that arise when a wrongdoer ignores this

right. Given the absence of any direct or indirect reference in

§ 3009 to any contract, we are not willing to make such an

assumption. 

31

agreement to be void. Although it creates a right for recipients

to keep unsolicited merchandise, it says nothing about the

consequences if a mailer violates the statute and thereby induces

a recipient to disregard this right.33 As Sandoval tells us,

creation of a right is not enough to establish congressional intent

to create a private right of action to vindicate that right.

Wisniewski points to no “customary legal incidents” that follow

from a declaration that an individual has the personal right to

keep unordered merchandise as a gift. Accordingly, we

conclude that the creation of a right to keep merchandise in
 34 Our holding will not necessarily deprive individuals of a

remedy in the event that they are unable to attract the interest of

32

§ 3009, unlike § 215’s voidness declaration, is not sufficient to

demonstrate congressional intent to create a private right of

action. 

Rodale points out that Congress expressly provided

private rights of action in two other provisions of the Postal

Reorganization Act, suggesting that it knew how to create

private rights of action when it wished. (Appellee’s Br. at 18.)

Sections 3017(e)(1) and (e)(2) provide private rights of action

to enforce Sections 3001(l) and 3017(d), respectively.

Wisniewski counters that Congress enacted § 3017 in 1999 and

that this amendment therefore cannot shed any light on the

meaning of the original act. (Appellant’s Br. at 24–25.) Rodale

concedes that these amendments do not necessarily prove

Congress’s lack of intent to provide a private right of action

under § 3009, but claims that they “buttress” the case already

made that no such intent exists. (Appellee’s Br. at 20.) We

need not decide whether to place any weight on these

amendments, because they certainly cannot help Wisniewski,

and other arguments independently support Rodale’s case

against an implied private right of action. 

In short, the text and structure of § 3009 strongly suggest

that Congress did not intend to supplement FTC enforcement

with a parallel system of private litigation but “absentmindedly

forgot to mention an intended private action.” See TAMA, 444

U.S. at 20 (quoting Cannon, 441 U.S. at 742 (Powell, J.,

dissenting)).34
FTC enforcers. Individuals who pay for unordered

merchandise, either out of ignorance of their right or fear of a

negative credit rating, might have recourse to state courts. A

footnote in TAMA says that it would be “anomalous” to assume

that Congress intended “to remit the litigation of a federal right

to the state courts.” 444 U.S. at 19 n.8. In the present case,

however, Congress has authorized litigation by the FTC in

federal court. State court may remain a fallback option for

individuals who believe that the FTC has not been vigorous

enough in enforcing their rights. 

 35 Regarding the extent to which legislative history is relevant

at all in implied private right of action inquiries, see supra note

16. 

33

2. Legislative History35

Both parties concede that the congressional record is

“silent” with regard to the existence of a private right of action

in § 3009. (See Appellant’s Br. at 26–27; Appellee’s Br. at 17.)

In Touche Ross, the Court noted that the legislative history of

§ 17(a) of the Securities Exchange Act was silent and observed

that “implying a private right of action on the basis of

congressional silence is a hazardous enterprise, at best.” 442

U.S. at 571. But this silence does not “automatically

undermine” Wisniewski’s claim that an implied private right of

action exists, since Congress might express its intent “in the

language or structure of the statute, or in the circumstances of its

enactment.” See TAMA, 444 U.S. at 18. As we have already

explained, however, the language and structure of the statute

provide no support for a private right of action, and Wisniewski
 36 The Ninth Circuit did not extend this implied private right

of action to injunctive relief because it feared that injunctions

would interfere with FTC enforcement of § 3009. See 554 F.2d

at 380. The court ultimately dismissed the restitution claim on

the ground that insurance policies are not “merchandise” within

the meaning of § 3009. See id. at 380–81. 

34

has not pointed to anything in the circumstances of the statute’s

enactment or any other factors that express the requisite intent.

3. Kipperman v. Academy Life Insurance Co.

In their briefs, the parties debate the meaning and

relevance of Kipperman v. Academy Life Ins. Co., 554 F.2d 377

(9th Cir. 1977), the only federal appellate opinion that has

addressed whether an implied private right of action exists under

§ 3009. In Kipperman, the Ninth Circuit applied the Cort test to

§ 3009 and concluded that the statute provides an implied

private right of action for declaratory and restitutionary relief.

