Landry

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

MILITARY-VETERANS ADVOCACY, CIVIL ACTION

INC., ET AL.

VERSUS

JEFF LANDRY, in his official NO. 24-00446-BAJ-RLB

capacity as Governor of the State of

Louisiana, ET AL.

ORDER

Before the Court is Plaintiffs’ Motion for Summary Judgment (Doc. 61)

and remaining Defendant Liz Murrill’s Cross Motion for Summary Judgment

(Doc. 81) (collectively, “the Motions”). Both Motions are opposed. (Docs. 69, 72).

The Parties filed replies. (Docs. 73, 75). The Parties also submitted supplemental

briefing as ordered by the Court. (Docs. 93, 95). For reasons outlined below, the

Plaintiffs’ Motion is GRANTED and Defendant’s Motion is DENIED.

I. BACKGROUND

On June 3, 2024, the Louisiana State legislature passed Senate Bill 159, the

Preserving Lawful Utilization of Services for Veterans (PLUS) Act, (“the Act”). La.

Stat. Ann. § 29:296. The Act regulates “person[s] seeking to receive compensation for

advising, assisting, or consulting with any individual in connection with any veterans’

benefits matter.” Id. at §29:296 (C)(1). It does so by placing limits on the amount that

they may charge veterans for their services and mandates a disclosure that they must

provide both orally and in writing to prospective veteran-clients, among other

provisions. Id. at §§ 29:296 (C)(1), (E)(2).

Plaintiffs Military-Veterans Advocacy, Inc. (“MVA”), a 501(c)(3) charitable

organization, and the Law Office of John B Wells (“LOJBW”), a sole proprietorship,

filed suit against Defendants Jeff Landry, in his official capacity as Governor of

Louisiana, and Liz Murrill, in her official capacity as Attorney General of Louisiana,

to challenge the constitutionality of the Act. (Doc. 1).

Plaintiffs allege that this case is about some of the “most vulnerable and ill

patients in Louisiana, disabled veterans of the armed forces, the charitable

organization and law office that seeks to help them; and an unconstitutional and

ill-conceived law that will hamper or destroy Plaintiffs’ efforts in Louisiana leaving

some veterans sicker and poorer than their brother and sister veterans in other

States.” (Id. at ¶ 5).

Plaintiff LOJBW is a law practice that consists of a single attorney,

John B. Wells. (Id. at ¶ 6). Wells is a retired Navy Surface Warfare Commander who

practices in military and veteran law. (Id.). Wells is admitted to practice in all

military courts including the United States Court of Appeals for the Armed Forces

and the United States Supreme Court. (Id.). Wells is also admitted to practice before

the United States Department of Veterans Affairs (the “VA”). (Id. at ¶ 7). LOJBW

focuses its practice on veteran law and represents veterans in all stages of the veteran

system, including pro bono counseling and paid representation before the Board of

Veterans Appeals, the Court of Appeals for Veterans Claims, and the Court of

Appeals for the Federal Circuit. (Id.).

Plaintiff MVA works to litigate, legislate, and educate veterans in their quest

for earned benefits. (Id. at ¶ 8). MVA attorneys routinely discuss VA issues and

provide recommendations to Congress. (Id.). MVA also files direct actions against the

Secretary under 38 U.S.C. § 502 and is a regular amicus curiae contributor at the

Federal Circuit and the Supreme Court of the United States. (Id.). In its educational

role, MVA provides social media outreach to veterans, conducts continuing legal

education on veteran law to attorneys, and promotes attorney participation in

veteran law. (Id.).

Plaintiffs filed the instant suit to challenge the Act, which Plaintiffs contend

will hamper or destroy their efforts in Louisiana to aid disabled veterans of the armed

forces. (Id. ¶ 5). The Act provides:

A. For the purposes of this Section, the following terms shall have the

following meanings:

(1) “Compensation” means any money, thing of value, or economic

benefit conferred on, or received by, any person in return for

services rendered, or to be rendered, by a person.

(2) “Person” means any natural person, corporation, trust,

partnership, incorporated or unincorporated association, or any

other legal entity.

(3) “Veterans’ benefits matter” means the preparation,

presentation, or prosecution of any claim affecting any person

who has filed or expressed an intent to file a claim for any benefit,

program, service, commodity, function, status, or entitlement to

which is determined to pertain to veterans, their dependents,

their survivors, or any other individual eligible for such benefits

under the laws and regulations administered by the United

States Department of Veterans Affairs or the Louisiana

Department of Veterans Affairs.

B. (1) No person shall receive compensation for referring any individual

to another person to advise or assist the individual with any veterans’

benefits matter.

(2) No person shall receive any compensation for any services

rendered in connection with any claim filed within the one-year

presumptive period of active-duty release.

