In RAF litigation, there is a narrow, but possible, path to Supreme Court review. In the panel decision, the Fifth Circuit determined that the City and TIRZ 17 had a rational basis for transferring the flooding blight from TIRZ 17 to the neighborhoods (and that thus there is no viable 14th Amendment claim). However, RAF’s Complaint contained numerous and specific allegations that no rational basis existed (such as references to City-approved flood studies that gave defendants actual knowledge their infrastructure projects would worsen flooding in the residential areas). Under established law, on a motion to dismiss, a reviewing court must accept all well pled facts as true, viewing them in the light most favorable to Plaintiffs. This standard comes from the Supreme Court’s well known Iqbal and Twombly cases. In the context of RAF’s lawsuit, the Fifth Circuit did not accept the alleged facts as true but made its own determination that a rational basis existed, despite there having been no fact development in the lower court. In fact, the rational basis articulated by the Fifth Circuit was not only speculative and evidence-free, it was contrary to all the facts pled in RAF’s complaint.

As it turns out, this collision of the Iqbal/Twombly standard with a reviewing court finding rational basis at the motion to dismiss stage has been analyzed in a 2014 law review article, Rational Basis and the 12(b)(6) Motion: An Unnecessary Perplexity, published in the George Mason University Civil Rights Law Journal by Timothy Sandefur.  Interestingly, some of the pitfalls associated with this collision played out in RAF’s case. For example, the City and TIRZ argued that the appropriate standard under the rational basis test required RAF to “negate any conceivably rational basis” for the defendants’ actions (see TIRZ Reply at 16). But as Mr. Sandefur explains, the rational basis test does not create the “logically impossible task of proving an infinite set of negatives or overcoming fanciful conjectures” (article at p.45). The standard urged by the City and TIRZ has been articulated by some courts at the 12(b)(6) stage, but other courts have stated that this burden on plaintiffs is too great, permitting those cases to move past motions to dismiss. The law review article illustrates that this collision plays out in cases across all circuit courts, and provides extensive case law research demonstrating the current state of the problem.

Moreover, right now, there is a petition for writ of certiorari pending with the Supreme Court, Niang v. Tomblinson, challenging the evidentiary standard to overcome rational basis review. Several amicus briefs were filed, including one by Mr. Sandefur. His amicus brief describes conflicting case law over whether rational basis is a “rebuttable” “presumption of fact” or whether judges may manufacture their own speculative rationalizations without fact development in the case. That description of course applies to the error underlying RAF’s Fifth Circuit decision. What this means is that the issue presented in RAF’s case is current, timely, and more likely to resonate with the high court if there are multiple requests for review based on similar fact patterns. Further, Supreme Court review often requires the presence of a “circuit split” (conflicting authority among the various circuit courts), which may be present for this aspect of rational basis review, in light of some of the cases discussed in the Niang v. Tomblinson briefing.

Here, the purpose of this write-up is not to supply the set of cases that would support a petition for writ of certiorari, but rather describe the issue that presents the best path for Supreme Court review. Our goal for further review is two-fold: first, we strongly believe that the Fifth Circuit erred, and should not have allowed dismissal of the lawsuit on a 12(b)(6) motion in light of the detailed narrative and extensive facts alleged in the Complaint (which should have been taken as true, per Iqbal/Twombly). The Fifth Circuit should have allowed fact development. Second, we are mindful that the litigation pressure on the City and TIRZ 17 may be keeping projects on the CIPs. In that regard, we observe that positive adjustments were made to the CIP in the weeks preceding Fifth Circuit oral argument.

We would not propose to file a petition for writ of certiorari with no merit. We recognize that the path is always narrow to the Supreme Court, but we also believe it is significant that the issue causing dismissal of RAF’s lawsuit has been identified and analyzed broadly, and that a rational basis case, where evidentiary issues are at play, is currently pending before the Supreme Court for review.


Mary Conner

Irvine & Conner


A rational basis has to be a lawful basis. This point is so fundamental it is not often raised in these cases.

If lawfulness is not a prerequisite for a government rational basis almost ANY unlawful government activity can be justified! Rational basis under the argument that it raised the value of the TIRZ (but transferred their flooding to adjacent neighborhoods) would allow any unlawful abuse to be rationalized. Was Hitler was right: he had a rational basis!

The TIRZ did not deliberately flood us (hopefully); that is not a rational or designed basis. It was flooding which the TIRZ knowingly and intentionally caused but it was not part of a written plan in which the public had a right to participate. There was no rational basis. Collateral damage and especially not recklessly or intentionally caused collateral damage is not a rational basis.

For those concerned that our case is the same as Niang – it is not. Niang is a licensing case. We do not want a license and are not being deprived because of a state requirement that we needed to comply with. But the test as to how much lower courts should be bound by factual evidence and in 12b6 assumed factual evidence is certainly crucial. The Supreme Court lately has not taken that many purely legal cases except for Chevron deference cases. It does like flooding cases. Maybe it will take this one. It takes four justices to decide.

ABUSE OF DISCRETION STANDARD OF REVIEW. One other thing. You have to pick a standard of review for each question taken up on appeal; the SCOTUS does not have to grant cert for each question. The idea that RAF was trying to get in line before the later Harvey flood victims is an example of abuse of discretion not supported by any evidence in the record. Rarely do judges commit an error that is so fundamental that it is an abuse of discretion. Here is a case. Our attorneys had no way of knowing that the appellate court would latch onto the same patently impossible and outrageous assertion as that of the trial judge when the trial judge was supposed to be assuming our facts were correct and not making findings of her own, so they did not pick the trial opinion apart. It’s unimaginable that it would be repeated on appeal, so it was not raised on appeal. It is a legal standard to be raised now.

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