NOT FOR PUBLICATION FILED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

2 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.

3 The decision of the district court is therefore REVERSED and the case is

REMANDED for further proceedings.

4