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 ERMIN KRESO, M.D.’S OPENING BRIEF 

   

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TABLE OF CONTENTS

I. BACKGROUND 2

 A. FACTUAL HISTORY 2

 B. PROCEDURAL HISTORY 8

II. STANDARD OF REVIEW 8

III ARGUMENT 9

 A. The Decision to Terminate Dr. Kreso Was Not Supported by 

Substantial Evidence 

9

 B. The Discharge Action Was Not Obtained in Accordance With the 

Procedures Required by Law, Rule or Regulation 

17

 1. The AIB investigation which was relied on by the DAB in 

rendering their decision did not give notice to Dr. Kreso of the 

identity of the patients for whom he was charged with substandard 

care, required Dr. Kreso to provide a defense to the charges 

without the patients’ medical information and refused to allow the 

physicians and nurses with first hand knowledge of Dr. Kreso’s 

care for the patients in question to testify. 17

 2. The VA failed to disclose to Dr. Kreso copies of all documents, 

transcripts, and memoranda gathered by the AIB which the VA had 

given to the DAB to use against him. 21

 3. The DAB’s decision was arbitrary and capricious and not in accord 

with the VA policy of penalizing employees in proportion to the 

character of the offense and treating similar offenses with similar 

penalties 

23

IV. CONCLUSION 26

 

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TABLE OF AUTHORITIES

Cases 

Bowman Transp. v. Arkansas-Best Freight Sys, Inc., 419 U.S. 281, 284, 

n.2, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); 9

Brewer v. United States Postal Serv., 647 F.2d 1093, 1098 (1981). 26

Brown, 860 F.2d at 888 26

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17, 91 

S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971)

8

Charles v. Blount, 430 F.2d 665, 666 (7th Cir. 1970) 21

Douglas v. Veterans Admin., 5 MSPB 313, 332-3, 5 M.S.P.R. 280 (1981) 23, 24, 25

Gilbert v. Johnson, 419 F.Supp 859, 876-877 (D.C. GA 1976) 20, 22

Greene v. McElroy, 360 U.S. 4747, 79 S.Ct. 1400, 3 L.Ed.2d 1377 21, 23

Jackson v. Veterans Admin., 768 F.2d 1325 1329 (Fed.Cir.1985) 16

Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 23

Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) 16

Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1573-74, (10th Cir. 

1994)

8

Stone v. Federal Deposit Ins. Corp., 19 F.3d 1368 (Fed.Cir.1999) 23

Streeten v. Wadsworth Veterans Hospital, 537 F.2d 361 (9th

 Cir. 1976) 18, 19

United States v. Heffner, 420 F2d. 809, 811 (4th

 Cir. 1969). 9

United Sates v. Schwartz, 176 F.Supp. 613, 615, aff’d, 283 F2d. 107 (3rd

Cir. 1960). 9

Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012... 23

Ward v. Brown, 22 F.3d 516, 521-2 (2d Cir. 1994) 24

Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994) 9

 

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Statutes 

38 U.S.C. § 7462 (f)(1) 8

38 U.S.C. §7462(f)(1) and (2) 8

5 U.S.C.A. Section 706 (2)(A) 8

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I. BACKGROUND

Plaintiff, Dr. Ermin Kreso, was discharged from the U.S. Department of Veterans Affairs 

on March 12, 2010. He has instituted this action against the Defendants Eric Shinseki, Secretary, 

United States Department of Veteran Affairs and the United States Veterans Administration 

(hereinafter “VA”) because his discharge from the VA was not supported by substantial 

evidence, violated his Fifth Amendment Due Process Rights as well as applicable Veterans 

Administrative regulations, and was arbitrary and capricious. Dr. Kreso seeks reinstatement with 

back pay. 

A. FACTUAL HISTORY

Plaintiff Dr. Ermin Kreso (hereinafter referred to as “Dr. Kreso”) is a physician (Dr. 

Kreso, pp. 690:24-691:4). During his residency, Dr. Kreso worked at the Denver VA Medical 

Center, including the Emergency Department, in 2003 (Dr. Kreso, pp. 691:24-692:13; 692:24-

693:5). After 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 

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

references. They were all physicians with the VA Medical Center with whom he had worked 

(Dr. Kreso’s personnel file, D001329). 

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 (Dr. Kreso’s personnel file, D001325). 

Dr. Kreso received proficiency reports in which he was rated satisfactory and above 

during the three year period, 2006 through 2009, prior to the commencement of the 

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Administrative Investigative Board (“AIB”) investigation (Dr. Meyer, p. 52:2-8 (received a 

100% out of a possible 100%); Dr. Baker p. 105:19-107:4). 

Dr. Kreso’s Reporting of Patients at Risk 

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 Meyer, Associate Chief of 

Staff for Academic Affiliations. In April, 2009, Dr. Kreso, concerned by the lack of attention 

given to his concerns by Dr. Meyer, engaged in certain whistleblowing activity. Specifically, Dr. 

Kreso reported to Dr. Weinshenker, Associate Chief of Service for Ambulatory Care 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. Weinshenker that security in the VA emergency department was not adequate. 

(Dr. Kreso’s, D000849-D000850. 

Investigation 

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 (Background, Board Action, p D000213, D001474-D002036). 

During the investigation, the AIB violated various rules and procedures of applicable VA 

regulations set forth in the VA Administrative Investigations Handbook, such as, inter alia, 

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 

ordering Dr. Kreso not to speak to anyone about the allegations against him (Memorandum from 

Dr. Baker to Dr. Kreso, D001470; Dr. Kreso, p. 694:16-20; Rima Nelson, pp. 585:24-586:3). 

