### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50146

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 t h e d i s trict 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 a n d i n f l i c t bodily harm on former Presidents G e o r g e W

. Bush and George H. W. Bush, in violation of 18 U.S.C. § 879; and threatening to assault and murder a Special Ag e nt of the United U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 11 , 20 11 Lyle W . Cayce Clerk

Pur suant to 5thCir . R. 47 .5, the c ourt h as det ermine d thatth is opi nio n sh oul d no t b e publi she d * andis notpr ece dent e xce pt unde r the l imite d ci rc um st anc es setfo rth i n 5th Ci r. R. 47.5 .4. 1 Case: 11-50146 Document: 00511628909 Page: 1 Date Filed: 10/11/2011No. 11-50146

States Secret Service with intent to retaliate against the agent on account of the performance of the agent’s official du t i e s , i n v i olation 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 m a de over 100 phone calls to KVUE, a television station in Austin, Texas, threatening to harm

o r k i ll former President George W. Bush, First Lady Laura Bush, T e x a s Governor Rick Perry, and his wife Anita Perry. He later left a message on the Secret Service voicemail system threatening a Secret Service agent, Pr esident Obama, former Presidents George H.W. Bush and G eorge 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 Men t a l Health Department at the Butner Federal C o rrectional Complex in Butner, North Carolina. The staff diagnosed him wit h s c h izophrenia, undifferentiated type, observing tha t 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 h i s s c h i z o p h r e n i a , h i s t reatment 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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medication after a Bureau of Prisons (BOP) hearing if a person i s a d anger 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) requi r ed 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). Here, 1 the Harper hearing was c onducted by Dr. Ralph Newman. Dr. Newman submitted a report concluding that forcible medication for dangerousn e s s was

n o t w a r r a n t ed. He was not asked to, and did not, consider whether forcibl e medication was warranted under Sell v. United States , 539 U.S. 166 (2003), to render Gutierrez competent to stand trial for serious, but nonviol e n t , c r imes. 2 The government then moved the district court for a medical examination and a d e termination 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, Willi a m s o n a n d 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

Cit at ion s t o 28 C.F.R. § 549 .43 thro ughout wil l b e t o the o ld re gulat ionre qui ri ng a BOP 1 heari ng, not to the new ver si on o f the r egulat ion s.
T he S upr eme Courtin Sell hel d that , as a matt erof sub st ant ive due pr oce ss, th e Con stituti on 2 permit s the government t o admini st erfo rc ibl e medic at ionto re nde r adef end antcompete nt to st andtr ia l onl y when i t e st abl is hes fi rs t, thatimport antgovernment alinte re st s are atst ake; s eco nd, thatinvolunt ary medi cat ionwil l s ignif

ic ant ly furthe r thos e i nte re st s; th ir d, thatinvolunt ary medi cat ionis nec ess ary to furthe r thos e i nte re st s; andfo urth, thatadmini strati on o f the drugs i s medic al ly appr opriate . 53 9 U.S. at 180-81. 3 Case: 11-50146 Document: 00511628909 Page: 3 Date Filed: 10/11/2011No. 11-50146

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 b e unlikely to restore Gutierrez to competency and that forcible medication was medically appropriate. At t he Sell hearing, the district court heard testimony from D r . Williamson. She testified that Gutierrez had responded favorably to treatment in the past without notable side effects, and it was expected t h a t h e would respond beneficially to the same treatment, again without side effects. She also t e s t ified that there was no probability that Gutierrez would be restored t o competency without medication. Dr. Newman did not testify; nor did any other psychiatrist not i nv o lv e d i n G u t i e rr e z ’ s treatment. Gutierrez offered no evidence

a nd stated that he would offer “no contrary testimony with regard to ” t h e Se l l 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 b ecause 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 fin d i n g s o f f act 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. In the alternative, the government argues that, even if the 1992 3

r e g u l a t i ons were still viable at the time it sought to medicate Gutierrez, i t s failure to comply should be excused because a BOP hearing would be futile given the specific facts of this case. A. Cr i m i nal defendants have a significant liberty interest in avoiding the administration of unwanted medication. Id. As such, prison officials may only administer unwanted medication f o r 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).

