IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10274

SEALED APPELLEE, 

 Movant - Appellee

v.

SEALED APPELLANT, 

 Respondent - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:13-CV-953

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

In a challenge to being civilly committed pursuant to 18 U.S.C. § 4245, 

Sealed Appellant, a federal prisoner, claims the statutorily required

preponderance-of-the-evidence standard for such commitments violates the 

Fifth Amendment’s Due Process Clause, which, she contends, requires clearand-convincing evidence. AFFIRMED. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 10, 2015

Lyle W. Cayce

Clerk
No. 14-10274

2

I.

Appellant is serving a 216-month sentence in a federal medical center in 

Carswell, Texas. Transferred to Carswell after exhibiting mental defects, she 

initially responded positively to medication, but later regressed after refusing 

treatment. Carswell staff evaluated her and concluded her behavior imperiled 

her health.

After the Government filed in district court a certificate of mental 

disease or defect, and requested a hearing to determine Appellant’s mentalhealth status, see 18 U.S.C. § 4245(a), (d), the district court appointed an 

attorney to represent her. During the hearing, Appellee submitted evidence, 

including testimony by Carswell’s chief of psychiatry (chief), to show Appellant 

suffered from a mental illness. Appellant presented no evidence and stipulated 

to the admission of the documentary evidence, including the mental-health 

evaluation the chief had performed on Appellant; Appellant expressly did not 

question the chief’s being qualified to present the opinions contained in that

evaluation. Finding, by the statutorily required preponderance of the 

evidence, that Appellant suffered from a mental disease or defect and needed 

treatment, the court ordered her civilly committed. 

II. 

In Addington v. Texas, 441 U.S. 418, 432–33 (1979), the Court held the 

Fourteenth Amendment’s Due Process Clause requires a clear-and-convincing 

evidentiary standard for the indefinite commitment of a non-incarcerated

person with a mental illness. The next year, in Vitek v. Jones, 445 U.S. 480, 

491–94 (1980), the Court held “involuntary commitment to a mental hospital 

is not within the range of conditions of confinement to which a prison sentence 

subjects an individual” and that such deprivation “requires procedural 

protections”. And, in Jones v. United States, 463 U.S. 354, 366–68 (1983), the 
No. 14-10274

3

Court upheld an indefinite civil commitment, based on a preponderance of the 

evidence, for a defendant found not guilty by reason of insanity. Thereafter, 

Congress codified different evidentiary standards in its civil-commitment 

statutes: §§ 4245 (preponderance of the evidence) and 4246 (clear-andconvincing evidence for civil commitments of persons whose sentences are 

about to expire). See Pub. L. No. 98–473, 98 Stat. 1837 (1984). 

Appellant relies on these Supreme Court opinions in claiming the more

demanding, clear-and-convincing-evidence standard is constitutionally 

required in § 4245 actions. Along that line, and for the § 4245 proceeding at 

hand, the Government, upon the request of the director of the facility in which 

an inmate is located, may move in federal court for a hearing on an inmate’s

mental condition. 18 U.S.C. § 4245(a). The court “shall grant the motion if 

there is reasonable cause to believe that the person may presently be suffering 

from a mental disease or defect for the treatment of which he is in need of 

custody for care or treatment in a suitable facility”. Id. The court may order 

a psychiatric or psychological examination of the inmate, and he shall be 

represented by counsel at the hearing if he is financially unable to obtain 

adequate representation. Id. §§ 4245(b)-(c), 4247(d). Furthermore, the inmate 

“shall be afforded an opportunity to testify, to present evidence, to subpoena 

witnesses on his behalf, and to confront and cross-examine witnesses who 

appear at the hearing”. Id. § 4247(d). “If, after the hearing, the court finds by 

a preponderance of the evidence that the person is presently suffering from a 

mental disease or defect . . . , the court shall commit the person to the custody 

of the Attorney General”. Id. § 4245(d) (emphasis added). 

As noted supra, this regime differs from the civil-commitment 

requirements in § 4246, which is not at issue here and which requires showing, 

by clear-and-convincing evidence, that a person in the custody of the Bureau 
No. 14-10274

4

of Prisons whose sentence is about to expire suffers from a mental disease or 

defect. Furthermore, although Appellant, in her opening brief here, challenged 

the civil-commitment order on the basis it could be interpreted as authorizing 

forced medication, the Government responded that it did not request that 

procedure. Accordingly, in her reply brief, Appellant abandoned that issue. 

