Nathan Roberts v. Progressive Preferred Ins. Co.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 26a0150p.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. │

┘

On Petition for Rehearing En Banc

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: May 19, 2026

Before: BOGGS, McKEAGUE, and MATHIS, Circuit Judges.

_________________

COUNSEL

ON PETITION FOR REHEARING EN BANC: Jonathan F. Mitchell, MITCHELL LAW

PLLC, Austin, Texas, Gene P. Hamilton, Nicholas R. Barry, AMERICA FIRST LEGAL

FOUNDATION, Washington, D.C., Joseph P. Ashbrook, Julie E. Byrne, Benjamin M. Flowers,

ASHBROOK BYRNE KRESGE FLOWERS LLC, Cincinnati, Ohio, for Appellants. ON

RESPONSE: Stephanie Schuster, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for

Appellees. ON BRIEF: Cameron T. Norris, CONSOVOY MCCARTHY PLLC, Arlington,

Virginia, Mathura J. Sridharan, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,

Ohio, for Amici Curiae.

The court delivered an order denying the petition for rehearing en banc. THAPAR, J. (pp.

3–12), delivered a separate dissental. HERMANDORFER, J. (pp. 13–14), also delivered a

separate dissental, in which GRIFFIN, J., concurred.

No. 24-3454 Roberts et al. v. Progressive Preferred Ins. Co., et al. Page 2

_________________

ORDER

_________________

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision. Judge Boggs would grant the petition for panel

rehearing for the reasons stated in his dissent to the court’s opinion of February 24, 2026.

The petition was also circulated to the full court.* Less than a majority of the judges voted

in favor of rehearing en banc.

Therefore, the petition is denied.

*

Judge Bush is recused.

No. 24-3454 Roberts et al. v. Progressive Preferred Ins. Co., et al. Page 3

_________________

DISSENTAL

_________________

THAPAR, Circuit Judge, dissenting from the denial of rehearing en banc.

If a hungry black customer—ready and willing to purchase lunch—walks up to a restaurant

with a sign reading “Whites Only,” does he need to open the door, request a table, and get thrown

out to be harmed? Does an Asian student need to apply for free flight credits “ONLY for Hispanic

students” to be injured by the all-caps racial-eligibility rule?1 What about a white law student

interested in one of the many “diversity” scholarships that effectively state “Whites Need Not

Apply?”2 And how much time does that student need to spend writing essays, filling out

questionnaires, and compiling recommendation letters before he has standing to sue?

Common sense tells us none of these victims of discrimination need to waste their time on

such pointless efforts to challenge those programs in court. And so does Supreme Court precedent.

As the Supreme Court has made clear, plaintiffs don’t need to “engage in a futile gesture” by

applying for benefits that aren’t available to them because of their race. Int’l Bhd. of Teamsters v.

United States, 431 U.S. 324, 366 (1977). Instead of following that holding, the panel majority

requires plaintiffs like Nathan Roberts to add the insult of making a futile gesture to the injury of

discrimination. We should have taken this case en banc to correct that error. I respectfully dissent

from our decision not to do so.

I.

Progressive Preferred Insurance Company operated a program offering 10 grants ranging

from $5,000 to $25,000 to help qualifying businesses purchase a commercial vehicle. At first

glance, Nathan Roberts’s company seemed to meet Progressive’s qualifying criteria: It employed

10 or fewer people, earned less than $5 million in annual gross revenue, and wasn’t an independent

1

Statement of Interest of the United States of America at 3, Am. All. for Equal Rts. v. Sw. Airlines Co., No.

3:24-CV-01209-D (SAF) (N.D. Tex. May 14, 2025).

2

See Am. All. for Equal Rts. v. Am. Bar Ass’n, No. 25-CV-3980 (JBG), 2026 WL 161596, at *1, *4 (N.D. Ill.

Jan. 21, 2026).

