F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

W I L L I A M J

. S Z A B O ,

Defendant-Appellant

. N o. 12-10520

D.C. No. 2:12-cr-00206- MCE-1

OPI NI ON

Appeal from the United States District Court for the Eastern District of California Morrison C. Eng land, J r., Chief District J u d g e, Presiding

Arg ued and Submitted October 9, 2013—San F rancisco, California

F iled J uly 28, 2014

B efore: Dorothy

W . Nelson, Milan D. Smith, J r., and Sandra S. Ikuta, Circuit J udg es.
Opinion by

J udg e Milan D. Smith, J r.; Partial Concurrence and P artial Dissent by

J udg e D.W

. NelsonU N I T E D S T A T E S V

. S Z

A B O 2

SUMMARY *

Crim inal Law

The panel affirmed the district court’s judg ment w i t h
reg ard to the defendant’s a s-applied constitutional c halleng e s to 38 C.F

. R. § 1

. 2 1 8 (a)(5), a nd dismissed for lack o f jurisdiction his facial challeng e to the regulation, in a case in which the d e fendant w as convicted of disorderly conduct i n violation of § 1 .218(a)(5), w h ich prohibits causing “disturbances” at Veterans Affairs facilities.

Rejecting the d e fe ndant’s as-applied F irst A mendment challeng e, the panel h eld that the conduct for which the defendant was convicted does not constitute protected speech b e c a use it involved a “true threat” of violence. The p a n el held that even if the defendant’s conduct d id constitute protected speech, § 1.218(a)(5) would n ot be unconstitutional

as applied to his conduct because it is a view p o int neutral
regulation, and prohibiting a visitor from y elling obscenities and threatening

phy sical violence is eminently reasonable in view of the g overnment’s leg itimate intere s t i n caring for
veteran p atients and not trig g ering adverse psy cho l og ical reactions from such patients.

Rejecting the defendant’s contention that § 1.218(a)(5) is
vag ue in violation of the Due Process Clause of the F i f th Amendment, a s applied to him, the p anel held t h a t the de fe n d a n t ’s a c t i o n s u n a m b i gu o usly fall within the

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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A B O 3

regulation’s prohibi t ion on “loud” a n d “abusive” lang uag e and on “conduct . . . which creates loud or unusual noise.”

The panel dismissed for la c k of jurisdiction the defendant’s facial overbreadth challeng e to the regul ation because 3 8 U.S.C. § 502 states that facial c halleng es to the validity of VA reg

ulations may

be broug ht on in the F ederal Circuit. T h e panel held that § 502’s jurisdictional bar does not violate the defendant’s rig ht to due process.

Concurring in part and dissenting in part, J udg e Nelson disa gr e ed with the majority ’ s holding that this court lacks jurisdiction to hear the defendant’s overbreadth challeng e

.

COUNSEL

D oug las B eevers (arg

ued), Assistant F ederal Defender
, J oseph Schlesing er, Acting F ederal Defender, H eat h er E. W i l l iams, Acting F ederal Defender, and Z achary Schultz
, Certified L aw S tudent, Office of the F ederal Defender, Sacramento, California, for Defendant-Appellant.

Ashwin J anakiram (arg

ued), Special Assistant United States Attorney
, B enjamin W ag n er, United States At t o rney , a nd Camil Skipper, Appellate Chi e f
, O ffice of the United States Attorney , Sacramento, California, for Plaintiff-Appellee.U N I T E D S T A T E S V

. S Z

A B O 4

OP INION

M. SMI TH, Circuit J udg e :
Defendant-Appellant W illiam J

. Sz a b o appeals from his judg ment o f c onviction under Title 38, Code of F ederal Reg ulations, Section 1.218(a)(5), arguing that the regulation violates the F irst and F ifth Amendments, both facially and a s applied to h is conduct. W ith r ega r d to Sz abo’s as-applied challeng es, we affirm the judg me n t o f the district court. W e dismiss Sz abo’s facial challeng e for lack of jurisdiction.

F ACTUAL AND P ROCEDURAL BACK G ROUND

Sz a bo is a veteran who q ualifies to receive services at Veterans Affairs (VA) facilities. Prior to Aug ust 2 9
, 2 011, Sz a bo was a patient a t the Sacra m e nto VA Medical Center outpatient mental health clinic (the VA Hospital). As a result of his prior behavioral problems a t the V A Hospital, Sz a bo

was required to have a police escort when h e visited the facility
, and he was o nly permitted to be treated by o ne particular phy sician.

On Aug ust 29, 2 0 1 1
, Sz abo arrived at the VA Hospital and asked to see his doctor. He was a ccompanied only by his brother. A receptionist, who was familiar with Sz abo, asked if Sz ab o h ad checked in with the VA p olice, and informed Sz a bo that he did not have an a p pointment. 1 I n response, Sz a bo became a n gr y , clenched his f ists, and y elled “I don’t need [ the] fuckin’ VA police. I d on’t need nobody t o show

m e a round. I ’ve – I just want to see my doctor.” W h e n t h e

1 T h ere is a d isp u

te as t o w h eth er S zab o in i tially h ad an ap p o in tm en t th at

w as resch ed u led o r can celled

.U N I T E D S T A T E S V

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A B O 5

receptionist told Sz a bo that his d octor was not in, Sz a bo
y e l l e d “ I don’t n eed to see his p ussy ass any way , just y o u know, g ive me another fuckin’ doctor.” Sz abo proceeded to call the r eceptionist “a cocksucker [ ]
, a motherfucker, and a fag g ot ass son of a b itch

. ” H is y elling 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 re ce p tionist waited for security to arrive, Sz a bo threatened that he w o u l d “ kick [ the receptionist’s] ass, [ his]
pussy ass, [ h i s ] f

ucking pussy ass

. . . a

nd [ the Dr.’s] pussy ass.” W h ile making these threats, Sz abo was “flailing his
arms, [] leaning . . . over the counter[ ,] y elling in the face o f

. . . t h e receptionist[ ]

. . . . slamm[ ing ] [ a stack of papers] to the counter, and

. . . s l a m m ing his h ands [ on the counter]

. ” The r eceptionist feared for h i s safety and the other patients’ safety
, and when the security officer arrived, the receptionist left the reception area.

The security officer a ttempted to calm Sz abo a nd to persuade Sz abo to g o outside. I n response Sz abo y elled “[ a] t the top o f his lung s”: “[ F ] uck y o u , y ou queer a ss, fag g ot ass, motherfucker, I ’ll kick y ou r ass.” A number of patients left the area. The security officer asked Sz abo to calm down two

or three additional time s , a n d Sz abo’s b rother attempted to “coax him out[ side.] ” W h en these efforts were unsuccessful, the security

officer called the police.

W h ile the security officer was contact ing the police, Sz a bo sta r t ed t o walk outside. The p olice arrived about two minutes later and requested several times that Sz abo sit on the curb w hile the security of f i c e r ex p lained the situation to them. Sz abo did not compl y w ith the officers’ instructions and continued to y ell obscenities. W hen Sz abo pushed one o fU N I T E D S T A T E S V

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A B O 6

the officers, a strug g le ensued. Sz abo was ultimately spray ed with pepper spray

and placed in handcuffs.

