Amicus Curiae Brief — Lydia Olson, et al., Petitioners v. California, et al.

No. 24-269

In the

Supreme Court of the United States

LYDIA OLSON, et al.,

Petitioners,

v.

CALIFORNIA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

BRIEF OF OWNER-OPERATOR

INDEPENDENT DRIVERS

ASSOCIATION, INC. AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Paul D. Cullen, Jr.

Counsel of Record

Charles R. Stinson

The Cullen Law Firm, PLLC

1101 Thirtieth Street NW,

Suite 500

Washington, DC 20007

(202) 944-8600

paul@cullenlaw.com

October 10, 2024

333274

Counsel for Owner-Operator

Independent Drivers

Association, Inc.

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF THE AMICUS CURIAE . . . . . . . . . . . 1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

The business-to-business exemption’s

requirements conflict with federal trucking

rules applicable to interstate operations . . . . . . . 4

II. The distr ict cour t decided OOIDA’s

claims before the Ninth Circuit issued

its en banc decision . . . . . . . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I.

Equa l prot ect ion cla i ms subject t o

rational basis review are entitled to

careful, individual consideration at the

pleadings stage and beyond . . . . . . . . . . . . . . . . . 8

A. Legal distinctions that undermine or

contradict a law’s claimed purpose

are “irrational” for equal protection

purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ii

Table of Contents

Page

B. The vacated Ninth Circuit panel

opinion properly held that AB 5’s

treatment of app workers undermined

the law’s claimed purpose . . . . . . . . . . . . . . 11

C. OOIDA’s challenge highlights additional

exemptions that contradict AB 5’s

claimed purposes of remedying worker

misclassification in California . . . . . . . . . . . 11

II. The minority approach, as demonstrated

by the Ninth Circuit’s en banc decision,

erodes the rational basis standard by

empowering courts to ignore the challenged

law’s actual context . . . . . . . . . . . . . . . . . . . . . . . 13

A. The Ninth Circuit’s en banc decision

allows courts to ignore plausible

allegations before giving claimants

the oppor tunity to demonstrate

that a law in fact contradicts the

extra-complaint justifications . . . . . . . . . . . 14

B. T h i s C o u r t s h o u l d g r a n t t h e

Petition and affirm that economic

legal distinctions that contradict

their claimed justifications do not

survive rational basis review . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Andrews v. City of Mentor,

11 F.4th 462 (6th Cir. 2021) . . . . . . . . . . . . . . . . . . . . 15

Cal. Trucking Ass’n v. Bonta,

No. 3:18-CV-02458-BEN-DEB,

2024 WL 1249554 (S.D. Cal. Mar. 15, 2024) . . . . . . . 1

Children’s Seashore House v. Waldman,

197 F.3d 654 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 15

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

City of New Orleans v. Dukes,

427 U.S. 297 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Diaz v. Brewer,

656 F.3d 1008 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . 10

Eisenstadt v. Baird,

405 U.S. 438 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

FCC v. Beach Commc’ns, Inc.,

508 U.S. 307 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Hughes v. Alexandria Scrap Corp.,

426 U.S. 794 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iv

Cited Authorities

Page

Merrifield v. Lockyer,

547 F.3d 978 (9th Cir. 2008) . . . . . . . . . . . . . . . . 8, 9, 10

Olson v. California,

104 F.4th 66 (9th Cir. 2024) . . . . . . . . . . . . . . . . 6, 7, 14

Olson v. California,

62 F.4th 1206 (9th Cir. 2023) . . . . . . . . . . . . . . . . . 6, 11

Royster Guano Co. v. Virginia,

253 U.S. 412 (1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

S.G. Borello & Sons, Inc. v. Dep’t of Indus. Rel.,

769 P.2d 399 (Cal. 1989) . . . . . . . . . . . . . . . . . . . . . . . . 4

U.S. Dep’t of Agric. v. Moreno,

413 U.S. 528 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

W. & S. Life Ins. Co. v. State Bd. of Equalization

of California,

451 U.S. 648 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Statutes

49 U.S.C. § 13501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

49 U.S.C. § 14102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5, 12

v

Cited Authorities

Page

Cal. Lab. Code § 2775(b)(1) . . . . . . . . . . . . . . . . . . . 2, 3, 12

Cal. Lab. Code § 2775(b)(1)(B) . . . . . . . . . . . . . . . . . . . . 12

Cal. Lab. Code § 2776(a) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Cal. Lab. Code § 2776(a)(1) . . . . . . . . . . . . . . . . . . . . 3, 4, 5

