10-2074-cv
M.F., B.C. v. N.Y. Exec. Dep’t Div. of Parole




                                     UNITED STATES COURT OF APPEALS
                                           FOR THE SECOND CIRCUIT


                                                 August Term, 2010

                            (Argued: March 10, 2011         Decided: April 11, 2011)

                                                Docket No. 10-2074-cv


                                                     M.F., B.C.,

                                                                          Plaintiffs-Appellants,

                                                       — v.—

                                 STATE OF NEW YORK EXECUTIVE DEPARTMENT
                                            DIVISION OF PAROLE,

                                                                          Defendant-Appellee.


B e f o r e:
                           B.D. PARKER, LIVINGSTON, and LYNCH, Circuit Judges.


           Plaintiff-appellant M.F. was convicted in New Jersey of endangering the welfare

of children and was placed on probation for five years, to be followed by community

supervision for life, as required by state law. He asked the New Jersey parole authorities

for permission to move to New York, where he works and where his partner, plaintiff-

appellant B.C., lives. New Jersey requested New York to assume M.F.’s supervision.

Pursuant to the Interstate Compact for Adult Offender Supervision, New York eventually
agreed to the transfer, provided that M.F. accept certain special conditions, including

notifying his employer of his conviction and his lifetime supervised release, and allowing

New York’s Division of Parole to install monitoring software on his work computer.

M.F. refused, and filed suit against the Division, arguing in relevant part that the

conditions violated the Interstate Compact because a similar sex offender convicted in

New York would not be subject to them. The district court granted summary judgment

for the Division. Because we conclude that the Interstate Compact does not create a

private right of action, we affirm the judgment of the district court.

       AFFIRMED.



                     JEFFREY G. STARK, Meyer, Suozzi, English & Klein, P.C., Garden
                     City, New York, for Plaintiffs-Appellants.

                     RICHARD O. JACKSON, Assistant Solicitor General (Barbara D.
                     Underwood, Solicitor General, Benjamin N. Gutman, Deputy
                     Solicitor General, Raffi Melkonian, Assistant Solicitor General, on
                     the brief), for ANDREW M. CUOMO, Attorney General of the State of
                     New York, for Defendant-Appellee.


GERARD E. LYNCH, Circuit Judge:

       This case requires us to interpret the little-known Interstate Compact for Adult

Offender Supervision (“the Compact”), an interstate agreement that permits the transfer

of supervision of parolees, probationers, and supervised releasees from one state to

another. Plaintiff-appellant M.F. charges that New York violated the Compact by



                                              2
imposing certain conditions on its acceptance of his transfer from New Jersey’s

supervision. Because we conclude that the Compact does not create a private right of

action, we affirm the district court’s dismissal of his complaint without reaching the

question whether New York’s actions violated the Compact.

                                    BACKGROUND

       In 2001, M.F. pleaded guilty in New Jersey Superior Court to one count of

endangering the welfare of children by using the Internet to solicit sex from underage

individuals. He was sentenced to five years’ probation and ordered to forfeit his

computer during that period. After his probation ended, moreover, he was subject to

“community supervision for life,” a mandatory provision of his sentence under state law.

That supervision carried with it certain special conditions. Among other things, M.F. was

barred from using the Internet without the permission of the New Jersey Parole Unit’s

district supervisor. If such permission was granted, he was required to allow parole

supervisors access to his computers to install monitoring equipment, at their discretion.

       In 2006, New Jersey authorized M.F. to “use a computer and access the [I]nternet

for work purposes.” That same year, M.F. requested permission to relocate from New

Jersey to New York City, where he works as a software executive, and where plaintiff-

appellant B.C., his registered domestic partner, lives and works. Pursuant to the

Compact, the congressionally authorized agreement among states governing the transfer




                                             3
of supervision of adult offenders,1 New Jersey made a transfer request on M.F.’s behalf,

asking New York to accept responsibility for supervising M.F. Defendant-appellee New

York Executive Department Division of Parole (“the Division”) eventually agreed to the

transfer, contingent on M.F.’s accepting a number of special conditions of supervision,

including a requirement that M.F. notify his employer of his 2001 conviction and his

lifetime supervision, and that he allow New York to monitor his Internet use at home and

at work.

       Concerned that the notification and monitoring requirements would cause his

employer to fire him, M.F. chose not to move to New York. In 2008, he and B.C. sued

the Division, arguing, among other things, that the special condition requiring M.F. to

notify his employer of his conviction and lifetime supervision violates the Compact

because a similar sex offender convicted in New York would not be subject to the same

special condition.

