                               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,         │
                                                             >        No. 18-6121
                                                            │
        v.                                                  │
                                                            │
                                                            │
 JEFF LONG, Commissioner of the Tennessee                   │
 Department of Safety and Homeland Security, in his         │
 official capacity,                                         │
                              Defendant-Appellant.          ┘

                              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 rational-
basis 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
