Jefferson Parish Firefighters Association v. Louisiana Board of Ethics

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JEFFERSON PARISH FIREFIGHTERS CIVIL ACTION

ASSOCIATION

VERSUS NO. 24-2139

LOUISIANA BOARD OF ETHICS, ET AL. SECTION: D(2)

ORDER AND REASONS

Before the Court are two Motions: the first is a Motion for Preliminary

Injunction filed by Plaintiff Jefferson Parish Firefighters Association, Local 1374 (the

“Union”),1 and the second is a Consolidated Motion to Dismiss and Motion to Stay

Under Pullman Abstention filed by Defendants the Louisiana Board of Ethics (the

“Ethics Board”) and LaKoshia R. Roberts, Jose I. Lavastida, Anne P. Banos, Camille

R. Bryant, Paul Harvey Colomb, Sarah S. Couvillon, Mark A. Ellis, William D.

Grimley, Jacqueline A. Scott, and Alfred W. Speer, all in their official and respective

capacities as members of the Ethics Board (the “Board Members”) (collectively,

“Defendants”).2 After careful consideration of the parties’ memoranda, the record,

and the applicable law, the Court GRANTS in part and DENIES in part

Defendants’ Consolidated Motion to Dismiss and Motion to Stay Under Pullman

Abstention and GRANTS the Union’s Motion for Preliminary Injunction.

1 R. Doc. 4.

2 R. Doc. 22.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Louisiana Civil Service Law requires that municipalities, parishes, and

fire protection districts establish a Civil Service Board, which is responsible for

addressing issues among firefighters, emergency responders, and law enforcement

and their employers.3 One member of the Civil Service Board must “be elected and

appointed from the fire department.”4 In 2017, Craig Burkett (“Mr. Burkett”) was

elected to serve on the Civil Service Board.5 Mr. Burkett is also the Vice President of

the Union.6 The Union is a labor organization for firefighters which collects dues

from its members and has historically paid for its members’ legal representation in

proceedings before the Civil Service Board.7

In 2018, the Civil Service Board inquired to the Ethics Board whether Mr.

Burkett, due to his status as an officer of the Union,—a position for which he receives

a salary—has a duty to recuse himself from matters that the Union brings before the

Civil Service Board.8 On July 23, 2018, the Ethics Board issued an advisory opinion

outlining scenarios in which Mr. Burkett would and would not be required to recuse

himself.9 Relevant to this lawsuit, the Ethics Board issued its Advisory Opinion (the

“2018 Advisory Opinion”) that:

[The] Code of Governmental Ethics prohibits the Union from representing its

members before the Board while Mr. Burkett serves as Vice-President of the

Union and as a member of the Board. La. R.S. 42:1111E prohibits a public

servant or a legal entity of which such public servant is an officer, director,

3 R. Doc. 1 at ¶¶ 4, 23 (citing LA. R.S. § 33:2536(A)).

4 Id. (quoting LA. R.S. § 33:2536(C)(3)(a)(i)).

5 Id. at ¶ 26.

6 Id. at ¶ 25.

7 Id. at ¶ 4.

8 Id. at ¶ 27.

9 R. Doc. 1–2.

trustee, partner, or employee from receiving any thing of economic value for

assisting a person in a transaction with the agency of the public servant . . . .

Because the Union receives payment of dues, in part, for its representation of

its members before the Board, the Union is prohibited from representing its

members before the Board while Mr. Burkett serves as Vice-President.10

In December 2019, the Ethics Board informed the Union that the Ethics Board

was conducting a confidential investigation into whether the Union had violated

Louisiana Revised Statute 42:1111(E) by assisting its members in matters before the

Civil Service Board while Mr. Burkett served as a member of the Civil Service Board

and as an officer of the Union.11 On June 9, 2020, the Union filed a Petition for

Declaratory Judgment, Temporary Restraining Order, Preliminary Injunction, and

Permanent Injunction against the Ethics Board in the 19th Judicial District Court

for the Parish of East Baton Rouge, State of Louisiana, alleging that the Ethics Board

violated the United States and Louisiana Constitutions through its investigation into

a matter that is constitutionally protected and statutorily required.12 The Union

requested that the state court enjoin the Ethics Board from continuing its

investigation, filing charges, or taking enforcement action against the Union and that

it declare that the Union is not prohibited by the Ethics Code from providing a legal

defense for its members in hearings before the Civil Service Board while a member

of the Union sits on the Civil Service Board.13 On August 1, 2022, the Union filed a

10 Id.

11 R. Doc. 1–4. Many of the facts relevant to the Union in the state court litigation also pertain to Mr.

Burkett. However, because Mr. Burkett is not a party to this lawsuit, the Court limits its recitation

of the factual background to the Union except in cases where facts pertaining to Mr. Burkett are

relevant.

12 R. Doc. 1–6 at 12.

13 Id. at ¶¶ 49, 73.

motion for summary judgment, which was denied.14 The Union appealed, and the

appeal was denied on March 8, 2023.15 The Union contends that the state court case

remains pending.16

On May 22, 2023, approximately two months after the denial of its appeal in

the state court matter, the Union filed a new application for a declaratory opinion

with the Ethics Board concerning whether the Union could pay for legal services for

its members appearing before the Civil Service Board while a Union officer holds a

seat on the Civil Service Board.17 On March 8, 2024, the Ethics Board issued its

Declaratory Opinion (the “2024 Declaratory Opinion”) finding that the Union is

prohibited from paying attorneys to represent members while a Union trustee or

officer is a member of the Civil Service Board.18 The Union appealed the 2024

Declaratory Opinion to Louisiana’s First Circuit Court of Appeal on April 10, 2024,

and that appeal remains pending.19 Mr. Burkett was renominated to the Civil Service

Board in May 2024.20

On August 29, 2024, the Union filed this lawsuit in this Court, arguing that

Defendants’ conduct constitutes a violation of the Union’s rights pursuant to the First

and Fourteenth Amendments to the United States Constitution.21 Specifically, the

14 R. Doc. 1–8 at ¶ 10.

15 Id.

16 R. Doc. 1 at ¶ 45.

17 See R. Doc. 1–1 at 1–2.

18 Id. at 8.

19 R. Doc. 22–6. Louisiana law allows an order by the Board of Ethics to be appealed to Louisiana’s

First Circuit Court of Appeal. LA. R.S. § 42:1142.

20 R. Doc. 1–8 at ¶ 3. Prior to hearing the parties’ arguments at the March 7, 2025 oral argument in

this matter, the Court outlined its understanding of the factual background of this case, and neither

party voiced any substantive objections to the Court’s recitation of the facts.

21 R. Doc. 1 at ¶ 54. The Union also raises a claim for “Injunctive Relief.” Id. at ¶ 61. But as Defendants

point out, injunctive relief is not an independent claim.

Union argues that the 2024 Declaratory Opinion strips the Union “of its

constitutional right to provide an attorney for its members’ representation.”22 The

following day, the Union filed a Motion for Preliminary Injunction seeking to enjoin

the 2024 Declaratory Opinion.23 During the briefing for the Motion for Preliminary

Injunction, Defendants filed a Consolidated Motion to Dismiss and Motion to Stay

Under Pullman Abstention.24 On March 7, 2025, the Court held oral argument as to

both Motions.25

The parties’ positions in favor of and in opposition to dismissal, abstention, and

injunctive relief are intertwined in the briefing of the respective Motions. For the

sake of clarity, the Court outlines the parties’ arguments by the relief they seek rather

than by the briefing and/or Motions in which the arguments were raised. Because

the Court’s analysis must begin with Defendants’ bases for dismissal, particularly

dismissal based on jurisdictional grounds, the Court outlines the arguments

pertaining to Defendants’ Motion to Dismiss first.

