PUBLIC SCHOOL RETIREMENT SYSTEM OF MISSOURI; Public Education Employee Retirement System of Missouri, Plaintiffs-Appellees, v. STATE STREET BANK & TRUST COMPANY, Defendant-Appellant.
Nos. 10-1244, 10-2674.
United States Court of Appeals, Eighth Circuit.
Submitted: Jan. 11, 2011. Filed: May 23, 2011.
Rehearing and Rehearing En Banc Denied June 28, 2011.*
640 F.3d 821
Before MURPHY, BYE, and MELLOY, Circuit Judges.
* Judge Gruender and Judge Benton did not participate in the consideration or decision of this matter.
Lawrence C. Friedman, argued, Allen D. Allred, on the brief, St. Louis, MO, for Appellee.
State Street Bank & Trust Company (“State Street“) agreed to manage and invest some of the assets of the Public School Retirement System of Missouri (“PSRS“) and of the Public Education Employee Retirement System of Missouri (“PEERS“). (We collectively refer to PSRS and PEERS as the “Retirement Systems” or “Systems.“) The Retirement Systems allege that State Street violated a number of its statutory and common-law duties while managing the Systems’ assets. The Retirement Systems sought relief by filing an action in Missouri state court against State Street. State Street twice removed this case to the U.S. District Court for the Western District of Missouri, and the district court1 twice remanded this case to state court. State Street appeals both orders. We have consolidated the appeals, and we now affirm.
I. Background
The State of Missouri created PSRS and PEERS in 1946 and 1965, respectively, “[f]or the purpose of providing retirement allowances and other benefits” to public-school employees who work in districts with populations of less than 400,000 people.2
In 2008, over $7 billion of the Retirement Systems’ assets were invested in one of State Street‘s investment vehicles called the Quality D Fund. Between October 31, 2008, and May 29, 2009, the Board withdrew much of the Retirement Systems’ assets from the fund. State Street claimed this withdrawal was wrongful, so in September of 2009 it ordered the Board to transfer much of the withdrawn funds back into the Quality D Fund. The Board refused to make the transfer, however, claiming that doing so would have resulted in a $125 million loss to the Retirement Systems. In response, State Street devalued the Retirement Systems’ remaining interest in the Quality D Fund. According to the Board, this devaluation resulted in a loss of nearly $100 million to the Retirement Systems.
The Retirement Systems brought an action in Missouri state court on October 16, 2009, alleging that State Street violated its fiduciary and contractual obligations to the Systems. That same day, State Street filed a notice of removal with the U.S. District Court for the Western District of Missouri, arguing that the diversity-of-citizenship-jurisdiction statute,
Following the district court‘s remand, the Retirement Systems amended their petition on April 1, 2010. In addition to their previous allegations, the Systems alleged, among other things, that State Street violated its duties of good faith and fair dealing, violated Missouri‘s Merchandising Practices Act, and committed negligence. On the same day that the Retirement Systems amended their petition, State Street filed a second notice of removal with the U.S. District Court for the Western District of Missouri, again arguing that the district court had original jurisdiction over the action pursuant to
State Street appeals both of the district court‘s remand orders. State Street argues that the district court erroneously remanded the case because the forum-selection clause upon which the district court twice remanded the case does not give the Retirement Systems the right to litigate this case in state court. In response, the Retirement Systems argue that
II. Discussion
A.
The Retirement Systems first argue that
The Retirement Systems argue that § 1447(d) bars our review because the district court “assume[d], without deciding,” that it had subject-matter jurisdiction. The Systems do not dispute, however, that the actual grounds for the district court‘s remand order was the presence of a forum-selection clause in an agreement between the Retirement Systems and State Street. Nearly every circuit has held that § 1447(d) does not prohibit appellate review of a district court‘s remand order based upon a forum-selection clause. See FindWhere Holdings, Inc. v. Sys. Env‘t Optimization, LLC, 626 F.3d 752, 755 (4th Cir. 2010) (citing cases from every circuit except the Eighth Circuit and D.C. Circuit and noting that “[e]very circuit to have considered the issue has held that a remand order based on a forum selection clause is reviewable on appeal“). We agree with our sister circuits. A remand order based upon a contractual forum-selection clause is not a remand based upon a procedural defect or lack of subject-matter jurisdiction. Therefore, since the district court‘s remand order was not based upon a ground “specified in § 1447(c),” Carlsbad Tech., Inc., 129 S.Ct. at 1866, § 1447(d) does not prohibit our review of the district court‘s orders, even though the district court assumed without deciding that it had subject-matter jurisdiction over the case.
