Petition for Writ of Certiorari — Marty Hierholzer, et al., Petitioners v. Kelly Loeffler, Administrator, Small Business Administration, et al.

No.

In the Supreme Court of the United States

_________

MARTY H IERHOLZER; MJL ENTERPRISES , LLC, a

Virginia corporation,

Petitioners,

v.

K ELLY L OEFFLER , in her official capacity as

Administrator of the Small Business Administration;

SMALL B USINESS A DMINISTRATION,

Respondents.

_________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

_________

J OSHUA P. THOMPSON

Pacific Legal Foundation

555 Capitol Mall,

Suite 1290

Sacramento, California

95814

Telephone: (916) 419-7111

G LENN E. ROPER

Counsel of Record

Pacific Legal Foundation

1745 Shea Center Dr.,

Suite 400

Highlands Ranch, Colorado

80129

Telephone: (916) 419-7111

GERoper@pacificlegal.org

Counsel for Petitioners

QUESTION PRESENTED

The Small Business Administration’s Section 8(a)

Business Development Program provides valuable

benefits to small businesses owned by individuals

deemed “socially disadvantaged.” Members of favored

racial and ethnic groups are presumed to be

disadvantaged, while other applicants must prove it.

Small businesses in the program receive exclusive

access to contracts with the federal government and

other training and business development opportunities.

Marty Hierholzer, a service-disabled veteran, has

twice been denied entry to the program after SBA

concluded that evidence of his social disadvantage was

insufficient. The Fourth Circuit held that he lacks

standing to challenge the race-based rule that unequally excuses some applicants from demonstrating

their social disadvantage.

The question presented is:

Whether a small-business owner who was denied

entry into SBA’s Section 8(a) Business Development

Program for failing to prove “social disadvantage” has

Article III standing to challenge a race-based

presumption that excuses certain applicants from

making that showing.

ii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioners were plaintiffs in the district court.

They are Marty Hierholzer and MJL Enterprises,

LLC.

Respondents were defendants in the district court.

They are Kelly Loeffler, 1 in her official capacity as

Administrator of the Small Business Administration,

and the Small Business Administration (SBA).

Mr. Hierholzer is a natural person. Petitioner MJL

Enterprises is a Virginia limited liability company

that does not issue shares to the public and has no

parent corporation.

RELATED PROCEEDINGS

There are no proceedings in state or federal trial or

appellate courts, or in this Court, directly related to

this case under Supreme Court Rule 14.1(b)(iii) except

as follows:

• Hierholzer v. Guzman, No. 2:23-cv-00024-RAJDEM, E.D. Va. (Feb. 15, 2024) (granting defendants’

motion to dismiss)

• Hierholzer v. Guzman, No. 24-1187, 4th Cir.

(Jan. 3, 2025) (reversing in part and affirming in part

the grant of the motion to dismiss)

• Hierholzer v. Guzman, No. 24-1187, 4th Cir.

(Mar. 4, 2025) (denying petition for rehearing en banc)

The original defendant was Isabel Guzman, former

Administrator of the Small Business Administration, who has

since been substituted.

1

iii

TABLE OF CONTENTS

Petition for a Writ of Certiorari ................................. 1

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 1

Constitutional Provision Involved ............................. 1

Introduction and Summary of

Reasons to Grant the Petition ................................. 2

Statement of the Case ................................................ 5

I. The 8(a) Program and its Race-Based

Presumption of Social Disadvantage............... 5

II.

Ultima Services Corp. v. U.S. Department

of Agriculture .................................................... 9

III. Petitioners Marty Hierholzer and

MJL Enterprises ............................................ 10

IV. Proceedings Below ......................................... 12

Reasons for Granting the Petition ........................... 14

I. The Fourth Circuit Decision Conflicts With

Decisions of Other Circuit Courts ................. 15

II.

The Fourth Circuit’s Decision Is Inconsistent

with This Court’s Precedents ........................ 19

III. This Case Presents a Recurring Issue of

Nationwide Importance ................................. 23

Conclusion ................................................................. 25

APPENDIX

Opinion of the U.S. Court of Appeals for the

Fourth Circuit, dated Jan. 3, 2025 ....................... 1a

Order Granting Defendants’ Motion to Dismiss,

U.S. District Court for the Eastern District of

Virginia, dated Feb. 15, 2024 ............................. 27a

iv

Order Denying Petition for Rehearing,

U.S. Court of Appeals for the Fourth Circuit,

dated Mar. 4, 2025 .............................................. 48a

13 C.F.R. § 124.103 ................................................ 49a

Petitioner’s Complaint, U.S. District Court for the

Eastern District of Virginia,

dated Jan. 18, 2023 ............................................. 57a

Declaration of Marty Hierholzer,

dated Mar. 19, 2023 ............................................ 81a

v

TABLE OF AUTHORITIES

Page(s)

Cases

Adarand Constrs., Inc. v. Pena,

515 U.S. 200 (1995) ........... 2, 4, 18, 20, 21, 22, 23

Am. Legion v. Am. Humanist Ass’n,

588 U.S. 29 (2019) ............................................. 14

Barr v. Am. Ass’n of Pol. Consultants, Inc.,

591 U.S. 610 (2020) ........................................... 21

Cohens v. Virginia,

19 U.S. 264 (1821) ............................................. 14

Concrete Works of Colo., Inc. v. City & Cnty.

of Denver, 36 F.3d 1513 (10th Cir. 1994) .......... 15

Dynalantic Corp. v. Dep’t of Defense,

115 F.3d 1012 (D.C. Cir. 1997)........................ 8, 9

Gratz v. Bollinger,

539 U.S. 244 (2003) ............................... 20, 21, 23

Haaland v. Brackeen,

599 U.S. 255 (2023) ..................................... 21, 23

Jana-Rock Constr., Inc. v. N.Y. State Dep’t

of Econ. Dev.,

438 F.3d 195 (2d Cir. 2006) ............................... 15

Kousisis v. United States,

145 S. Ct. 1382 (2025) ................................... 6, 23

League of United Latin Am. Citizens v.

Perry, 548 U.S. 399 (2006) ............................... 23

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ..................................... 14, 24

Midwest Fence Corp. v. U.S. Dep’t of

Transp., 840 F.3d 932 (7th Cir. 2016) .............. 15

Monterey Mech. Co. v. Wilson,

125 F.3d 702 (9th Cir. 1997) ............................. 15

vi

Ne. Fla. Chapter of the Assoc. Gen.

