Hartmann v. Jaddou et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NIKLAS HARTMANN,
Plaintiff,
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v. 	Civil Action No. 3:24-cv-02317-BT
ANDREW J. DAVIDSON, in his official
capacity as Senior Official Performing
the 	Duties 	of 	the 	Director, 	U.S.
Citizenship and Immigration Services,
and any successor in this position, et
al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Defendants move to dismiss this pro se civil action asserting claims under
the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., and the Fifth
Amendment Due Process Clause. For the following reasons, the Court GRANTS
the Motion (ECF No. 34).
Background
Plaintiff Niklas Hartmann’s claims arise from the denial of his Form I-140
Immigrant Petition for Alien Worker, in which he sought to be classified as an alien
of extraordinary ability under 8 U.S.C. § 1153(b)(1)(A) for his work as an influencer
marketing manager.1 Second Am. Compl. at 3, ¶ 11 (ECF No. 29); USCIS Mot. at 2
1 The EB-1A visa Hartmann seeks is colloquially known as the “Einstein” or
“genius” visa. Amin v. Mayorkas, 24 F.4th 383, 386–87 (5th Cir. 2022).
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(ECF No. 34). After its initial review of Hartmann’s petition, U.S. Citizenship &
Immigration 	Services 	(USCIS) 	issued 	two 	Requests 	for 	Evidence 	seeking
additional information, and in response to each request, Hartmann supplied
additional evidence. See USCIS Mot. at 2 (ECF No. 34); Second Am. Compl., Ex. 4
(ECF No. 29-4) (USCIS request for evidence), Ex. 5 (ECF No. 29-5) (same). Then,
after an alleged 20-month delay in processing the petition, Hartmann sued to
compel USCIS to process his petition. See generally Original Compl. at 1, 5, ¶¶1, 3
(ECF No. 3).
During the pendency of this action, USCIS denied Hartmann’s EB-1A
petition (the “initial decision”). Second Am. Compl., Ex. 6, at 1 (ECF No. 29-6).
USCIS concluded that, upon review of Hartmann’s petition and supporting
evidence:
[T]he evidence does not establish that [Hartmann] meets at least
three of the ten criteria found at 8 C.F.R. Section 204.5(h)(3).
USCIS . . . examined 	the 	entire 	record 	and 	has 	determined 	that
[Hartmann] is not one of that small percentage who have risen to the
top of the field of endeavor.
Furthermore, 	the 	evidence 	does 	not 	show 	that 	[Hartmann’s]
achievements set him significantly above almost all others in the field
at a national or international level and does not establish sustained
acclaim.
Id. at 7. Hartmann then amended his federal complaint, challenging USCIS’s initial
decision and asserting claims under the APA and the Fifth Amendment. See
generally Second Am. Compl. (ECF No. 29) (Hartmann’s live pleading).
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Later, 	USCIS 	sua 	sponte 	vacated 	its 	initial 	decision 	and 	reopened
Hartmann’s petition because it found that the earlier requests for evidence did not
provide Hartmann with “sufficient detail to adequately notify [Hartmann] of the
evidentiary deficiencies in the record.” USCIS App. at 1 (ECF No. 35). The same
day, USCIS also issued a Notice of Intent to Deny notifying Hartmann of
evidentiary deficiencies in the record and allowing him the opportunity to submit
additional evidence. Id. at 3–13. And on August 6, 2025—after the parties fully
briefed USCIS’s Motion—Hartmann informed the Court that USCIS issued a
second denial of his EB-1A petition (the “second denial”). See Pl.’s Not. of Second
Agency Action at 1 (ECF No. 44); Pl.’s App. at 3 (ECF No. 45). USCIS did not
respond to Hartmann’s notice regarding the second denial, and USCIS’s Motion is
ripe for adjudication.
Legal Standards
12(b)(1)
A motion to dismiss under Rule 12(b)(1) challenges a federal court’s subject
matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Federal courts are courts of limited
jurisdiction and must have statutory or constitutional power to adjudicate a claim.
See Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006,
1010 (5th Cir. 1998). Absent jurisdiction conferred by statute or the Constitution,
they lack the power to adjudicate claims and must dismiss an action if subject
matter jurisdiction is lacking. Id.; Stockman v. Fed. Election Comm’n, 138 F.3d
144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d
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222, 225 (5th Cir. 1994)). “[S]ubject-matter jurisdiction cannot be created by
waiver or consent.” Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).