The VA removed Dr. Kreso to the Compensation and Pension Unit which was located in a 

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completely different area of the hospital and prevented him from obtaining certain evidence for 

his defense (Ms. Roff, p. 495:17-23). The AIB also impeded the fact-finding investigation by 

refusing to call those physicians, nurses and witnesses with first-hand knowledge regarding the 

treatment of the patients whose care was being questioned (Dr. Kreso’s Supplement to Memo 

dated November 29, 2009, D001183). The VA also refused to permit Dr. Kreso’s attorney to 

ask him questions when he testified before the AIB. 

Discharge 

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

memorandum to Dr. Kreso ( D001361-D001365). 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 19, 2009 listing at least eleven Evidence Files that 

were missing or incomplete (p. D001293). 

Over two weeks later, on November 27, 2009, Dr. Kreso attempted to respond to the 

substance of the allegations against him (D00190-D001199). He still had not been given the 

Evidence files that comprised the evidence against him and on which Dr. Weinshenker based his 

decision in issuing the Proposed Discharge memorandum to Dr. Kreso (November 27, 2009 

Response by Dr. Kreso to Dr. Weinshenker’s Memo of November 13, 2001, D001190). Dr. 

Kreso noted in his response 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 

again requested copies of the documents (D001190-D001191). 

Dr. Kreso supplemented his response but without the documents he requested. 

Thereafter, Dr. Kreso requested a meeting with Director Roff (Memo from Dr. Kreso to Dr. 

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Weinshenker, D001159; Memo from Dr. Kreso to Lynette Roff, D001200-D001203). When Dr. 

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

patients. 

 On March 11, 2010, Lynette Roff, executed the Decision Letter on Dr. Kreso’s Proposed 

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

Kreso the evidence against him or an adequate opportunity to respond (Memorandum from 

Lynette Roff to Dr. Kreso, D001110). 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 

(Memo from AIB to Medical Center Director dated July 31, 2009, D00115-D001118). 

Disciplinary Appeals Board 

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

Board (“DAB”) and requested a hearing ( D002165-D002167). Dr. Kreso argued that the major 

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

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

patients was substandard or that he lacked competence to practice medicine (D002165-

D002167). 

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 (D002166). 

The Disciplinary Appeals Board hearing commenced on October 13, 2010 (Board Action, 

D002128). 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 

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continued to be denied access to documents reviewed by the AIB (D000010:11-11:1). In 

addition, Dr. Kreso had requested access to the documents in a Freedom of Information Act 

request which was also denied (D000012:8-D000018:14). Dr. Kreso appealed to the Central 

Office for production of these documents which was still pending at the time of the hearing 

(D001069 – D001070). 

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 ( D000018:15-D000019:5; 

Motion for Sanctions, D000909-D000912). The ex parte communication sent by VA 

physicians, Drs. S. Franzoso, Weinshenker and Blieden, to the DAB members and other 

witnesses testifying 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 

(Motion for Sanctions, D000909-D000912). 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. 

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

set forth in the VA Administrative Investigations Handbook including, inter alia, not allowing 

Dr. Kreso to call certain witnesses on his behalf, refusing to make 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 

(Correspondence from O’Hare to Ellen Stewart, D000990, Correspondence to DAB from Ellen 

Stewart, D000920-D00923). 

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

was never disclosed to Dr. Kreso and prevented Dr. Kreso from confronting the witnesses and 

evidence against him. 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” (Board Action, D0002131). 

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 and therefore creating the 

impression Dr. Kreso was not being entirely truthful (Dr. Kreso, p. 694:16-20; Rima Nelson, p. 

585:24 – 586:3). Similarly, the DAB also relied on evidence presented by Dr. Kreso to Director 

Roff which was provided without Dr. Kreso’s knowledge of the patients that were the subject of 

the proposed removal of him from employment at the VA. 

The DAB hearing demonstrated that the only basis for Defendants’ termination of Dr. 

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

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

against Dr. Kreso (Board Action, D002128-D002152). 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 

(Board Action, D002149). In addition, Dr. Sabharwal stated in her opinion that part of the 

reason for the impression that Dr. Kreso did not treat patients as other at the VA would was 

based upon his ethnic background (Board Action, D002151). 

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 

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(DAB, D002127). 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, the 

only ethnic minority on the panel and the only physician holding a similar position to Dr. Kreso, 

disagreed with the penalty of discharge (Board Action, D002149). 

 

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B. PROCEDURAL HISTORY

Dr. Kreso timely appealed the decision of the AIB, confirmed by the Director and the 

secretary, to discharge him and requested a hearing (Board Action, D002128). The DAB 

hearing was conducted from October 13, 2010 through mid-day on October 15, 2010 (Board 

Action, D002129). The DAB issued a decision sustaining in part the charges brought against Dr. 

Kreso (Board Action, D002128-D002152). By letter dated March 17, 2011, Robert Jesse, MD, 

Principal Deputy Under Secretary for Health affirmed the decision of the DAB. The Deputy 

Under Secretary’s decision constituted final administrative action of Dr. Kreso’s appeal to the 

DAB (DAB, D002127). 

Dr. Kreso timely filed his Complaint with the United States District Court, District of 

Colorado, on September 9, 2011, seeking judicial review of the VA’s major adverse action of 

termination imposed on him pursuant to 38 U.S.C. § 7462 (f)(1). 

II. STANDARD OF REVIEW

 The statutory basis for judicial review of a Disciplinary Appeals Board decision is found 

at 38 U.S.C. §7462(f)(1) and (2). Under subsection (2), “...the Court shall review the record and 

hold unlawful and set aside any agency action, finding, or conclusion found to be (A) arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law; (B) obtained without 

procedures required by law, rule or regulation having been followed; or (C) unsupported by 

substantial evidence.” 

