                           PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                          No. 13-1523


GAIL M. HUTTO; ELIZABETH W. HODGE; MARGARET B. LINEBERGER;
LYNN R. ROGERS; NANCY G. SULLIVAN; JANE P. TERWILLIGER;
JULIAN W. WALLS; DEBRA J. ANDREWS, and all others similarly
situated,

              Plaintiffs - Appellants,

         v.

THE SOUTH CAROLINA RETIREMENT SYSTEM; THE POLICE OFFICERS
RETIREMENT SYSTEM; THE   SOUTH CAROLINA RETIREMENT SYSTEMS
GROUP TRUST; NIKKI R. HALEY, Governor of South Carolina, in
her official capacity as ex officio Chairwoman of the South
Carolina Budget and Control Board; CURTIS M. LOFTIS, JR.,
Treasurer of the State of South Carolina, in his official
capacity as an ex officio member of the South Carolina
Budget and Control Board; RICHARD ECKSTROM, Comptroller
General of the State of South Carolina, in his official
capacity as an ex officio member of the South Carolina
Budget and Control Board; HUGH K. LEATHERMAN, Chairman of
the South Carolina Senate Finance Committee, in his
official capacity as an ex officio member of the South
Carolina Budget and Control Board; W. BRIAN WHITE, Chairman
of the South Carolina House of Representatives Ways and
Means Committee, in his official capacity as an ex officio
member of the South Carolina Budget and Control Board;
MARCIA S. ADAMS, in her official capacity as Executive
Director of the South Carolina Budget and Control Board;
DAVID K. AVANT, in his official capacity as Executive
Director of the South Carolina Public Employee Benefit
Authority,

              Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Florence.      J. Michelle Childs, District
Judge. (4:10-cv-02018-JMC)


Argued:   October 29, 2014            Decided:   December 5, 2014


Before NIEMEYER, WYNN, and THACKER, Circuit Judges.


Affirmed by published opinion.        Judge Niemeyer wrote    the
opinion, in which Judge Wynn and Judge Thacker joined.


ARGUED:   Richard  Harpootlian,  RICHARD  A.   HARPOOTLIAN,  PA,
Columbia, South Carolina, for Appellants.    Tina Marie Cundari,
SOWELL, GRAY, STEPP, & LAFFITTE, LLC, Columbia, South Carolina,
for Appellees.    ON BRIEF: Graham L. Newman, Christopher P.
Kenney, RICHARD A. HARPOOTLIAN, PA, Columbia, South Carolina;
James M. Griffin, Margaret N. Fox, LEWIS, BABCOCK & GRIFFIN,
LLP, Columbia, South Carolina, for Appellants. Robert E. Stepp,
SOWELL, GRAY, STEPP, & LAFFITTE, LLC, Columbia, South Carolina,
for Appellees.




                                2
NIEMEYER, Circuit Judge:

       South Carolina public employees commenced this class action

challenging the constitutionality of the South Carolina State

Retirement System Preservation and Investment Reform Act, 2005

S.C.   Acts   1697      (“the    2005    Act”).         That    Act     amended    South

Carolina’s    retirement        laws    by    requiring       public    employees    who

retire and then return to work to make, beginning on July 1,

2005, the same contributions to state-created pension plans as

pre-retirement employees but without receiving further pension

benefits.     The plaintiffs claimed that the 2005 Act effected a

taking of their private property, in violation of the Takings

Clause of the Fifth Amendment and the Due Process Clause of the

Fourteenth    Amendment.          They       named    as     defendants    two    state-

created pension plans, in which they are participants; the South

Carolina    Retirement     Systems       Group       Trust    (“the    Trust”),    which

holds the pension plans’ assets; and state officials serving as

trustees and administrators of the pension plans.                         For relief,

they    sought     repayment      of    all      contributions         withheld    since

July 1,    2005,     and   injunctive         relief       prohibiting     the    future

collection of such contributions.

       Pursuant    to   the     defendants’       motion,       the    district    court

dismissed the complaint on the ground that all of the defendants

are entitled to sovereign immunity.



                                             3
       We affirm, albeit on reasoning slightly different from that

given by the district court.                      We conclude, as did the district

court, that the pension plans and the Trust are arms of the

State of South Carolina and therefore have sovereign immunity.

Likewise, we conclude that the state officials sued in their

official capacities for repayment of pension-plan contributions

have sovereign immunity.                    Finally, we conclude that the state

officials       sued      in    their       official       capacities        for     prospective

injunctive relief have sovereign immunity because their duties

bear    no    relation         to    the    collection        of     the    public   employees’

contributions to the pension plans, precluding application of Ex

parte      Young,      209          U.S.    123        (1908).         In     reaching       these

conclusions,         we    reject          the    plaintiffs’         argument       that    their

claims       under   the       Takings       Clause      of    the    Fifth    Amendment       are

exempt from the protection of the Eleventh Amendment.


                                                   I

       The plaintiffs are public employees and participants in two

pension plans created by South Carolina in 1962 -- the South

Carolina       Retirement            System       and    the       South     Carolina       Police

Officers       Retirement            System       (collectively,             “the     Retirement

System”). 1      See S.C. Code Ann. §§ 9-1-20, 9-11-20(1).                              In their


       1
       In all, South Carolina has created five pension plans for
public employees, each referred to as a “Retirement System” --


                                                   4
complaint, they alleged that they and others similarly situated

are “retired contributing members” of the Retirement System, who

returned to work on or after July 1, 2005, when the 2005 Act

went   into     effect,    and    who    are,     by    reason    of   the     2005 Act,

required “to contribute a portion of their gross earnings” to

the Retirement System “without receiving any additional service

credit    or    interest     on   their        retirement       accounts.”          Before

July 1, 2005, retired participants could return to work for a

salary of up to $50,000 without forfeiting the right to receive

retirement      benefits        and     without        having    to    make         further

contributions to the Retirement System.                     See Ahrens v. State,

709 S.E.2d 54, 56-57 (S.C. 2011).                      But this changed with the

enactment of the 2005 Act, and retired participants who return

to work are now required to make the same contributions to the

Retirement      System     as     pre-retirement          employees      but        without

accruing additional service credit for pension benefits.                               See

S.C.     Code   Ann.      §§ 9-1-1790(C),         9-11-90(4)(c).              The    South

Carolina    General      Assembly       made    the    change    to    help    fund     the




the South Carolina Retirement System, the Retirement System for
Judges and Solicitors of the State of South Carolina, the
Retirement System for members of the General Assembly of the
State of South Carolina, the National Guard Retirement System,
and the South Carolina Police Officers Retirement System. S.C.
Code Ann. §§ 9-1-20, 9-8-20, 9-9-20, 9-10-20(A), 9-11-20(1).


