                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  February 3, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 LINDA A. DOUGHERTY,

          Plaintiff-Appellant,
 v.                                                       No. 09-6068
 UNIVERSITY OF OKLAHOMA                          (D.C. No. 5:05-CV-01341-F)
 BOARD OF REGENTS, State of                             (W.D. Okla.)
 Oklahoma ex rel., a constitutional
 state agency,

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO, BALDOCK, and HOLMES, Circuit Judges. **


      Plaintiff Linda A. Dougherty appeals from the district court’s denial of her

motion to enforce a settlement agreement against Defendant University of Oklahoma

Board of Regents. Because we conclude the district court lacked subject matter

jurisdiction, we remand this case to the district court with instructions to remand to

the state court.

      *
         This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is,
therefore, submitted without oral argument.
                                          I.

      The parties are familiar with the facts of this case, and we do not recite them

at length here. In 2005, Plaintiff sued Defendant in Oklahoma state court, alleging

breach of contract. Defendant removed the action to federal district court, alleging

subject matter jurisdiction on the basis of diversity of citizenship.       28 U.S.C.

§ 1332(a)(1). Plaintiff is a citizen of Alabama, and both parties appear to have

assumed Defendant, a “Constitutional body of the State of Oklahoma,” was

considered a citizen of Oklahoma. Defendant also alleged an amount in controversy

exceeding $75,000. 1

      After the complaint and answer were filed in federal district court, the parties

reached a settlement agreement. 2 In a short order, the district court administratively

closed the case but retained jurisdiction for the purpose of enforcing the settlement

agreement. Plaintiff became dissatisfied with Defendant’s actions pursuant to the

settlement agreement and filed a motion to enforce the settlement agreement in 2008.

The district court concluded the agreement was unambiguous and that Defendant had

complied with it. The court, therefore, denied her motion to enforce. Plaintiff

appealed. We subsequently issued an order to show cause why we should not


      1
         Because we conclude diversity of citizenship does not exist in this case, we
do not reach the question whether the amount in controversy requirement is satisfied.
      2
        In her amended complaint before the federal district court, Plaintiff alleged
negligent supervision, training and retention claims in addition to her breach of
contract claim against Defendant.

                                          2
remand to the district court with instructions to remand to the state court for lack of

subject matter jurisdiction. In simultaneous briefings, both parties concede we lack

subject matter jurisdiction. 3

                                          II.

      In every case, we must “satisfy ourselves not only of our own jurisdiction, ‘but

also that of the lower courts in the cause under review.’” Estate of Harshman v.

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

Mitchell v. Maurer, 293 U.S. 237, 244 (1934)). Thus, “‘[w]e have jurisdiction to

determine our jurisdiction.’” Hamilton v. Gonzales, 485 F.3d 564, 565 (10th Cir.

2007) (quoting Schroek v. Gonzales, 429 F.3d 947, 950 (10th Cir. 2005)).

      The only defendant in this case is the University of Oklahoma Board of

Regents. The Board of Regents, like the University of Oklahoma itself, is an arm of

the state of Oklahoma. Cornforth v. Univ. of Okla. Bd. of Regents, 263 F.3d 1129,

1131 n.1 (10th Cir. 2001); Hensel v. Office of Chief Admin. Hearing Officer, 38

F.3d 505, 508 (10th Cir. 1994); see also Okla. Const. Art. XIII-A, XIII-B (2006);

Okla. Stat. tit. 70, §§ 3301–3305 (2005). “A state, or the arm or alter ego of a state,


      3
        Defendant notes: “[I]t would seem that an incorrect presumption was shared
by all–counsel for the University, counsel for Dougherty, the District Court, and
even this honorable Court, at least for some period of time–that the University’s
status constituted that of a ‘citizen’ for purposes of diversity jurisdiction.”
Counsel’s candid admission of his mistake is well-warranted, but his implication that
this court has made the same mistake is not. It cannot be said that the court which
ordered the parties to explain why the district court had jurisdiction allowed “the
issue of subject matter jurisdiction . . . to slip through the cracks.”

                                          3
however, does not constitute a ‘citizen’ for diversity purposes.” State Ins. Fund v.

Ace Transp. Inc., 195 F.3d 561, 563 (10th Cir. 1999); see also Stone v. South

Carolina, 117 U.S. 430, 433 (1886) (“There is no statute which authorizes the

removal of a suit between a state and citizens on the ground of citizenship, for a state

cannot, in the nature of things, be a citizen of any state.”); Okla. ex rel. Williams v.

Okla. Natural Gas Corp., 83 F.2d 986, 988 (10th Cir. 1936) (“[A] state is not a

citizen for the purpose of constituting the requisite diversity.”). Because Defendant

cannot be considered a citizen for diversity purposes, the district court lacked subject

matter jurisdiction. Accordingly, we remand this action to the district court with

instructions to remand to the state court.



                                        Entered for the Court,



                                        Bobby R. Baldock
                                        United States Circuit Judge




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