PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

RICHARD ANTHONY MORGAN, a/k/a
Zaheer Lewis, a/k/a Paul S. Lyttle,
                                                                       No. 99-6245
a/k/a Lawrence S. Lewis, a/k/a
Zarie Lewis, a/k/a Joey Lewis, a/k/a
Paul Stone, a/k/a Scott Lewis, a/k/a
Lewis Lawrence, a/k/a Scott
Lawrence, a/k/a Scott Larece,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-98-428)

Argued: May 3, 1999

Decided: September 21, 1999

Before WILKINS, NIEMEYER, and TRAXLER, Circuit Judges.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Traxler wrote the
opinion, in which Judge Wilkins and Judge Niemeyer joined.

_________________________________________________________________

COUNSEL

ARGUED: William Fletcher Nettles, IV, Assistant Federal Public
Defender, Florence, South Carolina, for Appellant. John Michael Bar-
ton, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee. ON BRIEF: J. Rene Josey, United
States Attorney, Alfred W. Bethea, Jr., Assistant United States Attor-
ney, Florence, South Carolina, for Appellee.

_________________________________________________________________

OPINION

TRAXLER, Circuit Judge:

Richard Anthony Morgan ("Morgan"), who has been hospitalized
at the United States Medical Center for Federal Prisoners in Spring-
field, Missouri ("Springfield") since the district court found him
incompetent to stand trial on various federal firearms and narcotics
charges, appeals from an order permitting Springfield medical person-
nel to forcibly treat him with antipsychotic medication. Although the
determination that Morgan should be forcibly medicated was reached
in the context of an administrative proceeding conducted pursuant to
Federal Bureau of Prisons ("BOP") regulation 28 C.F.R. § 549.43
(1998), Morgan challenges the validity of that determination by alleg-
ing that the procedural safeguards delineated in§ 549.43 did not ade-
quately protect his substantive and procedural rights under the Due
Process Clause of the Fifth Amendment. For those rights to receive
adequate protection, he contends, the determination of whether to
forcibly medicate him must be made in the first instance by a district
judge in the context of an evidentiary hearing.

Because we conclude that the proceedings below satisfied the
requirements of due process, we reject Morgan's position that he was
constitutionally entitled to an evidentiary hearing before a district
judge. We believe, however, that Morgan might be entitled to relief
from the administrative determination because Springfield medical
personnel acceded to his request that a correctional officer serve as
his staff representative in the § 549.43 proceeding. In so doing,
Springfield medical personnel may have contravened their affirmative
obligation under 28 C.F.R. § 549.43(a)(2) to ensure that Morgan was
assisted by a staff representative with sufficient education and experi-
ence to understand the psychiatric issues involved in the proceeding.
Because the record on appeal provides no indication that the correc-

                    2
tional officer in question had the requisite credentials, we vacate the
district court's order and remand for factual findings as to whether he
did indeed have those credentials and, if not, whether Morgan suf-
fered prejudice in the administrative proceeding as a result.

I.

In April 1998, the government filed a three-count indictment charg-
ing Morgan with conspiring to possess with intent to distribute
cocaine base, see 21 U.S.C.A. §§ 841(a)(1) (West 1981) and 846
(West Supp. 1998), using and carrying a firearm during and in rela-
tion to a drug trafficking crime, see 18 U.S.C.A. § 924(c)(1) (West
Supp. 1998), and being a felon in possession of a firearm, see 18
U.S.C.A. § 922(g)(1) (West Supp. 1998). After Morgan was taken
into custody, the district court ordered a psychiatric evaluation on his
competency to stand trial. See 18 U.S.C.A.§ 4241(b) (West 1985).
Morgan was then admitted to Springfield, evaluated by Dr. James K.
Wolfson ("Dr. Wolfson"), and discharged.

Dr. Wolfson prepared a report in connection with his evaluation of
Morgan, reciting the various assessments made of Morgan by him and
by other Springfield medical personnel. In particular, Morgan insisted
that he had no memory of events occurring before November 1997
because his body was then taken over by a spirit named "Ja'ai," and
that he was therefore the son of Haile Selassie, the late Ethiopian
Emperor.1 Morgan advised that the name "Ja'ai" was spelled using the
letter "J" followed by a pyramid containing an eye, as appearing on
the reverse side of a one-dollar bill. In that regard, Morgan occasion-
ally called himself "the third eye on the Egyptian Pyramid." J.A. 32.
Morgan often spoke to or screamed at no one in particular, and stated
that he was "`sometimes controlled by spirits.'" Id. Although Mor-
gan's speech was sometimes slow and conversational, he routinely
launched into lengthy episodes of preaching Rastafarian doctrine, dur-
ing which the speed, volume, and intensity of his speech increased
considerably. Morgan denied suicidal intent apparently on the basis
of his belief that the world would die if he were to die, but did
_________________________________________________________________
1 Followers of Rastafarianism venerate Haile Selassie as a god. See
Merriam Webster's Collegiate Dictionary 968 (10th ed. 1997).

                    3
threaten to commit suicide when informed that he would be trans-
ferred to a different cell.

