Alipio v. Winter

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]
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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,
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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
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