Cal. Lab. Code § 2776(a)(7) . . . . . . . . . . . . . . . . . . . . . . . . 5

Cal. Lab. Code § 2776(a)(8) . . . . . . . . . . . . . . . . . . . . . . . . 5

Regulations & Rules

49 C.F.R. § 376.12(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

49 C.F.R. Part 376 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . 6, 7, 8, 9, 14, 15, 16, 17

Sup. Ct. R. 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

V ic t or M a r rero, Mi ss i o n t o D i s mi ss: A

Dismissal of Rule 12(b)(6) & the Retirement of

Twombly/Iqbal, 40 Cardozo L. Rev. 1 (2018) . . . . . . 15

1

INTEREST OF THE AMICUS CURIAE1

The Owner-Operator Independent Drivers Association

(“OOIDA”) is currently an appellant in Owner-Operator

Independent Drivers Association, Inc. v. Bonta, et al.,

Ninth Circuit No. 24-2341. 2 As in the instant matter,

OOIDA’s lawsuit raises equal protection challenges to

California’s worker classification law, AB 5. Unlike the

instant matter, OOIDA’s equal protection challenge focuses

on a different industry (trucking), different sections of

AB 5, and different legal arguments than those at issue

here. OOIDA’s claims focus on an exemption to the ABC

test available to California-based trucking companies and

drivers but not their interstate counterparts. 3 OOIDA

files this brief in part to ensure that the Ninth Circuit’s

standard for reviewing motions to dismiss rational basis

equal protection claims is not used by courts to avoid

thorough consideration of the facts, law, and merits of

plaintiffs’ arguments demonstrating irrationality.

OOIDA is the largest international trade association

representing the interests of independent owner1. Counsel for amicus OOIDA provided timely notice to

counsel of record as required by Supreme Court Rule 37.2. No

counsel for a party authored this brief in whole or in part, and

no such counsel made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

amicus curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

2. Appeal of Cal. Trucking Ass’n v. Bonta, No. 3:18-CV02458-BEN-DEB, 2024 WL 1249554 (S.D. Cal. Mar. 15, 2024).

3. The district court’s judgment in OOIDA’s challenge

preceded the Ninth Circuit’s en banc decision at issue here.

2

operators, small business motor carriers, and professional

truck drivers. OOIDA’s more than 150,000 members are

professional drivers and small businessmen and women

located in all 50 states and Canada who collectively own

and operate more than 200,000 individual heavy-duty

trucks. Single-truck motor carriers represent nearly half

of the active motor carriers operating in the United States.

OOIDA actively promotes the views of professional

dr ivers and small business tr uckers through its

interaction with state and federal government agencies,

legislatures, courts, other trade associations, and private

businesses to advance an equitable and safe environment

for commercial drivers. OOIDA’s mission includes the

promotion and protection of the interests of independent

truckers, whether they are owner-operators, smallbusiness motor carriers, or professional truck drivers,

on issues that touch on their economic well-being, their

working conditions, and the safe operation of their motor

vehicles on the nation’s highways.

In addition to its affirmative litigation, OOIDA

routinely participates as amicus curiae before federal

Circuit Courts of Appeals and this Court to advocate for

the lawful classification of drivers, the right to pursue

independent owner-operator and small business motor

carrier opportunities, the right to freely participate in

interstate commerce, and to enforce truckers’ rights in

court.

OOIDA’s lawsuit focuses on prong B of the ABC test,

which classifies a worker as an employee unless that

person “performs work that is outside the usual course

of the hiring entity’s business.” Cal. Lab. Code § 2775(b)

3

(1)(B). Because motor carriers’ usual course of business

is moving freight, any trucker who hauls freight for a

motor carrier is now considered an employee under AB 5.

