Alleman v. Harness

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JULIE ALLEMAN, ET AL.

CIVIL ACTION

VERSUS

NO. 24-877-JWD-EWD

SHANNAE N. HARNESS, ET AL.

RULING AND ORDER

This matter comes before the Court on two motions. The first is Defendants’ Joint Motion

to Dismiss (Doc. 22) (“MTD”) filed by Shannae Harness, Shavaun Sam, Michelle Moore, Matthew

Holcomb, Shawanda Woods-Smith, Jamie Monic, Courtney Newton, and the District Attorney of

East Baton Rouge Parish (collectively, “Defendants”). Plaintiffs Julie Alleman, Juliet Catrett, and

P. Wellness Institute, LLC, (together, “Plaintiffs”) oppose the motion, (Doc. 25), and Defendants

have filed a reply, (Doc. 27). The second motion is Plaintiffs’ Motion for a Preliminary Injunction

(Doc. 29) (“MPI”). Defendants oppose that motion, (Doc. 39), and Plaintiffs have filed a reply,

(Doc. 40).

Oral argument was previously scheduled for the MPI for May 5, 2025. (Doc. 37.) However,

all parties agreed that the hearing on the preliminary injunction would only involve oral argument,

with no witnesses being called. (Id. at 1.) The Court thus found that oral argument was no longer

necessary and canceled it. (Doc. 41.)

The Court has carefully considered the law, the facts in the record, and the arguments and

submissions of the parties and is prepared to rule. For the following reasons, the MTD is granted

in part and denied in part. More specifically, the MTD is denied as to the jurisdictional issues, but

the Court finds that Plaintiffs have failed to state viable overbreadth and as-applied challenges, to

which Defendants specifically objected. These claims will be dismissed without prejudice, but the

Court will give Plaintiffs leave to amend to cure these deficiencies. In the meanwhile, the MPI will

be denied without prejudice to Plaintiffs’ right to refile after the Complaint is amended.

I. RELEVANT FACTUAL BACKGROUND

A. Introduction

1. Statutory Framework

a. Psychologists

Title 37 of the Louisiana Revised Statutes is entitled “Professions and Occupations,” and

Chapter 28 of Title 37 is entitled “Psychologists.” This chapter defines the “practice of

psychology” as “the observation, description, evaluation, interpretation, and modification of

human behavior, by the application of psychological principles, methods, and procedures, for the

purpose of eliminating symptomatic, maladaptive, or undesired behavior, and of improving

interpersonal relationships, work and life adjustment, personal effectiveness, behavioral health,

and mental health.” La. Rev. Stat. § 37:2352(8) (emphasis added). This statute continues:

The practice of psychology includes but is not limited to

psychological testing and evaluation or assessment of personal

characteristics such as intelligence, personality, abilities, interests,

aptitudes, and neuropsychological functioning; counseling,

psychoanalysis, psychotherapy, hypnosis, stress management,

biofeedback, behavior analysis and therapy; diagnosis and treatment

of mental and emotional disorder or disability, alcoholism and

substance abuse, and of the psychological aspects of physical

illness, accident, injury, or disability; psycho educational

evaluation, therapy, remediation, and consultation. Psychological

services may be rendered to individuals, families, groups,

institutions, organizations, and the public. The practice of

psychology shall be construed within the meaning of this definition

without regard to whether payment is received for services rendered.

Id.

Additionally, a different subsection defines “psychologist” as “any person licensed as a

psychologist in accordance with the provisions of this Chapter.” Id. § 37:2352(10). This case turns

on the following language from this provision:

A person represents himself to be a psychologist by using any title

or description of services incorporating the words “psychology”,

“psychological”, or “psychologist”, or by using any other terms

which imply that he is qualified to practice psychology or that he

possesses expert qualification in any area of psychology, or if that

person offers to the public or renders to individuals or to groups of

individuals services defined as the practice of psychology in this

Chapter.

Id.

Section 37:2360(A) makes it a misdemeanor (1) “[f]or any person not licensed in

accordance with the provisions of this Chapter . . . to represent himself as a psychologist” and

(2) “[f]or any person not licensed in accordance with the provisions of this Chapter . . . to engage

in the practice of psychology.” Id. § 37:2360(A)(1), (2). Such a misdemeanor “shall be prosecuted

by the district attorney of the judicial district in which the offense was committed in the name of

the people of the state of Louisiana.” Id. § 37:2360(B). Penalties include up to six months

imprisonment and a fine of “not less than one hundred dollars nor more than five hundred dollars,

or both.” Id. § 37:2360(C). “Each violation shall be deemed a separate offense.” Id.

Additionally, “[t]he [Louisiana State Board of Examiners of Psychologists (the “Board”)]

may investigate any evidence or allegation which appears to show that any person is or may be in

violation of any provision of this Chapter.” La. Rev. Stat. § 37:2361(A); see also id. § 2352(2)

(defining “Board” in this Chapter). “The [B]oard may apply for an injunction in any court of

competent jurisdiction to enjoin any person from committing any act which is in violation of this

Chapter.” Id. § 37:2361(B). “If it be established that the defendant has been or is committing an

act which is in violation of this Chapter, the court shall enter a decree perpetually enjoining said

defendant from further committing such act.” Id. § 37:2361(C). Violations of such an objection

may be tried summarily and punished with contempt of court. Id. § 37:2361(D). “The injunctive

proceedings provided for in this Section shall be in addition to, and not in lieu of, all penalties and

other remedies as provided in this Chapter.” Id. § 37:2361(E).

b. Licensed Professional Counselor

Further, Chapter 13 of Title 37 is called “Mental Health Counselors.” A “licensed

professional counselor” is defined as:

any person who holds himself out to the public for a fee or other

personal gain, by any title or description of services incorporating

the words “licensed professional counselor” or any similar term, and

who offers to render professional mental health counseling services

denoting a client-counselor relationship in which the counselor

assumes responsibility for knowledge, skill, and ethical

considerations needed to assist individuals, groups, organizations,

or the general public, and who implies that he is licensed to practice

mental health counseling pursuant to this Chapter.

La. Rev. Stat. § 37:1103(5). Under this law:

“Mental health counseling services” means rendering or offering

prevention, assessment, diagnosis, and treatment, which includes

psychotherapy, of mental, emotional, behavioral, and addiction

disorders to individuals, groups, organizations, or the general public

by a licensed professional counselor, that is consistent with his

professional training as prescribed by R.S. 37:1107(A)(6), by a

provisional licensed professional counselor, that is consistent with

the requirements as prescribed by R.S. 37:1107(F), and code of

ethics/behavior involving the application of principles, methods, or

procedures of the mental health counseling profession.

Id. § 37:1103(7).

But, this statute places certain restrictions on what constitutes “mental health counseling.”

Id. Relevant here, “nothing in this Chapter shall be construed to authorize any person licensed

hereunder to administer or interpret intellectual, personality, developmental, or

neuropsychological tests in accordance with the provisions of R.S. 37:2352(7), except as provided

by LAC 46:LXIII.1702(E), or engage in the practice of psychology . . . .” Id. Further, “[i]f

intellectual, personality, developmental, or neuropsychological tests are deemed necessary, the

licensed professional counselor or provisional licensed professional counselor shall make an

appropriate referral.” Id.

c. Social Workers

Additionally, Chapter 35 of Title 37 is entitled “Social Workers.” This chapter defines

“social worker” as “a person who holds a degree in social work, having successfully completed an

undergraduate or graduate level academic social work program.” La. Rev. Stat. § 37:2703(17).

“Social work practice” is defined as:

[T]he professional application of social work values, theories, and

interventions to one or more of the following: enhancing the

development, problem-solving, and coping capacities of people;

promoting the effective and humane operations of systems that

provide resources and services to people; linking people with

systems that provide them with resources, services, and

opportunities; developing and improving social policy; and

engaging in research related to the professional activities.

Id. § 37:2703(15)(a). Under this subsection:

The practice of social work shall include but not be limited to

clinical social work, planning and community organization, policy

and administration, research, and social work education. Social

work practice is guided by knowledge of human behavior,

biopsychosocial development, social systems and resources,

economic and cultural institutions, and their interactions.

Id.

Critically, “[n]othing in this Chapter shall be construed to authorize any social worker

licensed, certified, provisionally certified, or registered under this Chapter to administer or

interpret psychological tests, or to engage in the practice of psychology, as defined by the

provisions of R.S. 37:2352 . . . .” Id. § 37:2703(15)(c). However, “[n]otwithstanding any

provisions of R.S. 37:2352, persons covered by this Chapter may, based upon scope of practice,

administer, use, or interpret tests of language, education and achievement, adaptive behavioral

tests, and symptom screening checklists instruments, as well as tests of abilities, interests, and

aptitudes.” Id.

2. The Parties

The following allegations are taken from the Complaint (Doc. 1). The well-pled facts are

assumed to be true for purposes of the instant motion. See Paterson v. Weinberger, 644 F.2d 521,

523 (5th Cir. 1981) (describing Rule 12(b)(1) standard); In re Great Lakes Dredge & Dock Co.

LLC, 624 F.3d 201, 210 (5th Cir. 2010) (describing standard for Rule 12(b)(6) motions).

Defendants Shannae Harness, Shavaun Sam, Michelle Moore, Matthew Holcomb, and

Shawanda Woods-Smith are members of the Board. (Compl. ¶¶ 4–7, Doc. 1.) Harness is the Chair

of the Board. (Id. ¶ 4.) Defendant Jamie Monic is the Executive Director of the Board and is

responsible for enforcing its decisions. (Id. ¶ 8.) Defendant Courtney Newton is the Executive

Counsel and Prosecuting Attorney for the Board who “is responsible for pursuing legal action on

behalf of the Board.” (Id. ¶ 9.) The Board, Monic, and Newton are, collectively, the “Board

Defendants.” (Id. ¶ 10.) The Board Defendants are each sued in their official capacity. (Id. ¶¶ 4,

6–9.)

Plaintiffs also sue the District Attorney for East Baton Rouge Parish. (“EBRP DA”). (Id.

¶ 11.) This defendant “is responsible for bringing prosecutions of violations of Louisiana law in

Baton Rouge.” (Id.)

Plaintiffs Julie Alleman and Juliet Catrett own Plaintiff P. Wellness Institute, LLC. (Id.

¶ 3.) P. Wellness Institute offers counseling for adults (age 18 and up) and specializes in the

treatment of trauma-related disorders, mood disorders, and anxiety disorders. (Id. ¶ 20.)

Alleman is a Licensed Professional Counselor, a Licensed Marriage and Family Therapist,

and a Licensed Addiction Counselor under the laws of Louisiana. (Id. ¶ 21.) Catrett is a Licensed

Clinical Social Worker. (Id. ¶ 22.) Plaintiffs allege that both Alleman and Catrett have “studied

principles, methods, and procedures of psychology and use[ ] those principles in [their] work at

P. Wellness Institute to improve [their] clients’ lives by supporting and encouraging them to

modify their behavior.” (Id. ¶¶ 21–22.) Both plaintiffs also “clearly identify the licenses that they

possess” and “have never represented to the public or told their clients that they are licensed

psychologists.” (Id. ¶ 23.) According to Plaintiffs, “Louisiana law permits Alleman and Catrett to

treat their patients consistent with their professional training provided that they do not represent

themselves as psychologists or their work as psychological.” (Id. ¶ 24.)

B. Source of the Dispute

Before 2024, P. Wellness Institute was known as Psychological Wellness Institute, LLC.

(Compl. ¶ 25, Doc.1.) However:

In January 2024, a representative of the Board apprised Alleman and

Catrett that a complaint had been filed alleging that they were in

violation of Louisiana law by using the word “psychological” in the

name of their business. The representative further stated that a

preliminary investigation has substantiated the allegations of the

complaint and supported multiple violations of Louisiana law.

(Id. ¶ 26.)

To comply, Plaintiffs changed the name of their company to P. Wellness Institute. (Id.

¶ 27.) The Board later dismissed the complaint against them. (Id. ¶ 28.)

Plaintiffs want to return the name of their company back to “Psychological Wellness

Institute.” (Id. ¶ 29.) “They believe it accurately describes the services they provide.” (Id.)

Additionally, given Louisiana law, Alleman and Catrett currently do not use the term

“psychological” to describe any of the services they provide to clients or potential clients. (Id.

¶ 30.) They want “to explain to their clients, when appropriate, that, although they are not licensed

psychologists, they have studied psychological principles, methods, and procedures, and apply

them in their treatment to help clients modify their behavior and improve their lives.” (Id. ¶ 31.)

According to Plaintiffs, “Defendants lack any reasonable basis for believing that Alleman and

Catrett’s use of the word psychological would mislead any potential or actual consumers or

clients.” (Id. ¶ 32.)

Plaintiffs plead that the Board Defendants will charge Alleman and Catrett with violating

Louisiana law if they either restore the earlier name of their company or use the term

“psychological” to “accurately describ[e] their services to their clients.” (Id. ¶ 33.) Moreover,

unless enjoined, the Board Defendants will refer these violations to the EBRP DA. (Id. ¶ 34.) And,

without an injunction, the EBRP DA will charge Alleman and Catrett with “misdemeanor[s] . . .

if they change their company name back to Psychological Wellness Institute or use the term

‘psychological’ in accurately describing their services to their client.” (Id. ¶ 35.)

C. Claims

Plaintiffs bring two claims for relief. (Compl. ¶¶ 36–48, Doc. 1.) Plaintiffs first assert an

as-applied challenge. (Id. ¶¶ 36–37.) Plaintiffs argue that Louisiana law violates Alleman and

Catrett’s First Amendment rights to the extent it “precludes [them] from accurately using the word

‘psychological’ in the name of their company or in a description of their services[.]” (Id. ¶ 37.)

