Golden And Zimmerman LLC v. Domenech

• Citation: 599 F.3d 426
• Decision Date: 18 March 2010
• Docket Number: No. 09-1534.,09-1534.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Parties: GOLDEN AND ZIMMERMAN, LLC; Robert W. Privott, PlaintiffsAppellants, v. Edgar A. DOMENECH, Special Agent in Charge Washington Field Division Bureau of Alcohol, Tobacco, Firearms & Explosives, Defendant-Appellee.

599 F.3d 426

GOLDEN AND ZIMMERMAN, LLC; Robert W. Privott, PlaintiffsAppellants, v. Edgar A. DOMENECH, Special Agent in Charge Washington Field Division Bureau of Alcohol, Tobacco, Firearms & Explosives, Defendant-Appellee.

No. 09-1534.

United States Court of Appeals

Fourth Circuit.

Argued: Jan. 29, 2010.

Decided: March 18, 2010.

ARGUED: Richard E. Gardiner, Fairfax, Virginia, for Appellants. Kent Pendleton Porter, Office of the United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, Alexandria, Virginia, for Appellee.

Before TRAXLER, Chief Judge NIEMEYER, Circuit Judge, and JACKSON L. KISER, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Chief Judge TRAXLER and Senior Judge KISER joined.

OPINION

NIEMEYER, Circuit Judge:

Golden and Zimmerman, LLC, a Virginia licensee under the Gun Control Act, 18 U.S.C. § 921 et seq., and Robert W. Privott, a North Carolina licensee under the Act, seek judicial review of the "Federal Firearms Regulations Reference Guide 2005, " which is published by the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") to provide "information designed to help [licensees] comply with all of the laws and regulations governing the manufacture, importation, and distribution of firearms and ammunition." They seek a judgment declaring that "Frequently Asked Question (F13)" in the Reference Guide is inconsistent with the Gun Control Act. The answer given to Frequently Asked Question (F13) states, in effect, that Privott, as a North Carolina licensee, may not sell guns at a Virginia gun show to Golden & Zimmerman, a Virginia licensee for transfer to Virginia residents. The district court dismissed the action for lack of subject matter jurisdiction, holding that publication of the Reference Guide was not "final agency action" subject to judicial review under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq.

Because we conclude that the Reference Guide is simply informational and that its publication is neither "agency action" nor "final agency action, " as necessary for judicial review under the APA, we affirm.

I

The Gun Control Act makes it unlawful for any person, except a licensed dealer, to engage in the business of selling firearms. See 18 U.S.C. § 922(a)(1)(A). Licensed dealers, in turn, are prohibited generally from selling firearms "to any person who the licensee knows or has reasonable cause to believe does not reside in... the State in which the licensee's place of business is located, " except if the transaction is with another licensee. Id. § 922(b) & (b)(3). The Act sets out detailed rules governing the licensing process, see id. § 923, among which is the requirement that an applicant have "premises from which he conducts business subject to license, " id. § 923(d)(1)(E). The Act also requires that a fee be paid for each "place in which the applicant is to do business." Id. S 923(a). And the Act's administration is dependent on the requirement that a licensed dealer have licensed business premises. See, e.g. id. § 923(h) (requiring licensees to post their license "on the premises covered by the license"); id § 923(g)(1)(A) (requiring licensees to maintain records at their business premises and authorizing law enforcement officers to obtain a warrant to inspect the records and firearms kept at a licensee's business premises during business hours). Regulations implementing the Gun Control Act similarly recognize the importance of a licensee's licensed premises. They provide that a license issued under the Act entitles the licensee "to engage in the business specified by the license, at the location described on the license, and for the period stated on the license." 27 C.F.R. § 478.41(b) (emphasis added); see also id. § 478.50 ("The license covers the class of business or the activity specified in the license at the address specified therein").

Although the Gun Control Act and its implementing regulations thus require generally that a licensed dealer sell guns only from the premises specified in its license, the Act also authorizes licensed dealers to "conduct business temporarily at a location other than the location specified on the license if such temporary location is the location for a gun show... and such location is in the State which is specified on the license." 18 U.S.C. § 923(j). The implementing regulation explains that for a gun show held in a licensee's State of business, "[t]he premises of the gun show... shall be considered part of the licensed premises, " and, "[a]ccordingly, no separate fee or license is required for the gun show." 27 C.F.R. § 478.100.

For some 40 years, the ATF has published a Reference Guide for licensees providing "information designed to help [the licensees] comply with all of the laws and regulations governing the manufacture, importation, and distribution of firearms and ammunition." The Reference Guide, of which there have been some 13 editions, contains the text of the relevant federal firearms laws, implementing regulations, rulings, and general information. The most recent edition, published in 2005, also contains a section listing approximately 250 frequently asked questions and answers.

In the questions and answers section, the Reference Guide has consistently explained to licensees that, based on statutes and regulations, a licensee is not authorized to transfer firearms at a gun show, even to other licensed dealers, unless the gun show is being held in the same State as the licensee's business premises. In the most recent iteration, this explanation is contained in Frequently Asked Question (F13) ("FAQ F13"), which states:

(F13) What may a licensed dealer do at an out-of-State gun show?

A licensed dealer may sell and deliver curio or relic firearms to another licensee at an out-of-State gun show. With respect to other firearms transactions, a licensed dealer may only display and take order's for firearms at an out-ofState gun show. In filling any orders for firearms, the dealer must return the firearms to his or her licensed premises and deliver them from that location. Any firearm ordered by a nonlicensee must be delivered or shipped from the licensee's premises to a licensee in the pur-chaser's State of residence, and the pur-chaser must obtain the firearm from the licensee located in the purchaser's State. Except for sales of curio or relic firearms to other licensees, sales of fire arms and simultaneous deliveries at the gun show, whether to other licensees or to nonlicensees, violate the law because the dealer would be unlawfully engaging in business at an unlicensed location. [18 U.S.C. 922(a)(1), (b)(3), 923(a) and (j)].

While FAQ F13 is a summary of the relevant statutory provisions and regulations, it has its origins in Revenue Ruling 69-59 (1969), issued when the ATF was a division of the Internal Revenue Service. That ruling, published before the Gun Control Act was amended in 1986 to allow a licensed dealer to sell and deliver firearms at a gun show held in the same State as its licensed premises, stated that a licensee "may engage in the business covered by the license only at the specific business premises for which his license has been obtained " (emphasis added) and that, accordingly, "a licensee may not sell firearms... at a gun show held on premises other than those covered by his license." The ATF has published 13 editions of its Reference Guide containing the substance of Revenue Ruling 69-59. Moreover, FAQ F13 has remained textually identical since the 2000 edition of the Reference Guide and substantively identical since the 1988-89 edition, the first edition published after the Act's 1986 amendment.

Additionally, in a letter to a licensee dated September 24, 2004, the ATF Deputy Assistant Director, Walfred A. Nelson, took the same position expressed in FAQ F13. The Nelson letter cautioned that offpremises dealing violates 18 U.S.C. § 922(a)(1)(A) and that "[l]icensees who engage in such transactions are subject to license revocation, forfeiture of the firearms involved in the transaction, and criminal prosecution." But it also advised that a licensee may lawfully transfer firearms from its premises to a licensee with prem-ises in the State where the gun show is going to be held and then actually deliver the firearms to the other licensee at the gun show. That licensee could then sell the firearms to purchasers at the gun show and transfer any unsold firearms back to the original licensee at the end of the show.

II

Golden and Zimmerman, LLC, obtained a federal license in July 2008 that authorizes it to deal in firearms from its business premises in Ivor, Virginia. Robert W. Privott obtained a federal license in September 2008 that authorizes him to deal in firearms from his business premises in Powells Point, North Carolina. A few months after obtaining their licenses Golden & Zimmerman and Privott commenced this action against the ATF for a judgment declaring that Privott, the North Carolina licensee, can lawfully transfer firearms at gun shows in Virginia to Golden & Zimmerman, the Virginia licensee, for subsequent transfer at the shows to Virginia residents. In their complaint, Golden & Zimmerman and Privott alleged that they attend gun shows in Virginia but that Privott has refrained from selling firearms at the Virginia gun shows and that Golden & Zimmerman has refrained from receiving firearms at such gun shows from licensed dealers with business premises outside of Virginia, such as Privott, because the ATF has taken the position in FAQ F13 of the Reference Guide that such conduct violates the Gun Control Act.

On the ATF's motion, the district court dismissed the complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1), on the ground that the court lacked subject matter jurisdiction. Golden & Zimmerman,...