 Although the agency’s decision should be a presumption of regularity, there are limits to 

the rule, such as when agency’s action was arbitrary, capricious, abuse of discretion or otherwise 

not in accordance with law, 5 U.S.C.A. Section 706 (2)(A); Citizens to Preserve Overton Park, 

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Inc. v. Volpe, 401 U.S. 402, 415-17, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971); Olenhouse v. 

Commodity Credit Corp., 42 F.3d 1560, 1573-74, (10th Cir. 1994). 

 An agency of the government must scrupulously observe the rules, regulations, or 

procedures it has established. When it fails to do so, its action cannot stand and courts will strike 

it down. United States v. Heffner, 420 F2d. 809, 811 (4th Cir. 1969). This rule is strictly applied 

when constitutional or statutory rights are violated. United Sates v. Schwartz, 176 F.Supp. 613, 

615, aff’d, 283 F2d. 107 (3rd Cir. 1960). 

III. ARGUMENT

A. THE DECISION TO TERMINATE DR. KRESO WAS NOT SUPPORTED BY SUBSTANTIAL 

EVIDENCE

 The Certified Administrative Record of Dr. Kreso’s discharge demonstrates that there 

was not substantial evidence to support a finding that Dr. Kreso failed in any way to provide 

adequate patient care. 

 The substantiality of the evidence must be based upon review of the record as a whole, 

and the Court is not free to disregard contrary evidence in the record. See Bowman Transp. v. 

Arkansas-Best Freight Sys, Inc., 419 U.S. 281, 284, n.2, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); 

Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994). 

 The Disciplinary Appeals Board (hereinafter “DAB”) sustained three of the specifications 

in Charge 1 accusing Dr. Kreso of failing to attend to five patients presenting to the emergency 

department for treatment. (DAB, Board Action, D002147). 

Charge 1 – Failure to attend to patients presenting to the Emergency Department for 

treatment

Specification 1-WB 

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 The first patient, WB, presented to the Emergency Department with a complaint that his 

urinary catheter was not draining (DAB 1403). The patient was triaged and seen by Florence 

McNeal, R.N. Ms. McNeal1 treated the patient by repositioning the Foley catheter, deflating and 

re-inflating the bulb resulting in a catheter that was draining well ((Medical Record of Patient 

WB, D001403). Upon discharge, the patient was comfortable and understood the discharge 

instructions (Medical Record of Patient WB, D001404,). 

 There was testimony at the DAB Hearing (“Hearing”) by several witnesses, both 

physicians and nurses that the repositioning, deflating and re-inflating of a Foley catheter is well 

within the scope of nursing practice in Colorado. (Judicial Notice by Dr. O’Hare, p. 97:5-7; Dr. 

Baker, p. 126:10-127:6; Dr. Weinshenker, p. 431:5-10; Dr. Kreso, p. 696:7-19.) The testimony 

also confirmed that Dr. Kreso was informed of the actions of Nurse McNeal and that he 

concurred in her treatment of the patient (Board Action, D002132). There was no evidence of 

any harm to this patient. The patient’s vital signs were all within the normal range (AIB Exhibit 

G-1). Further, there was no evidence that this patient requested to be seen by a physician (Dr. 

Kreso, p. 697:9-12). 

The DAB’s finding of substantial evidence to sustain this charge is contrary to the 

testimony and evidence in this case. The DAB sustained the charge based on testimony by Dr. 

Weinsheinker and Dr. Meyer that discharging the patient from the ED without being afforded a 

medical screening ran contrary to the expectations that all patients receive a screening exam and 

did not fulfill their obligation under the EMTALA (Dr. Weinshenker, p. 359:18-20, Dr. Meyer, 

pp. 43:23-44:6). The Board, however, completely ignored testimony by Dr. Meyer explaining 

that the VA was making greater efforts to get non-emergent patients out of the ED and instead 

                                                           

1 Ms. McNeal was listed as a witness by Dr. Kreso, is a current employee of the VA Medical Center in 

Denver, did not appear at the DAB Hearing and provided no testimony during the AIB investigation.

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treat them in a clinic appointment (Dr. Meyer, p. 64:5-25). The Board also ignored the series of 

emails ( D002046-D002087) written by Dr. Weinshenker collaborating Dr. Kreso’s testimony 

that certain level triage patients were not to be seen in the ED (Dr. Roff, p. 545:2-5) (not seen a 

policy and procedure in the emergency department that says physicians must treat every patient 

who walks in the door).

There was no dissemination from the Director’s office, through Center Memoranda, of 

VHA policy regarding the functioning of VA EDs. “We should have a Center Memorandum 

regarding the implementation of EMTALA at our VA” (Dr. Roff, p. 216:18-22). 

Three supervisors of the ED (Dr. Meyer, Dr. Baker, and Dr. Weinshenker) testified no 

written policies or guidance had been generated regarding the EMTALA (the Emergency 

Medical Treatment and Active Labor Act 42 USC 1395dd). “I doubt there were written policies” 

(Dr. Meyer, p. 65:8-11); “...regarding triage there is nothing authored by me or Dr. Weinshenker 

or the hospital...” (Dr. Baker, pp. 136:24-137:14); “I am not sure exactly how the emergency 

room is trained in this” (Dr. Weinshenker, p. 357:4-5); “I don’t believe there was a specific 

policy or communication regarding EMTALA”; “I am concerned that you did not find any 

written policy regarding triage” (Dr. Roff, p 555:9-14). 

 The DAB lacked any evidence to support this charge based on the uncontroverted 

testimony of Dr. Kreso that since this patient was a level 5 triage patient that he did not need to 

be seen by a doctor (Email string, D002046-D002087). This is confirmed by the undisputed 

testimony that Nurse West triaged patient WB and did not request Dr. Kreso see the patient (Dr.

