194 F.3d 145 (D.C. Cir. 1999)
United States of America, Appelleev.Russell Eugene Weston, Jr.,Appellant
No. 99-3016
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 4, 1999Decided October 29, 1999

Appeal from the United States District Court for the District of Columbia(No. 98cr00357-01)
A. J. Kramer, Federal Public Defender, argued the cause  and filed the briefs for appellant.  L. Barrett Boss, Assistant  Federal Public Defender, entered an appearance.
David B. Goodhand, Assistant U.S. Attorney, argued the  cause for appellee.  With him on the brief were Wilma A.  Lewis, U.S. Attorney, and John R. Fisher and Erik P.  Christian, Assistant U.S. Attorneys.
Before:  Edwards, Chief Judge, Wald and Williams,  Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Dissenting opinion filed by Circuit Judge Wald.
Edwards, Chief Judge:


1
Russell Eugene Weston, Jr., the  appellant in this case, is charged with the murder of two  United States Capitol Police Officers and the attempted  murder of a third.  In this appeal, Weston seeks to challenge  an order of the District Court requiring him to undergo a  competency examination to be conducted by a psychiatrist  suggested by the Government.  Weston claims that he can  only be examined by a psychiatrist of his own choosing or by  a neutral doctor appointed by the trial court.  However,  Weston never suffered the situation of which he complains,  because he repeatedly refused to speak to the psychiatrist  who had been appointed at the suggestion of the Government. Due to Weston's refusal to undergo an examination by a  Government psychiatrist, the prosecution finally withdrew its  objection to a finding of incompetency and Weston was committed for treatment to restore competency pursuant to 18  U.S.C. § 4241(d) (1994).  As a result, the order that Weston  challenges was never carried out and it is no longer in effect. Accordingly, we dismiss the appeal as moot.

I.  Background

2
On October 9, 1998, Russell Weston was indicted for the  July 24, 1998 murders of United States Capitol Police Officer  Jacob J. Chestnut and Special Agent John M. Gibson, and  with the attempted murder of United States Capitol Police  Officer Douglas B. McMillan.  On October 15, 1998, the  Government and the defense filed a joint request pursuant to  18 U.S.C. § 4241 for a mental competency examination of  Weston.


3
The District Court appointed Dr. Sally C. Johnson, the  Chief Psychiatrist and Associate Warden of Health Services  at the Mental Health Division of the Federal Correctional  Institution in Butner, North Carolina ("FCI-Butner"), to conduct an outpatient psychiatric examination of the defendant to assist the court in determining whether the defendant  was competent to stand trial.  Dr. Johnson spent approximately 20 hours with the defendant, personally administering  psychiatric and personality tests to him;  she also reviewed  numerous medical and mental health records and interviewed  family members.  Following her examination, Dr. Johnson  submitted a report to the District Court and defense counsel  under seal.  Thereafter, defense counsel consented to a release of the report in unredacted form to the Government. Dr. Johnson concluded that the defendant was presently  incompetent to stand trial, but that competency might be  restored with extended hospitalization and treatment with  anti-psychotic medication.


4
Concerned by what it perceived to be certain omissions and  inconsistencies in Dr. Johnson's report and in the defendant's  conduct, the prosecutor asked the District Court to compel  the defendant to submit to an examination by a mental health  expert of the Government's choosing.  By Memorandum and  Order filed January 28, 1999, reprinted in Joint Appendix at  35-60, and modified on February 12, 1999, United States v.  Weston, 36 F. Supp. 2d 7 (D.D.C. 1999), the District Court  granted the Government's motion.  The same order also  committed the defendant to the United States Medical Center  for Federal Prisoners at Springfield, Missouri ("Springfield")  for an examination by another court-selected expert.  The  examination by the Government doctor was to take place  while the defendant was at Springfield.


5
The defendant was sent to Springfield on February 3, 1999.A staff psychiatrist there, Dr. James Wolfson, was to serve as  the court-selected examiner;  Dr. Debra DePrato was retained as the Government's expert.  The defendant refused to  answer substantive questions posed by Dr. Wolfson, Dr.  DePrato, or other staff members at Springfield, repeatedly  stating that he declined to answer questions upon the advice  of counsel.  Counsel for Mr. Weston states that this behavior  was "solely a product of [Weston's] delusions," and that  Weston has refused to talk to his own attorney on the same  grounds.  Appellant's Reply Br. at 4 n.2, 10.  In any event, as a result, the doctors were unable to obtain any pertinent  information and the District Court ordered that Weston be  brought back to Washington, D.C.


