The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0052p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
NATHAN ROBERTS; FREEDOM TRUCK DISPATCH, LLC,
│
on behalf of themselves and all others similarly
│
situated,
│
Plaintiffs-Appellants, > No. 24-3454
│
│
v. │
│
PROGRESSIVE PREFERRED INSURANCE COMPANY; │
PROGRESSIVE CASUALTY INSURANCE COMPANY; │
CIRCULAR BOARD INC., originally named as Circular │
Board, LLC, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:23-cv-01597—Patricia A. Gaughan, District Judge.
Argued: July 24, 2025
Decided and Filed: February 24, 2026
Before: BOGGS, McKEAGUE, and MATHIS, Circuit Judges.
_________________
COUNSEL
ARGUED: Benjamin M. Flowers, ASHBROOK BYRNE KRESGE FLOWERS LLC,
Cincinnati, Ohio, for Appellants. Stephanie Schuster, MORGAN, LEWIS & BOCKIUS LLP,
Washington, D.C., for the Progressive Appellees. Neal Kumar Katyal, MILBANK LLP,
Washington, D.C., for Appellee Circular Board Inc. ON BRIEF: Benjamin M. Flowers, Joseph
P. Ashbrook, Julie E. Byrne, ASHBROOK BYRNE KRESGE FLOWERS LLC, Cincinnati,
Ohio, Jonathan F. Mitchell, MITCHELL LAW PLLC, Austin, Texas, Gene P. Hamilton,
Nicholas R. Barry, AMERICA FIRST LEGAL FOUNDATION, Washington, D.C., for
Appellants. Stephanie Schuster, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for
the Progressive Appellees. Neal Kumar Katyal, David M. Foster, Reedy C. Swanson, HOGAN
LOVELLS US LLP, Washington, D.C., for Appellee Circular Board Inc. William A. Jacobson,
EQUAL PROTECTION PROJECT OF THE LEGAL INSURRECTION FOUNDATION,
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 2
Barrington, Rhode Island, Keith Harrison, CROWELL & MORING LLP, Washington, D.C., for
Amici Curiae.
MATHIS, J., delivered the opinion of the court in which McKEAGUE, J., concurred.
BOGGS, J. (pp. 13–26), delivered a separate dissenting opinion.
_________________
OPINION
_________________
MATHIS, Circuit Judge. Progressive Preferred Insurance Company and Progressive
Casualty Insurance Company (collectively, “Progressive”) partnered with Circular Board Inc. to
administer a grant program. Through that program, they offered $25,000 grants to ten small
businesses to help them buy a commercial vehicle. Like most grants, the program had a few
eligibility requirements. One was that the small business had to be black owned and operated.
Nathan Roberts, who is white, learned about the program and started filling out an online
application. But he never applied. He closed the application without submitting it after learning
that only black-owned businesses could receive the grants. A few months later, Roberts and his
company, Freedom Truck Dispatch LLC (collectively, “Roberts”), filed a putative class-action
complaint against Progressive and Circular Board for racially discriminatory grantmaking under
42 U.S.C. § 1981. He sought damages and injunctive relief.
The district court dismissed the complaint for lack of subject-matter jurisdiction. Roberts
now appeals the dismissal of his damages claims only. Because Roberts has failed to show that
he has standing to sue Progressive and Circular Board, we affirm.
I.
Nathan Roberts owns and operates a commercial trucking business, Freedom Truck
Dispatch LLC. In late 2022, Roberts bought a commercial insurance policy from Progressive
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 3
Preferred Insurance Company.1 Then in 2023, Progressive partnered with Circular Board to
administer Progressive’s Driving Small Business Forward Fund grant program.
Through the grant program, Progressive offered ten $25,000 grants to black-owned small
businesses to help with the purchase of a commercial vehicle. Progressive identified several
eligibility requirements. Those requirements included: (1) being a black-owned business;
(2) having ten or fewer employees and grossing less than $5 million annually; (3) showing a
need for a commercial vehicle for the business; and (4) not being in the rideshare or food-
delivery business. To apply, interested businesses completed an online application.
In May 2023, Progressive emailed Roberts an advertisement for the grant program.
Roberts opened the grant application and began completing it. Then he realized that only black-
owned businesses were eligible for the grants. Because he is white, Roberts closed the
application without submitting it.
Roberts asserted that he was “able and ready to apply” for the grant and that his company
“satisfied all of the purported eligibility requirements except for the requirement that the
applicant be a black-owned business.” R. 32, PageID 267 (quotation omitted). The complaint
also stated that “[o]n information and belief,” Defendants did not enforce any of the eligibility
requirements besides “the black-owned business criterion.” Id. at 266.
Two months after the application deadline for the grant, Roberts sued Progressive and
Circular Board, under 42 U.S.C. § 1981, individually and on behalf of a putative class of others
who were able and ready to apply for the grant program and “have been or would be subjected to
racial discrimination.” Id. at 268. Roberts asserted that Progressive and Circular Board injured
him by refusing to enter into “two, sequential contractual agreements” with him because of his
race: (1) “the contract to compete for the grant money”—the application-stage contract, and
(2) “the subsequent contract connected to receipt of the grant money”—the grant-stage contract.
Id. at 262, 267, 270. Roberts sought declaratory and injunctive relief, as well as nominal,
compensatory, and punitive damages.
1
Roberts sued both Progressive Preferred Insurance Company and Progressive Casualty Insurance
Company. Because most of Roberts’s allegations fail to distinguish between the two, we treat them the same for
purposes of this appeal.
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 4
The complaint describes the application-stage and grant-stage contracts. Starting with the
application-stage contract, the complaint alleges that “[i]n exchange for being allowed to
compete for the grant, applicants agreed to certain terms and conditions that,” to their detriment,
“provide[d] benefits to” Progressive and Circular Board. Id. at 266. For example, applicants
gave Progressive and Circular Board access to their information and data “for cross-selling and
other marketing purposes.” Id. As for the grant-stage contract, the complaint alleges that after
Progressive and Circular Board reviewed the applications, they would enter into contracts with
the grant winners. This grant-stage contract required, “[i]n addition to other various benefits and
detriments, [that] grant recipients . . . use the money toward the purchase of a commercial
vehicle.” Id.
Progressive and Circular Board moved to dismiss Roberts’s complaint in part for lack of
subject-matter jurisdiction. The district court concluded that Roberts lacked standing and
dismissed the case. The court then entered judgment “in favor of all defendants.”
On appeal, Roberts challenges only the dismissal of his damages claims. He also argues
that the district court erred by entering judgment for Progressive and Circular Board after
concluding that it lacked subject-matter jurisdiction.
II.
The district court dismissed Roberts’s complaint for lack of subject-matter jurisdiction.
