Cochran, Larry v. Buss, Edward, Superintendent (ND Ind., Judge Sharp)
Before RIPPLE, KANNE and DIANE P. WOOD, Circuit Judges.Beach, Randall A. v. Commonwealth Edison (ND Ill.)
PER CURIAM. Larry Cochran, an Indiana state prisoner, filed a pro se petition for a writ of habeas corpus. See 28 U.S.C. § 2254. Mr. Cochran challenged a prison disciplinary sanction that he had received for physically resisting a staff member, which resulted in a one-month loss of telephone privileges and a suspended deprivation of sixty-days’ good time credit. Mr. Cochran claimed that the prison disciplinary board had denied him due process of law because it had refused his requests to continue the hearing and to present an additional witness and because it had found him guilty without sufficient evidence. The district court concluded that Mr. Cochran had failed to assert a cognizable claim under § 2254 and dismissed the petition. For the reasons set forth in this opinion, we vacate the judgment of the district court and remand the case with direction to dismiss as moot.
Before EASTERBROOK, RIPPLE, and DIANE P. WOOD, Circuit Judges.USA v. Montes, Luis (ND Ill.)
EASTERBROOK, Circuit Judge. After 31 years on the job, Randall Beach retired from Commonwealth Edison in June 1997 and moved to Idaho. He was 52 at the time. By leaving before age 55, Beach gave up entitlement to future health benefits, though he retained his vested pension. Before taking this extra-early retirement, Beach asked his supervisor, plus ComEd’s human resources staff, whether there was any immediate prospect that the firm would offer a voluntary separation package in his department, the Transmission and Distribution Organization. Beach knew that ComEd was reorganizing department by department and that it sometimes offered sweeteners, such as severance pay and health benefits, to those who agreed to depart. As Beach remembers these conversations, “everybody said absolutely it’s not going to happen. You’re not going to get the package. The company is not going to offer your department a package. It just will not happen. That was the essence of everything I got.” Six weeks after Beach’s retirement, however, ComEd did offer a separation package to 240 of the 4,700 employees in his department. Had he been employed on August 7, 1997, Beach would have been eligible for these benefits. When ComEd declined to treat him as if he had departed in August or September rather than May (when he gave notice and stopped working) or June (when he left the payroll), Beach filed this suit under the Employee Retirement Income Security Act. After a bench trial on stipulated facts, the district judge concluded that ComEd had violated its fiduciary duty to a participant in an ERISA plan by giving incorrect advice. Even though no one had intended to deceive Beach—ComEd’s senior managers did not begin to consider separation benefits for the Transmission and Distribution Organization until after Beach’s retirement, and no one in the human resources staff knew what was coming—the district judge held that ComEd must treat Beach as if he had stayed through August and qualified for all benefits then on offer. * * *[p. 8] Beach was not the victim of fraud, and ComEd did not have a duty of accurate disclosure in the period preceding the plan’s adoption. The human relations staff might have been careless, but it did not violate any duty of loyalty owed to Beach. Accordingly, the judgment of the district court is reversed.
[pp. 8-26] RIPPLE, Circuit Judge, dissenting. A single principle controls this case. “[A] fiduciary may not materially mislead those to whom the duties of loyalty and prudence described in 29 U.S.C. § 1104 are owed.” * * *
For all of these reasons, I would uphold the district court’s conclusion that ComEd violated its fiduciary obligations to Mr. Beach through its material misrepresentations. I respectfully dissent.
Before COFFEY, RIPPLE and WILLIAMS, Circuit Judges.Jet, Incorporated v. Shell Oil Company (ND Ill.)
RIPPLE, Circuit Judge. Luis Montes pleaded guilty to possessing with intent to distribute more than five kilograms of cocaine. See 21 U.S.C. § 841(a)(1). The district court sentenced him to 120 months’ imprisonment, the statutory minium under § 841(b)(1)(A), and to five years’ supervised release. Mr. Montes appeals his sentence. He submits that the court should have granted him relief from the statutory minimum sentence under the “safety valve” provision. See 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. For the reasons set forth in the following opinion, we affirm the judgment of the district court. * * *The “safety valve” provision permits a court to sentence certain first-time, non-violent drug offenders who were not organizers of criminal activity and who made a good faith effort to cooperate with the Government to a sentence under the federal guidelines instead of the applicable statutory mandatory minimum sentence. * * *
In sum, the district court did not clearly err in finding that Mr. Montes had not provided completely truthful information and, thus, did not qualify for relief from the statutory minimum sentence under § 3553(f) and U.S.S.G. § 5C1.2.