       The district court (Barbara S. Jones, Judge) rejected all of plaintiffs’ arguments

and granted the Division’s motion for summary judgment. M.F. & B.C. v. State of N.Y.

Exec. Dep’t Div. of Parole, No. 08 Civ. 1504 (S.D.N.Y. Mar. 24, 2010). Insofar as it is



       1
          The Compact is “a formal agreement between member states that seeks to
promote public safety by systematically controlling the interstate movement of certain
adult offenders.” Introduction, Interstate Commission for Adult Offender Supervision
Rules (March 1, 2011) [“ICAOS Rules”], available at http://www.interstatecompact.org
(last visited April 7, 2011). The Compact “has congressional consent under Article I,
§ 10 of the United States Constitution and pursuant to Title 4, Section 112(a) of the
United States Code.” Id.

                                             4
relevant to this appeal, the court found that the plaintiffs had shown no evidence that an

offender convicted in New York and supervised by the Division would have been treated

any differently than M.F. The court held that the Division had not violated the Compact,

but had rationally “exercised its discretion to impose an employer notification condition

to facilitate monitoring of M.F.’s workplace computer.” Id. at 8. Accordingly, the

district court dismissed the complaint.

       On appeal, M.F. and B.C. argue that summary judgment was improper because

their complaint alleged “that the conditions of supervision which the defendant . . . seeks

to impose upon plaintiff M.F. . . . are not consistent with the supervision of similar

offenders sentenced in New York,” and because “the defendant offered no evidence, and

the district court did not find, to the contrary.” Therefore, they contend, a genuine issue

of material fact exists. Additionally, at oral argument, appellants raised a new argument

that largely contradicts the arguments advanced in their briefs: that the district court

lacked jurisdiction to decide the case, and that we should remand the case and instruct the

district court to dismiss it without prejudice so that M.F. and B.C. can refile in state court.

       The Division argues that the special conditions it sought to impose on M.F. as part

of his transfer do not violate the Compact, as they are “entirely permissible and consistent

with how New York would treat an in-state sex offender.” In addition to defending its

actions on the merits, the Division argues, for the first time on appeal, that the Compact

does not confer a private right of action, and thus, since M.F. and B.C.’s complaint is

based on alleged violations of the Compact, the case “must be rejected at the threshold.”

                                               5
       Because we agree that the Compact creates no express or implied private right of

action, we affirm the judgment of the district court.

                                       DISCUSSION

I. Jurisdiction

       On appeal, appellants contend that the district court lacked jurisdiction to hear this

case, and that we should therefore vacate the judgment below and remand the case,

directing the district court to dismiss it without prejudice so that M.F. and B.C. can refile

in state court.

       Appellants’ new-found jurisdictional argument is unavailing. As appellants

themselves pointed out in their written submissions and acknowledged at oral argument,

the complaint clearly presents a federal question: whether the Division violated

enforceable rights of the plaintiffs under an interstate compact authorized by Congress

under 4 U.S.C. § 112 and by the Compact Clause of the Constitution.2 Such a compact

has the force of federal law. “[A]n interstate compact or agreement becomes federal law

if it is a congressionally sanctioned interstate compact within the meaning of the Compact

Clause of the Constitution.” NYSA-ILA Vacation & Holiday Fund v. Waterfront

Comm’n of N.Y., 732 F.2d 292, 297 (2d Cir. 1984); see also Cuyler v. Adams, 449 U.S.

433, 440 (1981) (“[W]here Congress has authorized the States to enter into a cooperative


       2
        The Compact Clause provides, in pertinent part, that “[n]o State shall, without the
Consent of Congress, . . . enter into any Agreement or Compact with another State.” U.S.
Const. art. I, § 10, cl. 3.