(3) No person shall receive any compensation for any services

rendered in connection with any claim for pension benefits.

C. (1) A person seeking to receive compensation for advising, assisting,

or consulting with any individual in connection with any veterans’

benefits matter shall, before rendering any services, memorialize the

specific terms under which the amount to be paid will be determined in

a written agreement signed by both parties. Compensation must be

purely contingent upon an increase in benefits awarded, and if

successful, compensation shall not exceed five times the amount of the

monthly increase in benefits awarded based on the claim. Compensation

shall not exceed twelve thousand five hundred dollars or an amount

established by federal law, whichever is less. No initial or nonrefundable

fee shall be charged by a person advising, assisting, or consulting an

individual on a veterans’ benefit matter. No interest shall be charged on

any payment plans agreed to by the parties.

(2) A person seeking to receive compensation for advising,

assisting, or consulting with any individual with any veterans’

benefits matter shall not utilize a medical professional with whom

it has an employment or business relationship for a secondary

medical exam.

(3) In the event that a veteran claimant dies prior to a claim being

processed, any expected compensation shall be waived, and no

charge, fee, or debt shall be collected. Any payment plan for

services rendered shall be terminated immediately.

D. No person shall guarantee, either directly or by implication, a

successful outcome or that any individual is certain to receive specific

veterans’ benefits or that any individual is certain to receive a specific

level, percentage, or amount of veterans’ benefits.

E. (1) No person shall advise, assist, or consult for compensation with

any individual concerning any veterans’ benefits matter without clearly

providing at the outset of the business relationship the following

disclosure both orally and in writing:

“This business is not sponsored by, or affiliated with, the

United States Department of Veterans Affairs or the Louisiana

Department of Veterans Affairs, or any other federally chartered

veterans’ service organization. Other organizations including but

not limited to the Louisiana Department of Veterans Affairs, a

local veterans’ service organization, and other federally chartered

veterans’ service organizations may be able to provide you with

this service free of charge. Products or services offered by this

business are not necessarily endorsed by any of these

organizations. You may qualify for other veterans’ benefits

beyond the benefits for which you are receiving services here.”

(2) The written disclosure shall appear in at least twelve-point

font and shall appear in a readily noticeable and identifiable place

in the person’s agreement with the individual seeking services.

The disclosure shall direct the individual seeking services to the

nearest Veterans Service Office, with the appropriate address and

contact information for that office. The individual shall verbally

acknowledge understanding of the oral disclosure and sign the

document in which the written disclosure appears to represent

understanding of these provisions. The person offering services

shall retain a copy of the written disclosure while providing

veterans’ benefits services for compensation to the individual and

for at least one year after the date on which the service relations

terminate.

F. Businesses engaging in the preparation of an initial claim or appeal

of a disability rating for a fee shall not do any of the following:

(1) Utilize international call center or data centers for processing

veterans’ personal information.

(2) Gain direct access to any personal medical, financial, or

government benefits login, username, or password information.

G. A violation of the provisions of this Section shall constitute an unfair,

false, misleading, or deceptive act or practice in the conduct of trade or

commerce under the Unfair Trade Practices and Consumer Protection

Law, R.S. 51:1401 et seq.

H. An entity assisting veterans with their initial disability claims as

prescribed within this Section shall, within one hundred twenty days of

the request, provide on an annualized basis of all of the following data

to the Department of Veterans Affairs:

(1) Aggregate number of serviced in the state.

(2) Number of claims approved, denied, and pending.

(3) Average claim return time.

(4) Number of clients who received a successful increase who have

a previously assigned “agent of record”.

(5) Data provided shall exclude any items of personal financial,

medical, or other data deemed confidential, business privileged,

or HIPAA protected information.

La. Rev. Stat. § 29:296.

Plaintiffs allege that the Act conflicts with federal law and thus violates the

Supremacy Clause. (Doc. 1 at ¶¶ 42–43). Plaintiffs further allege that the Act violates

the First Amendment by “coercing [Plaintiffs] to deliver the State’s message, via

mandated disclosure language, and pr[o]scribing heavy penalties for failure to do so.”

(Id. at ¶ 55). Plaintiffs allege that these coerced messages are intended to discourage

veterans from securing the services of an attorney. (Id. at ¶ 56). Plaintiffs allege that,

in effect, the Act attempts to convince veterans that using a less qualified and possibly

unaccredited organization would be desirable, even if this reduces the chance of

obtaining benefits. (Id.).

