Hire Order Ltd, d/b/a Afton Arms; ROBERT W. PRIVOTT, d/b/a Outer Bank Ammunition v.  RICHARD MARIANOS, Special Agent in Charge, Washington Field Division, Bureau of…

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 HIRE ORDER LTD, d/b/a Afton
Arms; ROBERT W. PRIVOTT, d/b/a
Outer Bank Ammunition,
Plaintiffs-Appellants,
v. No. 11-1802 
RICHARD MARIANOS, 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 Alexandria.
Claude M. Hilton, Senior District Judge.
(1:10-cv-01464-CMH-JFA)
Argued: September 20, 2012
Decided: October 18, 2012
Before MOTZ, AGEE, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opin-
ion, in which Judge Agee and Judge Thacker joined.
COUNSEL
ARGUED: Richard E. Gardiner, Fairfax, Virginia, for Appel-
lants. Stephen Joseph Obermeier, OFFICE OF THE UNITED

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STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Neil H. MacBride, United States Attorney, Anna
E. Cross, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
This case presents a challenge to Revenue Ruling 69-59,
which limits the ability of federal firearms licensees to sell
firearms at out-of-state gun shows. The district court granted
the Government’s motion to dismiss this action, finding that
the statute of limitations barred it. For the reasons set forth
within, we affirm the judgment of the district court.
I.
In 1969, the Alcohol, Tobacco, and Firearms Division of
the Internal Revenue Service, predecessor to the current
Bureau of Alcohol, Tobacco, Firearms, and Explosives
("ATF"), issued Revenue Ruling 69-59, 1969-1 C.B. 360,
1969 WL 18703. Appellants Hire Order, Ltd, d/b/a Afton
Arms ("Hire Order"), and Robert W. Privott, d/b/a Outer
Bank Ammunition ("Privott"), challenge the lawfulness of
Ruling 69-59.
Hire Order has held a federal license to deal in firearms
from its business premises in Virginia since 2008. Privott has
held a federal license to deal in firearms from his business
premises in North Carolina since 2008. Hire Order and Privott
allege that they have attended the Nation’s Gun Show in
Chantilly, Virginia. Hire Order contends that it refrained from
receiving firearms at the show from Privott for transfer to
non-federally licensed Virginia residents because of Revenue
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Ruling 69-59. Privott, in turn, contends that he refrained from
selling firearms to Hire Order at the show for transfer to non-
federally licensed Virginia residents for the same reason.
Revenue Ruling 69-59 interprets the Gun Control Act, 18
U.S.C. § 921 et seq. (2006) ("GCA"), to prohibit federal fire-
arms licensees from "sell[ing] firearms or ammunition at a
gun show held on premises other than those covered by his
license." Rev. Rul. 69-59. The Firearms Owners’ Protection
Act, Pub. L. No. 99-308, 100 Stat. 449 (1986) (codified as
amended at 18 U.S.C. § 921 et seq. (2006)), amended the
GCA to allow federal firearms licensees to conduct business
temporarily at gun shows located in the same state as the
business premises specified in their license. 18 U.S.C.
§ 923(j). But Revenue Ruling 69-59 continues to prohibit
sales at out-of-state gun shows.
Hire Order and Privott bring a facial challenge to the Reve-
nue Ruling’s interpretation of the GCA, arguing that the GCA
in fact permits a dealer from one state to sell firearms at a gun
show in another state to a dealer from the state in which the
gun show is located. The ATF1 moved to dismiss the com-
plaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The
district court granted the motion, holding, without reaching
the merits of the case, that the relevant six-year statute of lim-
itations, 28 U.S.C. § 2401(a) (2006), barred the suit.
Hire Order and Privott then sent a letter to ATF, asking that
ATF amend Revenue Ruling 69-59, and soon after noted this
appeal. ATF refused to amend Ruling 69-59, stating that it
believed the Ruling properly interpreted the underlying stat-
1Although Hire Order and Privott brought suit against Edgar A. Dome-
nech, who at that time served as Special Agent in Charge, ATF Washing-
ton Field Division, first William J. Hoover, and presently Richard
Marianos, have since replaced Domenech in that position and, pursuant to
Fed. R. App. P. 43(c)(2), the court has automatically substituted Marianos
for Domenech in these proceedings.
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ute. Prior to argument before us, Hire Order and Privott asked
us to vacate and remand the district court’s order dismissing
their complaint, asserting that, given ATF’s denial of their let-
ter petition, the statute of limitations no longer barred their
claims. We denied the motion.