No. 24-3454 Roberts et al. v. Progressive Preferred Ins. Co., et al. Page 4

contractor for third-party rideshare and delivery services. And Roberts could satisfy Progressive’s

final requirement that he “demonstrate[] need” for a commercial vehicle with a plan to grow his

business. R. 32-3, Pg. ID 281. So he opened the grant application and began completing it.

There was just one problem: Roberts is white. But the grant program “aim[ed]” to address

“how inequities have made it harder for Black entrepreneurs to access capital.” Id. at 280. So

Progressive offered the grants only to businesses that were majority owned and operated by at least

one “Black-identifying entrepreneur[].” Id. at 281. When Roberts reached a part of the application

that “made clear that the grants were available only to black-owned businesses,” he closed the

application without submitting it. R. 32, Pg. ID 267. After all, in exchange for completing the

application, Roberts would have to agree to allow Progressive to use his personal information for

cross-selling and marketing. And why would he hand over his information (and receive annoying

marketing emails) if his race guaranteed he wouldn’t receive the grant?

Roberts then sued Progressive and Circular Board, the online program Progressive used to

administer the grant. See 42 U.S.C. § 1981. He alleged that he satisfied Progressive’s eligibility

criteria—except for his race. As a result, he claimed the defendants injured him by “den[ying him]

the ability to enter into contracts with” them based on his race. R. 32, Pg. ID 267. The district

court dismissed his claims for lack of standing, and a panel of this court affirmed over Judge

Boggs’s thoughtful dissent. See Roberts v. Progressive Preferred Ins. Co., 167 F.4th 955 (6th Cir.

2026). The panel majority assumed that Roberts had suffered an injury in fact but concluded that

he couldn’t establish causation because his choice not to submit the application made his injuries

“self-inflicted.” Id. at 962.

II.

“Courts sometimes make standing law more complicated than it needs to be.” Bost v. Ill.

State Bd. of Elections, 146 S. Ct. 513, 523 (2026) (quotation omitted). This is one of those cases.

First, Roberts didn’t cause his own injury. Second, and relatedly, Supreme Court precedent

instructs that Roberts didn’t need to perform the “futile gesture” of completing the grant

application to have standing. Third, the panel majority wrongly rejected Roberts’s “unequal-

footing” theory of injury—simply because he included a different theory in his complaint. Our

No. 24-3454 Roberts et al. v. Progressive Preferred Ins. Co., et al. Page 5

refusal to review the panel’s opinion ensures that future civil-rights plaintiffs will feel the ripple

effects of these mistakes.

A.

Roberts sued under 42 U.S.C. § 1981, which prohibits private actors like Progressive and

Circular from discriminating against his right to “make and enforce contracts.” 42 U.S.C.

§ 1981(a), (c). He alleged that Progressive’s grant-application process involved two contracts.

First, an applicant entered an “application-stage contract” by agreeing to Progressive’s and

Circular’s terms and conditions. Under that contract, an applicant permitted the defendants to use

and sell his personal information in exchange for the chance to compete for the grant. Second, if

an applicant won the grant, he would enter a “grant-stage contract” where he would agree to use

the funds to purchase a commercial vehicle.

But there was one catch: The terms and conditions governing both the application-stage

and grant-stage contracts said that to be “eligible for th[e] opportunity” to compete for the grant,

the business must be “owned and operated by a Black-identifying entrepreneur[].” R. 32-3, Pg.

ID 281. So the panel’s conclusion that “there was no race-based barrier preventing Roberts from

entering into the application-stage contract” isn’t true. Roberts, 167 F.4th at 963. If Roberts had

clicked “submit,” he could have sent a form to Progressive. But he couldn’t have entered the

contract because Progressive had already declared him ineligible based on his race, plain and

simple.

Because of these terms, Roberts had standing. The “denial of equal treatment resulting

from the imposition of” a race-based barrier is an injury in fact. Ne. Fla. Chapter of Associated

Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993); see also Vitolo v.

Guzman, 999 F.3d 353, 358–59 (6th Cir. 2021). Roberts didn’t impose that barrier—Progressive

and Circular did. So they caused his injury, which means he has standing.

B.

