NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVA MOORE; BROOKE SHAW, No. 20-35028
Plaintiffs-Appellants, D.C. No. 2:16-cv-01123-TSZ
v. MEMORANDUM*
MITZI JOHANKNECHT, in her official
capacity as King County Sheriff,
Defendant-Appellee,
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted December 9, 2020
Seattle, Washington
Before: BERZON, MILLER, and BRESS, Circuit Judges.
Plaintiffs Moore and Shaw appeal the district court’s dismissal of their
claims under Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction. We
reverse and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. Moore and Shaw have standing under the law of the case and the law of
the circuit. A panel of this circuit has already held, in a published opinion, that
plaintiffs have standing to sue. See Moore v. Urquhart (Moore I), 899 F.3d 1094,
1099 (9th Cir. 2018). Under the law of the case doctrine, we “generally refuse to
reconsider an issue that has already been decided by the same court . . . in the same
case.” Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc) (citing
Jeffries v. Wood, 114 F.3d 1484, 1488–89 (9th Cir. 1997) (en banc)). And
published panel opinions bind us absent irreconcilable intervening Supreme Court
precedent. Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003) (en banc). In
Moore I, the panel considered the same facts before us now, including that the writ
of eviction was stayed and that Moore and Shaw had reached a settlement with
their landlord. See 899 F.3d at 1098, 1100. The district court was bound by the
Moore I panel’s holding that plaintiffs have standing, as are we.
2. The amendments to the Residential Landlord-Tenant Act (RLTA) have
not mooted this controversy. They key provision at issue in this case, Wash. Rev.
Code § 59.18.375 (§ 375), was not amended. Defendants are therefore not entitled
to a presumption of mootness. See Cuviello v. City of Vallejo, 944 F.3d 816, 824
(9th Cir. 2019) (quoting Ne. Fla. Chapter of Associated Gen. Contractors v. City of
Jacksonville, 508 U.S. 656, 662 n.3 (1993)). Moore and Shaw allege that the
notice provided by § 375 is constitutionally deficient. As the text of the notice
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provided to tenants pursuant to § 375 remains unaltered, this claim is not moot.
Moore and Shaw further allege that the nonpayment eviction procedures set out in
the RLTA violate due process under Mathews v. Eldridge, 424 U.S. 319 (1976).
Whether changes to statutory provisions other than § 375 cure any constitutional
defects in the RLTA scheme is a question that goes to the merits, not mootness.
We therefore hold that plaintiffs Moore and Shaw have standing and that the
controversy is not moot.
3. We do not reach the merits of the due process issues raised in this case.
The district court alternatively denied summary judgment to the plaintiffs on the
merits of their claims. But denials of summary judgment are generally not
appealable. Wolfson v. Brammer, 616 F.3d 1045, 1066 (9th Cir. 2010). Our case
law is inconsistent as to whether appellate courts lack jurisdiction to consider
denials of summary judgment after a jurisdictional dismissal when, as here, the
decision on appeal resulted in entry of a final judgment in the district court, or,
instead, have discretion in such circumstances to decline to address the denial of
summary judgment on the merits. Compare Jones-Hamilton Co. v. Beazer
Materials & Servs., Inc., 973 F.2d 688, 694 n. 2 (9th Cir. 1992), with Burke v.
Ernest W. Hahn, Inc., 592 F.2d 542, 546 & n.3 (9th Cir. 1979). We need not
resolve this inconsistency here. Even if we have discretionary jurisdiction to
review the merits, we decline to do so.
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The decision of the district court is therefore REVERSED and the case is
REMANDED for further proceedings.
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