     Case: 11-50146        Document: 00511628909              Page: 1      Date Filed: 10/11/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                                       FILED
                                                                                    October 11, 2011

                                            No. 11-50146                              Lyle W. Cayce
                                                                                           Clerk

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,
v.

JESSE JOE GUTIERREZ,

                                                         Defendant-Appellant.



                      Appeal from the United States District Court
                           for the Western District of Texas
                                 USDC 1:09-CR-453-1


Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM*:
        Defendant Jesse Joe Gutierrez appeals the district court’s order that he
be involuntary medicated to render him competent to stand trial. He is charged
with threatening to kill and inflict bodily harm on President Obama, in violation
of 18 U.S.C. § 871; threatening to kill and inflict bodily harm on former
Presidents George W. Bush and George H. W. Bush, in violation of 18 U.S.C.
§ 879; and threatening to assault and murder a Special Agent of the United


        *
          Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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States Secret Service with intent to retaliate against the agent on account of the
performance of the agent’s official duties, in violation of 18 U.S.C. § 115. We
VACATE and REMAND for proceedings consistent with this opinion.
                                       I.
      Over the course of a few weeks in late 2008, Gutierrez made over 100
phone calls to KVUE, a television station in Austin, Texas, threatening to harm
or kill former President George W. Bush, First Lady Laura Bush, Texas
Governor Rick Perry, and his wife Anita Perry. He later left a message on the
Secret Service voicemail system threatening a Secret Service agent, President
Obama, former Presidents George H.W. Bush and George W. Bush, Governor
Perry, all law enforcement, and all lawyers. He was arrested the next day and
subsequently indicted.
      On motion of the government, the district court held a hearing and found
Gutierrez incompetent to stand trial. He was admitted to the Mental Health
Department at the Butner Federal Correctional Complex in Butner, North
Carolina. The staff diagnosed him with schizophrenia, undifferentiated type,
observing that Gutierrez displayed grandiose and paranoid delusions, had
disorganized speech, and was hostile in interactions with the doctors. They
reported that Gutierrez believed he was being conspired against because he was
“King Blessed, King of Kings,” waiting on word from God to engage in aggressive
behavior towards others.
      Because Gutierrez refused medication for his schizophrenia, his treatment
team, psychiatrist Dr. Kwanna Williamson and psychologist Carlton Pyant, set
a hearing to have a neutral psychiatrist determine whether Gutierrez should be
involuntarily medicated under Washington v. Harper, which permits forced


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                                              No. 11-50146

medication after a Bureau of Prisons (BOP) hearing if a person is a danger to
himself or others. 494 U.S. 210, 227, 231 (1990). The BOP regulations in place
at the time the government sought to medicate Gutierrez (the 1992 regulations)
required that the hearing be conducted by a hearing officer, who must be “a
psychiatrist who is not currently involved in the diagnosis or treatment of the
inmate”; in other words, a neutral psychiatrist. 28 C.F.R. § 549.43(a)(3).1 Here,
the Harper hearing was conducted by Dr. Ralph Newman.                                     Dr. Newman
submitted a report concluding that forcible medication for dangerousness was
not warranted. He was not asked to, and did not, consider whether forcible
medication was warranted under Sell v. United States, 539 U.S. 166 (2003), to
render Gutierrez competent to stand trial for serious, but nonviolent, crimes.2
        The government then moved the district court for a medical examination
and a determination under Sell. The defendant opposed the motion, arguing
that no drug therapy was required to render him competent for trial and that the
government had failed to exhaust the required administrative procedure under
the applicable 1992 regulation, 28 C.F.R. § 549.43. Gutierrez’s treatment team,
Williamson and Pyant, submitted a report to the district court that concluded
that treatment with psychotropic medication was substantially likely to render
Gutierrez competent to stand trial with minimal detrimental side effects, based



        1
          Citations to 28 C.F.R. § 549.43 throughout will be to the old regulation requiring a BOP
hearing, not to the new version of the regulations.
        2
          The Supreme Court in Sell held that, as a matter of substantive due process, the Constitution
permits the government to administer forcible medication to render a defendant competent to stand trial
only when it establishes first, that important governmental interests are at stake; second, that involuntary
medication will significantly further those interests; third, that involuntary medication is necessary to
further those interests; and fourth, that administration of the drugs is medically appropriate. 539 U.S. at
180-81.

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on the fact that Gutierrez had successfully been rendered competent by the use
of drug therapy in the past. The doctors opined that alternative, less-intrusive
means would be unlikely to restore Gutierrez to competency and that forcible
medication was medically appropriate.
      At the Sell hearing, the district court heard testimony from Dr.
Williamson. She testified that Gutierrez had responded favorably to treatment
in the past without notable side effects, and it was expected that he would
respond beneficially to the same treatment, again without side effects. She also
testified that there was no probability that Gutierrez would be restored to
competency without medication. Dr. Newman did not testify; nor did any other
psychiatrist not involved in Gutierrez’s treatment. Gutierrez offered no evidence
and stated that he would offer “no contrary testimony with regard to” the Sell
factors at the hearing in the district court.
      The district court concluded that involuntary medication of Gutierrez was
justified, rejecting the argument that the court’s consideration of this motion
was premature because the government failed to exhaust administrative
procedures under the 1992 regulation. Accordingly, the court entered an order
compelling Gutierrez’s involuntary medication. This appeal followed.
                                        II.
      In reviewing a district court’s order to medicate a defendant forcibly, this
court reviews findings of fact for clear error and conclusions of law de novo.
United States v. White, 431 F.3d 431, 433 (5th Cir. 2005). As such, we review de
novo whether the government has exhausted administrative processes.
      The government concedes that it did not hold an administrative hearing
on competency at the BOP. It argues, however, that it was not required to do so


