1

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF COLORADO 

Case No.: 

ERMIN KRESO, M.D., 

 Plaintiff 

v. 

ERIC SHINSEKI, SECRETARY, UNITED STATES DEPARTMENT OF VETERANS 

AFFAIRS, and the UNITED STATES VETERANS’ ADMINISTRATION, 

 Defendants. 

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 

 Plaintiff, Ermin Kreso, M.D., by and through his attorneys, Rosemary Orsini and Ellen 

Elizabeth Stewart, Berenbaum Weinshienk P.C., for his Complaint against the Defendants 

alleges and avers as follows: 

1. This is an action for declaratory and injunctive relief arising from the United 

States Department of Veteran Affairs’ termination of Dr. Kreso based upon a procedurally 

flawed hearing in violation of the due process required by the applicable rules, policies, and 

regulations of the United States Department of Veteran Affairs and the laws and Constitution of 

the United States. 

I. PARTIES

2. Dr. Ermin Kreso (hereinafter “Dr. Kreso”) is a citizen and resident of the State of 

Colorado. 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 1 of 16
2

3. Dr. Kreso is a physician. Dr. Kreso had been employed as a physician working 

primarily in the emergency department at the Denver Veterans Administration Medical Center 

from September 2007, until his discharge in March, 2010. 

4. Defendant Ret. General Eric Shinseki, Secretary of Veterans Affairs, is the 

official representative of the United States Department of Veterans Affairs (hereinafter referred 

to as the “VA”). 

5. The Defendant Veterans Administration is a government agency responsible for 

providing health care to veterans. 

II. JURISDICTION AND VENUE

6. This Court has subject matter jurisdiction over this action pursuant to 38 U.S.C. 

§7462(f), and 28 U.S.C. § 1343. 

 7. The Court has personal jurisdiction over the Defendant because it transacts 

business in the State of Colorado and this action arises out of those transactions. 

8. Venue resides in the United States District Court for the District of Colorado 

pursuant to 28 U.S.C. §1391, as all or a substantial part of the acts and omissions that are the 

basis for this lawsuit occurred in the State of Colorado. 

III. GENERAL ALLEGATIONS

9. Dr. Kreso began his residency with the Department of Veterans Affairs as a 

resident at the Denver VA Medical Center Emergency Department in 2003. 

10. Dr. Kreso successfully completed his residency program. He applied for formal 

employment with the Denver VA Medical Center. His application for formal employment 

named Dr. Jean Kutner, Medical Director, Dr. Thomas Meyer, Medical Director of Ambulatory 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 2 of 16
3

Care and Residence Medical Directors, Dr. Susanne Brandenburg and Dr. William Kaehny, all 

physicians with the VA Medical Center, as references. 

11. Dr. Kreso was formally hired in September 2006 by the U.S. Department of 

Veterans Affairs as a full-time permanent 38 U.S.C. 7401 (1) appointment to work primarily in 

the emergency department. 

12. Dr. Thomas Meyer, M.D., Associate Chief of Staff for Academic Affiliations was 

Dr. Kreso’s supervisor when he began working at the Denver VA Medical Center. 

13. Dr. Sandra Baker was appointed as the Emergency Room Director in March, 

2008. 

14. Dr. Donald Weinshienker was appointed as Associate Chief of Service for 

Ambulatory Care in May, 2008. 

15. During the time period prior to the commencement of the Administrative 

Investigative Board (“AIB”) investigation, Dr. Kreso received proficiency reports in which he 

was rated in the satisfactory and above categories. 

16. In early 2009, Dr. Kreso reported areas of concern he believed were putting 

veteran patients at risk and issues of security to his supervisor, Dr. Thomas Meyers. 

17. In April, 2009, Dr. Kreso, concerned by the lack of attention given to his concerns 

by Dr. Meyers, engaged in certain whistleblowing activity. Specifically, Dr. Kreso reported to 

Dr. Weinshienker that certain medical staff employees were putting veteran patients at risk, 

including but not limited to, unsafely dispensing medications, and not providing adequate care. 

