Applicability of Sovereign Immunity to Request for Injunctive Relief; Mandamus: Mandatory vs. Discretionary Acts; Amendment of Original Jurisdiction Petition for Review
Firearms Owners Against Crime v. Commissioner Pa. State Police, 291 A.3d 507 (Pa. Cmwlth. 2023), direct appeal, appeal docket 32 MAP 2023
Advocacy organizations for firearm sellers and individual sellers – Firearms Owners Against Crime – Institute for Legal, Legislative and Educational Action, Landmark Firearms LLC, and James Stoker (hereinafter, Firearm Owners or Petitioners) – filed an original jurisdiction petition for review in Commonwealth Court, followed by an amended petition for review, alleging that the Pennsylvania State Police (PSP) understaffed the Pennsylvania Instant Check System (PICS) Operations Section, which performed background checks on proposed buyers, and as such failed to conduct “instantaneous” firearm background checks and to provide “immediate” responses to firearm sellers as required by the Pennsylvania Uniform Firearms Act, 18 Pa. C.S. §§ 6101-6128. The Firearm Owners sought the following declaratory and injunctive relief:
Declare that [PSP’s] Practice is unlawful and in contravention of 18 Pa.C.S. §§ 6111, 6111.1(b)(1), (c), as well as, [a]rticle I, [s]ections 1 [and] 21 of the Pennsylvania Constitution [Pa. Const. art. I, §§ 1, 21], and the Second Amendment to the U.S. Constitution [U.S. Const. amend. II];
Issue an injunction enjoining the enforcement of [PSP’s] Practice and requiring [PSP] and its officers, agents, servants, employees, and all persons in active concern or participation with them to immediately comply with 18 Pa.C.S. §§ 6111, 6111.1(b)(1), (c), as well as, [a]rticle I, [s]ections 1 [and] 21 of the Pennsylvania Constitution, and the Second Amendment to the U.S. Constitution, by immediately either repurposing existing employees or hiring and training as many new employees for the [PICS Operations Section] as are necessary to ensure that all background checks are performed “instantaneously” and responses to them are “immediate[ ];”
Issue an injunction precluding [PSP] from requesting the $2.00 fee for any background checks, where the customer cancels the purchase/transfer of the firearm due to the delays of the PICS system and consistent therewith, order it to assume that any Federal Firearms Licensee that utilizes PICS and does not remit the $2.00 background check fee is the result of the customer cancelling the purchase/transfer of the firearm due to the delays of the PICS system and preclude it from requiring the Federal Firearms Licensee to verify such in any manner; and[ ]
Any other relief this Court may see fit.
Slip op. at 4-5.
PSP filed preliminary objections on the bases that:
(1) Sovereign immunity precludes all of Petitioners’ claims;
(2) Petitioners have not set forth a valid claim for mandamus relief (demurrer);
(3) The doctrine of separation of powers precludes all of Petitioners’ claims;
(4) Petitioners do not have standing to challenge the imposition of the $2.00 background check fee; and
(5) Petitioners have not set forth a valid claim under the Second Amendment (demurrer).
Slip op. at 5. Firearm Owners responded with a single preliminary objection to PSP’s preliminary objections, arguing that PSP cannot raise the defenses of sovereign immunity and separation of powers by way of preliminary objection. Firearm Owners’ sought a Preliminary Injunction, which Commonwealth Court granted, enjoining PSP from further noncompliance with the Firearms Act and deferred ruling on the availability of any further relief until argument on the preliminary objections.
Commonwealth Court held that sovereign immunity applied to Firearm Owners’ request for mandatory injunctive relief:
PSP here contends that Petitioners’ claims for declaratory and injunctive relief are barred by sovereign immunity because they seek to compel PSP to perform affirmative acts, namely, hiring new employees, moving employees from other sections in PSP to the PICS Operations Section, and waiving or refunding the $2.00 background check fee imposed by subsection 6111(b)(3) of the Firearms Act. Petitioners argue that sovereign immunity does not apply because they are seeking declaratory and injunctive relief in the nature of a request for mandamus seeking to compel PSP’s performance of a mandatory or ministerial statutory duty. No matter how it is worded, the injunctive relief requested seeks to compel PSP to take affirmative, concrete, and corrective action in the form of hiring or reassigning employees and waiving the $2.00 background check fee. Thus, consistent with the Supreme Court’s ruling in Philadelphia Life Insurance Company, to the extent that Petitioners’ Amended Petition seeks permanent, affirmative injunctive relief apart from mandamus, such relief is barred by sovereign immunity.
Slip op. at 7. The court clarified, however, that Firearm Owners’ request for mandamus relief and declaratory judgment “regarding PSP’s duties, and their right to certain benefits, under the Firearms Act” were not barred by sovereign immunity; however, the immediate performance of background checks was not a mandatory duty enforceable by mandamus. Slip op. at 8. Commonwealth Court explained:
Section 6111 of the Firearms Act dictates what licensed sellers or dealers of firearms must do prior to delivering a firearm to a buyer or transferee. It does not impose duties on PSP. Relevant here, that section imposes on sellers the duties to (1) request a background check through PSP’s “Instantaneous Criminal History Records Check System,” see 18 Pa.C.S. § 6111(a)(2), (b)(3); and (2) collect from buyers and transmit to PSP within 14 days an associated $2.00 fee.