                                           5
Retirement System and, in particular, to secure future cost-of-

living adjustments.

     The plaintiffs commenced this class action in August 2010

on behalf of themselves and all other participating employees

who returned to work on or after July 1, 2005, alleging that, by

enforcing     the    2005 Act,        the       defendants       “confiscated        their

private property,” in violation of the Takings Clause of the

Fifth Amendment and their procedural due process rights under

the Fourteenth Amendment.             In addition to naming as defendants

the two pension plans, the plaintiffs named the Trust, which

holds the assets of the Retirement System, and a number of state

officials    in     their     official      capacities       who,     as      members    or

executive directors of the State Budget and Control Board and

the Public Employee Benefit Authority, serve as trustees and

administrators of the Retirement System.                       The State Budget and

Control Board and the Public Employee Benefit Authority are the

statutorily    designated         co-trustees         of   the   Retirement      System.

S.C. Code Ann. § 9-1-1310(A).

     For     relief,        the   plaintiffs          sought     (1) a        declaratory

judgment     that     the     2005     Act       is    unconstitutional;             (2) an

injunction    against       its   enforcement;         (3) an    accounting       of    all

contributions they made to the Retirement System since July 1,

2005;   (4) an      injunction       compelling        the   return      of    all     such



                                            6
contributions; and (5) an order awarding them attorneys fees and

costs. 2

     The Retirement System, the Trust, and the state officials

filed    a      motion   to   dismiss   the    complaint   pursuant    to    Federal

Rules      of    Civil    Procedure     12(b)(1),   12(b)(3),    and       12(b)(6),

asserting numerous grounds for their motion, including sovereign

immunity, claim and issue preclusion based on the prior state

litigation,        discretionary      abstention,    and   failure    to    state   a

claim upon which relief can be granted.                     The district court

granted the motion and dismissed the complaint, relying only on

the defendants’ sovereign immunity under the Eleventh Amendment.


     2
       Before this action was commenced, public employees who
retired and then returned to work before July 1, 2005, also
commenced an action in state court, alleging that the 2005 Act
breached a legislatively created contract with the “old working
retirees” and violated the Takings Clause and the Due Process
Clause of the U.S. Constitution.     The South Carolina Supreme
Court rejected the argument, holding that the “old working
retiree statute [did] not create a binding contract between the
State and the old working retirees,” but the court did remand
the case to the trial court “for a case by case factual
determination of whether any actions of the State with regard to
individual old working retirees constituted a breach of
contract.” Layman v. State, 630 S.E.2d 265, 271-72 (S.C. 2006).
In 2011, the South Carolina Supreme Court affirmed the circuit
court’s conclusion that forms signed by the old working
retirees, stating that they would not be required to pay into
the pension plans, did not create a contract between the State
and the old working retirees.      Ahrens, 709 S.E.2d at 58-60.
Because the employees’ claims under the Takings Clause and the
Due Process Clause were “founded on the presumption that a
contractual right ha[d] been unfairly taken away,” the court
also affirmed the circuit court’s grant of summary judgment on
those claims. Id. at 63.


                                           7
With     respect      to    the      institutional           defendants,        the   court

determined that “the Retirement Systems should be considered an

arm of the State such that Eleventh Amendment immunity applies

to bar [a federal] court from hearing the claim.”                          Hutto v. S.C.

Ret.     Sys.,    899 F. Supp.         2d   457,       473       (D.S.C.   2012).         And

“[b]ecause Plaintiffs seek monetary damages,” it held that the

claims against the individual defendants were similarly barred.

Id. at 475 n.14.           Having found that all of the defendants were

immune by reason of sovereign immunity, the court declined to

address the defendants’ remaining grounds for seeking dismissal

of the action.

       The   plaintiffs      filed     a    motion         for    reconsideration     under

Rule 59(e),        asserting      that      the       district        court      erred     in

dismissing       their      claims      for       a    declaratory         judgment       and

injunctive relief against the state officials serving in their

official capacities.            They relied on Ex parte Young, 209 U.S.

123 (1908), which created an exception to Eleventh Amendment

immunity       with   respect     to    claims        for        prospective    injunctive

relief    to     remedy    ongoing      violations           of     federal    law.       The

district court denied the motion because, “in seeking to bar the

enforcement of [the 2005 Act], which requires Plaintiffs to pay

into   the     Retirement      System,      Plaintiffs’            requested     relief    is

undeniably       monetary”     and     because        an    injunction        ordering    the



                                              8
return of the contributions already withheld “would ultimately

impact the State treasury.”

       This appeal followed.

                                        II

       The Eleventh Amendment shields a state entity from suit in

federal court “if, in [the entity’s] operations, the state is

the real party in interest,” in the sense that the “named party

[is]   the   alter   ego   of    the   state.”        Ram    Ditta   v.   Md.   Nat’l

Capital Park & Planning Comm’n, 822 F.2d 456, 457 (4th Cir.

1987).

       The plaintiffs contend that the Retirement System and the

Trust do not have the sovereign immunity afforded a State under

the Eleventh Amendment because they are “non-state entit[ies]”

and that the district court’s contrary conclusion was based on

an erroneous application of the factors articulated in Ram Ditta

for determining whether an entity is an alter ego of the State.

They argue, “[T]he District Court should have given effect to

the    express,      unambiguous       language        of     [South      Carolina’s

retirement laws] and concluded that the Retirement Systems are

independent    corporate        entities       for   which   the     State   has   no

financial obligation as indemnitor.”

       The defendants contend that “State law makes the financial

obligations of the state Retirement Systems obligations of the

State”; that the State controls the Retirement System; that the

                                           9
pension plans of the Retirement System “operate on a statewide

basis and have statewide concerns”; and that South Carolina law

treats the pension plans as state agencies.              The defendants thus

maintain that the Retirement System and the Trust are “arms of

the State and [therefore] immune from suit.”

       Whether an action is barred by the Eleventh Amendment is a

question of law that we review de novo.            Cash v. Granville Cnty.

Bd. of Educ., 242 F.3d 219, 222 (4th Cir. 2001).