Plaintiffs also assert a “First Amendment overbreadth” claim. (Id. at 6; see id. ¶¶ 39–48.)

According to Plaintiffs, “anyone who has studied psychological principles, methods, and

procedures, and attempts to use them to improve someone else’s life has engaged in the practice

of psychology and represented himself or herself as a licensed psychologist.” (Id. ¶ 40.) Thus, “life

coaches,” “Alcohol[ics] Anonymous members,” and parents could be “engag[ed] in the practice

of psychology and represent[ ] themselves as licensed psychologists” if they “have studied

psychological principles, methods, and procedures, and attempt to use them to help” clients,

members, or their children, respectively. (Id. ¶¶ 41–43.) “Indeed, anyone who has studied

psychological principles, methods, and procedures, and attempts to use them to help a friend or

relative, or gives a lecture to an audience with the hope of improving their lives, has engaged in

the practice of psychology and represented themselves as licensed psychologists.” (Id. ¶ 44.)

But, “[e]ach of the persons . . . has a First Amendment right to speak[,]” and “Louisiana

has no valid interest in preventing them from doing so” as long as they “do not explicitly

misrepresent themselves as licensed psychologists[.]” (Id. ¶ 45.) Plaintiffs assert “[a] substantial

number of applications of Louisiana’s restriction on free speech in precluding people from

engaging in the ‘practice of psychology’ are unconstitutional and outweigh its limited legitimate

sweep.” (Id. ¶ 46.) Plaintiffs also claim that the statute is “vague and overbroad” for failing to

define “psychological principles, methods, and procedures[.]” (Id. ¶ 47.) “Accordingly,

Louisiana’s law prohibiting people from engaging in the practice of psychology or representing

themselves as psychologists is overbroad and unconstitutional.” (Id. ¶ 48.)

Plaintiffs seek, inter alia:

A. A declaratory judgment that defendants are violating plaintiffs’

First and Fourteenth Amendments rights by enforcing Louisiana’s

prohibition on using forms of the word “psychological”;

B. A declaratory judgment that the definition of “practice of

psychology” is overbroad and thus violates the First and Fourteenth

Amendments; [and]

C. Injunctive relief precluding defendants from commencing any

action against plaintiffs to enforce any prohibition against using a

form of the word “psychology” or against engaging in the practice

of psychology[.]

(Id. at 8.)

II. MTD: JURISDICTIONAL CHALLENGES

A. Rule 12(b)(1) Standard

In a Rule 12(b)(1) motion, a party may raise the defense of lack of subject matter

jurisdiction. See Fed. R. Civ. P. 12(b)(1). “Under Rule 12(b)(1), a claim is ‘properly dismissed for

lack of subject-matter jurisdiction when the court lacks the statutory or constitutional power to

adjudicate’ the claim.” In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286

(5th Cir. 2012) (quoting Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006,

1010 (5th Cir. 1998)).

“The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting

jurisdiction.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing McDaniel v.

United States, 899 F. Supp. 305, 307 (E.D. Tex. 1995)). “Accordingly, the plaintiff constantly

bears the burden of proof that jurisdiction does in fact exist.” Id. (citing Menchaca v. Chrysler

Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). But, “[a] motion under 12(b)(1) should be

granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his

claim that would entitle him to relief.” Home Builders Ass’n of Miss., 143 F.3d at 1010; see also

Ramming, 281 F.3d at 161 (citing Home Builders Ass’n of Miss. with approval).

There are two forms of Rule 12(b)(1) challenges to subject matter jurisdiction: “facial

attacks” and “factual attacks.” See Paterson, 644 F.2d at 523. “A facial attack consists of a Rule

12(b)(1) motion unaccompanied by supporting evidence that challenges the court’s jurisdiction

based solely on the pleadings.” Harmouche v. Consulate Gen. of the State of Qatar, 313 F. Supp.

3d 815, 819 (S.D. Tex. 2018) (citing Paterson, 644 F.2d at 523). In considering a “facial attack,”

the court “is required merely to look to the sufficiency of the allegations in the complaint because

they are presumed to be true. If those jurisdictional allegations are sufficient the complaint stands.”

Paterson, 644 F.2d at 523. Whereas, “[a] factual attack challenges the existence of subject matter

jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings—such as

testimony and affidavits—may be considered.” Harmouche, 313 F. Supp. 3d at 819 (citing

Paterson, 644 F.2d at 523). The “court is free to weigh the evidence and satisfy itself as to the

existence of its power to hear the case.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)

(citation omitted). “[N]o presumptive truthfulness attaches to the plaintiff's allegations, and the

existence of disputed material facts will not preclude the trial court from evaluating for itself the

merits of jurisdictional claims.” Id. When a factual attack is made, the plaintiff, as the party seeking

to invoke jurisdiction, must “submit facts through some evidentiary method and . . . prov[e] by a

preponderance of the evidence that the trial court does have subject matter jurisdiction.” Paterson,

644 F.2d at 523.

B. Standing

1. Parties’ Arguments

a. Defendants’ Original Memorandum (Doc. 22-1)

Preliminarily, Defendants focus on three aspects of the Board Defendants’ licensure law:

[O]nly those having earned a psychology license can “represent

himself as a psychologist” to unknowing customers, La. R.S.

37:2360(A)(1), by either (1) “using any title . . . incorporating the

words ‘psychology,’ ‘psychological,’ or ‘psychologist,’” or like

terms, “which imply that he is qualified to practice psychology or

that he possesses expert qualification in any area of psychology,”

(the “Title Provision”) or (2) “using . . . description of services

incorporating th[ose] words,” (the “Services Provision”). La. R.S.

37:2352(10). Neither can one “engage in the practice of

psychology” without a license. La. R.S. 37:2360(A)(2) (the

“Practice Provision”); see La. R.S. 37:2352(8) (defining “practice

of psychology”).

(Doc. 22-1 at 9–10.)

Turning to the argument, Defendants concede that Plaintiffs have standing to pursue

alleged injuries arising from the “Title Provision,” but that “does not give them carte blanche

standing to seek relief from all the State’s regulations of the practice of psychology.” (Id. at 14.)

Plaintiffs must show standing for each claim, for each defendant, and for each form of relief they

seek, and they fail to do so. (Id. at 15.) Defendants see this as a traceability problem—Plaintiffs

must show traceability for the “specifically challenged conduct—not all unlawful conduct.” (Id at

15–16.) “Nor can a plaintiff bootstrap an injury-in-fact traced from one provision of the law to

challenge a different provision.” (Id. at 16.)

Here, Plaintiffs’ requests for declaratory and injunctive relief “lack[ ] any factual

allegations of any cognizable injury-in-fact traceable to either the discrete Practice Provision or

the Services Provision.” (Id.) And to show a pre-enforcement challenge, Plaintiffs must

demonstrate “circumstances that render the threatened enforcement sufficiently imminent.” (Id.

(citations omitted).) Plaintiffs do not believe that what they are doing violates Louisiana law, and

they have not shown that “their current practices have been chilled or otherwise affected.” (Id. at

17 (cleaned up).)

As to the Practice Provision, Plaintiffs do not allege that they engage in the practice of

psychology or that they intend to do so; in fact, they claim that Louisiana law allows them to treat

their patients as long as they don’t represent themselves or their work as psychological. (Id.) Thus,

by their own admission, they do not violate the statute. (Id. at 17–18.)

Concerning the Services Provision, Plaintiffs again fail to allege that their services have

been chilled or affected by this law. (Id. at 18.) Plaintiffs treat their patients consistent with their

professional training as a licensed counselor and social worker, as “Louisiana law permits.” (Id.)

Further, Plaintiffs allege “that they ‘would like to explain to their clients’ that they ‘apply

[psychological principles, methods, and procedures] in their treatment to help clients modify their

behavior and improve their lives[,]’ [b]ut Plaintiffs do not allege anywhere that they actually intend

to apply those principles, methods, or procedures.” (Id.)

In sum, Defendants argue: “Plaintiffs have thus failed to show that they are actually

violating [the Practice Provision and the Services Provision], much less that they face a credible

threat of enforcement. They therefore do not have standing to challenge those provisions.” (Id.

(cleaned up).)

b. Plaintiffs’ Opposition (Doc. 25)

Plaintiffs respond that they satisfied the requirements of standing. (Doc. 25 at 16.) They

pled that they want (a) to change the name of their business back to Psychological Wellness

Institute and (b) “to explain to their clients their familiarity with, and use of, psychology in

describing the services they are providing.” (Id. at 16–17.) Plaintiffs also pled “facts suggesting a

credible threat of prosecution because it alleges that plaintiffs already have been threatened with

prosecution and were forced to change the name of their company as a consequence.” (Id. at 17.)

Plaintiffs then assert that “Defendants cannot slice and dice the Representation Law.” (Id.

(cleaned up).) Plaintiffs say there is no authority for the proposition that the Representation Law

is in fact three provisions, and Defendants’ authority requiring a provision-by-provision analysis

is distinguishable. (Id. at 17–18.) Such parsing is also particularly inappropriate for the Plaintiffs’

overbreadth challenge, as that relies on application to other people. (Id. at 18.)

Plaintiffs then say that Defendants misstate their interest and standing. Plaintiffs

specifically allege that they “would like to explain to their clients, when appropriate, that, although

they are not licensed psychologists, they have studied psychological principles, methods, and

procedures, and apply them in their treatment to help clients modify their behavior and improve

their lives.” (Id. at 18 (quoting Compl. ¶¶ 30–31, Doc. 1).) They also allege that Defendants will

take adverse action against them if they use the term “psychological” to describe their services.

(Id. (quoting Compl. ¶¶ 33–35, Doc. 1).) Thus, “Plaintiffs are ‘seriously interested’ in disobeying

the prohibition in the Representation Law against using certain words in describing their services,

and defendants are ‘seriously intent on’ enforcing it.” (Id. at 19.) Plaintiffs only currently do not

use the term to describe their services because Louisiana law forbids it, and they are not required

to violate the law to confer standing. (Id.) Finally, Defendants ignore the part of their Complaint

which states that Plaintiffs “studied principles, methods, and procedures of psychology and use[ ]

those principles in [their] work at P. Wellness Institute to improve [their] clients’ lives[.]” (Id.

(emphasis omitted) (quoting Compl. ¶¶ 21–22, Doc. 1).)

Finally, even if Defendants were correct, Plaintiffs would have standing to assert their

facial overbreadth challenge. (Id. at 19–20.) Plaintiffs cite Board of Trustees v. Fox, 492 U.S. 484

(1989), where the Supreme Court purportedly allowed an overbreadth challenge even though the

case involved commercial speech. (Id. at 19–20.) Further, even if Defendants are correct, the

Representation Law involves non-commercial and commercial speech, so the Court can analyze

those parts that involve non-commercial. (Id. at 20–21.)

c. Defendants’ Reply (Doc. 27)

Defendants begin by re-emphasizing that standing must be evaluated claim-by-claim and

for each form of relief. (Doc. 27 at 6–7.) “[W]hat Plaintiffs derogatorily term slicing and dicing is

what precedent requires: limiting the lawsuit to the actual controversy between the parties.” (Id. at

7.) Using that framework, “the ‘Representation Law’ is not some omnibus law capable of

wholesale judicial suppression, as Plaintiffs try to package it.” (Id. at 7.) The Court must look to

the specific provision at issue, including for First Amendment claims. (Id. at 7–8.)

Here, Plaintiffs admit that “their case depends entirely on a pre-enforcement challenge

premised on future injuries based on possible violations of these provisions.” (Id. at 8.) “Even a

‘pre-enforcement review’ cannot escape the fundamental requirements of standing—they are

permitted only under circumstances that render the threatened enforcement sufficiently imminent.”

(Id. (cleaned up).) “And here, Plaintiffs cannot meet this requirement, as they themselves do not

view their conduct as violating the Practice or Service Provisions.” (Id. (citations omitted).)

Without an actual violation, Plaintiffs cannot say they face imminent threatened enforcement. (Id.

at 8–9.)

To be clear, Plaintiffs might have philosophical objections to

Louisiana law, and we invite them engage in the democratic

legislative process to cure any foibles. But a case in federal court

(especially one seeking to override state law) must center around

what injuries these plaintiffs have suffered, how those injuries are

traceable to Louisiana’s law—as enforced by these Defendants—

and how the Court can redress those injuries. And even then, the

relief must be tailored to Plaintiffs’ actual injury. See Gill v.

Whitford, 585 U.S. 48, 68 (2018) (“limited to the inadequacy that

produced the injury in fact that the plaintiff has established”). As

pled, Plaintiffs plainly lack standing to challenge the Practice and

Service Provisions and are not entitled—in any justiciable world—

to the associated requested relief.

(Doc. 27 at 9.)

2. Applicable Law

“A proper case or controversy exists only when at least one plaintiff ‘establish[es] that

[she] ha[s] standing to sue.’” Murthy v. Missouri, 144 S. Ct. 1972, 1985–86 (2024) (quoting Raines

v. Byrd, 521 U.S. 811, 818 (1997); Dep’t of Com. v. New York, 588 U.S. 752, 766 (2019)). A

plaintiff “must show that [he or] she has suffered, or will suffer, an injury that is ‘concrete,

particularized, and actual or imminent; fairly traceable to the challenged action; and redressable

by a favorable ruling.’” Id. at 1986 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409

(2013) (internal quotation marks omitted)). “These requirements help ensure that the plaintiff has

‘such a personal stake in the outcome of the controversy as to warrant [his or her] invocation of

federal-court jurisdiction.’” Id. (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)).

