Eva Moore v. John Urquhart

This is a class action challenging the constitutionality of

a Washington statute that allows tenants to be evicted from

their homes without a court hearing. Plaintiffs seek

declaratory and injunctive relief against the Sheriff of King

County, whose office enforces the challenged statute by

executing the eviction orders. The district court dismissed

the action with prejudice on grounds that the Sheriff rightly

does not attempt to defend on appeal. We conclude that the

Sheriff’s alternative arguments for affirmance also lack merit

and therefore reverse and remand for further proceedings.

I

The plaintiffs in this action, Eva Moore and Brooke

Shaw, rent an apartment together in King County,

Washington. (We will ignore for now a second set of

plaintiffs who lack standing to bring suit for reasons

explained a bit later.) In May 2016, after plaintiffs fell

behind on their rent, their landlord filed an unlawful detainer

action seeking to evict them.

Under Washington’s Residential Landlord-Tenant Act,

Wash. Rev. Code § 59.18.010 et seq., a landlord has two

distinct pathways to pursue eviction: one that is available in

all cases, and a second, alternative procedure available only

when the ground for eviction is non-payment of rent. Both

procedures start out the same way, with the landlord filing an

action in superior court and serving the tenant with a

summons and complaint. §§ 59.12.070, 59.18.365. If the

landlord pursues the generally applicable procedure, the

6 MOORE V. URQUHART

landlord must request, and the court must schedule, a “show

cause” hearing at which the tenant can appear and present any

legal or equitable defenses available to contest her eviction.

§§ 59.18.370, .380. If the tenant fails to show up for the

hearing, or if the court rejects the tenant’s asserted defenses

at the hearing, the court will issue a “writ of restitution”

directing the county sheriff to restore possession of the

property to the landlord. Under this procedure, a hearing will

always be scheduled before a writ of restitution is issued.

The second procedure, the one at issue here, is authorized

by Washington Revised Code § 59.18.375, which for ease of

reference we will refer to as § 375. As noted, it applies only

when the basis for eviction is non-payment of rent. Under

§ 375, the landlord serves the tenant with a written notice, the

terms of which are dictated by statute. The notice must

advise the tenant that “[t]he landlord is entitled to an order

from the court directing the sheriff to evict you without a

hearing,” unless the tenant takes one of two actions.

§ 59.18.375(7)(f). The two actions are spelled out as follows:

YOU MUST DO THE FOLLOWING BY THE

DEADLINE DATE:

1. Pay into the court registry the amount your

landlord claims you owe set forth above and

continue paying into the court registry the

monthly rent as it becomes due while this

lawsuit is pending;

OR

2. If you deny that you owe the amount set

forth above and you do not want to be evicted

MOORE V. URQUHART 7

immediately without a hearing, you must file

with the clerk of the court a written statement

signed and sworn under penalty of perjury

that sets forth why you do not owe that

amount.

Id.

If the tenant fails to take either of these actions within the

stated deadline, the landlord is entitled to “immediate

issuance of a writ of restitution without further notice to the

[tenant].” § 59.18.375(4). No hearing is required under

§ 375, although a hearing will be held if the tenant requests

one. Id. The statutorily prescribed notice does not advise

tenants of their right to request a hearing.

The landlord in this case chose to evict plaintiffs using the

procedure authorized by § 375. In late May 2016, the

landlord served them with the notice just described. It gave

plaintiffs until June 6, 2016, to take one of the two specified

actions. They did not have the $3,300 the landlord claimed

they owed, so they could not pay that amount into the court

registry. Nor could they truthfully assert that they did not

owe the $3,300, so they took no action within the stated

deadline. On June 21, 2016, without holding a hearing, the

court issued a writ of restitution directing the Sheriff to evict

plaintiffs from their apartment. On June 27, 2016, before the

Sheriff could execute the writ, plaintiffs filed a motion to stay

its execution, which the court granted.

On July 5, 2016, plaintiffs filed this action in state court

challenging the constitutionality of § 375. In substance, they

contend that § 375 violates the Due Process Clause of the

Fourteenth Amendment because it authorizes a tenant’s

8 MOORE V. URQUHART

eviction without requiring a court hearing beforehand.

Plaintiffs filed an amended complaint later in July, which is

the operative complaint here. The amended complaint added

an additional set of plaintiffs, Cherrelle Davis and Nina

Davis, and restyled the action as a class action brought on

behalf of “[a]ll tenants who have been or will be served by

the King County Sheriff’s Office with a writ of restitution

issued pursuant to RCW 59.18.375 on or after July 18, 2013.”

The amended complaint requests a declaration that § 375 is

facially unconstitutional and an injunction prohibiting the

Sheriff from enforcing writs of restitution issued pursuant to

the statute. The Sheriff removed the action to federal court.

Because plaintiffs’ action challenges the constitutionality

of a state statute, the district court invited the State of

Washington to intervene to defend the statute. See 28 U.S.C.

§ 2403(b). Before the State entered an appearance, though,

the district court granted the Sheriff’s motion for judgment on

the pleadings under Federal Rule of Civil Procedure 12(c).

The court held that § 375 does not violate the Due Process

Clause because, contrary to plaintiffs’ contention, the statute

actually does require a hearing in all cases before a writ of

restitution may be issued. Under that reading of the statute,

the court concluded, plaintiffs had not stated a claim that

§ 375 was unconstitutional and any further attempt to amend

the complaint would be futile. The court accordingly

dismissed the action with prejudice and denied plaintiffs’

motion for class certification as moot.

II

Our first order of business is to determine whether we

have jurisdiction to hear plaintiffs’ appeal. The Sheriff

argues that we do not, both because plaintiffs lack standing to

MOORE V. URQUHART 9

sue and because the case is now moot. We find both

arguments unpersuasive.

The original plaintiffs, Moore and Shaw, had standing to

sue at the time they filed this action, which is the relevant

time frame for analyzing Article III standing. Davis v.

Federal Election Commission, 554 U.S. 724, 734 (2008).

When they filed suit on July 5, 2016, Moore and Shaw had

been served with a writ of restitution issued under § 375. The

writ had not been executed and had not yet expired—it

remained valid until July 21, 2016. Plaintiffs therefore

plausibly alleged: (1) that they faced a concrete,

particularized, and imminent injury (being evicted from their

home); (2) that the injury was fairly traceable to the conduct

they sought to enjoin (the Sheriff’s execution of a writ of

restitution issued under § 375); and (3) that the injury would

likely be redressed by a favorable ruling (invalidating § 375

would void the writ authorizing their eviction). Those

allegations suffice to establish Article III standing. See id. at

733; Yesler Terrace Community Council v. Cisneros, 37 F.3d

442, 446–47 (9th Cir. 1994).

However, we agree with the Sheriff that neither of the

Davis plaintiffs had standing to sue when they were added to

the action toward the end of July. By then, a state court judge

had not only issued a writ of restitution authorizing their

eviction under § 375; the Sheriff had executed the writ and

evicted them, rendering them homeless as a result. A

favorable ruling invalidating § 375 would not redress the

injury they had already suffered, as the amended complaint

seeks only declaratory and prospective injunctive relief, not

damages. (The amended complaint does request nominal

damages, but at oral argument plaintiffs’ counsel disclaimed

any intent to pursue such damages.) It is true that at some

10 MOORE V. URQUHART

point in the future the Davises might find another apartment,

might again be unable to pay the rent, and thus might again

face eviction through proceedings brought under § 375. But

at the time they were added as plaintiffs, the Davises were not

even renting an apartment. That circumstance left their

prospects of future injury too speculative to support Article

III standing. See Clapper v. Amnesty International USA,

568 U.S. 398, 410 (2013); City of Los Angeles v. Lyons,

461 U.S. 95, 105–06 (1983).

With respect to mootness, Moore and Shaw concede that

their claims for declaratory and injunctive relief have become

moot. The writ of restitution has long since expired, and they

eventually settled the dispute with their landlord over unpaid

back rent. But there are exceptions to the mootness doctrine,

one of which provides that an otherwise moot dispute remains

live for Article III purposes if it is “capable of repetition, yet

evading review.” Davis, 554 U.S. at 735 (internal quotation

marks omitted). This exception applies if “(1) the challenged

action is in its duration too short to be fully litigated prior to

cessation or expiration, and (2) there is a reasonable

expectation that the same complaining party will be subject

to the same action again.” Id. (internal quotation marks

omitted).

Both prongs are satisfied here. First, the challenged

action—issuance and execution of writs of restitution under

§ 375—unfolds over a very short period of time. After a

tenant receives the notice required under § 375, her response

is typically due within seven days. See Wash. Rev. Code

§ 59.18.375(7)(a). If the tenant does not take one of the two

specified actions before the deadline passes, the landlord is

entitled to “immediate” issuance of the writ, § 59.18.375(4),

and the writ is enforceable for only a limited period of time,

MOORE V. URQUHART 11

typically 30 days. A facial challenge to § 375 cannot be fully

litigated before the underlying dispute becomes moot,

because in the interim the writ will either be executed or

expire by its own terms. While the tenant may be able to stay

the writ’s execution, see id., the writ will nevertheless expire

within a matter of weeks, and there is no indication in the

statutory scheme that the writ’s expiration can be stayed. See

Greenpeace Action v. Franklin, 14 F.3d 1324, 1330 (9th Cir.

1992). Thus, the action will remain live for only one or two

months, a period far too short to enable federal court review.

See Wildwest Institute v. Kurth, 855 F.3d 995, 1003 (9th Cir.

2017) (one or two years is typically too short a period to

permit federal court review).

Second, it is reasonable to expect that at some point in the

future Moore and Shaw will again fall behind on their rent

and thus could again be subject to eviction proceedings under

§ 375. Unlike the Davises, Moore and Shaw continue to live

in the same apartment and pay rent to the same landlord, who

we know is willing to invoke § 375’s procedures to evict nonpaying

tenants. Nothing in the record suggests that Moore

and Shaw’s financial circumstances have dramatically

improved, so they remain as vulnerable as before to the sorts

of hardships (health issues, loss of employment, etc.) that left

them unable to make ends meet back in June 2016. As the

Supreme Court has acknowledged, the likelihood of future

harm required to avoid mootness is not as high as that

required to establish standing in the first instance. Friends of

the Earth, Inc. v. Laidlaw Environmental Services (TOC),

Inc., 528 U.S. 167, 190–91 (2000). In these circumstances,

it is reasonably likely that Moore and Shaw will once again

find themselves in need of the same declaratory and

injunctive relief that they sought at the outset of this

litigation.

12 MOORE V. URQUHART

The Sheriff argues that, even if the plaintiffs have shown

that this dispute is capable of repetition, they have not shown

that it will evade review because plaintiffs could always raise

their constitutional challenge to § 375 in the eviction

proceedings themselves. But the availability of review in

state court is not relevant to determining whether Article III’s

requirements are satisfied. A dispute evades review for

purposes of the “capable of repetition, yet evading review”

exception if the challenged action will run its course before

the matter can be fully litigated in federal court, including

review on appeal. See Hubbart v. Knapp, 379 F.3d 773, 778

(9th Cir. 2004). That is the situation here.

III

Turning now to the merits, we take up first the district

court’s reasons for dismissing the action and then address the

alternative arguments raised by the Sheriff.

A

The district court dismissed plaintiffs’ action based on a

misreading of the statute in question. The court held that

§ 375 requires state courts to schedule a hearing in all cases

before a writ of restitution may be issued. The Sheriff does

not attempt to defend the district court’s reading of the

statute, and the State of Washington, appearing as amicus

curiae, affirmatively argues that the court misconstrued the

statute. We agree that the text of § 375 precludes the district

court’s interpretation.

The district court correctly held that, under Washington’s

Residential Landlord-Tenant Act, a hearing is ordinarily

required before a writ of restitution may be issued. See

MOORE V. URQUHART 13

Wash. Rev. Code §§ 59.18.370, .380. But the court erred by

assuming that the same hearing requirement applies in

proceedings under § 375. It does not. Section 375 provides

an alternative, “summary method” of eviction that may be

invoked only when the basis for eviction is non-payment of

rent. Duvall Highlands LLC v. Elwell, 19 P.3d 1051, 1053

(Wash. Ct. App. 2001). When a landlord proceeds under

§ 375, the landlord need not request (and the court need not

schedule) a hearing at which the tenant may appear to present

whatever legal or equitable defenses she may have. Instead,

the landlord simply serves the tenant with the notice required

under § 375. If the tenant fails to take either of the actions

specified in the notice, the landlord is entitled, without more,

to “immediate issuance of a writ of restitution.” Wash. Rev.

Code § 59.18.375(4). The text of § 375, by dictating the

contents of the notice that tenants must receive, makes clear

that a hearing is not mandatory. The notice advises the tenant

that if she fails to take either of the specified actions, the

landlord will be “entitled to an order from the court directing

the sheriff to evict you without a hearing.” § 59.18.375(7)(f)

(emphasis added). The district court erred by holding that

this provision requires a hearing in all cases.

None of this is to say that a hearing is prohibited in

proceedings under § 375. As mentioned earlier, the statute

provides that a “show cause” hearing will be held if the tenant

requests one. Indeed, even if a writ of restitution has already

been issued, the tenant can still request “a hearing on the

merits and an immediate stay of the writ of restitution.”

§ 59.18.375(4). The very presence of this provision, of

course, confirms that a writ of restitution may be issued under

§ 375 without a hearing having been held beforehand.

14 MOORE V. URQUHART

The district court relied heavily on Housing Authority of

the City of Pasco and Franklin County v. Pleasant, 109 P.3d

422 (Wash. Ct. App. 2005), where the court stated that the

Residential Landlord-Tenant Act creates a “mandatory duty”

to hold a hearing before a writ of restitution is issued. Id. at

427. But the court in that case was interpreting the statutory

provisions governing the generally applicable eviction

procedure created by §§ 59.18.370 and 59.18.380, under

which a hearing is required. The court did not construe the

separate eviction procedure authorized by § 375, a provision

inapplicable on the facts at issue there because the tenant’s

eviction was based on lease violations and criminal activity,

not on failure to pay rent. Id. at 424. We do not read the

decision in Pleasant as holding (or even suggesting) that the

mandatory hearing requirement applicable under

§§ 59.18.370 and 59.18.380 applies in proceedings brought

under § 375.

In dismissing plaintiffs’ action with prejudice, the district

court also stated that the action “seems to be in the nature of

mandamus,” a form of relief the court believed it lacked

jurisdiction to grant. The court’s statement was predicated on

its erroneous reading of § 375. Having held that § 375

requires a hearing in all cases, the court construed plaintiffs’

complaint as requesting an injunction compelling the judges

of King County Superior Court to conduct the hearings that

§ 375 supposedly requires. But plaintiffs seek no such relief.

They have instead requested an injunction prohibiting the

Sheriff from enforcing a state statute that is allegedly

unconstitutional because it does not require a hearing. As we

explain below, that is a form of relief the district court has

jurisdiction to grant.

MOORE V. URQUHART 15

Finally, the district court suggested that this case might be

barred by the Rooker-Feldman doctrine, which precludes

federal district courts from exercising jurisdiction over cases

“brought by state-court losers complaining of injuries caused

by state-court judgments rendered before the district court

proceedings commenced and inviting district court review

and rejection of those judgments.” Exxon Mobile Corp. v.

Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005). The

doctrine does not apply here because plaintiffs are not asking

the district court to review and reject the judgment entered

against them in state court. The state court judgment merely

resolved the landlord’s unlawful detainer action; it did not

resolve whether § 375 is facially constitutional, the challenge

plaintiffs seek to litigate here. Thus, rather than seek to

overturn the state court judgment itself, plaintiffs have instead

challenged the facial validity of the statute under which their

state court proceedings were conducted, an independent claim

that “encounters no Rooker-Feldman shoal.” Skinner v.

Switzer, 562 U.S. 521, 532 (2011). As the Court noted in

Skinner, “a state-court decision is not reviewable by lower

federal courts, but a statute or rule governing the decision

may be challenged in a federal action.” Id. Even if plaintiffs

could have litigated their constitutional challenge in the

unlawful detainer proceedings, as the district court appeared

to assume, that fact might be relevant to preclusion analysis,

but it would not trigger application of the Rooker-Feldman

doctrine. See id. at 533 n.11 (“Rooker-Feldman is not simply

preclusion by another name.”) (internal quotation marks

omitted).1

1 Plaintiffs’ action is not barred by claim preclusion, as the Sheriff

incorrectly asserts, because Washington law (which determines the

preclusive effect of the judgment here, see Kremer v. Chemical

Construction Corp., 456 U.S. 461, 466 (1982)) does not grant a judgment

16 MOORE V. URQUHART

B

The Sheriff raises two principal arguments in defense of

the district court’s judgment. First, he contends that

plaintiffs’ action must be brought, if at all, under 42 U.S.C.

§ 1983 and that the amended complaint fails to state a viable

claim under that statute. Second, the Sheriff argues that

plaintiffs’ action is barred in any event by the doctrine of

judicial immunity.

The Sheriff’s first argument is plainly without merit.

Plaintiffs would be required to proceed under 42 U.S.C.

§ 1983 if they sought to recover money damages. But they

are seeking only declaratory and injunctive relief against the

Sheriff in his official capacity—a declaration that § 375 is

facially unconstitutional and an injunction barring him from

enforcing writs of restitution issued under the statute. To

obtain that relief, plaintiffs do not need a statutory cause of

action. They can rely on the judge-made cause of action

recognized in Ex parte Young, 209 U.S. 123 (1908), which

permits courts of equity to enjoin enforcement of state

statutes that violate the Constitution or conflict with other

federal laws. See Armstrong v. Exceptional Child Center,

Inc., 135 S. Ct. 1378, 1384 (2015).

Congress may enact statutes with a detailed remedial

scheme that explicitly or implicitly displaces the judge-made

claim preclusive effect unless the parties to the first suit were identical to,

or in privity with, those in the second. See Spokane Research & Defense

Fund v. City of Spokane, 117 P.3d 1117, 1123 (Wash. 2005); Landry v.

Luscher, 976 P.2d 1274, 1277–78 (Wash. Ct. App. 1999). The Sheriff is

not in privity with Moore and Shaw’s landlord, the opposing party in the

unlawful detainer proceedings.

MOORE V. URQUHART 17

equitable remedy available under Ex parte Young. In such

cases, a plaintiff must rely on a statutory cause of action in

order to bring suit. See, e.g., id. at 1385–86; Seminole Tribe

of Florida v. Florida, 517 U.S. 44, 75–76 (1996). But

Congress has enacted no statute that would foreclose an Ex

parte Young action to enjoin enforcement of an allegedly

unconstitutional state law like § 375. The only statute the

Sheriff identifies, 42 U.S.C. § 1983, at most imposes

limitations on the remedies available in certain actions

brought against judicial officers, as we discuss below.

Section 1983 does not displace the availability of an Ex parte

Young action altogether.

Actions under Ex parte Young can be brought against

both state and county officials, see Planned Parenthood of

Idaho, Inc. v. Wasden, 376 F.3d 908, 919–20 (9th Cir. 2004),

so it is unnecessary for us to resolve the parties’ dispute over

whether the Sheriff acts on behalf of King County or the State

of Washington when he executes writs of restitution. The

only issue is whether the Sheriff has at least “some

connection” to enforcement of the allegedly unconstitutional

eviction procedure authorized by § 375. Id. at 919. He does,

because Washington law assigns county sheriffs the power

and duty to serve and execute writs of restitution issued under

§ 375. Wash. Rev. Code § 59.18.390. The Sheriff’s role in

executing those writs makes him a proper defendant in an Ex

parte Young suit seeking to enjoin enforcement of § 375.

The Sheriff’s second argument is that, even if plaintiffs

have a viable cause of action under Ex parte Young, he is

nonetheless entitled to judicial immunity for his conduct.

Judicial immunity is a common law doctrine developed to

protect judicial independence. Pierson v. Ray, 386 U.S. 547,

554 (1967). It bars suits against judges, and other officials

18 MOORE V. URQUHART

who exercise “discretionary judgment” similar to that of

judges, when the plaintiff’s suit is predicated on actions taken

in the judge’s judicial capacity. Antoine v. Byers &

Anderson, Inc., 508 U.S. 429, 436 (1993). The Sheriff is

correct that a similar immunity has also been extended to

protect non-judicial officers, like sheriffs, who are sued

merely for carrying out a non-discretionary duty to execute

lawfully issued court orders. See, e.g., Engebretson v.

Mahoney, 724 F.3d 1034, 1039–40 (9th Cir. 2013); Moss v.

Kopp, 559 F.3d 1155, 1163 (10th Cir. 2009); Coverdell v.

Department of Social and Health Services, 834 F.2d 758, 765

(9th Cir. 1987). In such cases, if the judicial officer who

issued the order is entitled to immunity, so too is the

executive officer who did nothing more than execute the

order. The executive officer’s immunity (sometimes called

“quasi-judicial” immunity) is derivative of the judge’s own

immunity. Smith v. City of Hammond, 388 F.3d 304, 306–07

(7th Cir. 2004); Coverdell, 834 F.2d at 765.

Common law judicial immunity is of no help to the

Sheriff in this action, for it only bars suits seeking damages.

It does not preclude a court from granting declaratory or

injunctive relief. Pulliam v. Allen, 466 U.S. 522, 541–42

(1984). Because the King County Superior Court judges who

issue writs of restitution would not be entitled to common law

judicial immunity in a suit seeking declaratory and injunctive

relief, neither is the Sheriff.

In 1996, Congress amended 42 U.S.C. § 1983 to limit the

circumstances in which injunctive relief may be granted

against judges. As a statutory matter, Congress expanded the

scope of judicial immunity by providing that “in any action

brought against a judicial officer for an act or omission taken

in such officer’s judicial capacity, injunctive relief shall not

MOORE V. URQUHART 19

be granted unless a declaratory decree was violated or

declaratory relief was unavailable.” Federal Courts

Improvement Act of 1996 (FCIA), Pub. L. No. 104-317,

§ 309(c), 110 Stat. 3847, 3853 (codified at 42 U.S.C. § 1983).

Section 1983 (as amended by the FCIA) therefore provides

judicial officers immunity from injunctive relief even when

the common law would not.

The Sheriff contends that he is covered by the expanded

scope of judicial immunity afforded under § 1983. We will

assume without deciding that the limitations on injunctive

relief Congress imposed in the FCIA generally apply in

actions brought under Ex parte Young. We nonetheless

conclude that Congress did not intend these limitations to

apply in cases like this one.

The text of the FCIA bars injunctive relief against “a

judicial officer” for acts or omissions taken in the officer’s

“judicial capacity.” That language is closely associated with

the immunity extended to judges and their equivalents, not

with the immunity afforded to officers who execute court

orders. Congress chose in the FCIA to focus on judicial

officers acting in a judicial capacity because it sought to

“restore[] the doctrine of judicial immunity to the status it

occupied prior to the Supreme Court’s decision in Pulliam v.

Allen, 466 U.S. 522 (1984).” S. Rep. No. 104-366, at 36

(1996). In that case, the Court held that common law

“judicial immunity is not a bar to prospective injunctive relief

against a judicial officer acting in her judicial capacity.”

466 U.S. at 541–42 (emphasis added). The case involved a

state court judge, not a law enforcement official.

As Congress was undoubtedly aware, use of the term

“judicial” implicates the familiar three-branch structure of

20 MOORE V. URQUHART

government. The judicial branch encompasses officials other

than those with the title “judge,” such as court clerks. See

Shadwick v. City of Tampa, 407 U.S. 345, 351 (1972). But

the Sheriff is a quintessential executive branch official. See

Chisom v. Roemer, 501 U.S. 380, 399 (1991) (referring to

sheriffs as “executive officers”). And exercising the power

to break down someone’s door, enter their home, and carry

their belongings to the sidewalk is a quintessentially

executive function, not a judicial one. Indeed, it is difficult

to see how a law enforcement official carrying out a judge’s

order could be deemed to have acted in a “judicial” capacity,

given how courts have defined what it means for an act to be

“judicial” in character. See, e.g., Stump v. Sparkman,

435 U.S. 349, 362 (1978) (to be “judicial,” an act must at

least involve “a function normally performed by a judge”).