                                              6
agreement, and where the subject matter of that agreement is an appropriate subject for

congressional legislation, the consent of Congress transforms the States’ agreement into

federal law under the Compact Clause.”). Furthermore, the Rules governing the Compact

explicitly provide for federal judicial enforcement of the Compact in legal actions

initiated by the Interstate Commission created by the Compact.3

       Thus, there can be no question that this case arises under the laws of the United

States. See U.S. Const. art. III; 28 U.S.C. § 1331; see also Verlinden B.V. v. Cent. Bank

of Nigeria, 461 U.S. 480, 493 (1983) (a suit that “necessarily raises questions of

substantive federal law at the very outset . . . clearly ‘arises under’ federal law, as that

term is used in Article III”). The federal question at issue in this case was apparent from

M.F. and B.C.’s complaint, which alleged that “[t]he terms and conditions set forth by

[the Division] are in direct conflict with [ICAOS] Rule 4.101.” Compl. ¶ 18.4

       3
           ICAOS Rule 6.104 provides:

               The Interstate Commission may, by majority vote of the
               members, initiate legal action in the United States District
               Court for the District of Columbia or, at the discretion of the
               Interstate Commission, in the federal district where the
               Interstate Commission has its offices to enforce compliance
               with the provisions of the Compact, its duly promulgated
               rules and by-laws, against any compacting state in default. In
               the event judicial enforcement is necessary the prevailing
               party shall be awarded all costs of such litigation including
               reasonable attorneys’ fees.
       4
         It is of no consequence that the complaint erroneously alleged diversity
jurisdiction where none exists. See Compl. ¶¶ 1-3, 5. We “must liberally construe

                                               7
Accordingly, the district court had jurisdiction over the matter.

II. The Compact

       Whether the Compact or its authorizing statute creates a private right of action is a

question of first impression in this Circuit. The district court did not decide the issue, and

the Division raises it for the first time on appeal. Nevertheless, it is a “well-settled

principle[] of law” that “this Court may affirm whenever the record is sufficient to permit

its conclusions of law, regardless of whether our reasoning differs from that of the court

below.” Baker v. Latham Sparrowbush Assocs., 72 F.3d 246, 252 (2d Cir. 1995); see also

Ferran v. Town of Nassau, 471 F.3d 363, 365 (2d Cir. 2006). Here, the record is

sufficient for us to conclude that no such private right of action exists.

       Even assuming arguendo that New York had violated the Compact here, “the fact

that a federal statute has been violated and some person harmed does not automatically

give rise to a private cause of action in favor of that person.” Cannon v. Univ. of

Chicago, 441 U.S. 677, 688 (1979).5 Federal statutes can create causes of action

expressly or impliedly, although “the Supreme Court has come to view the implication of



plaintiffs’ complaint ‘to determine whether the facts set forth justify taking jurisdiction on
grounds other than those most artistically pleaded.’” Curley v. Brignoli, Curley &
Roberts Assocs., 915 F.2d 81, 84 (2d Cir. 1990), quoting N.Y. State Waterways Ass’n v.
Diamond, 469 F.2d 419, 421 (2d Cir. 1972).
       5
        Because the Compact has become federal law by reason of congressional action,
the principles governing the creation of implied rights of action by statutes apply by
analogy to the Compact.

                                               8
private remedies in regulatory statutes with increasing disfavor.” Hallwood Realty

Partners v. Gotham Partners, 286 F.3d 613, 618 (2d Cir. 2002).

       Because neither the Compact nor the federal statute that authorizes it contains an

express private right of action, we must determine whether such a right is implicit in

them. See Cort v. Ash, 422 U.S. 66, 78 (1975). We consider four factors:

              First, is the plaintiff 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?

Lindsay v. Ass’n of Prof’l Flight Attendants, 581 F.3d 47, 52 (2d Cir. 2009), quoting

Cort, 422 U.S. at 78 (internal citations and quotation marks omitted).

       Although we focus our “analysis on the single question of whether congressional

intent to create a private cause of action can be found in the relevant statute,” Hallwood

Realty Partners, 286 F.3d at 619, we may apply the four Cort factors in order “to

illuminate our analysis of congressional intent,” Lindsay, 581 F.3d at 52 n.3. Absent

evidence of such intent, the Supreme Court has directed that “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.” Alexander v. Sandoval, 532 U.S. 275, 286-

                                              9
87 (2001). To find evidence of Congress’s implied intent to create a private right of

action, we look to the “text and structure” of the statute. Id. at 288.

       Nothing in the text or structure of the Compact, or of the federal statute that

authorizes it, reveals any intent of Congress or of the compacting states to create private

rights or remedies for offenders. The Compact includes a Chapter titled “Dispute

Resolution and Interpretation of Rules,” which sets out the process for resolving “disputes

or controversies” that arise under the Compact. See ICAOS Rules 6.101-6.104. The

Chapter provides, inter alia, for the judicial enforcement of the Compact’s provisions.