Contractors of Am. v. City of

Jacksonville, 508 U.S. 656 (1993)

.................................... 2, 14, 15, 17, 19, 20, 21, 23

Ne. Fla. Chapter of Assoc. Gen. Contractors

of Am. v. City of Jacksonville,

951 F.2d 1217 (11th Cir. 1992) ......................... 19

Nuziard v. Minority Bus. Dev. Agency,

721 F. Supp. 3d 431 (N.D. Tex. 2024),

appeal dismissed, No. 24-10603, 2024

WL 5279784 (5th Cir. July 22, 2024)................ 23

Parents Involved in Community Schools v.

Seattle School District No. 1,

551 U.S. 701 (2007) ..................................... 21, 23

Parents Protecting Our Children, UA v. Eau

Claire Area Sch. Dist., Wis.,

No. 23-1280 (Dec. 9, 2024)............................. 2, 14

Road-Con, Inc. v. City of Philadelphia,

120 F.4th 346 (3d Cir. 2024) ............................. 15

In re Sherbrooke Sodding Co.,

17 F. Supp. 2d 1026 (D. Minn. 1998) ................ 23

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

600 U.S. 181 (2023) ........................................... 23

Texas v. Lesage,

528 U.S. 18 (1999) ............................................. 20

Thole v. U. S. Bank N.A.,

590 U.S. 538 (2020) ........................................... 14

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ........................................... 14

Ultima Servs. Corp. v. U.S. Dep’t of Agric.,

683 F. Supp. 3d 745 (E.D. Tenn. 2023) ..... 4, 9, 17

vii

Va. House of Delegates v. Bethune-Hill,

587 U.S. 658 (2019) ........................................... 23

Vitolo v. Guzman,

999 F.3d 353 (6th Cir. 2021) ............. 4, 15, 16, 17

Vitolo v. Guzman,

No. 3:21-CV-176, 2021 WL 2132106

(E.D. Tenn. May 25, 2021) ................................ 17

Vivenzio v. City of Syracuse,

611 F.3d 98 (2d Cir. 2010) ................. 4, 15, 18, 19

Waskul v. Washtenaw Cnty. Cmty. Mental

Health, 900 F.3d 250 (6th Cir. 2018) ................ 16

Wooden v. Bd. of Regents of Univ. Sys. of

Ga., 247 F.3d 1262 (11th Cir. 2001) ....... 4, 15, 18

Statutes

15 U.S.C. § 631(f) ............................................ 5, 6, 24

15 U.S.C. § 637(a)(1)(A)-(B) ...................................... 5

15 U.S.C. § 637(a)(4) ................................................. 6

15 U.S.C. § 637(a)(5) ................................................. 6

15 U.S.C. § 637(a)(6)(A) ............................................ 9

15 U.S.C. § 644(g)(1)(A)(iv) ....................................... 6

28 U.S.C. § 1254(1) ................................................... 1

31 U.S.C. § 3718(b)(3) ............................................. 24

49 U.S.C. § 47113(a)(2) ........................................... 24

Pub. L. No. 96-302, July 2, 1980,

94 Stat. 833 .......................................................... 7

Pub. L. No. 99-272, Apr. 7, 1986,

100 Stat. 82 .......................................................... 7

Pub. L. No. 100-656, Nov. 15, 1988,

102 Stat. 3853 ...................................................... 7

Other Authorities

13 C.F.R. § 124.103 ........................... 7, 10, 16, 17, 24

viii

13 C.F.R. § 124.103(a)............................................... 6

13 C.F.R. § 124.103(b)(1) .......................................... 7

13 C.F.R. § 124.103(b)(3) .......................................... 7

13 C.F.R. § 124.103(c)(1)........................................... 8

13 C.F.R. § 124.103(c)(2)........................................... 8

13 C.F.R. § 124.103(d)............................................... 8

13 C.F.R. § 124.103(d)(1) .......................................... 8

13 C.F.R. § 124.103(d)(2) .......................................... 8

13 C.F.R. § 124.104(c)(2)-(4) ............................... 9, 11

13 C.F.R. § 124.404 ................................................... 6

13 C.F.R. § 124.405 ................................................... 6

13 C.F.R. § 124.501(b)............................................... 5

13 C.F.R. § 124.517(a)............................................... 7

40 C.F.R. § 33.202 ................................................... 24

40 C.F.R. § 33.203 ................................................... 24

49 C.F.R. § 23.3 ....................................................... 24

8(a) Business Development Program FY

2023 408 Report to the Congress, https://

www.sba.gov/sites/default/files/2024-07/

Final%20FY%2023%20408%20Report%

20to%20Congress_508.pdf; ................................. 6

Br. for Defs., Vivenzio v. City of Syracuse,

No. 08-2436-cv, 2008 WL 8591087

(2d Cir. Sept. 8, 2008) ........................................ 18

Congressional Research Service, SBA’s 8(a)

Business Development Program:

Legislative and Program History

(updated Sept. 16, 2024), https://

crsreports.congress.gov/product/pdf/

R/R44844; ............................................................. 8

ix

Def.’s Opp. to P.’s Mot. for Prelim. Inj.,

Vitolo v. Guzman, 2021 WL 10861472

(E.D. Tenn. May 21, 2021) ................................ 17

La Noue, George R. & Sullivan, John C.,

Gross Presumptions: Determining Group

Eligibility for Federal Procurement

Preferences, 41 Santa Clara L. Rev. 103

(2000) ................................................................... 8

Pl.’s Mot. for Additional Equitable Relief,

Ultima Servs. Corp. v. U.S. Dep’t of

Agric., No. 2:20-cv-00041 (Sept. 15, 2023) ........ 10

PETITION FOR A WRIT OF CERTIORARI

Marty Hierholzer and MJL Enterprises, LLC,

petition for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Fourth

Circuit.

OPINIONS BELOW

The decision of the Fourth Circuit is available at

125 F.4th 104 and reprinted at App. 1a. The Fourth

Circuit’s denial of en banc review is reprinted at

App. 48a.

The decision of the United States District Court for

the Eastern District of Virginia is not reported but is

available at 2024 WL 894896 and reprinted at

App. 27a.

JURISDICTION

The final decision of the Fourth Circuit sought to

be reviewed was issued on January 3, 2025. App. 1a.

Denial of en banc review was issued on March 4, 2025.

