NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

ALEXANDER COTE, individually and on

behalf of all others similarly situated,

Plaintiff-Appellant,

 v.

OFFICE OF THE CALIFORNIA STATE

CONTROLLER; BETTY T. YEE, in her

official capacity as California State

Controller,

Defendants-Appellees.

No. 23-15375

D.C. No. 4:22-cv-04056-HSG

MEMORANDUM*

JENNIFER I. SYKES, individually and on

behalf of all others similarly situated,

Plaintiff-Appellant,

 v.

OFFICE OF THE CALIFORNIA STATE

CONTROLLER; BETTY T. YEE, in her

official capacity as California State

Controller,

Defendants-Appellees.

No. 23-15377

D.C. No. 4:22-cv-04133-HSG

FILED

MAR 14 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

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

except as provided by Ninth Circuit Rule 36-3.
ALISON COLE-KELLY, Individually and

on Behalf of All Those Similarly Situated,

Plaintiff-Appellant,

 v.

BETTY T. YEE, in her official capacity as

California State Controller; STATE OF

CALIFORNIA,

Defendants-Appellees.

No. 23-15413

D.C. No. 4:22-cv-02841-HSG

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Submitted March 12, 2024** 

San Francisco, California

Before: S.R. THOMAS, McKEOWN, and CHRISTEN, Circuit Judges.

Plaintiffs-Appellants Alexander Coté, Jennifer Sykes, and Alison Cole-Kelly

appeal a district court’s dismissal without leave to amend of their putative class

action against Defendent-Appellee the California State Controller. We have

jurisdiction over this appeal of the district court’s dismissal under 28 U.S.C.

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

without oral argument. See Fed. R. App. P. 34(a)(2).

2
§ 1291. We affirm the judgment of the district court. Because the parties are

familiar with the factual and procedural history of the case, we need not recount it

here. 

“Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed

de novo.” Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011)

(emphasis omitted). “We review for abuse of discretion a district court’s

dismissal . . . without leave to amend.” Benavidez v. County of San Diego, 993

F.3d 1134, 1141–42 (9th Cir. 2021). “A district court acts within its discretion to

deny leave to amend when amendment would be futile . . . .” V.V.V. & Sons Edible

Oils Ltd. v. Meenakshi Overseas, LLC, 946 F.3d 542, 547 (9th Cir. 2019) (ellipsis

in original) (quoting Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725–26 (9th Cir.

2000)). We review “the question of futility of amendment de novo.” United States

v. United Healthcare Ins. Co., 848 F.3d 1161, 1172 (9th Cir. 2016). 

Plaintiffs claim that California’s Unclaimed Property Law (UPL) violates

the Fifth and Fourteenth Amendments of the United States Constitution and

Article 1, Section 19 of the California Constitution. San Remo Hotel L.P. v. City

And County of San Francisco, 27 Cal. 4th 643, 664 (2002) (construing the

California Constitution’s takings clause “congruently” to the United States

Constitution’s Takings Clause). They argue that California’s Unclaimed Property

3
Law is unconstitutional because it does not require interest to be paid on escheated

property while held by the state nor once reclaimed. Cal. Civ. Proc. Code

§ 1540(c). Plaintiffs seek declaratory and injunctive relief to remedy this injury.

However, we have already decided this question in two cases: Turnacliff v.

Westly, 546 F.3d 1113 (9th Cir. 2008), and Suever v. Connell, 579 F.3d 1047 (9th

Cir. 2009). These cases bind us, and preclude relief. In addressing an estate

administrator’s challenge to the 2002 version of California’s Unclaimed Property

Law that guaranteed some interest, we held that “when the Estate abandoned its

property, it forfeited any right to interest earned by that property.” Turnacliff, 546

F.3d at 1119; Texaco, Inc. v. Short, 454 U.S. 516 (1982). We confirmed that

holding in Suever, where we rejected claims for retroactive interest under the same

2002 statute because “state sovereign immunity clearly precludes Plaintiffs from

successfully obtaining more than [their escheated principal and sales proceeds

therefrom] in the form of interest.” 579 F.3d at 1059. We also rejected claims for

an injunction that required the “payment of interest on any claims for unclaimed

property that escheated under” the 2003 California Unclaimed Property Law that

paid no interest. Id. at 1057. And we rejected claims for equitable relief that were

“indistinguishable in effect from claims for money damages against the State and,

as such, . . . barred by the Eleventh Amendment.” Id. at 1059–60. 

4
There is no principled difference to be drawn between the statutes those

decisions considered and the one before us today. Plaintiffs’ property has validly

escheated to the state. The current statute does not guarantee interest, Cal Civ.

Proc. Code § 1540(c) (2021) (“Interest shall not be payable on any claim paid

under this chapter.”), and we addressed a nearly identical statute that did not

guarantee interest in Suever. 579 F.3d at 1057; see Cal Civ. Proc. Code § 1540(c)

(2003) (“No interest shall be payable on any claim paid under this chapter.”). As

we held in Suever: “[T]he State is not constitutionally required to pay any interest

under the UPL . . . .” 576 F.3d at 1056. The district court applied our precedents

correctly. To the extent the plaintiffs’ claims are for money damages against the

state, they are barred by the Eleventh Amendment. Id. at 1059. To the extent any

claims escape the Eleventh Amendment, plaintiffs cannot establish an entitlement

to the interest they seek. Turnacliff, 546 F.3d at 1119. 

To overcome the weight of our precedent, plaintiffs cite to several out-ofcircuit cases, which do not bind this court, and several Supreme Court decisions. 

A three-judge panel may overrule circuit precedent only where an “intervening

higher authority” is “clearly irreconcilable” with the reasoning of that decision. 

CoreCivic, Inc. v. Candide Grp., LLC, 46 F.4th 1136, 1141 (9th Cir. 2022)

(quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)). 

5
Turnacliff and Suever were decided after the cited Supreme Court cases, and

therefore the cited cases cannot constitute “intervening higher authority.” Miller,

335 F.3d at 900.1

The district court properly applied Turnacliff and Suever in dismissing the

plaintiffs’ claims as precluded by Ninth Circuit precedent.

AFFIRMED.

1Plaintiffs also suggest the panel call for en banc review or certify their

questions to the Supreme Court. En banc review is not warranted because we are

not faced with “contradictory precedents” nor an “irreconcilable conflict” in our

case law. Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1478–79 (9th

Cir. 1987). As to whether this panel should certify plaintiffs’ questions to the

Supreme Court, mere “doubts” about a Court of Appeals’ prior panel decisions are

insufficient to invoke “so exceptional a jurisdiction” as the Supreme Court’s on

certification. Wisniewski v. United States, 353 U.S. 901, 902 (1957). 

6