Plaintiffs also allege that the Act infringes on the Contracts clause because it

caps fees below what the contracting parties envision. (Doc. 1 at ¶¶ 62–68). Plaintiffs

contend that the Act will result in contract modifications or novation that will

fundamentally change the extent of the services Plaintiffs can offer, limiting

Plaintiffs’ ability to assist veterans. (Id.). Finally, Plaintiffs allege that the Act

violates the Louisiana Constitution because it infringes on the Louisiana Supreme

Court’s ability to regulate attorneys and set applicable fee caps. (Id. at ¶¶ 70–78).

II. PROCEDURAL HISTORY

Plaintiffs filed suit against the Governor and the Attorney General, asserting

the following causes of action: (1) federal preemption under the Supremacy Clause of

the United States Constitution (Count I); (2) abridgement of the Rights of Association,

Speech, and Petition in Violation of the First and Fourteenth Amendments to the

United States Constitution (Count II); and (3) unconstitutional infringement of the

Contracts Clause (Count III). (Doc. 1).

The same day that Plaintiffs filed suit, Plaintiffs filed a Motion for Temporary

Restraining Order (“TRO”), asking the Court to enjoin enforcement of the Act while

the Court considered its constitutionality. (Doc. 2). The Court set the matter for

hearing. (Doc. 5).

In response, the Attorney General filed the Declaration of Michael Dupree,

Director of the Public Protection Division of the Attorney General’s Office. (Doc. 19-2).

The Declaration attests that the enforcement mechanism of the Act lies under his

responsibilities at the Attorney General’s Office, because the primary enforcement

mechanism of the Act is the Louisiana Unfair Trade Practices Act, which Dupree

enforces. (Id. at ¶¶ 6–9). Dupree further attested:

I hereby attest that I have no present intention to enforce Act 479 or the

Louisiana Unfair Trade Practices Act against the Plaintiffs in the

Complaint. Further, I do not plan to bring any enforcement actions to

enforce the provisions of Act 479 until the above-referenced litigation

regarding the validity of Act 479 is resolved. In the event that my office

determines to bring such any action against Plaintiffs, I will so advise,

in advance, counsel representing the Attorney General in the case

identified herein so that they can inform the Court as may be necessary

or appropriate.

(Id. at ¶ 11).

Based on the Attorney General’s commitment not to enforce the Act during the

pendency of this lawsuit, the Parties filed a Joint Motion to Continue the TRO.

(Doc. 19). The Court granted the Motion and continued the hearing on Plaintiffs’

Motion for TRO without date. (Doc. 28).

Thereafter, Defendants asked the Court to dismiss Plaintiffs’ claims for lack of

subject matter jurisdiction and for failure to state a claim upon which relief can be

granted under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 15; Doc.

36). The Court dismissed Plaintiffs’ claims as to Defendant Jeff Landry, in his official

capacity as Governor of Louisiana, due to a lack of subject matter jurisdiction. (Doc.

76 at 28-29). However, the Court denied the Attorney General’s Motion and found

that Plaintiffs had standing to bring their claims against her, in part, because “by its

plain meaning, the Act applies to Plaintiffs.” (Id. at 14). Plaintiffs and remaining

Defendant Liz Murrill, in her official capacity as Attorney General of Louisiana, now

both move for summary judgment, asserting that there are no genuine issues of

material fact and asking the Court to rule in their respective favors as a matter of

law. (Docs. 61 and 81).

III. LEGAL STANDARDS

A court may grant summary judgment only “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). A dispute regarding a material fact is “genuine”

if the evidence is such that a reasonable jury could return a verdict in favor of the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When

ruling on motions for summary judgment, courts are required to view all inferences

drawn from the factual record in the light most favorable to the nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Coleman

v. Hous. Indep. School Dist., 113 F.3d 528, 533 (5th Cir. 1997).

To survive summary judgment, however, the nonmoving party must do more

than allege an issue of material fact: “Rule 56(e) . . . requires the nonmoving party to

go beyond the pleadings and by her own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific facts showing that there is

a genuine issue for trial.” Auguster v. Vermilion Par. Sch. Bd., 249 F.3d 400, 402

(5th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). “Rule 56

does not impose upon the district court a duty to sift through the record in search of

evidence to support a party’s opposition to summary judgment.” Ragas v.

Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citations and quotation

marks omitted). A party that fails to present competent evidence opposing a motion

for summary judgment risks dismissal on this basis alone. E.g., Broussard v.

Oryx Energy Co., 110 F. Supp. 2d 532, 536 (E.D. Tex. 2000) (“Plaintiff produced no

genuine issue of material fact to prevent the granting of Defendant’s Motion, and

therefore, the Court could grant Defendant’s Motion for Summary Judgment on this

basis alone.”).

