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Licudine v. Winter

March 26, 2009

MANUEL LICUDINE, PLAINTIFF,
v.
DONALD C. WINTER, SECRETARY OF THE NAVY, DEFENDANT.



The opinion of the court was delivered by: James Robertson United States District Judge

MEMORANDUM OPINION

This matter is before the Court on defendant's motion to dismiss.*fn1 With the assistance of amicus curiae, the motion is fully briefed.*fn2 For the reasons discussed below, the Court grants defendant's motion and dismisses this action.

I. BACKGROUND

Plaintiff Manuel Licudine ("Licudine") alleges that he was born in the Commonwealth of the Philippine Islands in 1945.*fn3

Compl. at 6. According to Licudine, he obtained United States citizenship because, from the end of the Spanish-American War until the Philippines became an independent state in 1946, the United States exercised such control over the Philippine Islands "that the United States and the Philippine Islands should constitute a singel [sic] state." Id. By virtue of his birth in the Philippine Islands and "under the doctrine of 'jus soli,'"*fn4

Licudine asserts that he is not only a citizen of the Philippines but also a citizen of the United States by operation of the Fourteenth Amendment to the United States Constitution, id., which in relevant part provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

U.S. CONST. amend. XIV, § 1 (emphasis added).

From February 13, 1973 until his termination effective July 10, 1992, Licudine was employed by the United States Navy at a facility in the Philippines. See Compl., Attach. (Notification of Personnel Action). In February 2008, Licudine filed a formal discrimination complaint against the Navy under Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e, et seq., as amended ("Title VII"), alleging that the Navy discriminated against him on the basis of his national origin (Filipino) by failing to inform him of an opportunity, available from January 8, 1988 until January 8, 1990, to participate in the federal civil service retirement system. See Compl. at 1-2 & Attach. (February 21, 2008 Notice of Dismissal of Formal Complaint, DON # 08-61581-00514). The Navy dismissed his complaint for the reasons set forth in a memorandum to Licudine's representative:

At 29 CFR 1614.103(c)4 it states that "Aliens employed in positions, or who apply for positions, located outside the limits of the United States" are not covered under Title VII. Your client has provided no evidence that he is a U.S. citizen either by birth or naturalized, and therefore does not have standing to file a claim.... Although he cites that he should be considered an employee, he does not provide documentation that he is a U.S. citizen, which is the issue in determining if a complaint can be accepted for formal processing under Title VII. Your client cites reasons as to why he should have been covered under the civil service retirement system. This dismissal is not based on the merits of the complainant's 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 [29 C.F.R. § 1614]. Under the Commission's regulatory pre-complaint procedures, EEO counseling is a mandatory first step to pursuing a claim of discrimination in the EEO process, and the agency must provide the counseling to any "aggrieved person" who requests it. See 29 CFR 1614.104. This office has processed your client's pre-complaint as required. The Commission has, nevertheless, held consistently that claims of unlawful discrimination brought by foreign nationals employed by agencies outside the United States do not come within the purview of the EEOC Regulations [citations omitted]. Therefore, your client's claim of discrimination is hereby dismissed for failure to state a claim in accordance with 29 CFR 1614.103, 29 CFR 1614.104 and 29 CFR 1614.105.

Id. at 2 (emphasis added).*fn5

In this action, Licudine asks this Court to "confirm [his] having been a U.S. citizen... when born in [the] 'Commonwealth of the Philippine Islands,'" such that "the Department of the Navy allow[s] [him] to come within the meaning of the Civil Rights Act of 1964 in Title VII." Compl. at 7.

II. DISCUSSION

Defendant moves to dismiss under Fed. R. Civ. P. 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted. Although the suit has glaring procedural problems, it seems most efficient to go straight to the core of the issue the suit seeks to address, which is whether Licudine is a citizen of the United States, as he argues he is, or a citizen of the Philippines, as the defendant argues he is. If the latter, then Licudine ...


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