United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 2, 2022 Decided August 19, 2022

No. 21-7059

FRATERNAL ORDER OF POLICE, METROPOLITAN POLICE 

DEPARTMENT LABOR COMMITTEE, D.C. POLICE UNION,

APPELLANT

v.

DISTRICT OF COLUMBIA AND MURIEL BOWSER, IN HER 

OFFICIAL CAPACITY AS MAYOR OF THE DISTRICT OF 

COLUMBIA,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:20-cv-02130)

Anthony M. Conti argued the cause for appellant. With 

him on the briefs was Daniel J. McCartin.

Holly M. Johnson, Senior Assistant Attorney General, 

Office of the Attorney General for the District of Columbia, 

argued the cause for appellees. With her on the brief were Karl 

A. Racine, Attorney General, Loren L. AliKhan, Solicitor 

General, Caroline S. Van Zile, Principal Deputy Solicitor 

General, and Carl J. Schifferle, Deputy Solicitor General.
2

Before: ROGERS, MILLETT, and KATSAS, Circuit Judges.

Opinion for the Court filed by Circuit Judge KATSAS.

KATSAS, Circuit Judge: This case involves federal 

constitutional challenges to a District of Columbia statute 

eliminating the right of D.C. police officers to bargain over 

procedures for disciplining individual officers. The police 

union contends that the statute violates equal protection 

principles, the Bill of Attainder Clause, the Contract Clause, 

and the Fifth Amendment Due Process Clause. We reject all 

the challenges.

I

The Comprehensive Merit Personnel Act (CMPA) 

governs collective bargaining by employees of the District of 

Columbia government. It allows officers of the Metropolitan 

Police Department, like other D.C. government employees, to

unionize and engage in collective bargaining. D.C. Code

§ 1-617.01(b). They have done so and are represented by the 

plaintiff in this case, the Fraternal Order of Police, 

Metropolitan Police Department Labor Committee, D.C. 

Police Union (FOP).

The CMPA provides that “[a]ll matters shall be deemed 

negotiable” except for a list of rights reserved to management. 

D.C. Code § 1-617.08(b). Management rights include the right 

to “hire, promote, transfer, assign, and retain employees” as 

well as the right to “suspend, demote, discharge, or take other 

disciplinary action against employees for cause.” Id.

§ 1-617.08(a). The parties have long understood the CMPA to 

give management full discretion over whether or how to 
3

discipline officers who commit wrongdoing, while allowing 

for negotiation over the procedures for adjudicating it.

Article 12 of the Metropolitan Police Department’s 2017

collective bargaining agreement contained detailed provisions 

on disciplinary procedure. See Collective Bargaining 

Agreement Between the District of Columbia Metropolitan 

Police Department and the D.C. Police Union, art. 12 (J.A. 90–

95) (2017 Agreement). It also stated that these provisions 

“shall be incorporated” into successor agreements unless 

modified by a joint labor-management committee or, in the 

event of an impasse, an arbitration panel. Id. § 2 (J.A. 91).

The 2017 Agreement expired on September 30, 2020. 

Two months earlier, following the death of George Floyd while 

in Minneapolis police custody, the D.C. Council passed 

emergency legislation setting forth a wide range of police 

reforms. See Comprehensive Policing and Justice Reform 

Second Emergency Amendment Act of 2020 (Reform Act), 

D.C. Act 23-336. At issue in this case is section 116 of the 

Reform Act, which temporarily amendsthe CMPA to eliminate 

the right of “sworn law enforcement personnel” to bargain over 

disciplinary procedure. See D.C. Code § 1-617.08(c). The

amendment applies to “any collective bargaining agreement 

entered into with the Fraternal Order of Police/Metropolitan 

Police Department Labor Committee after September 30, 

2020.” Id.

1

1 As emergency legislation, the original Reform Act expired 

after 90 days. Since then, the D.C. Council has re-enacted it seven

times, with the most recent enactment set to expire on September 26, 

2022. See D.C. Act 23-336 (July 22, 2020); D.C. Act 23-437 (Oct. 

28, 2020); D.C. Law 23-151 (Dec. 3, 2020); D.C. Act 24-76 (May 3, 

2021); D.C. Act 24-128 (July 29, 2021); D.C. Law 24-23 (Sept. 3, 
4

Shortly after section 116 became law, the FOP sued to 

enjoin its enforcement. The union raised federal constitutional 

challenges based on equal protection principles, the Bill of 

Attainder Clause, the Contract Clause, and the Fifth 

Amendment Due Process Clause.