Thousands of truckers who operated in California before

AB 5 was enacted, however, were independent owneroperators who leased their equipment and driving services

to motor carriers and worked as independent contractors.

AB 5 entirely eliminates this category of small business

trucker, and in so doing, unconstitutionally burdens

interstate commerce.

AB 5 also violates these workers’ right to equal

protection under the law. AB 5’s business-to-business

exemption exempts from the ABC test certain workers

who can satisfy twelve requirements. See Cal. Lab. Code

§ 2776(a)(1)-(12). But several of these conflict with the

federal rules governing the relationship between interstate

motor carriers and leased owner-operators, preventing

interstate trucking operations from simultaneously

satisfying both laws. Thus, only intrastate California

truckers, not subject to the federal rules, can possibly

satisfy the business-to-business exemption.

OOIDA demonstrated that it was irrational for the

legislature to make an exemption available only to the

group of persons it intended the law to protect—California

workers—but not persons it has little or no interest in

protecting—interstate workers more likely to be from out

of state. Thus, the business-to-business exemption violates

the Constitution’s guarantee of equal protection under

the law (and unconstitutionally discriminates against

interstate commerce). OOIDA submits this Brief in part to

ensure that the Ninth Circuit’s en banc decision does not

invite courts to dispose of equal protection claims without

4

regard to the distinctions between cases like OOIDA’s and

Olson’s and before claimants can present facts that would

disprove the rationality of the proffered rational basis.

BACKGROUND

OOIDA demonstrates in its lawsuit that AB 5’s

business-to-business exemption violates the Constitution’s

Equal Protection Clause because it irrationally favors local,

intrastate truckers over their similarly situated interstate

counterparts. Only those California intrastate truckers

who need not comply with the federal “Truth-in-Leasing

Rules” can satisfy all the exemption’s requirements to

qualify for a more flexible classification standard, which

permits leased owner-operators to operate as independent

contractors.

I.

The business-to-business exemption’s requirements

conflict with federal trucking rules applicable to

interstate operations.

Workers who satisfy AB 5’s business-to-business

exemption’s elements are classified under the Borello4

standard—a classification standard less restrictive than

the ABC test—under which truck drivers can drive

for motor carriers as independent contractors. The

business-to-business exemption’s first element requires

the worker to be “free from the control and direction

of the contracting business entity in connection with

the performance of the work, both under the contract

for the performance of the work and in fact.” Cal. Lab.

4. S.G. Borello & Sons, Inc. v. Dep’t of Indus. Rel., 769 P.2d

399 (Cal. 1989).

5

Code § 2776(a)(1). The seventh element requires that

the “business service provider can contract with other

businesses to provide the same or similar services and

maintain a clientele without restrictions from the hiring

entity.” Cal. Lab. Code § 2776(a)(7). The eighth element

requires that “[t]he business service provider advertises

and holds itself out to the public as available to provide

the same or similar services.” Cal. Lab. Code § 2776(a)(8).

But each of these elements conflicts with express

requirements of the federal regulations applicable to

truckers working in interstate commerce. Those rules (the

“Truth-in-Leasing” rules authorized by 49 U.S.C. § 14102

and promulgated at 49 C.F.R. Part 376) require interstate

motor carriers who engage owner-operators to have

“exclusive possession, control, and use” of and “complete

responsibility for the operation of” the leased owneroperator’s truck. 49 C.F.R. § 376.12(c)(1). As a matter of

plain language and simple logic, interstate owner-operator

drivers cannot simultaneously be “free from the control

and direction” of the motor carrier as necessary to qualify

for AB 5’s business-to-business exemption while their

equipment and operation of that equipment is also under

the “exclusive possession, control, and use” of their motor

carrier as required by the federal rules.

Therefore, to the extent the business-to-business

exemption allows leased owner-operators to be a part

of the trucking industry, the exemption can only apply

to California intrastate truckers who are not required

to follow the Truth-in-Leasing rules and is unavailable

to trucking operations in interstate commerce who must

comply with the federal rules. There is no rational basis

for the legislature to make an exemption available only

6

to the group of persons it intended the law to protect—

California workers—but not persons it has little or no

interest in protecting—interstate workers more likely to

be from out of state.