       At the outset, we address which party has the burden of

proof when sovereign immunity under the Eleventh Amendment is

raised.       While    the   Supreme     Court   has   described   sovereign

immunity as a “jurisdictional bar” that can be raised for the

first time on appeal, Seminole Tribe of Fla. v. Florida, 517

U.S.   44,    73   (1996),   and   “a   constitutional   limitation   on   the

federal judicial power established in Art. III,” Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984), it “ha[s] not

decided” whether Eleventh Amendment immunity goes to a court’s

subject-matter jurisdiction, Wis. Dep’t of Corr. v. Schacht, 524

U.S. 381, 391 (1998).        Unlike subject-matter jurisdiction, which

cannot be waived, a State can always waive its immunity and

consent to be sued in federal court, Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 238 (1985), and a court need not raise

the issue on its own initiative, Wis. Dep’t of Corr., 524 U.S.

at 389.      Because a defendant otherwise protected by the Eleventh

                                        10
Amendment       can    waive    its       protection,            it   is,    as     a   practical

matter,      structurally          necessary         to    require         the     defendant     to

assert    the    immunity.           We    therefore         conclude            that   sovereign

immunity is akin to an affirmative defense, which the defendant

bears the burden of demonstrating.                          In so concluding, we join

every other court of appeals that has addressed the issue.                                      See

Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d

232, 237-39 (2d Cir. 2006); Fresenius Med. Care Cardiovascular

Res., Inc. v. P.R. & the Caribbean Cardiovascular Ctr. Corp.,

322   F.3d     56,     61   (1st    Cir.       2003);      Gragg      v.     Ky.    Cabinet     for

Workforce Dev., 289 F.3d 958, 963 (6th Cir. 2002); Skelton v.

Camp, 234 F.3d 292, 297 (5th Cir. 2000); Christy v. Pa. Turnpike

Comm’n, 54 F.3d 1140, 1144 (3d Cir. 1995); Baxter v. Vigo Cnty.

Sch. Corp., 26 F.3d 728, 734 n.5 (7th Cir. 1994), superseded by

statute on other grounds as recognized in Holmes v. Marion Cnty.

Office    of    Family &       Children,        349       F.3d    914,      918-19      (7th   Cir.

2003); ITSI TV Prods., Inc. v. Agric. Ass’ns, 3 F.3d 1289, 1292

(9th Cir. 1993).

      In analyzing whether entities such as the Retirement System

and   the      Trust    are    arms       of    the       State,      “the       most   important

consideration is whether the state treasury will be responsible

for paying any judgment that might be awarded.”                                  Ram Ditta, 822

F.2d at 457.           Thus, “if the State treasury will be called upon

to pay a judgment against a governmental entity, then Eleventh

                                                11
Amendment    immunity     applies    to    that      entity.”       Cash,      242    F.3d

at 223.     If, on the other hand, the State treasury will not be

liable for a judgment, sovereign immunity applies only where the

“governmental entity is so connected to the State that the legal

action    against   the    entity    would,         despite   the   fact       that   the

judgment will not be paid from the State treasury, amount to

‘the indignity of subjecting a State to the coercive process of

judicial tribunals at the instance of private parties.’”                               Id.

at 224 (quoting Seminole Tribe, 517 U.S. at 58).                           At bottom,

even   though    “state     sovereign      immunity       serves     the       important

function of shielding state treasuries and thus preserving the

States’ ability to govern in accordance with the will of their

citizens, . . . the doctrine’s central purpose is to accord the

States    the   respect     owed    them       as    joint    sovereigns.”            Fed.

Maritime Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 765

(2002) (internal quotation marks and citations omitted).


                                           A

       We address first the most important factor -- whether South

Carolina    could   be    responsible      for      the   payment    of    a   judgment

against the Retirement System and the Trust.                     A State treasury

is responsible “where the state is functionally liable, even if

not legally liable.”         U.S. ex rel. Oberg v. Pa. Higher Educ.

Assistance Agency, 745 F.3d 131, 137 (4th Cir. 2014) (quoting


                                          12
Stoner v. Santa Clara Cnty. Office of Educ., 502 F.3d 1116, 1122

(9th Cir. 2007)) (internal quotation marks omitted); see also

Ristow v. S.C. Ports Auth., 58 F.3d 1051, 1053 (4th Cir. 1995)

(holding that courts must “[c]onsider[] the practical effect of

a   putative . . .        judgment    on     the    state      treasury”     (emphasis

added)).

      The    plaintiffs     argue     that       “the    Retirement      Systems      Act

insulates the state treasury from any judgment entered in this

case” because it provides that “[a]ll agreements or contracts”

with members” of the Retirement System are “solely obligations”

of the individual pension plan and that “the full faith and

credit” of South Carolina or its subdivisions “is not, and shall

not be, pledged or obligated” beyond the State’s contributions

as an employer of participating employees.                     S.C. Code Ann. §§ 9-

1-1690, 9-11-280.

      This    statutory     language,       however,         must   be   read    in   the

context      of   Article     X,     Section 16         of    the    South      Carolina

Constitution, which provides that “[t]he General Assembly shall

annually     appropriate     funds    and       prescribe     member     contributions

for any state-operated retirement system which will insure the

availability of funds to meet all normal and accrued liability

of the system on a sound actuarial basis as determined by the

governing     body   of     the    system.”         S.C.      Const.     art. X,      § 16

(emphasis added).         Any possible ambiguity resulting from reading

                                           13
the    retirement        laws    in    the     context       of    the    South    Carolina

Constitution was put to rest by the South Carolina Supreme Court

in Wehle v. South Carolina Retirement System, 611 S.E.2d 240,

242-43 (S.C. 2005) (per curiam), where the Court stated that,

“should the Board determine that any retirement system is not

funded on a sound actuarial basis, the General Assembly must

provide funding necessary to restore the fiscal integrity of the

System.”        Thus, in the event that a judgment in this case were

to render the Retirement System unable to meet its liabilities,

the    General        Assembly   would       be     obligated     to     account    for   any

deficiency by increasing appropriations to the Retirement System

or    by    requiring        employers,      including       the       State    itself,    to

increase their contributions.

       In addition, the State’s ultimate responsibility for the

financial soundness of the Retirement System is reflected by the

fact that the Retirement System’s “actuarial valuation is relied

upon       in   the     preparation       of      the   State’s        annual      financial

statement        and    by   outside     entities       in    rating      the     State   for

purposes        of    issuance   of    bonds.”          Wehle,     611    S.E.2d     at 242.

Thus, if a judgment in this case were to render the Retirement

System or the Trust insolvent, that insolvency would harm the

State’s credit rating, making it more expensive for the State to

borrow money.



                                               14
      Consequently,       we    conclude        that     South      Carolina     remains

functionally     liable      for    any    judgment      against      the   Retirement

System and the Trust, which is sufficient to make the Retirement

System and the Trust arms of the State.                        See Oberg, 745 F.3d

at 137.

      We    reject     the     plaintiffs’        various        arguments       to   the

contrary.    First, they insist that Article X, Section 16 of the

South Carolina Constitution “merely compels the State to comply

with its funding obligations as an employer,” a requirement that

the    General     Assembly        could    not     have       imposed      on    future

legislatures by legislative act.                  And they complain that “the

District Court unnecessarily construed the state Constitution in

a manner that rendered it irreconcilable with Sections 9-1-1690

and 9-11-280.”       But the South Carolina Supreme Court, which, of

course,     has the last word on the meaning of the South Carolina

Constitution, rejected the plaintiffs’ posited construction of

Article X,     Section 16.           See    Wehle,       611       S.E.2d   at 242-43.