The district court rejected these claims and dismissed the 

case without prejudice for failure to state a claim. Fraternal 

Ord. of Police, Metro. Police Dep’t Lab. Comm., D.C. Police 

Union v. District of Columbia, 502 F. Supp. 3d 45 (D.D.C. 

Nov. 4, 2020). The FOP then moved to alter the judgment so 

that it could amend its complaint. The district court denied the 

motion as futile.

The FOP appealed both decisions. We have jurisdiction 

under 28 U.S.C. § 1291.

II

We start with the dismissal order. We review the dismissal 

of constitutional claims de novo. Patchak v. Jewell, 828 F.3d 

995, 1001 (D.C. Cir. 2016).

A

The FOP first raises an equal-protection challenge. The 

Equal Protection Clause provides that “[n]o State shall ... deny 

to any person within its jurisdiction the equal protection of the 

laws.” U.S. Const. amend. XIV. The Supreme Court has held 

that the Fifth Amendment Due Process Clause extends equalprotection principles to actions by the D.C. government. See 

Bolling v. Sharpe, 347 U.S. 497, 498–99 (1954). According to 

2021); D.C. Act 24-370 (Apr. 7, 2022); D.C. Act 24-454 (June 28, 

2022).
5

the union, section 116 violates equal protection because it

irrationally discriminates between police officers and similarly 

situated government employees. We disagree.

Legislation that covers some occupations but not others—

which neither burdens fundamental rights nor makes suspect 

classifications—satisfies equal protection if the distinction at 

issue is “rationally related to a legitimate state interest.” 

Friedman v. Rogers, 440 U.S. 1, 17 (1979) (quoting New 

Orleans v. Dukes, 427 U.S. 297, 303 (1976)); see Williamson 

v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955)

(optometrists versus opticians). Under rational-basis review, 

legislation carries “a strong presumption of validity.” Cent.

State Univ. v. Am. Ass’n of Univ. Professors, 526 U.S. 124, 126 

(1999) (limitation on bargaining rights for college professors). 

“Perfection in making the necessary classifications is neither 

possible nor necessary.” Mass. Bd. of Ret. v. Murgia, 427 U.S. 

307, 314 (1976) (police retirement age). Absent irrationality, 

a law does not fail rational-basis review for being over- or 

under-inclusive. Nordlinger v. Hahn, 505 U.S. 1, 16–17 

(1992). And because legislative classifications may be 

grounded in “rational speculation unsupported by evidence or 

empirical data,” a challenger must negate “every conceivable 

basis” that might support the distinction. FCC v. Beach 

Commc’ns, 508 U.S. 307, 314–15 (1993) (cleaned up).

The FOP has failed to carry that considerable burden. The 

D.C. Council could rationally have concluded that section 116

furthers a legitimate interest in improving police 

accountability. By taking disciplinary procedures off the 

bargaining table, it gave management more flexibility in 

deciding how to consider allegations of police misconduct. 

And even if new procedural rules would reduce the protections 

for accused officers, “equal protection is not a license for courts 
6

to judge the wisdom, fairness, or logic of legislative choices.” 

Beach Commc’ns, 508 U.S. at 313.

The FOP disputes that police accountability motivated the 

Council. The union notes that the Reform Act included no 

legislative findings or explanation supporting the choice to 

curtail bargaining rights for the police while preserving those 

rights for other public-sector workers. The union further 

invokes language in a different provision of the legislation—

section 101, which recounts Floyd’s death from a neck restraint 

and then states an intent to ban such restraints in the District of 

Columbia. See D.C. Code § 5-125.01. According to the FOP, 

this language shows that the Council unfairly sought to impute 

to D.C. police concerns about misconduct elsewhere.

This argument misunderstands the basics of rational-basis 

review. Under that level of scrutiny, the legislature’s actual 

motive is “entirely irrelevant”; all that matters is whether there 

are “plausible reasons” to conclude that the statutory 

classification furthers a legitimate government interest. Beach 

Commc’ns, 508 U.S. at 313–15 (cleaned up). Likewise, 

because ordinary legislative choices are not subject to 

“courtroom fact-finding,” the absence of findings, studies, or 

statements of purpose has “no significance.” Id. at 315

(cleaned up). In the wake of Floyd’s death, the Council could 

rationally have concluded that the use of neck restraints 

“presents an unnecessary danger to the public.” D.C. Code § 5-

125.01. And regardless, it could rationally have concluded that 

preserving management control over disciplinary procedures 

would improve police accountability.

The FOP objects that section 116 does not apply to prison 

guards or protective-services officers. But they differ from 

police in key respects. Prison guards, for example, operate in 

a highly regimented and supervised environment. See D.C. 
7

Code § 24-211.02. Protective-services officers safeguard 

government agencies and property. See Cannon v. District of 

Columbia, 717 F.3d 200, 203 (D.C. Cir. 2013). Given these

differences, the D.C. Council could rationally have concluded 

that improving accountability for officers who directly police 

the general public on a daily basis was a more pressing concern. 