T hes e pr opos ed r egulat ion s have now be en a dopt ed, ef fe ct ive August12, 2011

. SeePsychi atri c 3 Evaluati on and T re atment , 76 Fed. Reg. 4022 9, 40 232-40233 ( July 8, 2 011) . Foradd it ion aldi scu ssi on o f the se new r egulat ion s, s ee part II .B. an d III

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The processes laid out in the 1 9 9 2 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,” t h e 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 st a f f r e presentative. Id. at § 549.43(a)(2). The hearing officer must have been “a psychiatrist who is not currently involved in the di a g n o s i s or treatment of the inmate,” id. at § 549.43(a)(3), and must have made a determination that medication w a s necessary for the reason for w h i c h i t i s b e ing sought, id. at § 549.43(a)(5). In addition, the inmate’s treating psychiatrist must have been p r e s e nt 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 decis i o n , w hich would then be given to the inmate, who had the right to appeal the decision to

a faci l i t y a d m i nistrator. Id. at § 549.43(a)(5), (6). As we recognized in White ,

“ the unequivocal, mandatory language of the regulation

. . . is spec i f i c a l l y tailored to protect the inmate’s due process rights.” 431 F.3d at 434. The govern m e n t concedes that it did not conduct an administrative hearing on competency. It is undisputed that Dr. Newman, the hearing officer at the admin i s t r a t i v e hearing and the only psychiatrist to participate in the h e a r ing who was not involved in Gutierrez’s treatment, considered o n l y dangerousness and recommended that Gutierrez not be medicated. Rather than simultaneously seek i n g 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 reg ulations, 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 a n d t o h ave 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 evide n c e t o a hearing officer, not involved in his treatment, tasked with determining whether medicat i o n 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 m e d i cating 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 dis t r ict 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 i n 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 c o nsider whether involuntary medication is appropriate on grounds of dangerousness before considering whether doing so wo uld be appropriate to restore an inmate’s competence to stand trial.” Id. at 435. 4

In Sell , th e Supre me Courtnot ed thatth e dangerou sne ss inquiry is more “ obj ect ive an d 4
mana geable ” thanth e c om pet enc y quest ion . 53 9 U.S. at 1 82. Because medi cat ing an inmate to al le viate dan gerous nes s wi llof

te n do away with the n eedto do s o f or compete ncy, th e Courtre qui re d the BOP to 7 Case: 11-50146 Document: 00511628909 Page: 7 Date Filed: 10/11/2011No. 11-50146

Before resolving White on the second ground, however, we considered whether Sell had over r u l e d t h e 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 he r e , t h at 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 Se l l 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.” Id. ; see also Morgan , 193 F.3d at 260.

5 Admitting that Sell

did not overrule the 1992 regulations explicitly, the government here asks that we be the first court to hold tha t i t d i d 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

con si derth e dangerou sne ss que stionfi rs t. Id.
T his is parti cul arly so b ecause th e Courtre cognized i n Sell th atth e BOP c om

pli ed wi th the 5 1992 re gulat ion s. See 539 U.S. at171 (n oti ng thatitwas re viewin g the l astof “f ive hi er ar chi cal ly ord er ed l owercourtandMe dic alCent er det erminati ons ”) . It wo uldbe odd ind eedfo r the Co urtto overrule th ose re gulat ion s whe n i t wa s no t p re sente d wi th a c om pla intabo ut the m
. T he government h as routi nel y advancedth is ar gumentindi stri ctcourtpr oce edi ngs, butithas 6 bee n co nsi st ent ly re

j ect ed, exc eptinth e i nst antca se. See, e.g
. , United States v. Brook s , Cri m . No. 0 5- 338, 201 0 W L 394 2720 , at*8 ( W.D. Pa. S ept . 30, 201 0); United States v. Ri cha rds on , No. 3 :08

- cr - 302-J8 Case: 11-50146 Document: 00511628909 Page: 8 Date Filed: 10/11/2011No. 11-50146

