State Defendants’ Response to Motion for Emergency Injunction

Summary

State Defendants' Response to Motion for Emergency Injunction [ECF 8], dated April 21, 2025 and filed as Document 32 in Joshua Abrams v. Division of Unemployment Insurance, et al., Civil Action No. 24-cv-03390-RMR, U.S. District Court for the District of Colorado. The Division of Unemployment Insurance and Joe Barela describe its fraud-related program integrity holds and say a hold from June 2023 stayed in place until plaintiff supplied requested information on March 15, 2025. They say it was cleared March 17 and that plaintiff began receiving benefits on March 20, 2025. They argue plaintiff is unlikely to succeed on his section 1983 claims because of state immunity, and unlikely to succeed on his ADA claim. They also argue the requested relief would require the Division to hire 60 call center agents and ask the court to deny the motion.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 24-cv-03390-RMR

JOSHUA ABRAMS

Plaintiff,

v.

DIVISION OF UNEMPLOYMENT INSURANCE
JOE BARELA
JEFF FITZGERALD
JOHN & JANE DOE(S)

Defendants.

STATE DEFENDANTS’ RESPONSE TO MOTION FOR EMERGENCY INJUNCTION
[ECF 8]
Defendants Division of Unemployment Insurance (the “Division”) and Joe Barela
(hereinafter jointly “State Defendants”),1 through counsel, file this Response to Plaintiff’s
Motion for Emergency Injunction (“the Motion” or “Plaintiff’s Motion”).
FACTUAL BACKGROUND
The Division received a claim for unemployment insurance benefits from Plaintiff
on February 2, 2025. Ex. C, ¶ 20 (Declaration of Guadalupe Diaz); Ex. E (MyUI+ Home
Page for Plaintiff). Plaintiff also previously filed a claim for unemployment benefits in
2023. Ex. A, ¶ 6 (Declaration of Jeff Newcomb); Ex. B, ¶ 15 (Declaration of Brandon
McClure); Ex. C, ¶ 10; see ECF No. 8, p. 1. Plaintiff’s Motion concerns the 2025 claim,
but a short discussion of the 2023 claim provides necessary context.