Kreso, p. 697:9-12). 

The DAB completely ignored the email string introduced into evidence by Dr. Kreso and 

the fact that it was written by Dr. Weinshenker to establish guidelines for the care of ESI 

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Category 5 Patients and that corroborated Dr. Kreso’s treatment of patient WB. Dr. 

Weinshenker’s email addresses seeing patients with a triage level of 5, the lowest acuity rating, 

and confirms that patients with level 5 ratings are to be moved from the ER to clinic 

appointments (Email string, D002046-D002087). Dr. Weinshenker advises that “[i]deally, the 

ER wouldn’t see any patient that doesn’t need ER resources. There will be ongoing efforts to 

move in that direction.” (Email string, D002087.) The Emergency Department Policy provided 

to the veterans emphasizes that “this department’s primary function is to treat Emergency and 

Urgent medical conditions only” (Dr. Baker, pp. 117:19-118:7, 118:12-119:11, D002342-

D002343). 

Specification 2 - DW 

 The second patient, DW, never presented to the Emergency Department for treatment 

(DAB Board Action, p. 2133). The veteran presented to the Administrative Officer on Duty with 

a request for lodging (Board Action, p. 2133, Officer Weston, p. 227:11-22, Dr. Kreso, pp.

702:21-703:19). Dr. Kreso testified, that at the time he spoke to DW and informed him that in 

order to be lodged he would need sufficient supplemental oxygen, that DW was not short of 

breath and in no acute distress (Dr. Kreso, pp. 53:5-20; 706:1-19, see also Officer DeDiemar, p 

D000607:20-608:4). 

 The DAB’s reliance on the lay testimony of one of the two police officers does not 

provide substantial evidence for sustaining this charge. Dr. Sabharwal did not find the charge 

was sustained. Dr Sabharwal determined: 

...there was not sufficient evidence that the patient was in respiratory distress 

requiring medical services of a provider and no evidence that patient checked into 

the emergency room. (DeDiemar Transcript, pp. 265:9-14; 266:2-10; 267:13-17; 

268:3-7; 276:23) testimony contradicted Officer Weston’s testimony 

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(Testimony AIB, 6:14-19 by the AOD, 7:10-12) (Weston Transcript, pp. 206:7-12, 

215:13-14, Board Action, DAB, p. 2150). 

 The DAB lacked substantial evidence to sustain the charge against Dr. Kreso for failing 

to attend to patients presenting to the emergency department for treatment since here there is no 

evidence in the record that this veteran was ever checked into the Emergency Department for 

treatment. This case involves a patient who presented for lodging, not care and treatment. 

Ultimately, the veteran received oxygen and was lodged. 

Specification 5 - IS 

Patient IS suffers from multiple chronic conditions including sleep apnea (IS Testimony, 

p. 310:17-25). IS stated he was a registered nurse (IS Testimony, p. 300:7-15). He testified that 

Dr. Kreso failed to perform a complete medical exam when he presented to the Emergency 

Department with “problems breathing for the last couple of days that at night I cannot lay down 

sleep” [sic] according to the triage notes (IS testimony, pp. 308:17-309:6).2

 IS also stated he 

believed Dr. Kreso’s counseling him on the improper use of the Emergency Department was not 

appropriate (IS Testimony, p. 301:8-24). IS filed a complaint with the VA Medical Center (IS 

Testimony, pp. 304:25-305:4). Dr. Baker, Dr. Kreso’s supervisor, never responded to the 

complaint3 according to IS, although she faults Dr. Kreso for his treatment of this patient (IS 

Testimony, pp. 306:9-22). 

The DAB sustained this specification despite the testimony above even after finding that 

it was probable that IS did not emphasize chest pains to the triage nurse and that IS is 

inaccurately recalling that detail (Board Action, D002139). Dr. Kreso testified IS had normal 

                                                           

2 IS testified that he presented to the ED with chest pains and shortness of breath but there is no record of 

this in the progress notes of the nurse or Dr. Kreso (D001442-D001445). 

3

 The evidence shows Dr. Baker even had to be reminded to answer the complaint and she continued to 

ignore this patient (IS Testimony, p. 306:9-22).

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vital signs and never complained of chest pains or shortness of breath (Dr. Kreso, pp. 734:5-

735:7). 

The DAB does not cite to any evidence that Dr. Kreso did not perform a chest exam, 

other than the patient’s testimony that Dr. Kreso just examined his upper back. Dr. Kreso 

testified that he performed an ENT exam and listened to all four lobes (Dr. Kreso, pp. 735:11-

736:16). 

The Board sustained Specification 5 without a scintilla of evidence that Dr. Kreso failed 

to attend to patient IS and instead found against Dr. Kreso on evidence only that patient IS was 

dissatisfied with the encounter because Dr. Kreso told him not to utilize the ED resources for 

issues such as this in the future (IS testimony, p. 301:8-24). Dr. Sabharwal again found there was 

insufficient evidence to sustain this specification (Board Action, D002150). 

Charge 3 – Patient Neglect – Delay of Care to Patients

 Specification 1 – GS. GS was a patient of Dr. Kreso’s on many prior occasions and it 

was clear that they had a good rapport (Dr. Kreso, p.744:4). Dr. Kreso testified that he would 

have not decreased the triage level on GS as he knew his condition and in fact would have 

increased it (Dr. Kreso, p. 744:1-6).4

 It also is highly suspect that Dr. Kreso was even the person 

who changed the triage level as the patient was not even triaged until the last hour of Dr. Kreso’s 

shift (Dr. Kreso, pp. 744:21-745:19). There would be no reason for him to change this level. 

