united states court of appeals for the...

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15-35945

_________________________________________________________

UNITED STATES COURT OF APPEALS FOR THE NINTH

FEDERAL CIRCUIT

_________________________________________________________

William Scheidler,

Plaintiff, Appellant

V

James Avery, individually and in his official capacity as Kitsap

County’s Assessor; Alan Miles, individually and in his official

capacity as Kitsap County’s deputy prosecutor; M. Karlynn Haberly,

Individually and in her official capacity; Kay S. Slonim, Individually

and in her official capacity; Felice Congalton, Susan Carlson, David

Ponzoha, Zachary Mosner, Ione George individually and in her official

capacity, the Washington State Board of Tax Appeals (BoTA),the

Washington State Bar Association, and Jane and John Does, 1-100.

Defendants/Appellee.

_________________________________________________________

APPEAL FROM THE FEDERAL DISTRICT COURT, TACOMA, WA

CASE 3:12-cv-05996-RBL

_________________________________________________________

PETITION FOR REHEARING EN BANC (Fed. R. App. P. 35; 9th

Cir. R. 35-1 to -3)

William Scheidler

Petitioner/Appellant/Plaintiff Pro Per

1515 Lidstrom Place E

Port Orchard, WA 98366

360-769-8531

[email protected]

Case: 15-35945, 08/27/2017, ID: 10559805, DktEntry: 47, of 26

mailto:[email protected]

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I. REASONS FOR EN BANC REVIEW

(A) The panel decision conflicts with decisions of this Court in

Scheidler v Avery, et al .; Elks Nat. Foundation v. Weber;

United States v. Pocklington ; and the Supreme Court in

Parratt v. Taylor and Goldberg v. Kelly , and consideration

by the full court is therefore necessary to secure and

maintain uniformity of the court’s decisions;

The second panel provides no rationale allowing a public official ,

Avery, to re-write1 Washington’s laws to unlawfully deprive Scheidler

of is property in violation of the Article 7, sec 10 rights ; and then deny

access to the court to adjudicate post -deprivation remedies the laws

require. Appellees’ jobs were created to “protect and maintain

individual rights” as Article 1, sec 1 expressly states. There must be

“some meaningful opportunity subsequent to the initial taking for a

determination of rights and liabilities .” Parratt v. Taylor , 451, US 527,

541 - Supreme Court 1981. “[T]he right to be heard in a meaningful

manner at a meaningful time.” Elks Nat. Foundation v. Weber, 942 F.

2d 1480 - Court of Appeals, 9th Circuit 1991; includes the right “to

confront and cross-examine adverse witnesses”, Goldberg v. Kelly , 397

US 254 - Supreme Court 1970.

1 See United States v. Pocklington , 792 F.3d 1036, 1041 (9th Cir. Cal. 2015),

infra.


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Additionally, the second panel’s unreasoned determination to

deny Scheidler’s tax appeal because “Scheidler failed to identify any

error in the state tax agencies’ decision” conflicts with this Court’s

prior panel in Scheidler v Avery , et al. #13-35119 (March 30, 2015),

hereafter Scheidler 1. The first panel reversed Judge Leighton’s first

dismissal and mandated the tax matter heard. For the second panel to

uphold Judge Leighton’s second dismissal without any opportunity to

be heard despite the directive from this court in Scheidler 1, is

bewildering. En banc review should be granted.

(B) This proceeding involves questions of exceptional

importance and of first impression, on which the panel

decision is silent or conflicts with the authoritative

decisions of other United States Courts of Appeals that

addressed the issue.

The second panel’s further affirmation of Judge Leighton ’s

dismissal simply cites common law or ‘court rule authority’ . This also

collides with the first panel’s implication that state laws prohibit

dismissal. The collision between state laws v court rules raise issues of

first impression arising under the 10 t h amendment. From the words of

Washington’s constitution, article 1, sec 1, “governments derive their

just powers from the consent of the governed”. This case involves state

government exercising their powers in an unjust manner and they must


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get the consent of the governed . Judges are not the governed and cannot

use their rules to deprive the people their powers. Scheidler raised the

following arguments:

Scheidler’s RCW 4.04.010 state law challenge to federal pleading

standards of Iqbal/Twombly and common law dismissal of cases ,

which implicate 28 USC 1652; 28 USC 2072(b); and 28 USC 455

Scheidler argues the state’s constitution prohibits granting

immunity or immunity is lost when acting unlawfully, or immunity

is waived when the state elects to remove a case under 28 USC

1441. Ibid; and

Scheidler’s claim that denying a demanded jury trial leaves an

unacceptable consequence in judges-judging-judges concerning the

laws, rules, and powers of judges, specifically 28 USC 1652, 28

USC 2072, and 28 USC 455, which is a violation of 28 USC 455(a)

and (b), and a fraud upon society.

