United States v. William Szabo

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10520
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-00206-
MCE-1
WILLIAM J. SZABO,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding

Argued and Submitted
October 9, 2013—San Francisco, California

Filed July 28, 2014

Before: Dorothy W. Nelson, Milan D. Smith, Jr.,
and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;
Partial Concurrence and Partial Dissent by
Judge D.W. Nelson
2 UNITED STATES V. SZABO

SUMMARY*

Criminal Law

The panel affirmed the district court’s judgment with
regard to the defendant’s as-applied constitutional challenges
to 38 C.F.R. § 1.218(a)(5), and dismissed for lack of
jurisdiction his facial challenge to the regulation, in a case in
which the defendant was convicted of disorderly conduct in
violation of § 1.218(a)(5), which prohibits causing
“disturbances” at Veterans Affairs facilities.

Rejecting the defendant’s as-applied First Amendment
challenge, the panel held that the conduct for which the
defendant was convicted does not constitute protected speech
because it involved a “true threat” of violence. The panel
held that even if the defendant’s conduct did constitute
protected speech, § 1.218(a)(5) would not be unconstitutional
as applied to his conduct because it is a viewpoint neutral
regulation, and prohibiting a visitor from yelling obscenities
and threatening physical violence is eminently reasonable in
view of the government’s legitimate interest in caring for
veteran patients and not triggering adverse psychological
reactions from such patients.

Rejecting the defendant’s contention that § 1.218(a)(5) is
vague in violation of the Due Process Clause of the Fifth
Amendment, as applied to him, the panel held that the
defendant’s actions unambiguously fall within the

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. SZABO 3

regulation’s prohibition on “loud” and “abusive” language
and on “conduct . . . which creates loud or unusual noise.”

The panel dismissed for lack of jurisdiction the
defendant’s facial overbreadth challenge to the regulation
because 38 U.S.C. § 502 states that facial challenges to the
validity of VA regulations may be brought on in the Federal
Circuit. The panel held that § 502’s jurisdictional bar does
not violate the defendant’s right to due process.

Concurring in part and dissenting in part, Judge Nelson
disagreed with the majority’s holding that this court lacks
jurisdiction to hear the defendant’s overbreadth challenge.

COUNSEL

Douglas Beevers (argued), Assistant Federal Defender,
Joseph Schlesinger, Acting Federal Defender, Heather E.
Williams, Acting Federal Defender, and Zachary Schultz,
Certified Law Student, Office of the Federal Defender,
Sacramento, California, for Defendant-Appellant.

Ashwin Janakiram (argued), Special Assistant United States
Attorney, Benjamin Wagner, United States Attorney, and
Camil Skipper, Appellate Chief, Office of the United States
Attorney, Sacramento, California, for Plaintiff-Appellee.
4 UNITED STATES V. SZABO

OPINION

M. SMITH, Circuit Judge:

Defendant-Appellant William J. Szabo appeals from his
judgment of conviction under Title 38, Code of Federal
Regulations, Section 1.218(a)(5), arguing that the regulation
violates the First and Fifth Amendments, both facially and as
applied to his conduct. With regard to Szabo’s as-applied
challenges, we affirm the judgment of the district court. We
dismiss Szabo’s facial challenge for lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

Szabo is a veteran who qualifies to receive services at
Veterans Affairs (VA) facilities. Prior to August 29, 2011,
Szabo was a patient at the Sacramento VA Medical Center
outpatient mental health clinic (the VA Hospital). As a result
of his prior behavioral problems at the VA Hospital, Szabo
was required to have a police escort when he visited the
facility, and he was only permitted to be treated by one
particular physician.

On August 29, 2011, Szabo arrived at the VA Hospital
and asked to see his doctor. He was accompanied only by his
brother. A receptionist, who was familiar with Szabo, asked
if Szabo had checked in with the VA police, and informed
Szabo that he did not have an appointment.1 In response,
Szabo became angry, clenched his fists, and yelled “I don’t
need [the] fuckin’ VA police. I don’t need nobody to show
me around. I’ve – I just want to see my doctor.” When the

1
There is a dispute as to whether Szabo initially had an appointment that
was rescheduled or cancelled.
 UNITED STATES V. SZABO 5

receptionist told Szabo that his doctor was not in, Szabo
yelled “I don’t need to see his pussy ass anyway, just you
know, give me another fuckin’ doctor.” Szabo proceeded to
call the receptionist “a cocksucker [], a motherfucker, and a
faggot ass son of a bitch.” His yelling was so loud that it
caused patients to move into the hallway and was audible on
other floors. VA security was dispatched to respond.

As the receptionist waited for security to arrive, Szabo
threatened that he would “kick [the receptionist’s] ass, [his]
pussy ass, [his] fucking pussy ass . . . and [the Dr.’s] pussy
ass.” While making these threats, Szabo was “flailing his
arms, [] leaning . . . over the counter[,] yelling in the face of
. . . the receptionist[] . . . . slamm[ing] [a stack of papers] to
the counter, and . . . slamming his hands [on the counter].”
The receptionist feared for his safety and the other patients’
safety, and when the security officer arrived, the receptionist
left the reception area.

The security officer attempted to calm Szabo and to
persuade Szabo to go outside. In response Szabo yelled “[a]t
the top of his lungs”: “[F]uck you, you queer ass, faggot ass,
motherfucker, I’ll kick your ass.” A number of patients left
the area. The security officer asked Szabo to calm down two
or three additional times, and Szabo’s brother attempted to
“coax him out[side.]” When these efforts were unsuccessful,
the security officer called the police.

While the security officer was contacting the police,
Szabo started to walk outside. The police arrived about two
minutes later and requested several times that Szabo sit on the
curb while the security officer explained the situation to
them. Szabo did not comply with the officers’ instructions
and continued to yell obscenities. When Szabo pushed one of
6 UNITED STATES V. SZABO

the officers, a struggle ensued. Szabo was ultimately sprayed
with pepper spray and placed in handcuffs.

