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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2003 Decided December 16, 2003

No. 02-5224

DORIS R. FORETICH, ET AL.,

APPELLANTS

DISTRICT OF COLUMBIA, OFFICE OF THE MAYOR,

APPELLEE

v.

UNITED STATES OF AMERICA,

OFFICE OF THE ATTORNEY GENERAL AND

JEAN ELIZABETH MORGAN, M.D.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 97cv00929)

Jonathan Turley argued the cause and filed the briefs for

appellants.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Marina Utgoff Braswell, Assistant U.S. Attorney, argued

the cause for appellees. With her on the brief were Roscoe

C. Howard, Jr., U.S. Attorney, R. Craig Lawrence, Assistant

U.S. Attorney, and Stuart F. Delery and David S. Mendel.

Stephen H. Sachs entered an appearance.

Before: EDWARDS, RANDOLPH, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

Opinion concurring in part and concurring in the judgment

filed by Circuit Judge TATEL.

EDWARDS, Circuit Judge: In this case, appellants, Dr. Eric

A. Foretich and his parents, challenge the constitutionality of

the Elizabeth Morgan Act (‘‘the Act’’), claiming that the Act is

a bill of attainder. On the record before us, we find that

Congress violated the constitutional prohibition against bills

of attainder by singling out Dr. Foretich for legislative punishment. We therefore reverse the judgment of the District

Court.

Dr. Foretich and his former wife, Dr. Jean Elizabeth

Morgan, have contested visitation and custody rights with

respect to their daughter, Hilary, since Hilary’s birth in 1982.

In 1984, the D.C. Superior Court awarded custody to Dr.

Morgan and broad visitation rights to Dr. Foretich. Notwithstanding repeated orders of the Superior Court, Dr. Morgan

continually objected to and obstructed Dr. Foretich’s rights,

claiming that Dr. Foretich and his parents had sexually

abused Hilary. Dr. Morgan’s accusations of sexual abuse

were heard and considered by the Superior Court, but her

charges were never credited. Nevertheless, Dr. Morgan

persisted in her claims and continued to rebuff Dr. Foretich’s

efforts to secure visitation rights with his daughter. In her

final act of defiance, Dr. Morgan hid Hilary from the court

and from the child’s guardian ad litem and refused to reveal

her whereabouts. Dr. Morgan consequently served over two

years in jail on civil contempt charges and ultimately fled the

country to go into hiding with her daughter.

The Morgan-Foretich custody dispute gained extraordinary

notoriety in the media as Dr. Morgan pressed her unproven
3

charges of sexual abuse against Dr. Foretich and his parents.

In September 1996, Congress intervened and passed the

Elizabeth Morgan Act. The Act achieved two principal aims.

First, Dr. Morgan and her daughter were able to return to

the United States without being subject to the outstanding

orders of the D.C. Superior Court. Second, even though the

Superior Court had never credited Dr. Morgan’s allegations

of sexual abuse and had deemed Hilary’s visitation with her

father to be in the child’s best interests, the Act made it clear

that Dr. Foretich could no longer secure visitation with his

daughter without first obtaining Hilary’s consent. Dr. Morgan returned to the United States with Hilary shortly after

the Act’s passage.

The Elizabeth Morgan Act gives a fleeting hint of neutrality, referring to ‘‘any pending case involving custody over a

minor child,’’ as if to suggest that the Act is broad in scope.

However, the Act then goes on to describe the ‘‘visitation

rights of a parent of a minor child in the Superior Court

which is described in subsection (b),’’ and states that, ‘‘after

the child attains 13 years of age, the party to the case who is

described in subsection (b)(1) may not have custody over, or

visitation rights with, the child without the child’s consent.’’

It is clear from the terms of subsection (b) that ‘‘the party’’ to

whom the Act refers is Dr. Foretich and ‘‘the child’’ is his

daughter, Hilary. Indeed, the Government concedes that the

Act is aimed solely at Dr. Foretich.

On June 19, 1997, while Hilary was still a minor, Dr.

Foretich and his parents filed this lawsuit against the United

States challenging the Act as an unconstitutional bill of

attainder and a violation of due process, separation of powers,

and principles of D.C. home rule. Dr. Morgan intervened as

a defendant. Five years later, the District Court rejected Dr.

Foretich’s constitutional claims and granted summary judgment in favor of the United States and Dr. Morgan. Foretich

v. United States, Civ. Action No. 97-0929 (D.D.C. Jun. 13,

2002) (‘‘Foretich’’), reprinted in Joint Appendix (‘‘J.A.’’) 18-30.

We reverse the judgment of the District Court and hold the

Elizabeth Morgan Act to be an unconstitutional bill of attain-
4

der. Despite a feeble attempt at generality, there is no doubt

that Congress targeted Dr. Foretich for application of the

Act’s unique child custody standard. The Government’s concession on this point merely confirms what is otherwise clear:

Congress singled out Dr. Foretich on the basis of a judgment

that he committed criminal acts of child sexual abuse. The

Act thus embodies legislative determinations that Dr. Foretich was a danger to his child and that the custody dispute

had to be resolved against him in order to protect Hilary

from future harm. In making those determinations, Congress both inflicted extraordinary reputational injuries upon

Dr. Foretich that support our jurisdiction over this lawsuit

and imposed ‘‘punishment’’ within the meaning of the Bill of

Attainder Clause. We therefore find that Congress violated

the constitutional prohibition against bills of attainder by

singling out Dr. Foretich for legislative punishment.

I. BACKGROUND

This appeal arises against the backdrop of a bitter and

protracted dispute between appellee Dr. Jean Elizabeth Morgan and her former spouse, appellant Dr. Eric A. Foretich,

over the custody of their daughter, Hilary A. Foretich. Hilary, who is now known as Ellen Morgan, was born in

Washington, D.C., on August 21, 1982. By the time of her

birth, Hilary’s parents were already separated, and custody

proceedings in the District of Columbia Superior Court soon

followed. See Morgan v. Foretich, Civ. Action No. D-684-83,

slip op. at 3 (D.C. Super. Ct. Nov. 8, 1984) (‘‘1984 Custody

Order’’), reprinted in J.A. 270. Pending the outcome of the

litigation, Dr. Morgan retained custody of Hilary, though Dr.

Foretich and his parents spent time with Hilary on several

occasions pursuant to court orders. See 1984 Custody Order,

slip op. at 9-10, J.A. 276-77; Am. Compl. ¶ ¶ 25-27, J.A. 110-

11. Dr. Morgan objected to these visits, and on several

occasions in 1984 the Superior Court found it necessary to

admonish Dr. Morgan for obstructing Dr. Foretich’s visitation

with Hilary. See 1984 Custody Order, slip op. at 9-10, J.A.

276-77; Am. Compl. ¶ ¶ 28-29, J.A. 111.
5

On November 8, 1984, the D.C. Superior Court awarded

custody of two-year-old Hilary to Dr. Morgan, but permitted

broad visitation for Dr. Foretich. 1984 Custody Order, slip

op. at 24-26, J.A. 291-93. The court found that Dr. Foretich

had ‘‘built a fine home life’’ for Hilary and that he and his

parents, who had moved in with Dr. Foretich, demonstrated

an impressive love and concern for the child. Id. at 9, J.A.

276. Similarly, the court found that Dr. Morgan had ‘‘revealed a truly deep and abiding attachment to and love for

her child,’’ id. at 5, J.A. 272, and provided a ‘‘stable and

nurturing’’ home for Hilary, id. at 6, J.A. 273. Dr. Morgan’s

only failure to act in Hilary’s best interest, the court found,

was her ‘‘intolerant attitude towards visitation and her unwillingness to allow the father any significant role in bringing up

this child.’’ Id. at 9, J.A. 276. In light of these findings, the

court imposed its own schedule of unsupervised visitation for

Dr. Foretich. Id. at 25-26, J.A. 292-93.

The first allegations of sexual abuse in this case arose just

months after the Superior Court issued its custody and

visitation order. See Foretich, slip op. at 1 n.1, J.A. 18; Am.

Compl. ¶ 17, J.A. 106. Dr. Morgan first raised her accusations in January 1985 with a doctor at Children’s Hospital in

the District of Columbia and later raised them in legal

proceedings before the D.C. Superior Court and the U.S.

District Court for the Eastern District of Virginia. See Am.

Compl. ¶ ¶ 18, 32, J.A. 106, 112. According to Dr. Morgan,

Dr. Foretich and his parents repeatedly subjected Hilary to

acts of sexual abuse of a most disturbing nature. See Am.

Compl. ¶ 18, J.A. 106-08; Pls.’ Mot. Summ. J. Ex. C , reprinted in J.A. 216-19. The allegations were graphic and shocking

and described behavior that, if true, would subject the Foretichs to criminal liability under both D.C. and federal law.

See D.C. CODE § 22-3008 (2001); 18 U.S.C. §§ 2241-2248

(2000). Despite the Foretichs’ strenuous denials, Dr. Morgan

continued to press her claim that her daughter was the victim

of horrific acts of abuse. Acting on her own beliefs, Dr.

Morgan refused to produce Hilary for scheduled visits with

Dr. Foretich and embarked instead on what proved to be a

prolonged battle against both the Foretichs and the D.C.
6

Superior Court to block all contact between Hilary and her

father.

From 1985 to 1987, the D.C. Superior Court issued several

orders reinforcing its initial ruling that Dr. Foretich was

entitled to visitation with Hilary. See Morgan v. Foretich,

Civ. Action No. D-684-83 (D.C. Super. Ct. Aug. 19, 1987),

reprinted in J.A. 239-44; Morgan v. Foretich, Civ. Action No.

D-684-83 (D.C. Super. Ct. Aug. 15, 1986), reprinted in J.A.

221-34; Morgan v. Foretich, Civ. Action No. D-684-83 (D.C.

Super. Ct. Dec. 27, 1985), reprinted in J.A. 246-52. Dr.

Morgan remained intransigent. Although Dr. Foretich did

have some contact with Hilary under the supervision of a

court-appointed guardian ad litem, Dr. Morgan generally

refused to cooperate with the court’s visitation orders. The

Superior Court consequently held Dr. Morgan in contempt of

court on at least three occasions. See Foretich, slip op. at 2,

J.A. 19.

Throughout this period, Dr. Morgan continued to charge

Dr. Foretich and his parents with sexual abuse. However,

none of her allegations ever resulted in any judicial finding of

wrongdoing by the Foretichs. See Foretich, slip op. at 13 n.5,

J.A. 30. Rather, the Superior Court repeatedly found Dr.

Morgan unable to prove her charges. In November 1985,

after a four-day hearing, the Superior Court determined that

Dr. Morgan’s allegations of sexual abuse were not proven

and, therefore, did not warrant termination of Dr. Foretich’s

visitation rights. Am. Compl. ¶ 32, J.A. 112. One month

later, the Superior Court reiterated that the results of medical evaluations of Hilary were ‘‘at most TTT inconclusive.’’