According to the panel, Roberts could have entered the application-stage contract simply

by clicking “submit.” Roberts, 167 F.4th at 962. So, the argument goes, Roberts caused his own

No. 24-3454 Roberts et al. v. Progressive Preferred Ins. Co., et al. Page 6

injury by closing the application, which means his injury isn’t fairly traceable to the defendants’

conduct. Id. And without traceability, he lacks standing. Id.

But the panel majority’s causation analysis effectively penalizes Roberts for not sending a

form he knew Progressive wouldn’t accept. That defies Supreme Court precedent. In Runyon v.

McCrary, the Court permitted a black mother to sue a segregated private school under § 1981 for

both injunctive relief and damages, even though she never submitted an application for her son to

attend. 427 U.S. 160, 164–65 (1976). Even without an application, “the racial exclusion . . .

amount[ed] to a classic violation of § 1981” because the plaintiffs “sought to enter into contractual

relationships” with the school and were denied due to race. Id. at 172. So the child and his parents

received compensatory damages for the “embarrassment, humiliation, and mental anguish” caused

by the school’s discrimination.3 Id. at 166 n.4. Those damages remedied a harm that occurred

before the application process started: the school’s refusal to deal with the child because of his

race.4 Cf. Allen v. Wright, 468 U.S. 737, 757 n.22 (1984). In short, the Court didn’t require the

plaintiffs to file a futile application before suing for damages.

Similarly, in the Title VII context, the Court has clarified that “[w]hen a person’s desire

for a job is not translated into a formal application solely because of his unwillingness to engage

in a futile gesture[,] he is as much a victim of discrimination as is he who goes through the motions

of submitting an application.” Teamsters, 431 U.S. at 365–66. After all, an employer who

“announce[s] his policy of discrimination by a sign reading ‘Whites Only’ on the hiring-office

door” discriminates against both would-be applicants and those “few who ignored the sign and

3

The plaintiffs received compensatory damages because a completed injury occurred at the time they chose

not to apply due to the schools’ racial barriers. See id. at 172. That injury gave them an unequal-treatment claim for

both prospective and retrospective relief under § 1981. See McCrary v. Runyon, 515 F.2d 1082, 1089 (4th Cir. 1975),

aff’d, 427 U.S. 160 (“If [§ 1981] is to be enforced fairly, if injuries suffered directly because of its violation are to be

fairly compensated, damages for embarrassment and humiliation must be recoverable in a case such as this.”); see

also Uzuegbunam v. Preczewski, 592 U.S. 279, 292 (2021) (authorizing nominal damages for “a completed violation

of a legal right”). Ultimately, the amount of compensatory damages (and what kinds of harm a plaintiff can show) is

a remedial question that courts must resolve after finding liability—not at the standing stage.

4

Of course, a plaintiff doesn’t have standing if he simply asserts a generalized grievance against a

discriminatory policy. Cf. Allen v. Wright, 468 U.S. 737, 757 n.22 (1984). Rather, he must be otherwise qualified to

receive the benefit that he was denied because of his race. As Runyon makes clear, an applicant is subject to

discrimination when he is ready, willing, able, and otherwise qualified to apply—but a racial bar stops him. 427 U.S.

at 164–65. Like the plaintiff in Runyon, Roberts was otherwise qualified and wanted to apply—so much so that he

started the application.

No. 24-3454 Roberts et al. v. Progressive Preferred Ins. Co., et al. Page 7

subjected themselves to personal rebuffs.” Id. at 365. The Court’s conclusion was based on a

commonsense understanding of the purpose and result of discriminatory application policies: to

deter unwanted applicants from applying in the first place. See id. So the Court found that a

plaintiff who would have applied but didn’t because of the discriminatory policy was still entitled

to “retroactive relief.” Id. at 364. That squarely contradicts the panel majority’s insistence that

Roberts “subject [himself] to the humiliation of explicit and certain rejection” by submitting a form

that Progressive would surely reject. Id.