When Congress borrows a legal term of art, we presume that

it knows “the meaning its use will convey to the judicial mind

unless otherwise instructed.” Morissette v. United States,

342 U.S. 246, 263 (1952).

These considerations lead us to conclude that Congress

did not intend the FCIA to apply to every official who would

receive “judicial” or “quasi-judicial” immunity in an action

for damages at common law. If Congress wanted the Act to

cover not just judges and their equivalents but also law

enforcement officials like the Sheriff, we think Congress

would have spoken in far clearer terms. Extending immunity

from injunctive relief to executive branch officials like the

Sheriff would strip federal courts of the authority to enjoin

enforcement of any facially unconstitutional state statute that

is invoked at the behest of private parties through the courts.

We would not lightly infer an intent to abrogate common law

immunity doctrine in that sweeping fashion, particularly in a

statute designed simply to overrule Pulliam v. Allen. Doing

MOORE V. URQUHART 21

so would conflict with the maxim that a statute in derogation

of the common law “must be strictly construed, for no statute

is to be construed as altering the common law, farther than its

words import.” Robert C. Herd & Co. v. Krawill Machinery

Corp., 359 U.S. 297, 304 (1959) (internal quotation marks

omitted). We therefore hold that the Sheriff is not entitled to

immunity from injunctive relief here.

Our holding does not conflict with the out-of-circuit

decisions on which the Sheriff relies. In Roth v. King,

449 F.3d 1272 (D.C. Cir. 2006), the D.C. Circuit held that the

FCIA barred injunctive relief against two high-level

employees of the Public Defender Service for their role in

coordinating, along with judges of the District of Columbia

Superior Court, the “panel system” that determined which

private attorneys were eligible to receive court appointments

to represent indigent defendants. Id. at 1287. Finding “no

reason to believe that [the FCIA] is restricted to ‘judges’” and

that the Public Defender Service’s role was “related to the

judicial process,” the court held that the Service’s officers

were immune. Id.

Like the D.C. Circuit, we do not hold that the FCIA

covers only those officials who bear the title “judge.” Nor do

we understand the D.C. Circuit to have taken the view at the

opposite extreme—that the FCIA covers anyone who would

have been entitled to judicial or quasi-judicial immunity in an

action for damages at common law. The Public Defender

Service defendants in Roth were not law enforcement

officials like the Sheriff. Instead, they were helping to make

discretionary decisions on the suitability of attorneys for

court appointments that otherwise would have been made by

the judges alone. In that respect, they were exercising the

same kind of “discretionary judgment” as the judges

22 MOORE V. URQUHART

themselves, and their acts could fairly be characterized as

having been taken in a “judicial” capacity. Antoine, 508 U.S.

at 436; see also Montero v. Travis, 171 F.3d 757, 761 (2d Cir.

1999) (FCIA applies to a parole board official serving a

“quasi-adjudicative function” in granting or denying parole).

The Sixth Circuit’s decision in Gilbert v. Ferry, 401 F.3d

411 (6th Cir. 2005), is also distinguishable. There, litigants

sued four justices of the Michigan Supreme Court to obtain

an injunction requiring them to recuse themselves in two

pending cases. The plaintiffs also named as a defendant the

court administrator responsible for scheduling the court’s

calendar. Id. at 413 n.1. As the Sixth Circuit pointed out, the

court administrator had “no power to remove and re-assign

cases, but rather works solely under the supervision and

direction of the Michigan Supreme Court.” Id. He was, in

other words, an officer of the judicial branch who wielded

only the justices’ delegated authority. The Sheriff is not

comparably situated. As we have noted, he is an executive

branch officer. He does not work for the King County

Superior Court, and when executing writs of restitution he is

not performing court administrative functions delegated to

him by the judges. His authority to execute writs of

restitution is derived from power conferred on him by the

legislature. See Wash. Rev. Code § 59.18.390.

We conclude that the FCIA does not limit injunctive relief

against an executive branch officer enforcing a court order,

and that the Sheriff is not entitled to immunity from

plaintiffs’ request for declaratory and injunctive relief. We

have considered the Sheriff’s remaining arguments and find

them to be without merit.

REVERSED and REMANDED.