Free Speech Coalition, Inc. v. LeBlanc

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

FREE SPEECH COALITION, INC., CIVIL ACTION

ET AL.,

Plaintiffs

VERSUS NO. 23-2123

JAMES M. LEBLANC, ET AL., SECTION: “E” (2)

Defendants

ORDER AND REASONS

Before the Court is a Rule 12(b)(1) Motion to Dismiss1 by Defendants James

LeBlanc, Secretary of the Louisiana Department of Public Safety and Corrections

(“Secretary LeBlanc”); Jay Dardenne, Commissioner of the Louisiana Division of

Administration (“Commissioner Dardenne”); and Jeffrey Landry, Attorney General of

Louisiana (“AG Landry”). Each is sued in his official capacity.2 Defendants urge this Court

to dismiss all of Plaintiffs’ claims arising out of La. R.S. § 9:2800.29 (“the Act”) for lack

of subject-matter jurisdiction.3 Defendants argue Plaintiffs’ claims are barred by

sovereign immunity and Plaintiffs lack Article III standing. For the reasons that follow,

Defendants’ motion is GRANTED.

FACTUAL BACKGROUND

In June 2022, Louisiana Governor John Bel Edwards signed the Act into law. 4 The

law took effect on January 1, 2023.5 The relevant parts of the Act impose liability on “[a]ny

commercial entity that knowingly and intentionally publishes or distributes material

1 R. Doc. 35.

2 See R. Doc. 31.

3 Defendants concede (R. Doc. 35 at p. 1) this Court has jurisdiction over Plaintiffs’ claims against AG Landry

with respect to the Public Enforcement Act, La. R.S. § 51:2121.

4 R. Doc. 31 at p. 18.

5 See Note, La. R.S. § 9:2800.29.

harmful to minors on the internet from a website that contains a substantial portion of

such [harmful] material” if those commercial entities “fail[] to perform reasonable age

verification methods to verify the age of individuals attempting to access the material.”6

Crucially, the Act is “intended to provide [through private actions] a civil remedy for

damages against commercial entities who distribute harmful material to minors.”7 The

Act does not explicitly charge any government official or entity with enforcement. Instead,

the Act may be enforced only through private actions.8 Under La. R.S.

9:2800.29(B)(3)(a), “[a]ny commercial entity that is found to have violated this Section

shall be liable to an individual for damages resulting from a minor's accessing the

material, including court costs and reasonable attorney fees as ordered by the court.”9

The Act provides two options to meet he required “reasonable age verification.”10

The first option is for a commercial entity to verify that the person attempting to access

6 § 9:2800.29(B)(1). Section 9:2800.29(D)(4) of the Act describes “material harmful to minors” as “all of

the following:”

(a) Any material that the average person, applying contemporary

community standards would find, taking the material as a whole and with

respect to minors, is designed to appeal to, or is designed to pander to, the

prurient interest.

(b) Any of the following material that exploits, is devoted to, or principally

consists of descriptions of actual, simulated, or animated display or

depiction of any of the following, in a manner patently offensive with

respect to minors:

(i) Pubic hair, anus, vulva, genitals, or nipple of the female breast.

(ii) Touching, caressing, or fondling of nipples, breasts, buttocks,

anuses, or genitals.

(iii) Sexual intercourse, masturbation, sodomy, bestiality, oral

copulation, flagellation, excretory functions, exhibitions, or any

other sexual act.

7 § 9:2800.29(A).

8 In June 2023, Governor Edwards signed into law a companion act, the “Public Enforcement Act,” codified

at La. R.S. § 51:2121. The Public Enforcement Act took effect August 1, 2023.8 As noted, see note 3, supra,

Defendants do not contest this Court’s jurisdiction over AG Landry with respect to the Public Enforcement

Act.

9 § 9:2800.29(B)(3)(a) (emphasis added).

10 §§ 9:2800.29(D)(8)(a),(b).

the material is 18 years of age or older by requiring the person to “[p]rovide a digitized

identification card as defined in R.S. 51:3211.”11 Alternatively, a commercial entity may

require “the person attempting to access the [harmful] material to comply with a

commercial age verification system that verifies” either through “[g]overnment-issued

identification” or “[a]ny commercially reasonable method that relies on public or private

transactional data to verify the age of the person attempting to access the information is

at least eighteen years of age or older.”12

PROCEDURAL BACKGROUND

On June 20, 2023, Plaintiffs filed their first complaint seeking declaratory and

injunctive relief against Secretary LeBlanc, Commissioner Dardenne, and AG Landry. At

an August 17, 2023, status conference,13 the Court gave Plaintiffs leave to file an Amended

Complaint. Plaintiffs did so on August 25, 2023.14

Plaintiffs are a group of website operators, online content creators, and individuals

who claim they each will be “substantial[ly] burden[ed]” by the Act’s requirement that

“websites . . . age-verify every internet user before providing access to non-obscene

material that meets the State’s murky definition of ‘material harmful to minors.’”15

Plaintiffs assert a variety of federal claims under the First and Fourteenth

Amendments, the Commerce Clause, and the Supremacy Clause.16 Plaintiffs also allege

11 § 9:2800.29(D)(8)(a). La. R.S. 51:3211(2) defines a “digitized identification card” as “a data file available

on any mobile device which has connectivity to the internet” that is provided “through a state-approved

application that allows the mobile device to download the data file from the Department of Public Safety

and Corrections or an authorized representative of the Department of Public Safety and Corrections.” The

data file must “contain[] all of the data elements visible on the face and back of a license or identification

card and display[] the current status of the license or identification card.”