App. 48a. On May 2, 2025, the Chief Justice granted

a motion to extend the deadline to file a petition for

writ of certiorari to July 2, 2025. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the U.S. Constitution

provides, in relevant part, “nor shall any person . . . be

deprived of life, liberty, or property, without due

process of law.” U.S. Const. amend. V.

2

INTRODUCTION AND SUMMARY OF

REASONS TO GRANT THE PETITION

Justice Alito recently expressed “concern[] that

some federal courts are succumbing to the temptation

to use the doctrine of Article III standing as a way of

avoiding some particularly contentious constitutional

questions.” Parents Protecting Our Children, UA v.

Eau Claire Area Sch. Dist., Wis., No. 23-1280, slip op.

at 2 (Dec. 9, 2024) (Alito, J., dissenting from denial of

certiorari). This case exemplifies that very phenomenon.

The Court has repeatedly held that individuals

suffer a justiciable injury when denied equal treatment as to eligibility for a government benefit—even

if they cannot show that they would receive the benefit

absent the discrimination. Ne. Fla. Chapter of the

Assoc. Gen. Contractors of Am. v. City of Jacksonville,

508 U.S. 656 (1993); Adarand Constrs., Inc. v. Pena,

515 U.S. 200 (1995). Yet the Fourth Circuit held that

Petitioners lack standing to challenge a federal

program’s race-based presumption of social disadvantage because they failed to show they would be

admitted to the program absent the presumption.

That conclusion undermines this Court’s precedents and imposes a standing requirement that would

effectively insulate the government’s racial classifications from judicial review. The question is a recurring

and important one that has divided the lower courts,

and it warrants the Court’s intervention.

Petitioner Marty Hierholzer is a service-disabled

Navy veteran and small business owner who seeks to

participate in the Small Business Administration’s

Section 8(a) Business Development Program. The 8(a)

program is designed to assist deserving small busi-

3

nesses in developing business and procuring federal

contracts. But, pursuant to statute and regulation, it

admits businesses to the program under different

rules based on each business owner’s race.

The 8(a) program is open only to small business

owners who are “socially disadvantaged.” An SBA

regulation presumes owners are socially disadvantaged if they fall into certain racial or ethnic

categories—such as Black Americans, Hispanic

Americans, and Asian Pacific Americans. Those who

do not, like Hierholzer, must instead prove their social

disadvantage to SBA’s satisfaction—a demanding

burden that he has twice failed to meet in prior

applications. As a result of being both ineligible for

the presumption and unable to convince SBA he is

socially disadvantaged, Hierholzer is excluded from

the 8(a) program altogether.

Hierholzer and his company filed suit to challenge

their unequal treatment. The Fourth Circuit concluded that Petitioners lack Article III standing

because they had failed in the prior applications to

establish to SBA’s satisfaction that Hierholzer is

socially disadvantaged. Yet this is the very thing he

would be excused from showing if he qualified for the

presumption he is challenging.

The Fourth Circuit’s decision creates a Catch-22

under which no one has standing to challenge the

government’s use of race. It held that a plaintiff lacks

standing unless he can show he is socially

disadvantaged. Thus, in the Fourth Circuit, the only

small business owners who could conceivably have

standing to challenge the race-based presumption are

those who are able to prove social disadvantage

through other means. But a plaintiff who can show he

4

is socially disadvantaged by other means is not

injured by the racial presumption, since he already

satisfies the social disadvantage criterion for the

program.

That standard is not only circular, but it departs

from this Court’s precedents. This Court has never

required a plaintiff to prove it would obtain the benefit

before it could challenge discriminatory eligibility

criteria for the program. That was the holding of

Northeastern Florida, and the necessary premise of

Adarand. The Fourth Circuit replaces that rule with

a higher burden: plaintiffs must show they would

qualify for the underlying benefit.

That decision also clashes directly with Vitolo v.

Guzman, 999 F.3d 353 (6th Cir. 2021), which found

standing to challenge the same SBA presumption of

social disadvantage that is at issue in this case

without the plaintiff first needing to establish social

disadvantage. And it contradicts the rationales of two

other circuits that expressly allow standing to

challenge unequal treatment without the plaintiff

first proving eligibility for the underlying government

benefit. See Wooden v. Bd. of Regents of Univ. Sys. of

Ga., 247 F.3d 1262 (11th Cir. 2001); Vivenzio v. City of

Syracuse, 611 F.3d 98 (2d Cir. 2010). The Court

should grant certiorari to resolve this conflict.

Months after Petitioners filed suit, SBA paused its

use of the presumption for the 8(a) program in

response to a district court’s ruling that the presumption is unconstitutional. See Ultima Servs. Corp.

v. U.S. Dep’t of Agric., 683 F. Supp. 3d 745 (E.D. Tenn.

2023). However, there has been no final decision in

Ultima (let alone exhaustion of appeals), and SBA has

5

not rescinded the regulation containing the presumption or conceded its unconstitutionality.

Moreover, the statutory requirement that

applicants show social disadvantage was not

challenged in Ultima and is not going away. Even if

SBA replaces the current race-based presumption

with a new framework, its application process is likely

to impose different evidentiary burdens on different

applicants. The Fourth Circuit’s standing rule would

continue to block judicial review of that process—

requiring plaintiffs to prove the very thing they would

otherwise be excused from proving. This case is thus

an ideal vehicle to resolve the circuit split and to

reaffirm that federal courts may not use distorted

applications of Article III to avoid difficult constitutional questions.

The petition should be granted.

STATEMENT OF THE CASE

I.

The 8(a) Program and its Race-Based

Presumption of Social Disadvantage

The 8(a) Business Development Program seeks to

“promote the business development” of small business

owners who have suffered “social and economic

disadvantage.” 15 U.S.C. § 631(f )(2). It authorizes

the Small Business Administration to enter into

contracting agreements for goods and services with

other federal agencies, then subcontract those

agreements to 8(a) program participants, either

through competitive bidding or as “sole-source”

awards granted without any competition. 15 U.S.C.

§ 637(a)(1)(A)-(B); 13 C.F.R. § 124.501(b). Each year,

SBA awards billions of dollars’ worth of federal

6

contracts to 8(a) participants. 1 In addition, SBA

provides them with valuable technical and financial

assistance, business development training and

mentoring, and access to federal surplus property. See

13 C.F.R. §§ 124.404-405.

To participate in the 8(a) program, small

businesses must be at least 51% owned by “socially

and economically disadvantaged persons.” 15 U.S.C.

