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Bench Book - 1.8 Party State, Interstate Commission, and Third-Party Enforcement Compacts

Some Compacts authorize the interstate commission to seek judicial action to enforce the Compact against a party state. Article XII.C of the ICAOS is a good example. See Interstate Comm’n for Adult Offender Supervision v. Tennessee Bd. of Prob. & Parole, No. 04-526-KSF (E.D. Ky. June 13, 2005) (permanent injunction). In general, however, claims for breach of a Compact typically involve one party state filing an action against another party state in the U.S. Supreme Court under the Court’s original jurisdiction in Article III, Section 2 of the U.S. Constitution and 28 U.S.C. § 1251(a). See, e.g., Texas v. New Mexico, 462 U.S. 554, 564 (1983). However, an interstate commission may join a party state as a plaintiff in an original jurisdiction action provided that it makes the same claims and seeks the same relief or its claims are wholly derivative of the plaintiff states’ claims. Alabama v. North Carolina, 560 U.S. 330, 352–57 (2010).

Many cases involve third parties seeking to enforce a Compact, but the issue whether a third party may enforce a Compact arises only occasionally. E.g., Medieros v. Vincent, 431 F.3d 25 (1st Cir. 2005) (commercial fisherman sought to enforce the Atlantic States Marine Fisheries Compact against a state). In some cases, courts expressly conclude that third parties may enforce the Compact. E.g., Borough of Morrisville v. Del. River Basin Comm’n, 399 F. Supp. 469, 472 n.3 (E.D. Pa. 1975) (allowing several municipalities to challenge a DRBC resolution that imposed a charge for consumptive use of water, reasoning, “to hold that the Compact is an agreement between political signatories imputing only to those signatories standing to challenge actions pursuant to it would be unduly narrow in view of the direct impact on plaintiffs and other taxpayers.”).

Two U.S. Courts of Appeals have held that there is no indication from the text and structure of the ICAOS that the Compact intended to create new individual rights. In addition, there is no basis for a private suit, whether under section 1983 or under an implied right of action to enforce the Compact. See, e.g., Doe v. Pa. Bd. of Prob. & Parole, 513 F.3d 95, 103 (3d Cir. 2008); M.F. v. N.Y. Exec. Dep’t Div. of Parole, 640 F.3d 491, 495 (2d Cir. 2011).

PRACTICE NOTE: Courts do not always analyze Compacts for implied enforcement by third parties, which suggests that parties and courts generally recognize third parties’ actions, unless there is good reason to believe that third parties may not bring actions. However, recent case law clarifies that absent language showing an intent to create individual rights such rights will not be implied.



Click terms below to reveal definitions used in this rule.

By-Laws – means those by-laws established by the Interstate Commission for Adult Offender Supervision for its governance, or for directing or controlling the Interstate Commission’s actions or conduct.