 The only testimony to support the Board’s finding was that of Nurse Back who the Board 

found to be “overly antagonistic” toward Dr. Kreso (Board Action, D002131). Dr. Kreso denied 

seeing this patient (Dr. Kreso, p. 743:19-21). In addition, the wife of the patient, GS, stated they 

knew Dr. Kreso and never testified Dr. Kreso was the physician working that night. MS testified 

                                                           

4 In his response to the Proposed Discharge, Dr. Kreso indicated he might have changed this triage level 

but testified he did not know the name of the patient until one week before the Hearing and not at the time 

of his response to the Proposed Disciplinary Letter (Dr. Kreso, pp. 742:14-19, 743:10-13). 

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they had no complaints about the care given by Dr. Kreso to her husband (Patient GS testimony 

through his wife, MS, p. 331:24-332:9). 

Charge 6 – Disruptive Behavior

 The final Charge brought against Dr. Kreso was for alleged disruptive behavior between 

him and Judy Cooley, Legal Compensation and Pension (C&P) Program Support Assistant. 

 At the DAB hearing, Dr. Kreso had his first opportunity, in person, to tell his side of the 

story regarding this allegation, as it was not part of the AIB investigation (Dr. Kreso, p. 756:15-

20). He indicated that he did not perceive that Ms. Cooley was feeling intimidated and when he 

learned of that fact, he apologized to her (Dr. Kreso, pp. 756:21-757:9). Dr. Kreso stated that he 

did not apologize to her in person as he was prevented from seeing her by a directive from Dr. 

Weinshenker (Dr. Kreso, p. 757:2-8). Dr. Kreso does not deny that an incident occurred, 

however, it is clear from the evidence that the incident was blown all out of proportion and 

continued to be before the Hearing. At no time did Ms. Cooley testify that she was so upset she 

was afraid to go home after the incident and also did not testify that she asked him to leave the 

area (Judy Cooley, p. 264:6-15). 

 The Board sustained this Charge without any evidence to support a finding of disruptive 

behavior. In fact, while the Board asserts that Ms. Cooley felt uncomfortable and threatened by 

Dr. Kreso’s behavior, Ms. Cooley testified that she didn’t ask Dr. Kreso to move, and didn’t tell 

him she was nervous (Judy Cooley, p. 264:6-15). Dr. Franzoso, a psychiatrist who observed the 

situation, felt no need to come out and help Ms. Cooley or intervene (Judy Cooley, pp. 248:5-18, 

278; Dr. Franzoso, pp. 276:5-21, 278:3-9). Neither Ms. Cooley or Dr. Franzoso wrote a report 

of the incident until they were asked to do so by Ms. Cooley’s and Dr. Kreso’s supervisor (Dr. 

Franzoso, p. 280:12-14). 

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 Dr. Sabharwal found that the evidence that came out in the hearing, while it may have 

been inappropriate and confrontational, did not rise to the level of disruptive evidence (Board 

Action, D002151). 

 “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion...[I]t must be enough to 

justify, if the trial were to a jury, a refusal to direct a verdict...” Jackson v. Veterans Admin., 768 

F.2d 1325 1329 (Fed.Cir.1985). “Evidence is not substantial if it is overwhelmed by other 

evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 

1374 (10th Cir. 1992). 

 The DAB concluded that only two (2) of the charges against Dr. Kreso involved “a 

component of substandard care” specifically, Charge 1-Specification 2 and Charge 3-

Specification 1 (Board Action, D002148). 

 As set forth above, Specification 2 in Charge 1 relating to the care of Patient DW, had 

nothing to do with Dr. Kreso’s failure to attend to a patient presenting to the ED for treatment 

and therefore the Board could not have substantial evidence to sustain this charge. Rather, 

Patient DW presented for lodging. At no time did this patient seek treatment in the Emergency 

Department nor was he ever admitted to the Emergency Department. 

 The other Charge the Board sustained against Dr. Kreso for neglecting patients care 

lacked any evidence to support the Board’s finding that Dr. Kreso actually treated GS. Dr. Kreso 

testified he knew GS, and would have increased his triage level, not decreased it. The Board 

relied solely on Nurse Back’s testimony who they had previously determined to be “overly 

antagonistic towards Dr. Kreso” (Board Action, D002131). 

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 Regarding the other Specification in Charge 1, which also did not contain any allegations 

of substandard care, the evidence is undisputed that triage level 5 patients did not require to be 

seen by a physician and that treatment by a nurse was sufficient. Patient WB, was determined to 

be a level 5 triage patient and therefore properly treated at the ED. 

The final Charge sustained by the DAB for disruptive behavior against Dr. Kreso was 

based on the Board’s conclusions that Ms. Cooley was threatened by Dr. Kreso’s behavior. Ms. 

Cooley’s own testimony and the testimony of Dr. Franzoso, who was there but did not feel the 

need to intervene, does not rise to the level of disruptive behavior. 

A. THE DISCHARGE ACTION WAS NOT OBTAINED IN ACCORDANCE WITH THE 

PROCEDURES REQUIRED BY LAW, RULE OR REGULATION

1. The AIB investigation which was relied on by the DAB in rendering their 

decision did not give notice to Dr. Kreso of the identity of the patients for whom 

he was charged with substandard care, required Dr. Kreso to provide a defense to 

the charges without the patients’ medical information and refused to allow the 

physicians and nurses with first hand knowledge of Dr. Kreso’s care for the 

patients in question to testify. 

38 U.S.C. § 7462 provides the procedures for taking major adverse actions involving 

professional conduct or competence against VA employees appointed under the provisions of 

section 7401(1). The Certified Administrative Record of the discharge action reflects that Dr. 

Kreso’s discharge was not taken in accordance with the procedures provided in 38 U.S.C. § 7462 

and applicable VA regulations. 