For the reasons that follow, and because the evidence before the district 

court satisfies both the preponderance and clear-and-convincing evidentiary 

standards, the constitutionally required standard need not be decided. See 

Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., 

concurring) (courts should avoid deciding constitutional questions where 

possible); see also Sealed Appellee 1 v. Sealed Appellant 1, 767 F.3d 418, 424–

25 (5th Cir. 2013) (pretermitting the constitutional issue regarding the 

required evidentiary standard in a § 4245 action where the evidence satisfied 

either standard). 

For the evidentiary challenge to § 4245, the parties assert the standard 

of review is de novo because Appellant raises a constitutional question

regarding the required evidentiary standard, and cite Sealed Appellee 1

(involving a challenge to statutory interpretation) for support. However, 

because we need not reach the constitutional question and affirm the order 

under either standard based on the district court’s findings of fact and 

conclusions of law, those findings are reviewed for clear error; the conclusions, 

de novo. See, e.g., United States v. Dennis, 189 F.3d 466, 1999 WL 511352, at 

*1 (5th Cir. 22 June 1999) (unpublished). In that regard, “application of the

incorrect burden of proof by the district court is subject to harmless error 

review”. Sealed Appellee 1, 767 F.3d at 424. “Use of the preponderance burden 

of proof when clear and convincing evidence is mandated may require reversal, 

but it may be harmless error when the evidence is substantial and undisputed” 
No. 14-10274

5

and the challenger fails to show it is reasonably likely her substantial rights 

were affected by the error. Id. at 424–25. A preponderance of the evidence 

“means that the fact [to be] proved is more likely than not. ‘Clear and 

convincing’ is a higher standard and requires a high probability of success”. 

Id. at 424 n.26 (alterations in original, citation, and internal quotation marks

omitted).

Concerning the district court’s findings, Appellant presents two 

challenges: according to the chief, her condition improved when she faithfully 

took her medication; and, according to Appellant, she does not suffer from a 

mental illness. The evidence, however, overwhelmingly supports affirming the 

civil-commitment order. 

The chief testified, uncontradicted by Appellant, that: she has a mental 

condition; although Appellant responded well to psychiatric medication that

resolved many of her symptoms, Carswell staff twice had to employ “calculated 

uses of force to give her medication”; and Appellant required commitment 

because of a “never ending” history of recidivism—her symptoms would abate 

while on medication, but she inevitably would stop taking the medication at 

some point, and her symptoms would return. During the competency hearing, 

Appellant denied suffering from a mental condition, contrary to the chief’s

testimony; but, the chief testified it is “very unlikely” Appellant would “gain 

. . . insight” into her condition “with continued treatment”. 

The mental-health evaluation explained how Appellant would, inter alia: 

“ritualistically throw[] much of her food in the toilet [thereby] adversely 

impacting her health and obstructing the plumbing system”; “refuse[] to 

shower”; and hoard and smear urine around her cell. The evaluation states 

Appellant’s health was suffering as a result of: poor food intake;

noncompliance with medical assessments and treatment of a severe and 
No. 14-10274

6

worsening iron deficiency (anemia); and failure to engage in basic hygienic 

practices. This uncontroverted evidence clearly and convincingly shows 

Appellant suffers from a mental condition. 

Although the chief noted Appellant “functions very well” on medication 

and “doesn’t present as someone who is suffering from . . . a mental condition”, 

the parallel facts in Sealed Appellee 1, in which this court found clear-andconvincing evidence supporting civil commitment, show the court did not err 

in ordering Appellant civilly committed. In Sealed Appellee 1, appellant: 

denied she had any medical problems despite being diagnosed with and treated 

for several; refused to take medication due to a mental condition; believed 

psychotropic drug treatment caused her medical problems; refused necessary 

treatment when her mental illness was not being treated; and was in grave 

physical danger without treatment. 767 F.3d at 425. For the same and similar 

reasons, the evidence at hand clearly and convincingly supports the civilcommitment order at issue. 

III. 

For the foregoing reasons, the civil-commitment order is AFFIRMED.