FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM J. SZABO,

Defendant-Appellant.

No. 12-10520

D.C. No.

2:12-cr-00206-

MCE-1

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.1In 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 merelybecause 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 securityguard 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 38C.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]‘contraryto 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 preenforcement 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 mightsupport 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 reviewprocedure 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 EmergencyPrice Control Act precluded a criminal

defendant from bringing any challenge to the price control

regulations outside of the sixty-dayreview procedure that was

available in the EmergencyCourt 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 sixtyday window); 42 U.S.C. § 7607(b)(2). Applying the

presumption in favor of jurisdiction, Iwould 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

De c i d e d b y Me rits Pa n e ls, a v a ilabl e 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.