Williams v. Reed
Oral argument transcript · No. 23-191 · October Term 2024 · argued October 7, 2024 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Adam G. Unikowsky, State Solicitor General, for the petitioner
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument first this term in Case 23-191, Williams versus Fitzgerald. Mr. Unikowsky. ORAL ARGUMENT OF ADAM G. UNIKOWSKY ON BEHALF OF THE PETITIONERS
Adam G. Unikowsky: Mr. Chief Justice, and may it please the Court: Patsy and Felder control this case. In Patsy, this Court held that a failure to exhaust was not a defense to liability under Section 1983. In this case, however, the Supreme Court of Alabama dismissed Petitioners' claims because Petitioners failed to exhaust, contradicting Patsy's holding. Felder confirms that Patsy applies in state court. This Court reasoned that the dominant characteristic of a civil rights claim is that it's judicially enforceable in the first instance, and that characteristic does not vary depending on whether the suit is filed in federal or state court. The same reasoning applies to this case. Official 1 Respondent characterizes Alabama's statute as a neutral procedural rule. But there's nothing neutral about it. A claimant has to seek relief from the Secretary before suing the Secretary. The claimant never -- the Secretary never has to seek relief from the claimant for anything and never has any reason to exhaust any remedy. Respondent also emphasizes that Alabama's law is jurisdictional. But this Court has held that a state cannot avoid preemption by defining the jurisdiction of state courts to exclude cases in which the defendant asserts an affirmative defense that this Court has held is not available. And that's exactly what happened in this case. Finally and at a minimum, the Alabama statute is preempted as applied to this case in which the Alabama Supreme Court reached the Kafkaesque conclusion that Petitioners could not challenge their inability to exhaust precisely because of their inability to exhaust. I welcome the Court's questions.
Justice Thomas: Mr. Unikowsky, would you have the same objection if Alabama required Official 1 these claims to be made in a lower state court?
Adam G. Unikowsky: No, Your Honor. I think the state is allowed to direct these claims to a -- to a court as long as there's no exhaustion requirement.
Justice Thomas: Well, what's the difference? And if it's on -- if -- if -- let's say -- and I'm just speculating -- that it required that it goes to something the equivalent of a municipal court before it -- before it goes to its trial court, how is that different from going to an agency? Isn't it a similar exhaustion problem?
Adam G. Unikowsky: I don't think so. When I think of an exhaustion requirement, I think of a requirement to seek relief from the very person you're planning to sue before suing that person. So that's how Alabama's system works. You have to seek relief from the Secretary. You file a claim with an examiner, who is -- reports to the Secretary. You appeal to an appeals tribunal, which also reports to the Secretary. So you're seeking relief from the very entity that you're ultimately going to sue. Official 1 And that's the defect the Court identified in the Felder case. I view that as different as the state setting up its judicial system to direct courts -- parties to a third-party neutral.
Chief Justice Roberts: What if instead of the -- requirement you're complaining -- the exhaustion requirement, what if the requirement were simply that parties had to go through a mediation process? I -- I think several jurisdictions have that. I mean, it may -- it may not last long, but before you can proceed with your suit, you have to sit down, and there's a mediator that sees -- tries to see if you can work it out.
Adam G. Unikowsky: So I think that sounds a little bit like the rule in Felder. So I -- I probably would say that it's preempted, but I think that would boil down to as to -- to whether it's really an exhaustion requirement. The rule I extract from -- from Patsy is that exhaustion requirements are -- are preempted. You know, I think there are some borderline cases about whether something really Official 1 qualifies as an exhaustion requirement. I -- I think that that question is not presented here because it pretty clearly is a requirement of that nature.
Chief Justice Roberts: Well, I -- I would have thought that your -- your complaint is focusing on the sort of delay, which is what the exhaustion requirement simply imposes, and if it's simply you've got -- you've got to try mediation for a while, I don't know why you would say that's also objectionable.
Adam G. Unikowsky: Well, I think it would depend on exactly what the nuts and bolts of the requirements are. I mean, if you have to present some version of a notice of claim to the state agency and then go through a mediation process, I might say that looks like the notice of claim requirement in Wisconsin. If you can sue right away and then the court just sends the parties off to mediation while the claim is pending, that doesn't sound like an exhaustion requirement at all. It is judicially enforceable in the first instance, and then the court is just applying a particular procedure to try to encourage a settlement. Official 1 So I think it would -- it would depend on how the mediation rule worked.
Justice Barrett: Mr. Unikowsky, when did the state statute of limitations start running, or has it?
Adam G. Unikowsky: So I -- I think that's an -- an unresolved question whether it would be tolled or not. I think there is some risk that it wouldn't be tolled, the state might say that, you know, it expired before you got the chance to exhaust because that would be the rule in federal court. But I don't think that the -- the -- the lower courts decided whether there would be tolling during the exhaustion process.
Justice Barrett: Has it expired for federal purposes? You know, if your -- if your plaintiffs -- if your plaintiffs -- if your clients were to file in federal court --
Adam G. Unikowsky: No, I don't think --
Justice Barrett: -- would they do so?
Adam G. Unikowsky: We're seeking forward-looking relief, injunctive relief, so we're saying there's a continuing harm. So, no, I think we could still file our -- our lawsuit in federal court. Official
Justice Barrett: And just out of curiosity, why didn't you file a lawsuit in federal court? Why did you go to state?
Adam G. Unikowsky: I -- I think we felt the state court was -- was best positioned to enter an injunction against the -- the state agency. State courts hear the overwhelming majority of unemployment insurance claims. We just felt the state court would be in the best position to enter and administer an injunction. So that's why it went to state court.
Justice Sotomayor: I'm -- I'm very confused by this system. First of all, I'm not sure what the exhaustion is. Is it just merely of the claim for benefits, or do you also have to -- it's the way I read the lower court's decision -- Supreme Court decision, which is you have to exhaust your due process claim before the agency as well.
Adam G. Unikowsky: Right. So that --
Justice Sotomayor: They said both things, not just that you have to exhaust trying to get your remedies, but you have to go to the very agency you're accusing of a due process violation to cure it, correct? Official
Adam G. Unikowsky: Correct. That was the holding as a matter of state law. We argued below that you had to exhaust your claim for benefits but not the claim that the agency was too slow. But we lost as a matter of state law on that issue.
Justice Sotomayor: All right. Just so I -- I'm clear in my own mind, I think what Justice Barrett was getting at, and I -- and I'm not sure I understand this completely, how this would work, can you go to state court? You can't go to federal court to claim a due process violation until you've -- denied the process, correct?
Adam G. Unikowsky: That's correct.
Justice Sotomayor: So, if you -- do you really have a workable alternative to go to federal court as opposed to state court?
Adam G. Unikowsky: Well --
Justice Sotomayor: You have to file with the state to claim the benefits to start with, correct?
Adam G. Unikowsky: Correct.
Justice Sotomayor: And so you have to be there. So how and when can you go to federal Official 1 court?
Adam G. Unikowsky: Well, I think --
Justice Sotomayor: That -- that's what I don't understand from the other side, but do you understand it?
Adam G. Unikowsky: I think you can go to federal court at any time, and your claim might lose on the merits if you haven't tried out the process from the state court, but you can still go. It's just the ground for dismissal wouldn't be a lack of exhaustion.
Justice Gorsuch: It might be a lack of ripeness perhaps, though?
Adam G. Unikowsky: Right. The -- in principle, a federal court could dismiss for lack of ripeness, yes, but it just wouldn't be an exhaustion dismissal.
Justice Gorsuch: What's --
Justice Sotomayor: So -- so you're really stuck in a state process with a loop that you can't get out of?
Adam G. Unikowsky: Well -- our view is that if we went to federal court in this case, this -- the federal court would not dismiss for lack of exhaustion under Patsy and would -- it Official 1 would entertain our due process claims on the merits.
Justice Gorsuch: Did you try a futility exception argument?
Adam G. Unikowsky: I don't -- no, I don't think we -- we made that argument below.
Justice Gorsuch: Do you -- do you have any reason to believe that Alabama doesn't recognize a futility exception requirement?
Adam G. Unikowsky: Well, I -- I mean, we argued below that it would be absurd. In our brief --
Justice Gorsuch: Yeah.
Adam G. Unikowsky: -- we argued it would be absurd to --
Justice Gorsuch: You argued it would be absurd and Catch 22 and --
Adam G. Unikowsky: Right.
Justice Gorsuch: -- Heller was trotted out. And we -- we hear that from time to time, but that's what a futility exception exists to -- to address. And I'm just curious whether you know whether Alabama law permits a futility argument, and -- and -- and you're saying, as I understand it, that none was attempted here in Official 1 any event?
Adam G. Unikowsky: So I don't know the answer to the question. Alabama does say this is a jurisdictional limitation, which implies to me that there aren't equitable exceptions like futility, but I -- I'm not sure.
Justice Gorsuch: You don't know?
Adam G. Unikowsky: I don't know.
Justice Gorsuch: Okay. And then, if -- if one were challenging a benefits decision by the federal -- by the federal government, there -- there's almost assuredly going to be an exhaustion requirement, Social Security disability benefits or whatever, in -- in federal court, and I'm just curious what you might say about the incongruity of refusing to allow a state to have a similar exhaustion requirement that the federal government imposes on Americans.