We review that decision de novo. Mackinac Ctr. for Pub. Pol’y v. Cardona, 102 F.4th 343, 350
(6th Cir. 2024).
Parties can contest subject-matter jurisdiction through either a facial or factual attack.
Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012). A facial attack challenges
“the sufficiency of the pleading itself.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.
1994). Put another way, “[a] party raising a facial challenge argues that a complaint does not
adequately plead standing even accepting its facts as true.” Ass’n of Am. Physicians & Surgeons
v. FDA, 13 F.4th 531, 543 (6th Cir. 2021).
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 5
“A factual attack, on the other hand,” challenges not “the sufficiency of the pleading’s
allegations, but . . . the factual existence of subject matter jurisdiction.” Ritchie, 15 F.3d at 598.
Under a factual attack, “the court does not presume that the plaintiff’s factual allegations are
true.” Glob. Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th
Cir. 2015). Instead, the court “weigh[s] evidence to confirm the existence of the factual
predicates for subject-matter jurisdiction.” Carrier Corp., 673 F.3d at 440.
Progressive and Circular Board did not challenge the factual predicate of Roberts’s
damages claim. Instead, they argued that the allegations themselves fell short. So the district
court treated their motions to dismiss as facial challenges. We do the same. See Cartwright v.
Garner, 751 F.3d 752, 760 (6th Cir. 2014).
III.
Federal courts have the “judicial Power” to decide “Cases” and “Controversies.” U.S.
Const. art. III, § 2. “No principle is more fundamental to the judiciary’s proper role in our
system of government than” Article III’s case-or-controversy requirement. Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 408 (2013) (citation modified). This requirement demands that cases
“embody a genuine, live dispute between adverse parties, thereby preventing the federal courts
from issuing advisory opinions.” Carney v. Adams, 592 U.S. 53, 58 (2020).
To that end, plaintiffs must establish that they have standing to sue before courts can
consider the merits of their claims. Raines v. Byrd, 521 U.S. 811, 820 (1997). Standing requires
that the plaintiff “have a personal stake in the case.” TransUnion LLC v. Ramirez, 594 U.S. 413,
423 (2021) (citation modified). To make this showing, Roberts must establish (1) he suffered an
injury in fact (2) that was caused by, or is fairly traceable to, Progressive and Circular Board, and
(3) that can be redressed by damages from Progressive and Circular Board.2 See Thole v. U.S.
Bank N.A., 590 U.S. 538, 540 (2020). An injury in fact is “an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or
2
Roberts seeks to sue on behalf of himself and a class of similarly situated individuals. “Class
representatives must prove their own case or controversy with the defendants in order to seek relief for any other
member of the class.” Fox v. Saginaw County, 67 F.4th 284, 294 (6th Cir. 2023) (citation modified). We therefore
focus on whether Roberts has standing to sue.
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 6
hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citation modified).
Causation requires that the identified injury “be fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some third party not before the court.”
Id. (citation modified). And redressability means that it is “likely,” not “merely speculative,”
that “a favorable decision” will remedy the injury. Id. at 561 (citation modified).
Roberts, as the party invoking federal jurisdiction, bears the burden of establishing
standing. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). He must do so “in the same way as
any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561.
Because the district court dismissed this case at the pleading stage, Roberts needed to
“clearly allege facts demonstrating” standing. Spokeo, 578 U.S. at 338 (citation modified). This
required Roberts’s complaint to state a “plausible claim” that he has standing. Ass’n of Am.
Physicians & Surgeons, 13 F.4th at 544 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
To make this showing, a plaintiff “cannot rely on general or conclusory allegations in support of
its standing.” Glennborough Homeowners Ass’n v. USPS, 21 F.4th 410, 414 (6th Cir. 2021).
A.
We begin with a few preliminary matters. First, Circular Board challenges Roberts’s
two-contract theory. To recap, the complaint alleges that Progressive and Circular Board’s grant
program “comprised two, sequential contractual agreements”—an application-stage contract for
those who applied to participate in the program and a grant-stage contract for grant recipients.
R. 32, PageID 262. Circular Board argues that there is no application-stage contract. But this
argument goes to the merits of Roberts’s § 1981 claim. See Inner City Contracting, LLC v.
Charter Township of Northville, 87 F.4th 743, 755 (6th Cir. 2023). “A merits defect deprives a
court of subject matter jurisdiction only if the claim is utterly frivolous.” Gerber v. Herskovitz,
14 F.4th 500, 505 (6th Cir. 2021) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89
(1998)). Because the complaint’s allegations that the grant program involved two contracts are
not “utterly frivolous,” see id., we accept them as true at this stage in the litigation, Carrier
Corp., 673 F.3d at 440.
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 7
Second, we assume that Roberts has pleaded sufficiently an injury in fact for the
application-stage contract. The injury in question, as alleged in the complaint and argued on
appeal, is that Roberts could not enter into—and obtain the benefits conferred by—the
application-stage contract.
Third, Roberts concedes that the complaint does not allege an injury in fact for the grant-
stage contract. Thus, Roberts must establish standing for the application-stage contract to
proceed in this litigation.
B.
Roberts argues that he suffered an injury in fact because he was unable to enter into the
application-stage contract with Progressive and Circular Board, and he further argues that the
race-based criteria in Progressive and Circular Board’s grant program is to blame. The question
is whether Roberts’s alleged application-stage injury is attributable to Progressive and Circular
Board. It is not.
To establish standing at the pleading stage, a plaintiff’s complaint must show causation.
This requires the plaintiff to allege an “injury fairly traceable to the defendant’s allegedly
unlawful conduct.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quotation
omitted). For a plaintiff to fairly trace his alleged injury to the defendant, “there must be a causal
connection between the injury and the conduct complained of.” Dep’t of Educ. v. Brown, 600
U.S. 551, 561 (2023) (quotation omitted). In other words, the plaintiff must show that the
defendant likely caused his injury. Diamond Alt. Energy, LLC v. EPA, 606 U.S. 100, 111
(2025). The burden of showing causation is “relatively modest” at the pleading stage. Bennett v.
Spear, 520 U.S. 154, 171 (1997).
Roberts asserts that he was injured because he was denied the ability to enter into the
application-stage contract with Progressive and Circular Board. But Progressive and Circular
Board did not cause Roberts’s injuries. Roberts caused them. Recall that Roberts closed the
grant application without submitting it. Had Roberts submitted his application, he would have
formed the application-stage contract with Progressive and Circular Board. And he could have
competed for the second contract. At that point, he may have been subjected to racial
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 8
discrimination related to his pursuit of a second contract (the grant-stage contract), but that is not
the injury at issue here. Because Roberts chose not to take that first step (finishing and
submitting the application), he cannot connect his application-stage injury to Progressive and
Circular Board’s allegedly discriminatory actions.
