UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_______________________________________ 

WISDOM MINISTRIES, INC., 

 Plaintiff - Appellant 

v. 

ALLISON D. GARRETT, 

Chancellor of the Oklahoma State 

Regents for Higher Education, in 

her official capacity; and 

OKLAHOMA STATE REGENTS 

FOR HIGHER EDUCATION, 

 Defendants - Appellees. 

No. 23-5098 

(D.C. No. 4:22-CV-00477-CVECDL) 

(N.D. Okla.) 

___________________________________________ 

ORDER AND JUDGMENT*

_________________________________________ 

Before HARTZ, BACHARACH, and ROSSMAN, Circuit Judges. 

___________________________________________ 

In this case, the parties disagreed on whether a religious university 

could issue specialized degrees without meeting the state’s accreditation 

* Oral argument would not help us decide the appeal, so we have 

decided the appeal based on the record and the parties’ briefs. See Fed. R. 

App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). 

This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value if 

otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 13, 2024

Christopher M. Wolpert 

Clerk of Court

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requirements. The disagreement led to this suit, which the district court 

dismissed without prejudice for failure to state a valid claim. 

The plaintiff, a religious university, asserted federal claims, seeking 

declaratory and injunctive relief. For two separate reasons, the district 

court lacked jurisdiction over the federal claims. 

First, the plaintiff hasn’t identified a statutory basis for federal 

jurisdiction. Without a statutory basis for jurisdiction, the district court 

would have needed to dismiss the action without prejudice even if the 

plaintiff had otherwise stated a valid claim. 

Second, the Eleventh Amendment bars some of the federal claims, 

and the remaining federal claims became moot because the law changed 

during the pendency of this appeal. 

The plaintiff also asserted a state claim for nominal damages. 

Without a basis for federal jurisdiction, the district court should have 

declined supplemental jurisdiction. Even if jurisdiction were otherwise 

proper, however, the Eleventh Amendment would have prevented 

jurisdiction to issue nominal damages. 

Background 

1. The Oklahoma State Regents for Higher Education required 

Wisdom University to stop issuing degrees in Biblical Wisdom. 

The plaintiff, Wisdom Ministries, Inc., operates Wisdom University, 

a religious university. The university offered degrees in Biblical Wisdom, 

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but hadn’t obtained accreditation under Oklahoma law. Given the lack of 

accreditation, the Oklahoma State Regents for Higher Education required 

Wisdom Ministries to stop issuing degrees. See Okla. Stat. tit. 70, 

§§ 4103(B), 4104 (2021). Wisdom Ministries sued the State Regents and 

their Chancellor in her official capacity, alleging violation of 

 the First Amendment and 

 the Oklahoma Religious Freedom Act. 1

The district court dismissed the suit without prejudice. Wisdom Ministries 

appealed, challenging dismissal of these claims. 

2. A new Oklahoma law allows Wisdom University to issue degrees 

in Biblical Wisdom.

During the pendency of the appeal, Oklahoma enacted a law allowing 

religious institutions to grant specialized degrees. See 2024 Okla. Sess. 

Law Serv. ch. 117 (West). The new law took effect on April 23, 2024. See 

id. § 3.2

 The parties agree that under the new law, Wisdom University can 

issue degrees in Biblical Wisdom. 

1

 Wisdom Ministries also claimed a denial of equal protection and 

violations of the state constitution. But Wisdom Ministries doesn’t 

challenge the rulings on these claims. 

2

 The Act is on unclear on its effective date, stating both that it 

 took effect immediately upon the Governor’s signature (April 

23, 2024) and 

 would take effect on July 1, 2024. 

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Analysis 

1. Federal claims for declaratory and injunctive relief

In the complaint, Wisdom Ministries didn’t identify the underlying 

cause of action for the federal claims. In supplemental briefs, however, 

Wisdom Ministries says that it’s bringing all of the federal claims under 28 

U.S.C. § 2201, which governs proceedings for declaratory relief. Invoking 

this section, Wisdom Ministries seeks a declaratory judgment and an 

injunction. 

The district court addressed the merits of these claims. But we must 

ensure that jurisdiction existed in district court and on appeal. See Fancher 

v. Barrientos, 723 F.3d 1191, 1198 n.2 (10th Cir. 2013) (“This court has an 

independent obligation to ensure it has subject matter jurisdiction at every 

stage of the litigation.”). 

a. Statutory vehicle for the constitutional claims 

The federal claims involve violation of the First Amendment. Before 

a court can consider these claims, however, the plaintiff bears the burden to 

identify a proper basis for jurisdiction. Atlas Biologicals, Inc. v. Kutrubes, 

50 F.4th 1307, 1322 (10th Cir. 2022); see also Port City Props. v. Union 

Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008) (“The burden of 

Compare 2024 Okla. Sess. Law Serv. ch. 117, § 2 (West), with id. § 3. The 

parties agree that the law allowed Wisdom Ministries to start issuing 

degrees on April 23, 2024. 

