UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

______________________ _________________ WISDOM MINIST RIES, INC., Pl aintiff - Appellant

v. ALLISON D. GARRETT, Chancellor of th e Oklahoma State Regents for Higher Education, in her official capacity; and OKLAHOMA STATE REGENTS FOR HIGHER EDUCATION,
De fendants - 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 partie s disagreed on whether a religious university could issue specialized degrees wit hout meeting the st ate’s accreditation

* Oral argument would not help us decide the appeal, so we have decided the appeal ba sed 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 co nstitute binding pr ecedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgmen t may be cited for its persuasi ve 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 Appellate Case: 23-5098 Document: 010111093786 Date Filed: 08/13/2024 Page: 12 requirements. The disagreement led to this suit, which the district court dismissed without prej udice for failure to state a valid claim. The plaintiff, a religiou s university, a sserted federal claims, seeking declaratory and injunctive relief. For two separate reasons, the district court lacked jurisdiction ov er the federal claims. First, the plaintiff hasn’t identified a statutory basis for federal jurisdiction. Without a st atutory basis for jurisdiction, the district court would have needed to di smiss the action without prejudice ev en if the plaintiff had otherwise stated a valid claim. Second, the Eleventh Amendment ba rs some of the federal claims, and the remaining federal claims be came moot because the law changed during the pendency of this appeal. The plaintiff also asserted a st ate claim for nominal damages. Without a basis for federa l jurisdiction, the district court should have declined supplemental jurisdiction. Ev en if jurisdiction were otherwise proper, however, the Eleventh Am endment would have prevented jurisdiction to issu e nominal damages. Background
1. The Oklahoma State Regents for Higher Ed ucation required Wisdom University to stop issuing degrees in Biblical Wisdom . The plaintiff, Wisdom Ministries, Inc., operates Wis dom University, a religious university. The un iversity offered degrees in Biblical Wisdom , Appellate Case: 23-5098 Document: 010111093786 Date Filed: 08/13/2024 Page: 23 but hadn’t obtained accreditation under Oklahoma law. Given the lack of accreditation, the Oklahoma State Rege nts for Higher Education required Wisdom Ministries to stop issuing degrees. See Okla. Stat. tit. 70, §§ 4103(B), 4104 (2021). Wi sdom Ministries sued the State Regents and their Chancellor in her official capacity, alleging violation of

 the First Amendment and

 the Oklahoma Religi ous Freedom Act. 1
The district court dismissed the suit w ithout prejudice. Wisdom Ministries appealed, challenging dism issal of these claims.
2. A new Oklahoma law allows Wisdom University to issue degrees in Biblical Wisdom . During the penden cy of the appeal, Oklahom a enacted a law allowing religious instituti ons to grant specialized degrees. See 2024 Okla. Sess. Law Serv. ch. 117 (West) . The new law took eff ect 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 ruling s on these claims.

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

 took effect immediat ely upon the Governor’s signature (April 23, 2024) and

 would take effect on July 1, 2024. Appellate Case: 23-5098 Document: 010111093786 Date Filed: 08/13/2024 Page: 34 Analysis
1. Federal claims for declaratory and injunctive relief In the complaint, Wis dom Ministries didn’t id entify the underlying cause of action for the federal claims. In supp lemental briefs, however, Wisdom Ministries says that it’s bringi ng all of the fede ral claims under 28 U.S.C. § 2201, which govern s proceedings for declar atory relief. Invoking this section, Wisdom Ministries seeks a declaratory judgment and an injunction. The district court addressed the meri ts of these clai ms. 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 Ci r. 2013) (“This court has an independent obligation to ensure it has subject matt er jurisdiction at every stage of the l itigation.”).

a. Statutory vehicle for the constitutional claims The federal claims invo lve violation of the Fi rst Amendment. Before a court can consider these claims, howev er, the plaintiff b ears the burden to identify a proper basi s 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 Ci r. 2008) (“The burden of

Compare 2024 Okla. Sess. Law Serv. ch. 117, § 2 (West), with id. § 3. The parties agree that the law allowed Wi sdom Ministries to start issuing degrees on April 23, 2024. Appellate Case: 23-5098 Document: 010111093786 Date Filed: 08/13/2024 Page: 45 establishing subject matter jurisd iction is on th e party asserting jurisdiction.”). For constitutional viol ations, 42 U.S.C. § 1983 provides the usual statutory vehicle for constitutiona l claims against state actors. Jojola v. Chavez , 55 F.3d 488, 492 (10th Cir. 1995). But Wisdom Ministries disavows reliance on § 1983, basing jurisdicti on 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 Minist ries must rely on some ot her jurisdictional basis for the federal claims. Id. ; see also Hanson v. Wyatt , 552 F.3d 1148, 1157 (10th Cir. 2008) (“Th e Declaratory Judgment Act does not create substantive righ ts.” (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 clai ms, and we’re “not obliged ‘to conjure up possible theories’” for jurisdiction. Atlas Biologicals, In c. v. Kutrubes , 50 F.4th 1307, 1322 (10t h Cir. 2022) (quoting Raley v. Hyundai Motor Co., Ltd. , 642 F.3d 1271, 1275 (1 0th Cir. 2011)). We conclude that Wisdom Minist ries didn’t satisfy its burden because it failed to identify a statut ory basis for federal jurisdiction.

