Roberts and “Futile Gesture” Standing: Sixth Circuit Leaves in Place a Rule Treating Non-Application as Self-Inflicted Injury in § 1981 Race-Barrier Cases

I. Introduction

Nathan Roberts v. Progressive Preferred Ins. Co. arises from a race-restricted business-grant program administered by Progressive Preferred Insurance Company (and related entities) using Circular Board’s online platform. Progressive offered commercial-vehicle grants but limited eligibility to businesses “owned and operated by a Black-identifying entrepreneur[].” Nathan Roberts, a white business owner, began the application process but did not submit it after encountering the racial-eligibility restriction and the accompanying requirement that applicants consent to use of their personal information for marketing and related purposes.

Roberts sued under 42 U.S.C. § 1981, alleging race discrimination in contracting. The district court dismissed for lack of Article III standing, and a Sixth Circuit panel affirmed in Roberts v. Progressive Preferred Ins. Co., 167 F.4th 955 (6th Cir. 2026). The en banc court then denied rehearing. The published order includes two separate dissentals—by Judge Thapar and Judge Hermandorfer—contending that the panel’s standing analysis conflicts with Supreme Court precedent and muddles the Sixth Circuit’s own case law, especially Aiken v. Hackett, 281 F.3d 516 (6th Cir. 2002).

The central legal issue is standing: whether a plaintiff “ready and able” to seek a benefit must nevertheless complete or submit an application when a program’s terms expressly render the plaintiff racially ineligible, and whether non-submission breaks “traceability” by making the injury “self-inflicted.”

II. Summary of the Opinion

The court’s operative action is procedural: it denied rehearing en banc. As a result, the panel decision in Roberts v. Progressive Preferred Ins. Co., 167 F.4th 955 (6th Cir. 2026) remains binding Sixth Circuit precedent.

The dissentals argue that rehearing was necessary because the panel’s standing analysis:

  • mischaracterizes causation by treating Roberts’s non-submission as “self-inflicted” even though the racial barrier was imposed by defendants;
  • conflicts with Supreme Court “futile gesture” doctrine (standing should not require pointless application steps);
  • incorrectly rejects an “unequal footing” theory by treating pleadings as locking plaintiffs into a single legal theory; and
  • exacerbates confusion caused by stray language in Aiken v. Hackett suggesting plaintiffs must show they “would have received” a benefit under a race-neutral policy.

III. Analysis

A. Precedents Cited

1. “Futile gesture” doctrine and deterrence-based injury

Judge Thapar’s dissental roots the standing inquiry in Supreme Court decisions recognizing that discrimination often operates by deterring disfavored groups from applying in the first place, and that the law does not require plaintiffs to “go through the motions” just to be rejected.

  • Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977): The Court explained that a person whose desire is not turned into a formal application because of unwillingness to perform a “futile gesture” “is as much a victim of discrimination” as one who applies and is rebuffed. The dissental uses Teamsters as the core anti-formalism principle: the injury includes the discriminatory barrier and its deterrent effect, not merely the final rejection.
  • Carney v. Adams, 592 U.S. 53 (2020): Cited for the explicit standing formulation: “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.” This is the dissental’s answer to the panel’s suggestion that Roberts needed to submit the application to establish causation.
  • Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982): Invoked for the proposition that failure to apply does not deprive standing when the application would have been denied.
  • Circuit reinforcement: Am. All. for Equal Rts. v. Fearless Fund Mgmt., LLC, 103 F.4th 765 (11th Cir. 2024) and Do No Harm v. Pfizer Inc., 126 F.4th 109 (2d Cir. 2025) (per curiam) are cited as examples of courts applying “ready and able” plus futility to find standing. These citations underscore a developing inter-circuit disagreement with the Sixth Circuit panel’s approach.

2. Contracting discrimination under § 1981 without completed application steps

  • Runyon v. McCrary, 427 U.S. 160 (1976): The dissental emphasizes that § 1981 can be violated by a refusal to deal on racial grounds even without a completed application. The Court treated the “racial exclusion” as a “classic violation of § 1981” where plaintiffs sought to enter a contractual relationship but were denied due to race. The point is doctrinal: standing (and liability) do not hinge on a plaintiff completing formalities when the barrier is explicit.
  • Allen v. Wright, 468 U.S. 737 (1984): Cited to mark the boundary: plaintiffs cannot sue on a generalized grievance alone; they must be “otherwise qualified” and concretely affected. The dissental uses Allen to argue Roberts was not a mere ideological objector—he was ready, willing, and otherwise met non-racial eligibility requirements.

