United States v. Weston, Russell

WALD, Circuit Judge, dissenting:

I believe this court should at a minimum make clear that in the future district court orders such as the one in question here are immediately appealable under United States v. Weissberger, 951 F.2d 392 (D.C.Cir.1991). Weston raises a serious challenge to the district court’s authority to order that he undergo a psychiatric examination by an expert of the government’s choosing.1 Today’s panel opinion delays, perhaps indefinitely, a decision as to whether defendants can be subjected to such examinations. I think both the mootness doctrine and a healthy respect for the proper administration of justice, if not for potential violations of defendants’ rights, require that we resolve the applicability of Weissberger to cases such as this one.

Had my colleagues’ opinion made clear that Weissberger would allow an appeal of any future order like this one, then I would agree this appeal was moot, since the examination in dispute here had already taken place and the issue would not be “capable of repetition, yet evading review,” because in the future this defendant would be entitled to interlocutory review of a similar order.

I agree with the panel as well that if Weissberger does not apply to this case, ie., if there is no liberty interest in avoiding a court-ordered examination by a psychiatrist of the government’s choice, then the issue would not be “capable of repetition, yet evading review,” because the question of whether the district court was within its authority in ordering the examination could be effectively reviewed on appeal from a final judgment of conviction.2

Where the panel opinion falls down on the job, however, is its obliviousness to a repetition of what has just occurred in this case, ie., a situation where the trial judge *150orders a challenged examination and the court of appeals denies a stay, so that by the time an appeal reaches a merits panel the defendant’s alleged liberty interest in not being examined by a government-retained psychiatrist has already been violated. At that point, unless the defendant goes to trial and is convicted, he may never have the issue decided.3 The defendant could indeed undergo many such examinations without any opportunity to test their validity on appeal. That unfortunate cycle could be avoided by this court’s undertaking to decide the limited question of whether Weissberger*s provision for an interlocutory appeal would apply in any such future occurrence.

If Weissberger were held to apply, the case would not be “capable of repetition, yet evading review,” in that our decision would have clarified the availability of an interlocutory appeal, and in so doing, we could assume that a stay of an order allowing a challenged examination would be granted pending appeal.4

But, alas, nothing in today’s panel opinion prevents Weston from being denied a stay from this court the next time he objects to a court-ordered psychiatric evaluation by a government expert; indeed nothing suggests that it would be inappropriate for the court to deny such a stay. On the other hand, the lack of guidance in today’s panel opinion means that a future panel could grant a stay, in order to resolve the question of whether Weissberger applies. Cf. In re Sealed Case, 151 F.3d 1059, 1067 (D.C.Cir.1998) (mandamus appropriate “when the appellate court is convinced that resolution of an important, undecided issue will forestall future error in trial courts, eliminate uncertainty and add importantly to the efficient administration of justice”) (quotation marks omitted); Southern Bell Tel. & Tel. Co. v. United States, 541 F.2d 1151, 1155 (5th Cir.1976) (“[Wjithout criticizing our previous denials of motions to stay, this abortive case serves to convince us that special consideration should be given by us and by the District Court in future similar cases.”). But in making its stay decision— which is where the rubber hits the road for a defendant in Weston’s position — the next court is back at square one, just as the prior court was when it denied Weston’s stay this time.

Thus, if this court fails to issue a stay the next time the issue presents itself, it is hard to see why that case would not become moot for the same reasons cited by this panel.5 The real possibility that a *151future case would also be moot means that this case satisfies the “capable of repetition, yet evading review” exception to mootness. See Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam).

For that reason, I believe it is necessary to rule that Weissberger allows for immediate appeal of district court orders requiring a defendant to undergo a psychiatric exam at the hands of a government-retained expert before we can find that this case is moot. I do not find that proposition daunting.

In Weissberger, this court held plainly that an order requiring a defendant to undergo a competency evaluation is immediately appealable under the collateral order doctrine. Weissberger, 951 F.2d at 397. The court noted that the requirements of the collateral order doctrine were “easily satisfie[d].” Id. at 396. The court explained that a forced competency evaluation is unreviewable on an appeal from final judgment for the same reasons that a denial of bail cannot be effectively reviewed.

If appeal is not allowed from an order requiring pre-trial detention, there can be no remedy for the resulting loss of liberty. The issue becomes moot upon conviction and sentence. The same is true here. Not only would Weissberger be subjected to a 30-day confinement in a mental institution, but he also would be subjected to the additional intrusion of a forced medical examination. If he is declared competent and the trial proceeds, postconfinement review will provide no relief for the loss of liberty associated with the competency evaluation.

Id. at 396-97 (citations omitted). I read this opinion as controlling the case before us today.

The government suggests that Weissber-ger is inapplicable because there the defendant was challenging two aspects of the competency evaluation order, the confinement as well as the examination, whereas Weston only challenges one aspect of the district court’s order, the examination. Cf. United States v. Deters, 143 F.3d 577, 582 (10th Cir.1998) (holding competency evaluation order appealable where defendant challenges confinement, but noting that whether examination itself is immediately appealable is a separate question). However, Weissberger nowhere indicates that its result turned on the fact that Weissber-ger was challenging the confinement aspect of the order.