In addition, Dr. Kreso reported to Dr. Weinshienker that security in the VA emergency 

department was not adequate. 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 3 of 16
4

18. Shortly thereafter, in May, 2009, Lynette Roff, the Medical Center Director, 

falsely accused Dr. Kreso of misconduct and subjected him to an administrative investigation by 

the AIB effective May 15, 2009. 

19. Dr. Kreso was reassigned into the Compensation and Pension Unit pending the 

outcome of the AIB investigation and not allowed in the emergency department.

20. During the investigation, the AIB violated various rules and procedures of the 

applicable VA regulations including inter alia those set forth in the VA Administrative 

Investigations Handbook, such as ordering Dr. Kreso not to speak to anyone about the 

allegations against him to the point of removing him to the Compensation and Pension Unit 

which was located in a completely different area of the hospital and prevented him from 

obtaining certain evidence for his defense. The AIB also impeded the fact-finding investigation 

by refusing to call those physician and nurse witnesses with first-hand knowledge regarding the 

treatment of the patients whose care was being questioned. 

21. In addition, the AIB violated applicable rules, regulations and procedures of the 

VA by requiring Dr. Kreso to testify before the AIB without knowing the identity of the patients 

whose care the AIB was questioning or being provided a copy of the patients’ medical record 

and, further, refused to permit Dr. Kreso’s attorney to ask him questions when he testified before 

the AIB. 

22. On November 13, 2009, Dr. Donald Weinshienker issued a Proposed Discharge 

memorandum to Dr. Kreso. The November 13, 2009 Memorandum informed Dr. Kreso that the 

evidence on which the notice of proposed action was based was attached. Dr. Kreso responded 

on November 17, 2009 listing at least eleven Evidence Files that were missing or incomplete. 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 4 of 16
5

Dr. Kreso also requested possible dates for a meeting with Dr. Weinshienker and the VA 

Medical Center Agency Director to meet and discuss his response. 

23. On November 29, 2009, Dr. Kreso attempted to respond to the substance of the 

allegations against him. He again noted additional missing documents and exhibits that were 

considered by the AIB but were not included in the Evidence File provided by the AIB. Dr. 

Kreso noted that Dr. Michael Blieden referred to a number of cases and documents he reviewed 

with the AIB which were not attached in the Evidence File. Dr. Kreso asked that he be allowed 

to supplement his response once he received the missing documents and also reminded Ms. Roff, 

the VA Medical Center Agency Director, that he had requested a meeting with her as offered in 

Dr. Weinshienker’s November 13, 2009, Memorandum. Dr. Kreso did not receive the 

documents requested but was given the opportunity for a meeting with Director Roff. When Dr. 

Kreso made his written presentations to Director Roff, he still did not know the identity of the 

patients. 

24. On March 12, 2010, Lynette Roff, executed the Decision Letter on Dr. Kreso’s 

Proposed Discharge sustaining four of the six charges brought against him without providing Dr. 

Kreso with an adequate opportunity to respond. Significantly, two of the charges that were 

dismissed – Failure to Follow Supervisor’s Instructions and Interfering with the Administrative 

Investigative Process – were based on Dr. Kreso’s attempts to prepare a defense against the false 

charges. 

25. On April 5, 2010, Dr. Kreso appealed his termination to the VA Disciplinary 

Appeals Board (“DAB”) and requested a hearing. Dr. Kreso argued that the major adverse 

action taken was in error or should not have been taken because there was no credible, medical 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 5 of 16
6

testimony or documentary evidence that Dr. Kreso’s treatment of care provided to patients was 

substandard or that he lacks competence to practice medicine. 

26. Dr. Kreso again noted in his Notice of Appeal that he had been denied and 

continued to be denied access to documents which supported his position that the care he 

provided met the standard of care. 