IV. DISCUSSION

A. Whether the Act Violates the First Amendment Right to Free

Expression

At the outset, it is not clear from the pleadings whether Plaintiffs are lodging an

as-applied or facial challenge to the constitutionality of the Act under the First

Amendment. Plaintiffs allege that the Act “abridges Plaintiffs’ freedom of speech by

coercing them to deliver the State’s message, via mandated disclosure language. . .”,

which appears to challenge the statute’s application to Plaintiffs specifically. (Doc. 1

at ¶ 55).1 However, as-applied challenges typically “require[] the development of a

factual record for the court to consider.” Harris v. Mexican Specialty Foods, Inc., 564

F.3d 1301, 1308 (11th Cir. 2009). The scant factual record here, in addition to the

broad relief requested, lends toward interpreting Plaintiffs’ challenge as a facial one

as well. (Id. at 18) (“Plaintiffs request that this Court . . . declare SB 159

unconstitutional and void . . . [and] enjoin [Defendant] from any and all enforcement

of SB 159, as passed and codified”).

“In the commercial speech context, [t]o succeed in a typical facial attack,

1 The Court notes that Plaintiffs also seemingly allege a facial challenge to the constitutionality of

the Act based on vagueness and overbreadth, as well as a violation of their right to free association

under the First Amendment. (Doc. 1 at ¶¶ 57, 58, 60). However, Plaintiffs failed to sufficiently brief

these issues in both their instant Motion for Summary Judgment (Doc. 61) and Supplemental

Briefing (Doc. 95). Thus, the Court will not consider these claims.

[Plaintiffs] would have to establish that no set of circumstances exists under which

[the Act] would be valid, or that the statute lacks any plainly legitimate sweep ....”

Turtle Island Foods, S.P.C. v. Strain, 65 F.4th 211, 219 (5th Cir. 2023) (quoting

United States v. Stevens, 559 U.S. 460, 472 (2010) (citations and internal quotation

marks omitted). Further, in a facial challenge, Plaintiffs bear this “heavy burden.” Id.

It is also well established that facial challenges are strongly disfavored, and that

courts should exercise the canon of constitutional avoidance and employ principles of

judicial restraint before finding a state law unconstitutional. Id. (citing Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442, 449–50 (2008); Voting for Am.,

Inc. v. Steen, 732 F.3d 382, 386 (5th Cir. 2013); Jennings v. Rodriguez, 583 U.S. 281,

286 (2018)). With this in mind, and in part because Plaintiffs have made no

allegations “to establish that no set of circumstances exists under which [the Act]

would be valid” with respect tto the First Amendment, the Court construes Plaintiffs’

First Amendment challenge as applied only to them, rather than as a facial challenge.

Turtle Island Foods, 65 F.4th at 219.

1. Legal Standard

While the Constitution protects commercial speech, that protection is more

limited than for most other forms of speech. Express Oil Change, L.L.C. v.

Miss. Bd. Of Licensure for Pro. Eng’rs & Surveyors, 916 F.3d 483, 487 (5th Cir. 2019)

(citing Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978)). Further, “the

constitutionality of [a] required warning[] turns on both (1) whether the speech is

commercial and the (2) applicable level of scrutiny.” Free Speech Coal., Inc. v. Paxton,

95 F.4th 263, 279 (5th Cir. 2024), aff'd, 606 U.S. 461 (2025).

The Parties appear to agree that the disclaimer mandated by the Act

constitutes compelled commercial speech. (Doc. 93 at 4-5; Doc. 95 at 4). The Court,

relying on the Fifth Circuit’s analysis in Free Speech Coal., agrees. 95 F.4th at 280

(finding that government-required warnings outside of an advertisement context may

still constitute commercial speech). Regarding the applicable level of scrutiny,

Defendants contend that because this case relates to a mandatory disclosure, the less

stringent Zauderer test should be used to analyze its constitutionality. (Doc. 93 at 7).

See Zauderer v. Off. of Disciplinary Couns. of Supreme Ct. of Ohio, 471 U.S. 626 (1985)

(finding that states may require commercial enterprises to disclose “purely factual

and uncontroversial information about their services” so long as disclosures are

reasonably related to a legitimate state interest and not unjustly or unduly

burdensome). Defendants maintain, however, that the disclosure passes muster

under the more stringent Central Hudson test as well, which is an intermediate-

scrutiny analysis. (Doc. 93 at 7). See Central Hudson Gas & Electric Corp. v. Public

Service Comm’n of New York, 447 U.S. 557 (1980) (implementing four-factor test for

commercial speech limitations). Plaintiffs agree that one of these two tests applies,

but do not appear to advance either. (Doc. 95 at 5).

