Kreso v. Shinseki et al

Filing 13

ORDER. The Defendants Motion To Reassign Case To AP Docket and ToVacate Scheduling/Planning Conference 5 filed 11/9/2011, is GRANTED. This case SHALL BE RESIGNED to the AP docket. The Order of Reference To United States Magistrate Judge 2 filed 9/12/2011, is VACATED. By Judge Robert E. Blackburn on 12/21/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-02378-REB-MJW
ERMIN KRESO, M.D.,
Plaintiff,
v.
ERIC SHINSEKI, Secretary, United States Department of Veterans Affairs, and
THE UNITED STATES VETERANS’ ADMINISTRATION,
Defendants.
ORDER GRANTING MOTION TO REASSIGN
Blackburn, J.
This matter is before me on the Defendants’ Motion To Reassign Case To “AP”
Docket and To Vacate Scheduling/Planning Conference [#5]1 filed November 9, 2011.
The plaintiff filed a response[#10], and the defendants filed a reply [#11]. I grant the
motion.
The plaintiff, Ermin Kreso, M.D., formerly was an employee of the United States
Department of Veterans Affairs. Under 38 U.S.C. § 7401(1), Dr. Kreso was a full time
permanent employee, who was employed to work as a physician. Dr. Kreso’s
employment was terminated in March, 2010. In his complaint [#1], Dr. Kreso asserts two
claims for relief. In Count One of his complaint [#1], Dr. Kreso seeks review of the
defendants’ administrative actions that led to Dr. Kreso’s termination. Complaint, ¶¶ 41 46. The plaintiff seeks this review under 38 U.S.C. § 7462. Response [#10], p. 2. In
Count Two of his complaint, the plaintiff asserts a claim for injunctive relief that is

1
“[#5]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.

necessarily based on his claim for review of the defendants’ administrative action.
Under § 7462, “the court shall review the record and hold unlawful and set aside
any agency action” found not to satisfy the standards specified in that statute. Such a
claim includes claims that the administrative action was “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law,” was obtained without procedures
required by law, or was unsupported by substantial evidence. 38 U.S.C. § 7462(f)(2). In
Count One of his complaint, titled “Review of the Administrative Action,” Dr. Kreso
alleges that a variety of actions taken by the Administrative Investigative Board (AIB),
which actions culminated in Dr. Kreso’s termination, and actions taken by the Disciplinary
Appeals Board, which upheld the AIB’s decision, were improper. Complaint [#1], ¶¶ 41 46. As part of this claim, the plaintiff alleges unlawful retaliation and violation of his right
to due process of law. These allegations, as stated in the plaintiff’s complaint, properly
are considered as part of his § 7462 claim. Section 7462(f)(2) requires a court to set
aside any agency action obtained without procedures required by law or “otherwise not in
accordance with law.” 38 U.S.C. § 7462(f)(2). Thus, if the plaintiff’s due process rights
were violated during the relevant administrative procedure, or if an administrative
decision was taken based on an improper retaliatory motive, those procedures and the
administrative decision are subject to review under § 7462(f)(2). Nothing in Count One
of the complaint indicates that the plaintiff seeks to assert a claim for relief independent
of the administrative review available under § 7462(f)(2).
Ultimately, Dr. Kreso seeks a judgment holding that the defendants failed to abide
by the Veterans Administration’s governing statutes and regulations in administering the
procedures that led to Dr. Kreso’s termination and declaring his termination to be invalid.
Complaint, p. 14. He seeks reinstatement, an award of back pay, and an injunction

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prohibiting the defendants from taking any adverse action based on the procedures that
led to Dr. Kreso’s termination. Id.
In their motion to reassign, the defendants ask that this case be reassigned to this
court’s AP docket, arguing that the plaintiff asserts in his complaint a claim for review of
an administrative decision. The defendants contend that this case should be handled as
an AP case because discovery, witness disclosures, and other pretrial procedures are
unnecessary and inappropriate in a case involving review of an administrative decision.
Rather, under § 7462, the court must review the administrative record to determine if the
defendants’ administrative decision was lawful.
In his response, the plaintiff argues that his claims are not limited to review of an
administrative decision. He asserts that he also has alleged due process violations,
which occurred prior to his Disciplinary Appeals Board hearing, and retaliation for his
whistle blowing activities.2 In addition, the plaintiff notes that he requests injunctive
relief, including a temporary restraining order, preliminary injunction, and permanent
injunction. Finally, the plaintiff argues that the Local Rules of Practice of the United
States District Court for the District of Colorado - AP Rules do not apply to this case.
D.C.COLO.LAPR Rule 1.1.C. provides that the AP Rules apply to social security
appeals, bankruptcy appeals, and cases commenced under 5 U.S.C. § 706.
D.C.COLO.LAPR Rule 1.1.C. does not mention review under § 7462(f)(2).
I conclude that this case should be handled as an AP case. The most reasonable