The Court “must presume that a suit lies outside [its] limited jurisdiction, and the
burden of establishing federal jurisdiction rests on the party seeking the federal
forum.” Id. at 916.
Lack of subject matter jurisdiction may be found by looking at “(1) the
complaint alone; (2) the complaint supplemented by undisputed facts evidenced
in the record; or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.” Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001). The plaintiff seeking a federal forum “constantly bears the burden
of proof that jurisdiction does in fact exist.” Id.
12(b)(6)
To survive a Rule 12(b)(6) motion, a plaintiff’s complaint must contain
sufficient factual matter to state a claim for relief that is plausible on its face. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “To be plausible, the complaint’s
‘[f]actual allegations must be enough to raise a right to relief above the speculative
level.’” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010)
(quoting Twombly, 550 U.S. at 555).
This pleading standard does not require “detailed factual allegations,” but it
does demand more than an unadorned accusation devoid of factual support.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
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the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “[A] formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “While legal conclusions
can provide the framework of a complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. When the facts do not permit the Court to infer
more than the mere possibility of misconduct, the complaint has stopped short of
showing that the plaintiff is plausibly entitled to relief. Id. at 678 (citing Twombly,
550 U.S. at 557).
When applying the plausibility standard, the Court “accepts all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal
quotation marks and citations omitted). But a court may not look beyond the
pleadings. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Review is
“limited to the complaint, any documents attached to the complaint, and any
documents attached to the [motion to dismiss] that are central to the claim and
referenced by the complaint.” Smith v. Buffalo Wild Wings, 2021 WL 4265849, at
*2 (N.D. Tex. Sept. 20, 2021) (Fitzwater, J.) (citing Lone Star Fund V (U.S.), L.P.
v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)); see also Inclusive
Communities Project, Inc. v. Heartland Cmty. Ass’n, Inc., 399 F. Supp. 3d 657,
665 (N.D. Tex. 2019) (“In ruling on [a Rule 12(b)(6)] motion, the court cannot look
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beyond the pleadings.”) (citing Spivey, 197 F.3d 772, 774 (5th Cir. 1999)), aff’d,
824 F. App’x 210 (5th Cir. 2020).
Analysis
Fifth Amendment
Hartmann alleges that USCIS’s adjudication of his EB-1A visa petition
violates his Fifth Amendment right to procedural due process “by failing to provide
a fair and impartial adjudication of [his] I-140 petition.” Second Am. Compl. at 16,
¶ 61 (ECF No. 29). However, USCIS argues that Hartmann fails to state a Fifth
Amendment claim because he does not allege a protected property interest in his
petition. USCIS Mot. at 9 (ECF No. 34). The Court agrees.
“[T]he touchstone of due process is protection of the individual against
arbitrary action of government.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845
(1998) (quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)). “To state a claim
under the Due Process Clause, Plaintiff must first identify a life, liberty, or property
interest protected by the” Fifth Amendment, “and then identify a [federal] action
that resulted in a deprivation of that interest.” Poloceno v. Dallas Indep. Sch. Dist.,
2019 WL 2568681, at *3 (N.D. Tex. June 21, 2019) (Scholer, J.) (internal quotation
marks omitted) (quoting Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir.
1995)), aff’d, 826 F. App’x 359 (5th Cir. 2020). “Property interests are not created
by the text of the Constitution itself, but by other sources such as ‘state law, local
ordinances, contracts, and mutually explicit understandings.’” Wrecker Works,
L.L.C. v. City of Aberdeen, 751 F. App’x 413, 417 (5th Cir. 2018) (citation omitted).
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Hartmann claims that he has a property interest in the “fair and impartial”
adjudication of his EB-1A petition. See Pl.’s Resp. at 2, 13 (ECF No. 39) (referring
to a property interest). But as USCIS correctly notes, the Supreme Court has
unequivocally held that “an alien seeking initial admission to the United States
requests a privilege and has no constitutional rights regarding his application, for
the power to admit or exclude aliens is a sovereign prerogative.” Landon v.