F ollowing a bench trial, Sz abo w a s c onvicted o f o ne count o f disorderly conduct, in violation of Title 38, Code o f F ederal Reg ulations, Sect i o n 1.218(a)(5), w hich prohibits

cau s i ng “disturbances” at VA facilities. Pursuant to the
regulation, “disturbances” are defined as:

C o nduct on p roperty w hich creates loud o r unusual n oise; w hich unreasonably obstructs the usual use of entrances, foy ers, lobbies, corridors, offices, e levators, stairway s, o r parking lots; which otherwise impedes o r disrupts the performance of official duties by Go v e rnment employ ees; which prevents o ne f rom obtaining medical or other servi c e s provided on the property in a timely man n er ;

or the use of loud, a b u sive, o r otherwise improper lang uag e; or unwarranted loitering
, sleeping , or assembly

. . .

38 C.F .R. § 1.218(a)(5). Sz abo w as sentenced to three y ears of supervised release, f

ifty hours of community service, a nd a ten dollar special assessment. He timely appealed.

JURISDICTION AND STANDARD OF REVIEW

W e have jurisdiction to r eview the ju d gm e n t of the district court under 28 U.S.C. § 1291. W e review questions o f law de novo. United States v. Thoms
, 684 F .3d 8 9 3, 898 (9th Cir. 2012). “The ex istence of subject matter jurisdiction is a question of law that w e r e v iew de novo.” Hamad v. Gates
, 732 F .3d 990, 995 (9th Cir. 2013).U N I T E D S T A T E S V

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A B O 7

D ISCUSSION

Sz a bo argues that 3 8 C.F .R. § 1 .218(a)(5) v i olates the F irst Amendment and the F ifth Amendment both facially a nd

as applied to his conduct. 2 W e r eject Sz abo’s as-ap p lied challeng es, and we lac k j u r i sdiction to consider his facial challeng e.

I. As-Applied Challenges

Sz a bo a rg ues t h a t 3 8 C.F

. R. § 1.218(a)(5) is

unco n stitutional as applied to him, because (1) the conduct for which he was convicted constitutes protected F irst Amendment speech; a

n d (2) 38 C.F .R. § 1.218(a)(5) is v ag ue in violation o f the Du e P r o cess Clause of the F ifth Amendment. W e reject both arg u ments.

2 Szab o f urth er arg u es th at t

h e district co urt erred in ex clu d i n g e x p e r t testim o n y reg ard in g h is m en t a l i l l n ess, th ro u g h w h ich h e so u g h t to ad v an ce a th eo ry th at h is p sy ch o lo g ical co n ditio n p rev en ted h im f ro m f u lly co n sid erin g h is actio n s. T h e d i strict co urt d id n o t ab u se i ts d iscretio n in ex clu din g th is ex p ert testim o n y

. S ee Un ited S ta tes v. An d

erso n , 7 4 1 F.3 d 9 3 8
, 94 9 (9 th Cir. 2 01 3 ) (statin g th at w e rev iew ev id en tiary

ru lin g s f o r ab u se o f

d iscretio n ).

In so m e cases, ev id en ce o f a crim in al d ef en d an t’ s m en tal h ealth w i l l

su p p o rt a d im in ish ed cap acity d ef en se. Un ited

S ta tes v. Twin e , 8 5 3 F.2 d 6 7 6
, 6 7 8 (9 th Cir. 1 9 8 8 ). B u t d im in ish ed cap acity def en s es are n o t

av ailab le t o d ef

en d an t s w h o are accu sed of g en eral in t en t crim es. Un ited S ta tes v. Vela
, 6 2 4 F.3 d 1 1 4 8
, 1 1 5 4 (9 th Cir. 2 0 1 0 ). V io latio n s of 3 8 C.F.R. § 1 .2 1 8 (a)(5 ) are crim es o f g en eral in ten t. S ee Un i ted S t a t e s v. Ma rtin ez , 4 9 F.3 d 1 3 9 8 , 1 4 0 1 (9 th Cir. 1 9 9 5 ) (“ W h en a statute d o es n o t

co n tain an y ref

eren ce to in ten t , g en eral i n ten t i s o rd in arily im p lied .”). Fo r th is reaso n , ex p ert testim on y reg ard i n g Szab o ’ s dim i n ish ed cap acity w as

n o t relev an t to h is d ef

en s e, an d th e d istrict co urt d id n o t err in ex clu d in g th is testim o n y

.U N I T E D S T A T E S V

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A B O 8

A. P rotected Speech

1. Legal Standard

The rig ht to speak is not unli m i t ed, and the deg ree o f scrutin y that we apply to c halleng ed speech “varies dep e n d ing on the circumstances and the ty pe of speech at issue.” I n re Anonymous Online Speakers
, 6 6 1 F. 3 d 1168, 1173 (9th Cir. 2011). Speech that threatens a p erson with violence is not protected by t he F irst Amendment. Planned Parenthood o

f Columbia/W

illamette, Inc. v. Am. Coal. of Life Activists
, 2 90 F .3d 1058, 1072 ( 9th Cir. 2002) (“[ W ] hile

a d vocating violence is p r otected, threatening a person with violence is not.”); see also W a tts v. United States
, 394 U.S. 705, 708 (1969). “ Threats
, in whatever foru m , m a y be

. . . proscribed without implicating the F irst Amendment.” Planned Parenthood
, 290 F .3d at 1 0 7 6
, n.11 (collecting cases).

W h ere protected speech is at issue, the d eg ree to which the g ov e r n m e n t may regulate such speech depends on the
nature of the forum. Preminger v. Principi
, 422 F .3d 815, 823 (9th Ci r

. 2 0 0 5 ) (citing Cornelius v. NAACP Legal Def. & Educ. Fund, I

n c

. , 4 73 U.S. 788, 797 (1985)). VA medical facilities are “non-public” fora, Preminger v. P e ake
, 552 F .3d 757, 765 (9th Cir. 200 8 ), and the g o vernment’s power to regulate speech “is at its g r eatest w hen r eg ulating speech i n

a non-public forum,” Johnson v. Poway Unified S c h. Dist.
, 658 F .3d 954, 961 (9th Cir. 2011) (citing Perry Educ. Ass’n

v. Perry Local Educators’ A ss’n
, 460 U.S. 37, 44–46 (1983)). F or t h i s reason, restrictions on speech in VA medical facilities do not violate the F irst Amendment so long as they

are (1) reasonable in lig ht of the purpose served by the forumU N I T E D S T A T E S V

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A B O 9

and (2) v iewpoint n e u tral. United States v. Kokinda
, 497 U.S. 720, 730 (1990); Peake , 552 F .3d at 765.

I n the contex t of restrictions on speech, reasonableness

c oncerns “the purpose of the forum and all the surrou n d i n g circumstances.” Peake
, 552 F .3d a t 765. W hile there must be

more than “a rat i o nal basis” for a restriction on speech, the restriction “need not constitute the least restrictive a lternative available.” Id. at 766. W e have recog niz ed that patients a t V A medical facilities “have sig nificant health care needs,” which justify the g o vernment’s prohi biting c onduct that diverts attention a

nd resources from patient care. Id. “I n a nonpublic forum, the F irst Amendment does not forbid

. . . ex clusion o f speakers w h o would disrupt [ the forum] and hinder its effectiveness for i t s intended purpose.” Id. (internal quotations and alterations omitted).

