Appeal from a judgment of the United States District Court for the Southern District of New York in an action in which plaintiffs seek to assert an implied right of action pursuant to 39 U.S.C. § 3626(e)(Supp. V 1981). Henry F. Werker, Judge, granted defendants' motion to dismiss complaint for lack of subject matter jurisdiction.
McGowan,*fn* Timbers and Pierce, Circuit Judges.
This case concerns the availability of a private cause of action under 39 U.S.C. § 3626(e) (Supp. V 1981). Appellants, Muriel Siebert and Whitney North Seymour, Jr., were unsuccessful candidates for the 1982 Republican Party nomination for United States Senator from New York.*fn1 Appellees are the Conservative Party of the State of New York, its state committee and four officers thereof. Appellants sued appellees in the District Court alleging a variety of causes of action all related to the support the Conservative Party gave during the primary campaign for the Republican nomination to Florence M. Sullivan, the winner of the Republican nomination.*fn2
This case presents only a single question for resolution by this court, namely, whether a private cause of action may be implied from the terms of 39 U.S.C. § 3626 (e). We hold that it may not.
39 U.S.C. § 3626(e)(1) extends nonprofit organization postal rates (4 cents per piece) to "qualified political committees".*fn3 A qualified political committee is defined in part as "a national or State committee of a political party". 39 U.S.C. § 3626 (e)(2)(A)(Supp. V 1981). The United States Postal Service had interpreted this provision to limit the reduced rates to the Republican and Democratic Parties. This limitation, however, was declared unconstitutional. Greenberg v. Bolger, 497 F. Supp. 756 (E.D.N.Y. 1980). The Postal Service regulations now permit the national or state committees of any political party to take advantage of the special bulk mailing rates. United States Postal Service, Domestic Mail Manual ("DMM") § 623.31(1982). The campaign committees of individual candidates may not, however, use these special rates. DMM § 623.4. An organization which qualifies for the special rates may only mail its own matter at these rates. DMM § 623.51. Moreover, cooperative mailings may only be made at the special rates when each organization individually qualifies for use of the special rates. DMM § 623.52.
During the early fall of 1982, appellants and Florence Sullivan waged a hotly contested primary campaign for the Republican nomination for United States Senator from New York. The day before the primary election, appellee, the New York State Conservative Party, mailed a half million pieces of campaign literature, supporting Sullivan and attacking appellants, to a specially compiled list of Republican voters in New York State. Joint Appendix ("J.A.") at 7-8. This literature was mailed at the reduced third-class postage rate accorded to "qualified political committees" under 39 U.S.C. § 3626(e). J.A. at 14-15. The mailing conveyed the impression that it was solely attributable to the New York State Conservative Party. Id. Indeed, it specifically represented that it was paid for by appellee, the New York Conservative Party State Committee. In fact, appellees paid only $4,980 toward printing and mailing costs. J.A. at 26. Sullivan's campaign committee apparently paid for the remainder. Id. Thus, arguably, the primary eve mailing by the Conservative Party of the State of New York was ineligible for the special bulk rate provided for by 39 U.S.C. § 3626(e).
Appellants brought suit in the District Court seeking to recover their campaign expenses and to obtain an injunction which would bar appellees from using the Postal Service to support or oppose any candidate in any future Republican primary. J.A. at 11-12. The District Court dismissed the suit for lack of subject matter jurisdiction on the ground that a private citizen may not bring suit under 39 U.S.C. § 3626(e).*fn4 Siebert v. Conservative Party, 565 F. Supp. 56 (S.D.N.Y. 1983). On appeal, appellants argue that the District Court erred in application of the law of implied private causes of action.
Title 39 U.S.C. § 3626(e) does not provide an express cause of action to private citizens to enforce the statute. Appellants rely on Schiaffo v. Helstoski, 492 F.2d 413 (3d Cir. 1974), to argue that a private cause of action under Section 3626(e) should be implied because there is no other means to enforce the statute. Brief of Appellants 17. In Schiaffo a divided panel of the Third Circuit held that a private cause of action was available to a plaintiff under 39 U.S.C. §§ 3210-12 to enjoin a United States Representative from mailing campaign literature to voters under the Congressional frank privilege. The court reasoned that, because the Postal Service never attempted to enforce the statute, such causes of action must be permitted. Appellants argue by analogy that, because the Postal Service has never enforced 39 U.S.C. § 3626(e), a private cause of action should be allowed.
The District Court rejected this argument because the Schiaffo court had relied on the United States Supreme Court's decision in J. I. Case v. Borak, 377 U.S. 426, 12 L. Ed. 2d 423, 84 S. Ct. 1555 (1964). 565 F. Supp. at 58. Because subsequent Supreme Court decisions*fn5 modified Borak, the District Court felt that Schiaffo was inadequate precedent. Appellants now argue that the Supreme Court's most recent pronouncements*fn6 require a court to consider only the "contemporary legal context" in which Congress legislated in order to determine whether to imply a private cause of action. Brief of Appellants 9-13. Appellants urge that this means the District Court had to employ the analysis that the Supreme Court required in 1978 when Section 3626(e) was enacted. Id. Therefore, it is argued that because Borak was the governing law on implied private rights of action in 1978, the District Court erred in relying on post-Borak decisions. Id.
Appellants' argument is without merit. Appellant seize on language from the Supreme Court's decision in Cannon v. University of Chicago, 441 U.S. 677, 696-97, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979), to contend that the law must be frozen in time for purposes of determining whether Congress intended an implied right of action to exist. Cannon and the other cases cited by appellants merely restate the canon of statutory construction that Congress is presumed to be aware of the judicial background against which it legislates. A lower federal court, however, must employ the analysis currently required by the Supreme Court for making the determination of Congressional intent.
The Supreme Court has determined that in certain circumstances the Congressional purpose in enactment of legislation would be vitiated in the absence of private remedies. Therefore, even though a private cause of action was not expressly provided for in the legislation, such a cause of action may be implied. See Transamerica Mortgage Advisors Inc. v. Lewis, 444 U.S. 11, 62 L. Ed. 2d 146, 100 S. Ct. 242 (1979); Piper v. Chris-Craft Industries, 430 U.S. 1, 24-25, 51 L. Ed. 2d 124, 97 S. Ct. 926 (1977). A court must find, however, that Congress intended to create such a remedy. Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979). In Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), the Supreme Court set out a four-part test for ascertaining legislative intent in this respect. First, is the plaintiff one of the class for whose special benefit the statute was ...