                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                          REVISED DECEMBER 14, 2005                        FILED
                                                                      November 21, 2005
                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                    Charles R. Fulbruge III
                                                                             Clerk
                                 No. 04-31137



UNITED STATES

                                                          Plaintiff - Appellee
versus


DEDRICK REGINALD WHITE

                                                         Defendant - Appellant


           Appeal from the United States District Court
               for the Middle District of Louisiana




Before HIGGINBOTHAM, WIENER & DENNIS, Circuit Judges.

WIENER, Circuit Judge:

     Defendant-Appellant Dedrick Reginald White appeals an order of

the district court that he be involuntarily medicated.                Concluding

that this case is not ripe for appellate review because the

Plaintiff-Appellee        the   United    States     failed   to    exhaust         the

administrative procedures required, we vacate and remand.

                           I. FACTS & PROCEEDINGS

     White was indicted on charges of (1) assaulting a postal

carrier, and in so doing placing the postal carrier in jeopardy by

the use   of    a    semi-automatic      rifle,    (2)   using,    carrying,        and

brandishing that rifle during the assault, and (3) being a felon in
possession of a firearm.1           If convicted, White faces a mandatory

minimum   sentence   of   15       years   imprisonment.          At   his   initial

appearance, White stipulated to detention in East Baton Rouge

Parish Prison (“EBRPP”).

     White   then    filed     a    motion     for   a   mental   examination     to

determine his competency to stand trial.                    The district court

ordered Dr. John Bolter of Baton Rouge to conduct a psychiatric and

psychological examination, but White refused to participate in the

examination.    White was then transferred to the Federal Medical

Center in Fort Worth, Texas, for an examination.                  The staff at the

Medical Center was unable to render an opinion as to White’s

competency because White again refused to participate in the

examination. Finally, White was transferred to the Federal Medical

Center in Butner, North Carolina, where the staff evaluated him and

concluded that he is incompetent to stand trial.                  Accordingly, on

August 19, 2002, the district court found White incompetent to

stand trial and committed him to the custody of the Attorney

General   for   hospitalization        and      treatment    according       to   the

provisions of 18 U.S.C. § 4241.

     The government subsequently had White transferred back to

EBRPP and sought an order of the court to have White medicated

involuntary.    Two grounds were advanced: (1) White is dangerous to

himself and others, and (2) medication is necessary and appropriate


     1
      See 18 U.S.C. §§ 2114, 924(c)(1)(A)(ii), and 922(g)(1).

                                           2
to render him competent to stand trial.             The district court held

that involuntary medication was warranted on both grounds.

                              II. ANALYSIS

A.   Jurisdiction

     Involuntary medication orders such as the one at issue here

conclusively decide the disputed question and resolve an important

issue.2    We therefore have jurisdiction under the collateral order

doctrine    over   White’s   appeal   of    the    district    court’s   order

authorizing    prison    authorities       to     administer   antipsychotic

medication to him on an involuntary basis.3

B.   Standard of Review

     We review the district court’s findings of fact for clear

error and conclusions of law de novo.4

C.   Applicable Law

     Under 18 U.S.C. § 4241, if a district court finds a criminal

defendant incompetent to stand trial, the court must commit the

defendant to the custody of the Attorney General.5                 Then, the

Attorney General must hospitalize the defendant in “a suitable

facility” for a time (1) sufficient to determine whether the



     2
      Sell v.U.S., 539 U.S. 166, 176-77 (2003).
     3
      Id.
     4
      U.S. v. City of Jackson, Miss., 359 F.3d 727, 731 (5th Cir.
2004).
     5
      18 U.S.C. § 4241(d).

                                      3
defendant will regain competence within a reasonable time, and, if

so, (2) for an additional period until the defendant’s “mental

condition is so improved that trial may proceed,” so long as “the

court finds that there is a substantial probability” that the

defendant will regain competence.6

     Although     inmates   have   a    significant       liberty   interest   in

avoiding    the    administration       of    unwanted     medication,   prison

officials    may     administer        such     medication     under     limited

circumstances to, inter alia, render the inmate non-dangerous or

competent to stand trial.7     “Title 18 U.S.C. § 4241... and federal

court decisions require that certain procedures be followed” before

the medication is involuntarily administered to a person in the

custody of the Attorney General.8            28 C.F.R. § 549.43 outlines the

“administrative due process procedures” that “must be provided to

the inmate” and “must be followed after a person is committed for

hospitalization and prior to administering involuntary treatment,

including medication.”9

     Specifically,     when   an    inmate      refuses    medication,    he   is

entitled to an administrative hearing at the facility to determine




     6
      Id. at § 4241(d)(1)-(2).
     7
      Washington v. Harper, 494 U.S. 210, 222, 227 (1990)
(dangerousness); Sell, 539 U.S. at 179-80 (competence).
     8
      28 C.F.R. § 549.43.
     9
      Id.

                                        4
whether he may be medicated against his will.10             The facility staff

must inform the inmate of “the date, time, place, and purpose of

the hearing, including the reasons for the medication proposal,”

and “a psychiatrist who is not currently involved in the diagnosis

or   treatment       of   the   inmate”   must   conduct   the   hearing.11    In

addition, the inmate’s treating psychiatrist or clinician “must be

present      at    the    hearing   and   must   present   clinical    data   and

background information relative to the need for medication.”12                The

inmate has the right, inter alia, “to appear at the hearing, to

present evidence, to have a staff representative, [and] to request

witnesses.”13        At the conclusion of the hearing, the conducting

psychiatrist must determine whether “medication is necessary in

order to attempt to make the inmate competent to stand trial or is

necessary because the inmate is dangerous to [him]self or others”

and “prepare a written report regarding the decision.”14                      The

facility must provide a copy of the report to the inmate, and the

inmate may appeal the decision to the facility administrator.15

“The administrator shall ensure that the inmate received all



      10
           Id. at § 549.43(a).
      11
           Id. at § 549.43(a)(1) and (3).
      12
           Id. at § 549.43(a)(4).
      13
           Id. at § 549.43(a)(2).
      14
           Id.    at § 549.43(a)(5).
      15
           Id. at § 549.43(a)(6).

                                          5
necessary procedural protections and that the justification for

involuntary treatment or medication is appropriate.”16

      Although § 4241 does not expressly mandate exhaustion of

administrative       procedures,    “the   jurisprudential    doctrine   of

exhaustion [still] controls.”17 This “long settled rule of judicial

administration” serves several important purposes.18           For example,

it permits the agency to develop the factual background of the case

and apply its expertise, and, at the same time, it conserves scarce

judicial resources.19         Furthermore, it prevents general disregard

for agency procedures that could ultimately weaken the agency’s

effectiveness.20         Consequently, a court should excuse the failure

to   exhaust     administrative     procedures   only   “in   extraordinary

circumstances.”21 Extraordinary circumstances typically arise when

the administrative process would be inadequate or futile, the

claimant challenges the legality of the administrative process

itself, or the claimant has advanced a constitutional challenge

that would remain after the completion of the administrative



      16
           Id.
      17
           Taylor v. U.S. Treasury Dept., 127 F.3d 470, 475 (5th Cir.
1997).
      18
      Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51
(1938).
      19
           Taylor, 127 F.3d at 476-77.
      20
           Id.
      21
           Id. at 477.

                                       6
process.22

D.    Merits

      In this case, the government made an end run around the

regulatory scheme laid out in § 549.43 and sought an order directly

from the district court authorizing involuntary medication, first

on the basis of dangerousness, and, in the alternative, on the

basis of competence to stand trial.                  The government advances no

extraordinary circumstances to excuse its failure to exhaust the

administrative procedure in § 549.43.                  In fact, the government

advances no reason at all to justify its failure to follow the

prescribed procedure. Moreover, in disregarding the administrative

procedure        required   by    §   549.43,   the    government   ignores     the

unequivocal,          mandatory   language      of    the   regulation   that    is

specifically tailored to protect the inmate’s due process rights.

