Sell v. United States, 539 U.S. 166, 22 (2003)

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Cite as: 539 U. S. 166 (2003)

Scalia, J., dissenting

peals proceeded to the merits of Sell's interlocutory appeal. 282 F. 3d 560 (CA8 2002). Perhaps this failure to discuss jurisdiction was attributable to the United States' refusal to contest the point there (as it has refused here, see Brief for United States 10, n. 5), or to the panel's unexpressed agreement with the conclusion reached by other Courts of Appeals, that pretrial forced-medication orders are appealable under the "collateral order doctrine," see, e. g., United States v. Morgan, 193 F. 3d 252, 258-259 (CA4 1999); United States v. Brandon, 158 F. 3d 947, 950-951 (CA6 1998). But this Court's cases do not authorize appeal from the District Court's April 4, 2001, order, which was neither a "final decision" under 1291 nor part of the class of specified interlocu-tory orders in 1292. We therefore lack jurisdiction, and I would vacate the Court of Appeals' decision and remand with instructions to dismiss.

I

After petitioner's indictment, a Magistrate Judge found that petitioner was incompetent to stand trial because he was unable to understand the nature and consequences of the proceedings against him and to assist in his defense. As required by 18 U. S. C. 4241(d), the Magistrate Judge committed petitioner to the custody of the Attorney General, and petitioner was hospitalized to determine whether there was a substantial probability that in the foreseeable future he would attain the capacity to stand trial. On June 9, 1999, a reviewing psychiatrist determined, after a 549.43 administrative hearing,1 that petitioner should be required to take

1 Title 28 CFR 549.43 (2002) provides the standards and procedures used to determine whether a person in the custody of the Attorney General may be involuntarily medicated. Before that can be done, a reviewing psychiatrist must determine that it is "necessary in order to attempt to make the inmate competent for trial or is necessary because the inmate is dangerous to self or others, is gravely disabled, or is unable to function in the open population of a mental health referral center or a regular prison," 549.43(a)(5).

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