Moreover,    the     plaintiffs’      argument         that   we    must    construe    a

constitutional provision so as not to conflict with a statute

turns the concept of constitutional supremacy on its head.

      Second, the plaintiffs maintain that there is no evidence

that a judgment in their favor would in fact create a shortfall

in    the   Retirement       System’s      funds.         Yet,      given    that     the

plaintiffs’ complaint alleges that “the members of the proposed

                                           15
class will exceed tens of thousands of persons,” it is surely

plausible that a favorable judgment could create an actuarial

deficit.     More     importantly,         whether        or    not    a   judgment        would

render the Retirement System insolvent is of little consequence

to the analysis.           As the Supreme Court held in Regents of the

University of California v. Doe, 519 U.S. 425 (1997), “it is the

entity’s potential legal liability . . . that is relevant.”                                  Id.

at 431 (emphasis added); see also Owens v. Balt. City State’s

Att’ys    Office,    767       F.3d     379,    412   (4th      Cir.     2014)    (“When      an

entity has both state and local characteristics, ‘the entity’s

potential legal liability’ is relevant to the Eleventh Amendment

inquiry” (emphasis added) (quoting Regents, 519 U.S. at 431));

Oberg, 745 F.3d at 137 (“[I]n assessing [the State treasury]

factor,     an     entity’s       ‘potential          legal      liability’           is    key”

(emphasis        added)     (quoting           Regents,        519     U.S.      at        431)).

Consequently,       “the       proper    inquiry      is       not    whether    the       state

treasury     would        be     liable        in     this       case,     but        whether,

hypothetically speaking, the state treasury would be subject to

‘potential legal liability’ if the retirement system did not

have the money to cover the judgment.”                           Ernst v. Rising, 427

F.3d 351, 362 (6th Cir. 2005) (quoting Regents, 519 U.S. at

431)); see also Pub. Sch. Ret. Sys. v. State St. Bank & Trust

Co., 640 F.3d 821, 830 (8th Cir. 2011) (similar).                               Here, as in

Ernst, the “plaintiffs fail to come to grips with the fiscal

                                               16
reality    that    the    State’s   funding   requirement       assuredly   could

increase if the retirement system were to use its current and

future funding to pay off a judgment against it.”                        427 F.3d

at 362 (emphasis added).

     Third,     the    plaintiffs    read   much   into   the    fact    that   the

funds and assets of the Retirement System “are not funds of the

State,” S.C. Code Ann. § 9-1-1310(C), but instead are held “in a

group   trust     under    Section 401(a)(24)      of   the   Internal    Revenue

Code,” id. § 9-16-20(C).             Section 401(a)(24) of the Internal

Revenue Code requires that group trust funds not be “used for,

or diverted to, purposes other than for the exclusive benefit

of . . .    employees or their beneficiaries in order to qualify

as a group trust.”            26 U.S.C. § 401(a)(24).            While we have

recognized that holding funds in a segregated account apart from

general state funds does “counsel[] against establishing arm-of-

the-state status,” Oberg, 745 F.3d at 139, that fact is not

dispositive.       The plaintiffs also argue that South Carolina is

violating § 401(a)(24) by diverting the contributions they made

to the Retirement System to benefit pre-retirement employees.

But even if South Carolina were indeed in violation of federal

law by using funds contrary to § 401(a)(24), that fact would be

irrelevant to whether a judgment against the Retirement System

or   the   Trust      could   potentially     affect    the     State   treasury.

Accord Ernst, 427 F.3d at 365.

                                       17
       Fourth, the plaintiffs argue that courts generally, and the

district court in particular, should wait until the completion

of    discovery       and   the      development        of    a   factual      record       before

resolving       the    sovereign         immunity       issue.       But       we    have     often

affirmed       Rule 12(b)(6)            motions    to     dismiss         on   the     basis    of

Eleventh Amendment immunity.                  See, e.g., Antrican v. Odom, 290

F.3d 178, 191 (4th Cir. 2002).                     In Gray v. Laws, 51 F.3d 426,

434 (4th Cir. 1995), upon which the plaintiffs rely for their

argument, we vacated the district court’s dismissal under the

Eleventh       Amendment       not      because    the       district      court      failed     to

conduct sufficient factfinding, but rather because the Supreme

Court    had    changed       the     applicable        Eleventh      Amendment         standard

while the appeal was pending and “the barrenness of the record”

rendered us ill-suited to apply the new standard.

       Finally, the plaintiffs contend that we are bound by our

earlier decision in Almond v. Boyles, 792 F.2d 451 (4th Cir.

1986).     In Almond, we rejected, “for the reasons stated by the

district court,” a claim that the Eleventh Amendment barred a

suit by a class of visually handicapped operators of vending

stands to recover employer contributions to the North Carolina

Teachers’      and     State      Employees’       Retirement        System,         which     they

claimed were collected in violation of federal law.                                 Id. at 456.

The    district       court       had    found     that       a   judgment          against    the

retirement      system      would       not   come      from      State    funds      for     three

                                              18
reasons,        the      “most       important[]”       of    which      was   that     “the

defendants [had] not shown the court that the relief requested

by     the     plaintiffs        would    inevitably         lead   to    an     additional

appropriation of state funds.”                      Almond v. Boyles, 612 F. Supp.

223,     228    (E.D.N.C.         1985)    (emphasis         added).       But      Almond’s

requirement        that    the       defendants      show    that   a    judgment     “would

inevitably” be satisfied by the State is fundamentally at odds

with Regents’ subsequent less demanding standard of potential

liability,         and    therefore       Almond’s          framework     is   no     longer

applicable.

       As    the      Supreme    Court    has       framed    the   Eleventh      Amendment

inquiry, the question is whether, “[i]f the expenditures of the

enterprise exceed receipts, is the State in fact obligated to

bear and pay the resulting indebtedness of the enterprise?                              When

the answer is ‘No’ -- both legally and practically -- then the

Eleventh Amendment’s core concern is not implicated.”                               Hess v.

Port Auth. Trans-Hudson Corp., 513 U.S. 30, 51 (1994) (emphasis

added).         In     light     of    Wehle’s       interpretation      of    Article   X,

Section 16, the answer to that question here is undoubtedly yes,

and we therefore conclude that a judgment against the Retirement

System and the Trust would implicate South Carolina’s treasury.