Adam G. Unikowsky: Well, I don't think it's incongruous at all because I think the practical effect of our rule is that most claims would be dismissed in state court if you're just seeking benefits for -- for lack of merit because you've gotten enough process. Official 1 In other words, if you -- if you just file a claim in a state agency saying, I want benefits, and then you get a bad decision from the hearing examiner, and then you just go straight to federal court and say, well, that was a due process violation, I didn't get a good hearing before the examiner, you would lose in federal court. The federal court would say there's no due process violation. You have plenty of process in --
Justice Gorsuch: No, I -- I --
Adam G. Unikowsky: -- the state court.
Justice Gorsuch: -- understand that. I think we're speaking past each other. So you -- you're -- you're saying that Alabama can't have an exhaustion requirement, correct?
Adam G. Unikowsky: Only as applied to Section 1983 claims.
Justice Gorsuch: Right. Yeah. Yeah. Right. Okay. But, if I were to challenge my federal disability benefit claim, identical claim, just against a different government, here, instead of the state, the federal government, you'd almost Official 1 assuredly have to exhaust your administrative remedies before you could challenge that decision, and I'm -- I'm just curious how you reconcile that fact with -- with the relief you seek here.
Adam G. Unikowsky: So I'm actually not sure that's the case if it's the type of claim we're asserting here. Like, suppose you filed a Social Security claim and it was stuck in the agency for five, 10, 15 years.
Justice Gorsuch: You'd have a futility argument for sure.
Adam G. Unikowsky: Yeah. I think you'd be able to go to federal court.
Justice Gorsuch: Yeah.
Adam G. Unikowsky: That's right.
Justice Gorsuch: Right. But, otherwise, you'd have to exhaust, right?
Adam G. Unikowsky: Right, unless --
Justice Gorsuch: And that's what I'm getting at, okay? So, on the federal system, you have an exhaustion requirement with a futility exception. Assuming Alabama recognizes a futility exception -- and I'll have that Official 1 question for counsel, I've done a little research on it, it seems to have one -- why -- why shouldn't the state be allowed to have the exact parallel situation that you'd have on the federal system?
Adam G. Unikowsky: I guess I think that argument is incompatible with -- with the Felder case. I mean, look at all the reasoning of the Felder case. I think it would rebut that -- that suggestion. I mean, the Court held that it's -- the state is not permitted to put that type of barrier in front of the vindication of the full right.
Justice Kavanaugh: What -- what does Felder -- because that is the linchpin of your argument, is that we've already decided this. So what does -- what kind of state procedural rules or rules does Felder still leave, and how would you define the scope of that?
Adam G. Unikowsky: So Felder left two categories of rules that the State could apply in its own courts. One are neutral procedural rules. So it gave the example of rules governing substitution of parties and service of process, Official 1 rules that don't just apply to plaintiffs who sue governmental defendants. And then the second category was certain jurisdictional rules. And Haywood elaborated on this. The Court said that jurisdictional rules that reflect concerns over competence over the subject matter and the power over the person, that jurisdictional rules are designed to protect. So, you know, examples of such rules would be like in the -- the Herb case, a jurisdictional rule that a territory -- a city court can only hear cases arising from its territorial limits. The Court upheld such a rule. Or a case saying that the state won't exercise jurisdiction over out-of-state defendants if it's an out-of-state plaintiff. The Court upheld such a rule in the Douglas case from 1929. So those are the types of jurisdictional rules --
Justice Kavanaugh: Do you --
Adam G. Unikowsky: -- that would --
Justice Kavanaugh: -- and do you view Felder as a preemption decision then? Official
Adam G. Unikowsky: Yes, I view Felder as a preemption decision.
Justice Kavanaugh: And what -- on what basis was the preemption?
Adam G. Unikowsky: So the Court talked about purposes and objectives preemption in its opinion. And we actually have no problem with that. We agree with all of its analysis. I actually think there would be a -- there's a straighter path to the result in Felder. I just think there's a -- a direct conflict because, when the Court helds -- holds that an affirmative defense is not available, it just means it's not available, regardless of whether the adjudicator is a federal or state judge. So I view sort of direct -- I view Felder as a direct conflict preemption case. The Court did couch it in -- in purposes and objectives language, possibly because, in that case, it actually wasn't clear whether it was an exhaustion requirement at all. Unlike typical exhaustion requirements, you don't have to wait to the agency to rule. And so one of Wisconsin's Official 1 arguments in that case was this isn't exhaustion like in Patsy. I think that's why the Court walked through all of the -- the reasons that the statute conflicted with, you know, the purpose of Congress. And then it said, well, actually, we think it is an exhaustion requirement, and then Patsy's reasoning just -- just follows.
Justice Jackson: What -- what I guess I'm confused about -- from your answer to Justice Kavanaugh is how the jurisdictional and neutral requirements relate to the -- the analysis in Felder. I mean, Felder's rule about whether or not it was preempted didn't seem to have anything to do with whether the rule was jurisdictional or neutral. So why do you suggest that that's somehow a way to get out of Felder's analysis about preemption?
Adam G. Unikowsky: You know well, I think -- so Felder specifically said the rule in that case wasn't neutral. So the Court has this whole discussion about how -- you know, it only applies to -- to plaintiffs who sue the Official 1 government. And so that's -- that's not neutral as the Court --
Justice Jackson: Yeah, but that's not what --
Adam G. Unikowsky: -- understood the question.
Justice Jackson: I mean, I'm looking at the analysis in Felder and it -- as you said subsequently, it's a direct preemption case. It says that the notice of claim statute undermines the uniquely federal remedy that is Section 1983 in several interrelated ways. And then it talks about three ways, one of which is that it conditions the right of recovery that Congress has authorized. The second is that it discriminates against the federal right. And the third is that it -- it looks like an exhaustion requirement, all right?
Adam G. Unikowsky: Mm-hmm.
Justice Jackson: But, really, the reason it's preempted is because it undermines the federal right. And it seems to me that Alabama's law is doing all of those three interrelated things. So I don't understand why we care whether or not it's jurisdictional or Official 1 whether or not it's neutral in -- in any given sense. It's doing what Felder says you can't do because it undermines the federal right.
Adam G. Unikowsky: So I agree the Court doesn't have to care about any of that stuff. In fact, there is language in Felder that says that even if a rule is neutral and procedural, it still -- if, you know, it -- it -- it -- if it undermines a federal right, it's still preempted. And we'd be perfectly fine if the Court went in that direction.
Justice Alito: Well --
Adam G. Unikowsky: I -- I don't think it's neutral and procedural, but -- I'm sorry, Your Honor.
Justice Alito: Well, do you contest the principle that state courts are generally completely free to define the jurisdiction of their courts?
Adam G. Unikowsky: No, I don't contest that general principle.
Justice Alito: But there are some exceptions, right?
Adam G. Unikowsky: Yes.
Justice Alito: So why isn't that body Official 1 of case law the appropriate body of case law to apply here since the Alabama Supreme Court tells us that this rule is jurisdictional? We assume -- presumably have to accept that. This is a matter of state court jurisdiction. So why don't we look to the body of case law that explains when this general rule that the state courts can define the jurisdiction of their own courts gives way? I know you want to talk about Patsy and Felder, but why is that -- neither of those involves jurisdiction.
Adam G. Unikowsky: That's right. So this Court has upheld some jurisdictional rules and struck down others, and we're happy to talk about those cases. So, in Howlett and most recently in Haywood, this Court held that jurisdictional rules were preempted, and in both those cases, the -- the rule of decision was that the state courts in general hear 1983 claims and the state courts sometimes hear claims against these particular defendants, and so the state cannot avoid preemption just by defining the jurisdiction of the state courts to exclude Official 1 cases where this defense is asserted. And, in fact, in the Howlett case, there's actually this language that says that Felder would not have come out the other way if Wisconsin had said that state courts lack jurisdiction over claims in which the notice of claim requirement wasn't satisfied.
Justice Alito: Well, in Haywood, the courts -- the Court concluded that the New York rule evinced hostility toward 1983. Can that be said here, when the Alabama courts will entertain the 1983 claim, it's just a question of when they will do it?
Adam G. Unikowsky: Well, I think that you would -- I mean, "hostility" is too strong a word. But I think the State has a policy disagreement with Congress over the merit of hearing unexhausted claims. Respondent's brief emphasizes that Alabama made the policy judgment that exhaustion is a good idea, it really helps the claimant. And that's the policy judgment that is inconsistent with the policy judgment that Congress made when it enacted Section 1983 without an exhaustion requirement. Official
Justice Kagan: You have a -- a broad argument, Mr. Unikowsky, that if it's an exhaustion requirement, it -- it -- it can't get in the way of a lawsuit. You also have a narrower argument that has to do with this case. But what would be -- if you had to define a narrower class of cases that are preempted so that if we wanted to avoid the question of whether all preemption -- excuse me, whether all exhaustion requirements were preempted, what would that narrower class of cases look like, and what justifies the parameters?