3. “Unequal footing” injury as injury in fact

  • Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993): Both dissentals rely heavily on Jacksonville’s rule that the injury from a barrier is “the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” This directly rebuts any standing test requiring proof of winning the grant.
  • Gratz v. Bollinger, 539 U.S. 244 (2003): Judge Hermandorfer cites Gratz for the proposition that “inability to compete on an equal footing” is an “injury in fact.” This frames Roberts’s harm as the exclusion from equal competition rather than a lost entitlement to the grant itself.
  • Vitolo v. Guzman, 999 F.3d 353 (6th Cir. 2021): Cited as Sixth Circuit support for barrier-based standing principles in a race-classification context.

4. Nominal damages and redressability

  • Uzuegbunam v. Preczewski, 592 U.S. 279 (2021): Judge Hermandorfer emphasizes that nominal damages can redress a completed legal injury even without proof of actual damages. This matters because defendants may “shut down the program” (mooting prospective relief) yet still face retrospective accountability if standing exists for nominal damages.

5. Pleading and “theory lock-in” disputes

Judge Thapar argues the panel improperly limited Roberts to a single “legal theory” stated in the complaint. He invokes pleading precedents to assert that plaintiffs need only plead facts supporting a viable theory, not perfectly label the theory.

  • Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) and Merck v. Walmart, Inc., 114 F.4th 762 (6th Cir. 2024): cited for the idea that courts assume merits success when analyzing standing, but (per the dissental) not to restrict plaintiffs to only one legal theory.
  • Skinner v. Switzer, 562 U.S. 521 (2011) and Johnson v. City of Shelby, 574 U.S. 10 (2014) (per curiam): cited for the rule that a complaint need not pin relief to a precise legal theory, and imperfect legal labeling is not a basis for dismissal.
  • Dibrell v. City of Knoxville, 984 F.3d 1156 (6th Cir. 2021) and CHKRS, LLC v. City of Dublin, 984 F.3d 483 (6th Cir. 2021): cited to connect pleading sufficiency principles to standing allegations and motion-to-dismiss posture.

6. The shadow of Aiken and “would have received” language

  • Aiken v. Hackett, 281 F.3d 516 (6th Cir. 2002): Both dissentals identify Aiken as a source of confusion due to language suggesting plaintiffs seeking compensatory damages must show they “would have received the benefit” “under a race-neutral policy.” The dissentals argue this cannot sensibly apply to highly discretionary processes (like grant competitions), and that Aiken should be confined to its facts: plaintiffs who were indisputably not eligible even absent the challenged racial program.
  • Clarifying/limiting readings: Wright v. Spaulding, 939 F.3d 695 (6th Cir. 2019) and Carroll v. Hill, 37 F.4th 1119 (6th Cir. 2022) are cited to support a narrower Aiken principle: if a plaintiff lacks the ability to take advantage of an opportunity regardless of the challenged policy, there is no injury.
  • Sister-circuit analogues: Donahue v. City of Boston, 304 F.3d 110 (1st Cir. 2002), Grahek v. City of St. Paul, 84 F.3d 296 (8th Cir. 1996), and Braunstein v. Ariz. Dep't of Transp., 683 F.3d 1177 (9th Cir. 2012) are used to show that “no standing” often turns on a determinative showing that the plaintiff could not have obtained the benefit anyway.
  • Contrasting approach where outcome is discretionary: Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262 (11th Cir. 2001) is cited for recognizing standing where the plaintiff could have received the discretionary benefit.

7. Modern equal-protection/anti-classification backdrop

  • Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023): Cited to illustrate that plaintiffs challenging discretionary, holistic decisions are not required to prove they would have been selected absent the racial criterion.
  • Texas v. Lesage, 528 U.S. 18 (1999): Invoked for the distinction between “could have received” versus “would have received” the benefit; the dissental argues standing should not demand certainty of outcome.
  • Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007): Quoted for the anti-discrimination maxim that stopping discrimination requires stopping race-based decisionmaking—used to emphasize the normative stakes of courthouse access.

B. Legal Reasoning

1. What the denial functionally preserves

Although the en banc order itself is brief, its practical effect is to entrench the panel’s approach as Sixth Circuit law: where a plaintiff encounters a race-based restriction in an application process but does not submit the application, the panel treated the resulting harm as lacking sufficient traceability because the plaintiff’s choice not to apply rendered the injury “self-inflicted.”

2. The dissentals’ core critique: barrier-based injury and causation

The dissentals reframe causation in straightforward terms: the injury is not “Roberts’s choice to close the browser,” but the defendants’ decision to impose a race-based eligibility barrier that precludes equal participation in contracting. Under Jacksonville and Gratz, the injury exists at the moment the barrier denies equal treatment, not at the moment an application is rejected. Under Teamsters and Carney, requiring a “futile gesture” to create standing misunderstands how discriminatory barriers operate.

