UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

WESTON, RUSSELL


99-3016a

D.C. Cir. 1999


*	*	*


Edwards, Chief Judge: 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
com- mitted for treatment to restore competency pursuant to 18  U.S.C.
s 4241(d) (1994). As a result, the order that Weston  challenges was
never carried out and it is no longer in effect.  Accordingly, we


I. Background


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. s 4241 for a mental competency examination of  Weston.


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 defen- dant to
assist the court in determining whether the defendant  was competent
to stand trial. Dr. Johnson spent approxi- mately 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 re- lease 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.


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


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 re- tained 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. 


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.


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. s 4241(d).


II. Analysis


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, un- der 18 U.S.C. ss 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 Govern- ment does not contend that it has an absolute right to the
 appointment of an expert to conduct a competency examina- tion;
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 suggest- ed by the Government.
We need not decide the scope of the  disputed statutory provisions,
however, because the instant  appeal is moot.


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 defen- dant has been found
incompetent to proceed and has been  committed for treatment to
restore competency pursuant to  18 U.S.C. s 4241(d). In sum, the order
that Weston seeks to  challenge was never carried out and is no longer


"[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.


Weston argues, however, that the case should not be dis- missed 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)).


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
examina- tion by a Government psychiatrist to challenge that conclu-
sion. 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
Gov- ernment'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.



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 30- day 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 judg- ment.' "
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 immedi- ate appeal will be available in the
future in the event that  Weston is again ordered to undergo a
competency examina- tion by a Government mental health expert. Thus,


The Government, however, argues that Weissberger is inap- posite. 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 Govern- ment argues, Weston has already been held without
bail so  there is no loss of liberty.


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 reviewa- ble 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 Weiss- berger does not apply and the defendant must wait
until after  his conviction (if any) to obtain review, that result
will neces- sarily reflect the court's conclusion that the order at
issue is  not "effectively unreviewable on appeal from a final judg-
ment" 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.


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


III. Conclusion


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


So ordered.


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


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


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 




__________

n 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. ss 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 Wes- ton's
liberty interest in avoiding other, unauthorized, examinations.  The
putative liberty interest is in avoiding forced psychiatric evalu-
ations, although in this case the only alleged unlawful infringement 
of that interest is the examination by government-retained experts.


whether the district court was within its authority in ordering  the
examination could be effectively reviewed on appeal from  a final
judgment of conviction.2


Where the panel opinion falls down on the job, however, is  its
obliviousness to a repetition of what has just occurred in  this case,
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
defen- dant could indeed undergo many such examinations without  any
opportunity to test their validity on appeal. That unfor- tunate cycle
could be avoided by this court's undertaking to  decide the limited
question of whether Weissberger's provi- sion for an interlocutory
appeal would apply in any such  future occurrence.


If Weissberger were held to apply, the case would not be  "capable of
repetition, yet evading review," in that our deci- sion 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




__________

n 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. s 4247(b) (competency evaluation) and 
under 18 U.S.C. s 4241(d) (determination of likelihood of future 


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" stan-
dards, 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 repeti-
tion. See Maj. Op. at 5. There is good reason for that assumption. 
The Supreme Court has made it clear that the question is whether 


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 govern- ment expert; indeed
nothing suggests that it would be inap- propriate 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 appro-
priate "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 deni- als 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 




__________

n "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 expecta- tion 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 vaccinat- ing 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


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


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


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


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




__________

n 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. s 4247(b) (court may commit defendant for reason- able
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.") 


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.


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


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.


Reading Weissberger to allow appeals only where the de- fendant is
challenging his confinement could lead to incongru- ous results. A
defendant such as Weissberger, who is or- dered to undergo inpatient
evaluation, can challenge both the  psychiatric examination and the
commitment order. Howev- er, 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. Like- wise, a defendant who is
subjected to an outpatient examina- tion while in custody in a
non-psychiatric prison facility, as  Weston was, would also be unable
to challenge the examina- tion. It does not seem to me that the right
to interlocutory  appeal under Weissberger should depend on such
vagaries of  timing and location.


In fact, Weissberger makes clear that the court was con- cerned 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 prece- dent 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 be- cause "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 individu- al 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, ___ F.3d  ___, ___ 1999 WL
734700 at *6 (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 determi- nation is not separate from merits of action, and
defendant  could challenge commitment by writ of habeas corpus).


Weissberger, correctly, requires that orders requiring de- fendants 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 pro- priety has never been established.
At a minimum, Weston  deserves a meaningful opportunity for judicial
review of the  validity of these "intrusive, unwanted medical examina-
tion[s]." Weissberger, 951 F.2d at 396.


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


For these reasons, I dissent.