                                                B

       In      addition         to     South        Carolina’s      potential        funding

obligation, we also conclude that state-dignity factors weigh in

                                               19
favor of finding that the Retirement System and the Trust are

arms of the State.            See Fed. Maritime Comm’n, 535 U.S. at 765.

When   assessing    whether      allowing    suit    against     a   state      entity

would offend a State’s dignity, we consider “(1) the degree of

control that the State exercises over the entity or the degree

of autonomy from the State that the entity enjoys; (2) the scope

of the entity’s concerns -- whether local or statewide -- with

which the entity is involved; and (3) the manner in which State

law treats the entity.”          Cash, 242 F.3d at 224.

       Under the degree-of-state-control factor, we consider “who

appoints    the    entity’s      directors   or     officers,     who     funds      the

entity, and whether the State retains a veto over the entity’s

actions,” Oberg, 745 F.3d at 137 (quoting U.S. ex rel. Oberg v.

Ky. Higher Educ. Student Loan Corp., 681 F.3d 575, 580 (4th Cir.

2012)) (internal quotation marks omitted), as well as “whether

an entity has the ability to contract, sue and be sued, and

purchase and sell property, and whether it is represented in

legal matters by the state attorney general,” id. (citations

omitted).

       In this case, the Retirement System does have the “power

and privileges of a corporation,” S.C. Code. Ann. §§ 9-1-20, 9-

11-20,   including      the    powers   to   “sue   and     be   sued,”    to    “make

contracts,” and to buy and sell property, id. § 33-3-102.                         But,

contrary    to    the   plaintiffs’     argument,     the    designation        of    an

                                        20
entity as a corporation with the power to sue and be sued is not

conclusive in establishing its autonomy.               See Oberg, 745 F.3d

at 139 (finding that the autonomy factor “cut both ways,” even

though the entity had the “power to enter into contracts, sue

and be sued, and purchase and sell property in its own name”);

see also State Highway Comm’n v. Utah Const. Co., 278 U.S. 194,

199 (1929) (“It is unnecessary for us to consider the effect of

the general grant of power to sue or be sued . . . -- this suit,

in effect, is against the state and must be so treated”).

     And other factors point to state control.                  The means by

which   the   entities’     officers   are    appointed    suggest    that   the

Retirement System is beholden to the State.                The State Budget

and Control Board and the Public Employee Benefit Authority,

which   are   the   co-trustees   of   the    Retirement    System,    and   the

Retirement    System   Investment      Commission,     which    has   exclusive

authority to invest the Trust’s assets, see S.C. Code Ann. § 9-

16-20(A), are comprised almost entirely of the Governor of South

Carolina,     the   State   Treasurer,      the   Comptroller   General,     the

Chairman of the Senate Finance Committee, the Chairman of the

House Ways and Means Committee, the President Pro Tempore of the

Senate, the Speaker of the House of Representatives, and persons

appointed by these officials.          Id. §§ 1-11-10, 9-4-10(B)(1), 9-

16-315(A).     Although several of the appointees are required to

be participants in the Retirement System, even those members are

                                       21
selected          by     state        officials.              While       the     trustees         and

administrators            of     the       Trust       are,    of     course,       required         to

discharge their fiduciary duties “solely in the interest of the

retirement systems, participants, and beneficiaries,” id. § 9-

16-40, one would have to be naive to conclude that the State

lacks       any    influence          or    control         when    it    has    the    power       of

appointment.            State control is further evidenced by the facts

that: (1) the State Treasurer is the custodian of the Trust’s

funds and has sole authority to issue payments from the funds,

id. §§ 9-1-1320, 9-11-250; (2) the Retirement System Investment

Commission must provide quarterly reports to, among others, the

Speaker of the House of Representatives and the President Pro

Tempore      of    the       Senate,       id.    §    9-16-90(A);        (3) the      State       must

defend      and        indemnify       the       members      of    the    Retirement         System

Investment Commission, id. § 9-16-370; and (4) an entire title

of    the    Code       of     Laws    of    South         Carolina       is    devoted       to    the

extensive regulation of the Retirement System and the Trust.

       In sum, because of the mixed indications as to control, we

conclude that application of the control factor, if not favoring

sovereign immunity, is inconclusive.                           Accord Oberg, 745 F.3d at

141    (finding          that    the       control         factor    “present[ed]         a    close

question” in light of the fact that the board of directors was

largely        composed          of        “state          officials       or     gubernatorial

appointees” but also “exercise[d] corporate powers including the

                                                      22
capacity to contract and sue and be sued”); Almond, 612 F. Supp.

at 227 (holding that the control factor did “not weigh heavily

in favor of either party,” after noting the detailed statutory

regime, the political nature of the appointment of the members

of   the   board    of    trustees,      the    retirement    system’s     corporate

status, and the board’s powers to sue and be sued and to buy and

sell property).

       Turning     to    the    factor    considering      whether   the    entities’

concerns are local or statewide, we conclude that this factor

counsels    in   favor     of    sovereign      immunity.      In    assessing     this

factor, courts must consider whether the entity has statewide or

localized jurisdiction, Cash, 242 F.3d at 226, and “whether an

entity’s    functions          are   ‘classified      as    typically      state    or

unquestionably local,’” Harter v. Vernon, 101 F.3d 334, 341 (4th

Cir.   1996)     (quoting       Hess,    513   U.S.   at   45).      The   Retirement

System covers public employees throughout the State.                        And like

“educating the [State’s] youth,” Md. Stadium Auth. v. Ellerbe

Becket, Inc., 407 F.3d 255, 265 (4th Cir. 2005), providing for

public employees -- many of whom work for the State -- upon

retirement is an area of statewide concern.                       Accord Pub. Sch.

Ret. Sys., 640 F.3d at 829 (“[T]he Retirement Systems do not

furnish the type of local services that political subdivisions

typically furnish, such as ‘water service, flood control, [or]

rubbish disposal’” (quoting Moor v. Cnty. of Alameda, 411 U.S.

                                           23
693, 720 (1973))); Ernst, 427 F.3d at 361 (“[W]hen, as in this

case, the retirement system is funded by annual appropriations

from    the   state     legislature,       operates         in   part    through     the

Michigan Treasury and in part through the State’s Department of

Management     and    Budget,   operates          on    a    statewide     basis     and

serves . . . state-wide officials, it is fair to say that the

retirement     system    performs      a        traditional      state     function”);

McGinty v. New York, 251 F.3d 84, 98 (2d Cir. 2001) (“Although

the     Retirement    System    does        not        service     state     employees

exclusively, it assists in the business of the state by enabling

the state to meet its pension and benefits obligations . . .”).

       Finally, the factor assessing how South Carolina treats the

entities points strongly in favor of sovereign immunity.                            This

factor requires courts to consider “the relevant state statutes,

regulations,    and     constitutional          provisions       which   characterize

the entity, and the holdings of state courts on the question.”

