RECOMMENDED FOR PUBLICATION

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

File Name: 20a0236p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FRED ROBINSON, JOHNNY GIBBS, and ASHLEY 

SPRAGUE, on behalf of themselves and all others 

similarly situated,

Plaintiffs-Appellees,

v.

JEFF LONG, Commissioner of the Tennessee 

Department of Safety and Homeland Security, in his 

official capacity,

Defendant-Appellant.

┐

│

│

│

│

│

│

│

│

│

│

┘

No. 18-6121

On Petition for Rehearing En Banc

United States District Court for the Middle District of Tennessee at Nashville.

No. 3:17-cv-01263—Aleta Arthur Trauger, District Judge.

Decided and Filed: July 30, 2020

Before: COLE, Chief Judge; BOGGS and SUTTON, Circuit Judges.

_________________

COUNSEL

ON PETITION FOR REHEARING EN BANC: Claudia Wilner, Edward P. Krugman, 

NATIONAL CENTER FOR LAW AND ECONOMIC JUSTICE, New York, New York, 

Jonathan Cole, Matthew G. White, BAKER, DONELSON, BEARMAN, CALDWELL 

& BERKOWITZ, PC, Memphis, Tennessee, Tara Mikkilineni, CIVIL RIGHTS CORPS, 

Washington, D.C., for Appellees. ON RESPONSE: Alexander S. Rieger, Andrew B. 

Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for 

Appellant.

The panel issued an order denying the petition for rehearing en banc. COLE, C.J. (pp.

3–5), delivered a separate dissenting opinion in which MOORE, CLAY, and STRANCH, JJ., 

joined.

>
No. 18-6121 Robinson, et al. v. Long 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. The petition then was circulated to the full court. 

Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied.
No. 18-6121 Robinson, et al. v. Long Page 3

_________________

DISSENT

_________________

COLE, Chief Judge, dissenting. I respectfully dissent from the denial of rehearing en 

banc. Our court erred when it decided Fowler v. Benson, 924 F.3d 247 (6th Cir. 2019), which 

condoned Michigan’s practice of stripping thousands of indigent residents of their driver’s 

licenses. And we err again here when, instead of revisiting Fowler’s holding as an en banc court, 

we allow Tennessee’s practice of doing the same. 

The Fowler majority said that a state’s “choice to wield the cudgel of driver’s-license 

suspension for nonpayment of court debt” was a permissible means to “heighten[] the incentive 

to pay.” 924 F.3d at 263. But this cruel cudgel is unconstitutional as applied to the class of 

plaintiffs in this case, which consists only of Tennessee drivers who cannot now, and could not at 

the time of their license suspension, afford to pay their debt. Offering this class the opportunity 

to pay a fine or have their license taken away is an “illusory choice,” as the class members are, 

by definition, without the means to pay. See Williams v. Illinois, 399 U.S. 235, 242 (1970). 

The Constitution does not permit states to inflict harsher punishment on indigent people 

simply because they are unable to pay. See, e.g., Tate v. Short, 401 U.S. 395, 396–99 (1971) 

(holding imprisonment of an indigent driver for failure to pay traffic debt unconstitutional); 

Williams, 399 U.S. at 242 (holding imprisonment of an indigent defendant due to his failure to 

pay a fine unconstitutional); Griffin v. Illinois, 351 U.S. 12, 13–14, 19 (1956) (plurality) (holding 

that preventing an indigent defendant from appealing his conviction due to his failure to pay for a 

trial transcript is unconstitutional). License-suspension schemes flout this prohibition when they 

allow residents with the means to pay a fine to keep their driver’s licenses despite having 

committed driving infractions, while suspending the licenses of indigent persons who commit 

those same infractions.

Fowler failed to heed the Supreme Court’s wealth-discrimination cases, attempting to 

distinguish them based on the rationale that those cases involve liberty interests, not property 

interests. See Fowler, 924 F.3d at 260–61. Yet the Supreme Court has disavowed a liberty-
No. 18-6121 Robinson, et al. v. Long Page 4

property dichotomy. Lynch v. Household Fin. Corp., 405 U.S. 538, 552 (1972) (explaining that 

“the dichotomy between personal liberties and property rights is a false one” given the 

“fundamental interdependence [that] exists between the personal right to liberty and the personal 

right in property”). Moreover, the Supreme Court’s condemnation of wealth discrimination has 

not been restricted to criminal matters or cases involving incarceration. See M.L.B. v. S.L.J., 

519 U.S. 102, 128 (1996) (holding that “the label ‘civil’ should not entice us to leave 

undisturbed” a state law requiring indigent parents to pay a fee to appeal a termination of 

parental rights); Mayer v. City of Chicago, 404 U.S. 189, 195–97 (1971) (holding that requiring 

an indigent defendant to pay for a transcript in order to appeal, even where his conviction had 

only resulted in fines, is unconstitutional). 

The parties dispute the level of scrutiny that we should use in our analysis. But as 

applied to the certified class, Tennessee’s law cannot even pass rational-basis review—which is a 

low threshold, but “not a toothless one.” See Schweiker v. Wilson, 450 U.S. 221, 234 (1981) 

(quoting Mathews v. Lucas, 427 U.S. 495, 510 (1976)). The rational-basis test asks us to consider 

whether the law “advances legitimate legislative goals in a rational fashion.” Id.; see also U.S. 

Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (“[T]o be sustained, the challenged 

classification must rationally further some legitimate governmental interest[.]”). Tennessee’s 

license-suspension scheme cannot pass this test because it is irrational to attempt to extract funds 

from indigent residents by taking away their driver’s licenses, thereby making it more difficult 

for them to make a living and pay their debt. See Fowler, 924 F.3d at 272 (Donald, J., 

dissenting). 

Fowler attempted to evade this conclusion by reasoning that even a “counterproductive” 

law can pass rational-basis review. See Fowler, 924 F.3d at 262–63. This distorts the rationalbasis test beyond recognition. A counterproductive law that actively impedes the government’s 

interests is, definitionally, irrational. See Schweiker, 450 U.S. at 234; Moreno, 413 U.S. at 534. 

And rubber-stamping such arbitrary laws abdicates our judicial responsibility to safeguard 

constitutional protections. 

It is difficult to overstate the gravity of the interests at stake. By robbing a large swath of 

indigent Tennesseans of the ability to drive, the law effectively denies them the ability to pursue 
No. 18-6121 Robinson, et al. v. Long Page 5

their livelihoods. See Bell v. Burson, 402 U.S. 535, 539 (1971). Without a license, they may not 

be able to pick their children up from school or take a sick parent to the hospital. They are 

denied the opportunity to participate fully in their community.

These are not abstractions. The record tells us that one plaintiff, Ashley Sprague, is a 

single mother who lost her job when her license suspension thwarted her ability to get to work. 

Another plaintiff, Fred Robinson, has missed essential medical appointments to treat his 

advanced liver disease. With over 200,000 license suspensions in Tennessee for failure to pay 

traffic debt, the damage wrought by this law is immeasurable. 

Given the error we committed in Fowler and the impact of the law at issue here, this case 

deserves the attention of the en banc court. I respectfully dissent. 

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk