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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Judge John L. Kane 

Case No.: 11-cv-02378-AP 

ERMIN KRESO, M.D., 

 Plaintiff 

v. 

ERIC SHINSEKI, Secretary, United States Department Of Veterans Affairs, and the UNITED 

STATES VETERANS’ ADMINISTRATION, 

 Defendants. 

PLAINTIFF DR. KRESO’S MOTION TO COMPEL COMPLETION OF THE 

ADMINISTRATIVE RECORD AND TO ORGANIZE THE ADMINISTRATIVE 

RECORD TO ALLOW FOR ADEQUATE REVIEW 

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

Elizabeth Stewart, Berenbaum Weinshienk P.C., pursuant to 38 U.S.C. § 7462(f)(1) , moves this 

Court to compel Defendants to complete the administrative record in this case and to organize 

the administrative record to allow for adequate review as set forth below: 

Certification: Pursuant to D.C. Colo. LCivR 7.1(A), undersigned counsel 

conferred with counsel for the Defendants, Susan Prose, regarding the relief requested in this 

Motion. Defendants oppose in part and agree in part to the relief requested in this Motion. 

ARGUMENT

The Court reviews the decision of the Disciplinary Appeals Board (hereinafter “DAB”) to 

determine if it was “arbitrary, capricious, an abuse of discretion, obtained without procedures 

required by law, rule, or regulation having been followed or unsupported by substantial 

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evidence.” 38 U.S.C. § 7462(f)(1) The primary focus for judicial review of an administrative 

decision is the administrative record. McDonnell Douglas Corp. v. U.S. EEOC, 922 F. Supp. 

235, 242 (E.D. MO. 1996) (District Court can also consider additional evidence and testimony 

which helps explain the administrative record). 

 In order to conduct proper judicial review, the Court should have the full administrative 

record before it. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 

814, 825, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califiano v. Sanders, 430 U.S. 

99 (1977). 5 U.S.C. §706. The district court must have before it the “whole record” on which 

the agency acted. Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993). The “whole 

record” concept requires that a court should consider evidence on both sides, including that 

which detracts from the support for the agency’s conclusions. See Bar MK Ranches v. Yuetter at 

739. If the record is not complete, then the requirement that the agency decision be supported 

by “the record” becomes almost meaningless. Portland Audbon Soc’y v. Endangered Species 

Comm., 984 F.2d 1534, 1548 (9th Circ. 1993) (“An incomplete record must be viewed as a 

“fictional account of the actual decision making process). 

 In addition, the record must be put together in an organized manner suitable for review by 

the court. Sac and Fox Tribe of Indians of Oklahoma v. Andrus, 645 F.2d 858, 861 (10th Cir. 

1981). 

 

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A. The Administrative Record Should Be Supplemented with the Documents 

Submitted with Dr. Kreso’s September 29, 2010 Correspondence to the 

Disciplinary Appeals Board. 

 The record in this case consists of the evidence and testimony reviewed by the 

Administrative Investigative Board (“AIB”) as well as the documents and testimony reviewed by 

the Disciplinary Appeals Board. Dr. Kreso submitted his additional exhibits to the Board with 

his September 29, 2010 correspondence which listed the witnesses Dr. Kreso intended to call 

during the hearing, his objections to the Agency’s recently produced exhibits as well as Dr. 

Kreso’s list of exhibits. In addition to the exhibits provided during the AIB proceeding, and all 

responses and exhibits to the charges and the appeals, Dr. Kreso listed eleven (11) additional 

documents that he may use as exhibits. 

 Although the record contains the parties’ pre-hearing submissions, and includes 

Dr. Kreso’s September 29, 2010 correspondence, the record does not contain six (6) of the 

eleven (11) documents Dr. Kreso referenced and attached to his correspondence. See 

Administrative Record filed by Defendants, pgs. D000880-D001028; Dr. Kreso’s September 29, 

2010 correspondence, pgs. D00919 – D00925. See also Exhibit “A”consisting of the six (6) 

attached documents to Dr. Kreso’s correspondence which were not included in the 

administrative record. 

 Defendants object to including the documents given to the DAB by Dr. Kreso with his 

September 29, 2010 correspondence because those documents were not admitted in the Hearing. 

Defendants’ argument fails because all of the parties’ pre-hearing submissions are in the record 

including one of Defendants’ exhibits even thought it was not admitted in the Hearing. See 

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Administrative Record filed by Defendants, pg.D001064 and pg. D000011 (no ruling on 

admission of witness statement of Judy Cooley). 

