UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ YUNG-KAI LU, Plaintiff - Appellant,

v. UNIVERSITY OF UTAH; ROBERT BALDWIN; MIGUEL CHUAQUI; MICHAEL G. GOODRICH; LORI McDONALD; CHARLES PIELE; DONN SCHAEFER; CHALIMAR L. SWAIN; CHARLES A. WIGHT, Defendants - Appellees. No. 15-4179 (D.C. No. 2:13- CV-00984-TC) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, BACHARACH and MORITZ , Circuit Judges.

________________ _________________ Plaintiff Yung-Kai Lu, a c itizen of Taiwan, appeals fr om the district court’s dismissal of his lawsuit alle ging tort and contract claims against the University of Utah and several of its o fficials claiming they wrongf ully failed to renew his doctoral-studies scholarship af ter the expiration of its contractual term. Exercising

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 16, 2016
Elisabeth A. Shumaker Clerk of Court2 jurisdiction under 28 U.S.C. § 1291, we af firm the dismissal of Lu’s second amended complaint for substantially the reas ons stated by the district court.
I. BACKGROUND Because the district court dismis sed Lu’s amended complaint under Fed. R. Civ. P. 12(b)(6), we must “accept as true all we ll-pleaded factual allegations and view these allegations in the light most favorable to [him].” Casanova v. Ulibarri , 595 F.3d 1120, 1124 (10t h Cir. 2010) (ellipsis a nd internal quotation marks omitted). The district court’s order t horoughly and accurately sets forth Lu’s allegations; thus, our su mmary is brief. The University entered into a written agreement with Lu in May 2010, agreeing to give him a scholarship in retu rn for Lu’s agreemen t to be a teaching assistant (the contract). The contract specified that schol arships and teaching assistant appointments are li mited to “one academic year at a time” and that Lu’s appointment was “a nine-m onth appointment beginning Au gust 16, 2010, and ending May 15, 2011.” R. Vol. I, at 287. Despit e this limitation, Lu a lleges that University Assistant Music Director Donn Schaefer verb ally promised him that as long as he maintained a 3.00 GPA, the assistantship and scholarship would be renewed for the full three years Lu studied for his doctorate. In April 2011, Schaefer told Lu the cont ract wouldn’t be renewed because the University lacked su fficient funding. But accord ing to Lu, defendant Robert Baldwin, the Director of Orchestral Activiti es and of Graduate Studies, told Lu the contract wouldn’t be renewe d because defendant Miguel C huaqui, Interim Director of3 the School of Music, reported that Lu had been rude. Lu complained to defendants Lori McDonald, Dean of Students, and Char les Wight, Former Dean of the Graduate School. Lu didn’t re-enroll for the next ac ademic term and his failure to enroll was reported to immigration officials by McDo nald and defendant Chalimar Swain, Director, International Center. As a result Lu’s visa wasn ’t extended, resulting in his deportation to Taiwan. After his deportation, Lu filed an ethics complaint with the University’s Internal A udit Department. Defendants Charles Piele and Michael Goodrich, University Audit Manage rs, investigated the complaint. Lu’s complaint agains t the University and University officials in their official capacities (collectively, the defendants) alleged they br eached the contract and verbal promises. Lu also alleged to rt claims for slander and fo r dereliction of unspecified duties, claiming the defendant s made false statements about his job performance, gave inaccurate information to immigration o fficials, and failed to timely or properly investigate his complaints. His complaint also mentioned the Taiwan Relations Act and the International Covenant on Econom ic, Social and Cultural Rights. The defendants moved to dismiss unde r Fed. R. Civ. P. 12(b)(1) and (6), asserting that the court lacked jurisdiction over the claims and that Lu’s co mplaint failed to state any plausible claim as a matter of law.4 In granting the defendants’ motion, the di strict court found Lu’s tort claims barred under both the Eleventh Amendment 1 and the Utah Governmental Immunity Act (UGIA). 2 Further, the court concluded Lu fa iled to allege any plausible breach of contract claims given the contract’s unambiguous language as to the term of the contract. Additionally, the cour t reasoned that Utah’s paro l evidence rule and statute of frauds barred any verbal promise to ex tend Lu’s appointment for three years. Finally, the district court ru led that Lu lacked any plausible claim under the Alien Tort Claims Act (ATCA), Taiwan Relati ons Act, the International Covenant on Economic, Social and Cu ltural Rights or any other international treaty.
II. DISCUSSION We review a Rule 12(b)(6) dismissal de novo. Casanova , 595 F.3d at 1124. To survive a motion to dismis s, a complaint must contai n sufficient factual matter, accepted as true, “to state a claim to re lief that is plausible on its face.” Id . (internal quotation marks omitted). Because Lu pr oceeds pro se, we construe his complaint liberally, but pro se parties are “not relieve[d ] . . . of the burden of alleging sufficient facts on which a recognized lega l claim could be based.” Hall v. Bellmon , 935 F.2d 1106, 1110 (10t h Cir. 1991).