In deciding which standard applies to compelled disclosures, courts apply the

“relaxed” Zauderer scrutiny “where a state compels ‘commercial enterprises to

disclose purely factual and uncontroversial information about their services . . . .’. ”

Free Speech Coal. 95 F.4th at 281 (quoting Chamber of Comm. of U.S. v. U.S. Sec. &

Exch. Comm’n, 85 F.4th 760, 768 (5th Cir. 2023)). “A compelled statement is

‘uncontroversial’ for the purposes of Zauderer where the truth of the statement is not

subject to good-faith scientific or evidentiary dispute and where the statement is not

an integral part of a live, contentious political or moral debate.” Id. at 281-82. “That

standard does not mean that whenever the compelled speaker dislikes or disagrees

with the message he must convey, the statement is controversial . . . It means only

that there must be some widespread, good-faith dispute over the topic of the facts.”

Id.

Here, neither Party advances a factual record that assists the Court in deciding

whether the compelled language is controversial. In their pleadings, Plaintiffs allege

only that their objection to the disclosure language “as a leading veterans litigation

group . . . is enough to make the speech controversial.” (Doc. 95 at 5). The Court does

not entirely agree with that contention. However, the burden to rebut a plaintiffs’

challenge of controversy in the Zauderer context lies with Defendant here. See Free

Speech Coal., 95 F.4th at 282 (“We need not determine the outer limits of what

establishes “controversy” because [the state] has failed to rebut plaintiff’s challenges

in such a way that we are comfortably within its boundaries”). Defendant similarly

has offered next to no evidence regarding the lack of controversy of the disclosure

language, save for their own assurance it is not. (Doc. 81-1 at 28). In a vacuum of

factual support on this point, the Court cannot weigh in on whether the disclosure

language is controversial or not controversial.

There is, however, also serious doubt raised by Plaintiffs as to whether the

disclosure language is “purely factual” such that the Court can apply the relaxed

Zauderer standard, particularly when it is required by VA-authorized attorneys and

agents like Plaintiffs. Specifically, the Act’s mandatory disclosure would require

Plaintiffs, and other such authorized agents and attorneys, to tell prospective clients

that “[o]ther organizations including but not limited to . . . a local veterans’ service

organization, and other federally chartered veterans’ service organizations may be

able to provide you with this service free of charge.” La. Stat. Ann. § 29:296 (E)(1).

“In the context of litigation within the veterans court system,” Plaintiffs argue, this

is “patently false.” (Doc. 61-3 at 28). Plaintiffs point to case law that has “challenged

the ability of mere unlicensed laypersons, otherwise known as state or county

veterans service officers, to properly prosecute claims and appeals of veterans

benefits decisions.” (Doc. 61-3 at 30). See Fears v. Wilkie, 31 Vet. App. 309 (2019);

Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009); Cook v. Marshall, 68 F.3d 447 (Fed.

Cir. 1995). Plaintiffs go on to note that “[f]ew if any organizations referenced in the

required disclaimer provide assistance within the litigation community [as Plaintiffs

do],” further undercutting the factual validity of the disclosure as applied to

Plaintiffs. Defendant does not attempt to rebut these contentions except by

reiterating conclusory statements. (Doc. 93 at 11). For the above reasons, the Court

does not find that the Zauderer standard can clearly be applied here.

“It is unsettled precisely which standard of scrutiny applies to compelled

commercial speech that is not subject to Zauderer scrutiny. On the one hand, Central

Hudson applied a form of intermediate scrutiny. On the other hand, Central Hudson

dealt only with restrictions on commercial speech, not compelled speech. Yet, NIFLA

suggests that compelled speech must survive, at minimum, intermediate scrutiny.”

Free Speech Coal., 95 F.4th at 283 (citing Central Hudson Gas & Electric Corp. v.

Public Service Comm’n of New York, 447 U.S. 557 (1980); Nat'l Inst. of Fam. & Life

Advocs. v. Becerra, 585 U.S. 755, 773 (2018)). The Fifth Circuit ultimately applied the

Central Hudson test in Free Speech Coal., and this Court will do the same. Id.

2. Analysis

The test for when a government actor may regulate commercial speech set

forth in Central Hudson asks: “(1) whether the commercial speech at issue concerns

unlawful activity or is misleading; (2) whether the governmental interest is

substantial; (3) whether the challenged regulation directly advances the

government's asserted interest; and (4) whether the regulation is no more extensive

than necessary to further the government's interest.” Central Hudson, 447 U.S. at

566. “Each of these latter three inquiries”—whether (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’—must be

answered in the affirmative for the regulation to be found constitutional.” Express Oil

Change, L.L.C., 916 F.3d at 492 (citing Thompson v. W. States Med. Ctr., 535 U.S.

357, 367 (2002)). “The party seeking to uphold a restriction on commercial speech

carries the burden of justifying it.” Express Oil Change, L.L.C, 916 F.3d at 487 (citing

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.