27. The Disciplinary Appeals Board hearing commenced on October 13, 2010. Dr. 

Kreso again raised concerns and objections at the commencement of the hearing as not meeting 

due process requirements. Specifically, Dr. Kreso again notified the DAB that he continued to 

be denied access to documents reviewed by the AIB. In addition, Dr. Kreso had requested 

access to these documents in a Freedom of Information Act request which was also denied. Dr. 

Kreso appealed to the Central Office for production of these documents which was still pending 

at the time of the hearing. 

28. On the first day of the DAB hearing, October 13, 2010, Dr. Kreso filed a Motion 

for Sanctions seeking dismissal of the action taken against him because of an email string that 

occurred just prior to the hearing on October 9th and 10th, 2010. The ex parte communication 

sent by VA physicians, Drs. S. Franzoso, Weinshienker and Blieden, to the DAB members and 

other witnesses to testify at the hearing claimed police and security were needed at the hearing 

suggesting Dr. Kreso was violent and that Dr. Kreso should be searched for weapons beforehand. 

The ex parte communication was sent solely to prejudice the DAB Members and portray Dr. 

Kreso as a violent person in need of some sort of restraint. 

29. Again, the DAB violated various rules and procedures of the applicable VA 

regulations including inter alia those set forth in the VA Administrative Investigations 

Handbook by not allowing Dr. Kreso to call certain witnesses on his behalf, refusing to make 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 6 of 16
7

certain witnesses available and by not allowing Dr. Kreso to call an expert witness who would 

testify that Dr. Kreso met the standard of care in his treatment of the patients alleged in the 

charges against him. 

30. The DAB’s violation of Dr. Kreso’s due process rights were not harmless. The 

DAB relied upon testimony at the AIB and evidence introduced to the AIB. The DAB 

specifically made credibility determinations of the witnesses including Dr. Kreso. The DAB 

found that “Dr. Kreso’s testimony before the DAB was often at odds with his testimony before 

the AIB and with his representation of the facts in his two written presentations to the Director in 

response to the proposed removal.” Dr. Kreso’s testimony was taken by the AIB without 

providing him with the requisite knowledge of the identity of the patients for whose care he was 

being investigated therefore creating the impression Dr. Kreso was not being entirely truthful. 

31. The evidence presented at the DAB hearing showed that Dr. Kreso is a welltrained physician whose base of knowledge, performance, professional competency, and abilities 

have never been questioned, that Dr. Kreso has never been the subject of a peer review, medical 

conciliation claim, licensing action, other claim, or lawsuit; and that Dr. Kreso possesses all of 

the professional qualifications to be a successful and productive physician at the VA if allowed 

to continue. 

32. The DAB hearing demonstrated that the only basis for Defendants’ terminating 

Dr. Kreso is the campaign began against him after he engaged in whistleblowing activity. 

33. On a date unknown, the DAB issued its decision sustaining in part the charges 

brought against Dr. Kreso. 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 7 of 16
8

34. Dr. Sabharwal, a member of the DAB, wrote a minority opinion concurring with 

some of the findings of the DAB but significantly found one of the charges was only partially 

sustained and another charge was not sustained. 

35. The DAB affirmed the excessive penalty of Dr. Kreso’s discharge again violating 

the VA’s own rules and regulations by failing to impose a like penalty for like offenses, as 

required. The DAB failed to take into consideration the Douglas Factors that it is required to use 

to determine whether a penalty is appropriate. Significantly, Dr. Sabharwal disagreed with the 

penalty of discharge. 

36. By letter dated March 17, 2011, Robert Jesse, MD, Principal Deputy Under 

Secretary for Health entered an erroneous decision approving the decision of the DAB. A copy 

of the Deputy Under Secretary’s final decision with the approved DAB action is attached as 

Exhibit 1. 

