PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GOLDEN AND ZIMMERMAN, LLC;
ROBERT W. PRIVOTT,
Plaintiffs-Appellants,
v.
EDGAR A. DOMENECH, Special No. 09-1534
Agent in Charge Washington Field
Division Bureau of Alcohol,
Tobacco, Firearms & Explosives,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca Beach Smith, District Judge.
(2:08-cv-00468-RBS-FBS)
Argued: January 29, 2010
Decided: March 18, 2010
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.
2 GOLDEN AND ZIMMERMAN v. DOMENECH
COUNSEL
ARGUED: Richard E. Gardiner, Fairfax, Virginia, for Appel-
lants. 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.
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 "infor-
mation 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 & Zimmer-
man, a Virginia licensee, for transfer to Virginia residents.
The district court dismissed the action for lack of subject mat-
ter 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.
GOLDEN AND ZIMMERMAN v. DOMENECH 3
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 "prem-
ises 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.
§ 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 offi-
cers 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 rec-
ognize 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 regula-
tions 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
4 GOLDEN AND ZIMMERMAN v. DOMENECH
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 consid-
ered 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 rele-
vant federal firearms laws, implementing regulations, rulings,
and general information. The most recent edition, published
in 2005, also contains a section listing approximately 250 fre-
quently 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 fire-
arms 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 explana-
tion 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 transac-
tions, a licensed dealer may only display and take
orders for firearms at an out-of-State gun show. In
filling any orders for firearms, the dealer must return
GOLDEN AND ZIMMERMAN v. DOMENECH 5
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 purchas-
er’s State of residence, and the purchaser 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 firearms 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 pro-
visions 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 pub-
lished 13 editions of its Reference Guide containing the sub-
stance of Revenue Ruling 69-59. Moreover, FAQ F13 has
remained textually identical since the 2000 edition of the Ref-
erence Guide and substantively identical since the 1988-89
edition, the first edition published after the Act’s 1986 amend-
ment.
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 off-premises dealing violates 18 U.S.C.
6 GOLDEN AND ZIMMERMAN v. DOMENECH
§ 922(a)(1)(A) and that "[l]icensees who engage in such trans-
actions are subject to license revocation, forfeiture of the fire-
arms involved in the transaction, and criminal prosecution."
But it also advised that a licensee may lawfully transfer fire-
arms from its premises to a licensee with premises 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 busi-
ness 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 resi-
dents. 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 busi-
ness 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 com-
plaint, pursuant to Federal Rule of Civil Procedure 12(b)(1),
on the ground that the court lacked subject matter jurisdiction.
Golden & Zimmerman, L.L.C. v. Domenech, 599 F. Supp. 2d
702 (E.D. Va. 2009). It concluded that the ATF’s Reference
GOLDEN AND ZIMMERMAN v. DOMENECH 7
Guide, including FAQ F13, does not constitute reviewable
final agency action under the APA. Relying on the two-step
inquiry articulated in Bennett v. Spear, 520 U.S. 154, 177-78
(1997), for determining when agency action is "final" agency
action, the district court reasoned that FAQ F13 is not final
agency action because, "[w]hile ATF has completed its
decision-making process with respect to the application of the
[Gun Control Act] to the transaction at issue, FAQ F13 does
not represent the culmination of that process." Golden & Zim-
merman, 599 F. Supp. 2d at 710. The court also determined
that FAQ F13 does not constitute final agency action because
the Reference Guide’s question and answer does not have any
legal consequences: "FAQ F13 neither announced a new
interpretation of the law and regulations, nor effected a
change in the law or regulations themselves. It was purely
informational in nature . . . ." Id. at 711 (internal quotation
marks and citation omitted).
From the district court’s order of dismissal dated February
27, 2009, Golden & Zimmerman and Privott filed this appeal.
III
Golden & Zimmerman and Privott contend that the district
court erred in concluding that FAQ F13 is not final agency
action subject to judicial review under the APA.1 They argue
that FAQ F13 constitutes "agency action," which, as defined
in 5 U.S.C. § 551(13), includes an agency "rule," which, in
turn, is defined in § 551(4) as "an agency statement of general
. . . applicability and future effect designed to implement [or]
interpret . . . law." And they argue further that FAQ F13 is
1
While Golden & Zimmerman and Privott contend that the Nelson letter
also represents reviewable final agency action giving rise to subject matter
jurisdiction, their complaint makes no mention of the Nelson letter. Inas-
much as counsel for Golden & Zimmerman and Privott conceded at oral
argument that FAQ F13 articulates essentially the same position taken in
the Nelson letter, we will address only whether FAQ F13 represents final
agency action.