See Lee Optical, 348 U.S. at 489 (“Evils in the same field may 

be of different dimensions and proportions, requiring different 

remedies.”). Likewise, it could rationally have concluded that 

targeting police discipline was an appropriate first step in 

improving accountability for all law-enforcement personnel. 

Beach Commc’ns, 508 U.S. at 316 (“the legislature must be 

allowed leeway to approach a perceived problem 

incrementally”). And because police officers make up the 

lion’s share of workers that the union claims as similarly

situated, it could rationally have concluded that the amendment 

would be at worst slightly under-inclusive. Under rationalbasis review, any of these rationales is good enough.

B

The FOP next contends that section 116 violates the Bill 

of Attainder Clause, which provides that “[n]o Bill of Attainder 

or ex post facto Law shall be passed.” U.S. Const. art. I, § 9, 

cl. 3. This is so, according to the union, because the 

amendment singles out “sworn law enforcement officers” for 

negative treatment and mentions the FOP by name. See D.C. 

Code § 1-617.08(c)(2). We disagree.

A bill of attainder is 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). A law 

counts as a bill of attainder if it “(1) applies with specificity, 

and (2) imposes punishment.” Foretich v. United States, 351 
8

F.3d 1198, 1217 (D.C. Cir. 2003) (cleaned up). We focus on 

the second element, which turns on this 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[n] ... intent to 

punish.

Selective Serv. Sys. v. Minnesota Pub. Int. Rsch. Grp., 468 U.S. 

841, 851 (1984) (cleaned up). All three considerations cut 

against the FOP.

For starters, section 116 lies far from the historical 

meaning of legislative punishment. In the 1700s, the British 

Parliament used bills of attainder to sentence specific 

individuals to death, often as punishment for attempting to 

overthrow the government. United States v. Brown, 381 U.S. 

437, 441 (1965). Over time, American courts extended the Bill 

of Attainder Clause to legislation imposing less severe 

punishment, like “banishment, imprisonment, denial of the 

right to vote, or confiscation of property.” Kaspersky Lab, Inc.

v. DHS, 909 F.3d 446, 454 (D.C. Cir. 2018). The change made 

by section 116—giving management greater control over

procedure for disciplining employees—is not remotely 

analogous to any of these historically grounded categories.

The second factor turns on whether the statute has

“punitive purposes” or “merely burdensome effects.” 

Kaspersky, 909 F.3d at 455. It parallels the rational-basis 

inquiry in some respects, by asking whether the law 

“reasonably can be said to further nonpunitive legislative 

purposes,” Nixon, 433 U.S. at 475–76, and whether it is 

“overbroad” or “underinclusive,” Kaspersky, 909 F.3d at 455–
9

56. But we have also described this test as “more exacting” 

than rational-basis review. BellSouth Corp. v. FCC, 144 F.3d 

58, 67 (D.C. Cir. 1998). Seeing opportunity in that distinction, 

the FOP recycles its equal-protection arguments about meansends scrutiny.

To no avail. Any differences between police and other law 

enforcement officers fall far short of showing the kind of

“grave imbalance” that might suggest a hidden punitive 

purpose. Foretich, 351 F.3d at 1222; see also Kaspersky, 909 

F.3d at 456 (“the Bill of Attainder Clause does not require 

narrow tailoring”). Moreover, aspects of section 116

affirmatively undermine any such inference. For one thing, 

that provision leaves in place significant “protective measures” 

for police officers, Foretich, 351 F.3d at 1222, such as the right 

not to be “fired, demoted, or suspended without cause,” Burton 

v. Off. of Emp. Appeals, 30 A.3d 789, 792 (D.C. 2011); see

D.C. Code §§ 1-616.51–52. For another, section 116 “lasts 

only temporarily.” See Kaspersky, 909 F.3d at 456. And while 

it has now been reenacted on several occasions, each new 

iteration has been limited to the 90-day period for emergency 

legislation or the 225-day period for temporary legislation, thus 

barring long-term change absent later legislative action. See

D.C. Code § 1-204.12(a); United States v. Alston, 580 A.2d 

587, 590–91 (D.C. 1990). With full view of what section 116

has and has not changed, we cannot infer that the Council acted 

with an illicit punitive purpose.