37. The Deputy Under Secretary’s decision constituted final administrative action of 

Dr. Kreso’s appeal to the DAB. 

38. Dr. Kreso has exhausted all his administrative remedies. 

39. There is no plain, speedy and adequate remedy otherwise provided by law. 

40. Dr. Kreso has timely brought this Complaint against the Defendant. 

CLAIMS FOR RELIEF 

COUNT I – REVIEW OF THE ADMINISTRATIVE ACTION 

41. Dr. Kreso hereby incorporates by reference, as if fully set forth herein, each and 

every allegation set forth in the preceding paragraphs and further alleges as follows: 

42. In determining that Dr. Kreso should be terminated, the Department of Veterans 

Affairs exceeded their jurisdiction and abused their discretion in making it’s decision to 

terminate Dr. Kreso and has further acted in an arbitrary or capricious manner, denied Dr. Kreso 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 8 of 16
9

his statutory rights, acted contrary to constitutional rights, powers, privilege acted in excess of 

statutory jurisdiction, authority, purposes, or limitations, did not act in accord with the proper 

procedures or procedural limitations or as otherwise required by law, acted with an abuse of 

discretion or clearly unwarranted exercise of discretion, made its decision based upon findings of 

fact that are clearly erroneous on the whole record, made its decision that is not supported by 

substantial evidence under the record as a whole, and otherwise acted contrary to law, as follows: 

a. The AIB improperly and without basis or authority failed to give notice to Dr. 

Kreso of the identity of the patients for whom he was charged with substandard care; 

b. The AIB improperly and without basis or authority required Dr. Kreso to provide 

a defense to the charges without the patients’ medical information; 

c. The AIB improperly and without basis refused to allow the physicians and nurses 

with firsthand knowledge of Dr. Kreso’s care for the patients in question to testify; 

d. The AIB improperly and without basis or authority refused to provide the 

complete Evidence File; 

e. The DAB improperly and without basis or authority relied on the AIB’s findings 

including making credibility findings of Dr. Kreso based on the AIB’s refusal to identify the 

patients to whom the AIB was referring in its questioning of Dr. Kreso. 

f. The DAB improperly and without basis or authority refused to allow Dr. Kreso to 

call an expert witness to testify that Dr. Kreso’s treatment of the patients called into question in 

the charges met the standard of care; 

g. The DAB improperly and without basis or authority refused to Order the 

Defendants to produce the documents missing from the Evidence File; 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 9 of 16
10

h. The DAB improperly and without basis or authority failed to properly consider 

the relevant and proper merits, criteria and factors with respect to the excessive penalty of 

discharge; 

i. The DAB improperly and without basis or authority failed to dismiss the charges 

against Dr. Kreso based on the highly prejudicial ex parte communication with the DAB 

members by the Denver VA Medical Center, specifically Dr. Weinshienker; 

j. The Denver VA Medical Center improperly and without basis or authority failed 

to refer Dr. Kreso to formal counseling for his behavior; 

k. The DAB improperly and without basis or authority, took into consideration 

matters, factors or criteria that are not authorized by law when it terminated Dr. Kreso causing 

damages and losses to Dr. Kreso; 

l. The DAB improperly and without basis or authority, failed to properly consider 

the relevant and proper merits, criteria and factors with respect to the care and treatment 

provided by Dr. Kreso to his patients; 

m. The DAB improperly and without basis or authority, terminated Dr. Kreso; 

n. The DAB improperly and without basis or authority, failed to follow the 

requirements of the applicable rules and regulations of the VA including those set forth in the 

VA Administrative Investigative Handbook, and the VA Discipline Appeals Handbook; 

o. The DAB improperly and without basis or authority, failed to follow Department 

of Veteran Affairs policies and procedures in making its decisions concerning the termination of 

Dr. Kreso; 

p. The aforesaid final action of the Deputy Under Secretary in approving the DAB 

action is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law. 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 10 of 16
11

43. Defendants have significantly harmed Dr. Kreso’s professional career and 

reputation and threaten to seek to do further irreparable harm thereto and cause severe economic 

harm to Dr. Kreso for which he will not be able to obtain adequate compensation. 