12 § 9:2800.29(D)(8)(b).

13 R. Doc. 28.

14 R. Doc. 31.

15 Id. at pp. 1–2, ¶¶ 1–3.

16 Id. at pp. 38–43.

the Act “stand[s] in direct conflict with [47 U.S.C. § 230], which expressly preempts

inconsistent state laws.”17 Plaintiffs assert the Act “[has] placed [them] in justified fear

that, if they continue to exercise their constitutional rights, they will haled into

court . . . by . . . any host of individuals alleging harm.”18 Plaintiffs believe they have “no

adequate remedy at law.”19 Instead, they seek declaratory relief against Defendants under

the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, and injunctive relief under

42 U.S.C. §§ 1983 and 1988.20 Plaintiffs seek a declaration that the Act violates the

Constitution and federal law21 and an “injunction precluding” AG Landry, Secretary

LeBlanc, and Commissioner Dardenne from “participating in the enforcement” of the

Act.22

Defendants filed this Motion to Dismiss on September 4, 2023,23 asking the Court

to “dismiss for lack of subject-matter jurisdiction all [of Plaintiffs’] claims and requests

for relief” under the Act.24 Defendants argue that Plaintiffs’ claims are barred by sovereign

immunity and also fail for lack of standing.25

Plaintiffs filed their response in opposition on September 11, 2023.26 Defendants

replied on September 14, 2023.27

17 Id. at p. 36, ¶ 85.

18 Id., ¶ 86.

19 Id.

20 Id. at p. 38.

21 Id. at p. 43, ¶¶ 116–17.

22 Id. at pp. 36–37, ¶¶ 87–89.

23 R. Doc. 35.

24 Id. at p. 1.

25 R. Doc. 35-1, pp. 2–3.

26 R. Doc. 36.

27 R. Doc. 41.

LEGAL STANDARD

“Federal courts are courts of limited jurisdiction; without jurisdiction conferred by

statute, they lack the power to adjudicate claims.”28 A motion to dismiss under Federal

Rules of Civil Procedure 12(b)(1) challenges a federal court’s subject-matter jurisdiction.29

Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction

when the court lacks the statutory or constitutional power to adjudicate the case.”30 The

party asserting jurisdiction bears the burden of establishing that the district court

possesses subject-matter jurisdiction.31 The district court may base its determination as

to its subject matter jurisdiction on: “(1) the complaint alone; (2) the complaint

supplemented by undisputed facts evidenced in the record; or (3) the complaint

supplemented by undisputed facts plus the court's resolution of disputed facts.”32 The

district court may consider facts contained in affidavits or sworn declarations.33

LAW AND ANALYSIS

“Federal courts may analyze arguments that question our jurisdiction in any

order.”34 The Court first considers Defendants’ arguments based on the sovereign

immunity provided by the Eleventh Amendment.

28 In re FEMA Trailer Formaldehyde Prods. Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th

Cir. 2012).

29 Fed. R. Civ. P. 12(b)(1).

30 Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (cleaned

up).

31 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

32 Id.

33 See Williamson v. Tucker, 645 F.2d 404, 411 (5th Cir.1981).

34 NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 393 (5th Cir. 2015).

I. Plaintiffs have not established the requirements of the Ex Parte

Young exception to Eleventh Amendment sovereign immunity.

Plaintiffs have sued Secretary LeBlanc, Commissioner Dardenne, and AG Landry

in their official capacities as state officials.35 Accordingly, this is “effectively [a] suit[]”

against the State of Louisiana.36 As a general rule, the Eleventh Amendment bars lawsuits,

like this one, “against nonconsenting states in federal court.”37 In 1908, the Supreme

Court established an exception to Eleventh Amendment sovereign immunity in Ex Parte

Young.38 This exception permits private parties, like the Plaintiffs in this case, to

challenge state laws through “suits for injunctive or declaratory relief against individual

state officials acting in violation of federal law” 39 In this case, Plaintiffs have pleaded the

general elements of an action that fits within the exception to sovereign immunity

provided by Ex Parte Young: (1) they seek both injunctive and declaratory relief;40 (2) the

named Defendants are individual state officials,41 and (3) Plaintiffs allege Defendants, in

support of the Act, are violating federal law.42

Ex Parte Young held that for the exception to apply, any state official named as a

defendant must, “by virtue of his office,” be “clothed with some duty in regard to the

enforcement of the laws of the state”—including and especially the allegedly

“unconstitutional act.”43 Importantly, “[t]he text of the challenged law need not actually

state the official’s duty to enforce it, although such a statement may make that duty

35 R. Doc. 31 at p. 1.

36 City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019).

37 Id. (citing Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011)).

38 209 U.S. 123 (1908).

39 Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013).