Even reasonable restrictions on speech m u s t be a pplied for “viewpoint-neutral reasons.” Principi
, 422 F .3d at 825. “[ I ] n a nonpublic f

orum, the g overnment has ‘the rig ht to make distinctions in access on the basis of subject matter a nd speaker identity ,’ as long as the d istinctions are not ‘ a n effort
to suppress ex pression mer e l y 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 c onduct for which Sz abo w as convicted does not constitut e p r o tected speech, because h is conduct involved a “true threat” of v iolence. P l a nned Parenthood
, 290 F .3d at 1072 (citing W

atts , 394 U.S. at 7 07). Sz abo threate ned to “kick [ the] p ussy ass” of the r eceptionist, his d o ctor, a nd a VA security

g u ard. W hile making this threat, he was y ellingU N I T E D S T A T E S V

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A B O 10

at the top of his lung s, “flailinghis arms, [ ] leaning

. . . over the counter[ ,] y elling in the face of

. . . the receptionist[ ]

. . . . slamm[ ing ] [ a stack o f papers] to the counter, an d

. . . slamming h is hands.” Sz a bo’s a ctions put VA employ ees a nd oth e r p atients in fear for their safety
, and the F irst Amendment does not protect such conduct.

However, even if Sz abo’s co n d u c t d i d c o n s t i tute protected speech, 38 C.F .R. § 1.218(a)(5) would n ot be unconstitutional

as applied to his conduct. I t is undisputed that 3 8 C

. F.R. § 1.218(a)(5) is a viewpoint neutral regulation. A c cording ly
, the only pertinent q

uestion is w h ether its application to Sz a bo’s c onduct is “reasonable in lig ht of the purpose served by the [ VA hospital] .” Peake , 552 F

. 3 d at 765.

The g overnment a s serts that it seeks to prohibit disturbances such as Sz abo’s, because (1) the purpose of V A facilities is to serve a

nd c are for veterans, (2) many v eterans have heig htened sensitivities, and (3) disturbances, including loud noises, can trig g er psy cholog ical reactions from the V A patient population. The g overnment’s i n t erest in c aring for
veteran p atients and not trig g ering adver s e psy cholog ical reactions f

rom such patients is plainly a leg itimate
g overnment interest. According ly , prohibiting a visitor from
y elling obscenities and threatening phy sical violence is eminently reasonable in view of this g oal.

B. Vagueness

1. Legal Standard

A statute or regulation is impermissibly vag ue under the Due Process Clause of the F ifth Amendment if it “ fai l s to provide a person of ordinary intellig ence fair notice of whatU N I T E D S T A T E S V

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A B O 11

i s prohibited, or is so standardless that it authoriz e s o r encourag es seriously discriminatory enforcement.” Holder v

. Humanitarian Law Project
, 561 U.S. 1, 18 (2010) (quoting United States v. W

illia m s , 553 U.S. 285, 304 (2008)). “W e consider whether a statute is vag ue as applied to the particular facts at issue, for ‘[ a] plaintiff w ho eng ag es in some conduct that is clearly proscribed cannot complain of the vag ueness o f the law a s appli e d to the conduct of others.’” Humanitarian Law Project
, 561 U.S. a t 18–19 ( quoting Hoffman Estates v

. Flipside, H

o f f m an Estates, Inc.
, 455 U .S. 489, 495 (1982)). So long as the challeng ed terms “are clear in their a pplication
to [ the defendant’s] c o n d uct

. . . [ his] vag ueness challeng e must fail.” H

umanitarian Law Project , 561 U.S. at 21.

2. Application

As discussed above, Sz abo t hreatened to harm the receptionist, his doctor, and a VA security g uard using violent and profane lang uag e. I n so d oing
, he y elled at the top of his lung s and e ng ag ed in threatening behavior. These actions put patients and employ ees in fear for their safety
, and c aused them to leave the reception area.

Sz a bo’s actions unambig uously fall wi t hin 3 8 C.F .R. § 1.218(a)(5)’s prohibition on “loud” and “abusive” lang uag e and on “conduct

. . . w h i c h creates loud or unusual noise.” According ly
, the r e gu lation is not unconstitutionally v ag ue with reg ard to Sz abo’s conduct

. F or these reasons, Sz abo’s as-applied challeng es to the reg ulation fail.

II. F acial Challenge

Sz a bo further argues that we should invalidate 3 8 C.F .R. § 1.218(a)(5) because it is facially overbroad. In making thisU N I T E D S T A T E S V

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argument, Sz abo does not assert that his own conduct was constitution a l l y p rotected. Rather, he argues that we should
set aside the regulation because at some point in the future it mig ht reach o thers’ constitutionally protected conduct. W e dismiss this challeng e for lack of jurisdiction.

A. Legal Standard

1. Overbreadth

A c onstitutional challeng e based on over b readth is a challeng e to the facia l v a l i d ity of a statute or regulation. W h ile an overbreadth challeng e may be broug ht where a statute is co n s t itutional a s a pplied to the individual challeng ing it, such challeng e s are ex ceptions to the ordinary standing requirements, and are not “casually e mploy ed.” L.A. Police Dep’t v. United Reporting Publ’g. Corp.
, 528 U .S. 32, 38–40 (1999).

“B ecause of the wide-reaching effects of striking down a statute on its face at the request o f o n e w hose own conduct
may b e punished despite the F irst Amendment, [ the Supreme Court] ha[ s] recog niz e d that the overbreadth doctri ne is ‘strong medicine’ and ha[ s] employ e d it with hesitation, a nd then ‘only as a l a s t resort.’” Id. (citations omitted). “[ P] articularly where conduct and n ot mere l y speech is i n v o l v ed
, ” a s t a t u t e w i l l n o t b e i n v a l i d a t e d a s unconstitutionally overbroad unless it “reaches a substantial number of impermissible applications.” New Y ork v. Ferber
, 458 U.S. 747, 770–71 (1982).U N I T E D S T A T E S V

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A B O 13

2. Jurisdiction

Althoug h federal courts g enerally h ave jurisdiction to consider facial challeng es to ag ency regulations, 5 U. S

. C

. § 702, we lack jurisdiction to c onsider the facial validity of a VA regulat ion that is constitutional as applied to the individual challeng ing it.

C hapter 7 of the Administrative Procedure Act (A P A ) provides that “[ t] he form of proceeding for judicial review [ o f
ag ency action] is the special s t atutory review proceeding relevant to the subject matter in a court specified by statute

. ” 5 U.S.C. § 7 0 3 ( e mphasis added). “[ So long as] Cong ress p r o v i d es for a ‘special statutory review proceeding ’ in o n e specifi c co urt, challeng es to the administrative action must take place in the desig nated forum.” Principi
, 422 F

. 3d at 821 (quoting 5 U .S.C. § 703). F or this reason, the facial validity of a regulation may only be raised outside of the de s i g nated forum when that forum is somehow inadequate. See 5 U .S.C. § 703; see also F.C.C. v. ITT W o rld Commc’ns, Inc.
, 4 6 6 U.S. 463, 468–69 (1984).

