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Alipio v. Winter

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


June 30, 2009

ARTEMIO ALIPIO, 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

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] 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 nonU.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, 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.

20090630

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