     Case: 15-31029      Document: 00513594353        Page: 1     Date Filed: 07/15/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                     No. 15-31029                       United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                                                           July 15, 2016
MICHAEL W. GAHAGAN,                                                       Lyle W. Cayce
                                                                               Clerk
                                                Plaintiff–Appellant,

versus

UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES,

                                                Defendant–Appellee.



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-1268




Before SMITH, BARKSDALE, and COSTA, Circuit Judges.
PER CURIAM:*

      Michael Gahagan appeals a summary judgment in regard to his Freedom
of Information Act (“FOIA”) request. While this appeal was pending, the U.S.
Citizenship & Immigration Services (“USCIS”) informed the court that it had
conducted a further search in response to Gahagan’s request, which it was
processing for disclosable material.         Because that search could affect the


      * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
    Case: 15-31029    Document: 00513594353     Page: 2   Date Filed: 07/15/2016



                                 No. 15-31029
resolution, we vacate and remand for the district court to consider the results
of the new search in the first instance.

                                       I.
      Gahagan, an immigration attorney representing a client in deportation
proceedings, submitted a FOIA request seeking (1) copies of his client’s immi-
gration file (“A-file”), (2) electronic or handwritten notes written by any USCIS
or Department of Homeland Security (“DHS”) employee that related to the
client’s immigration applications, (3) all emails sent to or from any employee
at USCIS’s New Orleans Field Office that mentioned the client, and (4) all
DHS, USCIS, and Immigration and Customs Enforcement (“ICE”) materials
regarding how employees are trained to respond to requests for an alien’s A-file
while he is in removal proceedings, pursuant to Section 240(c)(2) of the
Immigration and Nationality Act.

      When USCIS failed to make a determination regarding his request
within the twenty-day statutory period under 5 U.S.C. § 552(a)(6)(A)(i), Gaha-
gan sued to compel a response. During the course of litigation, USCIS pro-
duced various documents, though Gahagan maintains that USCIS has failed
to respond fully. After the court had denied Gahagan’s motion for summary
judgment, had granted judgment sua sponte to USCIS, and further had
rejected Gahagan’s request for attorney’s fees and costs, Gahagan appealed.

      While that appeal was pending, ICE released thirty-three pages of mate-
rial that had been referred to the agency by USCIS. We vacated and remanded
so the district court could consider the newly released documents, which
USCIS contended mooted Gahagan’s appeal. See Gahagan v. USCIS (Gaha-
gan I), 602 F. App’x 198 (5th Cir. 2015). On remand, the district court denied
Gahagan’s second and third motions for summary judgment and denied his
renewed request for attorney’s fees and costs, again granting judgment sua
                                           2
     Case: 15-31029       Document: 00513594353          Page: 3     Date Filed: 07/15/2016



                                       No. 15-31029
sponte to USCIS. Gahagan again appeals.

       On May 23, 2016, two weeks before oral argument, USCIS filed a motion
to remand, explaining that it had recently discovered that Kelly Keys, a USCIS
employee in the New Orleans Field Office, “could not confirm he had conducted
an electronic search using the A-file number of the individual referenced in
Gahagan’s 2014 FOIA request, as set forth in the August 8, 2014 declaration
of Brian Welsh that is part of the record on appeal.” Thus, “[i]n an abundance
of caution,” USCIS decided to conduct an additional “electronic search on or
about May 19, 2016,” which “produced a limited amount of material that
USCIS is now processing for any applicable FOIA exemptions.”

       USCIS requested remand because it acknowledged that its new “search,
the results thereof, and the need to correct a prior declaration, could all bear
upon the district court’s evaluation of both the merits of Gahagan’s suit, and
his ability to recover attorney’s fees under FOIA.”                Gahagan opposed the
motion, primarily claiming that remand would create further expense and pro-
tract the litigation.

                                              II.
       We agree that remand is appropriate. “As a general rule, ‘any set of cir-
cumstances that eliminates actual controversy after the commencement of a
lawsuit renders that action moot.’” 1 Although the results of USCIS’s latest
search may not render the controversy moot, it could affect the disposition of
Gahagan’s claims.

       The central issue on appeal was the adequacy of USCIS’s search, and it
is not unlikely that any new documents could affect the analysis in this regard.



       1  Envtl. Conservation Org. v. City of Dall., 529 F.3d 519, 527 (5th Cir. 2008) (quoting
Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006)).
                                              3
     Case: 15-31029         Document: 00513594353     Page: 4    Date Filed: 07/15/2016



                                     No. 15-31029
USCIS is also correct that its new search could bear on Gahagan’s request for
attorney’s fees. Under the catalyst theory, a plaintiff is eligible for fees if he
can show “a voluntary or unilateral change in position by the agency,” demon-
strating that he has substantially prevailed as a result of suit.              5 U.S.C.
§ 552(a)(4)(E)(ii)(II). 2

       Other issues could likewise be mooted by the results of the new search.
Gahagan contends that USCIS failed to provide a sufficient Vaughn index. See
Vaughn v. Rosen, 484 F.2d 820 (1973). Nonetheless, depending on the results
of USCIS’s latest search, it might be necessary for USCIS to release a new
Vaughn index or update its existing ones. Similarly, Gahagan contends that
the Welsh declaration was improperly admitted into evidence. Yet, if USCIS
corrects the declaration as it has indicated, presumably the entire declaration
will need to be readmitted into evidence. And, if we vacate, there is no need to
decide whether the court erred by sua sponte entering judgment for USCIS.

       Therefore, because we “will not generally consider evidence or
arguments that were not presented to the district court,” Dunbar v. Seger-
Thomschitz, 615 F.3d 574, 576 (5th Cir. 2010), we leave to the district court
the task of determining the impact of USCIS’s latest search in the first
instance. Accord Gahagan I, 602 F. App’x at 198–99. The motion to remand
is GRANTED. The judgment is VACATED and REMANDED for proceedings
as the district court decides are necessary. We express no view, and impose no
limit, on the decisions the court is to make on remand.




       2  Whether USCIS’s decision to conduct an additional search was the result of Gaha-
gan’s litigation we leave to the district court to evaluate.
                                            4