Morgan v. Foretich, Civ. Action No. D-684-83, slip op. at 2

(D.C. Super. Ct. Dec. 27, 1985), reprinted in J.A. 247. In

August 1986, the Superior Court again reaffirmed Dr. Foretich’s visitation rights, finding that Dr. Morgan had ‘‘failed to

show by a preponderance of the evidence that [Dr. Foretich]

in any way sexually abused Hilary.’’ Morgan v. Foretich,

Civ. Action No. D-684-83, slip op. at 10 (D.C. Super. Ct. Aug.

15, 1986), reprinted in J.A. 226. One year later, in a similar

judgment, the Superior Court once again declined to credit

Dr. Morgan’s charges of sexual abuse. Morgan v. Foretich,
7

Civ. Action No. D-684-83, slip op. at 3 (D.C. Super. Ct. Aug.

18, 1987), reprinted in J.A. 306.

In a related case, a jury in federal district court in Virginia

rejected Dr. Morgan’s claims of sexual abuse. See Morgan v.

Foretich, 846 F.2d 941, 942 (4th Cir. 1988). Following an

appeal to the U.S. Court of Appeals for the Fourth Circuit,

the case was remanded to the district court because of the

trial court’s erroneous exclusion of certain evidence that had

been offered by Dr. Morgan. Id. On remand, however, the

case was dismissed after Dr. Morgan refused to comply with

a discovery order. Am. Compl. ¶ 51, J.A. 118-19. In dismissing the case, the trial judge admonished Dr. Morgan for her

‘‘willful defiance’’ and ‘‘flagrant disregard’’ of court orders.

Id. ¶ 51, J.A. 119.

There is no evidence that the Foretichs were ever the

subjects of any criminal indictment or arrest warrant in

connection with Dr. Morgan’s allegations. Am. Compl. ¶ 22,

J.A. 109-10. In its August 1987 order, the D.C. Superior

Court succinctly captured the unfortunate state of affairs in

the case:

If [Dr. Morgan’s] allegations of sexual abuse by [Dr.

Foretich] of the minor child are true, then [Dr.

Foretich] is a psychologically deranged child sex

abuser. On the other hand, if [Dr. Foretich] is

correct in his allegations that the child has been

programmed by [Dr. Morgan] and that the allegations of sexual abuse are fabricated, then [Dr. Morgan] is a psychologically deranged and vindictive

mother.

Morgan v. Foretich, Civ. Action No. D-684-83, slip op. at 2

(D.C. Super. Ct. Aug. 18, 1987), reprinted in J.A. 305.

Notwithstanding her failure to persuade any court of the

truth of her allegations, Dr. Morgan stood fast. After two

brief periods of incarceration in the D.C. Jail on charges of

civil contempt, Dr. Morgan was ordered to jail a third time in

August 1987 for her failure to produce Hilary for visitation or

to reveal the child’s whereabouts. Morgan v. Foretich, Civ.
8

Action No. D-684-83, slip op. at 2-3 (D.C. Super. Ct. Aug. 28,

1987) (‘‘Final Order’’), reprinted in J.A. 310-12. It later

came to light that Dr. Morgan had sent five-year-old Hilary

abroad with Dr. Morgan’s parents, who ultimately took up

residence in New Zealand with their granddaughter. Foretich, slip op. at 2, J.A. 19. Dr. Morgan remained incarcerated

for 25 months. Id.

In the meantime, the Morgan-Foretich custody dispute had

attracted extraordinary publicity. Dr. Morgan’s resolve to

keep Hilary from her father garnered the support of Congressman Frank Wolf. In April 1989, Congressman Wolf

sponsored a bill that became the District of Columbia Civil

Contempt Imprisonment Limitation Act of 1989. Pub. L. No.

101-97, 103 Stat. 633. Within days of the law’s enactment in

September 1989, Dr. Morgan was released from jail pursuant

to this statute. In March 1990, Dr. Morgan secured the

release of her passport from the D.C. Superior Court and

joined her daughter in New Zealand. While there, Dr.

Morgan successfully petitioned the New Zealand Family

Court for sole custody of Hilary. See Foretich, slip op. at 2-3,

J.A. 19-20.

In 1995, after spending five years in New Zealand, Dr.

Morgan sought to return to the United States with her

daughter. The August 1987 order of the Superior Court –

mandating visitation for Dr. Foretich with Hilary – remained

outstanding, however. That order required any law enforcement officer to take Hilary into custody and bring her to the

Social Services Division of the Superior Court ‘‘to be placed in

accordance with further order of the court.’’ Final Order,

slip op. at 3, J.A. 312. Dr. Morgan accordingly feared that

returning to the United States would mean turning Hilary

over to the Superior Court and, ultimately, to Dr. Foretich.

Dr. Morgan’s supporters in Congress intervened once more

on her behalf. The Elizabeth Morgan Act was the product of

that intervention.

Passed on September 30, 1996, as a legislative rider to the

1997 Department of Transportation Appropriations Act, the

Elizabeth Morgan Act amended Title 11 of the D.C. Code to
9

restrict the authority of the D.C. Superior Court. The Act

provides:

(a) In any pending case involving custody over a

minor child or the visitation rights of a parent of a

minor child in the Superior Court which is described

in subsection (b) –

(1) at anytime after the child attains 13 years of

age, the party to the case who is described in

subsection (b)(1) may not have custody over, or

visitation rights with, the child without the child’s

consent; and

(2) if any person had actual or legal custody over

the child or offered safe refuge to the child while the

case (or other actions relating to the case) was

pending, the court may not deprive the person of

custody or visitation rights over the child or otherwise impose sanctions on the person on the grounds

that the person had such custody or offered such

refuge.

(b) A case described in this subsection is a case in

which –

(1) the child asserts that a party to the case has

been sexually abusive with the child;

(2) the child has resided outside of the United

States for not less than 24 consecutive months;

(3) any of the parties to the case has denied

custody or visitation to another party in violation of

an order of the court for not less than 24 consecutive

months; and

(4) any of the parties to the case has lived outside

of the District of Columbia during such period of

denial of custody or visitation.

Department of Transportation and Related Agencies Appropriations Act of 1997, Pub. L. No. 104-205, § 350, 110 Stat.

2951, 2979 (1996) (codified at D.C. CODE § 11-925 (2001)).

The Act undisputedly prohibits the Superior Court from

awarding or enforcing custody or visitation rights to Dr.
10

Foretich without Hilary’s consent and prevents the Superior

Court from sanctioning Dr. Morgan on the basis of her

previous custody of Hilary.

Members of Congress considered the proposed legislation

in a subcommittee hearing in August 1995. See H.R. 1855,

To Amend Title 11, District of Columbia Code, To Restrict

the Authority of the Superior Court Over Certain Pending

Cases Involving Child Custody and Visitation Rights: Hearing Before the Subcomm. on the District of Columbia of the

House Comm. on Gov’t Reform & Oversight, 104th Cong.

(1995) (‘‘Hearing’’), reprinted in J.A. 34-96. According to the

chairman of the subcommittee, the proposed bill would ‘‘permit Ellen Morgan to be and to feel free to return to the

United States with no cloud of legal intervention over her

head,’’ and ‘‘reflect[ed] the common sense basic principle that

the law ought not to compel one who has reached the age of

reason into being forced to be unsupervised with someone

whom that person asserts has been sexually abusive.’’ Hearing at 2, J.A. 38 (statement of Rep. Davis). Although members of the subcommittee disclaimed retrying the case, the

clear focus of the hearing was on the Morgan-Foretich custody dispute, and discussion during the hearing emphasized the

need to vacate the orders of the D.C. Superior Court so that

Dr. Morgan and Hilary would be free to return to the United

States. See Hearing at 2-11, J.A. 38-42. Members also

spoke of the need to ‘‘correct an injustice’’ and to protect

Hilary’s best interests by facilitating her ‘‘safe return’’ to the

United States. See id.

The subcommittee heard testimony from Dr. Foretich, as

well as from Dr. Morgan’s mother and brother. Dr. Morgan

and Hilary each submitted written statements expressing

their desire to return to the United States without Hilary

being forced to see her father. During Dr. Foretich’s testimony, members of the subcommittee repeatedly attempted to

broker a deal with him: If he would give up his parental

rights and voluntarily seek vacatur of the Superior Court

visitation orders, the subcommittee would withdraw the proposed legislation. See Hearing at 59-61, 65-67, 84, J.A. 66-67,

69-70, 79. No agreement could be reached, however, because
11

Dr. Foretich was unwilling to relinquish all of his parental

rights.

Having failed to negotiate a deal with Dr. Foretich, Congress passed the Elizabeth Morgan Act on September 30,

1996. The Act was signed into law on October 2, 1996. Dr.

Morgan successfully petitioned the New Zealand Family

Court for permission to leave the country and, in May 1997,

she returned to the United States with Hilary, who was by

this time 14 years old. Dr. Foretich informed the Superior

Court of their return and indicated his intent to seek enforcement of that court’s prior orders. To that end, Dr. Foretich

filed a motion in Superior Court in June 1997 to compel Dr.

Morgan to disclose Hilary’s location and to reappoint a guardian ad litem. Dr. Morgan opposed the motion on the grounds

that the D.C. Superior Court lacked jurisdiction over the

matter, in part because of the Elizabeth Morgan Act. See

Am. Compl. ¶ ¶ 98-100, J.A. 137-38. No subsequent activity

in the Superior Court appears on the record before us.

Dr. Foretich and his parents filed this suit on June 19,

1997, against the United States and the District of Columbia,

seeking declaratory and injunctive relief. Dr. Foretich challenged the Elizabeth Morgan Act as an unconstitutional bill of

attainder, a violation of his substantive and procedural due

process rights, and a violation of separation of powers and

D.C. home rule. Am. Compl. ¶ ¶ 109-34, J.A. 141-49. While

Dr. Foretich’s parents also participated as plaintiffs in the

action before the District Court, the claims before us principally focus on injuries suffered by Dr. Foretich, so we will

focus our discussion accordingly.

In addition to the negation of favorable Superior Court

orders awarding visitation as well as costs and fees, Dr.

Foretich alleged extraordinary injuries to his reputation resulting from the passage of the Act. Dr. Foretich elaborated

on these injuries in an August 1997 affidavit in opposition to

the United States’ motion to dismiss. See Pl.’s Mem. Opp’n

Def.’s Mot. Dismiss Ex. A. (‘‘Foretich Aff.’’). Dr. Foretich

described the subcommittee hearing on the Act as a ‘‘nightmare’’ and ‘‘the most humiliating experience of [his] life.’’ Id.
12

¶ ¶ 5, 12. He stated that after passage of the Act he was

continually harassed by the media and reminded by strangers

that Congress considered him a danger to his daughter. Id.

¶ ¶ 18, 21. Dr. Foretich’s neighbors also learned of the Act in

a constituency mailing from Congressman Wolf. Id. ¶ 16.