A. Arguments Pertaining to Defendants’ Motion to Dismiss

Defendants argue that the Union’s claim is barred by Eleventh Amendment

immunity.26 Alternatively, Defendants argue that the Union’s claim should be

dismissed—or at least stayed—under the Younger and/or Pullman abstention

doctrines due to the ongoing state court litigation.27 Finally, Defendants argue that

22 Id. at ¶¶ 52–53.

23 R. Doc. 4.

24 R. Doc. 22.

25 R. Doc. 37.

26 R. Doc. 22–1 at 11.

27 Id. at 11–14.

the Union’s claim should be dismissed on the merits because the Union has not stated

a viable First Amendment claim. Although Defendants appear to acknowledge that

the Union has a right to pay for the legal representation of its members, Defendants

argue that the State’s compelling interest in maintaining high standards of legal

ethics outweighs the Union’s constitutional right to associate and, thus, to the extent

the 2024 Declaratory Opinion infringes upon the Union’s constitutional rights, it does

not do so impermissibly.28

The Union rejects each cited basis for dismissal, arguing first that Defendants’

Eleventh Amendment immunity argument fails based on the Ex parte Young

doctrine.29 The Union argues that this exception to Eleventh Amendment immunity

applies because the Union seeks injunctive relief against government officials for

violations of federal law.30 The Union further argues that neither abstention doctrine

relied upon by Defendants applies in this case. The Younger abstention doctrine, the

Union argues, applies to only three categories of cases and this case does not fall

within any of those categories.31 The Union further argues that the Pullman

abstention doctrine is inapplicable because that doctrine requires the interpretation

of a state law. There is no state law at issue in this case, according to the Union; the

challenge is solely to the 2024 Declaratory Opinion.32 The Union further argues that

even if it was challenging the state law, Pullman applies only to ambiguous

28 Id. at 15–16.

29 R. Doc. 25 at 9–13.

30 Id. at 12–13.

31 Id. at 14.

32 Id. at 17–21.

statutes.33 Finally, the Union argues that Defendants’ Motion to Dismiss must be

denied as procedurally improper and, alternatively, it must fail on the merits because

the Supreme Court has held that a state’s interest in regulating ethical conduct does

not justify infringement of a union’s First Amendment right to hire an attorney for

its members.34

In their reply, Defendants reject the Union’s assertion that Young applies to

its claim, first as to all Defendants because the Union seeks retroactive relief instead

of prospective relief.35 Defendants further argue that Young has no application

against the Ethics Board, which is a state agency and not a state official.36 As to the

abstention doctrines, Defendants argue that Younger applies here because this case

involves a civil enforcement proceeding akin to a criminal prosecution, which is one

of the limited categories of cases eligible for Younger abstention.37 Defendants argue

that Pullman abstention is likewise applicable because the 2024 Declaratory Opinion

interpreted and applied Section 1111(E) and the First Circuit’s resolution of the

pending appeal has the potential to moot this case.38 Defendants reject the Union’s

argument that their Motion to Dismiss is procedurally improper and note that a

motion to dismiss may be granted “on the basis of a dispositive issue of law.”39 They

then go on to restate their arguments as to the merits of the Union’s claim.40

33 Id.

34 Id. at 23–28.

35 R. Doc. 27 at 5.

36 Id.

37 Id. at 6.

38 Id. at 7–8.

39 Id. at 8 (internal quotations, citation, and emphasis omitted).

40 Id. at 9–10.

B. Arguments Pertaining to the Union’s Request for Injunctive Relief

In support of its request for injunctive relief, the Union argues that the 2024

Declaratory Opinion runs afoul of the Union’s First Amendment right to associate.41

The Union argues that while states may have an interest in regulating professional

ethical conduct such as conflicts of interest, the Supreme Court has rejected the idea

that such an interest is compelling enough to infringe upon a union’s right to hire

legal counsel for its members.42 The Union asserts that it has been irreparably

harmed because it has been prohibited from providing representation to its members

since the Ethics Board issued its 2024 Declaratory Opinion.43 The Union further

argues that the equities weigh in favor of an injunction because the public is not

harmed by firefighters receiving legal representation, nor is it harmed by an

injunction issued for the purpose of ensuring that the Union’s constitutional rights

are protected.44

Defendants insist that the Union has failed to meet any of the elements

required for injunctive relief. Defendants argue that for the same reasons that the

Union allegedly fails to state a claim, it is not likely to succeed on the merits of its

First Amendment right to associate claim.45 Defendants further argue that since

41 R. Doc. 4.

42 R. Doc. 4–1 at 5.

43 Id. at 6 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). Although it is not entirely clear from the

briefing, the Union clarified at oral argument that in 2024, a member whose legal representation

would have been paid for by the Union absent the Opinion appeared before the Civil Service Board.

Counsel for the Union also represented that a second member whose legal representation would have

been paid for by the Union if it were not for the Opinion was scheduled to appear before the Civil

Service Board on March 11, 2025.

44 Id. at 7.

45 R. Doc. 23 at 10–20.

there is no constitutional violation, there is no irreparable injury.46 Finally,

Defendants argue that it is within the public’s interest to uphold Louisiana’s

Governmental Code of Ethics, which protects against conflicts of interest on the part

of public employees.47 This, Defendants argue, combined with the injury the State

would suffer by not being able to enforce its laws, far outweighs the Union’s “desire

to reinstate the unethical financial relationship between the union official and the

Civil Service Board.”48

In its reply, the Union reargues its position as to the first two prongs of the

preliminary injunction analysis.49 It then rejects Defendants’ position that it will be

injured by an injunction, arguing that “there is no perception of a conflict of interest

where, as here, the Ethics Board itself found the Union ‘did not have a substantial

economic interest in disciplinary matters pending before the Civil Service Board.’”50

The Union further argues that Defendants have not pointed to any credible harm

which would outweigh the harm to the Union if the 2024 Declaratory Opinion

remained in effect.51 Finally, the Union argues that Defendants conflate Defendants’

interest with the public’s interest and insists that “[t]he public interest, which is

certainly different from Defendants’ interest, is not served by allowing an

unconstitutional state action to take effect.”52

46 Id. at 20–21.

47 Id. at 21.

48 Id. at 23.

49 R. Doc. 26 at 6–9.

50 Id. at 9 (quoting R. Doc. 1–1 at 7).

51 Id. at 10.

52 Id. (internal citation and quotations omitted) (cleaned up).

II. LEGAL STANDARD

A. Motion to Dismiss Pursuant to Rule 12(b)(1)

A party’s invocation of Eleventh Amendment immunity is analyzed as a

challenge to the federal court’s exercise of federal subject matter jurisdiction.53 “A

case is properly dismissed for lack of subject matter jurisdiction when the court lacks

the statutory or constitutional power to adjudicate the case.”54 The party seeking to

invoke jurisdiction bears the burden of demonstrating its existence.55 “A court can

find that subject matter jurisdiction is lacking based 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.”56 “[T]here is a presumption against subject matter jurisdiction that must be

rebutted by the party bringing an action to federal court.”57

B. Motion to Dismiss Pursuant to Rule 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a defendant can seek dismissal

of a complaint, or any part of it, for failure to state a claim upon which relief may be

granted.58 To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

53 Mahogany v. La. State Sup. Ct., 262 F. App’x 636, 2008 WL 217764, at *1 (5th Cir. Jan. 25, 2008)

(citations omitted); Carver v. Atwood, 18 F.4th 494, 497 (5th Cir. 2021) (“Sovereign immunity is indeed

a jurisdictional bar.”).

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

Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)).

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

56 Enable Miss. River Transmission, LLC v. Nadel & Gussman, 844 F.3d 495, 497 (5th Cir. 2016)

(internal citation and quotations omitted).

57 Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996) (citation omitted).