Plasencia, 459 U.S. 21, 32 (1982) (emphasis added). And numerous federal district
courts 	across 	the 	country 	have 	held 	that 	an 	applicant 	does 	not 	have 	a
constitutionally protected interest in an EB-1A visa. See, e.g., Krasniqi v. Dibbins,
558 F. Supp. 3d 168, 191 (D.N.J. 2021) (granting summary judgment on the
plaintiff’s Fifth Amendment claim that USCIS did not properly consider record
evidence because “there is no precedent recognizing a constitutionally protected
interest 	in 	an 	extraordinary 	ability 	visa”); 	Melnattur 	v. 	USCIS, 	2022 	WL
18086892, at *7 (D. Neb. Sept. 12, 2022) (“[Plaintiff] had no protected liberty
interest in an extraordinary-ability visa.”); Hamal v. U.S. Dep’t of Homeland Sec.,
2020 WL 2934954, at *4 (D.D.C. June 3, 2020) (noting that the plaintiff did not
allege “facts that plausibly demonstrate a cognizable property or liberty interest in
the ‘extremely restrictive’ extraordinary ability designation”).
Hartmann tries to save his Fifth Amendment claim by clarifying that he
“does not claim a constitutional right to the approval of his EB-1A petition” but
rather his Fifth Amendment claim is premised on USCIS’s “failure to follow
lawfully promulgated rules, [which is] a classic procedural due process violation[.]”
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Pl.’s Resp. at 13–14 (ECF No. 39). In support of this argument, Hartmann cites to
8 C.F.R. § 204.5(h); Board of Regents v. Roth, 408 U.S. 564 (1972); and Accardi
v. Shaughnessy, 347 U.S. 260 (1954). Id. at 14. None of Hartmann’s cited
authorities support his argument.2
First, 	Hartmann 	claims 	that 	8 	C.F.R. 	§ 204.5(h) 	grants 	him 	a
constitutionally protected interest because the regulation “contains substantive
regulatory criteria limiting agency discretion.” Pl.’s Resp. at 2 (ECF No. 39).
However, nothing in this regulation grants Hartmann a constitutionally protected
interest in the adjudication of his EB-1A petition. Rather, this regulatory provision
merely sets forth the type of evidence needed to show the applicant is of
“extraordinary ability” in a particular field of expertise. See 8 C.F.R. § 204.5(h).
Hartmann next cites Roth for the proposition that “a constitutionally
protected interest arises not from a guarantee of a particular outcome, but from
rules or understandings stemming from an independent source such as statute or
regulation.” Pl.’s Resp. at 14 (ECF No. 39). However, Roth dealt with a college
professor who claimed he was entitled to a hearing and reasons for the university’s
2 The inaccuracies in Hartmann’s brief are typical of unverified, AI-generated
filings, which have become an increasing concern for courts in recent years. While
no federal or local rule explicitly prohibits the use of artificial intelligence in
litigation, and Hartmann disclosed his use of generative AI in preparing his brief,
see Pl.’s Resp. at 1 (acknowledging that Hartmann “used generative AI”), all
parties—including those proceeding pro se—must fulfill their obligations under
Federal Rule of Civil Procedure 11(b), which requires lawyers and unrepresented
parties alike to certify that, after a reasonable inquiry, their legal contentions are
warranted by existing law. Consequently, this duty necessitates a careful review of
AI-generated statements and citations to ensure accuracy.
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decision not to renew his employment contract. Board of Regents v. Roth, 408
U.S. 564, 566 (1972). Despite Hartmann’s contentions, Roth did not hold that
failure to follow lawfully promulgated rules was a violation of due process. In fact,
Roth found:
To have a property interest in a benefit, a person clearly must have
more than an abstract need or desire for it. He must have more than
a unilateral expectation of it. He must, instead, have a legitimate claim
of entitlement to it. It is a purpose of the ancient institution of
property to protect those claims upon which people rely in their daily
lives, reliance that must not be arbitrarily undermined. It is a purpose
of the constitutional right to a hearing to provide an opportunity for a
person to vindicate those claims.
Id. at 577 (emphasis added). Hartmann’s desire for an EB-1A visa does not rise to
a constitutionally protected property interest. And regardless, USCIS afforded
Hartmann due process when it provided him with the opportunity to submit
evidence 	in 	support 	of 	his 	EB-1A 	petition, 	notice 	of 	denials, 	and 	written
explanations for the denials. See Krasniqi, 558 F. Supp. 3d at 191 (noting that the
plaintiffs received due process because they “received notice of the possible denial
of their petitions, were invited to present evidence and arguments, and received a
written, reasoned explanation for the denial”).