44. Dr. Kreso is informed and believes, and thereupon alleges, that Defendants acted 

arbitrarily, capriciously, dishonestly, maliciously, and contrary to laws and their own regulations 

to harm Dr. Kreso and destroy his professional reputation. 

45. Defendants’ actions and omissions set forth above have violated and will continue 

to violate Dr. Kreso’s rights to substantive and procedural due process of law guaranteed by the 

Fifth Amendment to the Constitution of the United States, inter alia.

46. As a direct and proximate result of the Defendants’ aforesaid actions and 

omissions Dr. Kreso already has suffered and will continue to suffer irreparable harm to his 

career, professional reputation and standing, and earning capacity, along with other severe 

economic harm for which Dr. Kreso will not be able to obtain adequate compensation. 

 WHEREFORE, based on the full evidence in the record, the Court should find that the 

DAB exceeded their jurisdiction, abused their discretion, acted in an arbitrary or capricious 

manner, denied Dr. Kreso his statutory rights, acted contrary to constitutional rights, powers, 

privileges, acted in excess of statutory jurisdiction, authority, purposes, or limitations, did not act 

in accord with the proper procedures or procedural limitations or as otherwise required by law, 

acted with an abuse of discretion or clearly unwarranted exercise of discretion, made decisions 

based upon findings of fact that are clearly erroneous on the whole record, made decisions that 

are unsupported by substantial evidence under the record as a whole, and otherwise acted 

contrary to law in making its decisions to terminate Dr. Kreso, and should award relief to Dr. 

Kreso as further set forth herein. 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 11 of 16
12

COUNT II 

TEMPORARY RESTRAINING ORDER AND PRELIMINARY AND PERMANENT 

INJUNCTIVE RELIEF 

47. Dr. Kreso hereby incorporates by reference as if fully set forth herein, each and 

every allegation set forth in the preceding paragraphs and further alleges as follows. 

48. By reason of Defendant’s violation of Dr. Kreso’s due process rights and the 

procedurally flawed hearing, Dr. Kreso has and will continue to suffer irreparable injury, for 

which there is no adequate remedy at law. This injury is imminent and ongoing. 

49. The VA will formally and irrevocably report Dr. Kreso’s termination from the 

Denver Veteran’s Administration Medical Center to state licensing board(s), hospital 

credentialing committee(s), the National practitioners Data Bank, and/or the Healthcare Integrity 

and Protection Data Bank based upon the hearing which violated his fundamental rights to due 

process. 

50. In the event of any report, Dr. Kreso will suffer serious, lasting, and irreparable 

harm to his professional reputation and standing that cannot and will not subsequently be 

remedied even if Dr. Kreso ultimately prevails and obtains a determination that he should never 

have been terminated from the Denver Veterans Administration Medical Center. 

51. Dr. Kreso has no remedies available to him to restrain and prevent the Defendants 

from reporting the adverse actions taken against him to the applicable board(s), committee(s), 

and/or data bank(s). 

52. Dr. Kreso requests that a Temporary Restraining Order be entered ordering 

Defendants to cease, desist, and refrain from, either directly or indirectly through others 

reporting Dr. Kreso’s termination from the Denver Veteran’s Administration Medical Center to 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 12 of 16
13

state licensing board(s), hospital credentialing committee(s), the National Practitioners Data 

Bank, and/or the Healthcare Integrity and protection Data Bank. 

53. Irrespective of whether this Court enters a temporary restraining order, Dr. Kreso 

requests that the Court schedule a Preliminary Injunction hearing, ordering Defendants to appear 

and show cause why the above-requested injunctive relief should not be made the subject of a 

Preliminary Injunction, pending a trial on the merits. 