Adam G. Unikowsky: So I think the Court could say that it's not going to rule on whether all exhaustion requirements are preempted, but it's going to say that this particular statute is preempted as applied to all 1983 claims. And that holding would avoid looking at the facts of this particular case. And I think the Court could reach that conclusion by comparing the time limits here to the time limits in Felder. So, in Felder, the Court held that the statute undermines Section 1983 because the claimant only had 120 days to Official 1 bring the suit, and, therefore, the practical effect of the notice of claim statute was to immunize the state against many types of 1983 claims. And so I think, you know, this case, the time limits are actually much shorter. It's -- it's seven days from receipt or 15 days from mailing of a decision to file an internal appeal to the appeals tribunal. It's also 15 days to go to the board of appeals. One of the Petitioners in this case alleges that he couldn't appeal because that entire period came and went when he was in the hospital on a ventilator because of COVID. So I think that the Court can hold that this particular statute has the same type of adverse effects on claimants as --
Justice Kagan: Just -- so it would be a line about the degree of burden that's attached to the 1983 right?
Adam G. Unikowsky: That -- that's right. It could -- it could go in that direction because that was part of Felder's reasoning, and so I think the Court can incorporate that.
Justice Kagan: I mean, it was part of Official 1 Felder's reasoning. Felder has this -- some language that suggests a very broad rule applying to all exhaustion requirements, but then it also goes into the time limits. It has a lot to do with, like, how much burden there is on the 1983 right, and it also discusses the purposes of the statute and whether those purposes suggest a conflict with the policy of 1983. And the relationship between or among all of those things is not particularly clear from the language of the opinion. It sort of suggests that they don't really believe that there's a absolute bar when it comes to exhaustion requirements. Do you agree with that? Do you have any, you know, views about the relationship among those three aspects of the Court's reasoning?
Adam G. Unikowsky: Yeah, I -- I'm not sure I agree with that because I think the reason there were so many different arguments in Felder was that it wasn't really clear that was an exhaustion requirement in the typical way of you file your claim to the agency, you wait for Official 1 a couple years, you're trapped in purgatory, and then you leave the agency, right? Because it was just a notice of claim requirement, you just submit your claim, and if you wait a particular period and they haven't answered, you get to sue. And, in fact, in -- in -- in the part of the opinion talking about exhaustion and -- and -- and Patsy, the Court says, well, you know, the state says it's de minimis, implying that, you know, maybe some exhaustion requirements fall under Patsy, but this just isn't one. And the Court says no, no, no, this really looks like an exhaustion requirement. But, because of that dispute, I think the Court felt the need to go through, you know, all of the other doctrinal machinery. I think this exhaustion requirement is exactly like the ones in Patsy. It's an absolutely classic exhaustion requirement. You go to the agency. You have to wait for it to rule. As this case illustrates, you might have to wait for several years before getting a chance to go to court. And so I think Patsy's reasoning that this is just not an affirmative Official 1 defense to a Section 1983 -- claim carries over to this case.
Justice Barrett: Mr. Unikowsky, how -- you know, we've said in our own contexts about jurisdiction it's a term of many, many meanings, too many. How are we supposed to -- like, let's say I agree with you that the definition of jurisdiction has to be a federal one. How are we supposed to decide? Because a different test does apply, right, if this is a jurisdictional requirement than if it's just a straight-up, you know, more Felder-like scheme. So what is the test? How do we decide if a state rule is really jurisdictional or not?
Adam G. Unikowsky: So the -- the words of this Court's cases, which I'm sure Your Honor knows very well, is that it's really jurisdictional if it -- reflects concerns over the power over the person or competence over the subject matter that jurisdictional rules are designed to protect.
Justice Barrett: Mm-hmm.
Adam G. Unikowsky: I certainly understand Official 1 that that formulation will not resolve any or even many cases, but I think that just looking at how the Courts in Howlett and Haywood reached their conclusions -- so, in both cases, the Court held that, number one, the state courts have general jurisdiction over 1983 claims.
Justice Barrett: Mm-hmm.
Adam G. Unikowsky: Number two, the state courts in general had authority over these defendants as long as certain other, you know, conditions were satisfied. So, for example, you -- in Haywood, the Court emphasizes that you can get injunctive relief against these defendants. And so the Court said, well, if there's power over 1983 claims in general, power over these defendants in general, the rule is not a bona fide jurisdictional rule. I think that that's the -- the reasoning in those cases. And, again, carried over to this case, I think you'd have the same reasoning. Alabama courts generally have jurisdiction over Section 1983 claims. There is jurisdiction over this defendant as long as the claim is exhausted. There's claim -- jurisdiction over unexhausted claims when there Official 1 is no exhaustion requirement in the particular scheme. All that's happening here is that the state is cutting out from jurisdiction claims in which the -- the -- the defendant has this particular affirmative defense, even though this Court has held that that's not a defense under Section 1983. And so I don't think the Court really has to elaborate the exact lines here. Its -- its lines are a little bit blurry, but I think that, you know, as applied to these particular facts, you can just --
Justice Barrett: It's like a claims processing rule --
Adam G. Unikowsky: Right. Exactly.
Justice Barrett: -- rather than a jurisdictional rule?
Adam G. Unikowsky: Exactly. So, I mean, you know, I think there's going to be a lot of borderline cases, but I don't think this is -- this is one.
Justice Alito: I --
Justice Barrett: And let me just ask you one question about how this scheme works Official 1 because I agree it's very odd. Is there some mechanism when you're before this intermediate tribunal where you actually fill out a piece of paper and say, I'm asserting a due process claim in addition to my claim for benefits? How would one even exhaust the due process portion of this?
Adam G. Unikowsky: So I've been wondering that too. I mean, maybe you can just go back right now to the appeals tribunal and, like, file, like, a 28(j) letter saying, hey, enough time has passed; you know, there's a due process violation. I don't -- I don't know if there's any procedural mechanism to do that that I'm aware of, but that does seem to be what the state court is requiring here.
Justice Alito: I -- I came into this case thinking that perhaps there wasn't a great deal at stake since a plaintiff like your plaintiffs could always file in federal court and avoid the exhaustion requirement by doing that. But what you just said in response to Justice Barrett makes me think that this could be much more important because, if we are going Official 1 to read into the general rule that state courts can define their jurisdiction, what we have done in determining whether federal statutes are jurisdictional, which is pretty much to say, boy, it's really hard for us to conclude that anything is jurisdictional, then you are really asking for a significant weakening of this general rule which has been a -- a -- a landmark rule for hundreds of years.
Adam G. Unikowsky: So I'm not sure the Court should engage in the sort of statutory interpretation of state statutes that it would engage in for federal statutes. That's not the rule we're asking for, all right? We're not quarreling with the state court that, as a matter of state law, this is a jurisdictional statute.
Justice Alito: Okay. Fine. All right.
Adam G. Unikowsky: Okay? What we're just saying is it's -- not all jurisdictional rules are created alike for purposes of federal law, and that distinction might sort of match the jurisdictional versus claim processing type of distinction that this Court has articulated -- Official
Justice Alito: Okay.
Adam G. Unikowsky: -- in federal cases.
Justice Jackson: And are you saying that, assuming this is a state jurisdictional rule, it cannot or can be preempted? What is -- I -- I thought this case was about preemption, not about the characterization of the state law. So, if we agree and assume that the state law is jurisdictional, what implication for whether or not it can be preempted by federal law?
Adam G. Unikowsky: In -- in this case, I think there's no implications. It's preempted regardless of whether it's jurisdictional.
Justice Jackson: Why?
Adam G. Unikowsky: Because this Court has held as far back as, like, the Mondou case in 1912 that a state court cannot decline jurisdiction over a federal claim because of a disagreement with -- with the federal policy allowing the claim to proceed. And I think that's what's happening in this case. Alabama has the view that exhaustion is a good idea, and it has imposed that by statute. But Congress has decided that that's Official 1 not the case, that you should be able to bring 1983 claims without having to exhaust. And so the rule --
Justice Jackson: And so it's a Supremacy Clause issue in terms of whether or not that has to be the outcome?
Adam G. Unikowsky: Yeah. I think the rule of decision applied by the state court in this case is inconsistent with the rule of decision that Section 1983 requires the state court to adopt. So I think there's just direct preemption in that way. We're not disagreeing with the purpose and objectives analysis in Felder. We agree with that too. But I think there's an even more straightforward way to get to the same outcome.
Justice Kavanaugh: Put aside Felder. What is the problem with just going to federal court?
Adam G. Unikowsky: Well, we could have gone to federal court, but there's a lot of cases from this Court. I won't mention Felder, but there's a lot of other cases --
Justice Kavanaugh: Well, what is the real-world problem with just going to federal Official 1 court? Or maybe there aren't any and you're just saying precedent says we can go to state court. But do you have any real-world problems with just going to federal court?
Adam G. Unikowsky: Yeah, I think there's a lot of reasons that you would want to go to state court. So, first of all, the -- the Pennhurst doctrine sometimes prohibits plaintiffs from bringing state law claims in federal court. Federal courts also often talk -- have abstention doctrines that prohibit bringing the claim in federal court. There's a -- there's a brief from two religious freedom organizations that talks about the abstention doctrines in some detail. Also, there's practical concerns. Like, in some cases, lawyers would just be more familiar with the local state court. The vast majority of unemployment insurance litigation in Alabama happens in state court. And so, if a lawyer may be more familiar with that tribunal, they may spend their entire career practicing in state court, and if they have a civil rights claim from a claimant, then it makes sense for them to go to state court. Official
Justice Kavanaugh: And you mentioned this earlier, but a procedural due process claim usually requires that you go through the state processes first. Maybe that's how this case got on the -- on the wrong track. Do you agree with that?