Finally, Hartmann cites Accardi without explaining how the case supports
his assertion that he has a constitutionally protectable interest in the adjudication
of his EB-1A visa petition. Pl.’s Resp. at 14 (ECF No. 39). Accardi is a habeas corpus
case analyzing regulations prohibiting the Attorney General from dictating the
Board of Immigration Appeals’ decisions. Accardi v. Shaughnessy, 347 U.S. 260,
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265–67 (1954) (“The crucial question is whether the alleged conduct of the
Attorney General deprived petitioner of any of the rights guaranteed him by the
statute or by the regulations issued pursuant thereto.”). Accardi did not hold that
a visa applicant has a constitutionally protected interest in the application, and
Hartmann has not identified any rights—statutory, regulatory, or otherwise—
guaranteed to him during the adjudication of his EB-1A visa petition. Therefore,
the Court DISMISSES Hartmann’s Fifth Amendment claim because he has not
demonstrated a constitutionally protected interest in his petition.
Administrative Procedure Act
Hartmann alleges that USCIS’s denial of his EB-1A visa petition was
arbitrary and capricious under the APA because it mischaracterized evidence,
relied on factually incorrect information, omitted key evidence, imposed improper
evidentiary burdens, failed to apply the proper legal standard, and failed to
consider material evidence. Second Am. Compl. at 5, ¶ 18 (ECF No. 29). In
response, USCIS argues that the court lacks subject matter jurisdiction over this
claim because “when USCIS reopened Hartmann’s petition, that rendered its
earlier decision non-final and therefore not subject to review under the APA.”
USCIS Mot. at 8 (ECF No. 34).
Under the APA, “[a] person suffering legal wrong because of agency action,
or adversely affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof.” 5 U.S.C § 702. However,
“this grant of judicial review is limited to challenges ‘made reviewable by statute’
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or, if not made reviewable, involving ‘final agency action for which there is no other
adequate remedy in a court.’” Kewayfati v. Bondi, 165 F.4th 342, 349 (5th Cir.
2026) (quoting 5 U.S.C. § 704). Here, only the latter form of judicial review
involving final agency action is at issue.
An agency action is final if: “(1) the action ‘mark[s] the consummation of the
agency’s decisionmaking process’ and (2) is one ‘by which rights or obligations
have been determined, or from which legal consequences will flow.’” Id. (quoting
Bennett v. Spear, 520 U.S. 154, 177–78 (1997)). Stated differently, the question is
“whether the agency has completed its decisionmaking process, and whether the
result of that process is one that will directly affect the parties.” Id. at 349–50
(quoting Franklin v. Mass., 505 U.S. 788, 797 (1992)). If there is no final agency
action, the court lacks subject matter jurisdiction. Texas v. Equal Employment
Opportunity Comm’n, 933 F.3d 433, 440 n.8 (5th Cir. 2019).
Hartmann contests the initial decision denying his EB-1A petition. Second
Am. Compl. at 1–2, ¶ 1 (ECF No. 29); see also id., Ex. 6 (ECF No. 29-6) (providing
the initial decision denying Hartmann’s EB-1A visa petition). However, the initial
decision is not the final agency action here because USCIS sua sponte reopened
Hartmann’s case, withdrew the initial decision, and issued another decision in
August 2025. Pl.’s Notice of Second Agency Action at 1 (ECF No. 44) (“Plaintiff
respectfully notifies this Court that on August 6, 2025, [USCIS] issued a new denial
of Plaintiff’s I-140 petition.”); see also Pl.’s App. at 3 (ECF No. 45) (providing
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second denial); USCIS App. at 1 (ECF No. 35) (decision reopening Hartmann’s
petition and withdrawing the initial decision).
USCIS is permitted to “reopen or reconsider a previously final action on its
own accord, and federal courts across the country have consistently held that it is
within the agency’s power—and often in the party’s own interest—to reopen and
reconsider previously ‘final’ agency actions.” Ahlijah v. Nielsen, 2018 WL 3363875,
at *2 (D. Md. July 10, 2018) (citing 8 C.F.R. § 103.5(a)(5)), aff’d, 755 F. App’x 290
(4th Cir. 2019). Although the initial decision previously constituted a final agency
action, it is no longer the “consummation of USCIS’s decisionmaking process
because 	it 	was 	vacated 	following 	USCIS’s 	reopening 	of 	the 	administrative
proceedings.” Castillo Castillo v. Jaddou, 2023 WL 5015433, at *3 (S.D. Fla. Aug.