The Court finds that Defendant has not carried her burden to meet at least

two, or perhaps three, of the four prongs of the Central Hudson test – to show that

the government’s interest is substantial, that the Act directly advances the

government’s asserted interest, or that the regulation is not more extensive than is

necessary to serve that interest. 447 U.S. at 566. Defendant offers only conclusory

allegations to support the Act’s compelled disclosure, asserting it “is clearly motivated

by the Legislature’s desire to regulate the provision of advising, assisting, or

consulting individuals concerning veterans’ benefits matters for compensation. . . The

disclosures are clearly aimed at informing the potential client, nothing more.” (Doc.

81-1 at 27). Defendant further avers that

there is little question (1) that the State’s interest in preventing deception in

connection to veteran’s benefits is substantial; (2) the disclosure advances the

State’s interest in a direct and material way by preventing fraud, overreaching,

and misleading veterans into believing that they have no other option and the

service provider has an “inside track” in obtaining benefits; (3) the disclaimer

serves as a reasonable means to prevent the dangers to veterans applying for

benefits and are narrowly tailored to achieve the State’s objective.

(Doc. 69 at 20). Despite having ample opportunity to do so, Defendant provides

no support in the factual record for these conclusions. There are no legislative

findings in the statutory text. See La. Stat. Ann. § 29:296. No legislative hearings

were identified or transcripts provided to support that the type of fraud alleged is a

widespread issue, that the Act is an efficient means to prevent fraud on veterans, or

that other means that may be less restrictive on free speech were not possible.2

Defendant argues in her opposition brief and instant Motion that the Act, and thus

the disclosure language, does not apply to Plaintiffs. (Doc. 69, 81). The Court found

that the Act does apply to Plaintiffs, though, and gave the Parties an opportunity to

supplement their arguments in light of that ruling. (Doc. 76, 86). However, despite

outlining the steps of the Central Hudson test in her supplemental briefing,

Defendant puzzlingly does not offer any of the required support to satisfy the test,

nor address how her argument changes in light of the court’s ruling that the Act does

in fact apply to Plaintiffs. (Doc. 93). Defendant reiterates only that “[t]he Government

has a substantial interest in protecting veterans and applicants for veterans

benefits.” (Id. at 9). Perhaps the Court can accept that this is a sufficiently substantial

interest for the government. However, Defendant offers no evidence to support the

effectiveness of the disclosure in achieving this interest, nor a finding that the

disclosure is not more extensive than is necessary to achieve this interest with regard

to the First Amendment. To the contrary, Plaintiffs, who comprise a veterans

advocacy nonprofit and an attorney who takes up benefits claims on behalf of

veterans, sometimes pro bono, argue that this mandatory disclosure would

discourage potential veteran-clients from engaging them for their services. (Doc. 1 at

¶¶ 5-8, 56).

2 Defendant submitted minutes from a Senate Committee meeting (Doc. 81-6) and copies of the

House and Senate Journals (Doc. 81-8, 81-9) that appear to merely report the passage of the bill and

provide no substantive remarks on the PLUS Act.

Importantly, the burden is on the government to support this restriction on

speech, and it cannot rest on ‘speculation or conjecture.’ Edenfield v. Fane, 507 U.S.

761, 770, (1993); see Ibanez v. Fla. Dep’t of Bus. & Prof. Reg., 512 U.S. 136, 146 (1994).

Federal Rule of Civil Procedure 56 “mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who fails to make a

sufficient showing to establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). Moreover, “[w]here the record taken as a whole

could not lead a rational trier of fact to find for the nonmoving party, there is no

genuine issue for trial.” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). Here, both Parties were provided ample opportunity to point to

facts that could develop this issue. Discovery has concluded and both Parties offered

statements of material facts. (Docs. 61-2, 81-2). Thus, the Court is left to conclude

that there are no further facts that could be developed even at trial that would lend

support to Defendant’s arguments. Without at least some evidence to support the

reasonableness of the Act’s required disclosure, the Court finds that the Act violates

Plaintiffs’ rights under the First Amendment and is therefore unconstitutional as

applied to Plaintiffs.

B. Whether the Act is Preempted by Federal Law

Article VI of the United States Constitution provides that “the laws of the

United States ... shall be the supreme law of the land.” U.S. Const. art. VI, cl. 2. In

preemption cases, courts must begin with the presumption that “the historic police

powers of the States [are] not to be superseded by the Federal Act unless that was

the clear and manifest purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565

(2009). However, this applies most stringently when “Congress has legislated in a

field which the States have traditionally occupied.” Id. It does not apply “when the

State regulates in an area where there has been a history of significant federal

presence.” United States v. Locke, 529 U.S. 89, 109 (2000). The Parties first disagree

whether a presumption against preemption applies. Defendant argues that

“enforcement of compensation for services related to military veterans benefits” is

such a “field” which has been traditionally governed by the states. (Doc. 69 at 14).

