PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GOLDEN AND ZIMMERMAN, LLC; 

ROBERT W. PRIVOTT,

Plaintiffs-Appellants,

v.  No. 09-1534 EDGAR A. DOMENECH, Special

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.
COUNSEL

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.

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.

2 GOLDEN AND ZIMMERMAN v. DOMENECH
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.

§ 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

GOLDEN AND ZIMMERMAN v. DOMENECH 3
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-ofState 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

orders for firearms at an out-of-State gun show. In

filling any orders for firearms, the dealer must return

4 GOLDEN AND ZIMMERMAN v. DOMENECH
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 purchaser’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 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 off-premises dealing violates 18 U.S.C.

GOLDEN AND ZIMMERMAN v. DOMENECH 5
§ 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 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 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, L.L.C. v. Domenech, 599 F. Supp. 2d

702 (E.D. Va. 2009). It concluded that the ATF’s Reference

6 GOLDEN AND ZIMMERMAN v. DOMENECH
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 & Zimmerman, 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

1While 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. Inasmuch 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. 

GOLDEN AND ZIMMERMAN v. DOMENECH 7
"final agency action" inasmuch as it represents "the ‘consummation’ 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 interpretation and application of the federal criminal statutes it

enforces." (Quoting Bennett, 520 U.S. at 178). They also contend, as required by Bennett, that FAQ F13 has legal consequences 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 implement, 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 maintains 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 consummation of the agency’s decisionmaking process.’" (Quoting Bennett, 520 U.S. at 178). In addition, it maintains, FAQ

F13 fails to qualify as final agency action because it establishes 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

8 GOLDEN AND ZIMMERMAN v. DOMENECH
whether FAQ F13 is "agency action," as defined in 5 U.S.C.

§ 551(13), and second whether it is "final," as defined in Bennett.

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 applicability 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 implement, 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 frequently 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, having 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

GOLDEN AND ZIMMERMAN v. DOMENECH 9
Federal Regulations, so too it is silly to permit parties to challenge 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 regulated 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 satisfied: "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 quotation marks and citations omitted); see also Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) ("The core question is

whether the agency has completed its decisionmaking process, 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 decisionmaking 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

10 GOLDEN AND ZIMMERMAN v. DOMENECH
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 outof-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 community 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 regulations.

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 "agricultural 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

GOLDEN AND ZIMMERMAN v. DOMENECH 11
immediate and practical impact on carriers who [were] transporting 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 subject 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 commodities exception and becoming "the basis for carriers in

ordering and arranging their affairs." Id. FAQ F13, by contrast, is not the source of an obligation that gives rise to penalties 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

2As 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.

12 GOLDEN AND ZIMMERMAN v. DOMENECH