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 coul d , consistent with the Constitution and substantive due p r o c e s s , be forced to receive medication. Sell , 539 U.S. at 176. In those rare cases in whic h 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 involve d i n 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 p urposes of exhaustion of administrative remedies, it should never have been required to give Gutierrez

a BOP hearing. W e h a v e already rejected that argument, holding that, “[a]lthough § 4241 does not expressly m a n d a te exhaustion of administrative procedures, ‘the jurisprudential doctrine of exhaustion [st i l l] c o ntr o l s , ’” given the
purposes of exhaustion. White , 431 F.3d at 434 (quoting Taylor v. U.S. Treasury

32T EM, 200 9 W L 473 0563 , at*2 ( M.D. Fla . Dec . 7, 2 009) ; United States v. M illiken , No. 3 05- CR6J

32T EM, 200 6 W L 294 5950 , at*3 ( M.D. Fla . Oct . 13, 200 6); United States v. Al gere , 457 F. Supp. 2 d 695, 698 (E. D. La. 2005 ) ( not ing th atth e di stri ctcourthadpr evious ly deni ed the government’ s motio n forinvolunt ary medi cat ionbec aus e the 1 992 re gulat ion s r equ ir e the c om pet enc y quest ionto be made fi rs t “i n the c ont extof

an adminis tr at ive he aring,” wh ic h the government h ad n ot done ); United States v. Bara jas -To rres , No. CRIM.E P- 03- CR- 2011 K C, 200 4 W L 159 8914 , at*1 n .2 ( W.D. T ex. July 1, 2 004) ; seeal so Un ited States v. Gonzalez- Agui lar , 446 F. Supp. 2 d 10 99, 1 104-06 (D. Ar iz. 200 6) (de nying the BOP’s re que stto fo rc ibl y medi cat e the i nmat e be cau se ithadnotfo ll owed adminis tr ative pr oce sse s) . In al l o f thos e c ase s, the government f ai le d t o f oll ow the 1 992 re gulation s, and the d is tric t c ourts re mand ed the ca ses fo r f

ai lur e t o exhau st

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Dep’t , 127 F.3d 470, 475 (5th Cir. 1997)) (a l t e r a t ion in original). Here, for example, the district court did not have t h e benefit of a fully-developed administrative record of the relevant medical considerations to i n f o r m 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 c o m petency does not change the result here. Those proposed amendments had not yet been adopted. While t h e 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

u n c hanged, proceed without regard to them.” Service v. Dulles , 354 U.S. 3 6 3 , 388 (1957) (relied upon by Morgan , 193 F.3d at 266-67, in vacating a district court order allowing forcible m e d i c a t ion). 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. 197 9 ) ; s e e U n i ted 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 i t s o w n 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 alternativ e l y a r g ues that its failure to comply with the 1992 regulations should be excused because remanding the case t o the BOP

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would be futile given the particular facts of this case. A court should “excuse the failure to exhaust administrative procedure s 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 t h e a d m i n istrative process.” White , 431 F.3d at 434; see Dawson Farms, LLC v. Far m Serv. Agency , 504 F.3d 592, 606 (5th Cir. 2007). The governme n t a r g u e s that “it would serve no purpose to remand for an

a d m inistrative BOP hearing,” because Gutierrez only challenges the first Se l l 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 determini n g w h e t h er 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 ev e n d i scussion 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 ( 5 t h 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 f

o r c i b l y 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. F u rth e r , i n d e t ermining futility, the question is whether “these proce du r e s would have been inadequate or futile had [they] been timely and d i l igently pursued ,” n o t w hether 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 w o u l d be futile to require a federal prisoner to exhaust administrative processes because he was seeking only money damag e s , w h i ch 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, t h e F i f t h Circuit has excused exhaustion when the remedy provided was by a review body that “does not exist and, in fact, has not existe d s i n c e 1 981, 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, t h e g o v ernment does not point to any institutional inadequacy. Rather, the 1992 regulations set forth an administrative process well equipped to make the relevant medica l d e t e r m i n ations. Consistent with the regulations, the government coul d have requested that the BOP consider medicatio n f

o r c o m p e tency alongside dangerousness. Requiring the government to do so would not be futile. Nor does the fact that the proposed regulations have now been ado pted constitute an extraordinary circumstance excusing the government’s failure to follow the old ones. The gov e r n m e nt argues in essence that no consequences