58 FED. R. CIV. P. 12(b)(6).

on its face.’”59 “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.”60 But, no matter the factual content, a claim is not

plausible if it rests on a legal theory that is not cognizable.61 In ruling on a motion to

dismiss, the Court accepts all well-pleaded facts as true and views those facts in the

light most favorable to the non-moving party.62 The Court, however, is not bound to

accept as true conclusory allegations, unwarranted factual inferences, or legal

conclusions.63 “Dismissal is appropriate when the complaint on its face shows a bar

to relief.”64

In deciding a Rule 12(b)(6) motion to dismiss, a court is generally prohibited

from considering information outside the pleadings but may consider documents

outside of the complaint when they are: (1) attached to the motion; (2) referenced in

the complaint; and (3) central to the plaintiff’s claims.65 A court can also consider

matters of public record and matters subject to judicial notice.66

C. Motion for Preliminary Injunction

Federal Rule of Civil Procedure 65(a) governs the issuance of preliminary

injunctions. To obtain a preliminary injunction, a movant must establish: (1) a

59 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).

60 Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Iqbal, 556 U.S. at 678) (internal

quotations omitted).

61 Shandon Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1032 (5th Cir. 2010).

62 Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).

63 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).

64 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (internal quotation marks omitted).

65 Maloney Gaming Mgmt., LLC v. St. Tammany Par., 456 F. App’x 336, 340–41 (5th Cir. 2011).

66 Servicios Azucareros de Venez., C.A. v. John Deere Thibodaux, Inc., No. 10–CV–4443, 2013 WL

1513406, at *3 (E.D. La. Apr. 11, 2013).

substantial likelihood of success on the merits; (2) a substantial threat of irreparable

injury if the injunction is not issued; (3) that the threatened injury if the injunction

is denied outweighs any harm that will result if the injunction is granted; and (4) that

the grant of an injunction will not disserve the public interest.67 The third and fourth

factors “merge when the Government is the opposing party.”68 “A preliminary

injunction is an extraordinary remedy and should only be granted if the plaintiffs

have clearly carried the burden of persuasion on all . . . requirements.”69

III. ANALYSIS

A. Whether this Matter Is Barred by Sovereign Immunity

Defendants’ initial argument in favor of dismissal is that Eleventh

Amendment immunity bars the Court from exercising subject matter jurisdiction

over this matter.70 In response, the Union argues that this case involves a request

for prospective relief against government officials for violations of federal law and

therefore falls within the Ex parte Young exception to Eleventh Amendment

immunity.

The Eleventh Amendment to the United States Constitution “generally

deprives federal courts of jurisdiction to hear ‘suits by individuals against

67 Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011); Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372

(5th Cir. 2008).

68 Nken v. Holder, 556 U.S. 418, 435 (2009).

69 Planned Parenthood of Hous. & S.E. Tex. v. Sanchez, 403 F.3d 324, 329 (5th Cir. 2005) (quoting

Karaha Bodas Co., LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357,

363 (5th Cir. 2003)) (internal quotation marks omitted).

70 R. Doc. 22–1 at 13.

nonconsenting states’ and suits ‘against state officials in their official capacities.’”71

“Importantly, however, sovereign immunity is not boundless.”72 Relevant to this

case, sovereign immunity cannot be enjoyed if the Ex parte Young doctrine applies.73

The Young doctrine affords a federal court jurisdiction over a matter “against a ‘state

official in his official capacity if the suit seeks prospective relief to redress an ongoing

violation of federal law.’”74 Thus, for Young to apply, “(1) A plaintiff must name

individual state officials as defendants in their official capacities; (2) the plaintiff

must allege an ongoing violation of federal law; and (3) the relief sought must be

properly characterized as prospective.”75 To determine the applicability of Young, a

court must “conduct a simple, ‘straightforward inquiry’” without considering “the

merits of the underlying claims.”76

Defendants argue first that Young is inapplicable because the Union seeks

retroactive relief, as opposed to prospective relief. The Court disagrees. The Union

opposes what it argues is an ongoing violation of its First and Fourteenth Amendment

rights. Specifically, the Union seeks relief from the 2024 Declaratory Opinion issued

and presently enforced by the Ethics Board. Defendants’ position that the Union

seeks retrospective relief is admittedly premised entirely on language in the

71 Planned Parenthood Gulf Coast, Inc. v. Phillips, 24 F.4th 442, 450 (5th Cir. 2022) (citing McCarthy

ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004) (Garza, J., concurring in part and

dissenting in part)).

72 Id.

73 Id. (citing Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004)). While Eleventh Amendment

immunity may also be waived by the State or abrogated by Congress, neither of these exceptions are

relevant in this case. See Sullivan v. Univ. of Tex. Health Sci. Ctr. at Hous. Dental Branch, 217 F.

App’x 391, 2007 WL 519744, at *4 (5th Cir. Feb. 13, 2007).

74 Phillips, 24 F.4th at 450 (quoting Williams ex rel. J.E. v. Reeves, 954 F.3d 729, 736 (5th Cir. 2020)).

75 Green Valley Special Util. Dist. v. City of Schertz, Tex., 969 F.3d 460, 471 (5th Cir. 2020) (internal

quotations and citation omitted) (cleaned up).

76 Id. (internal quotations and citations omitted).

Complaint that the Court “[d]eclar[e] that Defendants unlawfully violated the

Union's rights and privileges secured by the First and Fourteenth Amendments to

the United States Constitution.”77 But the Board Members’ focus on the tense used

by the Union in its Complaint misses the mark. In determining whether relief sought

is truly prospective, courts looks to the substance of the request and not the label.78

While the Union may have used past tense phrasing, the crux of its request is that

the Court prevent the Board Members from enforcing the allegedly unconstitutional

2024 Declaratory Opinion. This is precisely the scenario under which application of

Young applies. The Union seeks prospective relief, and thus, the Union’s claim is not

barred by sovereign immunity on this basis.

Defendants further argue that even if the Union seeks prospective relief,

Young has no application against the Ethics Board because the Union’s claim against

the Ethics Board, as opposed to the individual Board Members, is brought against a

state agency and not government officials.79 In response, the Union cites to Fund for

Louisiana’s Future v. Louisiana Board of Ethics,80 a 2014 decision in which another

Section of this Court found that a plaintiff’s claims against the Louisiana Ethics

Board were not barred by sovereign immunity, as well as Fifth Circuit precedent

permitting actions to proceed against state agencies under Young.81

77 R. Doc. 1 at 13.

78 See Papasan v. Allain, 478 U.S. 265, 280 (1986) (internal citation omitted).

79 R. Doc. 25 at 10.

80 No. 14–CV–0368, 2014 WL 1514234 (E.D. La. Apr. 16, 2014).

81 Id. at 10-11.

The Court turns first to Fund for Louisiana’s Future, in which Judge Feldman

rejected an argument that the Louisiana Board of Ethics is entitled to sovereign

immunity.82 Although the Union argues that this decision conclusively establishes

that its claim against the Ethics Board may proceed under Young, a closer reading of

the case reveals no analysis as to whether the Ethics Board was subject to Young

even though it is a state agency. Instead, in that case, the Ethics Board argued that

it did not have the ability or willingness to enforce the statute that plaintiff sought to

enjoin, and it was on this basis alone that Judge Feldman found that the Ethics

Board’s argument that Young did not apply to it “border[ed] on frivolous.”83

Nor does the Court read current Fifth Circuit case law to allow for suits against

state agencies. Indeed, in recent years, the Fifth Circuit has repeatedly declined to

apply Young to states or their agencies.84 Further, these decisions are not, as the

Union suggested during oral argument, confined to cases involving a plaintiff’s prayer

for monetary damages. For example, in Moore v. Louisiana Board of Elementary and

82 2014 WL 1514234.