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because Sell implicitly overruled the 1992 regulations. The government further
argues that it should not have had to comply with the 1992 regulations because
compliance would not have served the purposes of exhaustion and because the
BOP had proposed changes that would do away with the administrative process
on competency.3 In the alternative, the government argues that, even if the 1992
regulations were still viable at the time it sought to medicate Gutierrez, its
failure to comply should be excused because a BOP hearing would be futile given
the specific facts of this case.
                                                 A.
       Criminal defendants have a significant liberty interest in avoiding the
administration of unwanted medication. Id. As such, prison officials may only
administer unwanted medication for limited purposes, such as to render the
defendant non-dangerous or competent to stand trial. Sell, 539 U.S. at 179-80
(competency); Washington v. Harper, 494 U.S. 210, 225 (1990) (dangerousness).
Given that high standard, the instances when medication is permitted “may be
rare.” Sell, 539 U.S. at 180.
       In addition to those substantive due process requirements, an inmate is
also entitled to certain procedural due process protections. The 1992 regulations
in place at the time the government sought to medicate Gutierrez outlined the
“administrative due process procedures” that “must be provided to the inmate,”
separate and apart from the inmate’s substantive due process right to be free
from unwanted medication. White, 431 F.3d at 433; see United States v. Morgan,
193 F.3d 252, 263 (4th Cir. 1999).

       3
         These proposed regulations have now been adopted, effective August 12, 2011. See Psychiatric
Evaluation and Treatment, 76 Fed. Reg. 40229, 40232-40233 (July 8, 2011). For additional discussion of
these new regulations, see part II.B. and III.

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      The processes laid out in the 1992 regulations were straightforward.
Before forcibly medicating an inmate “in order to attempt to make the inmate
competent for trial or . . . because the inmate is dangerous,” the BOP was
required to give notice of “the reasons for the medication proposal.” 28 C.F.R.
§ 549.43(a)(1), (5). It then had to hold an administrative hearing at which the
inmate was entitled to appear, present evidence, and have a staff representative.
Id. at § 549.43(a)(2). The hearing officer must have been “a psychiatrist who is
not currently involved in the diagnosis or treatment of the inmate,” id. at
§ 549.43(a)(3), and must have made a determination that medication was
necessary for the reason for which it is being sought, id. at § 549.43(a)(5). In
addition, the inmate’s treating psychiatrist must have been present at the
hearing and provided background information that is pertinent to the need for
medication. Id. at § 549.43(a)(4). At the conclusion of the hearing, the hearing
officer was required to prepare a written report outlining his decision, which
would then be given to the inmate, who had the right to appeal the decision to
a facility administrator. Id. at § 549.43(a)(5), (6). As we recognized in White,
“the unequivocal, mandatory language of the regulation . . . is specifically
tailored to protect the inmate’s due process rights.” 431 F.3d at 434.
      The government concedes that it did not conduct an administrative
hearing on competency. It is undisputed that Dr. Newman, the hearing officer
at the administrative hearing and the only psychiatrist to participate in the
hearing who was not involved in Gutierrez’s treatment, considered only
dangerousness and recommended that Gutierrez not be medicated. Rather than
simultaneously seeking a determination on medication for the purpose of
competency, the government bypassed the administrative competency process


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and went directly to the district court. As a result of the government’s disregard
of the 1992 regulations, Gutierrez lost the protections provided therein: notice
that the BOP was considering medication for competency, the opportunity to
present witnesses on the issue of competency at the hearing, and, importantly,
the right to appeal any decision made by the neutral psychiatrist and to have
another independent decision-maker review the substance of the psychiatrist’s
findings. See generally 28 C.F.R. § 549.43(a)(1)-(8). Gutierrez never had the
opportunity to present his evidence to a hearing officer, not involved in his
treatment, tasked with determining whether medication for competency was
medically proper at the administrative level. Simply put, the government was
required to, but did not, comply with the 1992 regulations.
       We have already held that the government must exhaust administrative
processes prior to forcibly medicating an inmate. White, 431 F.3d at 434. In
White, the government bypassed the administrative process completely, seeking
instead in the first instance an order from the district court that would allow
involuntary medication. Id. at 432. We addressed two issues in that case: first,
whether the Supreme Court implicitly overruled the 1992 regulations in Sell,
and second, whether the government had to consider dangerousness before
competency. Ultimately, however, we did not resolve the first issue, whether
Sell overruled the 1992 regulations, “given the Supreme Court’s admonition in
Sell to 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.”4 Id. at 435.

       4
        In Sell, the Supreme Court noted that the dangerousness inquiry is more “objective and
manageable” than the competency question. 539 U.S. at 182. Because medicating an inmate to alleviate
dangerousness will often do away with the need to do so for competency, the Court required the BOP to

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        Before resolving White on the second ground, however, we considered
whether Sell had overruled the 1992 regulations.                             We noted that Sell
distinguished the competency question, which requires a “balanc[ing of] harms
and benefits related to the more quintessentially legal questions of trial fairness
and competence,” and the dangerousness question, which is more “objective and
manageable.” 539 U.S. at 182. Based on that distinction, the government
argued in White, and argues here, that the Supreme Court implicitly required
that the legal determination of competency be made by a district court, thus
overruling the regulatory scheme in 28 C.F.R. § 549.43. As we stated in White,
“The Sell Court was addressing an inmate’s substantive right to be free from
unwanted medication—not the procedural protections of that right.” White, 431
F.3d at 435. “We seriously doubt that the Court would thus eviscerate an entire
regulatory scheme designed to protect an inmate’s due process rights by
implication.”5 Id.; see also Morgan, 193 F.3d at 260.
        Admitting that Sell did not overrule the 1992 regulations explicitly, the
government here asks that we be the first court to hold that it did so by
implication. Consistent with our statements in White, we now hold that Sell did
not overrule the 1992 regulations, and the government was required to comply
with them.6