The third factor asks whether “the legislative record 

evinces a[n] ... intent to punish.” Selective Serv. Sys., 468 U.S. 

at 852. But given the practical and theoretical concerns about

using legislative history to divine a legislature’s “collective 

purpose,” this factor has weight only if the record shows 

“unmistakable evidence of punitive intent.” Kaspersky, 909 

F.3d at 463 (quoting Foretich, 351 F.3d at 1225).
10

The FOP offers two arguments to satisfy this heavy 

burden. First, it again points to section 101, which it says

betrays an intent to punish D.C. police officers for the 

misconduct of officers in Minneapolis. As noted above, 

section 101 simply expresses the Council’s intent to 

prospectively “ban the use of neck restraints by law 

enforcement” in the wake of Floyd’s death from such a 

restraint. D.C. Code § 5-125.01. That hardly suggests an intent 

to punish anyone. Second, the FOP asserts that the Reform Act

was passed as emergency legislation without any real 

emergency. But the Council has significant leeway to pass 

emergency legislation to protect the public safety or welfare, 

see Alston, 580 A.2d at 590–91, and we deferentially review its 

decision to do so, see Barnes v. District of Columbia, 102 A.3d 

1152, 1154 (D.C. 2014). The union makes no serious effort to 

show that the Council acted beyond its discretion. Again, we 

can discern no express or hidden intent to punish.

C

The FOP next contends that section 116 violates the 

Contract Clause, which provides that “[n]o state shall . . . pass 

any . . . Law impairing the Obligation of Contracts.” U.S. 

Const. art. I, § 10, cl. 1. The Home Rule Act extends the 

Contract Clause to the District of Columbia. D.C. Code § 1-

203.02.

The Contract Clause “applies only to laws with 

retrospective, not prospective, effect.” Loc. Div. 589, 

Amalgamated Transit Union v. Mass., 666 F.2d 618, 637 (1st 

Cir. 1981) (Breyer, J.); see Ogden v. Saunders, 25 U.S. (12 

Wheat.) 213 (1827). The initial CMPA amendment had only

prospective effect: It became effective in June 2020, and it 

applied only to collective bargaining agreements entered into 

after the parties’ 2017 Agreement expired on September 30, 
11

2020. D.C. Act 23-336, § 116(c)(2). And the FOP points to 

no successor agreement allegedly impaired by the later 

iterations of section 116.

Instead, the union argues that all iterations of section 116

violate the Contract Clause because they impair rights under 

the expired 2017 Agreement. The FOP points to article 12 of 

that agreement, which provided that the existing disciplinary 

procedure “shall be incorporated into any successor”

agreement unless changed through a prescribed process. 2017 

Agreement, art. 12, § 2 (J.A. 91). According to the union, 

article 12 made it impermissible for the Council to authorize 

new rules governing future bargaining over successor 

agreements.

We disagree. Retrospective laws violate the Contract 

Clause only if they “substantially” impair existing contract

rights. Sveen v. Melin, 138 S. Ct. 1815, 1822 (2018). Whether 

impairment is substantial turns in part on the parties’ 

reasonable expectations. Id. Here, the union could not have 

reasonably expected to insulate itself from legal changes after 

the 2017 Agreement had expired by its terms. For one thing, 

the Contract Clause does not give parties the right to contract 

out of generally applicable laws in perpetuity. See Home Bldg. 

& Loan Ass’n v. Blaisdell, 290 U.S. 398, 435 (1934); 

Amalgamated Transit, 666 F.2d at 638 (“It is difficult to 

believe that the parties to the agreement thought they could 

bind their successors forever.”). Moreover, the D.C. 

government has heavily regulated collective bargaining for 

decades, so the union was on notice that future statutory 

changes were likely. See Energy Rsrvs. Grp., Inc. v. Kansas 

Power & Light Co., 459 U.S. 400, 411 (1983); Veix v. Sixth 

Ward Bldg. & Loan Ass’n, 310 U.S. 32, 38 (1940). When 

signing the 2017 Agreement, the union could reasonably
12

expect that its terms would last for the duration of the

agreement, but not longer.

In addition, we consider whether the law at issue serves a 

“significant and legitimate public purpose.” Sveen, 138 S. Ct. 

at 1822. In many respects, section 116 is like other state laws 

that have survived past Contract Clause challenges. For one 

thing, it deals with a “broad, generalized economic or social 

problem,” and it operates in an area “already subject to state 

regulation.” Allied Structural Steel Co. v. Spannaus, 438 U.S. 

234, 249–50 (1978). For another, its changes were neither

“immediate” nor “retroactive.” Id. In sum, section 116’s 

prospectivity, its modest effect on the 2017 Agreement, and its 

legitimate purposes together doom the challenge here.