The Veterans Administration regulations provide for due process for Section 7401 

employees in any case in which charges are brought arising out of a question of professional 

conduct or competence which could result in major adverse action against the employee. (V.A. 

Manual MP-5, Part 1, Chap. 12, Section A, and G-1; VA Directive 5021, App A 4(d) 1009-

1011). The right to a fair proceeding requires at a minimum, that the employee be given notice 

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of the charges and the evidence against him, Streeten v. Wadsworth Veterans Hospital, 537 F.2d 

361, 368-369 (9th Cir. 1976). The AIB investigation, which became part of the DAB file and 

was relied on by the DAB in its decision to discharge Dr. Kreso, did not inform Dr. Kreso of the 

charges against him when he testified. Dr. Kreso was told only that the purpose of the AIB 

investigation was to look at acts of omission or commission in his care. He was not given his 

notes of the care he provided prior to or during his testimony before the AIB, in spite of his 

request for, at the very least, the names of the patients (Dr. Kreso, p. 694:16-20). Contrary to 

fundamental due process, Dr. Kreso was not told the names of the patients he was accused of 

providing insufficient care or allowed to review their medical records. 

The Notice of Proposed Discharge issued by Dr. Donald Weinshenker on November 13, 

2009, did not attach the evidence on which the notice of proposed action was based as set forth 

in Dr. Weinshenker’s correspondence. Dr. Kreso wrote Dr. Weinshenker listing at least 11 

Evidence Files that were alleged to be attached to the Notice of Discharge and were missing or 

incomplete. (Correspondence from Dr. Kreso to Dr. Weinshenker dated November 17, 2009, 

D001158). 

 On November 29, 2009, Dr. Kreso responded to the substance of the allegations against 

him still without having been able to review the missing documents and exhibits. 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 (Memorandum from Dr. Kreso to Director 

dated November 29, 2009, D001208-D001218). 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 (Memorandum from Dr. Kreso to Director dated November 29, 2009,

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D001208). Dr. Kreso asked that he be allowed to supplement his response once he received the 

missing documents. 

 Notice of the charges and knowledge of the evidence against an employee are the 

cornerstones of due process required even where the property interest in continued employment 

is less than the procedural due process protection provided to Dr. Kreso as a full time § 7401(1) 

employee. In Streeten v. Wadsworth Veterans Hospital, a resident physician in pathology at a 

veteran’s hospital brought suit to enjoin his dismissal from the residency program, Streeten v. 

Wadsworth Veterans Hospital, 537 F.2d 361 (9th Cir. 1976). The U.S. District Court enjoined 

the physician’s dismissal and defendants appealed. The Ninth Circuit Court of Appeals found 

that residents are not “physicians” within the statute providing for a full adversary hearing in 

front of a disciplinary board. Even so, the Court found that a resident’s interest is important 

enough that he should have notice of his deficiencies, should have an opportunity to examine the 

evidence against him, and should be allowed to present his side of the story to the decisionmaker. Id. at 368-369. These procedures will insure that all relevant data is before the decisionmaker and will allow the terminated resident and any reviewing court to judge whether the 

decision-maker acted in bad faith or arbitrarily and capriciously. Id.

This lack of fundamental due process was further compounded at the DAB hearing. The 

DAB compared Dr. Kreso’s testimony to his testimony at the AIB and determined he was not 

credible because his testimony at the AIB was different as to some patients than his testimony at 

the DAB (Board Action, 2131). However, as set forth above, Dr. Kreso’s testimony was given at 

the AIB without knowing who the patients were that were in question, without having his notes 

of medical care of the patient and without having the patient’s medical records (Dr. Kreso, p.

694:16-20; Rima Nelson, pp. 585:24 – 586:3). Dr. Kreso testified during the DAB, for example, 

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that he had thought the AIB was asking him about a different patient than patient GS when he 

testified he had changed the patient’s triage level (Dr. Kreso, pp. 742:14-19; 743:10-13). 

The Veterans Administration Regulations provide for the following principal due process 

procedures before a V.A. disciplinary board: 

h. The employee will have the right to call upon witnesses, who, if willing to 

testify, will be heard. The Chairman, Disciplinary Board, will, on his own 

initiative or at the request of the employee, call such witnesses as may be 

necessary to develop the evidence. It will be considered the duty of all VA 

employees who appear as witnesses to furnish information fully and honestly 

whether it be favorable or derogatory to the employee charged. 

i. The Chairman, Disciplinary Board, will permit the parties to the case to 

ask questions of witnesses and will use reasonable discretion to exclude irrelevant 

testimony in order to uncover, develop and consider all pertinent facts. Both sides 

will have opportunity to properly present and support their respective positions 

upon any question or matter presented to the board for decision. 

p. The findings and recommendations of a Disciplinary Board will be based solely 

on the evidence presented and will not be influenced by any knowledge of other factors 

in the case. 

Gilbert v. Johnson, 419 F.Supp 859, 876-877 (D.C. GA 1976) 

Despite Dr. Kreso’s requests and the principal due process procedures set forth above, the 

DAB 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 and other witnesses with 

first hand knowledge of the care for the patients provided by Dr. Kreso, including Florence 

McNeal (Dr. Kreso’s Initial Witness List, D000921-D000922, Correspondence from O’Hare to 

Ellen Stewart, D000990). 

 

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2. The VA failed to disclose to Dr. Kreso copies of all documents, transcripts, 

and memoranda gathered by the AIB which the VA had given to the DAB to 

use against him.

The VA failed to disclose to Dr. Kreso copies of all documents, transcripts, and 

memoranda gathered by the AIB which the VA had given to the DAB to use against him 

including the report of a consulting expert relied on by the DAB in rendering their decision. 