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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 t o f l o u t 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 th e g o v e rnment 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

c i r c u m s t a nces” 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 t o c o n s i der 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 th at [they do] not govern.” Landgraf v. USI Film Prods. , 511 U.S. 244, 280 (1994). Retroactivity analysis is a matter o n which judges tend to have “sound instincts” and req u ires a “commonsense, functional judgment” regarding

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“whether the new provision attaches new leg a l c o n s e qu e n c e s t o e v e n t s c ompleted bef o re 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 th e l a w a n d the degree of connection between the operation of the new rule and a relevant p a st event.” Landgraf

, 511 U.S. at 270. I n m a k ing this determination, we are guided by “familiar considerations of fair noti c e , reasonable reliance, and settled expectations.” Id. Here, we look to the government’s request that Gutierrez be f o r c ib l y m e di cated, which is “the relevant conduct regulated by the [regul a t i o n s ] ” and completed before the adoption o f t he regulations. See Republic of Austria v. Altmann , 541 U.S. 677, 697-98 (200 4). 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 applicatio n to procedural rules.” Landgraf , 511 U.S. at 274-75 & n.29; Sh i

pes v. Trinity Indus. , 31 F.3d 347, 349 (5th Cir. 1994). The applicability of procedural rules depends on “the posture of the particular case.” L andgraf

, 511 U.S. at 275 n.29. New regulations, even those that a r e proce d ural, have an impermissible retroactive effect where their application “would impair rights a party possessed when he acted, increase a party’s liability for past c o n d u c t, or impose new duties with respect to transactions already completed.” Handley v. Chapman , 587 F.3d 273, 283 (5th C i r. 2009) (internal quotation marks and citation omitted). To begin, the new regulations change the nature of the l a w . The 1992 regulation required the government to conv ince a neutral psychiatrist that

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forced medication was necessary to render an inmate competent for trial before seeking an order a l lowing 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 p r o ceeding during which a treating, non-neutral psychiatrist testifies on behalf of the government. The Supreme Court has recognized the difference b e t w een an adversarial proceeding and a neutral, medical process: “Common human

e x perience and scholarly opinions suggest that the supposed protections o f a n adversary proceeding to determine the appropriateness of medical decisions for the c o m m i t m e n t and treatment of mental and emotional illness may well be

more illusory than real.” See Parham v . J

. R

. , 4 42 U.S. 584, 609 (1979). The government recognizes the differen c e b e tween 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 t h at Gutierrez reasonably relied at the district court, based on the well-settled law that agencies are bound to follow existing regulatio n s . Nixon , 418 U.S. at 695. Gutierrez rightfully 7

T he government r el ie s onth is princ ipl e f or it s argumentth atitm

ustapp ly the new r egulat ion 7
on r emand, even though i t p re viousl y ignoredit s r egulat ion s whe n i t s ought adi stri ctcourtor derto medi cat e Gut ie rr ez bef

ore exh aus ti ng its admini strati ve remedie s. T he government c ann ot have i t b oth ways—i gnori ng a re gulat ionwhenitdes ir es andth en i nsi st ing on appl ying a re gulat ionitfavors. Regardl ess , th e qu est ionof whethera n ew l aw ha s r etroa ct ive ef fe ctis notdet ermine d merel y by what rul e i s no w inef

fe ct . T he n ew rule is whatgives ri se to the re tr oac ti ve ques ti on, n ot whatans wer s i t. 15 Case: 11-50146 Document: 00511628909 Page: 15 Date Filed: 10/11/2011No. 11-50146

expected to be afforded a determination by a n e u tral psychiatrist prior to the judicial hearing. In fact, under the 1992 regulations, judicial hearings on forced medication only o c curred if, and after, the neutral psychiatrist had found that force d m e d i c ation was medically justified. Given these settled procedures, Gutierrez’s primary argument before the district court was a chall e n g e o f t he 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. The new 8 regulation upset Gutierrez’s settled expectations about how and when he could be forcibly medicated. The go v e r n m e nt argues in response that the new regulation does not upset settl e d e x p e ctations because it is merely a procedural rule; its argument is

u n a v ailing, however. While it is true that there are “diminished relianc e interests in matters of procedure,” Landgraf , 511 U.S. at 275, it is also true that

“ t h e m e r e fact that a new rule is procedural does not mean that it applies to every pending case. . . . Nor do we suggest that concerns ab o u t r etroactivity have no application to procedural rules.” Id. at 274-75 & n.29. Moreover, the general rule rega r d i n g matters of procedure applies to rules that prescribe agency internal procedures, not to rules that protect procedural due pr o cess rights and have substantive effect. See Handley , 587 F.3 d a t 283 (noting that procedural rules apply retroactively only when no “injury or prejudice” results).