1 A return of service was filed for Jeff Fitzgerald indicating the Summons and Amended
Complaint was left with an administrative assistant at the Colorado Department of Labor
and Employment (“CDLE”). ECF No. 20. However, because Mr. Fitzgerald is no longer
employed by CDLE, this attempt at service was not effective.
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Program Integrity Measures
During and after the COVID-19 pandemic, Colorado and other states
experienced a significant increase in the volume of fraudulent claims for unemployment
insurance benefits and extended pandemic benefits. Ex. C, ¶ 3. Since the pandemic
began in early 2020, the Division has received millions of fraudulent claims. Id.
In March 15, 2020, the Division adopted “program integrity” measures to avoid
payment of fraudulent claims. Id. at ¶ 4. The program integrity process reviews and
compares available information from a variety of sources to flag discrepancies that
could indicate a fraudulent claim. Id. at ¶ 5. Depending on the severity of the flagged
issues, the claims system establishes a “program integrity hold,” which prevents
benefits payments on the flagged claim until further information can be assessed by the
Division. Id. If a program integrity hold is placed, the system immediately and
automatically sends a fact-finding request to the claimant, who receives an alert. Id. at ¶
6. The claimant has seven days to respond to a list of questions and provide the
required documentation. Id. If the Division receives the information within seven days, a
deputy reviews the information and decides whether to release the hold, seek further
information, or disqualify the claimant. Id. at ¶ 7. If the Division does not receive the
requested information within seven days of sending the factfinding, the system sends a
“reporting requirement disqualification” to the claimant, which informs the claimant that
they have been disqualified for failing to provide information and provides notice of the
right to appeal the decision. Id. at ¶ 8. If the deputy determines that a program integrity
hold should be removed, the hold is removed and the claimant is notified of the
decision. Id. at ¶ 9.
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Customer Service Capabilities
An unemployment benefits claimant can contact the Division about their claim by
phone, U.S. mail, online through the MyUI+ portal, or in person. Ex. D, ¶ 2 (Declaration
of David Kimball). The Division’s call center has 102 agents and 9 supervisors. Call cen-
ter agents assist claimants with filing claims, adjudicating non-separation decisions, and
providing guidance for claimants within the unemployment system. Id. at ¶ 3. The Divi-
sion’s call center agents are available to answer phone calls Monday through Friday,
from 8 a.m. to 4 p.m. Id. at ¶ 4. The Division’s phone system has a total of 150 phone
lines divided into 12 active queues. Id. at ¶ 5. Each active queue can accommodate 10
people on hold, allowing up to 120 people to be on hold. Id. Once the system reaches
120 people on hold, it puts additional callers into a separate queue that can hold up to
150 calls at a time. Id. Once this separate queue reaches 150 callers, new callers are
notified that the queue is full and will be invited to speak with a virtual assistant. Id. The
virtual assistant can answer basic questions about claims, including how to file a claim
and how to appeal a decision of the Division. Id. Claimants have several ways to con-
tact the Division online. Id. at ¶ 8. The primary method is the online portal, MyUI+,
where claimants utilize various tools and perform functions like updating their infor-
mation and managing existing claims. Id. Documents and forms may also be uploaded
through the online “document submission form.” Id. at ¶ 9; Ex. B, ¶¶ 8-10. Claimants
can also complete a Claimant Feedback Form, which can be used to provide several
categories of feedback.
Kiosks are available at the Division for claimants who lack computer access and
staff are available to assist with questions. Ex. D, ¶ 13. A secure dropbox is located in
the Division’s lobby, which may be accessed during regular business hours, Monday to
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Friday from 8 a.m. to 4 p.m. Id. at ¶ 14. Claimants may schedule in-person
appointments through an online form. Id. at ¶ 15.
2023 Claim for Benefits
The Division received Plaintiff’s first claim for unemployment benefits on March 5,
2023. Ex. C, ¶ 10. Plaintiff later attempted to withdraw the claim, but the request was
denied by a deputy of the Division. Id. at ¶ 15. Plaintiff appealed to a hearing officer,
and later, to a panel of the Industrial Claims Appeals Office, but the decision was
affirmed. Id. at ¶¶ 15-17.
Plaintiff received benefit payments from April 2023 through mid-June 2023. Id. at
¶ 19; Ex. F (Abrams’ Unemployment Benefits Payments) (reflecting payments from
4/3/2023 through 6/17/2023). In late June 2023, the Division’s claims handling system
flagged the claim for two program integrity holds. Id. at ¶ 11. The first program integrity
hold was triggered on June 23, 2023, and the system automatically sent Plaintiff a fact-
finding request. Id. at ¶ 12. The Division received the requested information from
Plaintiff that same day, and the hold was released the next day. Id. The second hold
was triggered on June 26, 2023, and the Division sent Plaintiff a fact-finding request on
that date. Id. at ¶ 13. Because the Division did not receive the requested information
from Plaintiff within seven days, the hold was not released. Id.
Within the next few months, Plaintiff began reporting employment income again,
so the claim became inactive. Id. at ¶ 14; Ex. A, ¶ 6. Plaintiff continued to report income
through the fourth quarter of 2024, until January 31, 2025. Ex. C, ¶ 14. The program
integrity hold remained in place because the Division had not received any response to
the fact-finding sent to Plaintiff on June 26, 2023. See id. at ¶¶ 20-22.
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2025 Claim for Benefits
The Division received a second claim for benefits from Plaintiff on February 2,
2025. Id. at ¶ 10; Ex. E. At the time the 2025 claim was received, the Division still had
not received the information requested from the program integrity fact-finding on June
26, 2023, so the hold was still in place. Ex. C, ¶¶ 20-22. On March 15, 2025, the
Division received the requested information from Plaintiff. Id. at ¶ 22. The program
integrity hold was cleared on March 17, 2025, and the Division adjudicated Plaintiff’s
separation the next day. Id. at ¶¶ 22-23. Plaintiff began receiving benefits on March 20,
2025. Id. at ¶ 24; see Ex. F [Payments] (Payment Date: 3/20/2025). As of this filing,
Plaintiff has received unemployment benefits by direct deposit from February 8, 2025,
through the week ending April 12, 2025. Ex. C, ¶ 25. Today, April 21, 2025, the Division
received a request for payment from Plaintiff for the week ending April 19, 2025. Id. He
has not appealed any decision about his 2025 claim to a hearing officer. Id. at ¶ 27.
Plaintiff contacted the Division by phone several times in 2023 and 2025. Ex. D,
¶ 19; Ex. G (Record of Inbound Calls from Plaintiff’s Phone Number). On March 14,
2025, he spoke with call center agents twice for a total of approximately 90 minutes. Ex.
D, ¶ 20. The calls concerned the program integrity hold on his claim. Id. The hold was
lifted after the Division received documentation from Plaintiff. Id.
