Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 [79 S.Ct. 437, 3 L.Ed.2d 480] (1959), and their progeny. Id. at 458, 105 S.Ct. at 3264 (Marshall, J., concurring in the judgment in part and dissenting in part). The use of this heightened form of the rational-basis standard, which falls somewhere between traditional rational basis and intermediate scrutiny, and which we label “heightened rational basis,” has been identified as implicit in several other Supreme Court decisions. See Kushner, supra, at 457-59 (discussing Hooper v. Bernalillo County Assessor, 472 U.S. 612, 618-23, 105 S.Ct. 2862, 2866-69, 86 L.Ed.2d 487 (1985); Williams v. Vermont, 472 U.S. 14, 27, 105 S.Ct. 2465, 86 L.Ed.2d 11 (1985); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 883, 105 S.Ct. 1676, .D.Va.1988) (<HOLDING>) (citing cases), rev’d, 886 F.2d 686 (4th
holding that the supreme court has final appellate review of agency decisions holding that cage has not been made retroactive by the supreme court recognizing that several circuits  have recently announced alleyne does announce a new rule of constitutional law not made retroactive by the supreme court emphasis added recognizing that the supreme court recently has demonstrated that the rationality standard has teeth recognizing that the supreme court has indicated that affirmative misconduct is a prerequisite to a finding of estoppel against the united states