consider the dangerousness question first. Id.
        5
          This is particularly so because the Court recognized in Sell that the BOP complied with the
1992 regulations. See 539 U.S. at 171 (noting that it was reviewing the last of “five hierarchically
ordered lower court and Medical Center determinations”). It would be odd indeed for the Court to
overrule those regulations when it was not presented with a complaint about them.
        6
         The government has routinely advanced this argument in district court proceedings, but it has
been consistently rejected, except in the instant case. See, e.g., United States v. Brooks, Crim. No. 05-
338, 2010 WL 3942720, at *8 (W.D. Pa. Sept. 30, 2010); United States v. Richardson, No. 3:08-cr-302-J-

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         Indeed, the bifurcated process provided in the 1992 regulations served a
purpose quite apart from the Sell substantive due process determination. The
BOP made medical findings: whether medication was necessary and effective to
render a defendant competent. See 28 C.F.R. § 549.43(a)(5). The district court,
on the other hand, made a legal determination: whether the person could,
consistent with the Constitution and substantive due process, be forced to
receive medication. Sell, 539 U.S. at 176. In those rare cases in which the
government could forcibly medicate an inmate to render him competent for trial,
the government first must have produced evidence to satisfy a psychiatrist not
involved in his treatment that medication was justified as a medical
determination, and second, must have met the high legal standards in district
court.
         The government nonetheless argues that, because requiring it to comply
with the regulations would not serve the general purposes of exhaustion of
administrative remedies, it should never have been required to give Gutierrez
a BOP hearing.           We have already rejected that argument, holding that,
“[a]lthough § 4241 does not expressly mandate exhaustion of administrative
procedures, ‘the jurisprudential doctrine of exhaustion [still] controls,’” given the
purposes of exhaustion. White, 431 F.3d at 434 (quoting Taylor v. U.S. Treasury


32TEM, 2009 WL 4730563, at *2 (M.D. Fla. Dec. 7, 2009); United States v. Milliken, No. 305-CR6J-
32TEM, 2006 WL 2945950, at *3 (M.D. Fla. Oct. 13, 2006); United States v. Algere, 457 F. Supp. 2d
695, 698 (E.D. La. 2005) (noting that the district court had previously denied the government’s motion
for involuntary medication because the 1992 regulations require the competency question to be made first
“in the context of an administrative hearing,” which the government had not done); United States v.
Barajas-Torres, No. CRIM.EP-03-CR-2011KC, 2004 WL 1598914, at *1 n.2 (W.D. Tex. July 1, 2004);
see also United States v. Gonzalez-Aguilar, 446 F. Supp. 2d 1099, 1104-06 (D. Ariz. 2006) (denying the
BOP’s request to forcibly medicate the inmate because it had not followed administrative processes). In
all of those cases, the government failed to follow the 1992 regulations, and the district courts remanded
the cases for failure to exhaust.

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Dep’t, 127 F.3d 470, 475 (5th Cir. 1997)) (alteration in original). Here, for
example, the district court did not have the benefit of a fully-developed
administrative record of the relevant medical considerations to inform its
decision of whether forced medication of Gutierrez violated the Constitution.
      Further, the fact that at the time the BOP sought to medicate Gutierrez,
it had proposed amendments to the regulations that would do away with the
need for a hearing on competency does not change the result here. Those
proposed amendments had not yet been adopted. While the BOP “was not
obligated to impose upon [itself] these more rigorous substantive and procedural
standards, . . . having done so [it] could not, so long as the Regulations remained
unchanged, proceed without regard to them.” Service v. Dulles, 354 U.S. 363,
388 (1957) (relied upon by Morgan, 193 F.3d at 266-67, in vacating a district
court order allowing forcible medication). An agency cannot obtain a de facto
rule change by complying with a proposed rule, particularly when it influences
a criminal defendant’s due process rights. It is “an unremarkable proposition”
that an agency must follow its own regulations. Chevron Oil Co. v. Andrus, 588
F.2d 1383, 1386 (5th Cir. 1979); see United States v. Nixon, 418 U.S. 683, 695
(1974); Morgan, 193 F.3d at 266 (“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.”).
The government failed to exhaust the administrative processes outlined in the
1992 regulations, as it was required to do under White.
                                        B.
      The government alternatively argues that its failure to comply with the
1992 regulations should be excused because remanding the case to the BOP


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                                    No. 11-50146

would be futile given the particular facts of this case. A court should “excuse the
failure   to   exhaust   administrative    procedures         only   ‘in   extraordinary
circumstances,’” such as “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 process.” White, 431 F.3d at 434; see
Dawson Farms, LLC v. Farm Serv. Agency, 504 F.3d 592, 606 (5th Cir. 2007).
The government argues that “it would serve no purpose to remand for an
administrative BOP hearing,” because Gutierrez only challenges the first Sell
factor, whether an important governmental interest is at stake, which can only
be determined by a district court. In other words, the government argues that
any error was harmless because the end result would be the same.
      The government argues the wrong standard. We do not look to the result
of the proceeding in determining whether the failure to exhaust should be
excused. White, 431 F.3d at 434. In White, for example, we held that the failure
to exhaust administrative remedies was not excused without any discussion of
the probable result after remand, or even discussion of whether the inmate
challenged the involuntary medication order on any substantive basis. Id.; see
also In re Hearst Newspapers, L.L.C., 641 F.3d 168, 181-83 (5th Cir. 2011)
(distinguishing the newspaper’s claim regarding the failure to provide adequate
procedures from its substantive claim about right of access to a criminal trial).
The inmate’s right to procedural due process stands apart from his substantive
right not to be forcibly medicated unless the government meets the four Sell
factors. That the inmate makes only limited substantive due process arguments
on appeal does not deprive him of his right to procedural due process in the first