38 U.S.C. § 502 manda t e s t hat challeng es to the facial

v a l i d ity of VA regulations must take p lace in the Unit e d States Court of Appeals for the Fe d eral Circuit. Principi
, 422 F

. 3d at 821; Chinnock v. Turnage
, 9 95 F .2d 889, 893 (9th Cir. 1993); Preminger v. Sec’y of Veterans Affairs
, 517 F .3d 1299, 1305 (F e d. Cir. 2008). The statute provides:

An action o f the [ VA] Secretary to which section 552(a)(1) [ o f t he APA]

. . . refers

. . . is subject to judicial review. Such review shall be in accordance with c h a p ter 7 of title 5 andU N I T E D S T A T E S V

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A B O 14

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 p recluded from o b t a ining
any judicial r eview of decisions made by the VA. To remedy this per c e i ved problem, Cong r ess passed the V eterans’ J udicial Review Act, Pub. L

. 100-687, 102 Stat. 4105 (1988), which authoriz es j u dicial review of VA decisions a nd centraliz es such review in t h e F ederal Circuit. According to the House Committee Report, the F ederal Circuit was g iven

ex c lusive jurisdiction over V A actions to ensure n ational uniformity i n the status o f those regulations and to a llow a sing le court to develop subject matter ex pertise. H.R. Rep. No. 100-963, at 28 (1988) (expressing Cong ress’s intent “to avoid the possible disruption of VA benef i t administration which could arise from conflicting op i n i ons on the same subject d ue to the availability o f review i n the 12 F ederal Circuits or the 94 F ederal Districts” a n d stating that “the subject of veteran benefits rules a nd po l i c i e s is one that is well suited to a court which has been vested with other ty pes of specializ ed jurisdiction”).

B e cause 38 U.S.C. § 502 p la inly states that facial challeng es to the validity o f VA regulations may be broug ht

3 Sectio n 5 5 2 (a)(1 ) o f t he A P A r e q u ires ag en cies to p u b l ish i n th e Fed eral Reg ister “ ru les o f p ro ced ure

. . . [an d ] s u b stan t iv e ru les o f g en eral
ap p licab i lity ad o pted as au th o rized b y law
, an d statem en t s of g en eral
p o licy o r in terp retatio n s o f g en eral ap p licab ility f o rm u lated an d ad op ted b y th e ag en cy .” T h ere is n o d isp u te th at 38 C.F.R. § 1 .2 1 8 (a)( 5 ) i s a reg u latio n p u

blish e d i n t h e Fed eral Reg ister. 5 0 Fed

. Reg

. 2 9
, 2 26 (J u ly 1 8 , 1 9 8 5 ).U N I T E D S T A T E S V

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A B O 15

only in the F ederal Circuit, we do no t h a v e jurisdiction to consider the facial validity of 38 C.F .R. § 1.218(a)(5).

3. Suf f iciency of

Review

Our dissenting colleague argues that althoug h 38 U .S.C. § 502 only authoriz es the F ederal Circuit to consider facial challeng es to VA regulations, we should n o n etheless consider Sz a bo’s r equest to invalidate 3 8 C

. F .R. § 1.218(a)(5) because: (1) 38 U.S.C. § 502 did not provide Sz abo with an “adequate”

an d “ p rior” opportunity to c h alleng e the r eg u lation, a s required b y 5 U.S.C. § 7 03, and (2) 38 U.S.C

. § 5 0 2’s jurisdictional mandate violates Sz a bo’s rig ht to due process. W e disag ree.

a. “Adequate” and “P r ior” Review

The F ederal Circuit provides a n adequate forum for judicial review of ag ency action. I t is ax iomatic that Cong ress may prescribe the jurisdiction of inferior federal cou rts and, if it so c hooses, vest jurisdiction in a sing le court. U.S. Const. art. iii, § 1, cl. 1; Y

a kus v. United Sta t e s , 3 2 1 U

. S. 414, 429 (1944). “ T h ere is no c o n stitutional requirement that [ a challeng e] 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 deman d s of due process.” Y akus
, 321 U.S. at 444.

Sz a bo seeks r ev i e w o f the f

acial constitutionality of 38 C.F .R. § 1.218(a)(5). I n accordance with the AP A
, the F ed e ra l Circuit will “hold unlawful and set aside [ V A regulations] that [are] ‘contrary to constitutional rig ht, power, privileg e, or immunit y

. ’” Preminger
, 517 F .3d at 1305 (quoting 5 U.S.C. § 706(2)(B )). Neither Sz abo nor the dissentU N I T E D S T A T E S V

. S Z

A B O 16

advance any reason wh y t he F ederal Circuit is not an adequate for

u m t o litig ate this challeng e , and w e are unable
to discern any such inadequacy

. S ee P ub. Util. Comm’r of Or.

v. Bonneville Power A d

m i n. , 767 F .2d 622, 627 (9th Cir. 1985).

N o n etheless, the dissent reads 5 U.S.C. § 703 a n d 38 U.S

. C. § 5 02 as vesting ex clusive jurisdiction in the F ederal Circuit only if Sz abo had an opportunity to challeng e 38 C.F .R. § 1.218(a)(5)’s facial valid i ty prior to his conviction

. To the ex tent that 5 U.S.C. § 703 imposes such a requirement, it is also satisfied here.

Our dissenti n g c o lleag ue seems to ag ree that 38 U .S.C. § 502 g enerally provides a prior opportunity for r eview of V A regulations, a

nd that the st a tute therefore g enerally deprives

us of jurisdiction to consider fa c i al challeng es to V A regulations. N onetheless, according to the dissent, Sz a bo did
not have a prior opport u n i t y to challeng e 38 C.F .R. § 1.218(a)(5) because one in Sz abo’s position would not have challeng ed the regulation prior to h i s i ndictment, and once Sz a bo was indicted, it would have been burdensome f or him
to maintain parallel litig ations in two different forums. W ith respect, our colleag

ue is mistaken.

The d issent seems to r e a d 5 U

. S .C. § 703 as creating an

ex c e ption to 38 U.S.C. § 502’s jurisdictional mandate for any criminal defendant who lacked a prior plan to violate the V A regulation under which he is charg ed. Ou r colleague’s construction is entirely unw orkable a s a practical matter. Under this readin g, a federal court’s jurisdiction to consider

a c riminal defendant’s facial chall e n ge to a V A regulation—that is indisp u t a b ly valid with reg ard to his conduct—turns on an individual i z ed a naly sis of when aU N I T E D S T A T E S V

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criminal d efendant formed the requisite intent to c ommit a regulatory

offense.