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establishing subject matter jurisdiction is on the party asserting 

jurisdiction.”). 

For constitutional violations, 42 U.S.C. § 1983 provides the usual 

statutory vehicle for constitutional claims against state actors. Jojola v. 

Chavez, 55 F.3d 488, 492 (10th Cir. 1995). But Wisdom Ministries 

disavows reliance on § 1983, basing jurisdiction on the declaratoryjudgment statute (28 U.S.C. § 2201). But § 2201 is not a jurisdictional 

statute. Schulke v. United States, 544 F.2d 453, 455 (10th Cir. 1976) (per 

curiam). So Wisdom Ministries must rely on some other jurisdictional basis 

for the federal claims. Id.; see also Hanson v. Wyatt, 552 F.3d 1148, 1157 

(10th Cir. 2008) (“The Declaratory Judgment Act does not create 

substantive rights.” (quoting Farmers All. Mut. Ins. Co. v. Jones, 570 F.2d 

1384, 1385 (10th Cir. 1978)) (cleaned up)). Wisdom Ministries hasn’t 

identified any other statutory vehicle for the federal claims, and we’re “not 

obliged ‘to conjure up possible theories’” for jurisdiction. Atlas 

Biologicals, Inc. v. Kutrubes, 50 F.4th 1307, 1322 (10th Cir. 2022) (quoting 

Raley v. Hyundai Motor Co., Ltd., 642 F.3d 1271, 1275 (10th Cir. 2011)). 

We conclude that Wisdom Ministries didn’t satisfy its burden 

because it failed to identify a statutory basis for federal jurisdiction. 

b. Claims against the State Regents 

Apart from Wisdom Ministries’ failure to identify a statutory basis 

for jurisdiction, the Eleventh Amendment prevented jurisdiction over the 

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State Regents on the federal claims. See Williams v. Utah Dep’t of Corr., 

928 F.3d 1209, 1212 (10th Cir. 2019) (stating that we can consider the 

Eleventh Amendment sua sponte). This amendment applies to claims 

against all state agencies, regardless of the relief sought. P.R. Aqueduct & 

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). And the 

Oklahoma State Regents for Higher Education is a state agency. See Okla. 

Const. art. XIII-A, § 2 (creating the Oklahoma State Regents for Higher 

Education); see also In re Okla. Capitol Imp. Auth., 80 P.3d 109, 118 

(Okla. 2003) (referring to the Oklahoma State Regents as a state agency). 

As a result, the State Regents enjoy Eleventh Amendment immunity and 

can’t be sued in federal court. See Tarrant Reg. Water Dist. v. Sevenoaks, 

545 F.3d 906, 911 (10th Cir. 2008). This immunity prevented the federal 

district court from exercising jurisdiction over the State Regents. 

c. Claims against the Chancellor in her official capacity 

Wisdom Ministries also asserted federal claims against the 

Chancellor in her official capacity. This claim is effectively against the 

State itself. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). So 

the Chancellor in her official capacity generally enjoys Eleventh 

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Amendment immunity on claims involving declaratory relief3

 and 

retrospective injunctive relief.4

 Granted, the Eleventh Amendment doesn’t apply to the claims for 

prospective declaratory and injunctive relief for an ongoing violation of 

federal law. See Fowler v. Stitt, 104 F.4th 770, 775, 781–83 (10th Cir. 

2024) (injunction); Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 632 

(10th Cir. 1998) (declaratory judgment). For these claims, however, we 

must consider whether Wisdom Ministries’ appellate arguments have 

become moot in light of the change in Oklahoma law. See Chihuahuan 

Grassland All. v. Kempthorne, 545 F.3d 884, 891 (10th Cir. 2008). 

When the law changes, “litigation under the old law generally 

becomes moot.” N. Nat. Gas Co. v. Grounds, 931 F.2d 678, 684 (10th Cir. 

1991). So the appellate argument for a prospective declaration or 

injunction would become moot if the new law provides the same relief that 

Wisdom Ministries hopes to get through litigation. See Fleming v. 

Gutierrez, 785 F.3d 442, 445 (10th Cir. 2015). 

Under the new Oklahoma law, Wisdom Ministries can issue degrees 

in Biblical Wisdom. See 2024 Okla. Sess. Law Serv. Ch. 117 (West). 

3

 Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1252 (10th Cir. 

2007). 

4

 Muscogee (Creek) Nat. v. Okla. Tax Comm’n, 611 F.3d 1222, 1233 

(10th Cir. 2010). 

