Blake v. State Civil Service Commission, 072517 PASC, 103 MAP 2016

Docket Nº:103 MAP 2016
Judge Panel:SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. Chief Justice Saylor and Justices Baer, Todd, Dougherty, Wecht and Mundy join the opinion.
Case Date:July 25, 2017
Court:Supreme Court of Pennsylvania

SCOTT R. BLAKE, Appellee



No. 103 MAP 2016

Supreme Court of Pennsylvania

July 25, 2017

SUBMITTED: March 3, 2017

Appeal 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




We are 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.

Blake 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 1995.1 Id. at 3.

After 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.

On May 28, 2014, Blake submitted an application to Appellant, State Civil Service Commission ("Commission" or "CSC")2 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 examination. Id.

Chapter 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.

In a 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.

By 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.

The 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. § 101(d)(1)).3

The 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 580.21.4 Id. at 12.

The 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...

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