See 554 F.2d at 380.36 Kipperman is not persuasive authority for

us because its analysis is inconsistent with the Supreme Court’s

subsequent decisions in Cannon, Touche Ross, and TAMA,

which restructured the implied private right of action test to

focus solely on legislative intent. The Kipperman opinion

appears to weigh the four Cort factors roughly equally,

providing no evidence that the court recognizes legislative intent

as the sole determinative factor. See 554 F.2d at 380.

Moreover, in its analysis of legislative intent, the Kipperman

court states that “we believe Congress did not consider the

question of a private right of action under section 3009,” and it

provides no evidence that Congress intended that the statute be
35

enforced through a private right of action. 554 F.2d at 380.

Lack of evidence of intent probably would have presented no

obstacle under Cort, which says that congressional intent to

create a private right of action is unnecessary as long as

Congress conveyed no explicit intent to deny one. See Cort, 422

U.S. at 82. But Supreme Court cases decided since Cort and

Kipperman have established that congressional intent to create

a private right of action is critical, and the Kipperman court’s

failure to find such intent would dictate a different result in that

case today. 

IV.

In sum, we see no indication that Congress intended to

create a private right of action under § 3009. Accordingly, we

will affirm the judgment of the District Court. 

Wisniewski v. Rodale, Inc., No. 06-1305

SLOVITER, Circuit Judge, dissenting.

There is a Wonderland quality about the majority’s

enunciation of the inquiry before us: only if Congress

intended to create a personal right and a private remedy, may

a court hold that an implied right of action exists under a
36

federal statute. I do not suggest that the majority

misconstrues the recent Supreme Court precedent. Quite the

contrary. The majority scrupulously reviews the relevant

decisions in articulating its version of our task. The fact that I

arrive at a different conclusion should not obscure the

inescapable truth that we are both engaged in an illusory

errand. The search is to determine whether Congress, the

Congress that enacted the statute, also intended to create a

private right of action. Do we really believe that Congress,

with its legislative aides, lawyers, paralegals and assorted

staff, is unable to state in simple declarative language that

anyone injured by a violation of that statute may file suit in

federal court? Do we really believe that it simply forgot? But

whatever the reason Congress chose to remain silent, the

Supreme Court set our course decades ago and we have the

responsibility to follow by looking for clues that Congress

intended that which it did not say.

Unlike the majority, I conclude that when Congress

enacted § 3009(b) expressly creating a personal property right

in recipients of unordered merchandise, it also enabled those

recipients to take the action necessary to exercise that right,

or, in the parlance of the precedents, effect a remedy.

Section 3009(b) states that unordered merchandise

“may be treated as a gift by the recipient, who shall have the

right to retain, use, discard, or dispose of it in any manner he
37

sees fit without any obligation whatsoever to the sender.” 39

U.S.C. § 3009(b) (emphasis added). As the majority

recognizes, “the ‘rights-creating’ language so critical to the

Court’s analysis” is unquestionably present here. Alexander

v. Sandoval, 532 U.S. 275, 288 (2001) (citing Cannon v.

Univ. of Chicago, 441 U.S. 677, 690 n.13 (1979) (asserting

that “the right- or duty-creating language of the statute has

generally been the most accurate indicator of the propriety of

implication of a cause of action”)). We shift, then, to

Congress’ intent to create a remedy, with primary focus on

the statute’s text and structure.

Congress expressly defined the legal status of

unordered merchandise, deeming it “a gift” to the recipient. 

Recognizing that the senders of unordered merchandise would

likely attempt to “trick or bully” recipients into paying for that

merchandise, 116 Cong. Rec. 22,314 (1970), Congress

confirmed the recipient’s right of possession by providing that

the receipt of the merchandise was to be free of any obligation

to the sender. Therefore, the functional effect of Congress’