“The plaintiff ‘bears the burden of establishing standing as of the time [he or she] brought

th[e] lawsuit and maintaining it thereafter.’” Murthy, 144 S. Ct. at 1986 (first alterations by this

Court; second by Murthy) (quoting Carney v. Adams, 592 U.S. 53, 59 (2020)). The plaintiff “must

support each element of standing ‘with the manner and degree of evidence required at the

successive stages of the litigation.’” Id. (quoting Lujan, 504 U.S. 555, 561). “At the pleading stage,

general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a

motion to dismiss we presume that general allegations embrace those specific facts that are

necessary to support the claim.” Hancock Cnty. Bd. of Supervisors v. Ruhr, 487 F. App’x 189, 195

(5th Cir. 2012) (quoting Lujan, 504 U.S. at 561 (internal quotation marks and alterations

omitted)).1

Critically, “standing is not dispensed in gross.” Murthy, 144 S. Ct. at 1988 (quoting

TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021)). “That is, ‘plaintiffs must demonstrate

standing for each claim that they press’ against each defendant, ‘and for each form of relief that

they seek.’” Id. (quoting TransUnion, 594 U.S. at 431). Thus, “for every defendant, there must be

at least one plaintiff with standing to seek an injunction.” Id.

“To establish Article III standing, an alleged ‘injury in fact’ must be ‘concrete,

particularized, and actual or imminent.’” Consumer Data Indus. Ass’n v. Texas ex rel. Paxton, No.

1 “At the preliminary injunction stage, then, the plaintiff must make a ‘clear showing’ that [he or] she is ‘likely’ to

establish each element of standing.” Murthy, 144 S. Ct. at 1986 (quoting Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 22 (2008) (emphasis deleted)). “Where . . . the parties have taken discovery, the plaintiff cannot rest on ‘mere

allegations,’ but must instead point to factual evidence.” Id. (quoting Lujan, 504 U.S. at 561 (internal quotation marks

omitted)).

21-51038, 2023 WL 4744918, at *4 (5th Cir. July 25, 2023) (per curiam) (quoting Clapper, 568

U.S. at 409). “An allegation of future injury may establish standing if the threatened injury is

‘certainly impending or there is a substantial risk that the harm will occur.’” Id. (quoting Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)). “Additionally, a plaintiff can demonstrate a

cognizable injury in a pre-enforcement challenge only if it establishes that (1) it has ‘an intention

to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by

a statute,’ and (2) ‘there exists a credible threat of prosecution thereunder.’” Braidwood Mgmt.,

Inc. v. Equal Emp. Opportunity Comm’n, 70 F.4th 914, 924–25 (5th Cir. 2023) (quoting Driehaus,

573 U.S. at 159). See also Neese v. Becerra, 123 F.4th 751, 753 (5th Cir. 2024) (per curiam) (“The

right to pre-enforcement review is qualified and permitted only ‘under circumstances that render

the threatened enforcement sufficiently imminent.’” (quoting Driehaus, 573 U.S. at 159)).

Further, “[w]hen a party asserts a facial challenge to a statute under the First Amendment,

courts may permit third-party standing when a plaintiff demonstrates that a provision that validly

restricts its own speech is overbroad.” Nat’l Fed’n of the Blind of Texas, Inc. v. Abbott, 647 F.3d

202, 210 (5th Cir. 2011) (citing Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956–

57 (1984)). “A[ ] statute is overbroad if it validly regulates some expressive conduct but also

reaches substantial protected speech.” Id. (citing City of Houston, Tex. v. Hill, 482 U.S. 451, 456–

57 (1987)). “The overbreadth doctrine permits a litigant to ‘challenge a statute not because their

own rights of free expression are violated, but because of a judicial prediction or assumption that

the statute’s very existence may cause others not before the court to refrain from constitutionally

protected speech or expression.’” Id. (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)).

Nevertheless, “the overbreadth doctrine applies on a provision by provision basis: ‘the

plaintiff must establish injury under a particular provision of a regulation that is validly applied to

its conduct, then “assert a facial challenge, under the overbreadth doctrine, to vindicate the rights

of others not before the court under that provision.”’” Id. (quoting SEIU, Local 5 v. City of Hous.,

595 F.3d 588, 598 (5th Cir. 2010) (quoting CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451

F.3d 1257, 1271 (11th Cir. 2006))).

“Article III standing retains rigor even in an overbreadth claim.” Id. (quoting Fairchild v.

Liberty Indep. Sch. Dist., 597 F.3d 747, 754 (5th Cir. 2010)). “[I]f [Plaintiffs are] limited by one

provision of an ordinance and make[ ] a facial challenge due to the overbreadth of a different

provision, there is no constitutional standing, i.e., there is no ‘case or controversy,’ as to the

separate provision.” Id. (quoting SEIU, Local 5, 595 F.3d at 598). “Although various prudential

standing principles have been relaxed in some First Amendment cases, this relaxation does not

eliminate the distinct and independent requirement of Article III that the dispute between the

parties must amount to a case or controversy.” Id. (quoting Henderson v. Stalder, 287 F.3d 374,

385 n.4 (5th Cir. 2002) (Jones, C.J., concurring)). See also id. at 209–10 (dismissing First

Amendment overbreadth claim as to one provision of challenged law for lack of standing because

the plaintiff Charities “have not offered any evidence to show that they intend to hire professional

resellers to engage in activity covered by’ the [other] provisions.”).

However, “whereas there must be some evidence that a rule would be applied to the

plaintiff in order for that plaintiff to bring an as-applied challenge, that is not the case for facial

challenges.” Speech First, Inc. v. Fenves, 979 F.3d 319, 335 (5th Cir. 2020) (cleaned up). “Instead,

when dealing with pre-enforcement challenges to recently enacted (or, at least, non-moribund)

statutes that facially restrict expressive activity by the class to which the plaintiff belongs, courts

will assume a credible threat of prosecution in the absence of compelling contrary evidence.” Id.

(cleaned up).

3. Analysis

The Court makes two points at the outset. First, Defendants concede that there is standing

for the Title Provision claim. (See Doc. 22-1 at 14–15.) Thus, that provision warrants no further

analysis here.

Second, both sides make valid points about the approach the Court must take. On the one

hand, as Defendants contend, the Court must conduct an issue-by-issue and claim-by-claim

analysis for standing—first under the Services Provision and then under the Practice Provision.

On the other hand, Plaintiffs are correct that the various provisions are interconnected, and that

will be relevant to the analysis as well.

With those guideposts established, the Court agrees with Plaintiffs; the Complaint alleges

standing as to each claim.

As to the Services Provision, La. Rev. Stat. § 37:2352(10) provides in relevant part:

A person represents himself to be a psychologist by using any title

or description of services incorporating the words “psychology”,

“psychological”, or “psychologist”, or . . . or if that person offers to

the public or renders to individuals or to groups of individuals

services defined as the practice of psychology in this Chapter.

Id.

Here, Plaintiffs claim that a representative of the Board notified them that they violated

Louisiana law “by using the word ‘psychological’ in the name of their business” and that “a

preliminary investigation has substantiated the allegations of the complaint and supported multiple

violations of Louisiana law.” (Compl. ¶ 26, Doc. 1.) Plaintiffs changed the name of their business,

but they would like to restore the previous name of “Psychological Wellness Institute” because

“[t]hey believe it accurately describes the services they provide.” (Id. ¶¶ 27–29.) Further, Plaintiffs

claim that they at present do not use the term “psychological” to describe their services, but they

want “to explain to their clients, when appropriate, that, although they are not licensed

psychologists, they have studied psychological principles, methods, and procedures, and apply

them in their treatment to help clients modify their behavior and improve their lives.” (Id. ¶¶ 30–

31.) According to the Complaint, if they do either, they will be charged with violating Louisiana

law and referred by the Board Defendants to the EBRP DA for prosecution for the above-described

misdemeanors. (Id. ¶¶ 33–35.) And the provisions, Plaintiffs allege, violate the First Amendment.

(Id. ¶¶ 36–48.)

Likewise, as to the facial challenge, the Complaint pleads that “anyone who has studied

psychological principles, methods, and procedures, and attempts to use them to help a friend or

relative, or gives a lecture to an audience with the hope of improving their lives, has engaged in

the practice of psychology and represented themselves as licensed psychologists.” (Id. ¶ 44.)

Further, Plaintiffs claim that “Louisiana’s law prohibiting people from engaging in the practice of

psychology or representing themselves as psychologists is overbroad and unconstitutional.” (Id.

¶ 48 (emphasis added).)

Considering these allegations, Plaintiffs have clearly alleged a sufficiently imminent

injury-in-fact, traceable to these Defendants, which is redressable through declaratory and

injunctive relief. That is, Plaintiffs have shown “an intention to engage in a course of conduct

arguably affected with a constitutional interest, but proscribed by a statute,” and “a credible threat

of prosecution thereunder.’” Braidwood Mgmt., 70 F.4th at 924–25; see also Speech First, Inc. v.

Fenves, 979 F.3d 319, 335 (5th Cir. 2020) (“These overlapping policies strongly suggest that

enforcement of one produces a credible threat of enforcement of the others. Speech First has clearly

shown a credible threat of enforcement of those policies upon its members.”).

Likewise, as to the Practices Provision, Louisiana law defines “practice of psychology” as

“the observation, description, evaluation, interpretation, and modification of human behavior, by

the application of psychological principles, methods, and procedures, for the purpose of

eliminating symptomatic, maladaptive, or undesired behavior, and of improving interpersonal

relationships, work and life adjustment, personal effectiveness, behavioral health, and mental

health.” La. Rev. Stat. § 37:2352(8) (emphasis added). Louisiana law then makes it a misdemeanor

“[f]or any person not licensed in accordance with the provisions of this Chapter . . . to engage in

the practice of psychology.” Id. § 37:2360(A)(2).

Here, Plaintiffs allege that both Alleman and Catrett have “studied principles, methods,

and procedures of psychology and use[ ] those principles in [their] work at P. Wellness Institute

to improve [their] clients’ lives by supporting and encouraging them to modify their behavior.”

(Id. ¶¶ 21–22 (emphasis added).) And, again, Plaintiffs have already been the subject of one

complaint and investigation for similar conduct, so it is reasonable to infer they could be again for

violating this interrelated provision. Further, for their facial challenge, “courts will assume a

credible threat of prosecution in the absence of compelling contrary evidence.” Speech First, 979

F.3d at 335 (cleaned up). Thus, Plaintiffs have engaged in conduct prohibited by the Practice

Provision, and they face a credible threat of enforcement. Once again, they have standing.

Defendants rely heavily on Neese, but the Court finds that case distinguishable. There,

certain doctors brought a pre-enforcement challenge to certain parts of the Affordable Care Act

and Title IX. Neese, 123 F.4th at 752. The Notice at issue prohibited discrimination on the basis

of sexual orientation or gender identity. Id. Both doctors “claim to be ‘unwilling to provide gender-

affirming care, in at least some situations, to patients who assert a gender identity that departs from

their biological sex. . . . Put another way, the doctors want to be sure that the physical bodies of

their patients are cared for properly.’” Id. at 753. The Fifth Circuit explained:

Neither Plaintiff believes that their medical practices constitute

gender-identity discrimination. However, they are fearful that HHS

will view their practices as violating the Notification. Plaintiffs fear

that HHS will bring an enforcement proceeding against them and

terminate their federal funding if they do not “provide everything a

transgender patient might demand” (even if it is not doable in their

body) or “unconditionally play along with a patient’s asserted

gender identity.”

Id.

The district court granted summary judgment to the plaintiffs, but the Fifth Circuit found

that Plaintiffs lacked Article III standing. Id. at 752. The appellate court explained:

Plaintiffs have not met their burden to establish standing in this case

because they have not shown how their conduct constitutes gender-

identity discrimination under any plausible reading of the

Notification. Plaintiffs themselves do not view their conduct as

gender-identity discrimination, nor do they offer any evidence that

HHS will view it as such. They have valid, non-discriminatory

reasons for their medical practices, including that acting otherwise

would be malpractice or would require them to provide services

outside of their specialty areas. Lastly, their current practices have

not been chilled or otherwise affected, and there is no evidence that

an enforcement proceeding is imminent. Cf. Braidwood Mgmt. Inc.

v. EEOC, 70 F.4th 914, 929 & n.27 (5th Cir. 2023) (holding

plaintiffs had standing to bring pre-enforcement challenge where the

EEOC previously brought an enforcement action under similar

circumstances).

Id. at 753–54.

Here, conversely, Plaintiffs allege that their First Amendment rights have been chilled and

affected; they were forced to change the title of their business, and a fair inference from their

Complaint is that they are prevented from describing their services in the manner in which they

would like for fear of an enforcement action and prosecution. Further, another fair inference from

the Complaint is that, since Plaintiffs were investigated and threatened for violating the Title

Provision, they would also be investigated and threatened if they violated the Services Provision.

Finally, Plaintiffs specifically allege that they currently engage in the “practice of psychology,” as

that statute is broadly written, and they likewise face a credible enforcement action here too. This

is particularly true given that “[a] motion under 12(b)(1) should be granted only if it appears certain

that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to

relief.” Home Builders Ass’n of Miss., 143 F.3d at 1010.