1 In relevant part, the Eleventh Am endment to the U.S. Constitution bars actions by “Citizens or Subjects of any Forei gn State” in federal court against states, state entities and state employees acting in their official cap acities absent a waiver by the state or valid congressional ove rride. U.S. Const. amend. XI; Kentucky v. Graham , 473 U.S. 159, 169 (1985). 2 The UGIA provides governmental enti ties and employees with immunity “from suit for any inju ry that results from the exercise of a governmental function.” Utah Code Ann. § 63G–7–201(1).5 Lu raises numerous issues on appeal. Firs t, he argues the district court erred in failing to evaluate his claims under the fede ral Administrative Procedure Act (APA). But we won’t consider this argument because Lu never raised an APA claim or issue before the district court. See Turner v. Pub. Serv. Co. of Colo ., 563 F.3d 1136, 1143 (10th Cir. 2009) (“Absent extraordinary circumstances, we will not consider arguments raised for the fi rst time on appeal.”). Next, Lu contends the UGI A is unconstitutional and doe sn’t apply to claims alleging violations of the Utah Constitution. Within this cl aim of error, Lu argues the defendants’ actions violated the First, Fourth, Fifth and Fourteenth Amendments to the U.S. Constitution, as well as provi sions of the Utah Constitution and state criminal code provisions. Again, we won’ t consider these argumen ts as they aren’t based on any claim asserted in his comp laint. Moreover, Lu cites no authority supporting his assertion that the UGIA is unconstitutional. Lu also challenges the district cour t’s interpretation of the Eleventh Amendment, arguing his suit against the defe ndants is not a suit against the State of Utah. As the district court explained, however, it is well- settled that the University of Utah is considered an “arm of the stat e” entitled to Eleventh Amendment immunity, Watson v. Univ. of Utah Med. Ctr ., 75 F.3d 569, 574–7 5 (10th Cir. 1996), as are its officials acting in their official capacity. Graham , 473 U.S. at 169. Alternatively, Lu contends the indi vidual defendants are not entitled to immunity under the UGIA becau se their actions were not undertaken in the exercise of a governmental function. We disagree. Lu’s allegations relate to actions taken by6 the individual defendants in the exer cise of a governmental function. See Utah Code Ann. § 63G–7–102(4)(a)–(b) (broadly defi ning “[g]overnmental function” as “each activity, undertaking, or operation of a go vernmental entity” or of “a department, agency, employee, agent, or officer of a governmental entity”). Lu additionally argues the defendants aren’t entitled to UGI A immunity because they didn’t act in good faith. But the cases Lu relies upon ar e inapposite as they involve the doctrine of qualified immunity—not the UGI A immunity at issue here. Next, Lu challenges the dismissal of his breach of contract claims. He argues Utah’s parol evidence rule 3 doesn’t apply because the c ontract was an incomplete integrated contract. Contrary to Lu’s suggestion, the c ontract contained a complete, final expression as to th e length of Lu’s scholars hip and teaching assistant appointment. See Tangren Family Tr. v. Tangren , 182 P.3d 326, 330 (Utah 2008) (defining an integrated agr eement as “a writing . . . cons tituting a final expression of one or more terms of an agreement” and holding that an agreement reduced to writing is “conclusively presumed” to contain “the whole of the agreement between the parties”). Thus, the distri ct court correctly ruled Utah ’s parol evidence rule would bar admission of any pre-contract verbal agreement to extend the appointment past May 15, 2011.