3. The “two-contract” structure as a vehicle for § 1981 harm

Judge Thapar’s dissental also disputes a factual/legal premise attributed to the panel: that no race barrier prevented entry into an “application-stage contract.” The dissental points to terms requiring that the business be “owned and operated by a Black-identifying entrepreneur[]” to be “eligible for th[e] opportunity,” arguing the barrier infected both stages and thus impeded contract formation at the outset—squarely within § 1981’s “make and enforce contracts” language.

4. Pleading flexibility and the “unequal footing” theory

The dissental contends that even if the complaint emphasized a particular mechanism of contractual injury, the standing inquiry should not turn on a rigid “theory lock-in.” Under Skinner, Johnson, Dibrell, and CHKRS, a plaintiff’s factual allegations can support multiple legal theories, and the plaintiff may refine arguments in response to a motion to dismiss. The “unequal footing” injury—being barred from equal competition—fits naturally within Jacksonville and Gratz.

5. Aiken’s role: standing versus merits, certainty versus possibility

The dissentals identify Aiken as the doctrinal tripwire. Properly read, Aiken is a “could not have received anyway” case: the plaintiffs did not score high enough to be eligible for promotion, so they suffered no barrier-based injury from the affirmative-action “bumping.” The dissentals argue that exporting Aiken’s stray “would have received” language into discretionary-benefit programs would convert standing into an impossible merits-proof requirement—particularly where awards depend on discretion, not rank-order rules.

C. Impact

1. Litigation incentives and “application burden” gamesmanship

The dissentals warn that, under the preserved panel rule, entities can reduce exposure by making applications more onerous (essays, documentation, marketing consents), effectively raising the cost of establishing standing. This creates a perverse incentive: the more burdensome the futile application, the more insulated the discriminatory barrier becomes.

2. Mootness strategy and retrospective accountability

Judge Thapar notes a “playbook”: discontinue the challenged program and argue mootness to defeat injunctive claims. If standing is also denied for those unwilling to submit futile applications, plaintiffs may be blocked from retrospective remedies. Judge Hermandorfer’s reliance on Uzuegbunam highlights why nominal damages matter: they preserve redressability for completed legal injuries even when prospective relief becomes unavailable.

3. Circuit alignment and Supreme Court trajectory

By citing Fearless Fund and Do No Harm, the dissentals suggest a growing inter-circuit conflict over whether “ready and able” plaintiffs must “apply anyway” to have standing. The emphasis on Carney’s standing language strengthens the case that the Sixth Circuit panel’s approach may be out of step with Supreme Court framing, increasing the likelihood that future litigants will seek further review.

IV. Complex Concepts Simplified

  • Article III standing: A plaintiff must show (1) an injury in fact, (2) that is fairly traceable to the defendant, and (3) likely redressable by a court remedy.
  • “Injury in fact” in barrier cases: Under Jacksonville and Gratz, the injury can be the denial of equal opportunity to compete—being forced onto “unequal footing”—even without proving you would have won.
  • “Futile gesture”: A doctrine from Teamsters (and carried into standing by Carney) holding that the law does not require people to apply for something when the policy makes clear they will be rejected.
  • Traceability and “self-inflicted” injury: If a court labels the harm as caused by the plaintiff’s own choices (e.g., not submitting an application), it may deny standing for lack of causation. The dissentals argue this misdescribes deterrence-based discrimination and shifts blame from the discriminator to the target.
  • Nominal damages: A small, symbolic damages award that can redress a completed violation of rights even without proof of quantifiable loss (Uzuegbunam).
  • 42 U.S.C. § 1981: A federal statute prohibiting race discrimination in making and enforcing contracts, applicable to private actors.

V. Conclusion

The Sixth Circuit’s denial of rehearing en banc in Nathan Roberts v. Progressive Preferred Ins. Co. leaves intact a panel precedent that can be read to deny standing where a plaintiff confronted with an explicit race-based eligibility rule declines to submit an application—treating the resulting harm as “self-inflicted.” The dissentals marshal a substantial body of authority—especially Int'l Bhd. of Teamsters v. United States, Carney v. Adams, Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Gratz v. Bollinger, and Uzuegbunam v. Preczewski—to argue that the barrier itself is the cognizable injury, that futile gestures are not required for standing, and that nominal damages preserve redressability when programs are discontinued.

Beyond this dispute, the opinion package spotlights an important fault line in modern anti-discrimination litigation: whether courts will treat discriminatory “eligibility” terms as immediately justiciable barriers, or require plaintiffs to incur the indignity and cost of formal rejection. The dissentals also identify Aiken v. Hackett as a doctrinal source of confusion that—if not cabined—risks transforming standing into an outcome-certainty requirement incompatible with discretionary selection processes. In practical terms, the decision may influence how race-restricted programs are designed, challenged, and (when sued) strategically wound down.