Didn't Buy It? Still Have to Pay for It!

Wisniewski v. Rodale, Inc. - Decision 12/13/07

In a ruling that undermines consumer rights, Third Circuit Judge D. Brooks Smith, appointed by President George W. Bush, has said consumers have no right to sue if they are forced to pay for merchandise they did not order.  The opinion left no recourse for petitioner David Wisniewski, who was forced to pay for unsolicited books he received in the mail.  Wisniewski paid for the books after respondent Rodale, Inc., threatened to damage his credit rating if he did not pay for the books he hadn't ordered.

Judge Smith was joined in his opinion to deny Wisniewski the right to sue by Senior Judge Weis, a Nixon-appointed judge.  Judge Sloviter, the only judge on the panel appointed by a Democratic President (Carter), provided in her dissent the only voice in support of consumers' rights.

To reach the conclusion that Wisniewski had no right to sue, Judge Smith examined the purpose of the section of the Postal Reorganization Act (PRA) that gives individuals who receive unsolicited merchandise in the mail the right to keep the goods as a "gift."  As Judge Sloviter noted in her dissent, Congress recognized that merchants might attempt to "trick or bully" the recipients into paying for the goods, just as Rodale did to Wisniewski.   Thus, said Judge Sloviter, Congress enacted the law so that recipients of such merchandise would be "free of any obligation to the sender." 

Judge Smith, however, found that just because the PRA gave consumers the right to keep unordered goods as gifts didn't mean it also allowed them to sue merchants who tried to make them pay for those goods.  Judge Smith held that Congress failed explicitly to say that the statute gave individuals the right to sue to enforce it.  According to the United States Supreme Court, when Congress doesn't mention whether a statute gives private individuals the right to sue to enforce it, a court must look to whether Congress intended for the statute to give individuals that right. 

Interpreting that test, Judge Smith decided that since Congress gave the Federal Trade Commission (FTC) the right to sue to enforce the law, but failed to mention this right for individuals, Congress must not have intended for private individuals to have that right.  Also, he continued, since Congress gave private individuals the right to sue under another section of the PRA, but not the one that protects consumers from unsolicited mailings, it must not have intended for private individuals to have that right under the latter section.  Following Judge Smith's reasoning, Congress meant to give consumers a right they couldn't enforce, and the law was meant to leave consumers with nothing more than an empty promise.

In a polite but persuasive dissent, Judge Sloviter argues that property rights without the right to enforce them are meaningless.  Judge Sloviter contends that when Congress gave consumers the right to keep unsolicited goods as gifts, Congress clearly meant to give consumers all of the property rights one usually receives with those gifts as well.  That includes the right to sue if someone forces you to pay for property you already own.

Most interesting, however, is Judge Sloviter's skepticism of the mind reading judges undertake to determine what Congress "intended" when it created a particular statute.  Judge Sloviter candidly observes that judges' supposed search for "legislative intent" is often little more than an opportunity for judges to impose their own values on federal statutes:

"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 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?"

This passage is an interesting response to conservative judges who like to say that their job is simply to apply the laws as written by Congress.  In reality, the elusive search for what Congress "intended" often turns into the judicial rationalization of what the judges themselves would have wanted Congress to intend.

And in the case of conservative judges like Judge Smith, that means innocent consumers are out of luck.