The panel majority minimized these cases because they didn’t mention standing. Roberts,

167 F.4th at 964. But the Supreme Court’s refusal to require “futile gestures” applies with equal

force to standing in cases like this one. In fact, the Court has clearly stated in the standing context

that “a plaintiff need not translate his or her desire for a [benefit] into a formal application where

that application would be merely a futile gesture.” Carney v. Adams, 592 U.S. 53, 66 (2020)

(cleaned up) (quoting Teamsters, 431 U.S. at 365–66). That principle is nothing new. See, e.g.,

Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 944 n.2 (1982) (explaining that because

applicants “would not have been granted a [benefit] had they applied for one,” their “failure to

submit an application therefore does not deprive them of standing”). Our sister circuits have also

applied the “futile gesture” doctrine in standing cases. See, e.g., Am. All. for Equal Rts. v. Fearless

Fund Mgmt., LLC, 103 F.4th 765, 774 (11th Cir. 2024) (holding that plaintiffs “ready and able” to

apply for racially exclusionary grants need not “enter[] the competition and prompt[] a certain

rejection” because “Article III doesn’t require so futile a gesture”); Do No Harm v. Pfizer Inc., 126

F.4th 109, 118 (2d Cir. 2025) (per curiam) (similar). Because the “futile gesture” rule also applies

to standing, the panel majority should have applied it here.

Requiring Roberts to complete Progressive’s application may seem like a pretty light

burden (if you don’t mind giving away your personal information and receiving marketing emails).

But how many hours will we require future plaintiffs applying for discriminatory benefits to sink

into futile gestures? What if a competition included essays? Could a company impose a 100-page

application to protect itself from litigation, hoping that no plaintiff would be intrepid enough to

actually submit it? The Supreme Court has already told us none of that pretense is necessary.

Carney, 592 U.S. at 66; Teamsters, 431 U.S. at 365–66. But the panel majority’s decision forces

No. 24-3454 Roberts et al. v. Progressive Preferred Ins. Co., et al. Page 8

future panels to decide whether plaintiffs must complete increasingly burdensome applications to

be injured. I don’t envy the task of searching Article III’s penumbras to discover how many hours

of futile effort are required to establish standing.

C.

Roberts also alleged that Progressive didn’t allow him to compete for the ultimate grant-

stage contract on equal footing due to his race. Roberts, 167 F.4th at 965, 973 (Boggs, J.,

dissenting). The panel rejected that “unequal-footing” theory of injury because Roberts didn’t

raise it in his complaint. Id. at 964 (majority opinion). But Roberts is limited to the facts—not the

legal theories—identified in his complaint. The panel’s approach misreads relevant precedent and

again distorts standing doctrine.

The majority opinion stated that “Roberts’s own legal theory” is “the theory by which we

must evaluate his standing.” Id. That’s not exactly right. The majority cited cases discussing the

uncontroversial principle that we must assume a plaintiff wins on the merits when analyzing

whether he has standing. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998); Merck

v. Walmart, Inc., 114 F.4th 762, 772 (6th Cir. 2024). That rule helps ensure that courts don’t

decide merits questions until their jurisdiction to do so is clear. But that basic Article III

requirement doesn’t mean we can consider only the theory of injury in a plaintiff’s complaint.

Parties aren’t limited to the theories in their complaints. After all, the Federal Rules of

Civil Procedure don’t require plaintiffs to plead their legal theories perfectly. Skinner v. Switzer,

562 U.S. 521, 530 (2011) (“[A] complaint need not pin plaintiff’s claim for relief to a precise legal

theory.”). So conversely, the Rules don’t allow “dismissal of a complaint for [an] imperfect

statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, 574 U.S.

10, 11 (2014) (per curiam). To survive a motion to dismiss, a plaintiff must merely “plead factual

allegations that impliedly establish[] at least one viable theory.” Dibrell v. City of Knoxville, 984

F.3d 1156, 1160 (6th Cir. 2021). After that, the plaintiff can refine his theory of injury and respond

to opposing legal theories.