Although Dr. Wolfson had not yet diagnosed Morgan's precise
mental disorder at the time he prepared Morgan's competency report,
he had concluded that Morgan suffered from a "psychotic psychiatric
illness." J.A. 41. This illness, Dr. Wolfson opined, prevented Morgan
from having a rational understanding of the proceedings against him
or from assisting his counsel. Accordingly, Dr. Wolfson concluded
that Morgan was incompetent to stand trial. Dr. Wolfson recom-
mended that Morgan be treated with antipsychotic medication, but
noted that Morgan had so far refused to consider the treatment despite
his best efforts to convince him of its potential utility.2

Upon reviewing Dr. Wolfson's report, the district court conducted
a hearing to determine Morgan's competency to stand trial. See 18
U.S.C.A. § 4241(c). The court ultimately found by a preponderance
of the evidence that Morgan was suffering from a mental disease or
defect rendering him mentally incompetent to the extent that he was
unable to understand the nature and consequences of the proceedings
against him or to assist properly in his defense. See id. § 4241(d). In
light of that finding, the district court committed Morgan to the cus-
tody of the Attorney General for hospitalization and treatment. See id.
Morgan was thereafter returned to Springfield.

A.

After Dr. Wolfson's efforts to obtain Morgan's consent to treat-
ment with antipsychotic medication proved futile, Springfield medical
personnel initiated an administrative proceeding under 28 C.F.R.
§ 549.43, which the BOP enacted to govern the determination of
whether an inmate who "will not or cannot provide voluntary written
informed consent for psychotropic medication" may nevertheless be
so treated. Id. § 549.43(a); see Control, Custody, Care, Treatment and
_________________________________________________________________
2 The effect of antipsychotic medication, which is also referred to as
"psychotropic" medication, "is to alter the chemical balance in the brain,
the desired result being that the medication will assist the patient in orga-
nizing his or her thought processes and regaining a rational state of
mind." Washington v. Harper, 494 U.S. 210, 214 (1990).

                    4
Instruction of Inmates; Administrative Safeguards for Psychiatric
Treatment and Medication, 57 Fed. Reg. 53,820 (1992) (codified at
28 C.F.R. §§ 549.40 to 549.43). Specifically,§ 549.43 authorizes
forcible treatment with antipsychotic medication when institutional
medical personnel find that such treatment "is necessary in order to
attempt to make the inmate competent for trial or is necessary because
the inmate is dangerous to self or others, is gravely disabled, or is
unable to function in the open population." 28 C.F.R. § 549.43(a)(5).

In addition to designating the circumstances under which an inmate
may be forcibly medicated, § 549.43 directs that institutional medical
personnel provide an inmate with a variety of procedural safeguards.
See id. § 549.43(a)(1)-(8). In that respect, Springfield medical person-
nel scheduled Morgan for an administrative hearing, see id.
§ 549.43(a), and issued him a form providing"24-hour advance writ-
ten notice of the date, time, place, and purpose of the hearing, includ-
ing the reasons for the medication proposal," id. § 549.43(a)(1). The
form also advised Morgan of procedural rights that he would have
during the hearing, including the right to appear, to present evidence,
to be represented by a staff member, to call witnesses, and to request
that witnesses be questioned. See id. § 549.43(a)(2). The form did not,
however, inform Morgan that a staff representative would be
appointed for him if he did not request one or if he requested one who
lacked sufficient experience or education. See id. ("If the inmate does
not request a staff representative, or requests a staff representative
with insufficient experience or education, the institution mental health
division administrator shall appoint a staff representative."). Morgan
eventually requested Les Dye ("Dye"), a Springfield correctional offi-
cer, to be his staff representative. Springfield medical personnel hon-
ored this request by formally appointing Dye to represent Morgan.

Dr. Charles D. Glazzard ("Dr. Glazzard") conducted the adminis-
trative hearing, which Morgan attended. Also present at the hearing
were Dr. Wolfson, in his capacity as Morgan's treating psychiatrist,
and Dye, in his capacity as Morgan's staff representative. Although
the hearing was not recorded, Dr. Glazzard prepared a report follow-
ing the hearing. Pursuant to 28 C.F.R. § 549.43(a)(4), Dr. Wolfson
presented "clinical data and background information relative to the
need for medication." J.A. 67. As paraphrased in Dr. Glazzard's
report, Morgan testified as follows: "`I do not want to take medica-

                    5
tion. Medicine makes you crazy. It makes you work and causes pain
in the muscles.'" Id. at 134. Moreover, Morgan apparently made sev-
eral references to the Bible and "postured, raising his arms in a semi-
religious fashion." Id. at 136. He also repeated phrases and did not
respond directly to questions, leading Dr. Glazzard to note in his
report that "[i]t was not clear whether he understood or not." Id. Dr.
Glazzard further noted that Morgan expressed concern regarding side
effects of antipsychotic medication.

It appears that the testimony of Dr. Wolfson was the only psychiat-
ric evidence submitted at the hearing. Other than Morgan's state-
ments, no evidence was presented on his behalf. Nor does the record
reflect that the testimony of Dr. Wolfson was questioned in any way.
Rather, it appears that Dye's participation, in his capacity as Mor-
gan's staff representative, was limited to testifying that "Mr. Morgan
while interacting with others sings and talks inappropriately in the
third person referring to himself as Ja'ai." Id. at 134.

Dr. Glazzard ultimately determined that Morgan should be forcibly
treated with antipsychotic medication. In support of this determina-
tion, Dr. Glazzard found, among other things, that such treatment is
necessary because Morgan is dangerous to himself and to others at
Springfield, and necessary to render him competent to stand trial. Dr.
Glazzard explained in his report that Morgan's thoughts "make him
a potential danger to himself and others because of misunderstandings
and impulsive responses." J.A. 137. He further explained that "anti-
psychotic medication is the only form of medical treatment that might
help [Morgan] improve to be able to return to court." Id. Although
noting that Morgan had requested Dye to be his staff representative,
Dr. Glazzard did not address whether Dye had sufficient education or
experience to serve as a staff representative. See 28 C.F.R.
§ 549.43(a)(2).