Plaintiff has successfully used the MyUI+ platform to manage his claims in 2023
and 2025. Ex. B, ¶¶ 16-17. For example, Plaintiff uploaded documentation to MyUI+ on
March 15, 2025, to clear his program integrity hold, which was lifted two days later. Id.
at ¶ 17. Plaintiff used the portal to update his contact information as recently as April 11,
2025. Id. To date, the Division has not received any request to accommodate a
disability from Plaintiff. Ex. A, ¶ 10.
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PROCEDURAL BACKGROUND
Plaintiff initiated this action on December 6, 2024. ECF No. 1. On December 9,
2024, the Court ordered Plaintiff to file an amended complaint. ECF No. 4. Plaintiff
complied with that order. ECF No. 7. On February 26, 2025, Plaintiff filed the Motion.
ECF No. 8. On March 4, 2025, the Court ordered Plaintiff to serve the Complaint and
Motion for Emergency Injunction on defendants. ECF No. 11. The Court later vacated
that order and directed the Clerk of Court to issues summonses to be served by the
U.S. Marshals Service. ECF No. 13. The Marshals Service served the Amended
Complaint upon State Defendants on March 24, 2025. ECF Nos. 19, 21. The Motion for
Preliminary Injunction was not served on State Defendants. The Court ordered State
Defendants to respond to the Motion by April 21, 2025. ECF No. 28.
STANDARD OF REVIEW
Whether to grant a preliminary injunction is left to the sound discretion of the
Court. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Because
Plaintiff is pro se, the Court must liberally construe his pleadings. Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). However, the Court must not advocate on his behalf.
Id.; Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[T]he
court cannot take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.”).
ARGUMENT
“A preliminary injunction is considered ‘an extraordinary and drastic remedy.’”
Warner v. Gross, 776 F.3d 721, 728 (10th Cir. 2015). A plaintiff seeking a preliminary
injunction must establish (1) a substantial likelihood of success on the merits, (2) they
will suffer irreparable injury if the preliminary injunction is denied, (3) the threatened
injury outweighs the injury caused by the injunction, and (4) an injunction is not adverse
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to the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The
plaintiff bears the burden of proof to demonstrate that each factor tips in their favor.
Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188-89 (10th Cir. 2003).
In addition, the preliminary injunction Plaintiff seeks here is a “disfavored”
injunction—he requests a “mandatory” injunction that would upset the existing status
quo. Schrier v. Univ. of Colo., 427 F.3d 1253, 1259 (10th Cir. 2005). Plaintiff therefore
bears a heavier burden on the likelihood-of-success-on-the-merits and the balance-of-
harms factors: [they] must make a strong showing these tilt in [their] favor.” Free the
Nipple v. City of Ft. Collins, 916 F.3d 792, 797 (10th Cir. 2019) (quotations omitted).
“[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be
clear and unequivocal.” Stephens v. Jones, 494 Fed. Appx. 906, 910 (10th Cir. 2012).
I.
Plaintiff is not substantially likely to succeed on the merits.
The first preliminary injunction factor asks whether Plaintiff has established a
substantial likelihood of success on the merits. Winter, 555 U.S. at 20. “A ‘substantial
likelihood’ is defined as ‘a prima facie case showing a reasonable probability that [the
movant] will ultimately be entitled to the relief sought.’” Peterson v. Kunkel, 492 F. Supp.
3d. 1183, 1194 (D.N.M. 2020) (quoting Continental Oil Co. v. Frontier Ref. Co., 338
F.2d 780, 781 (10th Cir. 1964)). As Plaintiff seeks a disfavored preliminary injunction, he
faces a heavier burden to show this factor is satisfied. Free the Nipple, 916 F.3d at 797.
Plaintiff raises his Title II ADA, First Amendment, and Fourteenth Amendment
claims as the basis for his request for emergency injunction. ECF No. 8, p. 1. For the
reasons stated below, Plaintiff cannot meet this heavy burden.
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A.
The Eleventh Amendment forecloses relief against the Division and
the Executive Director in his official capacity under § 1983.
Plaintiff asserts two § 1983 claims as the basis for his request for emergency
injunctive relief. ECF No. 8, p. 1. The Eleventh Amendment to the United States
Constitution bars federal jurisdiction over private claims for money damages against a
state, its instrumentalities, and state officials acting in their official capacity. Tennessee
v. Lane, 541 U.S. 509, 517-18 (2004). Eleventh Amendment immunity presents an
issue of subject matter jurisdiction. Fent v. Okla. Water Resources Bd., 235 F.3d 553,
559 (10th Cir. 2000). Unless a state has waived its Eleventh Amendment immunity, or
Congress has abrogated it, such absolute immunity applies regardless of the relief
sought. See Higganbotham v. Okla. Transp. Comm’n, 328 F.3d 638, 644 (10th Cir.
2003); Ramirez v. Okla. Dep’t of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994),
overruled on other grounds by Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186 (10th Cir.
1998). Colorado has not waived its immunity. See Griess v. Colorado, 841 F.2d 1042,
1044 (10th Cir. 1988) (holding that Colorado had not abandoned Eleventh Amendment
immunity for § 1983 claims). And Congress did not abrogate such immunity in enacting
§ 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989).
The Division is part of the Colorado Department of Labor and Employment, an
arm of the state. § 8-71-101, C.R.S. (2024); § 24-1-121(1), C.R.S. (2024). Thus, it is
entitled to immunity. Likewise, the Executive Director is entitled to such immunity in his
official capacity. Kentucky v. Graham, 473 U.S. 159, 165 (1985). Therefore, the § 1983
claims are barred, making Plaintiff unlikely to succeed on the merits.
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B.
Plaintiff is not substantially likely to succeed on his ADA claim.
The Motion appears to assert that injunctive relief is needed due to a failure to
accommodate his disability.2 To state a claim for Title II ADA discrimination under a
failure to accommodate theory,3 Plaintiff must establish (1) he is otherwise entitled to a
public benefit, service, or program also available to similarly situated persons without
disabilities; (2) he requires a reasonable accommodation to access that benefit, service,
or program; and (3) the public entity refused to provide such accommodation, thereby
denying access. Grider v. City & Cnty. of Denver, No. 10-CV-00722-MSK-MJW, 2011
WL 721279, at *5 (D. Colo. Feb. 23, 2011) (citing Henrietta D. v. Bloomberg, 331 F.3d
261, 273-76 (2d Cir. 2003)).
Here, because Plaintiff has been able to access his unemployment benefits, Ex.
F; Ex. B, ¶ 15; Ex. C, ¶¶ 24-25, he cannot show a substantial likelihood of success on
the third element of a failure to accommodate claim. Moreover, Plaintiff does not allege
he requested any accommodation. ECF No. 8. And, in fact, he has not requested an
accommodation from the Division. Ex. A, ¶ 10; Robertson v. Las Animas Cnty. Sheriff’s
Dep’t, 500 F.3d 1185, 1197-98 (10th Cir. 2014) (public entity has no obligation to
provide accommodation absent notice through a request or obvious need for
accommodation); Young v. City of Claremore, Okla., 411 F. Supp. 2d 1295, 1308 (N.D.
Okla. 2005). For these reasons, Plaintiff is not substantially likely to succeed on his ADA
claim.