Before RIPPLE, MANION, and EVANS, Circuit Judges.Muhur, Yordanos M. v. Ashcroft, John (On Petition for Review of an Order of
MANION, Circuit Judge. Several independent franchisees of Shell-branded filling stations (“the franchisees”) alleged that Shell Oil Company, Equilon Enterprises, Incorporated, and Equiva Services, LLC, violated 15 U.S.C. § 2805(f), a provision of the Petroleum Marketing Practices Act (“PMPA”), by presenting them with a new set of franchise agreements in a “take it or leave it manner” and thus committing wrongful nonrenewal under the PMPA. The franchisees also alleged, however, that they actually had renewed their franchise agreements. The district court concluded that the PMPA does not permit claims for constructive nonrenewal and therefore dismissed the claim under Federal Rule of Civil Procedure12(b)(6). We affirm.
Before FLAUM, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.USA v. Rogers, Kelvin (SD Ill.)
POSNER, Circuit Judge. Yordanos Muhur, who succeeded in obtaining from us a reversal of her removal order and the remand of her case for asylum to the immigration service, 355 F.3d 958 (7th Cir. 2004), now seeks an award of attorneys’ fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A). The Act provides that a court shall award the “prevailing party” his attorneys’ fees and other expenses “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.”The petition presents several issues. The first is whether Muhur was a “prevailing party,” since all she got from us was a remand for reconsideration of her asylum application; we did not order that she be granted asylum. * * * [The panel rules yes.]
The next question is whether the government’s position, in defending the denial of asylum to Muhur, “was substantially justified or . . . special circumstances make an award unjust.” * * *
The last question is the amount of attorneys’ fees and court costs to which Muhur is entitled. The amounts sought, after certain adjustments properly urged by the government, are modest: $9,439 in attorneys’ fees and $459.52 in costs. However, the EAJA caps hourly rates at $125 “unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee,” 28 U.S.C. § 2412(d)(2)(A), and Muhur seeks reimbursement at rates ranging from $60 to $225 an hour. Pierce v. Underwood, 487 U.S. 552, 572 (1988), held that the statutory ceiling can be pierced for attorneys having “some distinctive knowledge or specialized skill needful for the litigation in question” and gave as examples attorneys having a practice specialty such as patent law and attorneys who use a knowledge of foreign laws or languages in their practice. * * *
[T]he cases pierce the ceiling for immigration lawyers who bring relevant expertise to a case, such as knowledge of foreign cultures or of particular, esoteric nooks and crannies of immigration law, in which such expertise is needed to give the alien a fair shot at prevailing. [cites omitted]. The immigration laws are immensely complex (perhaps second only in complexity to the law of postconviction remedies) [emphasis added] and their application often requires knowledge of foreign cultures unfamiliar to most Americans, as in this case. The top rate sought here, $225 an hour for Herbert Igbanugo, is modest by current standards of attorney compensation and the government does not object to his rate, noting the “extensive argument in support of the claimed rate” for him. It does object to the $190 an hour sought for the lawyer, Riddhi Jani, who put in the most hours on the case. We cannot find anything in the papers submitted by Muhur concerning Jani’s qualifications, experience, special knowledge, standard billing rates, or anything else that might bear on her entitlement to a fee in excess of the statutory ceiling. We shall therefore reduce her hourly fee to the ceiling. With this adjustment, the petitioner is awarded attorneys’ fees of $7,053.50 along with costs of $459.52, for a total of $7,513.02.
Before KANNE, ROVNER, and DIANE P. WOOD, Circuit Judges.Posted by Marcia Oddi at August 24, 2004 02:14 PM
DIANE P. WOOD, Circuit Judge. Kelvin Rogers believes that the district court improperly handled the question of further supervised release in connection with his second revocation proceeding. Briefly, the court took the position that it was entitled to impose a term of supervised release up to the amount that it originally imposed at Rogers’s first sentencing proceeding. Rogers argues that the court’s conclusion was wrong, and rather, that the sentence imposed at his first revocation hearing created a cap on any subsequent proceedings in his case. Complicating matters is the question whether Rogers properly objected to the district court’s action, and if not, whether he waived or forfeited this point. We conclude that Rogers did not waive the point, but that his objections were too vague properly to preserve it. Thus, he did forfeit his objection to the district court’s action, and he may argue only plain error before this court. Finding no such error, we affirm the new sentence.