II. The district court decided OOIDA’s claims before

the Ninth Circuit issued its en banc decision.

Follow ing the Olson panel decision (Olson v.

California, 62 F.4th 1206 (9th Cir. 2023) (“Olson I”)), the

district court in OOIDA’s challenge permitted the plaintiffs

to add claims that provisions of AB 5 (independent of the

provisions at issue in Olson) violated the Equal Protection

Clause. The court eventually conducted a bench trial on

all the plaintiffs’ claims in November 2023 and issued its

decision rejecting the claims in March 2024, after the

full Ninth Circuit granted rehearing in Olson but before

the Ninth Circuit issued its en banc opinion (Olson v.

California, 104 F.4th 66 (9th Cir. 2024) (en banc) (“Olson

II”)). OOIDA appealed, and the parties are currently

briefing the issues in the Ninth Circuit.

SUMMARY OF THE ARGUMENT

The Ninth Circuit’s en banc decision not only deepens

a circuit divide regarding the standard for analyzing

motions to dismiss equal protection claims, but it

erodes the rational basis standard itself, transforming

a court’s review into a rubber stamp for any distinctions

a government can conceive. By allowing courts to

consider, in the context of a Rule 12(b)(6) motion to

dismiss, hypothetical justifications premised on facts

outside or contrary to the complaint, the Ninth Circuit’s

approach threatens to stop equal protection and due

7

process claimants before they have any chance to offer

evidence and argument demonstrating the irrationality

or impossibility of a theoretical rational basis.

If courts entertain only defendants’ proffered rational

bases, discounting or ignoring plaintiffs’ allegations,

then plaintiffs will never be able to introduce facts that

disprove the proffered rational bases. This is particularly

true at the motion to dismiss stage, where a plaintiff is not

required to anticipate all of a defendant’s arguments and

allege facts to rebut those defenses. And this handicap

would propagate if future courts look to Olson II as an

invitation to examine, even at the fact-finding stage, a

merely hypothetical rational basis but not the arguments

and evidence proffered by the plaintiff—whether in

support of their claims or as new rebuttal evidence.

Theoretical rational bases are not immune from factual

and legal challenges in equal protection jurisprudence,

and yet that is how the Ninth Circuit’s rewritten equal

protection standard could be applied. Olson II encourages

courts to ignore the reality created by legal distinctions.

As with any other claim, where plaintiffs allege

plausible facts that show a violation of the Equal Protection

Clause, dismissal under Rule 12(b)(6) is improper. Equal

protection claims, even those implicating rational basis

review, call for considered evaluation on their particular

facts, not sweeping rejection of potentially meritorious

claims based on a court’s conception of circumstances

beyond the four corners of the complaint.

Allowing courts to ignore allegations that contradict

hypothetical justifications when reviewing motions to

dismiss opens the door to courts similarly ignoring

8

evidence, during the merits stages, that a challenged law

does in fact contradict and undermine its hypothetical

justification. This approach significantly departs from this

Court’s established rational basis precedent that requires

laws to be based in logic and reality.

This Court should grant the Petition and affirm that

courts should apply the existing Rule 12(b)(6) standard

to motions to dismiss equal protection claims, accepting

plausible allegations as true and resolving inferences in

favor of plaintiffs.

ARGUMENT

I.

Equal protection claims subject to rational

basis review are entitled to careful, individual

consideration at the pleadings stage and beyond.

Economic distinctions between similarly situated

persons pass equal protection scrutiny if they bear a

rational relationship to a legitimate government interest

or purpose. See, e.g., City of New Orleans v. Dukes,

427 U.S. 297, 303 (1976). But a rational basis must be a

logical one. See Merrifield v. Lockyer, 547 F.3d 978, 986

(9th Cir. 2008) (“The State is not compelled to verify

logical assumptions with statistical evidence.” (quoting

Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 812

(1976))); cf. U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528,

534 (1973) (“For if the constitutional conception of ‘equal

protection of the laws’ means anything, it must at the very

least mean that a bare congressional desire to harm a

politically unpopular group cannot constitute a legitimate

governmental interest.”).