language was to vest in the recipient unencumbered title to the

merchandise. See Ray Andrews Brown, The Law of Personal

Property §§ 2.6, 7.12 (3d ed. 1975). The creation of this

property right implies that Congress contemplated that a

recipient of unordered merchandise would be entitled to the

attendant rights of ownership, including the ability to enforce

his or her right to title.
38

The Supreme Court has upheld a limited right of action

in analogous circumstances. In Transamerica Mortgage

Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 12-13 (1979),

the Court considered whether a private right of action could

be implied from certain provisions of the Investment Advisers

Act of 1940 (“IAA”). Section 215 of the IAA provided “that

contracts whose formation or performance would violate the

Act ‘shall be void . . . as regards the rights of’ the violator and

knowing successors in interest.” Id. at 16-17 (quoting 15

U.S.C. § 80b-15). The Court reasoned that “[b]y declaring

certain contracts void, § 215 by its terms necessarily

contemplates that the issue of voidness under its criteria may

be litigated somewhere.” Id. at 18. The Court then reasoned

that Congress must not only have assumed that beneficiaries

of § 215 would be able to raise the statute “defensively in

private litigation,” but that Congress must also have

envisioned that a beneficiary would be able to “resort to a

court to have the contract rescinded and to obtain restitution

of consideration paid.” Id. Therefore, the Court concluded,

“when Congress declared in § 215 that certain contracts are

void, it intended that the customary legal incidents of

voidness would follow, including the availability of a suit for

rescission or for an injunction against continued operation of

the contract, and for restitution.” Id. at 19.

Just as the voidness of a contract is accompanied by

“customary legal incidents,” so is the passage of title resulting
 37 The majority’s attempt to analogize to TAMA by applying

a contract analysis to § 3009 fails because § 3009 does not

create a contract right, but a property right. Therefore, § 3009

must be analyzed with an eye towards the “customary legal

incidents” associated with the property right created thereby.

39

from delivery of the “gift” created by § 3009(b).37 “By

putting the donee in possession of the property, physical

delivery usually obviates the need for the donee to seek

judicial enforcement of the gift.” Restatement (Third) of

Property: Wills and Other Donative Transfers § 6.2 cmt. c

(2003); see also Farrington v. Tennessee, 95 U.S. 679, 683

(1877) (“A gift consummated is as valid in law as any thing

else.”). Of course, judicial enforcement remains available

where the recipient requires vindication of his or her right to

title. Indeed, federal courts have long recognized that the

possession of a gift gives rise to an enforceable right. See,

e.g., Comm’r of Internal Revenue v. Copley’s Estate, 194

F.2d 364, 369 (7th Cir. 1952) (noting that a completed gift

“conferred upon the donee an enforceable right”); First Nat’l

Bank of Boston v. Comm’r of Internal Revenue, 63 F.2d 685,

691 (1st Cir. 1933) (stating that “delivery and acceptance with

intent to make a completed gift passes an enforceable title”).

Thus, the language of § 3009(b) implies that

beneficiaries of that statute may vindicate their right to

possession in a limited cause of action for declaratory relief

or, if the owner has been fraudulently induced to pay for the

merchandise as is alleged here, restitution. See Kipperman v.
40

Acad. Life Ins. Co., 554 F.2d 377, 380 (9th Cir. 1977)

(concluding that a private right of action under § 3009 should

be limited to the extent that it does not overlap with the

Federal Trade Commission’s enforcement authority). 

Moreover, absent a contrary indication, courts should assume

that this statutory right may be litigated in federal court. 

TAMA, 444 U.S. at 19 n.8.

The structure of § 3009 also supports a private right of

action. Section 3009 is comprised of four subsections. 

Subsection (a) declares that the mailing of unordered

merchandise and related communications, as defined in

subsection (c), “constitutes an unfair method of competition

and an unfair trade practice in violation of section 45(a)(1) of

title 15 [the Federal Trade Commission Act (“FTCA”)].” 

Subsection (b) creates the property right at issue in this

litigation and requires the senders of unordered merchandise

to mark all merchandise with a message notifying the

recipients of that right. Subsection (c) prohibits senders of

unordered merchandise to “mail to any recipient of such

merchandise a bill for such merchandise or any dunning

communications.” Finally, subsection (d) defines “unordered

merchandise.” In summary, the statute defines the prohibited

activities in subsections (c) and (d), declares that those

activities are violative of the FTCA in subsection (a), and then

provides a property right for the parties impacted by the

prohibited activities in subsection (b).
41

Although subsection (a) implies that Congress intended

the Federal Trade Commission (“FTC”) to enforce those

proscriptions, there is no suggestion in the statutory language

that the beneficiaries of § 3009(b) must rely on that

overworked agency for the vindication of their distinct

property right. This analysis is congruent with the reasoning

of TAMA. In that case, the Court distinguished between §

215 of the IAA, where it implied a private right of action, and

§ 206 of that Act, where it did not. It explained that “[u]nlike

§ 215, § 206 simply proscribes certain conduct, and does not

in terms create or alter any civil liabilities.” TAMA, 444 U.S.

at 19. Of course, § 3009 does more than just proscribe

conduct undertaken by the senders of unordered merchandise;

it alters the legal obligations of the relevant parties regarding

the ownership of, and liability for, that merchandise.