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instance. See White, 431 F.3d at 434.
      Further, in determining futility, the question is whether “these procedures
would have been inadequate or futile had [they] been timely and diligently
pursued,” not whether it is futile to remand the case after appeal. Dawson
Farms, 504 F.3d at 607 (emphasis added). For example, the Supreme Court has
held that it would be futile to require a federal prisoner to exhaust
administrative processes because he was seeking only money damages, which
the agency had no authority to award. McCarthy v. Madigan, 503 U.S. 140, 149-
50 (1992). Given that the administrative process imposed short filing deadlines
resulting in a high risk of forfeiture, “the prisoner seeking only money damages
has everything to lose and nothing to gain.” Id. at 152. Similarly, the Fifth
Circuit has excused exhaustion when the remedy provided was by a review body
that “does not exist and, in fact, has not existed since 1981, long before Hall’s
dispute over benefits began.” Hall v. Nat’l Gypsum Co., 105 F.3d 225, 232 (5th
Cir. 1997) (emphasis omitted). In those cases, the inadequacy of the institutions
themselves rendered exhaustion futile.
      Here, however, the government does not point to any institutional
inadequacy. Rather, the 1992 regulations set forth an administrative process
well equipped to make the relevant medical determinations. Consistent with the
regulations, the government could have requested that the BOP consider
medication for competency alongside dangerousness. Requiring the government
to do so would not be futile.
      Nor does the fact that the proposed regulations have now been adopted
constitute an extraordinary circumstance excusing the government’s failure to
follow the old ones. The government argues in essence that no consequences


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                                    No. 11-50146

should attach to its failure to follow the 1992 regulations because it has changed
the regulations, effective August 12, 2011, after the date it sought to medicate
Gutierrez. We cannot allow agencies to flout in-force regulations and then
excuse their own non-compliance by adopting new regulations. See Hardy
Wilson Mem’l Hosp. v. Sebelius, 616 F.3d 449, 461 (5th Cir. 2010) (“Despite our
substantial deference to an agency’s interpretation of the scope or application of
its own regulations, . . . we cannot allow [the agency] to ignore its own regulation
in an attempt to save its imperfect/unsatisfactory decision-making in this case.”)
(internal quotation marks omitted). Affirming the district court order based on
the new regulations, as the government requests, would allow forcible
medication even though Gutierrez specifically and timely challenged the BOP’s
failure to comply with the old regulations. There are simply no “extraordinary
circumstances” to excuse the government’s failure to exhaust. See White, 431
F.3d at 434 (quoting Taylor, 127 F.3d at 477).
                                        III.
      We now turn to consider whether the new regulations should apply on
remand. The new regulations do not expressly require that they be applied to
matters remanded to the agency. See Hernandez-Rodriguez v. Pasquarell, 118
F.3d 1034, 1042 (5th Cir. 1997). The government has submitted further briefing
arguing that we should nonetheless apply the new regulations to this case and
affirm the district court’s order. If the regulations would operate retroactively,
however, the “traditional presumption teaches that [they do] not govern.”
Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994).
      Retroactivity analysis is a matter on which judges tend to have “sound
instincts” and requires a “commonsense, functional judgment” regarding


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“whether the new provision attaches new legal consequences to events completed
before its enactment.” Martin v. Hadix, 527 U.S. 343, 357-58 (1999) (internal
quotation marks omitted); Landgraf, 511 U.S. at 270. “The conclusion that a
particular rule operates ‘retroactively’ comes at the end of a process of judgment
concerning the nature and extent of the change in the law and the degree of
connection between the operation of the new rule and a relevant past event.”
Landgraf, 511 U.S. at 270. In making this determination, we are guided by
“familiar considerations of fair notice, reasonable reliance, and settled
expectations.” Id. Here, we look to the government’s request that Gutierrez be
forcibly medicated, which is “the relevant conduct regulated by the [regulations]”
and completed before the adoption of the regulations. See Republic of Austria
v. Altmann, 541 U.S. 677, 697-98 (2004).
      Importantly, “the mere fact that a new rule is procedural does not mean
that it applies to every pending case. . . . Nor do we suggest that concerns about
retroactivity have no application to procedural rules.” Landgraf, 511 U.S. at
274-75 & n.29; Shipes v. Trinity Indus., 31 F.3d 347, 349 (5th Cir. 1994). The
applicability of procedural rules depends on “the posture of the particular case.”
Landgraf, 511 U.S. at 275 n.29.        New regulations, even those that are
procedural, have an impermissible retroactive effect where their application
“would impair rights a party possessed when he acted, increase a party’s liability
for past conduct, or impose new duties with respect to transactions already
completed.” Handley v. Chapman, 587 F.3d 273, 283 (5th Cir. 2009) (internal
quotation marks and citation omitted).
      To begin, the new regulations change the nature of the law. The 1992
regulation required the government to convince a neutral psychiatrist that


