Foretich, Doris v. United States

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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 pun-
ishment. 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. Notwith-
standing 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. Mor-
gan returned to the United States with Hilary shortly after
the Act’s passage.
The Elizabeth Morgan Act gives a fleeting hint of neutrali-
ty, 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 judg-
ment 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 con-
cession 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. Fore-
tich 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, Con-
gress 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 Mor-
gan and her former spouse, appellant Dr. Eric A. Foretich,
over the custody of their daughter, Hilary A. Foretich. Hi-
lary, 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 ‘‘re-
vealed 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 unwill-
ingness 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 accusa-
tions 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 , reprint-
ed in J.A. 216-19. The allegations were graphic and shocking
and described behavior that, if true, would subject the Fore-
tichs 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 medi-
cal 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. Fore-
tich’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 dismiss-
ing 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 allega-
tions of sexual abuse are fabricated, then [Dr. Mor-
gan] 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. Fore-
tich, 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 Con-
gressman 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 enforce-
ment 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 other-
wise 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 Appro-
priations 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: Hear-
ing 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 ‘‘per-
mit 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.’’ Hear-
ing at 2, J.A. 38 (statement of Rep. Davis). Although mem-
bers of the subcommittee disclaimed retrying the case, the
clear focus of the hearing was on the Morgan-Foretich custo-
dy 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 testi-
mony, 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 pro-
posed 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, Con-
gress 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 enforce-
ment 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 guard-
ian 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 chal-
lenged 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 princi-
pally 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 re-
sulting 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 ‘‘night-
mare’’ 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 reputa-
tion. 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 Virgi-
nia, 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. Mor-
gan’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. Fore-
tich’s constitutional challenges. On July 10, 2002, Dr. Fore-
tich 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, how-
ever, 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 main-
tain 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 immi-
nent, 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 main-
tain 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 require-
ment 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 determina-
tive. 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 visita-
tion 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 Superi-
or Court from ‘‘impos[ing] sanctions’’ on Dr. Morgan. This
language does not prevent Dr. Foretich from seeking enforce-
ment 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 Govern-
ment 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 fore-
closes 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 appel-
lants’ 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] sanc-
tions’’ precludes the Superior Court from entering any new
orders awarding fees or costs against Dr. Morgan. Never-
theless, 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 con-
gressional 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 reputation-
al harms resulted directly from the congressional determina-
tion 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 compo-
nents 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 reputa-
tion. 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 publi-
cation as pornography and discouraged retailers from selling
it could, by itself, keep the controversy alive after the Govern-
ment 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. (distinguish-
ing 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 con-
troversy. 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 rehabili-
tate 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 judg-
ment 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 consti-
tute 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 contro-
versy 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. Con-
gress’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 ac-
tion, 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 en-
joining 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 Judi-
cial 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 reputa-
tional 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 pre-
vailed 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 con-
duct even though the district court had otherwise dismissed
the charges).
As these cases demonstrate, reputational injury that de-
rives 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 govern-
ment’s actions were unlawful will consequently provide mean-
ingful 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 reputa-
tion is a concrete and direct result of the legislation. A
judicial determination that Congress acted unlawfully in en-
acting 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 govern-
ment action embodies a characterization or condemnation that
damages an individual’s standing in the community, the re-
sulting reputational injury would not satisfy Article III stand-
ing 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 jurisdic-
tion 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 argu-
ment 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 assert-
ed 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 unconstitu-
tional cannot redress Dr. Foretich’s reputational injuries. In
support of this argument, the Government attempts to distin-
guish 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 legisla-
tive 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 constitu-
tional 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 consti-
tute 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 pro-
paganda’’ would not provide relief because, even if the desig-
nation was removed, members of the community might con-
tinue 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 enforce-
ment 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 reputa-
tional 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 Mes-
quite, 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 allega-
tions, 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, declara-
tory 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 inju-
ries.