Morgan received a copy of Dr. Glazzard's report, which advised
him of his right to submit an administrative appeal within 24 hours
and to have the appeal decided within 24 hours of submission. See id.
§ 549.43(a)(6). The report did not, however, advise Morgan of his
right to request the assistance of his staff representative in preparing
and submitting the appeal. See id. ("Upon request of the inmate, the
staff representative shall assist the inmate in preparing and submitting

                    6
the appeal."). Nevertheless, Morgan submitted an appeal to Sherman
Waltner ("Waltner"), the Associate Warden at Springfield. In several
rambling sentences, Morgan challenged Dr. Glazzard's determination
that he should be forcibly medicated.

B.

In the interim between the administrative hearing and the issuance
of Dr. Glazzard's report, Morgan's counsel moved in the district court
to enjoin Springfield medical personnel from forcibly medicating
Morgan pursuant to Dr. Glazzard's determination. Counsel argued
that the Due Process Clause of the Fifth Amendment required that the
determination of whether to forcibly medicate Morgan had to be made
by a district judge in the context of an evidentiary hearing. Counsel
relied primarily upon United States v. Brandon , 158 F.3d 947 (6th
Cir. 1998), in which the Sixth Circuit concluded that a non-dangerous
pretrial detainee, whom institutional medical personnel sought to
forcibly treat with antipsychotic medication solely to render him com-
petent to stand trial, was constitutionally entitled to greater protection
than that offered by the administrative procedures delineated in 28
C.F.R. § 549.43. Specifically, the court held that due process prohibits
such an individual from being forcibly medicated unless a district
judge conducts an evidentiary hearing and finds by clear and convinc-
ing evidence that such treatment "is the least restrictive and least
harmful means of satisfying the government's goal . . . of rendering
[the individual] competent to stand trial." Brandon, 158 F.3d at 960.

After Dr. Glazzard issued his report, the district court denied Mor-
gan's motion for an evidentiary hearing, holding that Morgan was not
constitutionally entitled to the type of judicial determination pre-
scribed by the Sixth Circuit in Brandon. In so ruling, the district court
concluded that the matter was governed by United States v. Charters,
863 F.2d 302 (4th Cir. 1988) (en banc), in which this court held that
the determination of whether to forcibly medicate a pretrial detainee
found to be incompetent to stand trial and dangerous to himself and
to others was best left to the professional judgment of institutional
medical personnel and subject to judicial review only for arbitrari-
ness. Because Dye did not assist Morgan in preparing and submitting
his administrative appeal, however, the district court directed that
Morgan be permitted to supplement the appeal with such assistance.

                     7
See 28 C.F.R. § 549.43(a)(6). If decided adversely to Morgan, the
court indicated, it would then conduct the arbitrariness review under
Charters.

C.

Morgan subsequently prepared and submitted a supplement to his
administrative appeal with Dye's assistance. The supplement, as did
the original appeal, consisted of several rambling sentences. In partic-
ular, Morgan expressed his concern regarding side effects of anti-
psychotic medication. He also contested Dr. Glazzard's finding that
he posed a danger to himself or to others at Springfield, noting that
he had not injured himself nor anyone else while hospitalized. Lastly,
he claimed that he was "not crazy" and was"ready to face the
charges." J.A. 130.

After reviewing Morgan's administrative appeal, including the sup-
plement, Waltner issued Morgan a written decision upholding the
determination that he should be forcibly medicated. Waltner first set
forth his finding that Morgan received all mandated procedural safe-
guards. See 28 C.F.R. § 549.43(a)(6). Thereafter, relying upon Dr.
Glazzard's report, Waltner noted that antipsychotic medication "was
indicated as the only effective treatment intervention which was likely
to modify your thought disorder to the extent that you could be
restored to the level of competency necessary to cooperate with coun-
sel in preparing a defense and to understand the proceedings against
you." J.A. 129. Moreover, Waltner stated that"as a preventative mea-
sure, we must assume that you pose a potential risk to staff," a conclu-
sion that he supported by referring to the violent nature of the pending
charges against Morgan and to Morgan's "anger and animosity"
toward those who proposed that he be treated with antipsychotic med-
ication. Id. Such animosity, Waltner found,"appears superficially to
be rooted in the delusional symptoms you exhibit." Id.

The district court, upon conducting a review of the record, found
that Springfield medical personnel complied with§ 549.43 and that
the administrative determination that Morgan should be forcibly med-
icated was not reached arbitrarily. The court therefore entered an
order authorizing Springfield medical personnel to forcibly medicate
Morgan pursuant to the administrative determination. Morgan then

                    8
appealed from the order to this court. We granted Morgan's motion
for expedited consideration of the appeal and the district court has
since stayed its order pending our disposition.

II.

We first address whether we may properly exercise jurisdiction
over Morgan's appeal. Under 28 U.S.C.A. § 1291 (West 1993), a fed-
eral court of appeals has jurisdiction over all"final decisions" ren-
dered by a district court. Section 1291 entitles a party to appeal not
only from a decision "that ends the litigation on the merits and leaves
nothing more for the court to do but execute the judgment, but also
from a narrow class of decisions that do not terminate the litigation,
but must, in the interest of achieving a healthy legal system, nonethe-
less be treated as final." Digital Equip. Corp. v. Desktop Direct, Inc.,
511 U.S. 863, 867 (1994) (internal citations and quotation marks
omitted); see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949) ("This decision appears to fall in that small class which
finally determine claims of right separable from, and collateral to,
rights asserted in the action, too important to be denied review and
too independent of the cause itself to require that appellate consider-
ation be deferred until the whole case is adjudicated."). In order to fall
within the latter category, the decision under review must "conclu-
sively determine the disputed question, resolve an important issue
completely separate from the merits of the action, and be effectively
unreviewable on appeal from a final judgment." Coopers & Lybrand
v. Livesay, 437 U.S. 463, 468 (1978); see Cohen, 337 U.S. at 546.