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forced medication was necessary to render an inmate competent for trial before
seeking an order allowing medication in district court, a process that was
specifically aimed to protect the inmate’s substantive right to be free from forced
medication. 28 C.F.R. § 549.43; White, 431 F.3d at 435. The new regulation did
away with that provision in favor of an adversarial district court proceeding
during which a treating, non-neutral psychiatrist testifies on behalf of the
government. The Supreme Court has recognized the difference between an
adversarial proceeding and a neutral, medical process: “Common human
experience and scholarly opinions suggest that the supposed protections of an
adversary proceeding to determine the appropriateness of medical decisions for
the commitment and treatment of mental and emotional illness may well be
more illusory than real.” See Parham v. J.R., 442 U.S. 584, 609 (1979). The
government recognizes the difference between the adversarial and neutral
proceedings, but calls its effect de minimis. It is true, as the government posits,
that the inmate now has the ability to cross-examine the government’s witness
or to offer his own expert before the district court, but that proves the point: the
proceeding is now adversarial rather than neutral.                           The new regulations
changed the nature of the law.
        Indeed, it was upon this neutral proceeding that Gutierrez reasonably
relied at the district court, based on the well-settled law that agencies are bound
to follow existing regulations.7 Nixon, 418 U.S. at 695. Gutierrez rightfully


        7
          The government relies on this principle for its argument that it must apply the new regulation
on remand, even though it previously ignored its regulations when it sought a district court order to
medicate Gutierrez before exhausting its administrative remedies. The government cannot have it both
ways—ignoring a regulation when it desires and then insisting on applying a regulation it favors.
Regardless, the question of whether a new law has retroactive effect is not determined merely by what
rule is now in effect. The new rule is what gives rise to the retroactive question, not what answers it.

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expected to be afforded a determination by a neutral psychiatrist prior to the
judicial hearing. In fact, under the 1992 regulations, judicial hearings on forced
medication only occurred if, and after, the neutral psychiatrist had found that
forced medication was medically justified. Given these settled procedures,
Gutierrez’s primary argument before the district court was a challenge of the
BOP’s failure to provide him an administrative hearing. It is difficult to argue
that Gutierrez did not have a settled expectation that the old regulation would
apply when he staked his entire claim on it before the district court.8 The new
regulation upset Gutierrez’s settled expectations about how and when he could
be forcibly medicated.
        The government argues in response that the new regulation does not upset
settled expectations because it is merely a procedural rule; its argument is
unavailing, however. While it is true that there are “diminished reliance
interests in matters of procedure,” Landgraf, 511 U.S. at 275, it is also true that
“the mere fact that a new rule is procedural does not mean that it applies to
every pending case. . . . Nor do we suggest that concerns about retroactivity
have no application to procedural rules.” Id. at 274-75 & n.29. Moreover, the
general rule regarding matters of procedure applies to rules that prescribe
agency internal procedures, not to rules that protect procedural due process
rights and have substantive effect. See Handley, 587 F.3d at 283 (noting that
procedural rules apply retroactively only when no “injury or prejudice” results).

        8
          Gutierrez’s settled expectation in the neutral procedure, on which he relied to his detriment,
distinguishes this case from those cited by our dissenting colleague. Compare Handley, 587 F.3d at 283
(noting that procedural rules apply retroactively only when no “injury or prejudice” results) with NCNB
Texas Nat’l Bank v. P & R Invs., 962 F.2d 518, 519 (5th Cir. 1992) (applying a new rule that changed
the time limits for removal procedures to a pending case where the party seeking removal complied with
the new rule and was therefore not prejudiced). Moreover, the procedural rules in those cases do not
protect substantive due process rights, like the ones here.

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                                    No. 11-50146

The new regulations fall into the latter category. They were promulgated
pursuant to the Administrative Procedure Act’s (APA) notice and comment
requirements, which do not apply “to interpretative rules, general statements
of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C.
§ 553(b)(3)(A). The agency’s compliance with the APA demonstrates that the
new regulations did more than simply change the BOP’s internal procedures.
They did away with an inmate’s procedural due process provided by the old
regulation. Therefore, the general principle regarding procedural rules does not
control here, where the old regulations offered a procedural protection of a
substantive right. 28 C.F.R. § 549.43; White, 431 F.3d at 435.
      In making its argument that the regulations should apply because they
are procedural, the government relies on a recent case from the Sixth Circuit,
Combs v. Commissioner of Social Security, 459 F.3d 640 (6th Cir. 2006) (en
banc). That case is distinguishable in two respects. There, the Social Security
Administration promulgated a new rule changing the disability presumption
applicable to obese people, which went into effect during the pendency of a
plaintiff’s administrative appeal. Id. at 641. The court held that the regulation
changed “only the way in which the agency goes about determining” whether the
criteria for disability eligibility are present. Id. at 647. As such, relying on the
general principle that procedural rules do not have retroactive effect, the Sixth
Circuit held that the new presumption could be applied to the plaintiff’s claim.
Id. at 646. Here, as discussed above, the change in the regulation did not affect
how the agency determines incompetency; rather, it did away with the entire
neutral agency process.
      Further, the Combs court observed that “[n]aturally, if the [Social Security


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                                   No. 11-50146

Administration] had attempted to retry cases that had been adjudicated
previously, that might be a different story.” Id. at 649. That is exactly what
occurred here: the government is attempting to apply the new regulations on
remand after deliberately ignoring the old regulation at the first proceeding.
Indeed, in concurring in the result in Combs, Judge Gilman cautioned that, had
the rule change affected the decision because adjudication of the claim was
“particularly slow,” a person might “have a ‘settled expectation’ in an
administrative decision rendered pursuant to the former regulation.” Id. at 656
(Gilman, J., concurring). These statements reinforce our holding here, where the
agency was not merely slow in complying with the existing regulation, but
outright disregarded it. Given the existing, longstanding regulation, Gutierrez
had a settled expectation that it would be applied in his case.
      Finally, we consider the “degree of connection” between the operation of
the new rule and the relevant past event. Landgraf, 511 U.S. at 270. Accepting
that the new regulation should control on remand would allow the BOP to
pardon itself for its disregard of the old regulations—which it did before the new
regulation had gone through the rule-making process of notice and comment.
See 73 Fed. Reg. 33957. Such evasion not only deprives Gutierrez of his right to
the protections of the regulation, as discussed above, but also weakens agency
effectiveness and promotes disregard for the law. See White, 431 F.3d at 434;
Wilson Mem’l Hosp., 616 F.3d at 461. Applying the new regulation on remand
would “attach[] new legal consequences” to the incompetency procedure; as a
result, the new regulations would have improper retroactive effect. Landgraf,
511 U.S. at 270.




