We will hear argument first this term in case 23191, Williams v. Fitzgerald.

Mr. Unikowski.

Mr. Chief Justice, and may it please the Court, Patsy and Felder controlled 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 petitioner's 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. 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 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 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 Kafka-esque conclusion that petitioners could not challenge their inability to exhaust precisely because of their inability to exhaust.

I welcome the Court's questions.

Mr. Unikowski, would you have the same objection if Alabama required these claims to be made in a lower state court?

No, Your Honor.

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