Roberts’s injuries are self-inflicted. A self-inflicted injury generally fails the causation
prong of the standing analysis. Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 866 (6th Cir.
2020). This occurs “when an injury is so completely due to the plaintiff’s own fault as to break
the causal chain.” Id. (citation modified). “[I]f the plaintiff caused his own injury, he cannot
draw a connection between that injury and the defendant’s challenged conduct,” because the
injury “is not traceable to anyone but the plaintiff.” Id. To put it bluntly, “a person cannot
manufacture a case or controversy by acting of their own accord and then blaming someone else
for the fallout.” Savel v. MetroHealth Sys., 96 F.4th 932, 940 (6th Cir. 2024). In the complaint,
Roberts admits that he chose not to submit an application for a grant.
Our caselaw proves the point. In Buchholz, a debtor sued his debt collector under the
Fair Debt Collection Practices Act claiming that the debt collector’s collection efforts caused
him anxiety. 946 F.3d at 859. We concluded that the debtor lacked standing because his alleged
injuries were caused by his failure to pay his bills, not by the debt collector. Id. at 867; see also
Garland v. Orlans, PC, 999 F.3d 432, 440–41 (6th Cir. 2021) (same). In Savel, numerous
current and former employees of a hospital brought religious-discrimination claims related to the
hospital’s COVID-19 vaccine mandate for its employees. 96 F.4th at 937. We held that
employees who submitted religious-exemption requests but resigned before the hospital denied
the requests lacked standing to sue the hospital. Id. at 941.
Roberts’s response: Buchholz and Garland’s rationale is no longer good law after FEC v.
Ted Cruz for Senate, 596 U.S. 289 (2022). But that argument does nothing to thwart Savel’s
similar rationale. We decided Savel after Cruz. Furthermore, Cruz is distinguishable.
In Cruz, Senator Ted Cruz and his campaign intentionally violated laws restricting
political candidates’ ability to use post-election contributions to repay personal loans to their
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 9
campaigns. 596 U.S. at 293, 295–96. The government argued that because Cruz caused his own
injuries by knowingly violating the law, he lacked standing. Id. at 296.
The Supreme Court disagreed. It held that Cruz and his campaign satisfied Article III’s
causation requirements. The crucial point was that the government still threatened to enforce the
challenged laws. Id. at 297, 302. The Court thus concluded that “an injury resulting from the
application or threatened application of an unlawful enactment remains fairly traceable to such
application, even if the injury could be described in some sense as willingly incurred.” Id. at
297. Put another way, that Cruz and his campaign voluntarily “subject[ed] themselves to those
provisions does not change the fact that they are subject to them.” Id.
Roberts chose not to enter the application-stage contract. And because he never entered
the first “sequential contractual agreement[],” R. 32, PageID 262, he never subjected himself to
the allegedly discriminatory grant program. Roberts does not allege that Progressive and
Circular Board ever applied, or threatened to apply, the grant’s race-based eligibility requirement
to him. See Cruz, 596 U.S. at 297. Plaintiffs “cannot manufacture standing merely by inflicting
harm on themselves based on their fears of hypothetical future harm that is not certainly
impending.” Clapper, 568 U.S. at 416. Thus, Roberts’s decision not to execute the application-
stage contract was “not traceable to anyone but” himself. Buchholz, 946 F.3d at 866; see also
Lujan, 504 U.S. at 560.
Roberts also argues that the complaint’s allegation that he was denied the ability to enter
into the application-stage contract because of his race gets him over the hump. We disagree.
That is nothing but a conclusory allegation that does not help Roberts meet the plausibility
standard. See Iqbal, 556 U.S. at 678. The complaint contains no allegations suggesting that the
grant application included a racial-disclosure component. And Roberts did not allege that the
application required him to list his race or the race of his company’s owners, or that he had to
certify his compliance with the race-based eligibility criteria before clicking “submit.” In fact,
the complaint does not even allege that Progressive and Circular Board discouraged white
business owners from applying. On the contrary, Progressive emailed Roberts inviting him to
“[a]pply to this fund today.” R. 32 PageID 264.
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 10
To boost his conclusory allegations, Roberts points to the terms and conditions for the
application-stage contract. But the terms and conditions do him no favors. They only reinforce
the complaint’s deficiencies, illustrating that there was no race-based barrier preventing Roberts
from entering into the application-stage contract.
According to the terms and conditions, Roberts would have entered into the application-
stage contract as soon as he submitted his completed application. Once Roberts “complete[d]
and submit[ted] [his] application,” he would have submitted an “Entry.” R. 35-1, PageID 394.
And “[b]y submitting an Entry,” Roberts would “grant[] [Progressive and Circular Board] a
royalty-free . . . license to use” his data. Id. at 395. At the same time, Roberts would have
obtained the contractual right to have his Entry reviewed by Progressive and Circular Board.3
Based on that review, Progressive and Circular Board would decide whether the applicant would
receive the ultimate grant. If Progressive and Circular Board applied race-based criteria to
Roberts’s application, it would only hinder his ability to enter into the grant-stage contract, not
the initial application-stage contract. The harm Roberts suffers at the application stage is of his
own volition.
The dissent invokes the Supreme Court’s decisions in Runyon v. McCrary, 427 U.S. 160
(1976), and International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), to
argue that Roberts has standing. But neither case mentions Article III standing, much less
conducts a standing analysis. “[M]erits decisions that do not discuss jurisdiction are not of
precedential value on jurisdictional issues.” California v. Texas, 593 U.S. 659, 704 n.8 (2021)
(Alito, J., dissenting); see also Steel Co., 523 U.S. at 89–92. Because Runyon and International
Brotherhood of Teamsters address only the merits of discrimination claims, they have no bearing
on whether Roberts has established standing.
Regardless, these cases do not help the dissent to the extent it suggests. In Runyon and
International Brotherhood of Teamsters, the plaintiffs’ injuries were not the inability to submit
3
The dissent argues that Progressive and Circular Board could have applied the racial-eligibility criteria at
any time. But Roberts does not make this allegation, and the terms and conditions indicate otherwise. Progressive
and Circular Board would not review an application until after it was submitted and the application-stage contract
was already formed.
