BORTONE v. United States
1:11-cv-00200
Fed. Cl.May 9, 2013Background
- Bortone, a former Italy-born US citizen, worked at the Navy Exchange in Naples (1974–1981) and was denied LQA during that period.
- NCIS recruited him for a Naples lab position; he traveled to Suitland, Maryland, to be sworn in for NCIS in July 1981 and signed multiple appointment-related documents.
- He listed Castel Volturno, Italy as his residence, and NCIS/Navy later classified him as a local hire rather than recruited from the United States.
- DSSR §§ 031.11-.12 govern LQA eligibility: 031.11 for US-recruited employees; 031.12 for foreign-recruited employees with several criteria, including a return transportation agreement with the prior employer.
- DoD and State Department regulations (DoDI 1418.1) implement the DSSR and require eligibility determinations at hire; Bortone’s papers show no valid return travel agreement with the Navy Exchange.
- OPM denied his 2010 LQA claim, and this suit in the Court of Federal Claims seeks to overturn the denial for the six-year lookback under the continuing-claims concept.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bortone was recruited in the United States under DSSR 031.11 | Bortone’s Suitland hiring and stateside indicators show recruitment in the United States. | Bortone’s Naples residence and recruitment activity in Naples support local hire, not US recruitment. | No; Navy reasonably concluded local hire, not US recruitment. |
| Whether Bortone qualifies under DSSR 031.12(b) as recruited outside the United States | He meets several 031.12(b) criteria (continuity, residence, return agreement) and should qualify. | No return transportation agreement with Navy Exchange; NCIS documents do not satisfy 031.12(b) requirements. | No; lack of return agreement with the prior employer defeats eligibility under 031.12. |
| Whether the agency interpretation governing recruitment is reasonable under Chevron/Auer | Agency interpretations should be read to favor entitlement where documentation exists. | Agency interpretation is reasonable and consistent with the statute and DSSR purpose. | Agency interpretation reasonable; court defers to agency construction. |
| Whether DoDI 1418.1/DoD interpretation govern retroactivity of eligibility determinations | Not favorable to plaintiff; determinations are at time of hire and do not retroactively create eligibility. |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment standard; genuine disputes of material fact)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment burden and shifting)
- Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997 (S. Ct. 2012) (undefined terms; contemporaneous definitions for statutory interpretation)
- Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., 576 F.3d 1348 (Fed. Cir. 2009) (plain meaning and ordinary usage; extrinsic definitions limited)
- Acker I, 620 F.2d 802 (3d Cir. 1980) (LQA eligibility tied to recruitment in the United States; purpose of recruitment)