These 10 th Amendment issues involve the state’s Article 1, secs

1, 4 and 21 powers and rights as well as the Article 7 sec 10 right Avery

is violating. These rights are not frivolous rights of the people. RCW

4.04.010 was enacted to assure the people maintain all their political

power, which includes the power to make or reject common law.


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The US Supreme Court states in Shady Grove Orthopedic

Associates v. Allstate Ins., 130 S. Ct. 1431, 1442 (2010), “… If it

(federal rule) governs only "the manner and the means" by which the

litigants' rights are "enforced," it is valid; if it alters "the rules of

decision by which [the] court will adjudicate [those] rights," it is

not…”. Justice Stephens concurring, at 1449, “[w]hen a situation is

covered by one of the Federal Rules. . . the court has been instructed

to apply the Federal Rule" unless doing so would viola te the Act or the

Constitution. Hanna , 380 U.S. at 471, 85 S.Ct. 1136”, at 1450, “When

a State chooses to use a traditionally procedural vehicle as a means of

defining the scope of substantive rights or remedies, federal courts

must recognize and respect that choice. Cf. Ragan v. Merchants

Transfer & Warehouse Co ., 337 U.S. 530, 533, 69 S.Ct. 1233, 93 L.Ed.

1520 (1949)”

En banc review should be granted to address these 10 th

amendment issues of first impression that are ignored by the second

panel.

II. INTRODUCTION

Petitioner/Appellant William Scheidler, pursuant to 42 U.S.C §

1983 brought a claim in Washington State Superior Court against

Kitsap County Assessor, James Avery’s unlawful administration of the


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retired/disabled tax program provided by the s tate’s article 7 section

10. (Brief, dkt 2-1, pp 63-68). Avery’s statutory obligations are to

implement the Article 7 sec 10 right according to the procedures laid

out in law. Avery adds, omits and substitutes words of the controlling

law and uses an unlawful method of calculation, as the exhibits entered

validate, to intentionally raise income so as to deny the tax relief the

constitution provides.

All the other named government Defendants, who were known to

aid and abet Avery, joined in the removal of the state case to federal

court per 28 USC 1441. Then all defendants immediately motioned for

dismissal based in “11 th amendment immunity”, “common law

immunity” or “pleading deficiencies” . Judge Leighton granted

dismissal and denied leave to amend as futile. On appeal Scheidler

argued the facts and argued the immunity claims were unavailable –

both as a matter of law and/or by waiver. This Court in Scheidler 1,

reversed and remanded the case back to district court all claims against

all defendants except the claims based in federal criminal statutes. It

expressly ordered the district court address Avery’s improper

administration of the Article 7, sec 10 right , and to grant leave to amend

the other causes of action. It is a logical assumption the panel in

Scheidler 1 rejected all defendants’ claims of immunity and common


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law defenses because the court reversed dismissal. No doubt the court

also took into consideration the County prosecutor’s tactic to strip

Scheidler of his lawyer that forced Scheidler to proceed pro se against

the assessor. [Doc 58-2: [EP pp 194-248]]. Also likely considered is

the fact that every agency from the state’s AG, legislators, BOE, to the

BoTA disclaimed jurisdiction over Avery. Upon an amended complaint,

which added additional State officials and the Washington State Bar

due to events that occurred while the case was in appeal, defendants,

again, immediately motioned for dismissal upon the same grounds as

before – they never answered nor addressed the allegations, never

addressed Avery’s methodology or the laws that govern Avery in the

administration of the Article 7 sec 10 right, or addressed the evidence

that supported all Scheidler’s allegations. For example:

Doc 58-3: [EP 111-116] Exhibit - Kitsap County’s 2008

application PROVES, on page 3, first paragraph, that James

Avery alters the controlling law the application purports to cite ;

Doc 58-4: [EP 117-118] Exhibit - Dept of Revenue memo to WA

State Assessors that PROVES the fraud originates with the DOR

and is statewide;


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Doc 58-5: [EP 119-124] Exhibits – Scheidler was forced to sign

defendants’ ‘fraudulent applications’, under duress – a Class-C

Felony under RCW 9A.60.030.