Moreover, while 15 U.S.C. § 45(b) authorizes the FTC

to enjoin parties employing unfair trade practices, that

provision does not provide a method for parties harmed by

such acts to obtain relief through the FTC. In fact, although

the majority mentions that the FTCA provides for restitution

to the victims of unfair trade practices, see 15 U.S.C. §

45(a)(4)(B), that provision was not added to the FTCA until

2006, thirty-six years after § 3009 was enacted, see Pub. L.

No. 109-455, 120 Stat. 3372 (Dec. 22, 2006). Thus, a remedy

of restitution, as Wisniewski seeks under the distinct property

right created by § 3009(b), has not traditionally been within

the scope of the FTC’s enforcement power and was not within

the FTC’s power at the time § 3009 was enacted. 
42

Furthermore, parallel enforcement by the FTC and private

parties is commonly used to reduce the burden on the FTC. 

See Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1174 n.5

(11th Cir. 1985) (noting the existence of private enforcement

under the Fair Debt Collection Practices Act for actions that

are also enforced by the FTC); FTC v. TRW, Inc., 628 F.2d

207, 209 (D.C. Cir. 1980) (parallel private enforcement under

the Federal Credit Reporting Act); Stephanie Kanwit, 1 Fed.

Trade Comm’n § 1:7 (2007) (noting that “several statutes

enforced by the [FTC], such as the Truth in Lending Act,

permit private suits” and that the FTC “is increasingly

encouraging private parties to supplement its limited

resources and assist in policing the marketplace”).

I recognize, as the majority emphasizes, that the

Supreme Court has observed that the “express provision of

one method of enforcing a substantive rule suggests that

Congress intended to preclude others.” Sandoval, 532 U.S. at

290. Distinguished from the proscription in § 3009(a), the

property right created in § 3009(b) does not refer to the

FTCA, nor did the 1970 version of the FTCA provide an

enforcement mechanism for that right. Notably, the Court in

TAMA implied a private right of action, albeit limited to

rescission or restitution, despite the existence of a separate

provision of the IAA permitting the Securities and Exchange

Commission “to bring suit in a federal district court to enjoin

violations of the [IAA] or the rules promulgated under it.” 

444 U.S. at 14. The FTC’s powers were similarly limited at

the time § 3009 was enacted. Therefore, Wisniewski’s ability
43

to obtain the limited remedy of restitution is a necessary

corollary to the distinct right created by the statute.

It is important to focus on the remedy Wisniewski

seeks. He claims that, in violation of the Act, Rodale

pressured him to pay for books he contends he did not order. 

The express language of § 3009(c) provides that no mailer of

unordered merchandise “shall mail . . . a bill for such

merchandise or any dunning communication.” Wisniewski’s

right to recover the funds exacted from him in violation of

that provision would provide “specific and limited relief,” 444

U.S. at 18, comparable to the suit for rescission in TAMA.

The Postal Reorganization Act of 1970 (“PRA”)

effected a major reorganization of the federal postal service. 

See Postal Reorganization Act, Pub. L. No. 91-375, 84 Stat.

719 (Aug. 12, 1970). Section 3009 was included as part of

the newly created Chapter 30 (“Nonmailable Matter”),

positioned between the prohibition on pandering

advertisements in § 3008 and the regulations governing the

mailing of sexually oriented advertisements in § 3010. As

none of the other provisions in this chapter of Title 39 created

a property right similar to that created by § 3009, the lack of

an overarching citizen suit provision is not unexpected.
44

Rodale argued, and the District Court found

persuasive, that Congress’ explicit creation of a private right

of action in “another section of the Postal Reorganization Act

. . . strongly suggests that its failure to create this right in §

3009 was intentional.” Wisniewski v. Rodale, Inc., 406 F.

