Alipio v. Winter

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ARTEMIO ALIPIO, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1975 (JR) ) DONALD C. WINTER, ) Secretary of the Navy, ) ) Defendant. ) )

MEMORANDUM OPINION

Plaintiff, a Philippine citizen who had worked at a United

States Navy facility in the Philippines, filed an employment

discrimination complaint arising from the Navy’s alleged

“fail[ure] to inform [him]” about an opportunity for employees

for whom “no retirement deductions were withheld from their

salaries” to “make a deposit to the Civil Service Retirement and

Disability Fund.” Compl. at 1; see id. at 3. The Navy rejected

the complaint on the ground that plaintiff was an “[a]lien

employed in [a] position[] . . . located outside the limits of

the United States” and thus was “not covered under Title VII” of

the Civil Rights Act of 1964, as amended, see 42 U.S.C. § 2000e

et seq. Compl. at 2. Quoting the agency’s decision, plaintiff

explained that:

The dismissal of this [employment discrimination] complaint is not based on the merits of the [plaintiff’s]

1 claim that he should have been covered under the civil service retirement system. The dismissal of the instant case is based solely on the employee’s status as a non- U.S. citizen and therefore he has no standing to file a claim of discrimination under the provisions of [29 C.F.R. § 1614.103(c)].

Compl. at 2 (emphasis added); see also 29 C.F.R. § 1614.103(c)(4)

(providing that Title VII does not apply to “[a]liens employed in

positions . . . located outside the limits of the United

States”). An “alien” is “any person not a citizen or national of

the United States.” 8 U.S.C. § 1101(a)(3).

According to plaintiff, an alien “is not necessarily a

person who is not a U.S. citizen.” Compl. at 3. Rather, he

argues that “the term ‘alien’ contained in 29 C.F.R. [§]

1614.103(c) is referenced to [the] individual’s . . . place of

employment.” Id. Plaintiff claims that he is not an alien

because he is “a local national (Filipino citizen)” who was “a

direct-hired Federal civilian employee of the United States

Government whose duty station . . . [was] located in a foreign

country.” Id. The Court is not persuaded.

Plaintiff makes no argument that he is a citizen or

national of the United States. Rather, in describing himself as

“a local national (Filipino citizen) employed by the [Navy] whose

duty station [was] located outside the United States,” Compl. at

3, plaintiff acknowledges his alien status. He is neither a

citizen nor a national of the United States, rendering him an

alien to whom Title VII does not apply. See Licudine v. Winter,

2 603 F. Supp. 2d 129 (D.D.C. 2009).

The Court concludes that the complaint fails to state a

claim upon which relief can be granted, and, accordingly, will

dismiss the complaint. An Order accompanies this Memorandum

Opinion.

JAMES ROBERTSON United States District Judge