40 See R. Doc. 31 at p. 4.

41 Id. at p. 1.

42 Id. at p. 4.

43 209 U.S. at 156, 158.

clearer.”44 Indeed, when the challenged state law specifies the official charged with its

enforcement, no further exploration is needed to determine that official has a sufficient

“connection with the enforcement” of that law.45 When the challenged law does not

specify an official responsible for its enforcement, “some connection with the

enforcement of the act” may still be found in “the general law.”46 Whether the source of

that “connection” is in the challenged statute or in other legislation, if the official

“threaten[s] and [is] about to commence proceedings . . . to enforce . . . [the]

unconstitutional act,” a federal court may assert jurisdiction despite the Eleventh

Amendment.47

A. Ex Parte Young requires a state official have a particular duty to

enforce a challenged law and the willingness to enforce it.

The Fifth Circuit has consistently applied Ex Parte Young’s holding establishing a

two-part test that requires a defendant state official to have “(1) the ability . . . to enforce

the statute at issue under his statutory or constitutional powers, and (2) the demonstrated

willingness . . . to enforce the statute.”48 This distillation of Ex Parte Young was first

explained by Judge Jolly, writing for a non-binding seven-judge plurality in 2001’s

Okpalobi v. Foster,49 in which the Louisiana governor and attorney general invoked

sovereign immunity as a defense to a suit brought by providers of abortion services.50 The

challenged law, Louisiana’s “Act 825” of 1997,51 was a private-right-of-action statute like

44 City of Austin, 943 F.3d at 998 (citing Ex Parte Young, 209 U.S. at 157).

45 See id.

46 Ex Parte Young, 209 U.S. at 157.

47 Id. at 156.

48 Okpalobi v. Foster, 244 F.3d 405, 417 (5th Cir.2001) (en banc) (plurality opinion).

49 244 F.3d 405 (5th Cir.2001) (en banc).

50 Id. at 409. Though Judge Jolly’s opinion did not garner majority support, the Court notes that only three

judges joined in the in an opinion written by Judge Parker, expressly dissenting from the plurality’s opinion

as to Ex Parte Young. Id. at 408 n.*

51 La. R.S. 9:2800.12(A) (1999).

the Act in this case; it provided “women who undergo an abortion a private tort remedy

against the doctors who perform the abortion.”52 Plaintiffs argued Act 825 was an

unconstitutional “undue burden” on the right to an abortion.53 Comparing Act 825 to the

statutory and constitutional duties of the defendant state officials, the plurality reasoned

the defendants had “no ability to enforce Act 825, a purely private tort statute, which can

be invoked only by private litigants.”54 The plurality ruled “that the Ex [P]arte Young

exception to the Eleventh Amendment [could not] be applied” under those facts.55

In a subsequent 2010 case also concerning abortion care, K.P. v. LeBlanc,56

abortion providers challenged the constitutionality of a state statute57 excluding abortion-

related claims from coverage provided by a state-run medical compensation fund akin to

malpractice insurance.58 Plaintiffs sued members of Louisiana’s Patient Compensation

Fund Oversight Board, which had refused to pay from the fund when a patient brought a

claim against her abortion provider. Again applying Ex Parte Young’s two-part test, the

K.P. panel summarized the defendants’ duties as beginning with “deciding whether to

have a medical review panel consider abortion claims and end[ing] with deciding whether

to pay them.”59 By this standard, it was obvious to the court the Board was willing to

enforce the law that excluded abortion-related claims from fund usage. Because this

prong of Ex Parte Young’s two-part test was met, the panel focused on whether the Board

had the duty to enforce the statute, holding that it did: the relevant statutory scheme

52 Okpalobi, 244 F.3d at 417.

53 See Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833 (1992), overruled by Dobbs v. Jackson

Women's Health Org., 142 S. Ct. 2228 (2022).

54 Okpalobi, 244 F.3d at 422.

55 Id. at 429. A majority of the en banc court, id. at 408 n.*, joined the holding that Plaintiffs had no Article

III standing and thus “plaintiffs [had] no case or controversy with the[] defendants.” Id.

56 627 F.3d 115 (5th Cir. 2010).

57 La. R.S. 9:2800.12(C)(2) (2010).

58 K.P., 627 F.3d at 119.

59 Id. at 125.

“implicitly require[d] the Board to differentiate between claims allowable and not

allowable” under the challenged law. Because state law imposed a duty to enforce and the

willingness to enforce was apparent, the “suit [was] not barred by the Eleventh

Amendment.”60

In 2014’s Morris v. Livingston,61 a Fifth Circuit panel considered whether Ex Parte

Young would permit a Texas inmate’s § 1983 claims against the governor and the director

of the Texas Department of Criminal Justice (“TDCJ”).62 The plaintiff challenged a Texas

law that required inmates to “pay a $100 annual health care services fee” if they received

medical treatment in the state’s prisons.63 Once again, the court asked whether the

defendant officials had “the particular duty to enforce the statute in question and a

demonstrated willingness to exercise that duty.”64 Because the relevant Texas laws made

it clear that TDCJ was responsible for the enforcement and administration of the health

services fee, and because TDCJ had clearly enforced it, evincing an obvious willingness to

enforce, the court held that Ex Parte Young permitted the claims against TDCJ’s director.

By contrast, the governor had no particular duty to enforce the fee, and the court affirmed

his dismissal on sovereign immunity grounds.65

In Air Evac EMS, Inc. v. Texas, Department of Insurance, Division of Workers'

Compensation,66 decided in 2017, an air-ambulance company sued the Texas

commissioner of insurance and the Texas commissioner of workers’ compensation to

challenge a state workers’ compensation statute setting a maximum reimbursement for

60 Id.

61 739 F.3d 740 (5th Cir. 2014).