Following a bench trial, Szabo was convicted of one
count of disorderly conduct, in violation of Title 38, Code of
Federal Regulations, Section 1.218(a)(5), which prohibits
causing “disturbances” at VA facilities. Pursuant to the
regulation, “disturbances” are defined as:

Conduct on property which creates loud or
unusual noise; which unreasonably obstructs
the usual use of entrances, foyers, lobbies,
corridors, offices, elevators, stairways, or
parking lots; which otherwise impedes or
disrupts the performance of official duties by
Government employees; which prevents one
from obtaining medical or other services
provided on the property in a timely manner;
or the use of loud, abusive, or otherwise
improper language; or unwarranted loitering,
sleeping, or assembly. . .

38 C.F.R. § 1.218(a)(5). Szabo was sentenced to three years
of supervised release, fifty hours of community service, and
a ten dollar special assessment. He timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the judgment of the
district court under 28 U.S.C. § 1291. We review questions of
law de novo. United States v. Thoms, 684 F.3d 893, 898 (9th
Cir. 2012). “The existence of subject matter jurisdiction is a
question of law that we review de novo.” Hamad v. Gates,
732 F.3d 990, 995 (9th Cir. 2013).
 UNITED STATES V. SZABO 7

DISCUSSION

Szabo argues that 38 C.F.R. § 1.218(a)(5) violates the
First Amendment and the Fifth Amendment both facially and
as applied to his conduct.2 We reject Szabo’s as-applied
challenges, and we lack jurisdiction to consider his facial
challenge.

I. As-Applied Challenges

Szabo argues that 38 C.F.R. § 1.218(a)(5) is
unconstitutional as applied to him, because (1) the conduct
for which he was convicted constitutes protected First
Amendment speech; and (2) 38 C.F.R. § 1.218(a)(5) is vague
in violation of the Due Process Clause of the Fifth
Amendment. We reject both arguments.

2
Szabo further argues that the district court erred in excluding expert
testimony regarding his mental illness, through which he sought to
advance a theory that his psychological condition prevented him from
fully considering his actions. The district court did not abuse its discretion
in excluding this expert testimony. See United States v. Anderson, 741
F.3d 938, 949 (9th Cir. 2013) (stating that we review evidentiary rulings
for abuse of discretion).

In some cases, evidence of a criminal defendant’s mental health will
support a diminished capacity defense. United States v. Twine, 853 F.2d
676, 678 (9th Cir. 1988). But diminished capacity defenses are not
available to defendants who are accused of general intent crimes. United
States v. Vela, 624 F.3d 1148, 1154 (9th Cir. 2010). Violations of 38
C.F.R. § 1.218(a)(5) are crimes of general intent. See United States v.
Martinez, 49 F.3d 1398, 1401 (9th Cir. 1995) (“When a statute does not
contain any reference to intent, general intent is ordinarily implied.”). For
this reason, expert testimony regarding Szabo’s diminished capacity was
not relevant to his defense, and the district court did not err in excluding
this testimony.
8 UNITED STATES V. SZABO

A. Protected Speech

1. Legal Standard

The right to speak is not unlimited, and the degree of
scrutiny that we apply to challenged speech “varies
depending on the circumstances and the type of speech at
issue.” In re Anonymous Online Speakers, 661 F.3d 1168,
1173 (9th Cir. 2011). Speech that threatens a person with
violence is not protected by the First Amendment. Planned
Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life
Activists, 290 F.3d 1058, 1072 (9th Cir. 2002) (“[W]hile
advocating violence is protected, threatening a person with
violence is not.”); see also Watts v. United States, 394 U.S.
705, 708 (1969). “Threats, in whatever forum, may be . . .
proscribed without implicating the First Amendment.”
Planned Parenthood, 290 F.3d at 1076, n.11 (collecting
cases).

Where protected speech is at issue, the degree to which
the government may regulate such speech depends on the
nature of the forum. Preminger v. Principi, 422 F.3d 815, 823
(9th Cir. 2005) (citing Cornelius v. NAACP Legal Def. &
Educ. Fund, Inc., 473 U.S. 788, 797 (1985)). VA medical
facilities are “non-public” fora, Preminger v. Peake, 552 F.3d
757, 765 (9th Cir. 2008), and the government’s power to
regulate speech “is at its greatest when regulating speech in
a non-public forum,” Johnson v. Poway Unified Sch. Dist.,
658 F.3d 954, 961 (9th Cir. 2011) (citing Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44–46 (1983)).
For this reason, restrictions on speech in VA medical
facilities do not violate the First Amendment so long as they
are (1) reasonable in light of the purpose served by the forum
 UNITED STATES V. SZABO 9

and (2) viewpoint neutral. United States v. Kokinda, 497 U.S.
720, 730 (1990); Peake, 552 F.3d at 765.

In the context of restrictions on speech, reasonableness
concerns “the purpose of the forum and all the surrounding
circumstances.” Peake, 552 F.3d at 765. While there must be
more than “a rational basis” for a restriction on speech, the
restriction “need not constitute the least restrictive alternative
available.” Id. at 766. We have recognized that patients at VA
medical facilities “have significant health care needs,” which
justify the government’s prohibiting conduct that diverts
attention and resources from patient care. Id. “In a nonpublic
forum, the First Amendment does not forbid . . . exclusion of
speakers who would disrupt [the forum] and hinder its
effectiveness for its intended purpose.” Id. (internal
quotations and alterations omitted).

Even reasonable restrictions on speech must be applied
for “viewpoint-neutral reasons.” Principi, 422 F.3d at 825.
“[I]n a nonpublic forum, the government has ‘the right to
make distinctions in access on the basis of subject matter and
speaker identity,’ as long as the distinctions are not ‘an effort
to suppress expression merely because public officials oppose
the speaker’s view.’” Peake, 552 F.3d at 767 (quoting Perry
Educ. Ass’n, 460 U.S. at 46, 49).