Supp. 2d 550, 557 (E.D. Pa. 2005) (citing 39 U.S.C. §

3017(e)(1)-(2)). However, § 3017 was not enacted along with

§ 3009 as part of the PRA. Rather, § 3017 was passed

twenty-nine years later, as part of the Deceptive Mail

Prevention and Enforcement Act, Pub. L. No. 106-168, 113

Stat. 1806, 1814 (Dec. 12, 1999). By 1999, the Supreme

Court’s implied private right of action jurisprudence, along

with its tendency to reject implied rights of action, was wellestablished. The fact that Congress took care to include a

private right of action in an unrelated section of Title 39 in

1999 has little bearing on Congress’ silence when it enacted §

3009 in 1970.

Thus, the text and structure of § 3009 imply that

Congress intended to create a private right of action to enforce

the property right created in § 3009(b), while the placement of

§ 3009 in the statutory scheme does not undermine that

conclusion. To the extent that legislative history may aid this

inquiry into Congressional intent, the parties concede that

there is no evidence in that history directly supporting or

opposing the existence of a private right of action. Of course,

the absence of legislative history is not unexpected in this

context and certainly does not defeat the inference created by

the text and structure of § 3009. See TAMA, 444 U.S. at 18

(“[T]he legislative history of the Act is entirely silent–a state

of affairs not surprising when it is remembered that the Act
45

concededly does not explicitly provide any private remedies

whatever.”); Cannon, 441 U.S. at 694 (“[T]he legislative

history of a statute that does not expressly create or deny a

private remedy will typically be equally silent or ambiguous

on the question.”).

Although the final two factors set forth in Cort v. Ash,

422 U.S. 66, 78 (1975), whether the right of action is

consistent with legislative purpose and appropriate under

federal law, are neither necessary nor sufficient to infer the

existence of a private right of action, they may still aid a

court’s analysis of whether Congress intended to create such a

right. See Thompson v. Thompson, 484 U.S. 174, 183

(1988); Three Rivers Ctr. for Indep. Living, Inc. v. Housing

Auth. of Pittsburgh, 382 F.3d 412, 421 (3d Cir. 2004).

Therefore, to the extent that the majority’s opinion

may be read for the proposition that Cort has no further

interpretive value following Sandoval, I disagree. In

Sandoval, the Court had no occasion to consult the remaining

Cort factors once it had concluded that the text and structure

of the relevant regulation did not imply that Congress

intended to create a private right of action. See Sandoval, 532

U.S. at 288 (finding “that we can end . . . [the] search for

Congress’s intent with the text and structure” of the statute

when those sources did not reveal any such intent). However,

where the text and structure are either ambiguous or support
 38 A cursory review of federal case law reveals that only one

other federal court has viewed the Court’s decision as creating

a distinct “Sandoval test.” That court, however, concluded that

Sandoval created a four-step test considerably different from the

two-step test discussed in the majority’s opinion. See Ruta v.

Delta Airlines, Inc., 322 F. Supp. 2d 391, 402 (S.D.N.Y. 2004).

46

the existence of a private right of action, as here, other

methods of statutory interpretation, including the Cort factors,

may continue to inform a court’s analysis. See id. at 312

(Stevens, J., dissenting) (acknowledging that Cort lays out

viable rules and strategies to aid a court’s private right of

action analysis). Thus, Sandoval did not create an exclusive

test for analyzing the existence of an implied private right of

action any more than Cannon or Thompson created a new test

upon recognizing that Congressional intent is fundamental to

this inquiry.38

As the only other court of appeals to have considered

this issue found the latter two Cort factors relevant to its

conclusion that § 3009 included a private right of action, I

address those factors briefly. Specifically, the Court of

Appeals for the Ninth Circuit found that a limited right of

action for declaratory relief and restitution, and excluding the

ability to seek injunctive relief, “would be entirely consistent

with the purpose of the statute.” Kipperman, 554 F.2d at 380. 

That court also concluded that, although “the practice with

which section 3009 is concerned traditionally has been

governed by state law . . . subjecting it to national law is
47

within the power of Congress and the limited private right we

recognize will further the purposes Congress sought to serve

by enacting the section.” Id. Therefore, the final two factors

can at least be viewed as providing some support for the

inference derived from the text and structure of § 3009 that

Congress intended to create both a right and a remedy when it

enacted the statute.

For the foregoing reasons, I would reverse the

judgment of the District Court and hold that § 3009 includes a

limited implied right of action for the restitution that

Wisniewski now seeks.