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Despite the change in Oklahoma law, Wisdom Ministries argues that it 

seeks to award degrees to students who graduated when the old law was in 

effect. But the Chancellor acknowledges that the new law entitles Wisdom 

Ministries to award degrees to students regardless of their graduation 

dates. 

Wisdom Ministries questions this acknowledgment, but must show a 

realistic danger that state authorities will initiate an enforcement action 

under the new law. See O’Shea v. Littleton, 414 U.S. 488, 494 (1974). 

Wisdom Ministries hasn’t made that showing. The Chancellor’s attorney 

has represented to us that the new law allows religious universities to issue 

specialized degrees to students who had graduated before the effective date 

of the new law, and Wisdom Ministries doesn’t explain how the new law 

would restrict the granting of future degrees based on a student’s 

graduation date. In these circumstances, a prospective declaration or 

injunction would not give any authority to Wisdom Ministries that it 

doesn’t already have under the new law. 

2. Claim under state law 

The district court exercised supplemental jurisdiction over Wisdom 

Ministries’ state claim, rejecting it on the merits. But the court shouldn’t 

have exercised jurisdiction over the state claim. 

When jurisdiction exists on a federal claim, the court generally has 

discretion to exercise jurisdiction over related state-claims. United Mine 

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Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). To exercise 

jurisdiction over the state claim, however, the district court must have 

jurisdiction over at least one federal claim. Estate of Harshman v. Jackson 

Hole Mtn. Resort Corp., 379 F.3d 1161, 1164 (10th Cir. 2004). 

As noted above, Wisdom Ministries hasn’t articulated a basis for 

jurisdiction over the federal claims. See Analysis–Part 1(a), above. The 

district court apparently assumed that Wisdom Ministries was basing 

jurisdiction on 42 U.S.C. § 1983. But Wisdom Ministries disavows reliance 

on § 1983, relying solely on the declaratory-judgment statute (28 U.S.C. 

§ 2201). See Analysis–Part 1(a), above. But this statute doesn’t provide an 

independent basis for federal jurisdiction. See Analysis–Part 1(a), above. 

Without federal jurisdiction, the district court had no basis to exercise 

supplemental jurisdiction over the state claim. 

Even if the district court had jurisdiction over a federal claim, 

however, the Eleventh Amendment would have prevented jurisdiction over 

the state claim. The Eleventh Amendment applies not only to federal 

claims, but also to state claims. Pennhurst State Sch. & Hosp. v. 

Halderman, 465 U.S. 89, 122 (1984). 

Granted, a state can waive the Eleventh Amendment. E.g., In re 

Innes, 184 F.3d 1275, 1278 (10th Cir. 1999). But waiver requires the state 

to forgo immunity expressly or through language that leaves no other 

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reasonable interpretation. Levy v. Kan. Dep’t of Soc. & Rehab. Servs., 789 

F.3d 1164, 1170 (10th Cir. 2015). 

No such intent is apparent here. State law does say that a 

governmental entity can be sued under the Oklahoma Religious Freedom 

Act. Okla. Stat. tit. 51, § 256(A) (2021). But “[a] State does not waive its 

Eleventh Amendment immunity by consenting to suit only in its own 

courts, and ‘[t]hus, in order for a state statute . . . to constitute a waiver of 

Eleventh Amendment immunity, it must specify the State’s intention to 

subject itself to suit in federal court.’” Port Auth. Trans-Hudson Corp. v. 

Feeney, 495 U.S. 299, 306 (1990) (citation omitted). 

The state law allows suit against a governmental entity, but doesn’t 

say that the suit could proceed in federal court. In the absence of such a 

statement, the Eleventh Amendment immunizes the State from federal 

litigation brought under the Oklahoma Religious Freedom Act. See In re 

Innes, 184 F.3d 1275, 1278–79 (10th Cir. 1999) (concluding that Kansas’s 

statutory consent to suit in state court did not waive Eleventh Amendment 

immunity); Griess v. Colorado, 841 F.2d 1042, 1044 (10th Cir. 1988) 

(concluding that Colorado’s “general waiver of sovereign immunity, 

apparently indeterminate in its scope or locus of effect, [is] insufficient” to 

“constitute abandonment of its Eleventh Amendment immunity in the 

federal courts”). So the Eleventh Amendment prevented jurisdiction over 

the state claim. 

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Conclusion

On each set of claims, the district court lacked jurisdiction or the 

appeal became moot. We thus affirm the dismissal without prejudice.5

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge 

5

 Wisdom Ministries asserts that it “needs th[e] [c]ourt’s judgment in 

order to recover its attorneys’ fees.” Appellant’s Supp. Br. at 1. But the 

court can’t base jurisdiction solely on a request for attorneys’ fees. 

Fleming v. Gutierrez, 785 F.3d 442, 448 (10th Cir. 2015). 

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