Moreover, our colleague’s construction of 5 U .S.C. § 703 finds no support in the A P A
, a n d it conflicts squarely with Cong r ess’s desire for uniform review of VA reg ulations. A s

we discuss above, Cong ress assig ned r eview of V A regulations to the F ederal Circuit in order to ensure n ational uniformity in the status and enforcement of those regulations. B ecause Cong ress prescribed a c e n traliz ed forum to r eview the validity o f VA regulations, “[ i] t is hard to b elieve that Cong r ess

. . . would h ave made the remedy optional a nd contemplated that the regulation could also be challeng ed b y defiance.” United States v

. Zenon-Encarnacion
, 387 F .3d 60, 67 (1st Cir. 2004) (en banc) ( B oudin and L y n ch, J J
., concurring ). O ur dissenting colleagu e’s position—that the applicability

of 38 U.S.C. § 502’s jurisdictional bar turns on when a criminal defendant formed the req u i s i t e mens rea to violate a VA regulation—would create an end-run around Cong r ess’s c lear intent to vest the F edera l C i rcuit with

ex c lusive jurisdict ion to c onsider the validity o f V A regulations, and it would invite the very disruption that Cong r ess soug ht to prevent. W e reject this reading

.

Th e dissent further argues that Sz abo did not have an opportunity

to challeng e 38 C.F .R. § 1.218(a)(5) prior to his

c o n v i c t i o n b e c a u s e u n d er o u r r e c e n t d e c i s i o n i n Protectmar r i a g e.com-Y

e s on 8 v. B o wen , 752 F .3d 827 (9th Cir. 2014), S z abo c ould not have broug ht a justiciable preenforcement challeng e. Ag ain
, we respectfully disag r ee. I n Protectmarriag e.com , p olitical committees that s u p p o r t e d t h e passag e of California’s Proposition 8 soug ht an ex e m p t i on from future campaig n contribution reporting requirements on the basis that the committees might support future campaig nsU N I T E D S T A T E S V

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A B O 18

opposing same sex marriag e a nd that the State’s disclosur e requirements might deter potential contribut ions to such future e fforts. I

d

. O n appeal, w e held that we lacked jurisdiction over the plaintiffs’ pre-enforcement suit because
t h e plaintiffs failed to articulate a concrete and immedi a t e t h r e a t o f i n

j u r y

. I d

. a t 8 3 8

– 4 1

. U n l i k e t h e Protectmarriage.com plaintiffs, Sz abo could have a rticulated

a well-founded, concrete, a nd imminent fear that 3 8 C.F .R. § 1.218(a)(5) w ould be e nfor c ed ag ainst him. See Susan B. Anthony List v. Driehaus
, 134 S

. C t. 2 334, 2 342–46 (2014) (holding that a p re-enforcement challeng e is ripe where a party can articulate a “c re d ible threat” that a statute will be enforced ag ainst him).

Sz a bo was on n otice that 38 C.F .R. § 1.218( a) (5)
pr o h i bits the specific ty

pe of disruptive conduct that is at issue i n 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 Sz abo had been disciplined for eng ag ing in similar conduct in the past. Sz a bo has a long history of causing disruptions at the VA hospital. Due to this behavior, Sz abo was required t o have a police
escort when h e visited the f acility
, a n d he was only p ermitted
to be treated by o n e p a rticular phy sician. I n lig ht of these previous adm i nistrative sanctions, Sz abo c ould have articulated a credible threat that h e would be prosecuted if he

en g a ge d in similarly disruptive conduct in the future. Susan B. Anthony List
, 134 S. Ct. at 2345 (Past enforcement ag ainst specific c o n d u c t is “g ood evidence” that a litig a nt faces a leg iti m a t e threat of future enforcement, and administrative sanctions alone “ may g ive rise to harm suf f i c i ent to justify pre-enforcement review.” ( citing Ohio Civil Rights Comm’nU N I T E D S T A T E S V

. S Z

A B O 19

v

. D a y ton Christian Schs., I

nc. , 477 U.S. 619, 625–26, n. 1 (1986))).

F or these reasons, we find it likely that the F ederal Circuit would have entertained a pre-enfor c e m ent challeng e to 38 C.F .R. § 1.218(a)(5), and the mere fact that Sz abo may not have had a strong incentive to bring such a challeng e p rior to his indictment d o e s n o t affect our jurisdictional analy sis. Moreover, even after Sz abo was indicted, he could have challeng ed 38 C.F .R. § 1.218(a)(5) in a parallel proceeding
, and “th e inconvenience” o f c halleng ing the r eg ulation in an alternate forum would not have outweig hed the g overnment’s interest “ in having a centraliz ed, unitary scheme o f review[ ]

. . .” Y akus
, 421 U.S. at 437 n.5. W e theref o r e r e ject the d i ssent’s interpretation of 5 U.S.C. § 703 and hold th at 3 8 U.S.C. § 5 02 deprives us of jurisdiction to consider Sz abo’s request that we invalidate 38 C.F .R. § 1.218(a)(5).

b. Due P rocess

F inally
, we hold that 38 U .S.C. § 502’s jurisdictional bar does not v iolate Sz abo’s rig ht to due process. This conclusion follows directly from Y

akus v. United States
, in which the Supreme Court ex plicitly held that a defendant’s due process rig hts are n ot violated merely be cause he must challeng e a regulation under which he is charg ed throu gh a special statutory review procedure. 321 U.S. at 427–44.

I n Y akus
, the Supreme Court c onsidered a provision o f the Emerg ency Price C o n t rol Act of 1 942, which required that challeng es to the statute’s implementing regula tions be broug ht only in the E m e r ge n c y Court of Appeals, and then only within six ty d ay s of a regulatio n ’ s promulg ation. 321 U .S

. at 427–28. T he defendants in Y akus declined toU N I T E D S T A T E S V

. S Z

A B O 20

challeng e the validity of a price regulation pursuant to this
p r o c edure, but later attempted to c halleng e the regulati o n when they were prosecuted for violating it. The Supreme Court held that “the provision of the A c t , s o construed as to deprive petitioners of opportunity to attack the [ r] eg ulation in

a prosecution for its violation,” d id not “deprive them of d ue process of law,” because an administrative pathway e x isted that allo w e d for challeng es to the regulation. Id. at 431–33. The Court ex pressly

stated:

[ W ] e are pointe d to no principle of law o r provision of the Constitution which p r ecludes Cong r ess from makingcriminal the violation of a n administrative regulation, by one who has failed to avail himself of an adequate separate p rocedure for t h e adjudication of its validity
, or which preclude s the practice, in
many w ay s desirable, o f splitting the tri a l for violations o f an administrative regulation [ b e t w e e n]

. . . the issue of its validity

. . . a nd the issue o f [ its] violation

. . . . Such a requirement presents no novel constitutional issue.

Id. at 444.