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                                  No. 11-50146

                                      IV.
      In light of the administrative procedures in the 1992 regulations, which
were controlling at the time the government sought to medicate Gutierrez, it was
error for the district court to make the initial determination to medicate
Gutierrez involuntarily without a BOP hearing. We therefore vacate the district
court’s order and remand with instructions to remand the case to the BOP for
a due process hearing on competency in accordance with the 1992 regulations.
We emphasize, of course, that our holding is narrowly limited to the facts and
procedural posture presented here.
      VACATED and REMANDED.




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                                  No. 11-50146



W. EUGENE DAVIS, Circuit Judge, dissenting:


                                       I.
      The majority orders a remand of this case to the Bureau of Prisons (BOP)
to hold an administrative hearing even though the regulations relied on no
longer require it. This is a formalistic “make work” hearing the majority strains
to justify. It serves no worthwhile purpose, resolves no issue in dispute, and is
expressly dispensed with by the applicable regulation currently in effect. We
should affirm the district court’s judgment ordering Gutierrez to undergo forced
medication to restore his competence for trial. I therefore respectfully dissent.
      Gutierrez was examined and treated at the BOP prison hospital in Butner,
North Carolina. As the majority recites, when these proceedings began, the
relevant BOP regulations provided for an administrative hearing before a
neutral BOP psychiatrist to determine whether it was appropriate to forcibly
administer medication to restore a defendant’s competency for trial. However,
in view of the Supreme Court’s decision in Sell, the BOP concluded that this
hearing was unnecessary. Sell v. United States, 539 U.S. 166 (2003). The
Supreme Court in Sell held that the decision whether the government could
forcibly medicate a prisoner to restore competency for trial was a call that must
be made by a United States district judge. In light of this holding, the BOP
considered that the administrative hearing was unnecessary and dispensed with
the hearing called for by the regulation then in force.
      While this case was on appeal, the BOP, consistent with its interpretation
of Sell, amended its regulation effective August 12, 2011, to abolish the


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                                  No. 11-50146

requirement for the administrative hearing which the BOP considered
duplicative and unnecessary in light of Sell. See Psychiatric Evaluation and
Treatment, 76 Fed. Reg. 40229, 40232-40233 (July 8, 2011). In this case, a
United States district judge has made the call as required by Sell and ordered
forced medication. This order was issued after a full hearing that included
essentially all of the procedural protections of a criminal trial including
providing counsel to Gutierrez.
      Now the majority insists that despite the amended regulation abolishing
the requirement for the administrative hearing, the BOP nevertheless must
provide that hearing because the previous version of the regulation required it.
The majority, therefore, requires that this case be remanded to the BOP to
provide that hearing. Two very good reasons make the duplicative hearing by
the BOP unnecessary: (1) the August 12 amendment to the BOP regulations
abolishing the requirement for this administrative hearing is a procedural
change that applies to this and all other pending cases; (2) in the full hearing
before the district court Gutierrez presented no evidence and made no argument
to challenge the evidence presented by the government that he is mentally
incompetent or that it is appropriate to forcibly medicate him. He argued that
the BOP failed to provide him the administrative hearing required by the
regulations. On appeal, that is the sole issue Gutierrez raises through his
appointed counsel, the federal public defender. Gutierrez, therefore, points to
no factual issue falling within the expertise of a BOP neutral psychiatrist that
he would raise even if he were granted this duplicative administrative hearing.




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                                    No. 11-50146

                                  DISCUSSION
                                        A.
         The case law does not support the majority’s conclusion that the
amendment to the BOP regulations does not apply to this and other pending
cases.
         Consistent with the Supreme Court’s decision in Sell, the relevant BOP
regulation was amended effective August 12, 2011 to provide that BOP
administrative hearing procedures do “not apply to the involuntary
administration of psychiatric medication for the sole purpose of restoring a
person’s competency to stand trial” because “[o]nly a Federal court of competent
jurisdiction may order the involuntary administration of psychiatric medication
for the sole purpose of restoring a person’s competency to stand trial.” Id. at
40233.
         In supplemental briefing requested by this court, Gutierrez argues that
the administrative hearing required under the old regulations should apply if
this case is remanded because to hold otherwise would result in an
impermissible retroactive application of the new regulation. The government
argues that the new regulation should apply because it affects procedure only
and does not affect Gutierrez’s substantive rights. Both parties cite to Landgraf
v. USI Film Products et al, 511 U.S. 244 (1994), as the rule that governs this
analysis. The majority has (in my judgment erroneously) accepted Gutierrez’s
argument.
         In Landgraf, a female worker filed a timely suit under Title VII of the
Civil Rights Act of 1964 alleging sexual harassment. Under statutory provisions
in effect at the time, a bench trial was held at which the district court concluded