2 For the purposes of this Response only, the Division and Executive Director do not
dispute Plaintiff is an individual with a disability.
3 To the extent Plaintiff argues he was discriminated against or excluded based on a
disability, he wholly fails to allege facts that could support intentional discrimination.
Meyers v. Colorado Dep’t of Human Servs., 62 F. App’x 831, 833 (10th Cir. 2003); Ten-
orio v. Pitzer, No. CV 12-01295 MCA/KBM, 2014 WL 12650972, at *1 (D.N.M. Mar. 31,
2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)) (“Discriminatory intent is an
extremely demanding state of mind requirement.”).
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C.
Plaintiff is not substantially likely to succeed on his First
Amendment claim.
The First Amendment guarantees “the right of the people . . . to petition the
government for a redress of grievances.” U.S. Const. amend. I. The Motion alleges
Plaintiff filed a claim for unemployment benefits on January 31, 2025. Plaintiff alleges
his claim for benefits was approved, but he has been prevented from accessing the
funds “due to an unexplained ‘integrity hold.’” ECF No. 8, p. 2. Plaintiff alleges the
Division “has not provided a mechanism for claimants to contest or inquire about these
holds,” leaving Plaintiff with “no viable path to redress.” Id. at 2-3. Plaintiff moved for an
injunction just twenty-six days after submitting the claim for benefits to the Division.
As discussed above, Plaintiff cannot show a substantial likelihood of success on
the merits because both his § 1983 claims are barred by the Eleventh Amendment.
Plaintiff also cannot establish that the Division impaired his right to petition for
redress. Though the right to petition and the right to free speech are separate
guarantees, they are related and “generally subject to the same constitutional analysis.”
Wayte v. United States, 470 U.S. 598, 610 n.11 (1985) (citing NAACP v. Claiborne
Hardware Co., 458 US. 886, 911-15 (1982)). “[T]here is no sound basis for granting
greater constitutional protection to statements made in a petition to the President than
other First Amendment expressions.” McDonald v. Smith, 472 U.S. 479, 485 (1985).
The purpose of the right to petition is to guarantee that “people ‘may communicate their
will’ through direct petitions to the legislature and government officials.” Id. at 482
(quoting 1 Annals of Cong. 738 (1789)).
Although the Motion alleges a “Systemic Denial of Benefits without Due Pro-
cess,” it admits the claim for benefits was approved. ECF No. 8, p. 2. Plaintiff does not
allege approval has been revoked or rescinded, or that the claim has been denied.
Plaintiff used the MyUI+ portal to manage his claim. See Ex. B, ¶ 17 (noting that
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Abrams successfully used the MyUI+ portal). He received written notice the claim was
approved. ECF No. 8, p. 2. He has received weekly benefit payments from February 8
through April 12, 2025. Ex. C, ¶¶ 24-25. The benefit payment for the week ending on
April 19, 2025, has not yet been released because Plaintiff just requested that payment
today (April 21, 2025). Ex. C, ¶ 25. Plaintiff has spoken with multiple call center agents
of the Division in 2025. Ex. A, ¶ 9; Ex. D, ¶¶ 18-20. He also used the MyUI+ online por-
tal to post notes to the Division and provide new contact information. Ex. B, ¶ 17.
The Motion does not allege the Division failed to consider information it received
from Plaintiff; on the contrary, it admits his claim for benefits was approved. The “right to
petition government afforded by the First Amendment does not include the right to
speak in person to government officials. Where written communications are considered
by government officials, denial of a hearing does not infringe upon the right to petition.”
Scroggins v. City of Topeka, Kan., 2 F. Supp. 2d 1362, 1375 (D. Kan. 1998).
Finally, even if Plaintiff had received an adverse decision, by statute, he could
seek several layers of appellate review of that decision. Under § 8-74-102(1), C.R.S.
(2024), the initial determination is made by a deputy designated by the Executive
Director. Plaintiff could then appeal any decision of the deputy and obtain a hearing
before a hearing officer. § 8-74-103(1), C.R.S. (2024). If still dissatisfied, Plaintiff could
appeal to the Industrial Claims Appeals Office and then the Colorado Court of Appeals.
§§ 8-74-104(1), 8-74-107(2), C.R.S. (2024). In fact, Plaintiff used these procedures to
appeal a decision about his 2023 claim. Ex. C, ¶¶ 15-17.
Plaintiff cannot establish that the Division deprived him of his right to petition for
redress concerning his 2025 claim for benefits. Thus, he cannot establish a substantial
likelihood of success on the merits of his First Amendment claim, particularly under the
heavier standard applicable to disfavored injunctions.
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D.
Plaintiff is not substantially likely to succeed on his Fourteenth
Amendment claim.
Nor can Plaintiff establish a substantial likelihood of success on his Fourteenth
Amendment claim. The Motion alleges the Division deprived Plaintiff of due process by
imposing an “integrity hold” on his January 2025 claim, failing to explain the hold, and
failing to provide a “process—let alone a fair one—to contest” the hold. Plaintiff claims
he is unable to petition for relief because the Division has “no functional phone support,
no messaging option, and no in-person recourse . . . .” ECF No. 8, p. 6.
Because Plaintiff seeks a disfavored injunction, he faces a heavier burden to
satisfy the substantial likelihood of success factor. Free the Nipple, 916 F.3d at 797. To
satisfy procedural due process in unemployment compensation proceedings, a claimant
must be given “adequate advance notice and an opportunity to be heard prior to state
action resulting in deprivation of a significant property interest.” Mountain States Tel. &
Tel. Co. v. Dep’t of Lab. & Emp’t, 520 P.2d 586, 588 (Colo. 1974).4
Plaintiff cannot establish that he exhausted his administrative remedies under
state law or that any exception to the exhaustion requirement applies. “Under Colorado
law, ‘[i]f complete, adequate, and speedy administrative remedies are available, a party
must pursue these remedies before filing suit in district court.’” Boulter v. Noble Energy,
Inc., 521 F. Supp. 3d 1077, 1084 (D. Colo. 2021) (quoting City & Cnty. of Denver v.
United Air Lines, Inc., 8 P.3d 1206, 1212 (Colo. 2000)). “Failure to exhaust
administrative remedies before seeking judicial relief is a jurisdictional defect.” Id. The
exhaustion requirement “applies with equal force when the party seeks declaratory
relief.” United Air Lines, 8 P.3d at 1213.