That rule applies equally to standing questions because “[w]e assess a complaint’s standing

allegations using the same rules that we would apply for the merits.” CHKRS, LLC v. City of

No. 24-3454 Roberts et al. v. Progressive Preferred Ins. Co., et al. Page 9

Dublin, 984 F.3d 483, 488 (6th Cir. 2021). If a plaintiff’s complaint includes factual allegations

that show an injury in fact, we can evaluate standing based on any presented theory of injury

stemming from those facts—even if the plaintiff offered an alternative theory in his complaint.

And Roberts raised his “unequal-footing” theory both to the district court and on appeal.5 So the

panel was wrong to limit Roberts to the single theory of injury in his complaint when he alleged

facts that also supported an unequal-footing injury. And it was doubly wrong to say our precedent

requires that limited view.

III.

There’s one final reason why we should have reheard this case: to clarify this court’s

opinion in Aiken v. Hackett, 281 F.3d 516 (6th Cir. 2002). The district court relied on a broad

reading of Aiken to conclude that Roberts needed to show he would have received one of

Progressive’s available grants. Roberts v. Progressive Preferred Ins. Co., No. 1:23-CV-1597

(PAG), 2024 WL 2295482, at *6–7 (N.D. Ohio May 21, 2024). But applying such a heightened

standing requirement to plaintiffs like Roberts violates first principles and isn’t required by

Supreme Court precedent.

So we also should have taken the case to clarify that Aiken’s holding is limited: A plaintiff

lacks standing to challenge an affirmative action program when the record definitively shows he

couldn’t have received a benefit even without that program. 281 F.3d at 518, 520. But Aiken is

miles away from cases like this one, in which the plaintiff could have received the benefit without

the discriminatory policy in place.

Start with Aiken itself. The Memphis Police Department planned to fill 94 open sergeant

positions by promoting officers with the highest numeric scores on a performance assessment. Id.

at 518–19. And the Department had an affirmative action program that guaranteed black officers

would fill at least 33 of those vacancies. Id. at 518. But only 15 black officers scored in the top

94 on the performance assessment. Id. Thus, the City “bumped” 18 white officers who scored in

the top 94 to promote an additional 18 black officers to meet its quota. Id. The problem in Aiken?

5

Indeed, Roberts claimed the injury of unequal footing in his response to the defendants’ motion to dismiss,

before the panel, and in his petition for en banc review.

No. 24-3454 Roberts et al. v. Progressive Preferred Ins. Co., et al. Page 10

None of the plaintiffs scored within the top 94. Id. So the plaintiffs weren’t “bumped” by the

black officers; other white officers were. Id. Naturally, the plaintiffs lacked standing to sue over

promotions they could not have received even without the affirmative action program. Id. at 519.

But Aiken also stated that plaintiffs seeking compensatory damages based on racial

discrimination must “allege and show that ‘under a race-neutral policy’ they would have received

the benefit.” Id. (emphasis added). Such an extreme requirement makes no sense in cases like

this one, which involve benefits awarded based on pure, unfettered discretion. For instance, how

could an Asian college applicant definitively show that her race cost her admission to Harvard

when the university uses an individualized, holistic review process? Of course, she wouldn’t—

and didn’t—need to. See Students for Fair Admissions, Inc. v. President & Fellows of Harvard

Coll., 600 U.S. 181, 199, 201 (2023). If Aiken bars such cases by imposing a heightened standing

requirement, it’s wrong.

Fortunately, our court hasn’t read it that way. Aiken’s holding concerned plaintiffs who

indisputably couldn’t receive a benefit. So it has no binding force in cases where the plaintiff

alleges he could. See Wright v. Spaulding, 939 F.3d 695, 701–02 (6th Cir. 2019). We’ve

summarized its narrow rule as follows: “If a plaintiff lacks the ability to take advantage of an

opportunity, the deprivation of that opportunity does not count as an injury under Article III.”

Carroll v. Hill, 37 F.4th 1119, 1122 (6th Cir. 2022) (citing Aiken, 281 F.3d at 519–20). The district

court was therefore wrong to apply Aiken when Roberts was otherwise eligible to take advantage

of Progressive’s grant opportunity.