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 11
an application and enter an applicant pool—the respective injuries were the inability to enroll in
certain schools, Runyon, 427 U.S. at 172–73, and secure certain jobs, Int’l Bhd. of Teamsters,
431 U.S. at 365–66. The dissent assumes that the injury at issue here is the denial of the ultimate
grant. That is not the case. According to the complaint and Roberts’s own legal theory—the
theory by which we must evaluate his standing, Merck v. Walmart, Inc., 114 F.4th 762, 772 (6th
Cir. 2024); see also Steel Co., 523 U.S. at 89—the act of submitting an application was not
merely a ministerial step that allowed Roberts to progress toward obtaining the grant money, it
was the only prerequisite to obtaining the separate application-stage contract he sought, and the
inability to enter this contract is his alleged injury. Submitting the application was no futile
gesture, nor was it some “sham, nominally race-neutral stage[],” Dissent at 26; it was precisely
how Roberts could have entered into the application-stage contract that he wanted.
Because the complaint fails to clearly allege facts showing that Progressive and Circular
Board caused Roberts’s injuries, the district court lacked subject-matter jurisdiction.4
IV.
Roberts also argues that the district court erred by entering judgment in favor of
Progressive and Circular Board. So he asks us to vacate the judgment and order the district court
to dismiss the complaint without prejudice for lack of subject-matter jurisdiction.
We find no error in the court’s judgment. For starters, the district court dismissed the
complaint for lack of subject-matter jurisdiction. As for the judgment’s preclusive effect, when a
court dismisses for lack of subject-matter jurisdiction, it must generally do so without prejudice.
Stanley v. W. Mich. Univ., 105 F.4th 856, 866 (6th Cir. 2024). Although we typically presume
that silent judgments are with prejudice, Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 518
(6th Cir. 2006), this presumption does not apply to dismissals for lack of jurisdiction, Fed. R.
Civ. P. 41(b).
4
Because Roberts failed to establish causation, we need not consider whether damages would redress his
alleged injuries.
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 12
The judgment in this case does not specify whether it is with or without prejudice. We
now clarify that it is without prejudice. See Richmond v. Mosley, No. 23-1643, 2024 WL
2862505, at *2 (6th Cir. June 6, 2024).
V.
For these reasons, we AFFIRM the district court’s judgment.
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 13
_________________
DISSENT
_________________
BOGGS, Circuit Judge, dissenting. This is an extraordinary case in which the court
dismisses straightforward allegations of racial discrimination against white and Asian applicants
because the plaintiff refused to “subject[] himself to the alleged[] discrimination[].” Maj. Op. at
9. Compounding the problem, the majority arrives at this result by resurrecting a long-abolished
“restrictive theory of the pleadings” that the Supreme Court has taken pains to “ward off.”
Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014).
As alleged, Defendants Progressive Insurance and Hello Alice operated a racially
discriminatory grant program that excluded otherwise eligible white and Asian applicants solely
because of race. Even under the most race-conscious regimes that the Supreme Court has
tolerated in the modern era—including those addressed in Grutter v. Bollinger, 539 U.S. 306
(2003) and Regents of University of California v. Bakke, 438 U.S. 265 (1978)—this program
would have been unlawful under Titles VI and VII of the Civil Rights Act and 42 U.S.C. § 1981.
The program clearly discriminated against persons on the basis of race, and the defendants here
refused to enter into contracts (the grants) on the basis of race.
After this suit was filed, and after Students for Fair Admissions, Inc. v. President &
Fellows of Harvard College, 600 U.S. 181 (2023), the defendants officially discontinued their
discriminatory grant program, and have indicated no desire or willingness to reinstitute it, thus
mooting the case for future relief. The plaintiff’s damages claim for past discrimination,
however, remains available. Indeed, at the complaint stage, he pleaded facts satisfying every
requirement of Article III standing in this context: his status as a person covered by § 1981; a
racial exclusion in the grant’s terms (reproduced in the complaint); his eligibility for the grant
and readiness to compete for it but for the racial bar; and a cognizable unequal-footing injury
traceable to the defendants’ race-based exclusion. See Fla. Chapter of Associated Gen.
Contractors of Am. v. Jacksonville, 508 U.S. 656, 666 (1993); Runyon v. McCrary, 427 U.S. 160,
163, 165, 172–73 (1976). That injury is redressable through at least nominal damages, which the
complaint seeks. See Uzuegbunam v. Preczewski, 592 U.S. 279, 293 (2021).
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 14
The majority opinion, however, treats the plaintiff, Nathan Roberts, as having been too
clever by half in articulating a two-stage contractual theory to explain the alleged discrimination,
and thus as having pleaded himself out of court. Specifically, the majority takes Roberts’s legal
characterization in his complaint—that he was “denied the ability to enter into” the first
“contract” because of his race—and turns it into a substantive limit on § 1981 itself. See First
Am. Compl. ¶ 32, Roberts v. Progressive, No. 1:23-cv-01597, ECF No. 32 (N.D. Ohio filed Jan.
3, 2024). First, the majority “assume[s] that Roberts has pleaded sufficiently an injury in fact for
the application-stage contract.” Maj. Op. at 7. Then, the court narrowly defines that injury as
“deni[al] of the ability to enter into” the contract because, in its view, that is how Roberts himself
characterizes his legal theory of injury. See ibid. (“Roberts asserts that he was injured because
he was denied the ability to enter into the application-stage contract . . . .”). The court thus
concludes that “Roberts caused [his own injury by] . . . clos[ing] the grant application without
submitting it.” Ibid.
This reasoning does not withstand the slightest scrutiny. First, whatever the plaintiff’s
precise legal phrasing, the injury in § 1981 discrimination cases is not, as the majority suggests,
mere denial of the submission of a form, but unequal footing in any aspect of the sought-after
contractual relationship. Rivers v. Roadway Exp., Inc., 511 U.S. 298, 302 (1994). Given the
facts in Roberts’s complaint, the majority cannot (and does not) seriously contend that Roberts
was on equal footing in his opportunity to compete for a race-restricted grant. Because, as
alleged, that opportunity was the very purpose of the first contract and an essential part of its
consideration, any notion that the first contract is race neutral in any meaningful sense is simply
untenable. See Maj. Op. at 7–8 (assuming that Roberts “may have been subjected to racial
discrimination related to his pursuit of a second contract . . . .”); First Am. Compl. ¶ 32
(characterizing the first contract as an opportunity to compete for the second contract).
Therefore, even accepting the two-contract framing, a § 1981 violation occurred in connection
with the first contract.
Second, because the relevant injury is unequal contracting opportunity based on race, the
majority’s description of that injury as “self-inflicted” is an oxymoron. See Maj. Op. at 8.
Likewise, because the majority necessarily concedes the existence of a racial barrier to
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 15
contracting when it assumes an Article III injury, id. at 7, it cannot, under black-letter standing
doctrine, penalize Roberts for not completing the futile gesture of applying to a competition that
members of his race could not win. See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U. S.
