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Posted by on Jul 25, 2017 in Civil, Statutory Construction | 0 comments

Blake v. State Civil Service Commission: “Soldier” under state hiring preference law may not mean the same thing as it does to the Department of Defense

In Blake v. State Civil Service Commission, the Pennsylvania Supreme Court ruled that a West Point cadet who did not complete his training is not a “soldier” entitled to hiring preference under Pennsylvania’s Veterans’ Preference Act.

Scott Blake spent a year and a half as a cadet at West Point. He took an oath of service, had the rank of cadet, went through basic training, but ultimately transferred his credits to another school before the two-year mark, after which a West Point cadet who does not complete his service must pay back his tuition and serve as an enlisted man.

When applying for civil service jobs, Blake checked the box saying he was a veteran. The Civil Service Commission denied his eligibility because he never served in active duty. Blake appealed this decision, arguing that he had “honorable discharge” papers from the Department of Defense, and that he was ranked a “cadet” by the US Army.

Majority by Donohue: Purpose of Pennsylvania’s Veterans’ Preference Act is to aid those who served their country in military service

Justice Donohue, writing for the unanimous Court, rebukes Scott Blake for attempting to obtain a benefit reserved for those who have served in the military. The Court dismisses, out of hand, Blake’s references to federal statutes variously defining him as a service member, pointing out that the federal government’s statutes do not give the key to the Pennsylvania General Assembly’s legislative intent. Pennsylvania law may consider, but is not bound by federal government designations of veteran and “soldier” status.

The difference in terminology and purpose of the federal and state statutes demonstrates that a determination under one does not necessarily mean the same thing under the other.

The Court goes on to consider the legislative history of the statute, showing that the General Assembly was concerned about situations where national guardsmen returned from tours of active duty in Afghanistan, but were not eligible for the benefits of veterans under the Act. The General Assembly added clearer qualifications showing that those released from “active duty” under “honorable conditions” qualified under the Act for preferential treatment.

But a trainee who never even completed his training was not qualified under the Act. Blake’s time at West Point was not military service on behalf of his country qualifying him for preference. “Because he left before a service obligation accrued, Blake never obligated himself to serve his country, either as a commissioned officer or at an enlisted rank.” Quoting the words of the statute back at Blake, the Court concludes:

In fact, “for the preservation of his country,” he never undertook to perform any military service following his eighteen months of training at West Point. . . . Blake went to college. He did not serve in the armed forces of the United States, and thus he is not a “soldier” as that term is defined in 51 Pa.C.S. § 7101. He is not entitled to receive a veterans’ preference when applying for civil service jobs in this Commonwealth.


The Court is rarely this openly antagonistic toward a party. Blake’s suit simply rubbed them wrong, perhaps coming off as a form of stolen valor. The case is interesting for its unaddressed constitutional implications. Blake is a former service member under federal definitions (there is some dispute as to what he is under federal statutes, but it does appear that his year and a half are “military service” at least in some respects to the federal government). Yet, the Commonwealth of Pennsylvania does not reward this type of service, while it does reward others.

Since the United States Constitution in Article I, § 8 grants Congress and the states differing spheres of influence when it comes to organizing and training state militias, it seems the state’s preference rules for its own national guardsmen would withstand scrutiny. But what if the Commonwealth decided tomorrow that members of the Army could have preferential status, but not members of the Navy? Would this survive constitutional scrutiny? Would federal statutes control then? Could Congress “occupy the field” of veteran benefit regulations such that states could not restrict to whom they give preferential status? These questions are not vexing in this case, as Blake is clearly on the “low end” of military experience. But future cases may test the limits of state power in offering benefits to some but not all veterans.

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