Reading Aiken this way has the added benefit of aligning us with our sister circuits. Those

courts have also distinguished between plaintiffs who could and those who could not receive a

benefit. See, e.g., Donahue v. City of Boston, 304 F.3d 110, 117 (1st Cir. 2002); Grahek v. City of

St. Paul, 84 F.3d 296, 299 (8th Cir. 1996); Braunstein v. Ariz. Dep’t of Transp., 683 F.3d 1177,

1181, 1185–86 (9th Cir. 2012). These cases look almost exactly like Aiken—the plaintiffs alleged

facts showing they could not have received the racially limited benefit, regardless of any racial

criteria. See Donahue, 304 F.3d at 116–17 (hundreds of non-minority applicants beat plaintiff);

Grahek, 84 F.3d at 297 (plaintiffs didn’t score high enough to qualify for promotion); Braunstein,

683 F.3d at 1186 (contractor wouldn’t have received work regardless of discriminatory criteria).

No. 24-3454 Roberts et al. v. Progressive Preferred Ins. Co., et al. Page 11

On the flip side, the Eleventh Circuit—dealing with a plaintiff who could have received the highly

discretionary benefit of college admission—reached the opposite result and found standing.

Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1277 n.14, 1279 (11th Cir. 2001).

That’s exactly what we should have done here.

In sum, we should read Aiken for this simple proposition: If a company announced that it

would hire only black people with a college degree, a white person without a college degree lacks

standing to challenge the policy. No matter his race, he couldn’t be hired. But barring a white

person with a college degree from suing just because he can’t show with certainty how the hiring

process would shake out goes too far—especially on a motion to dismiss. Supreme Court

precedent requires such a plaintiff to show only that he could receive the benefit, not that he would

receive it. Texas v. Lesage, 528 U.S. 18, 21 (1999). Insofar as Aiken says otherwise, it conflicts

with both precedent and principle.

* * *

The panel’s approach rewards gamesmanship by companies seeking to avoid liability for

blatant race discrimination. Companies awarding benefits to some races, but not others—all in the

name of “equity”—follow a well-worn playbook when challenged: Shut down the program, claim

mootness, and try to kick the case for lack of jurisdiction—just like Progressive did here. See,

e.g., Fearless Fund, 103 F.4th at 775 & n.4; Am. All. for Equal Rts. v. Sw. Airlines Co., No. 3:24-

CV-1209-D (SAF), 2024 WL 5012055, at *1 (N.D. Tex. Dec. 6, 2024) (challenging program

offering free flights for Hispanic students). This gamesmanship shields companies from suits for

prospective relief, since the program is no longer running.

The panel’s decision now means that plaintiffs “unwilling to subject themselves” to the

indignity of making a futile gesture will lack standing to obtain remedies for discrimination.

Teamsters, 431 U.S. at 365. And moving forward, savvy companies will simply make their

applications more onerous. After all, the harder the application process, the more insulated the

discrimination will be from suit.

This country hasn’t always lived up to the Declaration of Independence’s promise that “all

men are created equal.” But this nation fought a Civil War, amended the Constitution, and passed

No. 24-3454 Roberts et al. v. Progressive Preferred Ins. Co., et al. Page 12

numerous laws to prevent discrimination and right those wrongs. Corporations like Progressive

may genuinely hope to contribute to those efforts. But they can’t violate the law—and perpetuate

more discrimination—in the name of equality. See Students for Fair Admissions, 600 U.S. at 232

(Thomas, J., concurring) (“Two discriminatory wrongs cannot make a right.”). And if they do, we

have an obligation to keep the courthouse doors open to those injured by discrimination. The

Supreme Court said it best: “[T]he way to stop discrimination on the basis of race is to stop

discriminating on the basis of race.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,

551 U.S. 701, 748 (2007).

I respectfully dissent.

No. 24-3454 Roberts et al. v. Progressive Preferred Ins. Co., et al. Page 13

_________________

DISSENTAL

_________________

HERMANDORFER, Circuit Judge, dissenting from the denial of rehearing en banc.