8 GOLDEN AND ZIMMERMAN v. DOMENECH
"final agency action" inasmuch as it represents "the ‘consum-
mation’ of the agency’s decision-making process because [it
is] not ‘of a merely tentative or interlocutory nature,’ but
set[s] forth the agency’s definitive position on the interpreta-
tion and application of the federal criminal statutes it
enforces." (Quoting Bennett, 520 U.S. at 178). They also con-
tend, as required by Bennett, that FAQ F13 has legal conse-
quences that directly affect them because it informs them and
other licensees of the ATF’s position that the transactions at
issue are unlawful. Accordingly, they conclude that FAQ F13
is subject to judicial review.
The ATF contends that FAQ F13 is not agency action, let
alone final agency action. Citing for support Independent
Equipment Dealers Ass’n v. EPA, 372 F.3d 420, 428 (D.C.
Cir. 2004), the ATF argues that FAQ F13 does not meet the
statutory definition of "agency action" by being a "rule,"
which must be "an agency statement . . . designed to imple-
ment, interpret, or prescribe law or policy." 5 U.S.C. § 551(4)
(emphasis added). Rather, it claims that FAQ F13 merely
restates the ATF’s established interpretation and treads no
new ground, pointing out that FAQ F13 "only reiterates, for
the thirteenth time, ATF’s view that the [Gun Control Act]
does not permit [a licensee] to engage in the firearms transfers
at issue here." The ATF also argues that FAQ F13 does not
constitute final agency action, as defined in Bennett. It main-
tains that "an agency publication that only reiterates and
restates a conclusion derived from a decisionmaking process
long ago completed should [not] be deemed to ‘mark the con-
summation of the agency’s decisionmaking process.’" (Quot-
ing Bennett, 520 U.S. at 178). In addition, it maintains, FAQ
F13 fails to qualify as final agency action because it estab-
lishes no legal rights or obligations, but simply advises the
regulated community of the law.
The parties thus agree that our jurisdiction depends on
whether FAQ F13 is final agency action. See 5 U.S.C. § 704.
And the answer to this question requires us to determine first
GOLDEN AND ZIMMERMAN v. DOMENECH 9
whether FAQ F13 is "agency action," as defined in 5 U.S.C.
§ 551(13), and second whether it is "final," as defined in Ben-
nett.
The APA defines "agency action" as including "the whole
or a part of an agency rule, order, license, sanction, relief, or
the equivalent or denial thereof, or failure to act," 5 U.S.C.
§ 551(13) (emphasis added), and "rule" is in turn defined to
include "an agency statement of general or particular applica-
bility and future effect designed to implement, interpret, or
prescribe law or policy," 5 U.S.C. § 551(4) (emphasis added).
Thus, we first address whether FAQ F13 is designed to imple-
ment, interpret, or prescribe law.
The ATF’s Reference Guide on its face purports to provide
only "information" to help new licensees "comply" with the
applicable laws and regulations. In reprinting the relevant
statutes, regulations, and rulings, the Reference Guide
undoubtedly did not "implement, interpret, or prescribe law."
See 5 U.S.C. § 551(4). The Reference Guide also contains fre-
quently asked questions and answers, which, it says, are
intended "to give [licensees] further guidance on the Federal
firearms laws." (Emphasis added). The questions and answers
were not themselves designed to be enforceable rules, but
rather to be a mechanism for explaining the laws, regulations,
and rulings. They do not impose new legal requirements, hav-
ing been reiterated over 13 times during the course of over 40
years. Rather, they attempt to restate or report what already
exists in the relevant body of statutes, regulations, and rulings.
As then Judge John Roberts explained in Independent
Equipment Dealers, a statement by an agency that simply
restates an established interpretation "tread[s] no new
ground" and "le[aves] the world just as it found it, and thus
cannot be fairly described as implementing, interpreting, or
prescribing law or policy." 372 F.3d at 428. Indeed, "[j]ust as
it would be folly to allow parties to challenge a regulation
anew each year upon the annual re-publication of the Code of
10 GOLDEN AND ZIMMERMAN v. DOMENECH
Federal Regulations, so too it is silly to permit parties to chal-
lenge an established regulatory interpretation each time it is
repeated." Id. Holding that the publication of the Reference
Guide constitutes agency action "would quickly muzzle any
informal communications between agencies and their regu-
lated communities—communications that are vital to the
smooth operation of both government and business." Id.
Finding this reasoning of Independent Equipment Dealers
persuasive, we likewise hold that the ATF’s Reference Guide,
including FAQ F13, is not "agency action," as defined in 5
U.S.C. §§ 551(13), 551(4).