83 Id. at * 6; see Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014) (quoting Okpalobi v. Foster,

244 F.3d 405, 414–15 (5th Cir. 2001) (“[S]tate officers can be sued in federal court despite the Eleventh

Amendment if the officers have some connection with the enforcement of the act in question or are

specially charged with the duty to enforce the statute and are threatening to exercise that duty.”)

(internal quotations, brackets, and ellipses omitted).

84 Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963–64 (5th Cir. 2014) (quoting

P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)) (“The Young exception

‘has no application in suits against the States and their agencies, which are barred regardless of the

relief sought.’”); City of Austin v. Paxton, 943 F.3d 993, 1003 (finding that the district court erred in

holding that the plaintiff’s claims against the Texas Workforce Commission could proceed under Ex

parte Young because the Texas Workforce Commission is a state agency and not an individual

commissioner); Doe v. Harrell, 841 F. App’x 663, 668 (5th Cir. 2021) (“The Board [of Regents] itself is

immune from all of Doe’s claims: absent waiver or abrogation (neither of which are at issue here), only

state officials—not state agencies—can be prospectively enjoined consistent with state sovereign

immunity.”); Cozzo v. Tangipahoa Par. Council—President Gov., 279 F.3d 273, 280–81 (5th Cir. 2002))

(“When a state agency is the named defendant, the Eleventh Amendment bars suits for both money

damages and injunctive relief unless the state has waived its immunity.”).

Secondary Education, the Fifth Circuit considered an appeal of an injunction

prohibiting the Louisiana Board of Elementary and Secondary Education, the

Louisiana Department of Education, and the Superintendent of Education from

implementing two legislative acts.85 Ultimately, the Fifth Circuit found that the

district court erred in allowing the plaintiff’s claims to proceed against the agency

defendants because those claims were barred by sovereign immunity.86 The Court

acknowledged the Young exception but explained that because the defendants were

agencies of the state rather than individual officers, Young did not apply.87

The Fifth Circuit reached an identical conclusion in City of Austin v. Paxton, a

case involving the State’s appeal of an injunction of a Texas housing statute.88 There,

the Fifth Circuit held that “[t]he State is correct in its assertion that the [Texas

Workforce] Commission is immune to suit and not subject to the Young exception.”89

The Court explained that although Young provides for an exception to Eleventh

Amendment immunity, “in order to fall within the Ex parte Young exception to

sovereign immunity . . . a plaintiff must name individual state officials as defendants

in their official capacities.”90 Because “the City clearly named only the ‘Texas

Workforce Commission,’ a state agency immune to suite, and did not name any

individual commissioners,” the City’s suit was barred by sovereign immunity.91 The

85 743 F.3d at 961.

86 Id. at 963–64.

87 Id.

88 943 F.3d at 997–98.

89 Id. at 1003.

90 Id. at 1004 (internal quotations, citations, and brackets omitted).

91 Id.

Court reaches the same result here. The Ethics Board is a state agency,92 and as

such, is not subject to Young. Accordingly, the Court dismisses without prejudice the

Union’s claim against the Ethics Board. The Union’s claim against the individual

Board Members in their official capacities remains.93

B. Whether the Court Should Abstain from Exercising Jurisdiction

Over this Matter

The Board Members argue that even if the Court can exercise subject matter

jurisdiction over them, it should abstain from doing so based on parallel state court

litigation. Specifically, the Board Members ask the Court to decline to consider this

case based on Younger and/or Pullman abstention. Before considering the specific

requirements of these abstention doctrines, the Court notes that abstention, in any

of its various forms, “is the exception, not the rule.”94 A federal court’s abstention

from its proper exercise of jurisdiction “is an extraordinary and narrow exception to

the duty of a District Court to adjudicate a controversy properly before it,” and “can

be justified under this doctrine only in the exceptional circumstances where the order

to the parties to repair to the State would clearly serve an important countervailing

interest.”95

92 Fund for La.’s Future, 2014 WL 1514234, at *2.

93 Defendants do not dispute, and the Court agrees, that the Union’s claims against the individual

Board Members are claims arising under federal law against government officials in their official

capacities and therefore, all requirements under Young apply to the Union’s claims against the Board

Members.

94 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 14 (1983) (quoting Colo. River

Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976)) (internal quotations omitted).

95 Id. (quoting Colo. River, 424 U.S. at 813 (internal quotations omitted).

i. Younger Abstention Doctrine

The Board Members argue that “[t]his is a textbook Younger abstention case,

making abstention mandatory.”96 In support of their argument, the Board Members

liken this case to Middlesex County Ethics Committee v. Garden State Bar

Association, a case in which the Supreme Court upheld a finding of Younger

abstention.97 The Board Members argue that the same result is warranted in this

case because this case would interfere with the pending appeal at the Louisiana First

Circuit Court of Appeal, Louisiana has an interest in regulating governmental ethics,

and the Union could have raised its instant First Amendment claim in the First

Circuit proceeding.98 They argue that the Union had the opportunity to raise its

constitutional challenges during that state proceeding and that a Louisiana state

court is the proper forum for those challenges because Louisiana has an important

interest in regulating its governmental ethics.99

In response, the Union argues that Younger has no applicability to this case

because the parallel state proceeding is not a criminal prosecution, civil enforcement

proceedings, or civil proceeding concerning an order uniquely in furtherance of the

state court’s ability to perform its judicial functions.100 The Union likewise rejects

the Board Members’ likening of this case to Middlesex and argues that Middlesex was

overruled by subsequent Supreme Court precedent.101

96 R. Doc. 22–1 at 12.

97 457 U.S. 423 (1982).

98 R. Doc. 22-1 at 12.

99 Id. at 13.

100 R. Doc. 25 at 14.

101 Id. at 17.

The Younger doctrine allows a federal court to decline to exercise jurisdiction

over lawsuits when “(1) the federal proceeding would interfere with an ‘ongoing state

judicial proceeding’; (2) the state has an important interest in regulating the subject

matter of the claim; and (3) the plaintiff has ‘an adequate opportunity in the state

proceedings to raise constitutional challenges.’”102 When these three elements are

met, “a federal court can assert jurisdiction only if ‘certain narrowly delimited

exceptions to the abstention doctrine apply.’”103 These exceptions include when:

(1) the state court proceeding was brought in bad faith or with the

purpose of harassing the federal plaintiff, (2) the state statute is

“flagrantly and patently violative of express constitutional prohibitions

in every clause, sentence, and paragraph, and in whatever manner and

against whomever an effort might be made to apply it,” or (3) application

of the doctrine was waived.104

The Union relies on Sprint Communications, Inc. v. Jacobs to support its

position that Younger does not apply.105 In that case, the Supreme Court clarified

that “[o]nly exceptional circumstances . . . justify a federal court’s refusal to decide a

case in deference to the States.”106 These exceptions apply only when the federal case

relates to: (1) an ongoing state criminal prosecution; (2) civil enforcement

proceedings; or (3) “civil proceedings involving certain orders . . . uniquely in

furtherance of the state courts’ ability to perform their judicial functions.”107 The

102 Bice v. La. Pub. Def. Bd., 677 F.3d 712, 716 (5th Cir. 2012) (quoting Middlesex, 457 U.S. at 432).

103 Id. (quoting Tex. Ass’n of Bus. v. Earle, 388 F.3d 515, 519 (5th Cir. 2004)) (footnote omitted).

104 Earle, 388 F.3d at 519.

105 R. Doc. 25 at 14–15.

106 571 U.S. 69, 78 (2013) (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S.

350, 368 (1989)) (internal quotations and brackets omitted).

