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UNIGARD INS. CO. v. DEPARTMENT OF THE TREASURY

December 13, 1997

UNIGARD INSURANCE COMPANY, Plaintiff,
v.
DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL, TOBACCO & FIREARMS, Defendant.



The opinion of the court was delivered by: KEEP

 Defendant Department of the Treasury, Bureau of Alcohol, Tobacco & Firearms ("ATF") has filed a motion to dismiss for lack of subject matter jurisdiction, improper venue and failure to state a claim, or in the alternative, for summary judgment. Plaintiff Unigard Insurance Company has filed an opposition and cross-motion for summary judgment. Defendant opposes plaintiff's cross-motion. Both parties are represented by counsel.

 I. BACKGROUND

 Defendant ATF is an agency of the United States charged with responsibility for the administration of federal investigations of potential arson and criminally related fires. Plaintiff Unigard, an insurance company, insures a commercial structure that suffered a catastrophic fire loss on September 23, 1996 at 5200 Southland Drive, Salt Lake City, Utah ("the site"). Defendant ATF assumed investigative jurisdiction of the fire site precluding private parties such as Unigard from investigating and accessing the site. Unigard asserts that ATF bulldozed and razed substantial portions of the site during its investigation.

 By letter dated February 26, 1997, Peter Lynch, counsel for Unigard, submitted a "request for information" to ATF pursuant to the Freedom of Information Act ("FOIA") 5 U.S.C. § 552. Mr. Lynch sought information about the site, including (1) all reports and related records concerning the fire; (2) all reports and records concerning any testing, inspection or analysis of any evidence collected at the scene; and (3) all witness statements and interviews concerning the fire. (Def. Exh. A(1), Letter of 2/26/97). Unigard claims to have sought this information because it was precluded from obtaining evidence due to destruction of significant portions of the building by ATF. Nowhere in the letter of February 26, 1997 did Mr. Lynch indicate that he represents Unigard or that he sought the information on Unigard's behalf.

 By letter dated March 10, 1997, ATF denied Mr. Lynch's request for information alleging that the material was exempt from public disclosure pursuant to 5 U.S.C. § 557(b)(7)(A). This exemption permits a government agency to withhold "records or information compiled for law enforcement purposes" to the extent that disclosure "could reasonably be expected to interfere with enforcement proceedings." On March 19, 1997, Mr. Lynch submitted an administrative appeal, pursuant to 5 U.S.C. § 552(a)(6)(A), of the denial of his FOIA request. On May 6, 1997, the appeal was denied on the ground that the records were exempt from disclosure under the law enforcement exemption. Specifically, ATF stated that premature release of the requested investigative materials would interfere with an ongoing criminal investigation.

 In late April 1997, ATF closed its investigation of the fire at the site. (Def. Exh. D, Cooper Decl. P9; Def. Exh. E, Sarnacki Decl. P9). ATF participates in an inter-agency arson task force along with the Salt Lake City Fire Department, Salt Lake County Fire Department, and the Salt Lake County Sheriff's Department. (Def. Exh. E, Sarnacki Decl. P1). Members of the task force conduct their investigations jointly. Id. The Salt Lake County Fire Department, along with the Salt Lake County Sheriff's Department, is still investigating the matter as a part of the inter-agency task force. (Def. Exh. E, Sarnacki Decl. P10).

 On June 12, 1997, Unigard filed this action for judicial review of the denial of the administrative appeal filed by Mr. Lynch pursuant to 5 U.S.C. § 552(a)(4)(B). On August 15, 1997, Unigard filed a motion seeking to compel ATF to compile, pursuant to the holding in Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564, an itemized index of the materials withheld along with justification for the refusal to produce each category of records. By order of September 14, 1997, this court denied Unigard's motion to compel production of a Vaughn index, holding that the materials requested "could reasonably be expected to interfere with the law enforcement proceeding currently underway in the State of Utah." Order of 9/14/97 at 8. This court further stated, "because the documents are properly exempt under exemption (b)(7)(A), a Vaughn index is not required." Id. (citing Miscaviage v. Internal Revenue Service, 2 F.3d 366, 367 (11th Cir. 1993)). A Vaughn index need not be produced for exemption (b)(7)(A) withholdings because (b)(7)(A) is a general exclusion, by which the entire class of materials is "per se exempt from disclosure regardless of the content of each document withheld." Order of 9/14/97 at 8 (quoting Wiener v. Federal Bureau of Investigation, 943 F.2d 972, 978 n.5 (9th Cir. 1991)).

 ATF now moves to dismiss for lack of subject matter jurisdiction, improper venue and failure to state a claim, or in the alternative for summary judgment. Unigard opposes and cross-moves for summary judgment.

 II. ATF'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

 A. Legal Standard

 Under FRCP 12(b)(1), a court may dismiss a complaint for lack of subject matter jurisdiction. Similarly, Rule 12(h)(3) provides, "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Although the defendants are the movants, the party invoking the federal jurisdiction, the plaintiff here, has the burden of showing that jurisdiction is proper. Thornhill Publishing Co. v. General Tel. & Electronics Corp., 594 F.2d 730 (9th Cir. 1979). The court presumes a lack of jurisdiction until the party asserting jurisdiction proves otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S. Ct. 1673, 1675, 128 L. Ed. 2d 391 (1994).

 B. Lack of Standing


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