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                                   No. 11-50146

that sexual harassment did occur. However the district court also held that the
plaintiff was not constructively discharged and dismissed the complaint because
her employment had not been terminated in violation of Title VII. While her
appeal was pending, the Civil Rights Act of 1991 was enacted. The 1991 Act for
the first time created a right to recover compensatory and punitive damages for
certain violations, including violations of Title VII, and further provided the
right to trial by jury. The statute stated that unless otherwise specified, the act
would take effect upon enactment.      The Supreme Court affirmed this court’s
rejection of the plaintiff’s argument that the amended act applied and the case
should be remanded for a jury trial under the 1991 Act.
      The Court, in a detailed discussion, gave examples of the types of cases in
which the presumption against retroactivity applies and those in which it did
not. With respect to changes in procedural rules, the Court stated:
      Changes in procedural rules may often be applied in suits arising
      before their enactment without raising concerns about retroactivity.
      For example, in Ex parte Collett, 337 U.S. 55, 71, 93 L.Ed. 1207, 69
      S.Ct. 944 (1949), we held that 28 U.S.C. § 1404(a) governed the
      transfer of an action instituted prior to that statute’s enactment.
      We noted the diminished reliance interests in matters of procedure.
      337 U.S. at 71. Because rules of procedure regulate secondary
      rather than primary conduct, the fact that a new procedural rule
      was instituted after the conduct giving rise to the suit does not
      make application of the rule at trial retroactive. Cf. McBurney v.
      Carson, 99 U.S. 567, 569, 25 L.Ed. 378 (1879).

Id. at 275. The Court contrasted other types of statutory changes where the
presumption of non-retroactive application generally applies:
      When, however, the statute contains no such express command, [of
      retroactive applicability] the court must determine whether the new
      statute would have retroactive effect, i.e., whether it would impair


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                                    No. 11-50146

      rights a party possessed when he acted, increase a party’s liability
      for past conduct, or impose new duties with respect to transactions
      already completed. If the statute would operate retroactively, our
      traditional presumption teaches that it does not govern absent clear
      congressional intent favoring such a result.

Id. at 280. The Court then applied these principles to the changes in Title VII
that were before it.
      Two provisions of § 102 may be readily classified according to these
      principles. The jury trial right set out in § 102(c)(l) is plainly a
      procedural change of the sort that would ordinarily govern in trials
      conducted after its effective date. If § 102 did nothing more than
      introduce a right to jury trial in Title VII cases, the provision would
      presumably apply to cases tried after November 21, 1991, regardless
      of when the underlying conduct occurred.

Id. at 280-81 (underlining added). Because the damages provision in § 102(b)(1)
of the 1991 statute allowing recovery for the first time of compensatory and
punitive damages were substantive changes and fell “clearly on the other side
of the line,” the entirely of §102 could only be applied prospectively. Id. at 281.
Thus the court made it clear that if the only change Congress had made in § 102
had been to grant a jury trial instead of a bench trial, this change would have
applied to proceedings conducted after its enactment regardless of when the
underlying conduct occurred or when the action was filed.
      As applied to Gutierrez, the change in the BOP’s regulations, eliminating
the requirement of an administrative hearing and confirming that the district
court would decide the propriety of forced medication to return competency for
trial, is clearly a change to a procedural rule. This amendment is analogous to
the amendment addressed in Landgraf, which allowed a jury instead of a judge
to decide fact issues in a Title VII case. The revised regulation does not alter the


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                                   No. 11-50146

standard under which the accused may be medicated to render him competent
to stand trial. It only changes the process in which that question is considered
by eliminating the BOP’s role in the process and confirming that after Sell the
district court is the sole decision maker. As in Landgraf, the amended BOP rule
applies to proceedings conducted after August 12, 2011, regardless of when the
action was filed or the underlying conduct occurred. Thus, if we remand this
case to the BOP, the amended regulation should apply.
      We followed similar reasoning in Hartford Casualty Ins. Co. v. FDIC, 21
F.3d 696, 701 (5th Cir. 1994). In that case a new statute changed the forum
authorized to review FDIC rulings regarding deposit insurance from district
courts to courts of appeal. We held that the new rule applied to a pending FDIC
receivership begun prior to the enactment of the statute so the court of appeals
had jurisdiction to review the FDIC ruling instead of the district court.
      This Court has previously recognized that principle, holding that
      amendments to statutes which affect procedural or remedial rights
      generally apply to pending cases, where such change does not
      deprive a party of its "day in court." NCNB Texas Nat'l Bank v. P &
      R Invs. No. 6, 962 F.2d 518, 519 (5th Cir.1992) (quoting FDIC v.
      232, Inc., 920 F.2d 815, 818-19 (11th Cir.1991)). "When Congress
      adopts statutory changes while a suit is pending, the effect of which
      is not to eliminate a substantive right but rather to "change the
      tribunal which will hear the case,' those changes--barring
      specifically expressed intent to the contrary--will have immediate
      effect." Turboff v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 867
      F.2d 1518, 1521 (5th Cir.1989) (quoting Hallowell, 239 U.S. at 508,
      36 S. Ct. at 202). . . . Section 1821(f)(4) changes the forum which
      hears deposit insurance disputes; it does not alter any substantive
      rights of the parties nor does it deprive any party of its day in court.
      Thus, we hold that 12 U.S.C. § 1821(f)(4) applies retroactively to
      govern this case and that this Court has jurisdiction in this appeal.