2. Application

The conduct for which Szabo was convicted does not
constitute protected speech, because his conduct involved a
“true threat” of violence. Planned Parenthood, 290 F.3d at
1072 (citing Watts, 394 U.S. at 707). Szabo threatened to
“kick [the] pussy ass” of the receptionist, his doctor, and a
VA security guard. While making this threat, he was yelling
10 UNITED STATES V. SZABO

at the top of his lungs, “flailing his arms, [] leaning . . . over
the counter[,] yelling in the face of . . . the receptionist[] . . . .
slamm[ing] [a stack of papers] to the counter, and . . .
slamming his hands.” Szabo’s actions put VA employees and
other patients in fear for their safety, and the First
Amendment does not protect such conduct.

However, even if Szabo’s conduct did constitute protected
speech, 38 C.F.R. § 1.218(a)(5) would not be unconstitutional
as applied to his conduct. It is undisputed that 38 C.F.R.
§ 1.218(a)(5) is a viewpoint neutral regulation. Accordingly,
the only pertinent question is whether its application to
Szabo’s conduct is “reasonable in light of the purpose served
by the [VA hospital].” Peake, 552 F.3d at 765.

The government asserts that it seeks to prohibit
disturbances such as Szabo’s, because (1) the purpose of VA
facilities is to serve and care for veterans, (2) many veterans
have heightened sensitivities, and (3) disturbances, including
loud noises, can trigger psychological reactions from the VA
patient population. The government’s interest in caring for
veteran patients and not triggering adverse psychological
reactions from such patients is plainly a legitimate
government interest. Accordingly, prohibiting a visitor from
yelling obscenities and threatening physical violence is
eminently reasonable in view of this goal.

B. Vagueness

1. Legal Standard

A statute or regulation is impermissibly vague under the
Due Process Clause of the Fifth Amendment if it “fails to
provide a person of ordinary intelligence fair notice of what
 UNITED STATES V. SZABO 11

is prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement.” Holder v.
Humanitarian Law Project, 561 U.S. 1, 18 (2010) (quoting
United States v. Williams, 553 U.S. 285, 304 (2008)). “We
consider whether a statute is vague as applied to the particular
facts at issue, for ‘[a] plaintiff who engages in some conduct
that is clearly proscribed cannot complain of the vagueness of
the law as applied to the conduct of others.’” Humanitarian
Law Project, 561 U.S. at 18–19 (quoting Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)).
So long as the challenged terms “are clear in their application
to [the defendant’s] conduct . . . [his] vagueness challenge
must fail.” Humanitarian Law Project, 561 U.S. at 21.

2. Application

As discussed above, Szabo threatened to harm the
receptionist, his doctor, and a VA security guard using violent
and profane language. In so doing, he yelled at the top of his
lungs and engaged in threatening behavior. These actions put
patients and employees in fear for their safety, and caused
them to leave the reception area.

Szabo’s actions unambiguously fall within 38 C.F.R.
§ 1.218(a)(5)’s prohibition on “loud” and “abusive” language
and on “conduct . . . which creates loud or unusual noise.”
Accordingly, the regulation is not unconstitutionally vague
with regard to Szabo’s conduct. For these reasons, Szabo’s
as-applied challenges to the regulation fail.

II. Facial Challenge

Szabo further argues that we should invalidate 38 C.F.R.
§ 1.218(a)(5) because it is facially overbroad. In making this
12 UNITED STATES V. SZABO

argument, Szabo does not assert that his own conduct was
constitutionally protected. Rather, he argues that we should
set aside the regulation because at some point in the future it
might reach others’ constitutionally protected conduct. We
dismiss this challenge for lack of jurisdiction.

A. Legal Standard

1. Overbreadth

A constitutional challenge based on overbreadth is a
challenge to the facial validity of a statute or regulation.
While an overbreadth challenge may be brought where a
statute is constitutional as applied to the individual
challenging it, such challenges are exceptions to the ordinary
standing requirements, and are not “casually employed.” L.A.
Police Dep’t v. United Reporting Publ’g. Corp., 528 U.S. 32,
38–40 (1999).

“Because of the wide-reaching effects of striking down a
statute on its face at the request of one whose own conduct
may be punished despite the First Amendment, [the Supreme
Court] ha[s] recognized that the overbreadth doctrine is
‘strong medicine’ and ha[s] employed it with hesitation, and
then ‘only as a last resort.’” Id. (citations omitted).
“[P]articularly where conduct and not merely speech is
involved,” a statute will not be invalidated as
unconstitutionally overbroad unless it “reaches a substantial
number of impermissible applications.” New York v. Ferber,
458 U.S. 747, 770–71 (1982).
 UNITED STATES V. SZABO 13

2. Jurisdiction

Although federal courts generally have jurisdiction to
consider facial challenges to agency regulations, 5 U.S.C.
§ 702, we lack jurisdiction to consider the facial validity of a
VA regulation that is constitutional as applied to the
individual challenging it.

Chapter 7 of the Administrative Procedure Act (APA)
provides that “[t]he form of proceeding for judicial review [of
agency action] is the special statutory review proceeding
relevant to the subject matter in a court specified by statute.”
5 U.S.C. § 703 (emphasis added). “[So long as] Congress
provides for a ‘special statutory review proceeding’ in one
specific court, challenges to the administrative action must
take place in the designated forum.” Principi, 422 F.3d at 821
(quoting 5 U.S.C. § 703). For this reason, the facial validity
of a regulation may only be raised outside of the designated
forum when that forum is somehow inadequate. See 5 U.S.C.
§ 703; see also F.C.C. v. ITT World Commc’ns, Inc., 466 U.S.
463, 468–69 (1984).

