     Case: 16-30882      Document: 00513796444         Page: 1    Date Filed: 12/14/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit


                                    No. 16-30882
                                                                               FILED
                                                                       December 14, 2016
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
MICHAEL W. GAHAGAN,

              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. 2:15-CV-796


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM:*
       In the course of representing a client, Michael Gahagan determined that
he needed a copy of the receipt confirming the client’s previous filing of a “Form
I-485” with the United States Citizenship & Immigration Services (“USCIS”).
For whatever reason, this required “Receipt Notice” had not been provided at
the time of the form’s submission.           Gahagan attempted unsuccessfully to



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-30882
obtain the Receipt Notice through informal methods and then filed a Freedom
of Information Act (“FOIA”) request with USCIS.           The request yielded
hundreds of pages of documents, but no Receipt Notice. An administrative
appeal accomplished nothing. Accordingly, Gahagan filed this action pursuant
to 5 U.S.C. § 552(a)(4)(B), which provides district courts with “jurisdiction to
enjoin [agencies] from withholding agency records and to order the production
of any agency records improperly withheld from the complainant.”
      A few months after filing suit, Gahagan filed a motion for summary
judgment. USCIS filed an opposition and also provided the Receipt Notice,
which it had discovered during a supplemental search of its records. The
district court ruled that provision of the Receipt Notice largely mooted the suit
and, more importantly, that USCIS had complied with FOIA by conducting “a
search reasonably calculated to yield responsive documents to Plaintiff’s FOIA
request,” notwithstanding the fact that the Receipt Notice initially went
undiscovered. Gahagan has not appealed this determination.
      Judgment was granted in favor of USCIS and against Gahagan.
Nonetheless, because he received the Receipt Notice in the course of the
litigation, Gahagan sought attorney’s fees as a prevailing party under 5 U.S.C.
§ 552(a)(4)(E)(i). Under that provision, district courts “may assess against the
United States reasonable attorney fees and other litigation costs reasonably
incurred in any case under this section in which the complainant has
substantially prevailed.” Id.
      In ruling on the motion, the district court noted that Gahagan appeared
eligible for attorney’s fees because he had obtained the Receipt Notice and
therefore substantially prevailed. The district court declined to definitively
rule on that issue, however, finding Gahagan was not entitled to attorney’s fees
under the applicable four-factor test. On appeal, Gahagan challenges this two-


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                                 No. 16-30882
step inquiry—eligibility and entitlement—claiming that 2007 amendments to
the Open Government Act (“OGA”) abrogate this long-standing approach.
      According to Gahagan, the “eligibility-entitlement test has clearly been
superseded by the OGA.” This argument was not made before the district court
and has therefore been waived. See, e.g., LeMaire v. Louisiana Dep’t of Transp.
& Dev., 480 F.3d 383, 387 (5th Cir. 2007). In any event, it is foreclosed by our
precedent. See Batton v. I.R.S., 718 F.3d 522, 525 (5th Cir. 2013). In Batton,
quoting a 2011 case from the D.C. Circuit, we observed that it was the
“language” of the statute that “naturally divides the attorney-fee inquiry into
two prongs.” Id. (quoting Brayton v. Office of the U.S. Trade Representative,
641 F.3d 521, 524 (D.C. Cir. 2011)). Gahagan fears that we “may be tempted
to follow” this adverse precedent and urges us to ignore it. He misapprehends
the scope of our authority; we are obligated to follow Batton.         See, e.g.,
Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 426 (5th Cir. 1987).
      The district court correctly employed Batton’s two-step approach. We,
too, find it unnecessary to determine whether Gahagan was eligible for
attorney’s fees. Gahagan’s entitlement to attorney’s fees is reviewed only for
an abuse of discretion. Batton, 718 F.3d at 527. “District courts must consider
four factors in the entitlement analysis: ‘(1) the benefit to the public deriving
from the case; (2) the commercial benefit to the complainant; (3) the nature of
the complainant’s interest in the records sought; and (4) whether the
government’s withholding of the records had a reasonable basis in law.’” Id.
(quoting Texas v. Interstate Commerce Commission, 935 F.2d 728, 730 (5th Cir.
1991)).
      The district court thoroughly and properly considered each of the four
relevant factors. It found the first and last factors to favor USCIS and the
second and third factors to favor Gahagan.       Having reviewed the parties’
arguments and relevant portions of the record, we cannot find that the district
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                               No. 16-30882
court abused its discretion in analyzing or weighting these factors, or in
determining that, under the circumstances, Gahagan was not entitled to
attorney’s fees.
      The district court’s order is AFFIRMED.




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