62 Id. at 742.

63 Id.

64 Id. at 746 (quoting Okpalobi, 244 F.3d at 414–15).

65 Id. at 746.

66 851 F.3d 507 (5th Cir. 2017).

medical services, like air evacuation.67 The panel again echoed Ex Parte Young’s two-part

requirement that “defendants have some connection to the state law’s enforcement and

threaten to exercise that authority”68 and found that based on the defendants’ “rate-

setting authority” and administrative duties to “arbitrat[e] fee disputes,” defendants

“effectively ensure[d] the maximum-reimbursement scheme [was] enforced from start to

finish.”69 Thus, the panel held that the Ex Parte Young exception applied to permit the

suit.70

In a 2020 COVID-era challenge to Texas mail-in ballot requirements, the Fifth

Circuit panel in Texas Democratic Party v. Abbott reasoned that although “the precise

scope of the requirement for a connection has not been defined, a plaintiff [invoking Ex

Parte Young] at least must show the defendant has ‘the particular duty to enforce the

statute in question and a demonstrated willingness to exercise that duty.’”71 After

conducting a “provision-by-provision analysis” to determine whether the Texas secretary

of state and attorney general had “the requirement connection to the enforcement of [the

challenged law],” the panel held that the “the Secretary ha[d] at least a scintilla of

enforcement authority” with respect to the challenged law.72 The secretary had the

“specific and relevant duty to design the application form for mail-in ballots” and to

“provide that form to local authorities” and others who requested it.73 Moreover, “local

authorities [were] required to use the Secretary’s absentee-ballot form outside of

emergency situations,” so the secretary had “the authority to compel or constrain local

67 Id. at 510–13.

68 Id. at 517 (citing Ex Parte Young, 209 U.S. at 157) (cleaned up).

69 Id. at 519.

70 Id.

71 Texas Democratic Party v. Abbott, 978 F.3d 168, 179 (5th Cir. 2020) (quoting Morris, 739 F.3d at 746).

72 Id. at 180.

73 Id. at 179 (citations omitted).

officials based on actions she [took] as to the application form.”74 As a result, Ex Parte

Young applied to permit the suit against the secretary of state.75

However, the attorney general’s broad “duty to enforce and uphold the laws of

Texas” did not constitute a “particular duty” to enforce the challenged law. Although the

attorney general had sent letters to “judges and election officials” reminding them that

fraudulently applying for mail-in voting was a felony, the court found these letters did not

in fact “threaten” or otherwise demonstrate a willingness to enforce the law sufficient to

trigger Ex Parte Young.76 The same outcome applied to the governor, who was “not

statutorily tasked with enforcing the challenged law,”77 and whose actions concerning

elections in the early days of the COVID-19 pandemic were instead “exercises of [his]

emergency powers unrelated to the Election Code.”78

In 2022, a three-judge panel of the Fifth Circuit issued decisions on three separate

challenges to Texas voting laws, each brought against the Texas secretary of state. Each

opinion, issued on the same day, applied the two-part Ex Parte Young test.

In Richardson v. Flores,79 Texas voters sued the secretary of state in a challenge to

the constitutionality of Texas’s signature verification process for mail-in ballots.80 In a

relatively brief opinion, the panel reasoned that Ex Parte Young did not apply because

the first prong—a particular duty to enforce the statute in question—was not satisfied. The

panel ruled that “it is local election officials, not the Secretary, who verify voters’

74 Id. at 180 (emphasis added) (citations omitted).

75 Id.

76 Id. at 181.

77 Id. at 180.

78 Id.

79 Richardson v. Flores, 28 F.4th 649 (5th Cir. 2022).

80 Id. at 652. The voters also sued local officials seeking similar relief, but the district court issued a detailed

injunction against only the secretary of state. Richardson v. Hancock, et al., 485 F.Supp.3d 744, 812 (W.D.

Tex. 2020).

signatures [on mail-in ballots] and notify voters of a mismatch.”81 In turn, the court also

explained that the secretary’s other duties related to elections and ballots were the more

general duties that did not amount to a particular duty to enforce the statute in question.82

No analysis of the second prong, the secretary’s willingness to enforce the non-existent

duty, was needed to hold that sovereign immunity barred the claims against the secretary

of state.

In Lewis v. Scott,83 Texas voters and voting rights groups challenged various

provisions of Texas’s vote-by-mail scheme in light of the challenges posed by the COVID-

19 pandemic. As in Richardson, the panel, applying Ex Parte Young’s two-part test, ruled

that the secretary of state did not have the particular duty to enforce the various

challenged laws; those respective duties fell to the early voting clerk, local election

officials, and local prosecutors.84 The duties identified by the voters fell under the

secretary’s “general duties” as the “chief election officer” who, for example, had a duty to

“assist and advise” election officials and “take appropriate action to protect voting

rights.”85 The court found the actions cited by plaintiffs failed to show enforcement of any

of the challenged provisions.86

In the third of the companion Texas election cases, Texas Alliance for Retired

Americans v. Scott,87 civic and political organizations sued the secretary of state

challenging the constitutionality of Texas’s elimination of straight-ticket voting.88 The

81 Richardson, 28 F.4th at 654 (quotation omitted).

82 Id.

83 28 F.4th 659 (5th Cir. 2022).