The Act also damaged Dr. Foretich’s professional reputation. Once a prominent oral surgeon, Dr. Foretich’s business

suffered a 30% decline following adoption of the Act. Id.

¶ 17. Forced to seek employment outside of northern Virginia, he was denied a position at a North Carolina university in

part because of the Act. Id. ¶ ¶ 21-22. He further stated

that he was asked to resign his position as Regent of the

American College of Oral and Maxillofacial Surgeons on the

grounds that ‘‘it would not be appropriate for an officer to

serve after Congress had taken action finding that I had

abused my daughter.’’ Id. ¶ 23.

On October 1, 1997, the District Court granted Dr. Morgan’s motion to intervene as a defendant. The District of

Columbia subsequently realigned itself as a plaintiff in the

case. All parties moved for summary judgment in August

1998. On June 13, 2002, the District Court denied the

plaintiffs’ motion and granted summary judgment to the

United States and Dr. Morgan, rejecting each of Dr. Foretich’s constitutional challenges. On July 10, 2002, Dr. Foretich filed a notice of appeal.

Dr. Morgan moved to dismiss the Foretichs’ appeal as moot

on the grounds that Hilary turned 18 in August 2000 and that

the Superior Court therefore no longer has child custody

jurisdiction over her. We ordered the parties to address the

jurisdictional issue, in addition to the merits of the Foretichs’

constitutional challenges.

II. ANALYSIS

We review the District Court’s grant of summary judgment

de novo. Levitan v. Ashcroft, 281 F.3d 1313, 1317 (D.C. Cir.

2002) (citing Summers v. Dep’t of Justice, 140 F.3d 1077, 1078

(D.C. Cir. 1998)). Applying this standard, we hold that the

Elizabeth Morgan Act is an unconstitutional bill of attainder.
13

In light of this conclusion, we need not address appellants’

other constitutional claims. Before deciding the merits, however, we assured ourselves of our jurisdiction over this appeal

under Article III. We will first discuss the jurisdictional

issue, then address the merits of the bill of attainder claim.

A. Jurisdiction

Hilary Foretich turned 18 years old on August 21, 2000.

For this reason, and because the child custody jurisdiction of

the D.C. Superior Court extends only to minor children,

appellees contend that Dr. Foretich’s claim is moot insofar as

it challenges the Act’s negation of his visitation rights. We

agree.

Appellees further contend that the Foretichs cannot maintain Article III standing with respect to any of their other

alleged injuries, including harm to Dr. Foretich’s personal

and professional reputation. We reject this contention. Dr.

Foretich’s reputational injuries are sufficiently concrete and

amenable to redress by a declaratory judgment in his favor as

to satisfy the requirements of Article III standing. As the

Supreme Court has made clear, the fact that one aspect of a

lawsuit becomes moot does not automatically deprive a court

of jurisdiction over remaining, live aspects of the case. See,

e.g., Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 121-22

(1974).

Article III of the Constitution limits our jurisdiction to

‘‘actual, ongoing controversies.’’ Honig v. Doe, 484 U.S. 305,

317 (1988). This limitation gives rise to the doctrines of

standing and mootness. To satisfy Article III’s standing

requirements, a plaintiff must show that, at the time the suit

is filed,

(1) [he] has suffered an ‘‘injury in fact’’ that is (a)

concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury

is fairly traceable to the challenged action of the

defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a

favorable decision.
14

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992)). A plaintiff must maintain standing throughout the course of litigation. ‘‘If events

outrun the controversy such that the court can grant no

meaningful relief, the case must be dismissed as moot.’’

McBryde v. Comm. to Review, 264 F.3d 52, 55 (D.C. Cir.

2001), cert. denied, 537 U.S. 821 (2002).

Dr. Foretich alleges three principal injuries. First, he

argues that the Elizabeth Morgan Act extinguishes visitation

rights he previously enjoyed under the orders of the D.C.

Superior Court and restricts his ability to seek future custody

or visitation orders. This injury is premised on the requirement in subsection (a)(1) of the Act that Hilary give her

consent before Dr. Foretich may have any visitation with her.

Normally, under the ‘‘best interest’’ standard that generally

applies in the District of Columbia, a judge considers the

child’s wishes as one factor in determining custody and

visitation disputes, but the child’s consent is not determinative. See D.C. CODE § 16-914(a)(3)(A) (2001). Dr. Foretich’s

visitation rights were thus changed by the Act in a way that

adversely affected him as a parent, causing him to carry a

burden that is not shouldered by other parents in the District

of Columbia.

As appellees correctly contend, Dr. Foretich’s challenge to

this alleged injury is moot. The D.C. Superior Court’s child

custody jurisdiction extends only to minor children. Creamer

v. Creamer, 482 A.2d 346, 350 (D.C. 1984); see also D.C. CODE

§ 46-101 (2001). Because Hilary Foretich reached the age of

majority in August 2000, the Superior Court can no longer

award any custody or visitation rights relating to her. Even

in the absence of the Elizabeth Morgan Act, D.C. law thus

precludes Dr. Foretich from obtaining or enforcing any visitation orders with respect to his daughter. Consequently, to

the extent the Act infringed on Dr. Foretich’s visitation

rights, this injury is unredressable and cannot support a

finding of jurisdiction.
15

Second, Dr. Foretich asserts that the Act prevents him

from collecting fees and costs from Dr. Morgan that the D.C.

Superior Court awarded to him prior to Dr. Morgan’s flight

to New Zealand. Dr. Foretich bases this alleged injury on

subsection (a)(2) of the Act, which states that, where the Act

applies, the Superior Court cannot ‘‘impose sanctions’’ on a

person in Dr. Morgan’s position on the grounds that she

maintained custody of Hilary or otherwise gave her ‘‘safe

refuge’’ while the custody suit was pending. D.C. CODE § 11-

925(a)(2). Dr. Foretich cannot demonstrate a cognizable

injury on this ground. Subsection (a)(2) prohibits the Superior Court from ‘‘impos[ing] sanctions’’ on Dr. Morgan. This

language does not prevent Dr. Foretich from seeking enforcement of sanctions the court had previously imposed. Indeed,

appellees conceded at oral argument before this court that

the Act would not have this effect. Because we agree with

this interpretation of the statute, and because the Government gave us its assurance at oral argument that it would not

oppose collection of these previously awarded fees and costs,

we conclude that Dr. Foretich does not have standing on the

basis of this alleged injury.

In a similar vein, Dr. Foretich argues that the Act forecloses his ability to obtain new awards of fees and costs

associated with Dr. Morgan’s fleeing the jurisdiction. At first

blush, this alleged injury appears better founded than appellants’ first argument relating to fees and costs. It is not

unreasonable to conclude, as the Government conceded at

oral argument, that the Act’s prohibition on ‘‘impos[ing] sanctions’’ precludes the Superior Court from entering any new

orders awarding fees or costs against Dr. Morgan. Nevertheless, the claim is too speculative to satisfy Article III

standing. Dr. Foretich points to no effort on his part to

obtain any such costs, although it has been six years since Dr.

Morgan returned to the United States. The mere prospect

that Dr. Foretich may one day wish to press a claim for costs

associated with Dr. Morgan’s flight to New Zealand is too

remote to impose an ‘‘actual or imminent’’ injury in fact,

particularly where Dr. Foretich has given us no indication of
16

what such a claim might entail. We therefore cannot base a

finding of jurisdiction upon this alleged injury.

Dr. Foretich’s third and final claim rests on his contention

that he suffered extraordinary injuries to his personal and

professional reputations as a result of the Act. In particular,

he asserts that the Elizabeth Morgan Act embodies a congressional determination that he engaged in criminal acts of

child abuse from which his daughter needed protection. As

Dr. Foretich detailed in the unrefuted affidavit submitted to

the District Court, passage of the Act led to harassment by

the media, estrangement from his neighbors, and loss of

business and professional opportunities. See Foretich Aff.

¶ ¶ 16-18, 21-23. According to Dr. Foretich, these reputational harms resulted directly from the congressional determination that he had abused his daughter. Id. ¶ 23. These

injuries are both cognizable and redressable and therefore

satisfy the requirements of Article III.

Appellees concede, as they must, that injury to reputation

can constitute a cognizable injury sufficient for Article III

standing. See Meese v. Keene, 481 U.S. 465, 473-77 (1987);

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123,

140-41 (1951) (opinion of Burton, J.); McBryde, 264 F.3d at

57; S. Mut. Help Ass’n v. Califano, 574 F.2d 518, 524 (D.C.

Cir. 1977). Furthermore, there can be no serious doubt that

Dr. Foretich suffered harm to his reputation as a result of

this Act and its attendant publicity. Dr. Foretich’s affidavit

to that effect was not contradicted. There are two components of Dr. Foretich’s reputational injury that must be

distinguished, however, as only one permits a finding of

Article III standing.

First, Dr. Foretich’s reputation arguably was harmed by

the vitiation of his custodial rights. When a government

entity abrogates an individual’s parental rights on the basis of

a judgment that the person is unfit as a parent, the official

abrogation undoubtedly damages that person’s reputation and

standing in the community. Accordingly, some portion of the

harm to Dr. Foretich’s reputation plausibly derives from the

Act’s effect on his visitation rights. As noted above, however,
17

to the extent that the Act infringes upon Dr. Foretich’s

parental rights, this infringement is not redressable. Even if

we invalidated the Act, D.C. law would still preclude Dr.

Foretich from obtaining or enforcing any visitation orders in

Superior Court in light of Hilary’s age. Accordingly, this

component of Dr. Foretich’s reputational injury is merely the

secondary effect of an injury that is otherwise moot.

Our case law makes clear that where reputational injury is

the lingering effect of an otherwise moot aspect of a lawsuit,

no meaningful relief is possible and the injury cannot satisfy

the requirements of Article III. See McBryde, 264 F.3d at

57. In McBryde, a federal district judge challenged various

sanctions imposed against him for misconduct by the Judicial

Council for the Fifth Circuit, including suspensions from new

case assignments. Id. at 54-55. The suspensions had expired

by the time we heard the appeal. Id. at 55. Among his

alleged injuries, the appellant asserted harm to his reputation. We held that the reputational injury alone did not

support the appellant’s standing to challenge the suspensions.

Rather, ‘‘when injury to reputation is alleged as a secondary

effect of an otherwise moot action, we have required that

‘some tangible, concrete effect’ remain, susceptible to judicial

correction.’’ Id. at 57 (quoting Penthouse Int’l, Ltd. v. Meese,

939 F.2d 1011, 1019 (D.C. Cir. 1991)).

Similarly, in Penthouse International, Ltd. v. Meese, we

expressed skepticism that the continuing reputational injury

caused by a government letter that labeled appellant’s publication as pornography and discouraged retailers from selling

it could, by itself, keep the controversy alive after the Government had retracted the letter. 939 F.2d 1011, 1018-19 (D.C.