Because the order from which Morgan appeals satisfies the forego-
ing conditions, we may properly exercise jurisdiction under § 1291.
Specifically, the order authorizes Springfield medical personnel to
forcibly medicate Morgan pursuant to the administrative determina-
tion reached under 28 C.F.R. § 549.43. The district court entered the
order upon finding that Springfield medical personnel complied with
§ 549.43 and that the administrative determination was not reached
arbitrarily. Before conducting this analysis, the district court con-
cluded that due process did not require that the determination of
whether to forcibly medicate Morgan be made in the first instance by
a district judge, thus rejecting the framework prescribed by the Sixth
Circuit in Brandon. Since the district court has not indicated an intent

                     9
to revisit this ruling before the medication is administered, the order
has conclusively determined the disputed question.

The district court's order also resolved an important issue that is
completely separate from the merits of the underlying firearms and
narcotics charges asserted in the government's three-count indict-
ment. Indeed, our determination of whether Morgan has received the
procedural safeguards to which he is entitled before being forcibly
medicated will have no bearing upon the ultimate question of whether
he is guilty or not guilty of those offenses.

Lastly, the district court's order would be effectively unreviewable
on appeal from a final judgment of conviction. Once Morgan has been
forcibly medicated pursuant to the order, a determination of the pro-
cedural safeguards to which he was entitled prior thereto would
amount to a purely academic exercise.

Accordingly, we may properly exercise jurisdiction over Morgan's
appeal under § 1291. We now proceed to the merits.

III.

Our analysis of the procedural issue raised in the present appeal
begins with an examination of our decision in Charters, upon which
the district court primarily relied in its disposition below, and the
post-Charters decision of Washington v. Harper, 494 U.S. 210
(1990), in which the Supreme Court rejected a due process challenge
to a procedural regime authorizing institutional medical personnel to
forcibly medicate a state prison inmate. We shall then determine
whether the procedural safeguards employed in the present matter
adequately protected Morgan's due process rights, considering his
argument that we should adopt the Sixth Circuit's approach in
Brandon.

A.

Charters involved a pretrial detainee found to be incompetent to
stand trial and dangerous to himself and to others. At the request of
Charters' treating psychiatrist, the district court permitted institutional

                     10
medical personnel to forcibly treat Charters with antipsychotic medi-
cation, concluding that his interests were adequately protected by the
exercise of their professional judgment. See Charters, 863 F.2d at
305. Charters appealed, contending that under the Due Process Clause
of the Fifth Amendment, the determination of whether to forcibly
medicate him had to be made by a district judge in the context of an
evidentiary hearing.

We observed that Charters retained a constitutionally protected lib-
erty interest in refusing treatment with antipsychotic medication. See
id. at 305-06. We further observed that this retained interest "must
yield to the legitimate government interests that are incidental to the
basis for legal institutionalization," id. at 305, but is nevertheless pro-
tected "against arbitrary and capricious actions by government offi-
cials," id. at 306. We then undertook the task of determining the
procedural protection to which Charters was entitled under the Due
Process Clause.

After first acknowledging the "undoubtedly sensitive nature of the
individual liberty interest at stake," id. at 307, we examined the proce-
dural framework employed by the government in determining
whether to forcibly medicate an inmate. We noted that this framework
placed "responsibility for making the base-line governmental decision
to medicate in the appropriate medical personnel of the custodial
institution." Id. Deeming the decision to forcibly medicate an inmate
as essentially "medical" in nature, we found protection against error
"first, in the general professional competence and integrity of the gov-
ernment's medical personnel, and second, in the availability of judi-
cial review to guard against arbitrariness in making particular
decisions." Id. at 307-08. We found that such a regime may comport
with the requirements of due process "notwithstanding the absence of
any adversarial adjudicative element." Id. at 309.

Ultimately, we concluded that the existing framework, under which
the determination of whether to forcibly medicate an inmate was left
to the professional judgment of institutional medical personnel and
subject to judicial review only for arbitrariness,"[was] adequate, if
properly administered, to comply with due process requirements." Id.
at 312; see id. ("Making an acceptable professional judgment of the

                     11
sort here in issue does not require any internal adversarial hearing.").
We thus declined to adopt the procedural regime urged by Charters.

B.

While Charters was pending before the Supreme Court on a peti-
tion for a writ of certiorari, the Court decided Harper, which
involved a state prison regulation providing that an inmate who suf-
fered from a mental disorder and who posed a likelihood of serious
harm to himself, to others, or to their property, could be forcibly
treated with antipsychotic medication. After Harper was forcibly
medicated pursuant to the regulation, he brought suit under 42
U.S.C.A. § 1983, claiming that due process required that the determi-
nation of whether to forcibly medicate him be made by a judge after
an evidentiary hearing.

The Supreme Court first established that Harper possessed "a sig-
nificant liberty interest in avoiding unwanted administration of anti-
psychotic drugs under the Due Process Clause of the Fourteenth
Amendment." Harper, 494 U.S. at 221-22. The Court noted, however,
that the validity of a prison regulation claimed to infringe upon a fun-
damental constitutional right of an inmate is determined by inquiring
"whether the regulation is `reasonably related to legitimate penologi-
cal interests.'" Id. at 223 (quoting Turner v. Safley, 482 U.S. 78, 89
(1987)). Applying this rational-basis standard of review, the Court
observed, reconciles "adherence to the principle that inmates retain at
least some constitutional rights despite incarceration with the recogni-
tion that prison authorities are best equipped to make difficult deci-
sions regarding prison administration." Id. at 223-24.