Section 6111.1, on the other hand, imposes duties on PSP. Section 6111.1(b) provides that, when PSP receives a request for a background check (pursuant to Section 6111(b)(3)), it “shall immediately during the licensee’s call or by return call forthwith” (1) review PSP’s criminal history, fingerprint, juvenile delinquency, and mental health records to determine if the potential purchaser or transferee is prohibited from receiving or possessing a firearm; and (2) inform the licensee of whether the sale or transfer is prohibited or approved. 18 Pa.C.S. § 6111.1(b)(1) (emphasis provided). In the event of delay caused by “electronic failure, scheduled computer downtime or similar event beyond the control of the [PSP],” PSP must notify the seller requesting the background check of the reason for and estimated length of the delay. 18 Pa.C.S. § 6111.1(b)(2). Subsection 6111.1(c) requires PSP to “establish a telephone number which shall be operational seven days a week between the hours of 8 a.m. and 10 p.m. local time for purposes of responding to inquiries as described in this section” and further requires PSP to “employ and train such personnel as are necessary to administer expeditiously the provisions of this section.” 18 Pa.C.S. § 6111.1(c) (emphasis provided).
Slip op. at 10-11. The court further reasoned that the response time duty was not “so clear and precise as to be susceptible to mandamus relief,” explaining that:
… in order to establish a mandatory or ministerial duty, a statute must be so explicit that there can be no room for argument as to the precise action required. Here, given that many factors can affect the amount of time it may take to obtain the information necessary to determine whether the proposed buyer is eligible to purchase a gun, and further given that PSP has a corresponding duty to protect public safety by obtaining and providing accurate background information to prevent weapons from falling into ineligible hands, it cannot be said that the response time duty is so clear and precise as to be susceptible to mandamus relief.
Slip op. at 12. The court likewise concluded that PSP’s hiring or transfer of personnel were discretionary acts that were not enforceable by mandamus, as such actions are “operational matters, which are discretionary or not mandated in the statute at all,” concluding that:
Petitioners allege in their Amended Petition that PSP has understaffed the PICS Operations Section causing significant delays and lost firearm sales. They request that we order PSP to employ a sufficient number of PICS operators to ensure that background checks are conducted in accordance with Sections 6111 and 6111.1. Section 6111(b)(c) requires that PSP employ and train such personnel as are necessary to perform its duties “expeditiously.” The statute does not specify how many employees are “necessary” or how the PICS Operations Section should be structured. Rather, it leaves those decisions to PSP’s discretion.
Further, staffing and training decisions by PSP necessarily involve questions of budgeting and legislative appropriations, both of which we conclude are beyond the reach of this Court’s ability to grant mandamus relief. Even to the extent that the delays in conducting background checks and returning results are caused by staffing shortages in the PICS Operations Section, we nevertheless cannot issue a writ of mandamus dictating how PSP must staff, organize, or fund that unit when the Firearms Act leaves those matters to PSP’s discretion. And, even if PSP has exercised its discretion incorrectly, mandamus will not lie to force particular corrective action. Sinkiewicz, 131 A.3d at 546.
Slip op. at 13. Commonwealth Court dissolved the preliminary injunction and dismissed Firearm Owners’ complaint without providing Firearm Owners the ability to amend its amended petition for review. Firearm Owners appealed on the basis, among other issues, that Commonwealth Court failed to address Allegheny County v. Commonwealth, 490 A.2d 402, 414 (Pa. 1985), in which the Supreme Court held that the Department of Human Services’ role with respect to the determination of placement of youths in its facilities was ministerial and therefore the appropriate subject of a mandamus action if DHS refused to perform its statutory duties attendant to such determination when directed to do so.
The Supreme Court granted oral argument as to the following issues, as stated by Firearm Owners:
- Whether the Commonwealth Court, in relation to its March 6, 2023 Opinion and Order, abused its discretion, committed [an] error of law, or violated the constitutional rights of Appellants, when in partially granting the Commissioner’s preliminary objections:
- It held that injunctive relief is barred by sovereign immunity, which is directly contrary to this Court’s prior holding in [Allegheny County v. Commonwealth, 490 A.2d 402, 414 (Pa. 1985)] and which the court failed to address;
- It held that the [Pennsylvania State Police’s] duty of timeliness under the Uniform Firearms Act is not sufficiently defined as to be eligible for mandamus relief, and is discretionary, not mandatory, even though the court declared that “[i]t is thus clear that the General Assembly intended that background checks and their results be communicated to requesters as efficiently and promptly as reasonably possible”; and,
- It held that declaratory relief is unavailable in the absence of specific statutory staffing and funding mandates [?]
- Whether the Commonwealth Court, in relation to its April 4, 2023 Memorandum and Order, abused its discretion, committed [an] error of law, or violated the constitutional rights of Appellants, when it granted the Commissioner’s request and vacated/dissolved the preliminary injunction[?]
- Whether the Commonwealth Court, in relation to its April 4, 2023 Memorandum and Order, abused its discretion, committed [an] error of law, or violated the constitutional rights of Appellants, when it denied Appellants the ability to file an Amended Petition for Review[?]
Supreme Court Docket Sheet at 7.
For more information, contact Kevin McKeon or Dennis Whitaker.