9 OCAHO no. 1111
Moreover, “no presumptive truthfulness attaches to plaintiff’s allegations, and the presence of disputed material facts will not prevent the trial court from evaluating for itself the merits of jurisdictional claims.” Id. (quoting Mortensen v. First Federal Savings & Loan Association, 549 F.2d 884, 891 (3d Cir. 1977)).
Motion to Dismiss: Failure to State a Claim Upon Which Relief May be Granted
The 90-day deadline at 8 U.S.C. § 1324b(d)(2) for filing a private action with OCAHO is not jurisdictional, but is rather in the nature of a statute of limitations, subject to waiver, estoppel and equitable tolling. See Wong-Opasi v. Tennesse Board of Regents, 8 OCAHO 583, 586-588, 1999 WL 1893879, *3-4. Therefore, Respondent’s argument that Complainant failed to file a timely complaint must be characterized as a motion to dismiss for failure to state a claim. See id.
The OCAHO rules expressly provide for motions to dismiss for failure to state a claim upon which relief may be granted at 28 C.F.R. § 68.10 (2004). A motion to dismiss under 28 C.F.R. § 68.10 is akin to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Reyes-Martinon v. Swift and Company, 9 OCAHO Ref. No. 1068, 9, 2001 WL 909276, *7 (citing Bunn v. USX/US Steel, 7 OCAHO 996, 999-1000, 1998 WL 745990, *3; United States v. Tinoco- Medina, 6 OCAHO 720, 728, 1996 WL 670175, *6). In considering such a motion, the court must assume the truth of all facts alleged in the complaint and must allow the nonmoving party the benefit of all inferences that can be derived from the alleged facts. Reyes-Martinon, supra, at 9, *7 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). A respondent’s motion to dismiss should be granted only if it appears that under any reasonable reading of the complaint, the complainant will be unable to prove any set of facts that would justify relief. Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46
OCAHO judges analyze motions to dismiss as motions for summary decision when the proponent relies upon matters outside the pleadings. See, e.g., Santos v. United States Postal Service, 9 OCAHO Ref. No. 1105, 3, 2004 WL 1539490, *3 (citing United States v. Italy Department Store, Inc., 6 OCAHO 229, 231, 1996 WL 312113, *2; Flores v. Logan Foods Co., 6 OCAHO 545, 549, 1996 WL 525690, *3). Here, Respondent relies on documents outside of the Complaint in arguing that (a) Complainant does not fall within the class of immigrants protected against citizenship status discrimination under the law, (b) federal law precludes Complainant from acquiring the security clearance necessary to be employed in the disputed position, and (c) Complainant failed to file her Complaint with OCAHO within 90 days of receiving authorization to do so. Accordingly, I adjudicate Respondent’s Motion to Dismiss under the standards governing motions for summary decision where appropriate.