107 Id. (internal quotations and citations omitted).

Supreme Court has “not applied Younger outside these three ‘exceptional’ categories”

and has specifically held “that they define Younger’s scope.”108

The Board Members do not argue that this case falls into the first or third

category, arguing only that it constitutes a civil enforcement proceeding. In support

of its argument, the Board Members insist that this case is on all fours with

Middlesex.109 Middlesex arose from an attorney-disciplinary proceeding against

Lennox Hinds, a member of the New Jersey Bar, for making disparaging comments

about a pending trial and the trial’s presiding judge.110 Hinds’s comments were

brought to the attention of the Middlesex County Ethics Committee, which ultimately

served a formal statement of charges on Hinds for violating the Disciplinary Rules of

the Code of Professional Conduct.111 Instead of responding to the charges, Hinds filed

suit in federal court, alleging that the disciplinary rules violated his First

Amendment rights.112 The Supreme Court found that the district court properly

abstained under Younger because: (1) the bar disciplinary proceedings constituted an

ongoing state judicial proceeding; (2) the proceedings implicated important state

interests; and (3) Hinds could have raised his constitutional concerns during the state

proceedings.113

As an initial matter, the Court rejects the Union’s position that Sprint

overturned Middlesex. In Sprint, the Supreme Court reversed the Eighth Circuit’s

108 Id.

109 457 U.S. at 427.

110 Id. at 427–28.

111 Id. at 428.

112 Id. at 429.

113 Id. at 432–36.

decision applying Younger to a federal court proceeding relating to a ruling by the

Iowa Utilities Board.114 The Court noted that the Eighth Circuit erred in applying

Younger solely based on the three factors enumerated in Middlesex because the three

Middlesex factors “were not dispositive; they were, instead, additional factors

appropriately considered by the federal court before invoking Younger.”115 The Sprint

Court went on to clarify that Middlesex was a Younger applicant because it involved

a proceeding “akin to a criminal proceeding.”116

Nevertheless, the Court does not agree with the Board Members that this case

demands the same result as Middlesex. The Supreme Court has generally limited its

application of Younger to instances of civil enforcement “‘akin to a criminal

prosecution in ‘important respects.’”117 Middlesex clearly fit this bill. There, a

complaint was made against an attorney, an investigation ensued, the governing

body decided to take action against the attorney, and critically, the proceedings were

initiated by the Middlesex County Ethics Committee.118 Here, the parallel

proceeding with which the Board Members argue this case will run “roughshod into”

is the First Circuit appeal of the 2024 Declaratory Opinion.119 This appeal, unlike

the disciplinary proceeding in Middlesex, was initiated by the Union’s request for an

opinion from the Ethics Board and subsequent appeal of the 2024 Declaratory

Opinion. The First Circuit appeal does not have the potential to result in a punitive

114 Id. at 69.

115 Id. at 81.

116 Id.

117 Id. at 79 (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975)).

118 457 U.S. 423; see Sprint, 571 U.S. at 81.

119 R. Doc. 22–2 at 12.

ruling such as disbarment or sanctions.120 It is not a coercive state enforcement

action and is nearly identical in every way to an appeal of a civil declaratory

judgment.121 The First Circuit proceeding is simply not akin to a criminal proceeding

in the way that Younger requires.

To the extent the Board Members argue that the Union’s pending lawsuit in

the 19th Judicial District Court is a parallel state proceedings capable of triggering

Younger, the Court’s opinion does not change. The civil suit pending in the 19th

Judicial District Court is purely a civil lawsuit, and the Court cannot discern, nor

have the Board Members offered, any characteristics of that litigation that would

transform it into a civil enforcement suit akin to a criminal prosecution. Nor do the

proceedings relevant to the 2018 Advisory Opinion meet this standard.122 At oral

argument, the Board Members argued that this proceeding has characteristics akin

to a criminal prosecution because it culminated in an investigation which remains

ongoing. But “Younger does not apply merely because a state bureaucracy has

initiated contact with a putative federal plaintiff or a state investigation has

begun.”123 Although the Fifth Circuit has declined to articulate a bright-line rule, it

has held “that the issuance of a non-self-executing administrative subpoena does not,

120 “Younger abstention ordinarily would not apply when a federal plaintiff also is the plaintiff in state

court.” Green v. City of Tuscan, 255 F.3d 1086, 1098 (9th Cir. 2001) (quoting Fresh Int’l Corp. v. Agric.

Lab. Rels. Bd., 805 F.2d 1353, 1360 n.8 (9th Cir. 1986) (internal quotations omitted) and citing Rogers

v. Desiderio, 58 F.3d 299, 301 (7th Cir. 1995), Marks v. Stinson, 19 F.3d 873, 885 (3d Cir. 1994), and

Crawley v. Hamilton Cnty. Comm’rs, 744 F.2d 28, 30 (6th Cir. 1984)).

121 See Majors v. Engelbrecht, 149 F.3d 709, 712 (7th Cir. 1998) (“For purposes of Younger abstention,

administrative proceedings are ‘judicial in nature’ when they are coercive—i.e., state enforcement

proceedings, as opposed to remedial, or legislative.”) (internal citations omitted).

122 Notably, while the subject matter of the 2018 declaratory opinion proceeding mirrors this one, it is

an entirely separate proceeding, and the Board Members have offered no support for the proposition

that the Court may consider it in a Younger analysis.

123 Google, Inc. v. Hood, 822 F.3d 212, 223 (5th Cir. 2016).

without more, mandate Younger abstention.”124 Requiring abstention “whenever

enforcement is threatened . . . would leave a party’s constitutional rights in limbo

while an agency contemplates enforcement but does not undertake it.”125 For this

reason, the Fifth Circuit has suggested that “the period between the threat of

enforcement and the onset of formal enforcement proceedings may be an appropriate

time for a litigant to bring its First Amendment challenges in federal court. Indeed,

if this time is never appropriate, any opportunity for federal adjudication of federal

rights will be lost.”126

None of the state proceedings—be it the 2018 Advisory Opinion proceedings,

the 19th Judicial District Court proceedings, or the 2024 Declaratory Opinion

proceedings—have “progressed nearly as far as in the Supreme Court cases applying

Younger to state agency proceedings in which the state had already ‘investigated the

allegations, made determinations that probable cause existed, and served formal

charges.’”127 Accordingly, Younger abstention is not appropriate, and the Court

denies the Board Members’ Motion to the extent it seeks dismissal or a stay on this

basis.

ii. Pullman Abstention Doctrine

The Board Members argue that even if the Younger abstention doctrine does

not apply, this Court should abstain from exercising jurisdiction based on the

124 Id. at 224.

125 Telco Commc’ns, Inc. v. Carbaugh, 885 F.2d 1225, 1229 (4th Cir. 1989).

126 La. Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1491 (5th Cir. 1995) (quoting

Telco, 885 F.2d at 1229).

127 Id. at 223 (quoting La. Debating, 42 F.3d at 1490–91).

Pullman abstention doctrine.128 The Board Members insist abstention is appropriate

under Pullman because the Union’s claim will force this Court to consider the

constitutionality of Section 42:1111(E) and if the Court does so, the First Circuit case

will be moot.

The Union maintains that abstention under Pullman would be inappropriate

because the Union does not attack Section 42:1111(E) and argues only that the 2024

Declaratory Opinion is unconstitutional.129 The Union further argues that even if it

does challenge the constitutionality of Section 42:1111(E), Pullman applies only to

ambiguous statutes.130

Pullman applies to “cases presenting a federal constitutional issue which

might be mooted or presented in a different posture by a state court determination of

pertinent state law.”131 The Fifth Circuit has articulated “two prerequisites for

Pullman abstention.”132 First, “there must be an unsettled issue of state law,” and

second, “there must be a possibility that the state law determination will moot or

present in a different posture the federal constitutional question raised.”133 “If these

requirements are met, the court must then ‘assess the totality of the circumstances

128 R. Doc. 22-1 at 13-14.

129 R. Doc. 25 at 17.

130 Id. at 19–20.

131 Ibarra v. Bexar Cnty. Hosp. Dist., 624 F.2d 44, 46 (5th Cir. 1980) (internal quotations and citations

omitted).

