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Case 1:16-cv-00329-WJM-STV Document 193 Filed 01/14/19 USDC Colorado Page 1 of 6

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-0329-WJM-STV


Consolidated with Civil Action No. 17-cv-03131-WYD-NYW

ALEC ARAPAHOE,

Plaintiff,

v.

MIRANDA AVALOS, Lieutenant at the Federal Correctional Institution at Florence, Colorado,


in her individual capacity,
ROBERT MARTIN, Segregated Housing Unit Lieutenant at the United States Penitentiary-
Florence, in his individual capacity,
UNITED STATES OF AMERICA,

Defendants.

PLAINTIFF’S RESPONSE TO GOVERNMENT MOTION FOR EXTENSION OF TIME


TO FILE REPLY AND TO VACATE AND RESET MOTION HEARING DUE TO
LAPSE IN APPROPRIATIONS

Plaintiff, Alec Arapahoe, by and through undersigned counsel, hereby files the following

Response to the Motion by the United States for Extension of Time to File Reply and to Vacate

and Reset Motion Hearing Due to Lapse in Appropriations:

It is Plaintiff’s position that the government is not excused from meeting this Court’s

deadlines simply because the government has made a conscious decision to stop paying its

attorneys and is not permitting them to appear in Court to defend against Plaintiff’s allegations.

A party voluntarily failing to pay its attorneys does not establish good cause for a continuance.

Just like any other litigant in this Court, there are consequences to proceeding without counsel.

For this Court to give the government a free pass, excusing it from any and all deadlines until it

decides to have attorneys represent its position in Court, is to acknowledge that the government
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is “special” and is permitted enhanced treatment from the Court that no pro se Plaintiff has

received. To permit the government to ignore deadlines is for this Court to abdicate its

responsibility as a “neutral and detached magistrate” and give the government a rubber-stamp

pass to ignore Orders of a co-equal branch of government.

ARGUMENT

“The power and duty of the judiciary to declare laws unconstitutional is in the final

analysis derived from its responsibility for resolving concrete disputes brought before the courts

for decision . . . .” Younger v. Harris, 401 U.S. 37, 52 (1971). Plaintiff Alec Arapahoe has

brought a dispute before this Court and he expects this Court to function as the Constitution

demands. Mr. Arapahoe’s dispute deserves resolution and if the government chooses to default

on deadlines, the government should suffer any and all consequences flowing from that decision.

As plainly stated by the United States District Court for the District of Puerto Rico,

Such lapses [in appropriations] are . . . simply an abdication by the President and
the Congress (which could override a presidential veto) of the duty to govern
responsibly to the end that all the laws may be faithfully executed. Nor does such a
lapse in any way excuse this Court from exercising its own Constitutional functions.

Colon-Morciglio v. United States of America, Civ. No. 17-02312-WGY, Doc. 20 (D.P.R. Jan. 2,

2019) (attached as Exh. 1). The government’s irresponsible behavior does not change the fact

that “the essential function of the federal courts -- to provide a fair and impartial forum for the

uniform interpretation and enforcement of the supreme law of the land.” See Atascadero State

Hosp. v. Scanlon, 473 U.S. 234, 255-56 (1985) (Brennan, J., dissenting). The Court’s essential

function is not lessened because one litigant in a case refuses to pay for counsel to appear. See id.

The U.S. District Court for the District of Arizona also recently considered a government

agency’s motion to stay based on the current government shutdown. The court concluded that the

government’s own refusal to pay its attorneys does not constitute good cause for modification of
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a case schedule. George v. Office of Navajo and Hopi Indian Relocation, No. CV-17-08200-

PCT-DLR, Doc. 42 (D. Ariz. Jan. 10, 2019) (attached as Exh. 2). Specifically, the court

reasoned:

Although the Court appreciates the quandary that [government] counsel (through
no fault of their own) find themselves in, the Court must evaluate the diligence of
the party seeking to change the schedule. The federal government’s voluntary
refusal to pay for its own agency’s legal representation—despite ample resources
to do so—does not constitute good cause for delaying this case.

Id. Here, the government also has not established good cause for its delay.

Similarly, the U.S. Court of Appeals for the District of Columbia Circuit issued an Order

last week denying the government’s motion for stay of oral argument due to a lapse in

appropriations. See Order, Kornitzky Group, LLC v. Federal Aviation Administration, No. 18-

1160 (D.C. Cir. Jan. 9, 2019) (attached as Exh. 3). Citing to the Department of Justice’s FYI

2019 Contingency Plan, the court explained that the

plan “assumes that the Judicial Branch will continue to operate through the
furlough.” For civil litigation, the Department instructs government attorneys to
request that active cases be postponed until funding is available. If a court denies
the request and adheres to its existing schedule, “the Government will comply with
the court’s order, which would constitute express legal authorization for the activity
to continue” within the meaning of § 1342.