Cir. 1991), cert. denied, 503 U.S. 950 (1992). Because the

reputational injury in that case was the lingering effect of an

otherwise moot action, we distinguished cases in which the

reputational injury was the ‘‘direct effect of the legal action

the government had taken,’’ id. at 1019 (distinguishing Reeve

Aleutian Airways, Inc. v. United States, 889 F.2d 1139, 1143

(D.C. Cir. 1989)), or where the incremental reputational harm

was accompanied by more concrete injuries, id. (distinguishing Am. Fed’n of Gov’t Employees v. Reagan, 870 F.2d 723,
18

726 (D.C. Cir. 1989); Doe v. United States Air Force, 812

F.2d 738, 740-41 (D.C. Cir. 1987)). Likewise, in Aulenback,

Inc. v. FHA, 103 F.3d 156 (D.C. Cir. 1997), we held that a

continuing reputational injury did not confer standing to seek

declaratory relief when that injury derived from charges of

misconduct that had been rendered moot by consent decree.

Id. at 163.

These cases illustrate that where harm to reputation arises

as a byproduct of government action, the reputational injury,

without more, will not satisfy Article III standing when that

government action itself no longer presents an ongoing controversy. Because the cause of the reputational harm is an

otherwise moot government action, a judicial declaration that

the action was unlawful is not likely to provide any further

relief beyond that resulting from the expiration of the action

itself. For this reason, we stated in McBryde that, because

the appellant’s reputational injuries derived from suspensions

that had already expired, ‘‘[w]e cannot see how [a declaratory

judgment that the suspensions were unlawful] would rehabilitate his reputation.’’ 264 F.3d at 57. Similarly, we held in

Penthouse that if the retraction of the letter that was the

source of the appellant’s reputational injuries had not relieved

those injuries, we saw no reason why ‘‘a declaratory judgment

would be likely to do so.’’ 939 F.2d at 1019; see also

Aulenback, 103 F.3d at 163 (noting that appellants ‘‘offer[ed]

no reason why, if the rescission of the [government action]

TTT did not bring back their customers, a declaratory judgment would be likely to do so’’). Accordingly, to the extent

that the injuries to Dr. Foretich’s reputation derive from the

Act’s abrogation of his visitation rights, these injuries constitute the lingering effect of an otherwise moot government

action and cannot be the basis for Article III standing.

Dr. Foretich does not limit his alleged reputational injury

in this manner, however. There is a large second component

to his reputational injury that constitutes an ongoing controversy and consequently supports our jurisdiction. As Dr.

Foretich’s uncontroverted affidavit makes clear, his principal

complaint is that the Elizabeth Morgan Act harmed his

reputation by embodying a congressional determination that
19

he is a child abuser and a danger to his own daughter. This

claim clearly gives Dr. Foretich standing in this case. Congress’s act of judging Dr. Foretich and legislating against him

on the basis of that judgment – the very things that, as we

will see, render the Act an unconstitutional bill of attainder –

directly give rise to a cognizable injury to his reputation that

can be redressed by a declaratory judgment in Dr. Foretich’s

favor.

Case law is clear that where reputational injury derives

directly from an unexpired and unretracted government action, that injury satisfies the requirements of Article III

standing to challenge that action. In Meese v. Keene, the

Supreme Court held that the appellee had standing, on the

basis of injuries to his personal and professional reputation,

to challenge a federal statute classifying films the appellee

wished to exhibit as ‘‘political propaganda.’’ 481 U.S. 465,

472-77 (1987). Finding that the injury to the appellee’s

reputation ‘‘occurs because the Department of Justice has

placed the legitimate force of its criminal enforcement powers

behind the label of ‘political propaganda,’ ’’ the Court held

that the alleged injury was likely to be redressed by a

favorable decision declaring the Act unconstitutional and enjoining its application to the appellee. Id. at 477.

In McBryde, we relied on Keene to uphold the appellee’s

standing to challenge a public reprimand issued by the Judicial Council rebuking the appellee for his misconduct. 264

F.3d at 56-57. Unlike the suspensions, which had expired

and therefore could not be challenged on the basis of reputational injury, ‘‘[t]he dispute over the public reprimand TTT

remain[ed] alive.’’ Id. at 56. The reprimand constituted an

‘‘official characterization’’ of the appellee as having engaged

in ‘‘a pattern of abusive behavior’’ that was ‘‘prejudicial to the

effective and expeditious administration of the business of the

courts,’’ and therefore inflicted direct injury to his reputation.

Id. at 57. Consequently, we held that if the appellant prevailed on the merits, ‘‘it would be within our power to declare

unlawful the defendants’ issuance of stigmatizing reports and

thereby to relieve [the appellant] of much of the resulting

injury.’’ Id.; cf. Sullivan v. Comm. on Admissions, 395 F.2d
20

954, 956 (D.C. Cir. 1968) (holding that an attorney charged

with misconduct had standing on the basis of reputational

injury to appeal those portions of the district court’s opinion

that reflected unfavorably on the attorney’s professional conduct even though the district court had otherwise dismissed

the charges).

As these cases demonstrate, reputational injury that derives directly from government action will support Article III

standing to challenge that action. Redress is possible in such

a case because the damage to reputation is caused by the

challenged action. A declaratory judgment that the government’s actions were unlawful will consequently provide meaningful relief. See Keene, 481 U.S. at 477; McBryde, 264 F.3d

at 57. In this case, as in Keene and McBryde, Dr. Foretich

contends that the cited government action, here the Elizabeth

Morgan Act, directly damages his reputation and standing in

the community by effectively branding him a child abuser and

an unfit parent. This is sufficient to satisfy the requirements

of Article III. This alleged injury to Dr. Foretich’s reputation is a concrete and direct result of the legislation. A

judicial determination that Congress acted unlawfully in enacting the Elizabeth Morgan Act will provide a significant

measure of redress for the harm to Dr. Foretich’s reputation.

This alleged injury therefore supports a finding of jurisdiction

in this case.

Our conclusion might be different if the Government had

repealed the Elizabeth Morgan Act. Even where a government action embodies a characterization or condemnation that

damages an individual’s standing in the community, the resulting reputational injury would not satisfy Article III standing if the challenged action had been rescinded and if the

Government satisfied its burden of demonstrating ‘‘that ‘there

is no reasonable expectation TTT’ that the alleged violation

will recur.’’ Payne Enterprises, Inc. v. United States, 837

F.2d 486, 492 (D.C. Cir. 1988) (quoting County of Los Angeles

v. Davis, 440 U.S. 625, 631 (1979)). Thus, as noted above, the

‘‘lingering effects’’ on reputation of a retracted or repealed

government action normally do not furnish a basis for Article

III standing. Compare Keene, 481 U.S. at 476-77 (official
21

condemnation was a continuing threat), and McBryde, 264

F.3d at 56-57 (stigmatizing reports were a continuing part of

the historical record), with Penthouse, 939 F.2d at 1018-19

(letter accusing retailers of distributing pornography had

been retracted). This is not such a case. The Elizabeth

Morgan Act remains in force. We therefore retain jurisdiction over Dr. Foretich’s challenge to its constitutionality.

The Government argues that Dr. Foretich lacks standing to

sue on the basis of reputational injury because, even under

our reading of Keene and McBryde, his injuries are not

redressable. Specifically, the Government contends that any

adverse impact on Dr. Foretich’s reputation derives not from

the existence of the Elizabeth Morgan Act, but from the

legislative process and surrounding publicity that led to its

enactment. Although the Government conceded at oral argument that the legislative process had an adverse ‘‘impact on

appellant’s reputation,’’ it was unwilling to attribute that

impact to the statute itself. Instead the Government asserted that the statute does not reflect anything ‘‘on its face’’

about the Foretichs. Thus, the Government argues that a

decision from this court declaring the Act to be unconstitutional cannot redress Dr. Foretich’s reputational injuries. In

support of this argument, the Government attempts to distinguish the public reprimand at issue in McBryde on the

ground that express condemnations of the appellant in that

case appeared on the face of the challenged reprimand. See

264 F.3d at 56-57.

We reject the Government’s argument. It makes little

sense to view the Act in isolation, divorced from the legislative process that produced it. The statute represents the

culmination of that process, and it memorializes judgments

about Dr. Foretich that Congress formed during the course of

that process. The Government’s argument is particularly

tenuous in the context of a bill of attainder challenge, in

which the alleged constitutional defect arises not only from

the statute’s text, but also from the underlying process of

legislatively determining guilt without the protections of a

judicial trial. See Nixon v. Adm’r of Gen. Servs., 433 U.S.

425, 468 (1977). It is therefore not plausible to suggest that
22

the Elizabeth Morgan Act itself does not contribute to the

harm suffered by Dr. Foretich’s reputation.

Furthermore, contrary to the Government’s objections, a

declaration by this court that Congress exceeded its constitutional bounds by enacting the Elizabeth Morgan Act will

provide relief for Dr. Foretich and his parents. See

McBryde, 264 F.3d at 57 (‘‘Were [the plaintiff] to prevail on

the merits it would be within our power to declare unlawful

the defendants’ issuance of stigmatizing reports and thereby

to relieve TTT much of the resulting injury.’’) (emphasis

added); Doe, 812 F.2d at 740 (‘‘We think that a declaratory

judgment that the materials and information were obtained

[from the plaintiff] by violating the Constitution would constitute relief.’’); S. Mut. Help Ass’n, 574 F.2d at 524 (finding the

plaintiff’s assertion ‘‘that its good name and reputation have

been damaged’’ to be an injury ‘‘capable of direct redress’’

through the requested declaratory and injunctive relief).

Such a declaration will remove the imprimatur of government

authority from an Act that effectively denounces Dr. Foretich

as a danger to his own daughter.

In Keene, the Attorney General argued that enjoining the

Government from labeling appellant’s films as ‘‘political propaganda’’ would not provide relief because, even if the designation was removed, members of the community might continue to react negatively to the appellant and his films

because of their having once been labeled. 481 U.S. at 476-

77. Notwithstanding this possibility, the Supreme Court

concluded that the injunction would at least partially redress

the plaintiff’s reputational injury, because it would remove

‘‘the legitimate force of [the Government’s] criminal enforcement powers’’ from the label. Id. at 477 (emphasis added).

In other areas of the law, courts have proceeded on the

assumption that a favorable judicial decision will provide

meaningful relief – even if not complete – to a party who

alleges an injury to his or her reputation. Our circuit has

joined others, for example, in finding that an attorney

charged with misconduct has standing on the basis of reputational injury to appeal a judgment finding the attorney guilty
23

but refraining from imposing any concrete sanctions. See

Sullivan, 395 F.2d at 956; see also Walker v. City of Mesquite, 129 F.3d 831, 832 (5th Cir. 1997). Similarly, it is

foundational to the law of libel and defamation that a party

who prevails on a claim that the defendant’s tort has harmed

his or her reputation is in some sense relieved by that

judgment. See, e.g., Masson v. New Yorker Magazine, Inc.,

501 U.S. 496, 515 (1991) (‘‘[T]he tort action for defamation has

existed to redress injury to the plaintiff’s reputation by a

statement that is defamatory and false.’’); White v. Fraternal

Order of Police, 909 F.2d 512, 518 (D.C. Cir. 1990) (noting

that ‘‘a defamation tort redresses damage to reputation’’).