132 Id. at 47.

133 Id.

presented by a particular case, considering the rights at stake and the costs of delay

pending state court adjudication.’”134 “Abstention is the exception, not the rule.”135

The Board Members’ invocation of Pullman fails at the first prong. Notably, it

is not clear that a decision on the merits of the Union’s claim will constitute a decision

on an unsettled issue of state law. As the Union points out, the Board Members do

not ask the Court to interpret Section 1111(E); they ask the Court only to assess the

constitutionality of the 2024 Declaratory Opinion. However, even if it is impossible

to divorce the interpretation of Section 1111(E) from the statute itself, as the Board

Members argue, abstention would not apply because the Board Members have failed

to show that Section 1111(E) or the statute as interpreted by the Ethics Board in the

2024 Declaratory Opinion is ambiguous.136 It is well-settled that abstention “under

Pullman turns on the existence of an ambiguous state law.”137 The Board Members

have not pointed to, and this Court does not independently find, any credible

interpretation of the statute to support their abstention argument under Pullman.138

“Pullman does not command district courts to abstain simply to permit state review

of an unambiguous statute that has previously never been interpreted by a state

134 Sevin v. Par. of Jefferson, 632 F.Supp.2d 586, 591 (E.D. La. 2008) (quoting Baran v. Port of

Beaumont Nav. Dist. of Jefferson Cnty., Tex., 57 F.3d 436, 442 (5th Cir. 1995)) (internal quotations

omitted).

135 Nissan Motor Corp. in USA v. Harding, 739 F.2d 1005, 1008 (5th Cir. 1984) (citing Colo. River, 424

U.S. at 813).

136 See Fedesna v. Can. Life Assurance Co., No. 21-CV-50884, 2022 WL 2981422, at *2 (5th Cir. July

27, 2022) (“Fedesna’s alternative interpretation cannot carry his burden to show ambiguity.”).

137 Baran, 57 F.3d at 442 (emphasis added).

138 La. Debating, 42 F.3d at 1492.

court.”139 Thus, the Board Members have failed to meet their burden to show that

Pullman abstention is appropriate.

Critically, even if the Board Members had met their burden under Pullman,

the Court would exercise its discretion and decline to abstain.140 In assessing the

totality of the circumstances, the Court finds that the rights at stake and the potential

harm in delay while the state court litigation proceeds are too significant to justify

abstention. If the Union prevails on the merits of its claim, it will have asserted a

fundamental First Amendment right.141 While infringement of a constitutional right

for any amount of time is troubling, if the Union’s right to associate has in fact been

infringed, one could argue that the infringement of this right commenced as early as

2018 when the Ethics Board issued the 2018 Advisory Opinion.142 Considering the

rights at stake and the amount of time the Union has suffered what it argues is an

impermissible constitutional violation, abstention would not be appropriate even if

the Court exercised its discretion to abstain under Pullman. For these reasons, to

the extent the Board Members’ Motion seeks abstention based on Pullman, the

Motion is denied.

139 Lipscomb v. Columbus Mun. Separate Sch. Dist., 145 F.3d 238, 243 (5th Cir. 1998) (citing City of

Hous. v. Hill, 482 U.S. 451, 469 (1987)).

140 Id. at (“We review a district court’s decision to abstain for an abuse of discretion.”).

141 See Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1032 (5th Cir. 1981) (“[I]n view of the high cost

of abstention in the context of suits seeking review of statutes exerting a purported chilling effect on

First Amendment rights, . . . we cannot say that [the] district court abused its discretion in declining

to invoke Pullman abstention.”).

142 See Harris Cnty. Comm’rs Court v. Moore, 420 U.S. 77, 84 (1975) (citations omitted) (“[W]here the

litigation has already been long delayed . . . the Court has held that abstention should not be

required.”).

C. Whether the Union Has Stated a First Amendment Claim

The Board Members’ final argument in support of dismissal is that the Union’s

sole claim, which alleges that “in issuing and enforcing the March 8, 2024 declaratory

opinion, the Board Members have abridged and denied the Union’s First Amendment

rights to pay for legal representation for its members,” fails to state a claim for

relief.143 The thrust of the Board Members’ argument is that even if the Union has a

First Amendment right to pay for its members’ legal representation before the Civil

Service Board, the State’s interest in ensuring high standards of legal ethics and

preventing conflicts of interest outweighs the Union’s right.144

The Union’s argument against Rule 12(b)(6) dismissal is two-fold. The Union

first argues that the Board Members’ Motion is procedurally improper because the

Board Members “do not identify any deficiencies with the factual allegations in

Plaintiff’s Complaint.”145 The Union further argues that even if the Motion is

procedurally proper, it should be denied because the Supreme Court has definitively

held that a State’s interest in regulating ethical conduct does not justify infringement

of a union.146

i. Whether the Board Members’ Merits-Based Attack Is Procedurally

Proper

Before turning to turning to this question, the Court considers whether the

Board Members’ Motion to Dismiss is procedurally proper. Faced with a Rule 12(b)(6)

143 R. Doc. 1 at ¶ 59. The Union raises a claim for “Injunctive Relief” in Count II. Id. at ¶ 61. As the

Board Members point out, however, injunctive relief cannot serve as an independent claim.

144 R. Doc. 22-1 at 18-20.

145 R. Doc. 25 at 21 (internal citation omitted).

146 Id. at 24.

motion, a court must “determine whether the plaintiff has stated a legally cognizable

claim that is plausible.”147 “And “no matter the factual content, a claim is not

plausible if it rests on a legal theory that is not cognizable.”148 Here, the Board

Members seek dismissal of the Union’s claim on the basis that the Union has failed

to state a cognizable First Amendment claim. Specifically, the Board Members argue

that the alleged abridgement of the Union’s First Amendment rights is warranted by

a compelling government interest. This is a legitimate basis for a Rule 12(b)(6)

motion. Accordingly, the Court will consider the merits of the Board Members’ Rule

12(b)(6) Motion.

ii. Matters Considered for Purposes of the 12(b)(6) Analysis

As stated earlier, in deciding a Rule 12(b)(6) motion to dismiss, a court is

generally prohibited from considering information outside the pleadings but may

consider documents outside of the complaint when they are: (1) attached to the

motion; (2) referenced in the complaint; and (3) central to the plaintiff’s claims.149 A

court can also consider matters of public record and matters subject to judicial

notice.150 The Court has restricted its Rule 12(b)(6) analysis to the Complaint and the

law.

147 Shandon, 607 F.3d at 1032 (citing Iqbal, 556 U.S. at 662).

148 Id.

149 Maloney, 456 F. App’x at 340–41.

150 Servicios Azucareros de Venez., C.A. v. John Deere Thibodaux, Inc., No. 10–CV–4443, 2013 WL

1513406, at *3 (E.D. La. Apr. 11, 2013).

iii. Whether the Union Has Stated a Claim for Relief

The Board Members argue that this matter should be dismissed because the

Union has failed to state a viable First Amendment claim.151 “The First Amendment

prohibits government from ‘abridging the freedom of speech, or of the press; or the

right of the people peacefully to assemble, and to petition the Government for a

redress of grievances.’”152 Although not explicit in the First Amendment, the

Supreme Court “has ‘long understood as implicit in the right to engage in activities

protected by the First Amendment a corresponding right to associate with others.’”153

The Supreme Court has held that together, the First and Fourteenth Amendments

give unions the right to hire attorneys on a salary basis to assist their members in

the assertion of their legal rights.154

Constitutional rights are not absolute. Infringement of a First Amendment

right to associate is permissible if it passes exacting scrutiny. That is, if it “serve[s]

a ‘compelling state interes[t] . . . that cannot be achieved through means significantly

less restrictive of associational freedoms.’”155 “Though possibly less rigorous than

strict scrutiny, exacting scrutiny is more than a rubber stamp.”156 “The strength of

the governmental interest must reflect the seriousness of the actual burden on First

Amendment rights.”157 Thus, in analyzing a freedom of association claim, the court

151 R. Doc. 22-1 at 14–20.

152 Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 605–06 (2021).