Rather, the Court finds this case closer to Braidwood. There, two Texas employers sued

the EEOC seeking declaratory judgments that they were exempt from Title VII’s prohibitions on

discrimination on the basis of sexual orientation or gender identity because of, inter alia, the First

Amendment’s free exercise and expressive association clauses. Braidwood, 70 F.4th at 918–921.

On appeal, the EEOC’s “most compelling” argument on justiciability was a lack of any injury-in-

fact:

The EEOC accurately notes that it has taken no enforcement action

against these plaintiffs. And plaintiffs do not allege that they are

aware of any applicants or current employees engaged in

“homosexual or transgender behavior” or that they have taken any

adverse employment action that could violate [the Supreme Court’s]

interpretation of Title VII. Thus, the EEOC says there is no standing.

Id. at 924. But the Fifth Circuit sided with Plaintiffs:

To raise a constitutional challenge, the petitioner did not need to

break the law and thereby expose himself to liability. Instead, he

merely needed to show a “genuine threat” of enforcement. Id.

Indeed, “ ‘[t]he purpose of the Declaratory Judgment Act is to settle

“actual controversies” before they ripen into violations of law or

breach of some contractual duty.’” [Chevron U.S.A., Inc. v.

Traillour Oil Co., 987 F.2d 1138, 1154 (5th Cir. 1993) (quoting

Hardware Mut. Cas. Co. v. Schantz, 178 F.2d 779, 780 (5th Cir.

1949)).]

Plaintiffs’ credible-threat analysis is quite simple. First, they admit

they are breaking EEOC guidance, which the EEOC does not

seriously contest. They posit statutory and constitutional issues with

the laws under which they are at risk of being prosecuted: Those

issues, they allege, are already forcing plaintiffs to choose either to

restrict their religious practices or to risk potential penalties. And the

EEOC’s actions in Harris, which the EEOC won under a less

violative set of facts, indicate that plaintiffs, too, have a legitimate

fear of prosecution, chilling their rights. “The loss of First

Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Elrod v. Burns, 427

U.S. 347, 373 [ ] (1976) (plurality opinion). Finally, the EEOC

refuses to declare affirmatively that it will not enforce Title VII

against the plaintiffs’ policies on homosexual and transgender

behavior.

Id. at 926–927. Two cases, one of which was “landmark,” “readily establish a credible threat to

Braidwood’s and Bear Creek’s current practices.” Id. at 927.

Further, Braidwood was not a situation where the Court was required to adjudicate a

hypothetical situation:

We know what the EEOC says violates its guidance and the law; we

know what Braidwood’s exact policies are; and we have admissions

from the EEOC that Braidwood’s current practices violate Title VII.

Per Harris, we have evidence that the EEOC has brought an

enforcement action against a similar violator. No party contests the

facts or requests additional information to be presented to the court.

There is remarkably little else needed to adjudicate the issue.

Id. at 929.

Ultimately, “Plaintiffs [were] reasonably worried about the implications of [Harris] on

their practices. They [were] entitled to receive clarification from this court before stifling their

constitutional practices or otherwise exposing themselves to punishment or enforcement action.

That is a core purpose of a declaratory judgment.” Id. at 927–28.

Braidwood is closer to the mark than Neese, as here too Plaintiffs have shown a “credible-

threat” of enforcement under the Services and Practices Provisions. While they are not yet

violating the Services law, they would but for the threat of enforcement. And, as alleged, their

conduct falls within the broad language of the Practices Provision. (See Compl. ¶¶ 22, 40, 44–48,

Doc. 1.) Further, they too “posit statutory and constitutional issues with the laws under which they

are at risk of being prosecuted: Those issues, they allege, are already forcing plaintiffs to choose

either to restrict their [First Amendment rights] or to risk potential penalties.” Braidwood, 70 F.4th

at 926. And, like the EEOC’s actions with Harris, here, the Board Defendants have already flexed

their muscles and threatened prosecution with one of the three provisions at issue—meaning it is

reasonable to infer that they would for the others. As in Braidwood, “[t]here is remarkably little

else needed to adjudicate the issue[s]” with the Service Provision. Id. at 929. Finally, here too the

Court must be concerned with “[t]he loss of First Amendment freedoms, for even minimal periods

of time. . . .” Id. at 927.

For all these reasons, the Court finds that Plaintiffs have standing under the Title, Services,

and Practices Provisions. As a result, Defendants’ MTD will be denied on this issue.

C. Sovereign Immunity

1. Parties’ Arguments

Defendants argue that the claims against the Board Defendants are precluded by sovereign

immunity. (Doc. 22-1 at 19.) The Board is a state agency for purposes of the Eleventh Amendment,

so the claims are barred without an applicable exception. (Id.) Further, Plaintiffs cannot rely on Ex

parte Young, say Defendants, because (1) “at most, the Board has discretion to investigate

violations,” and that is insufficient on its own, (id. at 19–20); and (2) misdemeanors are prosecuted

by the EBRP DA, not the Board, (id. at 20).

Plaintiffs dispute these arguments. (Doc. 25 at 21.) First, Defendants have not shown that

the Board is an arm of the State, as they wholly fail to conduct the required analysis or offer any

evidence. (Id. at 21–22.) Second, Ex parte Young is applicable because the Board is authorized to

investigate and seek injunctive relief for violations of Chapter 28 under La. Rev. Stat. § 37:2361.

(Id. at 22.) Third, Defendants’ arguments are wrong because (a) Defendants’ discretion argument

would gut sovereign immunity, as nearly every official (like prosecutors) have some discretion,

(id. at 22–3); (b) “the Board Defendants have already exercised their discretion to enforce the

Representation Law against these plaintiffs[,]” (id. at 23); and (c) “virtually every case challenging

licensing schemes is brought against the board that enforces the scheme,” (id. (citations omitted)).

Plaintiffs then distinguish Defendants’ two cases. (Id. at 23–24.) Finally, Defendants err in

maintaining that the EBRP DA’s authority to prosecute criminally somehow precludes an action

against the Board Defendants for civil enforcement under a different statute. (Id. at 24–25.)

In reply, Defendants largely repeat themselves: (1) the Board is an arm of the state, and

Plaintiffs have failed to show otherwise; (2) the Board has only discretionary authority, which is

insufficient; and (3) the EBRP DA has ultimate authority, so the “sole justiciable claim is limited

to District Attorney Moore.” (Doc. 27 at 9–10.)

2. Applicable Law

“Generally, ‘sovereign immunity bars private suits against nonconsenting states in federal

court.’” Book People, Inc. v. Wong, 91 F.4th 318, 334 (5th Cir. 2024) (quoting City of Austin v.

Paxton, 943 F.3d 993, 997 (5th Cir. 2019)). “This bar also applies to suits like this one ‘against

state officials or agencies that are effectively suits against a state.’” Id. (quoting City of Austin, 943

F.3d at 997).

“Under the Ex parte Young exception to sovereign immunity, however, a plaintiff can seek

prospective injunctive relief ‘against individual state officials acting in violation of federal law.’”

Id. (quoting City of Austin, 943 F.3d at 997 (citation omitted)). “To be a proper defendant under

Ex parte Young, a state official ‘must have some connection with the enforcement of’ the law being

challenged.” Mi Familia Vota v. Ogg, 105 F.4th 313, 325 (5th Cir. 2024) (quoting Ex parte Young,

209 U.S. at 157). The three “guideposts” which “aid the decision” are:

(1) the state official has “more than the general duty to see that the

laws of the state are implemented,” i.e., a “particular duty to enforce

the statute in question”; (2) the state official has “a demonstrated

willingness to exercise that duty”; and (3) the state official, through

her conduct, “compel[s] or constrain[s persons] to obey the

challenged law.”

Mi Familia, 105 F.4th at 325 (quoting Texas All. for Retired Ams. v. Scott, 28 F.4th 669, 672 (5th

Cir. 2022)).

Thus, “[t]o satisfy the required enforcement connection, the state official must have a duty

beyond ‘the general duty to see that the laws of the state are implemented.’” Book People, 91 F.4th

at 335 (quoting City of Austin, 943 F.3d at 999–1000 (quoting Morris v. Livingston, 739 F.3d 740,

746 (5th Cir. 2014))). See also Mi Familia, 105 F.4th at 325 n.7 (finding it “not legally significant”

that this formulation combined the first and second “guideposts”). “Rather, the official must have

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

that duty.’” Book People, 91 F.4th at 335 (quoting City of Austin, 943 F.3d at 1000 (quoting Morris,

739 F.3d at 746)). “[This] analysis is ‘“provision-by-provision”: The officer must enforce “the

particular statutory provision that is the subject of the litigation.”’” Mi Familia, 105 F.4th at 327

(quoting Tex. All. for Retired Ams. v. Scott, 28 F.4th 669, 672 (5th Cir. 2022) (quoting Tex.

Democratic Party v. Abbott, 978 F.3d 168, 179 (5th Cir. 2020))). “We have defined ‘enforcement’

as ‘compulsion or constraint,’ so if the official does not compel or constrain anyone to obey the

challenged law, enjoining that official could not stop any ongoing constitutional violation.” Id.

(cleaned up).

“Plaintiffs need only show a ‘scintilla of enforcement by the relevant state official.’” Id.

(quoting Tex. Democratic Party, 978 F.3d at 179 (internal quotation marks and citation omitted)).

The Fifth Circuit has “noted that the Article III standing analysis and Ex parte Young analysis

significantly overlap, such that a finding of standing tends toward a finding that a plaintiff may

sue the official under the Ex parte Young exception.” Id. (cleaned up).

Additionally, “the inquiry into whether a suit is subject to the Young exception does not

require an analysis of the merits of the claim.” City of Austin, 943 F.3d at 998 (citing Verizon Md.,

Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 646 (2002)). “Rather, ‘a court need only conduct a

“straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law

and seeks relief properly characterized as prospective.”’” Id. (quoting Va. Off. for Prot. & Advoc.

v. Stewart, 563 U.S. 247, 255 (2011) (alteration in original) (quoting Verizon, 535 U.S. at 645)).

3. Analysis

Having carefully considered the matter, the Court finds that Defendants are not entitled to

dismissal on this ground. Preliminarily, the Court agrees with Defendants that the Board is an arm

of the state for purposes of the Eleventh Amendment. While Defendants did not provide much

argument or any evidence on this issue, they did cite Cerwonka v. Louisiana, No. 17-1095, 2018

WL 1867195, at *5 (W.D. La. Mar. 26, 2018), report and recommendation adopted sub nom.

Cerwonka v. Louisiana, No. 17-1095, 2018 WL 1867094 (W.D. La. Apr. 18, 2018). Cerwonka

persuasively found that the Board “is a state agency for purposes of Eleventh Amendment

immunity[.]” Id. Cerwonka reasoned that the Board was similar to the Louisiana State Board of

Medical Examiners, which was found by the Fifth Circuit to be a state agency for these purposes.

2018 WL 1867195, at *4–5 (citing Fairley v. Louisiana, 254 F. App’x 275, 277 (5th Cir. 2007)).

This Court sees no reason to depart from those decisions.

That said, the Ex parte Young exception applies because the Board has established each of

the Mi Familia guideposts. By law, the Board is “authorized and empowered to . . . [c]ause the

prosecution and enjoinder of all persons violating this Chapter, and incur necessary expenses

therefor.” La. Rev. Stat. § 37:2353 (C)(6). Accordingly, “[t]he [B]oard may apply for an injunction

in any court of competent jurisdiction to enjoin any person from committing any act which is in

violation of this Chapter.” Id. § 37:2361(B). Likewise, the Board’s enforcement letter stated: “As

the regulatory authority charged with governing the practice of psychology in this state, the

[Board] is mandated by law to take legal action against persons who engage in the unlicensed

practice of psychology.” (Doc. 29-4 (emphasis added).) The Board sought “voluntary corrective

action,” but the Board specifically said, “Failure to do so will result in the [Board] both filing for

civil injunctive relief and making criminal referrals to the appropriate law enforcement agencies.”

(Id.) Again, Plaintiffs have shown (1) “more than the general duty” to enforce the law; (2) “a

demonstrated willingness to exercise that duty[;]” and (3) “the state official, through her conduct,

compels or constrains persons to obey the challenged law.” Mi Familia, 105 F.4th at 325 (cleaned

up).

Defendants rely on Mi Familia for the proposition that “Discretionary authority to act, on

its own, is insufficient to give rise to a particular duty to act, i.e., a ‘sufficient connection [to]

enforcement,’” 105 F.4th at 327 (quoting City of Austin, 943 F.3d at 998 (alteration in original)),

but Defendants put too much emphasis on the word “discretionary” and ignore the rest of the quote.

What the Fifth Circuit ultimately decided on this issue provides clarity:

In sum, “[t]o be amenable to suit under [Ex parte Young], the state

actor must both possess the authority to enforce the challenged law

and have a sufficient connection [to] the enforcement of the

challenged act.” Haverkamp v. Linthicum, 6 F.4th 662, 670 (5th Cir.

2021) (third alteration in original) (emphasis added) (quotation

marks and citations omitted). Here, Ogg has discretionary authority

to bring criminal prosecutions within her jurisdiction, including for

violations of the Texas Election Code. This authority is not derived

from that code itself but is rooted in the Texas constitution. Ogg has

a general duty to “see that justice is done,” TEX. CODE CRIM. P.

art. 2.01, but that is not enough. Texas All., 28 F.4th at 674.

Mi Familia, 105 F.4th at 328.

Here, unlike Mi Familia, Plaintiffs are not relying on a general duty of the Board but on a

specific grant of power to enforce the Board’s licensure law and enjoin violations thereof—one

which the Board itself recognized in its enforcement letter that it was “mandated by law to take[.]”