Plaintiffs counter that veterans’ benefits are “a uniquely federal program.” (Doc. 61-

3 at 24). The Court has no difficulty finding that federal benefits for veterans, and

regulating access to those, is clearly “an area where there has been a history of

significant federal presence.” Locke, 529 U.S. at 109. Thus, the presumption against

preemption does not apply here.

Next, “Article VI's Supremacy Clause may entail preemption of state law in

any of three ways: by express provision, by implication, or by a conflict between state

and federal law.” Louisiana Health Service & Indem. Co. v. Rapides Healthcare

System, 461 F.3d 529, 533 (5th Cir.2006) (citing Pac. Gas & Elec. Co. v. State Energy

Res. Conservation & Dev. Comm'n, 461 U.S. 190, 203–04 (1983)). Accordingly,

“[t]here are three types of preemption: (1) express preemption, (2) field preemption,

and (3) conflict preemption.” Simmons v. Sabine River Authority Louisiana, 732 F.3d

469, 473 (5th Cir.2013) (citing Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625, 630-

31 (2012)). In their complaint, Plaintiffs argue that only field preemption and conflict

preemption apply to the Act. (Doc. 61-3 at 23-29). The Court will address each in turn.

1. Conflict preemption

Conflict preemption exists when it is either (1) impossible to comply with both

state and federal law or (2) when “the challenged state law stands as an obstacle to

the accomplishment and execution of the full purposes and objectives of Congress.”

Arizona v. United States, 567 U.S. 387, 399 (2012).

Plaintiffs contend that the Act is conflict preempted, arguing that the Act’s fee

cap and other compensation limitations “conflict with the statutory scheme enacted

by Congress” at 38 U.S.C. § 5904(d) and 38 C.F.R. § 14.636(f). (Doc. 61-3 at 27).

Defendant disagrees, claiming that the Act merely “addresses a gap in federal law

concerning the provision of services to veterans”, and that no federal text “prohibits

states from imposing additional consumer protections.” (Doc. 69 at 15; Doc. 81-1 at

22). Defendant further avers that “[Plaintiffs] identify no instance in which

compliance with both state and federal law is impossible.” (Doc. 81-1 at 22). On this

last point at least, the Court must agree. 38 U.S.C. § 5904(a) authorizes agents and

attorneys “for the preparation, presentation, and prosecution of claims under laws

administered by the Secretary [of Veterans Affairs],” as well as sets standards of

conduct and limits on the amount of fees they may charge. The Act implements a

strict $12,500 cap on compensation “for advising, assisting, or consulting with any

individual in connection with any veterans’ benefits matter.” La. Stat. Ann. § 29:296

(C)(1). Plaintiffs have not shown that it would be literally impossible to comply with

both 38 U.S.C. § 5904 and the Act’s limits on compensation, despite certainly serious

frustrations.

However, as noted, courts have also found preemption “where ‘under the

circumstances of [a] particular case, [a state law] stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.’”

Crosby v. National Foreign Trade Council, 530 U.S. 363, 373 (2000) (quoting Hines v.

Davidowitz, 312 U.S. 52, 67 (1941)). “What is a sufficient obstacle is a matter of

judgment, to be informed by examining the federal statute as a whole and identifying

its purpose and intended effects....” Id. That is not a license to engage in a

“freewheeling judicial inquiry into whether a state statute is in tension with federal

objectives,” though, because “such an endeavor would undercut the principle that it

is Congress rather than the courts that preempts state law.” City of El Cenizo, Texas

v. Texas, 890 F.3d 164, 180 (5th Cir. 2018) (citing Chamber of Commerce of U.S. v.

Whiting, 563 U.S. 582, 607 (2011)).

Here, Plaintiffs claim that the Act, by limiting the fees they may charge for

their services, “will limit Plaintiffs’ ability to represent veterans, especially in

complicated cases” and that they “will be forced to decline [many complex cases]” and

take up other less complex cases “to make up financial shortfalls.” (Doc. 61-3 at 15).

They further argue that the Act “interferes with the primary mission of [MVA]” and

“limits the type and number of cases accepted by [Mr. Wells].” (Id.). Plaintiffs also

contend that the Act’s prohibition on receiving compensation for “any services

rendered in connection with any claim for pension benefits,” would severely limit

their work on behalf of veterans appealing denials of pension benefits. La. Stat. Ann.

§ 29:296 (B)(1). (Doc. 61-3 at 27). Defendants contend that these requirements do not

apply to Plaintiff and other VA-authorized agents, but the Court has already

dismissed this idea. (Doc. 76). The Act’s requirements do, by plain language

standards, apply to Plaintiffs. (Id.).