84 Id. at 663–64.

85 Id. at 664.

86 Id. at 664 n.8.

87 Texas All. for Retired Americans v. Scott, 28 F.4th 669 (5th Cir. 2022).

88 Id. at 670.

panel relied on Ex Parte Young’s holding that a state official “must have the particular

duty to enforce the statute in question and a demonstrated willingness to exercise that

duty.”89 The elimination of straight-ticket voting had been effected by repealing a law that

“required that a square for straight-ticket voting shall be printed to the left of each

political party’s name.”90 But it was local officials—a county clerk, county party chair, city

secretary, or other local official—who had the particular duty to print the ballots.91

Similarly, the secretary’s other “responsibilities” for voter education, coordination with

local officials, and the design of write-in and provisional ballots—as opposed to in-person

ballots—were not particular duties related to enforcing the challenged law repealing

straight-ticket voting.92 The court did not reach the issue of whether the secretary clearly

had a willingness to enforce the statute. Ex Parte Young did not allow the plaintiffs to

overcome sovereign immunity.93

Lastly, Ostrewich v. Tatum,94 decided this year, once more examined whether

defendant state officials had a “particular duty to enforce the statute in question and a

demonstrated willingness to exercise that duty.”95 A Texas voter sued the Texas attorney

general, the Texas secretary of state, and local county officials in a First Amendment

challenge to a law that criminalized political expression within polling places.96 The

Ostrewich panel held that neither the Texas secretary of state nor the Texas attorney

general had a particular duty sufficient to satisfy Ex Parte Young’s first requirement.

89 Id. at 672. (quotation omitted).

90 Id. at 672 (citing Tex. Elec. Code § 52.071(a) (repealed eff. Sept. 1, 2020)) (cleaned up).

91 Id. at 673.

92 Id.

93 Id.

94 Ostrewich v. Tatum, 72 F.4th 94 (5th Cir. 2023).

95 Id. at 100 (quotation omitted).

96 Id. at 97.

Though the secretary of state was responsible for training local presiding judges to enforce

election laws, like the one in question, the particular duty to enforce those laws fell to the

judges. Similarly, it was local prosecutors, not the state’s attorney general, who had the

ultimate authority to prosecute election-related offenses.97 As a result, Ex Parte Young

did not permit the suit to proceed against the attorney general or secretary of state.

It is clear that in the Fifth Circuit, the test for an exception to Eleventh Amendment

sovereign immunity is the two-part test first articulated in Ex Parte Young: a defendant

state official must have a particular duty to enforce a challenged statute and demonstrate

a willingness to enforce that statute.

B. No defendant has a particular duty to enforce the Act or a

demonstrated willingness to enforce it.

The Court examines Defendant’s Motion to Dismiss person-by-person and claim-by-

claim based on the principles set forth above.

1. Jay Dardenne, Commissioner of the Louisiana Division of

Administration, does not have a particular duty to enforce the

Act or a demonstrated willingness to enforce it.

Plaintiffs seek to prohibit Commissioner Dardenne from participating in the

enforcement of the Act. They allege “Commissioner Dardenne has some connection with

the enforcement of [the Act]” because the state division he leads administers LA Wallet

and he has recognized “LA Wallet as [Louisiana’s] only qualifying ‘digitized identification

card.’”98 Plaintiffs allege LA Wallet is administered by the Louisiana Division of

Administration.99 Plaintiffs allege, and Defendants do not contest, that only LA Wallet

satisfies the Act’s definition of “a digitized identification card as defined in R.S. §

97 Id. at 101 (citing relevant Texas case law and statutes).

98 R. Doc. 31 at p. 12, ¶ 29.

99 Id. at p. 11, ¶ 27.

51:3211.”100 Relying on Judge Dennis’s concurrence in K.P.,101 Plaintiffs argue

Commissioner Dardenne “gives effect to” the Act through his oversight of LA Wallet, and

this effectuation means Commissioner Dardenne enforces the Act.102

To support their claims against Commissioner Dardenne, Plaintiffs argue that LA

Wallet is the state’s “one and only . . . qualifying ‘digitized identification card’” as

described in the Act.103 However, even if this is undisputed, the Plaintiffs have not met

their burden of providing Commissioner Dardenne has a particular duty to enforce the

Act.104

The best argument that Commissioner Dardenne in effect enforces the Act would

be to show that LA Wallet is, in reality, the only acceptable age verification method to

comply with the Act and that Commissioner Dardenne does not permit commercial

entities and individuals providing material the Act defines as “harmful to minors,” such

as the Plaintiffs, to use it. Plaintiffs do not make this argument and, if they did, it would

not be successful. In a declaration, Michael Dupree, Director of the Public Protection

Division of the Louisiana Department of Justice, stated that he knows of at least three

commercial entities that use LA Wallet to comply with the age-verification requirements

of the Act through the use of AllPassTrust.105 Plaintiffs do not dispute this.106

Plaintiffs do allege Commissioner Dardenne enforces the Act because, even if

commercial entities such as the Plaintiffs are allowed to use LA Wallet, LA Wallet is the

100 Id.; La. R.S. § 9:2800.29(D)(2). See also note 11, supra.

101 627 F.3d at 127 (Dennis, J., concurring).