As a final matter, appellees invite us to exercise our
discretion under the doctrine of prudential mootness to re-
frain from hearing this appeal. We decline to do so. Be-
cause 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.’’ Pent-
house, 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 ques-
tions of law. Rather, appellants’ claims implicate a constitu-
tional 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 unconstitu-
tional 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 protec-
tions 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 pur-
pose. 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, in-
cluding banishment, deprivation of the right to vote, corrup-
tion 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 em-
brace ‘‘[t]he deprivation of any rights, civil or political, previ-
ously 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 specifici-
ty requirement, this is only the beginning of our inquiry.
Recognizing that ‘‘virtually all legislation operates by identify-
ing the characteristics of the class to be benefited or bur-
dened,’’ 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 ‘‘circum-
vent[ ] 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 disabili-
ties 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 im-
posed by the Missouri State Constitution that certain persons
take an oath of loyalty before entering into certain profes-
sions. 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 connec-
tion between the restriction imposed and a legitimate nonpun-
itive 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 be-
fore 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 nonpun-
itive 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 profes-
sions 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 pro-
nounced, 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 extermi-
nated 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 punish-
ment, 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. Fore-
tich 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 determina-
tion of criminal sexual abuse also qualifies for that descrip-
tion. A finding that the Act constitutes a bill of attainder
therefore would not be an inconsistent extension of the histor-
ical 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 unconstitu-
tional 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, reason-
ably 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 em-
ployed 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 prosecu-
tions 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 legisla-
tive 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 ex-
amined 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 stat-
ute – 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 con-
cluded 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 viola-
tors, 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 legiti-
mate 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 puni-
tive 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 pur-
pose’’).
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 nonpuni-
tive 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 (con-
sidering whether there existed any less burdensome alterna-
tives 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 ame-
liorate’’).
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 nonpuni-
tive legislative purposes’’) (emphasis added). It is not the
severity of a statutory burden in absolute terms that demon-
strates 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 non-
punitive 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 protec-
tive measures designed to safeguard the rights of the bur-
dened 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 infer-
ences 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 legis-
lating.’’ 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’’ un-
der 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 unwaver-
ing 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 nonpuni-
tive 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, regard-
less 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 Gov-
ernment 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. Fore-
tich 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 primari-
ly 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 appli-
cable 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 altera-
tion 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 ‘‘punish-
ment’’ 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 nec-
essarily 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 ex-
plained ‘‘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 asper-
sions on any particular person. But as the Government
concedes, the Act targets only Dr. Foretich. As a conse-
quence, 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 inflict-
ed 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 ‘‘punish-
ment’’ 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 motiva-
tional 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 legisla-
tive 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 com-
mittee reports characterized the affected persons as ‘‘subver-
sive’’ and ‘‘unfit’’ for government service); cf. Nixon, 433 U.S.
at 479 (finding no bill of attainder where the relevant commit-
tee reports ‘‘cast no aspersions on appellant’s personal con-
duct 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 punish-
ment. 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 appar-
ent 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 han-
dling 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 coun-
try.’’ 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?’’); Hear-
ing 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 determina-
tions 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 ‘‘punish-
ment’’ within the meaning of the Bill of Attainder Clause.
 40

III. CONCLUSION
In enacting the Elizabeth Morgan Act, Congress deter-
mined 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 attain-
der.
 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. Pro-
tecting 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 Con-
gress 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 indi-
vidual for prior conduct, is whether the legislative aim was to
punish that individual for past activity, or whether the restric-
tion 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 bur-
dens 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 noth-
ing barred it from concluding that she needed more protec-
tion 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 be-
cause ‘‘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 Govern-
ment’s asserted purposes are simply implausible.’’). Con-
gress 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 immedi-
ate attentionTTTT Congress had reason for concern
solely with the preservation of appellant’s materials,
for he alone had entered into a depository agree-
ment TTT which by its terms called for the destruc-
tion 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 punish-
ment 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 unsu-
pervised visitation. See Nixon, 433 U.S. at 482 (‘‘In deter-
mining 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 pur-
pose 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 legiti-
mately conclude,’’ the Second Circuit held, ‘‘that, as between
Con Ed, the party that caused the outage, and the ratepay-
ers, 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 undisput-
ed 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 gov-
ernment, 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 prof-
fered 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 govern-
ment 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.