38 U.S.C. § 502 mandates that challenges to the facial
validity of VA regulations must take place in the United
States Court of Appeals for the Federal Circuit. Principi,
422 F.3d at 821; Chinnock v. Turnage, 995 F.2d 889, 893 (9th
Cir. 1993); Preminger v. Sec’y of Veterans Affairs, 517 F.3d
1299, 1305 (Fed. Cir. 2008). The statute provides:

An action of the [VA] Secretary to which
section 552(a)(1) [of the APA] . . . refers . . .
is subject to judicial review. Such review shall
be in accordance with chapter 7 of title 5 and
14 UNITED STATES V. SZABO

may be sought only in the United States Court
of Appeals for the Federal Circuit.

38 U.S.C. § 502 (emphasis added).3

Prior to 1988, veterans were precluded from obtaining
any judicial review of decisions made by the VA. To remedy
this perceived problem, Congress passed the Veterans’
Judicial Review Act, Pub. L. 100-687, 102 Stat. 4105 (1988),
which authorizes judicial review of VA decisions and
centralizes such review in the Federal Circuit. According to
the House Committee Report, the Federal Circuit was given
exclusive jurisdiction over VA actions to ensure national
uniformity in the status of those regulations and to allow a
single court to develop subject matter expertise. H.R. Rep.
No. 100-963, at 28 (1988) (expressing Congress’s intent “to
avoid the possible disruption of VA benefit administration
which could arise from conflicting opinions on the same
subject due to the availability of review in the 12 Federal
Circuits or the 94 Federal Districts” and stating that “the
subject of veteran benefits rules and policies is one that is
well suited to a court which has been vested with other types
of specialized jurisdiction”).

Because 38 U.S.C. § 502 plainly states that facial
challenges to the validity of VA regulations may be brought

3
Section 552(a)(1) of the APA requires agencies to publish in the
Federal Register “rules of procedure . . . [and] substantive rules of general
applicability adopted as authorized by law, and statements of general
policy or interpretations of general applicability formulated and adopted
by the agency.” There is no dispute that 38 C.F.R. § 1.218(a)(5) is a
regulation published in the Federal Register. 50 Fed. Reg. 29, 226 (July
18, 1985).
 UNITED STATES V. SZABO 15

only in the Federal Circuit, we do not have jurisdiction to
consider the facial validity of 38 C.F.R. § 1.218(a)(5).

3. Sufficiency of Review

Our dissenting colleague argues that although 38 U.S.C.
§ 502 only authorizes the Federal Circuit to consider facial
challenges to VA regulations, we should nonetheless consider
Szabo’s request to invalidate 38 C.F.R. § 1.218(a)(5) because:
(1) 38 U.S.C. § 502 did not provide Szabo with an “adequate”
and “prior” opportunity to challenge the regulation, as
required by 5 U.S.C. § 703, and (2) 38 U.S.C. § 502’s
jurisdictional mandate violates Szabo’s right to due process.
We disagree.

a. “Adequate” and “Prior” Review

The Federal Circuit provides an adequate forum for
judicial review of agency action. It is axiomatic that Congress
may prescribe the jurisdiction of inferior federal courts and,
if it so chooses, vest jurisdiction in a single court. U.S. Const.
art. iii, § 1, cl. 1; Yakus v. United States, 321 U.S. 414, 429
(1944). “There is no constitutional requirement that [a
challenge] be made in one tribunal rather than in another, so
long as there is an opportunity to be heard and for judicial
review which satisfies the demands of due process.” Yakus,
321 U.S. at 444.

Szabo seeks review of the facial constitutionality of 38
C.F.R. § 1.218(a)(5). In accordance with the APA, the
Federal Circuit will “hold unlawful and set aside [VA
regulations] that [are] ‘contrary to constitutional right, power,
privilege, or immunity.’” Preminger, 517 F.3d at 1305
(quoting 5 U.S.C. § 706(2)(B)). Neither Szabo nor the dissent
16 UNITED STATES V. SZABO

advance any reason why the Federal Circuit is not an
adequate forum to litigate this challenge, and we are unable
to discern any such inadequacy. See Pub. Util. Comm’r of Or.
v. Bonneville Power Admin., 767 F.2d 622, 627 (9th Cir.
1985).

Nonetheless, the dissent reads 5 U.S.C. § 703 and
38 U.S.C. § 502 as vesting exclusive jurisdiction in the
Federal Circuit only if Szabo had an opportunity to challenge
38 C.F.R. § 1.218(a)(5)’s facial validity prior to his
conviction. To the extent that 5 U.S.C. § 703 imposes such a
requirement, it is also satisfied here.

Our dissenting colleague seems to agree that 38 U.S.C.
§ 502 generally provides a prior opportunity for review of VA
regulations, and that the statute therefore generally deprives
us of jurisdiction to consider facial challenges to VA
regulations. Nonetheless, according to the dissent, Szabo did
not have a prior opportunity to challenge 38 C.F.R.
§ 1.218(a)(5) because one in Szabo’s position would not have
challenged the regulation prior to his indictment, and once
Szabo was indicted, it would have been burdensome for him
to maintain parallel litigations in two different forums. With
respect, our colleague is mistaken.

The dissent seems to read 5 U.S.C. § 703 as creating an
exception to 38 U.S.C. § 502’s jurisdictional mandate for any
criminal defendant who lacked a prior plan to violate the VA
regulation under which he is charged. Our colleague’s
construction is entirely unworkable as a practical matter.
Under this reading, a federal court’s jurisdiction to consider
a criminal defendant’s facial challenge to a VA
regulation—that is indisputably valid with regard to his
conduct—turns on an individualized analysis of when a
 UNITED STATES V. SZABO 17

criminal defendant formed the requisite intent to commit a
regulatory offense.