B.
Next, we turn to State Street‘s argument that the district court erred in remanding this case to state court. After the district court “assume[d], without deciding,” that it had original jurisdiction over this case, the district court remanded the case based upon a forum-selection clause in an agreement between the Retirement Systems and State Street. We have stated, however, that “a court may not assume ‘hypothetical jurisdiction’ to decide ‘contested questions of law when its jurisdiction is in doubt.‘” Ark. Blue Cross & Blue Shield v. Little Rock Cardiology Clinic, P.A., 551 F.3d 812, 816 (8th Cir. 2009) (quoting Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). Instead, we have noted that “jurisdiction is a threshold question and must be answered before all other questions.” Ginters v. Frazier, 614 F.3d 822, 826 (8th Cir. 2010). Therefore, rather than considering whether the district court correctly remanded this case based upon a forum-selection clause in an agreement between the Retirement Systems and State Street, we
In removing this case pursuant to
In determining whether the Retirement Systems are citizens for purposes of § 1332(a)(1), we first note that “[t]here is no question that a State is not a ‘citizen’ for purposes of [§ 1332(a)(1)].” Moor v. Cnty. of Alameda, 411 U.S. 693, 717, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); see also Alternate Fuels, Inc. v. Cabanas, 435 F.3d 855, 857 n. 2 (8th Cir. 2006). Nor is an entity that is merely an “alter ego” or “arm” of a State a citizen for purposes of § 1332(a)(1). Moor, 411 U.S. at 717, 93 S.Ct. 1785. Our court has not clearly identified the appropriate standard for determining when an entity is an “arm” of a State for purposes of § 1332(a)(1). We have, however, developed a standard for determining when an entity is an arm of a State for purposes of obtaining immunity under the Eleventh Amendment. See, e.g., Thomas v. St. Louis Bd. of Police Comm‘rs, 447 F.3d 1082, 1084 (8th Cir. 2006); Gorman v. Easley, 257 F.3d 738, 743 (8th Cir. 2001), rev‘d on other grounds sub nom. Barnes v. Gorman, 536 U.S. 181, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002). Like the § 1332(a)(1) inquiry, the ultimate question of whether an entity is an arm of a State for purposes of the Eleventh Amendment turns on whether a State is the real party in interest in a case involving the entity. Compare Sherman v. Curators of the Univ. of Mo., 16 F.3d 860, 863 (8th Cir. 1994) (“Courts considering an entity‘s claim of eleventh amendment immunity must therefore determine whether the suit is in reality a suit against the state.” (emphasis added) (internal quotation marks omitted)), with State Highway Comm‘n v. Utah Constr. Co., 278 U.S. 194, 200, 49 S.Ct. 104, 73 L.Ed. 262 (1929) (concluding that an entity was an arm of a State for purposes of diversity-of-citizenship jurisdiction because a State was the “real part[y] in interest“); see also Univ. of R.I. v. A.W. Chesterton Co., 2 F.3d 1200, 1203 (1st Cir. 1993) (noting that “whether an entity is a citizen of the State for diversity purposes, or a State for Eleventh Amendment ... purposes ... present[s] the same ultimate question for decision: whether the State ... remains the real party in interest“). Thus, we will apply our Eleventh Amendment standard to determine whether the Retirement Systems are arms of the State of Missouri.3 See Md. Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260-61 (4th Cir. 2005) (apply
Our court‘s arm-of-a-State test requires a close analysis of the Retirement Systems’ relationship with the State of Missouri. Although whether the Retirement Systems are arms of the State of Missouri is a question of federal law, we engage in a detailed analysis of state law. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 n. 5, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997); Thomas, 447 F.3d at 1084. First, we consider the Systems’ independence from the State of Missouri. See Thomas, 447 F.3d at 1084 (noting that the arm-of-a-State test considers an entity‘s “degree of autonomy and control over its own affairs“); Gorman, 257 F.3d at 743 (noting that we also consider an entity‘s “powers and characteristics under state law“). Second, we consider how a money judgment in litigation involving the Retirement Systems could affect the State of Missouri‘s treasury. See Thomas, 447 F.3d at 1084. Specifically, since the Retirement Systems are plaintiffs who seek recovery of a money judgment, we consider whether a recovery in their favor could benefit the State of Missouri‘s treasury. See Hertz v. Knudson, 6 F.2d 812, 816 (8th Cir. 1925); compare Gorman, 257 F.3d at 743 (indicating that, when the entity is a defendant, we consider whether a money judgment against the entity could “flow from the state treasury“), with Md. Stadium Auth., 407 F.3d at 262 (citing Mo., Kan., & Tex. Ry. Co. v. Hickman, 183 U.S. 53, 59, 22 S.Ct. 18, 46 L.Ed. 78 (1901)) (indicating that, when the entity is a plaintiff, the court looks to “whether any recovery by the entity will inure to the benefit of the state“). In applying our arm-of-a-State test, we keep in mind that the ultimate question remains whether the State of Missouri is the real party in interest in this case.