In response, Scheidler cited to Article 1, secs 8, 12 and 28 –

constitutional provisions that defeat all defendants’ “immunity

claims”. Scheidler also argued defendants’ removal action must be

viewed as waiving all immunities (i.e., first panel’s remand) , and

“immunities are lost” when officials violate law . (Id. p 32)

Furthermore, if immunity is to be granted, the defendants must show

they are doing their job before immunity can be claimed – which is a

factual matter and for a jury. Judge Leighton without conducting any

hearings (other than a motion to disqualify himself per 28 USC 455),

disregarded it all and dismissed the case again for the same reasons

reversed in Scheidler 1 . In the order of dismissal Judge Leighton simply

noted the results of Avery’s calculation versus Scheidler’s calculation

without allowing Scheidler his procedural due process rights to

challenge and explain the differences – i .e., oral argument, witnesses,

cross-examination.

(Brief, dkt 2-1, pp 65-66, stating: “Judge Leighton notes Avery’s

computation of Scheidler’s disposable income. $112,457. [Dkt.

#1-2 at 39] For 2007, it was $75,190; for 2008, $51,495; and for

2009, $23,539. [See Dkt. #1-2 at 41, 43, and 45]”


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Scheidler disputes these amounts. Scheidler’s statutory

calculations of disposable income, which Leighton notes at dkt

115, pg 3 are: “$27,000; $-136,045; $28,703; and $21 ,300.”

The differences between Avery and Scheidler are huge:

$85,294; $211,045; $22,792; $2,239.)

Judge Leighton ignored the county’s extortion of Scheidler’s

lawyer, the claims by every state agency they lacked jurisdiction over

Avery, or how ‘court clerks’ obstruct appeals which forecloses

Washington State Supreme Court review and eliminates all chances for

US Supreme Court review. Therefore these matters raised by the

complaint remain unresolved. Furthermore, because Avery altered the

method to calculate income his calculations cannot be accepted as valid

before his method of calculation is determined lawful . Judge Leighton

placed the cart in front of the horse , granted immunities, and refused

Scheidler’s right to be heard. Back on appeal, the second panel has not

articulated the reasons it disagrees with the first panel by affirming

dismissal when the first panel reversed dismissal for abuses of

discretion.


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III. ARGUMENT

A. The Second Panel applied the wrong laws and ignores

matters of first impression2. Article 1 sec 1 controls.

i. When a jury is demanded, dismissal of a case is the role of

the jury.

The 2nd panel ignored as frivolous Scheidler’s claim a judge

doesn’t have the power under court rules to dismiss his case. RCW

4.04.010 proves Scheidler is right under the law. (Brief, dkt 2-1, pp

57-63). The second panel should have addressed this issue of first

impression concerning state law v court rules . See Schlagenhauf v.

Holder , 379 US 104 - Supreme Court 1964

RCW 4.04.010 Extent to which common law prevails.

The common law, so far as it is not inconsistent with the

Constitution and laws of the United States, or of the state of

Washington nor incompatible with the institutions and condition

of society in this state, shall be the rule of decision in all the

courts of this state.[ 1891 c 17 § 1; Code 1881 § 1; 1877 p 3 §

1; 1862 p 83 § 1; RRS § 143. Formerly RCW 1.12.030.]

RCW 4.04.010 by its very words renders the application of the

“common law” a jury function. This means the common law cannot be

used by a judge to dismiss a case as it deprives a jury of their plenary

powers. A ‘jury’ is the sole institution within the judicial branch

2 “[A]n issue of first impression that called for the construction and application

of Rule 35 in a new context … the Court of Appeals should have also, under

these special circumstances, determined the "good cause" issue, so as to avoid

piecemeal litigation and to settle new and important problems.” Schlagenhauf

v. Holder , 379 US 104, 111 (1964)


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through which the “people” exercise their inherent powers to determine

the conditions of society explicitly stated in Article 1, secs 1, and 4.