Moreover, our colleague’s construction of 5 U.S.C. § 703
finds no support in the APA, and it conflicts squarely with
Congress’s desire for uniform review of VA regulations. As
we discuss above, Congress assigned review of VA
regulations to the Federal Circuit in order to ensure national
uniformity in the status and enforcement of those regulations.
Because Congress prescribed a centralized forum to review
the validity of VA regulations, “[i]t is hard to believe that
Congress . . . would have made the remedy optional and
contemplated that the regulation could also be challenged by
defiance.” United States v. Zenon-Encarnacion, 387 F.3d 60,
67 (1st Cir. 2004) (en banc) (Boudin and Lynch, JJ.,
concurring). Our dissenting colleague’s position—that the
applicability of 38 U.S.C. § 502’s jurisdictional bar turns on
when a criminal defendant formed the requisite mens rea to
violate a VA regulation—would create an end-run around
Congress’s clear intent to vest the Federal Circuit with
exclusive jurisdiction to consider the validity of VA
regulations, and it would invite the very disruption that
Congress sought to prevent. We reject this reading.

The dissent further argues that Szabo did not have an
opportunity to challenge 38 C.F.R. § 1.218(a)(5) prior to his
conviction because under our recent decision in
Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827 (9th
Cir. 2014), Szabo could not have brought a justiciable pre-
enforcement challenge. Again, we respectfully disagree. In
Protectmarriage.com, political committees that supported the
passage of California’s Proposition 8 sought an exemption
from future campaign contribution reporting requirements on
the basis that the committees might support future campaigns
18 UNITED STATES V. SZABO

opposing same sex marriage and that the State’s disclosure
requirements might deter potential contributions to such
future efforts. Id. On appeal, we held that we lacked
jurisdiction over the plaintiffs’ pre-enforcement suit because
the plaintiffs failed to articulate a concrete and immediate
threat of injury. Id. at 838–41. Unlike the
Protectmarriage.com plaintiffs, Szabo could have articulated
a well-founded, concrete, and imminent fear that 38 C.F.R.
§ 1.218(a)(5) would be enforced against him. See Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2342–46 (2014)
(holding that a pre-enforcement challenge is ripe where a
party can articulate a “credible threat” that a statute will be
enforced against him).

Szabo was on notice that 38 C.F.R. § 1.218(a)(5)
prohibits the specific type of disruptive conduct that is at
issue in this case. Not only is the regulation published, see
United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558,
563 (1971); A&W Smelter & Refiners, Inc. v. Clinton,
146 F.3d 1107, 1111 (9th Cir. 1998), but also Szabo had been
disciplined for engaging in similar conduct in the past. Szabo
has a long history of causing disruptions at the VA hospital.
Due to this behavior, Szabo was required to have a police
escort when he visited the facility, and he was only permitted
to be treated by one particular physician. In light of these
previous administrative sanctions, Szabo could have
articulated a credible threat that he would be prosecuted if he
engaged in similarly disruptive conduct in the future. Susan
B. Anthony List, 134 S. Ct. at 2345 (Past enforcement against
specific conduct is “good evidence” that a litigant faces a
legitimate threat of future enforcement, and administrative
sanctions alone “may give rise to harm sufficient to justify
pre-enforcement review.” (citing Ohio Civil Rights Comm’n
 UNITED STATES V. SZABO 19

v. Dayton Christian Schs., Inc., 477 U.S. 619, 625–26, n.1
(1986))).

For these reasons, we find it likely that the Federal Circuit
would have entertained a pre-enforcement challenge to
38 C.F.R. § 1.218(a)(5), and the mere fact that Szabo may not
have had a strong incentive to bring such a challenge prior to
his indictment does not affect our jurisdictional analysis.
Moreover, even after Szabo was indicted, he could have
challenged 38 C.F.R. § 1.218(a)(5) in a parallel proceeding,
and “the inconvenience” of challenging the regulation in an
alternate forum would not have outweighed the government’s
interest “in having a centralized, unitary scheme of review[]
. . .” Yakus, 421 U.S. at 437 n.5. We therefore reject the
dissent’s interpretation of 5 U.S.C. § 703 and hold that 38
U.S.C. § 502 deprives us of jurisdiction to consider Szabo’s
request that we invalidate 38 C.F.R. § 1.218(a)(5).

b. Due Process

Finally, we hold that 38 U.S.C. § 502’s jurisdictional bar
does not violate Szabo’s right to due process. This conclusion
follows directly from Yakus v. United States, in which the
Supreme Court explicitly held that a defendant’s due process
rights are not violated merely because he must challenge a
regulation under which he is charged through a special
statutory review procedure. 321 U.S. at 427–44.

In Yakus, the Supreme Court considered a provision of the
Emergency Price Control Act of 1942, which required that
challenges to the statute’s implementing regulations be
brought only in the Emergency Court of Appeals, and then
only within sixty days of a regulation’s promulgation.
321 U.S. at 427–28. The defendants in Yakus declined to
20 UNITED STATES V. SZABO

challenge the validity of a price regulation pursuant to this
procedure, but later attempted to challenge the regulation
when they were prosecuted for violating it. The Supreme
Court held that “the provision of the Act, so construed as to
deprive petitioners of opportunity to attack the [r]egulation in
a prosecution for its violation,” did not “deprive them of due
process of law,” because an administrative pathway existed
that allowed for challenges to the regulation. Id. at 431–33.
The Court expressly stated:

[W]e are pointed to no principle of law or
provision of the Constitution which precludes
Congress from making criminal the violation
of an administrative regulation, by one who
has failed to avail himself of an adequate
separate procedure for the adjudication of its
validity, or which precludes the practice, in
many ways desirable, of splitting the trial for
violations of an administrative regulation
[between]. . . the issue of its validity . . . and
the issue of [its] violation . . . . Such a
requirement presents no novel constitutional
issue.

Id. at 444.