53. Dr. Kreso further requests that following an evidentiary hearing, a Preliminary 

Injunction be entered, ordering and enjoining Defendants from engaging in the conduct set forth 

in paragraph 49 of the Complaint, or such other relief that the Court may deem necessary at the 

conclusion of the evidentiary hearing. If such relief is not granted, Dr. Kreso will suffer 

irreparable harm before a review of the record in this case can be conducted. Dr. Kreso has no 

adequate remedy at law. For these reasons, Dr. Kreso seeks the issuance of a preliminary 

injunction following an evidentiary hearing. 

54. Dr. Kreso further requests that, following a trial on the merits, the Court enter a 

permanent injunction enjoining Defendants from the above-described acts. 

V. REQUEST FOR REVIEW AND FURTHER RELIEF 

 WHEREFORE, in addition to the prayers for relief set forth above, Dr. Kreso respectfully 

requests that the Court review the record and decision of the Disciplinary Appeals Board 

confirming Dr. Kreso’s termination and conduct all necessary evidentiary or other hearings or 

trials, and reverse the Disciplinary Appeals Board findings and decision concerning Dr. Kreso’s 

termination as outlined herein and enter an injunction in favor of Dr. Kreso and against the 

Defendant. 

Dr. Kreso further prays for relief as follows: 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 13 of 16
14

1. The entry of a judgment declaring and finding that Defendants violated due 

process and failed to otherwise abide by the Veterans Administration’s governing statutes and 

regulations; 

2. The entry of a judgment finding that the Disciplinary Appeals Board hearing was 

void and invalid because it violated Dr. Kreso’s due process rights and that any decision to 

terminate Dr. Kreso from the Denver Veterans Administration Medical Center is void and 

ineffective because it was based upon the invalid hearing; 

3. Reinstatement of Dr. Kreso as a full-time permanent physician appointment at the 

Denver VA Medical Center. 

4. The entry of appropriate equitable relief, in the form of a preliminary and 

permanent injunction or otherwise, to rectify the numerous constitutional violations detailed 

herein and to restrain the Defendants, their agents, employees, and successors in interest from 

taking any adverse action based upon the procedurally infirm hearing in violation of the 

Constitutional, statutory, regulatory, and/or common law rights of Dr. Kreso to due process of 

law; 

5. The entry of a preliminary and permanent injunction restraining the Defendants, 

their agents, employees, and successors in interest from making any reports about or concerning 

Dr. Kreso; 

6. Award of back pay; 

7. For reimbursement of Dr. Kreso’s costs and expenses herein, including reasonable 

provision for his attorneys’ fees; and 

8. For such further and additional relief as the Court deems appropriate and just. 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 14 of 16
15

V. JURY DEMAND 

DR. KRESO DEMANDS A TRIAL BY JURY ON ALL ISSUES SO TRIABLE 

Respectfully submitted this 9th day of September, 2011. 

 BERENBAUM WEINSHIENK PC 

Original signature on file at Berenbaum Weinshienk 

PC

 s/ Rosemary Orsini 

 Rosemary Orsini 

370 Seventeenth Street, Suite 4800 

 Denver, Colorado 80202 

 Telephone: (303) 592-8305 

 Facsimile: (303) 629-7610 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 15 of 16
VERIFICATION 

STATE OF COLORADO ) 

'1\ ) ss. 

COUNTY OF ,.,ENV£f5....) 

I, ERMIN KRESO, M.D., have read the foregoing Complaint and affirm that the facts 

""d know!"'" ,ct forth """" ore"", ""d _~,'" Q=~"::::-

Ermin Kreso, M.D. 

The foregoing instrument was acknowledged before me this J't:L. day of September, 

2011, by Ermin Kreso, M.D. 

Notary Public 

16 

Case No. 1:11-cv-02378-REB Document 1 filed 09/09/11 USDC Colorado pg 16 of 16