4 As discussed above, Plaintiff cannot show a substantial likelihood of success on the
merits because both of his § 1983 claims are barred by the Eleventh Amendment.
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Here, Colorado statute establishes the framework by which claims for
unemployment benefits “shall be made, processed, and reviewed . . . .” § 8-74-101(1),
C.R.S. (2024). After the Division receives a claim, notifies interested parties, and
provides an opportunity to provide information, a “deputy to be designated by the
director of the division” reviews all the submitted materials and must “issue a decision . .
. .” § 8-74-102(1). Under § 8-74-103(1), an interested party may appeal a deputy’s
decision “and obtain a hearing covering any issue relevant to the disputed claim,” to be
heard by “a hearing officer designated by the director of the division.” “The hearing
officer, after affording all interested parties a reasonable opportunity for a fair hearing in
conformity with the provisions of this article and the regulations of the division, shall
make a decision on each relevant issue raised, including findings of fact, conclusions of
law, and an order. The division shall promptly provide all interested parties with copies
of the hearing officer's decision.” § 8-74-103(3). Under § 8-74-107(1), C.R.S. (2024),
“No action, proceeding, or suit to set aside an industrial claim appeals panel’s decision
or to enjoin the enforcement thereof shall be brought unless the petitioning party has
first complied with the review provisions of sections 8-74-104 and 8-74-106.” “Actions,
proceedings, or suits to set aside, vacate, or amend any final decision of the industrial
claim appeals panel or to enjoin the enforcement thereof may be commenced in the
court of appeals by any interested party, including the division.” § 8-74-107(2), C.R.S.
Plaintiff moved for an injunction in federal district court just twenty-six days after
submitting his claim for benefits to the Division. As a threshold matter, there is nothing
for the Court to enjoin because Plaintiff is receiving unemployment benefits. Ex. C, ¶¶
20-25. Even if he was not receiving them, Plaintiff has not exhausted his administrative
remedies under applicable state statutes or the Division’s regulations. The Motion also
fails to establish the applicability of any exception to the exhaustion requirement. And
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Plaintiff cannot establish that it is “‘clear beyond a reasonable doubt’ that further
administrative review by the agency would be futile because the agency will not provide
the relief requested.” Boulter, 521 F. Supp. 3d at 1084.5
Plaintiff’s Fourteenth Amendment claim is not substantially likely to succeed
because it is subject to dismissal for lack of jurisdiction. United Air Lines, 8 P.3d at
1217; Boulter, 521 F. Supp. 3d at 1084-87 (dismissing federal suit for lack of jurisdiction
due to failure to exhaust administrative remedies under state law). Because Plaintiff has
failed to show he is substantially likely to succeed on the merits of the claims underlying
his Motion, the Motion must be denied.
II.
The remaining preliminary injunction factors overwhelmingly favor State
Defendants.
A.
Plaintiff has not shown irreparable harm.
Irreparable harm may occur when injuries cannot be adequately remedied with
money or when complete relief cannot be granted following a final determination on the
merits. Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir.
2001) (internal citation and quotations omitted). The threatened injury “must be both
certain and great,” and “not be merely serious or substantial.” Id. “A plaintiff suffers
irreparable injury when the court would be unable to grant an effective monetary remedy
after a full trial because such damages would be inadequate or difficult to ascertain.”
Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001).
As explained above, Plaintiff is currently receiving unemployment benefits. Ex. C,
¶¶ 24-25. Thus, not only can he not show irreparable harm, but the alleged harm is not
occurring at all. Even if he were not receiving unemployment benefits, that would not