9

Rational basis review may be forgiving, but it cannot

be merely a rubber stamp for any distinction a government

deems politically expedient. Laws that treat people

differently must, at a minimum, make logical sense. See

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

446 (1985) (“The State may not rely on a classification

whose relationship to an asserted goal is so attenuated as

to render the distinction arbitrary or irrational.”).

Equal protection claims based on economic distinctions

already face an uphill battle—rational basis review affords

government entities wide latitude to differentiate between

like persons. But Rule 12(b)(6) does not require these

allegations to clear the additional hurdles of potential

defenses based on facts and circumstances outside the

scope of the complaint. A complaint that plausibly alleges

that the challenged legal distinction undermines the law’s

purposes states an equal protection claim.

A.

Legal distinctions that undermine or contradict

a law’s claimed purpose are “irrational” for

equal protection purposes.

When deciding whether a legal distinction passes

rational basis review, a court must answer two questions:

“(1) Does the challenged legislation have a legitimate

purpose? and (2) Was it reasonable for the lawmakers

to believe that use of the challenged classification would

promote that purpose?” W. & S. Life Ins. Co. v. State Bd.

of Equalization of California, 451 U.S. 648, 668 (1981). If

“‘there is any reasonably conceivable state of facts that

could provide a rational basis’ for the challenged law,”

the claim must be rejected. Merrifield, 547 F.3d at 989

(quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313

(1993)).

10

But a legal distinction that has the effect of

contradicting a law’s claimed, even legitimate, purposes

fails rational basis review. See, e.g., City of Cleburne, 473

U.S. at 446 (“The State may not rely on a classification

whose relationship to an asserted goal is so attenuated

as to render the distinction arbitrary or irrational.”);

see also, e.g., Diaz v. Brewer, 656 F.3d 1008, 1015 (9th

Cir. 2011) (rejecting “claimed legislative justification

because the record established that the statute was not

rationally related to furthering such interests”). In City

of Cleburne, for example, the government offered multiple

theoretical justifications for a local zoning decision, but

the Court noted that the record revealed that none of the

claimed justifications were in fact related to the disparate

treatment. 473 U.S. at 448-50 (“Because in our view the

record does not reveal any rational basis for believing

that the Featherston home would pose any special threat

to the city’s legitimate interests, we affirm the judgment

below insofar as it holds the ordinance invalid as applied

in this case.”).

Thus, the rational basis standard does not permit

governments to act irrationally. See City of Cleburne,

473 U.S. at 446-47; see also Merrifield, 547 F.3d at 991

(“Needless to say, while a government need not provide

a perfectly logical[] solution to regulatory problems, it

cannot hope to survive rational basis review by resorting

to irrationality.”).

As Petitioners adeptly set forth in the Petition, the

Circuit Courts employ one of two approaches when

evaluating motions to dismiss rational basis claims: (1)

accept plausible facts and draw reasonable inferences

from the complaint and apply the rational basis standard;

11

or (2) consider any theoretical rational basis even if it

would rest on facts outside of or conflicting with the facts

alleged in the complaint. See Petition at 16-23. The Ninth

Circuit followed the latter, joining the minority of circuits

that have departed from this Court’s motion to dismiss

precedent.

B. The vacated Ninth Circuit panel opinion

properly held that AB 5’s treatment of app

workers undermined the law’s claimed purpose.

The Olson I panel applied the correct standard to

Olson’s claims that exempting workers for certain apps—

like TaskRabbit and Wag!—but not other app-based

workers—like those at Uber and Postmates—lacked a

rational basis. Excluding these workers from AB 5 was

“starkly inconsistent” with one of AB 5’s chief purposes,

affording gig-based workers employee rights. See Olson I,

62 F.4th at 1219. Moreover, the Panel could not conceive—

and the State could not provide—any reason that the

exempted app-based workers should be excluded from

AB 5 but Uber and Postmates workers should not. See

id. at 1219 & n.11. In short, the exemptions undermined

AB 5’s claimed purposes. See id. at 1219-20.

C.

OOIDA’s challenge highlights additional

exemptions that contradict AB 5’s claimed

purposes of remedying worker misclassification

in California.