When it comes to assessing Article III standing to challenge race-based programs,

governing law makes two things clear. First, the relevant injury inflicted by a racial exclusion “is

the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability

to obtain the benefit.” Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville,

508 U.S. 656, 666 (1993); see Gratz v. Bollinger, 539 U.S. 244, 262 (2003) (“inability to compete

on an equal footing” is an “injury in fact” (citation omitted)). Second, nominal relief alone can

redress legal injuries when a plaintiff otherwise lacks “actual damage.” Uzuegbunam v.

Preczewski, 592 U.S. 279, 289 (2021) (citation omitted). So those who were “able and ready” to

compete for contracts, yet couldn’t because of their race, have standing to vindicate their “equal

footing” injuries. Jacksonville, 508 U.S. at 666. And standing lies even if the only available relief

is nominal damages for a race-based exclusion that’s since been shuttered.

Those standing rules should be simple enough to apply. And they would unquestionably

permit plaintiffs’ challenge to Progressive’s race-based grant program. But this Court’s decision

in Aiken v. Hackett, 281 F.3d 516 (6th Cir. 2002), has muddied the waters. The problem is stray

language in Aiken that suggests a more stringent standing test for equal-footing plaintiffs—one in

which such plaintiffs lack standing to seek retrospective relief absent allegations that they “would

have received the benefit” at issue “under a race-neutral policy.” Id. at 519 (citation omitted).

Like others, I’m dubious that Aiken should—or under Supreme Court precedent, could—

be read to impose a sky-high standing hurdle that would “functionally immunize[] from judicial

review” any number of racially discriminatory programs. Roberts v. Progressive Preferred Ins.

Co., 167 F.4th 955, 968 (6th Cir. 2026) (Boggs, J., dissenting). But as it turns out, courts and

litigants have understood Aiken that way. That includes the district court here, which held that

Aiken foreclosed standing because plaintiffs did “not allege anywhere” that they “would have

received” one of Progressive’s grants “under a race-neutral policy.” D. Ct. Order, R.51, PageID

No. 24-3454 Roberts et al. v. Progressive Preferred Ins. Co., et al. Page 14

619; see also Mot. to Dismiss, R.34, PageID 340-41 (similar). Other circuits have described Aiken

similarly. See Donahue v. City of Boston, 304 F.3d 110, 118 (1st Cir. 2002) (contrasting Aiken

with Wooden v. Bd. of Regents of the Univ. Sys. of Ga., 247 F.3d 1262 (11th Cir. 2001)).

At a minimum, Aiken’s sketchy scope significantly distorted the standing inquiry in this

case. Discrimination caselaw should have confirmed plaintiffs’ equal-footing standing to

challenge the express racial barrier to Progressive’s grant program. Instead, things devolved into

a convoluted dispute over plaintiffs’ “two-contract” theory and the distinct contractual phases of

the program’s application process. Roberts, 167 F.4th at 961; see also Roberts Br. 16-21. But

parsing the mechanics of how someone could have sought a race-based grant he was bound to lose

is beside the point for Article III purposes. And it likely would have been, but for the shadow

Aiken casts on parties’ rights to seek retrospective relief in cases challenging race-based programs.

Beyond the litigation here, Aiken-related confusion might deter parties from pressing

meritorious suits for fear that they lack standing. So too, denying standing to seek retrospective

relief can thwart accountability for past discriminatory acts by permitting sponsors to fold race-

based programs rather than face victims’ challenges. See Am. All. for Equal Rights Amicus Br.

6-8 (providing examples). Aiken thus risks hampering our Court’s ability to address instances of

racial discrimination that would be subject to scrutiny in other circuits.

The redress available for those subjected to race-based barriers in contracting is an

important question worth clarifying. And if this suit’s anomalous no-standing result is any

indication, clarification is needed. I would therefore grant the petition for rehearing en banc and

respectfully dissent from the Court’s decision not to do so.

ENTERED BY ORDER OF THE COURT

___________________________________

Kelly L. Stephens, Clerk