 The minimal requisites of due process in the administrative hearing is defined as whether 

the employee was accorded a fair and open hearing on articulated charges with the right of 

confrontation and cross-examination, Charles v. Blount, 430 F.2d 665, 666 (7th Cir. 1970). Dr. 

Kreso was denied his right of confrontation and cross-examination because documents, 

transcripts, and other memoranda including VA expert, Dr. J. Brian Hancock’s report were relied 

on by the DAB without giving Dr. Kreso the opportunity to review them, ask or cross-examine 

witnesses questions about them or the drafters of the report (Dr. Hancock’s Report, p D000926-

D000928). 

An employee’s denial of the right to effectively cross-examine and confront the evidence 

and witnesses against him denies him due process of law. In Greene v. McElroy, the Supreme 

Court held that Greene’s right to hold private employment, in this case a security clearance, 

required he be allowed to cross-examine and confront the evidence and witnesses against him, 

Greene v. McElroy, 360 U.S. 474, 79 SCt 1400, 3 L.Ed 2d 1377 (1959). The Court specifically 

found that the agency, the Industrial Security Board, could not question Greene from secret 

reports and confidential statements which the Board did not show him for security reasons. The 

Court stressed that the evidence used to prove the Government's case must be disclosed to the 

individual so that he has an opportunity to show that it is untrue. It is even more important, the 

Court noted, where the evidence consists of the testimony of individuals whose memory might 

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be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, 

intolerance, prejudice, or jealousy. 

The Greene Court emphasized: 

Certain principles have remained relatively immutable in our jurisprudence. One 

of these is that where governmental action seriously injures an individual, and the 

reasonableness of the action depends on fact findings, the evidence used to prove 

the Government’s case must be disclosed to the individual so that he has an 

opportunity to show that it is untrue. While this is important in the case of 

documentary evidence, it is even more important where the evidence consists of 

the testimony of individuals whose memory might be faulty or who, in fact, might 

be perjurers or persons motivated by malice, vindictiveness, intolerance, 

prejudice, or jealousy. We have formalized these protections in the requirements 

of confrontation and cross-examination. They have ancient roots. They find 

expression in the Sixth Amendment which provides that in all criminal cases the 

accused shall enjoy the right ‘to be confronted with the witnesses against 

him...This Court has been zealous to protect these rights from erosion. It has 

spoken out not only in criminal cases but also in all types of cases where 

administrative and regulatory actions were under scrutiny.’ 

Id. at 1413-1414 (citations omitted). 

Here, the DAB relied on the testimony of Patricia Lyman, Sylvia Murray, Karla Perkins, 

Kim Ator, Michael Blieden, Francis Keffler, Mark Phillips, Carlos Montoya and Ann Jordway, 

without allowing Dr. Kreso to cross-examine these witnesses and demonstrate to the DAB their 

inconsistencies, and bias. See e.g. Gilbert v. Johnson (reports of preliminary investigation 

preceding letter of charges against physician did not substantially prejudice any due process 

rights of physician where neither physician nor disciplinary board had access to preliminary 

investigation reports compiled by Veterans Administration, and all evidence, documents and 

witness statements presented against physician at hearing were available for inspection, 

confrontation and cross-examination) (emphasis added). See also Charles v. Blount, 430 F.2d 

665, 666 (7th Cir. 1970) (in reviewing the employee’s discharge for its conformance with the 

requirements of administrative due process, defined the minimal requisites of due process as: 

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“...i.e., whether the employee was accorded a fair and open hearing on articulated 

charges with the right of confrontation and cross-examination. Morgan v. United 

States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129...; Vitarelli v. Seaton, 359 U.S. 

535, 79 S.Ct. 968, 3 L.Ed.2d 1012...; Greene v. McElroy, 360 U.S. 4747, 79 S.Ct. 

1400, 3 L.Ed.2d 1377...” 

 The DAB relied on ex parte contact with Dr. J. Brian Hancock, allegedly a Chief of Staff 

who expressed the opinion that “Dr. Kreso has demonstrated multiple episodes of failure to meet 

acceptable standards of clinical practice, patient abandonment, and potential violation of the 

Emergency Medicine Treatment and Active Labor Act, disruptive behavior and the creation of a 

hostile work environment (Dr. Hancock’s Report, D000928).” Dr. Kreso was denied his due 

process rights to cross-examine this undisclosed expert, or question him on the documents or 

testimony he reviewed in making his opinion or even his expertise to render an opinion in this 

case. 

This evidence was new and material information violating Dr. Kreso’s due process 

guarantee of notice. “[T]he introduction of new and material information by means of ex parte

communications to the deciding official undermines the public employee’s constitutional due 

process guarantee of notice...and the opportunity to respond.... It is constitutionally 

impermissible to allow a deciding official to receive additional material information that may 

undermine the objectivity required to protect the fairness of the process.” Stone v. Federal 

Deposit Ins. Corp., 179 F.3d 1368, 1376-1378 (Fed.Cir.1999). 

3. The DAB’s decision was arbitrary and capricious and not in accord with the 

VA policy of penalizing employees in proportion to the character of the 

offense and treating similar offenses with similar penalties 

 The DAB’s penalty was arbitrary and capricious because the DAB did not consider the 

relevant factors and strike a reasonable balance within tolerable limits of reasonableness as 

required by the VA regulations. Douglas v. Veterans Admin., 5 MSPB 313, 332-3, 5 M.S.P.R. 