(emphasis added). The Kornitzky court also cited to 16 cases in which government motions

to stay oral argument were denied during the 2013 government shutdown. Ultimately, the

court ruled that the government was required to adhere to court deadlines, as Plaintiff

submits that the Court should do in the present matter.

Moreover, the government does not have a constitutional right to counsel in a civil case,

just as any other litigant lacks a constitutional right to counsel in a civil case. MacCuish v.

United States, 844 F.2d 733, 735 (10th Cir. 1988); see also Gunn v. Garden, 729 F. App’x 667,

668 (10th Cir. 2018) (citing Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1169 (10th Cir.
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2003) (“[P]laintiffs have no Sixth Amendment right to counsel in a civil case.”)). The

government should not be treated as a “favored” litigant in this case by giving it special

treatment that is not afforded to others.

The starkest illustration of the lack of adequate counsel in any context is seen in the case

of Coleman v. Thompson, 501 U.S. 722 (1991). Coleman was sentenced to death by the State of

Virginia. His volunteer counsel missed a filing deadline for a notice of appeal by three days, due

to a mistake made in calendaring the proper date. The Supreme Court held that:

we discern no inequity in requiring him to bear the risk of attorney error that results
in a procedural default. Id., at 488. Applying the Carrier rule as stated, this case is
at an end. There is no constitutional right to an attorney in state post-conviction
proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987); Murray v. Giarratano,
492 U.S. 1 (1989) (applying the rule to capital cases). Consequently, a petitioner
cannot claim constitutionally ineffective assistance of counsel in such proceedings.
See Wainwright v. Torna, 455 U.S. 586 (1982) (where there is no constitutional
right to counsel there can be no deprivation of effective assistance). Coleman
contends that it was his attorney's error that led to the late filing of his state habeas
appeal. This error cannot be constitutionally ineffective; therefore Coleman must
“bear the risk of attorney error that results in a procedural default.”

Id. at 752-53 (emphasis added).

While Coleman may represent the ultimate glorification of form over substance, it is in

fact the law. The upshot is that even in a death penalty case, each party bears the burden of

attorney actions, or inactions. Coleman is now dead and buried, having been killed by the State

of Virginia. He may well have had viable federal habeas claims, but no federal court ever heard

them.

Because the government cannot be deemed to be a “favored” litigant in this case, or in

any case, and because the cause of this failure by government counsel to litigate this case is

directly attributable to the government itself, this Court should default the government on any
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missed deadlines. Motions by Plaintiff should be deemed granted if not responded to. Response,

reply, and all other deadlines should be respected.

WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny the Motion

by the United States for Extension of Time to File Reply and to Vacate and Reset Motion

Hearing Due to Lapse in Appropriations [Doc. 188].

Respectfully submitted this 14th day of January 2019.

KILLMER, LANE & NEWMAN, LLP

s/ David A. Lane
David A. Lane
Liana Orshan
Tania Valdez
1543 Champa Street, Suite 400
Denver, Colorado 80202
(303) 571-1000
Counsel for Plaintiff
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CERTIFICATE OF SERVICE

I certify that on this 14th day of January 2019 I filed a true and correct copy of the
foregoing via the Court’s Filing System, CM/ECF, which will generate an emailed notice to the
following:

Habib Nasrullah
James N. Boeving
Wheeler Trigg O’Donnell
370 Seventeenth Street, Suite 4500
Denver, CO 80202
Phone: 303-244-1800
Fax: 303-244-1879
nasrullah@wtotrial.com
boeving@wtotrial.com
Counsel for Defendant Robert Martin

William T. O’Connell, III


Katherine Pratt
Wells, Anderson, & Race, LLC
1700 Broadway, Suite 100
Denver, CO 80290
Phone: 303-830-1212
woconnell@warllc.com
kpratt@warllc.com
Counsel for Miranda Avalos

Sarah Weiss
Susan Prose
Assistant United States Attorneys
District of Colorado
1801 California St., Ste 1600
Denver, CO 80202
Phone: 303-454-0100
Fax: 303-454-0404
Sarah.Weiss@usdoj.gov
Susan.Prose@usdoj.gov
Counsel for the United States

s/ Jamie Akard
Jamie Akard

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