3 Utah’s parol evidence rule preclude s admission of a prio r side agreement offered to contradict or va ry the terms of an integr ated, written agreement. Young Living Essential Oils, LC v. Marin , 266 P.3d 814, 818 (Utah 2011).7 Citing language in the contract limi ting doctoral students to three-year teaching assistant appointment s, Lu argues the district court erred in applying the statute of frauds 4 to bar his breach of contract cl aim. But the lan guage Lu relies on does not bind the parties to renewing the ap pointment for three years; instead, it simply states the outside limit on such reappointments . Thus, the district court correctly ruled that evidence of a verbal agreement to renew his appointment for two years after the May 2011 termination date would be barred by Utah’s statute of frauds. Further, because the contract unambi guously terminated the appointment on May 15, 2011, and made no representation or promise regarding re newal, we reject Lu’s arguments that he is en titled to relief under the princi ples of good faith and fair dealing or promissory estoppel. See Young Living , 266 P.3d at 817 (holding covenant of good faith and fair dealing can’t be invoked if it creates “obligations inconsistent with express contractual terms”) (i nternal quotation marks omitted); Youngblood v.
Auto-Owners Ins. Co ., 158 P.3d 1088, 1095 (Utah 20 07) (“When a party knows or should have known reliance [on a statement] would be in error, the party cannot reasonably rely on the misrepresent ation as a matter of law.”). Next, Lu challenges the defendants’ asse rtion that his clai ms are barred by his failure to file a notice of claim as requi red by the UGIA. The parties dispute whether

4 Utah’s statute of frauds provides that “every agreement that by its terms is not to be performed within one year” is “void unless the agreement, or some note or memorandum of the agreement, is in writi ng, signed by the party to be charged with the agreement.” Utah C ode Ann. § 25–5–4(1)(a).8 Lu filed the claim notice, but the district court didn’t re solve the dispute and instead simply assumed for purposes of the motion to dismiss that Lu properly filed his claim notice. Because we agree with the district court that the defe ndants were entitled to UGIA immunity, we also decl ine to reach this issue. Lu additionally contends that the dist rict court should have ruled that UGIA immunity is waived for 42 U.S.C. § 1983 cl aims. But as the dist rict court correctly noted, Lu’s complaint doesn’t assert or plausibly allege a § 1983 claim. Lu also complains that th e district court dismissed his complaint because it wasn’t well-written. Howeve r, the district court didn’t cite this as a reason for dismissing Lu’s complaint. Mo reover, we are satisfied from our review of the record that the district court liberall y construed his complaint. Lu next challenges the district court’ s conclusion that he can’t proceed under the ACTA. But the district court correctly ruled that Lu’s slander and so-called “dereliction of duty” tort claims don’t qua lify as torts committed in violation of international law or any treaty of the Un ited States, including the Taiwan Relations Act, as required to invoke jurisdiction under the ACTA. See Sosa v. Alvarez– Machain , 542 U.S. 692, 725 (2004). Finally, Lu asserts the dist rict court should have cons idered whether the Utah State attorneys representing th e defendants had an ethical conflict of interest. Lu presents no factual or legal basis for this argument, and we find it without merit. Having found no error in the district c ourt’s dismissal of Lu’s complaint, we affirm the dismissal for subs tantially the reasons stated by the district court in its9 order dated October 7, 2015. Lu’s moti on for appointment of pro bono counsel is denied.

Entered for the Court
Nancy L. Moritz Circuit Judge