Hurley v. Bureau of Prisons ( 1995 )

October 24, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1696
EDMUND M. HURLEY,
Plaintiff, Appellant,
v.
BUREAU OF PRISONS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Torruella, Chief Judge,
Cyr and Lynch, Circuit Judges.
James P. Duggan for appellant.
John A. Capin, Assistant United States Attorney, with whom Donald
K. Stern, United States Attorney, was on brief for appellee.
Per Curiam. Edmund H. Hurley appeals a summary judg-
Per Curiam
ment order disallowing his claim for damages, attorney fees, and
costs against the Bureau of Prisons (the "Bureau") under the
Privacy Act of 1974, 5 U.S.C. 552a(e)(5), (g)(1)(C). We
affirm, substantially for the reasons relied upon by the district
court. See Hurley v. Bureau of Prisons, No. 94-10966-RCL (D.
Mass. May 18, 1995).
In July 1990, Hurley was convicted of defrauding the
United States, see 18 U.S.C. 371, and sentenced to an eight-
month term of confinement. Although the sentence exceeded the
six-month maximum, see 18 U.S.C. 3651 (repealed 1987), Hurley
did not appeal the sentence. This court affirmed his conviction
in United States v. Hurley, 957 F.2d 1 (1st Cir.), cert. denied,
113 S. Ct. 60 (1992).
Shortly after Hurley began serving his term of confine-
ment in May 1992, the Bureau noted that the eight-month sentence
exceeded the statutory maximum, whereupon it advised Hurley and
telephoned the Assistant United States Attorney ("AUSA") who had
tried the case. Although both the AUSA and Hurley's counsel
promptly moved to correct the sentence, the sentencing court
denied both motions. In addition, pending appeal of the district
court order denying Hurley's requests to correct the sentence,
the Bureau declined Hurley's request that he be allowed to serve
the last two months of his prison term in a halfway house. As
grounds therefor, the Bureau cited the PSR's description of
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Hurley's money laundering activities (i.e., in excess of $5
million), to which no objection had been asserted by Hurley.
On October 14, 1992, this court vacated the eight-month
sentence and directed Hurley's immediate release. See United
States v. Hurley, No. 92-2125 (1st Cir. Oct. 14, 1995). By that
time, however, he had already served seventeen days more than the
six-month maximum term.
Hurley sued the Bureau for damages under the Privacy
Act, which requires federal agencies "to maintain all records
which are used by the agency in making any determination about
any individual with such accuracy, relevance, timeliness, and
completeness as is reasonably necessary to assure fairness to the
individual in the determination." 5 U.S.C. 552a(e)(5). Hurley
alleged that the Bureau wrongfully relied on the district court
judgment imposing the eight-month sentence, knowing the sentence
to be "inaccurate," and that the Bureau had failed to follow its
own internal procedures for reporting illegal sentences to the
AUSA. These contentions were properly rejected by the district
court.
The district court judgment accurately reflected the
sentence imposed by the sentencing court, and the Bureau had no
obligation indeed no right to disregard the sentence until
the sentencing court or the court of appeals corrected it.
Similarly, the claimed deviation from Bureau procedures
namely, placing a telephone call to the AUSA, rather than writing
a letter was inconsequential. At most, any procedural devia-
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tion expedited the correction of Hurley's sentence, and, in all
events, it caused Hurley no injury. Indeed, Hurley concedes that
the AUSA promptly moved to correct the sentence, once notified.
No more was exigible from the Bureau.
Finally, Hurley alleged that the Bureau violated the
Privacy Act by relying on the "inaccurate" PSR description of his
money laundering activities in denying his request for a "halfway
house" placement. Hurley neither objected to the PSR before
sentencing, nor on the appeal from his conviction. See United
States v. Hurley, 957 F.2d 1, 4 (1st Cir. 1992). Any such
inaccuracy in the PSR should have been brought to the attention
of the district court at sentencing; or, at the very least, on
appeal from his conviction and sentence. See Fed. R. Crim. P.
32(c)(3)(D) (1987) (requiring sentencing court to make written
factual findings concerning any objections to PSR, and append
them to copy of PSR made available to Bureau), repromulgated at
Fed. R. Crim. 32(c)(1) (1995).
Affirmed.
Affirmed.
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