     Case: 14-31148      Document: 00513036938         Page: 1    Date Filed: 05/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-31148
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             May 8, 2015
MICHAEL WAYNE GAHAGAN,
                                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff–Appellant,

v.

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 PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: ∗
       Michael Wayne Gahagan, an immigration attorney, filed a Freedom of
Information Act (FOIA) request with United States Citizenship & Immigration
Services (USCIS) on behalf of a client in removal proceedings.                      After not
receiving a timely response, he filed suit in federal district court. During the
proceedings before the district court, USCIS released 436 pages of responsive



       ∗
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-31148         Document: 00513036938        Page: 2    Date Filed: 05/08/2015



                                        No. 14-31148
documents to Gahagan; thirty-three pages were redacted in full and stated
only “Referred to Immigration and Customs Enforcement” (ICE). The district
court subsequently entered judgment for USCIS, and Gahagan now appeals.
Gahagan argues that judgment in favor of USCIS was improper because the
thirty-three pages referred to ICE were improperly withheld under FOIA.
However, after Gahagan filed his brief, USCIS filed a motion to supplement
the record on appeal with new evidence, including additional FOIA disclosures
made during the appeal, and alleged that ICE had released the thirty-three
pages to Gahagan. In response, Gahagan filed a motion to vacate the order
granting USCIS’s motion to supplement.
       USCIS urges that the appeal is now moot. Gahagan argues that the
appeal is not moot because ICE partially redacted the thirty-three pages and
the district court has not upheld the withholdings as lawful.                   He further
challenges the fact that neither agency has produced an affidavit or Vaughn 1
index regarding the claimed exemptions to disclosure. He also raises concerns
about the “ex post facto unverified declaration[]” of Fernando Pineiro, the
Deputy FOIA Officer for ICE, which describes ICE’s FOIA referral backlog and
how ICE processes such referrals.                  The district court has not had the
opportunity to view these materials or to consider the parties’ ensuing
arguments. 2 Accordingly, the judgment of the district court is VACATED, and
the case is REMANDED to the district court for further proceedings.
Gahagan’s motion to vacate this court’s order permitting supplementation of
the record is DENIED.




       1   Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
       2See De la O v. Hous. Auth. of El Paso, Tex., 417 F.3d 495, 500 (5th Cir. 2005) (citing
Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988)).
                                               2