D

Finally, the FOP contends that section 116 violates the 

Due Process Clause of the Fifth Amendment, which provides

that “[n]o person shall ... be deprived of life, liberty, or 

property without due process of law.” U.S. Const. amend. V. 

The union invokes cases suggesting that laws causing “grave 

unfairness” violate substantive due process. Tri Cnty. Indus. v. 

District of Columbia, 104 F.3d 455, 459 (D.C. Cir. 1997).

The doctrine of substantive due process is narrow. See 

Abigail Alliance for Better Access to Developmental Drugs v. 

Von Eschenbach, 495 F.3d 695, 702 (D.C. Cir. 2007) (en banc). 

We have found no cases invalidating state action under the

grave-unfairness test advocated by the union. And there are 

several cases rejecting substantive due process claims resting 

on assertions of grave unfairness.2

 What we have said above 

2

 See Zevallos v. Obama, 793 F.3d 106, 118 (D.C. Cir. 2015); 

Elkins v. District of Columbia, 690 F.3d 554, 561–62 (D.C. Cir. 

2012); Am. Fed’n of Gov’t Emps., AFL-CIO, Loc. 446 v. Nicholson, 
13

is enough to show that section 116 is not gravely unfair: it

implicates no fundamental rights, it imposes no punishment, 

and it has only modest prospective effect on past contractual 

arrangements. In addition, the union makes no argument that 

the right to bargain collectively over disciplinary procedures is 

“deeply rooted in this Nation’s history and tradition.” Abigail 

Alliance, 495 F.3d at 697 (quoting Washington v. Glucksberg, 

521 U.S. 702, 720–21 (1997)).

III

After the district court rejected the union’s claims on the 

merits, it dismissed the case without prejudice. The FOP

sought to amend its complaint, which would have required the 

court first to amend its judgment under Federal Rule of Civil 

Procedure 59(e). See Ciralsky v. CIA, 355 F.3d 661, 668 (D.C. 

Cir. 2004). The court refused, concluding that the union’s 

proposed amendments would not cure the flaws in its case. We 

review de novo this determination of futility. See Osborn v. 

Visa Inc., 797 F.3d 1057, 1062–63 (D.C. Cir. 2015).

Start with the equal protection claim. The proposed 

amended complaint added allegations that police, prison 

guards, and protective-services officers all carry firearms and 

that prison guards are more likely to use force than police. But 

this minor elaboration hardly negates “every conceivable 

rationale” for treating police differently. See Beach Commc’ns, 

508 U.S. at 315. For example, the Council could have 

concluded that police discipline was more pressing because the 

police exercise “all the common-law powers of constables”

475 F.3d 341, 353 (D.C. Cir. 2007); George Wash. Univ. v. District 

of Columbia, 318 F.3d 203, 209 (D.C. Cir. 2003); Wash. Teachers’

Union Local No. 6 v. Bd. of Educ., 109 F.3d 774, 781 (D.C. Cir. 

1997); Silverman v. Barry, 845 F.2d 1072, 1080 (D.C. Cir. 1988).
14

against the population at large, D.C. Code § 5-127.04(a), while 

prison guards and protective services interact with only a 

narrow subset of the population.

For the attainder claim, the FOP offers a handful of

comments from members of the D.C. Council. The two most 

noteworthy come from one member who stated that “there are 

police in the District who are bad actors and who have been 

going on without the proper penance.” J.A. 534. The same 

member also expressed a desire, after hearing about an officer 

who allegedly testified falsely to secure a conviction, “to have 

some kind of retribution or some kind of justice in this criminal 

justice system.” Id.

Neither of these statements suggests that section 116 was 

punitive. For starters, the statements express no desire to 

legislatively determine the guilt of individual officers or groups 

of officers. For another, they express nothing about section 

116, as opposed to the many other provisions of the Reform 

Act. And in any event, “isolated statements” by a single 

legislator, even if revealing a punitive intent, cannot turn an 

otherwise valid law into an unconstitutional bill of attainder

absent evidence that other legislators shared the desire to 

punish. See Kaspersky, 909 F.3d at 464. The union offers no 

such evidence here.

The FOP’s attempt to rehabilitate its Contract Clause 

claim also would fail. The proposed complaint alleged that the 

disciplinary procedures negotiated in article 12 of the 2017 

Agreement were important to the union. That may be so, but 

the union could not reasonably have expected its agreement to 

forever limit the legislature’s power to adjust the scope of 

collective bargaining.
15

Finally, the proposed complaint would not salvage the 

substantive due process claim, for none of its new allegations 

materially undercuts the analysis we have set forth above.

IV

The district court correctly concluded that the FOP’s

constitutional claims lack merit.

Affirmed.