Harter, 101 F.3d at 342.         Title 9 of the Code of Laws of South

Carolina repeatedly uses the term “State agency” to refer to the

South Carolina Retirement System and the term “State agent” to

refer to the Director of the Retirement System.                      S.C. Code Ann.

§§ 9-3-20(4), 9-5-30(5) to –30(6).                 The Code also describes the

South    Carolina     Public    Employee           Benefit       Authority     as    “an

administrative agency of state government.”                        Id. § 9-4-10(H).

Similarly,     in     Layman,   the        South        Carolina     Supreme        Court

                                           24
characterized       the    Retirement       System    as    a    “state      agency”   for

purposes of S.C. Code Ann. § 15-77-300, which permits an award

of attorneys fees to the prevailing party in an action brought

by or against the State or any political subdivision thereof.

658 S.E.2d at 326.             And in Ahrens, the Court analyzed whether,

as an “agency,” the Retirement System created a contract with

the   working      retirees.        709 S.E.2d       at    58–60.       Indeed,       South

Carolina     courts       have    frequently      referred       to    the     individual

pension plans of the Retirement System as agencies.                            See, e.g.,

Kennedy v. S.C. Ret. Sys., 549 S.E.2d 243, 251 (S.C. 2001); S.C.

Police Officers Ret. Sys. v. City of Spartanburg, 391 S.E.2d

239, 241 (S.C. 1990).

      At     bottom,      we     conclude    that     the       relevant       indicators

strongly indicate that the Retirement System and the Trust are

arms of the State of South Carolina and are therefore protected

under the Eleventh Amendment.                    This conclusion is consistent

with the holdings of the overwhelming number of federal courts

that have held that similar retirement systems in other States

are   arms    of   the    State.      See    Pub.    Sch.       Ret.   Sys.,    640    F.3d

at 827–33; Ernst, 427 F.3d at 359–66; McGinty, 251 F.3d at 100;

Mo. State Employees’ Ret. Sys. v. Credit Suisse, N.Y. Branch,

No. 09–4224–CV–C–NKL, 2010 WL 318652, at *6 (W.D. Mo. Jan. 21,

2010); N.M. ex rel. Nat’l Educ. Ass’n of N.M. v. Austin Capital

Mgmt. Ltd., 671 F. Supp. 2d 1248, 1253 (D.N.M. 2009); Cal. Pub.

                                            25
Emps. Ret. Sys. v. Moody’s Corp., Nos. C 09–03628 SI, C 09–03629

JCS, 2009 WL 3809816, at *6 (N.D. Cal. Nov. 10, 2009); Turner v.

Ind.    Teachers’         Ret.   Fund,    No.        1:07–cv–1637–DFH–JMS,           2008    WL

2324114,       at    *1   (S.D.    Ind.     June       5,    2008);    Larsen    v.    State

Employees’ Ret. Sys., 553 F. Supp. 2d 403, 420 (M.D. Pa. 2008);

JMB Grp. Trust IV v. Pa. Mun. Ret. Sys., 986 F. Supp. 534, 538

(N.D. Ill. 1997); Sculthorpe v. Va. Ret. Sys., 952 F. Supp. 307,

309–10 (E.D. Va. 1997); Hair v. Tenn. Consol. Ret. Sys., 790 F.

Supp. 1358, 1364 (M.D. Tenn. 1992); Mello v. Woodhouse, 755 F.

Supp. 923, 930 (D. Nev. 1991); Reiger v. Kan. Pub. Emps. Ret.

Sys.,    755    F.     Supp.     360,     361    (D.       Kan.    1990);    Retired     Pub.

Employees’ Ass’n of Cal., Chapter 22 v. California, 614 F. Supp.

571, 573, 581 (N.D. Cal. 1984); United States v. South Carolina,

445 F. Supp. 1094, 1099–1100 (D.S.C. 1977); 21 Props., Inc. v.

Romney, 360 F. Supp. 1322, 1326 (N.D. Tex. 1973).


                                            III

       Turning      to    the    claims    against          the    state    officials,      the

plaintiffs alleged in their complaint that “[a]s a result of

Defendants’         deduction     from    [Plaintiffs’]            earnings,    Plaintiffs

and     the    class      have    suffered           and    will    continue    to    suffer

irreparable and immediate harm and injury to their property and

rights under the laws and Constitution of the United States.”

Accordingly,         they   requested,       among         other    relief,    injunctions


                                                26
(1) “compelling Defendants to immediately return to Plaintiffs

and   the      class    all    monies       Defendants      have     deducted       as

contributions to the Retirement Systems since July 1, 2005,” and

(2) “preventing for all time enforcement of [the 2005 Act].”

The plaintiffs contend that their requests for injunctive relief

against the state officials are excepted from Eleventh Amendment

protection under Ex parte Young.

      First,     we    interpret      the     plaintiffs’     request       for     an

injunction compelling the return of “all monies Defendants have

deducted as contributions to the Retirement Systems” as a claim

for   money    damages.       State    officials    sued    in     their    official

capacities      for    retrospective        money   damages      have      the    same

sovereign immunity accorded to the State.                See Buckhannon Bd. &

Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S.

598, 609 n.10 (2001); Edelman v. Jordan, 415 U.S. 651 (1974);

Martin v. Wood, ___ F.3d ___, No. 13-2283 (4th Cir. Nov. 18,

2014).   Therefore, as did the district court, we hold that the

plaintiffs’ claim against the state officials for the return of

their contributions is barred by the Eleventh Amendment.

      Second, we agree with plaintiffs that their claim for the

second injunction -- to prevent “for all time” the enforcement

of the 2005 Act -- is prospective and seeks to remedy an ongoing

violation of federal law.             See Verizon Md., Inc. v. Pub. Serv.

Comm’n, 535 U.S. 635, 645 (2002) (“In determining whether the

                                         27
doctrine of Ex parte Young avoids an Eleventh Amendment bar to

suit, a court need only conduct a “straightforward inquiry into

whether    [the]      Complaint     [1] alleges      an    ongoing      violation   of

federal    law     and     [2] seeks     relief     properly      characterized     as

prospective’”       (first     alteration      in    original)      (quoting   Coeur

d’Alene Tribe, 521 U.S. at 296 (O’Connor, J., concurring in part

and   concurring      in    the    judgment)));     see    also    Va.    Office    for

Protection & Advocacy v. Stewart, 131 S. Ct. 1632, 1639 (2011);

Constantine v. Rectors & Visitors of George Mason Univ., 411

F.3d 474, 496 (4th Cir. 2005).