324, 365–66 (1977) (explaining that a person who is deterred from applying due to a
discriminatory policy “is as much a victim of discrimination as is he who goes through the
motions of submitting an application.”). The self-injury framing therefore makes sense only if
the court reduces the competition contract to nothing more than the right to submit a form,
nominally open to all applicants alike. That move necessarily recharacterizes the injury as a self-
inflicted failure to apply—something that § 1981 has never treated as the relevant injury and that
is impossible to square with the majority’s own assumption that Roberts suffered a race-based
denial-of-entry injury. In other words, the court permits its narrow reading of the plaintiff’s legal
characterizations in his complaint, rather than his pleaded facts, to dictate the limits of § 1981
and Article III.
That the majority has defined the injury out of existence is particularly evident when it
asserts that Roberts “may have been subjected to racial discrimination related to his pursuit of
[the grant], but that is not the injury at issue here.” Maj. Op. at 7–8. But of course it is.
Remarkably, that statement assumes the existence of unequal footing in the first (competition)
contract and treats it as legally irrelevant, even though unequal footing is the injury in
competition-based discrimination cases. See, e.g., Associated General Contractors, 508 U.S. at
666.1 Allowing a complaint’s legal model to defeat Article III standing where the pleaded facts
otherwise clearly establish standing contravenes our obligation to conduct an independent
inquiry into standing, see Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006), and the settled
principle that courts may not decline jurisdiction where it exists, see Sprint Communications, Inc.
v. Jacobs, 571 U.S. 69, 77 (2013).
1
This concession is unsurprising considering that the grant competition’s Terms & Conditions, which Hello
Alice attached to its motion to dismiss, gives the defendants unfettered discretion to racially disqualify white
applicants. See Terms & Conditions, R. 35-1, PID 394–96 (reserving “sole discretion” to verify eligibility with
documentation or an interview, to request additional information from any entrant, and to disqualify any “ineligible”
applicant).
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 16
Under the majority’s approach, moreover, Roberts’s careful pleading becomes a liability:
by articulating a legal theory with precision, a plaintiff risks having that explanation used as a
basis for dismissal. That result is contrary to the Supreme Court’s repeated instruction that
pleading sufficiency turns on the facts alleged, not on the legal theories used to describe them.
Johnson, 574 U.S. at 12; Skinner v. Switzer, 562 U.S. 521, 530 (2011).
I therefore dissent, both on doctrinal grounds and because the majority’s strained
reasoning would distort pleading standards and the jurisdictional inquiry in cases far less unusual
than this one.
I
To begin with, examine what kind of relationship existed, or potentially existed, between
the plaintiff and the defendants. As set forth above by the majority and perhaps recharacterized a
bit, the defendants announced to the world a grant program limited to certain types of trucking
enterprises, with the further limitation that grants would be awarded only to companies owned by
certain minority groups, which would clearly exclude the plaintiff’s company. The program
stated that, if one applied for such a grant, the applicant’s information would be kept on file; the
defendants would be able to solicit the applicant with offers for some of their services and
products; and the applicant would be considered for a grant if otherwise eligible. The plaintiff
alleges that he met all conditions of eligibility (size, not being a certain type of company, etc.),
except that the company was owned by a white man. The plaintiff has chosen to characterize
this arrangement as involving two contracts: first, an offer to the world of a contract to provide
the applicant with certain advertisements (some might consider this a detriment, not a benefit!)
and an opportunity to compete for the grant in exchange for his providing Progressive with
certain information; and second, a later contract that governed the receipt of the grant itself.
It is not perfectly clear why the plaintiff drew this distinction. His decision, however,
appears to stem from a misguided reading of our holding in Aiken v. Hackett, 281 F.3d 516 (6th
Cir. 2002). Some (including the district court and defendant Progressive) have incorrectly taken
Aiken to mean that a plaintiff seeking damages due to his racial exclusion from some benefit—
such as a grant, contract, or admission slot—must plead that he would have received the benefit.
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 17
Thus, as a litigation backstop, Roberts alleged injury at both stages of the process—the
competition for the grant and the grant award itself—so that if Aiken foreclosed relief for the
latter, his claim based on unequal footing in the competition would remain. See Oral Arg. Tr. at
12:19 (plaintiff’s counsel explaining this approach); First Am. Compl. ¶ 32.
However, Aiken never imposed such a pleading hurdle. In that case, white applicants for
fire department promotions sought retrospective relief after Black applicants received race-based
increases to their composite scores, elevating them on the ranking list used to determine
promotions and displacing white applicants who otherwise would have ranked above the cutoff.
Id. at 518. However, at summary judgement, it was “beyond debate” that the particular plaintiffs
had scored so low that they could not have been selected for the positions they sought even under
a race-neutral system. Id. at 519. Thus, Aiken does not require applicants to affirmatively prove,
much less plead, that they would have received the benefit absent discrimination; rather, it
confirms that a defendant may prevail at summary judgment by definitively showing either that
the plaintiff was denied the benefit for some race-neutral reason, or that the plaintiff, like those in
Aiken, failed to satisfy race-neutral eligibility requirements and therefore never entered the zone
of consideration.
It certainly does not follow that a plaintiff seeking retrospective relief must, at the earlier
pleading stage, apart from alleging baseline eligibility, also allege that he would have obtained
the benefit. First, in discrimination cases, the burden rests on the defendant to come forward
with proof that the same decision would have been made anyway, Texas v. Lesage, 528 U.S. 18,
20–21 (1999), and plaintiffs are not required to anticipate and negate each defense in their
complaints, Memphis, Tenn. Area Local, Am. Postal Workers Union, AFL-CIO v. City of
Memphis, 361 F.3d 898, 902 (6th Cir. 2004). Second, because that same-decision inquiry may
turn on facts about internal decision-making processes obtainable only through discovery, it is
often resolved, if at all, on a developed record at summary judgment. See Lesage, 528 U.S. at
19–20. Third, if plaintiffs had to plead (and effectively prove at the outset) that they would have
won the competition, a large swathe of past discriminatory decisions would be functionally
immunized from judicial review. Not surprisingly, then, the Supreme Court has characterized
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 18
the same-decision principle as a liability defense, not an Article III pleading requirement.
Lesage, 528 U.S. at 20–21.
Moreover, where, as here, the plaintiff seeks nominal damages for the denial of equal
footing itself, on-point Supreme Court precedent already establishes the correct pleading
standard. The Court has made clear that a violation of one’s right to racially equal footing in a
competitive process constitutes a concrete Article III injury, and that nominal damages suffice to
redress it even without proof of economic loss. See Uzuegbunam, 592 U.S. at 293; Associated
General Contractors, 508 U.S. at 666. Thus, even if Progressive could later prove that Roberts,
though eligible, would not have received the ultimate award on race-neutral criteria, that
showing would only defeat compensatory damages for the lost prize. It would not affect the
plaintiff’s ability to plead and pursue at least nominal damages for having been subjected to
unequal terms of competition.