6
On March 3, 1999, the District Court modified its order to  permit Dr. Wolfson and Dr. DePrato to examine Weston at  the courthouse or at the Correctional Treatment Facility in  Washington, D.C., and to allow Dr. DePrato to arrange  psychological testing of Weston.  However, Weston again  refused to cooperate with the doctors.


7
Weston's competency hearing was scheduled to take place  on April 22, 1999, but on April 9, 1999, in light of Weston's  refusal to cooperate with any further mental examinations  and concerned that the case not be delayed any longer than  necessary, the Government withdrew its objection to a finding  of incompetency based on Dr. Johnson's original report.  On  April 22, 1999, the District Court found Weston incompetent  to stand trial and committed him for treatment to restore  competency pursuant to 18 U.S.C. § 4241(d).

II.  Analysis

8
In this appeal, Weston argues that the District Court  lacked the authority to order a competency examination by a  doctor chosen by the Government.  Weston claims that, under 18 U.S.C. §§ 4241 and 4247(b), competency examinations  may be conducted only by mental health experts appointed by  the trial court or selected by the defendant.  The Government does not contend that it has an absolute right to the  appointment of an expert to conduct a competency examination;  rather, the Government claims only that it has the right  to request, and the District Court has the discretion to grant,  a competency examination by a mental health expert suggested by the Government.  We need not decide the scope of the  disputed statutory provisions, however, because the instant  appeal is moot.


9
The date(s) for the competency examinations at issue have  come and gone.  Because the defendant refused to speak to  the Government's suggested psychiatrist, no examination ever  took place.  By withdrawing its objection to a finding of incompetency, the Government also necessarily withdrew its  request that the defendant be compelled to submit to an  examination by a doctor other than Dr. Johnson.  The defendant has been found incompetent to proceed and has been  committed for treatment to restore competency pursuant to  18 U.S.C. § 4241(d).  In sum, the order that Weston seeks to  challenge was never carried out and is no longer in effect.


10
"[A] federal court has neither the power to render advisory  opinions nor 'to decide questions that cannot affect the rights  of litigants in the case before them.' "  Preiser v. Newkirk,  422 U.S. 395, 401 (1975) (citation omitted).  "For that reason,  if [ ] event[s] occur while a case is pending on appeal that  make[ ] it impossible for the court to grant 'any effectual  relief whatever' to a prevailing party, the appeal must be  dismissed [as moot]."  Church of Scientology of California v.  United States, 506 U.S. 9, 12 (1992).  That is precisely what  has occurred here.  Events have transpired such that Weston  did not submit to the disputed examination and is no longer  subject to any order requiring him to do so.


11
Weston argues, however, that the case should not be dismissed as moot because it falls within the exception to the  mootness doctrine for cases capable of repetition yet evading  review.  This exception applies if:  "(1) the challenged action  [is] in its duration too short to be fully litigated prior to its  cessation or expiration[;]  and (2) there [is] a reasonable  expectation that the same complaining party [will] be subject  to the same action again."  LaRouche v. Fowler, 152 F.3d  974, 978 (D.C. Cir. 1998) (alterations in original) (citing  Spencer v. Kemna, 118 S. Ct. 978, 988 (1998)).


12
We assume, in agreement with the defendant, that the  disputed issue is capable of repetition, because Weston might  again be ordered to submit to a Government competency  examination.  First, if the doctors at FCI-Butner ultimately  conclude that Weston cannot be restored to competence in  the foreseeable future, the prosecution may seek an examination by a Government psychiatrist to challenge that conclusion.  Second, even if the doctors at FCI-Butner conclude  that Weston has regained competency, Weston may call a number of defense experts to challenge that conclusion and,  in that event, the Government may want its own expert to  assist in responding to the defense experts.  In either event,  the District Court may again order a competency examination  by a mental health expert suggested by the Government. However, even assuming that the issue surrounding the Government's asserted right to suggest the appointment of a  mental health expert is capable of repetition, this case is  nonetheless moot because any further dispute over this issue  will not evade review.