Adam G. Unikowsky: In general, yes. I think that if you went to federal court and asserted your due process claim without exhausting, you'd usually lose, except in an unusual case like this, where you're actually challenging the inability to exhaust.
Chief Justice Roberts: Thank you, counsel. I -- I want to make sure I have your complete answer to the line of questioning I -- I understood Justice Kagan to be pursuing, I mean -- and I think why you called this Kafkaesque, which is because you're being told you have to go to the state -- your -- your claim is the state doesn't handle these things in a timely fashion, they lose the papers, you can't answer the phone, so why send them back? If you have to go back there, that's -- your whole point is you -- you -- you can't go back Official 1 there because they do such a -- that's what you're challenging. And I just want to make sure whether -- if you had the most efficient state procedure imaginable, you know, they answer the phone on the first ring and -- and -- they quickly give you a decision, would your argument be the same, that it doesn't matter?
Adam G. Unikowsky: It -- it would be the same. We would definitely lose in that scenario, but it would be the same argument, that you wouldn't have to exhaust. So, if such a claim was filed --
Chief Justice Roberts: You would -- I'm just -- you would lose? In other words --
Adam G. Unikowsky: On the merits. On the merits, we would lose.
Chief Justice Roberts: You would not -- then the ruling would be you do not -- you -- you do -- you do have to go to the state before pursuing your 1983 action?
Adam G. Unikowsky: We don't think that --
Chief Justice Roberts: I mean the state agency.
Adam G. Unikowsky: So we don't think Official 1 there should ever be an exhaustion requirement. If you filed a suit in federal court and said, you know, even though they answered on the first ring, they should have been even faster, there wouldn't be an exhaustion problem. This -- the federal court would just say there's no due process violation. It's a great state agency. It's very effective. And we just want the state court to apply the same rule of decision, right? You don't have to exhaust, but your claim loses because you're getting plenty of process and there's no problem with the process.
Chief Justice Roberts: Okay. Well, then what was Kafkaesque about the process? I understood you to say that that was the problem, that it was -- it imposed a burden on your -- the exercise of your -- your federal right.
Adam G. Unikowsky: No. What was Kafkaesque is the ruling that we couldn't challenge our inability to exhaust precisely because we haven't exhausted. That -- that -- that was the problem. Like, our -- the problem was we can't exhaust effectively, and the state court held Official 1 that because you didn't exhaust --
Chief Justice Roberts: Well, but what if you can --
Adam G. Unikowsky: -- you can't challenge that.
Chief Justice Roberts: -- what if you can exhaust effectively?
Adam G. Unikowsky: Well, then you wouldn't have a -- a claim. I mean, I -- the problem is, as applied to this fact pattern, I think it doesn't make sense to apply an exhaustion requirement, and that's why we think that, as applied, effectively, what the statute is doing is granting the state immunity in the state courts from this.
Chief Justice Roberts: Okay. My last question: You say "as applied to this fact pattern."
Adam G. Unikowsky: Yes.
Chief Justice Roberts: So tell me what the particulars of this fact pattern are that may not be the case in other situations.
Adam G. Unikowsky: The particulars of this fact pattern is when the Petitioners are Official 1 challenging their failure to exhaust and they're told that they can't challenge their failure to exhaust until they have, in fact, exhausted. The problem with that is that as a practical matter, you're immunizing the state in the state court from the 1983 claim because you can't exhaust. So you're incapable of challenging your inability to exhaust because the state is saying you have to exhaust until you can bring the challenge. So there's no way to challenge in state court at all, and so it's a de facto immunity akin to the immunities that were in the Haywood and -- and the Howlett case. So that's our -- our narrowest argument on this.
Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito?
Justice Alito: Could you have sought mandamus in state court to get a ruling in these cases?
Adam G. Unikowsky: So --
Justice Alito: An administrative ruling in these cases? Official
Adam G. Unikowsky: So there's a dictum that is cited by a respondent from a 1997 intermediate appellate court case that says that, in principle, mandamus could be available if an agency intentionally sits on a claim and drags its feet, but no mandamus claim was asserted there. I -- I think mandamus wouldn't be very effective in this case for a few reasons. So, first of all, of course, you have to show a clear and indisputable right to the writ, which is a higher standard than in an ordinary civil case. Also, you wouldn't -- the only thing the state court could do is tell the state agency to rule. It couldn't enter the other remedies that -- that we're seeking in this case. Mandamus is also a discretionary remedy, and so I just don't think it's an effective substitute for the 1983 claims we're asserting today.
Justice Alito: What if a state has a -- a regime under which the -- the -- the person seeking the benefits first has to file the claim and then there -- there's a -- there Official 1 are two levels of -- of appellate review, administrative review, and after -- I assume that you would admit that if the case were filed in federal court, the -- the person would have to seek the benefits in the first instance, right?
Adam G. Unikowsky: Yes. They wouldn't have to -- it wouldn't be an exhaustion problem under Patsy.
Justice Alito: No. Okay.
Adam G. Unikowsky: They'd have to seek the benefits because there's no violation if you haven't tried the benefits.
Justice Alito: All right. And then the -- then the -- the person says, oh, this process is too long, I -- I want a quick decision, they denied my claim. Then what?
Adam G. Unikowsky: So --
Justice Alito: It's a violation of my due process rights because this is more elaborate than it needs to be.
Adam G. Unikowsky: So, if your claim was denied --
Justice Alito: Right.
Adam G. Unikowsky: -- you can go to Official 1 federal court and you can file your claim and you can say there was a due process violation, and the court would adjudicate that. If you jumped the gun and didn't wait for all the process to wrap up, then probably the federal court would say that there's no due process problem. The state's given you plenty of process. And we'd want the state court to reach the same ruling. And if that's not the case, if you were collaterally attacking the state court administrative process and you finished it and there was still a due process violation, then maybe you'd win in federal court. And if you'd win in federal court, you should win in state court too. We're just asking to align the rules.
Justice Alito: Thank you.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: Counsel, I -- you say this is not a neutral rule because, in every other case where there's a due process violation of an agent -- of an agency's process in some way, people can go directly to state court, Official 1 correct?
Adam G. Unikowsky: That -- that's one reason it's not neutral. Another reason is Felder's reason, which is that it only applies to plaintiffs who sue the government.
Justice Sotomayor: Plaintiffs who sue the government but for this particular type of benefit?
Adam G. Unikowsky: Right.
Justice Sotomayor: So it is sui generis to just one class of plaintiffs on one potential constitutional violation?
Adam G. Unikowsky: That's right.
Justice Sotomayor: Or take --
Adam G. Unikowsky: It does apply to -- I -- it does apply to state law claims. I acknowledge that. But it's not neutral in the sense that it doesn't apply in private tort litigation. It doesn't apply to other lawsuits against the government.
Justice Sotomayor: I -- I guess I'm having trouble with the jurisdictional argument that my colleagues are concerned about. This is not jurisdictional in the sense of we're telling state courts that they Official 1 can't hear a claim, correct?
Adam G. Unikowsky: That -- that -- I agree with that, Your Honor.
Justice Sotomayor: All right. We're not saying this is a federal claim, so it has to go to federal court. We're saying, no, you state courts have the power to hear constitutional -- 1983 constitutional claims. That your legislature permits you to do. So it's not as if they're -- filed a neutral rule that says you can't hear 1983 claims, correct?
Adam G. Unikowsky: Mm-hmm. I agree, Your Honor.
Justice Sotomayor: And so all we're saying is you, state courts, should decide in the first instance whether there is a due process violation, correct?
Adam G. Unikowsky: That's correct. We're not saying in this Court that we necessarily deserve to win. We just want a chance to be heard.
Justice Sotomayor: Thank you.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: In the colloquy that Official 1 you had with the Chief Justice, you started with the broad form of your argument and ended up with a narrower form, a much narrower form. In the delta between the two, it seems to me you're going to lose on the merits anyway. In other words, if somebody goes in and says, I got $100, I really deserve $200, they didn't listen to a certain category of evidence, that's a due process violation. You know -- you've not made the argument, they're just going to throw you out, whether it's -- you call it on the merits or for -- for -- because your claim isn't ripe. So why should we go to the broad form of the argument when nobody's going to win in that category of cases anyhow?
Adam G. Unikowsky: I -- I guess I just think that's the cleanest reading of Felder. I mean, Felder has a lots of different rationales, and I think all those rationales apply to exhaustion requirements in general. Or, even more narrowly, all those rationales apply to this statute whenever it's applied. So the Court could go narrow. I just -- I just don't see a way of distinguishing Official 1 Felder from any other case in which the exhaustion requirement is invoked. But, you know, if the Court rules in our favor narrowly, obviously, that's -- that's fine from our perspective.
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: This new narrow theory, what -- what -- what exactly does it encompass? What class of cases?
Adam G. Unikowsky: So the narrowest argument that I've articulated is, when there's a de facto immunity from the application of the rule, then there's a preemption problem.
Justice Gorsuch: When it's impossible to exhaust? Is that -- is that another way of saying it?