2
Notably, there is some question about the types of claims Dr. Kresko can assert independent of
his § 7462 claim for review of the administrative decision. See Franks v. Nimmo, 796 F.2d 1230, 1240
(10th Cir. 1986) (review available to VA employee under Administrative Procedures Act bars independent
claim for damages based on alleged deprivation of constitutional rights); Mitchum v. Hurt, 73 F.3d 30, 32 36 (3rd Cir. 1995) (availability of relief under 38 U.S.C. § 7462(f)(1) does not bar suit for injunctive relief, but
not damages, based on alleged constitutional violation).

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reading of the claim asserted in Count One of the plaintiff’s complaint is that the plaintiff
asserts a claim for review of the defendants’ administrative action under

§ 7462. This

claim is captioned “Review of the Administrative Action.” Complaint, p. 8. Each of the
improper actions alleged in Count One are subject to review under § 7462. The plaintiff’s
complaint cannot reasonably be read to assert a due process claim or a retaliation claim
that are not part and parcel of his § 7462 claim.
D.C.COLO.LAPR Rule 1.1.C. does not include review under § 7462(f)(2), but
review under that statute is substantially similar to an appeal of an administrative
decision under 5 U.S.C. § 706, part of the Administrative Procedures Act (APA).
Notably, the standards specified in § 7462(f)(2) are similar to, although not identical to,
the standards for review of an administrative decision under 5 U.S.C. § 706. More
important, the procedures necessary to resolve the plaintiff’s § 7462 claim are essentially
the same as the procedures necessary to resolve a claim under the APA.
Further, as the defendants note, the text of D.C.COLO.LAPR Rule 10.2.C.
indicates that Dr. Kreso’s case properly is treated as an AP case. Rule 10.2.C. provides:
Review of an order, decision, rulemaking, or other final action of an
administrative agency pursuant to an agency’s establishing statute or the
Administrative Procedure Act is commenced by filing a properly
denominated complaint or petition for relief as specified by the statute
under which relief is requested. The complaint or petition for relief shall
include factual allegations relating to the grounds on which the agency
action is being challenged and the legal basis for plaintiff/petitioner’s
entitlement to relief.

In his complaint, Dr. Kreso seeks review of a decision of the Department of Veteran’s
Affairs under the statutory scheme establishing the Veterans Health Administration and
regulating personnel procedures of the Veterans Health Administration. 38 U.S.C. §§
7301 - 7464. Dr. Kreso’s complaint falls within the class of cases described in

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D.C.COLO.LAPR Rule 10.2.C.
The fact that Dr. Kreso seeks injunctive relief does not alter the status of this case.
Dr. Kreso seeks injunctive relief based on the alleged violation of his “due process rights
and the procedurally flawed hearing . . . .” Complaint, ¶ 48. These contentions are part
of his claim seeking review under § 7462(f)(2). He contends that if his termination is
reported to certain committees and data banks, he will be irreparably harmed even if he
“ultimately prevails and obtains a determination that he should never have been
terminated from the Denver Veterans Administration Medical Center.” Complaint, ¶ 50.
Dr. Kreso’s claim for injunctive relief necessarily is based on his underlying § 7462 claim.
His claim for injunctive relief does not transform this AP case into a non-AP case..
THEREFORE, IT IS ORDERED as follows:
1. That the Defendants’ Motion To Reassign Case To “AP” Docket and To
Vacate Scheduling/Planning Conference [#5] filed November 9, 2011, is GRANTED;
2. That under D.C.COLO.LCivR 40.1.D., this case SHALL BE REASSIGNED to
the district judge designated by the Chief Judge for pre-merits management in
accordance with Section III of the Local Rules of Practice of the United States District
Court for the District of Colorado - AR Rules; and
3. That the Order of Reference To United States Magistrate Judge [#2] filed
September 12, 2011, is VACATED.
Dated December 21, 2011, at Denver, Colorado.
BY THE COURT:

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