OOIDA’s challenge to other AB 5 provisions provides a

further example of differential treatment that undermines

the law’s claimed purpose. AB 5 as applied to trucking

treats interstate truckers differently than their intrastate

12

counterparts: the law features an exemption that can only

ever be invoked by local, intrastate truckers, contradicting

AB 5’s claimed purpose of remedying misclassification

of California workers. Interstate truckers, who are more

likely to be based out of state and for whom the State has

little or no interest in applying its employee protections,

cannot satisfy the exemption. This disparate treatment

exists due to the unique regulatory setting of the trucking

industry.

A B 5 genera l ly appl ies the demand i ng A BC

classification test to workers in California. Cal. Lab. Code

§ 2775(b)(1). As applied in the interstate trucking industry,

the ABC test prevents motor carriers from hiring owneroperators (many of OOIDA’s members) as independent

contractor drivers, because they generally work in “the

usual course of the hiring entity’s business.” Id. § 2775(b)

(1)(B). Relevant to OOIDA’s challenge, AB 5’s business-tobusiness exemption classifies workers under the previous,

more flexible classification standard. Id. § 2776(a).

But when this exemption is applied to trucking, it can

only ever exempt local intrastate workers and permit

their classification under the more flexible standard. The

federal Truth-in-Leasing rules—which only apply to

drivers and carriers operating in interstate commerce,

49 U.S.C. § 13501; 49 U.S.C. § 14102—dictate a carrierdriver relationship that requires a level of control

that precludes satisfaction of the business-to-business

exemption. Those federal rules, however, never apply

to intrastate operations. AB 5’s claimed rationale is to

combat misclassification of California workers through

application of the ABC test. But the State has never

articulated a rational basis to grant California-based

13

intrastate truckers an exemption to AB 5 but not grant

interstate truckers—who are more likely to be based out

of state and to whom California has little to no interest

in applying its employment laws—the same exemption.

Such differential treatment without justification is the

very definition of an equal protection violation.

Thus, like Olson’s allegations in this case, OOIDA

highlights AB 5 carveouts that undermine and contradict

AB 5’s claimed rationales. Olson’s and OOIDA’s challenges

illustrate how the equal protection standard applies on a

case-by-case basis and requires careful examination of

the law and facts to evaluate alleged violations.

II. The minority approach, as demonstrated by the

Ninth Circuit’s en banc decision, erodes the rational

basis standard by empowering courts to ignore the

challenged law’s actual context.

A law fails rational basis review where its practical

effects and context contradict or undermine its claimed

theoretical legal justifications. See supra Part I.A. Laws

that treat like persons differently must make sense, as the

Equal Protection Clause denies states the power

to legislate that different treatment be accorded

to persons placed by a statute into different

classes on the basis of criteria wholly unrelated

to the objective of that statute. A classification

“must be reasonable, not arbitrary, and must

rest upon some ground of difference having a

fair and substantial relation to the object of

the legislation, so that all persons similarly

circumstanced shall be treated alike.”

14

Eisenstadt v. Baird, 405 U.S. 438, 447 (1972) (quoting

Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).

The Ninth Circuit’s en banc decision could impact

rational basis cases beyond the context of Rule 12(b)(6).

Olson II, like the other cases following the minority

approach, has the potential to deny equal protection

claimants the opportunity to prove that, in fact, the

challenged disparate treatment contradicts any claimed

theoretical (or actual) justification and therefore fails

rational basis review. The minority approach abandons

the limited review of the sufficiency of the allegations of

a complaint.

This Court should grant review to preserve the true

12(b)(6) standard and ensure that rational basis claimants

who have sufficiently plead an equal protection violation

have their day in court.

A.

The Ninth Circuit’s en banc decision allows

cou r ts to ig nore plausible allegations

before giving claimants the opportunity to

demonstrate that a law in fact contradicts the

extra-complaint justifications.

