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Date: 08-19-2018

Case Style:

Eva Moore v. John Urquhart

Western District of Washington Federal Courthouse - Seattle, Washington

Case Number: 16-36086

Judge: Paul J. Watford

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Western District of Washington (King County)

Plaintiff's Attorney: Toby Marshall, Elizabeth Adams, and Rory O’Sullivan

Defendant's Attorney: David J. Hackett (argued) Senior Deputy Prosecuting
Attorney, King County Prosecuting Attorney, Seattle,
Washington, for Defendant-Appellee.

Jeffrey T. Even, Deputy Solicitor General; Robert W.
Ferguson, Attorney General; Office of the Attorney General,
Olympia, Washington; for Amicus Curiae State of

Description: 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.
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
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:
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;
2. If you deny that you owe the amount set
forth above and you do not want to be evicted
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
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
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.
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
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
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
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,
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
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.
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.
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
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.
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.
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
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
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.
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
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
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
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
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
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.


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