b. Claims against the State Regents Apart from Wisdom Ministries’ fail ure to identify a statutory basis for jurisdiction, the Eleventh Amendm ent prevented jurisdiction over the Appellate Case: 23-5098 Document: 010111093786 Date Filed: 08/13/2024 Page: 56 State Regents on the federal claims. See Williams v. Ut ah Dep’t of Corr. , 928 F.3d 1209, 1212 (10th Cir. 2019) (stating that we can consider the Eleventh Amendment sua sponte). Th is amendment applies to claims against all state agencies, re gardless 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 th e Oklahoma State Re gents for Higher Education); see also In re Okla. Capitol Imp. Auth. , 80 P.3d 109, 118 (Okla. 2003) (referring to the Oklahoma Stat e Regents as a state agency). As a result, the State Regents enjo y Eleventh Amendment immunity and can’t be sued in federal court. See Tarrant Reg. Wate r Dist. v. Sevenoaks , 545 F.3d 906, 911 (10th Ci r. 2008). This immunity prevented the federal district court from exercising ju risdiction over the State Regents.

c. Claims against the Chancellor in her o fficial capacity Wisdom Ministries also assert ed 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 o fficial capacity generally enjoys Eleventh Appellate Case: 23-5098 Document: 010111093786 Date Filed: 08/13/2024 Page: 67 Amendment immunity on claims involving declaratory relief 3 and retrospective in junctive relief. 4 Granted, the Eleventh Amendment doesn’t apply to the claims for prospective declarat ory and injunctive relief fo r 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) (declarat ory judgment). For thes e claims, however, we must consider whether Wisdom Mini stries’ appellate arguments have become moot in light of th e change in Oklahoma law. See Chihuahuan Grassland All. v. Kempthorne , 545 F.3d 884, 891 (10th Cir. 2008). When the law changes, “litigati on 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 fo r 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 Se rv. 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). Appellate Case: 23-5098 Document: 010111093786 Date Filed: 08/13/2024 Page: 78 Despite the change in Ok lahoma law, Wisdom Mini stries argues that it seeks to award degrees to students who graduated when the old law was in effect. But the Chancello r acknowledges that the new law entitles Wisdom Ministries to award degrees to stud ents regardless of their graduation dates. Wisdom Ministries ques tions this acknowledgmen t, but must show a realistic danger that state authoritie s 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 univ ersities to issue specialized degrees to stud ents who had graduated before the effective date of the new law, and Wisdom Ministri es doesn’t explain how the new law would restrict the granting of future degrees based on a student’s graduation date. In thes e circumstances, a pros pective 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 supple mental jurisdiction over Wisdom Ministries’ state claim, rejecting it on the merits . But the cour t 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 Appellate Case: 23-5098 Document: 010111093786 Date Filed: 08/13/2024 Page: 89 Workers of Am. v. Gibbs , 383 U.S. 715, 725 ( 1966). To exercise jurisdiction over the stat e claim, however, the di strict court must have jurisdiction over at l east one federal claim. Estate of Harshm an v. Jackson Hole Mtn. Resort Corp. , 379 F.3d 1161, 1164 (1 0th 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 Minist ries disavows reliance on § 1983, relying solely on the declaratory-judgm ent statute (28 U.S.C. § 2201). See Analysis–Part 1(a), above. But th is statute doesn’t provide an independent basis for federal jurisdiction. See Analysis–Part 1(a), above. Without federal jurisdicti on, the district court had no basis to exercise supplemental jurisdiction over the state claim. Even if the district court had ju risdiction over a federal claim, however, the Eleventh Amendment would have prevented jurisdiction over the state claim. The El eventh Amendment applie s not only to federal claims, but also to state claims. Pennhurst State Sc h. & 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 th rough language that leaves no other Appellate Case: 23-5098 Document: 010111093786 Date Filed: 08/13/2024 Page: 910 reasonable interpretation. Levy v. Kan. Dep’t of Soc. & Rehab. Servs. , 789 F.3d 1164, 1170 (10th Cir. 2015). No such intent is apparent he re. State law does say that a governmental entity can be sued under the Ok lahoma Religious Freedom Act. Okla. Stat. tit. 51, § 256(A) (2021). Bu t “[a] State does not waive its Eleventh Amendment immunity by cons enting to suit on ly in its own courts, and ‘[t]hus, in order for a state statute . . . to constitute a waiver of Eleventh Amendment imm unity, it must specify th e State’s intention to subject itself to suit in federal court .’” Port Auth. Trans-H udson Corp. v. Feeney , 495 U.S. 299, 306 (1990 ) (citation omitted). The state law allows suit against a governmental enti ty, but doesn’t say that the suit could proceed in fede ral court. In the absence of such a statement, the Eleventh Amendment immunizes th e State from federal litigation brought under the Oklahoma Religio us Freedom Act. See In re
Innes , 184 F.3d 1275, 1278–79 ( 10th Cir. 1999) (conclud ing that Kansas’s statutory consent to suit in state co urt did not waive Eleventh Amendment immunity); Griess v. Colorado , 841 F.2d 1042, 1044 (10th Cir. 1988) (concluding that Colora do’s “general waiver of sovereign immunity, apparently indeterminate in its scope or locus of effect, [is] insufficient” to “constitute abandonmen t of its Eleven th Amendment i mmunity in the federal courts”). So the Eleventh Am endment prevented ju risdiction over the state claim. Appellate Case: 23-5098 Document: 010111093786 Date Filed: 08/13/2024 Page: 1011 Conclusion On each set of claims, the district court lacked juri sdiction or the appeal became moot. We thus affirm the dismi ssal without prejudice. 5
Entered for the Court

Robert E. Bacharach Circuit Judge

5 Wisdom Ministries asserts that it “needs th[e] [c]o urt’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). Appellate Case: 23-5098 Document: 010111093786 Date Filed: 08/13/2024 Page: 11