The Ninth Circuit has effectively replaced the

motion to dismiss standard and its important plaintiff

protections (accepting plausible factual allegations as true

and resolving reasonable inferences in plaintiff’s favor to

decide whether the complaint states a claim) with a narrow

consideration of the defendant’s proffered facts supporting

a theoretical rational basis. Thus, in effect, the Ninth

Circuit and others using this approach have transformed

decisions on Rule 12(b)(6) motions into decisions on the

15

merits wherein defendants have presented potential

factual defenses but plaintiffs have had no opportunity to

present factual rebuttals. In allowing this analysis before

plaintiffs have an opportunity to prove their case and

rebut any proffered rational basis, the Ninth Circuit has

also rewritten the rational basis standard itself, even as

applied in later stages of litigation.

Courts in the circuits following the minority approach

are now invited, at any stage of litigation, to consider

only the government’s proffer of a rational basis divorced

from the challenged law’s actual context and effect. This

approach denies claimants the opportunity to offer facts

and arguments that may show the claimed justification to

be legally or factually contradictory, illogical, or otherwise

irrational. See, e.g., Andrews v. City of Mentor, 11 F.4th

462, 475 (6th Cir. 2021) (rejecting potential rational basis

at pleadings stage where such basis relied on facts outside

the complaint); see also Children’s Seashore House v.

Waldman, 197 F.3d 654, 662 (3d Cir. 1999) (reversing

Rule 12(b)(6) dismissal because potential rational bases

“introduce[d] matters into the case that go far beyond

the complaint and even the pleadings as a whole and

introduce factual questions”); cf. Victor Marrero, Mission

to Dismiss: A Dismissal of Rule 12(b)(6) & the Retirement

of Twombly/Iqbal, 40 Cardozo L. Rev. 1, 22-28, 36 (2018)

(statistically demonstrating abuse of Rule 12(b)(6)

motions and positing that “defenses contending that the

complaint fails to state sufficient grounds for relief should

be adjudicated on the basis of a full evidentiary record at

the summary judgment stage or at trial.”).

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B. This Court should grant the Petition and

affirm that economic legal distinctions that

contradict their claimed justifications do not

survive rational basis review.

Without this Court’s review and reversal of the Ninth

Circuit’s en banc decision, courts across the country will

apply inconsistent standards when considering motions

to dismiss claims subject to rational basis review. Some

plaintiffs will face straightforward applications of this

Court’s Rule 12(b)(6) standards, enjoying the benefit of

their allegations being accepted as true and facts not

contemplated by their allegations being ignored. Others,

distinguished only by their geography and now including

those in the Ninth Circuit, will confront a much different

test: courts in these jurisdictions will be free to consider

not only hypothetical legal justifications not mentioned

in the complaint, but hypothetical legal justifications

premised on facts wholly outside and even contradicted by

the complaint. This Court must accept review to reconcile

this conflict and confirm that the approach followed by a

majority of the Circuit Courts correctly applies the Rule

12(b)(6) standard to claims subject to rational basis review.

Furthermore, the Ninth Circuit’s en banc decision

threatens equal protection claims generally, eroding

the already-deferential rational basis standard to one

that could be used to dispose of even well-pleaded claims

without consideration of claimants’ ability to adduce

evidence and prove a law’s irrationality. Again, only this

Court’s review can ensure that rational basis review does

not transform into a rubber stamp for every governmental

attempt to differentiate between persons.

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CONCLUSION

Rule 12(b)(6) does not impose additional pleading

requirements on equal protection claims. Courts must

accept plausible allegations as true and resolve inferences

in equal protection claimants’ favor. Although rebutting

a rational basis equal protection claim may be a modest

burden on the State, rational basis review does not present

an exception to long-standing Rule 12(b)(6) standards,

nor should it be allowed to deny plaintiffs the right to

proffer evidence and legal arguments demonstrating a

law’s irrationality later in the litigation.

This Court should grant the Petition and reverse the

Ninth Circuit’s en banc decision, affirming that complaints

alleging violations of the Equal Protection Clause warrant

the same deference and fair evaluation under Rule 12(b)(6)

as that enjoyed by any other well-pleaded claim.

Respectfully submitted,

Paul D. Cullen, Jr.

Counsel of Record

Charles R. Stinson

The Cullen Law Firm, PLLC

1101 Thirtieth Street NW,

Suite 500

Washington, DC 20007

(202) 944-8600

paul@cullenlaw.com

Counsel for Owner-Operator

Independent Drivers

Association, Inc.

October 10, 2024