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280 (1981). Douglas lists twelve factors that courts and review boards should use to determine 

whether a penalty is appropriate: 

1) the nature and seriousness of the offense, and its relation to the 

employee’s duties, position and responsibilities, including whether the 

offense was intentional or technical or inadvertent, or was committed 

maliciously or for gain, or was frequently repeated;

2) the employee’s job level and type of employment, including supervisory 

or fiduciary role, contacts with the public and prominence of the position;

3) the employee’s past disciplinary record;

4) the employee’s past work record, including length of service, performance 

on the job, ability to get along with fellow workers, and dependability;

5) the effect of the offense upon the employee’s ability to perform at a 

satisfactory level and its effect upon the supervisor’s confidence in the 

employee’s ability to perform assigned duties.

6) consistency of the penalty with those imposed upon other employees for 

the same or similar offenses;

7) consistency of the penalty with any applicable agency table of penalties;

8) the notoriety of the offense or its impact upon the reputation of the 

agency;

9) the clarity with which the employee was on notice of any rules that were 

violated in committing the offense, or had been warned about the conduct 

in question;

10) potential for the employee’s rehabilitation;

11) mitigating circumstances surrounding the offense such as unusual job 

tension, personality problems, mental impairment, harassment, or bad 

faith, malice or provocation on the part of others involved in the matter; 

and 

12) the adequacy and effectiveness of alternative sanctions to deter such 

conduct in the future by the employee or others.

The DAB and therefore the Under Secretary failed to consider the sixth Douglas factor, 

the consistency of the penalty with those imposed upon other employees for the same or similar 

offenses. Douglas, 5 MSPB at 332, 5 M.S.P.R. 280. See Ward v. Brown, 22 F.3d 516, 521-2 (2d 

Cir. 1994) (reversing discharge for failure to consider regulation mandating that VA employees 

be given like penalties for like offenses). 

In addition, while acknowledging there were mitigating circumstances, the DAB failed to 

consider the mitigating factors that would counsel against dismissal. The Board relied solely on 

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Ms. Roff’s analysis and concluded that she had reached her conclusion in an appropriate fashion. 

‘Douglas Factor Analysis.’ Ms. Roff testified she did not look at any mitigating factors (Roff, p.

539:4-9). Nowhere does the Board mention Dr. Kreso’s high performance or even how all these 

complaints occurred within a 3-month period of time (Dr. Meyer, p. 52:2-8 (received a 100% out 

of a possible 100%); Dr. Baker pp. 105:19-107:4). 

It is also undisputed that the VA failed to give Dr. Kreso notice that his behavior was not 

acceptable and also failed to provide him counseling as required by VA regulations and another 

factor the DAB should have taken into consideration in deciding Dr. Kreso’s penalty (Dr. Meyer, 

pp. 66:16-67:10; Douglas at 332-3). 

Each of Dr. Kreso’s supervisors failed to bring a formal progressive disciplinary course 

of action that might have altered Dr. Kreso’s behavior. “I did not consider my discussions with 

Dr. Kreso formal counseling.” (Dr. Meyer, p. 66:16-22); “Not written, but we have spoken 

about that” (Dr. Baker, p. 110:5-18); “No counseling action was ever taken for the charges 

before this Board” (Dr. Baker, pp. 142:9-143:5, Dr. Weinshenker Transcript, p. 110:12-14). 

Dr. Kreso’s supervisors did not consider alternate approaches to altering his behavior as 

outlined in the Medical Staff By-Laws the governing document for the medical staff at the VA 

hospital. 

Dr. Sabharwal noted these mitigating factors and determined that the penalty of discharge 

was not warranted (Board Action, D002149). Yet the DAB did not even consider these 

mitigation factors, each one of which is a factor required to be considered in its penalty 

determination: 

 No prior disciplinary action by Veterans Administration;

 No actual harm to patients or VA reputation or public image;

 Lack of documented progressive discipline or counseling;

 No evidence of intentional wrongdoing.

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 Excessive duty hours (70 hours in a week) contributing to job related stress;

 No defined Emergency room triage policy, lack of clarity instructions and 

supervision 

(Board Action, D002149)

Dr. Sabharwal advised in her minority opinion that two of the Board members (including 

herself) believed the penalty of discharge was an extreme/harsh choice and that she disagreed 

with the penalty of discharge (Board Action, D002149). 

The Court must examine the severity of the penalty in light of factors such as “the range 

of permissible punishment specified by statute or regulation, the disciplined party’s job level and 

nature, his record of past performance, the connection between his job and improper conduct 

charges, and the strength of the proof that the conduct occurred.” Brown, 860 F.2d at 888 

(quoting Brewer v. United States Postal Serv., 647 F.2d 1093, 1098 (1981). 

The DAB has provided an insufficient explanation for its penalty and blatantly failed to 

take into consideration the mitigating factors required by VA regulations. 

IV. CONCLUSION

The DAB decision, approved by the Under Secretary, was not supported by substantial 

evidence, was obtained without procedures required by law, rule or regulation having been 

followed, and was arbitrary, capricious, an abuse of discretion and otherwise not in accordance 

with the VA policy of penalizing employees in proportion to the character of the offense and 

treating similar offenses with similar penalties. The Court should remand this matter back to the 

Defendants for a proper hearing including fundamental due process and a proper weighing of the 

Douglas factors in determining its penalty, if any, against Dr. Kreso.

 

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Respectfully submitted this 18th day of June, 2012. 

 BERENBAUM WEINSHIENK PC 

Original signature on file at Berenbaum Weinshienk 

PC

 s/ Rosemary Orsini 

 Rosemary Orsini 

 Ellen Elizabeth Stewart 

370 Seventeenth Street, Suite 4800 

 Denver, Colorado 80202 

 Telephone: (303) 592-8305 

 Facsimile: (303) 629-7610 

CERTIFICATE OF SERVICE

 I hereby certify that on this day of 18th day of June, 2012, a true and correct copy of the 

foregoing PLAINTIFF DR. KRESO’S OPENING BRIEF 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 / Sherrol Hall 

 Sherrol Hall 

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