I n denying the petitioners’ due process challeng e , the Y a kus Court e mphasiz ed that a d u e process challeng e is not appropriate where “ [ a criminal defendant] failed to seek the administrative remedy and the statutory review wh ich were open to [ him] and [ d oes] not show[ ] that had [ he] done so

. . . [ he would h ave been deprived o f] judicial remedies adequate
to protect [ his] rig hts.” Id. at 4 34. “Only if we could say i n advance of resort to [ a] statutory p rocedure that it is incapableU N I T E D S T A T E S V

. S Z

A B O 21

of affording due process

. . . could we c o n c l u d e that [ a criminal defendant has] shown any leg al ex cu s e for [ his] failure to resort to it or that [ his] c o n stitutional rig hts have been or will be infring ed.” Id. at 435. 4

I n lig ht of Y

akus
, we can divine no reason why review o f 38 C

. F

. R. § 1.218(a)(5) in the F ederal Circuit w ould not provide Sz abo with due proc e s s of law. “Cong ress, throug h i ts power to define the jurisdiction of inferior federal c o u r t s

. . . [ may ] g ive [one c ourt] ex clusive equity jurisdicti on to determine the validity of [ administrative regul a tions] a nd foreclose any further or o ther consideration of the validity o f

a regulation as a defense to a prosecution for its viol a t i o n

. ”

4 Ou r d issentin g co lleag u e h ig h lig h ts th at th e Ya ku s Co urt stated : “ W e h av e n o o ccasio n to d ecid e w h eth er o n e ch arg ed w ith crim i n al v i o lat i o n

o f a d u l y p ro m

u lg ated p rice reg u la tio n m ay d ef en d o n th e g ro u

n d th at th e reg u latio n is un co n stitu

tio n al o n its f

ace.” Id

. at 4 4 6

– 4 7 (em

p h asis ad d ed ). T o t h e e x t e n t th at th is lan g u ag e su g g ests th at th e Su p rem e Co u

rt m ig h t h av e en tertain ed a f

acial co n stitu

t io n al ch allen g e to th e p rice reg u latio n s (w h ich w e d o n ot b eliev e th at i t d oes), w e n o te th at th e statuto ry rev iew
p ro ced ure at issu e in Ya ku s on ly p erm itted ch allen g es to p rice reg u latio n s

w ith in six t

y d ay s o f t

h e reg u latio n ’ s pro m

u lg atio n

. Un d er th i s rev iew
p ro ced ure, th ere w as n o f o r u m in w

h ich a def en d an t co u ld ch allen g e th e

co n stitu tio n al v alid ity o f a reg u l atio n u n d er w h ich h e w as co n v icted if h e fa i led to b rin g a ch allen g e im m ed iately af

ter th e reg u latio n w as p ro m u l g ated —a resu lt th at arg u ab l y raises a d if fi c u l t co n stitu

tio n al
q u estio n

. B u t i n assessin g th e statuto ry rev iew pro ced ure at issu e in Y a ku s , th e Co urt also an aly zed sev eral sim ilar rev iew p ro v isio n s a nd ex p ressed

n o reserv atio n

w ith resp ect to th o se p ro ced ures th at w ere n ot tem p o rally lim ited

. Id

. at 4 4 5 (“ [T ]h e d en ial o f [a f acial] def en se in su ch a case d oes

n o t v io late an y pro v isio n o f th e Co n stitu t io n .”). Here, Szab o co u ld ha v e ch allen g ed th e v alid ity o f 3 8 C

. F

. R

. § 1 .2 1 8 (a)(5 ) in th e Fed eral Circu i t at an y tim e p rio r to h is co n v ictio n an d retain s th e rig h t to c ha l l e n g e th e reg u latio n

. H e is o n ly lim ited w ith reg ard to th e fo ru m in w h i ch h e m u st b rin g s u ch a ch allen g e, an d th i s i n co n v en ien ce d o es n o t am ount to a d en i al

o f d u e p ro cess. Id

. at 4 37 , 4 3 7 n .5

.U N I T E D S T A T E S V

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A B O 22

Id

. at 443. L ike the Emerg ency Court of Appeals, which was at issue in Y

akus
, the F ederal Circuit “has power to review all questions of law

. . . [ including ] a ny question of the denial o f due process or any procedura l e r ror a ppropriately raised in the course o f the proceed i n gs

. ” I d. at 437. Any decision b y the F ederal Circuit is reviewable by the Supreme Court. A nd the mere inconvenience of challeng ing the facia l validity o f 38 C.F

. R. § 1.218(a)(5) in an alternate forum d oes n ot deprive Sz a bo of due process of law. Id. at 437 n.5.

I n concluding that 38 U.S.C. § 502 does not violate Sz a bo’s rig h t to due p rocess, we emphasiz e that the Supreme Court did not find a due process violation in Y a kus
, even thoug h the Emerg ency Price Control Act precluded a criminal defendant from bring ing any c halleng e to the price control
regulations outside of the six ty -day review procedure that was available in the Emerg ency Court o f Appeals. B y contrast, we have entertained Sz abo’s challeng es to the constitut i o n ality of 38 C.F .R. § 1.218(a)(5) as it applies to his conduct, Sz a bo

c ould have challeng ed the f acial validity of 38 C.F .R. § 1.218(a)(5) a t any time in the F ed e r a l C i rcuit, a nd Sz a bo retains the r ig ht to bring a facial c h a l l e n g e to 38 C.F .R. § 1.218(a)(5) in the F eder a l Circuit. I f at some point in the future Sz abo persuades the F ederal Circuit that the regulation is unlawful, he is also free to later seek c ollateral relief from his conviction.

De s p ite the ex istence of various avenues throug h which Sz a bo could properly challeng e the v alidity of the regulation under which he w a s charg ed, Sz abo h as declined to take advantag e of the administra t i ve review procedures that a re available to him. I nstead, Sz abo asks us to create an ex c eption
to 38 U.S.C. § 502’s jurisdictional bar so that we c an consider whether 38 C.F .R. § 1.218(a)(5) is o verbroad with reg ard toU N I T E D S T A T E S V

. S Z

A B O 23

hy pothetical conduct that is not befo r e u s. T he Due Process clause does not compel us to g rant s u c h e x ceptional relief, and we hold that we la c k j u r i sdiction to consider Sz abo’s request to invalidate the reg ulation.

CONCLUSION

F or these r easons, we affirm the judg ment of the district
court with reg ard to Sz abo’s as-applied challeng e s , a n d we dismiss th i s appeal for lack of jurisdiction with reg ard to Sz a bo’s facial challeng e.

AF F IRMED IN P ART, DISMISSED IN P ART.

D.W

. Nelson, Senior Circuit J udg e, concurring in pa r t a n d dissenting in part:

I only d i s a g ree with the majority opinion on one point: whet h e r we lack jurisdiction to hear Sz abo’s overbreadth defense. B ecause I b elieve we do have jurisdiction, I respectfully

dissent.

The rig ht to bring an o v e rbreadth challeng e is an important safeg

uard o f civil liberty

. B y invalidating unfairly
vag ue and far-reaching statutes, it serves to protect the liberty interests o f those not b efore the court, and p ro v i des leg islative bodies burdening speech with a compelling reason to draf t narrowly tailored laws. M assachusetts v. Oakes
, 491 U .S. 576, 586 (19 89) (controlling portion of opinion b y Scalia, J
., c oncurring in the judg ment i n p a r t and dissenting in part). Thus, a defendant retains the r i ght to bring an overbreadth challeng e to the law underly ing her prosecutionU N I T E D S T A T E S V

. S Z

A B O 24

e v e n i f h er own conduct is not protected by the F ir s t Amendment. Id. at 586–88; Bigelow v. Virgin ia
, 421 U.S. 809, 815–16 (1975) (“This Court o ften has recog n iz ed that a de fe n dant’s standing to c halleng e a statute on F irst Amendment g rounds as facially overbroad does n ot depend
upon whether his own activity is shown to be constitutionally privileg ed.”).