13
Weston argues that an order compelling a defendant to  undergo a competency examination by a Government mental  health expert is immediately appealable under this court's  decision in United States v. Weissberger, 951 F.2d 392 (D.C.  Cir. 1991).  Weissberger held that an order compelling a 30day competency evaluation was immediately appealable under  the collateral order doctrine, which allows the appeal of  orders that might otherwise be viewed as non-final, so long as  three conditions are met:  the order must "(1) 'conclusively  determine the disputed question,' (2) 'resolve an important  issue completely separate from the merits of the action,' and  (3) 'be effectively unreviewable on appeal from a final judgment.' "  Weissberger, 951 F.2d at 396 (quoting Coopers &  Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).  There is no  doubt that if Weissberger applies in a situation such as the  one at hand, then the case is moot.  This is because immediate appeal will be available in the future in the event that  Weston is again ordered to undergo a competency examination by a Government mental health expert.  Thus, the issue  would not escape review.


14
The Government, however, argues that Weissberger is inapposite.  In the Government's view, the court's determination  in Weissberger that the District Court's order would be  effectively unreviewable on appeal after final judgment was  based on the loss of liberty associated with the confinement  for the competency evaluation ordered in that case, not the  intrusion of the examination itself.  In this case, the Government argues, Weston has already been held without bail so  there is no loss of liberty.


15
We need not decide the applicability of Weissberger in this  case, because, regardless of the availability of immediate  appeal, the issue raised in this case will not evade review.  If  Weissberger does apply (so that any future order of a mental  examination by a Government doctor is immediately reviewable and, presumably, subject to a stay pending review), then  the defendant's interest in avoiding the intrusion of the  examination will be protected.  On the other hand, if Weissberger does not apply and the defendant must wait until after  his conviction (if any) to obtain review, that result will necessarily reflect the court's conclusion that the order at issue is  not "effectively unreviewable on appeal from a final judgment" and that protecting a defendant from the intrusion  associated with a particular medical examination is not, by  itself, worth the extra delay and disruption of the criminal  trial process.


16
In sum, because any future order compelling this defendant  to undergo a competency examination by a Government psychiatrist will be subject to review, either immediately or  following a final judgment, the case is moot.

III. Conclusion

17
For the foregoing reasons, the appeal is dismissed as moot.


18
So ordered.

Wald, Circuit Judge, dissenting:

19
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.1Today'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.


20
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.


21
I agree with the panel as well that if Weissberger does not  apply to this case, i.e., 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


22
Where the panel opinion falls down on the job, however, is  its obliviousness to a repetition of what has just occurred in  this case, i.e., a situation where the trial judge orders 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.


23
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


24
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) ("[W]ithout 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.


25
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 future 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 (1975) (per curiam).


26
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.


27
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.


28
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, post-confinement review will provide no relief for the loss of liberty associated with the competency evaluation.


29
Id. at 396-97 (citations omitted).  I read this opinion as  controlling the case before us today.


30
The government suggests that Weissberger 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 Weissberger was challenging the  confinement aspect of the order.


31
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.


32
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 for 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. 1993)  (competency evaluation orders immediately appealable because "the loss of liberty occasioned by the commitment for  examination, and the forced intrusion of a court-ordered  psychiatric examination, are completely unreviewable by the  time of final judgment") (emphasis added);  Union Pac. Ry. v.  Botsford, 141 U.S. 250, 251 (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 (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. Sept. 21, 1999) (order  allowing forced medication of pretrial detainee immediately  appealable);  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).


33
Weissberger, correctly, requires that orders requiring defendants to undergo psychiatric examinations are immediately  appealable, 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 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[s]."  Weissberger, 951 F.2d at 396.


34
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.


35
For these reasons, I dissent.



Notes:


1
 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.


2
 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).


3
 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).


4
 The panel opinion "assumes" that this issue is capable of repetition.  See Maj. Op. at 5.  There is good reason for that assumption. The Supreme Court has made it clear that the question is whether "the controversy was 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  (1988).  Our own cases also make it clear that this requirement  should not be interpreted overly stringently.  See Christian  Knights of the Klu 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.


5
 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) (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).


