What happens when the 12(B)(6) standard is tougher to satisfy than Rational Basis Review?

March 19th, 2013

Even notwithstanding Iqbal, surviving a motion to dismiss is not impossible. As long as the plaintiff can state a plausible case fo why some set of facts exist as to why judgment is appropriate, the Motion to Dismiss should be denied. But what happens when a Plaintiff is challenging a law subject to rational basis review? To survive rational basis, at least with respect to certain economic rights, the plaintiff needs to accomplish something that is impossible–negativing every conceivable basis on which the government could have acted. This is much, much more onerous than the standard 12(B)(6) standard. So what should courts do?

Tim Sandefur addresses just that question in article titled, “Rational Basis and the 12(B)(6) Motion: An Unnecessary ‘Perplexity.'” Here is the abstract:

The Federal Rules of Civil Procedure allow a trial court to dismiss a case prior to discovery if the plaintiff can prove no set of facts that would entitle her to judgment on the merits. Courts applying this rule are expected to be lenient, assuming all the complaint’s allegations to be true and drawing every inference in the light most favorable to the plaintiff. If the complaint pleads sufficient facts that a court could plausibly infer that the defendant is responsible for the alleged harm, the court should deny a motion to dismiss, even where recovery seems unlikely. Only where plaintiffs make allegations that could not plausibly support an ultimate judgment should a court throw a case out of court.

This black-letter rule is simple enough, but things get complicated when it intersects with the rational basis test courts use when judging the merits of many constitutional cases. Indeed, courts have often expressed “perplexity” and “confusion” about the clash of the pro-plaintiff 12(b)(6) standard and the pro-defendant rational basis standard. Because plaintiffs in rational basis cases face the difficult task of proving that the challenged law is positively irrational, some courts have been tempted to shortcut such cases by dismissing them prior to any fact-finding, on the theory that plaintiffs cannot possibly introduce evidence sufficient to disprove every conceivable basis for the laws they challenge.

Fortunately, some often-overlooked cases provide a resolution to this “dilemma.” The perplexity courts have expressed is caused by exaggerated language in some decisions that inaccurately describe the rational basis test in extreme and formalistic terms. Contrary to what these cases suggest, that test is only an evidentiary presumption, not a conclusive presumption or a rule of law, and it does not impose on plaintiffs the logically impossible burden of proving an infinite set of negatives or overcoming “fanciful conjecture[s].” Courts resolving motions to dismiss in rational basis cases should address the 12(b)(6) motion like any other such motion: if it appears on the face of complaint that the plaintiff could, if given the opportunity, prove that the challenged law is not rationally related to a legitimate government interest, Rule 12(b)(6) entitles them to gather and introduce evidence to do so.

This article begins in Part I with an overview of the rational basis test, and specifically with the source of all the confusion: two competing understandings of rational basis, which I call the “formalist” and the “realist” views. The formalist view holds that so long as a hypothetical legislature might have supposed a statute would promote a valid governmental objective, the actual facts of the matter are irrelevant to the constitutional questions. The realist view, by contrast, holds that rational basis is an evidentiary presumption, admittedly a strong one, but one which is rebuttable by the introduction of sufficient evidence. In Part II, I describe how, from the earliest days of the rational basis test’s application, the Supreme Court has held it to be an evidentiary presumption only and has allowed plaintiffs to introduce evidence to prove a challenged law unconstitutional — even reversing lower courts that ruled otherwise. Indeed, it has ruled in favor of plaintiffs on the merits. Part III discusses the standards applied in 12(b)(6) motions, and the confusion that some courts have expressed when deciding whether to dismiss rational basis cases at the pleading stage. Part IV describes the leading recent decision addressing the interplay of the rational basis standard and the motion to dismiss. I conclude with the argument that plaintiffs whose complaints make clear, specific, factual allegations supporting the contention that a challenged law is not rationally related to a legitimate government interest ought to have their day in court.

I suppose the broader existential question, is if Lee Optical/FCC v. Beach-style rational basis allows the court to concoct facts under which a law may be constitutional, the entire “no set of facts” test becomes irrelevant. If the court can always create the facts, it would be impossible to render judgment for Plaintiff.

Also, how would Iqbal’s standard of plausibility work if the rational basis precedents allow the government to win under flat-out bizarre and fictional standards?

This article seems to be an effective attempt to illustrate how rational basis does not meet the most commonly accepted pleading standards. But 12(b)(6) would seem subordinate to how the Court deems rational basis review–a mode of constitutional construction. Thus, rational basis claims would be pigeonholed into 12b6. I suppose a flipside to this is how the Court treated rational basis with bite in cases like Romer or Cleburne (or whatever they do with SSM this year). In such cases, 12b6 would be even more pro-plaintiff, whereas in rational basis 12b6, the plaintiff’s burden grows.

I would be very interested in an empirical study about how often cases are tossed under rational basis with 12b6, or how often they proceed to summary judgment. I know of no such studies (other than the Olech studies I referred to in my article–though those were almost entirely before Iqbal, so I doubt those numbers are relevant). Is the decision to apply rational basis usually applied at the MTD opinion?

Interesting food for thought.