Jones v. Azar
| Decision Date | 20 March 2020 |
| Docket Number | No. CIV 19-00477 JB\JHR,CIV 19-00477 JB\JHR |
| Citation | 447 F.Supp.3d 1121 |
| Parties | John Paul JONES, Plaintiff, v. Alex AZAR, Department of Health and Human Services, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on: (i) the Plaintiff's Request for a Meeting, filed July 1, 2019 (Doc. 14); (ii) the Plaintiff's Request for a Hearing, filed July 24, 2019 (Doc. 16); (iii) the Defendant's Motion for Summary Judgment and Supporting Memorandum, filed August 5, 2019 (Doc. 20)("Azar MSJ"); (iv) the Plaintiff's Request for Preliminary Hearing, filed August 9, 2019 (Doc. 26); (v) the Plaintiff's Motion for Summary Judgment - 1, in conjunction with 18 USC § 1512, filed August 19, 2019 (Doc. 29)("MSJ"); (vi) the Plaintiff's Motion for Summary Judgment - 2, Merits of the Case and Civil Misconduct, US Attorney's Office, filed September 11, 2019 (Doc. 34)("2d MSJ"); (vii) the Plaintiff's Motion for Sanctions, filed September 30, 2019 (Doc. 39); (viii) the Plaintiff's Motion to End Stay of the Discovery Process, filed October 4, 2019 (Doc. 40); (ix) the Plaintiff's Motion to End Stay of the Discovery Process - Second Request, filed October 22, 2019 (Doc. 43); (x) Plaintiff's Renewed Motion Requesting a Meeting, filed November 8, 2019 (Doc. 45); (xi) the Magistrate Judge's Proposed Findings and Recommended Disposition filed January 21, 2020 (Doc. 48)("PFRD"); and (xii) the Petitioner's Response with Objections to the Magistrate Judge's PFRD, filed February 11, 2020 (Doc. 51)("Objections"). The primary issue is whether the Court should sustain Plaintiff John Paul Jones’ objections to the PFRD. The Court, having reviewed the PFRD and Jones’ Objections, concludes that the Objections do not have a sound basis in law or material fact, overrules the Objections, and adopts the PFRD in full.
In September, 2016, the Centers for Disease Control ("CDC"), a division of the United States Department of Health & Human Services ("HHS"), issued a job announcement to create a pool of applicants for Public Health Advisor positions with the CDC in various overseas locations. See Declaration of Trevino Henderson ¶¶ 1-12, at 1-3 (taken July 26, 2019), filed August 5, 2019 (Doc. 20-1)("Henderson Decl."). In response, Jones, who was seventy years old at the time, submitted an online application. See Henderson Decl. ¶ 2, at 1. Subsequently, the Division of Global HIV and TB1 submitted three job requisitions to the CDC to fill Public Health Advisor positions in Mozambique, Ethiopia, and Botswana. See Henderson Decl. ¶ 2, at 1. The three requisitioned Public Health Advisor positions required one year of specialized experience including "experience providing management and operations or technical advice and assistance in the management and implementation of public programs" as well as direct work experience or expertise in HIV/AIDS, infectious diseases, and TB. Henderson Decl. ¶¶ 2-3, at 1-2. A human resources specialist with the CDC, Trevino Henderson, reviewed Jones’ application for each of the requisitioned Public Health Advisor positions. See Henderson Decl. ¶¶ 6, 9, at 2-3.
Jones has extensive experience in healthcare-related positions, including service in the United States Army as a medical corpsman, seven years as an administrator and vice-president of operations at Nursecare International, and over twenty years’ employment as a Senior Management Consultant and a Senior Advisor at King Faisal Specialist Hospital Research Center in Saudi Arabia. See Response to Defendant's Motion for Summary Judgment at 27-59, filed August 21, 2019 (Doc. 28). Despite this experience, Henderson concluded that Jones was not a qualified applicant, because he lacked the required specialized experience and direct work experience or expertise in HIV/AIDS and TB. See Henderson Decl. ¶ 9, at 3.
According to Henderson, Jones’ one-year tour of duty (1968-1969) as a medic in Vietnam, where he treated soldiers for sexually transmitted diseases
, predates the onset of the HIV/AIDS epidemic by more than ten years and did not constitute direct work experience and expertise with HIV/AIDS. See Henderson Decl. ¶ 9, at 2. Jones’ résumé did not indicate that he had direct work experience with TB. See Henderson Decl. ¶ 9, at 2. Further, Jones’ work experience with other infectious diseases was extremely remote in time -- more than fifty years prior to his application -- and very limited in scope. See Henderson Decl. ¶ 9, at 2. Henderson did not forward Jones’ name to the selecting officials for further consideration for any of the three Public Health Advisor positions. See Henderson Decl. ¶ 10, at 2. Due to a freeze in federal civilian hiring, no external applicant was selected for any of the three requisitions issued under the Job Announcement. See Henderson Decl. ¶ 12, at 16.
Jones filed an employment discrimination complaint with HHS alleging age discrimination. See Formal Complaint of Discrimination in the Federal Government at 1, filed August 5, 2013 (Doc. 20-3). After an investigation and hearing before an Administrative Law Judge, HHS issued its final decision, in which it concluded that no discrimination occurred. See Preliminary Response to Order to Show Cause at 80-104, 105-06, filed June 10, 2019 (Doc. 7)("Preliminary Response"). Jones filed this lawsuit on May 23, 2019. See Complaint for a Civil Case at 1, filed May 23, 2019 (Doc. 1)("Complaint"). The Honorable Jerry H. Ritter, United States Magistrate Judge for the United States District Court for the District of New Mexico, entered the PFRD on January 21, 2020. See PFRD at 1. Jones timely filed his written objections to the PFRD on February 11, 2020, after one extension was granted. See Objections at 1. Jones has since submitted four addenda to his written objections. See Addendum to Response, with Objections, to Proposed Findings and Recommended Disposition of Judge Ritter at 1, filed February 12, 2020 (Doc. 52)("First Addendum"); Second Addendum to Response, with Objections, to Proposed Findings and Recommended Disposition at 1, filed February 19, 2020 (Doc. 53)("Second Addendum"); Third Addendum to Response, with Objections, to Proposed Findings and Recommended Disposition at 1, filed February 28, 2020 (Doc. 54)("Third Addendum"); Fourth Addendum to Response, with Objections, to Proposed Findings and Recommended Disposition at 1, filed March 17, 2020 (Doc. 55)("Fourth Addendum").
District courts may refer dispositive motions to a Magistrate Judge for a recommended disposition. See Fed. R. Civ. P. 72(b)(1) (). Rule 72(b)(2) of the Federal Rules of Civil Procedure governs objections: "Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Finally, when resolving objections to a Magistrate Judge's proposal, Fed. R. Civ. P. 72(b)(3). Similarly, 28 U.S.C. § 636 provides:
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1)(C).
"The filing of objections to a magistrate's report enables the district judge to focus attention on those issues -- factual and legal -- that are at the heart of the parties’ dispute." United States v. One Parcel of Real Property, With Buildings, Appurtenances, Improvements, and Contents, 73 F.3d 1057, 1059 (10th Cir. 1996) (" One Parcel")(quoting Thomas v. Arn, 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ). As the Tenth Circuit has noted, "the filing of objections advances the interests that underlie the Magistrate's Act,2 including judicial efficiency." One Parcel, 73 F.3d at 1059 (citing Niehaus v. Kan. Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir. 1986) ; United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981) ).
The United States Court of Appeals for the Tenth Circuit held "that a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." One Parcel, 73 F.3d at 1060. "To further advance the policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, ha[s] adopted ‘a firm waiver rule’ that provides that the failure to make timely objections to the magistrate's findings or recommendations waives appellate review of both factual and legal questions." One Parcel, 73 F.3d at 1059 (citations and quotations omitted). In addition to requiring specificity in objections, the Tenth Circuit has stated that "[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived." Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). See United States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001) (). In an unpublished opinion, the Tenth Circuit stated...
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