 There is no legal rationale for not including Dr. Kreso’s documents which were produced 

to the DAB and opposing counsel. These omitted documents provide supporting evidence that 

the treatment provided to the patients who are the subject of the charges against Dr. Kreso 

received appropriate treatment. 

 B. The Administrative Record Should Be Supplemented With the Missing Pages 

of Testimony Before the AIB.

Counsel for Dr. Kreso noted missing pages of testimony before the AIB during conferrals 

with counsel for the Defendants.1

 Defendants’ counsel agrees the missing pages should be 

added to the record. The parties agreed that Dr. Kreso would include his request that the record 

be supplemented to include the missing pages since the Defendants have not yet corrected the 

record to include the missing pages. 

 Counsel for Defendants authorized Dr. Kreso to inform the Court that Defendants will 

supplement the record with these missing pages after the Court rules on Dr. Kreso’s Motion.2. 

                                                           

1 Sylvia Murray – page 23 (D001533); Neil Weston – pages 6, 7 and 9 (D001543); Patricia 

Hughes – page 18 (D001839); Mark Phillips – page 7 (D001893); Sylvia Murray – page 2 

(D001937); Sylvia Murray – page 23 (D001533); Neil Weston – pages 6, 7 and 9 (D001543); 

Patricia Hughes – page 18 (D001839); Mark Phillips – page 7 (D001893); Sylvia Murray – page 

2 (D001937).

2 In addition, Defendants’ counsel agreed to redact patients’ names that were inadvertently left 

unredacted when Defendants produced the record

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C. The Administrative Record is Disorganized and Does Not Accurately Reflect 

the Record Before the DAB. 

Defendants produced a disorganized administrative record which contains multiples of 

the same exhibits and is unsuitable for review. During the DAB Hearing, exhibits were marked 

as Tab 1 through Tab 70. However, the exhibits in the record are not marked with the same 

exhibit numbers used during the hearing and are not produced in an orderly fashion to allow this 

Court to easily identify which exhibits were introduced in the hearing. For example, the first of 

the Hearing exhibits are not produced until after the Pre-Hearing Submissions, ranging between 

150 pages and 1000 pages after the witness’ testimony. In addition, this group of exhibits 

consists of only 14 of the exhibits and they are listed in the index under Disciplinary Appeals 

Board Management Exhibit List. 

 More of the exhibits introduced in the Hearing are produced 300 pages later and are listed 

in the index under Evidence File, Discharge of Ermin Kreso, M.D. Volume 1 of 2. Volume 1 of 

Dr. Kreso’s Evidence File starts at page 1108 and the first 100 pages of documents are not 

identified in the index. 

 A careful review of the record is made more difficult because there are no less than four 

different indexes in the record with no matching documents. For example, there are three 

different Tab 1 and none of them correspond to the Tab 1 documents introduced at the hearing. 

Compare pg. D000884 (Agency’s Closing Arguments to pg. D001108 (Dr. Kreso’s Reply) to pg. 

D353 (Emergency Room Committee Memo). 

 The record is not produced in the same manner in which it would have been kept by the 

DAB and the documents are not in the same order in which the DAB received the documents. 

Whether intentional or not, the disorganization of the record, also obscures the timing of when 

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Dr. Kreso received documents to prepare for his defense. For example, some of the documents 

in the record were never produced to Dr. Kreso, while other documents, such as the Decision of 

the AIB was not produced until a week before the DAB Hearing even though it was published on 

July 31, 2011. 

 Dr. Kreso respectfully requests this Court to compel the Defendants to complete the 

administrative record with (1) Dr. Kreso’s Attachments to his September 29, 2010 

Correspondence to the Disciplinary Appeals Board attached to this Motion as Exhibit “A” (2) the 

missing pages of AIB testimony as set forth in Footnote #1; (3) to produce an organized and 

orderly record which accurately identifies the documents reviewed by the DAB during the 

hearing. 

 Respectfully submitted this 30th day of April 2012. 

 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 

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CERTIFICATE OF SERVICE

 I hereby certify that on this 30th day of April, 2012, a true and correct copy of the 

foregoing PLAINTIFF DR. KRESO’S MOTION TO COMPEL COMPLETION OF THE 

ADMINISTRATIVE RECORD AND TO ORGANIZE THE ADMINISTRATIVE 

RECORD FOR ADEQUATE REVIEW was served via e-mail transmission upon the 

following counsel of record: 

Susan Prose 

Assistant United States Attorney 

U.S. Attorney's Office for the District of Colorado 

1225 17th Street, Suite 700 

Denver, CO 80202 

susan.prose@usdoj.gov

 Original document on file at Berenbaum 

 Weinshienk PC 

 S/Pamela Burkhardt 

 Pamela Burkhardt 

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