This is why a jury trial is an “inviolate right” per Article 1, sec 21 – to

insure the people’s powers are represented in the judicial branch. It is

the ‘people’ who have all the political power – not judges.

Additionally Article 2, sec 28(17) prohibits “special laws” that

limit civil actions – e.g., common laws derived from the “rules of

court” used to dismiss (limit) a civil action would be prohibited

“special legislation” . Because RCW 4.04.010 “qualifies the right [i.e.,

the plenary powers of the people] it becomes a part of the substantive

law rather than procedural... 158 Tex. at 201, 309 S.W.2d at 231”,

Johansen v. EI Du Pont De Nemours & Co. , 810 F. 2d 1377 - Court of

Appeals, 5th Circuit 1987; Id., Ragan v. Merchants Transfer &

Warehouse Co, supra.

Therefore en banc review of the second panel’s affirmation of

Judge Leighton’s second dismissal should be granted in light of the

substantive rights embodied in RCW 4.04.010 that have been ignored.

ii. RCW 34.05.570 does not control.

The panel improperly applied the Washington State

Administrative Procedure Act (APA), RCW 34.05.570(3). First and


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foremost the Board of Tax Appeals (BoTA) claimed it lacked

jurisdiction to hear Scheidler’s claim that Avery3 is misrepresenting the

law. (15-35945 @SER 52). Clearly, if the BoTA lacked jurisdiction to

address Avery’s misrepresentation there would not be an administrative

record for review or any finding(s) with which to find error . The

BoTA’s lack of jurisdiction removes the issue concerning Avery’s

unauthorized conduct from the APA as RCW 35.04.510(1) states, “this

chapter establishes the exclusive means for judicial review except

…the agency whose action is at issue does not have statutory authority

to determine the claim.”

Therefore Avery’s conduct is not an APA matter, it is a civil

action for a jury to evaluate. Avery, a public official, is expected to

perform his duties in a manner consistent with Article 1, sec 1, and as

instructed by RCW 84.36.379 to RCW 84.36.389. Under RCW

84.36.383, the statute is clear, Avery has no discretion to deviate from

the exact language of the law so as to increase the result of an income

calculation to deprive Scheidler, indeed all citizens, of his (their)

constitutional right. Misrepresenting the law to citizens (Id., docs 58 -

3 Avery is a county assessor, not an agency. The Board claims its jurisdiction is

limited to agency decisions .


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3 and 58-4 at EP 111-118) is not an authorized act and it unlawfully

deprives Scheidler of his property. Avery’s “adding, omitting and

changing words to a statute” runs afoul of this court’s holding in United

States v. Pocklington , 792 F.3d 1036, 1041 (9th Cir. Cal. 2015), stating

it is “a cardinal sin of statutory interpretation…We decline to 'read

words into a statute that are not there.'" United States v. Schales , 546

F.3d 965, 974 (9th Cir. 2008) (quoting United States v. Watkins , 278

F.3d 961, 965 (9th Cir. 2002)).

Even assuming Avery’s conduct falls within the jurisdiction of

the APA, misrepresenting the law squarely fits the criterial for judicial

review under RCW 34.05.570(3)

(b) “The order is outside the statutory authority or jurisdiction of

the agency conferred by any provision of law”; and

(d) “The agency has erroneously interpreted or applied the law;”

(Brief, dkt 2.1, pp 63-69)

The panel decision to uphold dismissal based upon APA criteria,

is wrong as a matter of law. “If a trial court has tenable grounds for a

decision but applies the wrong law, it errs as a matter of law. Moreover,

whatever its stated reasons under the inapplicable standard, these

reasons are no longer reasonable under the controlling legal standard.”

Estate of Stalkup v. Vancouver Clinic, Inc., PS , 145 Wn. App. 572


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(Wash. Ct. App. 2008); "[w]hen a court misapprehends or fails to apply

the law with respect to underlying issues, it abuses its

discretion." Gunnells v. Healthplan Servs. Inc., 348 F.3d 417, 446 (4th

Cir.2003); see also United States v. Brown, 415 F.3d 1257, 1266 (11th

Cir.2005) ("An abuse of discretion can occur where the district court

applies the wrong law....").

En banc review of Avery’s misrepresentations should be granted.

iii. Iqbal/Twombly pleading standards are inapplicable in

Washington as they ‘abridge’ Article 1, sec 4’s right of

petition and render’s Article 1, sec 1 irrelevant .