It may be true, as the Government argues, that the damage

to Dr. Foretich’s reputation comes in part from the publicity

surrounding the custody dispute and Dr. Morgan’s allegations, not solely from the Elizabeth Morgan Act. But this

misses the point. The Act itself has caused significant harm

to Dr. Foretich. Therefore, by vindicating Dr. Foretich’s

assertion that Congress unfairly and unlawfully rendered a

judgment as to his character and fitness as a father, declaratory relief will provide a significant measure of redress

sufficient to satisfy the requirements of Article III standing.

Here, a decision declaring the Act unlawful would make clear

that Congress was wrong to pass judgment on Dr. Foretich

and wrong to single him out for punishment on the basis of

that judgment. In doing so, a declaratory judgment in Dr.

Foretich’s favor would give redress for his reputational injuries.

As a final matter, appellees invite us to exercise our

discretion under the doctrine of prudential mootness to refrain from hearing this appeal. We decline to do so. Because the exercise of our equitable powers is discretionary,

we may decline to hear an appeal for declaratory or injunctive

relief ‘‘[w]here it is TTT unlikely that the court’s grant of

declaratory judgment will actually relieve the injury.’’ Penthouse, 939 F.2d at 1019. This is especially true where the

court can avoid adjudication of difficult or novel constitutional

questions. Id. at 1020. These conditions do not obtain in this

case. As we have said, a favorable judgment for appellants
24

will provide a real measure of redress to Dr. Foretich.

Moreover, this case does not raise unusually complex questions of law. Rather, appellants’ claims implicate a constitutional provision with respect to which case law provides ample

interpretive guidance. Accordingly, we proceed to review the

merits of those claims.

B. Bill of Attainder

Dr. Foretich argues that the Elizabeth Morgan Act violates

the Bill of Attainder Clause by singling him out for legislative

punishment. We agree and hold the Act to be an unconstitutional bill of attainder.

Article I, section 9 of the Constitution provides that ‘‘[n]o

Bill of Attainder TTT shall be passed.’’ U.S. CONST. art. I, § 9,

cl. 3. This provision prohibits Congress from enacting ‘‘a law

that legislatively determines guilt and inflicts punishment

upon an identifiable individual without provision of the protections of a judicial trial.’’ Nixon v. Adm’r of Gen. Servs., 433

U.S. 425, 468 (1977). As the Supreme Court explained in

United States v. Brown, 381 U.S. 437 (1965), the Clause was

intended to serve as ‘‘a general safeguard against legislative

exercise of the judicial function, or more simply – trial by

legislature.’’ Id. at 442. The infrequency with which courts

have relied upon this provision to invalidate legislation has

not prevented its meaning from evolving to fulfill this purpose. See BellSouth Corp. v. FCC, 162 F.3d 678, 683 (D.C.

Cir. 1998) (‘‘BellSouth II’’).

Early in our country’s history, a bill of attainder was seen

to refer to a legislative act that sentenced a named individual

to death without benefit of a judicial trial. See BellSouth

Corp. v. FCC, 144 F.3d 58, 62 (D.C. Cir. 1998), cert. denied,

526 U.S. 1086 (1999) (‘‘BellSouth I’’). As early as 1810,

however, the scope of the prohibition was extended to include

so-called ‘‘bills of pains and penalties,’’ or legislative acts that

sentenced specified persons to penalties short of death, including banishment, deprivation of the right to vote, corruption of blood, or confiscation of property. See Fletcher v.

Peck, 10 U.S. (6 Cranch) 87, 138 (1810); see also Brown, 381

U.S. at 441-42; BellSouth I, 144 F.3d at 62. By 1866, the
25

Supreme Court wrote that a forbidden attainder could embrace ‘‘[t]he deprivation of any rights, civil or political, previously enjoyed,’’ if the attending circumstances and causes of

the deprivation demonstrated that the deprivation amounted

to ‘‘punishment.’’ Cummings v. Missouri, 71 U.S. (4 Wall.)

277, 320 (1866). Decisions from the Supreme Court since the

Civil War have invalidated as bills of attainder legislation

barring specified persons or groups from pursuing various

professions, where the employment bans were imposed as a

brand of disloyalty. Nixon, 433 U.S. at 474-75.

Under the now prevailing case law, a law is prohibited

under the bill of attainder clause ‘‘if it (1) applies with

specificity, and (2) imposes punishment.’’ BellSouth II, 162

F.3d at 683. The element of specificity may be satisfied if the

statute singles out a person or class by name or applies to

‘‘easily ascertainable members of a group.’’ United States v.

Lovett, 328 U.S. 303, 315 (1946). As the Supreme Court

made clear in Nixon, however, specificity alone does not

render a statute an unconstitutional bill of attainder. See 433

U.S. at 469-73. Rather, a law may be so specific as to create

a ‘‘legitimate class of one’’ without amounting to a bill of

attainder unless it also satisfies the ‘‘punishment’’ element of

the analysis. Id. at 472. For this reason, we have upheld

statutes against bill of attainder challenges even where the

disputed statutes applied to specifically named parties. See

BellSouth II, 162 F.3d at 684; BellSouth I, 144 F.3d at 63.

Both ‘‘specificity’’ and ‘‘punishment’’ must be shown before a

law is condemned as a bill of attainder.

In this case, there can be no serious dispute that the

Elizabeth Morgan Act satisfies the specificity prong of our

analysis. Although Congress stopped short of including the

names ‘‘Foretich’’ and ‘‘Morgan’’ in the text of the statute, the

applicability of the Act depends on such a narrow set of

circumstances that it applies to no known cases other than

the Morgan-Foretich custody dispute. The statute does not

apply unless: (1) the minor child in a pending custody case

has attained 13 years of age; (2) the child has resided outside

of the United States for not less than 24 consecutive months;

(3) any party to the case has denied custody or visitation to
26

another party in violation of a court order for not less than 24

consecutive months; (4) any party to the case has lived

outside of the District of Columbia during that period of

denial of custody or visitation; and (5) the child has asserted

that a party to the case has been sexually abusive with him or

her. D.C. CODE § 11-925. This combination of facts is so

exceedingly narrow and unlikely to coincide that the affected

persons are indeed ‘‘easily ascertainable.’’ For this reason,

the Government conceded at oral argument that there was no

genuine issue as to the law’s specificity, stating that ‘‘there’s

no question that this law was specific to this family.’’

While the Elizabeth Morgan Act thus satisfies the specificity requirement, this is only the beginning of our inquiry.

Recognizing that ‘‘virtually all legislation operates by identifying the characteristics of the class to be benefited or burdened,’’ we stated in BellSouth I that ‘‘it is not clear that the

specificity requirement retains any real bite.’’ 144 F.3d at 63.

Rather, the principal touchstone of a bill of attainder is

punishment.

To ascertain whether a statute imposes punishment, the

Supreme Court has instructed that a court should pursue a

three-part inquiry:

(1) whether the challenged statute falls within the

historical meaning of legislative punishment; (2)

whether the statute, ‘‘viewed in terms of the type

and severity of burdens imposed, reasonably can be

said to further nonpunitive legislative purposes’’;

and (3) whether the legislative record ‘‘evinces a

congressional intent to punish.’’

Selective Serv. Sys. v. Minn. Pub. Interest Research Group,

468 U.S. 841, 852 (1984) (quoting Nixon, 433 U.S. at 473, 475-

76, 478). The Court has applied each of these criteria as an

independent – though not necessarily decisive – indicator of

punitiveness. See Selective Serv. Sys., 468 U.S. at 852-56;

Nixon, 433 U.S. at 473-84; see also SeaRiver Mar. Fin.

Holdings, Inc. v. Mineta, 309 F.3d 662, 673 (9th Cir. 2002)

(‘‘[W]e weigh these factors together in resolving a bill of

attainder claim.’’); Consol. Edison Co. v. Pataki, 292 F.3d
27

338, 350 (2d Cir.), cert. denied, 537 U.S. 1045 (2002) (‘‘[A]

statute need not fit all three factors to be considered a bill of

attainder; rather, those factors are the evidence that is

weighed together in resolving a bill of attainder claim.’’).

Our cases have noted, however, that the second factor – the

so-called ‘‘functional test’’ – ‘‘invariably appears to be ‘the

most important of the three.’ ’’ BellSouth II, 162 F.3d at 684

(quoting BellSouth I, 144 F.3d at 65). Indeed, compelling

proof on this score may be determinative. In BellSouth I, we

explained that where an enactment falls outside the historical

definition of punishment, therefore failing to satisfy the first

test, the legislation may still be a bill of attainder under the

functional test if no legitimate nonpunitive purpose appears.

144 F.3d at 65. This ensures that Congress cannot ‘‘circumvent[ ] the clause by cooking up newfangled ways to punish

disfavored individuals or groups.’’ Id.

1. The Historical Test

With these principles in mind, we begin by examining

whether the Elizabeth Morgan Act imposes a burden that

falls within the historical meaning of legislative punishment.

Selective Serv. Sys., 468 U.S. at 852; see also Nixon, 433 U.S.

at 473 (‘‘The infamous history of bills of attainder is a useful

starting point in the inquiry whether the Act fairly can be

characterized as a form of punishmentTTTT’’). The historical

experience with bills of attainder in England and the United

States ‘‘offers a ready checklist of deprivations and disabilities so disproportionately severe and so inappropriate to

nonpunitive ends that they unquestionably have been held to

fall within the proscription of Art. I, § 9.’’ Nixon, 433 U.S. at

473. This checklist includes sentences of death, bills of pains

and penalties, and legislative bars to participation in specified

employments or professions. See BellSouth II, 162 F.3d at

685.

We agree with the Government that the Elizabeth Morgan

Act does not obviously impose burdens that historically have

been identified as punishment. In other words, there are no

past cases that involve the precise situation that we face here,

so history is not conclusive. Appellants rely on dictum in
28

Cummings v. Missouri to the effect that ‘‘[d]isqualification

from the pursuits of a lawful avocation, or from positions of

trust, or from the privilege of appearing in the courts, or

acting as an executor, administrator, or guardian, may also,

and often has been, imposed as punishment,’’ 71 U.S. (4 Wall.)

at 320, arguing that ‘‘guardian’’ and ‘‘parent’’ are equivalent.

This is a stretch. Cummings addressed a requirement imposed by the Missouri State Constitution that certain persons

take an oath of loyalty before entering into certain professions. Id. at 279-81. Thus, at least at first blush, the

reference to ‘‘guardian’’ does not appear to implicate parental

child custody arrangements.