Adam G. Unikowsky: Well, when the very thing you're challenging is your failure to exhaust, then the state can't say you -- you failed to exhaust because, once you've exhausted, then your -- then your claim goes away because you -- you've exhausted and it becomes moot at that point. Official 1 So, essentially, you're immunizing the state from these claims that there's a due process violation in connection with the exhaustion procedure.
Justice Gorsuch: I -- I'm not sure I've got it, but let me try. That it's impossible to bring your claim?
Adam G. Unikowsky: Yeah. I think, applying this rule, it's impossible to challenge the exhaustion requirement in a state court, yes.
Justice Gorsuch: Okay. And what if it's not impossible here because of mandamus, because you might have a futility argument? We just don't know. Then what?
Adam G. Unikowsky: So I -- I don't think Respondent has argued in favor of futility argument.
Justice Gorsuch: Well, I think all of this is kind of new, to be honest with you, this -- this narrow theory. I -- I read your brief as pressing the broad theory, but here we are. Let -- let's say we just don't know whether it is truly impossible here. What do we do then? Official
Adam G. Unikowsky: Well, I -- even if it's not truly --
Justice Gorsuch: Putting aside your broad theory.
Adam G. Unikowsky: No, I understand, Your Honor. Even if it's not truly impossible, I still think that at least it's -- it -- it puts a condition, a significant condition in front of the vindication of the claim that's no less significant than the condition in -- in the Felder case.
Justice Gorsuch: What if they're the same sorts of conditions that exist in the federal administrative realm? When we're dealing with a federal benefit and an agency doesn't rule, I'd make a futility argument and I'd maybe mandamus the agency.
Adam G. Unikowsky: I guess I think nine -- Section 1983 is a special statute. This Court held --
Justice Gorsuch: Okay.
Adam G. Unikowsky: -- in Patsy that there's no exhaustion requirement. There's immediate access to a judicial forum. So I just Official 1 think that's different from the mine-run case in which you're challenging a decision from the Social Security agency.
Justice Gorsuch: Thank you.
Chief Justice Roberts: Justice Kavanaugh? Justice Barrett?
Justice Barrett: I just want to clarify your answer to Justice Gorsuch. He asked you to stick to the narrow theory, but to answer, you reverted to the broad one, that Patsy just precludes exhaustion requirements generally. If we do not agree with your reading of Patsy, can you articulate -- try one more time to articulate that narrow theory that doesn't rely on Patsy?
Adam G. Unikowsky: Sure. I would say that there is a significant barrier to the vindication of a claim challenging the inability to exhaust a remedy when the court holds that you have to exhaust a remedy in -- in order to bring that claim. I mean, what we're trying to do is get the state agency to give us hearings and give us Official 1 adequate notice. And what the state court said is that because you didn't exhaust those remedies precisely because we didn't get the hearing and the notice, you can't bring your claim. So, even if Justice Gorsuch is correct that there's some theoretical way with mandamus, which we don't think this is an adequate substitute of bringing the claim, I mean, there's still a very significant barrier which is -- to the bringing of the claim. So, you know, that does place the type of barrier that I think would conflict with Congress's objectives when it enacted Section 1983.
Justice Barrett: Okay. Thanks.
Chief Justice Roberts: Justice Jackson? Thank you, counsel. Mr. LaCour. ORAL ARGUMENT OF EDMUND G. LaCOUR, JR. ON BEHALF OF THE RESPONDENT
Lacour: Mr. Chief Justice, and may it please the Court: This Court finds historic state powers to be preempted only when the text of federal Official 1 law makes that result clear. Nothing in 42 U.S.C. Section 1983 makes clear that it was meant to preempt neutral jurisdictional rules like the one at issue here. Petitioners' reliance on Patsy ignores the key difference between exhaustion rules created by Congress and exhaustion doctrines crafted by courts. The former may preempt, but the latter do not. They are judge-made timing rules, like ripeness and abstention, they do not add elements to a federal right but merely determine when a federal court is going to hear it. This Court's ripeness and abstention holdings do not apply to state courts. Nor does its determination that federal courts generally should not send 1983 plaintiffs to the states. Precedent confirms that 1983 does not contain a categorical no-exhaustion element. In Johnson v. Fankell, the Court did not require immediate appellate review of a 1983 defense. In Ohio Civil Rights Commission v. Dayton Christian Schools from 1986, this Court applied Younger abstention to force a 1983 plaintiff back into state agency proceedings. Official 1 These decisions show that deferring consideration of a federal right does not necessarily alter or defeat it. Thus, while some notice of claims rules, like the one in Felder, are preempted as obstacles to adjudication and liability, agency review is typically a means of adjudication and does not inherently conflict with 1983's remedial purpose. But, even if immediate judicial consideration were an unwritten element of 1983, neutral jurisdictional rules like Alabama's are still a valid excuse for declining jurisdiction. Reading 1983 to preempt such laws would raise serious constitutional questions that are best avoided. I welcome the Court's questions.
Justice Thomas: Well, Mr. Unikowsky's argument as I understand it is that the exhaustion rules in Alabama makes it impossible for -- for him to pursue the due process claims that he has under 1983. So would you respond to that?
Lacour: Yes, Your Honor. Two points. One, as Justice Gorsuch was alluding Official 1 to, that is a new argument that was not presented to the Alabama Supreme Court. It was not passed upon by the Alabama Supreme Court. It's not in the cert petition, and it's not properly before this Court. Their only argument is that even the most perfect agency adjudication, if it has an exhaustion rule, is preempted. And we think that, as Justice Kagan was alluding to with Felder, that that rule has already been rejected by this Court. But looking at this as-applied challenge to Alabama's law, we don't think that it is the case that it functions as an immunity. Mandamus is still available. There is still the potential for a futility argument, one that was not raised below. And so it's simply not the case that it is impossible to get an adjudication here.
Justice Sotomayor: I'm not sure how it is possible given that, as I read the court's decision below, you have to bring the -- due process argument to the agency, and I don't see any procedure to do that within the agency.
Lacour: Well, Your Honor --
Justice Sotomayor: There's nothing Official 1 that -- there's no mandamus within the agency. I don't know how the mandamus court would have jurisdiction because it requires exhaustion. So you're in a loop that I'm not sure how this claimant gets out of.
Lacour: Your Honor, I don't think mandamus would require exhaustion. The point of mandamus would be to break the sort of logjam that Plaintiffs are complaining about here, but they didn't take advantage of mandamus.
Justice Sotomayor: Well, Alabama -- Alabama ruled very broadly. It didn't say that Mr. Williams, for example, who had a final judgment that he was attacking, had a claim that could be heard in court. And you seem to concede in your briefs that he did. He got his claim thrown out because he didn't file the notice of claim. Then he brought a due process argument saying that the notice he received was inadequate or the time limits were not proper under due process. And the Alabama court -- court dismissed his action as unexhausted. That sounds to me as if the due process claim has to be exhausted within the agency. Official
Lacour: Well, Your Honor, if -- if he had exhausted it and it was final, he had the ability to file a direct appeal to the circuit court.
Justice Sotomayor: He did.
Lacour: No, Your Honor --
Justice Sotomayor: And the court -- he did. The court did what it did. And, all of a sudden, he goes up to the Alabama Supreme Court and it dismisses it as unexhausted.
Lacour: Your Honor, I -- I think it's important to remember how this was actually litigated before the state courts. Their primary argument, if you go back to their briefs before the state courts, was that this exhaustion requirement didn't apply to sort of procedural challenges whatsoever. There was no 1983 claim --
Justice Sotomayor: Well, please just tell me what form -- where is it in this process that tells litigants, if we're not acting, you can go to the appeals council and file something and get them to order the agency to do something, and then, if the agency doesn't do it, maybe you've exhausted and you have a Official 1 futility argument to go seek mandamus or to go do something in state court. This is a Kafkaesque type of process that's going on here.
Lacour: Your Honor, I don't think so. Alabama case law makes clear that mandamus is available and that you may be able to raise futility arguments.
Justice Sotomayor: It's discretionary mandamus, isn't it?
Lacour: Correct, but we -- we presume that state courts --
Justice Sotomayor: And I don't know how --
Lacour: -- are going to follow the federal Constitution.
Justice Sotomayor: -- I actually don't know how mandamus operates with respect to the exhaustion requirement.
Lacour: Well, and -- and that just points out the waiver problems that I was addressing earlier. None of this was briefed up below. None of this was argued in the blue brief either. And so what we are dealing with here is this categorical rule. And we don't Official 1 think that even Patsy supports this categorical rule.
Justice Kavanaugh: Well, General, on -- on that question, you started the day but with the -- the text of federal law does not preempt, you know, and that's a fair argument and a good argument. It's just the argument that was in the dissent in Felder. Justice O'Connor made exactly those same points, but it was a dissent in Felder. And in the majority in Felder, it -- it made clear that the exhaustion requirement by Wisconsin's law was problematic. It said it "doesn't involve lengthy or expensive administrative proceedings, but it forces injured persons to seek satisfaction from those alleged to have caused the injury in the first place. Such a dispute resolution system may have much to commend it, but that is a judgment the current Congress must make." In other words, the language in Felder does seem -- contra Justice O'Connor's dissent, the language in the majority in Felder does seems to suggest that exhaustion requirements generally -- and we can talk about how to define those -- but generally are preempted even though Official 1 there's no text.