The Court ultimately upheld the regulation and, in so doing, con-
cluded that "the Due Process Clause permits the State to treat a prison
inmate who has a serious mental illness with antipsychotic drugs
against his will, if the inmate is dangerous to himself or others and
the treatment is in the inmate's medical interest." Id. at 227. The
Court first found the regulation to be a rational means of furthering
a legitimate interest. In particular, the Court recognized "the legiti-
macy and the importance" of the government's interest in controlling
dangerous prison inmates. Id. at 225; see id. ("There are few cases in
which the State's interest in combating the danger posed by a person

                     12
to both himself and others is greater than in a prison environment,
which, by definition, is made up of persons with a demonstrated pro-
clivity for antisocial criminal, and often violent, conduct.") (internal
quotation marks omitted). As to whether the regulation constituted a
rational means of furthering that interest, the Court observed that the
regulation applied exclusively to inmates who, as a result of mental
illness, "[were] gravely disabled or represent[ed] a significant danger
to themselves or others," id. at 226, and that antipsychotic medication
could be forcibly administered "for no purpose other than treatment,
and only under the direction of a licensed psychiatrist," id.

The Court then conducted a detailed review of the procedural safe-
guards contained in the regulation. The Court observed that the regu-
lation required that a determination to forcibly medicate an inmate be
made in the context of an administrative hearing before a committee,
none of the members of which were involved in the inmate's treat-
ment and diagnosis. The Court further observed that the regulation
provided the inmate with a variety of procedural safeguards before,
during, and after the hearing. In particular, the inmate had the right
to 24-hour notice of intent to convene the hearing, during which time
he could not be forcibly medicated. He had the right to attend the
hearing, to present evidence, and to cross-examine adverse witnesses.
He also had the right "to the assistance of a lay advisor who [had] not
been involved in his case and who [understood] the psychiatric issues
involved." Id. at 216. If the committee rendered an adverse decision,
the inmate had the right to submit an appeal within 24 hours to the
superintendent of the institution, who was then obliged to decide the
appeal within 24 hours of receipt. The inmate could then seek judicial
review of an adverse decision by way of "a personal restraint petition
or an extraordinary writ." Id. Lastly, after the initial hearing, the
inmate could be forcibly medicated only with periodic review.

In concluding that the regulation's procedural safeguards com-
ported with the requirements of due process, the Court necessarily
rejected the procedural model urged by Harper. Although acknowl-
edging that "[t]he forcible injection of medication into a nonconsent-
ing person's body represents a substantial interference with that
person's liberty," id. at 229, the Court ultimately determined that, for
purposes of due process, an inmate's interests "[were] adequately pro-
tected, and perhaps better served, by allowing the decision to medi-

                    13
cate to be made by medical professionals rather than a judge," id. at
231; see id. at 231-32 ("We cannot make the facile assumption that
the patient's intentions, or a substituted judgment approximating
those intentions, can be determined in a single judicial hearing apart
from the realities of frequent and ongoing clinical observation by
medical professionals."); see id. at 233 ("The risks associated with
antipsychotic drugs are for the most part medical ones, best assessed
by medical professionals. A State may conclude with good reason that
a judicial hearing will not be as effective, as continuous, or as probing
as administrative review using medical decisionmakers. We hold that
due process requires no more.").

Lastly, the Court's conclusion as to the constitutional sufficiency
of the regulation's procedural safeguards defeated Harper's alterna-
tive contention that due process entitled him to be represented by an
attorney during the administrative proceeding. "Given the nature of
the decision to be made," the Court determined,"the provision of an
independent lay advisor who understands the psychiatric issues
involved is sufficient protection." Id. at 236.

C.

Less than one week after deciding Harper, the Supreme Court
denied the petition for a writ of certiorari in Charters, rather than
summarily remanding the case for further consideration in light of
Harper. See Charters v. United States, 494 U.S. 1016 (1990). Based
upon that disposition, this court has indicated that the "professional
judgment" standard established in Charters remains viable even after
the Supreme Court's decision in Harper. See Hogan v. Carter, 85
F.3d 1113 (4th Cir. 1996) (en banc) (holding that state prison psychia-
trist who authorized emergency medication of inmate was entitled to
qualified immunity from inmate's § 1983 action). In any event, it is
clear that application of either Charters or Harper would foreclose
Morgan's effort to establish entitlement under the Due Process Clause
to the type of judicial determination prescribed by the Sixth Circuit
in Brandon.

First, under Charters, the determination of whether to forcibly
medicate a pretrial detainee such as Morgan rests upon the profes-
sional judgment of institutional medical personnel, subject only to

                     14
judicial review for arbitrariness. See id. at 309. Absent any indication
in the record that Springfield medical personnel failed to exercise pro-
fessional judgment or otherwise acted arbitrarily in determining that
Morgan should be forcibly medicated, our decision in Charters would
compel the conclusion that the requirements of due process were sat-
isfied below.

Second, were we to assume arguendo that Charters is no longer
viable after Harper, Morgan would still not be constitutionally enti-
tled to the judicial determination prescribed in Brandon. Springfield
medical personnel, in determining that Morgan should be forcibly
medicated, not only exercised professional judgment in making the
decision, but also afforded Morgan an administrative hearing subject
to the procedural safeguards mandated by the BOP under 28 C.F.R.
§ 549.43. This framework, which provides considerably greater pro-
cedural protection than would be required under Charters, see 863
F.2d at 312 ("Making an acceptable professional judgment of the sort
here in issue does not require any internal adversarial hearing."), is
virtually identical to the state framework at issue in Harper. Accord-
ingly, we conclude that Morgan's due process rights were adequately
protected below, in light of the administrative finding that treatment
with antipsychotic medication is necessary because Morgan is danger-
ous to himself and to others at Springfield.