153 Id. (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984)).

154 See United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass’n, 389 U.S. 217, 221–22 (1967).

155 Roberts, 468 U.S. at 618.

156 Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 876 (8th Cir. 2012) (internal

citations omitted).

157 Id. (quoting John Doe No. 1 v. Reed, 561 U.S. 186, 196 (2010)) (internal quotations and brackets

omitted).

“must ask whether the challenged governmental conduct infringes the right to

freedom of association at all, and if it does, whether that infringement can survive

exacting scrutiny.”158

The Court begins with the Union’s claim that the Opinion violates its right to

pay for its members’ legal representation. A line of Supreme Court cases, beginning

with NAACP v. Button, instructs the Court’s decision.159 In Button, the Supreme

Court considered a Virginia state law prohibiting “the improper solicitation of any

legal or professional business.”160 According to the State, this law, which effectively

outlawed the NAACP’s system of advising prospective litigants to seek legal advice

and often paying for the representation, served to discourage baseless litigation and

avoid conflicts of interest between the NAACP and the individual litigants. After

finding that the NAACP’s activities were modes of expression and association

protected by the First and Fourteenth Amendments, the Court found that the State

had failed to justify this abridgement. The Court explained first that the law was

overly broad because it “proscrib[ed] any arrangement by which prospective litigants

are advised to seek the assistance of particular attorneys.”161 It then explained that

the “dangers of baseless litigation and conflicting interests between the NAACP and

individual litigants [were] far too speculative to justify the broad remedy invoked by

the State.”162

158 Crowe v. Or. State Bar, 112 F.4th 1218, 1233 (9th Cir. 2024).

159 371 U.S. 415 (1963).

160 Id.

161 Id. at 444.

162 United Mine, 389 U.S. at 222–233 (discussing Button, 371 U.S. 415).

The Supreme Court expanded Button to labor unions in Brotherhood of

Railroad Trainmen v. Virginia.163 The Trainmen Court considered a Virginia law

which, as applied, barred unions from recommending lawyers to its members for

workers’ compensation suits.164 The Court found that the union members had a

constitutional right to aid each other in obtaining counsel.165 While noting that there

was a risk that an attorney could sacrifice the interests of his client if his client’s

interests ever diverged from those of the union, the Court ultimately ruled that “this

very distant possibility of harm could not justify a complete prohibition of the

Trainmen’s efforts to aid one another in assuring that each injured member would be

justly compensated for his injuries.”166

These decisions ultimately led to United Mine Workers of America, District 12

v. Illinois State Bar Association.167 In that case, the Supreme Court considered an

Illinois Bar Association regulation prohibiting the unauthorized practice of law,

which, as applied, barred a mining union’s ability to pay a salaried attorney to

represent mine workers and their widows in pursuing workers’ compensation claims.

After finding that the union was participating in constitutionally protected activities,

the Supreme Court considered whether the Bar’s justification for abridging the

union’s rights—its “broad interest” in regulating the practice of law—survived

exacting scrutiny.168 Relying on its prior decisions in Button and Trainmen, the Court

163 377 U.S. 1 (1964).

164 Id.

165 Id. at 6.

166 United Mine, 389 U.S. at 223 (discussing Trainmen, 377 U.S. 1).

167 Id.

168 Id. at 222.

found that the subject regulation was “not needed to protect the State’s interest in

high standards of legal ethics,” in part because “[i]n the many years the program has

been in operation, there has come to light, so far as we are aware, not one single

instance of abuse, of harm to clients, of any actual disadvantage to the public or to

the profession, resulting from the mere fact of the financial connection between the

Union and the attorney who represents its members.”169

“The common thread running through” these cases “is that collective activity

undertaken to obtain meaningful access to the courts is a fundamental right within

the protection of the First Amendment.”170 The Board Members do not dispute, and

the Court agrees, that the Union has a constitutional right to provide legal

representation to its members for Ethics Board proceedings.171 Instead, the sole

disagreement between the parties is whether a compelling state interest justifies the

abridgment of this right. To show that there is, the Board Members argue that the

2024 Declaratory Opinion serves to maintain ethical governmental operations by

avoiding actual conflicts of interest, as well as the appearance of impropriety.172

Indeed, the Supreme Court has recognized that there is a “‘vital state interest’ in

safeguarding ‘public confidence in the fairness and integrity of the nation’s elected

169 Id. at 225.

170 United Transp. Union v. State Bar of Mich., 401 U.S. 576, 585 (1971); see Lawline v. Am. Bar Ass’n,

956 F.2d 1378, 1387 (7th Cir. 1992) (“[Mine Workers] supports the proposition that laypersons have a

right to obtain meaningful access to courts, and to enter into associations with lawyers to effectuate

that end.”).

171 Indeed, proceedings before the Ethics Board share many characteristics of traditional civil

litigation. See La. R.S. §§ 1141(B)(1)(a),

172 R. Doc. 22–1 at 18.

judges.’”173 It flows that a state would have a similar interest in protecting public

confidence in the fairness and integrity of Ethics Board members who, for the reasons

above, sit as judges of sorts for Ethics Board proceedings.

But the harm that the 2024 Declaratory Opinion hopes to avoid, however

legitimate, is not compelling enough to justify the infringement of the Union’s

constitutional right at issue. The decisions in Button, Trainmen, and United Mine

rest, at least in part, on the idea that a theoretical or tangential harm is insufficient

to support a compelling state interest. Indeed, the Supreme Court explained that in

Trainmen and United Workers, “there was absolutely no indication that the

theoretically imaginable divergence between the interests of union and member ever

actually arose in the context of a particular lawsuit.”174 Here, the Board Members do

not point to anything to show that any Ethics Board member who concurrently serves

or served as a member of a union representing individuals appearing before the

Ethics Board has been swayed by his or her concurrent roles.175 Nor do the Board

Members point to anything showing that public confidence in the Ethics Board’s

proceedings or decisions has dwindled.176 There is simply “no indication that the

theoretically imaginable divergence between the interests of [the Union] and [the

Ethics Board] ever actually arose.”177

173 Williams-Yulee v. Fla. Bar, 575 U.S. 433, 445 (2015) (quoting Caperton v. A.T. Massey Coal Co., 556

U.S. 868, 889 (2009)).

174 United Mine, 389 U.S. at 224 (discussing Trainmen, 377 U.S. at 1).

175 The Union offers an affidavit which it argues shows that no conflict exists. The Court does not

consider this affidavit, however, as doing so would be improper under a Rule 12(b)(6) motion to dismiss.

176 See In re Primus, 436 U.S. 412, 434–35 (1978) (“The record does not support appellee’s contention

that undue influence overreaching, misrepresentation, or invasion of privacy actually occurred in this

case.”).

