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Challenge to Gun Show Rule is Time-Barred

The statute of limitations bars an Alexandria U.S. District Court from considering a suit filed by two firearms dealers, one from Virginia and one from North Carolina, challenging Revenue Ruling 69-59, which governs the conduct of federal firearms licensees at gun shows.

Revenue Ruling 69-59 provides that a dealer at a gun show may displays to and take orders from someone not covered by the dealer’s specific license, provided the sale and delivery of the firearms or ammunition are to be lawfully effected from the dealer’s licensed business premises only and his records properly reflect such transactions.

Although passage of the in-state gun show exception in the Firearms Owners Protection Act in 1986 meant Revenue Ruling 69-59 no longer applied in-state federal firearms licensees at in-state gun shows, FOPA did not impact the ruling as it pertained to the interstate conduct of out-of-state federal firearms licensees at out-of-state shows.

Plaintiff Virginia licensee claims it has refrained from receiving firearms at the Nation’s Gun Show in Chantilly, Va., from plaintiff North Carolina dealer because of Revenue Ruling 69-59. The North Carolina dealer likewise says he has refrained from offering firearms for sale at the gun show because of ATF’s Revenue Ruling 69-59. Plaintiffs request relief pursuant to the Declaratory Judgment Act and the Administrative Procedure Act.

The APA waives sovereign immunity for suits by persons claiming “legal wrong” or who have been adversely affected or aggrieved as a result of agency action. While sovereign immunity may not bar this action, the statute of limitations applicable to the APA creates an insurmountable hurdle for plaintiffs.

The APA does not have its own statute of limitations, rather, according to the general statute of limitations for claims against the government, however, every civil action commenced against the U.S. shall be barred unless the complaint is filed within six years after the right of action first accrues. Because an action against a federal agency is an action against the U.S., a complaint under the APA for review of an agency action is a “civil action” within the meaning of section 2401(a).

The only final agency action plaintiffs appear to challenge is Revenue Ruling 69-59 itself. That ruling was issued over 40 years ago, well outside the applicable six-year statute of limitations. The court rejects plaintiffs’ contention that their claim is not time-barred because their right to file a civil action did not accrue until they obtained their federal firearms licenses in 2008. Plaintiffs also fail to identify any sort of conduct by the ATF or defendant that would allow them to circumvent the statute of limitations.

The court lacks jurisdiction to hear this case.

Hire Order Ltd. v. Domenech
(Hilton) No. 1:10cv1464, May 26, 2011; USDC at Alexandria, Va. VLW 011-3-308, 8 pp.

VLW 011-3-308

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