102 R. Doc. 36 at pp. 16–17.

103 R. Doc. 31 at p. 11, ¶ 27; R. Doc. 36 at pp. 12–13. Cf. R. Doc. 35-1 at p. 18.

104 R. Doc. 31 at p. 11, ¶¶ 28-30.

105 Delcl. of Michael Dupree, R. Doc. 47-2 at p. 2, ¶ 5. AllPassTrust is an age-verification compliance

platform. On its website, AllPassTrust represents that it works with LA Wallet. AllPassTrust,

https://www.allpasstrust.com/en (last visited Oct. 2, 2023) [https://perma.cc/Y8GS-L86G].

106 See R. Doc. 48.

only qualifying age-verification method that complies with § 9:2800(D)(8) of the Act.107

Neither is this argument successful. The Act makes clear that, apart from verifying a user’s

age through a digitized identification card, a commercial entity may comply by using

another “commercial age verification system” that verifies a user’s age through a

“[g]overnment-issued identification” or any other “commercially reasonable method.”108

In his declaration, Director Dupree listed fourteen “vendors that offer age verification

services that apparently do not require LA Wallet and that a commercial entity may

nonetheless use to satisfy” the age verification requirements of the Act.109 In a response,110

Plaintiffs provided a declaration from Dominic Ford,111 managing and sole member of

Plaintiff JFF Publications, LLC. Mr. Ford states that one of the vendors listed by Director

Dupree, Stripe, does not “do business” with “adult businesses.”112 This does not negate

Director Dupree’s general point that there are many other options beyond LA Wallet

available to satisfy the age-verification requirements of the Act.

The Fifth Circuit cases finding a particular duty to enforce under the two-part Ex

Parte Young test all involved a much clearer duty to enforce the challenged law than

Plaintiffs establish for Commissioner Dardenne. The defendant board members in K.P.

were the final arbiters of whether a claim was paid or not from the medical compensation

fund.113 The defendants in Air Evac set the upper limit on reimbursement rates under the

challenged statute and ensured the maximum-reimbursement provision was enforced

107 R. Doc. 31 at pp. 11–12, ¶ 28.

108 § 9:2800.29(D)(8)

109 Decl. of Michael Dupree, R. Doc. 47-2 at pp. 3–4.

110 R. Doc. 48.

111 Decl. of Dominic Ford, R. Doc. 48-2.

112 Id. at p. 3, ¶ 30.

113 K.P., 627 F.3d at 125.

from start to finish.114 The secretary of state in Texas Democratic Party designed the mail-

in ballot form at the center of the constitutional challenge and furnished it to local officials

who were required to use it.115

The strength of Commissioner Dardenne’s connection to enforcement of the Act

does not approach the level of those scenarios described above. Plaintiffs allege

Commissioner Dardenne enforces the Act because, even if they are allowed to use LA

Wallet, the fact that it is the only qualifying “digitized identification card” means the

operation of the Act is predicated upon the exclusive use of such a card.116 Quite obviously,

the multiple options for age-verification compliance defeat Plaintiff’s argument that

Commissioner Dardenne has a particular duty to enforce the Act solely because his

division administers LA Wallet.

Though Ex Parte Young did not provide a precise definition of enforcement,117 the

K.P. court, relying on an alternative definition from Webster’s dictionary, observed that

“[e]nforcement typically involves compulsion or constraint.” This “compulsion or

constraint” definition of enforcement has carried the day in this circuit’s Ex Parte Young

caselaw since. In 2017,118 2019,119 2020,120 twice in 2022,121 and again this year,122 panels

of the Fifth Circuit followed K.P. and looked for some degree of “compulsion or

114 Air Evac, 851 F.3d at 514.

115 Texas Democratic Party, 978 F.3d at 179–180.

116 R. Doc. 31 at pp. 11–12, ¶ 28.

117 See Ex Parte Young, 209 U.S. at 156 (explaining that an official charged with enforcement “may

threaten . . . proceedings, either of a civil or criminal nature, to enforce against parties affected an

unconstitutional act”).

118 Air Evac, 851 F.3d at 519.

119 City of Austin, 943 F.3d at 1002.

120 Texas Democratic Party, 978 F.3d at 180.

121 Richardson, 28 F.4th at 655; Texas All. for Retired Americans, 28 F.4th at 673.

122 Ostrewich, 72 F.4th at 101.

constraint” in the duties of a state official when ruling on Ex Parte Young exceptions to

defenses of sovereign immunity.

The overwhelming weight of authority from the Fifth Circuit, which this Court is

bound to follow, provides that “enforcement” means “compulsion or constraint.” Even

were this Court to apply the “give effect to” definition of enforcement, Commissioner

Dardenne can hardly be said to give effect to a statute requiring age verification when

there are, counting LA Wallet, as many as fifteen options for compliance.123 He does not

constrain the options that providers have to comply with the Act. He does not compel (nor

do Plaintiffs argue as such) providers to use LA Wallet and forgo other options.

Plaintiffs do not allege Commissioner Dardenne has any willingness to enforce the

Act apart from his willingness to administer his division and LA Wallet, which is not

sufficient. The claims against Commissioner Dardenne fail both prongs of the Ex Parte

Young two-part test. Sovereign immunity bars the claims against Commissioner

Dardenne.

2. James LeBlanc, Secretary of the Louisiana Department of

Public Safety and Corrections, does not have a particular duty

to enforce the act or a demonstrated willingness to enforce it.