In addition, we reject the argument that FAQ F13 is "final
agency action." To be "final," two requirements must be satis-
fied: "First, the action must mark the consummation of the
agency’s decisionmaking process — it must not be of a
merely tentative or interlocutory nature. And second, the
action must be one by which rights or obligations have been
determined or from which legal consequences will flow."
Bennett, 520 U.S. at 177-78 (emphasis added) (internal quota-
tion marks and citations omitted); see also Franklin v. Massa-
chusetts, 505 U.S. 788, 797 (1992) ("The core question is
whether the agency has completed its decisionmaking pro-
cess, and whether the result of that process is one that will
directly affect the parties").
In this case, there was simply no decisionmaking process
that culminated in the publication of the Reference Guide and
FAQ F13. Even if FAQ F13 does anything other than simply
restate the requirements of the Gun Control Act, any decision-
making process that produced the ATF’s interpretation about
what a licensed dealer may lawfully do at an out-of-State gun
show culminated some 40 years ago with the publication of
Revenue Ruling 69-59 (1969). The 2005 Reference Guide
merely restates for the thirteenth time the product of that prior
decisionmaking, and it does so only to "provide[ ] information
GOLDEN AND ZIMMERMAN v. DOMENECH 11
designed to help [licensees] comply with all of the laws and
regulations."
FAQ F13 also does not represent final agency action
because it is not an action "by which rights or obligations
have been determined, or from which legal consequences will
flow." Bennett, 520 U.S. at 178 (internal quotation marks and
citation omitted). Golden & Zimmerman and Privott contend
that FAQ F13 satisfies this prong of Bennett’s test because it
informs the regulated community of the ATF’s conclusion
that it violates the law for a licensee to sell a firearm at an out-
of-State gun show, even if the transfer is to a licensed dealer
with business premises in the State where the gun show is
being held. This argument, however, is made at too general a
level. FAQ F13 might, indeed, inform the regulated commu-
nity of what violates the law. But FAQ F13 does not itself
determine the law or the consequences of not following it. Its
role, as stated in the publication, is simply to inform licensees
of what the law, previously enacted or adopted, is, and its
publication did not itself alter the legal landscape. Indeed, if
the ATF had never published the Reference Guide and FAQ
F13, the ATF would still have had the authority to prosecute
licensees for engaging in the conduct described in FAQ F13
because legal consequences do not emanate from FAQ F13
but from the Gun Control Act and its implementing regula-
tions.
Golden & Zimmerman and Privott insist that the Supreme
Court’s decision in Frozen Food Express v. United States,
351 U.S. 40 (1956), is on "all-fours with the instant case" and
therefore resolves this case in their favor. But a closer reading
of that decision reveals that it is materially distinguishable. In
Frozen Food Express, the Interstate Commerce Commission
issued an order listing commodities that it found to be "agri-
cultural commodities," the carriers of which were exempt
from a permit requirement, and commodities it found not to
be agricultural commodities. The Supreme Court held that
this order was subject to judicial review because it had "an
12 GOLDEN AND ZIMMERMAN v. DOMENECH
immediate and practical impact on carriers who [were] trans-
porting the commodities" by "warn[ing] every carrier, who
[did] not have authority from the Commission to transport
those commodities, that it [did] so at the risk of incurring
criminal penalties." Id. at 44. While FAQ F13 also warns
members of the regulated community that they could be sub-
ject to prosecution for engaging in certain transactions, the
difference is that in Frozen Food Express, the order itself was
the source of the obligation, modifying the applicable legal
landscape by interpreting the scope of the agricultural com-
modities exception and becoming "the basis for carriers in
ordering and arranging their affairs." Id. FAQ F13, by con-
trast, is not the source of an obligation that gives rise to penal-
ties or other consequences.
Consequently, we hold that the ATF’s publication of the
2005 edition of the Reference Guide and FAQ F13 did not
constitute final agency action reviewable in court, and,
accordingly, we affirm the district court’s order dismissing
this case for lack of subject matter jurisdiction.2
AFFIRMED
2
As an additional argument to support the district court’s order, the ATF
contends that Golden & Zimmerman and Privott lack standing in that they
have neither suffered legal wrong nor been adversely affected or aggrieved
by the publication of FAQ F13. In response, Golden & Zimmerman and
Privott argue that in refraining from engaging in activity by reason of FAQ
F13, they were sufficiently harmed to satisfy the elements of standing.
Because we have concluded that the district court was correct in finding
that it did not have subject matter jurisdiction based on the absence of any
final agency action, we need not address the ATF’s alternative argument.