Sz a bo c a n not raise his overbreadth arg ument in these proceeding s, a ccording to the majority
, because Sz abo should have pursued this defense b y filing a civil law s u it in the F ederal Circuit before he was e v en indicted

. I disag r e e. The relev a n t statutory framework does not evince the clear
cong ressional intent r equired to d eprive us o f jurisdiction to conduct c onstitutional j u dicial 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 litig ating this defense in criminal proceeding s, where Sz abo has the rig ht to counsel.

B u t what worries me most is that the majority ’s hold ing
g ives Cong ress b road power to r equire a c o u r t to ex ercise criminal jurisdiction b u t p revent it from apply ing the Constitution. This h olding contra d i c t s Article I I I of the Constitution and our traditional c onception of judicial power.

I. Jurisdiction Exists Because Szabo had No P rior a nd Adequate Opportunity f or Review

W h en Cong ress centraliz ed judicial review of VA rules and r eg ulations in the F e d e r al Circuit, it incorporated a saving s clau se from the Administrative Procedures A ct desig ned t o e nsure that judicial review would remain available to criminal de f

endants who did not have a “priorU N I T E D S T A T E S V

. S Z

A B O 25

[ and] adequate

. . . opportunity ” for review. 3 8 U.S.C. § 502; 5 U.S.C. § 7 03. This ex ception to ex clusive F ederal Circuit jurisdiction is a sensible way to streamline en f o r c e ment proceeding s and ensure that c r i m inal defendants have a full and fair opportunity

to be heard.

To me, it seems clear that no such opportunity ex isted in this case. Sz a

b o w a s charg ed with disorderly conduct a fter
eng ag ing in a spontaneous outburst at a VA hospital. He h ad

no plan to eng ag e in disorder l y c o n d uct, and no reason to anticipate a prosecution for disorderly conduct. Prior to these proceeding s, Sz abo thus had no reasonable c han c e t o assert his claim that the VA disorderly conduct regulation is unconstitutionally overbroad. W e should therefore conclude that ju r i s d iction to hear his overbreadth argument ex ists in these proceeding s.

The majority concludes, however, that Sz abo c ould have asserted h is overbreadth challeng e in a pre-emptive civil lawsuit in the F ederal Circuit, and th at w e therefore lack jurisdiction over his overbreadth def ense because he had a prior and adequate opportunity to assert it. Icannot ag ree.

F irst, any pre

- enforcement c halleng e would have been barred by th e d o ct r i ne of r ipeness. When a plaintiff fearing prosecution under a law seeks pre-enforcem e n t judicial review, ripeness ge n e ra l ly requires the plaintiff to have a

“ c o n c r e t e p l a n t o v i o l at e t h e l a w i n q u e s t i on

. ” Protectmarriage.com v

. Bowen
, — F .3d —, 2014 W L 2085305, at *8 (9th Cir. 2014) (quoting Thomas v. Anchorage Equal Rights Com’n
, 220 F .3d 1 134, 1139 (9th Cir. 1 9 9 9 )). Here, however, Sz abo h ad n o “ concrete plan” to violate the law; his violation was a spontaneous outburst. A court hearing his pre-emptive lawsuit would b e confronted with aU N I T E D S T A T E S V

. S Z

A B O 26

case w here the plaintiff asserted that the doctrine o f ripeness was satisfied because may be, someday
, contrary to his plans and intentions, he would violat e the VA’s regulation. Such

a l awsuit, where “the injury at issue is speculative, or may

never occur,” is precisel y w hat the d octrine of ripeness is meant to bar. Id

.

The majority claims that Sz a bo would have been a

ble to bring a pre-enforcement c halleng e because the VA regulation

wa s published, Sz abo had been “disciplined” d ue to disruptive behavior, and was required to have a police escort. B ut the e x istence of a proscriptive law does not make a dispute ripe. W

olfson v. Brammer
, 616 F .3d 1045, 1 058 (9th Cir. 2010) (“[ T] he mere ex istence of a statute is insufficient
to create a ripe controversy .”). Moreover, the majority does
not point to a sing le past i n s t ance in which Sz abo was threatened with prosecution for disorderly conduct, which is what our precedent requires. Thomas
, 220 F .3d at 1139 (noting that a “g eneraliz ed threat of prosecution” is not sufficient, a

nd that courts look for “a s p e c i f ic w arning o r threat to initiate proceeding s”). I f any thing
, past v iolations o f the law c oupled with non-enforcement weig h a g a i n s t a finding of ripeness. See i d

. a t 1 141. F urthermore, the need for police supervision may s u g g est some propensity for disruptive behavior, but the majority cites no case finding that

a pre

- e nforcement dispute is r ipe solely due to a plaintiff’s
propens i t y to violate the law. Additionally
, since a police
presence wo uld make Sz abo more likely to follow the law,
not more likely to violate it, Sz abo’s police escort cuts ag ainst a finding of ripeness based on propensity alone.

Second, a pre-emptive civil lawsuit in the F ederal Circuit would not have provid e d a n “ adequate” opportunity for

r eview. 5 U.S.C. § 703. To d etermine the adequacy o f a nU N I T E D S T A T E S V

. S Z

A B O 27

opportunity

for judicial r e v iew under 5 U .S.C. § 7 03, courts should conduct a case-by -case analy sis to determine whether collateral proceedings a r e a suitable substitute for review in enforcement proceeding s. See H.R. Rep. No. 79-1980, pt. 4,
at 42 (1946) ( a prior opportunity for r eview must be

“ adequate to the case ”) ( e m p h a sis added); S. Rep. No. 79- 752, pt. 4
, at 2 7 (1946) ( same). H ere, Sz abo i s an indig ent criminal defendant, and thus he had a rig ht to appointed counsel to a ssist h im with his d efense. Gideon v

. W ainwright
, 372 U.S. 335, 3 4 2 (1963). B ecause this rig ht is “fundam e n t a l and essential to a fair trial,” id. ( quotation

m a r ks omitted), review in the F e deral Circuit could b e “adequate to the case ” o n l y if Sz a b o also had a rig ht to appointed counsel in those proceeding s. B ut n o such rig ht

ex ists. W hile Sz abo did e njoy the assistance of counsel in his criminal proceeding s, the majo r i ty ’ s h o lding would cause Sz a bo to confront the power and sophistication of the United States on his o wn. This amounts to a deprivation of the rig ht
to counsel, and therefore pre-enforcem e n t F ederal Circuit review would not have provided an “adequat e ” o pportunity for review.

Third, even if it w ere leg a lly possible for Sz abo to obtain pre-enforcement review in t h e F ederal Circuit, the majority
cannot dispute the e v ident impracticality an d u n realistic
nature o f this scenari o

. Sz a b o is an indig ent criminal defendant who h a d ne i t her the means nor the motive to pu rsue a pre-emptive lawsuit in a court on the other side o f the country

. By concluding that Sz abo nonetheless had a prior “opportunity ” to obtain judicial review, the majority has ventured to the boundaries of that word’s meaning

.