Gut ie rr ez’s s ettl ed e xpe ct at ioninth e ne utr alpr oce dur e, o n whi ch h e r el ie d t o hi s de tr iment, 8 dis ti nguish es thi s c ase fr om th ose ci te d by ourdi sse nti ng coll eague. Compare Han dle y , 587 F.3dat283 (no ti ng thatpr oce dur alru le s appl y retroa ct ively onl y when no “i nj ury orpr ej udi ce” re sul ts ) with NCNB Tex as Na t’ l Ba nk v. P &R I nvs
. , 962 F.2d518 , 519 (5 th Cir . 199 2) (appl ying a new rule th atchanged the ti me l imits fo r r emovalpr oce dur es to a pe ndi ng case wher e the p arty see king removal c om pli ed wi th the new rule andwas th er ef ore notpr ej udi ced). Mo re over, the p roc edura l rule s i n thos e c ase s do not pro te ctsub st ant ive due pr oce ss ri ghts, l ike the o nes her e. 16 Case: 11-50146 Document: 00511628909 Page: 16 Date Filed: 10/11/2011No. 11-50146

The new regulations fall into the latter category. They were pro m u l g a t e d pursuant to th e A dministrative Procedure Act’s (APA) notice and comment requirements, which do not apply “to interpretative rules, gener al 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 A PA d emonstrates that the

new regulations did more than simply change the BOP’s internal procedures. They did away with an inmate’s procedural due process prov i ded by the old regulation. Therefore, the general principle regarding procedural rules does not control here, where the old regul a t i o n s offered a procedural protection of a substantive right. 28 C.F.R. § 549.43; White , 431 F.3d at 435. In making i t s a r g u ment that the regulations should apply because they

are procedural, the government relies on a recent case from the Six t h C i r c uit, Co m b s 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 appli c a b l e t o 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 d etermines incompetency; rather, it did away with the entire neutral agency process. Further, the Combs co u rt ob s e rved that “[n]aturally, if the [Social Security

17 Case: 11-50146 Document: 00511628909 Page: 17 Date Filed: 10/11/2011No. 11-50146

Administration] had attempted to retry cases that had b e e n a d judicated previously, that might be a different s t o r y . ” Id. at 649. That is exactly what occurred here: the government is attem p ting 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 affe c t ed the decision because adjudication of the claim was “particularly slow,” a person might “have a ‘settled expectati o n ’ i n an administrative decision rendered pursuant to the former regulation.” Id. at 656 ( G i l m a n , J

. , c o n c urring). These statements reinforce our holding here, where th e agency was not merely slow in complying with the existing r e g u l a t i o n, 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 wo u ld 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-ma k i n g p r ocess 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 in c o m p e tency procedure; as a result, the new regulations would have improper retroactive effect. Landgraf , 511 U.S. at 270.

18 Case: 11-50146 Document: 00511628909 Page: 18 Date Filed: 10/11/2011No. 11-50146 IV. In light of the administrative procedures in the 1992 regulati o ns, which

were controlling at the time the government sought to medicate Gutierrez , i t w a s

error for the district court to m a k e t h e 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 cas e 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.