§ 637(a)(4). Business owners are considered socially

disadvantaged if they “have been subjected to racial

or ethnic prejudice or cultural bias because of their

identity as a member of a group without regard to

their individual qualities,” id. § 637(a)(5), and due to

“circumstances beyond their control,” 13 C.F.R.

§ 124.103(a). 2

When Congress codified the social disadvantage

requirement in 1978, it found that “socially disadvantaged” persons include “Black Americans, Hispanic

Americans, Native Americans, and other minorities.”

Pub. L. No. 95-507, Title II, § 201, Oct. 24, 1978, 92

Stat. 1760, 1763 (codified at 15 U.S.C. § 631(f )(1)(C)).

It later added “Asian Pacific Americans,” “Indian

See U.S. Small Business Admin., 8(a) Business Development

Program FY 2023 408 Report to the Congress 7, https://www.sba.

gov/sites/default/files/2024-07/Final%20FY%2023%20408%20

Report%20to%20Congress_508.pdf;

see

also

15

U.S.C.

§ 644(g)(1)(A)(iv) (establishing a “Governmentwide goal” that at

least 5 percent of federal contracts go to small businesses with

socially and economically disadvantaged owners).

2 The 8(a) program’s social disadvantage requirement and racebased presumption are nearly identical to those in the

disadvantaged business enterprise (DBE) program that underlay

the Court’s recent decision in Kousisis v. United States, 145 S. Ct.

1382, 1389 (2025); see also id. at 1399-1400 (Thomas, J.,

concurring) (discussing the DBE program’s race-based

presumption of social disadvantage).

1

7

tribes,” and “Native Hawaiian Organizations” to this

list. See Act of July 2, 1980, Pub. L. No. 96-302, 94

Stat. 833, 840; Pub. L. No. 99-272, Apr. 7, 1986, 100

Stat. 82; Pub. L. No. 100-656, Nov. 15, 1988, 102 Stat.

3853.

SBA incorporated Congress’ findings as to these

racial and ethnic groups into the regulation that is at

the heart of Petitioners’ challenge, 13 C.F.R. § 124.103

(reprinted at App. 49a-56a). That regulation specifies

there is a “rebuttable presumption” of social disadvantage for members of certain “designated groups”—

including the groups listed in the statute. Id.

§ 124.103(b)(1). 3

The regulation also partially defines and adds to

Congress’ list. For example, it defines “Native Americans” as “Alaska Natives, Native Hawaiians, or

enrolled members of a Federally or State recognized

Indian Tribe.” Ibid. It defines “Asian Pacific American” as a person “with origins from” any of a list of

twenty-six nations in Asia and Oceania. Ibid. And it

designates a new group, “Subcontinent Asian Americans,” as entitled to the presumption of social disadvantage. Ibid. (defined as “persons with origins from

India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the

Maldives Islands or Nepal”). 4

Aside from the designated racial and ethnic groups,

a “representative” of another identifiable group may

petition SBA to designate that group as presumptively

3 The presumption may ostensibly be rebutted by “credible

evidence to the contrary.” 13 C.F.R. § 124.103(b)(3). But see id.

§ 124.517(a) (prohibiting challenges to an 8(a) participant’s

eligibility as part of a bid or contract protest).

4 The regulation does not define the terms “Black Americans”

or “Hispanic Americans.”

8

socially disadvantaged. Id. § 124.103(d). To succeed,

there must be “substantial evidence that members of

the group have been subjected to racial or ethnic

prejudice or cultural bias.” Id. § 124.103(d)(1). SBA

will then judge whether the group has “suffered

prejudice, bias, or discriminatory practices” that

resulted in “economic deprivation,” and whether those

practices have “produced impediments in the business

world.” Id. § 124.103(d)(2). 5

An applicant who does not belong to a group

presumed socially disadvantaged must demonstrate

individual social disadvantage by a preponderance of

the evidence. Id. § 124.103(c)(1). This requires showing that (1) the applicant has at least one objective

distinguishing feature that has contributed to his

social disadvantage, (2) his disadvantage is based on

his experience in American society, (3) it is chronic

and substantial, and (4) it has negatively impacted his

entry into or advancement in the business world. Id.

§ 124.103(c)(2). In practice, very few 8(a) participants

achieve eligibility through demonstrating individual

social disadvantage. See Dynalantic Corp. v. Dep’t of

Defense, 115 F.3d 1012, 1016-17 (D.C. Cir. 1997)

(noting that “less than one-half of one percent” of 8(a)

5 SBA has rejected group petitions for Hasidic Jews, women,

Iranians, and service-disabled veterans, and has accepted them

for Asian Indians, Indonesians, and Sri Lankans.

See

Congressional Research Service, SBA’s 8(a) Business

Development Program: Legislative and Program History 9

(updated Sept. 16, 2024), https://crsreports.congress.gov/product/

pdf/R/R44844; George R. La Noue & John C. Sullivan, Gross

Presumptions: Determining Group Eligibility for Federal

Procurement Preferences, 41 Santa Clara L. Rev. 103, 127-29

(2000).

9

participants “qualified by demonstrating to the SBA

. . . that they are socially disadvantaged”).

Once an applicant’s social disadvantage is

established—through either the presumption or an

individualized showing—he must also establish his

economic disadvantage, meaning that he is a “socially

disadvantaged individual[] whose ability to compete

in the free enterprise system has been impaired due

to diminished capital and credit opportunities.” 15

U.S.C. § 637(a)(6)(A); see also Dynalantic, 115 F.3d at

1017 (“[T]he statute treats the concept of economic

disadvantage as a subset of social disadvantage . . . .”).

SBA determines economic disadvantage based on

three objective criteria: (1) personal net worth less

than $850,000; (2) average yearly income less than

$400,000 over the three preceding years; and

(3) assets whose fair market value does not exceed

$6.5 million. 13 C.F.R. § 124.104(c)(2)-(4). A small

business owner applicant who satisfies both the social

and economic disadvantage criteria qualifies for the

8(a) program.

