SCOTT R. BLAKE, Appellee
STATE CIVIL SERVICE COMMISSION, Appellant
SUBMITTED: March 3, 2017
from the Order of the Commonwealth Court at No. 724 CD 2015
dated February 17, 2016 Reversing the Order of the State
Civil Service Commission at No. 28359 dated April 7, 2015
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
tasked with determining whether Appellee, Scott R. Blake
("Blake"), meets the definition of
"soldier" as defined in 51 Pa.C.S. § 7101 of
the Pennsylvania Military and Veterans Code (the
"Veterans' Preference Act" or the
"VPA"), 51 Pa.C.S. §§ 7101-7109, which
would entitle him to a veterans' preference.
Pennsylvania's veterans' preference includes, inter
alia, the addition of ten points to a passing score on a
civil service examination for civil service jobs in this
Commonwealth, preferences in appointments and hiring, and
increases in the calculation of seniority in connection with
reductions in force situations. 51 Pa.C.S. §§ 7103,
7104, 7107. After reviewing the relevant statutory language,
we conclude that the General Assembly did not intend to
bestow a veterans' preference to someone who was a cadet
at a military academy, but never obligated himself to
perform, or otherwise undertook, any subsequent military
service. For the reasons that follow, we reverse the decision
of the Commonwealth Court.
attended the United States Military Academy at West Point
from July 1991 to January 1993. Commission Adjudication
Opinion at 2. On his first day, he took the required oath and
was sworn in as a cadet. He then completed six to eight weeks
of cadet basic training and, in August 1991, was admitted
into the Corps of Cadets at West Point. Id. at 4.
During the three academic semesters he spent at the academy,
Blake was not required to pay any tuition. He earned a total
of forty-five credits at West Point, but did not graduate.
Id. His Certificate of Release or Discharge from
Active Duty ("DD Form 214") from the United States
Department of Defense characterizes his separation from West
Point prior to his third year as an honorable discharge. He
graduated with a bachelor's degree from the University at
Albany, State University of New York, in May
1995. Id. at 3.
leaving West Point, Blake did not perform any subsequent
military service, never having accrued any obligation to do
so. Id. at 5. A cadet who graduates from West Point
is obligated to perform commissioned service as a second
lieutenant in lieu of repaying tuition. Id. A cadet
who starts his third year but does not graduate is
responsible for repaying tuition and may be required to serve
in the regular army at an enlisted rank. Id. By
leaving after his second year, Blake neither had to repay his
tuition nor commit to perform a term of military service
(commissioned or enlisted). From December 1995 to at least
October 2014, Blake was employed by the United States
Immigration and Customs Enforcement, or its predecessor
agency, the United States Immigration and Naturalization
Service. Id. at 3.
28, 2014, Blake submitted an application to Appellant, State
Civil Service Commission ("Commission" or
"CSC") for a "Special Investigator 1"
or "Special Investigator 2" position. Id.
at 2. On the application, he answered "yes" to the
question, "Are you claiming a veterans'
preference?" and passed the required civil service
71 of the Veterans' Preference Act provides:
When any soldier shall take any civil service appointment or
promotional examination for a public position under the
Commonwealth, or under any political subdivision thereof, he
shall be given credit in the manner hereinafter provided; for
the discipline and experience represented by his military
training and for the loyalty and public spirit demonstrated
by his service for the preservation of his country, as
provided in this chapter.
51 Pa.C.S. § 7102(a). For purposes of awarding such
credit, the VPA defines "soldier" as:
A person who served or hereafter serves in the armed forces
of the United States, or in any women's organization
officially connected therewith, during any war or armed
conflict in which the United States engaged and who was
released from active duty under honorable conditions, other
than from periods of active duty for training, or with an
honorable discharge from such service, or a person who so
served or hereafter serves in the armed forces of the United
States, or in any women's organization officially
connected therewith, since July 27, 1953, including service
in Vietnam, and who has an honorable discharge from such
service. Qualifying periods of service during a war or armed
conflict, for purposes of this provision, will be designated
by the Department of Military and Veterans Affairs.
51 Pa.C.S. § 7101.
letter dated June 4, 2014, the CSC informed Blake that he did
not qualify for the veterans' preference because his
service as a cadet at West Point was not "creditable as
'time in service'." Commission Adjudication
Opinion at 5. On June 10, 2014, Blake responded by email that
he believed the CSC had made an erroneous determination and
cited two federal statutory provisions as evidence that cadet
time is considered both "active duty, " 38 U.S.C.
§ 101(21)(D), and "active service, " 38 U.S.C.
§ 101(24)(A). Id. at 5-6. Blake noted that his
DD Form 214 provides that his "Grade, rate or rank"
was "cadet" and that his "net active service
this period" was one year and six months, the equivalent
of his abbreviated academic career at West Point. Finally, he
conceded that his "service is not creditable for
commissioned service, " but contrasted the commissioned
service of an officer with that of an enlisted member of the
military, and urged that his service time at West Point
equates to the latter. Id.
e-mail dated August 8, 2014, the CSC reiterated its
determination that Blake did not qualify for the
veterans' preference. The e-mail informed him that 38
U.S.C. § 101 "is relevant to veterans' benefits
and is not relevant to Civil Service employment purposes.