i. The Retirement Systems’ Independence from the State of Missouri
We first analyze the Retirement Systems’ independence from the State of Missouri. Courts generally assess an entity‘s independence in comparison to the type of independence that a political subdivision possesses. Regents, 519 U.S. at 429 n. 5, 117 S.Ct. 900 (noting that the question was whether a “state agency has the same kind of independent status as a county or is instead an arm of the State“); Mount Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (noting that the question was whether a local school board was “to be treated as an arm of the State or [was] instead to be treated as a municipal corporation or other political subdivision“). The more an entity‘s independence resembles that of a political subdivision, the less likely the entity is an arm of a State. See Mount Healthy, 429 U.S. at 280, 97 S.Ct. 568 (noting that “counties and similar municipal corporations” are not arms of States); Illinois v. City of Milwaukee, 406 U.S. 91, 97, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972) (“It is well settled that for the purposes of diversity of citizenship, political subdivisions are citizens of their respective States.“).
Political subdivisions generally enjoy significant operational independence. These characteristics of operational independence may include being organized as a “body corporate,” possessing the ability to
Other state statutes, moreover, greatly restrict the Retirement Systems’ operational independence. Whereas a typical political subdivision may provide a wide variety of services, the State of Missouri created PSRS and PEERS solely to “provid[e] retirement allowances and other benefits” to public-school employees who work in districts with populations of less than 400,000 people.
In addition to operational independence, political subdivisions generally possess political independence from States. Thus, the greater the State‘s ability to appoint an entity‘s leaders, the more likely the entity is an arm of the State. See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 44, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994). In this case, the Governor of Missouri appoints three of the seven members of the Retirement Systems’ Board with the Missouri Senate‘s consent.
The Retirement Systems’ lack of complete political independence and their significant lack of operational independence make it unsurprising that Missouri statutes characterize the Retirement Systems as “state agenc[ies]” and indicate that the Systems are not “political subdivisions.” See
Not only does Missouri statutory and case law explicitly indicate that the Retirement Systems lack independence from the State of Missouri, but the nature and scope of the Retirement Systems’ operations also imply a lack of independence from the State of Missouri. First, the Retirement Systems do not furnish the type of local services that political subdivisions typically furnish, such as “water service, flood control, [or] rubbish disposal.” Moor, 411 U.S. at 719, 93 S.Ct. 1785 (noting that a county‘s provision of these services was an indication of “the independent status occupied by California counties relative to the State of California“); see also Gorman, 257 F.3d at 744 (noting that a police board‘s “functions are primarily local” in concluding that the board was not an arm of a State). Second, the Retirement Systems’ operations are statewide in scope rather than limited to a particular geographic area. McGinty, 251 F.3d at 98 (noting that because a retirement system‘s operations were statewide in scope, the operations were a function of state government rather than local government). Thus, the Retirement Systems appear to be carrying out a function of state government, which implies a lack of independence from the State of Missouri.