II. Ultima Services Corp. v. U.S. Department of

Agriculture

In July 2023—about six months after Petitioners

filed this lawsuit—a federal district court in the

Eastern District of Tennessee issued a summary

judgment ruling holding that SBA’s presumption of

social disadvantage is unconstitutional and enjoining

its use. Ultima Servs. Corp. v. U.S. Dep’t of Agric., 683

F. Supp. 3d 745 (E.D. Tenn. 2023). In response to that

ruling, SBA suspended its use of the presumption and

began requiring all participants and applicants to

submit a personal narrative establishing their social

disadvantage—a procedure previously reserved for

10

those

who

were

not

presumed

socially

disadvantaged. 6

However, SBA has not adopted or even proposed a

revision of 13 C.F.R. § 124.103, the regulation

containing the presumption. Nor has the government

conceded the correctness of the district court’s ruling

or the unconstitutionality of the presumption. For its

part, the Ultima district court has not yet issued a

final judgment or ruled on the plaintiff ’s motion

arguing that SBA’s revised process may still be

discriminatory and that additional equitable relief is

needed. See Pl.’s Mot. for Additional Equitable Relief,

ECF No. 93, Ultima Servs. Corp. v. U.S. Dep’t of

Agric., No. 2:20-cv-00041 (Sept. 15, 2023). Once the

district court decides the pending motion and issues a

final judgment, one or both sides may appeal to the

Sixth Circuit. 7

III. Petitioners Marty Hierholzer and

MJL Enterprises

Marty Hierholzer is the owner of MJL Enterprises,

LLC, in Norfolk, Virginia, which contracts with the

federal government to provide services and supplies.

App. 57a ¶ 2. He previously served with distinction

as a Navy deep sea diver for more than twenty years,

where he persevered through mental and physical

injuries suffered in the line of duty. App. 60a-61a

¶¶ 15-18. Because of those injuries, the Department

See Congressional Research Service, supra n.5, at 14

(discussing SBA’s response to the Ultima decision).

7 This Court’s recent decision in Trump v. CASA, Inc., may also

impact the scope or effect of the eventual final decision in Ultima.

See 606 U.S. __, slip op. at 11 (June 27, 2025) (concluding that

“universal injunction[s] . . . fall[] outside the bounds of a federal

court’s equitable authority”).

6

11

of Veteran Affairs rates Hierholzer as 60% disabled.

App. 61a ¶ 19.

During his time in the Navy, Hierholzer observed

that military suppliers sometimes failed to provide

adequate and timely supplies. App. 61a ¶ 21. After

retiring from the service, Hierholzer set out to fill the

void and started his company to provide dependable

supplies and services to the military. Id. ¶¶ 21-22.

MJL Enterprises is legally recognized as a small

business under the terms of the 8(a) program. Id.

¶ 23. Today, it provides a variety of goods and

services—such as medical, maintenance, and repair

equipment—to military bases and VA hospitals. Id.

¶ 22.

Hierholzer has twice applied to the 8(a) program,

in 2009 and 2016. App. 67a ¶ 54. Because he is of

German and Scottish descent, he is not a member of a

racial group that enjoys a presumption of social

disadvantage. App. 66a ¶ 47. Instead, he based his

claim of individual social disadvantage on the

“cultural bias” he has experienced as a servicedisabled veteran. App. 67a-69a ¶¶ 56-62. SBA denied

both applications because it concluded that Hierholzer

had not sufficiently established his individual social

disadvantage. App. 67a, 69a ¶¶ 55, 62.

If Hierholzer had successfully convinced SBA he is

socially disadvantaged, he would have been accepted

into the 8(a) program because he also meets all the

requirements to be considered economically

disadvantaged. See 13 C.F.R. § 124.104(c)(2)-(4). 8

But because SBA rejected his assertion of social

Hierholzer submitted an unrebutted declaration affirming

that he satisfies the three criteria for economic disadvantage—

net worth, income, and asset value. See App. 82a ¶¶ 4-6.

8

12

disadvantage, he is categorically excluded from the

program and the valuable opportunities that it

provides for small business owners.

IV. Proceedings Below

Hierholzer and MJL Enterprises brought this civil

rights lawsuit in the United States District Court for

the Eastern District of Virginia to challenge the 8(a)

program’s race-based presumption of social disadvantage. App. 57a-80a. The complaint asserts claims

against SBA and its Administrator under the equal

protection component of the Fifth Amendment’s Due

Process Clause, the Administrative Procedure Act,

and the nondelegation doctrine. App. 71a-79a. It

seeks prospective declaratory and injunctive relief

against SBA’s use of racial classifications and a racebased presumption in the 8(a) program. App. 79a-80a.

Defendants moved to dismiss under Rule 12(b)(1),

arguing that Petitioners lacked standing to challenge

the presumption. See App. 36a. 9 The district court

granted the motion, holding that Petitioners lack

Article III standing because they did not identify

specific federal contracts that they lost by not being

admitted to the 8(a) program and because they did not

establish that Hierholzer is socially and economically

disadvantaged. App. 38a-41a. The district court also

held that the case is moot due to the Ultima decision

and SBA’s pause in use of the presumption. App. 46a47a.

On appeal, a Fourth Circuit panel reversed the

district court’s mootness holding, concluding that

Defendants also sought dismissal of some of Petitioners’

claims under Rule 12(b)(6), but the district court did not rule on

the Rule 12(b)(6) motion. See App. 36a.

9

13

“[d]espite the changes made to the 8(a) Program by

the SBA pursuant to the injunction, . . . [t]he

controversy is still live because the Ultima decision

has not resulted in a final judgment.” App. 15a.

The panel also disagreed that Petitioners needed to

identify specific federal contracts that they lost by

being excluded from the program. App. 19a. However, the panel nonetheless affirmed dismissal,

holding that to have standing, Petitioners were

required to establish that Hierholzer satisfies the 8(a)

program’s social and economic disadvantage criteria.

Id. at 19a-21a (holding that Hierholzer was “required

to plead facts to support that [he] would be eligible for

the program—i.e., that [he] is socially and economically disadvantaged”). Without such a showing, the

panel concluded, the complaint fails all three prongs

of standing: injury in fact, causation, and redressability. Id. at 17a-26a.

The panel further concluded that Hierholzer’s

“prior rejections” from the 8(a) program, based on his

inability to establish social disadvantage, “underscore

[his] ineligibility” for the program. Id. at 25a. And

because it considered the presumption severable, the

panel held that the social disadvantage criterion

would “continue to bar [Hierholzer] from the 8(a)

Program even if [his] requested relief were granted.”

Id. at 26a. Thus, his “claimed injury cannot be

redressed by a favorable decision.” Ibid.