Although the particular burden imposed on Dr. Foretich

under the Act is not precisely identical to any of the burdens

historically recognized as punishment, the Elizabeth Morgan

Act is not entirely incongruous with historical notions of

punishment. First, it is noteworthy that, in past cases, in

assessing whether a statute is a bill of attainder, the Court

has looked to determine whether there is a rational connection between the restriction imposed and a legitimate nonpunitive purpose. For example, in Dent v. West Virginia, 129

U.S. 114 (1889), the Court upheld a law imposing certain

educational and certification requirements on individuals before they could practice medicine. The Court found that such

restrictions did not amount to a bill of attainder because they

were appropriately related to the medical profession and

therefore constituted a reasonable means of ensuring the

public safety. Id. at 122-23. The Court distinguished the

statutes invalidated as bills of attainder in Cummings and Ex

Parte Garland on the ground that the loyalty oaths at issue

in those cases bore ‘‘no relation’’ to the restricted individuals’

‘‘fitness for the pursuits and professions designated.’’ Id. at

125-26 (discussing Cummings, 71 U.S. (4 Wall.) 277 (1866);

Ex Parte Garland, 71 U.S. (4 Wall.) 333 (1866)). These early

decisions foreshadowed the development of the functional test

and reinforce the necessity of a coherent and reasonable

nexus between the burden imposed and the benefit to be

gained. See Nixon, 433 U.S. at 473 (describing historically

recognized bills of attainder as ‘‘deprivations and disabilities
29

so disproportionately severe and so inappropriate to nonpunitive ends that they unquestionably have been held to fall

within the proscription of Art. I, § 9’’) (emphasis added).

Second, the early cases also demonstrate that a statute will

be particularly susceptible to invalidation as a bill of attainder

where its effect is to mark specified persons with a brand of

infamy or disloyalty. See id. at 474 (noting that laws barring

designated individuals from participation in specified professions were ‘‘a mode of punishment commonly employed

against those legislatively branded as disloyal’’). Borrowing

from Blackstone, the Fifth Circuit recently discussed the

common law concept of attainder – limited to sentences of

death – in terms of the ignominy such laws imposed:

‘‘When sentence of death, the most terrible and

highest judgment in the laws of England, is pronounced, the immediate inseparable consequence by

the common law is attainder. For when it is now

clear beyond all dispute, that the criminal is no

longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society, the

law sets a note of infamy upon him, puts him out of

it’s [sic] protection, and takes no farther care of him

than barely to see him executed. He is then called

attaint, attinctus, stained, or blackened. He is no

longer of any credit or reputationTTTT’’

SBC Communications, Inc. v. FCC, 154 F.3d 226, 235 (5th

Cir. 1998) (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES

*380). While the prohibition against bills of attainder has

evolved far beyond the original context of capital sentences, it

continues to focus on legislative enactments that ‘‘set[ ] a note

of infamy’’ on the persons to whom the statute applies. See

Brown, 381 U.S. at 453-54 (holding that a statute is not a bill

of attainder where it ‘‘incorporates no judgment censuring or

condemning any man or group of men’’) (emphasis added).

Viewed in this light, the Elizabeth Morgan Act, while not

squarely within the historical meaning of legislative punishment, is not dissimilar to the types of burdens traditionally

recognized as punitive. As our discussion of Dr. Foretich’s

standing to pursue this lawsuit makes clear, one effect of the
30

Act has been that Dr. Foretich is ‘‘no longer of any credit or

reputation.’’ If anything, the burdens imposed on Dr. Foretich under the Act – deprivation of parental rights and the

opprobrium of being branded a criminal child abuser – may

be of even greater magnitude than many of those at issue in

the historical cases. If deprivation of the right to hold office

in a labor union, see Brown, 381 U.S. at 458-60, or to practice

a certain profession, see Lovett, 328 U.S. at 316, can constitute

punishment, surely deprivation of Dr. Foretich’s right to be

with his own daughter on the basis of a legislative determination of criminal sexual abuse also qualifies for that description. A finding that the Act constitutes a bill of attainder

therefore would not be an inconsistent extension of the historical category.

In any event, even if the Act does not fall precisely within

the historical meaning of punishment, this conclusion would

not preclude a finding that the Act constitutes an unconstitutional bill of attainder. Case law makes clear that ‘‘our

inquiry is not ended by the determination that the Act

imposes no punishment traditionally judged to be prohibited

by the Bill of Attainder Clause.’’ Nixon, 433 U.S. at 475.

Were this not the case, ‘‘new burdens and deprivations might

be legislatively fashioned that are inconsistent with the bill of

attainder guarantee.’’ Id. For this reason, the category of

‘‘bills of attainder’’ has continued to evolve and expand. See

BellSouth II, 162 F.3d at 683. We therefore proceed to apply

the other criteria for legislative punishment to determine

whether the Act constitutes an impermissible bill of attainder.

See Selective Serv. Sys., 468 U.S. at 853-54 (‘‘To ensure that

the Legislature has not created an impermissible penalty not

previously held to be within the proscription against bills of

attainder, we must determine whether the challenged statute

can be reasonably said to further nonpunitive goals.’’).

2. The Functional Test

Under the second prong of the bill of attainder analysis, we

must consider ‘‘whether the law under challenge, viewed in

terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.’’
31

Nixon, 433 U.S. at 475-76. ‘‘Where such legitimate legislative

purposes do not appear, it is reasonable to conclude that

punishment of individuals disadvantaged by the enactment

was the purpose of the decisionmakers.’’ Id. at 476. Under

this functional test, the nonpunitive aims must be ‘‘sufficiently

clear and convincing’’ before a court will uphold a disputed

statute against a bill of attainder challenge. BellSouth II,

162 F.3d at 686.

Courts have conducted this inquiry by examining both the

purported ends of contested legislation and the means employed to achieve those ends. In Nixon, the Supreme Court

rejected a bill of attainder challenge to an act directing the

Administrator of General Services to take custody of the

presidential papers and tape recordings of former President

Nixon. 433 U.S. at 429. The Court found the objectives of

the act, which included the need to preserve information

necessary to the completion of Watergate-related prosecutions and the desire to safeguard documents of historical

significance, to be ‘‘legitimate justifications’’ for its passage,

id. at 476, that did not ‘‘support[ ] an implication of a legislative policy designed to inflict punishment on an individual.’’

Id. at 478. In addition, the Court noted aspects of the statute

designed to protect the rights of the burdened party. Id. at

477. The Court therefore found the act to be a ‘‘fair exercise

of Congress’ responsibility.’’ Id.

More recently, in Selective Service System, the Court examined the constitutionality of a statute denying federal

financial aid to male students who failed to register for the

draft. 468 U.S. at 843. The Court first noted that the

statute served the nonpunitive legislative goal of encouraging

those required to register to do so. Id. at 854. The Court

further examined whether the means employed in the statute – conditioning the receipt of federal aid on registration –

was a ‘‘rational means’’ of achieving the goal. Id. ‘‘Since the

group of young men who must register for the draft overlaps

in large part with the group of students who are eligible for

[federal] aid,’’ the Court found, ‘‘Congress reasonably concluded that [the statute] would be a strong tonic to many

nonregistrants.’’ Id. The Court also found the scope of the
32

legislation to be relevant under the functional test. Id. at

855. That the statute applied equally to unintentional violators, rather than ‘‘singl[ing] out intentional nonregistrants,’’

evinced the statute’s ‘‘nonpunitive spirit.’’ Id.

Our own cases have emphasized the need for a legitimate

nonpunitive purpose and a rational connection between the

burden imposed and nonpunitive purposes of the legislation.

In BellSouth II, we found that the challenged portion of the

Telecommunications Act of 1996 did not inflict punishment

because it was a rational means of serving a fair and legitimate nonpunitive purpose. See 162 F.3d at 686-90 (citing

cases indicating the need for a meaningful nexus between the

restriction imposed and the legitimate government purpose).

We further noted that ‘‘the differential treatment’’ of the

parties specified in the Act was ‘‘neither suggestive of punitive purpose nor particularly suspicious.’’ Id. at 690; see also

BellSouth I, 144 F.3d at 67 (finding other portions of the

Telecommunications Act to serve rational and nonpunitive

purposes and that the selectivity of the Act was ‘‘quite

understandable without resort to inferences of punitive purpose’’).

By contrast, other cases make clear that where there exists

a significant imbalance between the magnitude of the burden

imposed and a purported nonpunitive purpose, the statute

cannot reasonably be said to further nonpunitive purposes.

See Consol. Edison Co., 292 F.3d at 354 (holding a statute to

be a bill of attainder where ‘‘the legislature piled on a burden

that was obviously disproportionate to the harm caused’’).

Because such an imbalance belies any purported nonpunitive goals, the availability of ‘‘less burdensome alternatives’’

becomes relevant to the bill of attainder analysis. See Nixon,

433 U.S. at 482 (‘‘In determining whether a legislature sought

to inflict punishment on an individual, it is often useful to

inquire into the existence of less burdensome alternatives by

which that legislature TTT could have achieved its legitimate

nonpunitive objectives.’’); SeaRiver, 309 F.3d at 677-78 (considering whether there existed any less burdensome alternatives by which the legislature could have achieved its pur-
33

pose); Consol. Edison Co., 292 F.3d at 354 (noting that there

were plainly less burdensome alternatives to the law enacted

where the legislature ‘‘made no attempt whatsoever to ensure

that the costs imposed on Con Ed were proportional to the

problems that the legislature could legitimately seek to ameliorate’’).

Certain principles emerge from these cases. First, to avoid

designation as a bill of attainder, a statute that burdens a

particular person or class of persons must serve purposes

that are not only nonpunitive, but also rational and fair. See

Selective Serv. Sys., 468 U.S. at 854; Nixon, 433 U.S. at 483;

BellSouth II, 162 F.3d at 680, 686-88. In addition, as the

historical cases foreshadowed, there must be a nexus between

the legislative means and legitimate nonpunitive ends. See

Selective Serv. Sys., 468 U.S. at 854; BellSouth II, 162 F.3d

at 687-88. Additionally, a court must weigh the purported

nonpunitive purpose of a statute against the magnitude of the

burden it inflicts. See Nixon, 433 U.S. at 475-76 (stating that

the question under the functional test is ‘‘whether the law

under challenge, viewed in terms of the type and severity of

burdens imposed, reasonably can be said to further nonpunitive legislative purposes’’) (emphasis added). It is not the

severity of a statutory burden in absolute terms that demonstrates punitiveness so much as the magnitude of the burden

relative to the purported nonpunitive purposes of the statute.

A grave imbalance or disproportion between the burden and

the purported nonpunitive purpose suggests punitiveness,

even where the statute bears some minimal relation to nonpunitive ends. See id. at 473; Consol. Edison Co., 292 F.3d

at 354.

Other aspects of a challenged statute also bear on the bill

of attainder analysis. For example, the inclusion of protective measures designed to safeguard the rights of the burdened individual or class weighs against a finding that a

statute is a bill of attainder. See Nixon, 433 U.S. at 477.