(Doc. 29-4.) Thus, unlike Mi Familia, Plaintiffs are not relying on “[d]iscretionary authority to act,

on its own;” rather, the Board has a “a particular duty to act” and thus a “sufficient connection to

enforcement.” Mi Familia, 105 F.4th at 327.

Next, Defendants quote City of Austin for the proposition that, “Where a state actor or

agency is statutorily tasked with enforcing the challenged law and a different official is the named

defendant, our Young analysis ends.” 943 F.3d at 998. But this quote, again, needs to be seen in

context; the Fifth Circuit provided the following immediately after that quote:

For example, in Morris v. Livingston, an inmate in the custody of

the Texas Department of Criminal Justice (“TDCJ”) sued the

Governor of Texas, challenging the constitutionality of a statute that

required TDCJ inmates to pay a “health care services fee” if an

inmate initiated a visit to a health care provider. 739 F.3d 740, 742

(5th Cir. 2014). The statute specifically tasked the TDCJ as

responsible for its enforcement. Id. at 745-46. Thus, a panel of this

court held that the Governor was an improper defendant and upheld

the district court’s dismissal of the inmate’s claims against him. Id.

at 746 (“[The challenged statute] makes clear that TDCJ is the

agency responsible for the section’s administration and enforcement

. . . . It does not [ ] task [the] Governor [ ] with its enforcement.”).

Id. Thus, the City of Austin line simply stands for the unremarkable proposition that a plaintiff

seeking to use the Young exception must try to enjoin the right official.

But, at the heart of the argument, the Court agrees with Plaintiffs—the EBRP DA’s

authority to prosecute criminal misdemeanors does not gainsay the Board’s independent authority

to “cause the prosecution and enjoinder” of those in violation of the law governing psychologists,

La. Rev. Stat. § 37:2353 (C)(6) (emphasis added) (cleaned up), and to “fil[e] for civil injunctive

relief[,]” (Doc. 29-4.) That is, even if the EBRP DA is charged with criminal enforcement, the

Board is charged with civil enforcement, and Young can apply in such situations. See Ex parte

Young, 209 U.S. at 155–56 (“individuals who, as officers of the state, are clothed with some duty

in regard to the enforcement of the laws of the state, and who threaten and are about to commence

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

unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of

equity from such action.” (emphasis added)); see also Inst. for Free Speech v. Johnson, No. 23-

1370, 2024 WL 4526047, at *9 (W.D. Tex. Aug. 30, 2024) (finding Ex parte Young exception

applied to certain commissioners where law provided, inter alia, that “the commission may initiate

civil enforcement actions and refer matters to the appropriate prosecuting attorney for criminal

prosecution” (quoting Tex. Gov’t Code § 571.171)).

For all these reasons, the Court finds that the claims against Defendants are not barred by

the Eleventh Amendment. Their motion will be denied on this issue.

III. MTD: PLEADING CHALLENGES

A. Rule 12(b)(6) Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Hamilton v. Dall. Cnty.,

79 F.4th 494, 499 (5th Cir. 2023) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). “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.” Id. (quoting Iqbal, 556 U.S. at 678).

“To be plausible, the complaint’s ‘[f]actual allegations must be enough to raise a right to

relief above the speculative level.’” Great Lakes, 624 F.3d at 210 (quoting Twombly, 550 U.S. at

555). “In deciding whether the complaint states a valid claim for relief, we accept all well-pleaded

facts as true and construe the complaint in the light most favorable to the plaintiff.” Id. (citing Doe

v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)). The Court does “not accept as true

‘conclusory allegations, unwarranted factual inferences, or legal conclusions.’” Id. (quoting Ferrer

v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007)). “A claim for relief is implausible on its face

when ‘the well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct.’” Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011)

(quoting Iqbal, 556 U.S. at 679).

The Court’s “task, then, is ‘to determine whether the plaintiff has stated a legally

cognizable claim that is plausible, not to evaluate the plaintiff’s likelihood of success.’” Doe ex

rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (quoting

Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing

Iqbal, 556 U.S. at 678)). “[A] claim is plausible if it is supported by ‘enough fact[s] to raise a

reasonable expectation that discovery will reveal evidence of [the alleged misconduct].’” Calhoun

v. City of Hous. Police Dep’t, 855 F. App’x 917, 919–20 (5th Cir. 2021) (per curiam) (quoting

Twombly, 550 U.S. at 556).

B. Parties’ Arguments

1. Defendants’ Original Memorandum (Doc. 22-1)

Defendants next argue that, if the Court proceeds on the merits, Plaintiffs have stated no

viable First Amendment claim. (Doc. 22-1 at 20.) First, “Plaintiffs’ only cognizable as-applied

challenge concerns the Title Provision and the trade name for their business—core commercial

speech.” (Id. at 21.) While the exact bounds of what constitutes “commercial speech” are not

defined, trade names fall within that category. (Id.) So, here, Plaintiffs’ use of the term

“psychology” in their business name is a form of commercial speech. (Id. at 21–22.) Consequently,

Plaintiffs cannot rely on the case of Serafine v.Branaman, 81 F.3d 354 (5th Cir. 2016), because

that case involved political speech. (Id. at 22.)

Additionally, trade names are not protected by the First Amendment when they are

“inherently misleading” or “inherently likely to deceive.” (Id. at 22–23.) Trade names can be

particularly misleading, especially in the medical profession. (Id. at 23 (collecting cases).) Here,

Plaintiffs readily admit they do not engage in the practice of psychology, so their trade name is

deceptive commercial speech.

Further, even if the trade name was not inherently deceptive, Defendants satisfy the factors

from Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S.

557, 561 (1980)). (Id. at 24.) The State has a compelling interest in protecting the public health

and welfare from the unauthorized practice of psychology, and the Title Provision directly

advances that interest. (Id. at 25.) Finally, the regulation is no “more extensive than is necessary

to serve that interest” because it is in line with Fifth Circuit case law and directly addresses the

relevant issue. (Id. at 25.)

Defendants argue that the overbreadth claim easily fails as well. The Fifth Circuit has

recognized that “[t]he overbreadth doctrine does not apply to commercial speech,” (id. at 26

(quoting Serafine, 810 F.3d at 364)), and so the challenge concerning the Title Provision cannot

succeed. (Id.)

2. Plaintiffs’ Opposition (Doc. 25)

Plaintiffs respond: “The complaint alleges that Louisiana law prohibits plaintiffs from

saying things that are true about what they do: they provide services based in psychology.

Defendants’ Rule 12(b)(6) motion simply ignores the allegations of the complaint and Louisiana

law.” (Doc. 25 at 25.) The Complaint alleges that Plaintiffs have studied psychological principles,

use those principles, and that Louisiana law allows this, and they would like to tell their clients

this truth. (Id. at 25–26.)

Under the Central Hudson factors, this speech is not misleading, particularly since they do

not represent themselves to be licensed psychologists. (Id. at 26.) Defendants ignore the allegations

of the Complaint. (Id.) Plaintiffs argue:

Whether plaintiffs may engage in the practice of psychology, as

defined in La. R.S. § 37:2352(7), is not really relevant, but an

appropriate reading of the complaint (and Louisiana law) suggests

that they come pretty close. The complaint alleges that plaintiffs use

“principles, methods, and procedures” of psychology to help clients

modify their undesired behavior. That certainly sounds a great deal

like the definition in Section 37:2352(7).

(Id. at 27.) Plaintiffs then cite to the licensure law for professional counselors and social workers

to explain how they “engage in treatment that fits the definition of the practice of psychology.”

(Id.) For instance, both can lawfully use “psychotherapy” to treat patients. (Id. at 27.)

Perhaps most tellingly, La. R.S. § 37:2365 states that other licensed

professionals “shall be permitted to render services consistent with

their professional training and code of ethics. . .” Plainly, there

would be no point to this section if there were not at least some

question as to whether the practice of other professionals constituted

the practice of psychology. One does not need an exemption from a

rule if it is not applicable in the first place. See also La. AG Op. 11-

0276, 2012 La. AG LEXIS 208, at *14 (rejecting objection by the

Board of Examiners of Psychologists to new rules promulgated by

the Professional Counselors Board of Examiners that specified

coursework for Licensed Marriage and Family Therapists in

psychotherapeutic services and psychopathology; the Psychologists

Board claimed that the rules violated the statute governing the

practice of psychology, but the opinion notes that Section 37:2365

precludes any such argument). . . .

But, again, whether plaintiffs engage in the practice of psychology

is irrelevant. It is enough that they offer psychological services, and

the complaint alleges that they do because they apply psychological

principles, methods, and procedures in working with their patients.

(Id. at 27–28.)

Plaintiffs cite authority of their own purporting to hold that “the First Amendment generally

precludes states from prohibiting the use of specificized words.” (Id. at 28–29 (collecting cases).)

Indeed, this case is stronger than that authority, because those sometimes deal only with the use of

a job title, whereas, here, the Representation Law precludes more. (Id. at 29.)

Defendants also cite a number of cases to support their position that the use of the term

“psychology” in any form is misleading, but these decisions are distinguishable. (Id at 30.) Some

reached this decision after discovery, or evidence was produced, or even after trial. (Id.)

Defendants also only apply the Central Hudson factors as it relates to the Title Provision,

but the “Representation Law . . . plainly prohibits far more.” (Id. at 30.) Defendants fail to explain

“why prohibiting the words ‘psychology’ or ‘psychological’ directly advances that interest, much

less why any potential consumer misunderstanding could not be mitigated with a disclaimer.” (Id.)

Plaintiffs next assert that the Representation Law also restricts non-commercial speech—

namely, it prevents Plaintiffs from describing their services to their clients using certain barred

words. (Id. at 30–31.) The law is thus content-based, which means it is presumptively

unconstitutional and must pass strict scrutiny. (Id. at 31.) Defendants fail to make any effort to

satisfy this standard. (Id.)

Defendants also fail to dispute the law’s overbreadth. (Id.) This makes sense, say Plaintiffs,

because Serafine found a narrower law overbroad and violative of the First Amendment. (Id.

(citing Serafine, 810 F.3d at 369–70).)

Plaintiffs close by arguing that, if they fail to state a viable claim, the Court should give

them leave to amend to cure any deficiencies. (Id. at 32.) That is, even if Defendants are correct

that Plaintiffs need more detail, the Court should allow them to replead their claims. (Id.)

3. Defendants’ Reply (Doc. 27)

Defendants begin their reply: “The errors that plague Plaintiffs’ standing arguments bleed

over into their commercial speech analysis. Do not lose the lede: Plaintiffs concede that Louisiana

law regulates commercial speech twice over.” (Doc. 27 at 11.) Defendants reiterate that “trade

names are regulable commercial speech,” and the laws here are permissible. (Id. (citations

omitted).)

Defendants next reiterate that overbreadth challenges do not apply to commercial speech.

(Id. at 12.) Plaintiffs cannot overcome their need for Article III standing to assert the non-

commercial speech claims. (Id.) Ultimately, “Plaintiffs failed to state a claim for relief under the

First Amendment on their only justiciable claim.” (Id. at 13.)

C. Preliminary Note

The Court must first emphasize what is and what is not before the Court. Defendants’

Rule 12(b)(6) attack is limited to those allegations challenging the Title Provision. (See Doc. 22-1

at 21–26.) Thus, the Court does not consider whether Plaintiffs have stated viable claims (as

applied or facial) under the Services Provision or Practice Provision. Instead, the Court will look

solely to the Title Provision.

D. As-Applied Challenge

1. Applicable Law

Commercial speech is “[e]xpression related solely to the economic interests of the speaker

and its audience.” Express Oil Change, L.L.C. v. Mississippi Bd. of Licensure for Pro. Eng’rs &

Surveyors, 916 F.3d 483, 487 n.2 (5th Cir. 2019) (citing Cent. Hudson, 447 U.S. at 561). “Although

the Constitution protects commercial speech, that protection is more limited than for most other

speech.” Express Oil, 916 F.3d at 487 (citing Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456

(1978)).

Government officials may regulate commercial speech only if they satisfy the following

test:

At the outset, [a court] must determine whether the expression is

protected by the First Amendment. For commercial speech to come

within that provision, it at least must concern lawful activity and not

be misleading. Next, [a court] ask[s] whether the asserted

governmental interest is substantial. If both inquiries yield positive

answers, [a court] must determine whether the regulation directly

advances the governmental interest asserted, and whether it is not

more extensive than is necessary to serve that interest.

Id. (quoting Cent. Hudson, 447 U.S. at 566). “The party seeking to uphold a restriction on

commercial speech carries the burden of justifying it.” Id. (quoting Bolger v. Youngs Drug Prods.

Corp., 463 U.S. 60, 71 n.20 (1983)). “This burden is a heavy one, and may not be satisfied by mere

speculation or conjecture.” Id. at 487–88 (cleaned up).

“In order for commercial speech to be protected under the First Amendment, ‘it at least

must concern lawful activity and not be misleading.’” Id. (quoting Am. Acad. of Implant Dentistry

v. Parker, 860 F.3d 300, 306 (5th Cir. 2017) (quoting Cent. Hudson, 447 U.S. at 566)).

“Commercial statements that are actually or inherently misleading do not enjoy the protections of

the First Amendment.” Id. (citing, inter alia, In re R.M.J., 455 U.S. 191, 203 (1982) (“Misleading

advertising may be prohibited entirely.”)). “Statements that are only potentially misleading,

however, are safeguarded by the First Amendment.” Id. “In such a case, a state actor must show

that the restriction directly and materially advances a substantial state interest in a manner no more

extensive than necessary to serve that interest.” Id. (cleaned up).