Petitioners sought en banc review, which was

denied. App. 48a.

14

REASONS FOR GRANTING THE PETITION

To establish standing under Article III, “a plaintiff

must demonstrate (1) that he or she suffered an injury

in fact that is concrete, particularized, and actual or

imminent, (2) that the injury was caused by the

defendant, and (3) that the injury would likely be

redressed by the requested judicial relief.” Thole v.

U. S. Bank N.A., 590 U.S. 538, 540 (2020). At the

pleading stage, a plaintiff need only plausibly allege

facts satisfying each element. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992).

Those jurisdictional requirements must not be

manipulated to “avoid[] . . . contentious constitutional

questions.” Parents Protecting Our Children, No. 231280, slip op. at 2 (Alito, J., dissenting from denial of

certiorari). Instead, federal courts are required to

exercise their jurisdiction where there is “a real

controversy with real impact on real persons.”

TransUnion LLC v. Ramirez, 594 U.S. 413, 424 (2021)

(quoting Am. Legion v. Am. Humanist Ass’n, 588 U.S.

29, 87 (2019) (Gorsuch, J., concurring in the

judgment)); see also Cohens v. Virginia, 19 U.S. 264,

404 (1821) (Marshall, C.J.) (“We have no more right to

decline the exercise of jurisdiction which is given, than

to usurp that which is not given. The one or the other

would be treason to the constitution.”).

In the equal protection context, this Court has

repeatedly held that when the government “makes it

more difficult for members of one group to obtain a

benefit than it is for members of another group, a

member of the former group who is personally subject

to that barrier has standing to challenge the barrier.”

Ne. Fla. Chapter of the Assoc. Gen. Contractors of Am.

v. City of Jacksonville, 508 U.S. 656, 666 (1993). The

15

relevant equal protection injury is “the denial of equal

treatment,” not the “inability to obtain the benefit.”

Ibid.

The Fourth Circuit’s decision defies that

principle by requiring Petitioners to show they would

obtain the benefit of admission to the 8(a) program

absent the presumption.

The Fourth Circuit decision also creates a direct

split with the Sixth Circuit decision in Vitolo v.

Guzman, 999 F.3d 353 (6th Cir. 2021), which held that

a small business owner challenging the same SBA

presumption at issue in this case had Article III

standing even though he did not establish that he was

socially disadvantaged. And the principle announced

by the Fourth Circuit contradicts the holdings of the

Eleventh and Second Circuit in Wooden v. Board of

Regents of University System of Georgia, 247 F.3d

1262 (11th Cir. 2001), and Vivenzio v. City of Syracuse,

611 F.3d 98 (2d Cir. 2010).

This Court should grant certiorari to reaffirm that

Northeastern Florida governs equal protection

challenges and to resolve a split among the circuits.

I.

The Fourth Circuit Decision Conflicts With

Decisions of Other Circuit Courts

Many circuit courts have applied Northeastern

Florida to find standing to challenge unequal

treatment without requiring the plaintiff to show he

would otherwise obtain the underlying benefit. See,

e.g., Road-Con, Inc. v. City of Philadelphia, 120 F.4th

346, 358 (3d Cir. 2024); Midwest Fence Corp. v. U.S.

Dep’t of Transp., 840 F.3d 932, 939-40 (7th Cir. 2016);

Jana-Rock Constr., Inc. v. N.Y. State Dep’t of Econ.

Dev., 438 F.3d 195, 204 (2d Cir. 2006); Monterey Mech.

Co. v. Wilson, 125 F.3d 702, 706 (9th Cir. 1997);

Concrete Works of Colo., Inc. v. City & Cnty. of Denver,

16

36 F.3d 1513, 1518 (10th Cir. 1994). The decision

below conflicts with those cases for the same reasons

it departs from Northeastern Florida.

But there is an even clearer split. The Fourth

Circuit decision squarely conflicts with the Sixth

Circuit opinion in Vitolo, which found standing to

challenge the very same race-based presumption that

Petitioners are challenging here, applied to a different

government program. 999 F.3d at 353. The Sixth

Circuit declined to require the plaintiff there to show

that he would qualify as socially disadvantaged in the

absence of the racial presumption.

Vitolo addressed a challenge to the Restaurant

Revitalization Fund, a COVID-relief fund operated by

SBA to aid small, privately-owned restaurants. Id. at

356-57. Money under the fund was to be distributed

on a first-come, first-served basis, except during the

first 21 days of the program, when priority was given

to restaurants owned by women, veterans, or the

“socially and economically disadvantaged.” Id. at 357

(quoting Pub. L. No. 117-2, § 5003(c)(3)(A)). In interpreting that term, the fund expressly adopted and

incorporated the presumption of social disadvantage

in 13 C.F.R. § 124.103. See id. at 357-58.

The Vitolo plaintiff, a white restaurant owner, sued

to challenge the race preference in the fund and

sought a preliminary injunction. 10 Id. at 358. In

opposing the injunction, the government made the

same argument adopted by the Fourth Circuit here:

In the Sixth Circuit, the evidentiary burden to establish

standing for a preliminary injunction is higher than at the

pleading stage. See Vitolo, 999 F.3d at 359 (citing Waskul v.

Washtenaw Cnty. Cmty. Mental Health, 900 F.3d 250, 255 n.3

(6th Cir. 2018)).

10

17

that the plaintiff lacked standing because he “fails to

allege, much less establish, that, even in the absence

of the race-based presumption, he qualifies as a

‘socially disadvantaged’ individual.” Def.’s Opp. to P.’s

Mot. for Prelim. Inj., Vitolo v. Guzman, 2021 WL

10861472 (E.D. Tenn. May 21, 2021); see also Vitolo v.

Guzman, No. 3:21-CV-176, 2021 WL 2132106, at *2

(E.D. Tenn. May 25, 2021) (describing and rejecting

the government’s standing argument). As the Sixth

Circuit put it, the essence of the government’s position

was that “the plaintiffs lacked standing to challenge

[SBA’s] use of racial preferences because the plaintiffs

may not ultimately succeed.” 999 F.3d at 358. That

is the very same argument the government makes

here. It is not different in any way.