B y adopting this interpretation of the term “opportunity
, ” the majority ’s holding contravenes the principle thatU N I T E D S T A T E S V

. S Z

A B O 28

c o nstitutional judicial review is p resumed to be availabl e unless Cong r e s s ’ contrary intent is clear. Califano v

. Sanders
, 4 30 U.S

. 9 9
, 109 (1977). I n 5 U.S.C. § 703, Cong r ess has set out an ambig uous standard under w h i c h jurisdiction to conduct judicial review ex ists in enforcement proceeding s unless the de f endant had a prior a

nd adequate opportunity for review. The haz y line drawn by this statute stands in marked contrast t o instances where Cong ress has made its intent clear. See
, e.g ., 43 U .S.C. § 1652(d) (limiting jurisdicti o n over “claims alleg ing that an action will deny rig hts under the Constitution of the U nited States” to a six ty

day window); 42 U.S.C. § 7607(b) (2 )

. Apply ing the presumption in favor of

jurisdiction, I w ould c onclude that we may hear Sz ab o ’ s overbreadth defense because he had no

reasona ble o pportunity to obtain p rior and adequate judicial review. B y contrast, the majority ’s broad interpretation of the
term “opportunity ” construes 3 8 U .S.C. § 502 a nd 5 U.S.C. § 703 to strip jurisdiction as broadly as p o s s i b l e , which is contrary

to our rules of construction.

Fi nally
, the majority sug g ests that Sz abo had a “pri o r ” opportunity for review b ecause, p ost-indictment, he could have b roug h t a “parallel” p r o ceeding in the F ederal Circuit. A t b e s t , p a r a l l e l p r o c e e d i n g s w o u l d p r o v i d e a

co n t e mporaneous opportunity for review, not the prior opportunity required by 5 U .S.C. § 7 03. See H.R. Rep. No. 79-1980, pt. 4
, at 4 2 (1946) ( ex plaining that “prior” means “prior in time.”); S. Rep. No. 7 9

- 7 5 2
, pt. 4, at 27 (1946) (same); s e e a lso U.S. E.P.A. v

. General Elec. Co.
, 197 F .3d 592, 599 (2d Cir. 1999). Moreover, Sz abo was convicted only four and a half months a f t er b e ing charg ed, and cases filed in the F ederal Circuit take on averag e twice as long to be resolved on the merits. United States Court of Appeals for the F ederal Circuit, Median Disposition Time for CasesU N I T E D S T A T E S V

. S Z

A B O 29

D e c i d e d b y M e r i t s P a n e l s , a v a i l a b l e a t h t t p : / / w ww

. c a f

c

. u s c o u r t s

. go v / i m ag es/stories/Statistics/m e d %20disp%20time%20merits_chart.pdf. Thus, if any thing , a pa ra l lel proceeding in the F ederal Circuit would likely have been a “ subsequent” form of r eview, not a “prior” form o f review.

II. The M ajority’s Holding C ontradicts Article III of the Constitution.

The majority ’s interpretation of 38 U.S.C. § 502 a nd 5 U.S.C. § 703 leads it to the novel holding t h at C o n g ress may prevent federal courts from apply ing the Constitution in

an entire c lass of criminal cases. The majori t y does n ot c ite

a case w here a crimina l defendant has been barred under

c o m p a r a b l e c i r c u m s t a n c e s f r o m c h a l l e n g i n g t h e constitutionality of the law he is accused of violating

. Althoug h the majority relies h eavily o n Y akus
, the Y

akus Court e x plicitly stated that it had “no o c casion to decide

w hether one charg ed with criminal violation of a

. . . regulation may defend on the g round t h a t the regulation is

un c onstitutional on its face.” Y akus v. United States
, 321 U.S. 414, 446–47 (1944).

W h i l e this ex ceptional form of jurisdiction stripping mig ht be a

ppropriate in a narrow s et of circumstances, the majority ’s holding appears to a pply broadly

. The breadth of this holding ra i s es several questions. W hat constitutional defenses can C o n g ress require a criminal defendant to raise in the F ederal C i r c u it? Could Cong ress r equire criminal defendants to raise all constit utional challeng es to statutes and regulations in this w ay ? Th e m a jority neither acknowledg es nor addresses these questions. My concern isU N I T E D S T A T E S V

. S Z

A B O 30

that the majority ’s b r oad holding a ppears to approve unprecedented chang es in how judicial review is conducted.

I t belies our leg al tradition to conclude that Con g r e s s, without any

limits, can convene courts that enforce criminal laws but not the Constitution. “I t 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, disreg arding the constitu t i o n ; or conformably to the constitution, disreg ar ding the law; the court must determine which o f these conflicting rules g overns the case. This is of the very essence of judi c i a l duty .” Marbury v. Madison
, 5 U.S. 137, 177–78 (1803). Courts stripped of their authority
to apply the Constitution are no long er part of an independent branch of g overnment that ex ercises the “ j udicial Power o f the United States.” U.S. Const. A rt. I I I § 1; see also Estep v

. United States
, 327 U .S. 114, 126–27 (1946) ( Murphy
, J
., concurring ) (“Cong ress lacks any author i t y

. . . to command

a court to ex ercise criminal jurisdiction without reg a rd to d ue process of law or other individual rig hts.” (emphasis added)). Thus, b y c o ncluding that Cong ress may require courts to enforce c riminal law b u t broadly strip them of the authority
to apply constitu t i o n al law, the majority ’s holding violates Article I I I o f

the Constitution.

Constitutional review is integ ral to our conception o f justice and judicial power. An individual charge d w i th a crime ex pects that he will be tried before a court w i th full authority to protect his ri gh t s b y apply ing the law o f the United States. The majority casts doub t upon these

ex p ectations, and I

cannot ag ree.U N I T E D S T A T E S V

. S Z

A B O 31

III. Even if the We Lack Jurisdiction, We Should Stay the P roceedings to P erm it Szabo to P ursue Review in the F ederal Circuit.

F inally
, even if we lack jurisdiction to hear Sz abo’s overbreadth d e fense, we should n ot y et affirm h is conviction. I nstead, to insure that Sz abo may o btain judicial r eview in a court wit h j u r i s diction to hear this defense, we should g rant hi s request for a stay to allow him to pursue this d efense in the F ederal Circuit. Leyva v. Certified Grocers of California, Ltd. , 593 F .2d 857, 863 (9th Cir. 1979).

Sz a bo’s r equest for a stay to pursue review in the F ederal Circuit came late in these procee d i n g s, but this delay is justified by

the g overnment’s chang ing position in this case. The g overnment never contested the ex istence of jurisdiction

over Sz abo’s overbreadth argument i n the d istrict court. I nstead, it raised this argument for the first time in a letter to
t h e court filed less than a week before oral argument i n t h i s appeal. Sz abo soug ht F ederal Circuit review almost immediately after he learned of t h e g overnment’s new position, and thus soug ht review i n t h e F ederal Circuit with dilig ence appropriate to the circumstances.

IV. Conclusion

Sz a bo should be p ermitted to raise all of his constitutional defenses in these proceeding s. B ecause the majority r eaches a contrary result, I respectfully

dissent.