Under Harper, due process permits institutional medical personnel
to forcibly treat a pretrial detainee with antipsychotic medication once
they conduct the type of administrative proceeding the State of Wash-
ington employed and find that such treatment is necessary because the
detainee is dangerous to himself or to others in the institutional set-
ting. See id. at 227. We are confident that the Supreme Court's analy-
sis regarding the reasonableness of the regulation upheld in Harper
applies with equal force to the "dangerousness" component of 28
C.F.R. § 549.43(a)(5) (authorizing forcible treatment with anti-
psychotic medication when "necessary because the inmate is danger-
ous to self or others."). Indeed, the federal government has the same
legitimate and important interest as do the states in combating a dan-
ger posed by an inmate to himself or to others in a prison, hospital,
or other such institutional setting. See Bell v. Wolfish, 441 U.S. 520,
546 (1979) ("[M]aintaining institutional security and preserving inter-
nal order and discipline are essential goals that may require limitation

                    15
or retraction of the retained constitutional rights of both convicted
prisoners and pretrial detainees."); Harper , 494 U.S. at 225 ("There
are few cases in which the State's interest in combating the danger
posed by a person to both himself and others is greater than in a
prison environment, which, by definition, is made up of persons with
a demonstrated proclivity for antisocial criminal, and often violent,
conduct.") (internal quotation marks omitted).

Furthermore, under Harper, the administrative safeguards con-
tained in 28 C.F.R. § 549.43 and the availability of judicial review for
arbitrariness adequately protect the due process rights of a pretrial
detainee for whom treatment with antipsychotic medication is neces-
sary because he poses a danger to himself or to others in the institu-
tional setting. As did the regulation upheld in Harper, § 549.43
requires that a determination of whether to forcibly medicate an
inmate be made in the context of an administrative hearing. See 28
C.F.R. § 549.43(a). The inmate must be given 24-hour advance writ-
ten notice of the hearing and be afforded the right to appear at the
hearing, to present evidence, to be represented by a staff member, and
to request that witnesses be questioned. See id. § 549.43(a)(2). The
duties of conducting the hearing and of making the preliminary deter-
mination of whether to forcibly medicate the inmate are assigned to
a psychiatrist who has not been involved in the diagnosis and treat-
ment of the inmate at the time of the hearing, see id. §§ 549.43(a)(3),
(5), thus assuring an independent decision maker, see Harper, 494
U.S. at 233 ("In particular, independence of the decisionmaker is
addressed to our satisfaction by these procedures."). Moreover, the
inmate is afforded the right to submit an appeal within 24 hours and
to have the appeal decided within 24 hours of submission. See 28
C.F.R. § 549.43(a)(6). Although § 549.43 does not affirmatively grant
an inmate the right to obtain judicial review of an administrative
determination should his appeal be denied, we recognized in Charters
that such a determination is subject to judicial review for arbitrari-
ness. See Charters, 863 F.2d at 309. This standard of review is consis-
tent with that contemplated in Harper, in which the Supreme Court
highlighted the availability of judicial review in determining the pro-
cedural protections "necessary to ensure that the decision to medicate
an inmate against his will is neither arbitrary nor erroneous." 494 U.S.
at 228. The district court properly made such review available in the
present matter.

                    16
D.

Morgan's claim of entitlement to the type of judicial determination
prescribed by the Sixth Circuit in Brandon necessarily fails in light
of our conclusion that his due process rights were adequately pro-
tected below. We note that Brandon, unlike the present matter,
involved a situation in which institutional medical personnel sought
to forcibly medicate a non-dangerous pretrial detainee solely to render
him competent to stand trial. Indeed, the Sixth Circuit in Brandon
suggested that its disposition was compelled by the absence of a find-
ing that treatment with antipsychotic medication was necessary
because Brandon posed a danger to himself or to others. See Brandon,
158 F.3d at 957 ("[T]he decision in the present case is whether to
medicate a non-dangerous pretrial detainee in order to render him
competent to stand trial, rather than to protect his safety or the safety
of those around him while he is confined. The decision to be made
here thus relates solely to trial administration rather than to prison
administration.").

Presumably in an effort to liken the present case to Brandon, Mor-
gan characterizes his case as one in which the government seeks to
forcibly medicate him "mainly" to render him competent to stand
trial. See Br. of Appellant at 15 ("This case involves a fundamental
question about the power of the government to forcibly medicate a
presumptively innocent person mainly for the purpose of bringing him
to trial.") (emphasis added); id. ("The main governmental interest in
this case is purely prosecutorial (making appellant competent to stand
trial)."). The fact remains, however, that the finding that treatment
with antipsychotic medication was necessary to render Morgan com-
petent to stand trial was accompanied by a finding that such medica-
tion was necessary because he is dangerous to himself and to others
at Springfield. Although Morgan provides us with no psychiatric evi-
dence supporting a conclusion that the "dangerousness" finding was
made arbitrarily, he essentially requests that we disregard that finding
so that we may evaluate the constitutionality of permitting Springfield
medical personnel to make the determination of whether to forcibly
medicate him solely for the purpose of rendering him competent to
stand trial. This we are unwilling to do.