Recognizing that we review a dismissal under Rule
12(b)(1) or (b)(6) de novo, Coleman v. Md. Court of Appeals,
626 F.3d 187, 190 (4th Cir. 2010); Columbia Gas Transmis-
sion Corp. v. Drain, 237 F.3d 366, 369 (4th Cir. 2001), we
now turn to resolution of the legal issues in this case.
II.
In contending that the district court erred in dismissing
their claim, Hire Order and Privott make no claim before us
that the statute relied on by the district court, 28 U.S.C.
§ 2401(a), does not supply the governing limitations period
here. That statute provides that: a "civil action commenced
against the United States shall be barred unless the complaint
is filed within six years after the right of action first accrues."
On appeal, Hire Order and Privott maintain only that the dis-
trict court erred in applying this limitations period because it
assertedly misconstrued the date on which their claims
accrued.
A cause of action governed by § 2401(a) accrues or begins
to run at the time of "final agency action." See Jersey Heights
Neighborhood Ass’n v. Glendening, 174 F.3d 180, 186 (4th
Cir. 1999) ("Conduct becomes reviewable under the APA
upon ‘final agency action,’ 5 U.S.C. § 704, in other words,
when ‘the agency has completed its decisionmaking process,
and [when] the result of that process is one that will directly
affect the parties.’" (quoting Franklin v. Massachusetts, 505
U.S. 788, 797 (1992) (internal quotation marks omitted))).
When, as here, plaintiffs bring a facial challenge to an agency
ruling — Hire Order and Privott do not deny theirs is a facial
challenge — "the limitations period begins to run when the
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agency publishes the regulation." Dunn-McCampbell Royalty
Interest, Inc. v. Nat’l Park Serv., 112 F.3d 1283, 1287 (5th
Cir. 1997); see also Wind River Mining Corp. v. United
States, 946 F.2d 710, 715 (9th Cir. 1991) ("[I]f the person
wishes to bring a policy-based facial challenge to the govern-
ment’s decision, that . . . must be brought within six years of
the decision."). Because the agency published Revenue Rul-
ing 69-59 in 1969, the six-year limitations period under
§ 2401(a) has long since expired.
The contention of Hire Order and Privott that their cause of
action did not accrue until they became federally licensed
firearms dealers in 2008 utterly fails. The cases on which they
rely offer no support for their position. None of those cases
involve a facial challenge like the one they concededly bring
here. See Functional Music, Inc. v. FCC, 274 F.2d 543, 546
(D.C. Cir. 1958) (indicating that the statute of limitations
"does not foreclose subsequent examination of a rule where
properly brought before this court for review of further Com-
mission action applying it" (emphasis added)); see also Bay
Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar
Corp. of Cal., 522 U.S. 192 (1997); Crown Coat Front Co. v.
United States, 386 U.S. 503 (1967); NLRB Union v. FLRA,
834 F.2d 191 (D.C. Cir. 1987); Spannaus v. U.S. Dep’t of Jus-
tice, 824 F.2d 52 (D.C. Cir. 1987).
Alternatively, Hire Order and Privott contend that ATF’s
denial of their letter "petition" to amend Revenue Ruling 69-
59 restarted the statute of limitations clock by creating new
final agency action. This alternative argument is no more per-
suasive. The letter does not affect this appeal because Hire
Order and Privott sent it after the district court issued its final
order. Because the district court has not had an opportunity to
review the impact of the letter, if any, in the first instance, we
cannot decide that question here. See 28 U.S.C. § 1291 (2006)
("The courts of appeals . . . shall have jurisdiction of appeals
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from all final decisions of the district courts of the United
States . . . ." (emphasis added)).2
III.
For the reasons set forth above, we affirm the judgment of
the district court.
AFFIRMED
2We note that the case on which Hire Order and Privott heavily rely in
making their alternative argument, NLRB Union, 834 F.2d at 196, may not
provide as fulsome authority for their position as they suggest. In addition
to being out-of-circuit dicta, the court (indeed the judge) that authored this
dicta seems to have subsequently limited its application. See Cronin v.
FAA, 73 F.3d 1126, 1131 n.3 (D.C. Cir. 1996) ("[I]t is far from clear that,
in the present situation, ALPA’s petition to modify the alcohol testing reg-
ulations brings this case within the reasoning of NLRB Union. For exam-
ple, although this court permitted the NLRB Union to appeal the FLRA’s
response to the union’s untimely petition for amendment, the opinion in
NLRB Union took pains to note that such an appeal was ‘the only remain-
ing path to judicial consideration of the substantive validity of the
FLRA’s regulations.’ Id. at 197 (emphasis added). The same situation
does not exist here, for ALPA and/or affected employees may challenge
the legality of the regulations in an enforcement action.").
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