The federal courts have yet to address the correct pleading

standard in Washington, mandated by 28 USC 1652, which is controlled

by RCW 4.04.010, RCW Ch. 4.36, RCW Ch. 4.32 that define “common

law application” “pleadings” and the remedy for “pleading

deficiencies”. These laws are substantive rights of the Appellant and

the People in fulfillment of the state’s Article 1, sec 4 – right of

petition that shall never be abridged . Because these statutes “qualifies”

the rights of the people, including Scheidler but excluding

defendants/appellees , it becomes a part of the substantive law rather

than procedural .” Id., Johansen v. EI Du Pont De Nemours & Co ., 810

F. 2d 1377 - Court of Appeals, 5th Circuit 1987.


https://scholar.google.com/scholar_case?case=3307804052476038428&q=%22applying+the+wrong+law%22&hl=en&as_sdt=6,48




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RCW 4.36.170 requires only a material allegation to maintain a

civil action . The allegation is “Avery, without consent, is re -writing

law to unjustly deprive Scheidler (an others) his Article 7, sec 10

rights.”

Both RCW 4.32.250 and RCW 4.36.240 require the court to

remedy defects “which shall not affect the substantial rights of the

adverse party”4. As Cudihee5 makes clear, Appellees as far as their

office is concerned, which is what this case is about, have no rights

whatever . Therefore the court, as the laws mandate, is obligated to

remedy any pleading deficiency to protect and maintain6 Appellant’s

right of petition and the people’s right to address the petition . These

laws “qualify” Article 1, sec 1, and Article 1, sec 4 and, as the 5 th

Circuit holds, are substantive rights of the Appellant – and are rights

only due the Appellant, as Cudihee and Art 1, sec 1 clearly state.

4 “[A]mended by the court” is further described by RC W 2.48.230 and the rules

for professional conduct. It requires the lawyers to present any fact or law that

may have been omitted. 5 “The people, speaking in the manner provided by law, may discharge their

public officers for any cause, or without any cause , as their laws may provide.

Indeed, the people's rights are as complete in that respect as when they choose

such officer. In other words, as against the people, a public officer, their

servant, has no rights whatever, so far as his possession of the office is

concerned, which may not be ignored by the people speaking in a lawful

manner.” Cudihee v. Phelps , 76 Wash. 314 (Wash. 1913). 6 Ref: Article 1, sec 1


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Furthermore, Washington State’s Supreme court re jected

adopting Twombly and Iqbal standards of pleading in McCurry v. Chevy

Chase Bank, FSB , 169 Wn.2d 96. [CP 147]. Under the US 10 th

amendment, state law7 controls this case and this Court must declare

Twombly/Iqbal pleading standards collide with the state’s standards

mandated by RCW 4.04.010, supra, and do not apply. Id., Shady Grove

Orthopedic Associates v. Allstate Ins.

En banc review should be granted to address this pleading issue

of first impression.

iv. The Immunity Doctrine does not apply

If “immunity” is the premise underlying the second panel’s denial

to amend as futile, then the first panel differs with the second panel on

this state law issue. The ‘Immunity doctrine’ is a vestige of the common

law that dates back 100’s of years. When the delegates assembled for

Washington’s constitutional convention , circa 1889, this ‘common law

doctrine’ was common knowledge. The state’s delegates recognized

the dangers in ‘unaccountability’ and how it breeds corruption. That is

why they took direct steps to abolish hereditary emoluments,

7 See 28 USC 1652


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privileges, and powers , and to prohibit granting or conferring

‘privileges and powers’ in this state. This is enshrined in Article 1, sec

28. The delegates went further, they wrote into the S tate’s constitution

declaring, “no law shall be passed granting to any citizen, class of

citizens, or corporation other than municipal, privileges or immunities

which upon the same terms shall not equally belong to all citizens, or

corporations.” This is Article 1, sec 12. The delegates’ aversion to

“privileges and immunities” is also evident in Article 1, sec 8, “No law

granting irrevocably any privilege, franchise or immunity, shall be

passed by the legislature.”