We realize that forcibly medicating a pretrial detainee on the basis
that such treatment is necessary because he is dangerous to himself

                     17
or to others in the institutional setting might have the incidental effect
of rendering him competent to stand trial. However, if such an occur-
rence should come to pass in the present matter, Morgan would not
simply be thrust into the courtroom for trial without additional proce-
dural protections. Rather, he would be statutorily entitled to have a
district judge conduct a pretrial examination of his competency to
stand trial in the context of an evidentiary hearing, at which time he
would be represented by counsel and permitted "to testify, to present
evidence, to subpoena witnesses on his behalf, and to confront and
cross-examine witnesses who appear at the hearing." 18 U.S.C.
§ 4247(d) (West 1985); see id. § 4241(e) ("The court shall hold a
hearing, conducted pursuant to the provisions of section 4247(d), to
determine the competency of the defendant."). Morgan could be
brought to trial only if the government proved to the district judge by
a preponderance of the evidence that Morgan was able to understand
the nature and consequences of the proceedings against him and to
assist properly in his defense. See id.§ 4241(e).

Assuming that the government succeeded in this regard, Morgan
may be entitled to even further procedural protection should the gov-
ernment plan to forcibly medicate him at any point during trial. Spe-
cifically, due process would require the district judge to make
findings as to the "need for" and "medical appropriateness of" such
medication during trial. Riggins v. Nevada, 504 U.S. 127, 135 (1992).
The district judge might also ensure that the medication posed no sig-
nificant risk of altering or impairing Morgan's demeanor in a manner
that would prejudice his capacity or willingness to either react to testi-
mony at trial or to assist his counsel. See id. at 141 (Kennedy, J., con-
curring in the judgment). Given the extent of the foregoing procedural
protections, we are assured that the government would be precluded
from bringing Morgan to trial in a medicated state unless the constitu-
tional implications of doing so were thoroughly considered in an
appropriate judicial forum.

IV.

Although we reject Morgan's position that he was constitutionally
entitled to the type of judicial determination prescribed by the Sixth
Circuit in Brandon, we are nevertheless concerned because the record
fails to disclose compliance with a key feature of the administrative

                     18
proceeding mandated by the BOP under 28 C.F.R. § 549.43. Specifi-
cally, by acceding to Morgan's request that Dye serve as his staff rep-
resentative in the administrative proceeding, Springfield medical
personnel may have contravened their affirmative obligation under
§ 549.43(a)(2) to ensure that Morgan was assisted by a staff represen-
tative with sufficient education and experience to understand the psy-
chiatric issues involved in the proceeding.3 Because the record on
appeal provides no indication that Dye, a correctional officer, had the
requisite credentials, we vacate the district court's order and remand
for factual findings as to whether Dye did indeed have those creden-
tials and, if not, whether Morgan suffered prejudice in the administra-
tive proceeding as a result.

A.

In promulgating 28 C.F.R. § 549.43, the BOP mandated that cer-
tain steps be followed and established certain procedural benefits for
inmates in the custody of the Attorney General facing the prospect of
forcible medication. Of significance to this case is§ 549.43(a)(2),
which contains the requirement of a "staff representative."

Under § 549.43(a)(2), an inmate must be informed of his right to
have a staff representative and be afforded the opportunity to request
one. Institutional medical personnel, however, may not blindly accept
an inmate's request for a particular staff representative or lack
thereof. In fact, § 549.43(a)(2) directs that a staff representative be
appointed for an inmate who either "does not request a staff represen-
tative, or requests a staff representative with insufficient experience
or education," thereby ensuring that an inmate will not only have a
representative, but that the representative in question will be one with
sufficient education and experience. Although this section does not
specify the requisite type or level of education and experience, we
have no difficulty determining that, at the very least, the staff repre-
sentative must have the ability to understand the psychiatric issues
involved in the proceeding.
_________________________________________________________________
3 We recognize that this issue was not presented to the district court,
but is one for which we requested additional briefing. We have authority
under Hormel v. Helvering, 312 U.S. 552, 557 (1941), to reach this issue.

                    19
B.

A review of the administrative record in the present matter suggests
that Springfield medical personnel may not have fulfilled their affir-
mative obligation under § 549.43(a)(2) to ensure the appointment of
an individual with sufficient knowledge in the field of psychiatry to
competently represent Morgan. Dr. Glazzard noted in his report that
Morgan chose Dye, a correctional officer, to be his staff representa-
tive, but provided no information as to whether Dye had sufficient
education or experience to serve as a staff representative. See 28
C.F.R. § 549.43(a)(2). Indeed, there is no indication at all in the
administrative record that Dye had any education or experience in the
field of psychiatry, let alone sufficient education and experience to
understand the psychiatric issues involved in the administrative pro-
ceeding.

Furthermore, Dye's minimal participation during the administrative
proceeding seems consistent with one who lacks a background in psy-
chiatry because there is no evidence of any meaningful participation
by Dye on Morgan's behalf. Rather, it appears that Dye's participa-
tion at the hearing was limited to testifying that"Mr. Morgan while
interacting with others sings and talks inappropriately in the third per-
son referring to himself as Ja'ai." J.A. 134. This statement indicates
that Dye performed a function more akin to a lay witness than to one
who possesses knowledge in the field of psychiatry.