Time served as a Cadet is not creditable as 'time in
service'." Id. at 7. The CSC also informed
him that he could appeal the agency's decision to the
Commission pursuant to section 905.1 of the Civil Service
Act. Blake responded on August 13, 2014 that he planned to
appeal. Id. at 7-8.
Commission framed the issue before it as whether the CSC had
properly determined that Blake was not eligible to receive
the same benefits that a qualified "soldier"
receives when he or she passes a civil service examination.
Id. at 1. In testimony before the Commission, Blake
took the position that he met the VPA's definition of
"soldier" in section 7101, and was "eligible
for the veterans' preference because he completed basic
training; received an honorable discharge; and, as a West
Point cadet, was on 'active duty.'" Id.
at 11 (citing N.T., 10/22/2014, at 41-43). He relied on the
definition of "active duty" found in 10 U.S.C.
§ 101(d)(1) of the United States Armed Forces title,
which provides, for purposes of that title, that "active
duty" means "full-time duty in the active military
service of the United States. Such term includes …
attendance, while in the active military service, at a school
designated as a service school[.]" Commission
Adjudication Opinion at 11 (quoting 10 U.S.C. §
CSC, on the other hand, argued that Blake did not meet the
definition of "soldier" because he did not perform
"active duty" or "military service" at
West Point. Id. The CSC contended that Blake's
time at West Point was akin to "military training"
or "active duty for training, " neither of which
qualifies an applicant for the preference under section 7101
or Management Directive 580.21. Id. at 12.
Commission found that it was not necessary to resolve the
question of whether Blake's cadet service at West Point
could be classified as "active duty." Id.
at 14. The Commission reasoned that regardless of whether
Blake's cadet service was "active duty, " his
particular service lacked a reasonable relation to "the
preference of veterans for the proper performance of public
duties." Id. (citing Housing Authority of
the County of Chester v. State Civil Service Comm'n,
730 A.2d 935, 948 (Pa. 1999)). In Housing Authority,
this Court explained that a veterans' preference is not
constitutional unless a "'reasonable relation'
… exist[s] 'between the basis of [the] preference
[in the statute being challenged] and the object to be
attained, the preference of veterans for the proper
performance of public duties'." Housing
Authority, 730 A.2d at 948 (quoting Commonwealth ex
rel. Graham v. Schmid, 3 A.2d 701, 704 (Pa. 1938)).
Accordingly, the Commission concluded that applying a
veterans' preference to Blake would violate the
Pennsylvania Constitution. Id.
Commission reasoned that the Commonwealth Court's opinion
in Soberick v. Salisbury Tp. Civil Service Comm'n and
Budd A. Frankenfield, III, 874 A.2d 155 (Pa. Commw.
2005), supported its conclusion. The Commission distinguished
Frankenfield's eleven months of active duty in support of
Operation Enduring Freedom (Iraq) from Blake's tenure at
West Point. Even though Frankenfield had not completed his
full eight-year military service commitment with the Marine
Corps when he applied for the veterans' preference, the
Commonwealth Court upheld the award, indicating that his
active duty represented the kind of "significant
military service" the General Assembly intended to
reward. Id. at 158.
appealed and the Commonwealth Court reversed, criticizing the
Commission for failing to decide the matter on statutory,
non-constitutional, grounds. Blake v. State Civil Service
Comm'n, No. 724 C.D. 2015 at 1 (Pa. Commw. 2016)
(unpublished memorandum). The Commonwealth Court first
considered whether Blake's time as a cadet at West Point
met the statutory definition of "soldier" in
section 7101 of the VPA. Because the General Assembly did not
define the term "active duty" in section 7101, the
Commonwealth Court explained that it would be guided by the
rule of statutory construction set forth in 1 Pa.C.S. §
1921(c)(5), which provides that courts may consider "the
former law, if any, including other statutes upon the same or
similar subjects" when determining legislative intent.
Id. at 8. The Commonwealth Court explained that the
term "active duty" is defined in title 38 of the
United States Code as including - for purposes of defining a
"veteran" eligible for certain federal benefits -
someone who served "as a cadet at the United States
Military, Air Force, or Coast Guard Academy, or as a
midshipman at the United States Naval Academy."
Id. at 8-9 (quoting 38 U.S.C. §101(21)(D)).
Because Blake was a cadet at West Point, the Commonwealth
Court determined that he met the foregoing federal definition
of "active duty" and, as a result, also met the
definition of "soldier" in 51 Pa.C.S. § 7101.
Id. at 11.
acknowledging that the purpose of the Veterans'
Preference Act is to reward a soldier "for the
discipline and experience represented by his military
training and for the loyalty and public spirit demonstrated
by his service for the preservation of his country, " 51
Pa.C.S. §7102(a), the Commonwealth Court decided that
this language did not impose a requirement that soldiers must
have both undergone training and performed military service
to be eligible. Id. Instead, the court concluded, by
reference to the federal definition, that "the language
of [section 7101] … stands alone to support the
conclusion that Blake was a soldier when he attended West
the Commonwealth Court disagreed with the Commission's
constitutional analysis. According to the Commonwealth Court,
this Court's use of the "reasonable relation"
test in the area of the Veterans' Preference Act has been
limited to facial constitutional challenges to certain
preference provisions, and is misplaced in the context of an
"as applied" challenge, where the validity of the
provision itself is undisputed and the challenge ...