Given states’ rights to enact its own laws as the 10 th amendment

guarantees, “privileges and immunities and unaccountable powers” are

prohibited unless every person has the same ‘powe rs, privileges, and

immunities’. Essentially anyone with a ‘privilege or immunity’ such

as Avery deciding to re-write laws without consequence, or Judge

Leighton determining his own compliance with 28 USC 455, or the

immunity claimed by other defendants for their violation of the laws

that govern their conduct , must be a ‘privilege and immunity’ that

everyone is entitled.


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Notwithstanding the State’s 10 th amendment right8 to abolish

“privileges and immunities”, this Court holds, and the first panel seems

to agree, “Officials who knowingly violate the law are not entitled to

immunity. 135 S. Ct. at 1774 (quoting Ashcroft, 131 S. Ct. 2085)”.

Ninth Circuit, Hardwick v County of Orange , et al., No. 15-55563 D.C.

No. 8:13-cv-01390-JLS-AN, (Jan. 2017).

Furthermore, this Court citing the US Supreme Court holds

“immunity” is “waived” when a defendant removes a case from state

court to federal court – as in this case. Removal of a state action to

federal court is to submit to the ‘jurisdiction of the federal court ’

therefore all ‘immunity’ is waived . Embury v. King , 361 F. 3d 562 -

Court of Appeals, 9th Circuit 2004, citing Lapides v. Bd. of Regents of

Univ. Sys. of Ga. , 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806

(2002).

En banc review should be granted regarding the second panel’s

denial to amend as futile in light of Washington’s constitution and

precedent law to the contrary.

8 See Shady Grove Orthopedic Associates v. Allstate Ins., supra.


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v. Dismissal at the pleading stage is improper; the scope of a

public employee’s job duties is a question of fact for a jury.

If immunity applies at all in Washington State, then those

claiming immunity must be acting in their official capacity9. Avery

has no authority to alter laws or deny constitutional rights . The other

government appellees are not acting in their official capacity when they

aid and abet in Avery’s misconduct – immunity cannot attach to

unlawful acts by government officials. This court holds “when there

are genuine and material disputes as to the scope and content of the

plaintiff's [defendants’] job responsibilities, the court must reserve

judgment … until after the fact-finding, Dahlia v. Rodriguez , 735 F. 3d

1060 - Court of Appeals, 9th Circuit 2013, citing Posey v. Lake Pend

Oreille School Dist. No. 84 , 546 F. 3d 1121 - Court of Appeals, 9th

Circuit 2008.

These 9 th Circuit holdings are compatible with the state’s broad

public policy expressed in Article 2, sec 28(12) – unauthorized or

invalid acts by any official shall never be legalized. Therefore, Judge

Leighton’s dismissal at the pleading stage and the pan el’s unreasoned

9 First , a judge is not immune from liability for nonjudicial actions, i . e. ,

actions not taken in the judge's judicial capacity. Forrester v. White , 484 U. S.,

at 227-229; Stump v. Sparkman , 435 U. S., at 360. 12*12 Second, a judge is not

immune for actions, though judicial in nature, taken in the complete absence of

all jurisdiction. Id., at 356-357; Bradley v. Fisher , 13 Wall. , at 351.


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affirmation of dismissal is contrary to these authorities and should be

reviewed en banc.

B. Institutional conflict of interest

In this case between a citizen concerning the conduct of the

State’s officials, the 10 th amendment must control. Congress passed 28

USC 1652 to ensure the line between federal and state powers is

respected. When such a case is dismissed at the pleading stage under

court rule powers, based upon federal common law holdings , the State’s

laws that collide with the federal common laws , as argued above, are

rendered irrelevant. Thereafter ‘bias and fiduciary conflict’ permeate

the appeal process. Said another way, judges-are judging-judges

concerning their powers, limitations , obligations and the laws that

apply to judges, such as 28 USC 1652, 28 USC 2072(b) and 28 USC

455, and that presents an institutional conflict without a fair forum for

its resolution. In this case, it is the people of the state of Washington

who determine if state government is acting as ‘authorized’ . Otherwise

Article 1, sec 1 is meaningless . Congress enacted 28 USC 455(a) and

(b), 28 USC 1652, and 28 USC 2072(b) to insure “government doesn’t

decide for itself that it is the masters over citizens”. In Washington,

as Article 1, secs 1, 4, 21 provides and the state’s Supreme Court holds,

“To permit branches to measure their own authority would quickly


21

subvert the principle that state governments, while governments of

general powers, must govern by the consent of the people as expresse d

by the constitution.” Wash. State Labor Council v. Reed , 149 Wn.2d 48

(Wash. Apr. 3, 2003), Chambers concurring.

IV. CONCLUSION

For the reasons the panel doesn’t address: the extortion scheme

depriving Appellant of counsel; clerks refusing to file pleadings

denying all due process; questions of jurisdiction over Avery’s

misrepresentations; the lack of any discussion of the facts; how adding

words to a statute to change the statutes purpose warrants immunity,…

en banc review should be granted.

For the panel’s decision, without explanation, which conflicts

with the prior panel’s decision in the same case; conflicts with long

established holdings by this circuit; concerns issues of first impression

and 10 th amendment rights, en banc review should be granted.

William Scheidler, pro se, all rights reserved.


Form 11. Certificate of Compliance Pursuant to 9th Circuit Rules 35-4 and 40-1 for Case Number

Note: This form must be signed by the attorney or unrepresented litigant and attached to the back of each copy of the petition or answer.

I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached petition for panel rehearing/petition for rehearing en banc/answer to petition (check applicable option):

or

Contains words (petitions and answers must not exceed 4,200 words),and is prepared in a format, type face, and type style that complies with Fed. R. App. P. 32(a)(4)-(6).

Is in compliance with Fed. R. App. P. 32(a)(4)-(6) and does not exceed 15 pages.

Signature of Attorney or Unrepresented Litigant

("s/" plus typed name is acceptable for electronically-filed documents)

Date

(Rev.12/1/16)

15-35945

4186

"s/" William Scheidler 8/27/2017


NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM SCHEIDLER,

Plaintiff-Appellant,

v.

JAMES AVERY, individually and in his

official capacity as Kitsap County's

Assessor; et al.,

Defendants-Appellees.

No. 15-35945

D.C. No. 3:12-cv-05996-RBL

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Submitted August 9, 2017**

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

William Scheidler appeals pro se from the district court’s judgment

dismissing with prejudice his action arising from the denial of a property tax

exemption. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). Scheidler’s request for oral

argument, set forth in his opening brief, is denied.

FILED

AUG 14 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Case: 15-35945, 08/14/2017, ID: 10542764, DktEntry: 46-1, Page 1 of 3(1 of 8)


2 15-35945

Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995) (dismissal for failure to state a

claim under Fed. R. Civ. P. 12(b)(6)); Stuewe v. Dep’t of Revenue, 991 P.2d 634,

636 (Wash. Ct. App. 2000) (proceedings before the Washington State Board of

Tax Appeals). We affirm.

The district court properly denied Scheidler’s state tax appeal because

Scheidler failed to identify any error in the state tax agencies’ decisions. See

Wash. Rev. Code §§ 34.05.570(3) (circumstances under which court may grant

relief from agency decision), 84.36.383(5) (definition of “disposable income”).

The district court properly dismissed Scheidler’s action because Scheidler

failed to allege facts sufficient to state any plausible claim. See Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” (citation and internal quotation marks omitted)).

The district court did not abuse its discretion in denying Scheidler leave to

amend because amendment would have been futile. See U.S. ex rel. Lee v.

Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (setting forth standard of

review).

The district court did not abuse its discretion in denying Scheidler’s motion

for recusal of the district judge because Scheidler failed to identify a ground for

recusal. See 28 U.S.C. §§ 144, 455; Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th



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Cir. 2008) (standard of review).

We reject as meritless Scheidler’s contentions that the district court lacked

authority to decide the motions to dismiss, that federal pleading standards are

inapplicable, and that the district court failed to comply with this court’s prior

mandate.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

To the extent Scheidler seeks reconsideration of this court’s prior order

denying his petition for a writ of mandamus, see Scheidler v. U.S. Dist. Ct. for W.

Dist. Of Wash., Tacoma, No. 15-73135, his request is denied.

Appellees Avery, Miles, Haberly, and George’s motion for sanctions

(Docket No. 27) is denied. See Glanzman v. Uniroyal, Inc., 892 F.2d 58, 61 (9th

Cir. 1989) (decision to award sanctions under Rule 38 is discretionary).

Appellee Washington State Bar Association’s motion to take judicial notice

(Docket No. 31) is granted.

AFFIRMED.



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"s/" William Scheidler

15-35945

8/27/2017


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