Yet, the Sixth Circuit came to a different conclusion

than the Fourth Circuit. Relying on Northeastern

Florida, it concluded that “[i]t does not matter that the

plaintiffs might not otherwise qualify for priority

consideration” through establishing their social

disadvantage. Ibid. (citing 508 U.S. at 666). Instead,

they had standing because the race-based presumption treated them unequally, and if an injunction were

granted, “the playing field in qualifying for the

priority period would be leveled.” Ibid. (quotation

omitted).

Under Vitolo, Petitioners would have standing. 11

Under the Fourth Circuit’s decision, they do not. The

split could not be clearer.

Although they did not directly deal with 13 C.F.R.

§ 124.103 as did Vitolo, the Eleventh and Second

11 See also Ultima Servs., 683 F. Supp. 3d at 760 (relying on

Vitolo to find standing to challenge the 8(a) program’s race-based

presumption).

18

Circuits have also applied a standing approach that

contradicts the Fourth Circuit and would compel

recognition of Petitioners’ standing in this case. In

Wooden v. Board of Regents of University System of

Georgia, the Eleventh Circuit held that a plaintiff had

standing to challenge the University’s use of race in

admissions, even though he had been denied

admission at a step that did not use race and could not

show that he would have been admitted under a raceneutral system. 247 F.3d at 1278-79. The Eleventh

Circuit held that Northeastern Florida and Adarand

“establish that . . . it is the exposure to unequal

treatment which constitutes the injury-in-fact giving

rise to standing.” Ibid. It was immaterial that removing the University’s racial preference would not have

changed the admission outcome; the plaintiff had

standing because his “application was treated

differently, and less favorably, than the applications

of non-white candidates solely because of race.” Ibid.

Similarly, in Vivenzio v. City of Syracuse, the

Second Circuit considered whether white firefighter

applicants had standing to challenge a consent decree

requiring that a certain proportion of new hires be

racial minorities. 611 F.3d at 98. The City argued

that the plaintiffs lacked standing because they scored

lower on a civil service exam than any candidate that

was ultimately hired and thus would not have been

accepted even without the consent decree. See Br. for

Defs., Vivenzio v. City of Syracuse, No. 08-2436-cv,

2008 WL 8591087, at *20 (2d Cir. Sept. 8, 2008).

Relying on Northeastern Florida, the Second Circuit

rejected that argument and emphasized that it did not

matter whether the plaintiffs would have been hired

under a race-neutral process. 611 F.3d at 103-06. The

19

denial of equal treatment gave them standing to

challenge the City’s policy. Ibid.

Had this case arisen in the Second, Sixth, or

Eleventh Circuits, Petitioners would have been

permitted to proceed. Their 8(a) applications were

treated differently and less favorably than applications of those belonging to racial groups included in

the presumption of social disadvantage. Whether

Petitioners would ultimately be accepted into the 8(a)

program if the presumption were eliminated is beside

the point in those circuits, in direct conflict with the

Fourth Circuit decision in this case.

II. The Fourth Circuit’s Decision Is Inconsistent with This Court’s Precedents

In Northeastern Florida, this Court held that a

plaintiff challenging a race-based classification that

impedes access to a government benefit suffers injuryin-fact not from denial of the benefit itself, but from

the use of a race-based barrier. 508 U.S. at 666. That

case centered on an ordinance requiring the City of

Jacksonville to set aside 10 percent of city contracts

for minority-owned businesses. Id. at 658. The circuit

court had held that the plaintiff association lacked

standing because “it has not alleged that its members

would have bid successfully on any one or more of

these contracts if not for the ordinance.” Ne. Fla.

Chapter of Assoc. Gen. Contractors of Am. v. City of

Jacksonville, 951 F.2d 1217, 1219 (11th Cir. 1992).

This Court reversed, holding that when the

government “makes it more difficult for members of

one group to obtain a benefit than it is for members of

another group, a member of the former group who is

personally subject to that barrier has standing to

challenge the barrier.” 508 U.S. at 666. That is

20

because the relevant injury is “the denial of equal

treatment,” not the “inability to obtain the benefit.”

Ibid.

Two years later, the Court followed Northeastern

Florida in holding that a construction contractor had

standing to challenge a contract set-aside for “socially

and economically disadvantaged individuals,” which

was interpreted in a way that benefited racial

minorities. Adarand Constrs., Inc. v. Pena, 515 U.S.

200, 204 (1995). The Court held that the nonminority

plaintiff “need not demonstrate that it has been, or

will be, the low bidder on a government contract.” Id.

at 211. Instead, “[t]he injury in cases of this kind is

that a ‘discriminatory classification prevent[s] the

plaintiff from competing on an equal footing.’ ” Ibid.

(quoting Ne. Fla., 508 U.S. at 667).

Indeed, this Court has repeatedly emphasized that

the harm from the government’s use of race-based

classifications arises not only from the denial of a

desired result but from the stigmatizing injury of

being subjected to unequal treatment in the

application process:

• In Texas v. Lesage, the Court emphasized that,

in contrast to a plaintiff seeking retrospective relief,

“a plaintiff who challenges an ongoing race-conscious

program and seeks forward-looking relief need not

affirmatively establish that he would receive the

benefit in question if race were not considered.” 528

U.S. 18, 21 (1999). Instead, “[t]he relevant injury in

such cases is ‘the inability to compete on an equal

footing.’ ” Ibid. (quoting Ne. Fla., 508 U.S. at 666).

• In Gratz v. Bollinger, the Court rejected the

contention that a plaintiff lacked standing to

challenge the use of race in admissions to the

21

University of Michigan. 539 U.S. 244, 260-63 (2003).

The plaintiff had previously been denied admission to

the University as a freshman, whereas a “minority

applicant with his qualifications would have been

admitted.” Id. at 262. This Court held that he had

standing to prospectively challenge the University’s

use of race because “[a]fter being denied admission,

[he] demonstrated that he was ‘able and ready’ to

apply as a transfer student should the university

cease to use race in undergraduate admissions.” Id.

at 263. He was not required to show he would be

admitted as a transfer student absent the race-based

policy—it was enough that the policy treated him

unequally in the application process.

• In Parents Involved in Community Schools v.

Seattle School District No. 1, 551 U.S. 701 (2007), the

Court held that one form of equal protection injury “is

being forced to compete in a race-based system that

may prejudice the plaintiff.” Id. at 719 (emphasis

added) (citing Adarand, 515 U.S. at 211; Ne. Fla., 508

U.S. at 666). At issue were admissions policies that

used race in assigning students to Seattle schools.