II
In any event, Roberts did choose to advance a two-contract theory. However, on any
reasonable interpretation—let alone one in the light most favorable to Roberts, which he is
entitled to—Roberts has standing here, as would plaintiffs in ordinary discrimination cases, or
seminal ones.
In my colloquy with counsel at oral argument, I noted that in Runyon v. McCrary, 427
U.S. 160 (1976), the seminal § 1981 case, there was no sign that the minority plaintiffs who
wished to have their children accepted to a whites-only school and were refused admission had
been required to show that they would have been accepted, or even that they had gone through
some type of specific application process. In fact, as shown by the record and the opinions in
those cases, the mother of applicant McCrary had merely inquired about application to the
school, had learned that her child met all the race-neutral criteria, and had been told that only
white applicants could be accepted—facts that that the Runyon court deemed “ample” to prevail
on a § 1981 discrimination claim at trial and that are materially identical to those pleaded by
the plaintiff in our case. Compare Runyon, 427 U.S. at 165, 172–73 and Complaint ¶ 6(a),
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 19
Runyon v. McCrary, 427 U.S. 160, App. at 94 (1976) with First Am. Compl. ¶¶ 27–31, Roberts
v. Progressive, No. 1:23-cv-01597, ECF No. 32 (N.D. Ohio filed Jan. 3, 2024).
The very learned counsel for plaintiffs shot back with a rather interesting response that
had not occurred to me: he stated that Runyon had been in a “pre-Iqbal and Twombly” posture,
and, implicitly, that Mrs. McCrary would have been thrown out of court today for failure to raise
her injuries above the level of speculative. See Oral Arg. Tr. at 18:35–18:45. While I found this
immediate response intriguing, I found it very unlikely that this seminal civil-rights case would
have collapsed at its inception had it been brought today for the first time. That is not because
pleading standards were once more forgiving, but because the complaint there alleged a concrete
fact of racial exclusion: the parent was told her otherwise eligible child “was unacceptable for
enrollment because of his race,” Complaint ¶ 6(a), Runyon v. McCrary, 427 U.S. 160, App. at 94
(1976), just as it is perfectly clear here that an otherwise eligible white applicant would not have
been awarded a grant because, by the grant’s very terms, his race blocked him from equal
consideration, First Am. Compl. ¶ 18. A factual allegation of categorical racial ineligibility or
unequal footing is not speculative under any modern pleading regime; it states a completed
denial of equal consideration.
So we turn to the initial, or “application-contract” stage, where the defendants now say
that Roberts’s application would have been welcome, and only then would have been tossed
aside for a grant because of his race. This notion strains credulity based on both the racially
exclusionary solicitation material sent by the defendants and the statements made in the
complaint, especially when taken, as they must be, in the light most favorable to Roberts.
Moreover, Roberts’s two-contract legal model has no bearing on whether the underlying facts are
sufficient to state a claim.
III
The majority holds to the contrary, maintaining that Nathan Roberts, a white business-
owner, injured himself by failing to click “submit” on a grant application whose eligibility
criteria categorically excluded him by race. There are many problems with this argument, but
we can start with Supreme Court precedent. It is well-established that a facially discriminatory
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 20
policy inflicts injury when, as here, it deters a ready, able, and willing applicant from applying
for a benefit. See, e.g., Int’l Bhd. of Teamsters, 431 U.S. at 365–67 (holding, in the context of a
Title VII suit for racially discriminatory hiring, that otherwise eligible and willing applicants
challenging discriminatory hiring practices need not apply for positions where a facially or de
facto discriminatory policy would render application futile, because deterrence itself constitutes
actionable discriminatory injury). The Court has also held repeatedly that once a prospective
applicant incurs an unequal-footing injury, there is no need for him to apply or make other futile
gestures to create standing or to prove the injury already sustained. See Runyon, 427 U.S. at
172–73.2
The majority counters that cases such as Teamsters and Runyon, which only discuss the
merits of discrimination claims, “have no bearing” on standing, Maj. Op. at 10. But see Carney
v. Adams, 592 U.S. 53, 66 (2020) (citing Int’l Bhd. of Teamsters, 431 U.S. at 365–66) (applying
the futile-gesture doctrine set forth in Teamsters to the standing analysis); Int’l Primate Prot.
League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 77 (1991) (“[S]tanding should be seen as a
question of substantive law, answerable by reference to the statutory . . . provision whose
protection is invoked.”) (cleaned up).
Here, we have a clear-cut instance of unequal footing and discriminatory deterrence: no
one would compete for a prize reserved for someone else’s race. The majority’s main defense is
its attempt to redefine that prize as the opportunity to click “submit” and partake in a hollow
ritual of application review that ends in exclusion. In this framing, only one race can win, but all
were equally free to go through the motions of competing. But as I explain below, this distorts
the plaintiff’s pleadings, despite the Supreme Court’s express admonitions against doing so.
Through this distortion, today’s decision recasts a straightforward injury under 42 U.S.C. § 1981
as self-inflicted, in defiance of binding precedent and common sense.
2
See also Int’l Bhd. of Teamsters, 431 U.S. at 365–66; Ne. Fla. Chapter of Associated Gen. Contractors of
Am. v. Jacksonville, 508 U.S. 656, 666 (1993) (recognizing that a contractor need not actually submit a bid to allege
injury; it is enough to show that it is “able and ready to bid” and that a discriminatory policy prevents it from
competing on equal footing); Gratz v. Bollinger, 539 U.S. 244, 260–61 (2003) (rejecting the argument that the
applicant-plaintiff’s injury was “conjectural or hypothetical” because she did not “actually apply for admission” to
the University of Michigan as a transfer student) (internal alteration omitted).
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 21
A
Consider first Runyon v. McCrary, 427 U.S. 160 (1976), the seminal § 1981 case. The
parents of minority schoolchildren alleged that the schools that their children wished to attend
illegally discriminated based on race. Id. at 163. The named plaintiff, Mrs. McCrary, did not fill
out an application or tender tuition to either school at issue; she only telephoned one of the
schools to ask if it was integrated, and “[t]he answer was no.” Ibid. The Supreme Court held
that the race-based refusal itself was a “classic violation” of § 1981, which protects the right to
make contracts, free of racial discrimination. The Court affirmed the district court’s finding of
“ample evidence” of discrimination. Id. at 172–73. As the district court explained, “[i]t is of no
moment that no formal application was filed. It would be ridiculous to require this of the
plaintiffs after they had effectively been told it was useless.” Gonzales v. Fairfax-Brewster Sch.,
Inc., 363 F. Supp. 1200, 1203 (E.D. Va. 1973). That reasoning squarely rejects the very
argument the majority advances here.