Plaintiffs also seek to prohibit Secretary LeBlanc from participating in the

enforcement of the Act. Plaintiffs allege “Secretary LeBlanc has some connection with the

enforcement of [the Act]” because the department he heads operates the Office of Motor

Vehicles (OMV) database, which contains data without which “LA Wallet simply couldn’t

function.”124 The essence of this argument is the same as Plaintiffs’ argument with respect

123 See notes 109–112, supra, and accompanying text. Accepting Plaintiffs’ evidence that Stripe is not a

viable option, the number of options may still be fourteen, including LA Wallet. See Decl. of Dominic Ford,

R. Doc. 48-2 at p. 3, ¶ 30.

124 R. Doc. 31 at p. 14, ¶ 32.

to Commissioner Dardenne, namely, that LA Wallet is the only qualifying age-verification

method that complies with § 9:2800(D)(8) of the Act. Thus, Plaintiffs argue, Secretary

LeBlanc’s connection to the data needed to operate LA Wallet constitutes a particular duty

to enforce the Act.125

This theory was not sufficient to establish any particular duty of enforcement for

Commissioner Dardenne.126 A fortiori, it fails with respect to Secretary LeBlanc, who does

not even administer LA Wallet, but merely oversees a department that operates a dataset

used by LA Wallet. Plaintiffs argue, in total, that Secretary LeBlanc enforces the Act

because he is the head of a department that oversees a dataset used by LA Wallet and that

LA Wallet may be used to comply with the Act. This connection between the Act and

Secretary LeBlanc’s general duties is even more attenuated than Commissioner

Dardenne’s. Plaintiffs make no argument that Secretary LeBlanc has a willingness to

enforce the Act other than his willingness to administer his responsibilities with respect

to his department. Plaintiffs’ claims against Secretary LeBlanc do not satisfy Ex Parte

Young’s two-part test. Sovereign immunity bars Plaintiffs’ claims against Secretary

LeBlanc.

3. Jeffrey Landry, Attorney General of Louisiana, does not have

a particular duty to enforce the Act.

Plaintiffs seek an injunction against AG Landry precluding his participation in the

enforcement of the Act.127 Plaintiffs allege AG Landry has “some connection to the

enforcement” of the Act because “he is responsible for the ‘assertion or protection of any

right or interest of the state of Louisiana,’ and for the legal representation of governmental

125 Id.

126 See Part B.1, supra.

127 R. Doc. 31 at p. 36, ¶ 89.

officers, agencies, boards, of commissions.’”128 Plaintiffs also allege a connection based on

AG Landry’s discretionary responsibility to defend the interests of the state and the Act’s

constitutionality.129

In sum, Plaintiffs’ theory of AG Landry’s duty to enforce the Act hinges on “merely

[his] duty to see that the laws of the state are implemented.”130 Even accepting Plaintiffs’

argument that AG Landry “has manifested his intention to ‘represent or supervise the

representation’ of the State’s interest in any forthcoming litigation brought under” the

Act,131 this is no more than a willingness to exercise his general duties as attorney general

of the state. This is the opposite of the “particular duty” required by Ex Parte Young. The

Fifth Circuit has consistently held that general duties cannot provide the particular duty

of enforcement required to overcome sovereign immunity.132 For this reason, sovereign

immunity bars Plaintiffs’ claims against AG Landry with respect to the Act.

II. Plaintiffs do not have Article III standing to bring their claims.

“Article III of the United States Constitution limits the jurisdiction of federal courts

to actual ‘Cases’ and ‘Controversies.’”133 “One element of the case-or-controversy

requirement is that plaintiffs must establish that they have standing to sue.”134 Because

standing is a matter of subject-matter jurisdiction, a motion to dismiss for lack of standing

is properly brought pursuant to Federal Rule of Civil Procedure 12(b)(1).135 Federal courts

must dismiss an action if, “at any time,” it is determined that subject-matter jurisdiction

128 Id. at p. 16, ¶ 36 (citing La. R.S. 36:704(E)).

129 Id.

130 Morris, 739 F.3d at 746 (citing Okpalobi, 244 F.3d at 405).

131 R. Doc. 31 at p. 16, ¶ 36.

132 E.g., Morris, 739 F.3d. at 746; Texas Democratic Party, 978 F.3d at 180.

133 Crane v. Johnson, 783 F.3d 244, 251 (5th Cir. 2015) (citing U.S. CONST., art. III, § 2).

134 Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013) (cleaned up).

135 See Fed. R. Civ. P. 12(b)(1). A motion to dismiss for lack of standing may be either ‘facial’ or ‘factual.’”

Superior MRI Servs., Inc. v. Alliance Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir. 2015) (citing

Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981)).

is lacking.136 As the party invoking federal jurisdiction, the plaintiff constantly bears the

burden of establishing the jurisdictional requirements, including standing.137

“To establish Article III standing, a plaintiff must show (1) an ‘injury in fact,’ (2) a

sufficient ‘causal connection between the injury and the conduct complained of,’ and (3)

a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’”138 The first

prong focuses on whether the plaintiff suffered harm, the second focuses on who inflicted

that harm, and the third focuses on whether a favorable decision will likely alleviate that

harm.139 “If any one of these three elements—injury, causation, and redressability—is

absent, plaintiffs have no standing in federal court under Article III of the constitution to

assert their claim.”140

In this case, Plaintiffs fail to establish the causation and redressability required for

standing.141 Broadly, Plaintiffs allege that the Act chills and infringes on speech,

“burden[s] interstate commerce,” and violates other federal laws. The engine of the Act’s

operation, Plaintiffs argue, is the Act’s private-right-of-action provision: the burden on

Plaintiffs’ speech and commerce is reinforced by their “justified fear that . . . they will be

haled into court . . . by any number of private individuals alleging harm” under the Act.142

136 See Fed. R. Civ. P. 12(h)(3).

137 See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citations omitted); Crane, 783 F.3d at

251.