2. Inherently or Actually Misleading

a. Applicable Law

“States’ ability to limit the use of titles and trade names to protect the public from ‘false,

deceptive, and misleading.’ advertising is well-established.” Serafine, 810 F.3d at 360. These cases

“arose in the context of commercial speech where a party was trying to use a professional title or

trade name for business purposes.” Id. (citing Maceluch v. Wysong, 680 F.2d 1062, 1068–70 (5th

Cir. 1982) (per curiam) (upholding Texas licensing law that prevented doctors of osteopathy from

using “M.D.” in connection with their medical practice); Accountant’s Soc’y of Va. v. Bowman,

860 F.2d 602, 605–06 (4th Cir. 1988) (upholding statute that prohibited unlicensed accountants

from using the title “public accountant” because of the danger of “misleading commercial

speech”); Brandwein v. Cal. Bd. of Osteopathic Exam’rs, 708 F.2d 1466, 1469–70 (9th Cir. 1983)

(upholding restriction preventing doctor of osteopathy from holding himself out as an M.D.

because of the danger of false or misleading commercial speech)). “[A] statement is actually or

inherently misleading when it deceives or is inherently likely to deceive.” Express Oil, 916 F.3d

at 488 (quoting Joe Conte Toyota, Inc. v. La. Motor Vehicle Comm’n, 24 F.3d 754, 756 (5th Cir.

1994)).

Thus, in Express Oil, one key question was whether the trade name “Tire Engineers” was

“actually or inherently misleading” when used by an automative services center rather than a

licensed engineer. 916 F.3d at 489. The Fifth Circuit looked to dictionary definitions of the term

“engineer.” Id. An “engineer” could be defined as “a person who carries through an enterprise or

brings about a result esp[ecially] by skillful or artful contrivance” or “a person who is trained or

skilled in the technicalities of some field ([such] as sociology or insurance) not usu[ally]

considered to fall within the scope of engineering and who is engaged in using such training or

skill in the solution of technical problems.” Id. (quoting WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY, UNABRIDGED 752 (1986)). The Fifth Circuit also looked to the definition of

“inherent,” which means “involved in the . . . essential character of something. . . .” Id. (citing

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED 1163 (1986)). The Fifth

Circuit concluded:

That this definition of “engineer” does not meet the Board’s

preferred definition does not make its use inherently misleading.

[Am. Acad., 860 F.3d at 307–08 (“The problem here is the absence

of any group imprimatur behind the label ‘specialist.’ Nonetheless,

the term ‘specialist’ is not rendered devoid of intrinsic meaning, and

thereby inherently misleading, simply because the organization

responsible for conferring specialist credentials on a particular

dentist is not identified in the advertisement.”); see also Byrum, 566

F.3d at 447.] The term “engineer” can mean many things in different

contexts, and it is certainly not limited to those professionals

licensed by Mississippi to practice engineering. It is not, therefore,

“devoid of intrinsic meaning.” Joe Conte Toyota, 24 F.3d at 756

(quoting Peel, 496 U.S. at 112 (Marshall, J., concurring)).

Additionally, as Express explains, “[t]he district court’s analysis

failed to account for the manner in which the [Tire Engineers] mark

is transmitted—on the company’s website, which describes its

automotive services (not any professional engineering services), and

at its retail stores, which appear like any other store that performs

automotive services. . . .” Consequently, viewing the evidence in a

light most favorable to the non-moving party—here, Express—the

use of Tire Engineers is not inherently misleading under our

precedent.

Id. at 489–90.

As to whether the name Tire Engineers was actually misleading, the Fifth Circuit found

that it was not:

A review of Supreme Court and Fifth Circuit precedent shows that

the district court erred in deciding that the Tire Engineers name is

actually misleading. In Peel, a four-Justice plurality suggested that

evidence of deception is necessary to sustain a finding that

commercial speech is actually misleading—a conclusion that the

concurring and dissenting justices did not dispute. Based on Peel, as

well as our own precedent, Joe Conte Toyota, 24 F.3d at 756, the

Board was required to present evidence of deception. Because it did

not, the district court erred in concluding that the Tire Engineers

mark was actually misleading. . . . Again, even when the evidence

is independently viewed in a light most favorable to the Board, there

is no evidence in the record, including the affidavits of Josh

Henderson, the decisions of the other state agencies, the news

articles and website captures, and the survey, to support a holding

of actual deception. . . . Given that the name is neither actually nor

inherently misleading, it enjoys limited First Amendment

protections, as discussed in Central Hudson.

Id. at 491 & n.14.

Similarly, Abramson v. Gonzalez, 949 F.2d 1567 (11th Cir. 1992), was cited with approval

by Plaintiffs, (Doc. 25 at 29), and by Express Oil, 916 F.3d at 493 & n.15, and this case too warrants

discussion. In Abramson, “dozens of practicing psychologists, clinical social workers and

therapists” were “practic[ing] psychology or the allied fields in Florida[.]” 949 F.2d at 1569. They

brought suit against, inter alia, members of the Florida Board of Psychological Examiners and the

Florida Board of Clinical Social Work, Marriage and Family Therapy and Mental Health

Counseling. Id. at 1570. Plaintiffs wanted to “hold themselves out as psychologists or allied

professionals in advertising, telephone directories, office signs or stationary.” 949 F.2d at 1574.

The Eleventh Circuit noted several times that there was no restriction on the plaintiffs

practicing psychology. See id. at 1570 (“No laws in Florida prevent anyone from practicing

psychology or one of the allied fields . . .”); see also id. at 1572 (“Since Florida law does not

restrict the practice of psychology, several of the plaintiffs apparently practice what would

commonly be referred to as psychology in the state.”). Accordingly, this appellate court held:

[A]s long as Florida has not restricted the practice of psychology,

the state may not prevent the plaintiffs from calling themselves

psychologists in their commercial speech. If they are allowed to

practice psychology, . . . they must be allowed to say truthful things

about their work. As long as the plaintiffs do not hold themselves

out as licensed professionals, they are not saying anything

untruthful, for they are in fact psychologists and are permitted to

practice that profession under current state law.

Id at 1576. The Eleventh Circuit noted that it was “not bound by Florida’s definition of a

psychologist, but instead must consider whether allowing the plaintiffs to call themselves

psychologists will be actually or potentially misleading.” Id.

Examining the commercial speech that the plaintiffs wish to make

in light of the Supreme Court’s instructions in Peel, we find the

speech only potentially, not inherently misleading. The plaintiffs

clearly would enjoy no right falsely to hold themselves out as

“licensed psychologists.” But under the laws of Florida, they may

practice psychology without licenses, and truthful advertising which

conveys this message would be neither false nor inherently

misleading. As they argue in their own brief before this court,

plaintiffs ask not for the right to call themselves “licensed

psychologists,” but only for the right to call themselves

psychologists.

Id. at 1577. The Eleventh Circuit also found that the state’s substantial interest could be “furthered

by more, not less disclosure.” Id. at 1578.

If the state is concerned about the dangers posed by “unqualified

persons,” the current system whereby anyone may practice

psychology seems an odd one indeed. Nonetheless, as long as that

remains the system in Florida, the defendants must adopt narrowly

tailored means for directly advancing the state's interest while

preserving the plaintiff's right to disseminate truthful commercial

speech. . . .

In Parker, the court said a general dentist’s advertising could avoid

the potential for misleading the public by indicating that while he

specialized in orthodontics, he did not hold an orthodontia specialty

license. “A disclaimer to such an effect would adequately address

the state’s concern.” Parker, 818 F.2d at 510. Just as Parker noted

that there were separate telephone listings for “Dentists” and

“Dentists–Orthodontists,” there could be separate listings in Florida

for “Psychologists” and “Psychologists–Licensed.” As the Supreme

Court said in Peel, we must assume that the public can distinguish

between a university degree on the wall and a license issued by the

state.

Id. In reversing the grant of summary judgment in favor of the defendants, the Eleventh Circuit

concluded:

The Supreme Court has recognized the public’s right to receive

truthful commercial information under the first amendment, in

addition to the speaker’s right to disseminate information helpful to

his or her commercial interests. “[T]he First Amendment protects

the public’s interest in receiving information.” Pacific Gas & Elec.

Co., 475 U.S. at 8 [ ]. “[P]eople will perceive their own best interests

if only they are well enough informed, and the best means to that

end is to open the channels of communication, rather than to close

them. . . . [T]he First Amendment presumes that some accurate

information is better than no information at all.” Central Hudson,

447 U.S. at 562 [ ] (citations and quotations omitted). The current

versions of the Psychological Services Act and the Clinical

Counseling Act place an unconstitutional burden on commercial

speech.

Id.

But, in Maceluch, the Fifth Circuit looked at a similar issue and reached the opposite result.

In Maceluch, the plaintiffs were physicians who received degrees of “Doctor of Osteopathy” rather

than “Doctor of Medicine.” 680 F.2d at 1064. They sued the Texas State Board of Medical

Examiners because the “Texas licensing scheme [ ] prevent[ed] them from using the designation

‘M.D.’ after their names on their letterhead and on other public listings of diverse nature.” Id. The

parties stipulated that “(t)here is no substantial difference between accredited medical schools

irrespective of the terminology of the degree conferred, except that students attending medical

schools conferring the degree ‘Doctor of Osteopath’ are required to take, and be examined in,

several courses in manipulative therapy[.]” Id.

Plaintiffs argued in part that this restriction violated the First Amendment, “especially in

light of the allegedly generic nature of the designation ‘M.D,’” id., but the district court rejected

the argument based on “the state’s interest in protecting the public from the deceptive and

misleading use of [ ] trade names.” Id. at 1069 (quoting Friedman v. Rogers, 440 U.S. 1, 15

(1979)). The district court explained:

Plaintiffs urge that the term “M.D.” has become so synonymous in

the public mind with qualified, licensed physicians, that to prevent

osteopaths from describing themselves as M.D.’s will confuse the

public as to the true nature of their profession and training.

Conceding that some members of the public may indeed

comprehend the term M.D. to connote competent physicians, it is

not irrational for the state to conclude that for plaintiffs to use the

designation “M.D.” would nevertheless deceive those who know the

difference between doctors who received M.D. degrees and D.O.

degrees. Curiously, plaintiffs emphasize numerous instances where

their possession of a D.O. rather than an M.D. degree led physicians

with M.D.’s to view them with suspicion. This argument only

suggests a rational basis for the legislative decision. Evidently, the

market cares about the distinction. Courts should not end the

dissemination of information reasonably perceived by the

legislature to be useful to the functioning of the market, whether the

Court thinks the market is correct in any normative sense.

Plaintiffs’ plight is not without appeal. The substantive content of

the education and the level of clinical skills imparted to those

graduating from osteopathic schools does not differ materially from

that received by those who have graduated from schools graduating

M.D.’s. Yet, osteopaths face a uniform licensing exam, and are

likely to enjoy fewer financial and professional benefits from their

calling. Still, the similar substantive content and skill level of

osteopaths does not alter the fact that the osteopathic school which

trained the plaintiffs has historically emphasized a different

approach to the art of medicine. At least one solution is for the less

well known D.O.’s themselves to provide the marketplace with the

information necessary to make an informed choice. Where the

legislature has implicitly required this solution, it is not for the

courts to say otherwise.

Id. at 1069. Thus, there was no constitutional violation. Id. at 1069–70.

The Fifth Circuit “affirmed on the basis of the district court’s opinion.” Id at 1063.

Significantly, Maceluch was cited with approval by the Fifth Circuit recently in Serafine for the

proposition that the “[s]tates’ ability to limit the use of titles and trade names to protect the public

from ‘false, deceptive, and misleading’ advertising is well-established.” 810 F.3d at 360.

b. Analysis

Having carefully considered the matter, the Court will grant the motion on this issue.

Again, Plaintiffs want to return the name of their company back to “Psychological Wellness

Institute.” (Compl. ¶ 29, Doc. 1.) Plaintiffs allege that “Defendants lack any reasonable basis for

believing that Alleman and Catrett’s use of the word psychological would mislead any potential

or actual consumers or clients.” (Id. ¶ 32.)

But, even construing these allegations in a light most favorable to Plaintiffs and drawing

reasonable inferences in their favor, the Court finds that Plaintiffs fail to plead that the desired

trade name is not actually or inherently misleading. It’s significant that, in the Complaint, the term

“inherent” is completely absent. Indeed, the Complaint wholly fails to make any effort to explain

how or why the trade name is not inherently misleading. Further, Plaintiffs alleges there is no

reasonable basis for Defendants to believe that the term “psychological” would mislead consumers

or clients, but this is wholly conclusory. Without more, Plaintiffs are not entitled to relief.

Express Oil does not save the Complaint. First, there is no allegation about “the manner in

which the [desired] mark [will be] transmitted,” which was a factor considered by Express Oil in

evaluating whether the trade name was inherently misleading. 916 F.3d at 490. Second, and more

importantly, Plaintiffs allege that both Alleman and Catrett have “studied principles, methods, and

procedures of psychology and use[ ] those principles in [their] work at P. Wellness Institute to

improve [their] clients’ lives by supporting and encouraging them to modify their behavior.”

(Compl. ¶¶ 21–22, Doc. 1.) But, these allegations are again conclusory; Plaintiffs do not describe

what the relevant psychological “principles, methods, and procedures” are or how they use them

in their practice. Thus, unlike Express Oil, the Complaint fails to explain how “[t]he term

[‘psychological’] can mean many things in different contexts” and how “it is certainly not limited

to those professionals licensed by [Louisiana] to practice [psychology.]” 916 F.3d at 489.