Lacour: Well, a -- a few things on that point, Your Honor. First is -- Felder did not just say Patsy ruled and then, in a two-page opinion, end the case. There was a detailed, nearly 15-page preemption analysis there. And the Court made clear there were really two key problems with the Wisconsin law. One was that, in purpose and effect, it minimized liability. And so there's your clear conflict. You have a federal law designed to impose liability and a state law designed to minimize it. I think that is the through line from Felder to Howlett to Haywood, is those are immunity laws. And, second, the Court said that the law in Wisconsin frequently and predictably defeated the 1983 claim. Now "defeat" means that you're going to exercise jurisdiction over it and then dismiss it with prejudice because it is an affirmative defense that the defendants were handed by Wisconsin, and that did result in dismissals with prejudice. Jurisdiction -- like the law at issue in Alabama, jurisdiction's not an affirmative Official 1 defense. You would never say that an amount in controversy requirement is an affirmative defense. And it doesn't defeat the right. It simply says we're not going to consider it. And so there's no way for Alabama to alter the 1983 right by merely --
Justice Jackson: But that's not all that Felder --
Lacour: -- declining jurisdiction over it.
Justice Jackson: Counsel, that -- I appreciate that summary of what Felder said, but in the section on page 141 where it talks about what it means to undermine for preemption purposes, it, first of all, has three things, not just two, and the three things aren't just minimizing liability and defeating the 1983 claim. It says it conditions the right of recovery that Congress has authorized and does so for a reason manifestly inconsistent with the purposes of the federal statute. So that's one thing. And I appreciate that it coloned to minimize government liability -- Official
Lacour: Yes.
Justice Jackson: -- but the point is that it's inconsistent with the purposes of the federal statute. Second, the notice provision discriminates against the federal right, and it talks about the differences in the time limits in -- in a way that discriminates. And then, finally, it operates in part as an exhaustion requirement. Now I appreciate that your counsel on the other side is just homing in on the exhaustion requirement, but Felder seems to take it even beyond that. So can you explain why Alabama's law is not doing the three things that mattered in Felder to the preemption analysis?
Lacour: Yes. So agency adjudication is not a means of minimizing liability. It is a means of adjudicating whether or not claimants are entitled to money. I think that's far different from the notice of claims requirement in Felder, which had no benefit whatsoever to plaintiffs. Unlike here, the exhaustion requirement in Alabama law can be beneficial to Official 1 plaintiffs because it keeps their well-heeled employers or the Secretary from taking them to court immediately --
Justice Jackson: Right. But can you talk about the purposes of the federal statute, right?
Lacour: Yes. It --
Justice Jackson: Because I understood preemption to be about inconsistency --
Lacour: Right.
Justice Jackson: -- with the reasons or the goals the federal statute was there. So isn't a requirement like Alabama's, which prohibits the ability to bring a due process claim under these circumstances, inconsistent with Section 1983, which is supposed to be giving people the ability to make these kinds of claims?
Lacour: Your Honor, we're not prohibiting anyone from bringing them. You get to raise those very claims in front of the agency first. And I think that's a key difference between the Wisconsin law --
Justice Jackson: But not if the agency won't process your papers. Official
Lacour: Well, and -- and, Your Honor, that's why we have mandamus. That's why the futility arguments are -- are present as well. And then, second, there's -- there's a key difference between going to an agency for an adjudication and just being forced to go park your claim for 120 days with the police officers who purportedly beat you up, the law at issue in Felder. Again, that in no way can benefit plaintiffs. But the exhaustion requirement can benefit plaintiffs. And also, my -- my friend is -- is incorrect. The exhaustion requirement does apply to the Secretary as it applies to claimants as well.
Justice Jackson: So your argument at bottom is that this is consistent with Congress's objectives in 1983? Because I understood that to be the sort of umbrella consideration with respect to preemption, which is what I thought we were talking about here.
Lacour: Yes. I -- I don't see any conflict with the way Alabama has structured judicial administration and with the purposes of Official 1 1983, which are to impose liability. This is not a liability-minimizing scheme. It was not designed to do that. It was invented in 1935 to make unemployment benefits available to people. No one would think that the --
Justice Jackson: Has anybody ever recovered in 1983 making these kinds of claims in Alabama state court that you're aware of?
Lacour: Your Honor, I -- I'm not aware. I have not -- not seen one cited by my friends and have not found one myself. But I don't think anyone would say that the Social Security Administration is set up as an obstacle to people who are trying to get disability benefits. It is the avenue for getting that. And it's the same thing for Department of Labor.
Justice Kagan: So can I -- ask about the dimensions of your argument in two different ways? I'll give you just a couple of hypotheticals. So one is suppose we take this out of the employment context. We're not talking about Official 1 a benefit of any kind. There's a person who has, like, a quintessential 1983 claim, which is the improper use of police force, and Alabama sets up a scheme where you have to go to the police department first and you have to go through these three levels of review before you can bring that to court. Is that perfectly okay? Does -- or does that change matters?
Lacour: I think, Your Honor, if we're talking about case by case, then I think it's time to affirm the Alabama Supreme Court's decision because it was just this categorical argument. But, second, to get to your question, you need to look to see does this look like a rule of judicial administration or not. It may be looking a lot more like Felder and thus might be more suspect, but --
Justice Kagan: I -- I don't understand. What makes it more suspect?
Lacour: Well, it -- it might be what are -- like, who is it that's doing the adjudication? What are the sort of requirements that bind them? Official
Justice Kagan: Yeah, I mean, it's sort of set up the same way, but there, it's a police board. You know, police officers are on these boards, and they make you go through three -- three different stages, and we make you do all that for police boards of different levels before you can take the claim to court.
Lacour: Your Honor, the -- again, if it's particularly stringent, you might run into some problems like in the Brown case from 1949. If it looks like it's designed to minimize liability, you might run into some Felder problems.
Justice Kagan: Well, if, if, if. Let's just say it's the same kind of thing, but it's in the police context.
Lacour: Your Honor --
Justice Kagan: It's the same time limits. It's the same everything. There's no piece of paper that says we're doing this to prevent good claims. You know, it's -- but -- but it's in a -- it's in a different context, a non-benefits context, a quintessential 1983 context.
Lacour: The Court has said in Official 1 Howlett and Haywood that neutral rules of judicial administration are a valid excuse for refusing to entertain a federal claim. So, if that is a valid and -- and jurisdictional rule that's been set up, then I think that would be okay.
Justice Alito: Well, why wouldn't --
Justice Kagan: Okay.
Justice Alito: -- that look an awful lot like Haywood itself, a -- a -- a rule that evinces hostility to the 1983 claim? Because there's no tradition of requiring this sort of thing when a plaintiff wants to sue -- wants to bring a classic Fourth Amendment 1983 claim.
Lacour: Well, I think that history could factor in. But, the same time, in Haywood, there was no way to get into state court whatsoever. I took it in Justice Kagan's hypothetical that you -- you would get to court eventually to raise your claim. And so -- and this Court has said -- I think this Court's rulings show that merely deferring consideration of a claim is very different than defeating it. So look at Johnson v. Fankell, where Official 1 you had a 1983 defense of qualified immunity that was denied at summary judgment stage in the Idaho trial court, and they wanted to take that up immediately to the Idaho Supreme Court and were not able to do so. 1983 did not give them some right of interlocutory appeal. And I think that's essentially what Petitioners are asking for here, is a right of interlocutory appeal.
Justice Alito: Well, I -- I don't want to derail -- Justice Kagan, I think, had a number of hypotheticals, but -- so I -- I don't want to interrupt that. But then, eventually, I do want to ask you about Mr. Unikowsky's narrow argument. Did you want to --
Justice Kagan: It -- it -- it doesn't matter which way we do it.
Justice Alito: Okay. I'm not sure I can capture exactly what his narrow argument is. But suppose the narrow argument is that there's no exhaustion requirement in a 1983 case in state court, where it is, as a practical matter, impossible or extraordinarily onerous to get a decision. How would the state be hurt by that? What would be wrong with that? Official
Lacour: I think there might still be some -- some sovereignty interest if you're going to be reading the statute to require state courts to exercise jurisdiction that the state has never given them jurisdiction to exercise. And that's why the Court has been careful in -- even in Haywood to say that these neutral and -- and truly jurisdictional rules are a valid excuse for declining jurisdiction. That's the nature of any jurisdictional rule. That's going to keep some cases out of court, so that can't be the test.
Justice Gorsuch: But in it -- it -- couldn't it be, though, that in some of those cases at least, where it's truly impossible and it really is a Catch 22, that that is evincing hostility to the plaintiffs' claims and a Felder argument might be made there?
Lacour: Absolutely. Or even a Haywood argument.
Justice Gorsuch: Or even a Haywood argument. I mean, you -- we just don't know it -- whether that's the case here.
Lacour: Right.
Justice Gorsuch: Yeah. All right. Official
Justice Kagan: How about if -- you know, in Felder, there is a lot of talk about the time limits. Here, the time limits are even more stringent than they were in Felder. Suppose we make them even more stringent still, and let's add another bunch of things. Let's say that instead of three levels of review, there are five levels of review. Let's say between each level you have to proceed within five days, and then you have to bring your court claim at the very end within five days. Let's say we have empirical evidence that suggests that because the state administrative process is very slow, it takes an average of 10 years to actually get to court. At that point, can we say that this is so -- so onerous a process that it has to be in conflict with 1983?
Lacour: Your Honor, that sounds like it -- it could fall under Haywood and -- and potentially be in conflict with 1983 under a Haywood theory. Even if it is a truly jurisdictional rule, that starts to look like an evasion rather than something that's really Official 1 about the competence over the subject matter. But, here, this truly is about competence over the subject matter. You have an expert agency -- like, since these claims existed for the first time in 1935, they've always been adjudicated in the first instance by these hearing officers. They have expertise when it comes to hearing these types of claims because they hear thousands or hundreds of thousands a year. They're applying the statutes and regs again and again. It's the exact sort of situation that this Court confronted in Elgin v. Department of Treasury, a Thunder Basin case about the Merit Systems Protection Board, where the Court recognized that the MSPB has certain expertise because they hear these personnel claims again --
Justice Kavanaugh: You're making a --
Justice Barrett: But the expert -- oh. The expertise is in adjudicating the entitle -- entitlement to unemployment, not the due process claim, right?
Lacour: But, Your Honor, a Official 1 similar argument was made in Elgin that the MSPB doesn't typically hear constitutional claims. And what the Court recognized was well, no, they are going to hear some similar types of claims that are going to come up again and again in this context. For example, it -- it's not fair because I didn't get my notice on time; therefore, excuse my lack of -- of --
Justice Barrett: But --
Lacour: -- of filing the appeal. And then that can be considered by the board of appeals, the appeals tribunal, or -- or the circuit court eventually.
Justice Barrett: So tell me -- and this is just the clarifying question I was trying to ask Mr. Unikowsky -- how does one assert these due process claims, say, before the intermediate tribunal? Is there a mechanism for doing that? It just seems like everything that was a description in the briefs was talking about how to pursue getting your unemployment benefit. How does one go about making this due process argument before the agency?
Lacour: Your Honor, my understanding is it's a fairly informal process. Official 1 I -- I think it would be as -- as simple as arguing that this is not fair because the notice was ineffective, for example. But, again, ultimately, that issue was not thoroughly briefed because that wasn't the argument they were pressing before the state supreme court.
Justice Kavanaugh: You're making your position seem benign, but we have amicus briefs from a wide variety of groups, from ACLU and Public Citizen to religious liberty groups, to the Chamber of Commerce, all of which say that your rule will really hinder federal civil rights claims from getting into state court. The religious liberty plaintiffs say that your position would "grind religious litigants into submission before they are able to have their claims heard in court." We see the same thing from the ACLU's brief. You want to respond to that?
Lacour: Yeah. No, I -- I think this Court's precedents in cases like Felder and Haywood help to guard against that. Plus, if the --
Justice Kavanaugh: They -- don't they Official 1 guard against it by saying that exhaustion is not a requirement before you bring a 1983 suit in state court?
Lacour: No, I -- Felder, again, did not deal with an agency adjudication. It dealt with a law that said park your claim here for four months and then -- and if you don't do that, you have an affirmative defense you're going to be facing and you're going to lose, which I think is -- is far different than --
Justice Kavanaugh: But -- but every -- just to pause there, your answer suggests that I'm misreading Felder. Every state supreme court that has considered the issue, I think, before the Alabama Supreme Court has read it just the way I just said.
Lacour: No. Your Honor, I think -- I think South Dakota was on our side, and then, in some of those cases, you're dealing with --
Justice Kavanaugh: The vast majority of state supreme courts.
Lacour: We're definitely on the short side of the split, but we don't spend --
Justice Kavanaugh: And the short side Official 1 of the split is because those state supreme courts, almost uniformly, have read Felder to mean you can't have exhaustion requirements -- a very simple rule, you can't have exhaustion requirements for 1983 in federal or state court. And you have a good argument to the contrary. The problem is -- it's in the O'Connor dissent, not in the majority in Felder.
Lacour: No, Your Honor, I -- I -- again, I think you have to read those statements from Felder in their context, and, of course, opinions are not statutes, but, if they were, I'd invoke the presumption against superfluity. There -- there's a lot more in Felder to suggest that what was really the problem was that it was trying to minimize liability. And there, the conflict couldn't be clearer with 1983. But I -- I -- I cannot find in the text or in Patsy this categorical no-exhaustion rule, and I don't see how you square that with cases like Ohio Civil Rights Commission, which I -- I mentioned in my opening, and I apologize it's not in the briefs, but it's a 1986 decision where this Court applied Younger abstention to a 1983 claim to force that claimant back into a Official 1 state agency proceeding. Dayton Christian Schools had fired a teacher on religious grounds, sort of a precursor to Hosanna-Tabor. The teacher went to the Civil Rights Commission and said this was based on sex, and the Commission opened an investigation. That 1983 plaintiff went to federal court and said we have a free exercise right to be free from these state proceedings altogether. And in an opinion by then Justice Rehnquist, the Court said no, take it up in the state agency, which again shows that deferring consideration does not defeat. And it also suggests that my friend's position would lead to very strange outcomes where a federal court in Ohio did not have to hear that particular 1983 claim, but a state court would have to. And -- that just simply doesn't add up. And I think that gets to the point --
Justice Kavanaugh: You have just one more. You -- you've invoked federalism and respect for states, but I think the practical effect of your rule, if we were to adopt it, would be everyone or most people would go more quickly to federal court and haul the state Official 1 before federal court. I'm just -- the irony of that, can you comment on that?
Lacour: I don't think so, Your Honor. I don't think there's an incentive for states to structure their courts in a way that's necessarily going to send everything to federal court. If they do, then so be it. But, at the same time, that might be an incentive for --
Justice Kavanaugh: Well, these kinds of claims, if you had problems, you know, a free exercise problem, a religion problem, or a procedural due process problem with the unemployment scheme in Alabama, you're just going to go to federal court, right?
Lacour: Right, and as Mr. Unikowsky acknowledged, you'll lose on the merits. So I don't think that's going to be a serious problem here for Alabama.
Justice Jackson: Can I --
Justice Sotomayor: That's the point of suppressing the federal right in state court, isn't it? If you make the hoops so difficult to go through, then they have no remedy. Here, Mr. Williams was thrown out of -- out of the state process because he didn't receive notice Official 1 because he was unconscious because of COVID, and he's had no remedy in their state court. So, basically, what you're really saying is no, we're not hostile to a federal right because we know we're going to win in -- no matter what we do.
Lacour: No. Your Honor, I -- I think --
Justice Sotomayor: And -- and one last question. Tell me where in your regulations there is a process set out that -- that claimants can go through to speed up the process.
Lacour: Well, Your Honor --
Justice Sotomayor: All of them have told me that they've appealed on time, they've called a -- not all of them, but we have 21 plaintiffs here. Many of them filed their appeal notices, letter after letter, phone call after phone call, years and years that passed before they received anything or, when they received something, with no explanation. So tell me where in your regulations you tell claimants what they can do before the agency if there's a due process violation. Official
Lacour: Your Honor, I don't have chapter and verse for you because, again, this was not raised --
Justice Sotomayor: You can provide a letter. I don't want to hear about mandamus or -- I want to hear where in the regulations these people didn't do what the regulations said they could have done.
Lacour: Your Honor, mandamus is not something they're required to do, but it is something that is available --
Justice Sotomayor: And it's --
Lacour: -- to them.
Justice Sotomayor: -- discretionary, correct?
Justice Jackson: Counsel, can --
Lacour: Yes, Your Honor, but it is one way to avoid due process problems.
Justice Kagan: In the --
Justice Jackson: Counsel, can I just -- oh, go ahead.
Justice Kagan: No, go ahead.
Justice Jackson: Can I just get you to focus in quickly on Felder, and you -- you've said many times that you see that case as the Official 1 problem being about minimizing liability. But I'm quoting from the case when it says that this is "essentially" -- "the question is essentially one of preemption. Is the application of the state's law to Section 1983 actions brought in state courts consistent with the goals of the federal civil rights laws, or does the enforcement of such a requirement instead stand as an obstacle to the accomplishment and execution of the full purposes of the objectives of Congress?" I thought we were thinking about is it an obstacle, is it consistent? And what I'm worried about is that if we start moving away from that conception of what it means to be preempted, that same kind of thought process and doctrine is used in other laws, not just 1983. For example, we have the Federal Arbitration Act, which has a preemption standard that is almost identical to what Felder just said about whether or not it's consistent. And we've repeatedly said that state laws that do things like -- you know, related to contracts, et cetera, et cetera, are preempted by the FAA for the very same reasons. Official 1 So can you help us not to be concerned about shifting the standard of what it means to preempt and the way in which that might actually implicate other preemption doctrines and other laws?
Lacour: So, Your Honor, I think -- I think the real concern would be adopting the view of preemption from my friend, which doesn't really seem to line up with the more disciplined and text-based approach that this Court traditionally --
Justice Jackson: No, I -- we can --
Lacour: -- takes in the preemption context.
Justice Jackson: Let's say we reject saying there's something about Felder that is focused on exhaustion. I'm looking at Felder as a preemption case that has a standard that talks about the inconsistency with the purposes of the federal statute --
Lacour: Mm-hmm.
Justice Jackson: -- is it an obstacle to the accomplishment and execution? And I got to tell you, in the Concepcion case in AT&T versus Mobility, that Official 1 exact same concept is governing what the Court is doing with respect to preemption. So, if we move from that, if we're focused more on minimizing liability or whatever else you say you think Felder means, I'm worried that that's going to bleed over into these other kinds of preemption areas.
Lacour: Your Honor, what I'd say to that is, why was the law an obstacle? And the text answers that question. State officials shall be liable. What's the state law do? Minimizes liability. So there is your text-based preemption problem right there on the face of the statute.
Justice Jackson: It's not in the text of the statute.
Lacour: Shall be liable --
Justice Jackson: Minimizing liability is not in --
Lacour: Correct. But the -- the law at issue there was part of a broader liability scheme -- the Felder Court recognized this -- that was enacted after Wisconsin had done away with judicial immunity. The Wisconsin Supreme Court had done away with judicial Official 1 immunity. And so this new immunity statute was enacted that had damages caps and also had this notice of claims requirement. Wisconsin extolled this as a way to minimize liability. So there wasn't really a question as to what the law was doing. But --
Justice Kagan: You believe that plaintiffs here could have brought suit immediately in federal court, is that right?
Lacour: Yes, Your Honor.
Justice Kagan: So, I mean, this is Felder's -- it seems to me there's a lot going on in Felder. But one -- its most essential holding is it -- it quotes Patsy, and it says -- you know, Patsy said, too bad about an exhaustion requirement. You have to be able to bring suit in federal court immediately. And then -- and this is on page 147 -- it said should there be any different rule with respect to state courts, and it says, given the evil at which the federal civil rights legislation was aimed, there's simply no reason to suppose that Congress meant to have that kind of distinction. So, I mean, that seems just like a Official 1 very clear-cut understanding of Felder, that once we say that the exhaustion requirement does not preclude suit in state courts, we understand 1980 -- does not preclude suit in federal court, we understand 1983 to do the same thing with respect to state courts.
Lacour: Your Honor, even if I grant you that, this is still a jurisdictional rule, and you've still said in Howlett and Haywood that neutral jurisdictional rules are a valid excuse to keeping federal claims out. So, even if there is some get-to-court-immediately element of 1983, our -- our courts do not exercise jurisdiction over that type of claim.
Justice Kagan: Thank you.
Chief Justice Roberts: Thank you, counsel. Justice Thomas, anything further? Justice Alito? Justice Sotomayor? Justice Kagan?
Justice Gorsuch: Your friend on the other side said, if it went to federal court, there might be a ripeness issue and an Official 1 abstention issue. What are your thoughts?
Lacour: I -- I think that is -- that's likely true. We've seen that in a lot of courts of appeals decisions. We cited Cotton v. Jackson as a -- I think it's a 2011 circuit decision, where they lost on the merits for not taking advantage of the process and running to federal court too soon.
Justice Gorsuch: Okay. And I take your point that -- as I understand it, it's -- your argument is it's hard for this to be -- an exhaustion requirement of administrative agency processes to be an obstacle that's improper given that the federal government has similar administrative exhaustion requirements. But there does seem to be a tremendous record of difficulty of -- of individuals accessing that administrative process here. What assurance do you have or can you give us that -- that -- that the State is addressing these claims in -- in a proper and timely manner?
Lacour: Yes, Your Honor, two points. The reason we point to the federal Official 1 analog is to show that this really does concern competence over the subject matter, like the Court has discussed in Howlett and Haywood. And then, as to assurances that the State is taking this seriously -- this is obviously outside of the record because we're the motion to dismiss stage -- but we have tripled the number of hearing officers we have from eight to 25, and we have greatly reduced the backlog. I think, in -- in January of 2022, that backlog of people who had waited at least 21 days for a hearing was up to over 131,000. Today, it's down to about 7,410, and we anticipate clearing that backlog by the end of the year.
Justice Gorsuch: Was some of that backlog due to COVID or -- or other things?
Lacour: Absolutely, Your Honor. I think a million additional unemployment claims. And then, of course, when you have COVID, it makes it harder to -- to hire people and makes it harder to retain people too during the height of the pandemic.
Justice Gorsuch: Thank you.
Chief Justice Roberts: Justice Official 1 Kavanaugh? Justice Barrett?
Justice Barrett: I asked Mr. Unikowsky about the state statute of limitations. So I'm going to ask you the same question. When does the state statute of limitations start running on these claims? And to clarify, my concern is, if somehow the state statute of limitations is running, you know, because the due process violation has already begun in the agency, is it the case that that statute of limitations might run in state, for purposes of state court, before they can even get there?
Lacour: Your Honor, of course, this hasn't been briefed. I -- I don't think that would be an issue because, I mean, the due process violation is incomplete until the process has run out. So I -- I think -- and, certainly, if they were to appeal out of the agency proceeding directly to the circuit court, there wouldn't be any statute of limitations problem in that situation either.
Justice Barrett: Okay. My other Official 1 question is: So a couple times in your brief you called the agency proceeding a proper proceeding for redress under 1983, and you said there's no reason for this Court to distinguish between bringing a 1983 claim in something that's called a court versus sending it to an agency. Is that somehow different than the exhaustion requirement? Can you just --
Lacour: I think, Your Honor --
Justice Barrett: -- let me know what you're saying?
Lacour: -- our -- our point there is that we think the language suggests that there is a great deal of discretion for the states in terms of structuring their adjudicatory processes. And, in this instance, we have the agency first functioning sort of as an adjunct. They compile a useful record. That can then go up for the circuit court to -- to review with de novo review. And that -- that's particularly helpful for uncounseled claimants who maybe don't have a lot of means because they just lost Official 1 their job. They can go through this informal process, have a record. They don't have to go through formal discovery and have a lawyer to have that record when they do get to the circuit court.
Justice Barrett: So is the argument -- I mean, I guess I'm trying to distinguish between an exhaustion requirement, which is almost kind of like a pregame thing, you know, it's a -- it's a threshold. And this makes it sound like, if you're saying this is part of the 1983 claim itself or part of the adjudication, it's actually not a delay of the 1983 claim. But is your argument instead that this is actually part of adjudicating the constitutional violation?
Lacour: Your Honor, we -- we do think it's advancing the purposes of 1983, which are sort of remedial in ensuring that federal rights are not being violated. But it's not a 1983 claim inside of the agency.
Justice Barrett: Okay. So that's -- okay. I just wanted to make sure I understood your argument. Thank you.
Lacour: Yes. Official
Chief Justice Roberts: Justice Jackson? Thank you, counsel.
Lacour: Thank you.
Chief Justice Roberts: Rebuttal, Mr. Unikowsky? REBUTTAL ARGUMENT OF ADAM G. UNIKOWSKY ON BEHALF OF THE PETITIONERS
Adam G. Unikowsky: Thank you, Your Honor. I just wanted to clarify one answer I gave to Justice Gorsuch about ripeness. I did acknowledge that ripeness is in general a defense that a federal court can vindicate in a Section 1983 case. I wasn't trying to suggest that in this particular case, if we went to federal court, there would be a ripeness defense. I think we waited long enough and our -- our claim is ripe. So it was more a general point about federal courts' powers to dismiss cases. I'd like to say a couple of words about the Felder case. There's a lot of discussion this morning about whether or not exhaustion was an independent holding or whether the decision was Official 1 partly based on exhaustion, partly on other considerations. Even if the latter formulation is correct, I actually think that every single consideration in Felder also applies to this case. It's true that Felder talked about whether the state was trying to minimize liability. And my colleague said that the agency system in general wasn't trying to minimize liability. I don't think that's the question. I think the question is whether the exhaustion requirement in particular is trying to minimize liability, and I think the answer has to be yes. The sole function of the exhaustion requirement is to cause claims to be dismissed when they're brought in circuit court. And because the time limits are so tight, claims are going to be predictably dismissed a lot more frequently than the notice of claim requirement at issue in -- in Wisconsin. And so -- in -- in the Felder case. And so, ultimately, I think every single consideration in Felder really applies with equal force to this case. Official 1 So the Court doesn't need to parse out which aspects of -- of the holding were holding and which were alternative holdings, which were dicta, because I think the entire decision applies to this fact pattern. On the question of jurisdictional rules, I think the Court would really have to overrule a lot of cases dating back to 1912 to vindicate the argument that this is a jurisdictional argument that can survive preemption. I think it's notable that the amicus brief by several states actually does advocate overruling all these cases back to 1912. Respondent doesn't ask for that. And I think, if the Court keeps those cases, then the result in this case follows. As back -- as far back as 1912, the Court said that to -- the Court -- a state court cannot decline jurisdiction based on disagreement with the policy judgment of Congress that a defense is unavailable. And that's simply the principle we're asking to carry forward today. Finally, on this as-applied challenge, Official 1 I just wanted to point out that in the proceedings below, immediately after asserting our argument based on Patsy, we said it would be absurd to make us wait for years in the administrative process and then bring our claims, which I think is reasonably construed as the same type of as-applied argument we're making this morning. And we did make this argument in the blue brief as well as the yellow brief, so I do think it's teed up for the Court's consideration. If there's no further questions, we'd ask the Court to reverse.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:21 a.m., the case was submitted.)