Following the administrative hearing, Morgan received a copy of
Dr. Glazzard's report, which did advise him of his right to submit an
appeal within 24 hours and to have the appeal decided within 24
hours of submission. See 28 C.F.R. § 549.43(a)(6). The report did not,
however, advise him of his right to request the assistance of his staff
representative. See id. Forced to fend for himself again, Morgan sub-
mitted an appeal in the form of several rambling sentences. It appears
that he did not learn of his right to request Dye's assistance with the
appeal until the district court directed that he be permitted to supple-
ment the appeal with such assistance. In the supplement, Morgan
expressed concern regarding side effects of antipsychotic medication
and asserted in conclusory fashion that he was not, as Dr. Glazzard
had found, dangerous to himself or to others at Springfield. Lastly,
Morgan declared that he was "not crazy" and was "ready to face the

                     20
charges." J.A. 130. These arguments, which provide no psychiatric
basis to challenge the findings upon which Dr. Glazzard based his
administrative determination, do not strike us as the product of one
who has sufficient education and experience to serve as a staff repre-
sentative.

C.

We have recognized that an agency's failure to afford an individual
procedural safeguards required under its own regulations may result
in the invalidation of the ultimate administrative determination. See,
e.g., Delgado-Corea v. INS, 804 F.2d 261 (4th Cir. 1986). This princi-
ple is rooted in United States ex rel. Accardi v. Shaughnessy, 347 U.S.
260 (1954), in which the Supreme Court vacated a deportation order
rendered by the Board of Immigration Appeals ("BIA") because the
procedures leading to the order failed to comply with governing regu-
lations promulgated by the Immigration and Naturalization Service
("INS"). The Accardi doctrine, as it has come to be known, has since
been applied in a variety of contexts. See Service v. Dulles, 354 U.S.
363 (1957) (vacating discharge of Foreign Service Officer by Secre-
tary of State); Yellin v. United States, 374 U.S. 109 (1963) (overturn-
ing conviction for contempt of Congress stemming from investigation
conducted by House Committee on Un-American Activities); United
States v. Heffner, 420 F.2d 809 (4th Cir. 1969) (overturning tax con-
victions obtained with use of statements obtained by Internal Revenue
Service). The fact that a particular regulation or procedure is not man-
dated by the Constitution or by statute is of no moment for purposes
of an analysis under the Accardi doctrine. See Service, 354 U.S. at
388 ("While it is of course true that . . . the Secretary was not obli-
gated to impose upon himself these more rigorous substantive and
procedural standards, . . . having done so he could not, so long as the
Regulations remained unchanged, proceed without regard to them.");
Heffner, 420 F.2d at 812 ("It is of no significance that the procedures
or instructions which the IRS has established are more generous than
the Constitution requires."). Although cases on this issue have gener-
ally addressed agency decisions outside the prison context, we believe
that the principles apply equally here. Accordingly, once the BOP
established the administrative framework set forth in § 549.43,
Springfield medical personnel were bound to follow it.

                    21
Although the Accardi doctrine originally contemplated that an
agency's failure to comply with its own rules would automatically
nullify its action, see Heffner, 420 F.2d at 811 ("An agency of the
government must scrupulously observe rules, regulations, or proce-
dures which it has established. When it fails to do so, its action cannot
stand and courts will strike it down."), the Supreme Court has since
required that claimants demonstrate prejudice resulting from the vio-
lation unless "[t]he rules were not intended primarily to confer impor-
tant procedural benefits upon individuals in the face of otherwise
unfettered discretion" or unless "an agency required by rule to exer-
cise independent discretion has failed to do so." American Farm Lines
v. Black Ball Freight Serv., 397 U.S. 532, 538-39 (1970). Relying
upon American Farm Lines, the Court of Appeals for the Ninth Cir-
cuit held that the INS's failure to follow its own regulations would not
invalidate a deportation proceeding unless (1) "the regulation serves
a purpose of benefit to the alien," and (2) "the violation prejudiced
interests of the alien which were protected by the regulation." United
States v. Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979). The
BIA subsequently adopted the Calderon-Medina prejudice frame-
work, but made clear that prejudice might still be presumed under cer-
tain specific circumstances:

          Where compliance with the regulation is mandated by the
          Constitution, prejudice may be presumed. Similarly, where
          an entire procedural framework, designed to insure the fair
          processing of an action affecting an individual is created but
          then not followed by an agency, it can be deemed prejudi-
          cial. As a general rule, however, prejudice will have to be
          specifically demonstrated.

In re Garcia-Flores, 17 I. & N. Dec. 325, 329 (BIA 1980) (internal
citation omitted). In Delgado-Corea, we spoke approvingly of this
analysis. See Delgado-Corea, 804 F.2d at 263. However, because of
the uncertainty which exists as to the qualifications of Dye to serve
as an appropriate staff representative for Morgan and because resolu-
tion of the question could conceivably eliminate the question of preju-
dice, we decline to decide now the standard to be used to determine
prejudice when a violation of § 549.43 occurs. This is an issue best
resolved after a full development of the record.

                    22
V.

In summary, we are satisfied that Morgan's due process rights were
adequately protected in the proceedings below. We therefore con-
clude that the Due Process Clause of the Fifth Amendment does not
require that the determination of whether he should be forcibly treated
with antipsychotic medication be made by a district judge as pre-
scribed by the Sixth Circuit in Brandon.

However, the record does not sufficiently demonstrate that the
administrative proceeding was conducted in compliance with 28
C.F.R. § 549.43. Specifically, Springfield medical personnel may
have contravened their affirmative obligation to ensure that Morgan
was assisted by a staff representative with sufficient education and
experience to understand the psychiatric issues involved in the pro-
ceeding. Because the record on appeal does not indicate that Dye pos-
sessed the requisite psychiatric credentials, we vacate the district
court's order and remand for factual findings as to whether he did
indeed possess those credentials and, if not, whether Morgan suffered
prejudice as a result.

VACATED AND REMANDED

                    23