In fact, Runyon alone is sufficient to establish Roberts’s standing. In his complaint,
Roberts attached both the email invitation to apply and the grant’s terms and conditions, each
expressly limiting eligibility by race. First Am. Compl. ¶¶ 12, 13, 18. The terms sent to Roberts
announced that a business applicant had to be at least 51% “owned and operated by . . . Black-
identifying” individuals “to be eligible for this opportunity.” Id. at ¶ 18. And he “came to a part
of the application that made clear that the grants were available only to black-owned businesses.”
First Am. Compl. ¶ 27. The majority does not dispute—or assumes arguendo—that Roberts
adequately alleged he met every eligibility criterion for the grant except race,3 and that he
abandoned the application process only because the racial barrier made further participation
futile. Id. at. ¶¶ 27–32. Hence, he alleges concrete and particularized facts that parallel Runyon
exactly, but in modern technology: an invitation to apply for a benefit (an advertisement for a
3
It is worth noting that under the majority’s logic, discussed infra, Roberts would not even be required to
plead that he met the grant criteria. The majority says that Roberts only wanted the first contract, which in its telling
was supposedly a mere formality open to anyone with the ability to press “submit.” Maj. Op. at 10. Any hurdles to
entering such a contract could only exist through the mechanics of the form itself (e.g. a racial checkbox or
certification). Id. at 9. So, the eligibility hurdles for the second contract—the grant—are beside the point. The
majority could not demand proof of eligibility for a process that, according to its account, was open to all.
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 22
private school in Runyon,4 an email for a grant in Roberts), followed by the applicant’s attempt
to pursue that opportunity (a phone inquiry there, partial form completion here), and, finally, an
explicit racial exclusion that deterred the applicant from submitting a futile application (a verbal
statement there, written terms and email correspondence here). That should be the end of this
case.5
B
Instead, to argue that submission of an application would not have been futile, the
majority claims that any racially discriminatory terms exist only in the later, grant-stage contract,
which also happens to be the contract that, according to the majority, Roberts has conceded he
lacks standing to litigate. By contrast, the initial contract—the one that the majority says Roberts
does challenge—is supposedly a bare procedural shell and therefore gives him no rights that this
court is bound to respect. In the majority’s view, all that Roberts bargained for in the initial
contract was the right to enter the competition—to click the button that would place his
submission into the hopper, even if it would then be discarded on racial grounds. Because this
“opportunity” was open to everyone on a nondiscriminatory basis, and because Roberts refused
to avail himself of it, the majority contends that he has only himself to blame.
This argument suffers from several fatal flaws. Even accepting the majority’s premise
that Roberts could have entered the first contract because it was purely ministerial, its ministerial
nature would itself inflict injury under International Brotherhood of Teamsters, 431 U.S. at 365–
67. A contract to participate in a competition one cannot win because of race contains an
obvious forbidden racial deterrent. No rational applicant would enter an agreement that, for
4
Runyon, 427 U.S. at 165.
5
The majority is correct that Runyon was a merits decision that did not separately analyze Article III
standing, and “drive-by jurisdictional rulings . . . have no precedential effect.” Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 91 (1998) (collecting cases). But in Runyon, the facts necessary to win on the merits, if
adequately alleged in a complaint, would also establish standing at the pleading stage. The court framed the merits
issue as “whether [Section] 1981, prohibits private schools from excluding qualified children solely because they are
Negroes.” Runyon, 427 U.S. at 163; see also McCrary v. Runyon, 515 F.2d 1082, 1087 (4th Cir. 1975), aff'd, 427
U.S. 160 (1976) (“1981 prohibits the rejection of a black applicant when his qualifications meet all other
requirements and race is the only basis for his rejection.”). That framing, together with the damages award in the
case, unmistakably implicates all the Article III ingredients: baseline eligibility (“qualified children”), injury,
causation, and redressability.
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 23
members of his race, is nothing more than a sham. Because Teamsters makes clear that such a
forbidden deterrent inflicts discriminatory injury, it, like Runyon, should easily settle this case.
C
At the motion-to-dismiss stage, the court is supposed to credit facts showing a plausible
entitlement to relief—nothing more. Federal pleading rules “do not countenance dismissal of a
complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson,
574 U.S. at 11.6 Theories of standing are no exception. See Robertson v. Allied Sols., LLC, 902
F.3d 690, 695 (7th Cir. 2018) (“Complaints need not delineate every detail of the plaintiff’s legal
theory [of injury]. Because Robertson pleaded facts showing a plausible [Article III] injury, she
receives the benefit of imagination . . . .” ) (cleaned up); In re SuperValu, Inc., 870 F.3d 763, 772
(8th Cir. 2017) (applying Johnson to reach a similar conclusion about standing). Yet the
majority spends much time tangled in Roberts’s (admittedly unconventional) two-contract legal
theory and misses the most obvious and salient point: that the facts are on par with Runyon and
make out a classic § 1981 claim.
When the majority declares that “Roberts must establish standing for the application-
stage contract to proceed in this litigation,” Maj. Op. at 7, it sets up the wrong question. Roberts
need only allege facts that make standing plausible under § 1981—as he clearly does—
regardless of how he theorizes that claim. There is no requirement of a separate showing that
each contract theory can “proceed” in isolation when the pleaded facts plausibly establish a
single cognizable § 1981 injury. See Dibrell v. City of Knoxville, Tennessee, 984 F.3d 1156,
1160 (6th Cir. 2021) (explaining that the “complaint did not need to expressly plead legal
theories; it needed to plead factual allegations that impliedly established at least one viable
6
See also Skinner v. Switzer, 562 U.S. 521, 530 (2011) (“Skinner’s complaint is not a model of the careful
drafter’s art, but under the Federal Rules of Civil Procedure, a complaint need not pin plaintiff's claim for relief to a
precise legal theory.”); Gins v. Mauser Plumbing Supply Co., 148 F.2d 974, 976 (2d Cir. 1945) (“particular legal
theories of counsel yield to the court’s duty to grant the relief to which the prevailing party is entitled, whether
demanded or not.”); Yakubek v. Rex, 963 F.2d 374 (6th Cir. 1992) (“Federal pleading is by statement of claim, not
by legal theory.”) (cleaned up); Pollis v. Bd. of Chosen Freeholders of Cnty. of Sussex, N.J., 523 F. App’x 187, 189
(3d Cir. 2013) (similar); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at
220–27 (3d ed. 2004) (explaining that a complaint need only set forth “direct allegations on every material point
necessary to sustain a recovery on any recognizable legal theory, even though that theory may not be the one
suggested or intended by the pleader.”) (emphasis added).
