The opinion of the court was delivered by: Gerard E. Lynch, Circuit Judge:
M.F., B.C. v. N.Y. Exec. Dep't Div. of Parole
Before: 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.
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 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.
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 of supervision of adult offenders,*fn1 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 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."
Because we agree that the Compact creates no express or implied private right of action, we affirm the ...