Sell v. United States, 539 U.S. 166, 23 (2003)

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Scalia, J., dissenting

antipsychotic medication, finding the medication necessary to render petitioner competent for trial and medically appropriate to treat his mental illness. Petitioner's administrative appeal from that decision 2 was denied with a written statement of reasons.

At that point the Government possessed the requisite authority to administer forced medication. Petitioner responded, not by appealing to the courts the 549.43 administrative determination, see 5 U. S. C. 702, but by moving in the District Court overseeing his criminal prosecution for a hearing regarding the appropriateness of his medication. A Magistrate Judge granted the motion and held a hearing. The Government then requested from the Magistrate Judge an order authorizing the involuntary medication of petitioner, which the Magistrate Judge entered.3 On April 4, 2001, the District Court affirmed this Magistrate Judge's order, and it is from this order that petitioner appealed to the Eighth Circuit.



Petitioner and the United States maintain that 28 U. S. C. 1291, which permits the courts of appeals to review "all

2 Section 549.43(a)(6) provides: "The inmate . . . may submit an appeal to the institution mental health division administrator regarding the decision within 24 hours of the decision and . . . the administrator shall review the decision within 24 hours of the inmate's appeal."

3 It is not apparent why this order was necessary, since the Government had already received authorization to medicate petitioner pursuant to 549.43. If the Magistrate Judge had denied the Government's motion (or if this Court were to reverse the Magistrate Judge's order) the Bureau of Prisons' administrative decision ordering petitioner's forcible medication would remain in place. Which is to suggest that, in addition to the jurisdictional defect of interlocutoriness to which my opinion is addressed, there may be no jurisdiction because, at the time this suit was filed, petitioner failed to meet the "remediability" requirement of Article III standing. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83 (1998). The Court of Appeals should address this jurisdictional issue on remand.

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