5 Plaintiff does not challenge the constitutionality of any statute or allege the Division
acted outside the scope of its authority.
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constitute irreparable harm. See Villecco v. Spesshardt, No. 1:23-CV-01265-DDD, 2023
WL 3855488, at *1 (D. Colo. June 1, 2023) (finding no irreparable harm when plaintiff
alleged he was unable to access unemployment benefits application). Additionally, be-
cause he is not substantially likely to succeed on the merits of his claims, he cannot
show irreparable harm. Harmon v. City of Norman, Okla., 981 F.3d 1141, 1146 (10th
Cir. 2020) (district court properly based its denial of motion for preliminary injunction
solely on conclusion that plaintiffs did not establish a substantial likelihood of prevailing
on the merits). Because Plaintiff has failed to show irreparable harm, the Court should
deny the motion.
B.
The balance of equities and public interest strongly favor denying
the requested relief.
The third and fourth preliminary injunction factors require the Court to balance
the harm to Plaintiff of not obtaining the injunctive relief he requests against the
Division’s harm if the injunction is granted and to determine whether the requested relief
will adversely affect the public interest. Gen. Motors Corp. v. Urban Gorilla, LLC, 500
F.3d 1222, 1226 (10th Cir. 2007). These two factors merge where the requested
injunction is opposed by an arm of the State. Nken v. Holder, 556 U.S. 418, 435 (2009).
Here, Plaintiff requests the Court order the Division to change their phone
systems and hire additional staff to ensure telephone hold times do not exceed thirty
minutes; change their appointment system to ensure an appointment within two days of
contacting the Division; change their online portal system in multiple ways; and respond
to all inquiries within three business days. ECF No. 8, pp. 4-5. Plaintiff demands all this
be done within fourteen days. Id. at 4. This is an extraordinary request that is virtually
impossible to meet and would undoubtedly harm the public interest. Ex. B, ¶ 14
(Division cannot make unilateral changes to online system; any changes would take
Case No. 1:24-cv-03390-RMR     Document 32     filed 04/21/25     USDC Colorado     pg 15
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16
months to complete); Ex. D, ¶¶ 7, 12 (Division would need to hire 60 call center agents
to comply with Plaintiff’s requests). The relief requested would require the Division to
divert its limited resources away from fulfilling its statutory mandates to meet Plaintiff’s
requests. See Ex. D, ¶ 13. Moreover, given that Plaintiff is in fact receiving
unemployment benefits, there is no harm to him at all and the balance of equities does
not tip in his favor. For that reason, the Court should deny the motion.
CONCLUSION
For the reasons stated herein, and pursuant to the cited authorities, State
Defendants respectfully request this Court deny Plaintiff’s motion for emergency
injunction.
Case No. 1:24-cv-03390-RMR     Document 32     filed 04/21/25     USDC Colorado     pg 16
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Respectfully submitted this 21st day of April 2025,
PHILIP J. WEISER
Attorney General