6, 2023); see also Balakirev v. Jaddou, 2024 WL 3398391, at *5 (D. Neb. July 10,
2024) 	(“That 	reopening 	and 	the 	agency’s 	issuance 	of 	its 	Second 	Decision,
therefore, render the First Decision non-final for purposes of the APA as that initial
determination no longer represents the agency’s ‘last word’ on [the plaintiff’s]
petition.”); Pena v. Garland, 2022 WL 996574, at *1 (5th Cir. Apr. 4, 2022) (per
curiam) (“The grant of a motion to reopen that vacates or materially changes a
formerly final order renders the order nonfinal[.]”). Thus, “no legal consequences
flow from the [initial decision] because USCIS has issued the now-operative
[second denial] that does not rely whatsoever on the [initial decision].” Castillo
Castillo, 2023 WL 5015433, at *3. As USCIS’s initial decision does not constitute
final agency action, the Court lacks subject matter jurisdiction over this claim.
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Hartmann urges the court to exercise subject matter jurisdiction over his
APA claim under the time-of-filing and voluntary cessation doctrines. Pl.’s Resp.
at 	1, 	¶ 1 	(ECF 	No. 	39). 	Hartmann 	characterizes 	USCIS’s 	reopening 	of 	his
application as a “tactical maneuver to evade judicial review” rather than a “genuine
reevaluation.” Id. at 1–2, ¶ 1. As to Hartmann’s invocation of the time-of-filing
doctrine, he cites Newman-Green, Inc. v. Alfonzo-Larrain, which states that “[t]he
existence of federal jurisdiction ordinally depends on the facts as they exist when
the complaint is filed.” 490 U.S. 826, 830 (1989). However, Hartmann ignores the
sentence immediately following his cited quotation: “Like most general principles,
however, this 	one is susceptible to exceptions[.]” 	Id. 	USCIS’s reopening of
Hartmann’s application rendered the initial decision non-final, which deprives the
court of subject matter jurisdiction under the APA. Therefore, the time-of-filing
doctrine does not aid Hartmann’s position.
Next, Hartmann argues that the court should invoke the voluntary cessation
doctrine 	to 	“prevent 	[USCIS] 	from 	using 	procedural 	reversals 	to 	insulate
themselves from judicial review.” Pl.’s Resp. at 11 (ECF No. 39). Hartmann states
that USCIS used the reopening as a litigation strategy, and the second notice of
intent to deny contains “virtually identical reasoning to the final denial [he]
initially challenged.” Id. at 12 (emphasis omitted). However, as stated above, 8
C.F.R. § 103.5 permits USCIS to reopen and reconsider its previous denial of
Hartmann’s EB-1A petition. Ahlijah, 2018 WL 3363875, at *2. Further, despite
Hartmann’s characterization, USCIS did not reopen his case in name only or as a
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litigation strategy. Rather, USCIS issued a new request for evidence and a reasoned
decision. See USCIS App. at 1–13 (ECF No. 35); Castillo Castillo, 2023 WL
5015433, at *3 (stating that USCIS did not reopen the administrative proceedings
in name only because it issued a new request for evidence and a new decision);
Balakirev, 2024 WL 3398391, at *5 (finding that USCIS did not reopen the
application in “name only” because, among other reasons, USCIS’s notice of intent
to deny communicated areas of improvement in the record evidence and provided
the plaintiff with “a genuine opportunity to elaborate upon his original evidence
and further support his petition”). Therefore, the voluntary cessation doctrine does
not vest this Court with subject matter jurisdiction.3
Because USCIS “exercised its lawful authority to reopen and reconsider” the
initial decision, Hartmann’s APA claim that challenges only the initial decision
must be dismissed. Ahlijah, 2018 WL 3363875, at *2. However, this dismissal does
not prevent Hartmann from filing a similar APA claim challenging the second
denial. Id. at *2, n.2.
3 In its Motion, USCIS also argues that the reopening and vacatur of the initial
decision renders Hartmann’s APA claim moot. USCIS Mot. at 5–6 (ECF No. 34).
However, USCIS made this argument before Hartmann filed notice of the second
denial. As the Court finds that it does not have subject matter jurisdiction over
Hartmann’s APA claim because Hartmann has not challenged a final agency
action, it pretermits discussion of mootness. Balakirev, 2024 WL 3398391, at *5
(determining that the court “need not determine whether the plaintiffs’ challenge
to the First Decision is moot” because the court already found that there was no
final agency action).
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Conclusion
For the reasons stated, the Court GRANTS USCIS’s Motion to Dismiss (ECF
No. 34) and DISMISSES Hartmann’s claims without prejudice. Accordingly, the
Court 	TERMINATES 	AS 	MOOT 	Plaintiff’s 	Motion 	to 	Supplement 	the
Administrative Record (ECF No. 32).
SO ORDERED.
March 12, 2026.
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
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