In denying the petitioners’ due process challenge, the
Yakus Court emphasized that a due process challenge is not
appropriate where “[a criminal defendant] failed to seek the
administrative remedy and the statutory review which were
open to [him] and [does] not show[] that had [he] done so . . .
[he would have been deprived of] judicial remedies adequate
to protect [his] rights.” Id. at 434. “Only if we could say in
advance of resort to [a] statutory procedure that it is incapable
 UNITED STATES V. SZABO 21

of affording due process . . . could we conclude that [a
criminal defendant has] shown any legal excuse for [his]
failure to resort to it or that [his] constitutional rights have
been or will be infringed.” Id. at 435.4

In light of Yakus, we can divine no reason why review of
38 C.F.R. § 1.218(a)(5) in the Federal Circuit would not
provide Szabo with due process of law. “Congress, through
its power to define the jurisdiction of inferior federal courts
. . . [may] give [one court] exclusive equity jurisdiction to
determine the validity of [administrative regulations] and
foreclose any further or other consideration of the validity of
a regulation as a defense to a prosecution for its violation.”

4
Our dissenting colleague highlights that the Yakus Court stated: “We
have no occasion to decide whether one charged with criminal violation
of a duly promulgated price regulation may defend on the ground that the
regulation is unconstitutional on its face.” Id. at 446–47 (emphasis added).
To the extent that this language suggests that the Supreme Court might
have entertained a facial constitutional challenge to the price regulations
(which we do not believe that it does), we note that the statutory review
procedure at issue in Yakus only permitted challenges to price regulations
within sixty days of the regulation’s promulgation. Under this review
procedure, there was no forum in which a defendant could challenge the
constitutional validity of a regulation under which he was convicted if he
failed to bring a challenge immediately after the regulation was
promulgated—a result that arguably raises a difficult constitutional
question. But in assessing the statutory review procedure at issue in Yakus,
the Court also analyzed several similar review provisions and expressed
no reservation with respect to those procedures that were not temporally
limited. Id. at 445 (“[T]he denial of [a facial] defense in such a case does
not violate any provision of the Constitution.”). Here, Szabo could have
challenged the validity of 38 C.F.R. § 1.218(a)(5) in the Federal Circuit
at any time prior to his conviction and retains the right to challenge the
regulation. He is only limited with regard to the forum in which he must
bring such a challenge, and this inconvenience does not amount to a denial
of due process. Id. at 437, 437 n.5.
22 UNITED STATES V. SZABO

Id. at 443. Like the Emergency Court of Appeals, which was
at issue in Yakus, the Federal Circuit “has power to review all
questions of law . . . [including] any question of the denial of
due process or any procedural error appropriately raised in
the course of the proceedings.” Id. at 437. Any decision by
the Federal Circuit is reviewable by the Supreme Court. And
the mere inconvenience of challenging the facial validity of
38 C.F.R. § 1.218(a)(5) in an alternate forum does not deprive
Szabo of due process of law. Id. at 437 n.5.

In concluding that 38 U.S.C. § 502 does not violate
Szabo’s right to due process, we emphasize that the Supreme
Court did not find a due process violation in Yakus, even
though the Emergency Price Control Act precluded a criminal
defendant from bringing any challenge to the price control
regulations outside of the sixty-day review procedure that was
available in the Emergency Court of Appeals. By contrast, we
have entertained Szabo’s challenges to the constitutionality
of 38 C.F.R. § 1.218(a)(5) as it applies to his conduct, Szabo
could have challenged the facial validity of 38 C.F.R.
§ 1.218(a)(5) at any time in the Federal Circuit, and Szabo
retains the right to bring a facial challenge to 38 C.F.R.
§ 1.218(a)(5) in the Federal Circuit. If at some point in the
future Szabo persuades the Federal Circuit that the regulation
is unlawful, he is also free to later seek collateral relief from
his conviction.

Despite the existence of various avenues through which
Szabo could properly challenge the validity of the regulation
under which he was charged, Szabo has declined to take
advantage of the administrative review procedures that are
available to him. Instead, Szabo asks us to create an exception
to 38 U.S.C. § 502’s jurisdictional bar so that we can consider
whether 38 C.F.R. § 1.218(a)(5) is overbroad with regard to
 UNITED STATES V. SZABO 23

hypothetical conduct that is not before us. The Due Process
clause does not compel us to grant such exceptional relief,
and we hold that we lack jurisdiction to consider Szabo’s
request to invalidate the regulation.

CONCLUSION

For these reasons, we affirm the judgment of the district
court with regard to Szabo’s as-applied challenges, and we
dismiss this appeal for lack of jurisdiction with regard to
Szabo’s facial challenge.

AFFIRMED IN PART, DISMISSED IN PART.

D.W. Nelson, Senior Circuit Judge, concurring in part and
dissenting in part:

I only disagree with the majority opinion on one point:
whether we lack jurisdiction to hear Szabo’s overbreadth
defense. Because I believe we do have jurisdiction, I
respectfully dissent.

The right to bring an overbreadth challenge is an
important safeguard of civil liberty. By invalidating unfairly
vague and far-reaching statutes, it serves to protect the liberty
interests of those not before the court, and provides
legislative bodies burdening speech with a compelling reason
to draft narrowly tailored laws. Massachusetts v. Oakes,
491 U.S. 576, 586 (1989) (controlling portion of opinion by
Scalia, J., concurring in the judgment in part and dissenting
in part). Thus, a defendant retains the right to bring an
overbreadth challenge to the law underlying her prosecution
24 UNITED STATES V. SZABO

even if her own conduct is not protected by the First
Amendment. Id. at 586–88; Bigelow v. Virginia, 421 U.S.
809, 815–16 (1975) (“This Court often has recognized that a
defendant’s standing to challenge a statute on First
Amendment grounds as facially overbroad does not depend
upon whether his own activity is shown to be constitutionally
privileged.”).

Szabo cannot raise his overbreadth argument in these
proceedings, according to the majority, because Szabo should
have pursued this defense by filing a civil lawsuit in the
Federal Circuit before he was even indicted. I disagree. The
relevant statutory framework does not evince the clear
congressional intent required to deprive us of jurisdiction to
conduct constitutional judicial review. Moreover, the
doctrine of ripeness would have barred any pre-enforcement
civil lawsuit. And even if it would not, a civil lawsuit would
have been an inadequate substitute for litigating this defense
in criminal proceedings, where Szabo has the right to counsel.

