Welcome to Supreme Court Brief. My name is Jimmy Hoover. I’ve been covering the court for the National Law Journal and ALM since April 2023. In this newsletter, I provide the avid SCOTUS watcher with the latest news and analysis from my vantage inside the nation’s most powerful courtroom. 

The justices return to the bench Tuesday to round out their November argument session following Veterans Day. Of the nine current members of the Supreme Court, only Justice Samuel Alito Jr.—who was a captain in the U.S. army—has any prior military service. Alito served three months of active duty in 1975 following his graduation from Yale Law School and was honorably discharged in 1980. Alito is one of 40 justices in the court’s history to have served in the armed forces.

Thanks for reading. If you'd like to get in touch with tips, feedback or general greetings, you can reach me at [email protected]. Follow me on X: @JimmyHooverDC.

Lawyers For Mexican National Cite ‘Ancient’ Rule About Filing Deadlines

In the year 321, the Roman Emperor Constantine, a converted Christian, decreed that Sunday be a day of rest for all secular business, including that of judges and craftsmen alike.

So began the early foundation of a rule that has persisted through the ages: “Deadlines falling on a Saturday, Sunday, or public holiday carry over to the next business day.”

That’s at least according to lawyers for a Mexican national seeking to reopen his removal proceedings after allegedly missing a key filing deadline that fell on a Saturday.

On Tuesday, the Supreme Court will hear an appeal from Hugo Monsalvo, who first came to the United States as a teenager before starting a family and launching a business and is now facing removal back to Mexico after over a decade in the immigration system. After he was found to be removable by an immigration judge, Monsalvo opted for the option of “voluntary departure” that allows a non-citizen to leave the country on their own and avoid the harsh penalties associated with forcible deportation. Voluntary departure also provides a 60-day window during which an immigrant can seek cancellation of removal based on discretionary issues like family hardship.

Facing a deadline of Dec. 11 2022, Monsalvo mailed his last-ditch legal filing on Dec. 10 to the BIA via FedEx. According to his lawyers, the Board of Immigration Appeals accepted them the following business day, Monday, Dec. 13. The board ultimately rejected his motion, in part on the grounds that the 60-day period had lapsed. The U.S. Court of Appeals for the Tenth Circuit agreed.

In doing so, the board and court of appeals flouted a rule that is “woven into the fabric of American common law, drawing on centuries of legal tradition to supply a default deadline-calculation rule for statutes that do not otherwise provide one,” Monsalvo’s lawyers wrote in their opening Supreme Court brief.

“English courts first fashioned this rule before the Founding, holding that deadlines landing on a dies non juridicus—a ‘non-juridical’ day—should be observed the following day,” they wrote.

The U.S. Department of Justice urged the Supreme Court to “affirm because the court of appeals correctly held that the statutory-maximum 60-day period for voluntary departure in 8 U.S.C. 1229c(b)(2) does not extend to 62 days when the 60th day is a Saturday.”

“The word ‘day’ naturally includes all Saturdays, Sundays, and holidays,” the government has argued.

Gerard J. Cedrone of Goodwin Proctor will argue for the petitioner, opposite Assistant to the U.S. Solicitor General Anthony A. Yang.

The case is Velazquez v. Garland, No. 23-929.

Supreme Court To Weigh Mob Associate's 25-Year Sentence

For the second case of the day, the Supreme Court will review a 25-year prison sentence for a New York Mafia associate in light of disagreement among lower courts as to what constitutes a "crime of violence" under the federal Armed Career Criminal Act.

Salvatore Delligatti is an alleged associate of the Genovese crime family who was indicted in 2017 on numerous criminal charges after being connected to a murder-for-hire plot.

Delligatti argues he was improperly charged with using and carrying a firearm during a crime of violence under the ACCA, which carries a mandatory minimum of five years in prison.

His lawyers say the underlying offense that prosecutors premised that charge on fails to meet the ACCA's definition for crime of violence because it did not require a bodily injury that resulted from the use, attempted use or threatened use of physical force.

Below, the U.S. Court of Appeals for the Second Circuit joined numerous other circuits in rejecting that argument, leaving the U.S. Court of Appeals for the Third Circuit alone in favor of Delligatti's position.

According to the U.S. attorney's office in Manhattan, Delligatti hired a murder crew from the Bronx to kill a local "bully" outside his Queen's home, a plot foiled by law enforcement just a few blocks away due to a police wiretap.

A jury found Delligatti guilty of racketeering conspiracy, running an illegal gambling business, conspiracy to commit murder and conspiracy to commit murder-for-hire, along with a charge of attempted murder in aid of racketeering. The jury also found Delligatti guilty of using and carrying a firearm during a crime of violence under ACCA, which was premised on the attempted-murder offense.

Delligatti was sentenced to 300 months, or 25 years, in prison. The punishment consists of concurrent 240-month, or 20-year, sentences for the other charges and a 60-month, or five-year, consecutive sentence for the ACCA charge.

Deligatti’s lawyers say the ACCA offense, 18 U.S.C. §924(c)(3)(A), cannot be predicated on a federal attempted-murder charge that itself was based on a charge of attempted second-degree murder under New York Penal Law.

Under their theory, because the state's attempted second-degree murder charge includes acts of omission, such as failing to provide necessary medical care of food to a child, that crime does not meet the ACCA's definition of crime of violence, which requires an offense to have "as an element the use, attempted use, or threatened use of physical force against the person or property of another."

"A crime that can be committed through inaction does not have 'as an element the use, attempted use, or threatened use of physical force,'" Delligatti's petition stated.

The U.S. Department of Justice's brief to the Supreme Court likened such acts of omissions to poisoning someone, which the Supreme Court said qualifies as a use of force in its 2014 United States v. Castleman decision.

"The acts of omission that petitioner suggests as forms of homicide under New York law—failing to feed or render medical treatment to another person while under a duty to do so—are materially identical to the hypothetical poison that this Court addressed in Castleman," the DOJ wrote.
“Just as poison employs 'forceful physical properties as a matter of organic chemistry,' starvation and untreated injuries employ forceful physical properties as a matter of biology."

Arnold & Porter’s Allon Kedem will represent Deligatti on Tuesday. Deputy U.S. Solicitor General Eric J. Feigin will argue on behalf of the prosecution.

The case is Deligatti v. U.S., No. 23-825.