The Court concluded that the plaintiff association had

standing to challenge this use of race on behalf of its

members, even though it was “possible that children

of [plaintiff] group members will not be denied

admission to a school based on their race.” Id. at 71819. The determinative injury was the unequal treatment itself, not the outcome. 12

12 See also Barr v. Am. Ass’n of Pol. Consultants, Inc., 591 U.S.

610, 634 (2020) (“[A] plaintiff who suffers unequal treatment has

standing to challenge a discriminatory exception that favors

others.”); Haaland v. Brackeen, 599 U.S. 255, 292 (2023) (a racebased barrier that “makes it more difficult for members of one

22

In disregard of these precedents, the Fourth Circuit

imposed an outcome-based standing requirement that

would close the courthouse doors to plaintiffs

asserting constitutional harms. It required Petitioners to demonstrate that they would obtain the benefit

of admission to the 8(a) program in the absence of

SBA’s race-based presumption by proving their social

disadvantage. In so doing, it effectively discarded the

rule of Northeastern Florida and Adarand, which held

that Article III does not require plaintiffs to show they

would receive the desired benefit in a race-neutral

world—only that they were denied the opportunity to

compete on equal terms.

This departure from the Court’s decisions is

particularly troubling since it creates a Catch-22

under which no one has standing to challenge SBA’s

use of race. Plaintiffs who do not establish their social

disadvantage lack standing under the decision below,

but those who do establish social disadvantage are not

injured by the presumption and so also lack

standing. 13 That standard could be used to immunize

race-based presumptions in a variety of contexts, from

voting to government contracting to public school

admissions—thereby eroding the core protection of

equal treatment under the law. That outcome cannot

be squared with this Court’s precedents or with the

Constitution.

group to obtain a benefit than it is for members of another group

. . . counts as an Article III injury”) (quotation omitted).

13 As in the movie WarGames (MGM/UA Ent. 1983), the only

solution is not to play—to refuse to take a position as to whether

the plaintiff is socially disadvantaged. But since either option

leads to a lack of standing, even that strategy is doomed to fail.

23

III. This Case Presents a Recurring Issue of

Nationwide Importance

Whether a plaintiff has Article III standing to bring

an equal protection challenge is an important and

recurring issue, including in cases before this Court.

See, e.g., Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll., 600 U.S. 181,

199 (2023); Haaland, 599 U.S. at 291-96; Va. House of

Delegates v. Bethune-Hill, 587 U.S. 658, 662-71 (2019);

Parents Involved, 551 U.S. at 718-20; Gratz, 539 U.S.

at 271-72; Adarand, 515 U.S. at 210-11; Ne. Fla., 508

U.S. at 666.

The Court has also made clear that the

Constitution demands that the government use race,

if at all, only as a last resort. See Students for Fair

Admissions, 600 U.S. at 206-07 (“Any exception to the

Constitution’s demand for equal protection must

survive a daunting two-step examination known in

our cases as ‘strict scrutiny.’ ”) (quoting Adarand, 515

U.S. at 227); League of United Latin Am. Citizens v.

Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J.,

concurring in part and dissenting in part) (noting that

the Constitution demands that the government seek

to disengage from the “sordid business” of “divvying

us up by race”). Yet, race-based presumptions are

often embedded in government programs. 14

14 See, e.g., Kousisis, 145 S. Ct. at 1399-1400 (Thomas, J.,

concurring) (discussing the race-based presumption of social

disadvantage in the DBE program); In re Sherbrooke Sodding

Co., 17 F. Supp. 2d 1026, 1037 (D. Minn. 1998) (finding use of a

race-based presumption in an earlier version of the DBE

program unconstitutional); Nuziard v. Minority Bus. Dev.

Agency, 721 F. Supp. 3d 431, 473 (N.D. Tex. 2024) (finding

unconstitutional the Minority Business Development Agency’s

24

A consistent and constitutionally faithful framework

for evaluating standing to challenge such presumptions is essential.

Here, the Fourth Circuit’s decision shielded a likely

unconstitutional government policy from review. If

that decision—and the resulting circuit split—is

allowed to stand, equal protection jurisprudence will

become a fragmented muddle governed by varying

procedural barriers rather than constitutional

principles.

There are no vehicle problems. The issue of

Petitioners’ standing was fully briefed by the parties

and decided at the pleading stage. Although SBA has

paused its use of the presumption in response to the

Ultima injunction, the Fourth Circuit correctly

concluded that does not moot Petitioners’ claims. See

App. 15a. 15 Moreover, the statutory requirement that

applicants show social disadvantage will remain even

when a final decision is reached in Ultima and all

appeals exhausted. See 15 U.S.C. §§ 631(f ), 637(a)(4)(5). SBA’s application of that requirement will almost

certainly continue to impose different evidentiary

burdens on different applicants. The Fourth Circuit’s

race-based presumption of social disadvantage), appeal

dismissed, No. 24-10603, 2024 WL 5279784 (5th Cir. July 22,

2024); 49 U.S.C. § 47113(a)(2) (incorporating SBA’s race-based

presumption program into a program for airport development);

31 U.S.C. § 3718(b)(3) (incorporating SBA’s race-based presumption into a program for debt collection services); 40 C.F.R.

§§ 33.202-.203 (applying the race-based presumption of

disadvantage in 13 C.F.R. § 124.103 to EPA contracting

programs); 49 C.F.R. § 23.3 (applying a race-based presumption

to an airport concession program).

15 See also Lujan, 504 U.S. at 569 n.4 (1992) (noting the Court’s

“longstanding rule that jurisdiction is to be assessed under the

facts existing when the complaint is filed”).

25

standing rule would block judicial review in any

future challenges to those burdens, just as it has

blocked Petitioners’ ability to bring their case.

The decision below turned on the view that a

plaintiff must prove eligibility for admission to a

government program to have Article III standing to

challenge a race-based barrier to entry. This case is a

strong vehicle for reviewing that conclusion and

providing critical guidance in this area of constitutional law.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

J OSHUA P. T HOMPSON

Pacific Legal Foundation

555 Capitol Mall,

Suite 1290

Sacramento,

California 95814

Telephone: (916) 419-7111

G LENN E. R OPER

Counsel of Record

Pacific Legal Foundation

1745 Shea Center Dr.,

Suite 400

Highlands Ranch,

Colorado 80129

Telephone: (916) 419-7111

GERoper@pacificlegal.org

Counsel for Petitioners

J ULY 2025