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 24
theory.”). Especially “when an action implicates a civil rights interest,” we “must not dismiss
the complaint unless it appears to a certainty that the plaintiff would not be entitled to relief
under any legal theory which might plausibly be suggested by the facts alleged.” Gowen v.
Winfield, 130 F.4th 162, 171 (4th Cir. 2025) (citation omitted); see also Thurmond v. Cnty. of
Wayne, 447 F. App’x 643, 653 (6th Cir. 2011) (“Dismissals of actions brought under the civil
rights statutes are scrutinized with special care.”). This is done “in order to effectuate the high
congressional priority placed upon the vindication of civil rights deprivations.” Canty v. City of
Richmond, Virginia, Police Dep’t, 383 F. Supp. 1396, 1399 (E.D. Va. 1974), aff'd sub nom.
Canty v. Brown, 526 F.2d 587 (4th Cir. 1975).
Nevertheless, the majority penalizes Roberts for the way that he frames his claim. The
majority impermissibly relies on a legal conclusion in his complaint—that “he was denied the
opportunity to enter into the application-stage contract . . . because of his race”— to shrink the
scope of his § 1981 protections. See Maj. Op. at 7; First Am. Compl. ¶ 32. In other words, the
majority relies solely on the absence of barriers to submission of a formal application, id. at 9, as
though that were the beginning and end of the § 1981 analysis. In just the same way, under that
view, the discriminatory school in Runyon could have prevailed because Mrs. McCrary did not
fill out a form or tender tuition. See Runyon, 427 U.S. at 163. But the salient question for
§ 1981 purposes is whether Roberts was, in any way, racially disadvantaged, for the statute
prohibits unequal footing in all aspects of contracting. See Rivers, 511 U.S. at 302 (explaining
that the Civil Rights Act of 1991 expressly applies § 1981 to discrimination in “all phases and
incidents of the contractual relationship.”). Consider in this regard the factual allegation in
Roberts’s complaint that “he came to a part of the application that made clear that the grants
were available only to black-owned businesses.” First Am. Compl. ¶ 27. A contract to compete
for a race-restricted benefit falls squarely within § 1981’s unequal-footing prohibition, not least
because the competition is only worth anything to members of the grant-eligible race. As
explained in Section III, Part B, supra at 22–23, such a “contract” would also be the kind of
discriminatory deterrent condemned in International Brotherhood of Teamsters, 431 U.S. at
365–67. Moreover, even putting contract theories aside, as we must, the facts are materially
identical to those in Runyon.
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 25
D
Finally, the majority’s assumption that race-based criteria operate only at the point of
grant receipt cannot be reconciled with its own concessions that Roberts suffered an injury-in-
fact in the competition contract and would be on potentially unequal footing during the
competition itself. See Maj. Op. at 7–8. Moreover, it is a false dichotomy. It is routine for
separate contracts to contain overlapping terms or conditions; here, the allegation is that the
competition for the grant and the grant itself shared the same racial condition. First Am. Compl.
¶ 32.
The majority’s only response is its observation that Progressive invited Roberts to apply
and that the application form itself did not include an explicit racial checkbox, question, or
certification. Maj. Op. at 9. The argument seems to be that these circumstances, coupled with
the fact that racial disqualification might only happen later, id. at 10, prove that race played no
role in the competition contract. This is meritless. First, like Nathan Roberts, the plaintiffs in
Runyon received race-neutral advertisements and invitations to apply—a mass mailer and a
Yellow Pages ad. And there was no indication that the application form provided to one of the
named plaintiffs, Colin Gonzales, mentioned race at all. And yet, the Court still found a § 1981
violation under materially identical facts. Runyon, 427 U.S. at 165, 172–73. Second, as already
noted, the alleged absence of entry barriers in the application interface is beside the point: § 1981
forbids unequal footing anywhere in the contractual relationship, including in the competition
itself, and not just in the form mechanics. Rivers, 511 U.S. at 298. Third, Roberts did plead that
“he came to a part of the application that made clear that the grants were available only to black-
owned businesses.” First Am. Compl. ¶ 27. Whether that statement was contained in a
checkbox or written in plain English, it bars the same door. Either one would deter any
reasonable white or Asian applicant from submitting the form. See Int’l Bhd. of Teamsters, 431
U.S. at 365–67.
Perhaps underlying the majority’s position is an assumption that the racial restriction did
not attach until Progressive enforced it at the “grant stage.” This rests on a factual error:
Progressive reserved the right to enforce racial eligibility conditions at any point in the
competition, which further undermines any suggestion that all applicants were on equal footing
No. 24-3454 Roberts et al. v. Progressive Preferred Ins Co et al. Page 26
before Progressive provisionally awarded a grant. See Terms & Conditions, R. 35-1, PID 394–
96 (reserving the right to disqualify any entry during the review stage that, “as adjudged in
[Progressive’s] determination,” was ineligible on account of race or other listed criteria, and to
request additional materials or an interview relating to eligibility). Second, this belief defies
common sense: legal conditions govern before they are enforced. Homer Plessy bought a ticket
and sat in a whites-only coach before a conductor and police officer “forcibly ejected” him under
Louisiana’s segregation law. Plessy v. Ferguson, 163 U.S. 537, 541–42 (1896). By the
majority’s logic, state law did not govern that transaction until the police arrived—as if, at the
“ticket stage,” all was equal.
More fundamentally, the majority’s attempt to sanitize the first contract defies a basic
principle of anti-discrimination law. Regardless of whether Nathan Roberts alleged two
contractual stages or many, § 1981 does not permit discriminators to launder their discrimination
through a series of sham, nominally race-neutral stages.
IV
At the pleading stage, we are supposed to take facts in the light most favorable to the
plaintiff and set aside his legal theories, not take his legal theories in the light least favorable to
him and set aside the facts. That inversion conflicts not only with common sense but with the
Supreme Court’s own binding precedents. Johnson v. City of Shelby, 574 U.S. 10, 11 (2014),
reminds us that plaintiffs need only a “short and plain statement” showing entitlement to relief,
and that “legal theories” are not a prerequisite to having standing at the pleading stage. Only by
ignoring this guidance can the majority justify ignoring Runyon v. McCrary, 427 U.S. 160
(1976), which involved facts substantially similar to those Roberts pleads. Indeed, that omission
disregards the settled principle that an (otherwise ready and qualified) applicant need not
perform the futile act of applying under a facially discriminatory policy to acquire standing. See
n.2, supra (collecting cases). I therefore respectfully dissent from the court’s legitimation of a
discriminatory policy through a heightened pleading standard that faults the plaintiff’s framing
rather than addresses his facts.