Reading Weissberger to allow appeals only where the defendant is challenging his confinement could lead to incongruous results. A defendant such as Weissberger, who is ordered to undergo inpatient evaluation, can challenge both the psychiatric examination and the commitment order. However, where the court orders an inpatient examination, and later, like the court below, issues another order allowing further examination by government-retained psychiatrists, the defendant would be unable to challenge that examination, even though it differs from Weissberger’s only in the question of when the court’s confinement order was entered. Likewise, a defendant who is subjected to an outpatient examination while in custody in a non-psychiatric prison facility, as Weston was, would also be unable to challenge the examination. It does not seem to me that the right to interlocutory appeal under Weissberger should depend on such vagaries of timing and location.

In fact, Weissberger makes clear that the court was concerned with the “intrusion of a forced medical examination” and found the order appealable because “post-confinement review will provide no relief *152for the loss of liberty associated with the competency evaluation.” Weissberger, 951 F.2d at 396-97 (emphasis added). Furthermore, there is good precedent for the principle that a forced medical examination constitutes an invasion of a person’s liberty interests. See United States v. Davis, 93 F.3d 1286, 1289 (6th Cir.1996) (competency evaluation orders immediately appealable because “the loss of liberty occasioned by the commitment for examination, and the forced intrusion of a cowi-ordered psychiatric examination, are completely unreviewable by the time of final judgment”) (emphasis added); Union Pac. Ry. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891) (federal courts have no inherent power to order medical examinations in civil cases because “[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law”); cf. Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 287, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (O’Connor, J., concurring) (“I agree that a protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.... ”); United States v. Morgan, 193 F.3d 252, 256 (4th Cir.1999) (order allowing forced medication of pretrial detainee immediately appeal-able); United States v. Brandon, 158 F.3d 947, 951 (6th Cir.1998) (same). But cf. United States v. Barth, 28 F.3d 253, 255 (2d Cir.1994) (competency evaluation order not immediately appealable on grounds that competency determination is not separate from merits of action, and defendant could challenge commitment by writ of habeas corpus).

Weissberger, correctly, requires that orders requiring defendants to undergo psychiatric examinations are immediately ap-pealable, and I believe this court should at least make that clear if this defendant, and others like him, are not to be repeatedly subjected to psychiatric examinations whose v propriety has never been established. At a minimum, Weston deserves a meaningful opportunity for judicial review of the validity of these “intrusive, unwanted medical examination^].” Weissberger, 951 F.2d at 396.

Even if I am wrong, and Weissberger is eventually read more narrowly not to provide an interlocutory appeal from a competency examination per se, it would be in the interests of everyone — this defendant, future defendants, their counsel, and the government — -to know that in advance of the next time the issue is raised. Otherwise everyone runs the risk of another abortive attempt to learn just what the law is, and to plan accordingly.

For these reasons, I dissent.

. The government suggests that since Weston does not contest the authority of the district court to order an examination by a court-appointed expert under 18 U.S.C. §§ 4241, 4247, he has no liberty interest in avoiding an examination by a government-retained expert, even if the district court lacked the authority to order Weston to undergo such an evaluation. This argument borders on sophistry. If Weston has a liberty interest in avoiding unwanted medical examinations, the fact that the statute authorizes an examination by a court-appointed expert does not vitiate Weston’s liberty interest in avoiding other, unauthorized, examinations. The putative liberty interest is in avoiding forced psychiatric evaluations, although in this case the only alleged unlawful infringement of that interest is the examination by government-retained experts.

. Alternatively, the question could be reviewed on appeal from an order of commitment, but to date Weston has not challenged his commitment under 18 U.S.C. § 4247(b) (competency evaluation) and under 18 U.S.C. § 4241(d) (determination of likelihood of future competency).

. A decision about whether to grant a stay of the district court's order should not be mistaken for a decision on the merits of the order. A motion for a stay is decided without the benefit of full briefing or oral argument and, under the court’s "stringent” standards, is rarely granted. See, e.g., Joint Appendix ("J.A.”) at 74 (order denying stay).

. The panel opinion "assumes” that this issue is capable of repetition. See Maj. Op. at 147-48. There is good reason for that assumption. The Supreme Court has made it clear that the question is whether "the controversy [is] capable of repetition and not ... whether the claimant ha[s] demonstrated that a recurrence of the dispute [is] more probable than not.” Honig v. Doe, 484 U.S. 305, 318-19 n. 6, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). Our own cases also make it clear that this requirement should not be interpreted overly stringently. See Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 972 F.2d 365, 370 (D.C.Cir.1992) (reasonable expectation that racist group would seek to march in D.C. again, despite fact that group did not aver it had plans to do so, sufficient to avoid mootness); Doe v. Sullivan, 938 F.2d 1370, 1378 (D.C.Cir.1991) (soldier's challenge to policy of using experimental vaccines on members of armed services without consent not moot in light of increasing risks of biological warfare, despite fact that Gulf War was only occasion military had not sought consent before vaccinating service members). The possibility that there will be another contested competency hearing, where the government will seek to rely on its own expert, fits comfortably within this line of cases as satisfying the "capable of repetition” requirement.

.It can hardly be argued that, absent a stay, an order requiring the defendant to submit to a psychiatric examination would not normally be implemented before this court could review the order. See 18 U.S.C. § 4247(b) *151(court may commit defendant for reasonable period not to exceed thirty days for purposes of competency evaluation); Hinckley v. United States, 163 F.3d 647, 651 (D.C.Cir.1999) ("[B]oth Supreme Court and circuit precedent hold that orders of less than two years’ duration ordinarily evade review.”) (quotation marks omitted).