9 OCAHO no. 1111
because it is barred by the statute of limitations at 8 U.S.C. § 1324b(d)(2).
STANDARDS GOVERNING A MOTION TO DISMISS/MOTION FOR SUMMARY DECISION
Motion to Dismiss: Subject-Matter Jurisdiction
Respondent asserts grounds for dismissal based on OCAHO’s lack of subject-matter jurisdiction and the alleged failure of Complainant to state a claim upon which relief can be granted. I am bound to consider the motion regarding subject-matter jurisdiction first, since Respondent’s motion to dismiss for failure to state a claim becomes moot if this court lacks subject-matter jurisdiction. See Ruan v. United States Navy, 8 OCAHO 714, 716, 2000 WL 773075, *2 (citing Bell v. Hood, 327 U.S. 678, 682 (1946); CHARLES ALAN WRIGHT & ARTHUR R. MILLER, 5A FEDERAL PRACTICE AND PROCEDURE § 1350, 209-210 (1990)).
The OCAHO rules of practice do not provide for motions to dismiss for lack of subject- matter jurisdiction. The OCAHO rules, however, state that the Federal Rules of Civil Procedure “may be used as a general guideline in any situation not provided for or controlled by these rules, the Administrative Procedure Act, or by any other applicable statute, executive order, or regulation.” 28 C.F.R. § 68.1 (2004). Thus, Rule 12(b)(1), providing for motions to dismiss for lack of subject- matter jurisdiction, and Rule 12(h)(3), compelling dismissal of actions “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter,” may be employed as a general guideline when an OCAHO Administrative Law Judge has reason to question OCAHO’s subject-matter jurisdiction. See, e.g., Ruan, supra, at 716-717, *2 (citing Hammoudah v. Rush-Presbyterian-St. Luke’s Med. Center, 8 OCAHO 254, 256-257, 1998 WL 1085948, *2; Artioukhine v. Kurani, Inc. d/b/a Pizza Hut, 1998 WL 356926, *3-4 (OCAHO) (unpublished); Boyd v. Sherling, 6 OCAHO 1113, 1119, 1997 WL 176910, *5; Caspi v. Trigild Corp., 6 OCAHO 957, 960, 1997 WL 131354, *2-3).
In addition, 28 C.F.R. § 68.57 (2004) provides that any person aggrieved by a final agency order issued with respect to unfair immigration-related employment practice cases may seek review in the United States court of appeals in which the violation is alleged to have occurred or in which the employer resides or transacts business. Since the relevant events in this case took place in Hawaii, case law precedent from the United States Court of Appeals for the Ninth Circuit is pertinent.
Respondent’s attack on OCAHO’s subject-matter jurisdiction can be considered a “speaking motion;” that is, it challenges this Court’s subject-matter jurisdiction in fact, without regard to the formal sufficiency of the allegations made in the Complaint. See Thornhill Publishing Co. v. General Telephone and Electronics Corp., 594 F.2d 730, 733 (9th Cir 1979). In the case of a speaking motion, the plaintiff bears the burden of proof that jurisdiction does in fact exist. Id.