But what worries me most is that the majority’s holding
gives Congress broad power to require a court to exercise
criminal jurisdiction but prevent it from applying the
Constitution. This holding contradicts Article III of the
Constitution and our traditional conception of judicial power.

I. Jurisdiction Exists Because Szabo had No Prior and
Adequate Opportunity for Review

When Congress centralized judicial review of VA rules
and regulations in the Federal Circuit, it incorporated a
savings clause from the Administrative Procedures Act
designed to ensure that judicial review would remain
available to criminal defendants who did not have a “prior
 UNITED STATES V. SZABO 25

[and] adequate . . . opportunity” for review. 38 U.S.C. § 502;
5 U.S.C. § 703. This exception to exclusive Federal Circuit
jurisdiction is a sensible way to streamline enforcement
proceedings and ensure that criminal defendants have a full
and fair opportunity to be heard.

To me, it seems clear that no such opportunity existed in
this case. Szabo was charged with disorderly conduct after
engaging in a spontaneous outburst at a VA hospital. He had
no plan to engage in disorderly conduct, and no reason to
anticipate a prosecution for disorderly conduct. Prior to these
proceedings, Szabo thus had no reasonable chance to assert
his claim that the VA disorderly conduct regulation is
unconstitutionally overbroad. We should therefore conclude
that jurisdiction to hear his overbreadth argument exists in
these proceedings.

The majority concludes, however, that Szabo could have
asserted his overbreadth challenge in a pre-emptive civil
lawsuit in the Federal Circuit, and that we therefore lack
jurisdiction over his overbreadth defense because he had a
prior and adequate opportunity to assert it. I cannot agree.

First, any pre-enforcement challenge would have been
barred by the doctrine of ripeness. When a plaintiff fearing
prosecution under a law seeks pre-enforcement judicial
review, ripeness generally requires the plaintiff to have a
“concrete plan to violate the law in question.”
Protectmarriage.com v. Bowen, — F.3d —, 2014 WL
2085305, at *8 (9th Cir. 2014) (quoting Thomas v. Anchorage
Equal Rights Com’n, 220 F.3d 1134, 1139 (9th Cir. 1999)).
Here, however, Szabo had no “concrete plan” to violate the
law; his violation was a spontaneous outburst. A court
hearing his pre-emptive lawsuit would be confronted with a
26 UNITED STATES V. SZABO

case where the plaintiff asserted that the doctrine of ripeness
was satisfied because maybe, someday, contrary to his plans
and intentions, he would violate the VA’s regulation. Such
a lawsuit, where “the injury at issue is speculative, or may
never occur,” is precisely what the doctrine of ripeness is
meant to bar. Id.

The majority claims that Szabo would have been able to
bring a pre-enforcement challenge because the VA regulation
was published, Szabo had been “disciplined” due to
disruptive behavior, and was required to have a police escort.
But the existence of a proscriptive law does not make a
dispute ripe. Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th
Cir. 2010) (“[T]he mere existence of a statute is insufficient
to create a ripe controversy.”). Moreover, the majority does
not point to a single past instance in which Szabo was
threatened with prosecution for disorderly conduct, which is
what our precedent requires. Thomas, 220 F.3d at 1139
(noting that a “generalized threat of prosecution” is not
sufficient, and that courts look for “a specific warning or
threat to initiate proceedings”). If anything, past violations of
the law coupled with non-enforcement weigh against a
finding of ripeness. See id. at 1141. Furthermore, the need
for police supervision may suggest some propensity for
disruptive behavior, but the majority cites no case finding that
a pre-enforcement dispute is ripe solely due to a plaintiff’s
propensity to violate the law. Additionally, since a police
presence would make Szabo more likely to follow the law,
not more likely to violate it, Szabo’s police escort cuts against
a finding of ripeness based on propensity alone.

Second, a pre-emptive civil lawsuit in the Federal Circuit
would not have provided an “adequate” opportunity for
review. 5 U.S.C. § 703. To determine the adequacy of an
 UNITED STATES V. SZABO 27

opportunity for judicial review under 5 U.S.C. § 703, courts
should conduct a case-by-case analysis to determine whether
collateral proceedings are a suitable substitute for review in
enforcement proceedings. See H.R. Rep. No. 79-1980, pt. 4,
at 42 (1946) (a prior opportunity for review must be
“adequate to the case”) (emphasis added); S. Rep. No. 79-
752, pt. 4, at 27 (1946) (same). Here, Szabo is an indigent
criminal defendant, and thus he had a right to appointed
counsel to assist him with his defense. Gideon v.
Wainwright, 372 U.S. 335, 342 (1963). Because this right is
“fundamental and essential to a fair trial,” id. (quotation
marks omitted), review in the Federal Circuit could be
“adequate to the case” only if Szabo also had a right to
appointed counsel in those proceedings. But no such right
exists. While Szabo did enjoy the assistance of counsel in his
criminal proceedings, the majority’s holding would cause
Szabo to confront the power and sophistication of the United
States on his own. This amounts to a deprivation of the right
to counsel, and therefore pre-enforcement Federal Circuit
review would not have provided an “adequate” opportunity
for review.

Third, even if it were legally possible for Szabo to obtain
pre-enforcement review in the Federal Circuit, the majority
cannot dispute the evident impracticality and unrealistic
nature of this scenario. Szabo is an indigent criminal
defendant who had neither the means nor the motive to
pursue a pre-emptive lawsuit in a court on the other side of
the country. By concluding that Szabo nonetheless had a
prior “opportunity” to obtain judicial review, the majority has
ventured to the boundaries of that word’s meaning.