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                                   No. 11-50146

Id. at 701.
      This principle – new procedural rules should be applied to pending cases
– has been recognized and applied in pre- and post-Landgraf cases and in
multiple contexts. See NCNB Texas Nat’l Bank, 962 F.2d at 519 (Intervening
statute changing the time allowed to the FDIC to remove a case applies to
pending case.); Turboff, 867 F.2d at 1521 (New rule in Federal Arbitration Act
that barred appeal of interlocutory orders directing arbitration to proceed and
orders staying action pending arbitration applied to pending case.); Blaz v.
Belfer, 368 F.3d 501, 505 (5th Cir. 2004)(Securities Litigation Uniform
Standards Act, which provides for removal and dismissal of certain state law
securities class actions, applied to suit arising out of pre-enactment conduct.);
Ojeda-Terrazas v. Ashcroft, 290 F.3d 292 (5th Cir. 2002) (Statute and regulations
revised between petitioner’s illegal reentry and the date of Notice to Intent to
Reinstate his prior deportation order was issued. The revised statute and
regulations expanded the class subject to reinstatement of removal, removed
judicial review of the prior removal order and allowed an immigration officer,
rather than an immigration judge to determine whether reinstatement was
proper.)
      This long-standing general rule that changes in procedure apply to
pending cases is consistent with the treatment of rule changes under the Federal
Rules of Civil Procedure and the Federal Rules of Criminal Procedure. Under
Fed.R.Civ.P. 86(a)(2), new rules and amendments govern proceedings in pending
actions unless the Supreme Court specifies otherwise in its promulgating order
or the district court determines that its application is not feasible or would work
an injustice. Fed. R. Civ. P. 82(a)(2); Moore’s Federal Practice, § 86.03. The


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                                              No. 11-50146

same treatment is given to amendments to the Federal Rules of Criminal
Procedure.         Orders from the Supreme Court to Congress transmitting
amendments to the rules approved by the Supreme Court include language that
the amendment shall take effect on a given effective date and “shall govern all
proceedings in criminal cases thereafter commenced and, insofar as just and
practicable, all proceedings in criminal cases then pending.” See Orders of the
Supreme Court of the United States Adopting and Amending Rules, Federal
Criminal Code and Rules, pp. 15-25 (West 2011 Edition).
        Based on the above authority, the new BOP regulation dispensing with the
administrative hearing is a procedural rule that applies to pending cases. In the
words of the Landgraf Court, “Because rules of procedure regulate secondary
rather than primary conduct, the fact that a new procedural rule was instituted
after the conduct giving rise to the suit does not make application of the rule at
trial retroactive.” 511 U.S. at 275. Thus if we were to grant Gutierrez the relief
he requests, i.e. remand the case to the BOP, the BOP should apply the new
regulation and properly decline to hold an administrative hearing. Because a
remand would accomplish no purpose, we should affirm the district court’s
order.1
        The panel opinion implies that the change in the regulation has
substantive effects that preclude its application to this case. However, this court
in White addressing the regulations at issue in this case, stated, “The Sell Court
was addressing an inmate’s substantive right to be free from unwanted

        1
          The majority suggests that the administrative hearing could serve a purpose because if the
neutral BOP psychiatrist found it inappropriate to forcibly medicate Gutierrez, that would end the right of
the government to require medication for this purpose. No authority is cited for this proposition and Sell
certainly does not condition the district court’s authority to order forced medication on a favorable ruling
by the BOP.

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                                  No. 11-50146

medication - not the procedural protections of that right.” United States v.
White, 431 F.3d 431,435 (5th Cir. 2005) (emphasis added).
      The majority relies on general statements in the cases supporting the well
known principal that some procedural changes impair a party’s substantive
rights and do not apply to pending cases. But the majority opinion fails to cite
a single case that refuses to apply a change comparable to the change in this
case to pending cases. All the cases we have found that consider changes to the
nature of the hearing, including changes in the decision maker, have been
applied to pending cases.
      Based on the above analysis, I would hold that the new BOP regulations
in 28 C.F.R. § 549.43 would apply to Gutierrez on remand, rendering moot his
request for a hearing under the prior version of the regulations.
                                       B.
      Even if we consider that the previous version or unamended version of the
relevant regulation must apply to this case, based on this record, the remand to
the Bureau of Prisons for another hearing is an exercise without a purpose.
      In Sell v. United States, 539 U.S. 168 (2003), while the unamended version
of the regulations were in effect, the Supreme Court considered when it is
constitutionally permissible for the government to forcibly medicate an inmate
with anti-psychotic drugs to render the defendant competent to stand trial for
serious but non-violent crimes. The Court concluded that a United States
district judge may order forced medication “only if the treatment is medically
appropriate, is substantially unlikely to have side effects that may undermine
the fairness of the trial and taking account of less intrusive alternatives, is
necessary significantly to further important government trial related interests.”


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                                   No. 11-50146

The only issues laid out by the Supreme Court to which the neutral psychiatrist
could make contributions are medical issues, i.e. whether the treatment is
medically appropriate, is necessary to restore competency; is substantially
unlikely to have side effects that may undermine the fairness of the trial; and
whether less intrusive alternatives are available to restore competency.
      The two government psychiatrists who gave opinions on these issues
before the district court both concluded that the treatment was medically
appropriate, that Gutierrez had been treated with the drugs that would be used
in this case on previous occasions without serious side effects and was unlikely
to have such side effects at this time. The psychiatrists were unaware of any
less intrusive alternatives to restore competency. The psychiatrists also testified
that Dr. Newman, who would have been the neutral pscyhiatrist in the event a
hearing were held, agreed with these conclusions. Gutierrez offered no contrary
evidence before the district court. On appeal, Gutierrez does not challenge the
accuracy of these opinions. Given that Gutierrez has raised no question about
the accuracy of the resolution of the issues within the neutral psychiatrist’s
expertise, a remand for a hearing on the medical issues would accomplish
nothing.
      The defendant argues and the majority essentially holds that nevertheless
a hearing for a hearing’s sake is necessary. In sum, Gutierrez does not quarrel
with the medical testimony or the decision by the district court that forced
medication was appropriate. Under these circumstances a remand to the BOP
to consider an issue Gutierrez does not contest would be a useless exercise.




                                        29
