---
kind: "section"
citation: "28 C.F.R. § 68.10"
title: "28"
number: "68.10"
heading: "Motion to dismiss for failure to state a claim upon which relief can be granted."
url: "https://uscodex.org/cfr/28/68.10"
---

# §68.10. Motion to dismiss for failure to state a claim upon which relief can be granted.

- (a) The respondent, without waiving the right to offer evidence in the event that the motion is not granted, may move for a dismissal of the complaint on the ground that the complainant has failed to state a claim upon which relief can be granted. The filing of a motion to dismiss does not affect the time period for filing an answer.
- (b) The Administrative Law Judge may dismiss the complaint, based on a motion by the respondent or without a motion from the respondent, if the Administrative Law Judge determines that the complainant has failed to state a claim upon which relief can be granted. However, in the prehearing phase of an adjudicatory proceeding brought under this part, the Administrative Law Judge shall not dismiss a complaint in its entirety for failure to state a claim upon which relief may be granted, upon his or her own motion, without affording the complainant an opportunity to show cause why the complaint should not be dismissed.

## Notes

### Amendments

[Order No. 2203-99, 64 FR 7075, Feb. 12, 1999]

### Authority

Authority: 5 U.S.C. 301, 554, 557(b); 8 U.S.C. 1103, 1324a, 1324b, and 1324c; 28 U.S.C. 509, 510, and 2461 note; and Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321. Link to an amendment published at 91 FR 51581, Aug. 11, 2026.

### Amendments

[Order No. 2203-99, 64 FR 7075, Feb. 12, 1999]