By adopting this interpretation of the term “opportunity,”
the majority’s holding contravenes the principle that
28 UNITED STATES V. SZABO

constitutional judicial review is presumed to be available
unless Congress’ contrary intent is clear. Califano v.
Sanders, 430 U.S. 99, 109 (1977). In 5 U.S.C. § 703,
Congress has set out an ambiguous standard under which
jurisdiction to conduct judicial review exists in enforcement
proceedings unless the defendant had a prior and adequate
opportunity for review. The hazy line drawn by this statute
stands in marked contrast to instances where Congress has
made its intent clear. See, e.g., 43 U.S.C. § 1652(d) (limiting
jurisdiction over “claims alleging that an action will deny
rights under the Constitution of the United States” to a sixty-
day window); 42 U.S.C. § 7607(b)(2). Applying the
presumption in favor of jurisdiction, I would conclude that we
may hear Szabo’s overbreadth defense because he had no
reasonable opportunity to obtain prior and adequate judicial
review. By contrast, the majority’s broad interpretation of the
term “opportunity” construes 38 U.S.C. § 502 and
5 U.S.C. § 703 to strip jurisdiction as broadly as possible,
which is contrary to our rules of construction.

Finally, the majority suggests that Szabo had a “prior”
opportunity for review because, post-indictment, he could
have brought a “parallel” proceeding in the Federal Circuit.
At best, parallel proceedings would provide a
contemporaneous opportunity for review, not the prior
opportunity required by 5 U.S.C. § 703. See H.R. Rep. No.
79-1980, pt. 4, at 42 (1946) (explaining that “prior” means
“prior in time.”); S. Rep. No. 79-752, pt. 4, at 27 (1946)
(same); see also U.S. E.P.A. v. General Elec. Co., 197 F.3d
592, 599 (2d Cir. 1999). Moreover, Szabo was convicted
only four and a half months after being charged, and cases
filed in the Federal Circuit take on average twice as long to be
resolved on the merits. United States Court of Appeals for
the Federal Circuit, Median Disposition Time for Cases
 UNITED STATES V. SZABO 29

Decided by Merits Panels, available at
http://www.cafc.uscourts.gov/images/stories/Statistics/med
%20disp%20time%20merits_chart.pdf. Thus, if anything, a
parallel proceeding in the Federal Circuit would likely have
been a “subsequent” form of review, not a “prior” form of
review.

II. The Majority’s Holding Contradicts Article III of the
Constitution.

The majority’s interpretation of 38 U.S.C. § 502 and
5 U.S.C. § 703 leads it to the novel holding that Congress
may prevent federal courts from applying the Constitution in
an entire class of criminal cases. The majority does not cite
a case where a criminal defendant has been barred under
comparable circumstances from challenging the
constitutionality of the law he is accused of violating.
Although the majority relies heavily on Yakus, the Yakus
Court explicitly stated that it had “no occasion to decide
whether one charged with criminal violation of a . . .
regulation may defend on the ground that the regulation is
unconstitutional on its face.” Yakus v. United States,
321 U.S. 414, 446–47 (1944).

While this exceptional form of jurisdiction stripping
might be appropriate in a narrow set of circumstances, the
majority’s holding appears to apply broadly. The breadth of
this holding raises several questions. What constitutional
defenses can Congress require a criminal defendant to raise
in the Federal Circuit? Could Congress require criminal
defendants to raise all constitutional challenges to statutes
and regulations in this way? The majority neither
acknowledges nor addresses these questions. My concern is
30 UNITED STATES V. SZABO

that the majority’s broad holding appears to approve
unprecedented changes in how judicial review is conducted.

It belies our legal tradition to conclude that Congress,
without any limits, can convene courts that enforce criminal
laws but not the Constitution. “It is emphatically the
province and duty of the judicial department to say what the
law is. . . . [I]f a law be in opposition to the constitution; if
both the law and the constitution apply to a particular case, so
that the court must either decide that case conformably to the
law, disregarding the constitution; or conformably to the
constitution, disregarding the law; the court must determine
which of these conflicting rules governs the case. This is of
the very essence of judicial duty.” Marbury v. Madison,
5 U.S. 137, 177–78 (1803). Courts stripped of their authority
to apply the Constitution are no longer part of an independent
branch of government that exercises the “judicial Power of
the United States.” U.S. Const. Art. III § 1; see also Estep v.
United States, 327 U.S. 114, 126–27 (1946) (Murphy, J.,
concurring) (“Congress lacks any authority . . . to command
a court to exercise criminal jurisdiction without regard to due
process of law or other individual rights.” (emphasis added)).
Thus, by concluding that Congress may require courts to
enforce criminal law but broadly strip them of the authority
to apply constitutional law, the majority’s holding violates
Article III of the Constitution.

Constitutional review is integral to our conception of
justice and judicial power. An individual charged with a
crime expects that he will be tried before a court with full
authority to protect his rights by applying the law of the
United States. The majority casts doubt upon these
expectations, and I cannot agree.
 UNITED STATES V. SZABO 31

III. Even if the We Lack Jurisdiction, We Should Stay
the Proceedings to Permit Szabo to Pursue Review
in the Federal Circuit.

Finally, even if we lack jurisdiction to hear Szabo’s
overbreadth defense, we should not yet affirm his conviction.
Instead, to insure that Szabo may obtain judicial review in a
court with jurisdiction to hear this defense, we should grant
his request for a stay to allow him to pursue this defense in
the Federal Circuit. Leyva v. Certified Grocers of California,
Ltd., 593 F.2d 857, 863 (9th Cir. 1979).

Szabo’s request for a stay to pursue review in the Federal
Circuit came late in these proceedings, but this delay is
justified by the government’s changing position in this case.
The government never contested the existence of jurisdiction
over Szabo’s overbreadth argument in the district court.
Instead, it raised this argument for the first time in a letter to
the court filed less than a week before oral argument in this
appeal. Szabo sought Federal Circuit review almost
immediately after he learned of the government’s new
position, and thus sought review in the Federal Circuit with
diligence appropriate to the circumstances.

IV. Conclusion

Szabo should be permitted to raise all of his constitutional
defenses in these proceedings. Because the majority reaches
a contrary result, I respectfully dissent.