19 Case: 11-50146 Document: 00511628909 Page: 19 Date Filed: 10/11/2011No. 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 r e gulations 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 a p p l i c a b le 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 h o s p i t al in Butner, North Carolina. As th e m aj o r ity recites, when these proceedings began, the relevant B O P r e gulations provided for an administrative hearing before a neutral BOP psychiatrist to determine whether it was a p p r o p r i ate 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 w a s unnecessary . Sell v. United States , 539 U.S. 166 (2003). The Supreme Court in Sell held that the decision whe t h e r the government could forcibly medicate a prisoner to restore competency for trial was a call that must be made b y a United States district judge. In light of this holding, the BOP considered that the administrative hearing was un n e c e s s a ry a n d 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 Au g u s t 1 2, 2011, to abolish the

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requirement for the administrative hearing which th e BOP considered duplicative and unnecessa r y i n light of Sell. See Psychiatric Evaluation and Treatment, 76 Fed. Reg. 40229, 40232-40 2 3 3 (J u l y 8, 2011). In this case, a Un ited 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 t h e p r o c edural protections of a criminal trial including providing counsel to Gutierrez. Now the majority insists that despite the amended regulation abolishing the requir e ment 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 remande d t o t h e BOP to provide that hearing. Two very good reasons make the duplicative hearing by the BOP unnecess a r y : ( 1 ) the August 12 amendment to the BOP regulations abolishing the requirement for this administrat i v e hearing is a procedural

c h a n g e that applies to this and all other pending cases; (2) in the full hear i n g before the district court Gutierrez presented no evidence and made no argument to challenge the evidence p r e s ented 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 administr a t i v e hearing required by the regulations. On appeal, that is the s o l e i s s ue 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.

21 Case: 11-50146 Document: 00511628909 Page: 21 Date Filed: 10/11/2011No. 11-50146 DISCUSSION A. The case law does not support the majority’s conclusion t hat the amendment to the BOP regulations does not apply to this and o t her pending

cases. Consistent with the Supreme Court’s decisio n in Sell , the relevant BOP regulation was amended effective Au g u s t 1 2 , 2011 to provide that BOP administrative hearing procedures do “not a p p l y 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 o f r e storing a person’s competency to stand trial.” Id. at 40233. I n supplemental briefing requested by this court, Gutierrez argues t h a t th e a dministrative hearing required under the old regulations should apply if this cas e i s r e m anded because to hold otherwise would result in an impermissible retroactive application of the new regulation. The government argues that the new regulation should apply b e c a u s e 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 govern s t h is analysis. The majority has (in my judgment erroneously) accepted Gutierrez’s argument. In Landgraf

, a female worker filed a t i m e l y s u i t 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

22 Case: 11-50146 Document: 00511628909 Page: 22 Date Filed: 10/11/2011No. 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 employme n t h a d n o t 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 enactm e n t

. 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 retr o a c t i v i t y 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 ab o u t r e tr o activity. For example, in Ex parte Collett, 337 U.S. 55, 71, 93 L.Ed. 1207, 69 S.C t

. 9 4 4 (1949), we held that 28 U.S.C. § 1404(a) governed the transfer of an action instituted p r i or to that statute’s enactment. We noted the diminished reliance interests in matters of procedure. 337 U.S. at 71. Because rules o f p r o c edure regulate secondary
r a ther than primary conduct, the fact that a new procedural r u l e was instituted after the conduct giving ris e t o 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 type s o f s t a tutory 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 de t e r m i n e whether the new statute would have retroactive effect, i.e., whether it would impair

23 Case: 11-50146 Document: 00511628909 Page: 23 Date Filed: 10/11/2011No. 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 alread y c o mpleted. 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. T h e j u r y 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 effe c t i ve date. If § 102 did nothing more than introduce a right to jury trial in Title VII cases, the provision would presumably app l y t o c a s e s t ri e d 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 f o r t h e 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 tria l i nstead 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 t he requirement of an administrative hearing and confirming that the distr i c t 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

24 Case: 11-50146 Document: 00511628909 Page: 24 Date Filed: 10/11/2011No. 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 underly i n g 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 c ase a new statute changed the forum authorized to review FDIC rulings regarding dep o s i t i n surance 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 p r e v iously recognized that principle, holding that amendments to statutes which affect procedural or remedial rights generally apply to pending cases, where such c hange 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) (quoti n g 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 t o " c hange the tribunal which will hear the case,' those cha nges--barring specifically expressed intent to t h e 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

. C t. 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 retr o a ctively to govern this case and that this Court has jurisdiction in this appeal.