Moreover, the selectivity or scope of a statute may indicate

punitiveness where the differential treatment of the affected

party or parties cannot be explained ‘‘without resort to inferences of punitive purpose.’’ BellSouth I, 144 F.3d at 67; see
34

also Navegar, Inc. v. United States, 192 F.3d 1050, 1067 (D.C.

Cir. 1999), cert. denied, 531 U.S. 816 (2000) (holding that the

breadth of a challenged statute indicated that Congress ‘‘was

aiming not to punish appellants, but rather to regulate an

entire class’’); BellSouth II, 162 F.3d at 690. Finally, the

availability of less burdensome alternatives can also cast

doubt on purported nonpunitive purposes. See Nixon, 433

U.S. at 482; SeaRiver, 309 F.3d at 677-78; Consol. Edison

Co., 292 F.3d at 354. To be sure, these considerations are not

alone decisive, and Congress must have sufficient latitude to

choose among competing policy alternatives so that our bill of

attainder analysis will not ‘‘cripple the very process of legislating.’’ Nixon, 433 U.S. at 470. Nevertheless, the presence

in a challenged enactment of the features highlighted in these

cases undercuts the plausibility of any purported benign

purposes and points us toward a finding of punitiveness.

Applying these principles to the instant case, we conclude

that the Elizabeth Morgan Act constitutes ‘‘punishment’’ under the functional test. As an initial matter, there can be no

doubt as to the magnitude of the burden the Act imposes on

Dr. Foretich. By singling out Dr. Foretich as virtually the

only parent subject to the Act, Congress has permanently

associated him with criminal acts of child sexual abuse. The

Act memorializes a judgment by the United States Congress

that Dr. Foretich is guilty of horrific crimes. Congress

reached this determination despite the repeated and unwavering rejection of such claims by every court that considered

them. As a result, the Act inflicts significant and costly

injury to Dr. Foretich’s reputation, while it also takes a

significant step toward permanently severing Dr. Foretich’s

relationship with his own daughter.

The Government argues that the Act serves the nonpunitive purposes of promoting the best interests of the child,

reuniting a family, and facilitating the return of U.S. citizens

to this country. In the Government’s view, the burden on Dr.

Foretich is merely incidental to legitimate purposes, so the

burden does not make the Act a bill of attainder. The

difficulty with this argument is that the Government appears

to suggest that it can defend the constitutionality of the
35

statute simply by positing any nonpunitive purpose, regardless of the nature of the burden imposed or the relationship

between that burden and the asserted goal. This view is

entirely contrary to the prevailing case law noted above. The

law is clear that if there exists an extraordinary imbalance

between the burden imposed and the alleged nonpunitive

purpose, and if the legislative means do not appear rationally

to further that alleged purpose, then the statute in question

does not escape unconstitutionality merely because the Government can assert purposes that superficially appear to be

nonpunitive.

What is most noteworthy here is that the Government’s

asserted purposes in this case conveniently beg two telling

questions: Why did the protection of Hilary’s best interests

require this legislation? Why were Dr. Morgan and Hilary

unable to return ‘‘safely’’ to this country to reunite with their

family before the passage of the Act? The only plausible

answer to each question is that Congress believed Dr. Foretich had abused his daughter and posed a continuing threat to

her security and well-being. The purposes the Government

alleges thus cannot be viewed as nonpunitive.

This conclusion is inescapable when it is seen that the

particular means Congress adopted in this Act belie any

nonpunitive aim. Although it asserts that the Act is primarily concerned with promoting the best interests of the child,

the Government offers no answer to the question of why the

‘‘best interest’’ standard of the Act was not made available in

other child custody cases. If the disputed Act had been

enacted to apply to all pending custody disputes involving

children over 13, this would be a different case. Dr. Foretich

would still have to secure Hilary’s consent before obtaining

any visitation with her. However, such a burden, while

weighty, could not be viewed as ‘‘punitive’’ under the Bill of

Attainder Clause.

In this case, however, the fact that Dr. Foretich was

singled out for this severe burden belies the claim that

Congress’s purposes were nonpunitive. Evidently, Congress

believed that the existing standard ordinarily applied in D.C.
36

custody cases was perfectly adequate to protect the best

interests of mature minor children in all cases save one, the

Morgan-Foretich custody dispute. Under the normally applicable standard, a Superior Court judge must take account of

several factors in determining the best interests of the child,

including the child’s own wishes. See D.C. CODE § 16-

914(a)(3)(A). It is only in the Morgan-Foretich case that

Congress chose to make the child’s consent determinative.

The Government asserted at oral argument that this alteration to the standard was necessary ‘‘to give a mature minor

the right to say no, that she does not have to be with someone

who she believes abused her.’’ Yet, surely there are other

‘‘mature minors’’ in the District who prefer with good reason

to be placed in the custody of one parent rather than the

other. Apparently, in Congress’s view, the best interests of

those other children are adequately served by the existing

standard. In light of the Act’s narrow applicability, the

Government’s asserted purposes are simply implausible. It is

the relative imbalance between the burden in this case and

the implausible nonpunitive purposes that compels us toward

a finding of punitiveness.

The Government responds that a statute is not ‘‘punishment’’ merely because Congress could have written it more

broadly. It is true that underinclusiveness or specificity,

alone, do not render a statute an unconstitutional bill of

attainder. The statute must also inflict punishment. See

Nixon, 433 U.S. at 470–72; Brown, 381 U.S. at 449 n.23.

Nevertheless, narrow application of a statute to a specific

person or class of persons raises suspicion, because the Bill of

Attainder Clause is principally concerned with ‘‘[t]he singling

out of an individual for legislatively prescribed punishment.’’

Selective Serv. Sys., 468 U.S. at 847 (quoting Communist

Party v. Subversive Activities Control Bd., 367 U.S. 1, 86

(1961)) (emphasis added). Therefore, the functional test necessarily takes account of the scope or selectivity of a statute

in assessing the plausibility of alleged nonpunitive purposes.

See Selective Serv. Sys., 468 U.S. at 855; Navegar, 192 F.3d

at 1067; BellSouth II, 162 F.3d at 690; BellSouth I, 144 F.3d

at 67. Unlike our previous cases, the instant case is one in
37

which the narrow focus of the disputed Act cannot be explained ‘‘without resort to inferences of punitive purpose.’’

BellSouth I, 144 F.3d at 67.

In this case, it is the Act’s specificity that renders the

asserted nonpunitive purposes suspect. And it is the Act’s

specificity that creates the injury to Dr. Foretich’s reputation.

If the Act applied in all custody disputes, its provisions for

dealing with allegations of sexual abuse would not cast aspersions on any particular person. But as the Government

concedes, the Act targets only Dr. Foretich. As a consequence, the Act officially associates Dr. Foretich with criminal

sexual abuse because it implies that his daughter alone needs

special protections. Whereas the statute at issue in Nixon

created a ‘‘legitimate class of one,’’ 433 U.S. at 472, and

served significant public purposes beyond the burdens inflicted on former President Nixon, the Elizabeth Morgan Act

creates a vilified class of one with no attendant nonpunitive

purposes. Accordingly, we find that the Act imposes ‘‘punishment’’ under the functional test because it cannot reasonably

be said to further nonpunitive purposes.

3. Motivational Test

The final test of legislative punishment is ‘‘strictly a motivational one: inquiring whether the legislative record evinces a

congressional intent to punish.’’ Nixon, 433 U.S. at 478.

Under this prong, a court must inspect legislation for a

congressional purpose to ‘‘encroach[ ] on the judicial function

of punishing an individual for blameworthy offenses.’’ Id. at

479. Courts conduct this inquiry by reference to legislative

history, the context or timing of the legislation, or specific

aspects of the text or structure of the disputed legislation.

See Selective Serv. Sys., 468 U.S. at 855 n.15; Nixon, 433 U.S.

at 478-82.

Given the obvious constraints on the usefulness of legislative history as an indicator of Congress’s collective purpose,

this prong by itself is not determinative in the absence of

‘‘unmistakable evidence of punitive intent.’’ Selective Serv.

Sys., 468 U.S. at 856 n.15 (quoting Flemming v. Nestor, 363

U.S. 603, 619 (1960)). ‘‘ ‘[S]everal isolated statements’ are not
38

sufficient to evince punitive intent,’’ BellSouth II, 162 F.3d at

690 (quoting Selective Serv. Sys., 468 U.S. at 856 n.15), and

cannot render a statute a bill of attainder without any other

indicia of punishment. Evidence in the legislative history can

bolster our conclusion, however, where other factors suggest

punitiveness. See Lovett, 328 U.S. at 312, 314 (finding an

employment ban to constitute a bill of attainder where committee reports characterized the affected persons as ‘‘subversive’’ and ‘‘unfit’’ for government service); cf. Nixon, 433 U.S.

at 479 (finding no bill of attainder where the relevant committee reports ‘‘cast no aspersions on appellant’s personal conduct and contain[ed] no condemnation of his behavior as

meriting the infliction of punishment’’).

In this case, the legislative history is replete with evidence

that the statutory purpose of the Elizabeth Morgan Act was

to ‘‘correct an injustice’’ and take sides in a notorious custody

dispute. Hearing at 8, J.A. 41 (statement of Rep. Molinari).

The focus of the Act and the unusual committee hearing in

consideration of the bill demonstrate that the legislative

process in this case amounted to precisely that which the Bill

of Attainder Clause was designed to prevent: a congressional

determination of blameworthiness and infliction of punishment. See Nixon, 433 U.S. at 468; Brown, 381 U.S. at 449

n.23; DeVeau v. Braisted, 363 U.S. 144, 160 (1960). For

example, the chairman of the subcommittee spoke with apparent passion and sympathy for Hilary Foretich and stated that

he sponsored the bill because he knew ‘‘how it feels to be

filled with pain as a child.’’ Hearing at 1, J.A. 37 (statement

of Rep. Davis). Other members agreed that the Act was

necessary to bring ‘‘justice and satisfaction to one little girl

who can only be claimed as a victim.’’ Hearing at 8, J.A. 41

(statement of Rep. Molinari). Members of the subcommittee

also expressed contempt for the D.C. Superior Court’s handling of the Morgan-Foretich case. The Act would provide a

way of ‘‘deal[ing] with the inadequacies of the court system,’’

so that by ‘‘bringing justice to this family, [Congress] can

send an inspiring wake-up call to judges all over this country.’’ Id.; see also Hearing at 5, J.A. 39 (statement of Rep.

Wolf) (‘‘I don’t know why [Superior Court] Judge Dixon
39

didn’t do anythingTTTT What is wrong with them?’’); Hearing at 7, J.A. 40 (statement of Rep. Morella) (‘‘The original

court order on this case is TTT clearly outdated, and no longer

addresses Ellen’s best interest, if it ever did.’’).