In   light       of   the   existing    administrative       procedure   and    the

government’s failure to provide any explanation whatsoever for

bypassing that process, it was error for the district court to make

the initial determination to medicate White involuntarily.23                     We

therefore remand the action to the district court with instructions




      22
           Id.
      23
      See U.S. v. Morgan, 193 F.3d 252, 263 (4th Cir. 1999)
(observing that “§ 549.43 requires that a determination of
whether to forcibly medicate an inmate be made in the context of
an administrative hearing”).

                                          7
to order a due process hearing in accordance with § 549.43.24

     The government insists that even if we cannot review the

district court’s order to medicate White involuntarily on grounds

of dangerousness, we may nevertheless review that court’s order to

medicate White to restore his competency to stand trial.                             The

government’s      position     is    grounded        in     the    Supreme    Court’s

observation in Sell that deciding to administer forced medication

to restore competence involves “quintessentially legal questions of

trial fairness and competence.”25 The government therefore contends

that, in making this statement, the Supreme Court overturned the

regulatory     scheme   laid   out    in       §   549.43   as    to   the   issue   of

involuntary medication to render a defendant competent for trial.

We disagree. The Sell Court was addressing an inmate’s substantive

right to be free from unwanted medication —— not the procedural

protections of that right. We seriously doubt that the Court would

thus eviscerate an entire regulatory scheme designed to protect an

inmate’s due process rights by implication.

     Ultimately, however, we need not address the government’s

contention here, given the Supreme Court’s admonition in Sell to


     24
      See U.S. v. Kourey, 276 F.Supp.2d 580, 581 (S.D.W.Va.
2003) (noting that “[t]he decision whether or not [to medicate
the defendant] is best left to the medical professionals at the
Butner Federal Medical Center acting in accordance with
established administrative due process procedures” and that
judicial review “has only been deemed appropriate after
exhaustion of the administrative procedure”).
     25
          539 U.S. at 182.

                                           8
consider whether involuntary medication is appropriate on grounds

of dangerousness before considering whether doing so would be

appropriate to restore an inmate’s competence to stand trial.26 The

Court reasoned that medicating an inmate to alleviate dangerousness

will, in most cases, obviate the need to do so to restore his

competency,     noting      that      the    dangerousness        inquiry     is       more

“‘objective     and      manageable’”        than   the    competency       inquiry.27

Importantly, observed the Sell Court, “medical experts may find it

easier to provide an informed opinion about whether, given the risk

of side effects, particular drugs are medically appropriate to

control a patient’s potentially dangerous behavior... than to try

to   balance     the     harms       and    benefits      related    to     the        more

quintessentially         legal       questions      of     trial     fairness           and

competence.”28    Furthermore, “courts typically address involuntary

medical      treatment     as    a    civil     matter”     and     justify       it    on

dangerousness grounds.29

     Even if the government’s position has merit, it is of no

moment in this proceeding.                 Nothing in Sell casts doubt on §


     26
      Id. at 183; U.S. v. Morrison, 415 F.3d 1180, 1185 (10th
Cir. 2005) (remanding action to district court to consider
involuntary medication to render the inmate non-dangerous before
considering it to render the inmate non-dangerous).
     27
      Sell, 539 U.S. at 182, 183 (quoting Riggins v. Nevada, 504
U.S. 127, 140 (1992) (Kennedy, J., concurring)).
     28
          Id. at 182.
     29
      Id. at 182 (citing, inter alia, various state statutory
schemes and 28 C.F.R. § 549.43).

                                            9
549.43's applicability to the dangerousness inquiry. In fact, when

it   reviewed        a    state’s     involuntary           medication   administrative

procedure that is substantially similar to § 549.43, the Court

observed that “an inmate’s interests are adequately protected, and

perhaps better served, by allowing the decision to medicate to be

made by medical professionals rather than a judge.”30

                                    III.    CONCLUSION

      As     the   government        bypassed         the    administrative   procedure

required under the instant circumstances, the district court’s

order is not ripe for review.               Accordingly, we vacate the district

court’s      order       authorizing       the    involuntary      medication   of   the

defendant and remand the case for further proceedings consistent

with this opinion, beginning with exhaustion of administrative

procedures.

VACATED and REMANDED for further consistent proceedings.




      30
           Washington v. Harper, 494 U.S. 210, 231 (1990).

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