25 Case: 11-50146 Document: 00511628909 Page: 25 Date Filed: 10/11/2011No. 11-50146

Id. at 701. This principle – new procedural rules should be applied to pending cases

– has been recognized and applied in pre- a n d post- Landgraf cases and in multiple c ontexts. 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 b a rred appeal of interlocutory orders directing arbitration to proceed and

o r d e rs staying action pending arbitration applied to pending case.); Blaz v . Belfer , 368 F.3d 501, 505 (5 t h 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-enactm e n t c onduct.); Ojeda-Terrazas v. As h c rof t , 2 9 0 F

. 3 d 292 (5th Cir. 2002) (Statute and regulations revised between p e t i t i oner’s illegal reentry and the date of Notice to Intent to Reinstate his prior deportation order was issued. The r e v i sed statute and regulations expanded the class subject to re i n s tatement of removal, removed j udicial review of the prior removal order and allowed an immigration o f f i c e r , rather than an immigra t i o n judge to determine whether reinstatement was proper.) Th i s l ong-standing general rule that changes in procedure apply to pending cases is consistent with the treatment of rule changes under the Federal Rules of C ivil Procedure and the Federal Rules of Criminal Procedure. Under F e d

. R .Civ.P. 86(a)(2), new rules and amendments govern p r o c e e di n g s i n p e n di n g 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

. C i v . P. 82(a)(2); Moore’s Federal Practice, § 86.03. The

26 Case: 11-50146 Document: 00511628909 Page: 26 Date Filed: 10/11/2011No. 11-50146

same treatment is given to amendments to the Federal Ru l e s of Criminal Pr ocedure. 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 commence d 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 Ru l e s , Federal Criminal Code and Rules, pp. 15-25 (West 2011 Edition). Based on the above authority, the new BOP regulati o n di s p e n sing with the administrative hearing is a procedural rule that applies to pending cases. In the words of th e L a n dgraf 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. r e m a n d the case to the BOP, the BOP should apply the new regulation and properly decline to hold a n a d m i nistrative hearing. Because a remand would accomplish n o 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

wa s a d d ressing an inmate’s substantive right to be free from unwanted

T he maj ori ty sugg est s thatth e a dmini strati ve hear ing cou ld serve a purpos e be cau se if th e 1
neutr alBOP ps ychiatri stfo und itin app rop ri at e t o f orc ibl y medi cat e Gut ie rr ez, that wo uldendth e right o f the governmentto re qui re medi cat ionfo r this purpos e. No authority is c it ed f or thi s pr opos it ionand Sell certa inl y does n ot con dit ionth e di stri ctcourt ’s authority to or derfo rc ed medic at ionon afavorabl e ruli ng by the BOP. 27 Case: 11-50146 Document: 00511628909 Page: 27 Date Filed: 10/11/2011No. 11-50146

medica t i o n - n ot the procedural protections of that right.” United States v. White , 431 F.3d 431,435 (5th Cir. 200 5) (emphasis added). The majority relies on general statements in the cases supporting the well known principal that some procedural changes impair a party’s su b stantive rights and do not apply to pending cases. But the majority opinion fails to cite

a single case that refuses to a p p l y a c h a n ge 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 ch a n g e s i n 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 re g u l a t ions 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 competen t t o s tand trial for

s e r i ous but non-violent crimes. The Court concluded that a United Sta t e s district judge may order forced medication “only if the t r e a t m ent 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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The only issues laid out by the Supreme Court to which the neutral psychiatrist could make contr i butions are medical issues, i.e. whether the treatment is medically appropriate, is necessary t o restore competency; is substantially unlikely to have side effects that may undermine th e fairness of the trial; and whether less intrusive alternatives are available to restore competency. The two government psychiatrists who gave opinions o n these issues before the district court both concluded that the treatmen t w a s m edically 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 unaw a re of any less intrusive al t e r n a t iv e s t o r e s t o r e c ompetency. 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 neu t r a l psychiatrist’s expertise, a r e m a n d for a hearing on the medical issues would accomplish nothing. The defendant argues and the majority essent i a l l y h o lds 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 Case: 11-50146 Document: 00511628909 Page: 29 Date Filed: 10/11/2011