See id. at Rule 6.104. However, all of the dispute-resolution mechanisms described in the

Compact, including an explicit authorization of federal court action under limited

circumstances,6 concern disputes either between compacting states or between a state and

the Interstate Commission. The Compact does not contemplate judicial action to resolve

a dispute between an offender and a compacting state. Thus, the Compact’s “text and

structure” make clear that it is solely an agreement between states, and not a source of

private rights of action for the offenders whose interstate movement it governs. See

Sandoval, 532 U.S. at 288.7


       6
           See note 3, supra.
       7
         Furthermore, although the Compact “is like a contract to the extent that it is ‘a
legal document that must be construed and applied in accordance with its terms,’” Doe v.
Pennsylvania Bd. of Prob. and Parole, 513 F.3d 95, 105 (3d Cir. 2008), quoting Texas v.
New Mexico, 482 U.S. 124, 128 (1987), we conclude, as did the Third Circuit –
interpreting the Compact’s predecessor compact – that offenders “are not beneficiaries of

                                              10
       Moreover, the four Cort factors militate against finding an implied private right of

action in this case. First, M.F. and B.C. are not members “of the class for whose especial

benefit the statute was enacted.” See Cort, 422 U.S. at 78 (internal quotation marks

omitted). The Compact is an agreement among sovereign states. It provides for requests

to be made by one state to another, for the convenience of the states themselves. “The

language of the Compact itself creates rights for the various states who are signatories to

it. It does not create rights for probationers or parolees.” Doe v. Pennsylvania Bd. of

Prob. and Parole, 513 F.3d 95, 104 (3d Cir. 2008). Second, there is no indication, in the

Compact itself or in its authorizing statute, that Congress or the compacting states

intended to create a remedy to benefit offenders like M.F. See id. at 104-05. Indeed, the

Compact does not even authorize supervisees to request a transfer on their own account.

Third, it would not be “consistent with the underlying purposes” of the Compact “to

imply such a remedy for the plaintiff,” Cort, 422 U.S. at 78, since the purpose of the

Compact is to “promote public safety by systematically controlling the interstate

movement of certain adult offenders,” and not to grant additional rights to those

offenders, see Introduction, ICAOS Rules; see also 4 U.S.C. § 112(a). Finally, to the

extent that M.F. and B.C. seek to challenge the appropriateness of conditions of


this Compact; they are merely subjects of it,” id. at 107. M.F. and B.C. cannot claim
rights under the Compact on a contract theory, since “no explicit third-party obligation
appears in the Compact and there is no compelling evidence that, by entering into the
Compact, [New York or New Jersey] implicitly intended to give legally enforceable
rights to [M.F. or B.C.].” Id.

                                             11
supervision that the Division has sought to impose on an offender, they are raising issues

“traditionally relegated to state law.” Cort, 422 U.S. at 78; see N.Y. C.P.L.R. 7801-7806

(McKinney 2008) (providing for judicial review of agency action).

       The federal statute that authorizes the Compact similarly reveals no evidence that

Congress intended to create a private right of action for offenders. The statute provides,

in pertinent part:

              The consent of Congress is hereby given to any two or more
              States to enter into agreements or compacts for cooperative
              effort and mutual assistance in the prevention of crime and in
              the enforcement of their respective criminal laws and policies,
              and to establish such agencies, joint or otherwise, as they may
              deem desirable for making effective such agreements and
              compacts.

4 U.S.C. § 112(a). This statutory language demonstrates no intent on the part of Congress

to create a private right of action. The statute does nothing more than authorize states (1)

to enter into agreements and compacts with each other for purposes of crime prevention,

and (2) to establish agencies to oversee those interstate agreements and compacts. No

“intent to create a private cause of action can be found in” 4 U.S.C. § 112(a) or in the

Interstate Compact. See Hallwood Realty Partners, 286 F.3d at 619.

       Where “Congress has manifested no intent to provide a private right of action, we

cannot create one.” Lindsay, 581 F.3d at 52. Here, neither Congress nor the compacting

states manifested any such intention. We therefore conclude that the Compact and its

authorizing statute create neither an express nor an implied federal private right of action.

                                             12
Thus, the appellants may not challenge the Division’s proposed special conditions on the

basis that those conditions violate the Compact.

                                     CONCLUSION

      For the foregoing reasons, the order of the district court is affirmed.




                                            13
