(a) A complainant, not fewer than thirty (30) days after receipt by respondent of the complaint, may move with or without supporting affidavits for summary decision on all or any part of the complaint. Motions by any party for summary decision on all or any part of the complaint will not be entertained within the twenty (20) days prior to any hearing, unless the Administrative Law Judge decides otherwise. Any other party, within ten (10) days after service of a motion for summary decision, may respond to the motion by serving supporting or opposing papers with affidavits, if appropriate, or countermove for summary decision. The Administrative Law Judge may set the matter for argument and/or call for submission of briefs.
(b) Any affidavits submitted with the motion shall set forth such facts as would be admissible in evidence in a proceeding subject to 5 U.S.C. 556 and 557 and shall show affirmatively that the affiant is competent to testify to the matters stated therein. When a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of such pleading. Such response must set forth specific facts showing that there is a genuine issue of fact for the hearing.
(c) The Administrative Law Judge shall enter a summary decision for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision.
(d) Form of summary decisions. Any final order entered as a summary decision shall conform to the requirements for all final orders. A final order made under this section shall include a statement of:
(1) Findings of fact and conclusions of law, and the reasons therefor, on all issues presented; and
(2) Any terms and conditions of the final order.
(e) Hearings on issue of fact. Where a genuine question of material fact is raised, the Administrative Law Judge shall set the case for an evidentiary hearing.
[Order No. 2203-99, 64 FR 7078, Feb. 12, 1999]
Notes of Decisions
Split Rail Fence Co. v. United States, 852 F.3d 1228 (10th Cir. 2017).
· cites it 6× “ICE moved for summary decision under 28 C.F.R. § 68.38 , the administrative analog to summary judgment under Federal Rule of Civil Procedure 56.”
DLS Precision Fab LLC v. U.S. Immigr. & Customs Enf't, 867 F.3d 1079 (9th Cir. 2017).
· cites it 10× “The summary decision standard under 28 C.F.R. § 68.38 (c) is essentially the same as the standard in civil litigation for a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.”
Olimpia TOVAR, Petitioner, v. UNITED STATES POSTAL Serv., Respondent, 3 F.3d 1271 (9th Cir. 1993).
“Requirements for Summary Judgment Under 28 C.F.R. § 68.38 (c) (1992), the ALJ “may enter a summary decision for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any…”
Rompalli v. Tykhe Capital, LLC, 452 F. App'x 69 (2d Cir. 2012).
· cites it 2× “See 28 C.F.R. § 68.38 (b). Therefore, the administrative law judge properly granted Tykhe’s motion for summary decision pursuant to 28 C.”
Split Rail Fence Co. v. United States, 844 F.3d 880 (10th Cir. 2016).
· cites it 6× “ICE moved for summary decision under 28 C.F.R. § 68.38 , the administrative analog to summary judgment under Federal Rule of Civil Procedure 56.”
Villegas-Valenzuela v. Immigr. & Naturalization Serv., 103 F.3d 805 (9th Cir. 1996).
“” 28 C.F.R. § 68.38 (c). In reaching their decisions, the ALJs considered Petitioners’ 1-9 forms, copies of the fraudulent documents, Agent Borup’s affidavits, and documents from the INS Central Index System indicating that the alien registration numbers appearing on…”
Temitope Ogunrinu v. OCAHO (D.C. Cir. 2023).
“28 C.F.R. § 68.38 (a)–(c). The ALJ granted summary decision to Arnold & Porter and Law Resources on both of those claims.”
McCauley v. Tate & Kirlin Assocs., Inc., 347 F. App'x 860 (3rd Cir. 2009).
“After a period of discovery, Tate & Kirlin filed a motion for summary judgment under 28 C.F.R. § 68.38 . The Administrative Law Judge (“ALJ”) granted the motion by order entered March 5, 2009.”
McCauley v. Tate & Kirlin Assocs., Inc., 347 F. App'x 860 (3rd Cir. 2009).
“After a period of discovery, Tate & Kirlin filed a motion for summary judgment under 28 C.F.R. § 68.38 . The Administrative Law Judge (“ALJ”) granted the motion by order entered March 5, 2009.”
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