But Abramson is even more fatal. Abramson was premised on the fact that Florida law

allowed the plaintiffs to engage in the practice of psychology. See Abramson, 949 F.2d at 1576–

77 (“But under the laws of Florida, they may practice psychology without licenses, and truthful

advertising which conveys this message would be neither false nor inherently misleading.”).

Specifically, the Eleventh Circuit held:

[A]s long as Florida has not restricted the practice of psychology,

the state may not prevent the plaintiffs from calling themselves

psychologists in their commercial speech. If they are allowed to

practice psychology, . . . they must be allowed to say truthful things

about their work. As long as the plaintiffs do not hold themselves

out as licensed professionals, they are not saying anything

untruthful, for they are in fact psychologists and are permitted to

practice that profession under current state law.

Id. at 1576. But, critically, Louisiana law does expressly prohibit Plaintiffs from both engaging in

the practice of psychology and representing themselves as psychologists. See La. Rev. Stat.

§ 37:1103(7) (stating, in the chapter governing “licensed professional counselors,” that “nothing

in this Chapter shall be construed to authorize any person licensed hereunder to . . . engage in the

practice of psychology . . . .”); see also id. § 37:2703(15)(c) (“Nothing in this Chapter shall be

construed to authorize any social worker . . . to administer or interpret psychological tests, or to

engage in the practice of psychology, as defined by the provisions of R.S. 37:2352 . . . .”); see also

id. § 37:2360(A)(1), (2) (making it a misdemeanor “[f]or any person not licensed in accordance

with the provisions of this Chapter . . . to represent himself as a psychologist . . . [or] to engage in

the practice of psychology.”). And the Complaint acknowledges this. (See Compl. ¶ 24, Doc. 1

(“Louisiana law permits Alleman and Catrett to treat their patients consistent with their

professional training provided that they do not represent themselves as psychologists or their work

as psychological.” (emphasis added); see id. ¶ 48 (implicitly recognizing that “Louisiana[ ] law

prohibit[s] people from engaging in the practice of psychology or representing themselves as

psychologists . . .”).) Thus, in Louisiana, unlicensed practitioners cannot represent themselves as

psychologists or practice psychology without violating Louisiana law, and nothing in Abramson

contradicts this outcome. That is, unlike Abramson, Plaintiffs would not be engaged in truthful

speech permitted by Louisiana law, and that makes Abramson distinguishable.

Rather, the same reasoning from Maceluch applies here with greater force. M.D.’s and

D.O.’s did not differ materially in their education or level of clinical skills, yet the Fifth Circuit

still found that it would be misleading for D.O.’s to convey to the public false information in their

trade name. 680 F.2d at 1069. And this was so even though their “plight [was] not without appeal.”

Id. Similarly, here, while the Court is sympathetic to Plaintiffs’ position, they are specifically

prohibited by Louisiana law from engaging in the practice of psychology, and, under Maceluch, it

would be unlawfully deceiving to allow them to use the term “psychological” in their trade name.

Again, “[c]ommercial statements that are actually or inherently misleading do not enjoy

the protections of the First Amendment.” Express Oil, 916 F.3d at 488. As a result, Plaintiffs’ as-

applied challenge related to the Title Provision can be dismissed on this ground alone. However,

for the reasons given below, the Court will grant leave to amend, and will thus proceed to the next

part of the analysis.

3. Potentially Misleading

a. Applicable Law

“Under Central Hudson, a restriction on commercial speech survives First Amendment

scrutiny if: (1) ‘the asserted governmental interest is substantial,’ (2) the regulation ‘directly

advances’ that interest, and (3) the regulation ‘is not more extensive than is necessary to serve that

interest.’” Express Oil, 916 F.3d at 492 (quoting Pub. Citizen Inc. v. Louisiana Att’y Disciplinary

Bd., 632 F.3d 212, 219 (5th Cir. 2011) (quoting Thompson v. W. States Med. Ctr., 535 U.S. 357,

367 (2002))). “Each of these latter three inquiries must be answered in the affirmative for the

regulation to be found constitutional.” Id. (quoting Thompson, 535 U.S. at 367).

The first two requirements are straightforward in this case. The Fifth Circuit has recognized

that a licensing board “has a substantial interest in ‘ensuring the accuracy of commercial

information in the marketplace[.]” Id. (quoting Pub. Citizen, 632 F.3d at 220). Moreover, “to

satisfy the ‘directly advances’ inquiry,’ [a] [b]oard [must] . . . ‘demonstrate that the harms it recites

are real and that its restriction will in fact alleviate them to a material degree.’” Id. (quoting Pub.

Citizen, 632 F.3d at 221).

“The final inquiry is whether the regulation is more extensive than is necessary to serve

the identified interest.” Id. (quoting Pub. Citizen, 632 F.3d at 219 (quoting Thompson, 535 U.S. at

367)). “‘[T]he free flow of commercial information is valuable enough to justify imposing on

would-be regulators the costs of distinguishing . . . the harmless from the harmful. . . .’” Id. at 492–

93 (quoting Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989) (quoting Shapero

v. Ky. Bar Ass’n, 486 U.S. 466, 478 (1988)). “The means employed by the government actor need

not be the ‘least restrictive means,’ but it must be ‘narrowly tailored to achieve the desired

objective.’” Id. (quoting Fox, 492 U.S. at 480).

In Express Oil, the Court further explained:

In Byrum, 566 F.3d at 449, concerning the terms “interior design”

and “interior designer,” we held that “the State could have

eliminated any constitutional challenge here by not limiting use of

the terms ‘interior design’ and ‘interior designer’ but by allowing

only designers who satisfy its licensing qualifications to represent

themselves as ‘licensed’ interior designers.” See also Am. Acad.,

860 F.3d at 311–12. Further, this court and others have identified

“[s]ufficient disclaimers [as] a means to address consumer

deception.” [Am. Acad., 860 F.3d at 311; Abramson, 949 F.2d at

1575–78 (finding unconstitutional a Florida law regulating the use

of the term “psychologist”); see also Peel, 496 U.S. at 110; Bates v.

State Bar of Ariz., 433 U.S. 350, 384 (1977).] This remedy

seemingly derives from Peel, Bates, and earlier Supreme Court

cases that “described various regulatory safeguards which the state

may impose in place of [a] total ban on commercial speech.”

Abramson, 949 F.2d at 1577.

916 F.3d at 493. Thus, the Fifth Circuit reversed the lower court’s decision in favor of the

engineering board because it “fail[ed] to address why alternative, less-restrictive means, such as a

disclaimer, would not accomplish its stated goal of protecting the public” and “thereby fail[ed] to

satisfy the required burden of demonstrating a reasonable fit between its regulation and the

constitutionally-protected speech.” Id.

Similarly, in Abramson, the Eleventh Circuit concluded that allowing therapists and social

workers to hold themselves out as psychologists would be potentially misleading, but the court

still concluded that that a total ban on such speech was impermissible. 949 F.2d at 1577. The

appellate court explained:

Admittedly, some danger exists that the public will be misled if the

plaintiffs are permitted to hold themselves out as psychologists. Yet

when the first amendment is at issue, “the preferred remedy is more

disclosure, rather than less.” Bates v. State Bar of Arizona, 433 U.S.

350, 375 [ ] (1977) (attorneys’ advertisements were protected by the

first amendment). Peel and earlier cases have described various

regulatory safeguards which the state may impose in place of the

total ban on commercial speech now in effect. See Peel, [496 U.S.

at 100] (“a State might consider . . . requiring a disclaimer about . .

. the standards of a specialty.”); Bates, 433 U.S. at 384 [ ] (states

may require “some limited supplementation, by way of warning or

disclaimer or the like, . . . so as to assure that the consumer is not

misled.”).

The first amendment dictates that commercial speech not false or

inherently misleading may be regulated, but may not be banned. If

in the legislature’s wisdom, all persons are allowed to practice

psychology, they may not ban entirely some of those practitioners’

rights to advertise, for the public has a right to truthful information

about the psychological services available to them. “To prefer more

disclosure over an outright ban on particular forms of advertising

not only protects the advertiser’s right to communicate, but also

protects the general public’s interest in receiving information.”

Parker v. Commonwealth of Ky., 818 F.2d 504, 509 (6th Cir. 1987)

(citing Bates, 433 U.S. at 375).

Id. at 1577.

The Eleventh Circuit also rejected the defendants’ efforts to distinguish contrary authority:

The defendants attempt to distinguish Peel and Parker, arguing that

in both cases the respective states had already given some form of

approval to the basic qualifications of each practitioner to practice

law (Peel ) or general dentistry (Parker ). Though the courts held

that the two practitioners could not be barred from advertising their

respective specialties within their professions, the states could at

least take comfort in the fact that both had been licensed as general

practitioners within their fields. In contrast of course, the plaintiffs

in our case have never received any official imprimatur to practice

psychology.

Even so, we reject the alleged distinction, for in Peel and Parker the

key finding was not that each practitioner had been licensed

generally but that each was engaging in professional activity

permitted under state law. As a result, the courts held that outright

bans on truthful advertising could not stand under the first

amendment. Here Florida law, curious though it may seem, allows

anyone to practice psychology. Like the Peel attorney and Parker

dentist, the plaintiff psychologists are engaged in professional

activity permitted under state law. Consequently, their right to

disseminate truthful commercial speech may be restricted, but may

not be cut off completely.

Id. at 1577–78.

b. Analysis

Having carefully considered the matter, the Court will grant the motion to dismiss on this

issue as well. In sum, Plaintiffs have failed to adequately plead that their Title Provision claim

satisfies the Central Hudson test.

Preliminarily, the Court disagrees with Plaintiffs and finds that the use of the term

“psychological” in their trade name is potentially misleading. Plaintiffs allege that “Defendants

lack any reasonable basis for believing that Alleman and Catrett’s use of the word psychological

would mislead any potential or actual consumers or clients,” (Compl. ¶ 32, Doc. 1), but the Court

finds this allegation is simply too barebones to survive muster. Even putting this aside, the Court

finds, like in Abramson and for the same reasons given above, that there is “some danger . . . that

the public will be misled if the plaintiffs are permitted to hold themselves out as psychologists” or

use the word “psychological” in their trade name. 949 F.2d at 1577 (emphasis added).

Thus, the Court turns to the Central Hudson factors. Even assuming Plaintiffs got past the

first two factors—which is a questionable proposition in light of the interests identified by the Fifth

Circuit in Express Oil and by Defendants in briefing, (see Doc. 22-1 at 25)2—Plaintiffs make

2 Defendants argue:

First, the States’ interest is unquestionably compelling: “to safeguard life, health,

property, and the public welfare of this state, and in order to protect the people of

this state against unauthorized, unqualified, and improper application of

psychology.” La. R.S. 37:2351. Indeed, “ensuring the accuracy of commercial

information in the marketplace” is alone sufficient under the Central Hudson

factors. Pub. Citizen, [632 F.3d at 220]; see Ohralik[, 436 U.S. at 460] (similar).

The State plainly clears that bar.

Second, the Title Provision directly advances that interest. Louisiana makes a

guarantee to its citizens: Anyone engaging in the practice of psychology is, in fact,

a licensed psychologist. See La. R.S. 37:2360(A)(2); see also La. R.S.

37:2352(10) (representation as a psychologist “impl[ies] that” someone is

“qualified to practice psychology or … possess expert qualification in any area of

psychology”). As a necessary corollary to that guarantee, Louisiana law promises

consumers that no one will “represent himself as a psychologist” without that

absolutely no effort to plead that the “regulation [is] . . . more extensive than is necessary to serve

[the Board’s] interests.” Express Oil, 916 F.3d at 492. Plaintiffs argue in their opposition that less

restrictive means are available (such as disclaimers), (Doc. 25 at 30), but there are no such

allegation pled in the Complaint. Without more—that is, without any allegation that less restrictive

means would advance Defendants’ interest—Plaintiffs’ complaint fails. See Atwood v. Strickler,

No. 19-1699, 2020 WL 3549662, at *9 (D. Or. June 29, 2020) (“Plaintiffs have not alleged facts

that demonstrate that the OMIA restrictions are overly extensive. Because Plaintiffs fail to allege

any facts showing that the restrictions on pre-existing sign permits are too broad, Plaintiffs’

challenge under Central Hudson fails.”); cf. Valadez v. Paxton, No. 21-519, 2022 WL 22895564,

at *6 (W.D. Tex. Mar. 31, 2022) (denying defendant’s motion as to as-applied claims because, “to

state a claim at the motion to dismiss stage [for a First Amendment claim with intermediate

scrutiny], Plaintiffs are not required to disprove this claim; they must merely allege facts to support

their claim that the law does not further an important government interest or is a greater

infringement on expression than is necessary to protect such an interest,” and “[a]t this early stage,

Plaintiffs have sufficiently alleged facts to support a claim that ‘the government’s interest could

be adequately served by some less-speech-restrictive alternative’” and so “Plaintiffs have met their

low burden here.” (emphasis added)); Kovac v. Wray, 363 F. Supp. 3d 721, 748-49, 751–52 (N.D.

Tex. 2019) (finding that plaintiffs adequately pled constitutional claim in part because they “allege

that Defendants’ interference is not necessary to further a compelling governmental interest and

license. La. R.S. 37:2360(A)(1). In that way, Louisiana’s Title Provision goes

directly to “protect[ing] the people of this state against unauthorized, unqualified,

and improper application of psychology.” La. R.S. 37:2351.

(Doc. 22-1 at 25.)

has not been narrowly tailored to achieve that interest, in violation of their constitutional right to

substantive due process.” (citing eleven paragraphs of complaint)).

Accordingly, Defendants’ motion will be granted on this issue, and the as-applied claim

will be dismissed. But, given the reasons cited below; the fact that this bar is “low,” Valadez, 2022

WL 22895564, at *6; and the fact that Abramson and Express Oil readily identify ways in which

Plaintiffs could satisfy this pleading requirement, the Court will grant Plaintiffs leave to amend to

cure the deficiencies.

E. Overbreadth Challenge

1. Applicable Law

Critically, the Fifth Circuit has unambiguously said, “[t]he overbreadth doctrine does not

apply to commercial speech.” Serafine, 810 F.3d at 365 (quoting Vill. of Hoffman Estates v.

Flipside, 455 U.S. 489, 496–97 (1982)). But, “where a statute applies to both commercial and non-

commercial speech, an overbreadth challenge still may be considered with respect to non-

commercial speech.” Id. That is, where a provision “covers both commercial and non-commercial

speech, [the Court] address[es] the overbreadth challenge, but [it] properly confine[s] [the]

analysis to the providing of psychological services under that subsection or to offers to provide

such services made without a commercial purpose (not for pecuniary gain).” Id.

Thus, the Court must determine as a threshold matter whether Plaintiffs’ overbreadth

challenge is related to commercial speech or non-commercial speech. Indeed, this is the sole

ground on which Defendants seek dismissal of the overbreadth claim—and then only related to

the Title Provision. (See Doc. 22-1 at 26.)

Again, “[c]ommercial speech is ‘[e]xpression related solely to the economic interests of

the speaker and its audience.’” Express Oil, 916 F.3d at 487 n.2. That is, “[c]ommercial speech is

speech ‘that proposes a commercial transaction,’ not ‘speech for profit.’” Serafine, 810 F.3d at

365 (quoting Fox, 492 U.S. at 482). Thus, for example, in Express Oil, the Fifth Circuit analyzed

whether the trademark “Tire Engineers” was protected by the First Amendment as commercial

speech. 916 F.3d at 487.

Likewise, in Abramson, the plaintiffs argued that the Florida law “place[d] an

unconstitutional burden on both commercial and non-commercial speech” because they could not

“use [the] word ‘psychologist’ or the related terms in their advertising or professional activities.”

Id. at 1572, 1574. The Eleventh Circuit recognized:

Clearly the statutes do place restrictions on speech, for apparently

anyone may currently practice psychology or the allied fields in

Florida, but only those who have met the examination/academic

requirements of the statutes can say that they are doing so or hold

themselves out as psychologists or allied professionals in

advertising, telephone directories, office signs or stationery.

Id. at 1574. Abramson next determined whether “these restrictions [were] limited to the

commercial context, or whether they also limit[ed] the right of the plaintiffs to engage in non-

commercial speech.” Id. The Eleventh Circuit found:

[T]he Psychological Services Act and the Clinical Counseling Act

do not place an unconstitutional burden on the non-commercial

speech of these plaintiffs because all of the speech restricted by the

statutes is commercial in nature. The restriction on the plaintiffs’

ability to hold themselves out as psychologists clearly limits only

commercial speech, for surely the sole purpose for holding oneself

out as a psychologist is to gain commercial advantages. Even if the

plaintiffs wish to hold themselves out as psychologists at cocktail

parties or over private dinners, such expression is “related solely to

the economic interests of the speaker and its audience.” [Central

Hudson, 447 U.S. at 561] (defining commercial speech).

In contrast to restrictions on expressive or non-commercial speech,

the limit on speech in the Florida statutes does not “penalize[ ] the

expression of particular points of view and force[ ] speakers to alter

their speech to conform with an agenda they do not set.” Pacific Gas

& Elec. Co. v. Public Utils. Comm'n. of Calif., 475 U.S. 1, 9 [ ]

(1986). Those cases in which a first amendment challenge to a non-

commercial restriction on speech was recognized clearly involved a

kind of expressive or political speech simply not present here. . . .

While a statute affecting commercial speech “inextricably

intertwined with otherwise fully protected [non-commercial]

speech” will be subject to the heightened scrutiny applicable to

expressive, non-commercial speech, Riley v. National Fed’n. of the

Blind of North Carolina, Inc., 487 U.S. 781, 796 [ ] (1988), we

simply fail to see how the expressive abilities of the plaintiffs are

affected here. Though the public may have an interest in letting more

psychologists hold themselves out as such, that interest arises for

purely commercial reasons unrelated to the expression of differing

viewpoints or alternative ideas that we traditionally associate with

protected first amendment speech. The statutes at issue do not place

an unconstitutional burden on non-commercial speech.

Id. at 1574–75.

2. Analysis

Having carefully considered the matter, the Court will grant the MTD as to the overbreadth

challenge to the Title Provision. Here, Plaintiffs plead that “anyone who has studied psychological

principles, methods, and procedures, and attempts to use them to improve someone else’s life has

engaged in the practice of psychology and represented himself or herself as a licensed

psychologist.” (Compl. ¶ 40, Doc. 1.) Further, “Louisiana’s law prohibiting people from engaging

in the practice of psychology or representing themselves as psychologists is overbroad and

unconstitutional.” (Id. ¶ 48 (emphasis added).) Thus, Plaintiffs challenge the restriction prohibiting

the use of “psychological” in their business’s name. (See id. ¶¶ 36, 48.)

This is clearly commercial speech. As in Abramson, “[t]he restriction on the plaintiffs’

ability to hold themselves out as psychologists clearly limits only commercial speech, for surely

the sole purpose for holding oneself out as a psychologist is to gain commercial advantages.” 949

F.2d at 1574. Such “expression” is “related solely to the economic interests of the speaker and its

audience,” Express Oil, 916 F.3d at 487 n.2, and it is speech which “proposes a commercial

transaction,” Serafine, 810 F.3d at 365. The Court “simply fail[s] to see how the expressive

abilities of the plaintiffs are affected here.” Abramson, 949 F.2d at 1575. Consequently,

Defendants’ motion will be granted, and Plaintiffs’ facial challenge to the Title Provision will be

dismissed.

F. Leave to Amend

Plaintiffs request leave to amend to cure any deficiencies found in the Complaint, (Doc. 25

at 32), and the Court will grant this request. As the Fifth Circuit stated in Great Plains Trust Co.

v. Morgan Stanley Dean Witter & Co.:

In view of the consequences of dismissal on the complaint alone,

and the pull to decide cases on the merits rather than on the

sufficiency of pleadings, district courts often afford plaintiffs at least

one opportunity to cure pleading deficiencies before dismissing a

case, unless it is clear that the defects are incurable or the plaintiffs

advise the court that they are unwilling or unable to amend in a

manner that will avoid dismissal.

313 F.3d 305, 329 (5th Cir. 2002). Further, this Court has reasoned:

A wise judicial practice (and one that is commonly followed) would

be to allow at least one amendment regardless of how unpromising

the initial pleading appears because except in unusual circumstances

it is unlikely that the district court will be able to determine

conclusively on the face of a defective pleading whether the plaintiff

actually can state a claim for relief.

JMCB, LLC v. Bd. of Commerce & Indus., 336 F. Supp. 3d 620, 642 (M.D. La. 2018) (deGravelles,

J.) (quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357

(3d ed. 2016)). Thus, the Court will grant Plaintiffs’ request and allow leave to amend.

IV. MPI

Because the MTD has been granted, the MPI will be denied without prejudice to Plaintiffs’

right to refile after the Complaint is amended. The Court is loathe to provide an advisory opinion

on whether Plaintiffs will be able to cure the pleading deficiencies identified above, but the Court

does wish to provide some guidance in the event that they can and in the event that Plaintiffs again

move for injunctive relief.

First, as the parties well know, to obtain an injunction, Plaintiffs must show, inter alia, that

“there is a substantial threat that it will suffer irreparable injury if the district court does not grant

the injunction[.]” Sierra Club, Lone Star Chapter v. F.D.I.C., 992 F.2d 545, 551 (5th Cir. 1993)

(citation omitted). Defendants objected to the MPI for failing to satisfy this requirement;

specifically, they contend that Plaintiffs waited too long to file their motion and that this undercuts

any showing of irreparable injury. (See Doc. 39 at 16–18.) Defendants cite to Western Surety Co.

v. PASI of LA, Inc., 334 F. Supp. 3d 764 M.D. La. 2018) (deGravelles, J.), which said:

[D]elay in seeking a remedy is an important factor bearing on the

need for a preliminary injunction. Absent a good explanation, a

substantial period of delay militates against the issuance of a

preliminary injunction by demonstrating that there is no apparent

urgency to the request for injunctive relief.

Id. at 799 (citations omitted).

However, Defendants do not reconcile this with other law governing injunctions and First

Amendment cases. This Court has also said:

“[W]hen an alleged deprivation of a constitutional right is involved,

most courts hold that no further showing of irreparable injury is

necessary.” Book People, 91 F.4th at 340–41 (quoting Opulent Life

Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012));

see also Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice and Procedure § 2948.1 (3d ed. 2024) (same).

“Indeed, the Supreme Court has said that ‘[t]he loss of First

Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.’ ” Book People, 91

F.4th at 341 (quoting Elrod v. Burns, 427 U.S. 347, 373 [ ] (1976)).

Roake v. Brumley, No. 24-517, --- F. Supp. 3d ----, 2024 WL 4746342, at *82 (M.D. La. Nov. 12,

2024) (deGravelles, J.), hearing en banc denied, No. 24-30706, 2024 WL 5496967 (5th Cir. Dec.

30, 2024).

However, this Court located at least one case that reached a different result in the context

of commercial speech. In Keyoni Enterprises, LLC v. County of Maui, the district court found:

[T]he speech involved here involves no urgency in timing, is not

expressive, and admittedly only involves potential economic

consequences, which can be compensated with damages . . . . The

Enterprises have simply not shown any harm that would be

irreparable. Essentially, the Enterprises are arguing that because

they are alleging a violation of their commercial speech rights, they

will suffer irreparable harm without an injunction. The line,

however, is simply not that bright. See, e.g., [Naser Jewelers, Inc. v.

City of Concord, 2007 WL 1847307, at *9 (D.N.H. June 25, 2007)]

(rejecting in the commercial speech context “the proposition that

any infringement on First Amendment rights causes irreparable

harm”); Hohe v. Casey, 868 F.2d 69, 72–73 (3d Cir. 1989) ( “[T]he

assertion of First Amendment rights does not automatically require

a finding of irreparable injury . . . . Constitutional harm is not

necessarily synonymous with the irreparable harm necessary for

issuance of a preliminary injunction.”); Amwest Sur. Ins. Co. v.

Reno, 1995 WL 230357, at *1 n. 1 (9th Cir.1995) (unpublished)

(“We reject [plaintiff’s] argument that economic harm constitutes

irreparable injury when a . . . right protected by the Constitution has

been impaired.”). The Enterprises candidly complain that without

an injunction, their businesses would suffer a 75% loss in sales, fines

totaling as much as $1,000 per day from the date the NOVs were

issued, and ultimately, the potential shuttering of operations.

Without minimizing the import of these effects, real or not, none of

them are irreparable.

No. 15-86, 2015 WL 1470847, at *9 (D. Haw. Mar. 30, 2015). While Keyoni appears from the

Court’s research to be the minority position (and possibly not indicative of the rule in this circuit),

both parties should elaborate on these issues out if another motion for preliminary injunction is

filed.

Second, again, in the MTD, Defendants limited their arguments about the Services and

Practice Provisions to jurisdictional challenges. If Defendants file a later motion to dismiss for

failure to state a claim, they should advance specific arguments related to the Services and Practice

Provisions or consider such unmade arguments waived. See Payton v. Town of Maringouin, No.

18-563, 2021 WL 2544416, at *26 (M.D. La. June 21, 2021) (deGravelles, J.), aff’d, No. 21-30440,

2022 WL 3097846 (5th Cir. Aug. 3, 2022) (collecting authorities on waiver).

Third, this Court has provided detailed reasons above, and any subsequent motion or

pleading should be consistent with the Court’s ruling. The parties are reminded of their obligations

(1) under Rule 11 to only advance arguments if there is a good faith basis in law or fact to do so;

and (2) under Rule 1 to “construe[], administer[], and employ[ ]” the federal rules “to secure the

just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1, 11.

V. CONCLUSION

According,

IT IS ORDERED that the Defendants’ Joint Motion to Dismiss (Doc. 22) filed by Shannae

Harness, Shavaun Sam, Michelle Moore, Matthew Holcomb, Shawanda Woods-Smith, Jamie

Monic, Courtney Newton, and the District Attorney of East Baton Rouge Parish is GRANTED

IN PART and DENIED IN PART. The MTD is DENIED as to standing and sovereign immunity.

The MTD is GRANTED as to Plaintiffs’ as-applied and overbreadth challenges to the Title

Provision, and these claims are DISMISSED WITHOUT PREJUDICE. Plaintiffs shall have

twenty (28) days in which to amend the operative complaint to cure the deficiencies identified in

this ruling. Failure to do so will result in the dismissal of these claims with prejudice. Further, if

Plaintiffs fail to file an amended complaint by the designated time, Defendants shall file a notice

in the record advising the Court of same.

IT IS FURTHER ORDERED that Plaintiffs’ Motion for a Preliminary Injunction (Doc.

29) is DENIED WITHOUT PREJUDICE to Plaintiffs’ right to refile after the Complaint is

amended.

Signed in Baton Rouge, Louisiana, on April 25, 2025.

S

JUD GE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA