MAURICE G. ROBINSON, Plaintiff,
REBECCA M. BLANK, Acting Secretary of the Department of Commerce, Defendant.
ORDER ADOPTING R&R
PAUL A. CROTTY, District Judge.
On April 1, 2011, plaintiff Maurice Robinson ("Robinson") filed this action against his former employer, the United States Department of Commerce,  for discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). He alleges that he was wrongfully terminated by the Census Bureau (the "Bureau"), a division of the Department of Commerce, pursuant to policies and practices that he alleges have a disparate impact on racial minorities.
A more complete recitation of the factual allegations and Robinson's complaint is set forth in this Court's prior opinion of March 28, 2012, denying Defendant's motion to dismiss for failure to exhaust administrative remedies. (Dkt. No. 33.) Briefly summarized, Robinson was hired as an enumerator for the 2010 Census, a job which was of a very limited duration. Therafter, Robinson was arrested for trespassing, and fired due to the arrest. The charges against him were subsequently dropped and Robinson's record expunged. Nevertheless, he was not rehired because the expungement records were not properly filed in Robinson's personnel folder at the Bureau. The current dispute centers around the timeliness of Robinson's complaint and the appropriateness of the relief sought, given the finite duration of the job he was hired to perform.
On April 13, 2012, Robinson filed an Amended Complaint seeking lost wages and equitable relief, including "(i) a declaration that the policies and practices described in the First Amended Complaint are unlawful and violate Title VII; (ii) an injunction prohibiting [the Bureau] from engaging in the policies and practices described in the First Amended Complaint; (iii) an order that [the Bureau] eradicate the effects of its past and present unlawful employment practices by instituting and carrying out policies, practices, and programs that provide equal employment opportunities for all applicants and employees; and (iv) an order reinstating his employment." (Objections at 1-2 (internal quotations and citations omitted).)
Defendant moves to dismiss Robinson's claims for injunctive and declaratory relief pursuant to Fed.R.Civ.P. 12(b)(1). On February 26, 2013, Magistrate Judge Debra Freeman issued a Report and Recommendation ("R&R") recommending that Defendant's motion be granted in part and denied in part. Defendant's objections were received on April 9, 2013. For the reasons that follow, Defendant's motion is partially granted and partially denied, as set forth below.
I. Legal Standard
In reviewing a report and recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "Where a party objects to an R&R, the Court must review the contested portions de novo, but the Court may adopt those portions of an R&R that are not objected to, so long as there is no clear error on the face of the record." Etheridge v. Alliedbarton Sec. Servs., LLC, No. 12 Civ. 5057, 2013 WL 1832141, at *1 (S.D.N.Y. May 1, 2013).
II. The R&R
Defendant contends that Robinson lacks standing to seek a declaration that the Bureau's background checks are unlawful because the policies are no longer in place - indeed, that they were not even in place at the time of the initial complaint. Nor can their change possibly affect Robinson because hiring for the enumerator position is now over and, although such relief might be possible with respect to hiring for the 2020 census, that is too remote to confer standing.
Plaintiffs must demonstrate three elements to prove that they have standing to bring suit:
First, the plaintiff must have suffered an injury in fact - an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be fairly... traceable to the challenged action of the defendant, and not... the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61 (1992) (quotations omitted). "[A] plaintiff must demonstrate standing for each claim and form of relief sought.'" NRDC v. FDA, 710 F.3d 71, 86 (2d Cir. 2013) (quoting Baur v. Veneman , 352 F.3d 625, 641 n.15 (2d Cir. 2003)). When seeking injunctive relief, plaintiffs must also show that they have "sustained or [are] immediately in danger of sustaining some direct injury as the result of the challenged official conduct.'" Shain v. Ellison , 356 F.3d 211, 215 (2d Cir. 2004) (quoting City of Los Angeles v. Lyons , 461 U.S. 95, 101-02 (1983)). In doing so, plaintiffs generally "cannot rely on past injury to satisfy the injury requirement but must show a likelihood that [they]... will be injured in the future, '" id. (quoting DeShawn E. v. Safir , 156 F.3d 340, 344 (2d Cir. ...