      Nonetheless, for a reason supported by the record but not

relied on by the district court, we conclude that the district

court    was   also      correct    in   dismissing       the   claim    seeking    the

second injunction against state officials.                      See Greenhouse v.

MCG Capital Corp., 392 F.3d 650, 660 (4th Cir. 2004) (“[W]e ‘may

affirm the dismissal by the district court upon the basis of any

ground supported by the record even if it is not the basis

relied    upon   by      the   district    court’”     (quoting      Ostrzenski     v.

Seigel, 177 F.3d 245, 253 (4th Cir. 1999))).

      The Ex parte Young exception to Eleventh Amendment immunity

applies only where a party “defendant in a suit to enjoin the

enforcement of an act alleged to be unconstitutional” has “some

connection with the enforcement of the act.”                      209 U.S. at 157;

see also S.C. Wildlife Fed’n v. Limehouse, 549 F.3d 324, 333

                                          28
(4th Cir. 2008); Lytle v. Griffith, 240 F.3d 404, 410 (4th Cir.

2001).     Thus, we have held that a governor cannot be enjoined by

virtue of his general duty to enforce the laws, Waste Mgmt.

Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001),

and that an attorney general cannot be enjoined where he has no

specific statutory authority to enforce the statute at issue,

McBurney v. Cuccinelli, 616 F.3d 393, 400 (4th Cir. 2010).                             In

contrast,     we    have   held   that   a    circuit    court    clerk       bore   the

requisite connection to the enforcement of state marriage laws

to   be   enjoined      from    enforcing     them,     because   the     clerk      was

responsible for granting and denying applications for marriage

licenses.      See Bostic v. Schaefer, 760 F.3d 352, 371 n.3 (4th

Cir.), cert. denied, 135 S. Ct. 308 (2014).

       The requirement that there be a relationship between the

state officials sought to be enjoined and the enforcement of the

state     statute    prevents     parties     from    circumventing       a    State’s

Eleventh Amendment immunity.                 See McBurney, 616 F.3d at 399;

Lytle, 240 F.3d at 412 (Wilkinson, C.J., dissenting).                           As the

Court explained in Ex parte Young, if the “constitutionality of

every act passed by the legislature could be tested by a suit

against the governor and attorney general, based upon the theory

that    the   former,      as   the   executive   of    the   State,    was,      in    a

general sense, charged with the execution of all its laws, and

the latter, as attorney general, might represent the state in

                                         29
litigation involving the enforcement of its statutes,” it would

eviscerate       “the    fundamental    principle     that    [States]         cannot,

without their assent, be brought into any court at the suit of

private persons.”         209 U.S. at 157 (quoting Fitts v. McGhee, 172

U.S. 516, 530 (1899)).

      In this case, the plaintiffs named as defendants members of

the State Budget and Control Board, the Executive Director of

the State Budget and Control Board, and the Executive Director

of the Public Employee Benefit Authority, seeking to enjoin them

from deducting from the plaintiffs’ paychecks the contributions

mandated by the 2005 Act.              The State Budget and Control Board

and the Public Employee Benefit Authority serve as co-trustees

of the Retirement System, S.C. Code Ann. § 9-1-1310, and South

Carolina    law    vests    “general    administration       and    responsibility

for the proper operation” of the Retirement System in the Public

Employee     Benefit      Authority,      id.   §§ 9-1-210,        9-11-30.         But

neither    the    State    Budget   and     Control   Board       nor    the    Public

Employee Benefit Authority has responsibility for ensuring that

employee contributions to the Retirement System be deducted from

the   employees’        paychecks   and    transmitted       to    the   Retirement

System.     Employers of covered employees are required to deduct

the requisite contributions from the employees’ paychecks and

furnish the withheld amounts to the Retirement System, and any

person     who    fails    to   remit     withheld    contributions            to   the

                                          30
Retirement     System      is   “guilty    of    a    misdemeanor      and   must   be

punished by fine or imprisonment, or both.”                    Id. § 9-11-210(7);

see also id. § 9-1-1160(A).             The Code of Laws of South Carolina

nowhere gives the Retirement System, the Trust, or the trustees

and administrators of the Retirement System the authority to

deduct or refuse to deduct funds from participating employees’

paychecks or to prosecute employers who violate their duties.

Instead, the role of the state officials named in the complaint

is merely to wait passively for the funds to be transmitted to

the    Retirement   System      and,    once    the    funds    have   arrived,     to

manage and invest them.           As such, the complaint seeks to enjoin

the    Retirement       System’s       trustees       and    administrators      from

participating in a process in which they actually have no role.

       Because the state officials named as defendants have no

connection with the enforcement of the 2005 Act -- specifically

S.C. Code Ann. § 9-1-1790(C) and § 9-11-90(4)(c) -- we hold that

the Ex parte Young exception does not apply and that the state

officials are thus entitled to Eleventh Amendment immunity on

the claims seeking prospective injunctive relief.

                                          IV

       The   plaintiffs     contend     that    notwithstanding        any   Eleventh

Amendment protection to which the defendants may be entitled,

“sovereign immunity never bars a constitutional takings claim.”

They    maintain    that    the    Takings      Clause      provides   an    absolute

                                          31
guarantee of just compensation when private property is taken

for public use and argue that if the States were immune from

takings claims in federal court, the Fifth Amendment would be

“effectively abrogated” by the Eleventh Amendment.

      It is true that under the Eleventh Amendment, States enjoy

sovereign immunity except “where there has been ‘a surrender of

this immunity in the plan of the convention.’”               Coeur d’Alene

Tribe of Idaho, 521 U.S. at 267 (quoting Principality of Monaco

v. Mississippi, 292 U.S. 313, 322-23 (1934)).              But the Supreme

Court has recognized that “the plan of the convention” or the

States themselves have surrendered sovereign immunity in only

six contexts: (1) when a State consents to suit; (2) when a case

is   brought   by   the   United   States   or   another   State;   (3) when

Congress abrogates sovereign immunity pursuant to Section 5 of

the Fourteenth Amendment or pursuant to the Bankruptcy Clause;

(4) when a suit is brought against an entity that is not an arm

of the State; (5) when a private party sues a state official in

his official capacity to prevent an ongoing violation of federal

law; and (6) when an individual sues a state official in his

individual capacity for ultra vires conduct.               See S.C. State

Ports Auth. v. Fed. Maritime Comm’n, 243 F.3d 165, 176-77 (4th

Cir. 2001), aff’d, 535 U.S. 743 (2002).               The plaintiffs now

invite us to recognize a seventh exception for claims brought

under the Takings Clause of the Fifth Amendment.

                                     32
       The Fifth Amendment provides that “private property [shall

not] be taken for public use, without just compensation,” U.S.

Const. amend. V, and the Eleventh Amendment provides that “[t]he

judicial power of the United States shall not be construed to

extend to any suit . . . , commenced or prosecuted against one

of   the    United    States”    by    citizens     of    that    State   or   another

State, id. amend. XI.                While there is arguably some tension

between the protections of these amendments, that tension is not

irreconcilable.

       Just as the Constitution guarantees the payment of just

compensation for a taking, so too does the Due Process Clause

provide the right to a remedy for taxes collected in violation

of federal law.            See, e.g., McKesson Corp. v. Div. of Alcoholic

Beverages & Tobacco, 496 U.S. 18, 51 (1990).                       But despite the

constitutional requirement that there be a remedy, the Supreme

Court expressly noted in Reich v. Collins, 513 U.S. 106 (1994),

that    “the    sovereign      immunity    [that]    States       enjoy   in   federal

court,     under     the    Eleventh    Amendment,       does    generally     bar   tax

refund claims from being brought in that forum.”                          Id. at 110

(second emphasis added).               To ensure that taxpayers possess an

avenue for relief, the Court held that state courts must hear

suits      to   recover      taxes     unlawfully    exacted,       the   “sovereign

immunity [that] States traditionally enjoy in their own courts

notwithstanding.”            Id.; cf. Alden v. Maine, 527 U.S. 706, 740

                                          33
(1999) (holding that Congress cannot subject States to suits in

state courts but taking care not to overrule Reich).                         Reasoning

analogously, we conclude that the Eleventh Amendment bars Fifth

Amendment taking claims against States in federal court when the

State’s courts remain open to adjudicate such claims.

     South      Carolina       courts    have      long   recognized    a    right   of

persons    to    sue   the     State    for    unconstitutional      takings.        See

Graham v. Charleston Cnty. Sch. Bd., 204 S.E.2d 384, 386 (S.C.

1974) (“In this jurisdiction neither the State nor any of its

political subdivisions is liable in an action ex delicto unless

by express enactment of the General Assembly, except where the

acts complained of, in effect, constitute a taking of private

property    for     public     use     without     just   compensation”      (emphasis

added)), overruled on other grounds by McCall v. Batson, 329

S.E.2d 741 (S.C. 1985).               Because the plaintiffs can have their

takings    claims      heard     in     South      Carolina   state    courts,       the

Eleventh Amendment does not render the Takings Clause an empty

promise.        But in concluding that the Fifth Amendment Takings

Clause does not, in this case, trump the Eleventh Amendment, we

do not decide the question whether a State can close its doors

to   a    takings      claim    or     the     question    whether     the    Eleventh

Amendment would ban a takings claim in federal court if the

State courts were to refuse to hear such a claim.



                                              34
       The plaintiffs direct our attention to numerous cases in

which     suits       to       recover        property         illegally          seized        by    the

government       were       held      not     to    have       been        barred    by     sovereign

immunity.        But in none of those cases did the plaintiffs sue

either the sovereign itself or its alter ego.                                     For example, in

United    States       v.      Lee,     106     U.S.      196,       222     (1882),       the       Court

permitted       an     ejectment            action        to     proceed          against       federal

officers       who    served       as    custodians            of    the     estate       of    General

Robert    E.    Lee     because         the     suit      was       not     against       the    United

States.        In Tindal v. Wesley, 167 U.S. 204 (1897), the Court

permitted a suit against two state officials to recover property

wrongly held by them on behalf of the State, because the case

was “a suit against individuals,” id. at 221, and the Court

could not perceive how it could “be regarded as one against the

state,” id. at 218.                   And in Hopkins v. Clemson Agricultural

College    of     South        Carolina,       221      U.S.        636,    648-49     (1911),         the

Court    permitted         a    suit     alleging         a    takings        claim       to    proceed

against a university, but under the law in effect at the time,

the fact that the university was set up as a corporation meant

that it was not an arm of the State, see P.R. Ports Auth. v.

Fed.    Mar.    Comm’n,         531     F.3d       868,    884       (D.C.    Cir.     2008).           By

contrast, in Larson v. Domestic & Foreign Commerce Corp., 337

U.S.    682,    689     (1949),         the    Court      dismissed          an     action      brought

against the head of the War Assets Administration alleging that

                                                   35
he had refused to deliver coal that he had contracted to sell to

the plaintiff and seeking an injunction prohibiting him from

selling   or   delivering    that   coal   to   anyone    else,   because   the

relief sought was “against the sovereign.”               And while the Court

has   sometimes    decided     takings      claims    without     considering

Eleventh Amendment immunity, see, e.g., Brown v. Legal Found. of

Wash., 538 U.S. 216 (2003); Lucas v. S.C. Coastal Council, 505

U.S. 1003 (1992), we cannot glean much from that fact given that

a State can waive its Eleventh Amendment protection.

      Finally, we note that every other court of appeals to have

decided the question has held that the Takings Clause does not

override the Eleventh Amendment.           See Seven Up Pete Venture v.

Schweitzer, 523 F.3d 948, 954 (9th Cir. 2008) (“[W]e conclude

that the constitutionally grounded self-executing nature of the

Takings Clause does not alter the conventional application of

the Eleventh Amendment”); DLX, Inc. v. Kentucky, 381 F.3d 511,

526 (6th Cir. 2004) (“Treating DLX’s claim as a self-executing

reverse condemnation claim, . . . we conclude that the Eleventh

Amendment’s    grant   of    immunity      protects   Kentucky     from     that

claim . . .”); Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1279

(11th Cir. 1998) (holding that a takings claim was barred under

the Eleventh Amendment, where state courts provided a means of

redress for such claims); John G. & Marie Stella Kenedy Mem’l

Found. v. Mauro, 21 F.3d 667, 674 (5th Cir. 1994) (holding that

                                     36
the district court “correctly determined that the Foundation’s

Fifth     Amendment     inverse      condemnation       claim    brought      directly

against      the    State     of    Texas”       was   barred   by    the     Eleventh

Amendment); Citadel Corp. v. P.R. Highway Auth., 695 F.2d 31, 33

n.4   (1st    Cir.    1982)    (“Even     if     the   constitution    is     read    to

require      compensation      in    an    inverse      condemnation        case,    the

Eleventh Amendment should prevent a federal court from awarding

it”); Garrett v. Illinois, 612 F.2d 1038, 1040 (7th Cir. 1980)

(“Even though the Fifth Amendment alone may support a cause of

action    for      damages    against     the     United    States,   the     Eleventh

Amendment     stands    as    an    express      bar   to   federal   power    when    a

similar action is brought against one of the states” (citation

omitted)).

                                     *       *     *

      For the reasons given, the judgment of the district court

is

                                                                             AFFIRMED.




                                           37