s/ Stephen Woolsey
LAUREN DAVISON*
Senior Assistant Attorney General
Tort Litigation Unit
Civil Litigation and Employment Practices
Section
STEPHEN WOOLSEY*
Assistant Solicitor General
Labor Unit
State Services Section
Attorneys for State Defendants
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 10th Floor
Denver, Colorado 80203
Telephone: (720) 508-6000
FAX: (720) 508-6032
E-mail:  lauren.davison@coag.gov
stephen.woolsey@coag.gov

*Counsel of Record
Case No. 1:24-cv-03390-RMR     Document 32     filed 04/21/25     USDC Colorado     pg 17
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CERTIFICATE OF SERVICE

This is to certify that I have duly served the within STATE DEFENDANTS’
RESPONSE TO MOTION FOR EMERGENCY INJUNCTION [ECF 8] upon all parties
herein by e-filing with the CM/ECF system maintained by the court, by email and/or by
causing same to be deposited in the United States Mail, with First Class postage
prepaid, at Denver, Colorado, on this 21st Day of April 2025, addressed as follows:

Joshua Abrams
1881 E 112th Place
Northglenn, CO 80233

s/ Xan Serocki

Case No. 1:24-cv-03390-RMR     Document 32     filed 04/21/25     USDC Colorado     pg 18
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