138 Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (alteration in original) (quoting Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560–61 (1992)).

139 See Lujan, 504 U.S. at 560–61.

140 Okpalobi, 244 F.3d at 425.

141 “Article III standing analysis and Ex [P]arte Young analysis significantly overlap.” City of Austin, 943

F.3d at 1002 (5th Cir.2019) (quotation omitted). A threat of enforcement from a state official with a

particular duty to do so sufficiently constitutes a “threatened injury” for Article III standing. Id. (citing

Russell v. Lundergan-Grimes, 784 F.3d 1037, 1047 (6th Cir. 2015)). The state official is the cause of that

injury, and enjoining his enforcement would redress the harm.

142 R. Doc. 31 at p. 36, ¶ 86.

Nowhere do Plaintiffs show how Defendants are the cause of the Act’s alleged harms, and

the remedies Plaintiffs seek would not redress their alleged injuries.

“Plaintiffs seek an injunction against all Defendants precluding their participation

in the enforcement” of the Act.143 Based on Plaintiffs’ theories about each of the

Defendants’ roles in enforcement,144 they seek an injunction prohibiting: (1)

Commissioner Dardenne from operating LA Wallet, (2) Secretary LeBlanc from providing

the OMV data to be used in LA Wallet, and (3) AG Landry from exercising his general

duty to defend the Act’s constitutionality. Were such an injunction issued, any individual

could still bring a suit for damages against a provider.145 This injunctive relief would not

redress Plaintiffs’ “justified fear” that “they will be haled into court.”146 If the threat of a

private suit for damages imposes a burden on Plaintiffs’ rights, an injunction against these

three Defendants would not redress that threat. Despite Plaintiffs’ argument otherwise, it

is not the operation of LA Wallet that is the source of their alleged injury; their

redressability argument hinges on their belief that the injunctions would preclude state

officials from “performing functions that are indispensable to [the Act’s] statutory

scheme,”147 but as explained, this is not true. Indeed, “[f]or all practical purposes, the

injunction granted by [this] district court [would be] utterly meaningless.”148

The same applies to Plaintiffs’ prayer for a declaratory judgment that the Act is in

violation of federal law. A declaratory judgment is a “definitive determination of the legal

rights of the parties.”149 Binding any of the Defendants through such a judgment, were

143 Id. at p. 39, ¶ 95.

144 See id. at pp. 10–17.

145 See § 9:2800.29(B)(3).

146 R. Doc. 31 at p. 36, ¶ 86.

147 R. Doc. 36 at p. 26–27.

148 Okpalobi, 244 F.3d at 426.

149 Medtronic, Inc. v. Mirowski Family Ventures, LLC, 571 U.S. 191, 200 (2014) (emphasis added) (quoting

Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 241 (1937)).

the Court to have jurisdiction to do so, would not bind any of the private citizens who may

bring a suit under the Act.5° Rather, “proper declaratory judgments . . . have preclusive

effect on a traditional lawsuit that is imminent.”5: Any such declaration against

Commissioner Dardenne, Secretary LeBlanc, or AG Landry would not bind any of those

private citizens who may bring suit under the Act, and the declaration thus would not

provide “redress for the claimed injury resulting from . . . this [allegedly] unconstitutional

statute—that is, the filing and prosecution of a private civil action.”

Because Plaintiffs have not shown how Defendants are the cause of their alleged

injury, and because this Court cannot provide any redress, Plaintiffs lack Article III

standing.

CONCLUSION

The Plaintiffs have failed to meet their burden of establishing that the Ex Parte

Young exception to Eleventh Amendment to sovereign immunity applies to these claims

and that the Plaintiffs have standing to bring them. Plaintiffs’ claims against

Commissioner Dardenne, Secretary LeBlanc, and AG Landry for declaratory and

injunctive relief with respect to the Act are DISMISSED without prejudice.

New Orleans, Louisiana, this 4th day of October, 2023.

SUSIE ORGAN

UNITED STATES DISTRICT JUDGE

150 This is no accident. The Act appears “designed to [be] shield[ed]” from pre-enforcement “judicial

review.” Whole Woman's Health v. Jackson, 595 U.S. 30, 59 (2021) (Roberts, C.J., concurring in part,

dissenting in part).

151 Brackeen v. Haaland, 994 F.3d 249, 448 (5th Cir.2021) (Costa, J., concurring in part and dissenting in

part), affd in part, vacated in part, rev'd in part, 599 U.S. 255 (2023); see also 10B Fed. Prac. & Proc. Civ.

§ 2771 (4th ed.) (“A declaratory judgment is binding on the parties before the court and is claim preclusive

in subsequent proceedings as to the matters declared ....”).

152 Okapalobi, 244. F.3d at 428.

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