On the whole, therefore, the Retirement Systems lack the type of independence from the State of Missouri that a political subdivision typically possesses. The State of Missouri significantly restricts the Retirement Systems’ operational independence, it places material restrictions on the Systems’ political independence, and the Systems carry out state-government functions rather than local ones. Thus, the Retirement Systems do not have “the
ii. Whether a Money Judgment in the Retirement Systems’ Favor Could Benefit the State of Missouri‘s Treasury
Having found that the Retirement Systems possess a relative lack of independence from the State of Missouri, we next consider whether a money judgment in favor of the Retirement Systems could benefit the State of Missouri‘s treasury. The Supreme Court has indicated that a money judgment‘s potential impact upon a State‘s treasury is of “considerable importance,” Regents, 519 U.S. at 430-31, 117 S.Ct. 900, and we generally treat this factor as “more important” than others when determining whether an entity is an arm of a State, Thomas, 447 F.3d at 1084. If both “legally and practically” a money judgment will have no affect on a State‘s treasury, then the entity is not an arm of a State. Hess, 513 U.S. at 51, 115 S.Ct. 394. The question is one of “potential” benefit, however; whether a money judgment in this particular case will actually benefit the State of Missouri‘s treasury is not the relevant inquiry. Regents, 519 U.S. at 431, 117 S.Ct. 900.
A State‘s role in financing an entity‘s operation can indicate whether a money judgment in favor of the entity may benefit the State‘s treasury. For example, courts have found that an entity is more likely to be an arm of a State if a State makes annual appropriations to finance the entity‘s operating expenses or if a State retains custody over the entity‘s funds. Hess, 513 U.S. at 45, 115 S.Ct. 394 (noting that a bistate entity received “no money from the States” in concluding that it was not an arm of either of the States that created it); Hadley, 76 F.3d at 1439 (finding that a State‘s appropriations for part of an entity‘s annual budget suggested the entity was an arm of the State); McGinty, 251 F.3d at 96-98 (noting that a State retained custody over an entity‘s funds and provided some revenue to the entity in concluding that the entity was an arm of the State). In this case, the Retirement Systems are financed by contributions from public-school employees and their employing school districts, not by periodic state appropriations.4
In addition to a State‘s role in financing an entity‘s operations, a State‘s responsibility to pay an entity‘s obligations may also determine whether a money judgment in favor of an entity could benefit a State‘s treasury. Regents, 519 U.S. at 430, 117 S.Ct. 900; Moor, 411 U.S. at 719, 93 S.Ct. 1785. This is true for at least two reasons even when, as in this case, the relevant entities are plaintiffs who seek a money judgment rather than defendants against whom a money judgment is sought.6 First, as a practical matter, if a State is responsible to pay the obligations of an entity, an entity‘s recovery of a money judgment as a plaintiff increases the solvency of the entity, which decreases the potential that the State will have to pay the entity‘s debts. Cf. Md. Stadium Auth., 407 F.3d at 263-64 (noting the relevance of a State‘s obligation to finance an entity‘s annual budget because this obligation would be reduced by the entity‘s recovery of a money judgment). Second, and more generally, the Supreme Court has noted that a State‘s responsibility for an entity‘s debts, apart from its implications for a State‘s treasury, is an “indicator of the relationship” between the State and the entity. Regents, 519 U.S. at 430-31, 117 S.Ct. 900. Thus, even in litigation where the State would not actually have had to pay a money judgment, the Supreme Court has noted that a State‘s responsibility for an entity‘s debts was of “considerable importance.” Id. at 430, 117 S.Ct. 900. Therefore, it is appropriate to analyze the extent of the State of Missouri‘s responsibility to pay the Retirement Systems’ obligations.
The portions of the Missouri Revised Statutes which define the Systems’ powers
Although the portions of the Missouri Revised Statutes defining the Retirement Systems’ powers and duties do not clearly indicate whether the State of Missouri is obligated to pay the Systems’ debts, a different portion of the Missouri Revised Statutes suggests the State of Missouri does bear responsibility for certain types of the Systems’ debts. Missouri‘s general assembly appropriates funds to the State Legal Expense Fund (“SLEF“).
Neither party in this case mentions the SLEF, but there is good reason to believe that Missouri law would treat the Retirement Systems as agencies of the state for purposes of the fund. First, the statutes creating the SLEF do not define “agency of the state,” but we noted in a prior section of this opinion that part of the Missouri Revised Statutes defines rulemaking bodies like the Retirement Systems as “state agenc[ies],”
As a final indicator of how a money judgment in favor of the Retirement Systems could benefit the State of Missouri‘s treasury, we note that Missouri courts have indicated that employees who make contributions to the Retirement Systems have a contractual right to receive retirement benefits. Wehmeier v. Pub. Sch. Ret. Sys. of Mo., 631 S.W.2d 893, 896 (Mo.Ct.App.1982) (“[T]he Missouri legislature established contractual rights for members of [PSRS] when it created that system.” (citing State ex rel. Phillip v. Pub. Sch. Ret. Sys. of St. Louis, 364 Mo. 395, 262 S.W.2d 569, 577 (1953))). Missouri courts have not clearly indicated whether the obligation to perform the contract lies with the State of Missouri, the Retirement Systems, or both entities. See, e.g., Savannah R-III Sch. Dist. v. Pub. Sch. Ret. Sys. of Mo., 950 S.W.2d 854, 857 (Mo. 1997). Missouri courts have indicated, however, that the contractual rights that the Retirement Systems’ members possess are the product of a “statutory offer.” Wehmeier, 631 S.W.2d at 896. This suggests that the State of Missouri—as the entity who made the statutory offer—is obligated to perform the contract that the offer created.7 Whether the State of Mis
III. Conclusion
In sum, after considering the Retirement Systems’ relative lack of independence from the State of Missouri as well as the potential impact that a money judgment in the Systems’ favor could have on the State of Missouri‘s treasury, we find that the State of Missouri is a real party in interest in this case. Thus, we conclude that the Retirement Systems are merely arms of the State of Missouri.8 As a re
BYE, Circuit Judge, dissenting.
I respectfully dissent. I agree with the majority opinion that
I
As an initial matter, the majority acknowledges several characteristics of the Retirement Systems which indisputably weigh in favor of a determination as to the Retirement Systems not being arms of the state: (1) the Retirement Systems are organized as “bod[ies] corporate“; (2) they have the power to sue and be sued in their own name; and (3) they can “transact all of [their] business, invest all of [their] funds, and hold all of [their] cash, securities, and other property.”
Moreover, the additional regulations cited by the majority do not necessarily support its conclusion. For instance, the majority places emphasis on Missouri‘s regulation of the Retirement Systems’ source of revenue and financial operations, notwithstanding the fact these same statutes expressly prohibit the State from appropriating funds “directly or indirectly” to finance the Retirement Systems, and declare the funds of the Retirement Systems “to be the moneys and funds of the retirement system” which “shall not be commingled with state funds,” as will be discussed more fully below.
In addition to their operational independence, the Retirement Systems enjoy significant political autonomy from the State. First, the Governor appoints only a minority of Board positions, none of whom can be state employees or elected officials.
What remains is the question of whether the Retirement Systems are liable for money judgments against them or, conversely, whether the State would benefit from a judgment in favor of the Retirement Systems. This is widely considered to be the most important factor in the arm-of-the-state analysis. See Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 430, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997) (“Of course, the question whether a money judgment against a state instrumentality or official would be enforceable against the State is of considerable importance to any evaluation of the relationship between the State and the entity or individual being sued.“); Thomas v. St. Louis Bd. of Police Comm‘rs, 447 F.3d 1082, 1084 (8th Cir. 2006) (“[C]ourts assess the agency‘s degree of autonomy and control over its own affairs and, more importantly, whether a money judgment against the agency will be paid with state funds.“) (emphasis added); Hadley v. N. Ark. Cmty. Technical Coll., 76 F.3d 1437, 1439 (8th Cir. 1996) (“A narrow majority of the Supreme Court recently held that exposure of the state treasury is a more important factor than whether the State controls the entity in question.“) (citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994)).
In this case, as State Street argues, a judgment in favor of the Retirement Systems cannot flow to the State because Missouri statutes insulate the entities’ accounts from those of the State. The Retirement Systems are contributory retirement plans which receive their funds from
The majority concedes, as it must, the extensive statutory restrictions set forth above precluding the State‘s control over the Retirement Systems’ financial affairs. Nevertheless, the majority proceeds to navigate around the statutes’ express directives by emphasizing what is not present in the statutes, such as the absence of an express power of the Retirement Systems to issue bonds or levy taxes, which may be indicative of an entity which is not an arm of the state. What‘s more, the majority relies heavily on the hypothetical likelihood as to Missouri courts being able to label the Retirement Systems as agencies of the State, and, hypothetically, the State Legal Expense Fund (SLEF) could thereafter make funds available for the payment of any claim against the alleged agencies.10 The majority also finds sup
Under the explicit statutory language, I believe the Retirement Systems are similar to other retirement systems held not to be arms of the state, largely due to their fiscal autonomy and the lack of an obligation on the state‘s part to pay the systems’ debts. See, e.g., Blake v. Kline, 612 F.2d 718, 723-24 (3d Cir.1979) (vacating and remanding the district court‘s holding of Eleventh Amendment immunity where the Public School Employees’ Retirement Board of Pennsylvania funds were set apart and not to be commingled with state funds and it was not clear whether the system performed a proprietary or governmental function or how much autonomy the system maintained); Roche v. Lincoln Prop. Co., 175 Fed.Appx. 597, 601 (4th Cir.2006) (holding a judgment against a retirement investment fund whose expenses were assessed solely against the fund, and not the state treasury, would not affect the state, and therefore the fund was not an arm of the state); Rivera-Torres v. Sistema de Para Maestros, Inc., 453 F.Supp.2d 383, 386-87 (D.P.R.2006) (holding the retirement system was not an arm of the state because it could sue and be sued, prepare its own budget, and all debts and obligations were the responsibility of the system itself); Accenture LLP v. CSDV-MN Ltd. P‘ship, No. 06-CV-1270, 2006 WL 3825029, at *2-3 (N.D.Ill. Dec. 27, 2006) (determining the California Teachers Retirement System was not an arm of the state because it was not publicly financed; it was funded through contributions from employers, members, and the state; it maintained the power to sue, contract, and own property; and the appointment of some members of the Board by the governor did not amount to control by the state); Travelers Ins. Co. v. Teacher Ret. Sys. of Texas, No. 92 C 6651, 1993 WL 34757, at *3-5 (N.D.Ill. Feb. 5, 1993) (concluding the Teacher Retirement System of Texas was not an alter ego of the state where, despite contributions from the state to the system, the judgment would not increase the obligations to the state treasury, and therefore, would not amount to a judgment against the State); Almond v. Boyles, 612 F.Supp. 223, 228 (E.D.N.C. 1985), aff‘d in part, vacated in part, 792 F.2d 451 (4th Cir.1986) (holding the retire
Although it recognizes two of these cases, the majority believes these holdings “reflect a minority view.” Likewise, the Retirement Systems center their entire argument around the “virtually unanimous federal court authority” finding retirement systems to be arms of the state. I am not persuaded by the “majority” of cases for at least two reasons. First, “[w]hile several courts have examined the instant question of whether a state retirement system is the alter ego of the state, they are divided on the issue.” Travelers Ins. Co., 1993 WL 34757, at *2. At a minimum, the Retirement Systems’ suggestion as to there being “virtually unanimous federal court authority” appears to be flatly wrong, as demonstrated by a review of the case law cited above holding otherwise.
More importantly, however, even if there is such unanimous authority, the Retirement Systems’ cursory recitation of a “majority” view does not suffice in this case, given the inquiry we must undertake. Under our arm-of-the-state inquiry, “the court must examine the particular entity in question and its powers and characteristics as created by state law....” Greenwood v. Ross, 778 F.2d 448, 453 (8th Cir.1985) (internal quotation marks and citation omitted). As a result, the Retirement Systems’ proclamation as to there being near “unanimous” authority on their side provides little support in the context of Missouri‘s statutory scheme.
Indeed, upon closer analysis of the decisions cited by the Retirement Systems, it becomes strikingly clear that those systems were set up far differently than here, primarily in the area of financial and politi
In sum, contrary to supporting their argument, these decisions actually favor the determination that the Retirement Systems are not arms of the State because Missouri‘s statutory scheme unquestionably provides the Retirement Systems with far more independence than those systems cited above. See Scott v. Pub. Sch. Ret. Sys. of Mo., No. 09-4241, 2010 WL 3749210, at *6 (W.D.Mo. Sept. 21, 2010) (“PSRS is more autonomous than most public retirement systems.“). Looking at the factors as a whole, I agree with State Street that PSRS enjoys broad legal, fiscal, and operational autonomy separate and part from the State, and thus it is not an arm of the State. Accordingly, I would conclude the Retirement Systems are citizens for diversity jurisdiction purposes.
II
Because I would conclude the Retirement Systems are not arms of the State, and therefore are citizens for diversity ju