The Government invites us to conclude that Congress’s

purposes were entirely benign on the basis of statements in

the legislative record disclaiming any judgment as to whether

Dr. Foretich had indeed abused his daughter. See, e.g.,

Hearing at 3, 5, 6, J.A. 38-40. Aside from the fact that these

statements appear conveniently self-serving, the Supreme

Court has made clear that ‘‘a formal legislative announcement

of moral blameworthiness or punishment’’ is not necessary to

an unlawful bill of attainder. Nixon, 433 U.S. at 480. All

that is necessary is that the legislative process and the law it

produces indicate a congressional purpose to behave like a

court and to censure or condemn. See Brown, 381 U.S. at

453-54.

The attempt by the Act’s sponsors to broker a deal with

Dr. Foretich for him to relinquish his parental rights removes

any doubt that Congress’s purpose in this case was to assume

the role of a judicial tribunal and impose its own determinations of who was or was not a fit parent. See Hearing at 65,

J.A. 69 (statement of Rep. Davis) (‘‘Would you agree to vacate

the order? If you do that, there’s obviously no need for a

bill.’’); see also Hearing at 59-61, 66-67, 84, J.A. 66-67, 70, 79.

That Congress would not have enacted the Act if Dr. Foretich

had voluntarily vacated the visitation orders reveals the true

purpose behind the Act. Whether through negotiation or

legislation, Congress’s purpose was to overturn the Superior

Court’s orders so that Dr. Foretich could have no contact

with his daughter. This legislative history alone cannot

provide conclusive evidence as to the statutory intent behind

the Elizabeth Morgan Act. It does suggest a congressional

intent to punish, however. And, in combination with the

absence of any plausible nonpunitive purpose, it reinforces

our conclusion that the Elizabeth Morgan Act inflicts ‘‘punishment’’ within the meaning of the Bill of Attainder Clause.
40

III. CONCLUSION

In enacting the Elizabeth Morgan Act, Congress determined that Dr. Foretich is a criminal child abuser and singled

him out for punishment on that basis. For this reason, we

reverse the judgment of the District Court and hold the

Elizabeth Morgan Act to be an unconstitutional bill of attainder.
1

TATEL, Circuit Judge, concurring in part and concurring in

the judgment: I agree that the Morgan Act violates Article I,

Section 9 of the Constitution. I write separately because I do

not share the court’s view about why the Act fails the

functional test for punitiveness.

Key to the court’s analysis is its belief that the Act furthers

‘‘no attendant nonpunitive purposes.’’ Maj. Op. at 37. Protecting Hilary from future abuse, the court concludes, is a

punitive objective because Congress would have thought that

Hilary needed protection only if it believed that Dr. Foretich

had actually abused her. See id. at 35 (‘‘The only plausible

answer TTT is that Congress believed Dr. Foretich had

abused his daughterTTTT The purposes the Government

alleges thus cannot be viewed as nonpunitive.’’). But Congress could have believed the accusations and yet passed the

Act not to punish Dr. Foretich, but to protect Hilary from

future abuse. Under those circumstances, the Act would not

amount to an attainder because ‘‘[t]he question in each case

where unpleasant consequences are [imposed] upon an individual for prior conduct, is whether the legislative aim was to

punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a

regulation of a present situationTTTT’’ Flemming v. Nestor,

363 U.S. 603, 614 (1960) (quoting De Veau v. Braisted, 363

U.S. 144, 160 (1960) (plurality opinion)) (internal quotation

marks omitted); see also Dehainaut v. Pena, 32 F.3d 1066,

1071 (7th Cir. 1994) (‘‘Even where a fixed identifiable group

TTT is singled out and a burden traditionally associated with

punishment TTT is imposed, the enactment may pass scrutiny

under bill of attainder analysis if it seeks to achieve legitimate

and non-punitive ends and was not clearly the product of

punitive intent.’’). Thus, Congress could have imposed burdens on Dr. Foretich without violating the Bill of Attainder

Clause so long as it did so while pursuing a legitimate

objective and not in order to punish him.

Of course, if the legislative record contained little or no

evidence to support the accusations of abuse, then Congress’s

acceptance of them and its consequent decision to burden Dr.

Foretich would raise suspicions of punitiveness. But that is

not the case here. Relying on testimony from numerous
2

experts and other witnesses, the D.C. Superior Court judge

who presided for years over the Morgan-Foretich custody

dispute found the evidence of abuse ‘‘in equipoise,’’ Morgan v.

Foretich, No. D–684–83, slip op. at 3 (D.C. Super. Ct. Aug. 18,

1987), reprinted in J.A. 306, i.e., that the chances that Hilary

had been abused were fifty-fifty. Congress could thus have

resonably believed that Hilary required protection, and nothing barred it from concluding that she needed more protection than the D.C. court had provided. See BellSouth Corp.

v. FCC, 162 F.3d 678, 689 (D.C. Cir. 1998) (‘‘Congress may

read the evidence before it in a different way than might this

court or any otherTTTT’’). For this reason, I think we have

no basis for declaring the goal of protecting Hilary to be a

‘‘smoke screen’’ behind which Congress is hiding punitive

motives. See id. (finding the functional test unsatisfied because ‘‘it [could not] be legitimately suggested that the risks

of anticompetitive conduct were so feeble that no one could

reasonably assert them except as a smoke screen for some

invidious purpose’’ (internal quotation marks omitted)).

The court articulates a second reason for concluding that

Congress acted punitively: if Congress thought D.C. law

inadequate to protect Hilary, then it would have extended the

Morgan Act to all D.C. child-custody cases. See Maj. Op. at

36 (‘‘In light of the Act’s narrow applicability, the Government’s asserted purposes are simply implausible.’’). Congress may have decided against legislating more broadly,

however, because the Morgan-Foretich case was the only one

it knew about in which a court did not act to prevent future

abuse of a child even though the child believed she had been

abused and even though the court had found evidence of

abuse. Recognizing the unique nature of each case, Congress

may have been unprepared to place on other parents the onus

it imposed on Dr. Foretich without knowing more about their

particular situations. The Supreme Court accepted a similar

explanation in Nixon v. Administrator of General Services,

433 U.S. 425 (1977). There, President Nixon charged that

Congress had punitively targeted him by requiring that he

turn his presidential papers over to the General Services

Administration. The law did not, Nixon pointed out, address

the papers of other presidents—either past or future—nor
3

did it address other officials’ papers. Holding that this did

not make the law punitive, the Court explained:

Congress’ action to preserve only appellant’s records

is easily explained by the fact that at the time of the

Act’s passage, only his materials demanded immediate attentionTTTT Congress had reason for concern

solely with the preservation of appellant’s materials,

for he alone had entered into a depository agreement TTT which by its terms called for the destruction of certain of the materials.

Id. at 472. Given that here too ‘‘the focus of the enactment

can be fairly and rationally understood,’’ id., I cannot agree

that Congress’s decision to target Dr. Foretich makes the

Morgan Act a bill of attainder. As long as Congress does not

act to punish, it may legislate narrowly because its decision to

resolve a case by legislatively determining guilt does not

violate the Bill of Attainder Clause—punishment violates that

clause. See Selective Serv. Sys. v. Minn. Pub. Interest

Group, 468 U.S. 841, 846 (1984) (‘‘A bill of attainder [is] TTT a

law that legislatively determines guilt and inflicts punishment upon an identifiable individualTTTT’’ (internal quotation

marks omitted) (emphasis added)).

To me, what makes the Morgan Act a bill of attainder is

that the only legitimate, non-punitive objective the Act might

plausibly have furthered—protecting Hilary from abuse—

could have been achieved in a less-burdensome way, i.e., by

prohibiting the D.C. court from granting Dr. Foretich unsupervised visitation. See Nixon, 433 U.S. at 482 (‘‘In determining whether a legislature sought to inflict punishment on

an individual, it is often useful to inquire into the existence of

less burdensome alternatives by which that legislature TTT

could have achieved its legitimate nonpunitive objectives.’’).

Barring unsupervised visits would have guaranteed Hilary’s

safety without imposing on Dr. Foretich the extreme burden

of effectively terminating his parental rights. That Congress

eschewed this less-burdensome alternative and imposed an

additional hardship that had no legitimate non-punitive purpose demonstrates the Act’s punitiveness, rendering it a bill
4

of attainder. ‘‘[D]eprivations and disabilities [that are] so

disproportionately severe and so inappropriate to nonpunitive

ends TTT unquestionably TTT fall within the proscription of

Art. I, § 9.’’ Id. at 473.

This approach tracks the Second Circuit’s in Consolidated

Edison Co. v. Pataki, 292 F.3d 338 (2d Cir. 2002). There, the

court found that the New York State legislature had a valid,

non-punitive reason for requiring Con Ed, the sole target of

the challenged law, to absorb the costs of a power outage that

was at least partly its fault: if Con Ed did not absorb the

costs, ratepayers would have to. ‘‘The legislature could legitimately conclude,’’ the Second Circuit held, ‘‘that, as between

Con Ed, the party that caused the outage, and the ratepayers, parties having nothing whatsoever to do with the outage,

Con Ed should bear the costs attributable to its negligence.’’

Id. at 352. The court had a very different view about the

legislature’s decision to bar Con Ed from recovering the

outage costs that it would have incurred even had it not acted

negligently. Because that ‘‘pil[ing] on,’’ id. at 354, served no

non-punitive purpose, the court concluded the statute was a

bill of attainder. Here, too, even though Congress had a

valid non-punitive reason for passing the Morgan Act, it

impermissibly ‘‘piled on’’ an additional, entirely unnecessary

burden. This punitiveness, combined with the Act’s undisputed specificity, renders the Act a bill of attainder.

Perhaps seeking to avoid the consequences of this analysis,

the government insists that Congress passed the Morgan Act

in order to accomplish a different purpose—one for which no

less-burdensome alternative existed. According to the government, Congress wanted to give priority to ‘‘a 14-year-old

child’s interest in being able to determine whether and to

what extent she had to visit a non-custodial parentTTTT’’

Appellees’ Br. at 50. Congress did this, the government

asserts, in order to spare Hilary from trauma she might

suffer were she forced to see a biological parent she believed

had abused her. To satisfy the functional test, however, a

goal must itself be legitimate. See Nixon, 433 U.S. at 476

(‘‘Where TTT legitimate legislative purposes do not appear, it

is reasonable to conclude that punishment of individuals
5

disadvantaged by the enactment was the purpose of the

decisionmakers.’’ (emphasis added)). The government’s proffered goal fails this test. Because depriving Dr. Foretich of

the ability to see his daughter without her consent infringed

his right to control his child’s upbringing, and because that

right is fundamental, see, e.g., Troxel v. Granville, 530 U.S.

57, 65 (2000) (plurality opinion), any infringement had to

advance a compelling interest and be narrowly tailored, see,

e.g., Reno v. Flores, 507 U.S. 292, 301–02 (1993). Contending

that the Act did further a compelling interest, the government cites cases that involve the protection of minors from

physical harm. But those cases do not help the government,

for Congress could have protected Hilary from physical harm

simply by barring unsupervised visitation. Because giving

Hilary the absolute right to terminate her father’s parental

rights represents an illegitimate goal, under the functional

test it cannot save the Morgan Act.