The Court thus finds that the Act, by placing significant restrictions on the

services offered by Plaintiffs and others similarly situated, sufficiently obstructs

“Congress’s intent that veterans have access to authorized, qualified private

representatives to assist them in pursuing claims for VA benefits.” Jewell v. Herke,

526 F. Supp. 3d 459, 465 (D. Minn. 2021).3 The Act is preempted by its conflict with

federal law.

2. Field preemption

“[S]tates are precluded from regulating conduct in a field that Congress, acting

within its proper authority, has determined must be regulated by its exclusive

governance.” Arizona v. United States, 567 U.S. 387, 389 (2012) (citing Gade v.

National Solid Wastes Management Assn., 505 U.S. 88, 115 (1992)). “The intent to

displace state law altogether can be inferred from a framework of regulation ‘so

pervasive ... that Congress left no room for the States to supplement it’ or where there

is a ‘federal interest ... so dominant that the federal system will be assumed to

preclude enforcement of state laws on the same subject.’” Id. (quoting Rice v. Santa

3 While the cited case is only of persuasive authority and was heard on a different procedural

posture, the Court nonetheless finds its analysis regarding federal preemption of the regulation of

veterans’ benefits claims agents informative and applicable.

Fe Elevator Corp., 331 U.S. 218, 230 (1947)). “Courts should hesitate to infer field

preemption unless ‘the nature of the regulated subject matter permits no other

conclusion’ or ‘Congress has unmistakably so ordained.’ When analyzing field

preemption, ‘the relevant field should be defined narrowly.’” U.S. v. Texas, 144 F.4th

632, 667 (5th Cir. 2025) (quoting DeCanas v. Bica, 424 U.S. 351, 356 (1976); City of

El Cenizo v. Texas, 890 F.3d 164, 177 (5th Cir. 2018)).

In light of these cautious directives, the Court refrains from finding that the

field of regulating federal veterans’ benefits claims agent is preempted to such an

extent that an “intent to displace state law altogether can be inferred.” Arizona v.

United States, 567 U.S. at 389. However, it does appear that the federal government

has at least a dominant interest and a robust framework to regulate agents and

attorneys who may assist veterans in accessing benefits “under the laws and

regulations administered by the United States Department of Veterans Affairs.” La.

Stat. Ann. § 29:296 (A)(3). See 38 U.S.C. § 5904(a)(1) (enacting a scheme to recognize

attorneys and agents “for the preparation, presentation, and prosecution of claims

under laws administered by the Secretary [for Veterans’ Affairs].”). The Court also

finds instructive the Supreme Court’s ruling in Sperry v. State of Florida ex rel.

Florida Bar, 373 U.S. 379 (1963), that “[a] State may not enforce licensing

requirements which, though valid in the absence of a federal regulation, . . . impose

upon the performance of activity sanctioned by federal license additional conditions

not contemplated by Congress.” Id. at 385.

C. Whether the Act Violates the Contracts Clause

Because the Court has found the Act unconstitutional on the basis of federal

preemption and the First Amendment, it need not reach Plaintiffs’ remaining

constitutional claim regarding the Contracts Clause. U.S. Const. art. I, §10, cl. 1.

However, the Court finds Defendant’s argument persuasive on this point. (Doc. 81-1

at 22-23). Nothing in the text of the Act states or implies that the fee caps, or any

other provisions, will apply to existing contractual obligations. See La. Stat. Ann. §

29:296; Ogden v. Saunders, 25 U.S. 213, 269 (1827).

V. CONCLUSION

The Court finds that the Act, as written, necessarily impedes the realization of

Congress's goal of ensuring that veterans have access to qualified representatives to

assist them in pursuing claims for VA benefits, in violation of the Supremacy Clause.

U.S. Const. art. VI, cl. 2. The Court also finds that the Act’s mandatory disclosure

provision, La. Stat. Ann. § 29:296 (E)(1), is unconstitutional as applied to Plaintiffs

because it compels speech in a manner that violates Plaintiffs’ right to free expression

under the First Amendment. Therefore, consistent with the reasoning in this opinion,

the Court grants summary judgment for the Plaintiffs.

Accordingly,

IT IS ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc.

61) is GRANTED.

IT IS FURTHER ORDERED that Defendant’s Cross Motion for Summary

Judgment (Doc. 81) is DENIED.

IT IS FURTHER ORDERED that the Preserving Lawful Utilization of

Services for Veterans (PLUS) Act, (“the Act”), now codified as La. Stat. Ann. § 29:296,

is unconstitutional and Defendants are enjoined from enforcing the Act as written.

Baton Rouge, Louisiana, this 6 day,of February, 2026

JUDGE BRIAN A. I

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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