177 United Mine, 389 U.S. at 224 (discussing Trainmen, 377 U.S. at 1).

Instead, the cited harms in this case are “far too speculative” to pass

constitutional muster.178 The theory that an officer of the Union would be swayed—

or that the public would assume he or she could be swayed—to act favorably towards

a litigant appearing before the Civil Service Board merely because that member was

represented by an attorney paid for by the Union presupposes a number of things. It

assumes, for example, that the legal representation provided by the Union is such an

overwhelming advantage of Union membership that the outcome of these proceedings

would persuade or dissuade membership. It further assumes that even if

membership was affected by Civil Service Board proceeding outcomes, it would be to

such a degree that it could affect the salary of Union officers to the extent that the

Union officer could be biased in the Civil Service Board proceedings.179

Nor is the 2024 Declaratory Opinion narrowly tailored like the Board Members

argue. Admittedly, the 2024 Declaratory Opinion does not prohibit the Union from

paying for its members’ representation under all circumstances. The Union may

permissibly pay for representation, for example, when a non-officer member or no

member at all sits on the Civil Service Board. However, when it is an officer of the

Union who sits on the Civil Service Board, the 2024 Declaratory Opinion amounts to

a total ban on the Union’s ability to pay for its members’ representation before the

Civil Service Board. It is unclear why concerns about a potential conflict of interest

178 Id. at 223.

179 The Union alleges that the Ethics Board determined that the Union does not have a substantial

economic interest in an employee’s disciplinary matter before the Civil Service Board. R. Doc. 1 at ¶

31. It follows that a salaried officer of the Civil Service Board would also have no substantial economic

interest in such matters. Thus, it is questionable how an actual conflict of interest or the appearance

of such a conflict could exist.

could not be ameliorated by less restrictive means, for example, by a recusal

requirement or some other system to ensure that the Union officer does not

participate in proceedings involving this hypothetical and attenuated conflict. For

these reasons, the Court rejects the Board Members’ position that the Union has

failed to state a claim for relief based on its failure to allege a constitutional violation.

Accordingly, the Board Members’ Motion to Dismiss on this basis is denied.

D. Whether the Union Is Entitled to a Preliminary Injunction

Having determined that it is not appropriate to dismiss this action in its

entirety, the Court turns to the merits of the Union’s Motion for Preliminary

Injunction. The Union argues that it is entitled to a preliminary injunction because,

for the reasons discussed in its briefing as to the Motion to Dismiss, there is a

substantial likelihood that it will succeed on the merits of its claim.180 The Union

further argues that the infringement of its constitutional rights constitutes

irreparable harm and that the Board Members cannot point to any harm that they

would suffer from an injunction of the 2024 Declaratory Opinion.181 Finally, the

Union insists that an injunction would not disserve the public’s interest because the

public would not be served by allowing an unconstitutional law to take effect.182

The Board Members counter that for the reasons they outlined in support of

their Motion to Dismiss, the Union is not likely to succeed on its claim.183 The Board

Members further argue that “[a]s there is no impermissible constitutional violation,

180 R. Doc. 4-1 at 12–16.

181 Id. at 16–19.

182 Id. at 19.

183 R. Doc. 23 at 20.

there is no irreparable harm.”184 Finally, the Board Members argue that the public’s

interest is best served by upholding Louisiana’s ethics code and allowing the State to

enforce its laws.185 These interests, the Board Members argue, “far outweigh[] [the

Union’s] desire to reinstate the unethical financial relationship between the union

official and the Civil Service Board.”186

i. Whether the Union Has Shown a Likelihood of Success on the

Merits of Its First Amendment Claim

The threshold question is whether the Union has shown a substantial

likelihood of success on the merits of its claim. To meet this burden, a plaintiff need

not show that it is certain it will succeed.187 “To assess the likelihood of success on

the merits, we look to ‘standards provided by substantive law.’”188 With this standard

in mind, the Court adopts its analysis from Section C(ii) of this Order and Reasons,

in which it considered whether the Union failed to state a claim for relief. While the

Court is cognizant that Rule 12(b)(6) motions to dismiss and motions for preliminary

injunctions are analyzed under different legal standards, the Court is confident that

its earlier analysis satisfies the preliminary injunction standard. In its analysis, the

Court determined that the Union’s proffered right—paying for legal representation

for its members appearing before the Civil Service Board—fell within its First

Amendment right to associate. The Court went on to find that the Board Members’

justification for abridging this right did not meet the exacting scrutiny standard

184 Id.

185 Id. at 21.

186 Id.

187 See Janvey, 647 F.3d at 595–96 (quoting Byrum v. Landreth, 566 F.3d 442, 446 (5th Cir. 2009)).

188 Id. (quoting Roho, Inc. v. Marquis, 902 F.2d 356, 358 (5th Cir. 1990)).

necessary to justify the infringement of its First Amendment right. For these

reasons, and for all other reasons outlined in Section C(ii), the Court finds that the

Union has shown a substantial likelihood of success on the merits of its First

Amendment claim.

i. Whether the Union Has Shown that It Will Suffer Irreparable Harm

Absent an Injunction

The second preliminary injunction prong asks whether the Union will suffer

an irreparable injury absent an injunction. This question is easily resolved following

the Court’s finding as to the Union’s likelihood of success on the merits. It has long

been recognized that “[t]he loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable injury.”189 The Court has

found that the Union is likely to succeed on the merits of its First Amendment claim,

and therefore, the Union’s continued prohibition against funding its members’ legal

representation at Civil Service Board proceedings are and will continue to irreparably

harm the Union.

ii. Whether the Balances of Equities and Public Interest Weigh In

Favor of Injunctive Relief

The final two factors, which merge when the Government is the party opposing

the preliminary injunction, also weigh in favor of injunctive relief.190 The Court finds

that the Union would be harmed if it was unable to help its members secure legal

189 Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (2012) (quoting Elrod, 427

U.S. at 373) (internal quotations omitted).

190 Nken, 556 U.S. at 435; see also Comput. & Commc’ns Indus. Ass’n v. Paxton, 747 F.Supp.3d 1011

(W.D. Tex. 2024) (applying this well-known principle against a state official being sued in his official

capacity based on the Ex parte Young exception to Eleventh Amendment immunity).

representation and barred from exercising its First Amendment rights. And while

the risk of a potential conflict of interest is admittedly nonzero, less extreme

mechanisms, such as a recusal system, likely exist to mitigate any conflict of interest

or perceived conflict. The Court recognizes the public’s interest in upholding

Louisiana’s Ethics Code and allowing the State to enforce its laws. On balance, any

harm to the Board Members in granting injunctive relief is further undercut because

“[i]njunctions protecting First Amendment freedoms are always in the public

interest,” and the “government’s interest is the public interest.”191 The final two

factors, like the others, therefore weigh in favor of injunctive relief. For these

reasons, the Court finds that the Union has carried its burden to show that it is

entitled to a preliminary injunction.

IV. CONCLUSION

For the foregoing reasons, IT IS ORDERED that Defendants’ Motion to

Dismiss and Motion to Stay Under Pullman192 is GRANTED IN PART and

DENIED IN PART. Defendants’ Motion is GRANTED to the extent it seeks

dismissal of the Union’s claim against the Louisiana Ethics Board. The Motion is

DENIED in all other respects.

IT IS FURTHER ORDERED that the Union’s claim against the Louisiana

Ethics Board are DISMISSED without prejudice.

191 Opulent Life Church, 697 F.3d at 298; Pursuing Am.’s Greatness v. Fed. Election Comm’n, 831 F.3d

500, 511 (D. D.C. 2016) (citing Nken, 556 U.S. at 435).

192 R. Doc. 22.

IT IS FURTHER ORDERED that the Union’s Motion for Preliminary

Injunction is GRANTED.

IT IS FURTHER ORDERED that the Board Members are

PRELIMINARILY ENJOINED from enforcing its March 8, 2024 declaratory

Opinion as applied to the Union.

IT IS FURTHER ORDERED that the Union shall not be required to post any

security or bond in connection with the issuance of this Order and Reasons.

New Orleans, Louisiana, April 14, 2025.

WENDY □ VITTER

United States District Judge

198 R, Doc. 4.

39